[2022] KEHC 595 (KLR)

Republic v Oweke (Criminal Case 5 of 2019) [2022] KEHC 595 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 595 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case 5 of 2019

FA Ochieng, J

May 5, 2022

Between

Republic

Prosecution

and

Patrick Owino Oweke

Accused

Judgment

1. The Accused, Patrick Owino Oweke was charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the said offence were that on 10th October 2017, at Kamnwa Village, Siany Sub-location in Nyakach Sub-County within Kisumu County, the accused murdered one Festus Omwaga Miwiru.

2. At the trial the prosecution called a total of five (5) witnesses. Thereafter, when the accused was put to his defence, he testified and then called two (2) other witnesses.

3. PW1, John Otieno Omwanji, is a grandson of the deceased.

4. On the material day, he went to the home of the deceased, with the intention of taking their cows back home. However, upon his arrival, he learnt that his mother had already gone home with the cows.

5. PW1 found the deceased lying down, under a tree. When he engaged the deceased in a conversation, the deceased informed him that he had been beaten by Owino, who is the son of Oweke.

6. The reason why the deceased had beaten Owino is that Owino had allowed her hens to eat the deceased beans.

7. PW1 said that the deceased had injuries on his hand and on his left leg.

8. At the request of the deceased, PW1 took him into the house. He then stayed with the deceased until about 5p.m when he went home.

9. Later that evening, at about 10p.m, PW1 learnt that Mzee had passed away.

10. PW1 said that he did not see Owino assaulting Mzee.

11. PW2, Maurine Adhiambo*, was the wife of the deceased.

12. On the material day, PW2 got back home at 7p.m, and she found husband lying down on his bed.

13. PW2 saw injuries on the shoulder and on the leg of the deceased, which prompted her to inquire about the identity of the person who had inflicted the said injuries.

14. However, the deceased did not give her an answer.

15. She then prepared a meal for him, so that he could get some energy. But when PW2 was ready to present the food, she found that the deceased had passed on.

16. PW2 asked PW1 to tell her who had beaten the deceased, but PW1 did not give her an answer.

17. But upon making further inquiries, PW2 learnt that it was Owino the son of Oweke, who had killed Mzee.

18. PW3, Margaret Akinyi, testified that on the material date, she had gone to the home of the deceased, so as to untie her cow which had been grazing within his homestead.

19. PW3 found the deceased lying down, under a tree.

20. When Mzee Omwaga asked PW3 to get him some drinking water, she inquired from him about what was wrong.

21. It was the evidence of PW3 that Mzee told her that Owino son of Oweke had killed him.

22. PW4, Eusevius Hipolipas Juma Ong’ole, was the Assistant Chief of Upper Nyakach. As soon as he received a phone-call concerning the demise of Omwaga, he rushed to the scene.

23. After verifying the information, PW4 called the police officers from Pap-Onditi.

24. The police officers later removed the body and escorted it to Nyabondo.

25. PW5, PC Paul Kanyeki, was attached to the Directorate of Criminal Investigations, Nyakach.

26. His In-Charge instructed him to visit the scene, on the material night.

27. Upon arrival, he found the body of the deceased, on a bed.

28. His investigations revealed that the deceased had been beaten by the accused, who is a neighbour.

29. When PW5 visited the home of the accused, he learnt that the accused had run away.

30. The accused was later arrested on 24th January 2019.

31. The prosecution closed its case after PW5 had testified.

32. DW1, Patrick Owino Oweke, gave sworn evidence.

33. He said that on the material day, at about 1p.m he heard noise which was coming from their home.

34. When he went there, he found the deceased, who was beating up his (DW1’s) mother. The accused said;“I intervened, by pushing mother to one side, and Festo to the other side.Festo slipped and fell down on the wood which my mother was splitting.”

35. Festo told the accused that the reason for beating up his mother (DW2) was that she had allowed chicken to eat beans in the shamba of the deceased.

36. DW1 testified that the deceased got up from where he had fallen down, and he went to his home.

37. DW1 emphasized that he never went to the home of the deceased, as had been stated by the prosecution witnesses. The “small issue” between him and the deceased happened within the homestead of the accused’s parents.

38. During cross-examination the accused insisted that the deceased fell down on his back-side. Therefore, the accused did not agree with the findings of the doctor who conducted the post-mortem. The doctor had indicated that the deceased had injuries on his stomach.

39. The accused also told the Court that after the incident, he went into hiding. He did so because some people wanted to kill him.

40. DW2, Helida Atieno Weke, is the mother of the accused. She testified that the deceased hit her with a stick because her chicken had eaten his beans.

41. The incident happened at her home, when DW2 was splitting firewood.

42. According to DW2, the accused was at his grandmother’s home when the deceased begun quarreling with DW2. When DW2 screamed, the accused returned home; and when the accused saw the deceased beating his mother, the accused pushed the deceased.

43. DW2 testified that the deceased fell down on the wood that she had been splitting for firewood.

44. After the incident, the accused went away, to Nairobi.

45. I note that DW2 first said that the accused went to his grandmother’s place at about 1p.m, on the material day. However, when she was told that the accused had testified that he came back at 1p.m, DW2 said that the accused had spoken the truth.

46. DW2 first testified that the deceased fell down on his side. But when told that the accused had said that the deceased had fallen down on his back-side; DW2 said that the accused was correct.

47. DW2 first testified that it was normal for the accused to leave home for prolonged periods. But when she was pressed with fetching questions, DW2 said that the accused had never before left their home for any prolonged period.

