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 brief particulars were that on the 6th day of December, 2022 at Kadzandani Sub-location, Nyali-Sub County, within Mombasa County, he murdered Emmely Misiza.
The accused person denied the charges and matter was fixed for hearing.
Prosecution's Case
The prosecution called a total of seven witnesses. These were :
PW1 Irene Angulu Ogutu , who stated that on 7th December, 2022 at around 2130hrs she had just come home from her business. She took a shower. Just after finishing supper, she heard something that sounded like iron sheets on the roof were being removed. She told her daughter to lock the door since she thought they had been attacked by thugs. She continued watching TV. She stated that outside she could hear someone with a female voice crying. She ignored since in that residence couples living around the place usually have lots of quarrels. She then heard someone calling in Luhya, "omwana wefwe fungua fungua huyu mtu ananiua fungua" while hitting at her door. She ignored the pleas. The deceased went quite for some time and then came back and continued to bang on the door. She told the kids to hide under the bed then she heard other people talking with the lady outside. She opened the window to pip outside. She could see Emily (deceased) and two other ladies. She opened the door and one of the ladies told her that Emily had been shot by her husband. She ran to a church close by and asked for someone to assist her take the neighbor to the hospital. They called a tuk tuk and with the help of neighbors took her to Yeshua medical clinic.
She was attended to but was informed that she needed further medical attention and referred her to coast general hospital. Together with the neighbors they used the doctor's car and tool the deceased to Coast General Hospital where she was admitted. She went further to state that she went back home. On 9th, January, 2022, she received a call from Nyali DCI that she needed to record statement.
On cross examination she confirmed that she is not sure of the date. She does not know the sound of the bullet. That quarrels were not limited to the accused and the deceased only.
She stated that she saw a bullet wound but it is not recorded in her statement. She also stated that she met Peter at the church but she never recorded that in her statement. She confirmed that she never saw the deceased being attended to at Coast General Hospital. She confirmed that she was alone with Peter and not with the neighbors as recorded in her statement. She confirmed that she did not see the accused before and after the incident.
5. PW2, John Azangu , stated that on the midnight of 6th December, 2022 while sleeping with his family, his wife Rose Nimbone received a phone call and the caller introduced herself as a neighbor to the deceased and that her daughter had been shot and was being rushed to the hospital. The caller was informing them so that they could make arrangements of travelling to Mombasa. She also informed them that she had been shot by her husband who was a police officer who had then disappeared. He stated that he received the information during the night therefore he could not do anything but to wait till the following day which was 7th December, 2022. He started the journey to Mombasa accompanied by her younger sister namely Vivian. They arrived in Mombasa on the 8th December, 2022 at about1400hrs. Upon arrival they went directly to Coast General Hospital where they inquired about her daughter and were directed to the ward where she was admitted and he confirmed that indeed her daughter had been shot. He stated that though she was talking, she was complaining of pain from the gunshot wound. She also complained that the injured part was swelling.
He further stated that the night of that day, she left her with the sister and during that time the younger daughter contacted him that the deceased was in total pain. On 10th December, 2022 during morning hours, he informed the doctors of the situation. The doctors upon assessment said there were a lot of pus on the wound where she had been operated. On that day of 10th December, 2022, she was taken to theatre and brought back to the ward later on. She was in a fair condition until 13th December, 2022 when she started vomiting. On 14th December, 2022 he found her condition deteriorating and was taken to intensive care on the same day. That on the 15th December 2022 when he visited her at the hospital, she was still in ICU in total comma and on morning hours of the 16th December, 2022, upon arriving at the ICU, he was told she had succumbed.
He stated that afterwards he started looking for a way to transport the body back home for burial but since it was a police case, he was advised by police officers from DCI to appear at their offices to record the statement.
On cross examination, he confirmed that he identified with the caller when the wife handed her the phone. That he received the news on the night of 6th but arrived in Mombasa on 8th He averred that he never saw the deceased on 8th. He also confirmed that the first surgery was done on 7th. He stated that he did not witness the shooting but what he was stating was what the deceased told him.
Pw3 was DR Gabriel Mngola who produced the post mortem form pext 1. The report shows that the late Emily was admitted on 6/12/2022 with a history of penetrating abdominal trauma right and left thigh trauma , secondary to gunshot .she was taken to theatre for exla resection and anastomosis of perforatoris in small intestines and small intestines. Developed surgical site infection – taken to theatre for de debidedement, had persistent high temperature treated with antibiotics.
The doctor opined that the cause of death was complications of peritonitis secondary to penetrating abdominal trauma due to gun shot wounds to the abdomen and lower limbs
PW4 David Ngumbao , stated that he received an exhibit memo from No. 65933 Cpl. Fredrick Ochido of DCI Nyali and were examined in the Government Chemist's Department. Exhibits/ Item received-marked: "A"- stomach and its contents, "B"- Liver, "C"- Kidney, "D"- Vitreous humour. The exhibits/ items were from the deceased, Emilly Misiza. He stated that the examination required was to analyse for chemical toxic substances. Test method used was Gas Chromatography Mass Spectroscopy (GC-MS) and Gas Chromatography Mass (GC). He further stated that the results came out and no toxic substance was detected in exhibits A, B and C received. No alcohol was detected in exhibit D (vitreous humour). He produced the Report of Government Analyst which was marked as Exhibit-2.
