1. The accused person herein Patrick Ongadi Maheri is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) Laws of Kenya that on 4/1/2022 at Bahari Parents Academy in Mtwapa Township within Kilifi County, murdered Daniel Karugo Njoki.
2. The accused person pleaded not guilty to the charge and the case was set down for hearing.
3. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. This court took over when a ruling that the accused person had a case to answer had been made. The accused person opted to have the case to proceed from where Hon. Lady Justice Anne Ong’ijo had left it. He gave sworn evidence in defence and did not call a witness.
4. Before he took plea, a mental assessment report prepared by Dr. C.M. Mwangome M.Med consultant psychiatrist/DDMS dated 9/2/2022 declared that the accused person had no mental illness and therefore was fit to plead.
5. The prosecution called ten witnesses, and not eight as submitted by learned counsel for the prosecution, to support the charge.
6. A summary of the prosecution’s case against the accused person is that he was a security guard at Bahari Parents Academy together with PW 1, Hamisi Said Mwachara. On the night of 4th January 2022 at around midnight, the accused person spotted the deceased walking in the compound and alerted PW 1. They together went to where the deceased was near the students’ dormitory. They found him seated near some tanks adjacent to the dormitory. PW 1 asked him what he was doing within the school at the time. He was hesitant to answer but later he told them that he had gone there to work. Apparently, he was one of the workers doing some painting work in the school during the day.
7. After the security guards found the deceased in the compound they called a teacher PW 2, Odiere Polycarp and the school matron PW 3, Hellen Kadzo who came and spoke to the deceased. He told them that he had come to work at night in order to finish the work and get paid the following day. After the PW 2 and PW 3 left, the accused person went on interrogating the deceased asking him if he wanted to cause them to be sacked. The deceased did not respond and the accused person went on beating him with the stick he had. PW 1 said the accused person beat the deceased on the legs. They stayed with the deceased from around midnight when they spotted him within the school compound until daybreak. The deceased at some point attempted to escape from their custody but they caught up with him and the accused person continued to beat him with the stick. The deceased was at one point unable to move. He died at around 8.00 a.m. under the guard of PW 1 as the accused person together with PW 2 had gone to make a report to the police of the deceased being found in the school at night.
8. PW 4, Wangeci Karugo and PW 5, Paul Karugo were relatives of the deceased who identified his body for post mortem. They had no evidence on how the incident leading to the death occurred.
9. PW 6, James Wachira Gakunju, the school bursar learnt of the incident when he reported to school the morning of 4/1/2022. He had no evidence of what had transpired overnight. He gave the accused person together with a teacher fare to report to the police the incident of the deceased having been found in the school compound during the night.
10. PW 7, Samwel Kiprono Chebii, is a forensic imaging and acoustic analyst. He analyzed the CCTV footage capturing the incident in the school, produced photographic images of the same and prepared a report which he produced in court as exhibits.
11. PW 8 PC Judah Musyoka visited the scene after a report was made to the police station and collected evidence and also removed the body of the deceased to the mortuary.
12. PW 9, Dr. Gabriel Mngola of Coast General Teaching and Referral Hospital conducted a postmortem on the body of the deceased on 10/1/2022 and the significant findings he made on the injuries sustained by the deceased were:
a. bruises on the right wrist, right arm, left arm and right shoulder.
b. scalp hematoma.
c. multiple bruises and superficial lacerations on the upper and lower back.
d. bruising around the right lateral aspect of the abdomen.
e. bruises on the right and left knees.
f. Linear brusies on the posterior aspect of left leg.
g. Paint stain on left leg.
h. hematoma on the 8th right rib with a fracture of the rib.
i. lung contusions bilaterally.
j. On the head massive, scalp hematoma on right and left temporo-partial regions, scalp hematoma on occipital region, subdural hematoma and gross brain oedema.
k. All other systems were normal.
13. The doctor formed the opinion that the cause of death was severe traumatic head injury secondary to blunt trauma with massive subdural hematoma.
