Republic v EOO [2021] KEHC 9415 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

CRIMINAL CASE NO. 23 OF 2018[MURDER]

REPUBLIC..............................................................PROSECUTOR

VERSUS

EOO...............................................................................ACCUSED

JUDGMENT

Introduction

1. The accused person herein EOO is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the Information dated 15th October 2018 are that on the 8. 10. 2018 at Nyawita Sub-Location within Bondo, Siaya County, the accused murdered one George Odhiambo Okoth.

2. The accused person pleaded not guilty. The prosecution called ten witnesses in support of their case which is summarised herein below.

Prosecution Case

3. PW1 Esther Awino Okoth testified that she hailed from Nyawita Sub-Location and worked as a cook at Bar Kawaga Primary School for the last 11 years since 2009. She stated that the deceased was her second born son whereas the accused was her first born son. It was her testimony that the accused cut the deceased with a panga killing him.

4. She recalled that on the said date of 8. 10. 2018 at about 3 p.m., she had returned from Bar Kawaga Primary school when she was informed by Pauline Anyango and Benta Achieng to go to the home of the deceased because the accused had run there stating that he was going to kill the deceased.

5. It was PW1’s testimony that she went to the house of the deceased and saw smoke emanating from therein and she saw the accused person carrying baggage tied in a lesso which he threw in a dumpsite. She stated that she quarreled the accused on why he had gone to the home of his younger brother, the deceased. PW1 stated that as she was still talking, Benta entered the house. She further stated that she then pulled the accused away as it was raining and she went with him to her house where the accused asked her for tea which she gave him and when the accused finished taking tea, he left for his house. It was her testimony that the accused appeared very angry.

6. PW1 further testified that at around 7 p.m. the same day, the deceased called her and informed her that the accused had destroyed some of the deceased’s properties and that the deceased inquired from her as to what he could do. She testified that she told the deceased that though they were alone at home, he could make a report to the government. She testified that the deceased further inquired whether she was agreeable with the accused being arrested to which PW1 answered in the affirmative.

7. PW1 testified that as she was conversing with the deceased, the accused arrived and as she stood between her two sons, the accused removed a panga from his trouser, cut her on the left eye and right thigh then he cut the deceased on the head prompting the deceased to fall down. She stated that the accused cut the deceased George on the shoulder and the head.

8. PW1 further testified that it was getting into the night and that although she tried to get help to take the deceased George to Hospital, she was unsuccessful and as a result George passed on. She stated that the Chief arrived at her home at 9 a.m. with a vehicle and took the deceased’s body to the mortuary and she was taken for treatment.

9. She further stated that on the 16. 10. 2018 she went to Bondo Mortuary with her in-law and identified the body of the deceased to the doctor for post mortem. PW1 identified the panga she claimed the accused used to cut both the deceased and herself. She further identified the clothes which the deceased wore on the fateful day. PW1 further identified her son the accused in court.

10. In cross-examination, PW1 restated that the accused was her first born son. She stated that the accused suffered from epilepsy and that he used to be very violent and stubborn. It was her testimony that on the fateful day, the accused was drunk. She stated that the accused used to drink and smoke bhang. She further stated that the accused was not mentally sick and that previously when the accused fought with someone, he became epileptic.

11. PW2 Walter Owaga Oganyo, an uncle to both the deceased and accused testified that on the 16. 10. 2018 at Bondo Hospital at 11. 10am he identified the deceased’s body to the doctor for post mortem.

12. PW3 Judith Akinyi Odhiambo from Opoda Bar Kawaga, Nyawita Village testified that the deceased was her husband and the accused her brother-in-law. She testified that on the 8. 10. 2018 at or about 3 p.m., she was at home relaxing when the accused approached her home looking very angry. She stated that she got scared because the accused is usually violent therefore she took her children and went to a neighbour’s home.

13. It was her testimony that she had known the accused for 9 years as her in-law and that at times he did not behave well as he was violent whereas sometimes he was okay. She testified that she saw Benta Achieng following the accused from behind. She testified that as she stood crying from her neighbour’s homestead, she saw the accused open the door to her house, enter the house with Benta following him into the house.

14. PW3 further testified that she ran to call her mother-in-law and that Benta called her saying the accused was burning her belongings and when she returned to the house, she discovered that the accused had burnt her clothes, children’s clothes and curtains. She stated that her husband, the deceased arrived at about 5 p.m. and she narrated to him what had happened after which the deceased went to his mother’s house and she followed him. She stated that she implored her husband to leave the issue alone but the deceased said that he wanted to know from the accused what had happened and for PW1, their mother to guide them.