On cross examination he confirmed that he received parts ofthe stomach, liver and vitreous humour. He stated that Gas chromatography is used for analysis. He averred that they use vitreous humour to test alcohol in absence of blood and urine. He stated that purity of the gas is usually 98% and above. He further stated that the extract samples are always in liquid form. He affirmed that he only uses what was given to him.
PW5, CPL Stanley Ndara stated `that on 6 th December, 2022, he was the duty NCO Kadzandani Police Station while on mobile patrol together with the duty officer Inspector Paul Muia, CPL Ndote, PC Mwangi who was the Anti-Crime Aid and PC Mutua all aboard the Station motor vehicle registration number GK B 697Y. He was informed by the duty officer Inspector Muia that he had received a call from his mobile phone from PC Benard Moreka who was the report office personnel at Kadzandani Police Station that there was a report of a man who had shot his wife within Mwatamba area near the Station. He stated that they proceeded there and upon arrival, they found the door wide open and there was nobody.
13. Neighbors informed them that the victim had been rushed to Coast General Hospital for treatment and the assailant had escaped. He further stated that they observed from outside and saw clothes and broken glasses scattered in the floor and also there were some blood stains on the floor. The scenes of crime personnel and the DCIO Nyali Chief Inspector John Ireri came and documented the scene. One spent cartridge of 9mm was recovered on the ground at the door. PW5 also stated that they immediately left to Coast General Hospital to check on the victim and found her being attended by the doctors at the Emergency Ward. He further stated that the victim name was Emily and had three gunshot wounds at the lower abdomen and that she told them that the husband was a Police Officer at Bamburi Police Station is the one who shot her.
14. On cross examination, He affirmed that his memory gets better with time. He confirmed that Benard Moreka was the one on duty. He stated that Inspector Muia recorded the statement. He affirmed that he cannot describe what is inside the house while outside the house. He stated that he did not have any conversation with the deceased and that he was just present when Inspector Muia was talking to the deceased. He affirmed that he did not observe any wounds.
PW6 - COMMISSIONER Lawrence Nthiwa- stated that some exhibits were received in the laboratory for examination from No. 87009 CPL Moses Mwaura on 8th December, 2022. They were; one pistol S/No. F3815 marked Exhibit D, thirteen rounds of ammunition marked Exhibits (Ci-Cxiii), One spent cartridge case marked Exhibits G and one pistol magazine marked Exhibit F. He went ahead to examine the exhibits.
He stated that Exhibit G is a Czech Republic made caliber 9mm Ceska Pistol, designed to chamber and fire rounds of ammunition in caliber 9x19mm. The exhibit pistol is a complete in all its component parts including its 16 rounds detachable box magazine exhibit F. It was successfully test fired using three rounds of ammunition picked at random from exhibits (Ci-Cxiii). The test cartridge cases were recovered and marked (TC1-TC3) for comparison purposes.
16. He explained further that Exhibit (Ci-Cxiii) are thirteen rounds of ammunition each in caliber 9x19mm. All were in live as three of them picked at random were successfully test fired in exhibits D. From his examination he formed the opinion that they are capable of being fired. He went further to state that Exhibit G is a fired cartridge case, formerly a component part of a round of ammunition in caliber 9x19mm. Microscopic examination of the exhibit cartridge case revealed identifiable firing pin markings consistent to those produced by a firearm discharge. That comparative microscopic examination of exhibit G in conjunction with each of the test cartridge cases fired in Exhibit G revealed that it was fired in one Pistol S/No. F3815 marked Exhibit D and that sufficient matching firing pin indentation markings, ejector markings and breech markings enabled his opinion. The report wa sprepared by James Onyango and produced was marked as Exhibit-3.
17. PW6, also stated that he received one fired bullet marked Exhibit (H). He stated that Exhibit H is a fired bullet in caliber 9mm, formerly a component part of a round of ammunition in caliber 9 x 19mm weighing 7.42g. That the microscopic examination of the exhibit bullet revealed identifiable bullet striation markings consistent to those produced by a firearm discharge. He went further to state that comparative microscopic examinations of the Exhibit H in conjunction with the test bullets fired in Exhibit D that had been previously submitted to their laboratory from DCI Nyali revealed that it was fired in one Ceska pistol S/No. F3815 and that sufficient matching land and grove engraved areas markings enabled his opinion. The report produced by PW6 was marked as Exhibit-4.
18. On cross examination, PW6 affirmed that he was standing in for James Onyango. He stated that James Onyango was still in office but was on an assignment. When asked if an illustration of how the process was done was necessary, he stated that it would have been in order but at the lab they do not have the documents. He also stated that the report was enough and no diagram was needed for illustration. He affirmed that there were 13 rounds and they took the three and compared with the ones that had been spent. Finally, he confirmed that he was reporting what someone else did.
19. PW7, Fredrick Ochido stated that on the 7th December, 2022 at around 0900hrs, the SCCIO called him to his office and informed him of a shooting incident that had happened the previous day and reported at Kadzandani Police station. That the suspect was a police officer based at Bamburi Police Station and that he had surrendered and handed his service pistol to the armory in charge at Bamburi Police Station. He stated that he proceeded to the scene of crime and drew a sketch plan. He then went ahead to Bamburi police station where he collected one pistol make Ceska serial no. KP 3815 loaded with 13 rounds of 9mm ammunition which he also learnt that it was officially issued to the said officer on 30th November, 2022.
