[1992] KEHC 103 (KLR)
The court found that the evidence of PW1, who recognized both accused at the scene under moonlight and led police to accused 1's house the same night, was credible and consistent. Although the identification was not corroborated by other witnesses, the court was satisfied that the recognition was reliable given...
Source-derived case information.
- Citation
- [1992] KEHC 103 (KLR)
- Parties
- Defendant: Tom Piemo Ombura; Defendant: Shikudhani Ajwang Rumaya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 44 of 1991
- Procedural Posture
- Criminal Case / Judgment
- Outcome
- convicted and sentenced to death
- Judges
- JA Mango
- Legal Topics
- Murder, Identification Evidence, Common Intention, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Piemo Ombura
Defendant
Shikudhani Ajwang Rumaya
Defendant
Republic
Respondent
Procedural Posture
Criminal Case / Judgment
Legal Issues
- 1 Whether the accused persons were properly identified as the perpetrators of the murder.
- 2 Whether the prosecution proved the charge of murder beyond reasonable doubt against both accused.
- 3 Whether the doctrine of common intention applied to the accused persons in the commission of the offence.
Ratio Decidendi
The court found that the evidence of PW1, who recognized both accused at the scene under moonlight and led police to accused 1's house the same night, was credible and consistent. Although the identification was not corroborated by other witnesses, the court was satisfied that the recognition was reliable given PW1's prior knowledge of the accused. The court rejected the accuseds' denials and alternative explanations as implausible. It held that both accused were present and participated in the attack, acting with common intention to use force, which resulted in the death of the deceased. The court concluded that the prosecution had proved the charge of murder beyond reasonable doubt...
Court Disposition
convicted and sentenced to death
Orders
- Each accused is convicted of murder as charged.
- Each accused is sentenced to death in a manner authorized by law.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
CRIMINAL CASE NO.44 OF 1991
TOM PIEMO OMBURA …………)
SHIKUDHANI AJWANG RUMAYA ………………. ACCUSEDS
VERSUS
REPUBLIC ……………………………………………. PROSECUTOR
J UD G M E N T
Tom Piemo Ombura and Shikudhani Ajwang the 1st and 2nd accused are jointly charged with murder C/S 203 and 204 of the Penal Code. The particulars are that on the 15th of November, 1990 at Njiru Village in Embakasi within Nairobi Area, they jointly murdered Loiyangomoy Lothirim Alila.
The deceased with his friend James Ichoicha were returning home from a drinking spree. The date was 15/11/190 and the time about 11 p.m. they were suddenly set upon by a group of three who beat the deceased unconscious. They stubbed him well. It was a moonlight night and two of these attackers who disappeared when they heard someone noises, were known to Ichoicha PW1 before this date. PW1 saw them and he recognized them. Police were later called to the scene but it was too late for them to help the deceased. He had either died or died very shortly after their arrival.A Post-mortem examination was performed on the body of the deceased and he was found to have been a male African aged about 36 years. He had a deep wound on left side of the stomach 4cm/2cm/6cm and the case of death was found to be massive Haemopertitoneum due to rupture of the Spleen and Pancreas consistent with a sharp object. Murder it was the Post-mortem confirmed it.
The same night of the attach, Ichoicha PWI, led the Police Officers to one house in the vicinity to which one person was arrested – the 1st accused PW1 said that this was one of the attackers. Later that morning he identified another one at the Police Station – accused number 2 whom he said was another of the attackers. He said these two known to him before the date of the attack. The two were finally charged with the murder of the deceased.The two gave evidence in the defence. They denied completely having anything to do with the murder. Accused 2 said he was at the scene with accused No.1 at the time of the fight. He called it a fight. Accused 1 was fighting three people and he was trying to persuade them to stop. They didn’t. At the end of it accused 1 ran off and later accused 2 followed him to his house and asked him why he had to leave him behind. Accused 1 answered to tell him the reason the next day. Accused 2 otherwise says he is innocent of the charge. It was nighttime – 11 p.m. Ichoicho says there was moonlight and he could see the attackers quite well. He knew the two before. Recognition is different from identification but still it would be rampant with sequence if the conditions are not conducive to proper identification.The point here is that PWI led police to house of accused 1 the same night and pointed out the 1st accused. It is not corroborated but it is consistency of the P.W.1’s evidence to this effect and his doing so from the witness box corroborate P.W.I’ evidence with respect to accused No.1. It is however very weak corroboration or evidence that cannot be acted upon on its own to find conviction. It doesn’t however, stand alone. There is the evidence of P.W.1 of recognition, which I acc find that p.w.1 was mistaken in his recognition. The result is that I find the two accused to have been at the scene on the night of the incident. Inchoicho doesn’t say that he was in a group of three fighting accused 1 while accused 2 looked on and I do not believe this from accused 2. Whatever the accused and their friend who was never found intended to do. I find that they were both present and taking part in the fight.It was most likely an intention to hit in which they were ready to use force if it became necessary – a common intention and so the act of one was the act of the whole group. They used excessive force and killed one of the victim.
I agree with the assessor in their verdict. Mine in also murder. I commite each of the accused as charged. Coram: Mango (J)
Miss Munga for State
Both accused – Mrs Matesi for both
MUNGA: 1st offender.
Mrs Matesi: Nothing to say.
J. MANGO
JUDGE
Court: Each Sentenced to die in a manner authorized by the law.
J. MANGO
JUDGE
13/10/1992
M/S Twayler Matasi
Please pay as claimed amended Shs.2640/=
Date 4/11/1992