[2023] KEHC 24573 (KLR)

Republic v Yeri (Criminal Case 59 of 2018) [2023] KEHC 24573 (KLR) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24573 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 59 of 2018

A. Ong’injo, J

October 19, 2023

Between

Republic

Prosecution

and

Charo Kombe Yeri

Accused

Judgment

1. The accused Charo Kombe Yeri is charged with offence of murder contrary to Section 203 as read with Section 204 of the penal code.

2. The Accused Charo Kombe Yeri on the 17th day of December 2018 at Majengo area, Makupa Location in Mombasa County murdered Charo Shikazi.

3. The prosecution’s case was that on 17th December 2018 at 9. 00per month. PW1 was at the yard in Majengo with the accused, the deceased and Kazungu Kombe. That they used to stay/spend the night in the same yard in Majengo area. PW1 said that after they had supper they went to sleep. He said they slept in a structure made of ironsheets with accused sleeping on a mkokoteni in the structure while the deceased slept on a mattress on the floor and he had put a mattress on a large table. That he was woken up by noise at 11. 00pm and when he woke up he noticed the accused and the deceased were not inside the structure.

4. That the deceased went to where he was and reported the accused had hit him on the head. PW1 saw the injury on the head that blood was coming out. PW1 said he didn’t see the accused and he told Kazungu to take the deceased to hospital. That Kazungu took the deceased to hospital where he was admitted and he left him with his brother and other relatives and returned to scene. That in the morning police from Makupa visited the scene and told them to go and record statements.

5. PW1 identified photographs of the yard – Exhibits 1(a) to (d). In cross examination, PW1 said that the accused and deceased related well. PW 1 said that at one point in 2017 the accused suffered mental instability. PW1 said he didn’t see the accused hit the deceased on the head, but the deceased told him the accused had hit him.

6. PW2 Mohamed Kahindi Charo testified that he was handcart pusher who lived in Mushomoroni. He said the accused Charo Kombe Yeri was his uncle. He also knew the deceased who was his cousin. He said that on 18/12/2018 at 6. 00am he was at home when he received a phone call from Nyari Gone who told him he should get to Coast General Hospital as Charo Shikari was at the hospital. That he proceeded to the hospital and found Charo Shikari admitted at the Intensive Care Unit. That when he saw the deceased he was told to take him for a scan at Jocham Hospital as he had internal bleeding on his head.

7. PW2 said that the deceased was not talking when he saw him and his head was covered with a bandage. The Coast General Hospital Ambulance took the deceased to Jocham and Scan of the head was taken but the deceased died shortly thereafter. That the scan report was taken back to ICU and the body taken to the mortuary. PW2 went to Makupa police station and reported the death and police visited the mortuary and took photographs of the body. That on 28/12/2018 he identified the body of the deceased for postmortem. PW2 said he was told the accused who used to live and do business at a charcoal shed with the deceased hit the deceased on the head. PW2 said he didn’t know much about accused person’s mental illness.

8. PW3 Inspector Paul Chai testified that on 18th December 2018 he was at Makupa Police Station and at about mid-day he received a report from Kahindi Charo that his brother had been killed by Charo Yeri and that the body at Coast General Hospital. PW3 learnt that the accused and deceased were sleeping on same place with Nzioka and that on the night of 17th December 2018 at 10. 00pm when the deceased wanted to go for a call of nature and the accused refused to give a-way a fight ensued and Nzioka separated them and they went back to sleep. That later Nzioka head a commotion and he found the deceased and the accused fighting outside the makeshift house.

9. That shortly the deceased went back to the house while bleeding profusely from the head and told Nzioka the accused had hit him with a stone. Nzioka woke up Kazungu and told him to take the deceased to hospital. That by then the accused had disappeared and was nowhere to be found. That then Kazungu took the deceased to hospital. Nzioka informed his relatives and his brother went to Coast General Hospital and took him to Jocham Hospital for a scan but he died before he could be taken back to Coast General Hospital. PW3 said they went to the mortuary and later visited scene of the incident where photographs were taken.

