REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRC NO. 17 OF 2020
REPUBLIC ……………………………………………………..PROSECUTOR
VERSES
SAMMY MULWA KASIKWA ALIAS MBOI ……………………ACCUSED
JUDGMENT
The accused person SAMMY MULWA KASIKWA ALIAS MBOI is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on 27/5/2020 at Kimuama village, Uvaleni Sub-Location, Kasikeu Location, Mukea Sub-County within Makueni murdered Onesmus Ngonyo Ngoku.
Plea was taken on 4/8/2020 and he pleaded not guilty.
The matter proceeded before Hon Dulu J also heard Pw1 to Pw4.
Pw1 Emmanuel Musembi Kioko told the court that on 27/5/2020 he woke up to make bricks. Onesmus Ngeno Ngoku his cousin came to assist him. They worked until it was time for lunch. They went for lunch at the mother of Onesmus Pw2 Sarah Kanini Ngoku. That is when Sammy Kasikwa, the accused came there. He said he wanted to eat as well. He was served with food – which he ate.
Nduku Mutuku had sent him (Sammy) for some cups – Nduku was the mother to Emmanuel Musembi. When they were eating , Sammy was asked about the cups. After they had eaten Sammy left. He came back later with his friend one Kauwi. Sammy gave the cups (4) of them in a pink paper bag to Pw1. Then the PW1, the deceased went together with him and Kauwi. At Sammy’s house there was an incident . Then – Sammy were with his house – he came out – and had his hands in his pocket. He produced a knife – and stabbed Onesmus with the knife. Emmanuel testified that on seeing this, he got scared and ran off to tell the mother of Onesmus – Emmanuel said he saw Sammy stab Onesmus on the chest.
He called Pw2 who happened to be at Pw3’s ; assisting her as she had a baby.
Pw2 ran to the place where her son was lying. He was bleeding from the chest, and near the waist. She screamed for help.
Pw4 James Kavita. He said he learnt about the stabbing of Onesmus by Sammy from Emmanuel. He proceeded to the scene and found the mother of Onesmus there screaming – Onesmus appeared dead. He and others remained there until police came about 900 pm.
The next day he accompanied the mother of Onesmus to Kilungu police station where she recorded her statement. Three days later they were told Sammy had been arrested. He said he and the father of Onesmus attended the postmortem where he found that there was a stab wound in the chest and cut wound at the waist.
Pw6 Patrick Mutua Muthoka village elder then, was rang by Nancy Muthenya – Chair Nyumba Kumi. She told him that a person had been killed. He went to the scene and confirmed that was the position then he rang the senior Assistant Chief Pw5 Philip Kyengo Ndivo – and told him what Nancy had told him.
The senior Assistant Chief rang the Chief, and rang Mang’ele police post. He waited for them, and they went together to the scene at about 8:30 pm.
Pw5 said at the scene he saw the body of the deceased in a pool of blood, the police took away the body. He testified that at the scene he saw the pool of blood when the police lifted the body, that a blood stained shirt was collected from a compound nearby; that he did not see the culprit at the scene.
On his part Pw6 said it was dark, he did not see the body well, he said he did not know a young man by the name Kauwi.
Pw7 No. 8618781 Peter Ndambuki was the scenes of Crime Officer and produced evidence on behalf of his colleague No. 46623 sergeant Peter Kiilu who had retired by then. He testified that the report was dated 18/7/2020 and it said that on 17/7/2020 the officer had received from CPL Sabisa of Mukaa DCI a CD for processing and printing. He produced photos of the deceased from various angles, the upper body showing the stab wound, (chest near the neck) that wound on right side of the back. He produced the photos and the certificate – P (2 (a) to (g) and PEx2. He confirmed that Kiilu did not visit the scene –
Pw8 Dr. Patrick Mugonya conducted the postmortem on the body of Onesmus Ngonyo Ngoku on 1/6/2020. Externally there was a wound on the front side of the chest wall - 10cm in the right side of the chest between the clavicle – 2.6 cm x 1.2 cm, 8.3 cm deep. (between 1 st and 2 nd rib) – stab wound on the right lumber region right side of abdomen – 3.5 x 0.6cm, 2 cm deep, bruises on both elbows. Internally, there was a puncture on the right lung, upper side, upper lobe cm deep, blood clot 8 cm in diameter in chest cavity Severed right sub clavian artery and vein.
