REPUBLIC OFKENYA INTHE HIGHCOURT OFKENYA ATKISUMU CRIMINAL CASE(MURDER)NO.2 of 2017 REPUBLIC.........................................................................................PROSECUTOR VERSUS CALVIN OUMAMADO......................................................................1STACCUSED JACKOMONDIOKUMU..................................................................2ND ACCUSED JUDGMENT 1. CALVIN OUMA MADO and JACK OMONDI OKUMU, herein after referred to as 1st and 2 nd accused respectively) are jointly charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particularsof the charge are that: On12th March, 2017 at Konyango area in Kisumu East Sub-County within Kisumu County, jointly with others not before the court murdered FRANCIS OWINO OWUOR (hereinafter referred to as the deceased) PROSECUTIONCASE 2. The prosecution called 5 witnesses.PW1JaredOumaOtienostated that on 12.3.17 at 3.00 am, he went out of his house after he heard found a crowd gathered and saw two men that were armed with hammers attacking the deceased who was lying in a trench. That he requested the attackers to take the deceased who was alleged to have stolen a TukTuk to the police station but instead they tied his legs to the back of a TukTuk and dragged him a way. The witness stated that he called Kondele Police Station and immediately thereafter, police officers arrived in a vehicle and he directed them towards the direction that the Tuk Tuk had been driven to. He stated that he later learnt that the deceased had died. He said that he identified the 2 accused persons as the ones that dragged the deceased using a Tuk Tuk. 3. PW2CPLJosephOumastatedthaton12.3.17at about 3.00am,he was instructed to go to Koyango area and rescue a victim tha thad been attacked. That he went to the scene with his colleagues and upon arrival saw aTukTukregistrationnumberKTWB863Bdragging a man tied to it with a rope. That they followed theTukTuk and managed to arrested accused 1 who was a passenger and accused 2 that was the driver. That they took the victim who was barely alive to Avenue Hospital where he died later in the day. 4. PW3 Dr. Abiero Jorum of Jaramogi Oginga Odinga Teaching and Referral Hospital Mortuary produced deceased’s post mortem filed by his whom he stated he had worked for 2 years and knew her signature and handwriting. The postmortem dated20.3.17(PEXH.4) shows that the body of deceased had the following injuries: 1) de gloving injury on left hand 2) extensive abrasions in both upper limbs 3) abrasion on abdominal region 4) massive subdural haematoma in both right and left parietal regions 5) brain oedema with pressure effects 5. The doctor formed an opinion that the deceased died of severe head injury with massive subdural haematoma secondary to blunt force trauma on the head.
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6. PW4 PC Chrispinus Abula,a scene of crime officer visited Kondele Police Stationon13.3.17 where he took 5 photographs of a yellow a Tuk Tuk registration number KTWB 863B which had a rope tied to its boot and which was alleged to have been involved in murder which he produced as PEXH.1 (a)to (e)and a certificate there of as PEXH.2. 7. PW5 CPL Samuel Sang, the investigating officer testified that he gathered information from deceased’s wife Sharon Achieng that the deceased was attacked for allegedly stealing a Tuk Tuk. He told court that Sharon informed him that accused 1 went to their home at about 2.00 am on 12.3.17 and demanded that the deceased gives him back his Tuk Tuk after which he raised an alarm and a crowd gathered and assaulted the deceased. He stated that he gathered information from accused 1th at the deceased used to drive accused 1’s Tuk Tuk and would be paid Kshs. 1,000/- per day. That on 12.3.17 about 2.00 am, accused 1 allowed the deceased to use the Tuk Tuk to take his sick wife to hospital but the deceased called later and said that the Tuk Tuk had been stolen. He stated that accused persons were arrested having dragged the deceased on tarmac road for about 1km from scene of crime and they were later charged. With the consent of the defence counsel, the witness produced a statement by Sharon Achieng, deceased’s wife recorded on 12.3.17 in which she named accused 1 as one of the persons that attacked the deceased for allegedly stealing a Tuk Tukon12.3.17. DEFENCECASE 8. After the close of the prosecution case, I placed the accused persons on their defences. 9. 1staccuseddeniedthathewasaTukTukdriver.Hestatedthaton night of 12.3.17,hewentoutofhishouseafterhesaw a crowdgathered and he found an injured man lying next to a yellow TukTuk. He said police arrived at the scene and some people managed to escape but he was arrested and waslaterchargedwithanoffence he did not commit. 10. 