20. He further stated that he went to the office of the OCS Bamburi and was handed over the suspect. The said suspect was limping and when asked about the cause, he said that he had been hit by the wife during a fight. He booked him at Nyali police station. He then contacted Inspector Muia of Mbungoni Police Post who was the duty officer when the incident occurred and was able to get a list of witnesses. He also contacted PC Karonei who had visited the scene the previous day and took over exhibits which included one empty spent cartridge and one baby cloth stained with blood.
21. He stated that the next day, he took the suspect to Shanzu Law Courts where he swore an affidavit requesting orders for continued detention and was granted 10 days' custodial orders to enable him complete investigations. The same day, they took the suspect to hospital for treatment at Nyali Bridge Mombasa Hospital since he was complaining of pain in his left ankle. He was treated and discharged after being referred to Beyond Scope Hospital for a bone specialist as the doctor after the x-ray on the injured leg said it had a fracture and on the following day he was escorted to Beyond Scope where he was treated and the leg bandaged. He later prepared the exhibit memo for ballistic expert and forwarded the exhibits, that is, Ceska pistol s/no.KP3815 which was produced and marked Exhibit-5, One empty cartridge which was marked as Exhibit-6, 13 rounds of ammunition which was marked as Exhibit-7 and one empty pistol magazine which was produced and marked as Exhibit-8 by the prosecution to DCI Forensic Lab for analysis.
22. He further stated that on 10th December, 2022, he visited Coast Provincial General Hospital ward 7 where the victim Emmily Misiza had been hospitalized and took her statement. Her condition was stable though she complained of pain in her abdomen. He stated that on 13th December, 2022, he recorded statements from the relevant witnesses and performed other police procedures and consequently duplicated the file and forwarded it to the Office of the Director of Public Prosecution for perusal and advice.
23. On cross examination he affirmed that the incident happened on 6th December, 2022 but got involved the following day. He also confirmed that he did know if the scene was secured, also stating that the scene could have been tampered with. The drawn sketch in his statement was not produced in Court. He affirmed that the accused was limping. He also affirmed that the statement of the deceased is there but he does not know if they were supplied to the defence. He further affirmed that PC Karonei should have been called as a witness since he was the first officer at the scene. He stated that only one spent cartridge was recovered at the scene. He further stated that the accused was initially issued with fifteen rounds of ammunition but only thirteen were recovered. He admitted that the suspect had a fracture in the leg. He further admitted that as a trained officer, when one is shooting to kill, one cannot aim at the thigh. He stated that he would not know if it was self defence.
24. The Honourable Court having heard the prosecution's case found that the prosecution had established a prima facie case warranting the accused to be placed on his defence .
Defence Case
25.The accused opted to give sworn evidence and he testified as a sole witness. He stated that as of 6th December, 2022, he had been a police officer for over five (5) years and as such, he considered himself experienced. He recalled the events of the fateful day stating that he together with his other colleagues reported at Mombasa Regional Police Headquarters and were assigned duties at Likoni Ferry Area by the County Commander. They were assigned to do undercover police duties and as such, they were in civilian clothes. However, they were fully armed.
26. He stated that because of the nature of their duties, their firearms are always cocked. He explained that this was to ensure that in an event of any act contrary to the law, one could easily fire to deter any crime. He confirmed that he carried out his duties together with his colleagues until around 5 p.m. when he was dropped at Mbaraki Police Station. Considering that he was undergoing medication, he needed to leave early so as to go for his last injection at a dispensary in Shanzu. He therefore left for his house situated at Kadzandani Area.
27. On arrival to his rental house, he met the caretaker at the gate and they started to have conversations. Soon thereafter, the deceased who was his wife carrying their young daughter came in and walked straight to the house. She did not bother even greeting them. After a while, he left the caretaker and went to the house where he met the deceased cooking ugali. He took off his shoes and went straight to the bed where he sat. He took out his firearm which was still cocked and placed it under the pillow while in a safety catch position.
28. He then took a glass and poured some soda. His daughter also asked for some soda and he proceeded to pour some to her. As he was about to take a sip of the drink, the deceased suddenly moved and hit the glass using a metal holder commonly referred to as "kamata" thereby spilling the drink and breaking the glass into pieces. As he was still figuring that act, using the same metal holder, the deceased proceeded to hit him on his left ankle severally which occasioned him a fracture. The deceased did not end there. She grabbed the firearm from under the pillow since she knew where it was. It is at this juncture that they started struggling for the firearm.
29. The child was screaming all this while. Considering that it was in a safety catch position, the firearm accidentally went off and all he heard were shots. It is at this juncture that the deceased let go of the firearm. He stated that he picked the firearm and since he was in a confused state, he decided to walk himself to Bamburi Police Station where he handed himself in. It was only the following day that he learnt of what actually had transpired. He was later taken to Shanzu Law Courts where an application for continued detention was made and the police were given ten (10) days to detain him.
30. Considering the pain he was having, he sought to be taken to hospital and his request was granted. He was taken to Nyali Bridge Mombasa Hospital and an X-ray was conducted. The X-ray confirmed that he had sustained a fracture on the proximal 5th metatarsal bone. A P-3 form was later filled at Coast General Teaching and Referral Hospital. He produced documents in support and were identified as Defence Exhibit 1 to 4. On the struggle for the firearm, he stated that as a trained police officer, your own firearm in a third party's hands is a danger to your life since you cannot tell if the third party knows how to use it. Worse still, the firearm was cocked and thus could easily fire if the safety catch pin is accidentally touched.
