The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on 16.6.2018 at Magongo area, in Changamwe sub county within Mombasa County murdered on Thomas Karanja Mwangi
The prosecution called a total of 10 witnesses and produce exhibits in produced their case.
The prosecution case
P1 Maureen Kavata Kanyiri stated that on 16.6.208 at 8.00pm she was at work with accused perspn’s wife, who fell down and they took her to the hospital. She was not treated and they took her to a chemist near Limuru area in Magongo. While the colleague was being treated she stood outside the chemist. That one man came by the name Karanja ( the deceased) arrived greeted his wife who was also in the clinic, but the said wife but she did not want to greet him. The wife asked for a phone, she made a call and after sometime the accused, who is her brother came to the scene. That Accused found Karanja, the deceased standing outside the chemist. THAT the accused hit the deceased on the mouth and on the chest and the deceased fell down. The deceased lay on the road bleeding from the mouth. He was later taken to hospital. She received information that the deceased died.
Pw2 Fredrick Waweru, stated that on 16.6.2018 he saw people gathered near Limuru bar. He went there and he found his friend lying on the ground facing upward. He was informed that he had been beaten by the accused. THAT the Deceased sister came shortly and they took him to Mewa hospital but they were referred to Coast General Hospital. He was informed shortly that he succumbed.
Pw3 Joseph Nyamai’s evidence was that on 16.6.2018 at about 7.00pm, he was walking to Magongo night club. He called the deceased who was his longtime friend and he told him that he was at a hospital. He went there and found the deceased with a sick lady and they proceeded to Wema chemist. They found the deceased wife. The deceased and wife quarreled. He left the pharmacy shortly and when he came back the accused was there shaking with anger. He took the deceased home trying to remove him from the accused who was angry. He left the place but when he came back he was told that the deceased had been injured and was taken to CPGH. He followed them to the hospital but when he reached he found he deceased had died.
Pw4 Nancy Njoki Mwangi, testified that on 16.6.2018 at about 8-9 pm she was called by the deceased’s wife who told her that the deceased was being beaten by the brother (the accused) That she had known that the deceased (her brother) was married to the accused sister but they didn’t have a good relationship. Whenever they disagreed the sister to accused would inform her brother, the accused. And the accused would sometime assault the deceased. She went to the scene and she found the deceased lying beside the road bleeding heavily from the mouth. They took the deceased to Mewa hospital and later to CPGH where he died.
Pw5 Austine Mwashegwa mkoo, stated that on 16.6.2018 at about 9.00pm he was going home he passed warm pharmacy to buy medicine. He found the deceased wife there and greeted her. When he went outside he found the deceased and he greeted him. The deceased entered the clinic and after a few minutes he run outside. The accused also came out of the chemist running chasing the deceased. That the deceased ran to pick a stone and the accused went back to the chemist. Suddenly the accused hit the deceased at the back of the head with a fist and he fell down on a stone. The deceased stared bleeding from mouth and ears. The accused thereafter disappeared. The deceased was taken to the hospital and the following day he was told he had died.
Pw 6 Gerald Chege John, stated that he was informed that the deceased had been beaten by his brother in law, the accused. He was later informed that the deceased had died while he was at CPGH. He made a report to Changamwe police station and led the police in arresting the accused.
Pw10 the doctor, testified that the post-mortem was performed on the body of the deceased on 20.6.2018 and the cause of death was determined as a severe traumatic head injury with massive epidural and subdural hematomas secondary to assault.
RULING.
The accused person was found to have a case to answer and was placed on his defence under section 306 of the Criminal Penal Code.
Defence case
The accused person denied having assaulted the deceased. He however admitted that they had and encounter with the deceased that fateful evening in at the Warm clinic where he had taken his sick sister Mary Kwamboka, who testified as Dw2. Dw2 described the deceased as the father to her children. They were then living separately. She confirmed that indeed she had called the accused person to the clinic and the deceased met them there. That the deceased person started insults, and she telephoned his sister, Nancy Njoki Mwangi ( Pw4) . Indeed Pw4 confirmed that Dw2 telephoned her and reported the disagreement and she tried to call her brother (the deceased) but her calls did not go through.
This encounter was also confirmed by Pw3 (Joseph Nyamai ) who testified that the deceased and Dw2 quarreled and he took the deceased to his mother’s place before going back to find the accused person at the clinic.
The accused person says that he was attending to his sick sister and it is the deceased who started hurling insults at the sick sister. When he told him to stop, the deceased picked a stone and threw at him. That the clinic owners were concerned that the panes would break and he went outside so that the window panes do not break.
That the deceased person threw a second stone and he again evaded. That when the deceased person picked the 3rd stone he, accused, decided to move close to him as to subdue him. That he jumped the deceased who fell on a stone outside of the road. That they both fell down and he went to the police to report. Analysis and Determination
- Considering the testimonies of both the prosecution and defence it was now upon this Honourable Court to determine whether or not the offence of Murder had been proved beyond reasonable doubt.
- 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. The accused person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased. Section 203 of the Penal Code provides the elements of the offence as follows: -
“ 203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
- In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal 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 offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”
THE DEATH
The death is not disputed. Nevertheless, the post mortem form P EXT 23 A confirmed the same.
The report records the following injures ;
Externally – Two branulas on both upper limbs in situ. Facial swelling and bilateral periorbital smelling - Multiple bruises (Abrasion) on the both upper limbs internally the pathologist noted.