10. PW3 completed investigations and preferred charge against the accused. He said that he didn’t record accused person’s statement as he could not explain himself well. PW3 said he was told the accused had mental incapacity previously but he didn’t follow-up. PW3 said the accused was taken to the station on the 3rd day by the deceased persons brother. He said the deceased had gone to hid in Mtwapa.

11. PW4 Kazungu Kombe alias Meja testified that he was a loader in King’orani. He said that on 17th December 2018 at 7. 00am, he was at Majengo and went to work at 8. 00am. That he returned home at 9. 00pm. That on arrival he met Charo Yeri and Charo Shikadi at the kiosk. He said there was also Nzioka Gole. He said that he was at a charcoal kiosk where they used to stay. Hat they prepared food and after eating he went to sleep. That at 11. 00pm Nzioka woke him up and when he inquired what the problem was he was told the accused hit Charo Shikadi with a stone. That Nzioka told him to take Charo Shikadi to hospital.

12. That he took Charo Shikadi to Coast General Hospital where he was admitted at midnight. That he remained in hospital upto 3. 00am when he was told to go and look for money as Charo’s condition had worsened. That he arrived at home at 4. 00am and told Nzioka money was required in hospital. That Nzioka made phone call to Charo’s relatives. That he went to work and at 10. 00am he learnt Charo had died. That when he left work at 4. 00pm he went to Makupa police station and recorded his statement.

13. PW4 said that Charo Kombe Yeri and Nzioka were working at the charcoal store. He said he didn’t have a place to stay and Nzioka welcomed him to stay at the charcoal store. He said he had stayed at the charcoal store for 10 years & their relationship was cordial. He said Charo Shikadi was a very calm person and he does not know what transpired between him and the accused that led to the injury that led to death.

14. He said when he was woken up Charo Shikari and Charo Yeri were still quarrelling and he took Charo Shikari to hospital while he was still talking. That the deceased told him it was the accused who inflicted injuries on him. He said he saw the dent on the right side of the deceased head which was bleeding profusely. PW4 said that Charo Yeri found them at the kiosk and they received him as a brother. PW4 said that accused assaulted the deceased for stepping on his mattress while passing to go out for a call of nature.

15. PW4 said the accused sometimes behaved like he had a mental disorder as he quarreled without a cause. He said the accused used to take medicine for mental disorder. PW4 said he was not aware of any differences between the accused and the deceased. PW4 said he was not related to accused who hails from Bamba whereas he hails from Kilifi. He said the accused and deceased were related as their fathers are brothers. PW7 said he had not differed with the accused.

16. PW5 Corporal Anthony Kinyanjui scenes of crime officers testified that on 19/12/2018 at 8. 00am he accompanied Inspector Chai to Coast General Hospital mortuary where he took photographs of the body of Charo Shikari who had been murdered in Majengo area. He took 4 photographs at the mortuary and on 27/12/2018 he visited scene of the incident where he took 7 photographs showing general and close up views of the charcoal and handcart parking yard. He produced the photographs as Exhibits 1(a) to (g) and 2(a) (b), (c) & (d), Certificate – Exp. 3

17. PW7 Dr. Gabriel Mngola produced postmortem report prepared by Dr. Mohamed Naji in respect of the body of Charo Shikari the deceased herein – EXP. 4. Dr. Naji was of the opinion that death was caused by severe traumatic head injury with left parietal subdioral haematohoma secondary to blunt face trauma to the head.

18. When the accused was placed on defence he gave sworn statement and said he was a water vendor and resided in Majengo King’orani. He said the deceased was a son to his elder brother. He said they used to contribute money buy food, cook and eat together. That on 17/12/2018 after they had eaten they went to sleep. He said he spread a cartoon on the handcart and slept. That at 11. 00pm Charo Shikari woke him up and asked for his carton and he told him what he had was his carton. That Charo Shikari went away but returned shortly thereafter with a stick used to pull handcart and wanted to be at him with it but he missed and started running away. He said he jumped from one handcart to another to escape.