31. He added that as a trained police officer, if his intention was to kill, he would have aimed at the deceased vital organs and not the thighs. He lastly stated that the deceased died over ten (10) days later and it was confirmed by the post mortem form that the cause of death was due to surgical site infection meaning that the hospital did not manage the injury correctly. He therefore pleaded that the Honourable Court does proceed to acquit him. The prosecution was satisfied with his testimony and thus he was not cross examined. That marked the close of the defence case.
Issues for determination: -
a) Whether the prosecution established the offence of murder;
b) If the answer in (a) above is in the affirmative, what orders ought to issue; and
c) If the answer in (a) above is in the negative, what is the accused's person's fate?
33. The charge of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya provides as follows: 203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 204. Any person convicted of murder shall be sentenced to death.
34. Did the prosecution prove their case beyond reasonable doubt?
In criminal cases, for the Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an Accused person. The Court of Appeal at Nyeri in Criminal Appeal No. 352 of 2012 Anthony Ndegwa Ngari v Republic [2014] eKLR, summed up the elements of the offence of murder as follows: -
(a) the death of the deceased and its cause:
(b) that the accused committed the unlawful act which caused the death of the deceased; and
(c) that the accused had malice aforethought.
35. In this case, the death of the deceased is not in doubt. It was proved in two ways. First, PW2 confirmed that the deceased died while she was in the hospital and her body was taken to the mortuary. PW7 also testified that the death of the deceased was confirmed and he attended a post mortem examination which was conducted on the body of the deceased. The second way in which the death of the deceased was proved was through the medical evidence in the Post Mortem Report.PEXT 1. Therefore, we have no hesitation to find that this element was proved.
36. On the second element, NONE of the seven (7) witnesses who testified for the prosecution, saw the accused shoot the deceased. It is only in his defence that the accused gave a narration of what transpired. It is settled that it is the duty of the prosecution to prove their case beyond reasonable doubt and that duty does not shift. Even if the accused fills in the gaps for them, their duty as per law does not shift.
37. On the third element, section 206 of the Penal Code defines 'malice aforethought' 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 fight or escape from custody of any person who has committed or attempted to commit a felony.
38. Malice aforethought can be established expressly or by inferences to be drawn from the facts and circumstances before Court. The East African Court of Appeal expressed the circumstances in which malice aforethought can be inferred in the case of Republic v Tubere s/o Ochen [1945] 12 EACA 63 as follows: -
(a) The nature of the weapon used; whether lethal or not;
(b) The part of the body targeted; whether vulnerable or not; (c) The manner in which the weapon is used; whether repeatedly or not;
(d) The conduct of the accused before, during and after the attack
ANALYSIS
39. The weapon used was a pistol which in itself is a lethal weapon. The defence submitted that it is not in dispute that the part of the body that got injured was the thigh. That if proper treatment and care had been administered, the deceased would not have died. That it is common knowledge that an injury to the thigh does not automatically lead to death since it is not one of the vital or vulnerable organs. Similarly, from the accused person's evidence and which evidence was not controverted, the weapon was not intentionally used but it was accidental. They submitted that deceased was the genesis of the scuffle that led to the accidental firing of the pistol.
SUBMISSIONS
40. The defence further submitted that the deceased was the architect of her death. That this is the classic application of "But for test" in criminal law.
They posed; Would the harm have occurred if the deceased's actions in grabbing the pistol had not happened? Their answer was it must be in the negative. That the deceased orchestrated her own harm and the accused ought to be exonerated from the charge of murder.
41. Lastly from the circumstances above, they submitted that no bad conduct can be gleaned from the accused before, during and after the incident. The accused gave an uncontroverted account of events from the time he got home until presenting himself at Bamburi Police Station. His conduct does not meet the standards of someone who had malice aforethought. They urged that the three ingredients for the offence of murder must be proved together. If any of the three is missing, then the offence of murder cannot be said to have been proved.
42.In the alternative the defence urged the court that if I was to find that the prosecution proved its case (which is in their position was denied), section 17 of the Penal Code provides the statutory foundation for the defence of self-defence. It states that: - Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.
43. The Court of Appeal in Ahmed Mohammed Omar & 5 others v Republic [2014] KECA 515 (KLR) elaborated on this by stating that the law recognizes that a person may lawfully use force to repel an unlawful attack upon himself or upon his property...the force used must be reasonable and proportionate to the attack. The guiding principles on self defence were further reinforced by the Supreme Court of Kenya in Law Society of Kenya v Attorney General & 3 others [2016] eKLR which emphasized that: "The right to life does not preclude the right to defend oneself from lethal force if that is the only reasonable means to survival."
44. In Palmer v R [1971] A.C. 814, Lord Morris , delivering the judgment of the Board, said: "It is both good law and good sense that a man who is 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."
DETERMINATION
45. In the present case, the accused person testified under oath that he was attacked by the deceased during a domestic quarrel which escalated to a violent altercation. The prosecution did not lead any direct evidence to rebut this account. No eyewitness saw the actual shooting. The only reference to what transpired between the accused and the deceased came from the deceased's statements made after the incident which in any event did not meet the standard of a dying declaration and hearsay relayed by others. Though the accused stated what transpired, it is not his duty to prove or disprove the offence.
46. The principles laid down in Ahmed Mohammed Omar & 5 Others v Republic (supra) are instructive. The Court of Appeal emphasized that where an accused raises the defence of self-defence, the prosecution bears the burden of disproving it beyond reasonable doubt. It is not for the accused to prove self-defence but merely to raise it as an issue. If there exists a reasonable doubt whether the killing was in self-defence, the accused must be acquitted.
