Lesiit, J Republic v Samson Kimathi Owino & 1 other

8. PW4 received a suspect brought to the Police Station by two Administration Police officers on the same night. The man brought in was naked, had been beaten and injured on both legs. PW4 testified that while the accused was being brought into the station, PW2 identified him as the person who stabbed both him and his neighbor, the deceased in this case. The accused was re-arrested and placed in the cells. PW4 testified that on the following day the same Administration Police Officers who brought in the accused handed over to him a bloody knife P. Exh. 1. The knife had blood on both sides of the blade. PW4 sent the Knife and blood samples of the accused and the deceased to the Government Chemist. A report P. Exh.3 signed by DR. L.K. Muthuri dated 7th June 2017 came back with results which were negative. 9. According to the testimony by PW 4, the accused was uncontrollable as they had to restrain him using ropes so as to avoid being injured by him. He said that the accused was still naked when presented before the Magistrate as it proved difficult to dress him as he was kicking and punching. An application for extension of time was also filed at the Magistrates’ court to enable PW4 conclude his investigations and have a mental assessment on the accused done as was also ordered by the court. The accused was later taken to Mbagathi Hospital for treatment by PW 4 as he was badly injured on both his legs. 10. The Mental Assessment at Mathere Hospital was done on 19 th March 2015. PW5, a Consultant Psychiatrist testified saying that when he first saw the accused he was very unwell, unkempt and had auditory hallucinations. A report by PW 5 dated 19 th March 2015 came back showing that the accused was unfit to stand trial. Accused was put on treatment. A re-evaluation was done five months later on 20 th July 2015. The accused was off his medication since he had not gone for a follow up visit after March 2015. PW5 stated that she carried out a second evaluation and made a report P. Exb. 4. She found the accused was fit to plead as his mental status had improved. The accused medication was changed to injectables. 11. PW 6 DR. Peter Muriuki Ndegwa performed the postmortem on the body of the deceased on the 25 th March 2015. The post mortem report is dated 25th March 2015 and was produced in court as P. Exh 5. The doctor formed the opinion that the deceased died of a penetrating stab wound in the chest between the 2 nd and 3rd ribs and a fractured cartilage. PW6 formed the opinion that the cause of death was exsanguination due to a severe chest injury due to penetrating stab wound. On cross examination by the learned defence counsel Mrs. Omungala, PW6 stated that he saw only one stab wound. 12. The court placed the accused on his defence after the close of the prosecution case. The accused in his defence indicated that on 10 th March 2015 at 8 pm, he had gone to his brother’s house in Kibera and passed by Kamukunji within Kibera. While walking some people held him and accused him of being a thief. The accused said that the people beat him and poured paraffin oil on his body and set him ablaze. That is when he decided to take off all of his clothes and run away to safety. He climbed the roof of the nearby houses. The accused said that he was burnt on his left leg from the calf to the ankle joint. When he jumped down from the roof the accused claims that someone started beating him on the back and another person came from a nearby house armed with a knife. 13. The accused stated that the second person came at him with a knife and that he held the knife and a struggle ensued and he was able to wrestle the knife from the person. Soon another person joined in and held the accused’s hand from behind him. The accused said that he swung his hand and the man let go of it. He said that immediately he got to the main gate he ran out. The accused made his way to the Administration Police camp for safety. The Administration Police received the accused as a mob of people were also chasing the accused. Accused stated that he was taken away to Kilimani Police station and placed in the cells. The following day he was taken to Mbagathi hospital where he was treated for his injuries. He stated that later on he was brought to court. The accused stated that he did not know the deceased and had no reason to harm him. 14. The accused person was represented by defence counsel Mrs. Omungala who gave oral submissions in the case after the close of the defence case. Counsel argued that the accused was not fit to plead as the first report of the Mental Assessment indicated that the accused was not fit to plead. Counsel urged that the second report indicated that the accused was fit to plead. Mrs. Omungala urged that this was a clear indication that at the time of the offence the accused was not in a clear state of mind. Counsel urged that the accused explained why he was naked. Counsel urged the court to note that the accused was not found with any weapon when he was arrested. She further added that the accused in his defence was not clear who had stabbed the deceased. 15. The Learned Prosecution counsel in response urged that the prosecution was relying on the evidence on record and would not make any submissions in the case. 16. The accused faces one count of the charge of Murder contrary to section 203 as read with section 204 of the Penal Code. Section 203 which creates the offence of murder provides as follows; “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 17. Malice aforethought is an important ingredient to a charge of murder. Section 206 of the Penal Code outlines the circumstances which constitute malice aforethought as follows: “Malice aforethought shall be deemed to be established by evidence providing 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;

