[2022] KEHC 1528 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

CRIMINAL CASE NO. E009 OF 2020

CORAM: HON R.E. ABURILI J

STATE....................................................................................................PROSECUTION

VERSUS

NELSON MBILU OKONDA.........................................................................ACCUSED

JUDGMENT

Introduction

1. The accused, Nelson Mbilu Okonda is charged before this court with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63 of the Laws of Kenya). The particulars of the Information dated 14th December, 2020 are that on the 26th day of November, 2020 at unknown time at Marenyo sub location in Yala Township location within Gem Sub county of Siaya County he murdered one, Brown Indimuli.

2. The accused person denied having committed the offence, and a plea of not guilty was entered. The prosecution called seven (7) witnesses whose evidence is summarized below.

3. PW1 Maurice Andeta Oyoko testified that he worked with Luanda Security and Courier Services as a Security controller while the accused, Nelson Mbilu Okonda, also worked there as a security guard. It was his testimony that in November, 2020 he was assigned at Wasanga’s Residence in Marenyo and that on the 26. 11. 2020 at around 7. 55 p.m. while he was in the control Room, he received a call from the accused saying he had been invaded by a group of 4 or 5 people, one of whom was a shamba boy in the residence, one Brown Indimuli (the deceased).

4. PW1testified that the accused told him that he denied the invaders access to the residence because he only knew Brown Indimuli and that in the process of restraining them, Brown threatened to beat him (Nelson) with a hoe and in response, he, Nelson, knocked Brown down and the rest of the intruders ran away as Brown fell down unconscious so the accused locked the gate and continued with his work as Brown lay down unconscious.

5. PW1 testified that he called his supervisor Shem Mutuli who was alone on a motorbike working in the Southern Zone – Riat, Kisumu. It was his testimony that he did not visit the scene but that he later learnt that the scene was visited and Brown was found to be dead. He further testified that when he received the call from Nelson, he recorded it in the occurrence Book. He identified Nelson Mbilu as the accused in court in the dock.

6. In cross-examination PW1 stated that from the telephone conversation with the accused, the accused indicated to him that his life was in danger so he advised him to lock the gate and stay inside. It was his testimony that the accused told him that the people were intruders and that he could not tell their intentions and further that the gate was open when the people invaded him and he was trying to restrain the intruders from entering the compound. He further stated that the accused used to do his work well and that he had received no complaint from the clients where the accused served as a guard. PW1 testified that they armed their security guards with bows and arrows and a baton.

7. PW2 Shem Mutuli a security Supervisor at Luanda Security and Courier Services testified that he knew the accused Nelson Mbilu. It was his testimony that on 26. 11. 2020 at 9 p.m. he had been on assignment at Riat when he received a report of an incident at Yala, Marenyo. It was his testimony that curfew time was approaching so he said they would handle the issue at 4 a.m. He further testified that he went to pick his boss Mr. Otenyo at 4 a.m. and they proceeded to Marenyo where they had a client whom they had assigned a security guard.

8. PW2 testified that on arrival, Mr. Otenyo called Nelson the security guard to open the gate for them and as the gate was opened, they lit a torch and saw a person inside the gate lying down. He testified that Nelson told them that the person lying down was one of the people who had invaded him and who had been knocked down. It was his testimony that he decided that they report to Yala Police Station which they did and the Police accompanied them to the scene. He testified that they did not meet any neighbours.

9. It was his testimony that the deceased was lying on his back and when the Police lifted him, blood oozed from his chest as if he was stabbed. The body was escorted to the mortuary.

10. In cross-examination, PW2 testified that he received the report of an intrusion/Invasion at 9. 30 p.m. at Yala from the controller. He further stated that he was on his way from Riat in Kisumu. It was his testimony that on arrival they found the gate locked and the body of the deceased lying inside the compound. He further stated that he did not try to call Nelson that night and further stated that he had worked for this company from 2020.

11. PW2 further stated that his boss asked the accused what happened and Nelson said he found the deceased lying down when he returned from routine rounds. It was his testimony that the area supervisor was called Tuti and that in that area they only guard that homestead but that they have other clients in other zones. PW2 admitted that he did not know the security issues in that area.

12. PW3 Dickson Otwenyo a Branch Manager of Luanda Security and Courier Services testified that on 26. 11. 2020 at about 8. 20 p.m. he received a phone call from the officer to the effect that a guard Nelson Okonda had fought with the shamba boy of their client Wasonga. He testified that he called Shem Mutuli (PW2) who was in Riat but because it was late, Shem picked him at 4 a.m. and they went to the home of Wasonga.

13. It was his testimony that he called Nelson who told him where he was and further advised PW3 to use the other gate.PW3 testified that they proceeded on a motor bike and on arrival they saw a person lying on the ground. It was his testimony that he told Nelson that they proceed to the Police Station which they did to Yala Police Station where Shem and Nelson reported the incident.

