State v Odero (Criminal Case E006 of 2021) [2022] KEHC 10001 (KLR) (18 May 2022) (Judgment)
Neutral citation:
[2022] KEHC 10001 (KLR)
Republic of Kenya
Criminal Case E006 of 2021
RE Aburili, J
May 18, 2022
Between
State
Prosecution
and
David Onyango Odero
Accused
Judgment
1.The accused person herein David Onyango Odero is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The information dated March 16, 2021 sets out the particulars of the offence to the effect that on the March 1, 2021 at around 2000hrs at Ligoma village, Maliera sub-location, North Gem location within Gem sub-county in Siaya County, the accused murdered one Dan Omondi. The accused denied committing the offence as charged and the prosecution called 6 witnesses to establish a prima facie case against the accused person who was placed on his defence.
2.The evidence for the prosecution is as follows: PW1 Barrack Otieno Awimbo testified that the deceased was his son. He recalled that on the March 1, 2021 at about 8pm, he was in his house when he heard screams from outside and when he got out, he heard Nyaseme, the accused person’s mother, saying, “Ooh Onyango, what have you done? What is this that you have done?” as she moved away towards her house. It was his testimony that he went closer following Nyaseme and found his son cut and lying on the ground. He stated that they were neighbours with the assailant who had tied the deceased near the assailant’s fence.
3.PW1 testified that he called his brother Henry Otieno who responded and called the area Chief and the Administration Police who also went to the scene and that the police from Yala arrived at midnight. It was his testimony that the assailant had cut off –severed the left hand of the deceased, inflicted several cuts on the head and on the left leg which was also badly cut. PW1 stated that Onyango, the accused herein was not present when he got to the scene and that Onyango had escaped with his family. PW1 testified that his son was already dead so the police removed the body to the mortuary and that his elder son accompanied the police who took the body to the morgue.
4.In cross-examination, PW1 stated that he heard Nyaseme screaming saying, “Onyango, what have you done!” He further stated that before that day, he heard that his son and the deceased had quarreled in Kodiaga and that in the process, the accused threatened to kill the deceased. He stated that Onyango the accused had previously burnt a house which was a bad omen. In re-examination, PW1 stated that Onyango had burnt his own house.
5.PW2 Benta Auma Odero themother to the accused person initially refused to testify when she appeared before court and was treated as a refractory witness upon which she agreed and testified. She recalled that on the 1.3.2021 at about 1 pm, she was at her home when Dan the deceased approached her and told her that he wanted to beat up Onyango, the accused, saying that the accused had been disrespectful of the deceased’s father. She testified that she told Dan not to bother because his father drinks and becomes rowdy and further that they were one family hence there should be no quarrel. She testified that Dan maintained that he would beat Onyango.
6.PW2 testified that at about 5 pm, Onyango passed by with torn clothes and when she asked him on what had happened, he told her that Dan had assaulted him. She testified that Onyango then left towards his home which was different from her home. It was her testimony that at about 7 pm, Mercy, Onyango’s wife, went to PW2’s house and told her that she heard screams from near Onyango’s homestead and near Dan’s father’s home. She stated that she left her house carrying a torch and on arrival, she found a person lying down and upon lighting the torch at the person, she saw that it was Dan. Lying down dead. She stated that she called out for Dan’s father who went to the scene and that other people also arrived and they started mourning.
7.It was PW2’s testimony that Onyango’s wife went away after informing her that Dan was lying down near her brother in-law’s gate. She testified that it was not far from her home to Dan’s home as they were neighbours, but that Onyango’s home was slightly distant. She further testified that when Dan’s father reached the scene, she remained there mourning. PW2 stated that she recorded her statement from home and that the police were recording what she was telling them. She identified Onyango as the accused in the dock.
8.In cross-examination, PW2 stated that the relationship between Dan and Onyango was good. She stated that they both initially lived in her home before they built their own houses and moved out. It was her testimony that it was Dan who said that he wanted to beat Onyango and that later, she saw Onyango in torn clothes saying Dan had beaten him and she told him that Dan was older so he should respect and not fight him. She stated that there was a route by her home going to Onyango’s place.
