Full Judgement
in Makewa trialVerbatim:
 |
| Police lead Makewa(in glasses) to the cells after he was jailed for seven years for attempted murder |
"Criminal Case No. 61 of 2012-
Republic of Kenya Vs John Wambua Makewa
Republic of Kenya Vs John Wambua Makewa
Judgement
The accused person is charged with the
offence of attempted murder contrary to section 220 of the Penal Code Cap 63
Laws of Kenya.
The particulars being that on 21/03/2010 at Makueni
Catholic Mission house in Makueni District, he unlawfully attempted to cause
the death of Fidelis Nzuki Mutuota by shooting him with a BRNO double barrelled
special Poldi Elettro shot gun S/No. 1-000501-75 and wounded him in the
abdomen, left upper arm and both thighs.
The prosecution called a total of
fifteen witnesses. The accused person
gave sworn evidence but did not call a witness. The prosecution case is that
the accused person shot and wounded the complainant using his shot gun in an
attempt to kill him. The accused defence
is that he did not shoot the complainant.
He submits that the complainant was either a victim of friendly fire or
he was a victim of enemy fire from robbers who had invaded the parish on the
material night.
The accused person had initially been
charged at Makueni Law courts. The case proceeded before my brother Hon. J.
KARANJA P.M. However after the close of the prosecution case, the Hon.
Magistrate disqualified himself. The matter was then referred to the high court
at Machakos where the Hon. Justice Asike Makhandia referred the file to this
court for hearing and determination. When the accused person appeared before
this court for
directions,
his learned counsel told the court that the accused wished to proceed with the
case from where it had reached. No application was also made to recall any
witness. I then heard the accused defence.
The brief facts of the case are as
follows. The accused person, Rev. Father John Wambua Makewa was at the material
the father in charge of Makueni Catholic parish. The complainant, Father Fidelis Nzuki Mutuota
was pursuing an M.B.A degree at the University of Nairobi. He was also assisting as a priest at Makueni
Catholic parish. The complainant and the
accused person knew each other for a long time. They were priests in the same
parish and they also hailed from the same home area.
The complainant testified as PW1. He told the court that on the material night
he had travelled to Makueni catholic parish from Nairobi. On that fateful night he was with the accused
person, Father Boniface Kioko who testified as PW4 and Father Michael Mutuku
who testified as PW5. PW6 Boniface Mutua, an ex seminarian was also present.
The Fathers lived together at the
parish house. There were also three
sisters who lived in a house nearby but in the same compound. The fathers also
had a cook by the name Gerald Mbithi Munyao who testified as PW13. On the material night, they enjoyed supper
together and after the accused person had allocated then stations to celebrate
mass the following day, they retired to bed. Before they went to sleep, it
started raining heavily and the power went off. The complainant and Boniface
Mutua (PW6) shared a room. The accused
spent the night alone in his room while the other priests also had their rooms.
It appeared that the night would be another
normal one but then everything changed at around 4. 00. a.m. The complainant
told the court that at around 4.15 in the morning, he was woken up by a loud
gunshot sound. After a few minutes the
accused person came to the room where he was sleeping and woke him up together
with Boniface Mutua. The accused
informed them that thieves had invaded the compound. The two then followed the accused to his
bedroom where the complainant says that the accused handed over to him a pistol
and three bullets.
At that time the accused person was
armed with a shot gun. He said that they
followed the accused to a room from where he shot three times towards the
sister’s house. The complainant says
that he did not see the alleged robbers. It is then that the accused person told
him that it appeared the robbers were in the sitting room. He told the court that the accused person
asked him to crawl along the corridor and open the door leading to the sitting
room.
When he tried to open the door the
accused shot him on the arm. Surprised,
he stood up and told the accused that he had shot him. At this point the
complainant must have thought that the accused person had shot him by mistake.
The accused person told him that it is the robbers who had shot him. Then the accused shot him again on the thighs
and he fell to the floor. He told the
court that when he tried to inquire from accused why he wanted to kill him, the
accused shouted back and told him to die.
The complainant lay on the floor
bleeding for close to 20 minutes before the other priests came and took his
confessions. It was not until the sisters arrived that he was eventually taken
to Makueni District Hospital where he was given first aid.
He was then transferred to Mater
Hospital where he underwent comprehensive treatment and surgery to remove
bullet fragments and repair damaged tissues.
