1.The accused person, Kassim Jamali Ngocho, was charged with murder contrary to section 203 as read with section 204 of the penal code, Cap 63 laws of Kenya. The particulars of the offence were that: the accused on 6th may, 2024, at Aldina Area, Jomvu Sub-County, within Mombasa County, jointly with others before court murdered DUKE ONYANCHA NYANGAU.
2.The prosecution called ten (10) witnesses, and the defence had no witnesses, but the accused gave a testimony.
PROSECUTION CASE
3. PW1- Omuleha Brian, testified that he worked at Aldina Health, and he had worked there for 2-4 months. On 6th May,2024, he received a client at 7:00am who was brought by a bodaboda guy. The bodaboda guy told him that the client had been assaulted by his co-worker. The client was Duke Andeki. He was their first client that day.
4. Duke told PW1 that he was in pain, and PW1 took him for examination. Duke was bleeding from the fontanelle, the top of the skull had a cut wound 4cm long and the depth was under the skull. It was bleeding acutely. PW1 gave him paracetamol intravenously for this pain together with saline fluid as he had bled a lot. The blood ran for about 2 hours and PW1 cleaned his clothes while the good Samaritan called Duke’s boss who said he was far.
5. The client was not unconscious when he came in, but he lost consciousness and PW1 needed to rush him to another facility for a CT scan. The boss eventually came, and he was accompanied by the supervisor, a cousin and a few Catholic sisters. PW1 referred the client to Kiembeni Medical for a CT scan because he suspected possible fractures of the skull and internal bleeding.
6. The client paid his bill which was amounted to Kshs. 16,000 and PW1 wrote the treatment note and dated it 6th May 2024. This was produced in court. PW1 did not follow up after the client left. Two days later, DCI officers came and asked him to record a statement. PW1 gave them the treatment note, and he later found out that Duke had died from haemorrhage. From the physical examination done by PW1, he said he only saw a cut, but he suspected that there was a fracture and that is why he sent him for a CT scan.
7. On cross examination, PW1 told the court that he was the only one who attended to the client when he came to the hospital. He said that the people who came to the hospital later were the boss, supervisor and few other people. He then the accused person -Jamal- with the supervisor.
8. PW2, Polycarp Machanda Akama, said that he was married with children and lived in Aldina Jomvu. He is a bodaboda operator. He knew Duke Onyancha as his client whom he used to carry either to town or Mikindani as he travelled home. He would not take Duke to work as he used to walk because it was near. PW2 knew Duke for a month or so.
9. On 6th May 2024, PW2 was going to the stage, and he passed by Duke’s place of work. He was a guard at Catholic Sisters’ Residence. He found Duke in his uniform talking to his friend who was outside the gate. PW2 went to the stage, got a client whom he took somewhere and, on his way back, he did not see Duke at the gate and so he went back to the stage.
10. After a while, PW2 saw another bodaboda coming from the Catholic Sisters’ Residence. It was carrying the deceased, and it dropped him outside the Catholic Church. Duke called PW2 and told him that he had been hit by his colleague, and he needed to go the hospital because he was bleeding, and he had a lot of blood on his face.
11. PW2 picked Duke and took him to Aldina Medical. He also took Duke’s phone and called his boss. He told the boss that they had gone to the hospital and had met Sister Faith, whom they exchanged numbers. Later the Sister called PW2 and he took another Sister to the hospital. PW2 saw Duke on the subsequent visits, and he was unresponsive and bleeding.
12. On 7th May 2024, PW2 saw a different guard at the gate. He asked him how Duke was, and the guard told him that Duke had died. PW2 only saw Duke’s colleague when he went to record his statement
13.When cross-examined, PW2 said that he had previously chatted with Duke and when he found out that he came from Kisii, so they became friends. He also said that he did not know the bodaboda which brought Duke to the Catholic Church gate, and that they were not allowed inside. He also said that the distance from the church to the Catholic Sisters’ Residence was about 200-300 meters and from the gate of the church to the bodaboda stage was around 20 meters.
14. PW3, Sister Faith Namukulu, testified that she worked at St. Francis Aldina Parish Catholic Church and had been there for 7 months. There were 3 other sisters Assumpta, Eugene and Noviskakin. The compound was gated and near the Catholic Church, it was a two-minute walk to the church. She said that the accused person was one of their security guards. On 6th May,2024 the Sister saw him at 5:15 am when going to church.
15. PW3 next saw the guard in hospital. She did not know what time they used to handover and change shifts. On that day she was still in church when a bodaboda operator came and told her that he had taken one of their guards to hospital and he was in bad shape. The sister called the other sister- Anne- and told her that she was going to see him in hospital.
16. PW3 went to the hospital. She met the nurse and a clinical officer. She was able to identify the guard. He was bleeding from his head, and he was unable to speak. PW3 later went to record her statement. She later received a call and was told that the guard had passed on. PW3 said that she had seen a broken rungu inside, by the gate but she did not examine it for blood stains.
