[1997] KEHC 5 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL CASE NO 9 OF 1995

REPUBLIC........................................ PROSECUTOR

VERSUS

1. SEBASTIAN MGANGA

2. MWAKALAMU KISHUSHU...........…ACCUSED

JUDGMENT

The Prosecution in this case set out to prove beyondreasonable doubt that on the 13th of August, 1994 at Mraru sub-location, Mbololo location in Taita Taveta District, SEBASTIANMGANGA and MWAKALAMU KISHUSHU jointly murdered one MWAKESI MGANGA.

SEBASTIAN was the father of the said deceased, Mwakesi, whileMwakalamu was the deceased's uncle. The mother of Sebastian andthe father of Mwakalamu share the same mother and father. They arefirst cousins. Mwakesi the deceased was one of Sebastian sevenchildren. He was staying with his parents although he was agedabout 34 years, and was unmarried. Another son who was marriedalso stayed with the parents. The wife of that son and theirchild, testified in court.

Out of the seven witnesses called by the Prosecution to provetheir case, only two were presented as eye witnesses to whattranspired on that fateful day. That was the evidence of P.W.3,2MARIA MWAKE MGANGA (MARIA), the wife of Sebastian, and DALMASMGANGHA (DALMAS), the 13-year old grandson of Sebastian. The othercrucial evidence was led through P.W.7 Pc NELTON ALUGONGO (PcALUGONGO) in form of the alleged murder weapon and the Post Mortemreport. That leaves four witnesses whose evidence can be quicklydealt with.

P.W.I was the brother of the deceased who identified andaccompanied the body for Post Mortem on 22. 8.94. P.W.2 was thedeceased's cousin who also identified the dead body of the deceasedon 22. 8.94 from Post Mortem. P.W.5, EVELYN NYAMBU, was the wife of the deceased's younger brother. She stayed away from home working in shambas the whole day on 13. 8.94. She returned home at 6. 30p.m. As she approached the home she heard people talking and onarriving there and asking what was happening she was told by thedeceased that it was only his head that was hurting. Apparentlyshe found the deceased on the ground as she said she helped him torise up and he walked. She did not see any injuries on thedeceased. The deceased, she said, looked drunk. He stayedovernight and when the hurting head did not recover, he was takento hospital by Maria (P.W.3) and Sebastian (1st accused), who werehis parents.

The Chief of Mbololo location ((P.W.6) testified that he isthe one who called the police after receiving a report from avillage elder that the two accused had beaten up their son to deathand lied to the hospital staff that he had fallen from a house he

3was building. There was no evidence from the said village elderor the hospital staff to confirm such an allegation. That evidencewas therefore hearsay and inadmissible.

The first eye witness was a minor. A small boy of 13 years.As by law required, I carried out a preliminary examination of theminor to assess whether he was possessed of sufficient intelligenceto give evidence and that he understood the nature of an oath andthe duty to telling the truth. I was of the view that he wasintelligent enough to testify but did not understand the nature ofan oath or the duty of telling the truth. He therefore gaveunsworn testimony. This meant that his evidence could not berelied upon on its own and has to be corroborated by other evidencefor it to be of any use.

On a dayand time he could not recall, he said, he saw the threepeople fighting behind the house. They were fighting with fists.

That was the deceased and the two accused. He did not seem toknow what they were doing behind the house before they startedfighting. He said it was Sebastian and Mwakalamu who were beatingthe deceased. They were using fists and nothing else. He shoutedand his grandmother who was inside the kitchen came out. Shestarted separating them. When she separated them the deceased felldown and he started talking slowly. His grandmother then carriedhim into the houseon being cross examined Dalmas said he did not see the deceased drinking on the day of the fight. He did not know why4they were fighting but the first time he saw the fight, thedeceased was being held by the two on the ground. He did not knowhow the deceased ended up on the ground. the deceased, he said,looked drunk.

Maria (P.W.4) had also spent the whole day on 13. 8.94 awayfrom the house cultivating shambas. She returned home at 6. p.m.and started making tea. At home she found the two accused only,drinking alcohol.

While she was still making tea, she heard shouts from her son,the deceased. Apparently the son had been sleeping when shearrived and the father, Sebastian, had gone to wake him up. Sherushed out of the kitchen and on going out found the two accusedholding down the deceased, strangling him. She did not know how itall started but she joined in to separate the fight. She couldnot, because she was alone as the only other person nearby wasDalmas (P.W.3) who was only crying. She managed to make thedeceased stand up. At that point the father picked up a hoe-handleand hit the deceased who fell down. She picked him up and took himinside the house. She led him by the hand into the house.

In the night the deceased started vomiting and when it becameworse, she and Sebastian took him to Voi Hospital. He died oneweek later whilst undergoing treatment.

