[2017] KEHC 8300 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL CASE NO. 11 OF 2012

(Formerly Nairobi Criminal Case No. 18 of 2011)

REPUBLIC ………….....................................................PROSECUTOR

VERSUS

RONOH KHALIF AHMED…………….……………………..ACCUSED

JUDGEMENT

The accused person herein Ronoh Khalif Ahmed stands charged with four counts of murder contrary to section 203 as read with section 204 of the Penal Code.

The particulars of count 1 are that on 28th January 2011 at Elben Market within Wajir County murdered Hussein Korow Abdi alias Onsenguro.

The particulars of the offence in count 2 are that on the same day and place murdered Ibrahim Billow Mohamed.

The particulars of the offence in count 3 are that on the same day and place murdered Barey Bulle Alason.

The particulars of the offence in count 4 are that on the same day and place murdered Asha Ronoh Khalif.

He denied all the four counts. To prove their case the prosecution called six (6) witnesses, though Pw5 Dr. Mohammed Bashir was stood down after partially tendering evidence, as the defence objected to him producing the post mortem medical reports signed by another doctor. The case was initially heard by Hon. Justice Mutuku, and I took over the hearing hereof after the previous Judge was transferred to Nairobi in 2014.

PW1 was Billow Mohamud Jillow a kiosk/hotel operator at Wajir town. It was his evidence that on 28/01/2011 at around 7. 30am he was at his hotel serving customers when his son Ibrahim Billow the deceased in count 2 arrived to ask for pocket money. Suddenly Ronoh Khalif the accused appeared infrom of the hotel and started shooting with a gun. He witnessed him shoot Ibrahim and then remarked “let me finish this one” and shot again and killed him. When the witness asked what the accused was doing, he shot him in the buttock.

According to this witness, two people died on the spot at the hotel, Ibrahim his son and the deceased in count 1 Hussein Abdi who was the brother of the witness.

In cross examination, he stated that he had known the accused for 30 years as a short tempered man. He also stated that he later came to know that the accused’s wife had died the same day of gunshot wounds.

Pw2 Yussuf Yakub Abdi stated that he was a KPR officer since 2001, and had gone to the hotel of PW1 on 28/01/2011, when shortly after arrival, Ronoh the accused who was in full KPR uniform, entered the hotel and shot at people with a gun. In the process the son and brother of PW1 died of gunshots.

It was his testimony that though the accused also aimed the gun at him, he dived and was thus not shot. The witness also later heard gun shots from the accused’s house and learnt that the accused’s wife and daughter had died of gun shots wounds.

It was his evidence that the accused was a KPR official who guarded Postal Corporation of Kenya installations, and was issued with a gun by the government. He was not aware of any existing family grudge.

PW3 was Chief Inpsector Alex Mwandawiro a firearms examiner at Nairobi CID Headquarters. It was his evidence that PC Geoffrey Nyerere Ndeto submitted to him exhibits that is ammunitions, magazines and a G3 rifle for technical examination as well as, an exhibit memo. He technically examined the exhibits and established that they were all in good mechanical condition and that they and were items covered under the definition of firearms and firearm components under provisions of the Firearms Act. He produced the technical report as an exhibit.

PW4 CPL. Geoffrey Nyerere of the Kenya Police, the investigating officer stated that he received a report and proceeded to the scene with other police officers. On arrival, he found that the accused a KPR reservist, had already been arrested by the public.

He found two dead male human bodies lying in a hotel. He also found two dead bodies of females lying in the house of the accused. All the bodies had gun shot wounds. One of the females was a pregnant woman, and the other was a girl. He stated that he was aware that the accused had been issued with a Government gun and ammunition as a KPR reservist. He prepared an exhibit memo for the ammunition, the magazines, and gun recovered and forwarded the same to the Government firearms examiner in Nairobi for examination and report. He produced the exhibit memo and ammunition, magazines, and G3 rifle as exhibits.

Pw5 was Dr. Mohamed Bashir the Medical Superintendent of Wajir District Hospital. He testified on the post mortem reports prepared and signed by Dr. Menza on the four deceased persons. When he tried to produce the signed forms, the defence counsel objected to the said production on the ground that Dr. Bashir had not worked with Dr. Menza. The prosecution thus called another doctor who testified as Pw6.

PW6 was Dr. Hussein Dubo who worked briefly with Dr. Menza at Wajir District Hospital. He produced the post mortem forms filled and signed by Dr. Menza on Hussein Kuro Abdi, Ibrahim Billow Mohamed, Barey Alaso and Asha Ronoh. The cause of deaths of all the four was haemorrhage and shock due to bullet injuries.

He also produced the P3 form filled and signed by Dr. Menza on Billow Mohamed Jillow Pw1, who suffered a bullet injury in the buttock.

In cross-examination, he confirmed that there was no evidence from the entries in the post mortem forms that the dead bodies were opened up. He confirmed that the medical reports were made in 2011, while he worked briefly with Dr. Menza later in 2013.

When put on his defence, the accused tendered unsworn testimony and did not call any witness.

He stated that he was a KPR reservist working for Postal Corporation of Kenya. It was his evidence that he was arrested 60kms away from Wajir town feeling dizzy – and was informed that he had killed people, one of whom was his biological child. He stated that he was treated at Mathare hospital and after two (2) weeks, became stable and, was initially charged in a Nairobi court.