9.PW3 Dr. Mbeki Melvis, a medical officer at Siaya County Referral Hospital testified that on the 9.3.2021, she carried out an autopsy on the body of Dan Omondi Owino at Yala sub county Hospital. It was her testimony that a general observation of the body revealed that it was that of a naked Male, African, 29 years of Age, good nutritional status, 7ft and of good physique. The post mortem changes included the body being well embalmed, no decomposition and that externally, there was a deep cut wound on the left side of the neck extending to the lower jaw. The jugular vein appeared cut and that there were cut wounds to the frontal region of the head. That the skull was intact, that there was a deep cut wound on the left wrist, 7cm long and that the left upper hand at the elbow front was amputated. All other systems were intact but that in the head, there was mild bleeding from frontal lobe. As a result of the examination, she established the cause of death to be severe hemorrhage due to the cut wounds. She issued Death Certificate Number 1555461 and signed the post mortem report and stamped it on March 9, 2021. She produced it as PEX 1.
10.PW4 No 113559 PC Collins Kemboy the investigating officer in the matter having taken over from No 112862 PC Stanley Njenga who was transferred to Gatanga testified that he received the file and perused it and established that on March 1, 2021 at around 9pm, the initial investigating officer received a call from Chief Inspector Tarus instructing him to join the OCS Yala sub location at a scene of crime where there was a body of Dan Omondi lying on a path about 20 meters away from his house and that he was suspected to have been killed. That according to the police file, the police officers examined the said body and found it with multiple cuts on the head, legs and hands and that they suspected the use of a sharp object. He testified that information was received that a suspect was David Onyango Odero who had left with the weapon used in the killing. That the body was removed to Yala Level 4 Hospital and a search for the suspect who was at large commenced.
11.PW4 further testified that on March 4, 2021 at 2pm, the suspect David Onyango Odero surrendered himself to Siaya Police Station on hearing that he was being sought after. PW4 testified that the suspect was arrested and escorted to Yala Police Station where he was charged with the offence of murder after being taken for mental assessment and after Post mortem was done and statements of witnesses recorded. He testified that the murder weapon was not recovered.
12.In cross-examination, PW4 stated that from the investigations file, the police had one key witness who saw the accused assault the deceased, one Benta Auma, PW2. He further stated that the accused person presented himself to the police.
13.PW5 Isaac Oduor Awimbo, a minor was taken through voire doire examination by the court and found intelligent but not understanding of the meaning of an oath and as such was allowed to give unsworn testimony but was cross examined.
14.It was his testimony that on March 28, 2021 at 7.15 pm, while he was returning from the shop, he heard screams so he ran to where the screams were coming from near his home and on arrival, he found his grandmother, Nyaseme, who is PW2 screaming. He testified that he asked her why she was screaming but she never responded so he took a torch from her hand and lit it around and saw Onyango, the accused, at his gate. (Points at the accused person).
15.PW5 testified that the accused was holding a panga and that the accused then told his wife that he had finished his work and was going to shower. It was his testimony that Nyaseme is Onyango’s mother. He further testified that he asked her where the dead body was.
16.PW5 further testified that the panga that Onyango had, had blood and that he had removed his trouser and further that his clothes were also blood stained. PW5 stated that Onyango then started walking towards Nyaseme and escorted PW5 to where the body of Dan was and when he shone the torch and spoke to Dan, Dan never responded. He further testified that it started raining so he went to his home. PW5 identified Onyango as the accused in the dock and stated that Onyango was his uncle whom he had known for long and that their homes were close.
17.In cross-examination, PW5 stated that he heard Nyaseme screaming from her home and that he took the torch from Nyaseme at her house. He stated that he moved to where Onyango was which was about 5 metres ahead of him. He further stated that Onyango’s wife was near him as Onyango was standing at his gate with his wife beside him. PW5 further testified that Onyango had a panga in his hand and that he had removed his trouser which he carried in his hand saying he was going to bath. It was his testimony that Onyango left with clothes and the panga.
18.The prosecution closed its case and after considering the evidence adduced, the court found that the accused had a case to answer and placed him on his defense.
Defence Case
19.The accused elected to give an unsworn testimony. It was his case that on the March 1, 2021, he was shocked at what happened. He testified that he worked at Kodiaga Center where Dan went and started fighting him saying that the accused had caused him-Dan to leave Nairobi. He further testified that when he went home, he was called by someone who turned out to be Dan and so he went thinking that they would talk and agree as brothers.
20.The accused testified that Dan had a panga and told the accused that the accused would know that Dan was a lion and the things that he-Dan had done out there. He further testified that Dan aimed the panga at him but missed after which the accused held the panga, snatched it from Dan and cut Dan with it. He testified that it was at night and thus he could not tell which part of the body he had cut. He stated that his wife was not present.
21.The accused testified that he never said anything after cutting the deceased and that after cutting the deceased, he kept the panga in the home and when he heard people screaming, he escaped towards Siaya. He stated that he knew the police were looking for him so he surrendered to Siaya Police Station.
