[2022] KEHC 10814 (KLR)

Republic v Nyongesa (Criminal Case 16 of 2020) [2022] KEHC 10814 (KLR) (11 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10814 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 16 of 2020

SN Riechi, J

May 11, 2022

Between

Republic

Prosecution

and

Paul Wekesa Nyongesa

Accused

Judgment

1. The accused Paul Wekesa Nyongesa is charged with offence of murder contrary to section 203 as read with Section 204 of the Penal Code.

2. The particulars of the offence are that on March 28, 2020 at Nakhwana sub-location in Bumula sub-county within Bungoma County murdered Rodah Nyongesa Namuyemba.

3. The case for prosecution is that on March 28, 2020 at 7 p.m. PW1 Mary Nyongesa who is the accused brother’s wife was in her house when accused came from his house and hit the door with an iron bar and entered the house shouting “where is Mary?”. She hid behind a tank. The accused then went into his mother, the deceased’s house and locked it from inside. The accused then called the mother and he then slapped her and she fell down. She then locked the house from outside and went to call Emmanuel and Brian. They came and entered the house of deceased where they found the accused on top of the deceased who was lying down. They were unable to remove accused from her. Albert was called and removed the accused from on top of the deceased. They took the deceased to Kimaeti Health Centre where she was pronounced dead.

4. On being cross-examined by Nabibia for accused she stated that accused assaulted the deceased in her house and she was at the door.

5. PW2 Brian Barasa a minor aged 16 years and in form one at Kamulimu Secondary school was on the material day in the house when he heard Mary (PW1) screaming that accused was killing the deceased. He ran there and found the door locked. They pushed the door and on entering found accused strangling the deceased. They tried to remove him but were unable. He went and called Albert who came and they were able to remove accused from the deceased. The deceased was taken to Kimaiti hospital where she was pronounced dead. On cross examination by Nabibia for accused he stated that accused was smelling alcohol and once outside he ran away.

6. PW3 Albert Wesonga testified that accused is his uncle. He was in his shop at 7 p.m. when Brian (PW2) went there and told him that accused was strangling the deceased. He ran there and found accused strangling deceased. They removed him from deceased and took him outside. The deceased was taken to Kimaiti hospital where she was pronounced dead.

7. PW6 Emmanuel Wafula Nyongesa was in the house when Mary (PW1) and Brian (PW2) came and told them their grandmother the deceased had been killed. He ran there and found there was a fracas in deceased house. They found deceased lying down and accused strangling her. They tried to remove accused but they were unable. Albert was called and assisted in removing the accused from deceased. The deceased was taken to Kimaiti Health center where was pronounced dead on arrival.

8. PW5 Dr Haron Ombongi performed a post mortem on the body of deceased on March 30, 2020. He found there was a bruise on left elbow and fingers were turning blue. On opening the body, he found deceased had a fracture of cervical spine. There was evidence of upper airway obstruction and lung collapse. From the examination he formed opinion that the cause of death was due to lack of oxygen. He explained in cross-examination that the fracture could be caused by blunt object or fall. Even the hard force can cause the fracture.

9. PW7 PC Charles Ongera visited the scene in company of the DCIO CI Omeri and party. On arrival they were informed deceased had been taken to hospital at Kimaiti Health Center. They went there and removed the body to the mortuary. Later accused surrendered himself to Kiamiti police post where he was arrested and later charged with present offence.

10. The accused gave sworn statement in his defence. He testified that the deceased Rodah Nyongesa Namuyemba was his mother. On March 27, 2020 at 8 p.m. he was at his house when his In-law Mary (PW1) and Brian (PW2) came and informed him that the mother was sick and he should go and take her to hospital. He went there and found Albert, Brian and Emmanuel who accused him of taking Government Old peoples stipend and yet he had refused to take deceased to hospital. They beat him and he escaped. On March 28, 2020 he went and reported to police. He denied knowing how the deceased sustained the injuries.

11. Upon cross-examination by Omondi for state he confirmed that he went to police who arrested him. He also confirmed that all the prosecution witnesses are his relations.

12. The accused is charged with the offence of murder contrary to section 203 of the Penal Code. Section 203 provides…“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

13. From the provisions of section 203 the elements of the offence the prosecution must prove beyond reasonable doubt are:a.The fact of death of the deceased.b.The act or omission causing the death.c.That in causing death the accused committed it with malice aforethought.d.That there is direct or circumstantial evidence that it is accused who inflicted the injuries from which the deceased died.

14. On the fact and cause of death, PW5 Dr Haron Ombongi who performed the post mortem on the deceased testified that she had bruises on elbow, fracture of the cervical spine, obstruction of upper airways leading to bilateral lung collapse. He formed opinion that cause of death was due to pulmonary arrest as a result of asphyxia which means lack of oxygen in the body. He filled the post mortem form which he produced as Exh 1. This witness confirmed not only the fact of death but also the lack of oxygen in the body and fracture of the cervical spine as the cause of death.

15. PW1 Mary Nyongesa, testified as to how the accused went to her house looking for her when she hid and the accused proceeded to the house of the deceased. The accused then entered the house where deceased was locked the house, called the deceased and slapped her and she fell down. She locked accused in the house and called Emmanuel and Brian. Upon coming they found accused on top of the deceased and strangling her.

16. PW2 Brian Barasa responded to the report from Mary that accused was assaulting the mother. He went there and on entering in the house found accused strangling the deceased. They were unable to remove accused from the deceased and called Albert.

17. PW3 Albert Wesonga was called by Brain (PW2) and informed that accused was assaulting deceased. He went there. On arrival he found accused strangling deceased. He together with Brian (PW2) and Emmanuel (PW6) removed accused from the deceased and took him outside. He confirmed the person he saw strangling the deceased is the accused.

18. PW6 Emmanuel Wafula Nyongesa testified how upon responding to report that accused was assaulting deceased went to the house of deceased. On arrival he found the deceased lying down and accused strangling her. He and Brian (PW2) tied to remove accused from the deceased but were unable, prompting them to call Albert (PW3) who assisted them and they disengaged accused from the deceased.

19. All these prosecution witnesses testified that they saw accused in deceased’s house. They found the deceased lying down and accused strangling her. It is these witnesses who removed accused from the deceased. They know the accused well and their evidence is consistent that it is accused who inflicted the injuries on the deceased. The accused’s defence that he did not know who inflicted the injuries on deceased is not true and his defence is rejected. I am therefore satisfied that it is accused who inflicted the injuries on deceased from which she died.

20. For a charge of murder, the prosecution beside proving the fact and cause of death; the unlawful act or omission causing death, and that it is the accused who occasioned the unlawful act, they must prove that accused had the evil intention of causing grievous harm or death that is malice aforethought. Section 206 provides:Section 206. 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;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.

21. In this case the court can deduce an intention to cause death by the fact that accused through using his hands targeted the trachea thus blocking the airway and causing the deceased to lack oxygen from which act she died. This action was intended to cause death by stopping oxygen from entering the body. He knew or ought to have known that would cause death him being a man of 40 years old.

22. I am therefore satisfied that the prosecution has proved that accused had the requisite malice aforethought when he committed the offence.

23. I therefore find the prosecution has proved a charge of murder against the accused Paul Wekesa Nyongesa beyond any reasonable doubt. I find accused Paul Wekesa Nyongesa guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and convict him accordingly.

DATED AT BUNGOMA THIS 11TH DAY OF MAY, 2022S N RIECHIJUDGE