Republic v David Thiane [2017] KEHC 1079 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO.11 OF 2013

REPUBLIC...............................................RESPONDENT

- V E R S U S –

DAVID THIANE.................................................ACCUSED

J U D G M E N T

David Thiane (accused)faces a charge of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the charge are that on 20/1/2013, at Ruuji Village, Marega Sub-Location in Tigania East, Meru County, murdered Berito Kobia alias Moses(the deceased).

The prosecution was led by learned counsel for the state Mr. Mulochi.  The prosecution called a total of four witnesses.  The defence was led by learned counsel Mr. Nyenyire and made an unsworn statement in his defence and did not call any witness.

The postmortem on the body of the deceased, was carried out by Dr. Njuguna.  The postmortem report was prepared by Dr. Njuguna and produced in court by Dr. Kithiri Gacheri (PW1) because by the time of the hearing, Dr. Njuguna had left Meru General Hospital. Dr. Njuguna found that the deceased had a bruise around the neck, trachea rings were crushed, a blood clot in the internal and external jugular. The doctor formed the opinion that the cause of death was asphyxiation from strangulation.

PW2 Henry Muchubu Kiragu told the court that on 20/1/2013, a Sunday, at about 4. 00 p.m., he heard screams of people shouting “you will kill him.”  He went to his gate and on the roadside he found David (the accused) holding the deceased by the neck tie and was telling him to stand so that the deceased could go and give him his 20/=; that the accused was trying to lift up the deceased; PW2 found a lady by name Kangai and a boy at the scene; PW2 also said that both the accused and deceased were drunk.  PW2 noticed that deceased was drunk when he bent down to remove the neck tie; that the deceased was smelling of alcohol and so was the accused; that accused was staggering.  PW2 asked accused to stop pulling the tie because it had gone deep into the neck of the deceased.  PW2 got a panga and with the help of the accused who held for him the tie, he managed to cut the tie; that the deceased passed urine on himself and by then he was not talking.

PW2 noticed that the deceased had gone stiff and the body was changing; that accused refused to believe that deceased was dead and he started to cry; PW2 tied up accused using the same tie and handed him over to Administration Police and later the police came for the body.  PW2 knew both accused, as a neighbor while deceased was a fellow villager.  According to PW2, it seemed accused did not intend to kill the deceased but wanted to get him to stand up.

PW3 Joseph Murauki, a brother to the deceased, was called to go to the scene where the deceased died, which was near PW2’s home; that accused was seated near the deceased’s body and he was handcuffed using a tie.  He observed that deceased had bruises on the neck.  PW3 said that he knew that accused and deceased were very good friends and used to do casual jobs together and used to drink alcohol together.  He identified the body to the doctor before postmortem was done and took the body for burial.

PW4 Ip. Albert Kiprop, then of Mikinduri Police Station, was the investigating officer.  He was asked to visit the scene where he found the deceased’s body besides the road.  On the chest was a cut necktie, the neck was swollen.  He interrogated witnesses, took the body to the mortuary and collected accused from the A.P. Camp.  He gathered that accused and deceased argued over 300/= which deceased owed accused, a fight ensued with accused pulling deceased’s neck tie that resulted in death.

When called upon to defend himself, the accused opted to make an unsworn statement.  He recalled that on 20/1/2013, he was contracted to build a dam and hired 6 boys to assist.  He was given alcohol as incentive for the boys to finish the work quickly.  He finished the work and returned the tools to the owner about 2. 00 p.m.

He was given more alcohol as he left to go home.  On the way home, he met his friend, the deceased was lying by the roadside near PW2’s gate; that he used to drink alcohol with deceased but not on that particular day; that the deceased was drunk and had fallen and so he tried to get him to get up but was unable.  That he thought the tie was strangling the deceased and so he started pulling it to remove it but it was tight and he went to get a panga from PW2 to cut the tie but PW2 refused to give him the panga; that PW2 accompanied accused to where the deceased lay; that they found deceased drooling; that he held the tie as PW2 cut it and noted that Berito was dead.  He was not able to go to report but sat there till police came to arrest him.  He denied having disagreed with deceased.  He denied having any intention of killing the deceased.