14. PW3 testified that they were given Police Officers who went with them to the scene and on the Officers lifting the deceased who lay on his back, blood came out of his chest as if he was pierced. He further testified that the police took the body of the deceased to the mortuary and that he later recorded his statement with the police. PW3 identified Nelson as the accused in the dock.

15. In cross-examination, PW3 stated that he received a call from the controller, Morris Andeta at 8. 20 p.m. who told him that Nelson had called him and informed him that he had fought with the shamba boy who was with other people. He stated that he had worked for the security company since 2014 and that there was insecurity in the area where they had provided the guard as it was porous.

16. PW3 further stated that he knew the home of Wasonga very well and that there were no special things there and that only the guard and shamba boy lived there. He admitted that he was not aware of any bad blood between the security guard Nelson and the shamba boy. He further stated that the owner of the home called their office and not him of what had transpired.

17. PW4 Aloyce Ogot Obiero a resident of Marenyo in Yala testified that on 26. 11. 2020 at about 8 p.m. he was in his house with his wife and children when he heard calls “jirani jirani, jirani.” He he got out of his house and rushed to his neighbour’s homestead where he saw a person, the employee of that home, had fallen down.

18. PW4 testified that he moved close and saw the said employee lying on the ground and upon asking him what had happened, no response was received. It was his testimony that the home had a gate so he could not enter but saw him from outside the gate so he left him and went to his house. He testified that the following day at about 8 a.m., he was taking tea in his house when he saw police officers come by and they called him to the scene where he went and explained to them what he heard during the previous night.

19. In cross-examination, PW4 stated that he had been a neighbour to the home where the accused worked for over 50 years and that he had known the accused for close to five years. He further testified that the deceased also worked at the home for close to 2 years and that he was familiar with the deceased’s voice.

20. It was his testimony that it was the deceased who called out “jirani, jirani, jirani.” He stated that he did not hear any other noise at the scene and that he did not see the accused. He further testified that the deceased was a habitual drunkard and he used to come home late. PW4 further testified that when he went to the scene, the gate was closed. He stated that he saw the deceased from outside the gate which was locked and that he did not call out on the accused.

21. PW5 Dr. Mbeki Mervis a medical officer at Siaya County Referral Hospital carried out the post-mortem on the deceased’s body and prepared the postmortem report for Brown Indimuli dated 30/11/2020 at 2 pm at Yala Sub County Hospital.

22. It was her testimony that the deceased’s body was naked, of a male, African, aged 50 years of good nutrition and physique and a height of 5’8’. She stated that the body was well preserved and embalmed. PW5 testified that externally, there was a stab wound 5 cm long on the 3rd rib, 2 cm from the medial sternum and that there were bruises on the right hand, all over the face and head. She further stated that there was a continuous strangulation mark all around the neck.

23. PW5 testified that internally, there was a fracture of the third rib 3 cm on the right medial sternum and that there was fluid mixed with blood within the pleural cavity of the right lung. All other systems were intact.

24. As a result of the examinations, she formed the opinion that the cause of death was hypoxia secondary to strangulation. She signed the Death Certificate No. 1556398 and produced the postmortem report as PEx1.

25. In cross-examination, PW5 stated that she signed the postmortem in which her name was not indicated, but only her signature provided. She stated that the body was identified to her by the father and son to the deceased who showed her their National identity cards. She could not tell if there was a fight or if the injury was self-inflicted.

26. PW6 Peter Wasonga Omollo testified that the deceased was his employee whom he had employed as his livestock manager while the accused was his guard. It was his testimony that on the 26/11/2020 at around 6 pm he received a call from the accused that the shamba boy had not contributed to their dinner budget but he responded by telling the accused to settle the issue.

27. PW6 testified that later at 6. 15 the accused called him saying Brown Indimuli was rude and wanted to fight him so PW6 told him that he-PW6 would come home over the weekend. He testified that he tried reaching the deceased but it was in vain. It was his testimony that at 7. 15, the accused called him saying that he had fought with the deceased and that he had injured the deceased so the accused had gotten scared and had ran out of the homestead.

28. PW6 stated that he called and notified a neighbour who went and checked and called PW6 saying the deceased had called out on the neighbour but that when the neighbour responded to the call and went to the scene, he found the deceased lying down at the gate and non-responsive so the neighbour assumed that the deceased was drunk. PW6 further testified that at 9. 15 pm he received a call from Luanda Security firm who told him that Nelson had fought with the deceased and injured the deceased who was unconscious so Nelson was Scared and switched off this phone and that they would go the scene the following morning.

