Republic v Eric Wanyama Wamalwa & 1 other

PW6 No. 42672 Segt Harison Mugumo the investigating officer was instructed to take over a murder file involving the deceased. He visited the scene and recorded statements of witnesses. He then received accused 1 and 2 who were arrested by police from Bumula. He received information that the 3rd suspect Geoffrey Muhanya escaped to Uganda. On being cross examined by Kaptea for accused, he stated he did not establish the motive of the attack. PW7 Dr. Wanabisi Caleb Watta who performed the post moterm testified that deceased had bruises on left side of head, swelling on top of head, linear fracture of skull and swelling in the brain. He formed opinion that the cause of death was due to severe head injury secondary to blunt trauma on the head. Upon being placed on their defence, accused 1 and 2 gave sworn evidence . Accused 1 Eric Wamalwa testified that on 1.6.2020 he went to look for Boniface (accused 2) who had land to sell. He met him and they went to where the land was. They then passed on a path at the home of deceased. They heard screams from deceased’s home. They went there and saw deceased being beaten by his wife’s brother. He saw the people beating him were Wanjala, Wabwire and Shikama who all come from Namasanda and are brothers of Adelight (PW1). He separated them and raised an alarm. He was with accused 2. When they noticed deceased had injuries on the head near the eyes, he advised deceased to go to hospital and report to police. He then went to drink busaa at the home of Jane (PW2) where he was joined by accused 2 who had carried Charles (PW3) to the busaa place. He then saw the deceased come out of the house staggering and appearing drunk. He knocked the busaa which was on the table where Charles(PW3) was. Charles then held him and hit deceased. Deceased fell down. Charles looked for motor cycle which took deceased to his home. He testified that he had a grudge with Jane (PW2) over the use of a latrine by her customers. On being cross-examined by Oyiembo for state, he stated he knew of the death of deceased when he was arrested and did not tell police about the grudge with Jane. Accused 2 Boniface Khanya Makhati testified that he is a boda boda rider. On 1.6.2020 he was at home when Eric (accused 1) came to him and they went together to show him a farm. On the way they heard screams from home of deceased. They went there and found deceased being beaten by his wife (PW1) and her brothers. They urged the wife and brother to stop beating deceased. The wife abused them for interfering with them. He then left. In the evening he carried a customer to where alcohol was being sold at the house of Jane (PW2). He then saw deceased staggering from the house of Jane and he knocked the table where Charles was and alcohol on it was poured. Charles (PW3) hit deceased on the head and he (deceased) fell down. Charles (PW3) then looked for a boda boda rider who took deceased to his house. He knew that Charles was a man friend of Jane(PW2) and the evidence given against him in court was lies. Cross examined by Oyiembo for state, he stated he did not tell police what he had said in court. Mr. Wamalwa Robert filed written submission in respect of the accused. He submitted that it is upon the prosecution to prove the charge beyond reasonable doubt. He submitted that PW2 Jane did not in cross examined did not recall the colours of clothes worn by each assailant, and accused and did not mention Charles (PW3) in her statement to police and that therefore Charles was not at the scene. He submitted that PW3 Charles did not witness when deceased was assaulted by assailants. He submitted that the prosecution evidence was full of contradictions and inconsistencies. He submitted that the evidence of PW1 Adelight that deceased does not take bear was untrue and therefore was not a credible witness. Finally, counsel submitted that the accused’s defence was the plain truth and was not rebutted by the prosecution and is therefore unchallenged. The accused are 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 any unlawful act or omission is guilty of murder.” The prosecution in a charge of murder must prove the element of the offence to the standard of beyond reasonable doubt. In the case of REPUBLIC –VS- PATRICK SILA KYULE (2020) eKLR the court stated as follows:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the concussion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particulars allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues…” …103. What then is the standard of proof required in such cases.” Brennan, J in the untied states supreme court decision in Rewinship 397 US 358 (1970) at pages 361-64 sated hat “… the accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned…”

