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JudgmentThe Republic VS ABDALLAH DOYO HAMARA8 min read

The Republic VS ABDALLAH DOYO HAMARA

High Court at Mombasa High Court · · Anne Ong'injo


Introduction

  1. The accused Abdalla Doyo Hamara faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code.

  1. Particulars of the offence are that Abdalla Doyo Hamara on the 2nd day of November 2022 at Makaburini Area in Nyali sub-county within Mombasa County murdered Said Ali Hama.
  2. The prosecution called 8 witnesses to support its case that the accused person committed the offence herein and he was placed on his defence. 

Prosecution Case

  1. The prosecution’s case was that vide a report in OB NO. 39 of 2nd November 2022, the accused herein was apprehended by members of public and taken to Mjambere Police Station from where the investigating officer, P.C. Philip Karoney, collected him and commenced investigations.
  2. PW8 said that a knife was recovered from the accused and it was suspected that the same was used in stabbing the deceased. PW8 produced the knife as an exhibit and together with the accused person’s clothes and blood sample from the deceased, he forwarded them to the Government Chemist for analysis. PW8 said that he got information that the accused and the deceased differed and while fighting the accused produced a knife that he was usually armed with and he stabbed the deceased fatally.
  3. PW1, Ali Hama Hamaza the father of the deceased, learnt of the death of the son from Fatuma, his daughter, on 2/22/2022. On 7/11/2022 post mortem was done after PW1 identified the body. PW1 was not at scene of murder and he did not know the accused.
  4. PW2, Michael Nzau, testified that on 2/11/2022 at 9.00 am he got a report that a young man who used to sell oranges at the market had stabbed someone with a knife at the gate of Kongowea market.  He instructed the young men who used to work with him to trace the suspect and he was traced in Bombolulu where boda boda riders escorted him back to Kongowea and he was taken by PW2 to Mjambere Police Station.  PW2 identified the knife that was recovered from accused person. He said he knew the accused who could sometimes behave abnormally and he got worried when he saw the accused walk while armed with a knife. 
  5. PW2 said that when the accused started selling oranges he was carrying the knife and used to react violently and could threaten his customers if they did not pay him for the oranges. He said he sent two (2) young men, Amedi and Mohammed, to apprehend the accused in Bombolulu and they were assisted by boda boda riders to escort the accused back to Kongowea market and to Mjambere Police Station.  PW2 said he was not at the scene of murder and he could not confirm if the deceased provoked the accused.
  6. PW3, Said Komora, also testified that while he was at work at 10.00 am on 2/11/2022 he got a report that the accused had stabbed his brother with a knife.  PW3 knew the accused as Chaplain.  He said the deceased was not of good character and had tendencies of stealing and could attack one without cause.  He said the accused used to go to the market to do casual jobs and used to sell oranges that were not very good.  PW3 said that the accused used to walk with a knife and could threaten people without a cause.

  1. PW3 accompanied PW2 to the police station to escort the accused as members of public wanted to lynch him.  PW3 said that the accused told him he stabbed the deceased who wanted to snatch something from him.   He also said the accused used to behave in a manner one could not understand.  That the accused told him that the deceased used to disturb him.  PW3 was not at the scene of murder and he was not among those who went to trace the accused but he accompanied PW2 to escort the accused to the police station.  PW3 said that members of public snatched a knife that was on the accused person’s waist.   He confirmed that the accused used to sell reject oranges and that the knife he was carrying was meant for cutting sugarcane and oranges.  He also said that the accused could sometimes behave like a person who was mentally disturbed and could talk to himself but whenever given work he could do it very well. PW3 said he did not see blood stains on the knife recovered from the accused.
  2. PW4 said that he learnt that the person who had been killed on 2/11/2022 was his cousin.  He said the suspect was also known to him and he used to walk around armed with a knife which he claimed was meant for cutting oranges but PW4 used to see him sell ground nuts.  PW4 accompanied PW2 and PW3 to escort the accused to police station.  PW4 was also not at scene of the murder. He said accused had the habit of threatening people with the knife. He said he did not know if deceased had differed with the accused.
  3. PW5, CPL Nicholas Katama, accompanied CPL Hudson Luvai and OCS P. Kariuki to scene of murder on 2/11/2022 to scene of murder on 2/11/2022 and found the deceased had died and the body was removed to the mortuary.
  4. PW6, Dr. Magola, produced PM report prepared by Dr.  Zainab who examined the body of the deceased and established death was caused by hemorrhagic shock secondary to incisional cut wound on lower aspects and right abdomen.
  5. PW7, Muridadi Omar, Government Analyst examined exhibits and established that DNA profile generated from blood sample - E matched profile that was generated from the exhibits presented to the Government Chemist for analysis.            

