REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL CASE NO.EO12 OF 2021 REPUBLIC...................................PROSECUTOR VERSUS STEPHEN ADUNGO EMOJONG......ACCUSED JUDGMENT [1] The accused, Stephen Adung’o Emojong, faces a charge of murder, contrary to S.203 as read with S.204 of the Penal Code, in that on the 4th July 2021, at Adungosi area Teso South Busia County, murdered Christopher Ekwenyi. [2] The case for the prosecution was that on the material date at about 10.00p.m, Christine Okwara Esibale (PW 1), an administration Chief based within Adungosi location Teso South, received a phone call while at home from the accused who was the chairman of the local community policing unit and who informed her that a person had intruded into his house but was chased away and fell down after being hit by the accused. [3] The deceased was identified by the accused to the Chief as the said intruder. The Chief proceeded to the scene and found the deceased on the ground with a head injury. He could talk. He told the Chief that the accused was the person who assaulted him. The police arrived at the scene and took away the two, but the deceased later succumbed to his injuries. Protus Orono Omuruang (PW 2) was called on phone by an unknown person and informed that the accused was assaulting his uncle and father, the deceased. He rushed to the scene and on arrival found the deceased lying on the ground and bleeding from the head with the accused standing near him. [4] As the deceased was able to talk, he informed Protus (PW 2) that the accused had assaulted him using a piece of wood (P.Ex 1) which the (accused) was holding at the time. The two were taken to Adungosi police station after the police arrived at the scene. He (PW 2) followed them to the police station where the accused was arrested and the deceased taken to hospital, but died on the way. [5] The incident was investigated by P.C Eddy Mzungu (PW 3), a detective police officer attached to the Directorate of Investigations (DCI) Amagoro Teso North. In the process, the officer visited the scene and found a crowd of people from whom he learnt that the suspected murder weapon, a piece of wood (P.Ex 1) was recovered. The officer recorded statements from potential witnesses and gathered that the accused assaulted the deceased using the piece of wood after the deceased had intruded into the accused’s house in the night. [6] The postmortem report (P.Ex 2) compiled by a Dr. Kibochi and produced in court by the detective officer ( PW 3) indicated that the deceased died from severe head injury secondary to assault by blunt object. The accused was therefore charged with the present offence. [7] The defence case was that on the material date and time, the accused was at home with his wife, Prisca Adungo (DW 1) when he heard movements within the house in the sitting room area. His wife left the bedroom to enquire and returned shortly thereafter with information that there was nothing. They continued with their sleep, but again at 11.00p.m the strange movements re-occurred. [8] At this juncture, the accused decided to enquire. He left the bedroom into the sitting room area where he noted that the entry door had been opened. It was dark. Suddenly, he met with an intruder at the entrance. He held the intruder and both wrestled each other right inside the house. The intruder fell down and uttered the words “forgive me”. It was then that the accused recognized the voice of the intruder deceased. His wife flashed the mobile phone torch on the intruder and they confirmed that he was the deceased. It was then that the accused called the area Chief. [9] It was the accused’s contention that the deceased was injured on the head after falling down, but passed away while undergoing treatment in hospital. The accused’s wife (DW 1) indicated that she did not know what the accused found and did when he went to the sitting room as she remained in the bedroom taking care of their child. She only heard him talking to the Chief on phone asking her (Chief) to come to the
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scene. [10] Basically, the evidence by both the prosecution and the defence did not raise any dispute with regard to the death of the deceased after suffering a head injury while in the house of the accused where he had gone for reasons only known to himself although it was rumoured that he was involved in an extra marital affair with the accused’s wife. [11] The issue arising for determination was whether the injury suffered by the deceased which later proved fatal was as a result of an accident or an unlawful act of assault committed against him by the accused. The contention by the prosecution was that the deceased suffered the fatal injury after being assaulted by the accused. This was confirmed by the Chief (PW 1) and Protus (PW 2) who did not actually witness the accused assaulting the decease but they found him at the scene and holding a wooden stick or wood (P.Ex 1) suspected to have been the weapon used in the unlawful act. [12] Indeed, the two witnesses arrived at the scene before the deceased passed away. They found him conscious and conversed with him. He told them that the accused had assaulted him. On the other hand, the accused contended that after finding the deceased inside his house he wrestled him in the dark and the deceased fell down after which he asked for forgiveness and that is when he ( accused) recognized him. The accused contended further that the deceased suffered the head injury when he fell down. His wife (DW 1) did not however, confirm the fact as she did not know what was happening in the sitting room at the time. [13] The postmortem report (P.Ex 2) indicated that the cause of death was severe head injury due to assault by a blunt object. This was more consistent with the prosecution’s proven contention that the deceased suffered the head injury after being assaulted with a wooden stick by the accused. The accused’s contention that the deceased fell down and suffered the head injury was thus disproved and discredited. [14] It would therefore follow that the accused was criminally responsible for the death of the deceased. The injury inflicted on the deceased was so severe as to leave no doubt that the brutal attack against him by the accused was intended to terminate and did in fact terminate his life merely for intruding into the accused’s house in pursuit of his wife as revealed during police investigations of the case. It would appear that the person who precipitated the unpleasant state of affairs between the accused and the deceased and which led to the death of the deceased was the accused’s wife (DW 1) who apparently created the love triangle involving herself as the “starring” and the accused and deceased as the “lead actors”. [15] For all the foregoing reasons this court finds that the case against the accused was proved by the prosecution beyond reasonable doubt. Consequently, the accused is found guilty as charged and convicted accordingly. J.R. KARANJAH JUDGE [DATED & DELIVERED THIS 7TH DAY OF MARCH, 2022]
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