[2022] KEHC 3331 (KLR)

Republic v Simiyu (Criminal Case 12 of 2020) [2022] KEHC 3331 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3331 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 12 of 2020

SN Riechi, J

June 9, 2022

Between

Republic

Prosecution

and

Gabriel Wangila Simiyu

Accused

Judgment

1The accused Gabriel Wangila Simiyu is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2The particulars of the offence are that on the 22nd day of February, 2020 at Matulo Location in Webuye Sub-county within Bungoma County murdered Hellen Naswa Malulu.

3The case for the prosecution is that the deceased Hellen Naswa Malulu was staying with the accused Gabriel Wangila Simiyu as a woman friend. On 22. 2.2020 at 8. 30 a.m. PW1 Francis Simiyu Mahaga the father of the accused was at his home when Hellen the deceased came to him and informed him she had quarreled with the accused. He left her with his wife Florence. When he came back later in the day, he was informed that deceased had died.

4PW2 Florence Nasimiyu Mahaga the mother of the accused was in her house when accused and deceased came and explained to her husband PW1 Francis how they had quarreled. In the evening she saw the deceased with injuries on the head. She went to the house and accused told her she had injured her teeth. She observed and saw she was dead. She advised accused to report to the police. She stated in cross-examination that it is accused who called her and informed her that deceased had injured her teeth. When she went to give first aid she confirmed deceased was dead.

5PW3 Dr. Edward Milembwa conducted a post-mortem report on the body of the deceased. He found she had injury below the right eye, bruises on both wrists, cut on right thigh measuring 11 cm long. Massive haemotoma on below the skull, skull cracked and blood in the brain. From the examination he formed opinion that cause of death was due to severe head injury, using a blunt object.

6PW4 IP Patrick Wafula the Investigating officer testified that on 22. 2.2020 he was informed of a case of murder where the suspect had surrendered to police. He went there and met the accused who informed him that he had fought with his wife who had then died. He arrested the accused and proceeded with other officers to the home of accused where he found the father of accused (PW1) and mother of accused (PW2). They led him to the house of accused where they found deceased on the bed. He observed her and saw she had injuries on the head. They took the body to the mortuary. Later he took the accused to chief inspector Nyangaresi who recorded a statement under inquiry from the accused. Accused was later charged with the offence.

7PW5 Protus Juma the real husband of deceased attended the post mortem and identified body to the doctor.

8The accused upon being put on his defence gave sworn evidence. He testified that the deceased was his girlfriend and would stay in his home. On 22. 2.2020 at 7 p.m. he came from his boda boda business and she opened for him and he entered the house. They then started quarrelling and deceased told accused to go back to his wife. She then hit him on the mouth and hand. The next day he went to look for a mechanic to repair his motor cycle. At night while in the house the deceased hit herself on the wall of the house and had injuries on the eyes. He went to work and came back at 12 p.m. and found deceased lying on the bed and he tried to wake her up she did not. He called his mother Florence (PW2) who confirmed she was dead. He then went and reported to police. He stated that the deceased had poured salt into the motorcycle engine and she used to drink alcohol.

9In cross examination by M/s Omondi he stated that he informed his parents that they had fought where she sustained injury on the eye and bleed when she hit herself against the wall. He stated that he also sustained injuries but did not go to hospital.

10The accused called DW2 Duncan Wanjala Wakhungu a mechanic who testified that accused told him deceased had put salt in the tank. He washed the tank and noticed accused had injuries and deceased who was there had also injuries.

11M/s Omondi for state filed written submissions. Prosecution counsel submitted that from the prosecution evidence and defence there is evidence that the deceased and accused fought on the material night. The deceased was later found in the accused’s house with injuries and was dead. There is no indication that she interacted with any other person after the fight was reported to accused’s parents. She submits that it is the accused who inflicted the injuries from which the deceased died.

12M/s Natwati for the accused filed her written submissions. Counsel submitted that it is not in dispute that the accused and deceased who were man and wife had an argument that came up when deceased poured salt in the accused’s motor cycle, on the night on 21. 2.2020. However the next day they were in good terms and were able to share what happened to accused’s father PW1. Counsel submitted that even if the court finds that they fought, there is no evidence of malice aforethought a requirement for prove a charge of murder. Finally, counsels submit that the prosecution did not establish circumstantial evidence as stated in Musili Tulo –vs- Republic (2014) eKLR.

