Please Wait. Searching ...
Republic v Wellington Shisiali (Criminal Case 49 of 2017) [2022] KEHC 12171 (KLR) (8 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 12171 (KLR)
Republic of Kenya
Criminal Case 49 of 2017
WM Musyoka, J
July 8, 2022
Between
Republic
Prosecution
and
Wellington Shisiali
Accused
Judgment
1.The accused person faces a charge of murder, contrary to section 203, as read with section 204, of the Penal Code, Cap 63, Laws of Kenya. He is accused of murdering Jeridah Shaduma Mwanje, on 6th December 2017, at Lirhembe Village, Iguhu Location, Kakamega South Sub-County, within Kakamega County.
2.He denied the charge, and a trial ensued, where seven witnesses testified. PW1 was present when the accused hit the deceased on the head with a panga. He had questioned him, PW1, why he had switched off the radio, yet he, the accused, was dancing to music from that radio. The accused person left, and came back with a panga. When the deceased asked him why he wanted to assault PW1 with the panga, he turned to her, and cut her, the deceased, on the head. He stated that the accused was a little drunk. The incident happened during the day, at 3.00 PM. PW2 was at the scene, but she did not witness the actual assault. It was PW1 who informed her of what had happened. She had just left the deceased seated outside her house, as she, PW2, was putting clothes on a line to dry. She heard PW1 calling, and when she went where she was, she found the deceased lying on the ground, with blood oozing from her head. When she enquired from PW1, she was told that the accused had hit her. The deceased died as they made efforts to take her to hospital. PW3 received information about the assault from PW1 and PW2, and rushed home. He notified the Chief. He later learned that the deceased had died. PW4 was the local Assistant Chief. He got a report of the assault. When he visited the scene, he found locals beating the accused. He called for police assistance. The police came, and arrested the accused, who and the surrendered to them the panga he had used to cut the deceased. PW5 was the pathologist who did the autopsy on body of the deceased. He opined that the cause of death was a penetrating head injury, secondary to sharp force trauma. PW6 was the father of the accused and the son of the deceased. He got information that the accused had cut the deceased. He was among those who identified the body of the deceased, for purposes of post mortem. PW7 was the investigating officer.
3.The accused was put on his defence on 13th March 2020. He made a sworn statement on 9th February 2022. He stated that he was told that he had killed the deceased, yet he had not seen her that day. He stated that PW3 and Joshua Ngaira wrestled him to the ground, beat him and dragged him to his house. He said he was taken to the police station and was told that he had killed his mother. He said that he did not know whether she died. He denied cutting her. He said that was on good terms with all the prosecution witnesses.
4.At the close of the oral hearings, the parties did not file written submissions.
5.The offence of murder is defined in section 203, of the Penal Code, as unlawful killing with malice aforethought. There are four key elements to the offence. The death, its cause, the role of the accused person in the causation and malice aforethought. See Republic vs. Stephen Sila Wambua Matheka [2017] eKLR (Nyakundi J).
6.There is no contestation on the part of the death of the deceased. PW1, PW2 and PW3 were with present, when she died as they took her to hospital. PW5, the pathologist, performed an autopsy on her body. On the cause of death, PW5 said that it was a penetrating head injury, secondary to sharp force trauma, which was consistent with the panga attack described by PW1.
7.The role of the accused in the causation of the death is a contested area. PW1 said he witnessed the killing, and PW2 says she was in the immediate vicinity, and was able to ascertain to what transpired. The accused said he did not see the deceased on the material, he did not know that she died and that it was others who told him that he had killed her. The testimony by PW1 is fairly straightforward, and it is corroborated by that of PW2. PW1 saw the accused go to his house, came out with a panga, with which he threatened him, and, when the deceased verbally intervened, the accused hit her with it on the head. It was daytime. There is no question about identification. It was even recognition. The deceased was the grandmother of both PW1 and the accused. The accused was seen in broad daylight attacking the deceased and inflicting the injury which caused her death.
8.The mens rea for murder is malice aforethought, which is defined in section 206 of the Penal Code. It could take the form of intention, knowledge or indifference. It is to be inferred from the conduct of the accused or discerned from words spoken by him. Karani and three others vs. Republic [1991] KLR 622 (Gachuhi, Cockar JJA & Omolo Ag. JA). The intention can be a direct one, to kill, otherwise known as express malice. See Msiwa and another vs. Republic [1976-1985] EA 477 (Mfalila, Samata & Makame JJA) and Langat vs. Republic [2002] 2 KLR 191 (Chunga CJ, Shah & Bosire JJA). It could be an intention to cause grievous harm, which results in death, otherwise known as constructive malice. See Musyoka and other vs. Republic [2003] 1 EA 177 (Gicheru, Lakha & Keiwua JJA). It could be knowledge that the act the accused person was engaged in could cause death or grievous harm but he remains indifferent to the consequences, which is a form of implied malice. See Mbugua vs. Republic [2000] EA 150 (Omolo, Shah & Bosire JJA). It could also be an intention to commit some felony, which results in death, although death was not intended. It is also a form of constructive malice. See Njoroge vs. Republic [1983] KLR 197 (Madan, Potter JJA & Chesoni Ag JA).
9.In the instant matter, the accused hit the deceased on her head with a panga. It can be inferred that a person who strikes another on the head with a panga intends the death of the person assaulted. It would be a case of express malice. In this case, the force was strong enough to inflict an injury which caused the death of the deceased that same day, a few hours after the assault. The accused person may not have intended to cause death, but grievous harm instead. A cut on the head with a sharp panga which causes damage to the skull is grievous harm. If it results in death, then that would suffice for malice aforethought, as such a person would be deemed to have had implied malice. He may have intended to commit some felony. He went to his own house and came out with a panga. He attempted to attack PW1 with it, and when the deceased enquired why he was doing, he just turned around and struck her on the head with the panga. Whatever felony he might have intended to commit resulted in death, and malice aforethought ought to be inferred. Even if he did not intend to kill, he would be deemed to have known that a blow of the kind that he gave the deceased on the head with the sharp side of a panga could cause death or grievous injury, but he did not care about the consequences. Malice aforethought or constructive malice ought to be inferred. Clearly, the actus reus, of attacking the deceased with a panga, was accompanied by the appropriate mens rea, the malice aforethought.
10.In his defence, the accused said that he was not aware that he killed the deceased, and it was others who said he did. None of the prosecution witnesses, most of who were related to the accused, talked about him having a mental problem. They said he was slightly drunk, suggesting that he was not so intoxicated to the extent of not knowing what he was doing. The accused did not file written submissions, and, therefore, it is not clear whether he was setting up a defence of insanity or that of intoxication negating intention. It should be the duty of the accused to set up a positive defence, and not of the court to find one for him from the facts adduced.
11.Overall, it is my finding that the prosecution has established a case against the accused person herein, beyond reasonable doubt, of having, on 6th December 2017, unlawfully caused the death of Jeridah Shaduma Mwanje, with malice aforethought. I accordingly convict him of the said offence. The purpose of sentencing, let the Director of Probation and Aftercare Services conduct a socio-inquiry, and file an appropriate report, in the next fourteen days. The sentencing hearing shall be conducted on a date to be fixed at the delivery of this judgment. It is so ordered.
JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS ……........8th ...................… DAY OF ………July .....…………. 2022W M MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Kagai, instructed by the Director of Public Prosecutions, for the Republic.Mr. Getanda, Advocate for the accused.
