The Charge
1. The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars are on the 14th day of February 2023 at Masandukuni , within Kongowea Area in Nyali Sub county within Mombasa County, he unlawfully caused the death of Kevin nzioki.
The Evidence
2. The accused person pleaded not guilty and the state called 8 witnesses.
3. The agreed facts are on 14/2/2023 around 8.30pm the deceased Kelvin Nzioki , was drinking palm-wine in the company of the accused person in the palm wine kiosk operated by Garama Charo Maitha (PW 4). The other customers in the kiosk were Harriet and one Laban Mbugi. PW 4 testified that he was serving the 3 inside the kiosk and PW 5, David Laban Mbugi , confirmed that indeed he was with Sammy, Harriet aka Mama Yvonne and Wasiwasi, the nickname for the deceased.
4. PW5 testified that he decided to go sit outside and PW 4 look for him a bench outside and they left the accused, the deceased and Mama Ivonne inside the kiosk. That PW 4 carried PW 5’s drink outside and the two sat on the bench. That Mama Vyonne also left so it is only the deceased and the accused who were in the kiosk. According to PW 5, the two were drinking, talking and laughing. PW 5 then testified that while outside, he heard Sammy tell Wasiwasi “unacheza na …biashara yangu nitakufunza”. Then there was some commotion and he heard Wasiwasi ask Sammy – “Sammy tumefikishana hapo?”.
5. PW 4 also confirmed that he heard Wasiwasi ask Sammy “Tumefikishana hapo” and he went inside to check what was going on. That, when he had walked outside with PW5, he had left the two – the accused and the deceased, seated down but upon his return into the kiosk he found the two had stood up and Sammy was holding the deceased on the shoulders and pushing him behind the door and the deceased was bleeding from the chest.
6. PW 4 called PW 5 who also got in and saw the deceased leaning on the iron sheet wall of the club and bleeding from the chest and now Sammy was seated on the bench. After deliberating, PW 4 went to report at Kongowea Police Station and they locked Sammy in the kiosk from outside.
7. PW 5 testified that after 5 minutes Sammy banged on the door demanding that the door be opened. When the door was not opened, Sammy tried to escape. PW 5 raised an alarm, members of public responded and when PW5 told them what had gone on, they got Sammy from the roof of the kiosk where he had escaped to, and dragged him on the ground and started beating him.
8. In the meantime, PW 5 returned with policemen including CIP Daniel Nioroge – PW 1, and they rescued the accused person and took the body of the deceased to Coast General Hospital. Investigations were conducted and the accused person was subsequently charged.
9. The court was satisfied that a prima facie case had been established and the accused person was placed on his defence.
Defence Case
10. The accused person testified that the deceased was his very good friend whom he had met at the market. That he used to sell potatoes while the deceased was selling cabbages and they would share customers. That on this 14/1/2023, they were at work, and the deceased sent him a customer. That they shared lunch at 1pm and the deceased left. He also closed his business at 3.00pm and at around 4.00pm, he went to a (Mangwe) palm wine drinking bar operated by Mary Moraa. They drank up to 6.30pm when Mary’s supply of alcohol ran out. That he went to a second ‘Mangwe’ where he met the deceased. That the deceased was with other patrons and he was happy to see him and he (deceased) bought for him alcohol . That they confirmed drinking. In his words “ikawa ni kutisha leta leta (translated to it was now ordering bring… bring).That they drank and drank and drank, and he doesn’t recall what happened. He only came to at Makadara hospital and he does not understand the charges.
The Law Analysis and Determination
11.Considering the testimonies of both the prosecution and defence, it was now upon this 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.
12. 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.”
12. 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
13.The accused person does not admit nor deny the death of the late Kevin also known as wasi wasi. All he recalls is being in a drinking spree with his late friend. What we can tell is that from his evidence is that the said friend was well as at 6.30pm. By 8.30pm, we know Kevin was not alive. PW 1, collected the body, which he took to Coast general hospital , where eventually a post mortem was conducted and the report produced as PEXT 1-. The court finds that the death was proved death was proved.
The Cause of Death
14.As outlined in the evidence, the accused person was in the same room with the deceased. The two were initially with PW 4 and PW 5 and one Mama Evonne. PW 4 and PW 5 testified they went and sat on the bench outside and Mama Yvonne left. That was when PW 4 and PW 5 heard a brief argument or scuffle inside the kiosk where the accused and the deceased were, and ongoing to check, P they found the accused person holding the deceased who was bleeding from the chest. The two (PW4 andPW5) did not see the accused person stab the deceased. Their evidence was that the deceased and the accused were however alone, they engaged in some brief verbal exchange and then a physical confrontation which left one of them dead. The words which were heard were ‘kwani tumefikishana hapo’. The weapon was not recovered as a mob descended on the accused person and beat him up and disturbed the scene.
15.As stated above, the two witnesses who were near the scene of crime, did not actually witness the actual stabbing. I have to rely on the circumstantial evidence .
