Republic v Galma Abagaro Shano

located near that of the accused. None of the witnesses who testified was present when the assault occurred. Guyo Wako Daracha, PW1, (Guyo) a neighbour heard from other neighbours that the deceased had been stabbed by the accused and taken for treatment at a local health facility in Kawangware. Guyo went to the facility and saw the deceased. He noted two stab wounds on the lower back of the deceased. Abdi Wario Huka, PW2, (Wario) was standing outside his house in Gatina Village when he saw two men carrying the deceased who was injured and was bleeding from the back. The doctor at the local health centre could not manage the wounds. He referred the deceased to Kenyatta National Hospital. Guyo and Wario were among the neighbours who contributed money to hire a taxi and take the deceased to Kenyatta National Hospital. The deceased died at Kenyatta National Hospital while undergoing treatment. Both witnesses testified that while being taken to Kenyatta National Hospital in the taxi, the deceased told them that the accused had followed him into his (deceased’s) house and had stabbed him. Aba Gaudho Roba, PW3, (Roba) was informed of the assault by Wario. He was on duty at the time of that information and by the time he reached Kenyatta National Hospital the following day he found deceased had died. Roba who is related to the deceased as his brother identified the body of the deceased to the doctor who conducted post mortem on 10th May 2011. Wako Boru Koba, PW5, (Boru) also learned of the assault through a neighbour. He went to accused’s home but failed to find him. In company of Wako Galicha, PW6, (Galich) and Mohamed Halake, PW7, Halake) who had also received information of the assault, they went to the home of the deceased. They observed bloodstains in the house and clothes strewn all over the place. They were informed that the knife used to stab the deceased had been thrown on top of one of the roofs in the neighbourhood. Galicha was assisted to climb the roof and retrieved the knife. The knife, exhibit 2, was identified in court by these witnesses. They had described it as a long double edged sword with multiple coloured stripes on its handle and that had blood stains on the entire blade. The knife, blood sample drawn from the deceased during post mortem and a grey/shite coloured pair of shorts covered with blood stains (exhibit 5) recovered from the house of the deceased were examined by Moses Mwaura a Government Analyst who found that the blood on the knife and the pair of shorts was of group “O” and that it marched the blood sample drawn from the body of the deceased. On the same day the deceased was stabbed at about 12.45pm a report of that assault on the deceased was made at Muthangari Police Station and was received by PC David Nderitu, PW11. He also received the knife used in stabbing the deceased. He visited the scene and recovered the pair of grey shorts stained with blood. At about 13.45pm on the same date, the accused surrendered to the police at Muthangari Police Station. He was arrested and detained. He reported that he had stabbed the deceased and that he feared for his life. The body of the deceased was examined on 10 th May 2011 by Dr. Joseph Ndungu at the City Mortuary. The doctor found two stab wounds, one between the 5th and 6th ribs and the second between the 6th and 7th ribs. Both wounds were on the left side of the chest at the back. The doctor found the left lung collapsed and two litres of blood had accumulated in the chest cavity. His opinion was that the deceased died of severe haemorrhage due to the two stab wounds to the chest. The report detailing this was produced in evidence as exhibit 6. Defense Case The evidence at the close of the prosecution case was overwhelming. The accused was placed on his defense in a ruling delivered on 1st July 2015. The defense counsel Mr. Omari informed the court that his client would give a sworn statement in his defense and would not call any witnesses. Defense hearing was scheduled for 16th July 2015. On that date, Mr. Omari sent Mr. Mogaka to hold his brief and seek adjournment to another date when the defense would give evidence. The case was rescheduled for 14 th October 2015. On that day the accused failed to attend court. He had been out on cash bail of Kshs

