[2022] KEHC 3222 (KLR)

Republic v Shibutse (Criminal Case 10 of 2013) [2022] KEHC 3222 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3222 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 10 of 2013

WM Musyoka, J

May 13, 2022

Between

Republic

Prosecution

and

Reuben Mutsalali Shibutse

Accused

Judgment

1. Reuben Mutsalali Shibutse, who I shall refer to hereafter as the accused, was charged the offence of murder, contrary to section 203 as read together with section 204 of the Penal Code, Cap 63, Laws of Kenya. The particulars of the charge against him were that on 11th December 2012, at Mundovelo village, Esumeiya Sub-location, North Butsotso Location, in Kakamega Central District, within Western Province, he murdered Stephen Shibutse, hereinafter referred to as the deceased. The accused pleaded not guilty to the charge, and six witnesses were called and testified for the prosecution. These were: Beatrice Amalemba (PW1), Felisters Shisanya (PW2), John Vikadzi Isindu (PW3), Dr. Dickson Mchana(PW4), Bornface Ochange Namale (PW5) and Stephen Lurembe Mate.

2. The case for the prosecution was that the deceased was the father of the accused person. PW1 and PW5 were neighbours of the deceased. According to PW5, he saw the accused and the deceased near his gate, in the morning of 10th November 2012, at around 8. 00 AM, having a domestic disagreement. He escorted the accused away from his father, and thereafter went about his other duties. PW1 heard the deceased scream at 1. 00 PM, from his home, saying that the accused had stepped on his ribs and stomach. She went and reported to the local village elder, who advised her to inform the relatives of the deceased about the matter. The accused then stormed her home with a big stick, threatening to kill her. She telephoned a sister of the deceased, PW2, and informed her of the incident. She thereafter hosted the deceased for the night. The next morning, 11th November 2012, PW2 and PW3 went to the home of PW1, to see the deceased, who told them that it was the accused who had injured him on the ribs and stomach. They took the deceased, and reported the matter at the nearest police station, and thereafter took him to hospital, where he was treated and released home. On 13th November 2012, has condition worsened, and PW2 took her back to hospital, where he was admitted for two weeks. He was transferred to another hospital where he died, after another one week of admission. A post mortem on the body, conducted by PW4, found that the deceased had pneumonia, a clot on the right side of the liver, inflamed abdominal cavity cover and a repaired site on the intestines where there was perforation of the small intestines, that was oozing faeces into the cavity. The body had defence injuries. Cause of death was said to be toxic shock, secondary to intestinal perforation following blunt abdominal trauma.

3. At the end of the prosecution’s case, the accused was found to have a case to answer and was put on his defence. He gave a sworn statement. He stated that on the material day, he was at home with his mother, and the deceased was absent. He received information that the deceased was lying drunk at the gate of PW5. He went there, with his mother. to pick him up. They found him there, and picked him up. They met PW5. He said the deceased was drunk. They took him home. He was sickly, and his mother took him to a dispensary and he was treated. As he was not getting better, his mother informed relatives, and PW2 and PW3 came and took him to hospital. He later died in hospital. He denied assaulting the deceased. He said that the deceased was not picked by PW2 and PW3 from the house of PW1, but from their house. He asserted that PW5 did not say that he found him assaulting the deceased. He said that the injuries that caused his death were as a result of a fall, due to drunkenness. He called one witness, his mother, Florence Musanga Shakhaba, who testified as DW2. She said the deceased was her husband. She testified that she and the accused were at home, when they received a report that the deceased was lying somewhere on the road drunk. They picked him up and brought him home. She said that she did not see PW5 at the place from where they picked the deceased. She said that the deceased died from injuries that he suffered after a fall. She said it was her, PW2 and PW3 who took the deceased to hospital, after she called them for help. She said that the deceased died from injuries that he suffered after a fall. She said that they used different motorcycles, and met at the hospital, but asserted that they did not pass by the police station.

4. From the evidence on record, there is no eyewitness account that any of the witnesses presented by the prosecution saw the accused assault the deceased. There was no direct evidence, therefore, that it was the accused who assaulted the deceased, occasioning the injuring that eventually led to his death. What there is circumstantial evidence. One witness, PW5, testified to seeing the accused and the deceased together on the day that he sustained the fatal injuries. He found them having a misunderstanding at his gate, and he testified to walking the accused person away from the deceased. Later that day, PW1 heard the deceased shout and scream that the accused had stepped on his ribs and stomach, and she was forced to report the matter to the authorities, and to shelter the deceased. She stated that the accused was not happy about it, and he came to her house with a big stick, threatening to kill her. She later informed PW2, a sister of the deceased, who, the next day, visited the house of PW1, to see the deceased, who repeated to PW2 what he had told PW1, that he had been assaulted by the accused on his ribs and stomach. The injuries that were noted by the pathologist, PW4, were in the abdominal area, where the small intestines are located, which were said to have been perforated, causing toxic shock, which led to the death. They were consistent with the claim by the deceased that he had been assaulted in the ribs and stomach. The defence was that the deceased fell, but there was nothing on record to indicate that the deceased fell. According to PW4, the deceased had defensive injuries, which pointed more to assault that a fall.

