Republic v Gideon Wanyama Makokha

5. PW1 Sabastian Nabukashe Makokha was at his home when PW2 Ezekiel Wanyama brought accused and informed him that accused had killed his father the deceased. He took the accused to the police station. He went to the scene at the home of deceased. He saw the deceased lying down bleeding from the neck. He was taken to hospital where he died. 6. PW3 Stephen Wafula Mchanga was at his home when Ezekiel (PW2) brought accused on allegation of having killed his father. 7. PW5 No. 105322 PC Peter Masai was on duty at Kimaiti Patrol base when he received a telephone call from Sabastian Makokha (PW1) asking him to go to where he was. The witness went there and found Sabastian who led him to the homestead of deceased. He saw an axe which was blood stained. He was informed deceased had been taken to hospital. He took possession of the axe which he produced as exh.1. 8. PW6 No. 42672 Segt Harrison Muguno attached to DCI Bumula received a report of murder. He and party went to the scene. They found accrued had been arrested who upon interrogated confessed to the offence. He commenced investigation and found the motive of attack was a dispute over land which the accused wanted to take over. 9. PW7 Dr. Haron Ombongi produced a post mortem form filled by Dr. Musa Ochiel who performed the post mortem. He found the deceased bruise and fracture of numerus bruises on anterior chest with fracture of 9th and 10th rib and brain haematoma. He formed opinion that cause of death was due to severe head injury. 10. The accused upon being put on his defence testified that on 11.1.2020 at 10 a.m. he was at his grandmother’s house when his father the deceased came there armed with an axe. Deceased told him he wanted to kill accused because accused had blocked deceased from selling his land. Accused tried to escape but slipped and fell down. The deceased then raised the axe to cut him but accused stood up and pushed him. The axe then cut the deceased when it fell on him. Ezekiel Makokha (PW2) came and took accused to the police station. He testified that they had a bad relationship with the deceased because he had wanted to sell their land and had frequent quarrels. 11. DW2 Doris Nafula the mother of the deceased and grandmother of accused testified that on material day deceased came armed with an axe and stated he wanted to kill the accused. The accused tried to escape but fell down. Deceased wanted to cut him but accused pushed him and he fell down and axe fell on him. Deceased sustained injuries and was taken to hospital where he died. 12. Mr. Wamalwa Robert for accused filed written submissions. Counsel submitted that the only eye witness was PW2 Ezekiel Wanyama Makokha but there was no evidence called by prosecution to corroborate the evidence of this eye witness. Counsel submitted that from accused’s defence and the evidence of DW2 Doris Nafula the accused was defending himself when he pushed the deceased who then fell on the ground. Counsel submitted that the defence introduced the issue of a grudge or bad blood between the accused and deceased and that the same was not rebutted by the prosecution. Finally, counsel submitted that the evidence of PW2 Ezekiel was not credible and should not be relied on. 13. The accused was charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 provides: “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/552/eng@2022-05-05 2