The body had already been released for burial when the funeralceremony was stopped at the last minute for a postmortem to becarried out. It was carried out on 22. 8.94 by a DR. IMBAYA who

5thereafter left the country for further studies and had notreturned by the time of this trial. His post mortem report wasproduced by the investigating officer who was present when thepostmortem was conducted. This is permissible under S. 77 of theEvidence Act. Nevertheless, the investigating officer, is only aPolice Officer and was not in a position to expound on the medicalfindings recorded in the report. In the opinion of the Doctor, thecause of death was Cardiac arrest due to head injury (Stbdutalhaematoma) due to blunt injury cause by a heavy object.

The Prosecution says the heavy object was the hoe handle whichonly Maria, P.W.3 saw and said it was used. One week later shegave it to Pc Alugongo who produced it as an exhibit.

There was no evidence from these eyewitnesses as to thegenesis of what they saw as a fight for the first time. They didnot testify on the state of the accused's sobriety or any worksthat may have been spoken by the accused persons or exchangedbetween the persons present throughout. The scenario at that pointwas that two old men set upon a drunken looking young man andbattered him to death using a heavy object with the intention of sodoing or of inflicting grievous harm.

Against this background presented by the Prosecution, there wasevidence on oath given by the two accused persons.

Sebastian was 75 years old old when6he testified while Mwakalamu was 56. The deceased was 34 years oldwhen he died.

The tree of them had spent the whole morning assistingMwakalamu in cultivating his shamba. At about 2 pm, they had lunchand proceeded to Sebastian's home to drink some traditional liquorwhich had been prepared by Sebastian. It was 5-litres. They allpartook of that liquor upto about 6. 30 p.m. No one else was inthat home except perhaps Dalmas (P.W. 4) and his sister who was notcalled as a witness.

The younger man (the deceased) is the one who had beendistributing the liquor, but at one point he disappeared into thehouse and his father (Sebastian) went to look for him. He foundhim sitting in bed drunk. Sebastian then went out of the house butimmediately. The deceased came out of the house carrying a hoe(Hoe/axe) intending to strike Sebastian. Mwakalamu saw it andcaught the deceased. He wrestled the Hoe away from him and went tohide it away. The deceased then grabbed his father and wrestled himto the ground. Mwakalamu moved in to assist the old man but thedeceased threw him to the ground also. It was at this point thatthe mother of the deceased came and grabbed the deceased but shecould not manage to restrain him. He was struggling and draggingthe mother along. That is when Sebastian picked up a small stickfrom the ground and knocked him on the head straightly asking himwhy he was behaving that way the stick was not the one exhibitedin court he said. Sebastian then sat down and the deceased was7taken into the house by the mother. the deceased started vomitingin the night and had hiccups in the morning. That is whenSebastian decided to take him to hospital. He stayed with him inthe hospital throughout until he died one week later. He said heloved his son and they had never quarrelled before this grateful day. On that day, he and the others were fairly drunk. He wasstaggering as he walked but not too drunk to know what he wasdoing. He denied having provoked the deceased in any way beforethe deceased came rushing out with a "Jembe/Shoka" (Hoe/axe) to hit him.

Mwakalamu supported that evidence in material particulars.Particularly the evidence that it was the deceased who went to pickup an axe to cut his father. It is Mwakalamu who saw the deceasedlunging at Sebastian and caught him before the axe came down. Hewent to hide it behind the house but found the two wrestling on theground when he returned. He tried to separate them at which point

Maria also appeared and joined in separating them. He was told byMaria to leave and he left and went to his house. He did not seethe exhibit said to be the murder weapon. He confirmed the goodrelationship between Sebastian and his son saying that he loved hisson.

It was the totality of such evidence that the assessors weredirected to consider in light of the law as explained to them.

They were directed to consider weather it was Subestian who hit thedeceased on the head with the object exhibited in court and8inflicted the grievous harm. If that was so they were directed toconsider whether he did so in self defence and whether he usedsufficient force to repel the attack on him by the younger man. Ifthe force used was more than necessary in the circumstances thenthe offence would amount to manslaughter. The issue of commonintention was also put to the assessors for consideration. Commonintention is when two or more persons form a common intention toprosecute an unlawful purpose in conjunction with one another andin the prosecution of such purpose an offence is committed of suchnature that its commission was a probable consequence of theprosecution of such purpose. If that happens then those personsare considered to have committed the offence. The intention may

either be a pre-arranged plan or it may develop in the course ofevents though it might not have been present to start with. Wasthere a common intention by Sebastian and Mwakalamu at any state tocause the death of grievous harm to the deceased?

Between the date of close of the trial on 7. 5.97, and thesumming up to the assessors on 4. 6.97, it was reported thatSebastian had died whilst undergoing treatment at Shimo La TewaPrison Hospital on 29. 5.97. The case against Sebastian thereforeabated and no findings were necessary with respect to him.Defence counsel Mr. Omwitsa submitted that the prosecution hadnot proved beyond reasonable that the commission of the offencecharged. There was no evidence that Mwakalamu inflicted grievousor any harm to the deaseased. Such evidence as there was about9anyone one striking the deceased related to another person. It wastherefore necessary for the Prosecution to prove beyond doubt thatthere was a common conspiracy between Mwakalamu and that otherperson to cause the death of the deceased. There could not havebeen. The three persons had spent the whole morning togetherworking. They had spent the whole afternoon together drinking andit was in evidence that the deceased in this case became so drunkthat he lost control of himself. He is the one who attacked hisfather with a lethal weapon before it was snatched away from him byMwakalamu. there was no proof of any previous misunderstandingbetween the deceased and his father or Mwakalamu and therefore nobasis for inferring common intention to kill the deceased. Mr.Omwitas Cited the case of Robert Kinuthia Munqai Vs Republic wherethe Appellant shot the deceased younger man who was violent inorder to immobilise him and the plea of defence of the person andprevention of a felony was upheld by the Court of Appeal.

