[2023] KEHC 24571 (KLR)

Republic v Okome (Criminal Case 16 of 2020) [2023] KEHC 24571 (KLR) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24571 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 16 of 2020

A. Ong’injo, J

October 19, 2023

Between

Republic

Prosecution

and

Ceaser Obuke Okome

Accused

Judgment

Introduction 1. The accused person Ceaser Obuke Okome faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 of the Laws of Kenya.

2. The particulars are that Ceaser Obuke Okome on the 20th day of July 2020 at Kombani Trading Center, Waa Location, Matuga Sub-County within Kwale County murdered Everlyne Indaria Indiaka.

3. The prosecution called 11 witnesses to support its case that the accused person committed the offence herein. The accused filed submissions on no case to answer and he was placed on his defence.

Prosecution Case 4. PW1, Mercy Wanjiru testified that the deceased was her former employee and that on 24. 6.2020 at 10. 00 pm, the deceased went and knocked at PW1’s house. PW1 said that the deceased had a swelling on the head and told her that her boyfriend had beaten her. That PW1 asked if the deceased had gone to hospital but she said she would do so the next day although she had reported the incident to the police. That the deceased later went to hospital and after 4 days PW1 called her and she said she was still having headaches. That after some days, the deceased’s brother called PW1 and told her that the deceased’s health had deteriorated and that the boyfriend had taken her to hospital.

5. PW1 informed court that she went to visit the deceased on 16. 7.2020 and that she was having excruciating pain, she was restless, she was cross eyed, and the eyes were swollen. That when PW1 saw the condition, she made a phone call to PW1’s mother who was in Nairobi and that the mother arrived the next day with the brother. That when PW1 arrived at the hospital, she found the deceased had been taken for a scan but before results were out, she passed on at night on 20. 7.2020. That the scan report showed the deceased had a fracture.

6. PW2, Mwinyi Hamisi Mushame said that the deceased lived near his mother’s place and that on 24. 6.2020 at 8. 00 pm, PW2 had visited his siblings at his mother’s place when he heard screams. That later, someone went and knocked and asked then to go and help as her sister was being beaten. That they went and found the door had been locked from the inside but the people inside were fighting. That they knocked and the deceased’s husband opened the door and that there was another man in the house. PW2 said that he asked why they were fighting and the husband said that they had agreed to meet with the deceased somewhere but she did not show up which made him feel disrespected. The deceased wanted to leave the house but the husband could not allow her as it was at night. That the deceased said she had been injured on the head and was in pain. PW2 testified that however, they were able to leave with the deceased together with her sister Joyce.

7. PW2 further informed court that he had a motorbike and took the deceased to the police station where her report was booked and was issued with an OB number. That PW2 then took the deceased to Tiwi Hospital where she was advised to go back in the morning as there was no doctor. That on 20. 7.2020, PW2 was called by the police from Kombani Police Station who informed him that he was required to record a statement in respect to the lady he took to the station and hospital as she had died. That PW2 went and recorded his statement.

8. PW3, Joyce Mulale Murange testified that the deceased was her daughter and was staying with a friend called Ceaser but she could not tell how long they had cohabited. That she knew Ceaser in June 2020 when her daughter was unwell. That PW3 said her son Jackson called and informed her that her daughter was unwell and when she asked what the problem was, she was told she had been assaulted by her boyfriend. That Mercy also called and informed her that the deceased was to undergo a scan and Kshs. 6000 was required.

9. PW3 said that she was in Nairobi but travelled to Mombasa the following day with her son Joshua. That they were directed to a hospital in Msambweni where she met the accused. That the deceased had a swollen head and face and that when PW3 asked the accused what the problem was, he said it was just a domestic dispute. PW3 said that she asked what the doctor had diagnosed and he said they had found malaria. That PW3 stayed with the deceased in hospital and the deceased told her that it was the head that was killing her because of the headache and that her eye was not seeing well. That the deceased was rescued when Ceaser was beating her and that the deceased could not sit. That on 19. 7.2020, they were referred to go for a scan and that Ceaser and Jackson took the deceased to Mombasa. That the scan showed there was injury on the head and before the report could be out, the deceased died. That they went to Kombani Police Station and reported that the deceased had died.

