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Republic v Shikuku (Criminal Case 41 of 2020) [2022] KEHC 13312 (KLR) (20 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 13312 (KLR)
Republic of Kenya
Criminal Case 41 of 2020
SN Riechi, J
July 20, 2022
Between
Republic
Prosecution
and
Edwin Chimoi Shikuku
Accused
Judgment
1.The accused Edwin Chimoi Shikuku is charged with offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code.
2.The particulars of the offence are that Edwin Chimoi Shikukuon the 21st August 2020 at Wanainchi area Maraka Sub-Location in Bungoma East Sub-County within Bungoma County, murdered Rosina Imitsa Lumumba alias Nelly.
3.PW3 Diana Naliaka Naheyani who was a neighbour to the deceased in the same compound of rooms testified that the deceased had stayed at the block of rooms and was employed at Sango Hotel. In her room she used to stay with her children whom she would leave with the witness whenever deceased went to work. The accused used to come to deceased’s house asking to speak to her. On 21/8/2020 at 10 pm she heard screams from outside. She went and saw deceased’s house open and deceased lying down in a pool of blood. Accused later came and said he had come to be killed. Members of public arrested him and beat him. She confirmed that accused was the husband of the deceased.
4.On cross-examination by Wamalwa she stated that accused had on several occasions threatened deceased but did not report to Police. She stated she was at home having given birth and that is why deceased would leave her children under her care. She stated that she never saw any other boyfriend of deceased and that accused was not the one who paid rent.
5.PW4 Betty Alima Laba a student at Mt. Kenya University was working for the deceased as a house girl. The deceased had 2 children and all of them were staying in a one room. She worked for the deceased for 6 days as house girl. On 28/8/2020 the deceased came home with accused into the house and they had supper. Deceased then asked accused to go away. He went away. After about 30 minutes accused came back and asked deceased to give him airtime to call the gate keeper to his house as he had locked the gate. The accused hit the door and entered the house. He then stabbed the deceased on the chest below the breast. She screamed and escaped to her Sister’s home. She later received information deceased had died.
6.On being cross-examined by Wamalwa for accused she stated that there was electric light in the house, and stated that there was no fight between accused and a boyfriend of the deceased in the house.
7.PW5 Francis Juma was in his house when Betty (PW4) called her Sister who is his wife and informed them accused had stabbed the deceased. While going to the scene at a bridge he saw a child who told her her father had stabbed the mother and she was looking for her sister. He took her and handed her to a Police Officer. He went to the scene and saw deceased lying down with stab wounds.
8.PW6 Miriam Lemekwai Lelakumum the mother of the deceased testified that accused had married the deceased and had 2 children. She testified that in their marriage they used to quarrel and that in 2020 the accused took the children to his parents and asked deceased to go to his home but she refused. On 22/8/2020 she received information that accused had killed deceased. She went to the mortuary and saw she had injuries on the chest, hand and leg.
9.PW7 Julia Murugi the landlady of the deceased testified that deceased was her tenant. She knew accused as her husband. On 21/8/2020 she heard screams and went to the house where she saw deceased had been stabbed. She died while arrangements were being made to take her to hospital. The accused then came crying and when asked about the children he said he had left them on the road. Members of public started beating him and he was saying they can kill him.
10.PW8 NO. 58503 Sergeant James Masiew was on duty at Webuye Police Station when he was instructed by the OCS to go to a scene of Murder at Generation area. He went to the scene and found a man being beaten by a mob. The man was telling the mob to kill him. He rescued him and noticed that he was wearing a shirt that was blood-stained. In the house he found deceased lying down with stab wounds and a blood-stained knife nearby. He called the OCS and DCIO who came and body was taken to Webuye Mortuary.
11.PW11 Inspector Josphine Handia the Investigating Officer attached to DCI Webuye received a report of the Murder and proceeded to the scene. He found Sergeant James (PW7) who informed her he had arrested a suspect. She went to a house where she found deceased in a pool of blood. She also found a daughter of deceased who told her it is accused who had stabbed the mother. She also received a kitchen knife suspected to be murder weapon. They interrogated the accused about the child and he told them to check at the river. The next day the child was recovered at the river bank safe and with no injuries. During post-mortem, on body of deceased specimen samples were taken for DNA. Accused was taken to Government Analyst where blood sample was taken, together with his blood-stained shirt.
12.PW10 Polycap Lutta Kweyu a Government analyst received:1.A kitchen knife2.Long sleeved shirt3.Blood sample of deceased4.Finger nails of deceased5.Buccal swap of accused
13.He subjected them to DNA analysis and confirmed the blood on the knife belonged to deceased and on the shirt belonged to accused.
14.PW2 Dr. Edward Milembwa produced a post-mortem report prepared by Dr. Brian Elimi who performed the post-mortem. He testified that the deceased had swelling on upper eye lids, penetrating stab wound on left anterior chest wall and arm bit and on 5th rib. She had a penetrating wound on left thigh. He found there was injuries to the heart, left lung and collection of blood in heart cavity. He formed opinion that cause of death was due to injury to the heart by a sharp object.
