[2023] KEHC 25922 (KLR)

Republic v Sanga (Criminal Case 14 of 2015) [2023] KEHC 25922 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25922 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Case 14 of 2015

M Muya, J

November 30, 2023

Between

Republic

Prosecutor

and

Chibungu Sanga

Accused

Judgment

1. Chibungu Sanga hereinafter referred to as the accused was arraigned in court and charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code.

2. The particulars of the charge are that on the 8th day of March 2015 at Kiriti village in Mukurweini Sub County within Nyeri County murdered Gregory Kingori Kanyi.

3. On the 16th day of September 2015 the accused entered a plea of not guilty. Subsequently the case proceeded to full hearing and determination. The prosecution called a total of fourteen witnesses.

4. The accused in his defence gave a sworn statement and called one witness.

The prosecution case 5. Gladys Gathoni Mwangi (PW1) testified that on the 8th day of March 2014 she was asleep with her husband Gregory Kingori (the victim) when at about 1. 00 am she heard a knock at the window and orders that they open the door, when the door was not opened in good time, they forcefully broke in and entered into the house. Her husband, came out with his hands raised, she heard gunshots and he fled with the police officers on tow.

6. Two police officers had been left behind but they later followed the other two who had given chase. The officers left but returned later with a police dog. The following day in the morning they found the body of Kingori lying in a nearby coffee plantation. It had gunshot wounds on the chest and back. Later police went to the scene took photographs and took away the body.

7. Joseph Kanyi Macharia (PW2) testified that on the 8th of March 2015 at night he was asleep when he was, woken up by his wife who told him that there were policemen outside the house. They demanded to be shown Kingoris house. They went there and he saw blood stains near the kitchen but he did not know to whom it belonged. He later went to his house and slept. The following day he met the father in law of the deceased who directed him to where the body of the deceased lay in a coffee plantation. He noted that it was the body of his son it had gunshot wounds on the chest. He reported the matter to police and the local administration. Photographs were taken.

8. Patrick Wanjau (Pw3) was the brother of the deceased on the night in question police officers went to his house and knocked at his door and asked for the deceased. The officers were armed with guns and torches. They asked to be taken to Kingoris House. He did as ordered. The deceased was ordered to open the door. He took some time and the officers forcefully broke into the house. The deceased came out with his hands raised in the air, suddenly he heard gunshots and he did not know where the deceased fled to. They later tried to contact him by phone but in vain. The police officers went away and later returned with sniffer dogs. They appeared drunk. One of them was saying that he had been cut with a panga by the deceased. The officers went away after some time. The following day in the morning the body of the deceased was found lying in a coffee plantation. Police later went and carried it away.

9. PW4 John Kanyi Wachira was inside his house on the night of 7th March 2015 when at midnight he heard gunshots outside and heard footsteps of two people running. That he did not come out of the house but in the morning the body of the deceased was found in a coffee plantation police officers and the assistant chief arrived at the scene.

10. PW5 Agnes Nyokabi Kingori was on the same night of 7th March 2015 asleep in her house when she heard people from outside calling for the deceased to open his house. She switched on the lights and went outside to check and saw 4 policemen. She later heard gunshots and she went back to her house. Police officers later went away and returned with police dogs. One of the officers showed them a cut to which she suggested that it could not be from a panga but from barbed wire. The officers went away. In the morning the body of her son was found in a nearby coffee plantation.

11. Chief Inspector Nahashon Kipsoi (PW6) was on the night of 7th March 2015 called by the accused (corporal Sanga) who informed him of the events of that night. That there was a shooting incident when he together with three other police officers went to arrest a suspect in a case of assaulting a police officer.

12. That the suspect was armed with a panga. He send a signal to the OCPD and dispatched a police dog to trace the suspect. The following day members of public reported that they had found the body of the deceased. They visited the scene and found the body lying about 100 metres from the deceased’s residence. They managed to take away the body. At the house of the deceased they found a panga which was bloodstained but the accused had no injuries at the time. The AK 47 rifle was taken by the DC10 for analysis. Two bullets were discharged from the rifle and only one hit the deceased. The officer stated that he did not hand over the panga to scenes of crime officers as the situation was very tense at the time.

