The Republic VS MUNIR MURAD SALIM The Republic VS MUNIR MURAD SALIM

Introduction

The accused Omar Issa Tinga faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code.

Particulars of the offence are that the 3^rd day of September 2019 at Bububu area in Likoni Sub County within Mombasa County murdered Charles Musa Tinga.
The prosecution called 8 witnesses to support its case that the accused person committed the offence herein and he was placed on his defence.

Prosecution Case

The prosecution case was that the accused and the deceased who were son and father respectively used to abuse drugs and fought frequently after getting drunk. PW1 said the accused threatened the deceased with death claiming he was creating disturbance. That on 3^rd September 2019 the accused person kicked the door to the father’s room, dragged him out at night and assaulted him with slaps, fist and flat side of a panga until he fainted. PW1 said the deceased bled and soiled himself with human waste when being beaten and his clothes were changed when he was taken to the dispensary.

PW1 said that when the deceased was referred to Coast General Hospital, he died when he was being treated. PW1 said that whenever the deceased was drunk, he could be violent and rowdy and the same behaviour was also exhibited on 3/9/2019. She said the deceased and her mother were not living peacefully. She said the deceased could abuse her mother whenever he was drunk. That whenever PW1’s parents were drunk the accused could intervene and beat the deceased. She said on the material night the deceased had put high volume of the radio and was also quarreling the mother, PW1 and the accused.
PW1 said that when the accused came from the toilet and shouted at the deceased for making noise the deceased locked the door from the inside but accused forcefully opened the door. That the deceased told the accused to go and sleep as he would switch off the radio but accused entered the room and started slapping the deceased. That when accused forced the door open, PW1’s mother ran out. She said the accused had a torch which fell when he was beating the deceased. PW1 said the accused got a panga inside their parent’s room and he used it to beat the deceased.
PW2, Fauzia Issa, testified that when she saw the accused drag their father from his room and beat him with his fists and kicks he ran to go and call for help from the Mosque. She said that by the time neighbours arrived, her father was already injured on the head and was bleeding. That when the accused person told neighbours to leave him alone as the deceased was his father, they got annoyed and beat him up and he got a fracture of the leg.
PW2 said the deceased lost consciousness and was taken to Mbuta Modern Health Care but he was in a bad state and was referred to Coast General Hospital where he died the following day at 5.00 pm while undergoing treatment. PW2 said the accused was abusing drugs and the deceased did not like it but the accused could not heed the fathers advise. PW2 said the deceased used to drink alcohol and also smoked but the accused abused drugs.

PW2 said the accused and deceased did not live peacefully and the accused had beaten the deceased four (4) times prior to the date of the current incident. She said the deceased and their mother were not staying in the same room as they quarreled and fought frequently. She said she had slept but she was woken up when the accused kicked the deceased door open. PW2 said that the deceased was not happy that the accused was being maintained by the mother.
PW3, P. C. Erick Muthini, together with P. C. Michael Owuor got the accused discharged from Coast General Hospital where he was admitted for treatment of a fractured leg and he was escorted to Inuka Police Station.
PW4, Mohamed Musa Tinga, the son to the deceased testified that on the material night he heard the accused remark ‘mimi nitaua mtu’. That he then heard the accused kick the door to the deceased room, held the deceased and removed him from the house. That the deceased called for help after accused removed him from his room. PW4 said they raised alarm and neighbours came. He said the deceased was bleeding from the head and mouth. That the deceased was taken to Mkwajuni hospital and referred to Manyatta Hospital. They were again referred to Coast General Hospital where the deceased was admitted but at 10.00 am he learnt his father had died.

PW4 said the accused and deceased differed from time to time. He said initially the accused could accompany the deceased to work but he just stopped. PW4 said the deceased provided for them as a family. That he was not drunk on the material day. He said the deceased was a story teller and liked listening to radio.
PW5, Haliki Musa Tinga, testified that on the nights of 2^nd and 3^rd September 2019 at 5.00 am he was at his home when a neighbour went and told him the accused had caused violence at home and Omar’s leg had been fractured by members of public. He said the deceased and accused were both admitted at Coast General Hospital where the deceased was taken to theatre but he later died while undergoing treatment. That Omar Issa Tinga was arrested from the ward and taken to Inuka Police Station. After the postmortem was done, the body was released for burial.
PW5 said that two (2) years prior to the incident herein, Omar, the accused, kicked the deceased and he got two (2) of his teeth extracted. That the accused also hit the deceased on the head with a stone and he was treated at the dispensary. That the accused was taken to Makondooni where the police punished him for two hours for beating his father and that he had been calm for one year prior to committing offence herein.
PW6, Mary Chizi Zero, the wife to the deceased testified that on the night of 2/9/2019, the deceased returned home at 8.00 pm and started quarreling and said he was going to do something. PW6 said she thought it was normal as the deceased was drunk. That the deceased caused a commotion and the other children ran away and she remained with Omari. That the deceased and Omari started pushing each other. That her daughter went to call for help and on return found the deceased had fallen and sustained a cut on the cheek. She said that the accused also sustained a fracture on the leg and the deceased and accused were referred to Coast General Hospital. PW6 said it was dark and she did not see the accused or the deceased with any weapon.
PW6 said the deceased had the habit of causing commotion when drunk and that the accused had mental incapacity and was being taken for treatment. In cross examination, PW6 said the deceased used to take alcohol but she did not know if the accused used to drink alcohol. She said the deceased could cause commotion whenever drunk but he was not physically violent to her. PW6 said the deceased returned and threatened to kill someone and as he was quarreling he kept on mentioning accused person’s name and said the accused had mental incapacity. PW6 said it was the first time the accused fought with the deceased. She said she was not present when accused and the deceased fought until the deceased’s two teeth came out. She said that the deceased reported to the police and the accused was caned. That after this incident Omar stopped quarrelling with the father and used to go to the Mosque. PW6 said the deceased was the aggressor.
PW7, Dr. Mngola, produced the post mortem report prepared by Dr. Samira Osman on 4/9/2019 in which cause of death of the deceased Charles Musa Tinga was established as severe head injury secondary to blunt trauma.

