[2017] KEHC 952 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CRIMINAL CASE NO.36 OF 2012

REPUBLIC...........................................PROSECUTOR

- V E R S U S –

MOHAMMED GODANA.....................1ST ACCUSED

DAKATU BARE...................................2ND ACCUSED

ORGE ADANO.....................................3RD ACCUSED

HALIMA WAKO...................................4TH ACCUSED

J U D G M E N T

Mohammed Godana (accused 1)and Orge Adano (accused 3)were charged jointly with 2 others with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the charge are that on the night of 5/2/2012 at Kula-Mawe market within Garbatulla District within Isiolo County, jointly murdered Ali Wako Jillo. The other two accused 2 and 4 were acquitted under Section 306(1) of the Criminal Procedure Code.

In support of the prosecution case, four witnesses were called. The prosecution was led by learned counsel Mr. Mulochi.

When called upon to defend themselves accused 3 Fatuma Abdi Alkano (Orge Adano) testified on oath and called another four witnesses but accused 1 opted to remain silent. The defence was led by learned counsel Mr. Muriuki.

Prosecution case:

PW1 Suleiman Wako, a brother to Ali Wako Jillo, the deceased told the court that his sister Zainabu had been married to Adan and they had disagreed; that she had gone back to her parents’ home. Before the issue was resolved by elders, Adan and Umar Godana tried to take the said Zainabu back by force when she had gone to fetch water and he restrained them when they tried to force her to board a vehicle; that on the next day, Ali Wako left home being escorted by Shukri when he heard noises and ran to see what was happening. He met Shukri who informed him that Adan and Umar had attacked them.

On arriving at the scene he found 5 people who were beating Ali Wako with stones and he was lying on the ground; those he found at the scene were Mohamed Godana, Orge Adano, Ashu Mohamed, Dokatu Bare and Halima Jirmo – Accused 1 – 4; that the people continued to beat the deceased with stones and also attacked them whereby he suffered a fractured elbow; they took Wako to a dispensary but were asked to take him to hospital. They took him to Maua Hospital where he was admitted for 47 days and died. According to PW1 the deceased sustained a fracture of the neck and both hands. He reported the incident at Garbatulla Police Station. He denied that his brothers threw stones in the dark and they injured each other.

Golicha Hussein (PW2) recalled that on 5/2/2012, he left the mosque at about 8. 00 p.m. when he heard noises outside: He found Mohamed Godana beating Shukri Wako and they intervened and both of them left. Later, as he passed by Mohamed Godana’s home, Mohamed Godana, Aisha, Orge and Umar came out of the gate and attacked Shukri and his brothers Ali Wako (the deceased), Suleiman and Shukri using sticks and stones; that accused 3 hit Ali Wako with a big stick on the neck and he fell and started to bleed from the mouth and nose. PW2 helped take Ali (the deceased) to the dispensary and he heard of his death about a month later. He identified the accused using moonlight. He did not know why Umar was not charged with the other accused.

PW3 Yasin Wako told the court that on the 5/2/2012 about 8. 00 p.m. he found three people fighting, Mohamed Godana (accused 1); Shukri and Suleiman whereas Sheikh Roba (Ali Wako) was standing nearby; that he saw Sheikh Roba fall and he went to call the police. He further said that he also saw Hashu, Mohammed and Orge fighting and he saw Mohammed hit the deceased with a stick on the neck. PW3 said that accused 3 was armed with a club and that Ali Wako died at the scene. He said there was moonlight.

PW4 Ip. Patrick MisikoOCS of Garbatulla Police Station was at the station when the accused were taken there from Meru High Court where the accused had been taken for plea after Ali Wako died. He visited the scene at Kula-Mawe and found out that the deceased’s family and that of accused are neighbours and they were in-laws; that the fight occurred after the marriage fell apart; that a lady married in accused’s home had ran away back to their home and deceased was assaulted while on his way from the mosque.

PW4 produced the postmortem report prepared by Dr. Kangethe. The doctor formed the opinion that the deceased died due to cardio-respiratory arrest and spinal cord injury.

After the close of the prosecution case, accused 1 and 3 were called upon to defend themselves whilst accused 2 and 4 were set at liberty after this court ruled that there was contradictory evidence as to whether or not accused 2 and 4 were at the scene of crime.

Accused 1 opted to remain silent which is his right while accused 3 testified on oath. Three other witnesses testified in support of the defence case.

