Republic v SK (Kamanza) [2023] KEHC 26946 (KLR)

Republic v SK (Kamanza) (Criminal Case E002 of 2023) [2023] KEHC 26946 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26946 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case E002 of 2023

A. Ong’injo, J

December 14, 2023

Between

Republic

Prosecutor

and

SK (Salim Kamanza)

Accused

Judgment

1. The accused persons S.K. is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. Particulars are that Salim Kamanza on 8th January 2023 at Miritini – Ufuta Area, Jomvu Sub-County within Mombasa County murdered DM.

3. PW 1 was with the deceased and Hussein when the accused went to where they were and hit the deceased on the head. PW 1 and Hussein separated them and the accused walked away. PW 1 said while escorting his mum he heard screams and on return he learnt it was the deceased who had been stabbed PW 1 and Hussein separated and the accused walked away. PW 1 said while escorting his mum he heard screams and on return he learnt it was the deceased who had been stabbed.

4. PW 2 said he was with the deceased, PW 1 and Hussein at PW 1’s home where the grandmother had died. That accused went to where they were and started quarreling with the deceased.

5. That the accused left and on return he had a knife which he used to stab Dio on the head and then he ran away. That Dio also started running away after he had been stabbed but then he fell and he was taken to hospital but he died on the way.

6. PW 3 said that her 6 years old Son gave the accused a knife which she learnt was used to stab the deceased. Later on arrest Salim led police to PW3 house and she went to record statement.

7. PW4 said, she received information Dio had been stabbed. After a short while she received a phone call and she was told Dio had died. She rushed home and found body laid on the floor in the house. Police from Jomvu collected the body and took it to Coast General Hospital for postmortem. PW4 said she didn’t know who stabbed the deceased.

8. PW5 Hussein Ndegwa said the deceased was his friend. He said that he met the deceased at 6:00pm and the deceased requested him to accompany him to go and see his girlfriend at Mukanjuni area. That at Mukanjuni they found these was a funeral of PW1’s grandmother.

9. That they stopped at the funeral where Jumaa & Salim went and greeted them. That Salim and Dio started exchanging words and they restrained them from fighting. That Salim left and on return he had changed clothes and dared Dio to a fight. That at that point Juba left with his sister and he remained with Dio, Salim and Salia.

10. That Salim left and returned and stabbed Dio with a knife and then ran away. That Dio also started running towards bodaboda seeking for help. That when he followed Dio he found he had fallen. That Jumaa and Tsuma took Dio to the hospital but the following day he learnt Dio had died. PW5 said that he was friend to both Dio and accused that the 2 were also friends.

11. PW 6 Kamanza Salim father to the accused testified that on 8/1/2023 at 9:00pm he was at KTDA stage when he received phone call from Jumaa Ndegwa Chekoja who informed him his son had stabbed someone to death. He proceeded home and found a crowd of people looking for Salim and Salim was not at home. That he searched for Salim and he emerged on the 5th day at 5. 00pm. PW 6 took Salim the accused herein to police station because of his security. That he recorded and signed his statement. PW 6 said he didn’t witness the offence being committed.

12. PW 7 the father to the deceased got report on 8/1/2023 at 9. 00pm that his son had been stabbed and died. The body was returned from Port Reitz Hospital. That police came and took the body to Coast General Hospital where postmortem was done.

13. PW 8 Dr. Gabriel Mngola produced postmortem report done by Dr. Maneno of Coast General & Referral Hospital on 11. 01. 2023. It was Dr. Maneno opinion that cause of death was cardio-respiratory arrest. Secondary to haemorrhagic shock secondary to penetrating wound injury.

14. PW 9 Tsuma Ndegwa responded to distress call by members of public who were crying and saying “Dio amedungwa kisu!!”“Mtu amedungwa kisu!!”He and Jei looked for motorbike and took the deceased to hospital. He saidthe deceased was still alive but was unable to talk. That when they arrived at the Port Reitz Hospital Dio was pronounced dead. They took the body back home. PW 9 said that the accused was a friend to the deceased and he didn’t know they had differed. He said he found Dio had fallen on the ground and he didn’t see him being stabbed.

15. PW 10 PC Musa Amakobe investigated the offence and preferred charge against the accused. When placed on defence accused gave sworn statement and said that he differed with the deceased and they fought and each went their different ways. He said he was surprised when he was told he killed Dio. He said he accompanied his father to police station and he was placed in cells. Accused person said the deceased person’s grandmother and his grandfather were sister and brother.

16. The accused persons advocate filed written submissions. This court has considered the evidence on record by the prosecution witnesses and the accused persons defence as well as the submissions and find that there is no dispute as to death of the deceased. Dr. Mngola produced post mortem report prepared by Dr. Maneno to that effect.

17. This court also finds that the death of deceased was caused by an unlawful act on the part of the accused person herein. He accosted the deceased while they were at the funeral of PW 1’s grandmother and they were separated. He went away and returned immediately and dared the deceased to a fight and in the course of it stabbed the deceased fatally on the left side of the chest penetrating the heart.

18. PW 1, PW 2 & PW5 witnessed the conduct of the accused person as they were at the scene. PW 3 said the accused went and borrowed a knife from her 6 years old son and without a thought she allowed the son to give out the knife only to learnt it was used to stab the deceased. It is not in doubt that it is the accused who committed the unlawful act that caused the death of the deceased.

19. The persistent conduct of the accused person to cause harm even after he had been separated from the deceased is evidence of malice on the part of the accused person. He wanted to prove that he was older than the deceased and therefore more entitled to a girlfriend than the deceased. He ended up cutting short the life of the deceased in a very casual way.

20. This court finds that the prosecution has proved its case beyond all reasonable doubt. The accused is found guilty as charged and is convicted accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT THIS 14TH DAY OF DECEMBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Abdul - Court AssistantMr. Ngiri for the StateAccused - Present in personMs. Mwawasi Advocate for the AccusedHON. LADY JUSTICE A. ONG’INJOJUDGE