17. PW4, Duke Ondieki, stated that he lived in Tudor, and he works in Manpower Networks Ltd. – as a machine operator. He knew Duke. He was his cousin who worked in Aldina as a security guard. On 6th May,2024, he received a call from his Uncle Pius Onyancha, who told him that he had received a call that Duke was in hospital and unconscious.
18.PW4’s uncle gave him the contact information for the number that called him, and he called the number. It was the doctor treating the deceased. The doctor confirmed that he had the patient by the name Duke Ondieki. PW4 went to the hospital and found the patient. His shirt was bloody, and he could not speak.
19.On cross examination PW4 said that he had not seen the accused person in the hospital. However, he was present for the postmortem.
20. PW5, Mbathi Mumo, stated that he lived in Jomvu Aldina, and he runs a hotel by the name Mbululu. His hotel is near the residence of the Catholic Sisters’. It is about 50 meters away from the residence. He said that he knew the two guards because they would eat at his hotel and their boss would pay on the 15th of each month.
21.On 6th May 2024, PW5 went to work a bit later than usual. As he was making mandazis, one of the guards, specifically the one of Kisii origin, came running into his hotel. This was around 6:47am. He asked of his help. He told PW5 that he had been hit by his colleague. Later, police officers asked PW5 to record his statement.
22.PW6, Dominick Mutua Nyile stated that he lived in Kongowea, and he was the supervisor at Excellent Security Services. On 6th May 2024, Jamal was on night shift and Duke was meant to relieve him at 6am. When PW6 telephoned Duke to confirm if he had relieved Jamal, someone else picked the phone and told him that Duke was unconscious, and he should go there.
23. PW6 called the Director, and they went to the crime scene together. They found Jamal restless, and they replaced him with a 3rd person. Kassim did not receive any treatment at the hospital, when they went there, as he was okay, and he even assisted the doctor in carrying Duke.
24. When cross-examined PW6 said that his recorded statement had an error as he did not state that Kassim and Duke had differences.
25. When re-examined, PW6 stated that he had not brought the records of issuance of having issued one baton at that site, but the records were there.
26.PW7, Ignatius Irungu witnessed that he lived in Tudor and operated a Security Company. As related to the case he produced the guards’ documents. On 6th May 2024, at around 6:45am, PW7 received a call from PW5 who told him that his people had fought, and one got injured and was bleeding profusely.
27.PW7 and PW5 went to the crime scene and found the accused person standing near the road around the place of work. The accused person told them that Duke had provoked him.
28.When cross- examined PW7 said that the rungus were exchanged on Saturdays based on who was on night shift. On the day of crime, Onyancha had called Kassim and told him that he would be late by an hour. He came to hours later and paid Kshs. 100 to Kassim.
29.However, Onyancha had already reported Kasim to the supervisor. When Kassim was leaving, he took his phone from his pocket to call the supervisor. Onyancha then took a rungu and hit him on the back. Kassim took the rungu too and hit Onyancha on his head. Onyancha then ran to the hotel.
30.PW8, Dr Gabriel Nobola, was surgical medical officer working at Coast General Teaching and Referral Hospital. In relation to Duke Ondieki Onyancha, he conducted the post-mortem. He stated that the cause of death was a traumatic head injury with massive sub-haemorrhage.
31. PW9 was PC John Mureithi Nyaga, a Crime Scene Investigating Officer with two-years of experience. On 7th May 2024, he was requested by Awenda to proceed to Coast General Hospital Mortuary where he found the deceased’s body labelled Duke Onyancha Ondieki. He took photographs of the body before the post-mortem was conducted and he produced them in court.
32. PW10 was Sgt Awadh Issa Mohammed, from DCI Jomvu at Mikindani On 6th May 2024, he visited the scene, and the crime scene officer took photographs before the post-mortem was conducted.
33. PW10 was granted 14days to investigate as he had requested the court. During the investigation, he received the employment reports’ for both the accused and the deceased and it was confirmed that indeed the two worked for Excellent Security Services.
34.During cross-examination, PW10 said that he was satisfied that there was a case to be answered.
RULING
The court considered the evidence and was satisfied that the state had established a case against the accused person and was placed on his defence.
DEFENSE CASE
1. The accused person, Kassim Jamal Ngocho testified that he lived in Aldina Jomvu and worked as a security guard. However, he did not recall the name of the security company. On 6th May 2024, he worked overnight. On that day Onyancha, came to work late, at 6:45am. When Onyancha came, he told the accused to leave. He told him that one of the Sisters wanted to have a word him and therefore, he would not leave as he needed to wait for her.