13. Sergent Joel so Borgrief (PW 7) was in charge of armory at Mukurweini police station. On 7th March 2015 he issued CPL. Sanga Chibungu with a firearm serial No.764872 with Magazine of 30 rounds. He also issued PC Ireri with a rifle serial No.042994 with a magazine of 20 rounds. The next day Cpl. Sanga returned the firearm with 28 rounds of ammunition and two spent cartridges. Later he handed over the AK 47 rifle and the 28 rounds of ammunition to the scenes of crime personnel.

14. Chief inspector James Kiprotich Chepclaien (PW 8) took photographs of the scene and testified that he did not find any weapon at the scene.

15. PW9 PC Hunja testified that on 8th March 2015 they were at the Report Office together with PC Muniko when Cpl. Sanga asked them to accompany him to go and effect arrest of a suspect, who had fought with PC Ireri in a bar. They went to the home of the suspect at night, upon arrival PC Ireri went to the rear of the house. Pc. Hunja (himself) and Cpl. Sanga approached the main door. Pc Bakari was about 5 metres from the main door, corporal Sanga knocked the door. A lady answered and they introduced themselves. Lights were put on and a man emerged while armed with a panga. Then corporal Sanga fired a warning shot and told the suspect to put the panga down. He fired another one, the deceased raised the panga with the intention to attack, he then ran into a coffee plantation. Later they went away and returned with a police dog and a handler but failed to find the suspect. The following day they proceeded to the scene in the company of other police officers. They were shown the body of the deceased which they took to the mortuary.

16. Alex Ndindi Mwandawiro (PW 10) was the firearm examiner. On 1st April 2015 he received exhibits from Cpl. Richard Odhiambo. These were:-1. A rifle Serial No.763872 marked exhibit “A”2. Magazine Marked as exhibit B3. Rounds of ammunition marked as exhibit No.C1 C2 and C34. Spent cartridges marked as exhibit D and D2. Upon analysis he formed the opinion that the rounds of ammunition were 7. 62 caliber and suitable for use by the rifle marked as exhibit “A”

17. The two spent cartridges caliber 7. 62 were fired from one gun which was exhibit “A” he also formed the opinion that they were firearms as defined in the firearms Act Cap 114 Laws of Kenya.

18. Pc Ireri (PW11) testified that on 22nd February, 2015 he was assaulted by the deceased. On 8th March 2015 at midnight while in the company of corporal Sanga, Pc Hunja, Pc Bakari they proceeded to the home of the deceased. Upon arrival at the deceased house, they introduced themselves as police officers. A lady said that she was opening the door, after a short while the deceased came out while armed with a Panga. He heard corporal Sanga tell him to drop it down. At the time he was about 4 metres away from Cpl. Sanga. He heard a gunshot being fired in the air, then a second one a minute later. Cpl. Sanga said that the deceased had escaped. Cpl. Sanga said that he had sustained injuries to his hand from a cut by the Panga. They went in search of the deceased but did not find him. They decided to go back to the station to get reinforcements. They returned with a police dog. They searched for the deceased but when they did not find him they decided to return to the police station. The following day they learnedHhj the body of the deceased was found at the nearby coffee plantation and the body was taken to the mortuary. Corporal Richard Odhiambo (PW 13) was the investigating officer before IPOA took over. He had been tasked to investigate the case by chief inspector Naomi Muli. He proceeded to the scene and was led to where the body of the deceased was recovered in a coffee plantation. He also was shown the house of the deceased and noted bullet holes on the wooden frame. He took measurements from where the body was found to the deceased house and found it to be 154 metres. He collected blood samples at the scene. He went to Mukurweini hospital mortuary and was shown the body of the deceased. He noted it had a bullet hole on the right side of the chest. It had entered from the frontal aspect and exited from the back. He went to the police station and was shown the AK 47 rifle, two spent cartridges, the magazine and a panga allegedly recovered at the scene. He took the statements of corporal Sanga, Pc Ireri, Pc Hunja and Pc Bakari. He had also taken the statements of the deceased relatives who were present at the time of the incident. His conclusion was that the officers were going to arrest a suspect for an offence of assault. The accused was the only one who was armed with a rifle. That the deceased when confronted charged at the police officers while armed with a Panga and that it was at that point that he was shot.

19. That the officer acted in self defence. That he did not find enough evidence to charge the accused.

20. Maureen Akinyi (PW 14) a Senior Investigator with IPOA took over the investigations after they were requested by the area member of parliament. She recorded statements from sixteen (16) witnesses. She established the person who fired the shots. The post mortem report established the cause of death as a shot to the chest causing lung failure (collapse) and blood loss.

21. The issue of the deceased having been armed with a Panga was dismissed as it was not shown to the scenes of crime officer who took photographs at the scene. The panga was taken photographs by another investigator from IPOA. The accused had said that he had recovered the panga at a cowshed after following the deceased trail of blood. The panga had a black tyre handle. The panga that was produced and had photographs taken had a brown wooden handle. She further found that on the night of the alleged attempted arrest the police officers did not book in the OB that they were leaving the station to go and effect arrest of a suspect. In his defence the accused testified that on the 7th day of March 2015 he was the duty officer at Mukurweini police station. He was approached by one PC Muniko who informed him that one Pc Ireri had made a report of assault and a P3 form had been filled and whether he could accompany them to effect an arrest. At around midnight they in the company of Pc Ireri, Pc Bakari Pc Muniko proceeded to the homestead of the deceased Geoffrey Kingori Mwangi. At the time he was the only one who was armed owing to the terrain they left that G.K Vehicle about ½ a Kilometre away. The brother of the deceased led them to the suspect’s house and left. A lady’s voice asked them who they were and they introduced themselves as police officers. They instructed her to put on the lights. The house was made of timber. A man shouted that they were not police officers and came out while armed with a Panga. While the man was at the door, the accused got hold of him with his right hand. He was holding the rifle with the left hand. He was by cut the Panga. He fired in the air as warning shot. The deceased aimed at cutting, him. The accused evaded the blow and fired a shot while at a distance of about one metre away suspect ran away and they followed him but did not find him. They went back to the station and returned at around 2. 30 a.m. with a police dog.

22. They did not find the suspect. At around 6. 30 am the father of the suspect went to the station and reported that the suspect’s body was lying in a coffee plantation. In the company of the OCS they left for the Scene. They found members of public gathered. Scenes of crime personnel arrived and took photographs. The body was taken to the mortuary. Some of them were left at the scene. He recovered a panga and handed it over to the OCS. The scene of crime officers did not take photographs of the panga. He later went to hospital for treatment. A P3 Form was later filled and it was produced as exhibit. He denied having killed the suspect intentionally and with malice aforethought and insisted that he was acting in self defence and in defence of his colleagues as they were not armed. Further that they had gone to the suspect’s house to effect a lawful arrest. The initial re-commendation by the investigating officer were that an inquest file be opened and an inquest be carried out, but when IPOA did their own investigations he was informed that he would be charged in court for the offence of Murder. It is his defence that the statements by the initial investigating officer and those taken by the IPOA investigating officer were not in Sync as they contradicted each other. He further testified that he was the only armed police officer during the attempted arrest, although the arms movement register showed that Pc Ireri was also armed. He stated that they did not book in OB that they were going out to effect an arrest.

23. He further testified to have picked the spent cartridges from the ground. One from outside the main door and the other one not far from the first one. He denied to have interfered with the scene. Photographs were taken at the scene but the panga was not photographed. The accused testified that he is the one who picked the panga and handed it over to the OCs and he did not know whether it was subjected to analysis.

