[2022] KEHC 9846 (KLR)

Republic v Mokua (Criminal Case 32 of 2016) [2022] KEHC 9846 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 9846 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Case 32 of 2016

REA Ougo, J

June 9, 2022

Between

Republic

Prosecution

and

Joseph Tabulandi Mokua

Accused

Judgment

1. Joseph Tabulandi Mokua the accused person is charged with the offence of murder contrary to section 203 and 204 of the Penal Code. The particulars of the offence are that, on the December 14, 2016 at Bomariba location in Kisii South District within Kisii County in Republic of Kenya murdered James Manani Mokua.

2. At the time of taking plea on the September 18, 2017 the accused person was found to be mentally unfit. The accused was committed to Mathari Hospital for psychiatric treatment and after treatment he was presented back in court on the July 12, 2021 with a report that he was fit to stand trial.

3. The accused person maintained his plea of not guilty. During the trial the Prosecution called 5 witnesses. Pw1 the accused’s father. Pw2 the accused’s brother. Pw3 the Doctor who did the post mortem, Pw4 a member of the vigilante group and Pw5 was the investigation officer.

Prosecution Case 4. This is a summary of the prosecution case. The deceased and the accused are siblings. On the December 14, 2016 at Bomariba village the accused was home with his parents and siblings. Pw2. During the day the accused had a quarrel with Pw2 over some soil that had been dug. Later the accused and the deceased met at a shopping centre. The deceased defended a boy whom the accused had attacked. The 2 went their separate ways. At about 7pm to 8pm Pw2 heard their father ask the accused and the deceased why they were fighting. There was noise outside. According to Pw1 the accused went to him and told him that he had finished the one he (Pw1) loved. Ongoing to the place the accused directed them, Pw1 and Pw3 found the deceased lying down having been stabbed. The deceased was rushed to Nyagena hospital but unfortunately the deceased died. Pw4 went to the home of the deceased and found the accused in the homestead. They arrested the accused. Pw5 visited Pw1’s home and rearrested the accused and also recovered a bloody panga which had human blood and a rungu. He arrested the accused and later had him charged in court. Pw3 did a post mortem on the deceased on the December 17, 2016. His examination revealed that the deceased was 38 years old in good nutrition status. The deceased had a deep cut wound on the back of the head. He also had 2 penetrating wounds on the left side of the chest, one was 6 cms and the other was 4 cms. There was blood in his left cavity about 2 litres. Pw3 concluded that the deceased died as a result of the deep penetrating wound in the chest due to a sharp object.

Defence Case 5. The accused gave an unsworn statement in his defence. The accused testified as follows; the deceased is his brother. His brother fought him but he did not injure him. He did not want to take away his life. They fought on the road and his brother was taken to hospital. He used a slasher to hit the deceased. He did not escape. He was told the deceased died. He did not want to kill his brother.

Analysis and Determination 6. The accused faces a charge of the murder of his brother his sibling. The charge of murder is defined under section 203 of the Penal Code as follows:“Any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder”

7. The burden of proof lies with the prosecution to prove the charge against the accused beyond any reasonable doubt. For the prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an accused person. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the elements of the offence of murder were listed as follows;a.Proof of the fact of the cause of death of the deceased.b.Proof that the death of the deceased was the direct consequence of an unlawful act or omission on the part of the accused which constitutes the `actus reus’ of the offence;c.Proof that the said unlawful act or omission was committed with malice aforethought which constitutes the `mens rea’ of the offence.

8. Malice aforethought is an essential element of the offence of murder under section 203 of the Penal Code. What constitutes malice aforethought is set out under section 206 of the Penal Code as follows:“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:a.An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not,b.Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;c.An intent to commit a felony;d.An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

9. At the close of the defence case Mr. Bigogo for the accused elected not to make any submissions. The prosecution too did not make any submissions. Having considered the prosecution evidence and the defence raised by the accused person I find that the following issues are not in dispute; that the deceased died as a result of injuries caused by the accused person, that the accused and deceased had been some kind of confrontation and that the accused and the deceased were siblings.