14. PW 10 PC David Mailu was the investigating officer. He took the witness statements and collected CCTV footage of the incident as the school compound is monitored by CCTV surveillance cameras. The same was produced as exhibit in the case.
15. The accused person was put on his defence after a finding that there was sufficient evidence adduced by the prosecution making out a prima facie case against him. The accused person gave sworn evidence and did not call a witness in defence.
16. The accused person denied that he beat the deceased to death. He said that while on duty on the material night he heard the sound of an object falling with a thud coming from the dining hall area. He approached the place stealthily and with the light of his torch noticed the deceased who appeared to have fallen from the ventilation and he was unable to move. He alerted his colleague PW 1 who came over. The deceased rose up with a metal bar and charged at him to attack. In order to defend himself, he beat him with the rungu that he had but he did not hit him much. The deceased dropped the metal rod and surrendered. He did not tell them where he had passed to get where he was. When PW 2 and PW 3 came and asked him, he said that he had come to get a class 8 girl in the school. The pupils had reported back to school that day.
17. Later in the morning, he left the deceased within the school compound and went to report the incident at Mtwapa police station. When he came back at 11.00 a.m. he did not find the deceased at the place he had left him. They found him lying near the toilets appearing dead with PW 1 on guard.
18. The accused person said that he took the police officers to see the place where the deceased had jumped through into the school. It was slippery and he had fallen from it badly.
19. After close of the defence case, learned counsel for the prosecution and for the accused person filed submissions urging their respective cases.
20. Learned counsel for the prosecution submitted that there was evidence that the deceased died from being beaten with a rungu or club on his head. He discounted the accused person’s assertion that the deceased fell from a height and was injured and said that the post mortem examination results did not show any injury consistent with a fall.
21. Learned counsel for the accused person submits that there were gaps in the prosecution’s case. First that the CCTV did not capture the period when the deceased last seen alive by the accused person when he went to report the incident to the police and so it is not clear what transpired causing the death of the deceased. Second, that the prosecution failed to establish the motive of the accused person to kill the deceased.
22. I have considered the evidence by the prosecution, the defence by the accused person and the submissions by learned counsels. The point for determination is whether or not the prosecution has proved a case of murder against the accused person beyond a reasonable doubt.
23. The offence of murder is provided for under section 203 of the Penal Code as follows:
“S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
24. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) cited by learned counsel for the defence the Court of Appeal said thus regarding the ingredients of the offence of murder:
“For the offence of murder, 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. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”
25. In this case, there was one witness PW 1 who testified that he was with the deceased and the accused person throughout from the time they found the deceased in the compound until the time the accused person left the school to go and report the incident, which he says was trespass, to the police. PW 1 was detained together with the accused person as suspects but he was later released when evidence established that he had not assaulted the deceased. PW 1 said that the accused person beat the deceased with a stick and nothing else.
26. PW 3 also said that when she saw the deceased, she recognized him as a painter who had worked in the school during the day. The deceased who appeared drunk told her that he had come in order to complete painting the office. PW 3 said that the office had been left open due to the painting during the day. The accused person and PW 1 showed her where the deceased had gained entry into the school.
27. PW 3 also said she saw the accused person beating the deceased with a stick on his knees and back. There is no indication that he beat him on the head.
28. PW 3 said further that on the morning of 4/1/2022, she spoke to the deceased whom she referred to as Dan. He apologized to her for having showed disrespect and she also told her that she was sorry. He appeared weak from the beatings. He died afterwards while in the school compound.
29. The CCTV footage report produced in court showed that the deceased was beaten by one person using a stick. There is no indication however from the evidence of PW 1, PW 2 and the CCTV footage report that the accused person ever beat the deceased on the head. There is also no evidence that the accused person beat him with a rungu or club as submitted by learned counsel for the prosecution.
30. The postmortem findings were that the deceased died as a result of severe injury to the head secondary to blunt trauma. There is no indication that this injury was caused by the accused beating of the deceased with the stick and also no evidence that it was repeated beating with a rungu or club as submitted by learned counsel for the prosecution.