48. In a nutshell, DW2 was not at all helpful to her son’s case. She struck me as a person who was ready to say anything which she thought could help her son’s case.

49. DW3, Dismas Weke Olony , is the father of the accused.

50. On the material date, DW3 was working at Baragoi. He got back home at 7p.m.

51. That same evening, at 10p.m DW3 heard screams from the home of the deceased. When he came outside his house, DW3 heard people saying that the accused had killed the deceased.

52. DW3 and the accused went to the home of the deceased, on that night. But they found people who told the accused not to enter that home because it is he who had killed the deceased.

Analysis 53. The evidence before me is that Festus Omwaga Miwiru is dead. He did not die of natural causes.

54. The cause of death was intraperitoneal haemhrage from Raptured Spleen, secondary to Blunt abdominal trauma from assault.”

55. Based on the testimony of the prosecution, and as confirmed by the accused, the accused made physical contact with the deceased on the material day.

56. On the one hand, the prosecution asserted that the accused beat the deceased, using a stick; whilst on the other hand the accused said that he only pushed away the deceased when he was separating him from his mother (DW2).

57. None of the prosecution witnesses saw the accused hitting the deceased.

58. It is the deceased who told several people that the person who had beaten him or who had “killed” him, was the accused.

59. If the accused had denied, in his evidence, that he did not assault the deceased, there could have been room for arguments about circumstantial evidence.

60. In this case, the accused has confirmed presence at the time and place where the deceased sustained injuries.

61. The only issue is about whether he pushed away the deceased, who then fell down on his back; or whether he assaulted the deceased.

62. The post-mortem report indicates that the spleen of the deceased was raptured, due to blunt physical force exerted on his abdomen.

63. I find that the said medical evidence disproves the contention of the accused about the manner in which the deceased sustained the fatal injuries. If he just fell on his back-side, that could not have caused the deceased to suffer injuries which were detected during the post-mortem. Those injuries were;“Noted obvious swelling on the distal part of the left arm, multiple bruising on the legs bilaterally.……………….……………….(8) Spinal Cord:Muscular skeleton:- Fractured distal1/3 left humerus, closed simplefracture: from possible blunt trauma.”

64. As the doctor stated in the post-mortem report, those injuries were consistent with blunt abdominal trauma, from assault.

65. In effect, the deceased was not simply pushed away; he was assaulted.

66. The accused has, in his defence, alluded to an assault by the deceased, upon his mother.

67. First, at no time when the prosecution witnesses were giving evidence, did the accused suggest that he was coming to the rescue of his mother, who was being assaulted by the deceased.

68. I have no doubt that the line of defence introduced by the accused, when he was giving his testimony, was an afterthought.

69. But then again, none of the prosecution witnesses saw the accused beating the deceased. Therefore, the Court is unable to dismiss the contentions of the accused about what triggered the whole incident.

70. If indeed the accused beat the deceased because the deceased was beating his mother, that would, pursuant to the provisions of Section 207 of the Penal Code, constitute an unlawful killing termed as manslaughter.

71. The accused told this Court that he is aware that it was his actions which led to the death of the deceased. However, he also stated that he never had any intention to kill the deceased.

72. It must be emphasized that malice aforethought is not necessarily the prior intention of the accused to kill another person.

74. Section 206 of the Penal Code defines malice aforethought as including an intention to cause grievous harm or death.

75. Even if the accused was indifferent whether death or grievous harm would be caused, provided he knew that his action or omission may cause either death or grievous harm, he would be said to have had malice aforethought.

76. A serious blow to the stomach of the deceased may cause injury. But as to whether or not it was probable that such a blow could result in the rapture of the spleen, leading to death, is unclear.

77. Pursuant to Section 208 (1) of the Penal Code;“The term ‘provocation’ means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of a master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.”

78. As to whether or not there was provocation is a matter of fact, which the prosecution has to prove, based upon the evidence.

79. In this case, as is already clear, none of the prosecution witnesses was present at the scene of crime when the offence was being committed. Therefore, there was no evidence that could controvert the version of events as stated by the accused.

80. In this case the prosecution also did not lead evidence to show that the accused had any reason for wanting to either cause grievous harm or to kill the deceased.

81. In the case of VMK v Republic, Criminal Appeal No. 118 of 2014, the Court of Appeal held that;“….. once evidence is laid capable of supporting a finding that the accused was provoked, the burden shifted to the prosecution to prove beyond reasonable doubt that the case was not one of provocation.”

82. I find that the evidence adduced by the accused was capable of supporting a finding that he was provoked.

83. The question that then arises is whether or not the accused used excessive force in the circumstances; and if so, whether or not that would negate the defence of provocation.

84. It is true that the force applied was sufficient to cause the rapture of the spleen of the deceased.

85. In the case of Republic v Hussein s/o Mohamed [1942] EACA the Court of Appeal for Eastern Africa held that;“When once legal provocation, as defined in our court, has been established and death is caused in the heat of passion whilst the accused is deprived of self-control, by the provocation, the offence is manslaughter and not murder; and that is irrespective of whether a lethal weapon is used or whether it is used several times or whether retaliation is disproportionate to the provocation.”

86. The key consideration is the fact that the accused would have lost self-control, due to the provocation. In those circumstances, therefore, it would be understandable that he could over-react.

87. In this case, I find that the accused was provoked when he saw the deceased beat his mother. As he lost self-control in those circumstances, I find that although he applied such force as was excessive, the offence arising from his actions was manslaughter.

88. Accordingly, the accused is convicted for the offence of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 5TH DAY OF MAY, 2022FRED A. OCHIENGJUDGE