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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.” 18. In Anthony Ndegwa Ngari v Republic [2014] EKLR the essential ingredients of the offence of murder required to be proved by the prosecution against the accused were set out. These included proof of the death of the deceased; proof that the death of the deceased was unlawful; proof that at the time he caused the death the accused had the necessary malice aforethought. 19. There are issues which are not in dispute. It is not in dispute that the accused entered into the plot where the incident took place and that at the time he was nude. There is no dispute that the accused was at the time being chased by people who were also shouting “mwizi! Mwizi!”. Meaning “Thief! Thief!” There was no dispute that there was a confrontation between the accused, PW2, the deceased and others. The death of the deceased is not in dispute. 20. The issues in this case are: I. Whether the accused caused the death of the deceased. II. Whether the accused had formed the necessary malice aforethought at the time he caused the death. III. Whether the accused can enjoy the defence of insanity. hat the burden of proof lies with the prosecution to prove the charge against the accused beyond any reasonable doubt. 22. In regard to the first issue, I shall consider whether the prosecution has established beyond any reasonable doubt that the accused caused the death of the deceased contrary to section 203 of the Penal Code. In order to prove its case, the prosecution adduced before the court the testimony of PW1, PW2 and PW6. PW1 and PW2 were at the scene of the murder at the time of the incident. PW6 was DR. Peter Muriuki Ndegwa who carried out the postmortem on the deceased. PW6 testified that on examination he found that the deceased had died of excessive bleeding from a penetrating stab wound to the chest between the left 2nd and 3rd ribs with a fractured cartilage. PW6 formed the opinion that the cause of death was exsanguination due to severe chest injury due to penetrating stab wound. The prosecution therefore established the death of the deceased beyond reasonable doubt. 23. It is clear that the deceased was alive when the accused got into the plot where PW2, the deceased and others lived. The evidence of the prosecution establishes that the accused fell into the house of PW1 and 2 through the roof. He fell in but was able to hurl himself back into the roof before jumping down into the compound of the plot where PW1, 2, the deceased and others lived. PW2 appears to have been the first to get out of the houses within the plot. From his own evidence he came out with an iron bar. He started attacking the accused, joined by others from the plot. PW2 stated that all of a sudden, the accused started stabbing him and he received three stabs. At that point the deceased an elderly man went to PW2’s rescue. Unfortunately, the accused stabbed him once in the chest and shortly later blood started oozing profusely from the deceased chest. He died the same evening from the said wound. 24. The accused stated in his defence that the deceased held his hand from behind him as he was fighting with PW2. That when he turned to free his hand is when the deceased got stabbed. The accused in his defence stated that he did not know who stabbed the deceased. 25. Is there any doubt that the accused stabbed the deceased? PW1 contradicted the evidence of PW2 saying that the person who attacked PW1 and the deceased was not the accused. That evidence has been disproved given the fact that the accused himself does not deny being at the scene of the incident and being involved in an attack against him. I find that there was clear evidence that the accused was involved in a brawl with PW2 and others from the plot. The accused admitted to being naked and running on the roof before jumping down and being confronted by aggressive people. This settles the issue of identification and places the accused at the scene of incident. 26. The deceased was not among those who attacked the accused. He came in as the fight was going on and decided to intervene only for him to get stabbed. PW2 was present and witnessed the whole incident, a matter the accused does not deny. There was sufficient lighting from a flood light high mast pole which according to PW2 was 7 meters from the plot. This was not challenged by the defence. In addition, it is clear from the evidence of PW2 that the accused first stabbed him with a knife. It is also clear that the accused turned the same knife on the deceased. PW3 the doctor who examined PW2 after the incident confirmed that PW2 had been stabbed with a knife. 27. I am satisfied that the accused was the one who stabbed the deceased at the scene of the incident. I find that it is the accused who stabbed the deceased and caused his death. I find that the evidence of the prosecution is not very clear as to whether the accused was armed with a knife before coming to the plot, the scene of the incident or whether he got the knife at the plot. This is material because it was accused defence that he disarmed one of two men who attacked him at the scene. The accused own defence refutes the allegation that he was armed prior to entering the plot. PW2 demonstrated how the accused was holding the knife as he, PW2 approached him with the intention of attacking him, which he did. I am not convinced beyond any reasonable doubt that the accused was armed before coming to the plot that night. He jumped into the roof and even fell inside the roof of PW1’s house. He was also naked. I am not satisfied that he could have been carrying the knife in his hand in the manner described, with all the drama of walking on the roof and falling in. 28. Regarding the murder weapon, the knife used in the incident was not produced in evidence. The evidence adduced by PW4 was that the knife he received in this case was handed over to him one day after the incident by the two Administration Officers who arrested the accused. When he took the knife to the Government Chemist with blood samples from the accused and the deceased, the results were negative. It is clear that the murder weapon was not recovered. Failure to recover and adduce in evidence the murder weapon is not fatal to the prosecution case. I am guided by the Court of Appeal case of KARANI V. REPUBLIC (2010) 1 KLR 73. At page 79, the Court delivered itself as follows:

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“The offence as charged could have been proved even if the dangerous weapon was not produced as exhibit as indeed happens in several cases where the weapon is not recovered. So long as the court believes, on evidence before it, that such a weapon existed at the time of the offence, the court may still enter and has been entering conviction without the weapon being produced as exhibit.” 29. The question is whether the prosecution has proved that at the time the accused stabbed the deceased he had formed malice aforethought to either cause death or grievous harm to the deceased. 30. Malice aforethought is an important ingredient to a charge of murder. And is outlined under Section 206 of the Penal Code which is set out herein above. 31. Malice can be inferred by the manner in which the offence was executed. In order to prove intention, one must prove pre-meditation. There was no suggestion from any of the prosecution witnesses more specifically PW1 and PW2 that the accused pre-planned the fight and attack against PW2 and the deceased. There is no clear evidence that the accused was armed with the murder weapon, the knife before going into the scene of attack. The prosecution did not show that the accused knew the deceased prior to the attack nor held a grudge against the deceased so as to find that he had a motive for the attack. It was not reasonably foreseeable the outcome was to advance to an assault against the deceased. 32. As stated earlier above, section 203 of the Penal Code provides that anyone who unlawfully and with malice aforethought causes death of another is guilty of murder. Section 206 further sets out circumstances that constitute malice aforethought. It is the burden of the prosecution to prove beyond reasonable doubt that the accused committed the offence. In the event that the evidence on record by the prosecution shows and confirms that the death of the deceased was caused from the unlawful act or omission of the accused person, and that such act or omission falls within the meaning of the provision of section 206, the court need not go further and should make a finding that the accused person is guilty as charged. I find that the prosecution was not able to prove beyond a reasonable doubt that the accused premeditated the murder or had formed any malice aforethought to cause death or grievous harm to the deceased. 33. However, the prosecution must prove its case beyond reasonable doubt that it is indeed the accused who committed the unlawful act, in this case stabbing the deceased, that the deceased died as a result of the unlawful act and that at the time the accused stabbed the deceased he had formed an intention to either cause the death or grievous harm to the deceased. 34. In R v Tubere S/O Ochen (1945) 12 EACA 63, the Appellate Court of Eastern Africa held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before during and after the attack. 35. The knife produced in evidence by PW 4 did not have any blood belonging to the deceased or the accused and the prosecution as mentioned earlier failed to establish who the knife belonged to. In Okale v R (1966) E.A at 555 the court of appeal held: “In every criminal trial a conviction can only be based on the weight of the evidence adduced and it is dangerous and inadvisable to put forward the theory not canvassed by evidence or in counsel’s speech. … the burden of proof in criminal proceedings is through out on the prosecution, and it is the duty of the trial to look at the evidence as a whole.” 36. What is clear from the testimony of PW2 is that the act of an attack against the deceased from which he succumbed to death was the action by the accused. The prosecution failed to create a nexus between the accused, the deceased and the knife produced as P. Exh. 1. The knife which was presented before this court was not recovered from the accused. It was recovered one day after the incident. Secondly the knife was sent to the Government Chemist and was analyzed alongside blood from the deceased and found not to have any blood stains from the deceased. There is therefore doubt that the knife exhibited in court was the same one used to attack and stab the deceased. In KARANI V. REPUBLIC (2010) 1 KLR 73. At page 79, the Court delivered itself as follows: “The offence as charged could have been proved even if the dangerous weapon was not produced as exhibit as indeed happens in several cases where the weapon is not recovered. So long as the court believes, on evidence before it, that such a weapon existed at the time of the offence, the court may still enter and has been entering conviction without the weapon being produced as exhibit”. 37. As to malice aforethought we have the defence case that it was the accused that was being chased by some people just before this incident. When the accused entered the plot where PW1, 2 and the deceased and others lived, their reaction according to PW2 was to go out with bars to beat up the accused. It is true the accused was being chased by people who were also shouting, “Thief, thief!”. The accused himself said as much that other people not only chased him calling him a thief, they went a step further and set him ablaze. The accused said that he had to remove his clothes to save himself from the fire. 38. Neither PW1, nor PW2 or any of the others claimed that they knew the circumstances that led to the accused being chased. I find that in taking a decision to also attack the accused was high handed as they did not know what he had done. PW2 and the other 10 people he mentioned were with him as they attacked the accused were like busy bodies. 39. Can the accused claim insanity? Mrs. Omungala urged the court to find that given the evidence that he was naked at the time, and the doctor’s finding that he was not of sound mind at the time he was brought to court for plea, the accused was of un-sound mind, incoherent in his defence and therefore insane at the time of incident.