5. The question that I ask myself is whether the circumstantial evidence was sufficient for the purpose of convicting the accused person. No one saw him assault the deceased. The only evidence there is that PW5 saw the two having a disagreement, which he said he diffused, by taking the accused away from the scene. The critical evidence would be that by PW1 and PW2, that the deceased spoke to them, and told them that it was the accused person who had assaulted him on the ribs and stomach. Since they did not see accused do so, such evidence amounted to nothing more than hearsay. Was it evidence that could be believed? I believe PW1 was a truthful witness. She spent a lot of time with the deceased after he sustained the injury. She took time to report to the authorities, she contacted his relatives and hosted him for the night, ostensibly to nurse him and secure him. She had adequate time with him, to get information from him regarding what might have happened.

6. Is it evidence upon which a court can convict, being hearsay evidence? The evidence is in the nature of a dying declaration. The law on dying declarations is section 33(a) of the Evidence Act, Cap 80, Laws of Kenya A dying declaration and it is a statement made by a deceased person relating to the cause of death, and is admissible in evidence. The provision states:“When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

7. The Court of Appeal discussed dying declarations, in Philip Nzaka Watu vs Republic [2016] eKLR (Makhandia, Ouko & M’Inoti JJA), and stated:“Under section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements … While it is not the rule of law that a dying declaration must be corroborated to found a conviction, nevertheless, the trial court must proceed with caution and (sic) to get the necessary assurance that a conviction founded on a death declaration is indeed safe.”

8. In this case, the deceased screamed and shouted shortly after the assault that caused the injuries that eventually led to his death, about a month later, that he had been assaulted by the accused person. He said that the appellant had stepped on his ribs and stomach. PW1 and PW2 stated that he told them so, PW1 minutes after the assault, and PW2 the following day. The identification of the accused person as the assailant was not in dispute. The deceased was his father. PW1 was their neighbour, who knew them both. PW2 was a sister of the deceased, and the aunt of the accused. The injuries noted by PW4, at post mortem, were consistent with being assaulted in the manner that the deceased alluded to. I am satisfied that the dying declaration was sufficiently corroborated and was safe to rely on.

9. From the evidence of PW4, the pathologist, the principal cause of death was the perforation of the small intestines, which led to faeces oozing into the abdominal cavity, causing toxic shock. He explained that what usually causes intestines to burst is pressure. In this case, the deceased was said to have told PW1 that the accused had stepped on his ribs and stomach. The rapture of the small intestines would be consistent with pressure being exerted by way of stepping on the stomach. A person who steps on the stomach of another, should be deemed to know that such action could cause severe damage to the internal organs of the victim, and such conduct can be interpreted to suggest an intention to cause damage to such internal organs which can lead to death. From the facts and circumstances of the case before me, it can also be inferred, from the nature of the injuries suffered by the deceased, that the assault was intended to cause death or grievous harm, or the accused was indifferent to the consequence of his actions, and, therefore, malice aforethought can be inferred under section 206(b) of the Penal Code.

10. Malice aforethought is defined in section 206 of the Penal Code, and one of the elements of it is knowledge. Section 206(b) states:“206. Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: –(a)…(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)…(d)...”

11. Overall, I am satisfied that all the elements of the offence of murder were established. One, there was the death of the deceased, as was confirmed by PW2, PW3, PW4, DW1 and DW2. Two, the cause of death was established by PW4, to have been complications that arose from the perforation or rapture of the small intestines of the deceased, caused by blunt abdominal trauma or pressure. Three, the cause of death was connected to the accused person, on account of the dying declaration by the deceased to PW1 and PW2, that the accused stepped on his ribs and stomach, causing the injuries that were noted by PW4. Finally, that there was malice aforethought, for the accused must have had knowledge or ought to have known or was indifferent that by stepping on the stomach of the deceased he could cause damage to his insides or internal organs leading to his death, and it is deemed that he intended that to be the result of his actions.

12. I accordingly convict the accused person, under section 322 of the Criminal Procedure Code, Cap 75, Laws of Kenya, of the offence charged, of the murder of Stephen Shibutse, contrary to section 203 as read with 204 of the Penal Code.

13. For the purpose of sentence, and being faithful to the principles set in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) and Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae)[2021] eKLR (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko SCJJ), with respect to sentencing following a conviction of murder, I direct the Kakamega County Director of Probation and Aftercare Services to assess the circumstances and antecedents of the accused, and to prepare and file, within twenty-one days, a pre-sentence report. I shall allocate a date for the sentencing hearing on the date delivery of this judgment.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13thDAY OF May, 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the Republic.Mr. Nandwa, instructed by Nandwa & Company, Advocates for the accused.