24. The defence called Pc driver Ramadhan Bakari who testified to have been with the accused, Pc Hunja, Ireri , Pc Muniko on patrol when they decided to go and arrest a suspect. The time was around 12. 30 a.m. A brother of the suspect one Patrick showed them the house of Kingori. Pc Ireri went to guard the window. He heard a lady respond to the orders of opening the door. A man told her not to open. The deceased came out while armed with a panga. He appeared to be running towards him. He evaded him and he ran towards some coffee bushes. They followed him but did not see him. They decided to go back to the police station and returned with a police dog but still they did not find the suspect. The following day they received information that the suspect’s body was recovered. He testified that the suspect had approached the accused while armed with a panga with the intention of cutting him and that’s when he fired in self defence.

Submission for the accused 25. It is submitted that the accused as a police officer was effecting a lawful arrest.

26. The deceased is said to have had a history of violence as he had on 22nd February, 2015 assaulted PC Ireri.

27. That the accused was aware of the use of firearms. He first fired a warning shot which the deceased did not heed before firing the second one which was aimed at disarming him as he was armed with a panga.

28. That this happened at close quarters and thus it was in self defence.

29The defence relies on the case of Republic – Vs- Silas Magongo Onzere (2017) e KLR where the judge observed:- “Death of a human being is unlawful when it is caused by another in circumstances which are not authorized or permitted by law… the justified exceptions the law recognizes is in execution of a court sentence, the defence of property or defence of the life of self on any person from unlawful violence.”

30. Reliance is also placed on Section 61 of the National Police Service Act No.11A of 2011 which provides:-1. Subject to subsection (2) A Police Officer shall perform the functions and exercise the powers conferred by the constitution and this act by use of non-violence means2. Despite Section (1) a police officer may use force and firearms in accordance with the rules on the use of force and firearms contained in the sixth Schedule.

31. The sixth Schedule provides:-“That a police officer shall always attempt to use non-violent means first and force may only be employed when non- violent means are ineffective or without any promise of achieving the intended result and that the force used shall be proportionate to the objective to be achieved, the Seriousness of the offence and the resistance of the person against whom it is used, and only to the necessary, while adhering to the provisions of law and the standing orders.”Part B of the Schedule provides for the conditions to be met in the use of firearms thus:-(1)Firearms may only be used when less extreme means are inadequate and for the following purposes:-a.Saving or protecting life of the officer or other person.b.In self-defence or in defence of other person against imminent threat of life or serious injury.c.Protection of life and property through justifiable use of forced.Preventing a person charged with a felony from escaping lawful custody.2. An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed excepta.Where doing so would place the officer or other person at risk of death or serious harm or (b) if it would be clearly in appropriate or pointless in the circumstances. Reliance is further placed on the case of Ahmed Mohammed Omar and 5 others Versus Republic 2014 e KLR where the court relied on the court of appeal case of R 551 where Lord Morris observed:-“It is both good law and good sense that a man who is attacked may defend himself.”

32. It is submitted that these cases are in all fours with the instant one. That the accused acted in self defence and in defence of his colleagues.

Whether there was Malice Aforethought on the part of the Accused 33. Malice a forethought is defined under section 206 of the Penal Code in the following manner:-a.Intention to cause death of or grevious harm to any person whether that person is the one who actually died or notb.Knowledge that the act or omission causing death will probably cause the death of or grevious harm to some person whether that person is the person actually killed or notc.Intent to commit a felonyd.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 for a charge of attempted murder to stand and the accused to be found guilty, available evidence must show that the two elements of a crime to wit mens rea and actus reus must exist contemporaneously”

34. It is submitted that the accused was in possession of the firearm and went to effect a lawful arrest against the deceased. It is the deceased who came out of the house while armed with a panga and the accused fired first in the air and in order to disarm him shot him. Only one shot found the deceased which means that the accused did not intend to kill the deceased.

