REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL CASE NO. 23 OF 2019 REPUBLIC................................................................................................................(ODDP) VERSUS FELIX OUMA MAKADUDI...........................................................ACCUSED PERSON JUDGMENT 1. The accused Felix Ouma Makadudi is charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code. 2. Particulars are that the accused Felix Ouma Makadudi on the 30 th day of October 2019 at Dunga Unuse Village in Migadini area, within Changamwe Sub-County within Mombasa County murdered William Johnson Bada. Prosecution case 3. PW 1 testified that the accused hit the deceased on the abdomen using a hammer. PW 3 Dr. Dikune Salma produced Post-mortem Report – Ex. P2 in which Dr. Umu Seif conducted pathology and concluded that cause of death was blunt trauma with blunt object to the head. 4. PW 2 stated that although there was minimal subcutaneous hemorrhage noted in digestive system he could not ascertain if the injury on the abdomen had any relationship with the head injury that led to the death. He said the injury to the stomach was not severe. PW 2 identified the body of the deceased for postmortem examination. 5. PW 4 testified that on 31/10/2019 he went to look for the deceased and found he was crying and the deceased told them that accused had hit his abdomen with a hammer. PW 4 went to accused persons place in company of Safari to report the deceased condition and he told them he didn’t assault him but merely pushed him using the hammer. 6. PW 4 said he found the accused was having the hammer he used to assault the deceased. PW 4 said the accused was repairing his house when they went to tell him about the deceased. He testified further that when they decided to buy milk for the deceased he took it and started vomiting from the blood. He said he didn’t see any other injuries on the deceased body. Together with Safari they took the deceased to hospital using a tuktuk but he died on the way to hospital. They then decided to go and record statements at Changamwe Police Station. 7. PW 5 testified that he had gone to visit the accused when the deceased who looked drunk came. That accused left him behind the house and went to the front part of the house to meet the visitors. That when he heard an exchange of words he proceeded where the accused was and found he was holding the deceased by the color. The he advised the accused to leave the deceased alone as he looked drunk. That he told the person in company of the deceased to separate them. PW 5 confirmed the accused was having the hammer produced in court. 8. PW 5 and after the scuffle he didn’t see any other injuries on the deceased. He said he didn’t see stones that accused was alleged to have stolen. PW 5 said the deceased and his companion were noisy when they arrived at accused person’s home. PW 5 said the deceased person’s utterances made him know he was drunk. 9. PW 6 also identified the body of the deceased for purposes of postmortem. PW 7 P.C. Musa Amakobe conducted investigations herein and preferred charge against the accused person. PW 7 testified that he was on patrol when he received instructions to proceed to the Coast General Hospital Chaani branch where case of murder was reported. He said the body of the deceased was taken to Coast General Hospital Mortuary by Duty Officer at Changamwe as members of public identified the accused as suspect of murder and he was arrested and taken to Changamwe DCI Offices for interrogation. That they went back to scene at accused person’s home and recovered the hammer that was used to injure the deceased.
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Defence case 10. Accused person in his defence said that on 30/10/2019 at about 8.00am he was repairing his kitchen when a neighbour and friend visited. He said the neighbour was PW 5. That at 4.00 a.m 2 people also went to his home and alleged he had stolen stones at their site. He said the site referred to was about 50 metres away and is surrounded with a perimeter wall. 11. That PW 5 told them to go and bring the person who saw the accused steal stones but when they left they didn’t return. Accused said he didn’t assault the deceased with the hammer he was carrying in his hands when he went to meet the deceased and PW 1. He said PW 5 intervened so they could not fight. Accused said he is 53 years old and he had no reason for killing the deceased. He said that he only had verbal exchange with the deceased. Written Submissions by Accused 12. The Accused person’s counsel submitted that the prosecution was required to tender evidence demonstrating the occurrence of an unlawful act committed by an accused person which caused the death of the deceased. It was also submitted that the prosecution had to prove malice aforethought on the part of the accused person which elements included but not limited to intention to cause death, intention to cause grievous harm to another and intention to commit a felony. 13. The defence submitted that the prosecution did not discharge the burden of proof as the cause of death is not linked to any act by the accused person as the deceased person died as a result of head trauma secondary to head trauma as opposed to the injury alleged to have been inflicted on his abdomen by the accused person using a hammer. That there was no evidence tendered to demonstrate that the accused committed an unlawful act that caused injury to the deceased’s head. It was also submitted that the accused had malice aforethought in causing the death of the deceased. The defence urged the court to acquit the accused person. Analysis and Determination 14. The prosecution is required to prove the ingredients of murder beyond reasonable doubt against the accused person for it to secure a conviction. Section 107 (1) of the Evidence Act states as follows: - ‘Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’ 15. On the ingredients of the offence of murder contrary to Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused was charged, the court held as follows in the case of Republic v Andrew Omwenga [2009] eKLR: - “It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission – there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) The death of the deceased and the cause of the death, (b)That the accused committed the unlawful act which caused the death of the deceased; and (c)That the accused had the malice aforethought”. 16. From the postmortem report, the deceased died as a head trauma secondary to blunt trauma. Dr. Ummu Saif who examined the body and prepared the postmortem report on 4th Nov. 2019, said there was minimal subcutaneous hemorrhage noted in the digestive system which PW3 Dr. Dikuu Salma could not ascertain its relationship to the head injury and it was not severe. 17. PW1 testified that the Accused hit the deceased in the abdomen with a hammer. On the other hand, PW5 who was with the accused when the deceased and PW1 went to him claiming he had stolen stones said that he found the accused was holding the deceased’s collar with one hand and a hammer in the other hand and he urged the accused to leave the deceased who looked drunk. He said he did not see any injuries on the deceased after his companion had separated the two. 18. Although the alleged hitting of the deceased with a hammer in the abdomen was unlawful, there is no connection drawn between the cause of death which was blunt trauma to the head and the minimal subcutaneous hemorrhage noted in the digestive system. 19. PW5 testified that the deceased looked drunk and there are possibilities that he may have sustained injuries on the head before going or after he had left the accused person’s home. PW7 the Investigating Officer did not interrogate this evidence by his own witness as to the state of mind of the deceased person. 20. In conclusion, this court finds that the prosecution has not satisfactory proved the ingredients of the offence of murder against the accused person beyond reasonable doubt to warrant a conviction. The accused person is therefore not found guilty and is acquitted under Section 322 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 10TH DAY OF MARCH 2022
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HON. LADY JUSTICE A. ONG’INJO JUDGE In the presence of: Ogwel- Court Assistant Ms. Kambaga for the State Mr. Gitahi Advocate for the Accused Person – No appearance Accused present in person HON. LADY JUSTICE A. ONG’INJO JUDGE
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