Defence Case

  1. When the accused was placed on his defence, he gave a sworn statement and said that he did not know about the murder of the deceased.   The accused said he had gone to hawk his groundnuts and CDs when sand loaders from Kongowea Matopeni saw him, confronted him and apprehended him. That he was told that he had killed someone. That he was beaten and taken to where the young men worked.  He said that Mohammed got a knife from his sister’s house and dropped it where he was and alleged that he had used it to stab the deceased. That Mohamed kicked the bucket that contained his groundnuts and CDS.

  1. That he was taken to the police station and on the way his trouser that contained his wallet and identity card was taken by Mohamed who left him with only a boxer.  He said that when they got to the station the gate was opened very fast and other members of public restrained from beating him.  He said that he was unconscious when he arrived at the police station and was being dragged on the ground.   That when he regained consciousness he found he was in the cells but was unable to walk.  He said the white trouser which was taken from him did not have blood stains and it was not returned to him.  He said he did not have a black jacket and he did not take the police to his house.  He said the deceased was not known to him and he did not know where he lived. The accused said that on arrest he had Kshs. 20,000/= which was taken together with his groundnuts and CDS.              

Analysis and Determination

  1. In consideration of the evidence of 8 prosecution witnesses and in consideration of the defence witness’ 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.

  1. 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.’

  1. 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;  and

iv. That there was malice aforethought.

20. The fact of death of the deceased is not in doubt.  All prosecution witnesses confirmed Said Ali Hama died and Dr. Zainab who conducted postmortem and filled the post mortem report produced by PW6, Dr. Gabriel Mugola was of the opinions that death was caused by hemorrhagic shock secondary to incision cut wound on lower aspect of the right abdomen. The incision cut wound was said to have been inflicted by the accused although no eye witness testified. The person who gave information that the accused committed the murder did not record a statement or even testify.  However, on arrest of the accused person, the investigating officer forwarded blood sample from the body of the deceased and together with the knife recovered from the accused and the accused person’s clothes to Government Chemist for examination. On analysis, PW7, Mwidadi Omar, established that the DNA profile generated from the deceased person’s blood sample matched the male DNA profile generated from the blood stains on the trouser, white short and black striped jacket.  The accused person denied having known the deceased but he did not give an explanation how he came to have blood stains with DNA profile that matched the DNA profile of the deceased, and yet on arrest he did not come into contact with the deceased whose body was already in the morgue. The Government Analyst Report connects the accused person to the scene of the crime and this court finds that the prosecution has proved that the accused person committed the unlawful act that led to the death of the deceased.

21. Whether the accused person was actuated with malice aforethought, PW3 said that the deceased was not of good character and had a tendency of stealing and could attack without provocations, PW3 said the accused told him the deceased wanted to snatch something from him and that is why he stabbed him.  PW3 also said that the accused used to complain that the deceased used to disturb him.  PW3 alluded to suspicion of accused person’s mental incapacity from the way he behaved although he could execute tasks assigned to him. When arraigned in court, accused was subject to mental assessment and psychiatrist confirmed he was fit to plead. This was confirmed from his engagement with the court and even which he effectively defended himself.

22. From the evidence of PW3 and the investigating officer, this court finds that it cannot rule out the possibility of the deceased having been the aggressor. In the circumstances, this court is not able to find that the accused person was actuated with malice aforethought when he inflicted injuries on the deceased.   He is therefore acquitted of the offence of murder and found guilty for the offence of manslaughter.   He is accordingly convicted pursuant to Section 322(1) of the Criminal Procedure Code. 


    The Republic VS ABDALLAH DOYO HAMARA The Republic VS ABDALLAH DOYO HAMARA