[2023] KEHC 25905 (KLR)

Republic v Shiboka (Criminal Case E035 of 2021) [2023] KEHC 25905 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25905 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Case E035 of 2021

JK Sergon, J

November 30, 2023

Between

Republic

Prosecution

and

Joshua Opembe Shiboka

Accused

Judgment

1. The Accused Namely:- Joshua Opembe Shiboka is charged with offence of Murder Contrary to section 203 as read with section 204 of the Penal Code. Particulars of the offence are that, on 25th February, 2021 at Majengo Estate, Township Sub-Location in Kericho East Sub-County within Kericho County, the Accused murdered Kennedy Otieno Chila.

2. The accused person pleaded not guilty to the charge and the prosecution called seven (7) witnesses to prove its case.

3. Dominic Kiprotich (Pw. 1) identified the accused person, he also knew Kennedy Otieno Chila (the deceased). Pw. 1 is also known as Jagua. He testified that on 25th February, 2022 that at around 8 pm he was closing his business when he heard screams, someone was shouting "Jagua, Jagua, help me", he went to the scene and found the accused with a group of people, he was informed that the accused person was beating Kennedy (the deceased) because he had found his wife sleeping with him, Pw. 1 left the scene. The deceased used to work for him. The following morning, he was informed that the deceased was outside his house, so he sent someone to take the deceased to hospital. At about 8:30 am, he was informed that the deceased had succumbed to his injuries while in hospital. He stated that he does not know what the accused used to assault the deceased.

4. On cross examination, Pw. 1 confirmed that he did not see the accused person assaulting the deceased.

5. Sharon Mwonja (Pw. 2) identified the accused person, she stated that she knew the deceased, recalled that on 25th February, 2021 at about 7:30 pm she was on her way home, she was walking accompanied by her sister and Brighton Kibet, when her sister told her to go and collect money from her husband (Pw.1) at his business premises, when she arrived she found the accused and the deceased person fighting, she passed them, collected the money and went to her sister, who sent her back to her husband (Pw. 1) to collect more money, when she returned the accused and deceased had stopped fighting, the deceased person called her but she did not go near, she therefore did not know where he was injured. She stated that there were many people at the scene, she went to her house and on the following day she was informed that the deceased had been taken to hospital. She stated that she was subsequently arrested and stayed in custody for seventeen (17) days.

6. On cross examination Pw. 2 confirmed that she knew both the deceased person and the accused, they had reconciled, she therefore did not know what happened.

7. Brighton Kibet Mabwai (Pw. 3) identified the accused person and stated that he knew the deceased person. He testified that on the material day at around 7 pm he was on his way home accompanied by Pw. 2, when Pw.2 was sent by her sister to go to her husband (Pw.1) and collect money for food, when they heard screams, they went to the scene and saw the accused saying that the deceased had taken his wife, they seemingly had forgiven each other, he and Pw. 2 went away, while at the scene he did not see the deceased with any injuries. He stated that they were subsequently arrested the following day and interrogated by the police. They learnt that the deceased was taken to hospital in the morning, where he succumbed.

8. Rahab Nyambura (Pw. 4) identified the accused, she stated that she knew the deceased. She recalls that on the material day at about 7pm, she sent her sister (Pw.2) to ask her husband (Pw.1), money for food. She later heard that the deceased and accused fought over a wife.

9. Sebastian Akwivasa (Pw.5) identified the accused person and stated that he knew the deceased. He is a motorcycle operator, he recalls that on 23rd February, 2021 that he was called to take the deceased to hospital, he took him to Kericho District Hospital, he had injuries on the left side of the head, he had been hit, he however, did not tell Pw. 5 who hit him. Pw.5 left him while he was being treated and later learnt that the deceased had succumbed. He proceeded to record his statement at the police station.

10. Dr. Victor Cheruiyot Rono (Pw.6) a medical officer stationed at Kericho Referral Hospital stated that he conducted an autopsy on the deceased on 1st March, 2021 and made the following observations that the left lung had collapsed, the deceased had a small cut on the spleen, a bruise on the head measuring 6*21/2 cm, a frontal bone fracture and bleeding on top of the brain. Pw.6 formed the opinion that the cause of death was severe head injury with bleeding on the lungs and abdomen and produced the post mortem as PExh. 1.

11. Sergeant Ruth Anzale (Pw. 7) number 73104 stationed at DCIO Kakamega North, she stated on 26th February, 2021 that a report of murder was made at Kericho Police Station, the accused person had fought with the deceased, occasioning him serious injuries on the head, chest and abdomen, thereafter, the accused person fled. She visited the crime scene with her colleagues P.C. Dennis Akama and P.C. Francis Muchira, on arrival they found that the deceased had been taken to Kericho Sub-County Hospital, however, they recovered a piece of log which was used by the accused to hit the deceased and produced the log as evidence. She stated that the post mortem was witnessed by P.C. Dennis Akama. She stated that she escorted the accused for a mental assessment at Kericho Referral Hospital and produced the mental assessment report as PExh. 2. She further stated that she was able to track down the accused using safaricom, and had him arrested and charged with the offence of murder.