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300,000. He did not turn up on subsequent days and a warrant of arrest, which this court kept on renewing, was never executed. The accused was at large and remained absent until this court was moved by the prosecution to proceed with the trial in the absence of the accused. In a ruling delivered on 24 th April 2017, almost 1 ½ years, this court allowed the application to proceed with the trial in the absence of the accused. Parties were allowed to make final submissions. The prosecution filed its submissions but the defense opted not to do so. Submissions In their submissions, the prosecution highlighted three areas, firstly; that the accused was identified as the person who had attacked the deceased and stabbed him twice occasioning grievous harm and that the knife used was identified in court and the bloodstains found on it matched the blood of the deceased. Secondly, that there is a dying declaration by the deceased who had told witnesses as he was being taken to hospital that it was the accused who had stabbed him and further that the accused surrendered to the police and reported to them that he had stabbed the deceased. Thirdly, that in stabbing the deceased, the accused had a guilty mind and that this is supported by evidence that the accused had planned to kill the deceased because the deceased had had a love affair with the accused’s wife. The prosecution asked this court to find that it has proved this case beyond reasonable doubt and convict the accused in absentia. Analysis and Determination This court has in a detailed manner determined and ruled that this trial would proceed in the absence of the accused who has waived his right to a fair trial in regard to being present during the trial by absconding and removing himself from the jurisdiction of this court. This court has in its ruling delivered on 24th of April 2017 addressed the provisions of Section 206 of the Criminal Procedure Code and Article 50 (2) (f) of the Penal Code. Article 50 (2) (f) provides that: “Every accused person has the right to a fair trial, which includes the right to be present when being tried unless the conduct of the accused person makes it impossible for the fair trial to proceed.” This court took the view that Section 206 (1) of the Criminal Procedure Code is inconsistent with Article 50 (2) (f) of the Constitution in so far as it allows the court to proceed with the hearing of a case against an accused person who fails to turn up in court in cases where the accused is charged with a misdemeanor and not a felony. My view is that the Constitution of Kenya, being the supreme law of the land does not differentiate the offences be they felonies or misdemeanors. Under the Constitution, every person has a right to a fair trial, which includes the right to be present when being tried unless the conduct of the accused person makes it impossible for the fair trial to proceed. My understanding of this provision is that all the persons who appear before the court charged with either felonies or misdemeanours enjoy equal right to a fair trial which includes the right to be present when being tried unless their conduct makes it impossible for the court to continue with the trial. It was my view that where an accused person, irrespective of the charge he/she is facing, absconds, then he has waived his/her right to be present when being tried and the court therefore can proceed to hear and conclude the trial in his/her absence and even convict and sentence him. This court determined that it would consider the evidence of the prosecution, in the absence of the accused, and decide whether it proved beyond reasonable doubt that the accused caused the unlawful death of the deceased and that in so causing that death the accused had malice aforethought. The prosecution seems to rely on evidence that the accused formed the intention to kill the deceased after he found the deceased in his (accused’s) house with his (accused’s) wife. The prosecution identified PC David Nderitu as the prosecution witness who testified to this fact. The defense in their submissions after the prosecution closed its case stated that the accused acted under provocation and in the heat of passion after he found his wife with the accused. PC Nderitu told the court that: “From the witnesses I learned that the deceased was having an affair with accused’s wife which made him angry”(sic). This is the only statement he made in his evidence in chief in regard to this issue. In cross-examination on the same issue PC Nderitu stated that: “Witnesses told me deceased had a sexual relationship with accused’s wife. I recorded their statements…… I went to the scene. The stabbing was done at the deceased’s house E1 not B10. The accused followed deceased to his house. I do not know exactly where the deceased was found

