[2023] KEHC 19571 (KLR)

Republic v Owiti (Criminal Case 21 of 2020) [2023] KEHC 19571 (KLR) (26 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19571 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case 21 of 2020

JN Kamau, J

June 26, 2023

Between

Republic

Prosecution

and

Paul Otucho Owiti

Accused

Judgment

Introduction 1. The Accused person herein, Paul Otucho Owiti, was charged with murder contrary to Section 203 as read with Section 204 of thePenal Code Cap 63 (Laws of Kenya). The particulars of the Charge were that :-“On the night of May 28, 2020 at Ahero Area in Nyando Sub-County within Kisumu County murdered Stephen Zadock Wasike.”

2. On September 28, 2022, the Prosecution closed its case after calling eight (8) Prosecution witnesses.

3. The parties did not file any Written Submissions on the question of whether or not the Accused person had a case to answer. Having considered the evidence that had been adduced by the Prosecution witnesses, on October 25, 2022, this court found that a prima facie case had been established against the Accused person to warrant him being put on his defence. His defence case was heard on November 18, 2022.

4. At the conclusion of their case, the State filed its Written Submissions dated December 7, 2022 on December 9, 2022. On his part, the Accused person filed his Written Submissions dated January 19, 2023 on January 24, 2023.

The Prosecution’s Case 5. The Prosecution called a total of eight (8) witnesses to demonstrate the following ingredients of murder outlined in Section 203 of the Penal Code Cap 63 (Laws of Kenya):-a.Proof of the fact and cause of death of the deceased;b.Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused; andc.Proof that the said unlawful act or omission was committed with malice aforethought.

6. It contended that the offence of murder was complete when malice aforethought was established pursuant to Section 206 of the Penal Code.

7. In demonstrating proof of fact and cause of the deceased’s death, the Prosecution contended that the testimonies of all the Prosecution witnesses was cogent and consistent. It averred that the Accused person admitted that the noise from the deceased upset him as he was apprehensive of being arrested for contravening the Covid-19 restrictions that were in place. It pointed out that as a result, he pushed the deceased and the push caused his death.

8. It submitted that the cause of the deceased’s death as stated by Dr Dickson Mchana (hereinafter referred to as “PW 6”) was not disputed. It was therefore categorical that the Accused person’s defence that he never pushed the deceased was a mere denial and that the evidence on record had proved beyond reasonable doubt, that he was responsible for the deceased’s death.

The accused person’s case 9. The Accused person adduced sworn evidence and called one (1) witness. On his part, he also invoked Section 203, 204 and 206 of the Penal Code and placed reliance on the case of Republic vs Peter Chacha Mogaya [2019] eKLR without elucidating the holding he was relying upon.

10. It was his case that the Prosecution had failed to prove beyond reasonable doubt, that the fact and the cause of death of the deceased was by an unlawful act or omission on his part. He submitted that there were two (2) versions of how the misfortune that befell the deceased occurred. The first was that Stephen Wasike Etisi (hereinafter referred to as “PW 1”), John Juma Ojwang (hereinafter referred to as “PW 5”) and Apollo Odhiambo Moro (hereinafter referred to as “DW 2”) testified that on May 28, 2020, the deceased fell down in the bar floor at Rusaland Guest House at approximately 11. 55pm while the other version was that on May 29, 2020, he fell down at approximately 5. 00am at the Rusaland Guest House Kitchen concrete floor.

11. It was his contention that in both instances, it was possible for the deceased to have sustained the injuries that caused his death. He pointed out that according to PW 6, if the deceased sustained injuries to the head at 11. 55pm and at 5. 00pm, it would be impossible to determine as the colour of the resultant blood clots would be the same and that it would only have been possible to notice a difference in the colour of the blood clots if the injuries occurred days apart.

12. He asserted that in the circumstances of the case, it was impossible to state with any certainty that the cause of the deceased’s death was the first fall and not the second fall on the kitchen floor.

13. He contended that none of the witnesses namely PW 1, Florence Adhiambo Orubo (hereinafter referred to as “PW 4”) and PW 5 testified that they actually saw him push the deceased prior to his falling down on the floor. He added that they all testified that there was a commotion involving many patrons including him but that they did not single him out for any wrong doing. He pointed out that only the evidence of PW 5 came closest to having witnessed the incident but that the same fell short as he stated that he never saw him push the deceased.

