Republic v Madegwa (Criminal Case 50 of 2015) [2023] KEHC 27023 (KLR) (1 December 2023) (Judgment)
Neutral citation:
[2023] KEHC 27023 (KLR)
Republic of Kenya
Criminal Case 50 of 2015
PJO Otieno, J
December 1, 2023
Between
Republic
Prosecutor
and
Aggrey Makatiani Madegwa
Accused
Judgment
1.Aggrey Makatiani Madegwa (‘accused person’) is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the July 18, 2015 in Shitochi village, Shitochi Sub-location Kakamega East Sub county within Kakamega County, the accused person murdered Catherine Makhonja Isiji. The accused person pleaded not guilty to the charge and to prove its case, the prosecution called a total of seven witnesses.
2.PW1, Gerald Murunga Shikho testified that he was the assistant chief of Shitochi sub location who was at home on 18/7/2015, at about 8AM, when he received a report that the accused had slashed his stepmother, the deceased. He rushed to the scene where he found the deceased being carried away to hospital. He stated that the accused ran away until 20/7/2015 when the witness was informed that the accused was attempting to commit suicide whereupon he rushed to the scene and arrested him. On cross-examination, he stated that he did not witness the accused assault the deceased.
3.It was the testimony of PW2, Godfrey Akala, that he was a resident of Shitachi sub location who was home on 18/7/2017, at about 8AM, milking when the accused informed him that he had a quarrel with deceased. The deceased then came with a hoe asking angrily what the accused wanted from her. He requested the deceased to return to her home but he saw her walk towards the farm. The witness returned to his home only to hear screams from his neighbor and when he rushed to the scene, he found the deceased had been cut. He did not know who cut her. The deceased was rushed to the hospital only for the witness to later learn that the deceased had passed on. On cross examination he stated that he did not know how the deceased was attacked.
4.PW3, Gitano Shikhohobolo Shinyula testified that the deceased was a wife to the son of his uncle and that on 20/7/2015 he identified the body of the deceased, which had visible cuts, for a post mortem to be conducted. On cross-examination, he stated that he did know what the accused had done.
5.PW4, Godwin Imbova testified that he was a nephew to the deceased and that on 20/7/2017 he was at the Kakamega County Hospital where he identified the body of the deceased, which had several cuts on the head, hand and fingers for post mortem purposes.On cross-examination, he stated that he did not see the person who occasioned the injuries on the deceased.
6.PW5, Hellen Khatimba, aunt to the accused gave evidence that on 18/7/2015 at about 6AM she was at her home when she heard the deceased screaming “Aggrey umeniua” three times. She went to her neighbor and informed her of the screams and together they followed the voice and found the accused walking while the deceased lied down with blood oozing. She walked towards the deceased who had cuts on the head, legs and the rest of the body. She tried calling one Guitano but he did not pick up so they started wailing attracting other people who came and took the deceased to hospital.
7.On cross-examination, she stated that the incident occurred early in the morning as the sun was rising. She stated that her home and that of the deceased were separated by another home and there was mature maize on the farm. It was her evidence that while with Joslina, she was ahead of her while she followed her and that she saw the accused whom she knew very well run away.
8.PW6, Joslina Mukami testified that on 18/7/2015 at about 6:30AM she was at home when PW5 called her and they went to the maize farm where they found the deceased on the ground drenched in blood saying, “nisaidieni, Aggrey ameniua”. She stated that the deceased had cuts on the head, back and legs and that she was not aware of a grudge between the accused and the deceased.
9.On cross-examination, she stated that morning, she heard a sound like somebody cutting cow feed but never heard any cries from the maize farm. She claimed that she was called by PW5 and she followed her to the maize farm though she did not see the accused run away. She further stated that before the death there was always quarrels in the home.
10.PW7, Dr. Dixon Mchana, a consultant pathologist at Kakamega County General Hospital testified that he conducted a post mortem on the body of the deceased on 20/7/2015. Hi observation revealed that the clothes were soiled in blood. The deceased had five deep cut wounds on the scalp, two cut wounds on the 1st and 3rd interdigital web, one cut wound on the sole and a deep cut wound behind the thing. Internally, the involved cut wounds had injured the vessels on the upper limbs with and the head had four fractures going to the brain. He was of the opinion that the deceased died due to multiple injuries secondary to sharp force trauma following assault.
11.The evidence of PW7 marked the close of the prosecution case and the court ruled that a prima facie case had been established against the accused person and he was thus placed on defence.
12.In his sworn testimony, the accused denied the charges and stated that the deceased was his mother and that he did not know who killed her.
13.On cross-examination, he stated that the deceased was his stepmother and that on 18/7/2015 while on his way to the market to sell clothes he received news from his wife and neighbors that the deceased had been killed.
14.The defence case was closed after the evidence by the accused. Parties were then directed to file submissions but while preparing this judgment, only the submissions by the accused person had been filed and placed on record.
Accused Person’s Submissions
15.It is his submission that the evidence of identification as to who may have caused the death of the deceased is crucial and that apart from PW5 who tried to mention the name of the accused who is said to have been seen running away in the maize planation at 6:30AM, the other witnesses are unaware of the facts surrounding the death of the deceased. He argues that where the prosecution case on an accused person rests on identification under difficult conditions, the court must carefully assess the evidence. The defense cited the case of Abdulah Bin Wendo V Rex 20 EACA 166 in that regard where the court held as follows;
Issues, Analysis and Determination
16.The offence of murder is defined in section 203 of the penal Code as to unlawfully cause the death of another with malice aforethought. Flowing from that definition, the issues that arise for determination in every murder trial and the facts to be proved beyond reasonable doubt are; the death of the deceased, if the death of the deceased alluded to by unlawful acts or omission attributed to the accused and if in committing such act, the accused was actuated with malice aforethought.