Biparietal scalp hematoma, occipital scalp hematoma massive subdural and epidural hematomas, Prominently on the right side intracerebral hemorrhage with brain edema. Fracture base of the skull. The doctor concluded that the cause of death was severe traumatic head injury with massive epidural and subdural hematomas secondary to assault.
From all the evidence, the death was proved.
CAUSE OF THE DEATH
As noted above, the accused person admits that they had a physical confrontation with the deceased that material night. His defence, is that he did not assault him but the deceased person fell a stone as he , accused, was trying to subdue him.
The state called two witnesses who say they witnessed the incident . Pw1 testified that when Dw2 called her brother ,the accused , he came and hit the deceased chest twice while he, the deceased, was leaning against the door of the chemist which opens outwards. That when the deceased was hit the second time, he fell down. That was when she pointed her torch at him and saw he had been injured. That the instance took place at a dark place.
Pw5 and the other hand said he was also standing outside the chemist. That he saw Karanja, the deceased, running out of the chemist and the accused person was chasing him. That Karanja ran to a distance and picked a stone. That Karanja went back into the chemist to look for the accused person and the accused person hit Karanja at the back of his head with a fist. That Karanja was hit by the accused person and he feel on a stone. That there were street lights and at the scene and electricity light .
This issue of light is one great discrepancy in the evidence of the 2 key prospection witnesses. Pw1 says the place ws dark, such that she had to use her torch to see the deceased, whilst Pw5 says there was light. Which was which?
The other key discrepancy is the sequence of events.
Pw1 says the deceased person was standing at the door and the accused person arrived and hit him twice on the chest. Pw5 on the other hand, introduces the aspect of a chase from inside the chemist, the deceased picking a stone and going to confront the accused person, after which the accused person hit the deceased on the back of the head and he , deceased fell.
Clearly we do not have a proper sequent of events by the state but the wholesome picture, is that the accused person and the deceased were engaged in a physical confrontation and the deceased fell down and sustained some injuries on the scalp which led to his death. The accused person admitted that he lunged at the deceased who then fell. So we can safely conclude that his shoving the deceased led to the injury on the head which caused the death hence the second element was proved.
INTENTION
This being a murder charge, the prosecution had the onus to prove mens rea and actus reus. The actus reus has been established. The mens rea of murder is traditionally called malice aforethought and it connotes existence of culpability or moral blameworthiness on the part of the accused person.
On the element of malice aforethought, the prosecution must prove beyond reasonable doubt that the accused intended to cause the death of the deceased. Malice aforethought is defined and well explained under section 206 of the Penal Code as follows:-
“Malice aforethought shall be deemed to be established by evidence proving 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.”
- The Court of Appeal in Bonaya Tutu Ipu & Another Vs Republic [2015] eKLR stated as follows on the prove of malice aforethought; - “It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances.
- Further in the persuasive decision of Chesakit Vs Uganda, CR. app. no. 95 OF 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex v Tubere s/o Ochen [1945] 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue: It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick.
In this case,the accused person was known to the deceased who was in unstable relationship with his sister , Dw2. On this particular day Pw2 and PW5 confirmed that indeed, the deceased confronted Dw2 who was sick That he Pw5 even took him, the deceased ,to his mother’s house so as to diffuse the situation but somehow, the deceased person found his way back to the chemist, where this fatal confrontation took place.
There was some evidence that the two had had previous encounters. The accused person blames the deceased person whom he says was abusive to his sister, Dw2 . Indeed Dw2 called even the sister to the deceased Pw2, who confirmed that the deceased and DW2, had issues which were reported to her that particular night. Taking ALL the evidence into account, I find that the accused person did not have the intention to either cause the death or grievous harm to the deceased.
Pw5 confirmed that indeed the deceased was armed with a stone and the deceased followed the accused back into the chemist. There was even mention that the deceased as intoxicated. This would point to him as the aggressor who even returned back to the scene after being taken home by PW5, whose evidence gives some weight to the version given by the accused person. That he , ACCUSED, was only trying to subdue the deceased who had not only become a nuisance to the sick sister, Dw2, but was also hurling stones at the clinic causing an alarm to other people.
Under the circumstance it would not be safe to convict him of the offence of murder. In as much as the physical confrontation caused the death of the late Karanja, we cannot infer any malice OR intention to kill or cause serious harm. It is also noted that the accused person was not armed and the deceased who was intoxicated was the aggressor.
Further, In this case, there is no evidence of repeated blows. This factor leads me to believe that the shove was an isolated one probably without any malice aforethought on the part of the Accused. In other words, it was likely that the Accused did not intend to kill the deceased but intended simply to immobilize him and forestall the confrontation.
16) The evidence as adduced by the prosecution established beyond reasonable doubt the act of unlawful killing of the deceased by the accused person herein without malice aforethought. Sections 179 of the Criminal Procedure Code stipulates:
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but he remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”
17) As a result, Accused is found guilty of a lesser charge of manslaughter contrary to Section 202 (1) of the Penal Code as read with Section 205 of the Penal Code and is convicted accordingly.
DATED SIGNED AND DELIVERED THIS 31ST DAY OF OCTOBER 2024.
WENDY KAGENDO JUDGE
IN THE PRESENCE OF
THE ACCUSED PERSON AND HIS ADVOCATE MR WACHENJE
MS MAINA FOR THE STATE
BEBORA COURT ASSISTANT