10. Back to what constituents the offence murder. The fact and cause of death of the deceased is not in dispute. Pw3 who did the post-mortem testified that the cause of death was a deep penetrating wounds in the chest due to a sharp object. Pw1, Pw2 and Pw3 also confirmed the death of the deceased.

11. The next issue is whether the death of the deceased was the direct consequence of an unlawful act or omission on the part of the accused. Pw1 informed the court that on the material day the accused went where he was and informed him that he had finished the one he loved and on-going where the deceased was they found him lying on the ground but was not speaking. Pw2 testified that on the material day at night at 8pm he heard noise, people were screaming. He then heard his father ask why they were fighting. He went out and found and found the accused saying, “the one you love is lying there I have killed him”. He found his brother the deceased hit on the head he had a hole in his head, plus he had been stabbed twice in the chest. He died before he reached the hospital. He used his torch light at the scene. He saw the accused who is his brother at a tree near the deceased’s body. Pw4 visited the home of Pw1 after the incident to stop people from lynching the accused. He found the accused in the compound going round and round. The accused told them that he had beat his brother. Pw5 arrested the accused and later recovered a sharp panga and a rungu in the accused’s house. The panga was blood stained. an analysis of the evidence of all these witnesses clearly shows that the accused is the one who injured the deceased. The accused went to his father and informed him of what he had done. Pw1 and Pw2 went to the place and found the deceased injured, a bloody panga and rungu were found in the accused’s house. I am persuaded that it is the accused who inflicted the injuries on the deceased. Pw1 and Pw2 evidence placed the accused at the scene where the deceased was found seriously injured. Though he was not seen hitting the deceased his actions and words after the incident confirmed he did it. I find that the accused lawfully caused the death of the deceased.

12. It was the evidence of Pw1, Pw2 and Pw4 that the accused was not mentally well. according to Pw1 and Pw2 the accused was epileptic and when he had an attack he would do harm. at the time the accused was presented in court he was found not be mentally fit to take plea. He was committed to Mathari hospital and was brought back in 2019. The evidence by the prosecution tend to show that at the time of the incident the accused may have been suffering from mental illness. He is said to have had an epileptic attack and was not himself. He went to inform his parents that he had finished the one he loved, he went to his house and was found going round and round the home.

13. In Richard Kaitany Chemagong v Republic; Criminal Appeal No 150 of 1983;[1984] KECA 64 (KLR) the Court of Appeal distinguish a malfunctioning of the mind from non-functioning of the mind due to epilepsy and held:“There was ample evidence that the defendant was acting unconsciously and involuntarily when he inflicted the injury, but cause of his condition was psychomotor epilepsy. Where the effect of a disease was so to impair the mental faculties of reason, memory and understanding that the sufferer did not know the nature and quality of his act or, if he did, did not know he was doing what was wrong, it was a ‘disease of the mind’ within the meaning of the Mc’Naghten Rules in Mc’Naghten’s Case (1843) 10 C1 & Fin 200, even if the effect was transient or intermittent. On the evidence the defendant was therefore ‘insane’ at the time of his act, and the only possible verdict was that provided for by the Act of 1883 as amended.

14. Although the accused did not raise a defence of insanity, it is clear to me that accused was suffering from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing t was wrong. There is sufficient evidence in this case to enable this court to rule that the accused was suffering from the disease of the mind. The doctor who examined the accused on the July 20, 2017 found him to be mentally unstable and that he was an epileptic patient on medication. I find that the evidence before court establishes that the accused may have been mentally unsound at the time of the incident due to a disease of the mind, so as to not to know the nature and quality of his actions or that those actions were wrong.

15. Section 166(1) of the Criminal Procedure Code provides:“166(1). Where an act or omission is charged against a person as an offence and it is given in evidence on the trial of that person for that offence that he was insane so as not be responsible for the acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.

16. I therefore find that the accused is guilty of murder contrary to section 203 of the Penal Code as charged but was insane at the time that he committed the offence charged.

DATED, SIGNED AND DELIVERED AT KISII THIS 9TH DAY OF JUNE 2022. R.E. OUGOJUDGEIn the presence of:Accused PresentMr. Bigogo For the Accused PersonMr. Muriuki State Counsel ODPPAphline C/A