31. I am satisfied from the evidence on record that the accused person did beat the deceased severally with the stick. However, those beatings were not the direct cause of the death. They most probably contributed by accelerating the death especially since he was never given medical attention for the serious injury that he had sustained on the head.
32. The question then is how he sustained the injury to the head?
33. Learned counsel for the accused person alluded to the injury having been caused while the accused person was away to report the incident at the police station. Although PW 1 was a person of interest in the matter as he had been with the deceased and the accused person throughout and he was the one guarding him even at his demise, I find that he was an honest witness. The CCTV never captured a second person beating the deceased and the accused person never alleged that PW 1 did also beat up the deceased person. It is totally improbable that he would have beaten him during the day when he was left to guard him as the accused person went to report to the police.
34. There is evidence from the CCTV footage that the deceased entered a room from the top of a wall. This evidence is consistent with the evidence of the accused person that he heard the deceased jumping from a height. The accused person said that he showed the police officers the place from where the deceased had entered the school. It was from a height and it appeared slippery. PW 3 said that the deceased appeared drunk. The doctor said that there was paint stain on his leg. There is evidence that the room had been freshly painted and so the accused person’s evidence that the deceased came down from the top of the wall would explain the paint on his leg. There was no evidence tendered to challenge the version given by the accused person. There is a possibility that the deceased while entering the room from the top of the wall, slipped and fell with his head. This explains, the doctor’s report that he had sustained a head injury secondary to blunt trauma.
35. It is highly probable that this injury was internal because none of the witnesses who saw him said he or she saw such an injury on the body of the deceased. The injury may have been exacerbated more by the fact that nobody took action to take the deceased to hospital even as he appeared weak right from the point the security guards found him hiding and his condition seemed to have become worse in the morning.
36. On the first ingredient of murder, that of actus reus, I am satisfied that the act of the accused person beating the deceased, together with lack of immediate medical attention contributed to hasten his death.
37. The next issue for determination is whether the accused person had malice aforethought when he beat the deceased with the stick. Section 206 of the Penal Code provides for the instances under which malice aforethought is deemed established thus:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstance:-
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.”
38. From the evidence on record, it is apparent that the accused person beat the deceased severally on the back and lower parts of the body. He was a security guard and part of his duty was to guard the school property. The deceased had clearly trespassed into the school compound at night even as he had been working there as a painter during the day.
39. In the circumstances of this case, I am unable to find that the prosecution established malice aforethought beyond reasonable doubt on the part of the accused person. Whatever beatings he gave the deceased appear to have been geared towards immobilizing him and not to cause him grievous harm. The environment the accused person was guarding was sensitive. He must have had fears that if the deceased escaped, he would be blamed and even lose his job. That fear was not out of nothing, given the sensitive environment of the school that he was guarding. He seems to have put caution to the wind by continuously beating the deceased who it appears had been overwhelmed by the fall. In the circumstances, I find that there was no evidence to demonstrate a premeditated intention to cause grievous harm or to kill the deceased.
40. I am however satisfied that he accelerated the death of the deceased with beatings. Having subdued him and bound his hands with a rope and having been asked by his colleague PW 1 and matron PW 2 not to carry on beating the deceased, he ought to have headed. I am satisfied from the evidence on record that the accused person caused the death of the deceased through an unlawful act but not through malice aforethought.
41. Section 179 of the Criminal Procedure Code (Cap. 75) Laws of Kenya provides that:
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 the 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.
42. Consequently, under section 179 (2) of the Criminal Procedure Code, this court finds and substitutes the charge of murder with manslaughter and holds that the accused Patrick Ongadi is guilty of the lesser offence of manslaughter contrary to section 202 (1) as read with section 205 of the Penal Code (Cap. 63) Laws of Kenya. He is hereby accordingly convicted as such.
43. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 19th of December 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused in person present in court.
Ms Kuria for the accused person.