10. PW4, Jackson Kafu testified that the deceased was his sister and was staying with her boyfriend the accused herein. He said that he used to visit them and that he knew the accused. That on 25. 6. 2020 at about 9. 00 am, his sister went to visit him and that he saw her face was swollen on the left. That when he inquired, she told him that her boyfriend had assaulted her at night. That she went to Kombani Police Station to report and later went to hospital. That after 2 weeks, the deceased’s condition deteriorated and that the accused called PW4 and informed him that he was taking the deceased to Msambweni Hospital. That the deceased was not talking, the left side of her face was swollen, she was shaking her head and breathing with difficulties. That the deceased was admitted and PW4 stayed with her in the ward for one week. That on 17. 7.2020, his mother and brother Joshua went to hospital and relieved him. That the doctor requested for a scan which was done and that when PW4 arrived at the hospital with the results, he found his sister had died.

11. PW5, Dr. Zainab Baga from Coast General Hospital said she had a Postmortem Report in respect to the body of Everlyne Indiaka and that Dr. Ahlam conducted the postmortem. PW5 said that the doctor was known to her, that they worked together for 3 years and that she was familiar with his handwriting and signature. PW5 produced the report on his behalf and that the report was done on 4. 7.2020 at Coast General Hospital Mortuary. On general observations, PW5 said that the clothing was a white shirt, and green and yellow printed lesso. The body was of an African female of unknown age, nutrition and physique were healthy, strong and well built, height was 170 cm, and postmortem changes was that the body was embalmed and refrigerated.

12. PW5 said that on external appearance, there was peripheral cyanosis, bilaterally on both sides. That there were healing bruises at the back, there was incisional mark on the left hip with embalmment, and there was hematoma on the occipital region. PW5 said that on the internal appearance, the respiratory, cardiovascular, digestive and genito-urinary systems were normal. On the head, there was scalp hematoma on the left temp parietal region and at the occipital region. There was massive subdural hematoma on the right temp parietal and occipital area. There was brain oedema, there was no intracerebral blood seen, there was massive brain injury, and the spinal column and cord were normal. As a result of examination, the cause of death was severe traumatic head injury due to blunt trauma, massive subdural hematoma and increased intracranial pressure. PW5 testified that the Postmortem Report was signed and stamped on 24. 7.2020.

13. PW6, No. 257532 P. C. Mercy Andati attached at Kwale Police Station, Kombani Police Post said that Everlyne Indiaka was known to her. That on 26. 6.2020, her boss called and informed her that there was an assault case reported by Everlyne Indiaka which PW6 was required to investigate. PW6 testified that she called her to record her statement. That the deceased told her that she was at her home with the husband Ceaser and that she told him that she would leave in the evening to go and look for a place to do her business. That on return at 8. 00 pm, she found her husband had returned ahead of her and that he started questioning her why she came later than him to the house. That the accused started beating her with his fist on the head and that he also held her and hit her head on the wall. That following the beating, she sustained injuries and was feeling a lot of pain.

14. PW6 informed court that she also recorded the statement of Joyce Matulu Kyalo and issued a P3 Form and advised her to take it to the doctor who treated her to fill it. That the P3 was duly filled and returned. PW6 said that she was in the process of tracing the suspect but before he could effect an arrest, he learnt that the complainant had died. That she reported the same to her boss and the same was handed over to the DCI Kwale. PW6 testified that she recorded the statement of the deceased and signed it. She produced the hand written one in court as Pexh-3. PW6 also had a copy of the P3 which was filled at Msambweni Hospital Pexh-4 and the deceased person’s complaint which was booked vide OB No. 20/24/06/2020 Pexh-5.

15. PW7, Joyce Matulu said that the deceased was her friend and that she knew the boyfriend Ceaser Okome in 2020. That on 24. 6.2020 at 2. 30 pm, Everlyne went and accompanied her to Tiwi where they went to look for a place to do business. That they returned home at around 7. 30 pm and a neighbour who owned a tuktuk carried them back to Kombani about 15 minutes later, Everlyne’s neighbour by the name Clarice Neema and her sisters went and told PW7 that her friend was being beaten in the house and she was screaming but the door was locked. That PW7 decided to call the tuktuk driver and PW2 and when they arrived at where Everlyne was, she was still screaming. That the accused was forced to open the door and told them that they should sit and talk but Everlyne refused, and that she packed some few clothes and went out.