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40. Insanity is a defence found under section 12 of the Penal Code. It is a defence if it is proved that the accused person was incapable of understanding what he was doing or of knowing that he ought not to do the act or omission he is accused of. 41. The accused ably explained why he was naked. The accused was on fire so he removed clothes to save himself. Indeed, when he came to court, the court noted his injuries and ordered that he should be taken for treatment. PW 4 the investigating officer accompanied the accused to Mbagathi Hospital. The doctor who examined him confirmed he had been injured during the time of this incident. 42. PW 5 stated that the accused was not fit to plead when the first Mental Assessment was carried out on the accused. Further PW 4, stated that the accused had been difficult to handle when being dressed and brought to court. The defence counsel submitted that the accused was not in a clear state of mind when committing the offence. The accused in his sworn testimony stated that he was present at the scene and was involved in the fight. The accused does not dispute that he was at the scene of attack and even confirms the role he played during the incident. The accused placed himself at the scene of crime at the time it occurred. 43. I find that it was stereotyping of the accused by the prosecution witnesses when they said he appeared mad just because he was naked. PW5 the Officer who arrested him said he could not be contained at the time. It is hardly surprising that the accused was in a state. He had just escaped death narrowly. And it does not help that the investigating officers did not bring a single witness from the group that was chasing and branding him a thief to say what it is that the accused had done. Even where he ran to hide turned out to be hostile and set on him with iron bars and other crude weapons. His life was in danger. He was almost lynched. He had to strip to save his life. I would not be surprised with accused behavior after the ordeal he went through both before and after going to the plot where the incident occurred. I find that the accused was clear in his mind how the incident occurred. He explained vividly what transpired at the scene. The sequence and detail of the events was corroborated in the evidence of PW1, 2 and 4. I am not convinced that the evidence before court establishes that the accused was insane or of unsound mind at the time of the incident. 44. I find that insanity does not apply in this case. The accused stated and demonstrated that he was fully aware of what he was doing on the material day and explained vividly every detail of the events. The accused himself did not raise or plead insanity. That defence came up for the first time in the final submissions of the defence counsel. S.12 of the Penal Code regarding criminal responsibility in case of insanity states as follows: “A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.” 45. In the Court of Appeal case of MARII V REP [1985] KLR 710, NYARANGI JA, PLATT AND GACHUHI Ag. JJA held: “1. Where an accused person raises the defence of insanity, the burden of proving insanity rests with the accused, because a man is presumed to be sane and accountable for his actions until the contrary is shown. 2. The burden on the accused to prove insanity is not as heavy as the one of the prosecution. The burden is discharged by proving on a balance of probabilities that it seemed more likely that due to mental disease, the accused did not know what he was doing at the material time, or that what he was doing was wrong, and so he could not have formed the intent to kill the deceased. 3. Whether the defence has proved the case of insanity is a matter of fact for the judge and assessors. Where it is found that the accused was insane, a special finding may be entered; if he is found to have been sane, the finding may be murder or manslaughter; and in the case of manslaughter, that would be due to the fact that although sane, by reason of illness, the accused did not appreciate the full consequence of his act.” 46. The presumption of sanity under Section 11 of the Penal Code is rebuttable. This is so because insanity is a statutory defence available to any accused person who claims he/she was mentally sick at the time of committing an offence. While the burden of proof never shifts from the prosecution in a criminal trial, the onus of proving that the accused person was laboring under a disease of the mind at the time he/she committed the offence lies with the accused person. 