[2022] KEHC 13890 (KLR)

Republic v Wakhungu & another (Criminal Case 38 of 2019) [2022] KEHC 13890 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13890 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 38 of 2019

SN Riechi, J

October 6, 2022

Between

Republic

Prosecutor

and

Emmanuel Shikuku Wakhungu

1st Accused

Mary Wakhungu

2nd Accused

Judgment

1. The accused Emmanuel Shikuku Wakhungu (accused 1) and Mary Wakhungu (accused 2) are jointly charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the offence are that on the 28th day of April, 2018 at Furoi village, Lukusi sub-location in Webuye West Sub-County within Bungoma County murdered Julius Lumasayi Namisi.

3. The case for the prosecution is that on 28. 4.2018 at 5 p.m. PW1 Eunice Nangina heard screams from the house of accused 2 Mary. She went near and saw there was a lady (accused 2) the deceased and Shikuku (accused 1). She saw Marry accused 2 hit the deceased with a chair on the head as the deceased sat down. He saw accused 1 Shikuku hit the deceased with fists and kicks. She then saw them remove him to the road. Later she checked and did not see the deceased there as he had gone back to his home. At 1 a.m. she heard screams from deceased’s home. Police were informed who came and took away the body. She testified that she knew accused 1 Shikuku as a brother of accused 2 Mary and Mary used to sell changaa.

4. On being cross examined by Natwati for accused she stated that the deceased house is about 20 meters away across the road. She stated she would see what was happening in accused 2 Mary’s house. She went and saw deceased on the road and left him there. She stated that accused 2 was operating a shop and deceased had gone to buy cigarette.

5. In response to the cross examination by Mr. Makokha for Mary accused 2, she stated that the husband of Mary is called Matayo and that she knew deceased used to go to Mary’s house. She confirmed she did not know how the quarrel between them started. She testified that the deceased was being beaten in the sitting room and the door was open.

6. PW2 Peter Juma Namisi the brother of deceased received information at 8. p.m. from deceased’s son Bernard Masaai that deceased was lying down in his house. He went and found deceased lying down in the sitting room flour. He spoke to the deceased who told him that he (deceased) had been beaten at home of Mary (accused 2) by Marry (accused 2) and Shikuku (accused 1). He said they had a quarrel with Shikuku (accused 1) over a cigarette. He observed deceased and saw he had a swelling on the ribs. He remained with the deceased who then died at around 11-12 a.m. He informed police who came and took away the body.

7. On being cross examined by counsel for accused he stated that he was with deceased’s children when deceased told him how he sustained the injuries. He confirmed that the deceased used to drink alcohol and Mary (accused 2) was selling alcohol and cigarettes in her house.

8. PW3 No. 52139 Copl Vincent Mukoit attached to Bokoli police station received a report of murder. He and colleagues proceeded to the scene and found deceased lying down. He was informed deceased had assaulted by accused. He took the body to the mortuary.

9. On being cross examined by Makokha for accused 2 Mary he stated that the initial report was of sudden death in OB NO. 7 and in OB 8 of 29. 4.2018, it stated that deceased had gone on a drinking spree at home of Mathayo Namisi and picked a quarrel with Emmanuel (accused 1).

10. PW5 I.P Patrick Wafula the Investigating officer testified that on 6. 10. 2019 he was instructed by Shadrack Bundi his boss to take over the investigation of a murder incident which had occurred on night of 28. 4.2018. He asked about the delay from the date of incident and had been informed that the suspect had escaped to Nairobi. He proceeded to the home of Accused 2 Mary who upon interrogation told him that deceased had quarreled with her brother Emmanuel (accused 1) and they fought. He found that her house had been set on fire. He also received witness statements recorded earlier and accused were later charged with present offence.

11. On being cross-examined by M/s Natwati for accused 1, he stated that he visited the scene on 6. 10. 2019 about one year after the incident and found her houses had been burnt and was in the process of reconstruction. By that time accused 1 Emmanuel had been arrested already. He confirmed that Mary (accused 2) house is about 200 meters from house of Eunice (PW1). He also confirmed deceased’s house was 600 meters from house of Mary (accused 2). At the time of incident accused 1 Emmanuel was staying with accused 2 Mary who was his sister.

12. PW4 Dr. Abraham Maalim produced a post mortem report prepared by Dr. Mutoro who performed the post mortem on body of deceased. He found that there was bleeding under the skin on right should, defence marks on both hands, ruptured spleen and collection of blood in the abdominal cavity. He formed opinion that cause of death was due to ruptured spleen due to blunt abdominal trauma.

13. The accused upon being put on their defence gave sworn statement. Accused 1 Emmanuel Shikuku Wakhungu testified that he knew deceased as his sister Mary (accused 2) was married at their home which is about 1 ½ Km from his home.

14. On 28. 4.2018 he was in Nairobi having gone there on 14. 1.2018 where he stayed until when he was arrested on 30. 10. 2019. He testified that he knew PW1 Eunice as a neighbour of Mary and he used to do casual work with her, but her evidence in court was lies. He testified that he knew Peter (PW2) the brother of deceased and that what the deceased told him was lies; as the (accused) was not at the home of Mary (accused 2) on that day.

15. Accused Mary Wakhangu Lusike testified that accused 1 Emmanuel is her younger brother. On 28. 4.2018 she had gone to Turbo Market and when she came home she heard people had fought, at the junction 2 a.m. – 3 a.m. she heard screams from the home of deceased. She went there and found deceased in the house dead. On 29. 4.2018 she again went to the home of deceased when police came. On 2. 5.2018 people burnt her houses on allegations that she and her brother had killed the deceased. She ran away. She stated she knows PW1 Eunice whose house is about 40 meters away. She stated that she last saw accused 1 Emmanuel on 14. 1.2018 when he came to her house to take away his child. She stated that she had an existing grudge with Eunice (PW1) over alleged love affair with her husband. She denied that she hit the deceased with a stool or chair as alleged.

