[2016] KEHC 2188 (KLR)
The court found that while the accused killed the deceased, the evidence did not establish malice aforethought as required for a murder conviction. The accused reported the incident immediately, surrendered the weapon, and there was no evidence of premeditation or preparation to kill. The altercation arose from a...
Source-derived case information.
- Citation
- [2016] KEHC 2188 (KLR)
- Parties
- Applicant: Republic; Defendant: Samuel Kipkoech Chumba
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 19 of 2011
- Procedural Posture
- Criminal Case / Judgment
- Outcome
- Charge of murder reduced to manslaughter; accused convicted of manslaughter.
- Judges
- HK Chemitei
- Legal Topics
- Murder, Manslaughter, Malice Aforethought, Self Defence, Excessive Force
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samuel Kipkoech Chumba
Defendant
Procedural Posture
Criminal Case / Judgment
Legal Issues
- 1 Whether the accused unlawfully killed the deceased.
- 2 Whether the accused acted with malice aforethought as required for a conviction of murder.
- 3 Whether the accused's actions amounted to self-defence or excessive force.
Ratio Decidendi
The court found that while the accused killed the deceased, the evidence did not establish malice aforethought as required for a murder conviction. The accused reported the incident immediately, surrendered the weapon, and there was no evidence of premeditation or preparation to kill. The altercation arose from a domestic dispute, and the accused claimed to have acted in self-defence after being attacked. However, the court held that the accused used excessive force and did not seek help from others, which negated a full defence of self-defence. The absence of the only potential eyewitness, Hellen, weakened the prosecution's case for murder. Consequently, the court reduced the charge from...
Court Disposition
Charge of murder reduced to manslaughter; accused convicted of manslaughter.
Orders
- The charge of murder is reduced to manslaughter under Section 205 of the Penal Code.
- The accused is convicted of manslaughter.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT KENYA AT KITALE
CRIMINAL CASE NO. 19 OF 2011
REPUBLIC …..............................................PROSECUTOR
VERSUS
SAMUEL KIPKOECH CHUMBA ….......................ACCUSED
J U D G M E N T
The accused was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on the 27th February 2011 at Murkuywa Farm in Trans -Nzoia County murdered William Kimeli Singoei.
The accused denied the charge. The prosecution called 5 witnesses whose evidence can be summarised as hereunder.
PW1 Henry Tuweiis the village elder. He testified that on 27/2/2011 at around 6 am the accused came to his house with a knife. He told him that he had killed someone and the body was in his house. He called Zablon and David Malakuya and went to the scene with police from Cherengany police station.
At the scene he saw the deceased body and other people who had gathered including the accused wife.
PW2 Philip Kiplimo Kirwa was at home that morning at around 8 am when his neighbours Ibrahim Kiplimo and William Waliaula informed him of the incident. They went to the scene and saw the deceased body. The police then came and picked the body.
PW3 Dr Blastus Kakundicarried out postmoterm on the deceased body and found the cause of death to be severe penetration chest injury. There were two stab injury. There were two stab wounds on the neck and the chest.
PW4 P.C. Charles Werecarried out investigation after his colleague the original investigation was transferred. He said that the knife used to assault the deceased was handed over to the police. It was alleged that there was a love triangle between the deceased, accused and the deceased wife. The deceased armed himself with the knife and attacked the accused. He was however overpowered and the accused stabbed him fatally and reported the incident to the village elder.
When put on his defence the accused gave unsworn testimony. He slept upto around 5 am when he went for a short call. Certainly from behind someone attacked him and stabbed him on the left hand. He felt down but continued to struggle. In the process he stabbed him but according to him he did not know where. He then went to the village elder and reported the incident. He also took the knife which apparently according to him belonged to the deceased. He admitted that the cause of the dispute was his wife who was the deceased wife previously.
Previously. He also produced the treatment chit showing that he had also suffered some injuries during the scuffle.
During cross-examination he said that he was staying in the house of one Lawrence Kibet and that is when the incident took place.
He was also staying with his wife together with the deceased children and his as well as his.
Analysis and Determination
Having heard the prosecution as well as the defence evidence there is no doubt that the accused killed the deceased as he confessed to PW1 that morning. The murder weapon was taken to PW1 by the accused.
The big question however is whether there was malice aforethought which is a crucial ingredient as per the provisions of Section 206 of the Penal Code. It appears that the dispute between the deceased and the accused was to do with one Hellen who was previously the deceased wife and now the accused. By his own admission the accused confirmed that he was having the deceased children.
Be it as it may I do find that there was no malice aforethought which one can proof against the accused. There is nothing to show that indeed he prepared himself, by arming himself with a knife and then attacked the deceased. The only eye witnesses Hellen was not called to testify.
Nevertheless I do find that the accused must have used excessive force to attack the deceased. There is no evidence that he called for any help from any other 3rd Party at all.
Consequently I think this is a case where the proper charge would have been manslaughter. In the premises I shall reduce the charge of Murder to Manslaughter and convict the accused accordingly under the provisions of Section 205 of the Penal Code.
Order accordingly.
Delivered this 31st day of October, 2016.
_________________
H.K. CHEMITEI
JUDGE
In the presence of;
Kakoi for State
Ingosi holding brief for Karani for Accused
Accused present
Kirong – Court Assistant