14. He further submitted that he, PW 4, PW 5 and DW 2 all testified that the deceased had taken a lot of alcohol, was noisy and was walking in a drunken manner and that it was probable that he lost his balance during the commotion and fell down and that the fall was not necessarily as a result of any unlawful action of any person and hence, the fall ought to be ruled as an accident or misadventure.

15. He asserted that there was no iota of evidence led by the Prosecution to prove that he had an intention to kill the deceased or cause him grievous bodily harm before or during the commotion on the material night. He added that any right thinking and law abiding citizen in the bar on the material night would have been irritated by the noise the deceased was making and his refusal to settle his bill as it was during the country wide curfew period imposed during the Covid-19 pandemic. He added that the patrons were merely attempting to persuade him to tone down the noise and to settle his bill and therefore, their actions could not constitute malice aforethought, a necessary ingredient of the offence of murder.

16. It was therefore his contention that the Prosecution had failed to prove that the death of the deceased was a direct consequence of an unlawful act on his part and that there being no proof of the actual cause of the deceased’s death to the required standard, which in criminal cases was proof beyond reasonable doubt, the murder charge had to fail. He thus urged this court to acquit him of the offence that he had been charged with.

Legal Analysis 17. PW 1 was the deceased’s brother. His evidence was that on May 28, 2020, he was with the deceased when they went to Rusaland Guest House to drink. He stated that as they were drinking, the Accused person came to their table and warned the deceased not to make noise. He informed the court that that did not go well with the deceased and a commotion arose.

18. He testified that the Accused person grabbed the deceased whereafter he heard a loud bang and on looking, he saw that it was the deceased who had fallen down. He pointed out that together with his friend, they carried the deceased to the car which was outside where they spent the night. He further stated that the deceased was taken to hospital in the morning as he was complaining of pain in his head and that on 30th May 2020, he was informed that the deceased had died.

19. On being cross-examined, he stated that when he was woken up by DW 2 in the morning, he discovered that the deceased had left the car and that he accompanied his friend to the kitchen where they found the deceased lying down on the floor. It was his evidence that they carried him back to the car.

20. Patrick Wasike Wandera (hereinafter referred to as “PW 2”) was the deceased’s father. He identified the deceased at Kisumu Avenue Hospital on June 1, 2020 for the Post Mortem.

21. Pasiliano Ouma Okaye (hereinafter referred to as “PW 3”) was also a brother to the deceased. His testimony was that on May 29, 2020, he received a call from the deceased’s wife informing him that the deceased was unwell and needed to be taken to hospital. He told this court that they took the deceased to Avenue Hospital where he died while they were awaiting CT scan to be done.

22. PW 5 corroborated PW 1’s and PW 4’s evidence. It was their testimony that the deceased started making noise when he was brought his bill and the Accused person kept warning him not to make noise but he continued making noise thus causing a commotion. They stated that as result, the deceased was destabilised, fell down and was carried to a car outside by his two (2) friends.

23. PW 6 was the pathologist who examined the body of the deceased. He produced the Post Mortem Report. He formed the opinion that the cause of death was severe head injury secondary to blunt force trauma.

24. No 235242 Chief Inspector Benetychus Wanjohi (hereinafter referred to as “PW 7”) was the Forensic Imaging and Acoustic Expert at the CID Headquarters. He retrieved eighteen (18) photographs from the CCTV footage at Rusaland Guest House. He tendered in evidence the said photographs and a Report in this regard.

25. No 93497 PC Francis Manyonge (hereinafter referred to as “PW 8”) was the Investigating Officer in the case. He stated that he obtained the CCTV footage in a flash disk and forwarded the same to DCI Headquarters for forensic analysis. He produced the said flash disk as evidence in this matter. When he was cross-examined, he stated that the Guest House had other cameras other than Camera No 04 which was fitted in the bar and restaurant.

26. In his sworn evidence, the Accused person said that on the material date, he went to Rusaland Guest House at Ahero to have drinks. He stated that he joined a group of friends sitting at a table that was adjacent to where the deceased was sitting with other people. He told this court that the deceased was drunk and was making a lot of noise.

27. He admitted having gone to the deceased’s table to warn him to tone down the noise as it would have attracted the police on patrol since there was a curfew in place. He testified that at around 11. 30pm, when the deceased was presented with his bill for the food and drinks, he protested loudly that his bill had been inflated and refused to pay the same.

28. It was his evidence that many patrons were irritated by the deceased’s actions and they confronted him leading to a commotion involving about ten(10) to fifteen(15) people. He admitted to joining the commotion and suddenly realised that the deceased had fallen down on the floor. He attributed the fall to the deceased’s drunkenness or slippery floor and denied pushing him.