Cause of death:-Cardio pulmonary arrest due to massive hemorrhage.
He produced the signed postmortem report.
On cross-examination he testified that specimens were collected for further examination and handed over to the Investigating Officer.
He said the injuries were caused by a sharp object which could have been 2.6 cm wide, 8.3 cm long.
Pw9 No. 53380 CPL Evans Sabisa was at DCI Mukea at the material time, together with colleagues he went to the scene – he says on 26/5/2020 (could be a mistake on the date)
However, he said he found body of deceased lying on the ground. The village elder was present. He conducted statements. He recorded statements. He reiterated what witnesses – in particular Pw1 told him. He went to the house of accused on 28/5/2020 – and in his house found blue jacket, yellow T-shirt (blood-stained) took them away- later sent to them to the Government analyst. The report that came back was negative.
They learnt that the accused was at Kalembwani on 30/5/2020. They arrested accused on 31/5/2022 inside a bush where he had been sleeping.
On 1/6/2020, Pw9 attended the postmortem.
On cross-examination he said Pw1 said deceased was stabbed near the house of accused, and fell about 80m away from the house of the accused.
He said there was no blood near Sammy’s house the following day. He said he did not recover the knife.
Upon closure of the case for the prosecution, the accused was put on the defence – he opted to make a sworn testimony and did not call any witness.
The accused testified that before arrest he was a mechanic. He said on 27/5/2020 he was in Mombasa – he travelled to home – reached there around 5:30 pm. – then he passed by the home of one Mulu who sold alcohol – pombe ya kienyeji. The deceased arrived with Pw1. They requested that he buy for them . He bought for them they drank for a while – at some point the deceased and his friend wanted to take his shoes and his back pack, and they fought. The owner of the place came, separated them, threw out the deceased and his friend. They left - threatening to return.
He said he left the place between 6:40 – 6:45 pm. He went home – he testified that while there, the deceased and 2 others attacked him demanding for money – that deceased had a panga and even cut his three fingers when he raised his hand in self defence.
He said he raised alarm, neighbours came, rescued him, but the deceased friend’s took away his phone. He said the deceased and his friends fought with the neighbours and he did not know what happened. He said he went to hospital the following day but did not report the incident. He denied stabbing the deceased, he said he did not know how the deceased died.
On cross-examination he said he did not know the deceased before, he did not know Pw3 Nduku Mutuku, he said he was drinking in the home of Mulu – that deceased was among the other 7 drinkers – that deceased found him there. He said they fought because they wanted to take his shoes and back – pack – he said there were 5 wazees who he knew but he was not calling any of them as witnesses.
He said the attackers went to his home, he was in the toilet, and they kicked the door open. He said he did not report to the police because he did not know the attackers. Thought he said they attacked and robbed him. He said many other people went to his rescue.
He said Pw1 and Pw4 were family members and that could explain this case against him, he said he did not have any grudges.
He said his neighbours refused to testify out of fear – and in the same breath and, that he did not ask them.
Counsel for the accused took time to file submissions. At the time of writing this Judgment there were none on record.
Analysis and Determination
I heard 4 out of the 9 witnesses who testified.
I have considered the evidence and the issue for determination is whether the prosecution has proved the offence of murder beyond a reasonable doubt.
Now Section 203 as read with s. 206 of the Penal code sets the ingredients of the offence of murder. These were summarized by the Court of Appeal in Anthony Ndegwa Ngari -vs- R [2014] eKLR, as follows;
a) The death of the deceased occurred and its cause.
b) That the death was caused by an unlawful act committed by the accused (actus reus).
c) That the accused had malice aforethought (mens rea).
After careful consideration of the evidence and the submissions, the issue for determination is whether the prosecution has proved the charge against the accused persons beyond a reasonable doubt.
i. Proof of death
ii. Cause of death
iii. Who caused the death?
iv. Whether there was malice afore thought?
Death of a person
The deceased Onesmus Ngonyo Ngoku was confirmed dead by the Pathologist Dr. Patrick Mugonya who filled the postmortem. Pw4 testified that he attended the postmortem together with the father of the deceased. The Investigating Officer Pw9 also attended the postmortem hence there is no doubt that Onesmus Ngonyo Ngoku died.