47. In this case as stated the accused did not plead insanity as his defence. Witnesses thought that he was insane because he was nude at the time of the incident. There was good explanation for the accused state of mind and nudity at the time of incident. There is nothing to establish beyond any reasonable doubt that the accused was insane at the time the incident occurred. I find insanity as a defence was not pleaded and neither does it apply to this case. 48. Can the accused claim self-defence as he did in his defence? S.17 of the Penal Code defines defence of person or property as follows: “17. subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according o the principles of English Common Law.” 49. Regarding the defence of self-defence the common law principle position on the issue of self-defence was recognized by our courts in Ahmed Mohammed Omar & 5 others v R [2014] eKLR, where the court held as follows; “What are the common law principles relating to self defence? The classic pronouncement on this has been severally cited by this Court is that of the Privy Council in PALMER VS R [1971] AC 818. The decision was approved and followed by the Court of Appeal in R VS McINNES, 55 Lord Morris, delivering the judgment of the Board, said: “It is both good law and good sense

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that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. .....Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. ..... The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.” 50. In the case of PALMER VS REGINAM (1971) 1 ALL ER 1077 at page 1088 it was stated thus: “It is both good law and sense that a man is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend on the particular acts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some reaction. If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence make its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence.” 51. The above Common Law principles have been applied locally in several decisions. In Robert Kinuthia Mungai V Republic (1982-88) 1KAR 611 , the Court delivered itself as; “…….we think in view of the earlier East African cases we have considered, and the more recent English decision in R v Shannon Crim. LR 438 1980, that, the interpretation of the judgment of the Privy Council in Palmer V Republic is that while there is no rule that excessive force in defence of the person will in all cases lead to a verdict of manslaughter, there are nevertheless instances where that result is a proper one in the circumstances and on the facts of the case being considered” In this appeal, there was no evidence from any of the prosecution witnesses that the deceased persons were armed with any guns, it is the appellants who asserted that the deceased persons shot at them. Perhaps the only weapons that the deceased had were pangas, swords and a toy gun. That is why the learned trial Judge held that the appellants used excessive force in the circumstances. However, there was evidence that the deceased defied a police order to stop and confronted the appellants. “It is a doctrine recognized in East Africa that excessive use of force in the defence of the person or property, whether defence of the self-defence is upheld, a conviction or not there is an element of provocation present, may be sufficient for the Court to regard the offence not as murder but as manslaughter. ...” 52. I am guided by the principles in the above cases. In the instant case, I find that the accused was under attack. He was entitled to defend himself by using reasonable force to ward off the attack. He was under attack by PW2 who said he armed himself with an iron bar and used it against the accused. PW2 said that the other neighbours also armed themselves but he did not say with what. There is no doubt accused was under attack. That said, we have evidence of PW2 and PW5 that the accused stabbed PW2 three times with a knife. He then used same weapon and stabbed the deceased once. It was PW2 that the accused stabbed first. By stabbing him three times, and the stabbing the deceased as well was in all the circumstances of the case use of excessive force. That force was not necessary. By the time the accused inflicted a second stab on PW2 and proceeded to add another stab and turned against the deceased who merely held him by the hands, the accused had exceeded the use of reasonable force that was necessary and had become excessive. The defence of self-defence cannot apply to warrant the court enter a verdict of not guilty in the circumstances of this case. It however applies to reduce the charge of murder contrary to section 203 of the Penal Code to manslaughter contrary to section 202 of the Penal Code, for absence of proof of malice. 53. Accordingly, I find that the prosecution has failed to prove the charge of murder contrary to section 203 of the Penal Code. I find that the offence proved is manslaughter contrary to section 202 of the Penal Code. In exercise of powers under section 179 (2) of the Criminal Procedure Code I reduce the offence charged from murder contrary to section 203 of the Penal Code to manslaughter contrary to section 202 of the Penal Code. 54. I hereby find the accused guilty of manslaughter contrary to section 202 as read with section 205 of the Penal Code and convict him accordingly under section 322 of the Criminal Procedure Code. JUDGMENT READ AND DELIVERED AT NAIROBI THIS 31ST DAY OF MAY 2018. LESIIT, J.

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JUDGE

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