47. The forensic evidence shows that only one spent cartridge was recovered from the scene, and only one bullet was matched to the accused's firearm. There was no evidence of mul
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The accused person denied the charges and matter was fixed for hearing.
Prosecution's Case
The prosecution called a total of seven witnesses. These were :
PW1 Irene Angulu Ogutu , who stated that on 7th December, 2022 at around 2130hrs she had just come home from her business. She took a shower. Just after finishing supper, she heard something that sounded like iron sheets on the roof were being removed. She told her daughter to lock the door since she thought they had been attacked by thugs. She continued watching TV. She stated that outside she could hear someone with a female voice crying. She ignored since in that residence couples living around the place usually have lots of quarrels. She then heard someone calling in Luhya, "omwana wefwe fungua fungua huyu mtu ananiua fungua" while hitting at her door. She ignored the pleas. The deceased went quite for some time and then came back and continued to bang on the door. She told the kids to hide under the bed then she heard other people talking with the lady outside. She opened the window to pip outside. She could see Emily (deceased) and two other ladies. She opened the door and one of the ladies told her that Emily had been shot by her husband. She ran to a church close by and asked for someone to assist her take the neighbor to the hospital. They called a tuk tuk and with the help of neighbors took her to Yeshua medical clinic.
She was attended to but was informed that she needed further medical attention and referred her to coast general hospital. Together with the neighbors they used the doctor's car and tool the deceased to Coast General Hospital where she was admitted. She went further to state that she went back home. On 9th, January, 2022, she received a call from Nyali DCI that she needed to record statement.
On cross examination she confirmed that she is not sure of the date. She does not know the sound of the bullet. That quarrels were not limited to the accused and the deceased only.
She stated that she saw a bullet wound but it is not recorded in her statement. She also stated that she met Peter at the church but she never recorded that in her statement. She confirmed that she never saw the deceased being attended to at Coast General Hospital. She confirmed that she was alone with Peter and not with the neighbors as recorded in her statement. She confirmed that she did not see the accused before and after the incident.
5. PW2, John Azangu , stated that on the midnight of 6th December, 2022 while sleeping with his family, his wife Rose Nimbone received a phone call and the caller introduced herself as a neighbor to the deceased and that her daughter had been shot and was being rushed to the hospital. The caller was informing them so that they could make arrangements of travelling to Mombasa. She also informed them that she had been shot by her husband who was a police officer who had then disappeared. He stated that he received the information during the night therefore he could not do anything but to wait till the following day which was 7th December, 2022. He started the journey to Mombasa accompanied by her younger sister namely Vivian. They arrived in Mombasa on the 8th December, 2022 at about1400hrs. Upon arrival they went directly to Coast General Hospital where they inquired about her daughter and were directed to the ward where she was admitted and he confirmed that indeed her daughter had been shot. He stated that though she was talking, she was complaining of pain from the gunshot wound. She also complained that the injured part was swelling.
He further stated that the night of that day, she left her with the sister and during that time the younger daughter contacted him that the deceased was in total pain. On 10th December, 2022 during morning hours, he informed the doctors of the situation. The doctors upon assessment said there were a lot of pus on the wound where she had been operated. On that day of 10th December, 2022, she was taken to theatre and brought back to the ward later on. She was in a fair condition until 13th December, 2022 when she started vomiting. On 14th December, 2022 he found her condition deteriorating and was taken to intensive care on the same day. That on the 15th December 2022 when he visited her at the hospital, she was still in ICU in total comma and on morning hours of the 16th December, 2022, upon arriving at the ICU, he was told she had succumbed.
He stated that afterwards he started looking for a way to transport the body back home for burial but since it was a police case, he was advised by police officers from DCI to appear at their offices to record the statement.
On cross examination, he confirmed that he identified with the caller when the wife handed her the phone. That he received the news on the night of 6th but arrived in Mombasa on 8th He averred that he never saw the deceased on 8th. He also confirmed that the first surgery was done on 7th. He stated that he did not witness the shooting but what he was stating was what the deceased told him.
Pw3 was DR Gabriel Mngola who produced the post mortem form pext 1. The report shows that the late Emily was admitted on 6/12/2022 with a history of penetrating abdominal trauma right and left thigh trauma , secondary to gunshot .she was taken to theatre for exla resection and anastomosis of perforatoris in small intestines and small intestines. Developed surgical site infection – taken to theatre for de debidedement, had persistent high temperature treated with antibiotics.
The doctor opined that the cause of death was complications of peritonitis secondary to penetrating abdominal trauma due to gun shot wounds to the abdomen and lower limbs
PW4 David Ngumbao , stated that he received an exhibit memo from No. 65933 Cpl. Fredrick Ochido of DCI Nyali and were examined in the Government Chemist's Department. Exhibits/ Item received-marked: "A"- stomach and its contents, "B"- Liver, "C"- Kidney, "D"- Vitreous humour. The exhibits/ items were from the deceased, Emilly Misiza. He stated that the examination required was to analyse for chemical toxic substances. Test method used was Gas Chromatography Mass Spectroscopy (GC-MS) and Gas Chromatography Mass (GC). He further stated that the results came out and no toxic substance was detected in exhibits A, B and C received. No alcohol was detected in exhibit D (vitreous humour). He produced the Report of Government Analyst which was marked as Exhibit-2.
On cross examination he confirmed that he received parts ofthe stomach, liver and vitreous humour. He stated that Gas chromatography is used for analysis. He averred that they use vitreous humour to test alcohol in absence of blood and urine. He stated that purity of the gas is usually 98% and above. He further stated that the extract samples are always in liquid form. He affirmed that he only uses what was given to him.