The death
17.There is no contention that Catherine Makhonja Isinji is deceased. Her death has been confirmed by PW3 and PW4 who identified her body for purposes of postmortem as well as by PW7 who conducted an autopsy on the body of the deceased and produced a post mortem report dated 18/7/2015, which confirms that Catherine Makhonja Isinji died on 18/7/2015. Even the accused admitted that the deceased was in deed dead.
Whether the death was occasioned to by unlawful acts or omission by the accused?
18.The right to life is protected and guaranteed under article 26 of the Constitution of Kenya, 2010 and one’s life may only be taken away for reasons authorised by Constitution or other law. In other words, occasioning the death of another is only permissible when done pursuant to the law or when excused or justifiable by the same law.
19.It was the testimony of PW7 that the deceased died due to multiple injuries secondary to sharp force trauma following assault. To assault another, even when that only results in minor injuries is ipso facto unlawful. No evidence exists that there was any justification in assaulting the deceased to the extent revealed in the autopsy report. It is thus the holding of the court that the acts causing the injuries proved on the body of the deceased were unlawful acts. The next question is then whether the accused was linked to the unlawful acts.
20.In This case, there was no eye witness to the killing of the deceased and is therefore hinged on circumstantial evidence. When to employ circumstantial evidence and the nature of such evidence that may found a conviction was was explained by the court of appeal in the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR as follows;
21.The test for circumstantial evidence was also explained in Abanga alias Onyango v. Republic CR. App No. 32 of 1990(UR) in which this court held as follows;
22.Looking at the circumstances and the chronology of events leading up to the death of the deceased, it was the testimony of PW2 that he was approached by the accused informing him that he had quarreled with the deceased and shortly thereafter the deceased appeared with a hoe in hand angrily asking the accused what he wanted from her. He asked the deceased to go home but instead she walked towards the farm. PW2 left for his house and shortly after, he heard screams. Where the accused headed to after parting ways with PW2, has not addressed. It was the evidence of PW5 that she heard the deceased shout “Aggrey umeniua” three times and when she followed the voice she saw the accused running away. The incident she said happened at 6AM in the morning when the sun was rising. She was able to see and recognize well, being a neighbour. That evidence eliminates any doubt as to the ease of observation by the witness and displaces the contention and submission by the accused that the conditions did not favour a correct identification. To the contrary, the court finds that the case presents a situation of recognition by a person well known to the witness. On that basis, the court finds and holds that the decision in Abdulah Bin Wendo’s case (supra) is not applicable to the accused’s case and affords to him no benefit at all.
23.The chain of events of the material morning, as explained by PW2, 5 and 6, and leading to the death of the deceased can only lead to the inference that it was the accused who killed the deceased. Furthermore, this fact is corroborated by PW6 who testified that the deceased said to them “nisaidieni, Aggrey ameniua”. There being such evidence that the accused had an altercation with the deceased short moment before the deceased wailed with his name and was found on the ground with grave and extensive cuts thereafter called for the accused to give a better account by way of controverting the prosecution’s case. In that regard, he failed by only opting to assert having been away at the market without anything more.
24.There was evidence by PW5 and PW6 that that both heard the deceased say that the accused had finished her. That evidence calls for the application of evidence and law on dying declaration. The principles governing dying declarations were considered by the court of appeal in the case of Philip Nzaka Watu v Republic [2016] eKLR where it was held as follows;
25.The court finds that there was admissible evidence of a dying declaration that connected the accused and the assault on the deceased. With that dying declaration of the deceased, PW2’s testimony that the accused had a quarrel with the deceased and PW5’s testimony that he saw the accused run from the scene of crime, the court infers and makes a conclusion that it was the accused who unlawfully assaulted and caused the death of the deceased.
26.The appellant in his evidence simply denied the charges and stated that he was on his way to sell clothes when he heard that the deceased had been killed. He was shy to explain his whereabouts after the encounter with the deceased in the presence of PW2. The court finds his evidence untruthful and not capable of belief.
Whether the accused was accentuated with malice aforethought in causing the death of the deceased
27.The elements of malice aforethought are coded in section 206 of the Penal Code to be established whenever there is; 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; 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; or, an intent to commit a felony; 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.
28.Malice aforethought therefore presents a state of mind and not practically provable by hard evidence. Even circumstances disclosing the existence of ill will or premeditation are inferences drawn from conduct. Here it was the testimony of PW3 and PW4, as confirmed by PW7 that the deceased’s body had extensive injuries disclosed to includefive deep cut wounds on the scalp, two cut wounds on the 1st and 3rd interdigital web, one cut wound on the sole and a deep cut wound behind the thigh. Internally, the involved cut wounds had injured the vessels on the upper limbs while the head had four fractures going to the brain.
29.Malice or the intention of the attacker may be inferred from the part of the body in which a deceased was attacked. In this case, the deceased suffered several cut wounds on her body including five deep cut wound on the scalp. She was an elderly woman and once injured the accused left her to die. I have no doubt in my mind that the intention of the accused was to cause to her at least very grave harm if not to end her life altogether. The court finds that in assaulting the deceased and occasioning the injuries disclosed, the accused was accentuated by extreme malice aforethought
30.In conclusion, the court finds that the prosecution has proved beyond reasonable doubt that accused person guilty for the offence of murder as charged and convict him accordingly.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 1ST DAY OF DECEMBER, PATRICK J O OTIENOJUDGE