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…104 JOO –VS- REPUBLIC (2015) eKLR where the court stated as follows:“…It is not lost to this court that the offence which the Appellant faced was such a serious one and ought to be denounced in the strongest terms possible. However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled. Proof beyond any reasonable doubt hence this case cannot be an exception. This court holds the view that it is better to acquit ten guilty persons than to convict one innocent person….” 105 What then amounts to reasonable doubt…” this issues was addressed by Lord Denning in Miller –vs- Ministry of Pensions (1947) 2 ALL ER 372 where he stated:- “…That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law wound fail to protect community if it admitted fancily possibilities to deflect the course of justice. If the evidence is so showing against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the leant probable, the case if proved beyond reasonable doubt but nothing short of that will suffice…” The ingredients of the offence of murder which the prosecution must prove are under Section 203 Penal Code are: (a) The fact and the cause of death (b) The unlawful act or omission that caused the death. (c) That it is the accused who committed the unlawful act or inflicted the injuries that led to the death of the deceased. (d) That the accused had the necessary malice aforethought or mens rea. PW7 Dr.Wanambisi Caleb Watta produced a post-moterm report prepared by Dr. Haron Ombangi who performed the post mortem Exh 1. Dr. Ombangi had found that the deceased had a bruise on left temporal region of the head, swelling on top of the head, linear fracture of the head and haemotoma. He formed opinion that cause of death was due to severe head injury. This witness confirmed the fact of death and stated cause to be due to severe head injury secondary to blunt trauma. The accused in their evidence confirmed that they knew that indeed the deceased died. Both the prosecution witnesses and accused agreed that the deceased sustained injuries on the material day. Accused 1 states that he saw deceased being beaten first by his wife and secondly at the home of Jane, where people were drinking. It is therefore clear that deceased sustained the fatal injuries at the place where Jane (PW1), Charles(PW3) and both accused 1 and 2 were present. These two prosecution witnesses who accused 1 and 2 admit were present gave their evidence. PW2 Jane in explaining as to how deceased sustained injuries testified: “ I saw the deceased passing on the road. He greeted me. It was 4 p.m. I then saw Eric, Geoffrey and Boniface follow him walking fast. I then heard Boniface say “ we are looking for you.” They held him and started beating him using kicks. Boniface kicked him on the back. The deceased fell down. Geoffrey then stepped on his head and chest. Eric stepped on deceased’s chest. I tried to stop them but they refused. Charles came and we tried to separate them but they over powered us. They then ran away. We looked for a motor cycle and we put him on it and he went with Charles to deceased’s home.” Charles (PW3) who was also present testified: “I saw 3 people assaulting Protus the deceased. I reached there and saw the deceased lying down. The accused were stepping on him. Geoffrey stepped on him on head, Erick on head and Boniface on the back. Deceased was lying facing down. I and Jane (PW2) separated them. The accused then left. I called for a motor cycle rider. He came and I took deceased to his home. I found his wife outside. I informed her and I left him there. I went away.” The accused’s contention is that it is Charles who inflicted the injuries on deceased and not them. Accused 1 contends that the evidence of the two witnesses was actuated by malice due to a grudge they had in respect of PW2 over use of latrine and PW2 who is PW1’s girlfriend. I do not find that there existed that grudge because if it were so, how could the accused then be at the home of the witnesses taking alcohol if there exited such serious grudge. I have considered the evidence. I find that the accused 1 and 2 were at the scene even on their own admission. I find that accused 1 and 2 were positively identified by the PW2 Jane and PW3 Charles as the persons who inflicted injury on the deceased. The prosecution in a charge of murder must prove that the accused had malice aforethought. Section 206 provides: 206. Malice aforethought shall be deemed to be established by evidence proving 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;

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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. These injuries were inflicted with the intention of causing grievous harm or death and therefore accused had the malice aforethought. After considering all the evidence I am satisfied that the prosecution has proved beyond reasonable doubt, the charge of murder against the accused 1 and 2. I therefore find accused 1 ERIC WANYAMA WAMALWA and accused 2 BONIFACE KHANYA MAKHATI guilty of the offence of murder and convict each one of them accordingly. DATED, SIGNED AND DELIVERED AT BUNGOMA ON THIS 7TH DAY OF FEBRUARY, 2022. S.N RIECHI JUDGE

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