PW5, CPL Stanley Ndara stated `that on 6 th December, 2022, he was the duty NCO Kadzandani Police Station while on mobile patrol together with the duty officer Inspector Paul Muia, CPL Ndote, PC Mwangi who was the Anti-Crime Aid and PC Mutua all aboard the Station motor vehicle registration number GK B 697Y. He was informed by the duty officer Inspector Muia that he had received a call from his mobile phone from PC Benard Moreka who was the report office personnel at Kadzandani Police Station that there was a report of a man who had shot his wife within Mwatamba area near the Station. He stated that they proceeded there and upon arrival, they found the door wide open and there was nobody.
13. Neighbors informed them that the victim had been rushed to Coast General Hospital for treatment and the assailant had escaped. He further stated that they observed from outside and saw clothes and broken glasses scattered in the floor and also there were some blood stains on the floor. The scenes of crime personnel and the DCIO Nyali Chief Inspector John Ireri came and documented the scene. One spent cartridge of 9mm was recovered on the ground at the door. PW5 also stated that they immediately left to Coast General Hospital to check on the victim and found her being attended by the doctors at the Emergency Ward. He further stated that the victim name was Emily and had three gunshot wounds at the lower abdomen and that she told them that the husband was a Police Officer at Bamburi Police Station is the one who shot her.
14. On cross examination, He affirmed that his memory gets better with time. He confirmed that Benard Moreka was the one on duty. He stated that Inspector Muia recorded the statement. He affirmed that he cannot describe what is inside the house while outside the house. He stated that he did not have any conversation with the deceased and that he was just present when Inspector Muia was talking to the deceased. He affirmed that he did not observe any wounds.
PW6 - COMMISSIONER Lawrence Nthiwa- stated that some exhibits were received in the laboratory for examination from No. 87009 CPL Moses Mwaura on 8th December, 2022. They were; one pistol S/No. F3815 marked Exhibit D, thirteen rounds of ammunition marked Exhibits (Ci-Cxiii), One spent cartridge case marked Exhibits G and one pistol magazine marked Exhibit F. He went ahead to examine the exhibits.
He stated that Exhibit G is a Czech Republic made caliber 9mm Ceska Pistol, designed to chamber and fire rounds of ammunition in caliber 9x19mm. The exhibit pistol is a complete in all its component parts including its 16 rounds detachable box magazine exhibit F. It was successfully test fired using three rounds of ammunition picked at random from exhibits (Ci-Cxiii). The test cartridge cases were recovered and marked (TC1-TC3) for comparison purposes.
16. He explained further that Exhibit (Ci-Cxiii) are thirteen rounds of ammunition each in caliber 9x19mm. All were in live as three of them picked at random were successfully test fired in exhibits D. From his examination he formed the opinion that they are capable of being fired. He went further to state that Exhibit G is a fired cartridge case, formerly a component part of a round of ammunition in caliber 9x19mm. Microscopic examination of the exhibit cartridge case revealed identifiable firing pin markings consistent to those produced by a firearm discharge. That comparative microscopic examination of exhibit G in conjunction with each of the test cartridge cases fired in Exhibit G revealed that it was fired in one Pistol S/No. F3815 marked Exhibit D and that sufficient matching firing pin indentation markings, ejector markings and breech markings enabled his opinion. The report wa sprepared by James Onyango and produced was marked as Exhibit-3.
17. PW6, also stated that he received one fired bullet marked Exhibit (H). He stated that Exhibit H is a fired bullet in caliber 9mm, formerly a component part of a round of ammunition in caliber 9 x 19mm weighing 7.42g. That the microscopic examination of the exhibit bullet revealed identifiable bullet striation markings consistent to those produced by a firearm discharge. He went further to state that comparative microscopic examinations of the Exhibit H in conjunction with the test bullets fired in Exhibit D that had been previously submitted to their laboratory from DCI Nyali revealed that it was fired in one Ceska pistol S/No. F3815 and that sufficient matching land and grove engraved areas markings enabled his opinion. The report produced by PW6 was marked as Exhibit-4.
18. On cross examination, PW6 affirmed that he was standing in for James Onyango. He stated that James Onyango was still in office but was on an assignment. When asked if an illustration of how the process was done was necessary, he stated that it would have been in order but at the lab they do not have the documents. He also stated that the report was enough and no diagram was needed for illustration. He affirmed that there were 13 rounds and they took the three and compared with the ones that had been spent. Finally, he confirmed that he was reporting what someone else did.
19. PW7, Fredrick Ochido stated that on the 7th December, 2022 at around 0900hrs, the SCCIO called him to his office and informed him of a shooting incident that had happened the previous day and reported at Kadzandani Police station. That the suspect was a police officer based at Bamburi Police Station and that he had surrendered and handed his service pistol to the armory in charge at Bamburi Police Station. He stated that he proceeded to the scene of crime and drew a sketch plan. He then went ahead to Bamburi police station where he collected one pistol make Ceska serial no. KP 3815 loaded with 13 rounds of 9mm ammunition which he also learnt that it was officially issued to the said officer on 30th November, 2022.
20. He further stated that he went to the office of the OCS Bamburi and was handed over the suspect. The said suspect was limping and when asked about the cause, he said that he had been hit by the wife during a fight. He booked him at Nyali police station. He then contacted Inspector Muia of Mbungoni Police Post who was the duty officer when the incident occurred and was able to get a list of witnesses. He also contacted PC Karonei who had visited the scene the previous day and took over exhibits which included one empty spent cartridge and one baby cloth stained with blood.