15. She further testified that suddenly, she saw the accused carrying a panga prompting her to take the child from George, got into the house of her mother in low and closed it. She stated that she then heard her mother in low screaming at Eric saying “Eric what is wrong.” On hearing this, she got out of her mother in low’s house and saw people escaping, with the accused chasing them with a panga. She stated that she proceeded towards her house where she saw her husband lying down bleeding profusely. It was her testimony that the accused chased her and she went to her house from where she was called and informed that her husband had died. PW3 identified the accused in court as well as the panga which the accused carried on the fateful day.

16. In cross-examination PW3 stated that the accused was her brother in law and that she had known him for 9 years. It was her testimony that the accused loved violence and fighting and that he was also epileptic. She stated that she had found the accused epileptic when she got married to the deceased. She stated that during the incident, the accused was epileptic. It was her testimony that the accused was violent for a week and would get better again before restarting violence.

17. PW4 Pauline Anyango Okoth testified that she worked at Bondo Township Primary School prior to Covid -19 pandemic as a cook. It was her testimony that both the deceased and the accused were her brothers-in-law. She testified that on the material date as she was making tea for her mother-in law Jacklyne Okoth, the accused arrived saying loudly ‘I am going to burn George’s property.’ She stated that the accused then picked a matchbox from his house and started walking to the deceased’s homestead.

18. She testified that she continued with her work when the deceased’s mother went and informed her that there was something wrong with the accused so they left and followed the accused. She stated that Benta had also followed the accused from behind and that her mother-in-law Jacklyne started talking to the accused.

19. PW4 testified that at 5 pm, she went to grind posho and on returning at about 6pm she heard the deceased telling the accused that they should both stay in their own houses with the accused inquiring as to ‘what the deceased was saying.’ She testified that she then saw the accused raise his right hand and that is when she heard the sound of cutting, followed by the deceased going silent. It was her testimony that the accused then started chasing her and everybody in the home. She stated that people started screaming while the accused’s mother screamed saying ‘you have killed your brother.’ It was her testimony that she later learnt that George had died and that she saw George lying dead beside the fence bleeding profusely with bloodstained clothes. She stated that George had cuts on the head and shoulder. She testified that she recorded her statement with the police. She further identified the accused virtually by pointing at him on the screen.

20. In cross-examination, PW4 reiterated her testimony in chief that the deceased and the accused were her brother-in-laws and that she had known them for over 10 years. It was her testimony that the accused did not have a good character and drank alcohol. She stated that the accused had been epileptic for about 5 years. It was her testimony that the accused had no mental sickness but loved fighting and violence. She further stated that she was not aware of the accused’s use of bhang.

21. PW5, Jacklyne Awiti Okoth testified that on the 8/10/2018 at about 6 pm she was at her home in the house with her grandchildren as it was raining. She stated that the deceased’s wife went to her house carrying a small baby and informed her that the accused wanted to beat them so she was taking shelter.

22. PW5 testified that she heard her co-wife, Esther Awino Okoth-PW1 scream saying ‘Ochieng wants to kill us’ and that on PW5 checking out, she saw her co-wife-PW1 already cut. She testified that she closed the door and they remained inside the house. It was her testimony that she saw blood on her co-wife’s face and that George was lying down. She stated that George then rose and went and fell on the fence near her house. She noted that George was bleeding and that at the same time the accused was running after everyone who was around. She identified the accused on the screen.

23. In cross-examination, PW5 stated that she had known the accused since he was born and that he was not born with epilepsy but became epileptic recently before the incident. She testified that the accused used to collapse-fall but had no mental illness. She stated that the accused took alcohol and smoked bhang and further that he liked fighting and violence. She stated that sometimes he could be well but most times he was violent.

24. PW6 Wilson Opundo Okoth whose testimony was similar to that of PW3 and PW4 and was stood down.

25. PW7 Peter Ooko Oganyo from Abwao village testified that he was a cousin of the deceased. It was his testimony that on the 8. 10. 2018 he was walking past the home of Okal Ochilo at around 2. 30pm when he saw the accused and the deceased fighting, with Mr. Okal separating them. He testified that he then saw the accused run away via a short-cut and the deceased also left using a different route.

26. PW7 further testified that there was a funeral in the area in which the deceased was secretary to the funeral committee so thy met at about 5 pm as he was collecting the money and inquired as to what was happening between the deceased and his brother to which the deceased replied that he had no issue with his brother.