29. He added that the deceased’s friends carried him to a car outside and that later, he was informed that the deceased died as a result of injuries suspected to have been suffered at Rusaland on May 28, 2020.

30. DW 2’s evidence corroborated that of DW 1. He added that at 5. 30am, he saw the deceased leave the car, stagger in a drunken state to the kitchen which was about twenty (20) metres away and fell down on the kitchen floor that was made of concrete. His evidence was that the deceased did not get up until when he asked PW1 and his friend to carry the deceased back to the car.

31. It emerged from the evidence that was adduced in court that the Accused person was irked by the deceased when he loudly protested that his bills had been inflated. This was because any noise from the bar could have led to their arrest as all bars were required to be closed following a curfew that had been imposed during the Covid-19 pandemic in 2020.

32. It was clear from PW 1’s, PW 4’s, PW 5’s and the Accused person’s evidence that in the early part of the material night, a commotion arose involving the deceased and that he fell down. However, no one seemed to have witnessed who actually pushed him. Be that as it may, the Accused person admitted to having confronted him on that night and being part of the group that was involved in the commotion. However, he denied having pushed him.

33. The photos that were adduced in evidence by the Prosecution and printed from a flash disk in accordance with the law showed a group of people standing in one area of the bar. However, they did not show any movement to suggest the Accused person pushing the deceased.

34. It was not lost to this court that that both the Prosecution and the Defence witnesses testified that the deceased actually fell down twice on the material date. He later died. As PW 6 opined that the head injury was most likely caused by a fall on a flat hard surface rather than being hit by a blunt object.

35. Having said so, from the facts of the case, this court could not therefore ascertain with certainty whether the deceased sustained the injuries that led to his death a day after the commotion in the bar inside or outside the bar as he had left the car his friends had taken him to and he was found at the door of the kitchen at the bar in the morning. Indeed, both PW 1 and DW 2 told this court that the deceased was found lying in the concrete kitchen floor in the morning.

36. This court could also not be sure if the Accused person pushed him inside the bar and he fell down whereupon he sustained injuries that led to his death or if he staggered and fell on his own due to his drunken state during the scuffle with the Accused person herein. Notably, the Prosecution adduced in evidence still photos that made it difficult to state with certainty that the Accused person pushed him. A video which was capable of showing movements could have been more useful piece of evidence in this case.

37. Having considered the evidence by both the Prosecution and the Accused person’s evidence, their Written Submissions and the respective law that they each relied upon, doubt was created in the mind of this court of what really caused the deceased’s death. This doubt led this court to conclude that the Prosecution did not prove its case against the Accused person to the required standard, which in criminal cases is proof beyond reasonable doubt as the Accused person had been ably submitted.

38. Further, this court did not also find any evidence to persuade it to find and hold that the Accused person was guilty of the offence of manslaughter. Section 207 of the Penal CodeCap 63 (Laws of Kenya) sets out the circumstances which constitute the offence of manslaughter. It states as follows:-“When a person who unlawfully kills (emphasis court) another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, is guilty of manslaughter only.”

39. The common law standard is that an accused person was not culpable unless it was demonstrated that the mind was guilty. In other words, criminal responsibility must consist of both actus rea which is the unlawful act and mens rea which is the guilty mind in committing the offence.

40. Looking at the circumstances of the case herein, this court was of the considered view that there was no evidence of both mens rea and actus rea on the part of the Accused person. In other words, there was no evidence of the unlawful act on the part of the Accused person or that he had a malicious intention of causing the deceased’s death.

41. This is indeed an unfortunate case both for the deceased and the secondary victims as there was no one to pay for the deceased’s death. Unfortunately, the law is that if a case has not been proved beyond reasonable doubt, the court has no option but to acquit an accused person forthwith.

Disposition 42. In the premises foregoing, the upshot of this court’s decision was that a conviction against the Accused person both on the charge of murder or the reduced charge of manslaughter would be unsafe. In the premises foregoing, the Accused person be and is hereby acquitted of the offence of murder contrary to Section 203 as read with Section 204 of thePenal CodeCap 63 (Laws of Kenya) under Section 215 of the Criminal Procedure Code Cap 75 (Laws of Kenya).

43. The Surety be and is hereby discharged from his and/or her obligations to this court. Surety to be release to him or her forthwith.

44. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 26TH DAY OF JUNE 2023J. KAMAUJUDGE