Cause of Death
The postmortem report confirmed that cause of death was cardiopulmonary arrest due to loss of blood – following injuries caused by sharp object. Pw1 testified that he saw the accused person stab the deceased with a knife – before he ran away – and the injuries were caused by a sharp object – it is therefore not in doubt that the cause of death was not lawful
Did the accused cause the death of the deceased?
The accused denied causing the death of the deceased. He said that Pw1 to Pw4 lied about the circumstances leading to that death. He said he did not know what caused the death. According to Pw1 – he and the deceased were making bricks. They worked till evening and went to Pw1’s mother’s house for lunch. While there accused arrived – and also asked for food.
He was served food. They ate together and he left. As he was leaving Pw1’s mother asked him whether he had brought the items he had been sent for. He came back later in the company of one Kauwi – and handed over four cups in a pink paper bag for Pw3.The accused person statement of defence denies this part of the prosecution’s evidence. However, it is evident that Pw1, Pw2 and Pw3 saw the accused earlier before the incident in the home of Pw2. The accused said there was no grudge between him and these three and I found no reason for which they would say that he was in that home before the incident happened. After the accused handed over the cups, the accused and deceased joined the accused and went to accused’s home.
Pw1 denies that they took alcohol. Pw1 wants the court to believe that that the accused person out of the blue – and without any provocation just went inside his house came out with a knife and stabbed the deceased. He leaves out the details of what would have led to the stabbing.
However, his evidence is clear – that he saw the accused stab the deceased then ran to call for help. His testimony about seeking for help is supported by the evidence of Pw2, Pw3 & Pw4 – all of whom confirm that the Pw1 was calling saying that Onesmus had been assaulted by the accused. Hence the evidence is clear that it is the accused person who stabbed the deceased.
Was there malice afterthought?.
I find assistance in Bonaya Tutu Ipu & another v Republic [2015] KECA 335 (KLR) where the court stated this
In this appeal, it cannot be and it is not disputed that the death of the deceased was caused by the unlawful action of the appellants. The real question is whether the appellants caused the death with malice aforethought so as to constitute the offence of murder under section 203 of the Penal Code. “Malice aforethought” is the mens rea for the offence of murder and it is the presence or absence of malice aforethought, which is decisive in determining whether an unlawful killing amount to murder or manslaughter. Whether or not malice aforethought is proved in any prosecution for murder depends on the peculiar facts of each case. (See MORRIS ALUOCH V. REPUBLIC CR. APP. No 47 of 1996).
Section 206 of the Penal Code provides as follows regarding malice aforethought:
“206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances –
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
The accused person in his defence told the court that he was drinking with the deceased and Pw1. That a fight broke out because they wanted to take his shoes and his backpack.
His explanation that over 50 members of the public came to his rescue borders on the unbelievable especially where not even one recorded a statement/accompanied him to the chief to report the attack.
What emerges to have been the situation is that the accused person, the deceased and Pw1 were drinking together – a fight broke out, and the accused stabbed the deceased in the process:– the Pw1 ran away to call for help as the accused also ran away.
Clearly the Pw1 and the accused left out details – but a man died – where they were the other persons who were present.
It is only the accused, the deceased and Pw1 who were present. The clear evidence is that the stabbing took place during the fight, and the accused, deceased and Pw1 were all drinking. The accused states that he was injured with a panga - and showed his hand to court as evidence .
However, I have perused the file – when he was presented for the mental health check up on 8/6/2020 – about a week after the incident – the report shows that he admitted to alcohol use but there were no significance findings on the physical examination. If indeed he had such serious panga cuts as alleged, the doctor would have noticed – and the pre-trial court would also have noticed.
His story about the attack by people at his home does not add up.
The prosecution has the onus to prove the charge against the accused – and they have shown that the accused stabbed the deceased when a fight broke out between him, the deceased and Pw1. Pw1 ran for help, and the accused disappeared until he was arrested.
Though the knife was not recovered the Doctor confirmed that the injury was caused by sharp object –
Guided by precedent and the circumstances of the case I find that the prosecution has established the offence of manslaughter under section 202 as read with section 205 of the Penal Code.
The charge of murder is set aside and substituted within manslaughter. The accused person is convicted accordingly.
JUDGMENT dated, signed and delivered.
Mumbua T Matheka
Judge
CA Daniel
Ms. Ong’ong’a for accused
Mr. Musyoki for state.