2ndaccusedstatedthatonthenight of12.3.17,he was driving his TukTuk when he received in formation that a nother TukTuk drive rhad been robbed of his TukTuk at Koyango area. He stated that he went to Koyango area where he found several people and TukTuks. It was his evidence that after he alighted from his TukTuk, a man was tied to it and dragged away. He stated he was going after his TukTuk when he was arrested and was later charged with an offence he did not commit. ANALYSIS ANDFINDINGS 11. I have considered the evidence on record. For Prosecution to secure a conviction on the charge of murder, it has to prove the following three ingredients against the accused persons. (a) the death of the deceased occurred; (b) that the accused committed the unlawful act which caused the death of the deceased; and (c) that the accused had malice afore thought. (a) The death of the deceased 12.The death of the deceased has been confirmed by the postmortem form PEXH.1 produced by PW4 that shows that deceased had degloving injury on left hand; extensive abrasions in both upper limbs; abrasion on abdominal region; massive subdural haematoma in both right and left parietal regions and brain oedema with pressure effects and had died of Severe head injury with massive subdural haematoma secondary to blunt force trauma on the head. (b) Proof that accused committed the unlawful act which caused the death of the deceased 13. Both accused persons have conceded that they were at the scene where deceased was attacked but they have denied that they assaulted the deceased. And contrary to accused 1’sdefence,accused2in cross- examination stated that he knewaccused1as aTukTuk driver thereby dislodgingaccused1’sdefence that he was nota Tuk Tuk driver. 14. PW1 Jared Ouma Otieno statedthathesawaccusedpersonsattack the deceased with hammers before they dragged him away tied at the back of a TukTuk. 15. PW2 CPL Joseph Ouma stated he arrested accused 1 who was a passenger and accused 2 that was the driver of TukTuk registration number KTWB863B that was dragging the deceased along the tarmac on the night of 12.3.17. 16. I have carefully considered the prosecution case vis avis the defence case.PW2’s evidence that he arrested accused persons while they were dragging the deceased who was tied to Tuk Tuk registration number KTWB 863 B connects them with the crime, corroborating PW1’s evidence in Material particular not only that the crime was committed but also that the accused persons committed it.(See Republic v Manilal Ishwerlal Purohit (1942)9EACA 58,61). 17. Upon acarefu levaluation of th eevidence, this court finds that the prosecution evidence was overwhelming and effectively dislodged the defence offered by the accused persons. I am satisfied that accused persons inflicted the deceased with considerable injuries that led to his death which constitutes the‘act us reus’ of the offence. (c) Proof that the said unlawful act or omission was committed with malice afterthought
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18. Malice afore thought was defined in the case of NZUKI VS REPUBLIC [1993] KLR 171 where the Court of Appeal held that before an act can be murder, it must be aimed at someone and in addition it must be an act committed with the following intentions, the test of which is always subjective to the actual accused. -Intention to cause death -Intention to cause grievous bodily harm -Where accused knows that there is arisk that death orgrievous bodily harm will ensue from his acts and commits them without lawful excuse. 19. In the case of DANIELMUTHEE VS REPUBLICCriminalAppealNo.218 of 2005 (UR) cited in the case of REPUBLIC VS LAWRENCE MUKARIA & ANOTHER [2014] eKLR,(Bosire,O’kubasuandOnyangoOtienoJJA.),while Considering what constitutes malice afore thought observed as follows: “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 aforethoughtwasestablishedintermsofSection206(b)of the Penal Code.” 20. The deceased suffered severe head injury with massive massive sub dural haematomain both right and left parietal regions, brain oedema with pressure effects secondary to blunt force trauma on the head. 21. The attack on the deceased was so brutal that he was not only injured on the head but was also dragged on tarmac as a result of which he suffered de gloving injury on left hand, extensive a brasions in both upper limbs and abrasion on abdominal region. The cruelty meted out on the deceased leaves no doubt in the mind of the court that accused persons must have known that the violence meted out on the deceased would either cause him grievous harm if not death. 22. From the fore going, I am convinced that malice afore thought has been established in terms of Section206(b)of the Penal Code. Disposition 23. Consequently, I have come to the conclusion that the state has proved its case beyond reasonable doubt. Both accused persons are hence found GUILTY of the offence of murder and are accordingly convicted. DATED AND DELIVEREDATKISUMU THIS 23rd DAY OF October 2018 T. W. CHERERE JUDGE Read in open court in the presence ofCourt Assistant Felix Accused 1 present Accused 2 present For Accused Mr Nenko For the State Mr Muia -
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