16. The place of circumstantial evidence is as stated in the case of Sawe Vs. Republic :That
“ In order to justify a conviction on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with. “
17. In this case, we can deduce that there was no other person in the room with the deceased person in the room apart from the accused person. They two were heard arguing and they engaged in a physical scuffle. The accused person was seen by PW 4 holding the deceased. The postmortem from exhibit 1 shows the cause of death was hemothorax shock secondary to penetrating sharp trauma to the left upper robe. The cut is well seen in the photographs which were produced as PEXT 2.
18.Now what caused this sharp trauma? The evidence is that It is just the accused person and the deceased who were in the room and they were engaged in a physical confrontation. From this , One can safely conclude that the accused person inflicted that injury. Having looked at the evidence, there cannot be any other explanation other than the accused person who was seen in a physical confrontation with the deceased caused this cut.
19.Intention
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.”
20.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.
21.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.
22.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.
23.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.
24.Apart from the injury leading to the death, in a charge of murder, the state has to prove the intention to either inflict grievous harm or to kill. In this case, the evidence shows that the two, that deceased and the accused were great friends. They were seated together, drinking, talking and laughing. This is the evidence according to both PW 4 and PW 5. There was a just a brief exchange of words then confrontation. The accused person defence is that he does not recall what happened. He says they drank and drank and drank and he has no recollection.
25.In other words, he is raised defence of intoxication which is a legal defence. The accused person having stated in his sworn defence evidence that he did not have any issues/quarrels/grudges with his late friend. The state also did not present any motive or issue between the two prior to this occasion. The accused person pleads that it it was the effect of the intoxication/alcohol that he had consumed and compounded with stresses of life; that took over control of his sanity and he was temporarily out of his mind and he should not have been blamed and section 13(2)(b) CPC should come to his aid.
26.The said Section provides; “13 (1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and –
(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
(3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code relating to insanity shall apply.
(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.
(5) For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs.”
27. Under section 13 of the Penal Code, intoxication is not a general defence to a criminal offence, except in the circumstances set out in the section. A person who commits an offence while intoxicated is not ipso facto excused from the consequences of his act. In our view the section affords a defence of intoxication in three situations as follows.
28. The first situation is in what is called involuntary intoxication, where at the time of commission of the act complained of, the accused person does not know that it is wrong or does not know what he is doing, because of intoxication caused without his consent by the malicious or negligent act of another person. In such a case, the court is required to discharge the accused person.
29. The second situation is where the accused person, by reason of intoxication is insane, temporarily or otherwise, so that at the time of commission of the act complained of, he does not know that it is wrong or does not know what he is doing. This situation brings the case within the M’Naghten Rules and the court is required to deal with the accused person in the manner prescribed by the Criminal Procedure Code for accused persons who were insane at the time of commission of the offence, culminating in a special finding of guilty but insane and the detention of the accused person in a mental hospital at the pleasure of the President.
30. In Rex v. Retief [1940-1943] EA 71, the former Court of Appeal for Eastern Africa explained this aspect of the defence of intoxication as follows:
“The insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The law takes no note of the cause of insanity and, if actual insanity in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. It is immaterial whether the insanity so induced was permanent or temporary and if a man’s intoxication were such as to induce insanity so that he did not know the nature of his act or that his act was wrongful, his act would be excusable on the ground of insanity and the verdict should be as laid down in section 159 of the Criminal Procedure Code ‘guilty of the act charged but insane when he did the act.’”
31. The third situation, contemplated by section 13(4), arises where by reason of intoxication the accused person is incapable of forming a specific intent, which is an element of the offence charged. Sometimes this situation is refereed to as “intoxication or drunkenness negativing mens rea”. In Said Karisa Kimunzu v. Republic, CR App No. 266 of 2006 (Msa), this Court stated thus regarding intoxication or drunkenness negativing mens rea:
32. “But under subsection (4) the court is required to take into account the issue of whether the drunkenness or intoxication deprived the person charged of the ability to form the specific intention required for the commission of a particular crime. In a charge of murder such as the one under consideration, the specific intention required to prove such an offence is malice aforethought as defined in section 206 of the Penal Code. If there be evidence of drunkenness or intoxication then under section 13(4) of the Penal Code, a trial court is required to take that into account for the purpose of determining whether the person charged was capable of forming any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. In the circumstance of this appeal, the learned trial Judge was required to take into account the appellant’s drinking spree of the previous night and even that morning in determining the issue of whether the appellant was capable of forming and had formed the intention to kill his son.”
33. In the case of Bakari Mgaga Juma, the Court of Appeal states:
“The burden of proving that the appellant was capable of forming the intent necessary to constitute the offence of murder always remained with the prosecution and was not discharged if the probability emerges from the evidence that the appellant was incapable of forming that intent. (See Malungu s/o Kieti v. R [1959] EA 797 and Buzoya & Another v. Republic [1975] EA 215)”.
34. In the circumstances of this case, there is serious doubt whether the appellant killed the deceased of malice aforethought, the benefit of which ought to go to him. The two were friends who were laughing together but alcohol took the better of him. He is accorded the benefit of section 13(4) of the CPC
34. Further, In this case, there is no evidence of repeated blows. This factor leads me to believe that the stab 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 hit him once.
35. 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 in Open Court/online through MS TEAMS,
this 31st day of October 2024
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
The accused person and his advocate
Ms Maina for the state
Bebora court assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE