[2022] KEHC 9851 (KLR)

Republic v Nyabando (Criminal Case 30 of 2019) [2022] KEHC 9851 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 9851 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Case 30 of 2019

REA Ougo, J

June 9, 2022

Between

Republic

Prosecution

and

Josephat Omanga Nyabando

Accused

Judgment

1. The accused person herein, Josephat Omanga Nyabando is charged with the offence of Murder contrary to section 203 as read with section and 204 of the Penal Code. It is alleged that on the night of 6th August 2019 at Bong’onta Market of Sosera sub-location in Masaba South sub-county within Kisii County, the accused murdered Joseph Mirunda alia “kamamba”.

2. The accused person denied the charges and the prosecution called 9 witnesses in support of their case. The hearing commenced before Justice A. Ndung’u who took the evidence of eight witnesses. I completed the matter after complying with section 200 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) and took the evidence of the last prosecution witness and the defence of the accused person.

3. George Barongo Arumba (Pw1) testified that on 6th August 2019 he was standing outside a shop overlooking the road when he saw the accused chasing the deceased. The accused got a hold of the deceased and hit him with a panga. He cut the deceased in the middle of his head and the deceased fell. The accused person ran off with the panga. The deceased was bleeding and when Pw1 tried to talk with him as he could not respond. Pw1 recalled that the accused was wearing a white t-shirt and a checked trouser. Although it was dark he testified that the shop had a light bulb which lit the road. He also told court that the accused person was his neighbor in the village and had known him for many years. Following the incident, Pw1 informed the deceased family what had transpired. People came to the scene including the deceased’s brother who took him to hospital. Pw1 later learnt that the deceased died.

4. On cross examination he testified that he was 50 meters away from the scene of crime. He also testified that he did not record a statement with the police.

5. David Gisiora Mirondi (Pw3) testified that he was informed by James that the deceased had been hit on the head. Pw3 proceeded to the scene where he found the deceased on the ground and bleeding profusely. He had an injury on the head and Pw3 looked for means of transport to take him to hospital. He took the deceased to Keroka Level 4 Hospital and was pronounced dead on arrival.

6. Sylvester Ontita Mogaka (Pw2) testified that he is the assistant chief of Sosera sub-location. He recalled that on the material night he received a call informing him that the deceased was seriously injured and had been taken to Keroka hospital. He summoned his colleague and they went to Kerongo police post, and in the company of the police officers proceeded to the accused person’s house. The house was locked using a padlock and the police broke the padlocks. They got in and found the accused person on the bed and the panga next to him and arrested him.

7. The assistant chief of Bongota sub-location, Zachery Nyaboga Tubone (Pw4) who had also accompanied Pw2 testified that once they broke the accused person’s door, they found him lying on the bed and arrested him. They also found a panga placed next to his bed. On cross examination he testified that they went to the accused person’s home at around 11:00 p.m. and at the time of his arrest he appeared drunk.

8. No. xxxxx Harun Kiptanio (Pw5) testified that Pw2 and Pw4 reported a murder and they went to the accused person’s house, found the door locked with a padlock and heard him snoring. The accused person’s father gave them a hammer which they used to break open the door. Once they got to the house they arrested the accused person. Pw5 recalled that there was an angry mob who wanted to burn the accused person’s house.

9. The deceased’s cousin, Kennedy Mose (Pw6), testified that he was informed that the deceased had been hit using a panga and was lying on the road. When he went to the scene he found the deceased lying down on the road, bleeding from the head. They rushed him to Keroka Hospital but he was pronounced dead and he was then taken to Gucha mortuary.

10. Dr. Morebu Peter Momanyi (Pw7) was the senior medical officer at Kisii Teaching and Referral Hospital. He testified that the deceased’s clothes were soaked with blood. He testified that the deceased was a male of 45 years of age with a deep linear cut wound on the frontal region of head that measured 18 cm. There was a fracture on the head and the brain tissue was exposed. Pw7 concluded that the deceased succumbed from severe head injury secondary to a sharp trauma to the head. On cross examination he testified that the probable weapon would be a knife, panga or metal.

