John Nyamwa Omoro V Republic  EKLR
|Criminal Appeal 114 of 1987||02 Dec 1994|
Johnson Evan Gicheru, Akilano Molade Akiwumi, Philip Kiptoo Tunoi
Court of Appeal at Kisumu
John Nyamwa Omoro v Republic
John Nyamwa Omoro v Republic  eKLR
Omoro v Republic
Court of Appeal, at Kisumu December 2, 1994
Gicheru, Akiwumi & Tunoi JJ A
Criminal Appeal No 114 of 1987
(Appeal from a conviction and sentence of the High Court of Kenya at Kisumu (Mr Justice R S C Omolo) dated 13th May, 1987 in HCCR Case No 18 of 1986)
Criminal law – murder – essential ingredients of the offence of murder – section 204 Penal Code.
Criminal law – murder – appellant killing the deceased as a result of a simmering land dispute – trial court omitting to inquire into the role of the dispute in the killing – whether conviction for murder was sound.
The appellant who was convicted for murder and sentenced to death appealed against his conviction contending on the main that there was no clear evidence as to who was at the scene of the incident thereby casting serious doubt over the witnesses recount of what happened on the material day.
Counsel for the appellant further submitted that non-exploration of the issue of provocation and eventually omitting to put it to the assessors by the trial judge led the assessors into returning a verdict of murder when the circumstances of the killing pointed to manslaughter particularly considering that the main actors in this tragedy were relatives who had a running land dispute between them.
The State however submitted that there was nothing in the prosecution’s case that indicated the witnesses had made up the story of the deceased’s assault. Concerning omission to explore possibility of provocation in the killing, the State submitted that this failure by the judge did not prejudice the appellant.
1. Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions:-
a) The intention to cause death
b) The intention to cause grievous bodily harm
c) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse.
2. Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not itself enough to convert a homicide into the crime of murder.
3. In the present appeal the Court feels uneasy at the insufficiency of the inquiry into the obvious land dispute that soured the relationship of the protagonists in this tragic incident. The Court therefore hesitates to uphold the appellant’s conviction for the offence of murder.
Appeal against conviction for murder allowed and substituted with conviction for manslaughter.
Nzuki, Michael Nzioka v Republic Criminal Appeal No 70 of 1991
Penal Code (cap 63) sections 204, 205
Mr Siganga for the Appellant
Mr Karanja for the State/Respondent