Submissions by the prosecution 35. The standard of proof in murder cases is beyond reasonable doubt.

36. Reliance is placed in the case of Joseph Kimani Njau Versus Republic (2014) e KLR

37. It is the contention of the prosecution that it is the accused who caused the death of the deceased. That the act was unlawful and that he had malice aforethought.

38. It is submitted that the accused did not deny shooting the deceased. He does not deny having been armed with an AK 47 rifle which had been issued to him by Pw7 with 30 rounds of ammunition. Nor does he deny returning it with 28 rounds of ammunition and 2 spent cartridges. There is evidence from PW10 to the effect that two bullets were discharged from the rifle the accused was issued with.

39. The defence contends that the deceased rushed out of his house while armed with a panga and threatened to cut the accused who in self defence fired two shots one in the air and the other one which was meant to disarm the attacker.

40. This allegation is disputed by the prosecution on account of several facts.

41. The prosecution witnesses who were present at the Scene PW1, PW2, PW3 denied having seen the deceased come out while armed with a Panga.

42. The Scenes of Crime Personnel Officer who went to the scene on 8th March 2015 at 730 a.m. did not find any panga at the scene.

43. It’s the contention by the prosecution that the OCS(PW6) who allegedly recovered a blood stained Panga at the scene did not hand it over to the scenes of crime personnel but decided to hand it over to the DC10. The said Panga had a wooden handle.

44. No inventory was made of the said Panga.

45. The OCS did state that it is the accused who recovered the Panga from the ground and it had a black tyre handle. Due to such discrepancies on the recovery of the panga it is contended that there was no such panga at the time.

46. The defence case is that the accused fired two shots. One in the air as a warning shot and the other one which was meant to disarm the attacker. The scenes of crime officer (PW8) did testify that when he visited the scene he observed that there were two shots that had penetrated the wooden door. These shots could not have been warning ones.

47. The accused in his defence alleges that he had cut wounds from the panga on his fingers. This contention is denied as there is no such evidence from his colleagues who were in his company at the time.

48. It is the prosecution case that the provisions of the sixth schedule to the police Act on the use of force and measures to be taken by a police officer were not followed in the instant case. That the deceased was not a habitual criminal, he lived near the police station he was known by the police officers and on the material day he was not armed and that he came out of his house with his hands raised in the air.

49. The prosecution relies on the court of appeal case of Veronicah Gitahi and Another Versus Republic (2017) eKLR Where it was held that;"The Act demands that the use of force must be proportional to the objective to be achieved, the seriousness of the offence, and the level of resistance and still only to extent necessary. When it comes to the use of firearms the act makes it a last result option.”

50. On the issue of malice aforethought, it is the contention by the prosecution that there was intention to kill the deceased. The accused was armed at the time. When he left the station he did not book at the occurrence book. He want to effect an arrest way past midnight. They forcefully broke into the deceased house. The officers were four in number against one un armed individual. There was no warning shot fired in the air as both penetrated the deceased wooden door.

51. The accused had no defensive wounds as alleged. The issue of the panga was a creation of the accused. The chain of custody of the panga was broken, the description and identification of the panga itself was suspect.

52. The victim’s submissions are in tandem with those of the prosecution.

Analysis and determination 53. Issues for determination1. Whether the prosecution has proved the offence of murder beyond reasonable doubt.2. Whether the defence of self –defence has been properly established

54. The offence of murder is defined under section 203 of the Penal Code thus:-Any per who of malice aforethought causes death of another person by an unlawful act or omission is guilty of Murder”

55. Malice aforethought is defined under Section 206 of the Penal Code in the following terms:-(a)(a) an intention to cause death or to do grievous harm to any person whether such person is the person actually killed or not.b.Knowledge that the act or omission causing death will cause the death of or grievous harm to some person, whether such person is the person, killed or not although such knowledge is accompanied by indifference whether death or grieveous bodily harm is caused or not or by a wish that it may be caused.c.An intent to commit a felonyd.An intention to facilitate the escape from custody of a person who has committed a felony.

