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JudgmentThe Republic VS ALI AHMED BATES AND HESSEIN OMARI12 min read

The Republic VS ALI AHMED BATES AND HESSEIN OMARI

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


Introduction

  1. The accused persons Ali Ahmed Bates and Hussein Omari face a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code.

  1. The particulars are that Ali Ahmed Bates and Hussein Omari on 22nd day of June 2022 at Magram Butchery Area Jomvu Road, off Jomo Kenyatta Avenue in Mvita Sub County within Mombasa County murdered David Ndegwa.
  2. The prosecution called 5 witnesses to support its case that the accused persons committed the offence  of murder. 

Prosecution Case

  1. PW1, Dr. Gabriel Mngola, Senior Medical Officer from Coast General Teaching and Referral Hospital produced post mortem report in respect of the body of the deceased David Ndegwa on behalf of Doctor Salma Mohammed who carried out the autopsy on 6th July, 2022. Dr. Salma’s opinion as to the cause of death was that the deceased died as a result of severe traumatic head injury with massive subdural haematoma and cervical spine injury due to blunt trauma.
  2. PW2, Peter Wambua Kithome, testified that on 22/6/2022 he and the deceased had come from Casablanca at midnight. That at Mwembe Tayari they met with two (2) young men and he knew one of them as Dogo Janja, he said he knew the 2nd person physically. PW2 said that the two (2) people started insulting them and wanted to pick pocket them. That when they reached Magram the 2 people attacked them from behind after emerging from an alley. He also said that the deceased was hit with a rungu and he fell. The the two people they met were carrying Napoleon which they still had at the point of attack at the second place. PW2 said that Dogo Njanja is the one who hit Ndegwa on the head. That the second person wanted to hold him but he managed to slip and escape. That he ran to where they had come from while raising alarm upto Tononoka police station and three officers accompanied him to the scene. At scene they found Ndegwa on the ground bleeding from the nose and mouth. That police officers  called for a vehicle from Makupa which took Ndegwa to Coast General Teaching and Referral hospital where he was admitted. PW2 said that the deceased  died the following day at 11:00 am while undergoing treatment.

  1. In cross examination, PW2 said they had been drinking from 8:00 p.m. to midnight. He further stated that when they met the accused persons Dogo Janja’s companion started insulting them. He said the two started following them but they were not aware they were being followed. PW2 said that they had taken beer and Dogo and his companion had also taken alcohol/beer. He said that he was alone with the deceased when accused persons attacked them at midnight. PW2 said they were attacked in the middle of the  tarmac and there was light.  He further stated that he knew Dogo Janja who lived in Kaloleni which neighbours Tononoka where he lived.   He said he had not differed with Dogo Janja. He said the deceased fell on the tarmac on his back.

  1. In cross examination by Mr. Masolia Advocate, PW2 said that the suspects emerged from Mikma Bar in Mwembe Tayari whereas he and  the deceased had come from Casablanca. He denied that they started commotion at Mikma Bar. He said he saw Accused 2 for the first time that night. He said he did not know if Accused 2 stayed with the first accused.  He also  said Accused 2 did not involve himself in the exchange between Accused 1 and the deceased. He said it was Dogo Janja who was armed with a rungu and he is the one who hit the deceased on the head.
  2. PW3, Chief Inspector Edward Kariuki was the OCS Tononoka on 22/6/2022 at night he was on patrol with P.C. Edward Mwiti and P. C. Rashid Baya when they came across PW2 who was known to them as a carwash attendant near the station. That PW2 ran to them and informed them that he was with the deceased from town when they were waylaid by two people at Jomvu road off Jomo Kenyatta Avenue near Modern Coast Offices and that his friend had been attacked by people known to him. PW2 led them back to the scene and they found the deceased who was also known to them lying  unconscious on the ground and didn’t respond to his name. He said that the victim was bleeding from back of the head and there was blood coming from the mouth and he had also vomited.
  3. PW3 found a broken stick at the scene. He also said that the victims right hand was swollen and appeared broken. He called for a police vehicle from Makupa which took the victim to the hospital. That after leaving the victim in hospital with PW2 he proceeded to the house of Dogo Janja and found him with his friend.   He arrested the two and took them to the police station. PW3 said he learnt the next day at 1:00p.m that the victim of attack had died.

  1. In cross examination PW3 said that the accused persons and PW2 and the deceased knew each other. He said he did not know if PW2 was drunk as his speech was coherent. He said that the accused persons had taken alcohol but he could not tell if they were drunk. PW3 said that they went to accused persons’ house between 2:30 and 3:00 am he said further that PW2 told him that they had differed around Casablanca and the accused persons waylaid them. PW3 said he visited the scene which was in the middle of the  tarmac road and the deceased who lay on his back had an injury at the back of the head. He conceded that the injury at the back of the head could have been as a result of a fall on the tarmac.
  2. PW3 said there was a broken stick at the scene which was produced in court by PW5 as EXP2. PW3 said what he told the court is what PW2 told him. That they attacked the deceased. That Wambua PW2 told him that the saga started at Casablanca and the accused person chased them down the street and waylaid them at an alley which goes to A1 house in Kaloleni. PW3 said that there used to frequent confrontations between the accused persons group and that of the deceased and PW2.   He said the Napoleon brady bottle was recovered at A1 house.