Murigu for the complainant.
Mr. Ngiri for the Respondent
Etropia - Court Assistant
2. The accused person pleaded not guilty to the charge and the case was set down for hearing.
3. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. This court took over when a ruling that the accused person had a case to answer had been made. The accused person opted to have the case to proceed from where Hon. Lady Justice Anne Ong’ijo had left it. He gave sworn evidence in defence and did not call a witness.
4. Before he took plea, a mental assessment report prepared by Dr. C.M. Mwangome M.Med consultant psychiatrist/DDMS dated 9/2/2022 declared that the accused person had no mental illness and therefore was fit to plead.
5. The prosecution called ten witnesses, and not eight as submitted by learned counsel for the prosecution, to support the charge.
6. A summary of the prosecution’s case against the accused person is that he was a security guard at Bahari Parents Academy together with PW 1, Hamisi Said Mwachara. On the night of 4th January 2022 at around midnight, the accused person spotted the deceased walking in the compound and alerted PW 1. They together went to where the deceased was near the students’ dormitory. They found him seated near some tanks adjacent to the dormitory. PW 1 asked him what he was doing within the school at the time. He was hesitant to answer but later he told them that he had gone there to work. Apparently, he was one of the workers doing some painting work in the school during the day.
7. After the security guards found the deceased in the compound they called a teacher PW 2, Odiere Polycarp and the school matron PW 3, Hellen Kadzo who came and spoke to the deceased. He told them that he had come to work at night in order to finish the work and get paid the following day. After the PW 2 and PW 3 left, the accused person went on interrogating the deceased asking him if he wanted to cause them to be sacked. The deceased did not respond and the accused person went on beating him with the stick he had. PW 1 said the accused person beat the deceased on the legs. They stayed with the deceased from around midnight when they spotted him within the school compound until daybreak. The deceased at some point attempted to escape from their custody but they caught up with him and the accused person continued to beat him with the stick. The deceased was at one point unable to move. He died at around 8.00 a.m. under the guard of PW 1 as the accused person together with PW 2 had gone to make a report to the police of the deceased being found in the school at night.
8. PW 4, Wangeci Karugo and PW 5, Paul Karugo were relatives of the deceased who identified his body for post mortem. They had no evidence on how the incident leading to the death occurred.
9. PW 6, James Wachira Gakunju, the school bursar learnt of the incident when he reported to school the morning of 4/1/2022. He had no evidence of what had transpired overnight. He gave the accused person together with a teacher fare to report to the police the incident of the deceased having been found in the school compound during the night.
10. PW 7, Samwel Kiprono Chebii, is a forensic imaging and acoustic analyst. He analyzed the CCTV footage capturing the incident in the school, produced photographic images of the same and prepared a report which he produced in court as exhibits.
11. PW 8 PC Judah Musyoka visited the scene after a report was made to the police station and collected evidence and also removed the body of the deceased to the mortuary.
12. PW 9, Dr. Gabriel Mngola of Coast General Teaching and Referral Hospital conducted a postmortem on the body of the deceased on 10/1/2022 and the significant findings he made on the injuries sustained by the deceased were:
a. bruises on the right wrist, right arm, left arm and right shoulder.
b. scalp hematoma.
c. multiple bruises and superficial lacerations on the upper and lower back.
d. bruising around the right lateral aspect of the abdomen.
e. bruises on the right and left knees.
f. Linear brusies on the posterior aspect of left leg.
g. Paint stain on left leg.
h. hematoma on the 8th right rib with a fracture of the rib.
i. lung contusions bilaterally.
j. On the head massive, scalp hematoma on right and left temporo-partial regions, scalp hematoma on occipital region, subdural hematoma and gross brain oedema.
k. All other systems were normal.
13. The doctor formed the opinion that the cause of death was severe traumatic head injury secondary to blunt trauma with massive subdural hematoma.
14. PW 10 PC David Mailu was the investigating officer. He took the witness statements and collected CCTV footage of the incident as the school compound is monitored by CCTV surveillance cameras. The same was produced as exhibit in the case.
