1. Ezinah Moraa Morara alias Jerusha is charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the offence are that on the 12th day of March 2022, at the Kenuchi village, Muma sub-location, Etago Sub County of Kisii County murdered Philip Morara Onchieku.
3. Philip Morara Onchieku, the deceased, loved alcohol. Evidence was adduced that it was very rare for him to be found sober. When he was drunk, he became violent to his family. On the material day, he picked a quarrel with his daughter, the accused, and he was fatally injured in the process.
4. The accused contended that the deceased had attacked her and hit her on the chest but denied that she was the one who inflicted the fatal injury on him.
5. The issues for determination are:
a) Whether the accused inflicted the fatal injury on the deceased;
b) Whether the accused acted in self-defence; and
c) Whether the prosecution proved their case against the accused.
6. Were it not that the incident ended tragically, one would be forgiven for viewing it as drama. Early in the day, the deceased returned home while drunk. He found his wife, Josephine Bosibori Morara (PW1), who was preparing food for lunch. He said she would not serve the ugali that day and stepped on it. When she ran outside, he followed her there, gave her a blow and bit her finger. He then went away.
7. She further testified that when he (the deceased) returned home at about 5 p.m., she ran away out of fear. While at a distance, she heard the accused cry for help. She was complaining of her chest.
8. On her part, the accused testified that at about 7.30 p.m., she found her father on the road. He was drunk and had a machete. When she arrived at her house, she found it disorganized, and her children told her they had not eaten. She gave them some money to purchase some tea. The deceased found her at the door waiting for her children. He hit her on the chest with a stick. She fell and raised an alarm. She said she did not know how the deceased sustained the cut injury on his hand.
9. Though the accused testified that she did not know how the deceased got injured, the evidence on record does not leave any speculation; there was nobody else in the home at the time. I, therefore, find that she must have been the one who inflicted the fatal injury to her father.
10. From the evidence on record, the deceased had, for a long time, traumatized his family. The accused said he hit her on the chest with a stick. Given the evidence that he was a violent one, I have no reason to doubt her evidence. Cumulatively, she was provoked and may have acted in self-defence. The common law principles relating to “self-defence" were laid down by the Privy Council in Palmer vs R [1971] A.C. 814. The decision was approved and followed by the Court of Appeal in R vs McInnes, 55 Cr. App. R. 551. Lord Morris, delivering the judgment of the Board, said:
It is good law and good sense that a man attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances.
…. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. ….. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case, the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If, in any case, the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.
11. Though the accused did not plead this defence, any reasonable person would not hesitate to find that had she not acted, then very likely the deceased could have used the machete on her given his temperamental and violent nature.
12. Unfortunately, the deceased died, but the accused cannot be blamed for it. From the foregoing analysis of the evidence on record, I find that the offence of murder was not proved against the accused. I acquit and set her free unless otherwise lawfully held.
13. This is a unique case. The accused will likely carry the guilt conscience for a while unless she is adequately counselled. Indeed, the entire family require counselling due to the effect of the prolonged exposure to cruelty from the deceased and his unfortunate death. I suggest they be assisted to get the requisite counselling from volunteers because, from the evidence on record, they cannot afford the services independently.
Delivered and signed at Kisii on this 3rd day of May 2024
2. The particulars of the offence are that on the 12th day of March 2022, at the Kenuchi village, Muma sub-location, Etago Sub County of Kisii County murdered Philip Morara Onchieku.
3. Philip Morara Onchieku, the deceased, loved alcohol. Evidence was adduced that it was very rare for him to be found sober. When he was drunk, he became violent to his family. On the material day, he picked a quarrel with his daughter, the accused, and he was fatally injured in the process.
4. The accused contended that the deceased had attacked her and hit her on the chest but denied that she was the one who inflicted the fatal injury on him.
5. The issues for determination are:
a) Whether the accused inflicted the fatal injury on the deceased;
b) Whether the accused acted in self-defence; and
c) Whether the prosecution proved their case against the accused.
6. Were it not that the incident ended tragically, one would be forgiven for viewing it as drama. Early in the day, the deceased returned home while drunk. He found his wife, Josephine Bosibori Morara (PW1), who was preparing food for lunch. He said she would not serve the ugali that day and stepped on it. When she ran outside, he followed her there, gave her a blow and bit her finger. He then went away.
7. She further testified that when he (the deceased) returned home at about 5 p.m., she ran away out of fear. While at a distance, she heard the accused cry for help. She was complaining of her chest.
8. On her part, the accused testified that at about 7.30 p.m., she found her father on the road. He was drunk and had a machete. When she arrived at her house, she found it disorganized, and her children told her they had not eaten. She gave them some money to purchase some tea. The deceased found her at the door waiting for her children. He hit her on the chest with a stick. She fell and raised an alarm. She said she did not know how the deceased sustained the cut injury on his hand.
9. Though the accused testified that she did not know how the deceased got injured, the evidence on record does not leave any speculation; there was nobody else in the home at the time. I, therefore, find that she must have been the one who inflicted the fatal injury to her father.
10. From the evidence on record, the deceased had, for a long time, traumatized his family. The accused said he hit her on the chest with a stick. Given the evidence that he was a violent one, I have no reason to doubt her evidence. Cumulatively, she was provoked and may have acted in self-defence. The common law principles relating to “self-defence" were laid down by the Privy Council in Palmer vs R [1971] A.C. 814. The decision was approved and followed by the Court of Appeal in R vs McInnes, 55 Cr. App. R. 551. Lord Morris, delivering the judgment of the Board, said:
It is good law and good sense that a man attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances.
…. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. ….. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case, the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If, in any case, the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.
11. Though the accused did not plead this defence, any reasonable person would not hesitate to find that had she not acted, then very likely the deceased could have used the machete on her given his temperamental and violent nature.
12. Unfortunately, the deceased died, but the accused cannot be blamed for it. From the foregoing analysis of the evidence on record, I find that the offence of murder was not proved against the accused. I acquit and set her free unless otherwise lawfully held.
13. This is a unique case. The accused will likely carry the guilt conscience for a while unless she is adequately counselled. Indeed, the entire family require counselling due to the effect of the prolonged exposure to cruelty from the deceased and his unfortunate death. I suggest they be assisted to get the requisite counselling from volunteers because, from the evidence on record, they cannot afford the services independently.
Delivered and signed at Kisii on this 3rd day of May 2024