19. That he crossed the road and went towards the market. That he then heard noise and when he looked back he saw the deceased stand from the ground and went back to where they used to sleep while wiping blood from his forehead. That PW 3 stopped a tuktuk and went with the deceased. That he went back to where the fight started. That in the morning when he woke up he didn’t find the deceased and Kazungu. That Nzioka told him Charo had been admitted. That Nzioka discouraged him from visiting the deceased in hospital. Accused said that he decided to go to Kanamai to demand for money he had worked for and he had not been paid so he could contribute to Charo’s medical bill. That he didn’t get money and he was told to wait.

20. That while he was at Kanamai PW2 went with 2 young men and told him Charo Shikari had died and he was required to record a statement. That they took a taxi to police station where he recorded a statement and he was placed in cells. Accused said his relationship with the deceased was good prior to 17/12/2018. He said that the deceased could at times contribute money for his meals whenever he didn’t have money. He said he didn’t know what came over the deceased on that particular day. He said the deceased fell while chasing him and that may be how he sustained injury to the head as he hit his head on the cabro. Accused said he didn’t assault the deceased.

21. Accused said there was a time he suffered from mental illness and he was taken to Makadara (Coast General Hospital) and admitted for 6 months. He said he was since recovered but he suffered mental disturbance from time to time. He said the court should consider the case in his favour as he had no dispute with the deceased.

Analysis and Determination 22. In consideration of the evidence of 6 prosecution witnesses and in consideration of the defence of the accused in a sworn statement, this court is to determine whether the ingredients of the offence of murder as provided for under section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.

23. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’

24. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -i.That the deceased died;ii.That the death was caused by an unlawful act or omission;iii.That the accused person directly or indirectly participated in the commission of the alleged offence; andiv.That there was malice aforethought.

25. There is no dispute that the deceased, Charo Shikari, died. It is also not in dispute that he died after the accused herein had assaulted him on 17th December 2018. Evidence of PW1 was that the deceased reported to him that the accused had hit him on the head and he saw the deceased had an injury on the head. PW1 woke up PW4 and told him that the accused had hit the deceased with a stone and instructed him to take the deceased to Coast General Hospital where he died while undergoing treatment.

26. PW2 reported the death to Inspector Paul Chai of Makupa Police Station that his brother had been killed by the accused herein. Investigations were done and the postmortem examination shows that the deceased suffered severe traumatic head injury with left parietal subdural hematoma secondary to blunt trauma to the head.

27. PW4 also said that the deceased was a very calm person and that they had stayed with him in the makeshift house for about 10 years and they had a cordial relationship. He said that when he woke up, the accused and the deceased were still quarreling and when they went with the deceased to hospital, the deceased told him that it was the accused who inflicted injuries on him. Both PW1 and PW4 said the accused assaulted the deceased for stepping on his mattress while going out for a call of nature. It is therefore evident that the deceased died as a result of injuries inflicted on his head by the accused person and it is not true as alleged by the accused that the deceased fell and got injured. The act of the accused person of stoning the deceased on the head was unlawful.

28. Whether the unlawful act committed by the accused person was actuated by malice aforethought, section 206 of the Penal Code defines malice aforethought as follows: -“Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: -(a)an intention to cause the 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 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 intent to commit a felony;(d)an intention by act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.

29. On the element of malice aforethought in respect to section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”

30. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held: -“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”

31. The accused, the deceased, PW1 and PW4 had dinner together and retired to sleep in their makeshift house. They had not differed and there is no evidence that the accused person had planned to cause harm or kill the deceased. Their fight erupted instantaneously when the deceased is said to have stepped on the accused person’s bedding and the accused was not happy with it. It cannot be concluded that the accused intended to kill the deceased as the element of premeditation was not proved.

32. This court finds that the offence proved by the prosecution’s evidence is manslaughter contrary to section 202 as read with section 205 of thePenal Code and not murder under section 203 as read with section 204 of the Penal Code. The accused is acquitted of the offence of murder and convicted of the offence of manslaughter under section 322 of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 19TH DAY OF OCTOBER, 2023. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the StateMr. Masolia Advocate for the Accused PersonAccused person present in personHON. LADY JUSTICE A. ONG’INJOJUDGEMr. Ngiri: We have no previous recordsOrder: Mention on 9. 11. 2023 for mitigation, Victim Impact Statement and Sentence.HON. LADY JUSTICE A. ONG’INJOJUDGE19. 10. 2023