12. On cross examination, Pw.7 confirmed she visited the crime scene on 26th February, 2021, the accused was on the run, he therefore was not at the crime scene.

13. Section 211 of the Criminal Procedure Code was compiled with, the accused opted to give a sworn statement and called no witnesses.

14. Joshua Opembe Shiboka (Dw.1) a juakali artisan in his defence stated that on the material day he was at work, he had a debt of Kshs. 200/= with the deceased, who came and took his phone demanding that he settles the said debt, the deceased attempted to leave with the phone, Dw. 1 followed him and a scuffle ensued, his wife screamed and members of the public came to separate them, the deceased returned the phone and Dw. 1 went to his house. The following day he was informed by his wife that the body of the deceased had been found on the roadside with a wound to his head. Shortly afterwards the police arrived inquiring who had assaulted the deceased, he was arrested and charged in court with the instant offence, he maintains that he did not know what happened to the deceased after they parted ways.

15. In Cross Examination, Dw. 1 stated that the deceased came to follow up on a debt of Kshs. 200/= and took his phone as security, he was annoyed and accosted the deceased, he maintains that he had no weapon at the time. He stated that he had known the deceased since 2013, they had worked together. He refuted the claims that he and the deceased quarreled over a woman. He also contested the injuries, and did not agree to that fact the said injuries were sustained due to their scuffle.

16. The sole issue for consideration is whether the prosecution proved its case against the accused beyond reasonable doubt.

17. The offence of murder is provided for in section 203 of the Penal Code that provides as follows;“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”In Republic v Andrew Omwenga [2009] eKLR the court held:“It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission – there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:(a)The death of the deceased and the cause of the death,(b)That the accused committed the unlawful act which caused the death of the deceased and(c)That the accused had the malice aforethought.”

18. The accused in this case was charged with the offence of murder contrary to section 203 of the Penal Code which defines murder as the unlawful killing of a person or persons with malice aforethought.

(a) Death and Cause of Death 19. In this case the death of the deceased person is not disputed, on the 26th February, 2021 the deceased herein succumbed to his injuries in hospital while seeking treatment according to the witness accounts of Pw. 1, Pw. 3 and Pw. 5 a motorcycle operator who took the deceased to hospital for medical treatment.

20. Dr. Victor Cheruiyot Rono (Pw. 6) testified that on 1st March, 2021, he conducted an autopsy on the deceased and noted the following observations that the left lung had collapsed, the deceased had a small cut on the spleen, a bruise on the head measuring 6*21/2 cm, frontal bone fracture and bleeding on top of the brain and his opinion was that the cause of death of the deceased was severe head injury with bleeding on the lungs and abdomen and produced the post mortem report as PExh. 1. The findings by Pw. 6 are consistent with the witness accounts of Pw. 5 a motorcycle rider who testified that on 26th February, 2021, he was called to take the deceased to hospital and he noticed that the deceased had an injury on the head. Pw. 7 also testified and stated that on 26th February, 2021 there was a report of a murder lodged at Kericho Police Station that the accused herein had fought with the deceased and the deceased had sustained serious injuries on his head, chest and abdomen to which the deceased subsequently succumbed.

(b) Whether the accused committed the unlawful act which caused the death of the deceased 21. On the material day there were several prosecution witnesses who witnessed the scuffle between the accused and the deceased. The accused in his defense admitted to having been engaged in a scuffle with the deceased herein, the deceased thereafter sustained severe injuries and subsequently succumbed while seeking medical treatment the following day. I find that the accused persons' defense amounted to a mere denial. Accordingly, I am satisfied that the prosecution proved beyond reasonable doubt that it was the accused person who unlawfully caused the deceased's death.

(c) Whether the accused person had malice aforethought. 22. For the charge of murder to succeed, it must be proved that they acted with malice aforethought. Section 206 of the Penal Code provides circumstances from which malice aforethought may be inferred. They are:“(a)An intention to cause 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 not be caused;(c)An intention to commit a felony;(d)......"Having considered the brief facts of this case, I find that the accused person herein had malice aforethought, which can be inferred from his actions on the material day. The accused person's assault on the deceased, whether motivated by the fact that the deceased was having an affair with his wife or the fact that the deceased had attempted to take the accused person's phone in a bid to settle a debt was tainted with indifference as to the outcome of his actions. In Nzuki v Republic [1993] KLR 171, the Court of Appeal held that malice aforethought can be inferred from the acts of an accused person. The Court elaborated as follows:“Malice aforethought” is a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result."

23. Accordingly, I find that the defence put forward by the accused person namely: Joshua Opembe Shiboka does not displace the prosecution’s case. The prosecution has proved its case against the accused beyond reasonable doubt and in the premises, I find the accused person guilty for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The accused person is hereby convicted.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 30TH DAY OF NOVEMBER, 2023. J.K. SERGONJUDGEIn the presence of:C/Assistant – LangatMr. Musyoki – ProsecutorAccused – Present in Person.No Appearance for G. Langat for the Accused.