56. The ingredients of the charge of murder were considered in the case of Anthony Ndegwa Ngari Versus Republic (2014) e KLR as followsa.The fact of the death of the deceasedb.That the death was due to an unlawful act or omission.c.That it was the accused who committed the unlawful act or omission which caused the death of the deceased andd.That the accused had malice aforethought.

57. As to the fact of the death of the deceased.

58. The police/government pathologist who examined the body for post mortem report did indicate that upon examination he formed the opinion that death was as a result of severe bleeding and collapse of the lungs due to a single gunshot wound at close range with high velocity. The body was identified by PW1 and PW2 at the mortuary.

The Unlawfulness of the act or Omission 59. It is not in dispute that it is the accused who shot and killed the deceased. The accused himself admits this fact. His contention is that he had gone to the house of the deceased to effect an arrest for the offence of an assault on PC Ireri with whom he was in company of during the attempted arrest. His further contention is that the deceased rushed out from his house while armed with a panga intending to harm them and indeed did inflict some cut wounds on the fingers of the accused. That in self –defence the accused fired at the deceased to disarm him after firing a warning shot in the air.

60. Section 17 of the Penal Code defines self-defence thus:-Subject to any express provision in this code or any other law in operation in Kenya, Criminal responsibility for the use of force in the defence of person or property shall be determined according to the Principles of English common law”

61. These Principles are that one has to use reasonable force(i)To defend himself(ii)To prevent attack on other person(iii)To defend his property.

62. The court of Appeal recognized these common law principles in the case of Ahmed Mohamed Omar and Other versus Republic 2014 e KLR (Supra).

63. In the case of Victor Nthiga Kiruthu & Another versus Republic (2017) eKLR it was held:-"The principles that have emerged from these and other authorities are as follows:-i.Self defence as the term suggests is defence of self. It is the use of force or threat to use force to defend oneself, ones family or ones property from a real or threatened attack. Self defence is therefore a justification in the application of force recognized by common law.ii.The law generally abhors the use of force or violence, but there are instances when a person is justified in using reasonable amount of force in self defence if he or she believes that the danger of bodily harm is imminent and the force is necessary to repel it, meaning that force must be necessary and that it must be reasonable.iii.It is not necessary, however, for there to be an actual attack in progress before the accused may use force in self defence. It is sufficient if he apprehends an attack and uses force to prevent it.iv.The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must be of a nature which could not reasonably be met by mere pacific means.v.What amounts to reasonable force is a matter of fact to be determined from evidence and the circumstances of each case.

64. In the case of Ahmed Mohamed Omar (Supra) the court observed:-"if self – defence was raised as an issue in criminal trial, it must be disapproved by the prosecution. This is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful. In such cases, the prosecution is enjoined to prove that violence used by the accused was unlawful”

65. In the case of Palmer Versus Republic (1971) All ER 1079 the court had this to observe:-"Where the evidence is sufficient to raise the issue of self defence that defense will only fail if the prosecution shows beyond doubt that what the accused did was not by way of self defence”

66. In the present case the defence maintains that it is the deceased who came out of his house while armed with a Panga and the Accused shot in the air to warn him and when he did not heed the warning the accused shot to disarm him.

67. It is the contention by the defence that the accused intended to, shoot the hand that was holding the panga so as to disarm the deceased.

68. However the post mortem report indicates that the cause of death was severe bleeding and lung collapse due to a single gunshot wound to the chest at close range and at high velocity. It is patently clear that the accused shot the deceased not on the hand that allegedly held the panga but at the chest and at close range.

69. The issue of the presence of a panga at the scene is a contested one.

70. Prosecution witnesses PW1, PW2 and PW3 denied having seen the deceased with a panga at the time of the incident.

71. The scenes of crime officer (PW8) who went to the scene on 8th March 2015 did testify that he did not see any panga at the scene, nor was one shown or handed over to him.

