[2022] KEHC 1884 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL CASE NO. 44 OF 2020

REPUBLIC......................................................PROSECUTION

VERSUS

PATRICK MUHINDI KHAMALA alias PATT.....ACCUSED

J U D G M E N T

The accused PATRICK MUHINDI KHAMALAalias PATT is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the offence are that PATRICK MUHINDI KHAMALA alias PATT on 16th day of August 2020 at Molo area, Webuye location in Webuye West Sub-county within Bungoma County murdered ANTONY WECHULI ZAKAYO.

The case for the prosecution is that on 16. 8.2020 at 8 a.m. PW1 Charles Wanyonyi Aliwas at his home at 8 a.m. with the deceased Wechuli seated on the verandah as he had wanted the deceased to assist him in cutting a tree. While there Rose the mother of the accused Patrick came. She asked deceased to go outside the verandah to have a talk with her. They went together outside the compound. Once they were outside the compound he saw accused, his mother and other people start throwing stones at deceased. The deceased ran into the compound and the mob wanted to follow him, throwing stones at witness’s house. He saw accused, accused’s mother, Mataliwei and Morgan thoriwing stones. He threatened that he will beat them if they entered his compound. They then left. The brother of the deceased came and took him to hospital. He was given first aid and reported the matter to Webuye police station. Later he was informed the deceased died.

On being cross – examined by Mr. Kundu for accused he stated the gate was about 100 meters from the house and he mentioned the persons he saw throwing stones who were accused, Rose, Matekwai, Morgan and accused. He confirmed he did not see the deceased waiting to stab accused.

PW2 Ben Mangeni Simiyu was informed by his children that deceased was bleeding. He went where deceased was and found his clothes were blood stained. He took the deceased to hospital where he was given first aid and admitted. Deceased later died.

PW5 Diana Nafula Walala was at their home at 11a.m. when Rose the mother of accused came and called the deceased. They started going together to the road outside the compound. Accused then hit deceased with stone on the face. Deceased fell down. Accused then hit him with a stone on the chest. Deceased stood up and people who were with accused threw more stones at him. He ran to her uncle’s house. The people then went away. The deceased was taken to hospital and reported the matter to police. After some days his condition deteriorated and was taken to hospital where he died.

In cross examination by Kituyi he stated that accused and other people threw stones at deceased.

PW6 Jacinta Nekesa Mucharia was at home with Diana (PW5) at home when one Rose the mother of the accused came and called deceased. The deceased left with Rose and walked towards the gate. She then saw accused who was armed with stones hit the deceased on the head, and with another stone on the chest. The deceased rose up to follow accused and then went to Charles for help. The deceased who had sustained injuries was taken to hospital and alter died. In cross-examination she stated that there were more than 10 people and she saw accused hit the deceased with a stone.

PW7 No. 23381 the Investigating officer testified that the deceased had reported to police that he had been assaulted vide OB NO. 17/17/08/2020. He was advised to go for treatment. On 21. 8.2020 his health deteriorated and was taken to hospital where he died.

He arrested the accused and caused him to be charged with present offence. On being cross-examined by Kundu for accused, he stated that deceased had stated that accused had stabbed him with a knife. He also arrested the mother of the accused who was later released.

PW4 Dr. Edward Milembwa produced a post moterm report prepared by Dr. Miyiendo who performed the post-mortem report. Dr. Miyiendo found that deceased had stab wound on right skull measuring 3. 5 cm deep. The scalp was exposed. There was bleeding into the brain. He formed opinion that the cause of death was due to compound skull fracture occasioned by sharp object.

The accused upon being placed on his defence gave sworn evidence. He testified that he is 17 years old. On 16. 8.2020 he was at home with his mother Rosemary Nafula Khamala. He stated that he knew PW1 Charles. He testified that the incident occurred far from his home and did not even hear about it. On 28. 8.2020 he went to the police station to check on his mother and brother who had been arrested. He was then arrested.

Upon cross-examination byM/s Omondi for state, he stated that Diana (PW5) was his classmate and knows him well. He denied that he fought with the deceased.

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 any unlawful act or omission is guilty of murder.”

The ingredients of the offence of murder which the prosecution must prove beyond reasonable doubt are:

a. The fact and the cause of death

b. The unlawful act or omission that caused the death.

c. That it is the accused who committed the unlawful act or inflicted the injuries that led to the death of the deceased.

d. That the accused had the necessary malice aforethought or mens rea.

On the fact and cause of death PW4 Dr. Edward Milembwe who produced the post-mortem form testified that the deceased sustained a stab wound fracture on the right skull with scalp exposed. There was bleeding into the brain. He formed opinion that cause of death was due to compound skull fracture caused by sharp object. This witness therefore confirmed not only the fact of death but also the cause of death.

The second ingredient that the prosecution must prove is who committed the unlawful act of inflicting injury to the deceased?

PW1 testified that after accused’s mother Rose had left with deceased, he saw a mob outside the gate and saw accused, his mother Rose throwing stones at deceased. Deceased ran to his home and witness threatened anybody who would come to look for deceased. They then left. He testified that among the people throwing stones at deceased was accused.

PW5 Diana Nafula Walala testified that he was at Charles home when he saw accused hit the deceased with a stone at the gate. He hit him on the chest and face. There were other people who threw stones at home of Charles but ran away when he dared them to go to his home. She confirmed in cross examination that accused did hit deceased with a stone.

PW6 Jacinta Nekesa Makhanu who was also at the scene testified that she saw accused hit the deceased with a stone and the deceased ran to the home of Charles (PW1). She confirmed that she had known accused for a long time.

The accused’s defence is that he was not at the scene, at the time of the offence and therefore did not assault the deceased. The accused in short is pleading alibi defence. This court in Republic –vs- Derrick Wakhungu & Another on alibi defence stated.

“An alibi raised a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law assume any burden of proving the answer and it is sufficient if an alibi introduces into the mind of the court a doubt that is not unreasonable.”

PW1 Charles Wanyonyi, PW5 Diana, PW6 Jacinta all testified that they were near the scene where deceased was assaulted by stones thrown at him. The incident occurred during the day with ample sunlight and therefore identification was possible and free from error. The witnesses testified that they knew accused well, and even the mother Rose. They confirmed they saw the accused present. Their evidence therefore places the accused at the scene and displaces the alibi defence advanced by the accused. The witness PW1 Charles, PW5 Diana and PW6 Jacinta all testified that they saw accused hit the deceased with stone and inflicted the injuries from which he died. I am satisfied that the accused and others did inflict the injuries on the deceased from which he died.

The prosecution has to prove the other ingredients of the offence of murder that is intention or malice aforethought.

Section 206 provides:

“206. Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances –

a. ………..

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;

d. 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.”

The prosecution has established that accused hit the deceased using a stone on the head. These was intended to cause grievous bodily injury or death. The concentration of the inflicting of the injury on the head which is vulnerable and vital part of the body was intended to cause serious injury or death as it did in this case. I am therefore satisfied that the accused had the requisite malice aforethought.

Upon considering the whole evidence, I am stratified prosecution has proved a charge of murder against the accused person beyond reasonable doubt. I find accused Patrick Muhindi Khamala guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and convict him accordingly.

DATED, SIGNED AND DELIVERED AT BUNGOMA ON THIS 9TH DAY OF FEBRUARY, 2022

S.N RIECHI

JUDGE