11. Dalmas Kibet Kisang (Pw8), a government analyst based at Kisumu government chemist, testified that he received blood sample of the deceased, a white and black polo t-shirt as well as a multi-coloured checked brown trouser. Pw8 testified that the T-shirt and trouser were slightly stained with the blood. Pw8 generated the DNA profile and concluded that the blood stains on the t-shirt and the trouser marched the DNA profile of the deceased.

12. Chief Inspector Caleb Mutonyi (Pw9) testified that on 6th August 2019 at around 11:30 p.m. he received information of the deceased’s death and that his body was at Keroka Level Four Hospital but was later moved to Gucha Hospital. He proceeded to the hospital and examined the body and saw a deep cut wound in the middle of the head. He spoke to the relatives of the deceased who were present as well as key eye witnesses and asked them to come to the police station on the following day to record their statements. He recorded statements from the witnesses and went to the scene of crime. At the scene, he observed that there was a lot of blood. He also noted that the accused person’s house which was on the valley was visible from the scene. By conducting a further search at the accused person’s house he found a t-shirt and a trouser that appeared to have blood. He testified that he found no blood on the panga. On the date the postmortem was conducted, they could not find any blood in the deceased’s body but instead used a cotton wool that had been placed in his ear which had blood and sent it to Pw8 together with the clothes and panga. He explained that the accused person at the time of his arrest had worn 2 trousers. The accused person’s trouser with blood stains was therefore recovered from his body during the time of arrest by the arresting officer.

13. At the end of the prosecution case, the court found that the deceased had a case to answer. Josephat Omanga Nyabondo (Dw1) testified that on 6th August 2019 at 8:00 p.m. he was asleep at his house. Before 8:00 p.m. he recalled to have been taking chang’aa and later went to Mosaiga Bar. He left and went home, found the children eating and slept. At 11:30 p.m. people broke into his house and he was handcuffed. Pw5 carried a chuma from his house that had no blood stains. He was wearing a black t-shirt and a checked trouser. He testified that he did not commit the murder as alleged.

ANALYSIS AND DETERMINATION 14. I have considered the evidence presented by the prosecution as well as the defence and the submissions too. The standard of proof in criminal cases is proof beyond any reasonable doubt. The prosecution is required to adduce evidence to prove all the three ingredients for the offence of murder, that is; that it was the accused person who caused injury to the deceased by either an unlawful act or an omission; that the deceased died as a result of the injuries she suffered; and that the unlawful act or omission was perpetrated by malice aforethought.

15. The fact and cause of the deceased’s death is not in dispute. Dr. Morebu Peter Momanyi (Pw7) conducted the deceased’s post mortem and concluded that the deceased succumbed to the injuries after sustaining severe head injury secondary to a sharp trauma to the head.

16. In this case, the only direct witness who saw the accused person cut the deceased was Pw1. This court in considering the testimony of a single witness should examine the evidence carefully to exclude the possibility of mistaken identity and ensure that the evidence is watertight. The approach to evaluating this evidence was set out in the case of R v Turnbull & Others [1976] 3 ALL ER 549 where the Court stated expressed the view that:...The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? .... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

17. The incident took place at night. Pw1 testified that he was about 40 meters from the scene. He stood near a shop that had electric lights that lit the road. He further testified that the accused person was well known to him as they had been neighbors for a long time. He also gave clear evidence on what the accused person wore a white t-shirt and a checked trouser. This was corroborated by the evidence of Pw9 who testified that the accused person was arrested wearing a checked trouser. Although Pw1 testified that he did not record or sign a statement with the police, the prosecution tabled evidence to show that the deceased’s blood was found on the accused person’s clothes.