72. PW6 C.I Nahashon Kipsoi the OCS Mukurweini did testify that he was the one who called the scenes of crime. He further told the court that a panga was recovered 30 metres away from where the body lay near a cowshed. He further told the court that he was not the one who recovered the panga but it is the accused who handed it over to him.

73. However, the same officer did not find it opportune to hand it over to the scenes of crime officer. The Kenya police Service Standing orders (Revised in 2001 chapter 46 guide to Criminal investigations order 1 (ii) provides:-if the officer to arrive at the scene of crime know that he shall not be the investigating officer he will make immediate arrangements for the attendance of an investigating officer;(iv)The investigating officer on arrival, will protect technical clues such as finger prints and will in appropriate, cases wait for the technical specialist. When the services of the technical specialist are not available, he will arrange to forward to the appropriate specialist all exhibits requiring examinations.”

74. The OCS should therefore have forwarded the panga to the scenes of crime officer or at least informed him of the presence of such exhibit.

75. The OCS described the Panga that was recovered by the accused as having a black tyre handle, the panga that was photographed and surrendered to the government analyst had a wooden handle.

76. These discrepancies call into question the veracity of the defence contention that the deceased was armed with a Panga at the time he was shot.

77. The accused alleges that he did sustain cut wounds from the Panga the deceased was wielding. How he sustained cut wounds from a Panga which was being held aloft in the air has not sufficiently been explained, coupled with that is the fact that the presence of the Panga at the time of the shooting is seriously in doubt.

78. The National Police Service Act provides for circumstances where police can use force. Part A of the sixth Schedule provides:-1. A police officer shall always attempt to use non-violent means first and force may, only be employed when non-violent means are in effective or without any promise of achieving the intended result”2. The force used shall be proportional to the objective to be achieved, the seriousness of the offence and the resistance of the person against whom it’s used and only to the extent necessary while adhering to the provisions of the law and standing orders.”

79. The four police officers had embarked on a mission of arrest of the deceased for an offence of assaulting a police officer. There was no urgency on the matter to necessitate them to go and effect an arrest at midnight for a simple case of assault. There is evidence to the effect that the home of the deceased was near the police station and some of the police officers knew the deceased. There is no evidence to the effect that the deceased was a hardcore criminal who was known to be armed and dangerous. There was therefore no good reason to go to his homestead to effect arrest after midnight. It is the defence contention that there was resistance on the part of the deceased in the form of arming himself with a panga.

80. Upon a careful analysis of the evidence adduced in court, I am not satisfied that there is convincing evidence that the deceased was armed with a panga at the time. Even if he was armed with a panga (a fact that is not proved) the force used which was that of shooting the deceased on the chest at close range was not proportional to the objective of arrest for a case of assault.

81. I find in the circumstances of this case that the force used was excessive and uncalled for.

82. When the four officers left the police station though they did not book it in the occurrence book their intention was to effect an arrest but not to kill. There was no mens rea on their part.

83. Malice aforethought as defined in section 206 of the Penal Code was nor proved i.e the intention to cause the death of the deceased.

84. The charge of murder contrary to section 203 of the Penal Code cannot stand but I am satisfied that the offence of manslaughter contrary to section 202 of the Penal Code has been proved beyond reasonable doubt.

85. Section 202 of the Penal Code provides:-Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter.”

86. I am satisfied that the prosecution has proved beyond reasonable doubt that the accused used excessive force in the circumstances which was unlawful and caused the death of the deceased.

87. The defence of self-defence has not been established beyond reasonable doubt and is not available to the accused. He is found guilty of the offence of manslaughter contrary to section 202 of the Penal Code and convicted accordingly

JUDGMENT READ AND DELIVERED IN OPEN COURT THIS 30TH DAY OF NOVEMBER, 2023. HON. JUSTICE M. MUYAJUDGEIn the presence of:Mwangi for the accused.30 days R/A.