JUDGMENT HCCRC 17 OF 2020 Page 2 of 2R vs SAMMY MULWA KASIKWA ALIAS MBOI
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRC NO. 17 OF 2020
REPUBLIC ……………………………………………………..PROSECUTOR
VERSES
SAMMY MULWA KASIKWA ALIAS MBOI ……………………ACCUSED
JUDGMENT
The accused person SAMMY MULWA KASIKWA ALIAS MBOI is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on 27/5/2020 at Kimuama village, Uvaleni Sub-Location, Kasikeu Location, Mukea Sub-County within Makueni murdered Onesmus Ngonyo Ngoku.
Plea was taken on 4/8/2020 and he pleaded not guilty.
The matter proceeded before Hon Dulu J also heard Pw1 to Pw4.
Pw1 Emmanuel Musembi Kioko told the court that on 27/5/2020 he woke up to make bricks. Onesmus Ngeno Ngoku his cousin came to assist him. They worked until it was time for lunch. They went for lunch at the mother of Onesmus Pw2 Sarah Kanini Ngoku. That is when Sammy Kasikwa, the accused came there. He said he wanted to eat as well. He was served with food – which he ate.
Nduku Mutuku had sent him (Sammy) for some cups – Nduku was the mother to Emmanuel Musembi. When they were eating , Sammy was asked about the cups. After they had eaten Sammy left. He came back later with his friend one Kauwi. Sammy gave the cups (4) of them in a pink paper bag to Pw1. Then the PW1, the deceased went together with him and Kauwi. At Sammy’s house there was an incident . Then – Sammy were with his house – he came out – and had his hands in his pocket. He produced a knife – and stabbed Onesmus with the knife. Emmanuel testified that on seeing this, he got scared and ran off to tell the mother of Onesmus – Emmanuel said he saw Sammy stab Onesmus on the chest.
He called Pw2 who happened to be at Pw3’s ; assisting her as she had a baby.
Pw2 ran to the place where her son was lying. He was bleeding from the chest, and near the waist. She screamed for help.
Pw4 James Kavita. He said he learnt about the stabbing of Onesmus by Sammy from Emmanuel. He proceeded to the scene and found the mother of Onesmus there screaming – Onesmus appeared dead. He and others remained there until police came about 900 pm.
The next day he accompanied the mother of Onesmus to Kilungu police station where she recorded her statement. Three days later they were told Sammy had been arrested. He said he and the father of Onesmus attended the postmortem where he found that there was a stab wound in the chest and cut wound at the waist.
Pw6 Patrick Mutua Muthoka village elder then, was rang by Nancy Muthenya – Chair Nyumba Kumi. She told him that a person had been killed. He went to the scene and confirmed that was the position then he rang the senior Assistant Chief Pw5 Philip Kyengo Ndivo – and told him what Nancy had told him.
The senior Assistant Chief rang the Chief, and rang Mang’ele police post. He waited for them, and they went together to the scene at about 8:30 pm.
Pw5 said at the scene he saw the body of the deceased in a pool of blood, the police took away the body. He testified that at the scene he saw the pool of blood when the police lifted the body, that a blood stained shirt was collected from a compound nearby; that he did not see the culprit at the scene.
On his part Pw6 said it was dark, he did not see the body well, he said he did not know a young man by the name Kauwi.
Pw7 No. 8618781 Peter Ndambuki was the scenes of Crime Officer and produced evidence on behalf of his colleague No. 46623 sergeant Peter Kiilu who had retired by then. He testified that the report was dated 18/7/2020 and it said that on 17/7/2020 the officer had received from CPL Sabisa of Mukaa DCI a CD for processing and printing. He produced photos of the deceased from various angles, the upper body showing the stab wound, (chest near the neck) that wound on right side of the back. He produced the photos and the certificate – P (2 (a) to (g) and PEx2. He confirmed that Kiilu did not visit the scene –
Pw8 Dr. Patrick Mugonya conducted the postmortem on the body of Onesmus Ngonyo Ngoku on 1/6/2020. Externally there was a wound on the front side of the chest wall - 10cm in the right side of the chest between the clavicle – 2.6 cm x 1.2 cm, 8.3 cm deep. (between 1 st and 2 nd rib) – stab wound on the right lumber region right side of abdomen – 3.5 x 0.6cm, 2 cm deep, bruises on both elbows. Internally, there was a puncture on the right lung, upper side, upper lobe cm deep, blood clot 8 cm in diameter in chest cavity Severed right sub clavian artery and vein.