18. The prosecution’s evidence was that the accused person was found in his house which was near and visible from the scene of crime. Pw2, Pw4 and Pw5 testified that they went to the accused person’s house at about 11:00 p.m. only 3 hours after the incident. The police broke the door to his house and found him sleeping; next to his bed was a panga. Pw9 testified that the arresting officer found the deceased wearing 2 trousers, a black trouser and checked trouser. The checked trouser had blood stains. Pw9 testified that on further searching the accused person’s house they found a stained t-shirt. The accused persons stained clothes and a sample of cotton wool with the deceased’s blood were sent to the government chemist for analysis. The government analyst, Pw8, made a finding that that the blood stains on the t-shirt and the trouser marched the DNA profile of the deceased.

19. It is therefore find that the prosecution has beyond reasonable doubt proved that that it was the accused person who caused the injuries that led to the deceased’s death.

20. The only issue that remains for determination is whether the accused person committed the act with malice aforethought. In Republic v Riziki Karisa Yeri [2020] eKLR the court held that;“The yardstick by which the court should decide whether the accused had formed the necessary malice aforethought is better summarized by Holmes in the Common Law (Boston) Little Brown & Co. 1881 at pp53, 54 as follows:“If the known present state of things is such that the act done will vary certainly cause death, and the probability is a matter of common knowledge, one does the act, knowing the present state of things, is guilty of murder, and the Law will not inquire whether he did actually foresee the consequences or not. The test of foresight is not what this very criminal foresaw, but what a man of reasonable prudence would have foreseen.””

21. The accused person raised the defence of intoxication. Section 13 of the Penal Code states as follows;13. (1)Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.(2)Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—(a)the state of intoxication was caused without his consent by the malicious or negligent act of another person; or(b)the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.(3)Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) relating to insanity shall apply.(4)Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.(5)For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs.

22. He testified that on the material day he had no work and went to drink Chang’aa. He later went to meet a friend at Mosaiga Bar. He was however chased away by a guard at the bar who told him to go home because he was too drunk. The evidence of Pw2, Pw4 and Pw5 was that they found the accused person drunk before he was arrested. Pw5 testified that when they got to his house he could hear the accused person snoring. Both Pw4 and Pw5 testified that after they broke his door using a hummer, they woke up the accused person who was sleeping.

23. Intoxication maybe raised by the defence if at the time of the act he does not know that his action is wrong or that he did not know what he was doing. In this case, Pw1 testified that the accused person an away after cutting the deceased on head. The accused person did not stop there, went ahead and washed the panga he had used cut the deceased. He tried to hide his trouser which had blood by wearing a black trouser over it. The accused person also caused to be locked inside his own home, with a view of escaping arrest. The manner in which the accused person acted reveals that he knew that his actions against the deceased were wrong. In Richard Kamindu Ndungu v Republic NRB CA Criminal Appeal No. 194 of 2004 [2012] eKLR the Court of Appeal held as follows;[20] It was not disputed that the appellant had taken some alcohol. By section 13(4) of the Penal Code, intoxication is a factor to be taken into account in determining in this case whether the appellant had formed an intention to kill. The alcohol may not have been so excessive as to interfere with the appellant’s mental faculties. Nonetheless, the alcohol appears to have been enough to produce in the appellant some element of aggression. We come to the conclusion that although the deceased died as a result of the appellant’s action, the appellant did not have the intention to kill her. We find that the superior court erred in convicting the appellant of the offence of murder when no malice aforethought was established.

24. Having considered the evidence on the record, I find thatthe appellant was not intoxicated to the point of insanity or not knowing what he was doing.

25. In determining whether malice aforethought has been established, the court should consider the nature of the weapon used, the manner in which it is used, the part of the body injured, the conduct of the accused before, during and after the attack (see Tubere S/O Ochen v Republic EA (1945) 12 EACA 63). Pw1 testified that he saw the accused person chase the deceased; he then kicked him and cut the middle of his head with a panga before running away. I therefore find that the accused person had malice aforethought.

26. In conclusion, I find the accused, Josephat Omanga Nyabando guilty of murder of Joseph Mirunda alia Kamamba and I convict him accordingly.

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