21. He stated that the next day, he took the suspect to Shanzu Law Courts where he swore an affidavit requesting orders for continued detention and was granted 10 days' custodial orders to enable him complete investigations. The same day, they took the suspect to hospital for treatment at Nyali Bridge Mombasa Hospital since he was complaining of pain in his left ankle. He was treated and discharged after being referred to Beyond Scope Hospital for a bone specialist as the doctor after the x-ray on the injured leg said it had a fracture and on the following day he was escorted to Beyond Scope where he was treated and the leg bandaged. He later prepared the exhibit memo for ballistic expert and forwarded the exhibits, that is, Ceska pistol s/no.KP3815 which was produced and marked Exhibit-5, One empty cartridge which was marked as Exhibit-6, 13 rounds of ammunition which was marked as Exhibit-7 and one empty pistol magazine which was produced and marked as Exhibit-8 by the prosecution to DCI Forensic Lab for analysis.
22. He further stated that on 10th December, 2022, he visited Coast Provincial General Hospital ward 7 where the victim Emmily Misiza had been hospitalized and took her statement. Her condition was stable though she complained of pain in her abdomen. He stated that on 13th December, 2022, he recorded statements from the relevant witnesses and performed other police procedures and consequently duplicated the file and forwarded it to the Office of the Director of Public Prosecution for perusal and advice.
23. On cross examination he affirmed that the incident happened on 6th December, 2022 but got involved the following day. He also confirmed that he did know if the scene was secured, also stating that the scene could have been tampered with. The drawn sketch in his statement was not produced in Court. He affirmed that the accused was limping. He also affirmed that the statement of the deceased is there but he does not know if they were supplied to the defence. He further affirmed that PC Karonei should have been called as a witness since he was the first officer at the scene. He stated that only one spent cartridge was recovered at the scene. He further stated that the accused was initially issued with fifteen rounds of ammunition but only thirteen were recovered. He admitted that the suspect had a fracture in the leg. He further admitted that as a trained officer, when one is shooting to kill, one cannot aim at the thigh. He stated that he would not know if it was self defence.
24. The Honourable Court having heard the prosecution's case found that the prosecution had established a prima facie case warranting the accused to be placed on his defence .
Defence Case
25.The accused opted to give sworn evidence and he testified as a sole witness. He stated that as of 6th December, 2022, he had been a police officer for over five (5) years and as such, he considered himself experienced. He recalled the events of the fateful day stating that he together with his other colleagues reported at Mombasa Regional Police Headquarters and were assigned duties at Likoni Ferry Area by the County Commander. They were assigned to do undercover police duties and as such, they were in civilian clothes. However, they were fully armed.
26. He stated that because of the nature of their duties, their firearms are always cocked. He explained that this was to ensure that in an event of any act contrary to the law, one could easily fire to deter any crime. He confirmed that he carried out his duties together with his colleagues until around 5 p.m. when he was dropped at Mbaraki Police Station. Considering that he was undergoing medication, he needed to leave early so as to go for his last injection at a dispensary in Shanzu. He therefore left for his house situated at Kadzandani Area.
27. On arrival to his rental house, he met the caretaker at the gate and they started to have conversations. Soon thereafter, the deceased who was his wife carrying their young daughter came in and walked straight to the house. She did not bother even greeting them. After a while, he left the caretaker and went to the house where he met the deceased cooking ugali. He took off his shoes and went straight to the bed where he sat. He took out his firearm which was still cocked and placed it under the pillow while in a safety catch position.
28. He then took a glass and poured some soda. His daughter also asked for some soda and he proceeded to pour some to her. As he was about to take a sip of the drink, the deceased suddenly moved and hit the glass using a metal holder commonly referred to as "kamata" thereby spilling the drink and breaking the glass into pieces. As he was still figuring that act, using the same metal holder, the deceased proceeded to hit him on his left ankle severally which occasioned him a fracture. The deceased did not end there. She grabbed the firearm from under the pillow since she knew where it was. It is at this juncture that they started struggling for the firearm.
29. The child was screaming all this while. Considering that it was in a safety catch position, the firearm accidentally went off and all he heard were shots. It is at this juncture that the deceased let go of the firearm. He stated that he picked the firearm and since he was in a confused state, he decided to walk himself to Bamburi Police Station where he handed himself in. It was only the following day that he learnt of what actually had transpired. He was later taken to Shanzu Law Courts where an application for continued detention was made and the police were given ten (10) days to detain him.
30. Considering the pain he was having, he sought to be taken to hospital and his request was granted. He was taken to Nyali Bridge Mombasa Hospital and an X-ray was conducted. The X-ray confirmed that he had sustained a fracture on the proximal 5th metatarsal bone. A P-3 form was later filled at Coast General Teaching and Referral Hospital. He produced documents in support and were identified as Defence Exhibit 1 to 4. On the struggle for the firearm, he stated that as a trained police officer, your own firearm in a third party's hands is a danger to your life since you cannot tell if the third party knows how to use it. Worse still, the firearm was cocked and thus could easily fire if the safety catch pin is accidentally touched.
31. He added that as a trained police officer, if his intention was to kill, he would have aimed at the deceased vital organs and not the thighs. He lastly stated that the deceased died over ten (10) days later and it was confirmed by the post mortem form that the cause of death was due to surgical site infection meaning that the hospital did not manage the injury correctly. He therefore pleaded that the Honourable Court does proceed to acquit him. The prosecution was satisfied with his testimony and thus he was not cross examined. That marked the close of the defence case.
