Republic v Daniel Otieno Ochieng

Station and made a report about his having been stabbed. 6. PW3 was then referred to Akala Health Centre, whereby he was treated and returned to the Connection Bar to pick his two brothers, Cyrus and Olila whereby he also found his other cousin Jared Otieno. That after a short while he received a telephone call from “Daddy” Kelvin Orimba asking him to go and rescue him as he was dying near Suga Inn. PW3 proceeded to Suga Inn Area, found “Daddy” lying on the ground who told him he was feeling bad. He called a motorbike and asked Jared Otieno to escort “Daddy” to Akala Health Centre, from where they returned at 2.00am with Rodgers and told PW3 that the doctors at Akala Health Centre did not respond to their call and that he left “Daddy” sleeping at PW3's bed. PW3 went home and found a pool of blood on his bed and “Daddy” groaning. PW3 and others thought the injury was slight and decided to sleep. That in the morning, “Daddy” was still groaning and told PW3 he needed to be taken to the hospital. PW3 called for a motorbike which took “Daddy” to Akala Health Centre from where he was seen, treated and referred to Jaramogi Oginga Odinga Hospital, Kisumu from where he passed on after 3 days. The accused was subsequently arrested, charged with assault but after the death of the deceased, the assault charge was withdrawn and accused charged with murder. 7. The accused person gave sworn defence and called no witnesses. He stated that on 20/10/2013 after his usual duties, he closed his butchery and later went to Connection bar at Akala Centre where there was a disco but did not get inside as he found a long queue of customers. That as he was in the queue he was shocked when Kelvin Ndonga Orimba started harassing him asking him to pay for his entrance fee to the disco. He told him he had no money, then PW3 Erick came and stood near them. That the deceased held him by his shirt collar from behind, then slapped him resulting to a fight between them. That the accused shirt was torn and as he was overpowered, he took off only to find Erick ahead of him as he was going to his home. That Erick was armed with a stick and he also fought with Erick (PW3). He subsequently left him and headed to his home. That the following day at around 5.00am, he woke up, proceeded to open his butchery, proceeded to pick meat and returned to the butchery. That at around 12noon on 21/10/2013, he went home to change his clothes and while there, the police from Akala Police Station came and arrested him without disclosing the reason for his arrest. That at the police station, he was told he had stabbed Erick with a knife and later charged with assault at Bondo Law Courts. That after a month he was told the complainant was dead, the assault case of Erick (PW1) was withdrawn and he was charged with murder of Kelvin Ndonga Orimba. He stated that he does not know about the case of murder of Kelvin Ndonga Orimba. 8. The prosecution in support of the charge called PW2, Dr. Belinda Akinyi Omondi, a medical officer at Siaya County Referral Hospital who produced a postmortem report in respect of Kelvin Ndonga Orimba made by Dr. Olwala as exhibit P1, showing the cause of death of the deceased was due to hyporolaemic shock due to splenic laceration. PW3, Erick Arwa Osunga, eye witness who witnessed “Daddy” Kelvin Ndonga Orimba being stabbed by “Danny”, the accused and who testified that the deceased made a dying declaration to him, that the accused “Danny” stabbed him and he was dying. PW3 arranged to have “Daddy” taken to hospital and was later taken to PW3's house to sleep at his bed and the following day, had him taken to Hospital at Akala Health Centre for treatment, he was referred to Jaramogi Oginga Odinga Hospital, from where he passed on. 9. PW4, Wycliff Omondi Orimba, brother to the deceased testified that on 7/11/2013, he went to Jaramogi Oginga Odinga Teaching and Referral Hospital mortuary and identified the body of his brother Kelvin Ndonga Orimba, in company of his cousin Aggrey Onyango Oyoro and a police officer. 10. PW5 No. 233797 C.I. Julius Munene from Akala Police Station, OCS Crime between 2012 - 2015, the Investigating Officer in this case testified that a report was made on 20/10/2013 by Erick Arwa (PW3) of assault by Danny Otieno at Akala Market outside Connection Bar. PW3 was referred to the hospital for treatment. That on 21/10/2015, PW5 received another report from one Ochoka that his brother had been stabbed by a person known to him giving the name of his brother as Kelvin Orimba. PW5 carried out investigations, called PW3 Erick Arwa who gave the name of the attacker of Kelvin Orimba as the same person who had attacked him. PW3 also told PW5, they had taken Kelvin Orimba to Jaramogi Oginga Odinga Teaching and Referral Hospital otherwise called Russia. That on 20/10/2013, PW5 send