DW1 Fatuma Abdi Halkana as per the identity card, (D.Ex.no.1) denied knowing who Orge Adano is nor was it her name. She said that accused 1 is her neighbour and denied having taken part in any fight that took place on 5/2/2012. She only heard noises, thought it was a football match but later heard that people had fought. People went to the scene but she did not go there. She was arrested but has no idea why.

DW2 Wako Jilo Hanti is the father of the deceased. He said that his sons Ali Wako, Shukri and Suleminan left for the mosque about 8. 00 p.m.; he heard noises at 8. 30 p.m. went to the scene and found Ali Wako lying on the ground injured while two others were injured. He organized to take Ali Wako to hospital and did not know who injured his sons; that he never asked who injured them on that night. DW2 added that they had settled the dispute at home.

DW3 Kuracha Gufu Dida, a village elder at Kula-Mawe was coming from the mosque on the same day when he heard noises, went to the scene and found Ali had fallen; that people had ran away and he did not know who injured the deceased.

DW4 Godana Sama also heard noises, went to the scene, found Ali injured. He denied knowing who committed the act.

DW5 PC Wilfred Nyakar of Garbatulla Police Station produced in court the O.B. extract of 5/2/2012 but it did not contain any report made of Ali Wako’s death.

The two accused face a charge of murder under Section 203 of the Penal Code. The burden squarely lies on the prosecution to prove beyond any doubt the following ingredients:

(1) Proof of the fact and cause of death of the deceased;

(2) Proof that the accused caused the death of deceased through an unlawful act or omission;

(3) Proof that accused possessed malice aforethought or intention to kill or cause grievous harm to the deceased.

As regards the first ingredient, PW1, 2, 3 saw the deceased injured. Incidentally, the deceased did not die at the scene. He was taken to hospital where he died about a month later at Maua Hospital. DW2, the deceased’s father, DW3 &4 helped in taking the deceased to hospital on 5/2/2011. Postmortem was carried out on 17/3/2012 and the doctor was of the opinion that the cause of death was cardio-respiratory arrest secondary to spinal code injury. The doctor had noted fracture and dislocation of C3. PW1 told the court that he observed the deceased and noted that an injury to the back of the neck. The Doctor’s evidence corroborated PW1, 2 & 3’s evidence who said that the deceased was assaulted on the neck and started to bleed from the nose and mouth. I find that the evidence of PW1, 2, 3 do corroborate the doctor’s findings on the cause of death. The body was not dissected due to Muslim tradition.

As to whether or not a report was made at Gerbatula Police Station about the deceased’s death, the fact of death is not disputed and the evidence on record is that Ali Wako died after about a month’s admission at Maua Methodist Hospital. Before determining whether or not the two accused were involved in the murder of the deceased, the issue that has arisen is the identity of accused 3. In her defence accused 3 denied being Orge Adano. She produced her identity card in court in which the names on it are Fatuma Abdi Halkano. PW1 positively identified accused 3 in court as Orge Adano and so did PW2 and 3. The prosecution witnesses knew accused 3 before. They are relatives and neighbours and I have no doubt that they knew accused 3 very well. During the prosecution case, the three witnesses were never challenged as to the identity of accused 3. The question of identity was only raised in the defence. Although the accused 3’s identity card reads another name, it is not uncommon for people to be known by other names which are not the official names. Though the prosecution should have indicated that alias name, I am satisfied that accused 3 was positively identified as Orge Adano though her official name as per the identity card is Fatuma Abdi Halkano. She is one and the same person and that is accused 3.

It is only PW1 who seemed to shed light on what was the source of the disagreement on that fateful evening. According to him, his sister Zainabu had been married to accused 1 Mohammed Adan; that she had gone back home due to a disagreement; that she went to fetch water and (accused 1) Adan and Umar Godana tried to force her to go back to Adan’s home but when the brothers arrived, the 2 men ran away. Thereafter the first disagreement seems to have been on the day preceding the day when Ali Wako was injured.

This case therefore turns on the issue of identification. The offence is said to have been committed about 7. 30 p.m. to 8. 00 p.m. Being 8. 00 p.m., it was night time and the conditions for identification were therefore unfavourable and therefore this court has to warn itself of the dangers of reliance on such evidence. In Cleophas Otieno Wamunga v Republic (1989) KLR 424, the Court of Appeal said: “Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against the defendant’s wholly or to a great extent on the correctness of one or more identification of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant on reliance on the correctness of the identification.”