In this case he submitted, the younger person was the moredrunk and violent and intended to commit the felony of assaultinghis father. Mwakalamu was only involved in preventing thecommission of that felony. The incident happened out of the blueand was generated by the influence of alcohol on the part of thoseinvolved. Death was caused by Misadventure and the serving accusedperson should be acquitted.submitted that the evidence of the two eye deceased P.W. 3, Maria and the Minor P.W.I

10Dalmas was sufficient to prove the case beyond reasonable doubt.The fact that the two accused persons were seen beating thedeceased with fists when he was lying on the ground, according toDalmas, and that they were strangling him, according to Maria, isproof of Common intention to kill or cause grievous harm. Sherelied on the definition of Common Intention under S. 21 of thePenal Code in support of that submission. She also cited the caseof Wamerio vs Republic (1955) 22 EACA 521 in EACA 521 in support ofher submission that although the intention might not have beenthere to cause death or grievous harm in the first place, thisintention developed in the course of the struggle with the deceasedand Malice aforethought under S.206 of the Penal Code wasconstituted.

In her submission, it was highly improvable that the deceasedpicked up any weapon to attack his father. That weapon was notseen by the eye witnesses. At any rate when the deceased wasattacked by the two accused he had no weapon, as according to oneof the accused persons, it had been snatched away. There was noreason to continue beating and strangling the deceased thereafter.

As for the allegations of drunkenness on the part of the twoaccused and the deceased, she submitted that none of them was toodrunk to know what he was doing. The deceased had retired to his

Bedroom, must have been provoked by the father. On the evidence on record,there was no fight between the three persons but evidence of twopersons setting upon another, on whom they inflicted grievous harmwhich led to death. There was a common intention to do so andtherefore Mwakalamu cannot escape culpability.

The two assessors who remained after one of them disappearedmidstream, were that Mwakalamu was not guilty of eithermurder or manslaughter and that there was no common intention tocommit any offence.

KENNETH NJUGUNA KIMANI the first assessor accepted theevidence that Mwakalamu was merely involved in restraining thedeceased, Mwakesi, from committing the offence of assaulting hisfather. He believed such evidence because none of the Prosecutionwitnesses testified to having witnessed the beginning of thequarrel. HENRY KAHINDI NGARE believed the evidence that it wasthe deceased who took an axe to cut his father and Mwakalamu tookaway the axe after which the deceased who took an axe to cut hisfather and Mwakalamu took away the axe after which the deceasedstarted wrestling his father to the ground. He believed thatMwakalamu came in to separate them and that is when the Prosecutionwitness Dalmas saw the three and concluded that it was the deceasedwho was being strangled. The mother, Maria, came in shortly after.For people who had spent the entire day together and were onlyhaving a drink for relaxation at the end of it, he saw no reasonwhy the two older men would forma common intention to kill theyounger man. If the father had intended to kill or assault theson, he would have done so when he went into the room where the sonwas resting in bed. Instead it is the son who followed the fatheroutside the house where a struggle was witnessed. the deceasedmust have been the one assaulting his father and Mwakalamu's rolewas to separate them. He should therefore be acquitted folly:

The opinions of these assessors are not binding on me in lawbut I find them well founded in fact and in law.

It is clearly the position that the prosecutions two keywitnesses, Dalmas and Maria, came in at the tail end of the entireincident. None of them saw its genesis. As stated earlier, theevidence of Dalmas required corroboration in Law, but found none inmaterial particulars. What he saw is not what Maria saw. Beforethey saw what each said they saw, a lot had happened could onlyhave been narrated by those who were there. The two accusedpersons did narrate what transpired and they did so on oath. Theywere cross-examined.

I believe on that evidence, as the assessors did, that thedeceased younger man had taken a Hoe/axe with which he intended tostrike his old father before Mwakalamu intervened and snatched itaway. I believe the younger man then set upon his father andwrestled him to—the ground and mwakalamu joined in to separatethem. i do not find mwakalamu's involvement amounted tocommit a felony with any other person. I make no finding on theactions of Sebastian as his case abated upon his death pendingconclusion of the trial.

The case against Mwakalamu KISHUSHU has not been proved beyondreasonable doubt and I find him not guilty. He shall be set atliberty unless he is otherwise lawfully held.

Dated at Mombasa this 8th day of september l997.

P. N. WAKI

JUDGE