Issues for determination: -
a) Whether the prosecution established the offence of murder;
b) If the answer in (a) above is in the affirmative, what orders ought to issue; and
c) If the answer in (a) above is in the negative, what is the accused's person's fate?
33. The charge of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya provides as follows: 203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 204. Any person convicted of murder shall be sentenced to death.
34. Did the prosecution prove their case beyond reasonable doubt?
In criminal cases, for the Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an Accused person. The Court of Appeal at Nyeri in Criminal Appeal No. 352 of 2012 Anthony Ndegwa Ngari v Republic [2014] eKLR, summed up the elements of the offence of murder as follows: -
(a) the death of the deceased and its cause:
(b) that the accused committed the unlawful act which caused the death of the deceased; and
(c) that the accused had malice aforethought.
35. In this case, the death of the deceased is not in doubt. It was proved in two ways. First, PW2 confirmed that the deceased died while she was in the hospital and her body was taken to the mortuary. PW7 also testified that the death of the deceased was confirmed and he attended a post mortem examination which was conducted on the body of the deceased. The second way in which the death of the deceased was proved was through the medical evidence in the Post Mortem Report.PEXT 1. Therefore, we have no hesitation to find that this element was proved.
36. On the second element, NONE of the seven (7) witnesses who testified for the prosecution, saw the accused shoot the deceased. It is only in his defence that the accused gave a narration of what transpired. It is settled that it is the duty of the prosecution to prove their case beyond reasonable doubt and that duty does not shift. Even if the accused fills in the gaps for them, their duty as per law does not shift.
37. On the third element, section 206 of the Penal Code defines 'malice aforethought' 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 fight or escape from custody of any person who has committed or attempted to commit a felony.
38. Malice aforethought can be established expressly or by inferences to be drawn from the facts and circumstances before Court. The East African Court of Appeal expressed the circumstances in which malice aforethought can be inferred in the case of Republic v Tubere s/o Ochen [1945] 12 EACA 63 as follows: -
(a) The nature of the weapon used; whether lethal or not;
(b) The part of the body targeted; whether vulnerable or not; (c) The manner in which the weapon is used; whether repeatedly or not;
(d) The conduct of the accused before, during and after the attack
ANALYSIS
39. The weapon used was a pistol which in itself is a lethal weapon. The defence submitted that it is not in dispute that the part of the body that got injured was the thigh. That if proper treatment and care had been administered, the deceased would not have died. That it is common knowledge that an injury to the thigh does not automatically lead to death since it is not one of the vital or vulnerable organs. Similarly, from the accused person's evidence and which evidence was not controverted, the weapon was not intentionally used but it was accidental. They submitted that deceased was the genesis of the scuffle that led to the accidental firing of the pistol.
SUBMISSIONS
40. The defence further submitted that the deceased was the architect of her death. That this is the classic application of "But for test" in criminal law.
They posed; Would the harm have occurred if the deceased's actions in grabbing the pistol had not happened? Their answer was it must be in the negative. That the deceased orchestrated her own harm and the accused ought to be exonerated from the charge of murder.
41. Lastly from the circumstances above, they submitted that no bad conduct can be gleaned from the accused before, during and after the incident. The accused gave an uncontroverted account of events from the time he got home until presenting himself at Bamburi Police Station. His conduct does not meet the standards of someone who had malice aforethought. They urged that the three ingredients for the offence of murder must be proved together. If any of the three is missing, then the offence of murder cannot be said to have been proved.
42.In the alternative the defence urged the court that if I was to find that the prosecution proved its case (which is in their position was denied), section 17 of the Penal Code provides the statutory foundation for the defence of self-defence. It states that: - Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.
43. The Court of Appeal in Ahmed Mohammed Omar & 5 others v Republic [2014] KECA 515 (KLR) elaborated on this by stating that the law recognizes that a person may lawfully use force to repel an unlawful attack upon himself or upon his property...the force used must be reasonable and proportionate to the attack. The guiding principles on self defence were further reinforced by the Supreme Court of Kenya in Law Society of Kenya v Attorney General & 3 others [2016] eKLR which emphasized that: "The right to life does not preclude the right to defend oneself from lethal force if that is the only reasonable means to survival."
44. In Palmer v R [1971] A.C. 814, Lord Morris , delivering the judgment of the Board, said: "It is both good law and good sense that a man who is 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."
DETERMINATION
45. In the present case, the accused person testified under oath that he was attacked by the deceased during a domestic quarrel which escalated to a violent altercation. The prosecution did not lead any direct evidence to rebut this account. No eyewitness saw the actual shooting. The only reference to what transpired between the accused and the deceased came from the deceased's statements made after the incident which in any event did not meet the standard of a dying declaration and hearsay relayed by others. Though the accused stated what transpired, it is not his duty to prove or disprove the offence.
46. The principles laid down in Ahmed Mohammed Omar & 5 Others v Republic (supra) are instructive. The Court of Appeal emphasized that where an accused raises the defence of self-defence, the prosecution bears the burden of disproving it beyond reasonable doubt. It is not for the accused to prove self-defence but merely to raise it as an issue. If there exists a reasonable doubt whether the killing was in self-defence, the accused must be acquitted.
47. The forensic evidence shows that only one spent cartridge was recovered from the scene, and only one bullet was matched to the accused's firearm. There was no evidence of mul
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