  1. PW4, P. C. Edward Mwiti of Tononoka Police Station testified that on 22/6/2022 he was on foot patrol at 00.30 hours which they came across a young man who reported that they had been attacked and that his friend had been left at the scene of attack. PW4 said he knew the reportee by the nickname Kwekwe. PW4 and his companions proceeded to the scene found Ndegwa lying on the ground and was bleeding. That at the scene they recovered a broken stick which PW2 told them was used to hit the deceased. That as the deceased was taken to Cost General Hospital they went to look for the assailants from their home in Kaloleni. He said PW2 gave them the suspect’s name as Dago Janja and the suspect was known to him. He said he did not know Accused 2. PW4 said that he learnt of the deceased death on 23/6/2023.   In cross examination he said accused persons appeared drunk but PW2 didn’t appear drunk.
  2. PW5, P. C. Mohamed Mapenzi of DCI Urban and CPL Jackline Orionki were assigned the duty to investigate the murder herein. They took over matter from Tononoka Police station and went through the statements to establish what happened. The accused persons were taken for mental assessment and thereafter arraigned in court. According to PW5 the attack was a revenge on the deceased and PW2 who were alleged to have earlier attacked Accused 1 the assailants and Accused 1 sustained grievous harm that resulted in his finger being amputated. He said the two had unsettled dispute. The piece  of stick recovered at the scene was produced as an exhibit EXP2. PW5 said A1 was injured on the finger three days prior to the day of the incident herein. That Accused 1 claimed PW2 and the deceased caused his finger to be amputated. In cross examination by A2’s Advocate PW5 said he was aware the accused persons, PW2 and the deceased had a confrontation outside the pub at Mwembe Tayari before the incident of murder. That the deceased had an issue with A1 and that accused persons waylaid the deceased and his friend in darkness.
  3. PW5 did not interrogate anyone at the pub. He said he didn’t know where A2 resided and he didn’t know if he was a member of the two disputing groups. He said when A1 attacked the deceased, A2 wanted to hold PW2 who managed to slip away and escaped.                                           

Defence Case

  1. When accused persons were placed on defence. A1 gave sworn statement and said that on 22/6/2022 he was with A2 at Mikma Bar from 9:00 p.m. That at midnight the waiters ordered everyone to leave as they wanted to close. He said they were drinking from 9:00 p.m to midnight. That when they were walking to go home in Kaloleni  they reached Memon Villa and saw people coming from the opposite direction. He said they were 4 people. That they were ordered to stop and surrender everything. That one of the people was armed with a panga. A1 said that Accused ran and left him at the scene and he was robbed of phone and Kshs. 2,000/=. That in the course of defending himself he pushed one of the attackers and he managed to escape. He found A2 had already arrived home.
  2. A2 also gave sworn statement and reiterated what the first accused person said and denied having been involved in the death of  the deceased.
  3. The 2nd Accused Counsel filed submissions dated 28/4/24 in which he argued that the prosecution failed to connect the second Accused person to the unlawful act that resulted in the death of the deceased herein.   The court was argued to acquit the second accused person.       

Analysis and Determination

  1. In consideration of the evidence of 5 prosecution witnesses and in consideration of the defence witnesses’ sworn statements, 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 persons were 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.

Death of the deceased

  1. There is no dispute as to the death of the deceased David Ndegwa.      

Whether Death was caused by an unlawful act or omission

22. From the evidence of Dr. Salma Mohammed who examine dead body of the deceased the deceased died as a result of severe traumatic head injury with massive subdural haematoma and cervical spinal injury due to blunt trauma.  From the evidence of Prosecution witnesses PW4 and PW5 there was a confrontation between PW2 and the deceased on the one   part and the accused persons and result the deceased fell on the tarmac and sustained injuries on the head and cervical spinal injury. The evidence adduced points to the fact that the injures suffered were not self inflicted and they were therefore caused by unlawful act.

Participation of the accused in the commission of the alleged offence  

23. PW2 testified that the deceased was hit with a rungu and he fell on the tarmac and sustained the injuries on the head. He identified the first accused person as the one who hit the deceased with a rungu. He also said that the 2nd Accused person did not involve himself in the exchange between the first Accused and the deceased.  It is therefore clear that the unlawful act that caused the death of the deceased was committed by the first accused person.  PW2 said the 2nd accused person attempted to get hold of him but he slipped away and  escaped and A1 confirmed that the A2 left him at the scene as  he was being robbed. Although the accused persons were together at the scene of the crime the evidence of PW2 and the first accused exonerates him from participation of the unlawful act that led to the death of the deceased.

Malice aforethought

24. Section 206 of the Penal Code defines malice aforethought as follows: -

“Malice aforethought shall be deemed to be established by evidence proving anyone 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 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 act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.

25. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -

“There is express, implied and constructive malice.  Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm.  When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”

26. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held:

“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”

27. The accused persons as well as the deceased and PW2 had been drinking from early hours of the evening until at midnight when they met each other in  the street and a confrontation ensued as a result of past occurrence of difference between the two groups. The accused  persons and the deceased as well as PW2 must have been under the influence of the alcohol they have been taking on the material day and night.  There mind must have been clouded by the drink and  could not have been acting with a clear state of mind.  This court therefore finds that the first accuse d person cannot be found to have actuated with malice aforethought in the commission of the murder herein.

28. In conclusion, this court find that the prosecution has proved the lesser offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code against the first accused person.  Accused 1 is found guilty and convicted under 322 (1) of the Criminal Procedure Code.  The 2nd accused person is acquitted of murder and it is hereby ordered that he should be released forthwith unless lawfully detained.


    The Republic VS ALI AHMED BATES AND HESSEIN OMARI The Republic VS ALI AHMED BATES AND HESSEIN OMARI