16. M/s Natwati for accused 1 filed written submissions. Counsel submitted that the witnesses for the prosecution was PW1 Eunice Nangila whose testimony was that the fight was inside the house of accused 2. She stated that the house was across the road and that she was able to see what was happening in accused 2’s house. Counsel contests that this is not possible as the house had a wooden door which was closed. Counsel therefor submits that there was no direct evidence to the murder and that the prosecution attempted to rely on circumstantial evidence which was hearsay. Counsel urged this court to find the charge not proved and acquit accused. Counsel referred this court to the decision in David Agwata Achira –vs- R 2003 eKLR to buttress her submission.

17. The accused are charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 Penal Code provides:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

18. The ingredients of the offence of murder which must be proved beyond reasonable doubt are: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.

19. On the fact and cause of death PW4 Dr. Abraham Maalim produced a post mortem report prepared by Dr. Mutoro who performed the post mortem on body deceased. The positive findings from the post mortem examination was that the deceased had a ruptured spleen and collection of blood in the abdominal cavity. He formed opinion that cause of death was due to ruptured spleen due to abdominal trauma. He produced the post mortem form as Exh.1 which confirmed both the fact of death and cause of death.

20. On who inflicted the injuries on the deceased. The prosecution called PW1 Eunice Nangina. In her evidence she stated:“On 28. 4.2018 at 5p.m. I heard screams from the house of Mary. I would see that they were deceased, Mary and Shikuku. I saw they were fighting with deceased. I went near I saw Mary hitting deceased with a chair. The deceased was seated down. Mary hit him on the head. I saw their brother Shikuku hitting him with fists and kicks. We don’t go there when they normally fight. I then saw them remove deceased to the road where they left him. I then see deceased lie on the road. I then saw the deceased was not where he had laid. He had left and gone to his home. At 1 a.m I heard screams from home of deceased. Later police came and took away the body. "

21. On being cross examined by Natwati for accused 1 she stated:“I know accused 1. He was born in that area. On 28. 4.2018. I heard the screams at 5 p.m. He house is about 20 meters away. There is a road between us. My house is on the road and Mary’s house is also on the road. My door and that of Mary face the road.From my house outside I can see. I came out of the house. Mary’s house door is wooden. In the house were 3 people, deceased accused 1 and accused 2. The chair they used was in the house. After he was paced on the road I went where he was lying. I saw him and went away. I did not inform his relatively. I did not see when deceased was leaving the road. I only found he was not there.”

22. This witness was the only eye witness who testified as to having seen the deceased being assaulted at the home of accused 2 Mary by both Mary and her brother Emmanuel accused 1. This witness is clear that the incident occurred at 5 p.m. during the day and that upon hearing the screams she came out and saw what happened.

23. PW2 Peter Juma Namusi the brother of the deceased only was called to the house of deceased whom he found with injuries. The deceased who was able to talk told him he had been assaulted at the home of Mary (accused 2) by Mary and Shikuku (accused 1). He said he had gone to the house of Mary to buy a cigarette and they had quarreled with Emmanuel (accused 1) over a cigarette. A few hours after this information to PW2 Peter he passed on.

24. PW5 Inspector Patrick Wafula the Investigating officer testified that he visited the home of Mary (accused 2) where the incident had taken place. He met and interrogated Mary who told him that it is his brother accused who had quarreled with the deceased and there was a fight. She informed him that the angry members of public had set fire to the house and she was in the process of reconstructing another one.

25. Accused 1 Emmanuel Sikuku in his defence while admitting that accused 2 Mary is his sister testified that he knew the deceased but on the material date of 28. 4.2018 he was in Nairobi where he had gone on 14. 1.2018. He therefore raised an alibi defence.

26. Accused 2 Mary on her part stated that on that material day she was at Turbo Market and came back at 7. 30 p.m. when she heard that people had fought. Later she heard screams from the house of deceased. She went there and found him dead. Members of public then set fire to her house.

27. Where an alibi defence is raised by the accused, he does not bear any evidential burden to prove it. The prosecution can however displace the alibi defence by evidence placing the accused at the scene at the time the offence occurred.

28. The evidence of PW1 Eunice is clear that on the material day she was able to see accused 1 at the house of his sister accused 2 Mary. The cause of the fight was a quarrel over a cigarette. This confirmed by that the deceased told his brother PW2 Peter. This fight was between Emmanuel accused 1 and deceased and I do find that it is accused 1 Emmanuel who inflicted the abdominal injuries leading got the ruptured spleen. While it is true that the fight occurred in house of accused 2 Mary, I find that it is accused 1 who inflicted the fatal injuries.

29. In respect of accused 2 Mary Wakhungu this court finds the prosecution has not proved the charge against her beyond reasonable doubt. I find accused 2 Mary Wakhungu not guilty of the offence of murder and acquit her accordingly. I direct accused 2 Mary Wakhungu be set at liberty unless otherwise lawfully detained.

30. In respect for accused 1 Emmanuel Shikuku Wakhungu 1, find that he inflicted the injuries on deceased in the course of a fight over a cigarette. I do find that he committed the offence under provocation. I therefore under Section 207 of the Penal Code find him guilty of the offence of manslaughter contrary to Section 202 of the Penal Code and convict him accordingly.

DATED AT BUNGOMA THIS 6TH DAY OF OCTOBER, 2022S.N RIECHIJUDGE