2. At 1:00pm on 5th May,2024, the accused had telephoned Onyancha and asked him if he would allow him to come in late by two hours and he would pay him Kshs. 200 for being late. Onyancha accepted and he was paid the Kshs. 200 when the accused came at 2pm. Before Onyancha left for home that day, his phone was ringing but he would not pick up, even after being asked to do so by the accused.
3. When Onyancha left, the phone of the accused started ringing and on picking, it was his boss who was calling, and he told him that Onyancha had reported him for being late. The accused told the Boss that they had agreed with Onyancha, and he had even paid him a compensation of Kshs. 200 for the two hours he was late. The boss said he would confirm from Onyancha.
4. The following day that was on 6th May,2024, Onyancha reported to work late at 7:45am and when he arrived, the accused person asked him why he had reported him to the boss and if the call he didn’t pick was the one from the boss. Onyancha told the accused person that he was provoking him, and he would not refund him the Kshs. 200 which the accused had demanded.
5. The accused then took a rungu and charged towards him. He held the accused with the left hand and the rungu with the right hand. The accused said that he was angry at Onyancha, and he pushed him and Onyancha fell. Onyancha got up again and he threw his rungu which cracked, and it hit Onyancha’s back.
6. The accused reported the matter at Jomvu Police Station, and he was told to go to Makadara and fill a P3 form and be treated. His boss called him and asked where he was. He was told to go back to work as he was needed. When they went to the hospital, the accused asked Onyancha to tell the boss what had happened but he couldn’t talk. The boss, the supervisor and the hotel owner left the hospital.
THE LAW
1.Article 26 of the constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the constitution or written law
2.Section 203 of the penal code gives the elements of offense murder as follows:
“203. Any person who is of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
1. In the case of republic v W.O.O (2020) eKLR (Migori High Court Criminal No 26 of 2017) the elements of murder were explained, as guided by the court of appeal in the case of Anthony Ndegwa Ngari vs Republic (2014) eKLR as follows:
“For the offense of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. There are: (a) the death of the deceased and the cause of the death; (b) that the accused committed the unlawful act which caused the death of the deceased and the (c) intention
1.Therefore, on the first part, the state had to prove the death, and the accused person committed the acts or omission which caused the death of the deceased thereof.
2.On the first element, on the death this was not hard to prove . The post-mortem report produced by Dr. Gabriel Nobola (PW8) in respect of Duke Onyancha Ondieki which confirmed the same. The body was properly identified and even the accused person does not dispute the death.
Cause of death
1.The post mortem form shows the cause of the death to be traumatic head injury with massive sub-haemorrhage. The injuries are outlined therein and all the witnesses saw the injury which was also documented in the photographs that the investigating officer took. The deceased was alive and ready to start his day shift that fateful morning. So he was in good health.
2. There was no eye witness to the physical encounter as the closest neighbour pw5 was inside his hotel .Both PW2 and PW5 testified that the deceased had told them that, he had been hit by his colleague and they both identified the accused person as the colleague who was with the deceased that fateful morning.
3. The accused person admits that indeed he was with the deceased and the had some argument over the change over and handing over of the duties. The issue had started the previous day when the accused person had delay but had paid the deceased who still reported him to the boss.
4.The accused persons theory is that this argument degenerated into a physical encounter but he pointed an accusing finger at the deceased as the aggressor. He raised the joint defences of self defence and accidental death as he claims that it is the deceased who threw the baton at him accused but it missed him , hit the wall and ricocheted back and hit the deceased.
5. As earlier noted we do not have any direct evidence or forensic evidence against the accused . What we have is the circumstantial evidence and the dying declaration by the deceased. He told both pw2 and pw5 that it was the accused person who hit him.
6.. The accused did not sustain any injury from this encounter and even though he filed a police report , he did not seek nor receive any treatment as he was okay and even reported back on duty. He was angry at the deceased because of the KSH 200 and the report to the boss. When he was asked about his lateness this physical confrontation occurred.
7.I do not for even a moment believe the theory of the ricocheting baton as it would not have had the force to cause the grievous injury that the deceased sustained. The accused person is the one who hit the deceased as per the dying declaration and therefore he caused the injury that led to the death of the deceased.
8.Having found the deceased Duke Ondieki died out of the injuries sustained from the attack by his colleague I am then required to consider his defence. Again I do not believe it was self defence. And I find that the death was unlawfully caused.
9. However, the element of intention was not proven. The accused did not have malice aforethought and did not intend to kill the deceased.
10. The court, therefore, finds the accused person is not guilty of murder contrary to section 203 as read with 204 0f the penal code. He is found guilty of the lesser charge of manslaughter contrary to Section 205 of the Penal Code.
May the soul of the departed rest in peace.
Dated signed and delivered virtually this 14th day of MARCH 2025
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF ;
THE ACCUSED PERSON AND HIS ADVOCATE MR WAIRAGU
MS CHEROP FOR THE PROSECUTION
BEBORA COURT ASSISTANT