[2024] KEHC 2827 (KLR)
The court found that both the prosecution and defence evidence indicated the deceased was the aggressor, having followed the accused outside and initiated a struggle. Witnesses did not observe any physical injuries on the deceased after the altercation. The post-mortem revealed no external injuries but noted cardiac...
Source-derived case information.
- Citation
- [2024] KEHC 2827 (KLR)
- Parties
- Applicant: Republic; Defendant: Joshua Otieno Wambo
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E035 of 2022
- Procedural Posture
- Criminal Case / Judgment
- Outcome
- acquittal
- Judges
- KW Kiarie
- Legal Topics
- Murder, Causation, Burden of Proof, Self Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joshua Otieno Wambo
Defendant
Procedural Posture
Criminal Case / Judgment
Legal Issues
- 1 How did the incident that led to the death of the deceased occur.
- 2 Whether the accused can be held responsible for the death of the deceased.
- 3 Whether the offence of murder was proved against the accused.
Ratio Decidendi
The court found that both the prosecution and defence evidence indicated the deceased was the aggressor, having followed the accused outside and initiated a struggle. Witnesses did not observe any physical injuries on the deceased after the altercation. The post-mortem revealed no external injuries but noted cardiac enlargement, with the cause of death being cardiac arrest likely triggered by strenuous activity in a person with a dysfunctional heart. The court held that the accused's actions did not amount to an unlawful act causing death, nor was malice aforethought established. The prosecution failed to prove the offence of murder beyond reasonable doubt, and the accused was acquitted.
Court Disposition
acquittal
Orders
- The accused is acquitted of the offence of murder and set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
26 paragraphs
Republic v Wambo (Criminal Case E035 of 2022) [2024] KEHC 2827 (KLR) (20 March 2024) (Judgment)
Neutral citation: [2024] KEHC 2827 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Criminal Case E035 of 2022
KW Kiarie, J
March 20, 2024
Between
Republic
Prosecution
and
Joshua Otieno Wambo
Accused
Judgment
1. Joshua Otieno Wambo is charged with an 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 23rd day of October 2022, at Kombe village, in Mbita Sub County of Homa Bay County, jointly with another, murdered Daniel Otieno Akacha.
3. The deceased and the accused were among the people taking chang’aa in the house of Mama Isah, also known as Mama Alafu. When the accused stepped out, the deceased followed him there, and the two were found struggling. After they were separated, the deceased complained of pain in his stomach. He did not have any physical injuries. He later succumbed and died. The cause of death was cardiac arrest (cardiac hypertrophy).
4. Joshua Otieno Wambo, the accused, in his defence, contended that when he was smoking, the deceased complained that the smoke was affecting him. He, therefore, went out to smoke. The deceased followed him there and started beating him. He held him, and they fell while struggling with each other. They were separated, and he went home.
5. The issues for determination are:a.How did the incident that led to the death of the deceased occur;b.Whether the accused can be held responsible for the death of the deceased; andc.Whether the offence of murder was proved against any or all the accused.
6. Both the prosecution and the defence paint the deceased as the aggressor. The evidence that both parties adduced indicates that when the accused went to smoke from outside after the deceased had complained that the smoke was affecting him, the deceased followed him there. According to the accused, the deceased then started to beat him, and a struggle between the two ensued.
7. Issa Otieno Owano (PW4), from whose house the accused, the deceased and others were taking chang’aa, said she heard the accused ask the deceased why he was injuring him.
8. The evidence of William Ouma Agola (PW1) was that after they separated the two, he did not see any physical injury on the deceased.
9. Dr Odhiambo conducted a post-mortem on the body of the deceased. He reported that no external injuries were noted. He, however, noted cardiac enlargement. He was of the opinion that strenuous activity in a patient with a dysfunctional heart can result in cardiac arrest.
10. The deceased was the aggressor; although his death is regrettable, it cannot be blamed on the accused at all.
11. I find that the prosecution has not proved the offence of murder against the accused. I accordingly acquit him and set him free unless, if otherwise, lawfully held.
DELIVERED AND SIGNED AT HOMA BAY THIS 20THDAY OF MARCH 2024KIARIE WAWERU KIARIEJUDGE