22.The accused reiterated that he got shocked by the incident. He stated that he had never quarreled with anyone in the village. He further testified that Dan used to live in Nairobi, then returned home. He reiterated that it was Dan who had the panga and that on his part, he did not carry the panga to go to assault the deceased.
23.The accused further told the court that two witnesses were to come to court from their homes but he did not know why they were not in court and that he needed more time to engage the witnesses who had no fare to come to court.
24.The court gave the accused more time to bring his witnesses but the witnesses never turned up so the accused closed his defence.
The Accused Person’s Submissions
25.It was submitted on behalf of the accused that the fact of the deceased’s death as well as the fact that it was the accused who caused it were not in doubt. However, the accused’s counsel submitted that the incident of him cutting the deceased was not premediated on his part and that he acted in self-defense. Reliance was placed on the case of R v McInnes 55 Cr App R 551 where it was held inter alia that it is both good law and good sense that a man who is attacked may defend himself. Counsel for the accused further submitted that the prosecution had not adduced evidence to establish that the accused was not acting in self defence.
26.It was further submitted that the accused person’s conduct after the incident backed up his assertion that he was acting in self-defense as he ran away then surrendered himself to the police despite having the opportunity to go into hiding.
27.It was thus submitted that the prosecution failed to prove their case against the accused beyond reasonable doubt as they had failed to demonstrate that the accused had mens rea to commit the offence and as such the accused ought to be acquitted.
Analysis and Determination
28.The accused person is charged with the offence of murder which offence is defined by section 203 of the Penal Code as follows:
29.To sustain a conviction for murder, the prosecution must prove beyond reasonable doubt the following elements of the offence: the fact of death and the cause of that death; that the death was due to an unlawful act or omission and that it was the accused person who committed the unlawful act or omission that caused the death; finally, that the accused committed the unlawful act or omission with malice aforethought.
30.The issue for determination in this case is whether the prosecution has proved all beyond reasonable doubt, all the elements of murder as stipulated in section 203 of the Penal Code. On the fact and cause of death, PW1, PW2, and PW5 all testified that when they went to the scene, they found the deceased lying on the ground and that he was already dead. PW1 further testified that he saw the deceased’s left hand amputated and further that the head had multiple cuts. These and other injuries sustained by the deceased were confirmed by Dr Mbeki Belvis (PW4), who conducted the post mortem on the deceased’s body on March 9, 2021 and made the following observations:
31.PW3 concluded that the cause of death was severe haemorrhage due to cut wounds.
32.From the facts that I have outlined and as stated by the prosecution witnesses, there is overwhelming evidence beyond any reasonable doubt that there was death and the cause of that death was established.
33.On whether the death of the deceased Dan Omondi was caused by an unlawful act or omission, there was no eye witness to this incident that led to the demise of the deceased Dan Omondi However, from the injuries stated by the doctor who performed the autopsy, it is clear that those injuries could not have been self-inflicted. On the part of the accused person, he gave unsworn testimony to the effect that he used the panga that the deceased had aimed at him and cut the deceased in self-defense. I am therefore satisfied from the totality of the evidence for the prosecution and the defence that it was the accused who caused the injuries that led to the deceased’s death. The question is whether the death of the deceased was unlawful or whether in the circumstances of this case, the alleged self defence proffered by the accused person is an absolute defence.
34.In the case of Sharm Pal Singh v R [1962] EA 13 the court held that:
35.The accused person claims that it was the deceased who attacked him with a panga and that he snatched that panga from the deceased and used it to cut the deceased. He stated that it was at night therefore he did not know where he cut the deceased.
36.I will discuss this question of whether the prosecution has proved beyond reasonable doubt that the death of the deceased was unlawful, taking into account the defence of self defence as stated by the accused, together with the last element of whether there was malice aforethought.
37.The final element of the offence of murder that must be proved beyond reasonable doubt is malice aforethought. Malice aforethought constitutes the mental element of the offence of murder, that is, mens rea or the intention to kill another person. Section 206 of the Penal Code defines malice aforethought as follows;
38.As malice aforethought is the mental element in the offence of murder, it may be negated by a defence put forward by the accused. The accused may raise the defence affirmatively or it may emerge from the evidence. In both cases, the court must consider that defence in light of the duty of the prosecution to prove its case beyond reasonable doubt. In other words, the prosecution must disprove the defence beyond reasonable doubt.
39.The accused person’s defence was that his attack on the deceased was not premeditated as he was attacked by the deceased who wielded a panga and that as the deceased attempted to cut him, the accused managed to grab the panga and used it to cut the deceased. In essence, the accused was raising the defence of self-defence.