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P.C. Chege to go to record the statement from Kelvin Orimba (deceased) from the hospital which he did. That the accused was subsequently arrested from his home by PW5 who knew him as a butcher from where they used to buy meat and charged him at Bondo Law Courts with an offence of assault but on 30/10/2015, he learned of the death of Kelvin Orimba while undergoing treatment leading him to withdraw the charge of assault and charging the accused with murder. 11. PW6, No 91642, PC Peter Irungu Chege told court that on 20/10/2013, he was send by PW5 to proceed to New Nyanza General Hospital also known as Jaramogi Oginga Odinga Teaching and Referral Hospital to record statement from Kelvin Ndonga Orimba, then admitted at the Hospital, who was a complainant of assault against the accused. On 21/10/2013, PW6 proceeded to the hospital as instructed and recorded the statement which he produced as exhibit P2. 12. The accused faces a charge of murder contrary to Section 203 of the Penal Code. Section 203 of the Penal Code provides as follows:“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 13. In a charge of murder the prosecution must prove that the Accused had formed the necessary intention to cause death or grievous harm to the deceased. Section 206 of the Penal Code discusses circumstances which constitutes the same as follows:“206. Malice aforethought shall be deemed to be established by Malice aforethought. 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; 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” 14. To prove a charge of Murder, The prosecution has a duty to establish the following ingredients: (i) The death of the deceased and cause of the death. (ii) That the accused caused the death through an unlawful act or omission. (iii) The Accused possessed an intention to cause death or to do grievous harm/kill or possessed malice aforethought. 15. Whether the prosecution proved death of the deceased and its cause? Postmortem was carried out by Dr. Olwala after the body of the deceased was identified to him by Wycliff Omondi Orimba (PW4), brother to the deceased on 7/11/2013 at New Nyanza General Hospital also known and Jaramogi Oginga Odinga Teaching and Referral Hospital mortuary. He was accompanied by Aggrey Onyango. PW5 No. 233797 C.I. Julius Munene received report of the death of the deceased herein on 30/10/2015 provoking him to substitute the charge the accused was facing of assault to that of murder. PW3, Erick Arwa Osunga testified that he witnessed the stabbing of the deceased by the accused and assisted in having him taken to the hospital and later learned the deceased passed on three days after admission to Jaramogi Oginga Odinga Teaching and Referral Hospital. PW2 Dr. Belinda Akinyi Omondi, who gave evidence on

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behalf of Dr. Olwala, produced the postmortem report as exhibit P1. Dr. Olwala opinioned the cause of death was hyporolaemic shock due to splenic laceration and noted the deceased body had a stab wound measuring 2cm below umbilical cord. The doctor's evidence corroborates the evidence of PW3, PW4 and PW5. PW3 stated he witnessed the deceased stab wound. The death of the deceased is not disputed by the accused. I therefore find that the prosecution proved death of the deceased and its cause. 16. The next issue for consideration is who caused the death of the deceased herein? The accused in his defence testified that he fought with the deceased. He did not specifically state that he caused the death of the deceased. In this case, the prosecution called only one eye witness PW3. PW3, Erick Arwa Osunga is a cousin to the deceased Kelvin Ndonga Orimba and that before the incident, he knew the accused as Daniel Otieno Ochieng. That on 20/10/2013, PW3 met the deceased at around 8.00pm while he was in the company of his two brothers at Akala Centre at Sky Web Pub and later met him at around 10.00pm at the Connection Bar. PW3 also met Danny, the accused thus Daniel Otieno Ochieng at the Connection Bar. PW3 and his brothers got inside the Connection Bar leaving Daddy, thus the deceased Kelvin Ndonga Orimba outside as he did not have entrance fee. While inside PW3 realized his brother Cyrus was being pushed out by security men and followed them outside to check what was happening. That while outside PW3 noticed another group quarreling his cousin Daddy, Kelvin Ndonga Orimba. He could see clearly as there was electricity light coming from the bar through the curtain. He saw Danny, the accused thus Daniel Otieno Ochieng, touch his waist and swung his hand and immediately he heard Daddy, his cousin crying and groaning as he started walking away from the scene. He followed him and asked him what was the problem and he told him that he had been stabbed by Danny, the accused without telling him the stabbed area. PW3 then returned to where Danny, the accused was to enquire from him why he had stabbed his cousin Daddy. That without answering PW3 as to why he had stabbed the deceased, he picked a knife from his waist and stabbed PW3 on the head. PW3 went and reported to the police. PW3 later received a telephone call from Daddy, the deceased asking him to take him to a hospital as he was dying. PW3 went and found the deceased near Suga Inn lying on the ground and called a motorbike and instructed one Jared, his cousin, to escort the deceased to Akala Health Centre. He later learned the deceased was not attended to at Akala as they did not find any doctor. That when PW3 went home he found the deceased at his bed and noted a pool of blood on his bed as Daddy was groaning. PW3 then organized for Daddy to be taken to Akala Health Centre the following day from where he was referred to Jaramogi Oginga Odinga Teaching and Referral Hospital. 17. I have warned myself of the danger of relying on evidence of a single eye witness. I have found that PW3 was able to see the accused clearly before the incident and at the time when his brother was pushed out with the aid of electricity light. He saw what the accused did and explained it in detail. That when the deceased was stabbed, PW3 followed him and he was able to tell PW3 that he was stabbed by ‘Danny’, the accused. When PW3 went to ask the accused why he stabbed the deceased, he also stabbed PW3. The deceased later called PW3 and asked him to take him to the hospital as he had been stabbed by the accused. I find the accused in his defence, he did not deny having met both the deceased and PW3 but stated they fought. I find PW3's evidence reliable and believable. PW3 placed the accused at the scene of crime. PW3 saw the accused pull out a knife which he also used to stab both the deceased and PW3. PW2, the doctor who conducted the postmortem examination on the body of the deceased found that the deceased's body had a stab wound below the umbilical area. I therefore find the evidence of the doctor corroborated the evidence of PW3. From the evidence of PW3 and the doctor who performed the postmortem examination on the body of the deceased, I find the prosecution proved the deceased died as a result of hyporolaemic shock due splenic laceration from stab wound. I therefore find the prosecution proved the deceased's death was caused by the accused who stabbed him with a knife. 18.Whether the accused had malice aforethought? PW3 testified he saw a group of people quarreling his cousin Daddy and saw the accused pick something from the waist and swung his hand and the deceased cried as he groaned. That when PW3 followed the deceased he told him he was stabbed by the accused. That when PW3 went to enquire from the accused why he had stabbed his cousin; the accused also stabbed PW3. The accused through his advocate's written submissions, raised a defence of provocation, self-defence and intoxication. The accused throughout the hearing of the case did not raise the defence of provocation or self defence or intoxication, through cross-examination or in his sworn defence. PW3 the eye witness who gave