Cause of death:-Cardio pulmonary arrest due to massive hemorrhage.
He produced the signed postmortem report.
On cross-examination he testified that specimens were collected for further examination and handed over to the Investigating Officer.
He said the injuries were caused by a sharp object which could have been 2.6 cm wide, 8.3 cm long.
Pw9 No. 53380 CPL Evans Sabisa was at DCI Mukea at the material time, together with colleagues he went to the scene – he says on 26/5/2020 (could be a mistake on the date)
However, he said he found body of deceased lying on the ground. The village elder was present. He conducted statements. He recorded statements. He reiterated what witnesses – in particular Pw1 told him. He went to the house of accused on 28/5/2020 – and in his house found blue jacket, yellow T-shirt (blood-stained) took them away- later sent to them to the Government analyst. The report that came back was negative.
They learnt that the accused was at Kalembwani on 30/5/2020. They arrested accused on 31/5/2022 inside a bush where he had been sleeping.
On 1/6/2020, Pw9 attended the postmortem.
On cross-examination he said Pw1 said deceased was stabbed near the house of accused, and fell about 80m away from the house of the accused.
He said there was no blood near Sammy’s house the following day. He said he did not recover the knife.
Upon closure of the case for the prosecution, the accused was put on the defence – he opted to make a sworn testimony and did not call any witness.
The accused testified that before arrest he was a mechanic. He said on 27/5/2020 he was in Mombasa – he travelled to home – reached there around 5:30 pm. – then he passed by the home of one Mulu who sold alcohol – pombe ya kienyeji. The deceased arrived with Pw1. They requested that he buy for them . He bought for them they drank for a while – at some point the deceased and his friend wanted to take his shoes and his back pack, and they fought. The owner of the place came, separated them, threw out the deceased and his friend. They left - threatening to return.
He said he left the place between 6:40 – 6:45 pm. He went home – he testified that while there, the deceased and 2 others attacked him demanding for money – that deceased had a panga and even cut his three fingers when he raised his hand in self defence.
He said he raised alarm, neighbours came, rescued him, but the deceased friend’s took away his phone. He said the deceased and his friends fought with the neighbours and he did not know what happened. He said he went to hospital the following day but did not report the incident. He denied stabbing the deceased, he said he did not know how the deceased died.
On cross-examination he said he did not know the deceased before, he did not know Pw3 Nduku Mutuku, he said he was drinking in the home of Mulu – that deceased was among the other 7 drinkers – that deceased found him there. He said they fought because they wanted to take his shoes and back – pack – he said there were 5 wazees who he knew but he was not calling any of them as witnesses.
He said the attackers went to his home, he was in the toilet, and they kicked the door open. He said he did not report to the police because he did not know the attackers. Thought he said they attacked and robbed him. He said many other people went to his rescue.
He said Pw1 and Pw4 were family members and that could explain this case against him, he said he did not have any grudges.
He said his neighbours refused to testify out of fear – and in the same breath and, that he did not ask them.
Counsel for the accused took time to file submissions. At the time of writing this Judgment there were none on record.
Analysis and Determination
I heard 4 out of the 9 witnesses who testified.
I have considered the evidence and the issue for determination is whether the prosecution has proved the offence of murder beyond a reasonable doubt.
Now Section 203 as read with s. 206 of the Penal code sets the ingredients of the offence of murder. These were summarized by the Court of Appeal in Anthony Ndegwa Ngari -vs- R [2014] eKLR, as follows;
a) The death of the deceased occurred and its cause.
b) That the death was caused by an unlawful act committed by the accused (actus reus).
c) That the accused had malice aforethought (mens rea).
After careful consideration of the evidence and the submissions, the issue for determination is whether the prosecution has proved the charge against the accused persons beyond a reasonable doubt.
i. Proof of death
ii. Cause of death
iii. Who caused the death?
iv. Whether there was malice afore thought?
Death of a person
The deceased Onesmus Ngonyo Ngoku was confirmed dead by the Pathologist Dr. Patrick Mugonya who filled the postmortem. Pw4 testified that he attended the postmortem together with the father of the deceased. The Investigating Officer Pw9 also attended the postmortem hence there is no doubt that Onesmus Ngonyo Ngoku died.