40.The law regarding self-defense is section 17 of the Penal Code which provides that:
41.The Court of Appeal considered the law regarding self defence in Ahmed Mohammed Omar & 5 others v Republic NRB CA Criminal Appeal No 414 of 2012 [2014] eKLR and stated as follows:
42.In IP Veronica Gitahi and another v Republic MSA CA Criminal Appeal No 23 of 2016 [2017] eKLR, the Court of Appeal once again reiterated the common law position regarding self-defence as follows:
43.Therefore, the question to be answered in self-defence put forth by the accused person herein is whether the force used by the accused person was reasonable and necessary in the circumstances. The answer to this question is found in Peter Kingori Mwangi & 2 others v Republic [2014] eKLR where the Court of Appeal adopted with approval the holding in the case of Palmer v Republic [1971] AC 814.
44.In Mokua v Republic [1976 – 80] 1 KLR 1337 it was stated that:
45.The first test applicable in this case is whether the accused exceeded the bonds of self-defence. According to the prosecution evidence, the accused assaulted the deceased severally. The accused himself testified that he managed to recover the panga from the deceased then proceeded to cut the deceased. From the accused’s unsworn testimony, he seems to paint a picture that he only cut the deceased once.
46.However, even if it was the case that it was the deceased who attacked the accused and that the accused managed to overpower the deceased during the confrontation and even snatched the panga away from him, the question is, did the accused have to continue cutting the deceased severally as per the injuries sustained by the deceased? The post mortem report by Dr Mbeki as to the cause of death is a testimony to the fact that the accused targeted the sensitive and vulnerable parts of the body of the deceased being the head and the neck. He even cut off and amputated the hand of the deceased. Can that kind of force be said to be proportionate force used in self defence?
47.In the case of Mungai v Republic [1984] KLR 85 it was held that:
48.The disproportionate attack against the deceased person was in my humble view, excessive and indicative of the intention to occasion serious grievous harm or even death. The testimony of PW2 was that he found the deceased tied near the accused person’s fence. From the injuries sustained by the deceased, no doubt, they appear defensive injuries meaning the accused was determined at all costs to eliminate the deceased and even tied him on the fence.
49.According to the evidence of PW5 a minor aged 17 years old and who did not understand the meaning of an oath but was cross examined, and this court having heard and seen the minor as he testified, warns itself of the dangers of relying on evidence of an unsworn witness but believed that he was telling the truth as there was nothing suggestive that he was lying, that when he spotted the accused person at the scene, the accused whilst carrying the panga and whilst all bloodied, informed his wife that he had finished his work and was going to shower. This evidence of the minor is not evidence of a person who witnessed the assault, just like all other evidence adduced by the other witnesses, but was evidence of a witness who responded to the screams and on reaching the scene, he saw the deceased in a pool of blood, just like PW1, PW2 and PW3. In my view, the words of the accused to his wife and next to a person who was lying dead, that he had finished his work were not the words of a person who was acting in self-defence. I find and hold that the acts of the accused person were unlawful acts which caused the death of the deceased.
50.On consideration of the evidence of the debilitating injuries suffered by the deceased, I reject the defence of self defence put forth by the accused, which defence is inconsistent with multiple injuries sustained by the deceased which could not have been caused by a single fall of a panga.
51.Therefore, as to whether the accused had malice aforethought, the holding of the Court of Appeal in Bonaya Tutu Ipu & another v Republic MLD CA Criminal Appeal No 43 & 50 of 2014 [2015] eKLR accepted that the determination of whether there was malice aforethought was a matter of evidence. The court held that:
52.In this case, it is clear that the multiple deep cut wounds inflicted on the deceased’s body some leading to decapitation of the hand and cutting off the jugular veins in the neck which are reminiscent of a slaughter of an animal demonstrate malice aforethought. The injuries were inflicted with such brutality and intensity as to dispel any notion that the accused could not have had any other intention other than to cause the death of or do grievous harm to the deceased.
53.I therefore find that the prosecution proved malice aforethought within the meaning of section 206(a) of the Penal Code, beyond reasonable doubt.
54.In the end, I find and hold that the prosecution has proved against the accused person beyond reasonable doubt all the elements of the offence of murder as charged and as defined under section 203 of the Penal Code.
55.I find the accused person David Onyango Odero guilty of the offence of the murder of Dan Omondi as charged. I convict him accordingly. Sentence shall be after records and mitigation.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT SIAYA THIS 18TH DAY OF MAY, 2022RE ABURILIJUDGE