29. It was his testimony that the following day at 8 am, the Luanda Security called him saying his herdsman was dead and the police had taken away the body and so the security firm had left another guard at the farm to guard his home. He testified that Nelson had been guarding his home for about a year. He identified Nelson in court as the accused in the dock. He further stated that the accused and deceased had been having some minor disagreements.

30. In cross-examination, PW6 stated that the deceased used to drink and come home drunk and that the guard was strict. He stated that he did not now that the deceased had a drinking habit and only discovered this when the security guard informed him of the same. It was his testimony that he knew the deceased because he used to work in Ruiru, feeding livestock there so PW6 he employed him from Ruiru.

31. It was his testimony that the deceased had worked for him for about 10 months while the guard had worked for him for over a year. It was his testimony that there was no grudge between the two and further that he was not aware of any group, or friends of the deceased who used to come home.

32. PW6 testified that the deceased was retrenched then PW6 employed him and that he, the deceased, had a family which resided in Ruiru. He stated that he had never had any prior complaint about the accused but he knew him to be quiet and strict.

33. PW7 No. 113559 PC Collins Kemboy from DCI Gem testified on behalf of PC Stanley Njenga the initial investigating officer who was unable to attend court as he was on transfer to Gatanga and had matters before Muranga High Court.

34. He testified that having perused the investigations file on what transpired, the information in the police file was that on the 27/11/2020 PC Njenga received a call from CIP Tarus to accompany officers from Yala to a scene of Murder at Marenyo village. He further testified that they left with guards from a courier security firm who had reported the Murder which took place at a home where Nelson Mbilu Okonda, one of their guards was stationed and upon reaching the home of Mr. Wasonga, they found the body of the deceased Brown Indimuli lying at the gate.

35. It was his testimony that upon interrogation, the accused stated how the deceased went to the residence with other people, while drunk then quarreled with the accused, they fought and the deceased sustained fatal injuries. PW7 testified that the scene was visited, no physical injuries were seen but there was blood in the deceased’s mouth.

36. PW7 testified that on the same day, the owner of the homestead where the death occurred reported that he was away but that he had received a phone call from the accused who informed him how the deceased refused to contribute money for food and that he arrived while drunk and attacked the accused as a result of which the deceased had died.

37. He further testified that on the 28/11/2020 the initial investigating officer went to the Luanda Security and Courier Services Ltd and recorded statements of guards who were on duty that day and recovered an OB for the material day and found out that at 7. 55 pm on 26/11/2020, a report was made vide OB No. 70 where the accused reported that the deceased Brown Indimuli who was the farm hand had threatened to beat the accused after the accused stopped the deceased from entering the compound with strangers.

38. PW7 stated that the report revealed that the deceased was armed with a hoe which he wanted to hit the accused with and that in self defence, the accused injured the deceased badly, and locked him in the compound fearing that the friends of the deceased might retaliate. PW7 produced the OB No 70 as PEx2.

39. PW7 further stated that after witness’s statements were recorded, the accused was arrested and escorted for mental assessment where he was found fit to stand trial. He further stated that post-mortem on the deceased’s body was conducted and the accused was charged after the ODPP sanctioned the charges. PW7 identified the accused as the one before court.

40. In cross-examination, PW7 stated that from the Investigations file, there was no indication of prior disagreement between the accused and deceased and further that there was no suspicion of foul play between the accused and other people. He stated that they arrested the accused because he himself called the employer of the deceased telling him of the fracas that they had with the deceased leading to the death of the deceased.

41. Placed on his defence, the accused was explained to his rights under Article 50(2) (i),(j) and (l) and the provisions of section 302(6) of the Criminal Procedure Code and he elected to remain silent.

42. Mr. Mshindi counsel for the accused person relied on the submissions dated 13. 2.022 and filed on the 14. 2.2022. He submitted that the evidence adduced pointed towards manslaughter and not murder. According to counsel, the ingredient of malice aforethought was not proved as the accused and the deceased fought as was confirmed by the testimony of PW1-4 & 6. He further submitted that from the evidence, there was no grudge nor was there foul play to show malice aforethought on the part of the accused who co-operated with the police and kept calling his employers and updating them on what was happening.

Analysis and Determination

43. I have considered the evidence adduced by the prosecution witnesses. The accused person elected to remain silent which is his constitutionally guaranteed right and no adverse inference can be made because the burden of proof lies throughout the trial upon the prosecution to prove its case against the accused person. The standard of proof is beyond reasonable doubt such that even if the accused person remains silent, the evidence adduced should be sufficient enough and watertight to sustain a conviction for the court to convict an accused person.

44. Sections 203 and 204 of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. The sections require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased and that he had malice aforethought. The sections provide as follows:

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

204. Any person who is convicted of murder shall be sentenced to death.”

45. For the offence of murder to be proved to the required standard of beyond reasonable doubt, there must be proof of death and its cause, there must be proof that the death was caused by an unlawful act or omission and that it was the accused who caused that unlawful death and with malice aforethought.