Cause of Death
The postmortem report confirmed that cause of death was cardiopulmonary arrest due to loss of blood – following injuries caused by sharp object. Pw1 testified that he saw the accused person stab the deceased with a knife – before he ran away – and the injuries were caused by a sharp object – it is therefore not in doubt that the cause of death was not lawful
Did the accused cause the death of the deceased?
The accused denied causing the death of the deceased. He said that Pw1 to Pw4 lied about the circumstances leading to that death. He said he did not know what caused the death. According to Pw1 – he and the deceased were making bricks. They worked till evening and went to Pw1’s mother’s house for lunch. While there accused arrived – and also asked for food.
He was served food. They ate together and he left. As he was leaving Pw1’s mother asked him whether he had brought the items he had been sent for. He came back later in the company of one Kauwi – and handed over four cups in a pink paper bag for Pw3.The accused person statement of defence denies this part of the prosecution’s evidence. However, it is evident that Pw1, Pw2 and Pw3 saw the accused earlier before the incident in the home of Pw2. The accused said there was no grudge between him and these three and I found no reason for which they would say that he was in that home before the incident happened. After the accused handed over the cups, the accused and deceased joined the accused and went to accused’s home.
Pw1 denies that they took alcohol. Pw1 wants the court to believe that that the accused person out of the blue – and without any provocation just went inside his house came out with a knife and stabbed the deceased. He leaves out the details of what would have led to the stabbing.
However, his evidence is clear – that he saw the accused stab the deceased then ran to call for help. His testimony about seeking for help is supported by the evidence of Pw2, Pw3 & Pw4 – all of whom confirm that the Pw1 was calling saying that Onesmus had been assaulted by the accused. Hence the evidence is clear that it is the accused person who stabbed the deceased.
Was there malice afterthought?.
I find assistance in Bonaya Tutu Ipu & another v Republic [2015] KECA 335 (KLR) where the court stated this
In this appeal, it cannot be and it is not disputed that the death of the deceased was caused by the unlawful action of the appellants. The real question is whether the appellants caused the death with malice aforethought so as to constitute the offence of murder under section 203 of the Penal Code. “Malice aforethought” is the mens rea for the offence of murder and it is the presence or absence of malice aforethought, which is decisive in determining whether an unlawful killing amount to murder or manslaughter. Whether or not malice aforethought is proved in any prosecution for murder depends on the peculiar facts of each case. (See MORRIS ALUOCH V. REPUBLIC CR. APP. No 47 of 1996).
Section 206 of the Penal Code provides as follows regarding malice aforethought:
“206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances –
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
The accused person in his defence told the court that he was drinking with the deceased and Pw1. That a fight broke out because they wanted to take his shoes and his backpack.
His explanation that over 50 members of the public came to his rescue borders on the unbelievable especially where not even one recorded a statement/accompanied him to the chief to report the attack.
What emerges to have been the situation is that the accused person, the deceased and Pw1 were drinking together – a fight broke out, and the accused stabbed the deceased in the process:– the Pw1 ran away to call for help as the accused also ran away.
Clearly the Pw1 and the accused left out details – but a man died – where they were the other persons who were present.
It is only the accused, the deceased and Pw1 who were present. The clear evidence is that the stabbing took place during the fight, and the accused, deceased and Pw1 were all drinking. The accused states that he was injured with a panga - and showed his hand to court as evidence .
However, I have perused the file – when he was presented for the mental health check up on 8/6/2020 – about a week after the incident – the report shows that he admitted to alcohol use but there were no significance findings on the physical examination. If indeed he had such serious panga cuts as alleged, the doctor would have noticed – and the pre-trial court would also have noticed.
His story about the attack by people at his home does not add up.
The prosecution has the onus to prove the charge against the accused – and they have shown that the accused stabbed the deceased when a fight broke out between him, the deceased and Pw1. Pw1 ran for help, and the accused disappeared until he was arrested.
Though the knife was not recovered the Doctor confirmed that the injury was caused by sharp object –
Guided by precedent and the circumstances of the case I find that the prosecution has established the offence of manslaughter under section 202 as read with section 205 of the Penal Code.
The charge of murder is set aside and substituted within manslaughter. The accused person is convicted accordingly.
JUDGMENT dated, signed and delivered.
Mumbua T Matheka
Judge
CA Daniel
Ms. Ong’ong’a for accused
Mr. Musyoki for state.
JUDGMENT HCCRC 17 OF 2020 Page 2 of 2R vs SAMMY MULWA KASIKWA ALIAS MBOI