16. PW7 said that Everlyne’s left eye was swollen. That they went to Kombani Police Post where a report was booked and she was advised to go to hospital. That PW7 went back home as PW2 took Everlyne to hospital. That the next day Everlyne told PW7 that she was still in pain. That PW7 took her to Msambweni where an x-ray was conducted. That she was treated and went back to her home in Tiwi although she was to go get a P3 Form at Kombani Police Post. PW7 said that after 2 days, Everlyne went back to her boyfriend’s place where she suffered flu and the boyfriend took her to Ibiza Clinic. That PW7 used to visit them and Everlyne would tell her she was getting treatment at the clinic. That the next day Ceaser called PW7 and told her that her friend’s condition had deteriorated. That they took her to Msambweni Hospital where she was admitted but later died.

17. PW8, Juma Jefo said that he worked as a tuktuk driver and that the deceased was her neighbour. He testified that on 24. 6.2020 around 7. 00 pm, he had come from Ukunda on his way to Kombani when he saw Everlyne and Joyce standing by the road. That they stopped him and he carried them home. That after around 30 minutes, Joyce went and told him that her friend was being beaten by her husband. That in the company of PW2, they proceeded to Everlyne’s house where she was screaming. PW8 said that they knocked on the door and when it was opened, they found Everlyne, her husband and another person and that she had been injured on the right eye. That Everlyne was taken to her friend’s house. That after 2 days, Joyce told him that Everlyne had been taken to Msambweni Hospital and after some time he learnt that she had died.

18. PW9, No. 58652 CPL Stephen Muli testified that on 23. 7.2020, he was with his colleagues at Matuga Sub-County DCI offices when one woman known as Joyce Mwalale, the mother of the deceased went with a witness known as Mercy Wanjiru Wamuyu and reported that on 22. 7.2020, they had reported a murder case at the station that Everlyne Indaria Indiaka had died at Msambweni Hospital while undergoing treatment. That they booked the report No. 31/22/20/2020 at Kwale Police Station and that Mama Joyce reported the deceased was admitted at Kwale Hospital where she died and the body was preserved at Kwale Hospital Mortuary. PW9 said that they reported that on 24. 6.2020, the deceased Everlyne Indaria Indiaka had reported that she was assaulted by a friend Ceaser Obuke Okome vide OB No. 20/24/6/2020 of Kombani Police Post. That the deceased was beaten inside the accused person’s house at Kombani and she sustained injuries. PW9 testified that in the company of 2 of her colleagues, they proceeded to Kwale Hospital Mortuary where they found the body. That they then took the body to Coast General Hospital Mortuary on 23. 7.2020 as there was no preservation facility at Kwale.

19. PW9 further informed court that the mother of the deceased told them the suspect was at his house in Kombani. That they passed by Mkombani and arrested the suspect and escorted him to Kwale Police Station where he was booked for the offence of murder. That on 24. 7.2020, PW9 took the suspect to court with miscellaneous application to seek detention orders as he conducted investigations and he was granted 7 days. PW9 said that in the company of family members, they went to Coast General Hospital Mortuary where postmortem was conducted by Dr. Ahlaam on 24. 7.2020 in the morning. That thereafter, the doctor informed them that the cause of death was internal bleeding in the brain. That from Coast General Hospital, they went to Mkombani Police Station and took over the assault case which had been reported on 24. 6.2020. That PW9 was given the deceased person’s statement and the statement of one witness as well as the P3 Form filled on 29. 6.2020 at Msambweni Hospital. That the P3 Form indicated that the deceased was beaten with a blunt object on the head.

20. PW9 said that he recalled the 1st witness, Joyce, and who went on 25. 7.2020 and said that on 24. 6.2020, she was in her house when a witness went to her and told her that her friend was being beaten in the house. That Joyce was accompanied to the house by Juma, Mwinyi and Neema and they found the accused assaulting the deceased who was screaming. That Mwinyi kicked the door and ordered the accused to open and when he opened, the deceased ran out of the house. That they took the deceased to PW1 and later to Mkombani Police Post where she reported. That thereafter, Mwinyi accompanied the deceased to Tiwi General Hospital where she was treated and later went to Joyce where she spent the night.