At the close of the evidence for the prosecution and the defence, the defence counsel Mr. Onono left the matter to the court to decide. The Prosecuting Counsel Mr. Okemwa submitted that the prosecution had proved their case of murder against the accused on all the four (4) charges. Counsel submitted that mental depression or confusion was not a justification to kill. According to counsel the accused took advantage of his privileged position as an armed KPR reservist, to kill the four (4) deceased persons.

This is a case of murder brought by the State against the accused person. He stands charged with four (4) counts of murder allegedly committed in the same day at Wajir. He has denied all the charges.

In a criminal case, the burden is always on the prosecution to prove their case against an accused person beyond any reasonable doubt. The accused does not have a burden to prove his innocence – see Woolmington Vs. DPP [1936] AC 462and Leonard Aniseth Vs. Republic [1963] EA 206.

In a murder case, the prosecution is required to prove that indeed the deceased died. Secondly, the prosecution is required to prove that the death was caused by the accused. Thirdly, the prosecution is required to prove that the death was unlawful. Fourthly and lastly, the prosecution is required to prove that such death was premeditated, or was caused with malice afterthought.

Did the four persons, and each of them die? The evidence of eye witnesses is that the deceased in count 1, and count 2 died at a hotel of PW1 in Wajir town when they were shot using a gun. At the house of the accused, his pregnant wife and young daughter were shortly thereafter found lying dead on the same day.

The four bodies were later taken by the police, and a post mortem examination conducted by Dr. Menza and the reports produced by doctor Hussein Dubo PW6. No witness testified as having identified the bodies to Dr. Menza before post mortem examination was conducted. However, in my view, this lapse is due to cultural and religious reasons in this area. There is no dispute that the bodies were those of the four deceased persons mentioned in the information, and the post mortem reports concluded that all the deaths were due to hemorrhage and shock due to bullet wounds – which was consistent with the evidence of the lay witnesses who witnessed the incident and saw the bodies at the two scenes of murder.

I find that the prosecution proved beyond reasonable doubt that all the four (4) deceased persons died as described by witnesses, and in the post mortem reports. I thus find that the prosecution proved that each of the four deceased persons died.

Was the accused the culprit? With regard to count 1 and 2, two eye witnesses, Pw1 Billom Mohamud Jillow and Pw2 Yusuf Yakub Abdi, one of who suffered a bullet injury in the buttock, testified on how the accused whom they knew before, in broad morning light went to the hotel/kiosk of Pw1and shot dead the two. PW1 even had the occasion of talking with the accused in the process, when he saw him shooting his son the deceased in count 2. I find that the deceased in count 1 and 2 were shot and killed by the accused at the kiosk/hotel of Pw1. The prosecution has proved this fact beyond reasonable doubt.

Nobody witnessed the killing of the deceased in count 3 and 4, who were the wife and daughter of the accused person. No spent catridges were taken for examination to find if they came from the gun held by the accused.

However, in the circumstances of this case, I find no reason to doubt that the two were shot by the accused. Pw2 said he heard gunshots from the house of the accused shortly after the shooting at the kiosk/hitel. The accused himself does not deny the shooting but merely said he was confused. He only said that he was arrested 60km from Wajir, which in my view was an attempt by him to distance himself from the scene after realizing what he had done to his wife and daughter, and the other two deceased herein. I find that the prosecution proved that the accused killed the deceased in counts 3 and 4 by shooting them with a gun.

Was the killing unlawful? There is no suggestion from the evidence of any witness on record that there existed a lawful cause or reason for the killings. The accused said in his defence that he was confused, which was certainly not a lawful reason to kill. Though the accused said that he was taken to Mathare hospital and admitted in the mental hospital for two weeks, he did not suggest or rely on a defence of insanity or lunacy. If he raised such a defence, he would be subject to the provisions of section 166 of the Criminal Procedure Code (Cap. 75).

On the evidence before this court, I find that the accused herein unlawfully caused the death of the four (4) deceased persons. He did not have any lawful reason to kill any of them.

Were the deaths caused with malice aforethought? Malice aforethought is defined under statute. Section 206 of the Penal Code (Cap. 63) provides as follows-

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 be caused;

c) an intent to commit a felony;

d) an intention by the act or omission facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

Everyone is deemed to intend the natural consequences of his acts. By shooting each of the four (4) the deceased severally with a gun, the accused certainly intended to kill them, or to cause ther deaths. He even stated that he wanted to finish the deceased in count 2, which was a clear demonstration of an intention to kill malice aforethought as defined under section 206 (a) was thus proved by the prosecution.

It is instructive to note that when PW1 the father of the deceased in count 2 tried to intervene on behalf of his son Ibrahim Billow, the accused only shot him once in the buttock and left him. That action in my view, shows that the accused did not intend to kill PW1, but intended to kill Ibrahim and the three (3) other people that he killed.

In the result, I find that malice aforethought was proved by the prosecution against the accused on all four (4) counts. It follows that all the ingredients of the offence of murder were proved by the prosecution against the accused on all four (4) counts.

I thus find the accused guilty of all the four (4) counts of murder and accordingly convict him on all the four (4) counts of murder contrary to section 203 as read with section 204 of the Penal Code respectively.

Dated and delivered at Garissa this 13th day of January, 2017

GEORGE DULU

JUDGE