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in the accused’s house. I did not find evidence from accused’s wife that they were in bed with deceased……. I am not aware deceased was found in the sexual act with accused’s wife…… No one told me whether accused had prior knowledge that the deceased had had an affair with his wife. I did not get such information.” I have gone over all the evidence by the prosecution witnesses who came to testify. None of them, other than PC Nderitu, testified to any love affair between the accused’s wife and the deceased. There is mention by PC Nderitu who is the Investigating Officer that accused’s wife had recorded a statement and was a prosecution witness. He further stated that the Prosecution Counsel did not want to call the accused’s wife to testify. The impact of this is that there is no witness who testified to any love affair between the two and without such evidence this court cannot speculate although the Investigating Officer had this evidence which he said was derived from witnesses. PC Nderitu, as the investigating officer, was relying on the information given to him by witnesses as he investigated. The only shortcoming being that the witnesses who may have had first-hand information on that evidence did not testify. The prosecution also relies on dying declaration by the deceased. There is evidence on record that as the deceased was being taken to hospital while in the taxi, he told Guyo and Wario that the accused had stabbed him with a knife. The law on dying declarations is found under Section 33 (a) of the Evidence Act. It states as follows: 33. Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases (a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. This provision is one of the exceptions to the hearsay rule. What the deceased told the two witnesses amounts to a dying declaration within the meaning of Section 33(a) of the Evidence Act. That dying declaration, taken together with the evidence that the accused presented himself to the police and reported to having stabbed the deceased is sufficient evidence to support the finding that the accused is the person who stabbed the deceased. This was an unlawful act and it culminated in the death of the deceased. The injuries described by the witnesses agree with the wounds found by the doctor who examined the body of the deceased and confirmed that the deceased died as a result of the same injuries. The final issue to determine is whether the accused had formed the intention to kill the deceased. Evidence shows that the deceased was new in the area. He was cleaning his new rental house on the morning he was killed and he had yet to move into it. Intention to kill or malice aforethought is defined under Section 206 of the Penal Code which states as follows: 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

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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. What has puzzled me in this case is the motive for the stabbing. The fact that the deceased was stabbed in the back shows that it was not a confrontation where the protagonists faced each other. It can only mean that the deceased was taken unawares or that he was running away from the attacker when he was stabbed. Had the evidence that the accused pursued the deceased after finding him seducing his wife been convincingly presented, this court would have had some evidence to rely on and this would have led credence to the theory that the accused pursued the deceased and stabbed him. In the absence of such evidence, this court is left with nothing to rely on. I am alive to the fact that motive in a criminal charge is immaterial. Section 9 (3) of the Penal Code states that “Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.” Motive is not one of the ingredients of murder that must be proved beyond reasonable doubt. However, motive becomes relevant in cases where there is no direct evidence. Looking at Section 206 of the Penal Code, I am convinced that the accused cannot claim ignorance that he lacked knowledge that the act of stabbing the deceased twice with a double-edged knife would at the very least cause grievous harm to the deceased. While this may be so, this court still harbours some doubts about the circumstances leading to the stabbing given that the Investigating Officer has evidence derived from witnesses that the deceased was found seducing the accused’s wife. These doubts lead me to find that while evidence proves beyond reasonable doubt that the accused killed the deceased by an unlawful means (stabbing), the evidence regarding the intention on his part to kill the deceased is shaky and may not be safe to rely on. It is my considered view that malice aforethought has not been proved beyond reasonable doubt. In conclusion of this determination, it is my finding that the prosecution has proved that the accused is the person who unlawfully caused the death of the deceased beyond reasonable doubt. However, malice aforethought on his part has not been proved beyond reasonable doubt. The outcome of this is that the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code has not been proved beyond reasonable doubt. Instead, it is my view that the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code has been proved beyond reasonable doubt. As a consequence, I hereby acquit the accused of the offence of murder and find him guilty of the offence of manslaughter. For the latter offence I hereby convict the accused in absentia. In so finding and convicting the accused, I am alive to the provisions of Section 206 Criminal Procedure Code that state as follows: (2) If the court convicts the accused person in his absence, it may set aside the conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits. (3) A sentence passed under subsection (1) shall be deemed to commence from the date of apprehension, and the person effecting apprehension shall endorse the date thereof on the back of the warrant of commitment. In view of the above provisions, it is in order to call for the previous records of the accused, if any, as well as any mitigation by counsel for the accused, which I hereby do, after which I will proceed to pronounce sentence against the accused absentia. Orders shall issue accordingly. Delivered, signed and dated this 2nd day of October 2017. S. N Mutuku Judge

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