46. Malice aforethought is established if, pursuant to section 206 of the Penal Code, evidence proves any one 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 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)An intent to commit a felony;

(d)An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

47. Where none of the aforesaid elements of malice aforethought are proved but there is proof of an unlawful killing of another human being, the person commits the felony of manslaughter which is a lesser offence of murder as created under section 202 Penal Code which is punishable under section 205 Penal Code by a term of imprisonment extending up to life.

48. I have carefully considered all the evidence adduced in this case as set out above. It is not in doubt that the accused was in a scuffle with the deceased, which scuffle resulted in the deceased’s death. This is evidenced in the testimonies of the prosecution witnesses PW1 who testified that the accused called him and detailed his scuffle with the deceased to him that led to the deceased lying unconscious on the ground. This testimony was corroborated by that PW2, 3 and 6. PW5 who carried out the deceased’s post-mortem confirmed that the deceased’s cause of death was hypoxia due to strangulation.

49. Accordingly, it is clear from the evidence that the deceased died which death was confirmed to have been caused by hypoxia due to strangulation as per the post mortem report produced as PEX 1, by PW5 Dr. Mbeki Mervis. Further, from the testimonies of PW1,2,3 and 6, it is evident that the deceased’s death was unlawfully caused as there was no evidence that he strangled himself. There is also no evidence of absolute self- defense or defence of person or property. I am further satisfied that the unlawful killing of the deceased was caused by the accused as the testimonies of PW1,2,3 and 6 was unchallenged that the accused called out on his employer the owner of the house that he guarded as well as the security firm and informed them of the scuffle he had had with the deceased who had become unconscious. That evidence is not a confession but evidence of information given by the accused person to other persons in the ordinary course of business.. This is because the accused person upon making a report to his employer the security firm of his scuffle with the deceased as per Pex 2, which is an Occurrence Book for Luanda Security and Courier Services Limited, his report was booked as reported on 26th November, 2020 at OB No. 70 at 1955hrs where an entry was made stating as follows:

“Date: 26/11/20 OB No. 70 Ref No. CR/27/11 TIME: 1955 Nature of Occurrence: REPORT/WESONGA MARENYO-Golf Nelson Okonda reports of an incident where the shamba boy Mr Brian Indimuli threatened to beat him after he (Okonda stopped him(Brian) from entering the compound with strangers. Brian had a hoe which he wanted to use to beat Okonda with, in the entanglement as Okonda was defending himself and his assigned duties, he happened to injure him badly. Thereafter, he locked Brian inside while unconscious and went outside the compound fearing that Brian might call his friends to retaliate on Okonda. Following this, I advised him to report the matter to the police but he said its far. I told him to make sure he gets back into the compound. Then early tomorrow morning he should be visited by the bravo Mike and Shem Mutiuli to effect recording of statement to the police and resolving the matter.”

50. From the above OB report in PEX 2, it is clear that the accused person made a voluntary report to his employer on what had transpired at the home where he was the guard. In my view, therefore, only one question arises in this case: whether, in the circumstances of the scuffle presented in this case, the accused can be said to have had the mensreaof killing the deceased who was his co-worker at PW6’s homestead.

51. The evidence of PW1 was that the accused called him and told him that the deceased was trying to force his way into the homestead with strangers which the accused resisted leading up to a scuffle between the accused and the deceased which resulted in the deceased sustaining the fatal injuries. PW1 testified that the accused reported to him that the deceased whilst armed with a head hoe threatened to beat him but he, the accused, knocked him down.

52. It was for the prosecution to show that there wasmensrea for murder no matter the circumstances. From the evidence adduced, I am unable to find any evidence of malice aforethought against the accused person. However, I am satisfied that the prosecution has proved beyond reasonable doubt the elements under section 202 of the Penal Code. That is to say, that the accused unlawfully killed the deceased by using excessive force to prevent the deceased from accessing the compound of their employer with strangers. From the nature of injuries sustained on the body of the deceased, it is clear that he was strangled in the process of being subdued.

53. The prosecution having failed to prove malice aforethought on the part of the accused, a conviction for murder cannot be sustained. I therefore find the accused person Nelson Mbilu Okonda not guilty of the offence of murder. I however invoke the provisions of section 179 of the Penal Code and make a finding that the prosecution having proved the lesser offence of manslaughter against the accused person, the accused person Nelson Mbilu Okonda is hereby found Guilty of and is hereby convicted of the offence of manslaughter contrary to section 202 of the Penal Code. Sentence after records and mitigation and a presentence report.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 15TH DAY OF MARCH, 2022

R.E. ABURILI

JUDGE