15.The accused gave sworn evidence in his defence. He testified that the deceased was his wife and a mother to one of his children. In 2018 while away at work she left home and when she came back he found a receipt which had a telephone number of his uncle Juma. He reported the issue to his mother.
16.On 21/8/2020 he went to her place of work and asked her to take him to see the child. They went together and had supper. There was also a girl in the house. While there deceased phone rang but she did not pick it. He asked her why and she said the person was troubling her as he was listening to gossip that she brings men into the house. He then left. While still outside he saw Francis Juma Musi (PW5) come and asked him why he was at his house. Accused told him he had come to check on his child. Musa entered the house and came with a knife and he cut accused on left side of his body. He then went inside and took the children. He then heard the deceased to scream once and when he went back and saw Francis holding the deceased. Francis then ran away. He screamed and people came and he noticed the children were missing. Shortly after Police came with the child.
17.On being cross-examined by M/S Omondi for Prosecution, he confirmed that when he went to the house he found the girl who testified as PW3. He confirmed he knew PW1 Rebecca as the child of the deceased. He also confirmed he sustained injuries but stated he did not touch the deceased. He confirmed the children were in the house when he was attacked.
18.The accused called DW2 Josphine Shikuku his mother who confirmed that accused and deceased were staying together. She testified that in 2018 accused brought her a lodging receipt with a telephone number of Francis Juma (PW5) who is her brother and uncle to accused. He suspected that Francis had a love affair with deceased. The witness asked Francis who denied.
19.Mr.Wamalwa Simiyu for accused filed written submissions. Counsel submitted what the death of deceased was proved by the evidence of PW2 who produced the post-mortem report and other witnesses who saw the body of the deceased. He submitted that though the accused was placed at the scene of crime, his presence was explained and accounted for but there is no evidence that he is the one who caused the death of the deceased.
20.The accused is charged with the offence of murder contrary to Section 203 of the Penal Code which creates the offence provides:Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”.The ingredients of the offence of Murder which the Prosecution must prove are:a.The fact and cause of death.b.The unlawful act or omission causing the deathc.That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d.That the accused committed the unlawful act with malice aforethought.
21.On the fact and cause of death PW2 Dr. Edward Milembwa who produced the post-mortem report prepared by Dr. Brian Alima testified that the deceased had stab wounds and penetrating injury between 5th-6th rib extending to the heart and left lung. He formed opinion that cause of death was due to injuries to the left side of the heart inflicted by a sharp object. He therefore confirmed the fact and cause of death; to be the stabbing of the deceased.
22.The second element that the Prosecution must prove is that the accused is the one who committed the unlawful act that led to the death of the deceased. In this case it is incumbent on the prosecution to prove that is the accused who stabbed the deceased. PW1 Michele Rebecca the daughter of accused testified that it is accused who stabbed the mother and took her and Millan to the river. PW4 Berby Alima in her evidence testified:
23.On 28/8/2020 at 9.30 am I was in the house. Deceased came with accused, into the house. They had supper. Deceased then told accused to go away as they were not staying together. After 30 minutes accused came back and said the gate to his house had been locked. He said he wanted deceased to give him credit airtime to call the gateman. The accused then hit the door in anger. He entered the house. He then stabbed the deceased with a knife on the below the breast. This is the kitchen knife (PMFI 2). I screamed and went out. After a short time neighbours came. They entered the house. I became afraid and went to stay with my sister.
24.The accused in his defence stated:
25.The accused in his defence admits that he was at the scene; that the deceased was stabbed using a knife; but that it is not him who stabbed her and that he only heard deceased scream and seeing Francis holding her.
26.PW4 Betty who the accused confirms was at the scene testified that it is accused who stabbed the deceased. She confirmed that there was no other man in the house that night. I considered her evidence which I find to be credible as she was at the scene and saw all that happened. The accused’s contention that the injuries on the deceased may have been caused by Francis is therefore not true and I reject it. I therefore find that the accused is the one who inflicted the injuries on the deceased from which he died.
27.The other element that the Prosecution must prove is that the accused in committing the unlawful act causing death had the intention of causing grievous harm or death. It must be proved that he had malice aforethought. Malice aforethought is defined in Section 204 of the Penal Code as:
28.Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances –a.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;b.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;c.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.In David Mwangi Monica –versus- Republic 2020 eKLR it was stated:
29.Addressing this issue, the learned Judge made the following findings which we quote in extenso:-
30.In view of the foregoing, we are in no doubt that the appellant was convicted on very sound and watertight evidence as his guilt on the two counts of murder was proved beyond any shadow of doubt.”
31.Upon considering the type of weapon used, a knife, the nature of injuries inflicted stab wounds, the intensity of the assault, and the repeated nature of the stab wounds and the part of the body targeted the heart and lungs all cumulatively demonstrate an intention to cause grievous harm or death as it happened in the case. I am therefore satisfied that malice aforethought was proved by Prosecution.
32.Upon considering all the evidence and submission, I am satisfied that the Prosecution has proved a charge of Murder against the accused Edwin Chimoi beyond reasonable doubt. I find the accused Edwin Chimoi Shikuku guilty of the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code and convict the accordingly.
DATED AT BUNGOMA THIS 20TH DAY OF JULY, 2022.S. N. RIECHIJUDGE