21. PW9 testified that the following day, the deceased went to Msambweni Hospital and she was treated and discharged. That on 29. 6.2020, the deceased went to Mkombani Police Station where she was issued with a P3 Form and her statement was recorded. That on 15. 7.2020 when the deceased’s health deteriorated, the accused person took the deceased to Msambweni Hospital. That the deceased’s mother learnt that her daughter was admitted on 17. 7.2020 and that she travelled from Nairobi and found the condition of her daughter was serious. That on 17. 7.2020, there was requisition for a scan of the deceased’s head and the film was taken to Doctor Nandi but by the time results were returned, the deceased had died.

22. PW9 testified that he recorded statements of several witnesses on 26. 7.2020 and on 27. 7.2020, he wrote a letter to the Ministry of Health Msambweni to confirm the deceased was admitted and that he got a response to that effect. That PW9 also wrote a letter to Dr. Nandi the Radiologist who also gave a report from the analysis of the scan. That from the scan, the deceased died due to internal bleeding in the head. PW9 said that he got treatment notes in respect to the deceased as well as statements made by the deceased. That during investigations, PW9 established the P3 had been filled by clinical officer Chebii in respect to injuries inflicted on the deceased. That after recording statements and compiling the file, PW9 preferred the charge against the accused who assaulted the deceased on 24. 6.2020 and she died on 20. 7.2020. PW9 identified the accused as the one in court.

23. PW10, Dr. Mwanaidi Abdalla Mwasiro from Msambweni County Referral Hospital attended court to represent Phillip Chebii who was on study leave though they had worked together for 3 years and she was familiar with his handwriting and signature. PW10 said she had a P3 Form which was filled by Phillip Chebii the clinical officer in respect to Everlyne Indaria on 29. 6.2020 at the request of police from Kombani Police Patrol Base in reference to OB No. 20/24/06/2020. PW10 said that the complainant alleged to have been assaulted by her boyfriend who hit her with blows and slaps. That she was in fair general condition when the P3 was filled. That on the head and neck, she had generalized headache, swollen hyper anemic left eye, tender left ear that was not discharging or bleeding. That there was thorax and abdomen tenderness on the lower back upper limbs, there was tenderness on the left shoulder with a healing bruise, the lower limbs had no injuries noted, and that the injuries were approximately 5 days old. That the probative type of weapon causing injuries was blunt and that the patient was put on painkillers – brufen and diclofenac.

24. PW10 also testified that she had 2 treatment books for Everlyne Indaria in which she was seen on 26. 6.2020 and 1. 7.2020. That on the former date, she complained of general body pains that had subsisted for 3 days after having been assaulted by the boyfriend who hit her by his fist on the left side of her head and on the back. That this was the first incident of assault and that there was no loss of consciousness. That on examination, the left eye was swollen though she was able to see with it. On the back, she had pain on palpation but there were no wounds. She was treated for soft tissue injury secondary to assault and given pain killers. That x-ray of the back was normal and that she was discharged to go home with instructions to see an ophthalmologist and an ENT specialist. That on the latter date in the second treatment book, she had complaints of headache and left ribs pain that had been there for a week. That headache on the left side made her not to tilt the head and because of rib pain, she was sent for x-ray but there were no fractures noted. That the deceased was discharged to go home on brufen tablets. PW11 produced the P3 and treatment notes as Pexh-6(a), (b) and (c).

25. PW11, Dr. Fredrick Oyugi Nandi testified that he did an x-ray for Everlyne Indiaka which showed that there was bleeding on the right and left side of the brain with intracranial pressure. PW11 said that he concluded that Everlyne had suffered injuries on the head with bleeding inside the skull that caused pressure on the brain. That brain injuries could be because of bleeding of the small nerves in the head following injuries. PW11 produced the scan report as Pexh- 1(b).