The court further stated in Maitanyi v Republic CRA.6/1986

“The strange fact is that many witnesses do not properly identify another person even in daylight………… it is at least essential to ascertain the nature of light, its size and its position relative to the suspect, are all important matters helping to test the evidence with the greatest care?

It is not a careful test if notice of these matters are unknown because they were not inquired into.”

It is generally agreed that the incident in which Ali Wako alias Sheikh Roba was injured took place at about 8. 00 p.m. The issue of identity therefore comes into play. On the question of what lighting was available to enable the witnesses see the assailants, PW1 & 3 said that there was moonlight on that night. It was generally agreed that there is no electricity at Kula-Mawe. However, PW2 alleged that there was electricity which enabled him to see. He also talked of there having been moonlight. DW2 also denied that there is any electricity at Kula-Mawe. In my view, PW2 seemed to have made up the issue of electricity. DW2 & 3 told the court that when they went to the scene after hearing noises, it was dark but they found Ali already injured. I am satisfied that the accused are no strangers to PW1, 2 & 3. They came into close contact with the assailants when intervening in the scuffle. It is not evidence of one but of three people PW1 – 3.

I find DW2, the father of the deceased to be an untruthful witness in contending that to date, he has never asked his sons, whom he said were injured, along with Ali, who assaulted them. I will prefer the testimony of PW1, 2 & 3 that there was moonlight on that night, they came into close contact with the assailants as they intervened and they did see who the assailants were, accused 1, 3 and others. They are people they knew very well.

Before the attack on Ali, there had been a fight outside the mosque between Shukri on one side and accused 1 and one Umar. The incident in which Ali was attacked took place later on near the home of the accused persons. PW1, 2 and 3 saw accused 1 and 3 amongst others either fighting or assaulting the deceased. According to PW1, Shukri had escorted Ali, but came back to inform him that Ali had been attacked and so they went together to find Ali being assaulted and they were also pelted with stones and got injured. DW2 confirmed that his sons PW1 and Shukri were injured. PW2 specifically said he saw accused3 hit Ali with a stick on the head and that he then informed her that she had killed Ali. PW3 also saw the assailants armed with sticks and that it is Mohammed who hit Ali with a stick on the neck. I appreciate that this was a confused attack. DW2 confirmed that apart from Ali being injured his other sons were injured too, which does corroborate PW1’s evidence that he too was assaulted.

What is not very clear in my mind is whether what took place outside accused 1 & 3’s home was a fight or an attack on Ali and the brother. Shukri was at the centre of this incident yet he was not called as a witness. He would have shed light on what exactly took place before the attack. In my view Shukri was a very key witness.

This court is of course aware that the prosecution had challenges in procuring the witnesses, whereby some refused to sign summons and attend court. The reason for their declining to attend court can be deduced from DW2’s testimony. It is because they had settled this matter at home and I take judicial notice of the fact that people from this general area will normally settle their matters at home be it serious criminal act or not. However, it must be appreciated that the offence committed herein was a serious offence resulting in the loss of a life and there is no possibility of settling the matter out of court.

Coming back to the issue at hand, although DW2 denied knowing who injured his sons or inquiring from them who injured them, he contradicted himself when he said that they settled the matter out of court. DW2 can only settle the matter with those who were the perpetrators of the offence whom I believe are the accused persons.

Whether malice aforethought was proved; as noted above, the evidence of Shukri would have been crucial in establishing how the confrontation all started. There had been a fight earlier in the day involving accused 1 and Shukri. The question is whether the confrontation where the deceased was injured was a continuation of the same. Ali suffered serious injuries during the confrontation with the two accused 1, 3 & others, as a result of which he met his death. In my view, malice aforethought has not been proved to the required standard that is beyond any reasonable doubt and I acquit the accused 1 & 3 of the charge of murder.

However, I find that the fatal injuries were inflicted on the deceased by both accused 1 and 3 during some confrontation. I will find both accused 1 & 3 guilty of the offence of manslaughter and convict them under Section 202 of the Criminal Procedure Code.

Datedand Signed at NYAHURURUthis 29th day of November, 2017.

...........................

R.P.V. Wendoh

JUDGE

Delivered by JUSTICE A. MABEYA atMERU this 7TH day of DECEMBER 2017.