Patrick Endeve Alias Pato v Republic

d. That the learned magistrate erred in law and fact in meting a very harsh sentence against the appellant in total disregard of the mitigation tendered by the appellant. 4. PW 2, Sharon Wanga Otinga, who works as a bar attendant stated that on 5/1/2001 at about 10 pm, while she was at Double J Bar, Mathew (deceased) came and ordered 2 Napoleons and 1 ice. At about 10:30 pm, PW2 stated, she went out to answer a call and Mathew followed her and met Patrick (appellant). PW2 also stated she saw Patrick who lives near the bar come out of his house. Further, PW2 stated she sat outside the bar as Patrick talked with the deceased and they seem to have disagreed. Mathew who was carrying a stick, PW2 stated, hit Patrick on the head and they struggled for the stick. PW2 also stated that Patrick used the stick to hit the deceased several times on the head and hip as Brian Akasiva and Stephen Okwamba who were present tried to take away the stick from Patrick. PW2, further stated she was big light and she saw blood coming from Mathew’s nose and she calmed the two fighters and requested Brian to take Mathew home. PW2, however, stated Mathew was still on the ground bleeding as she went back into the bar and closed. 5. On cross-examination, PW2 stated, she was 50 metres away from where Patrick and Mathew (deceased) fought. She also stated that lights from the bar lit outside. While Mathew was on the ground bleeding, PW2 stated, he asked the appellant “nimekufanyia nini” (what have I done to you). PW2 also stated she does not know what provoked the fight between Mathew (deceased) and Patrick but as they spoke Mathew said” toka mbele yangu” (move away from infront of me) then hit Patrick who refused to move. Thereafter, PW2 stated Patrick took the stick and hit Mathew. 6. PW3, Mark Stephen Okwemba lived at Manyonyi and was a student at Shamberere Institute. On 5/1/2020 he came out of Double J club at about 11pm after watching football. PW3, further stated, he saw Mathew Ochana (deceased) who was drunk and staggering and Patrick (appellant) came out of his house and asked Mathew why he was making noise. PW3 also stated he knew both the deceased and that the two started arguing and were 7 meters apart. Thereafter, PW3 stated, Mathew (deceased) hit Patrick on his body with a stick he held and Patrick got angry, took the stick and hit Mathew all over his body. PW3, further, stated that he went back to the club and after a minute, went to the scene with Brian and Kinoti and found Mathew on the ground but the appellant was still hitting him and PW3 went home. The following day at 6:00 am, PW3 stated, he found that Mathew had died. PW3 also identified the stick that Mathew and Patrick used to hit each other in court. 7. PW4, No. 68385 CPL Allan Odera Ochier, stated he found the deceased at the scene of incident and had deep cut on his head. PW4 also recovered the wooden road about 8 to 10 metres, that the appellant used to hit the deceased. The rod was produced in the trial court as P. Exhibit 1. 8. PW5, Dr. Adori Akalishe, did a postmortem report dated 10/1/2020 on the body of the deceased Mathew Ochana at Kimbilio funeral home. The doctor found that the deceased had a 2 cm cut on the forehead and cardiovascular injuries on the spleen. The doctor, further, found that the deceased had a tear on the liver and approximately 3 litres of blood in his stomach. The Doctor formed the opinion that the cause of death of the deceased was due to excessive bleeding secondary to injury to the spleen and liver and produced the the deceased person’s postmortem report marked P. Exhibit 2. 9. In his defence, the appellant stated that he works as a boda boda rider. On 5/1/2020 he closed work at 11:30 pm and went to his house. As he had dinner, the appellant stated, he heard someone calling him from outside to go out and he went out. Outside, the appellant stated, he met Brian and Mark who wanted to take a girl at the bar to Milimani. Brian and Mark, DW1, stated were known to him but he declined to give them his motorcycle. DW1, further, stated as he stood in the dark while Brian and Mark were in the light, someone came from behind the dark and hit him on the right side of his head above the ear and he lost consciousness. When he regained consciousness, the appellant stated, Mark https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13148/eng@2026-07-23 2