page 2 of 5

14. The elements of the offence of murder which the prosecution must prove in a charge of murder are: a. The death of the deceased. b. The unlawful cause of death c. That in causing death the accused committed it with malice aforethought. d. That there is direct or circumstantial evidence placing the accused at the scene of the crime. 15. The deceased died is not in dispute. Indeed the accused who is the son confirmed that deceased died when he was taken to hospital. 16. PW7 Dr. Haron Ombongi testified that the deceased sustained injuries on the head and chest from which he died. He assessed the cause of death to be due to severe head injury. Death certificate No….was issued which confirmed the fact of death. The case of death was therefore found to be injuries inflicted on the head. Who inflicted these injuries? 17. PW2 Ezekiel wanyama Makokha who responded to the screams by the deceased and went there state: “I heard screams. I heard screams calling Gideon! Gideon! Gideon. I went there. On arrival I saw the accused cutting the deceased using an axe. I then heard the deceased scream last. He was lying facing down. The accused then turned to me with an axe. I held it and disarmed him. I then held his shirt. He tried to escape but I held him by the trousers. He pleaded with me not to scream as people will kill him. I told him will not scram. I took him to Sabastian (PW1). I told him the accused had killed his father. I left accused with him and went to check on the deceased. I found him lying down.” 18. The accused in explaining how deceased sustained the injuries stated in is defence: “ While there my father came armed with an axe and he told me I had blocked him form selling the land. He said he wanted to kill me. I tried to escape but did not manage. I was in the house. I tried to escape but I slipped and fell down. The deceased raised the axe. I stood up and pushed him. He fell down and the axe cut him. He had raised the axe with 2 hands. The axe then fell on him. Ezekiel Wanyama Makokha came and took me to the police station”. 19. The accused’s version is the one adopted by his witness DW2 Doris Nafula the wife of deceased and grandmother of the accused. From the evidence it is not in contention that the deceased died as a result of injuries inflicted using the axe Exh 1. It is also not disputed and is in fact admitted that the accused was at the scene where the deceased died. The only point of divergence is how he sustained the injuries which the accused contends that he pushed the deceased who fell on the axe thereby sustaining injuries. PW2 Ezekiel confirm that he in fact saw the accused cutting the deceased with the axe. The several injuries the deceased sustained would not have been caused by a single fall on an axe by the deceased as the accused would want this court to believe. I do not find that explanation plausible and reject it. I am satisfied that it is accused who inflicted the injuries on the deceased as clearly stated by PW2 Ezekiel. 20. The other element of the offence the prosecution must prove the accused had the requisite intention to cause death or malice aforethought. Section. 206 Penal Code defines malice aforethought as: Section 206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances – https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/552/eng@2022-05-05 3

page 3 of 5

21. 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. The prosecution can prove malice aforethought or intention to commit murder by tendering evidence of either. 1. Evidence that accused told the deceased or other people that he was going to kill him. 2. Evidence of preparation to kill the deceased, e.g by buying or securing murder weapon, preparing where to get deceased to attack him, preparations on how to escape from the scene. 3. It can be inferred from the circumstances of the attack, the nature of weapon used, the part of the body targeted, the intensity of the attack. 22. In this case the accused attacked the deceased with an axe (Exh.1) a lethal weapon, he targeted the head and chest the vulnerable part of the body and inflicted several injuries including fracture of 9th and 10th ribs. All these taken cumulatively clearly demonstrates an intention to cause grievous harm or to kill as he did. I am therefore satisfied that accused did have the requisite men’s rea to cause death of the deceased. 23. Mr. Wamalwa Robert for accused contended in his submission that the accused acted in self defence. He referred this court to the High court decision in R-vs- Patrick Sila Kyule (2020) eKLR to fortify his submissions. 24. The plea of self defence is available to you when you or another person is in immediate danger form an attacker and use of violence is the only way to stop it. Simply being provoked or challenged to a fight is not good for self defence. For the plea to be available to an accused he must prove the four elements: a. a. There was unprovoked attack b. b. That threat of injury of death was immediate. c. c. The degree of force used in self defence as objectively reasonable under the circumstances. d. d. That the fear of being attacked was based on reasonable grounds. 25. Where the accused person initiates an attack against the deceased he cannot claim self defence. Unless he proves that the attacked individual responded to excessive force under the circumstances. 26. In this case it is the accused who initiated the attack on the deceased using a lethal weapon an axe, and not the deceased. While there is evidence of bad blood between deceased and accused over the sale of land, that cannot be said to have placed the accused in immediate danger of injury or death. I therefore do not find the plea of self defence available to the accused in this case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/552/eng@2022-05-05 4

page 4 of 5

27. Upon considering all the evidence, I am satisfied the prosecution has proved a charge of murder contrary to Section 203 as read with Section 204 of the Penal code beyond reasonable doubt. I therefore find accused Gideon Wanyama Makokha guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and convict him accordingly. DATED AT BUNGOMA THIS 5TH DAY OF MAY, 2022 S.N RIECHI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/552/eng@2022-05-05 5

page 5 of 5