Defence Case 26. DW1, Ceaser Obuke Okome, the accused herein gave sworn statement that on 24. 6.2020, he had come from the farm in Kombani and that he entered the house at around 7. 00 pm in the company of Salim, the foreman. DW1 testified that he expected to find his lover, the deceased, in the house. That he had known the deceased since 2019 and that the deceased would take food to them whenever they went to the farm but on the material day, she did not take food to them. That the deceased went back to the house after 8. 30 pm and that DW1 did not understand where she came from and that he got annoyed and slapped her. That the deceased told DW1 that it was the last time he would see her and that she started packing her personal items. That DW1 slapped her twice and they had a struggle for about 3 minutes. That DW1 and Salim stayed in the house as the deceased left.

27. DW2, Salim Omar Ngeni testified that both the accused and the deceased were known to him and that on 20. 6.2020, he was at home with the accused and that they had come from the farm at 5. 00 pm. That they prepared food and ate after which the deceased showed up and went straight to the bedroom. That DW2 was in the sitting room when he heard the accused and the deceased talking loudly and that the accused then slapped the deceased. That DW2 went to ask what was happening but he did not get a satisfactory answer. That the accused and the deceased argued in the bedroom for about 30 minutes and that when the accused slapped the deceased, she got annoyed and took her clothes and left. That DW2 had known the deceased for about 6 months and that she used to sell palm wine. On cross examination, DW3 said that the accused slapped the deceased 3 times and that she left the bedroom crying. He said that he was not aware of any headaches prior to the date that she was slapped and that the headaches started after she had been slapped.

Analysis and Determination 28. In consideration of the evidence of 11 prosecution witnesses and in consideration of the defence witnesses’ sworn statements, this court is to determine whether the ingredients of the offence of murder as provided for under section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.

29. Section 203 of thePenal CodeChapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’

30. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -i.That the deceased died;ii.That the death was caused by an unlawful act or omission;iii.That the accused person directly or indirectly participated in the commission of the alleged offence; andiv.That there was malice aforethought.

31. There is no dispute that the deceased, Everlyne Indaria Indiaka, died. That it is also not in dispute that she died after the accused herein had assaulted her at 2000hrs on 24th June 2020. She reported at Kombani Police Post vide OB No. 20/24/6/20 that the accused who was her boyfriend beat her up using his fist for reasons that she was late to return home. The officer who booked the report observed that the deceased had a swollen forehead and she was complaining of headache. She was advised to seek medication before the P3 Form could be filled. From the postmortem report, it is indicated that the deceased had healing bruises from the back with hematoma at the occipital region with massive subdural hematoma on the right tempo parietal and occipital as well as brain edema. According to the pathologist, the cause of death was severe head injury due to head trauma, massive subdural hematoma and increased intracranial pressure.

32. It was the prosecution’s case and the accused and his witness admitted that it was after the deceased was assaulted that she developed headaches that led to her death. The cause of death was therefore as a result of the unlawful act committed by the accused herein.

33. Section 206 of the Penal Code defines malice aforethought as follows: -“Malice aforethought shall be deemed to be established by evidence proving anyone 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 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 act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.

34. On the element of malice aforethought in respect to section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”

35. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R(CACRA No. 32 of 1990) where the Court held:“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”

36. Although the accused committed the unlawful act that caused the death of the deceased, his act was instantaneous upon the late return of the deceased to the house. The deceased had returned to the accused person’s house after about 4 days of the assault and he attended to her by taking her to hospital when her pain did not diminish and finally got admitted to Msambweni Sub-County Hospital when it was found though late that she had suffered bilateral temporal parietal hematoma CSF spaces and the lateral ventricles.

37. The intention to kill cannot therefore be inferred and this court finds that the offence proved by the prosecution’s evidence is manslaughter contrary to section 202 as read with section 205 of the Penal Code and not murder under section 203 as read with section 204 of the Penal Code. The accused is acquitted of the offence of murder and convicted of the offence of manslaughter under section 322 of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 19TH DAY OF OCTOBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the StateMs. Amina Advocate H/B for Mr. Miller Advocate for the Accused PersonAccused persons present in personHON. LADY JUSTICE A. ONG’INJOJUDGEMr. Ngiri: We don’t have previous recordsMs. Amina Advocate: We can have another day for mitigationOrder: Mention on 9. 11. 2023 for Victim Impact Statement, Mitigation and Sentence. ACPIC at Shimo La Tewa G.K. PrisonHON. LADY JUSTICE A. ONG’INJOJUDGE19. 10. 2023