PW8, Matano Hamisi, testified that on the night of 2/9/2019 he received a phone call at 11.30 pm from Mwanasiti who is a neighbour to his in laws. He was informed that his father in law had been injured. He proceeded to the scene on a motor bike but found the father in law had been taken to hospital. That he followed them to the hospital and found he had been refereed to Coast General Hospital where he was admitted with injuries on the hand and upper parts of the body. PW8 said the deceased died on 3/9/2019 at 4.00 pm.

PW8 said in cross examination that the deceased was not rowdy. He said the deceased used to take alcohol but was not abusing drugs. He said he had never seen the deceased drunk.
PW3, P.C. Muthini was recalled to testify, on behalf of the investigating officer who was since deceased and he produced his statement as EXP2.

Defence Case

Upon the prosecution closing its case the accused was placed on defence and he gave sworn statement and said he was the 4^th born to the deceased and PW6 and that he was staying with his parents and siblings in Mbuta. He said they occupied a three (3) roomed house with iron sheet roof. Accused said he used to fend for himself from wages earned from casual jobs. He said his parents also did work to sustains the family and each could come home with something after work. Accused said that sometimes the deceased could come home drunk and his speech would change. That he could demand for food and even questioned why his children were living in his house. He said the deceased was a story teller and loved music. Accused said the deceased changed and used to argue a lot with his mother over money for food and whenever he wanted to know why they were quarrelling he was told to look for his father. He said that a time came when the deceased was not even accepting his greetings.
That on 3/9/2019 the deceased returned home at 8.00 pm and upon entering said he did not want visitors in his compound. That the deceased continued quarreling and when he went to find out what the problem was the deceased got out and told him to leave his home. He said the deceased stayed in the room alone as he did not argue with his wife. That the deceased came from his room armed with a knife and the accused decided to restrain him as he suspected he would injure someone. That in the course of restraining him the deceased got injured on the eye. That members of public responded and started beating him. He said the knife he snatched from the deceased was taken by police. He said the mother and his siblings were in their rooms when the incident happed and he was alone with the deceased. Accused said he was injured on the leg and was taken to hospital. He said he did not kill the deceased.
Upon close of defence case written submission dated 23/5/2024 were filed on 24/5/2024.

Analysis and Determination

In consideration of the evidence of 8 prosecution witnesses and in consideration of the defence witness’ sworn statement, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.

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.’

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

There is no dispute as to the death of the deceased.

Whether death was caused by an unlawful or omission on the part of the accused

PW1 said the accused entered the deceased’s room and started slapping him and that he got a panga from the parent’s room and used it to hit the deceased. PW2 said the accused dragged the deceased from his room and beat him using his fists and kicks until he lost consciousness and it is neighbours who rescued him. PW4 also said that the accused kicked the door to the deceased’s room and removed him from the house and beat him and he bled from the head and mouth. PW5 and PW8, the sons-in-law of the deceased also testified that they got information that the accused had caused a commotion at home and assaulted his father who sustained severe injuries and was admitted in hospital. Dr. Samira Osman established the cause of death of the deceased as severe head injuries secondary to blunt trauma. It is therefore clear that the injuries that led to the death of the deceased were not accidental or self-inflicted. The injuries were as a result of an unlawful act. Evidence of all the witnesses and even PW6 who testified in favour of the accused was that the injuries that led to the death of the deceased were as a result of the accused assaulting his father.

Malice aforethought

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”.

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.”

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.”

It is not disputed that it is the accused person who went to the deceased’s room demanding that the deceased lowers the volume of the radio. According to PW1, PW2 and PW4, the siblings of the accused person, the accused person forcefully removed his father from his room and assaulted him with slaps, fists and flat side of the panga until he fainted. PW2 said that when she saw the accused dragging his father from the room and beating he she ran and called for help from the mosque and on return his father was bleeding from the head which had an injury. According to PW2, the accused was not deterred by the arrival of the neighbor and when he told the neighbours to leave him alone, the neighbours descended on him and beat him until he had his leg fracture. PW5, the son-in-law to the deceased said it was not the first time that the accused person was assaulting his father. That 2 years prior to this incident, he had beaten his father until his two teeth came out. That it was corporal punishment at the Makondooni Administration Police that calmed him down until on the material day that he caused fatal injuries to his father.
The evidence of PW1, PW2, PW4, and PW5 controverts the evidence of PW6 and the accused together with defence submissions that the accused person was provoked by the deceased. The accused person’s actions of forcefully accessing the deceased’s room, dragging him out and beating him unconscious is proof of malice aforethought.
This court therefore finds that the prosecution has proved its case beyond reasonable doubt. The accused person is found guilty of the offence of murder and convicted accordingly pursuant to Section 322(1) of the Criminal Procedure Code.