27. He further testified that the deceased’s wife met them and informed the deceased that the accused had burnt clothes in their house. He testified that he accompanied the deceased to his house where they found clothes and maize burnt to which the deceased broke down and started crying. It was his testimony that he comforted the deceased and they went together to the funeral place where the deceased was so disturbed that he could not give a report until the following day. He stated that George gave Kshs. 50 to his wife to go and buy eggs. PW7 testified that the following morning, he heard that George had been killed by his brother. In cross-examination, PW7 stated that he was not present when George was killed.

28. PW8 Dr. Juma Gabriel from Siaya County Referral Hospital testified on behalf of Dr. Ochiel who had since transferred to Migori County and who carried out the postmortem on the body of the deceased on 16/10/2018 at 11. 10am. Dr. Juma testified that the report revealed that the deceased was a male African height of 178 cm well-built and well-nourished aged between 30-40 years. That there was a sharp cut on the right side of the head and a 9cm sharp cut on the posterior aspect of the right shoulder. Dr. Juma further testified that the report revealed that there was a small sharp cut on the right second and index fingers measuring 3cm for the 2nd finger and 5cm for index finger but that the underlying bones were intact.

29. On the systematic evaluation Dr. Juma testified that the report indicated that on the head, there was cut wound on the right parietal area above the ear extending up to the face measuring 18cm in length that touched on the right eye (epicanthal fault).

30. He further stated that in the nervous system, there was right intracranial bleeding with severing of the epicardium involving the right parietal and frontal hemispheres and as such there was injury to the skull and brain matter. He testified that all other systems were normal and that the cause of death was found to be massive intracranial hemorrhage [bleeding in the brain] due to a sharp cut on the right side of the head. He produced the post mortem report as PEX 1.

31. PW9 Benta Achieng Okoth from Abwao village testified that on the 8. 10. 2018 at about 3pm she was at home when she saw the accused running home speaking in Dholuo saying that he was going to kill George. She testified that at that time the accused had nothing in his hands. She testified that the accused ran to his house, took a matchbox, ran to George’s house, broke into it and burnt some items before his mother arrived and took him away. She testified that she then entered George’s house and put out the fire.

32. SPW9 further testified that at around 7pm, the accused arrived carrying a panga and cut George Odhiambo on the head and shoulder. It was her testimony that she attempted to go near the deceased but the accused chased her away. She stated that the accused became wild and chased everyone before returning to where George was and cut him on the shoulder saying ‘this dog is still seeing’ in Dholuo.

33. PW9 testified that as they tried to get a motor bicycle to take George to Hospital, the Assistant Chief was called and he arrived with police officers but they found George already dead. She testified that as the deceased’s mother was injured, she was taken to hospital for treatment while the body of George was taken to the mortuary. She identified the accused in the dock and further stated that she was an in-law to both the accused and the deceased as she was married to their younger brother, Wilson Opundo Okoth.

34. In cross-examination, she stated that she had known the accused for 8 years but could not tell whether he had taken alcohol on the material day which he usually took. She stated that the accused had epilepsy and at times collapsed though not always. She stated that the accused did not have any good relationship with anyone as he had once beaten her.

35. PW10 Dalmas Kibet Kipsang a Government Analyst based at Kisumu testified that on the 9. 10. 2018 exhibits were taken to the Government Chemist at Kisumu with an Exhibit Memo from CPL Evans Karanja of C.I.D. Bondo in respect of a murder case against the accused herein and that they received:

a) Bloodstained Panga marked “A”.

b) Soil in an envelope marked “B”.

c) Trouser and T – Shirt in a black shopping Bag marked C.

d) Blood sample from the deceased’s body in a container marked “D”

36. He testified that he examined the exhibits and using a DNA Kit analyser, he generated DNA profiles of all exhibits and tabulated the same arriving at the conclusion that the DNA profile generated by bloodstains from the panga – Item A, the soil item B, the trouser and the shirt items “C” matched the DNA profile of the deceased.

37. PW11 No.63557 CPL Evans Karanja of D.C.I. Mbalambala, Garissa County and who previously worked at DCI Bondo Office testified that he investigated the instant case. He testified that on the 8. 10. 2018, he received a call from his superior Madam Christine Wambua who informed him that there was a murder at Abuto Village and that 2 of his colleagues P.C. Cheruiyout and Sgt Cherop were off to the scene. He testified that he went and found the 2 officers at the scene as well as other people including the mother to the deceased who had some injuries.

38. He testified that they took her and the deceased to Bondo Hospital where the mother was treated and discharged while the body of the deceased was taken to the mortuary. He further testified that he later revisited the scene and the mother took them round the homestead and at the veranda of the house of the deceased, they found blood.

39. It was his testimony that the suspect had escaped but when they searched the houses in the compound and they found one house locked from the inside, they knocked the door but there was no response so he told the crowd to surround the house and assist to break into the house and that when the accused heard this, he opened the door and attempted to escape but was apprehended by the mob who started lynching him forcing PW11 to fire in the air to rescue him.

40. It was his testimony that he went back to the house and searched it then found the panga which was stained with blood on the edges. He stated that he took samples of blood from the ground (soil) where the deceased had been found dead as well as clothing of the deceased. He stated that they escorted the suspect to hospital where he was treated and discharged and then escorted him to the Police Station where he was booked in the cells. He stated that the following day, he recorded statements of witnesses. PW11 then produced the panga, clothes, soil in an envelope and exhibit memo as exhibits before court.

41. The prosecution then closed its case.

Defence Case

42. Placed on defence, the accused gave an unsworn statement in which he admitted that the deceased was his younger brother and that there was nothing he could say about the death of the deceased which he only heard about in court. It was his testimony that on the 8. 10. 2018 the deceased was in his own house which is in his own compound and that the accused was similarly in his house. He stated that he was shocked to hear that he had killed the deceased. He testified that he did not know anything to do with his brother’s death and wanted to be discharged by the court to go and care for his children.

Analysis and determination

43. The offence of murder is defined as follows by section 203 of the Penal Code:

“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

44. This definition enlists four (4) crucial ingredients of the offence of murder all four of which the prosecution must be proved beyond a reasonable doubt in order to prove the charge. These are:

a) The fact of the death of the deceased

b) The cause of such death.

c) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly

d) Proof that said unlawful act or omission was committed with malice aforethought.

45. On the fact of the death of the deceased, there cannot be any doubt, PW1 and PW9 were both witnesses to the accused hacking the deceased. PW4 the accused and deceased’s step-mother testified that she saw the deceased lying on the fence after he had been struck by the accused and he was bleeding profusely and despite their attempts to make arrangements to take the deceased to hospital, the deceased passed on. PW11 the investigating officer testified that he arrived at the scene and found the deceased body at the scene after which they transported it to the mortuary at Bondo Hospital. PW8 Dr. Juma also produced the deceased’s post-mortem report signed by Dr. Ochiel who had carried out the post-mortem.

46. Accordingly, I find that there was evidence beyond reasonable doubt that death occurred involving the deceased George Odhiambo Okoth.

47. On the cause of death, Dr. Juma who testified on the post-mortem report signed by Dr. Ochiel stated that Dr. Ochiel on examination of the deceased concluded the cause of death to be massive intracranial hemorrhage due to a sharp cut on the right side of the head. Accordingly, I find that the prosecution sufficiently and beyond reasonable doubt proved the cause of death of the deceased George.

48. The prosecution having ssufficiently proved the fact as well as the cause of the death of the deceased, the prosecution is under a duty to prove that the accused person before the court is criminally culpable for the act leading to the death of the deceased. The prosecution must prove that the death of the deceased was occasioned by an unlawful act or omission and that the same was caused by or by omission on the part of the accused person.

49. PW1, the mother of the deceased and accused was present when the accused cut the deceased with a panga, after the accused cut PW1. The panga which was allegedly used to cut the deceased was recovered from the house of the accused after PW 11 invaded the house and smoked the accused from therein. The said panga was produced as an exhibit. In addition, the DNA profile generated from the said panga by the Government Analyst revealed that the blood found on the said panga belonged to the deceased. PW4 and PW9 too witnessed the bizarre behavior of the accused as he burnt items in the house of the deceased before ending up cutting the deceased in front of their mother PW1 who was trying to separate the two.

50. Iam satisfied that the accused and no other person unlawfully caused the death of the deceased as there was no evidence of provocation of any kind.

51. On whether the unlawful killing of the deceased by the accused was with malice aforethought, the essential ingredient for the offence of murder is malice aforethought. The circumstances which constitutes malice aforethought are described under Section 206 of the Penal Code as follows:

“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;

(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.”

52. The question that arises is whether the accused, who was said to be epileptic but described as violent most of the time was likely to have been legally insane at the time he killed the deceased? The accused in his defence denied killing the deceased and said that he first heard of the death of the deceased in court as he was at his home while the deceased was also at his house.

53. That line of defence indicates that the accused did not know what happened and the only reason in this case is that he may have been labouring under mental illness. That is so because when the accused was first arraigned, he could not take plea because the mental assessment report revealed that he was unfit to plead.

54. It is now trite law that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing what was wrong.

55. Section 166(1) of the Criminal Procedure Code provides:

“166(1). Where an act or omission is charged against a person as an offence and it is given in evidence on the trial of that person for that offence that he was insane so as not be responsible for the acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.”

56. In Leonard Mwangemi Munyasia v. Republic [2015] eKLR, the Court of Appeal reiterated that it is the duty of the trial court where the defence of insanity is raised or where it becomes apparent from the accused person’s history and antecedent, to inquire specifically into the question and that the trial court cannot ignore evidence on record suggestive of the appellant’s insanity merely because the defence has not specially raised it. (See also Julius Wariomba Githua v. Republic, Cr App. No. 261 of 2006 and Marii v. Republic [1985] KLR 710.

57. PW1, the accused’s mother testified that the accused was epileptic, very violent and stubborn. She further testified that when the accused normally fought he became epileptic. It was her testimony that the accused was drunk on the fateful day. PW3, the deceased’s wife testified that she knew the accused to be epileptic since she was married into the family and that on that specific day when he attacked the deceased and his mother, he was epileptic. PW4 and PW9 both testified that the accused was epileptic though they were not sure of his condition during his attack on the deceased. PW4 added that the accused loved fighting and was violent.

58. On his part, the appellant testified that he does not recall killing his brother. He stated that he learnt of the happenings of the date of 8. 10. 2018 and the charge brought against him when he was arraigned.

59. I note that when the accused was first brought to court, he was not mentally fit to stand trial and had to be taken to hospital for treatment first. He stayed in hospital until 4/11/2019 from 23/1/2019. The doctor who examined him first on 16th October, 2018 found that the accused was laboring under a psychiatric /mental illness and that he required treatment which this court ordered for and he was treated at Mathari Hospital before being assessed as fit to stand trial. There was no indication, however, that the mental illness was due to drug or substance induced psychosis. What that means is that the accused cannot be blamed for the mental illness as his family confirmed that he was epileptic and that he used to suffer from fits.

60. Accordingly, it is my considered view and from the evidence adduced by the prosecution witnesses that the accused suffered from mental illness at the time of committing the offence of murder.

61. The second matter of concern is that although there was evidence that the appellant could have been labouring under epilepsy at the time of commission of the offence, the High Court restricted its consideration of his mental status only to the time of the appellant’s trial. In Leonard Mwangemi Munyasia v. Republic (supra), this Court reiterated that it is the duty of the trial court where the defence of insanity is raised or where it becomes apparent from the accused person’s history and antecedent, to inquire specifically into the question and that the trial court cannot ignore evidence on record suggestive of the appellant’s insanity merely because the defence has not specially raised it. (See also Julius Wariomba Githua v. Republic, Cr App. No. 261 of 2006 and Marii v. Republic [1985] KLR 710).

62. The evidence of PW1, the accused’s mother was that the accused was drunk on the date when he allegedly committed the crime herein. PW3, the deceased’s wife testified that the deceased was not drunk but had an epileptic fit during the attack. This combined with the accused’s own testimony leads this court to conclude that the accused was not in his proper mind when he committed the offence.

63. Section 12 of the Penal Code stipulates as follows:

“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing or of knowing that he ought not to do the act or make the omission, but a person may be criminally responsible for an act or omission although his mind is affected by disease, if such disease does not in fact produce upon his mind one or more of the effects above mentioned in reference to the act or omission.”

64. It is my humble view that the accused was suffering from a disease of the mind that made him incapable of knowing that what he was doing was wrong, or of knowing he ought not to do that thing that he did namely, hacking his brother to death and without any kind of provocation. The medical history of the accused as adduced in the prosecution evidence establishes clearly that the accused was mentally ill at the time of the commission of the offence that led to the death of the deceased who was his brother and without any form of provocation. For that reason, I find that the defence of insanity applies to his case.

65. Having come to that conclusion, it is my humble view that the order that commends itself to the court is to proceed as provided under section 166 (1) of the Criminal Procedure Code.

66. Accordingly, I make a special finding under Section 166 (1) of the Criminal Procedure Code to the effect that the accused person EOO is guilty of the offence of murder contrary to Section 203 of the Penal Code, but was insane at the time he committed the offence and I therefore enter a special finding that the accused person EOO IS GUILTY of the offence of murder as charged BUT INSANE. Appropriate sentence will be after records and mitigation.

Orders accordingly.

Dated, signed and delivered at Siaya this 26th Day of January, 2021

R.E. ABURLI

JUDGE

In the presence of:

Mr. Kakoi Principal Prosecution Counsel for the State

Mr. Ochanyo Advocate for the Accused person

Accused present

CA: Modestar and Mboya