13The accused is charged with the offence of murder contrary to section 203 of the Penal Code. Section 203 provides:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”The prosecution in a charge of murder must prove:a.The fact and cause of death.b.The unlawful act or omission causing the deathc.That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d.That the accused committed the unlawful act with malice aforethought.

14PW3 Dr. Edward Milembwa who performed the post-mortem on body of deceased found she had injury below he right eye, bruises on both wrists, cut wound on right thigh, crack on the skull and haemotoma in the brain matter. He formed opinion that cause of death was due to severe head injury. He issued death certificate No. 0781145. This witness therefore confirmed both the fact of death and cause of death as being due to severe head injury as a result of assault.

15How did the deceased sustain the injuries from which she died? PW1 Francis Simiyu testified that accused and deceased came to him and reported that they had quarreled. He did not observe any injuries. He left and later in the day he was informed she had died. PW2 Florence Nasimiyu saw accused and deceased report to PW1 Francis that they had quarreled. She saw the deceased with injuries on the head. Later accused came and called her and informed her that deceased had injured her teeth. She went there and found deceased was already dead in accused’s house. The accused in explaining how the deceased sustained the injuries testified in this defence.“I knocked and she opened for me. I put the motor cycle inside. She cooked food. On that day she at my home. She then started quarrelling telling me to go back to my wife. She then bit me on the mouth and hand. We then slept at midnight. The next day I went to look for a mechanic for my motor cycle. He came and repaired it and we went to look for fuel. During that night I did not hit her she hit herself on the wall on the eyes. We did not have any quarrel in the morning. The time the mechanic came she was outside washing utensils.”

16Upon cross-examination by M/s Omondi for state he stated:“I was staying with deceased as a friend, not a wife. We were staying in same house for 3 months. She was found dead in my house. I had informed my parents that we had fought the previous day. I had also sustained injuries. I did not go to hospital. She had injuries on the eyes. She was bleeding. She sustained injuries when she hit herself on the wall. I told my parents that we had fought.”

17The prosecution sought to rely on the what the deceased and accused told PW1 to prove that it is accused who assaulted the deceased. In Musili Tulo Vs- Republic2014 eKLR the court set out the test of circumstantial evidence as follows:i.The circumstance, which an inference of guilty is sought to be drawn, must be urgently and firmly established.ii.Those circumstances should be of a definite tendency unerring pointing towards the guilty of the accused.iii.The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else.

18From the evidence of both the father (PW1) and mother (PW2) of the accused, both the accused and deceased reported that they had quarreled. The mother (PW2) observed that deceased had injuries. The accused in his defence explains that they fought after a quarrel over deceased putting salt in the petrol tank of his motor cycle. As a result, he testified they fought and both accused and deceased sustained injuries on the eyes and him on the hands. He goes ahead to explain that the fatal injuries were self-inflicted by the deceased who hit herself on the wall in the house. This cannot be the case that the deceased injured herself on below the eyes, cut herself on right thigh, bruises on her left and right wrist and cracked her skull. The deceased died from multiple injuries which would not have been sustained by herself hitting the wall as the accused explained. The accused confirmed that it is only him and deceased who were in the house and I find that these injuries were inflicted by the accused and no other.

19From the evidence of both the prosecution witnesses and defence of accused and as the counsel for accused rightly points out in her submissions between accused and deceased over allegations of deceased putting salt in the petrol tank of accused motor cycle. There is also evidence that in the fight both even the accused sustained injuries. The assault and inflicting of the injuries on the deceased were done in circumstances of provocation. Section 208 defines provocation as:1. The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.2. When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.3. A lawful act is not provocation to any person for an assault.4. An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.5. An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

20Where a person is charged with the offence of murder and evidence points out that he committed the offence under provocation the same is reduced to manslaughter. Section 207 Penal CodeProvides:207. When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, is guilty of manslaughter only.

21Considering all the evidence, I am satisfied that the prosecution has proved a charge of manslaughter against the accused beyond reasonable doubt. I therefore find the accused Gabriel Wangila Simiyu guilty of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Codeand convict him accordingly.

DATED AT BUNGOMA THIS 9THDAY OF JUNE, 2022S.N RIECHIJUDGE