15. The accused person was put on his defence after a finding that there was sufficient evidence adduced by the prosecution making out a prima facie case against him. The accused person gave sworn evidence and did not call a witness in defence.
16. The accused person denied that he beat the deceased to death. He said that while on duty on the material night he heard the sound of an object falling with a thud coming from the dining hall area. He approached the place stealthily and with the light of his torch noticed the deceased who appeared to have fallen from the ventilation and he was unable to move. He alerted his colleague PW 1 who came over. The deceased rose up with a metal bar and charged at him to attack. In order to defend himself, he beat him with the rungu that he had but he did not hit him much. The deceased dropped the metal rod and surrendered. He did not tell them where he had passed to get where he was. When PW 2 and PW 3 came and asked him, he said that he had come to get a class 8 girl in the school. The pupils had reported back to school that day.
17. Later in the morning, he left the deceased within the school compound and went to report the incident at Mtwapa police station. When he came back at 11.00 a.m. he did not find the deceased at the place he had left him. They found him lying near the toilets appearing dead with PW 1 on guard.
18. The accused person said that he took the police officers to see the place where the deceased had jumped through into the school. It was slippery and he had fallen from it badly.
19. After close of the defence case, learned counsel for the prosecution and for the accused person filed submissions urging their respective cases.
20. Learned counsel for the prosecution submitted that there was evidence that the deceased died from being beaten with a rungu or club on his head. He discounted the accused person’s assertion that the deceased fell from a height and was injured and said that the post mortem examination results did not show any injury consistent with a fall.
21. Learned counsel for the accused person submits that there were gaps in the prosecution’s case. First that the CCTV did not capture the period when the deceased last seen alive by the accused person when he went to report the incident to the police and so it is not clear what transpired causing the death of the deceased. Second, that the prosecution failed to establish the motive of the accused person to kill the deceased.
22. I have considered the evidence by the prosecution, the defence by the accused person and the submissions by learned counsels. The point for determination is whether or not the prosecution has proved a case of murder against the accused person beyond a reasonable doubt.
23. The offence of murder is provided for under section 203 of the Penal Code as follows:
“S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
24. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) cited by learned counsel for the defence the Court of Appeal said thus regarding the ingredients of the offence of murder:
“For the offence of murder, 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. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”
25. In this case, there was one witness PW 1 who testified that he was with the deceased and the accused person throughout from the time they found the deceased in the compound until the time the accused person left the school to go and report the incident, which he says was trespass, to the police. PW 1 was detained together with the accused person as suspects but he was later released when evidence established that he had not assaulted the deceased. PW 1 said that the accused person beat the deceased with a stick and nothing else.
26. PW 3 also said that when she saw the deceased, she recognized him as a painter who had worked in the school during the day. The deceased who appeared drunk told her that he had come in order to complete painting the office. PW 3 said that the office had been left open due to the painting during the day. The accused person and PW 1 showed her where the deceased had gained entry into the school.
27. PW 3 also said she saw the accused person beating the deceased with a stick on his knees and back. There is no indication that he beat him on the head.
28. PW 3 said further that on the morning of 4/1/2022, she spoke to the deceased whom she referred to as Dan. He apologized to her for having showed disrespect and she also told her that she was sorry. He appeared weak from the beatings. He died afterwards while in the school compound.
29. The CCTV footage report produced in court showed that the deceased was beaten by one person using a stick. There is no indication however from the evidence of PW 1, PW 2 and the CCTV footage report that the accused person ever beat the deceased on the head. There is also no evidence that the accused person beat him with a rungu or club as submitted by learned counsel for the prosecution.
30. The postmortem findings were that the deceased died as a result of severe injury to the head secondary to blunt trauma. There is no indication that this injury was caused by the accused beating of the deceased with the stick and also no evidence that it was repeated beating with a rungu or club as submitted by learned counsel for the prosecution.
31. I am satisfied from the evidence on record that the accused person did beat the deceased severally with the stick. However, those beatings were not the direct cause of the death. They most probably contributed by accelerating the death especially since he was never given medical attention for the serious injury that he had sustained on the head.
32. The question then is how he sustained the injury to the head?
33. Learned counsel for the accused person alluded to the injury having been caused while the accused person was away to report the incident at the police station. Although PW 1 was a person of interest in the matter as he had been with the deceased and the accused person throughout and he was the one guarding him even at his demise, I find that he was an honest witness. The CCTV never captured a second person beating the deceased and the accused person never alleged that PW 1 did also beat up the deceased person. It is totally improbable that he would have beaten him during the day when he was left to guard him as the accused person went to report to the police.
34. There is evidence from the CCTV footage that the deceased entered a room from the top of a wall. This evidence is consistent with the evidence of the accused person that he heard the deceased jumping from a height. The accused person said that he showed the police officers the place from where the deceased had entered the school. It was from a height and it appeared slippery. PW 3 said that the deceased appeared drunk. The doctor said that there was paint stain on his leg. There is evidence that the room had been freshly painted and so the accused person’s evidence that the deceased came down from the top of the wall would explain the paint on his leg. There was no evidence tendered to challenge the version given by the accused person. There is a possibility that the deceased while entering the room from the top of the wall, slipped and fell with his head. This explains, the doctor’s report that he had sustained a head injury secondary to blunt trauma.
35. It is highly probable that this injury was internal because none of the witnesses who saw him said he or she saw such an injury on the body of the deceased. The injury may have been exacerbated more by the fact that nobody took action to take the deceased to hospital even as he appeared weak right from the point the security guards found him hiding and his condition seemed to have become worse in the morning.
36. On the first ingredient of murder, that of actus reus, I am satisfied that the act of the accused person beating the deceased, together with lack of immediate medical attention contributed to hasten his death.
37. The next issue for determination is whether the accused person had malice aforethought when he beat the deceased with the stick. Section 206 of the Penal Code provides for the instances under which malice aforethought is deemed established thus:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstance:-
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.”
38. From the evidence on record, it is apparent that the accused person beat the deceased severally on the back and lower parts of the body. He was a security guard and part of his duty was to guard the school property. The deceased had clearly trespassed into the school compound at night even as he had been working there as a painter during the day.
39. In the circumstances of this case, I am unable to find that the prosecution established malice aforethought beyond reasonable doubt on the part of the accused person. Whatever beatings he gave the deceased appear to have been geared towards immobilizing him and not to cause him grievous harm. The environment the accused person was guarding was sensitive. He must have had fears that if the deceased escaped, he would be blamed and even lose his job. That fear was not out of nothing, given the sensitive environment of the school that he was guarding. He seems to have put caution to the wind by continuously beating the deceased who it appears had been overwhelmed by the fall. In the circumstances, I find that there was no evidence to demonstrate a premeditated intention to cause grievous harm or to kill the deceased.
40. I am however satisfied that he accelerated the death of the deceased with beatings. Having subdued him and bound his hands with a rope and having been asked by his colleague PW 1 and matron PW 2 not to carry on beating the deceased, he ought to have headed. I am satisfied from the evidence on record that the accused person caused the death of the deceased through an unlawful act but not through malice aforethought.
41. Section 179 of the Criminal Procedure Code (Cap. 75) Laws of Kenya provides that:
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 the 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.
42. Consequently, under section 179 (2) of the Criminal Procedure Code, this court finds and substitutes the charge of murder with manslaughter and holds that the accused Patrick Ongadi is guilty of the lesser offence of manslaughter contrary to section 202 (1) as read with section 205 of the Penal Code (Cap. 63) Laws of Kenya. He is hereby accordingly convicted as such.
43. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 19th of December 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused in person present in court.
Ms Kuria for the accused person.
Murigu for the complainant.
Mr. Ngiri for the Respondent
Etropia - Court Assistant