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evidence did not mention that the accused was ever provoked by the deceased or himself nor did he mention the accused being drunk. That if the accused had been provoked by PW3 as submitted by his counsel he could have raised the issue with the witnesses through cross-examination, nothing stopped the accused from doing so as the prosecution witness went through crossexamination. That PW3 denied they fought with the accused. However, that issue was never put to PW3; nor did the accused state in his defence he was injured nor did he produce any medical document nor had he attend any hospital for any treatment as per his evidence arising out of the alleged fight. The accused was not undersiege at any moment, as submitted by his counsel, nor was there any justification for alleged apprehension that his life .was in any danger nor he threatened with any injury. That the assertion that he fought back in self defence is not supported by any evidence as the evidence on record revealed that when the deceased was stabbed he walked away and similarly when PW3 returned to find out why the accused stabbed his cousin, he got a stab and walked away and did not meet the accused outside the Connection Bar. On the issue of the accused being intoxicated, there was no evidence from the accused that at the material time he was intoxicated at all nor did PW3 give evidence the effect that the accused was drunk. 19. Exhibit P2, the statement from the deceased which the defence did not object to its production, the deceased stated it is the accused who approached him wanting to know what he was doing outside the bar and deceased's cousin tried to intervene but accused stabbed the deceased at his stomach. The deceased identified his assailant as Danny, the butcher at Akala Centre as there was a bright light from the security light. From the evidence of the deceased and PW3, it is clear that the accused was not provoked nor was he threatened by one. PW3 and the deceased did not state that there was a fight. The accused did not raise the defence of intoxication or self-defence or provocation through cross-examination when he had the opportunity to do so nor in his defence. That even if there was self-defence, which I have not found in the evidence in this case, I find the force used by the accused was not reasonable for the defence of selfdefence to stand as the accused used excessive force in the circumstances, taking into account that there was no evidence of any threat or danger to the accused’s life from either PW3 or the deceased. I further find there was no fight as per the evidence from PW3 and the other prosecution witnesses. The accused stated on oath he never sustained any injury to his body on the material night. Intoxication, that can only be a defence if as a result of his consumption of intoxicating liquor or substance, the accused mental faculty and/or judgment were appreciably and materially impaired and that the accused was incapable of forming an intention to cause death or grievous harm. I find the accused as an afterthought. 20. In the instant case, I find that there was no evidence of the accused having been intoxicated at the material time and I further find the submission of the intoxication, self-defence and provocation as a defence in this case was only raised in the submissions and not in the evidence. The accused never raised in his evidence, a defence of provocation or self-defence or intoxication which the prosecution could have checked out on it but all the same, I find such defence was not raised at all. The accused going to public gathering in the crowd with a dangerous weapon, thus a knife and picking an issue with the deceased, removing his knife from his waist and stabbing the deceased's stomach, a delicate part of the body, he had an intention to cause death or grievous harm or had knowledge that by stabbing someone at the stomach, he could cause death or grievous harm to someone, whether that person is the person actually killed or not. I therefore find that the accused had planned to cause death or grievous harm to someone. I find that malice aforethought has been proved. 21. The upshot is that the prosecution has proved their case against the accused beyond any reasonable doubt. I find the accused guilty of murder of Kelvin Ndonga Orimba. I accordingly convict the accused of murder as charged. DATED AND SIGNED AT SIAYA THIS 16TH DAY OF MARCH 2017. J.A. MAKAU JUDGE DELIVERED IN OPEN COURT THIS 16TH DAY OF MARCH 2017.

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In the presence of: Mr. K. Othero: for the Accused Mr. E. Ombati: for State Court Assistants: 1. George Ngayo 2. Patience B. Ochieng 3. Sarah Ooro J.A. MAKAU JUDGE

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