The accused faces a charge of murder contrary to section 203 of the Penal Code.  The burden squarely rests on the prosecution to prove beyond any reasonable doubt the following ingredients:

(1)Proof of the fact and cause of death;

(2)Proof that the death was caused by the unlawful act or omission of the accused;

(3)Proof that accused had malice aforethought or the intention to kill as defined under section 206 of the Penal Code.

The death of the deceased is not in doubt.  The accused admits having seen deceased at the time of death and that he only tried to get him to stand.  PW2 was present.  PW3, deceased’s brother observed the body, saw bruises round the neck and witnessed the postmortem.  The doctor corroborated PW2’s evidence when he found the cause of death to be strangulation.

PW2 is the only witness to the incident that resulted in the deceased’s death.  He was categorical, that he saw accused pulling the deceased by the neck tie urging the deceased to get up and go to give him his money.

Although at first, accused denied having been owed any money, he ultimately admitted that he was owed 300/= in effect the accused did admit that he pulled the deceased’s tie although he gave the reason to be that he wanted to remove it.

The accused had denied to having been drinking and PW2 did confirm that he did smell of alcohol and was even staggering.  I prefer PW2’s narration as to the events of the day that it is accused who pulled deceased’s tie asking him to get up and go to pay him his money.  It is PW2 who stopped accused from continuing to pull the tie.  I am convinced that it is accused who caused the death of the deceased through strangulation when he pulled the deceased’s tie.

The next question then is whether accused intentionally caused the death of the deceased.  From his defence accused merely mentioned having taken some alcohol on that day but did not say how much or how it had affected him.  The extent of the intoxication was therefore not disclosed.

Intoxication is provided for as a defence to a criminal charge under Section 13 of the Penal Code which provides as follows:

“Section 13

1. Save as provided in this section, intoxication shall not constitute a defence to any criminal charge

2. Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—

(a)the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b)the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission

3. Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code (Cap. 75) relating to insanity shall apply

4. Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence;”

From a reading of the above provisions, it is clear that the defence of intoxication is very narrow in its application.  Section 13(4) of the Penal Code has to be read within the confines of Section 13(1)(2)(a) and (b).

The accused had to demonstrate that he was so drunk that he did not know that what he was doing as wrong or that he was so drunk that he was suffering from temporary insanity to act as he did or that the intoxication was induced by another person without his consent.

In the case on Cheminingwa v Republic EACA – Cr.450/1955, the E.A. Court of Appeal said:

“It is of course correct that if the accused seeks to set up a defence of insanity by reason of intoxication, the burden of establishing that defence, rests upon him in that he must at least demonstrate the probability of what he seeks to prove.  But if the plea is merely that the accused was by reason of intoxication incapable of forming the specific intention required to constitute the offence charged, it is a misdirection if the trial court lays the onus of establishing this upon the accused.”

In the later decision of Kupele Ole Ketaiga (2009) KLR (Cr.26/2007) the Court of Appeal warned appellants who are likely to abuse the said defence as a cover up for their criminal acts when it said:

“A clear message must also go out to those of the appellants ilk who deliberately induce drunkenness as a cover up for criminal acts.  Unless a plea of intoxication accords with the provisions of Section 13 of the Penal Code it will not avail the appellant in this particular case.”

As earlier noted, in this case, the appellant did not explain the extent of his intoxication.  However PW2 said he noticed that the accused was smelling of alcohol, he was staggering; that even when they cut the tie, the accused did not seem to have noticed that the deceased had died and that later he then started to cry.

From PW2’s narration of how the accused behaved on the said day, it seems that the accused was so drunk that he did not know what he was doing or that it was wrong.  It follows that he cannot have had the necessary intention to cause grievous harm to his friend, the deceased or to cause his death.  It is an unfortunate incident whereby accused killed his own friend due to alcohol abuse.  In the end, I find that the accused caused the deceased’s death but it was unintentional.  For the above reasons, I find that the offence of murder contrary to section 203 of the Penal Code was not proved and I acquit accused of the offence of murder.  Instead, I find accused guilty of the offence of manslaughter under Section 202 of the Penal Code and convict him accordingly.

Datedand Signed at NYAHURURU this 29th day of November, 2017.

............................

R.P.V. Wendoh

JUDGE

Delivered by JUSTICE A. MABEYA atMERU this 7TH day of DECEMBER 2017.

PRESENT: