Republic v O M G [2017] KEHC 1560 (KLR) | Murder | Esheria

Republic v O M G [2017] KEHC 1560 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO. 1 OF 2014

REPUBLIC…………………..…….PROSECUTOR

VERSUS

O M G……………………………………ACCUSED

JUDGMENT

1. O M G is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code CAP 63 of the Laws of Kenya. The particulars of the offence are that on the 5th day of January 2014 within Meru County, the accused murdered B K M. The accused denied the charge with the prosecution calling a total of six witnesses.

2. PW1 E G testified that the accused is his 3rd born son and that B K M (“the deceased”) was his wife. It was his evidence that on 5th January 2014 at around 6:10 p.m., he was within his compound when he heard the accused demand from the deceased Kshs.180/= which the deceased was owed. The deceased was at the time sitting on the verandah while the accused sat under a tree. The deceased then gave the accused Kshs.80/= but the accused insisted that he wanted the whole amount.  The deceased then gave The accused an additional Kshs.100/= and settled the whole amount.  On receiving the total sum of Kshs.180/=, the accused alleged that the deceased had bewitched him which prevented him from developing in life.

3. That the accused then entered PW1’s house, took a fork jembe and hit the deceased twice at the back of her head whereupon she fell down and died instantly. The accused left the fork jembe at the scene and went into his house within the homestead.

4. On seeing what had transpired, PW1 called his brother in law’s wife who called the Police. Screams from his grandson attracted neighbours who rushed to the scene. Police from Gaitu came and collected the body and arrested the accused. According to PW1, the murder weapon was a fork jembe which was recovered by the police at the time they arrested the accused. He told the court that because of the accused’s bad habits, he was not in good terms with him and that he had once reported him to Kathigau Police Post for stealing his mobile phone.  He was however of the opinion that since the deceased used to cook for the accused, the two had an excellent relationship.

5. PW 2 was A M, an 11 year old grandson to the deceased and PW1. He gave a sworn statement after the court had conducted a Voire Dire examination and found him to be intelligent enough to understand the nature of an oath.  It was his evidence that on the material day and time, he was sleeping in PW1’s house when he heard his uncle (the accused) asking for money from the deceased to fuel his motorcycle.  The deceased gave him money but the accused said that the money was not enough. The accused then entered the house and went out with a fork jembe with which he hit the deceased 3 times.  When PW2 came out of the house, he saw the deceased’s body lying down and blood was oozing out from the back of her head. That the accused then went to sleep in his house.  The accused and the deceased’s body were later taken away by police officers.

6. PW3 F N M testified that he was the accused’s uncle. That on the material day (i.e. 5th January 2014); he had taken a walk to a nearby centre when he heard screams coming from the direction of his brother’s home (PW1). He rushed to the scene with some other people who were at the centre and heard women shouting “he has killed her completely.”  When they arrived at the homestead, they found the body of the deceased lying on the ground and blood was oozing out from the head. Later, Police officers from Kathigau AP’s camp arrived and prevented members of the public from lynching the accused.  The police arrested the accused and took him away.

7. PW4 Severion Nkonge, the area manager of Kithunguri village, testified that on 5th January 2014, he was coming from the rear part of the village when he heard screams from the home of the deceased. He proceeded to the scene and found the body of the deceased lying on a pool of blood.  He established that the deceased had been hit by the accused. He controlled the crowd and called officers from Kathigau AP Camp who notified their counterparts from Kaguna Police Station about the incident.  Officers from Gaitu Police Station came and arrested the accused.

8. PW5 C K, a brother to PW1 and uncle to the accused testified that on 7th January 2014, he went to Chaaria Cotelengo Mission Hospital in the company of a police officer and indentified the body of the deceased.

9. PW6 CIP Wilfred Mwangi testified that on 5th January 2014, at about 20. 25, hours he received a call from Corporal Maingi of Kathigau AP Post who informed him that there had been an incident of murder at Kithunguri village. He called CIP Ndeke and proceeded to the scene together with PC Karanja who was conversant with the area. Upon arrival at the scene, he found PW1 who informed him that the accused and the deceased had argued over a debt of Kshs 200 which the deceased owed the accused. That the accused had complained that he was not progressing in life because the deceased had bewitched him. That the accused had then entered the house, took a fork jembe with which he hit the deceased twice on the head.

10. It was his evidence that on examining the body, he found two injuries at the back of the head and on the left side near the ear.  That since he could not procure the services of crime scene, he made a sketch of the scene and confirmed that the accused had been arrested by AP Officers from Kathigau AP post. He recovered the fork jembe which he produced as Pexh 1. The fork jembe was taken to the government chemist for analysis and a report from the government chemist prepared by L.K Muthuri showed that, the fork Jembe had human blood. The DNA profile showed that the blood that was found on Pexh1 belonged to the deceased. He produced the sketch plans he had prepared at the scene and the report from the government chemist as Pexh 2 and 3, respectively.

11. PW6 further told the Court that he later called the scene of crime officer, one Cleophas Musinga, who took 8 photographs of the body before postmortem. He produced the photographs and a report prepared in respect thereof as Pexh 4 and 5, respectively. He also produced the post mortem report wherein the doctor had formed the opinion that the deceased died as a result of severe penetratory head injury due to sharp trauma. He interrogated the accused and charged him with this offence.

12. After close of the prosecution’s case, the accused was placed on his defence. He gave a sworn statement. In his defence, he told the court that on 3rd January 2014, he had taken his uncle’s son to Gaceero near Mitunguu because the schools were opening the following day. It was his evidence that when he returned home the following day, he found his mother (the deceased) sitting outside his house who rudely accused him of having come from visiting harlots. He denied her allegations and requested PW1, who was sitting within the same compound, if they could discuss the matter but PW1 did not respond.

13. That he decided to leave the home and went to the trading center. On returning at about 6. 00 p.m. he found his father had left but the deceased was home drunk.  He proceeded to his house but the deceased shouted at him asking him to have sex with her.  That it was at this point that he got annoyed whereupon he took a fork jembe and hit her with it and she died. That he was drunk at the time and that the deceased had provoked him beyond control. It was his testimony that when all this was happening, his sisters were present but PW1 had gone to a neighbour’s house. He concluded that he had killed the deceased out of provocation.

14. I have carefully considered the prosecution evidence and the defence of the accused. The issues for determination are whether the accused caused the death of the deceased and if so, whether there was malice aforethought.

15. The accused is facing a charge of murder. Section 203 of the Penal Code defines the offence of murder in the following terms:-

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

16. An important ingredient for the offence of murder is malice aforethought. The circumstances which constitute malice aforethought are set out 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 ac 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 cased 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.”

17. Throughout the trial, the burden lies with the prosecution to prove its case against the accused beyond any reasonable doubt.  PW1 was the only eye witness. He testified that the accused and the deceased had argued over a debt of Kshs.180/=. That the accused had accused the deceased of witchcraft. That it is then the accused suddenly went into the house, came out with a fork jembe with which he hit the deceased twice at the back of her head as a result of which she died. His evidence on this aspect was firm and remained unshaken in cross examination.

18. PW2 on the other hand testified that he was sleeping in PW1’s house when he heard noise outside and that his uncle (the accused) was arguing with the deceased. He did not see the accused hit the deceased but after he heard two knocks on something, he came out and found the deceased’s body lying on the ground. The accused was there while PW1 run away. He corroborated PW1’s evidence that at the time of the incident, only four (4) people were in the homestead namely; himself, the accused, PW1 and the deceased.

19. All the prosecution witnesses confirmed that the murder weapon was a fork jembe and indeed a report from the government chemist produced by PW6 confirmed that the blood found on the weapon was that of the deceased.

20. The accused in his defence, admitted having hit the deceased with the fork jembe because she pestered him to have sex with her. It was his defence that the deceased had extremely provoked her and that her sisters were present when this incident occurred. However, the accused did disclose the names of these sisters. This was in contrast to the evidence of PW1 and 2 who testified that only 4 people were within the homestead when the incident occurred.  In cross examination, he stated that he was drunk at the time of the incident and that the deceased had provoked and irritated him beyond control.

21.   The evidence on record is that it is the accused who hit the deceased with a fork jembe whereby she sustained injuries from which she died. The post mortem report and Pexh4 and 5 proved that the deceased died of the injuries inflicted on her by the accused. Accordingly, the accused is the one who caused the death of the deceased.

Did the accused have malice aforethought?

22. The next issue is whether the accused had the necessary malice aforethought in the commission of the offence.  The accused stated in his defence that he was provoked beyond control by the deceased and that at the time of commission of this offence he was intoxicated. He also stated that the deceased was also drunk at the time. The question which this court has to ask itself is whether these two elements were established in this case. Section 208 of the Penal Code defines provocation as follows -

“208(1) The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit the assault of   the kind which the person charged committed upon    the person by whom the act or insult is done or  offered.

(2) When such an act or insult is done or offered by one person to another, or in the presence of another person who is under the immediate care of that other or to whom the latter stands in any such relation as aforesaid, the former is said to give the latter provocation for an assault.”

23. In the case of Tei S/O Kabaya vs. Republic [1961] EA the court held:-

“In consideration whether the defence of provocation was sufficient to reduce the offence to manslaughter it is material to consider the degree of retaliation as represented by the number of blows and the lethal nature of the weapon used”.

24. In the instant case, the issue of provocation as stated by the accused was not put to PW1 or PW2.  It was not suggested that the deceased either assaulted or came into contact with the accused. There was no evidence that the deceased was armed at the time of the attack. The accused had the opportunity, if at all there was any such provocative conduct by the deceased, to avoid her. The request for sex a mother to a son cannot in the view of this Court be so provocative as to attract two fatal blows from a fork jembe. To this extent, I do not consider either the conduct of the deceased or her alleged words to be provocative enough to warrant the   extreme reaction by the   accused.

25. As regards intoxication, it can constitute a defence to a criminal charge in certain circumstances. Section 13 of the Penal Code provides as follows:

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

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 thatsuch 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 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.

5. For the purpose of this section, “intoxication” includes a state produced bynarcotics or drugs.”(Emphasis added).

26. In the instant case, the accused stated that he was drunk at   the time he quarreled with the deceased.  It was not clear how or from what he was drunk. The extent of his drunkenness, if at all, was not established.  The evidence on record shows that the accused left the deceased sitting outside, went into the house chose a dangerous weapon with which to deal with the  deceased, came out armed with it, hit the deceased twice in the back of her head after which he left the fork jembe at the scene and walked away to his house. His walking away from  the scene was indicative of the fact that he knew what he had  already done.  His testimony was that he had had an altercation with the deceased before he went to the local  trading centre.  If that were so, did he go drink to be able to   deal with the deceased when he returned?  It was not clear from his testimony.

27. In the case of Kupele Ole Kitaiga V R,   [2009] eKLR, CR.     NO. 26 of 2007the Court of Appeal held:-

“A clear message must also go out to those of the appellants’ ilk who deliberately inducedrunkenness 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 an accused and does not avail the appellant in this particular case.”(Emphasis added).

28.   From the circumstances of this case the provisions of section 13 of the Penal Code have not been met.  There was no evidence to show that either the accused was intoxicated or  was accidentally intoxicated, or if he was intoxicated, he did not know what he was doing.  Accordingly, I reject the defence  of provocation and intoxication.

29.  In this regard, did the accused have the necessary malice aforethought at the time of the commission of the offence to support a charge of murder.  In DanielMuthee vs. Republic CA NO. 218 OF 2005 (UR), the Court of Appeal stated:-

“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.

In view of the foregoing, we are in no doubt that the appellant was convicted on very sound and watertight evidence as his guilt on the two counts of murder was proved beyond any shadow of doubt.”

30. In the present case, the accused hit the deceased   twice with a fork jembe at the back of her head, a very sensitive part of the body.  The accused must have been aware that such an act could lead to death or cause grievous bodily harm to  the deceased.  In this regard, taking into totality all the circumstances in this case, I find that the prosecution has proved malice aforethought within the meaning of section 206 (a) of the Penal Code CAP 63 of the Laws of Kenya.  The accused intended to cause grievous harm and actually caused the death of the deceased with malice aforethought.

31. I therefore find the accused, O M G guilty of the murder of B K M and convict him accordingly.

DATED and DELIVERED at Meru this 7th day of December, 2017.

A.MABEYA

JUDGE