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told him he will take care of the aggressor as he seeks for treatment. The appellant, further, stated he went to a nurse about 30 metres away for first aid, he found Mark and others beating up the men and he went to sleep. The following day, DW1 stated he learnt from his wife that the man who assaulted him had died. DW1, further, stated he did not know the man and did not know how he died. 10. On cross-examination, stated that when he regained consciousness, he did not see the men who attacked him. He also stated he was treated that night but did not have the treatment notes. He also did not report to the police that someone assaulted him 11. The issue for determination in this matter is whether the prosecution proved beyond reasonable doubt that the appellant unlawfully killed the deceased herein without malice aforethought. This being 1st appeal, this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. (see. Mark Oiruri Mose -vsRepublic (2013) eKLR) 12. Section 202(1) of the Penal Code provides: “ Any person who by unlawful act or omission causes the death of another person is guilty of a felony termed manslaughter’’ 13. The postmortem report produced by PW5, Dr Adori Akalishe, herein established beyond reasonable doubt that the deceased Mathew Ochana is dead The report by PW5 indicates the that the deceased had had tears of the liver and spleen.It was opined by the Doctor that the deceased died from excessive bleeding secondary to injury to the spleen and liver infiicted by blunt force trauma/impact by a third party 14. The question for determination herein is whether the death of Matthew Ochana was caused by unlawful act or omission initiated and executed by the accused against the deceased. PW 2, Sharon Wanga Otinga, who works as a bar attendant stated that on 5/1/2001 at about 10 pm, while she was at Double J Bar, Mathew (deceased) came and ordered 2 Napoleons and 1 ice. At about 10:30 pm, PW2 stated, she went out to answer a call and Mathew followed her. Outside, PW1 stated, the deceased met Patrick (appellant) who lives near the bar come and they talked but seemed to have disagreed. Mathew who was carrying a stick, PW2 stated, hit Patrick on the head and they struggled for the stick. PW2 also stated that Patrick used the stick to hit the deceased several times on the head and hip as Brian Akasiva and Stephen Okwamba who were present tried to take away the stick from Patrick. PW2, further stated she was big light and she saw blood coming from Mathew’s nose and she calmed the two fighters and requested Brian to take Mathew home. 15. The evidence of PW2 is corroborated PW3, Mark Stephen Okwemba who was a student at Shamberere Institute. On 5/1/2020, PW3 stated, he came out of Double J club at about 11pm after watching football. PW3, further stated, he saw Mathew Ochana (deceased) who was drunk and staggering and Patrick (appellant) came out of his house and asked Mathew why he was making noise and that the two started arguing. Thereafter, PW3 stated, Mathew (deceased) hit Patrick on his body with a stick he held and Patrick got angry, took the stick and hit Mathew all over his body. PW3, further, stated that he went back to the club and after a minute, went to the scene with Brian and Kinoti and found Mathew on the ground but the appellant was still hitting him and PW3 went home. PW3 also identified the stick that Mathew and Patrick used to hit each other in court. The rod was produced in the trial court as P. Exhibit 1 by PW4, No. 68385 CPL Allan Odera Ochier, 16. The two witnesses testified that they was light and the deceased hit the appellant and in turn hit the deceased all over the body until he fell and continued hitting him with a stick. The evidence by https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13148/eng@2026-07-23 3

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prosecution places the appellant of crime and it very that the appellant hit the deceased severally with as result which he sufiered severe injuries and died. 17. The evidence of the appellant that the deceased hit and he became unconscious and he did not hit the deceased is not credible and trustworthy. He claims he was injured and treated by a nurse but did indicate the injuries he sufiered and the name of the nurse who treated him. 18. Based on the evidence on record, it my finding that the prosecution proved the charge of manslaughter of the deseased against the appellant herein beyond reasonable. 19. Section 205(1) of the Penal Code provides: “ Any person who commits the felony of manslaughter is liable to imprisonment for life’’ Considering the gravity of the evidence tendered by the prosecution and that a life was lost the sentence of 14 years imprisonment was proportionate and appropriate. Even if the the deceased provoked the appellant, his response was disproportionate in the circumstances Right of appeal within 14 days DATED SIGNED AND DELIVERED ONLINE VIA MS TEAMS THIS 23RD JULY,2026 HON. P. K. ROTICH JUDGE In the presence of: Appellant Mr. Mwaita holding brief for Ms. Kirenge for DPP https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13148/eng@2026-07-23 4

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