The complainant was in hospital for about 44 days.
PW2 P.C. Joseph Mutie is a scene of
crime officer. He is the one who took
photographs of the scene. He produced
the same as exhibit.
PW3 Sister Salome Kamene Peter was
sleeping in the sister’s house about 50 meters away together with two other
sisters i.e. Sister Nthike Nzevela (PW7) and Sister Jane Francis Kamanthe
Malika (PW9). She told the court that on
the material date at around 5 a.m. she was woken up by PW7 and PW9 who informed
her that they had heard gunshots. She
then called the accused person and asked him whether it was possible that there
were robbers and the accused person answered in the affirmative. After that she
heard more gunshots.
After a few minutes father Boniface
Kioko (PW4) called sister Jane Francis (PW9) and informed her that the
complainant had been shot. He however
told them not to go to the scene as it was dark. After a while PW4 called again and told them
that they could go. When they went to
the scene, they found the complainant lying on the floor covered in blood. They then assisted to take them to the
hospital.
In cross examination she said that she
called the accused to inquire what was happening. She also said that the accused was not at the
scene when they arrived but came after about 3-4 minutes.
PW4 Father Boniface Kioko was one of
the priests who were at the parish house the fateful night. He said that it was at 5.00 a.m. when he
heard a gunshot. After the third
shot, PW9 called him and inquired what was happening. After he heard the shot he tried looking for
a place to hide. He then heard someone
crying and when he went out he found the complainant having been shot. The complainant asked for someone to take his
confession and Farther Mutuku did so. He said that when the complainant was
crying he was saying ‘father you have
shot me’.
PW5 Father Michael Mutuku told the court
that he heard a loud bang at 5.00 a.m.
He said that he heard other gun shots and then heard someone crying ‘I
have been shot’. When he went out of the
room, he found the complainant in a pool of blood and he proceeded to take his
confession.
In cross examination he said that he
never heard the complainant say that he had been shot by the accused
person. He also said that he heard some
commotion outside like ‘things falling’.
PW6 Boniface Mutua spent the night
with the complainant in one room. He
told the court that before he slept he heard noises outside like something
being hit.
He said that at 5.00 a.m. he heard
commotion outside before the accused came to their room and woke them up and
told them that thieves had invaded the compound. He said that the accused gave something to
the complainant to hold for him before he proceeded to the window and shot
outside. He said that the complainant
was following the accused and when they got to the corridor, he went back to
hide under the bed.
After another gunshot, he went to the
sitting room and met the accused who told him that the complainant had been
shot. He found the complainant lying on
the floor screaming. In cross
examination, he told the court that he heard the complainant saying ‘and you have shot me’. He however said that he did not see the
accused shoot the complainant nor did he hear him tell the complainant to
‘die’. He also did not see what the
accused gave the complainant to hold for him.
According to him, it may have been bad
luck if at all the accused shot the complainant. In re-examination, he said that the accused
and complainant went to the corridor together and he could not tell who was
ahead of the other as it was dark.
PW7 Sister Nthike Nzevele told the
court she was woken up by a loud bang.
Together with Sister Salome (PW3) they woke up Sister Jane Francis,
(PW9) who called the accused. She said
that after number of shots, she heard someone cry out.
They were then informed that the complainant had been
shot. They went to the scene and found
the complainant lying in a pool of blood.
They assisted him to the hospital.
She said that she did not see any robbers. In cross examination, she said that the sound
she heard sounded like ‘electricity’.
She said that the complainant never said that he had been shot by the
accused person.
PW8 P.C. Samuel Odhiambo visited the
scene in the company of the O.C.S C.I. Nyiro on 21/03/2010 at 7.00 a.m. He said
that the accused person informed them that thieves had invaded the compound at
3.00 a.m. but he could not tell how many they were. The accused told them that he had shot at the
thugs using his guns but the complainant had been shot by the thugs and had
been taken to hospital. He told the
court that some window panes at the veranda had been broken.
According to him, the accused told
them that he fired using his shotgun and the pistol. He told the court that the accused did not
tell them specifically where the robbers were. They searched the entire
compound but did not recover any spent cartridges. He said that they
recovered fragment pellets from the scene where the complainant was shot.
There
were however no holes on the walls of the house to indicate that the house had
been fired at.
He said that the window which had been
broken must have been broken by something else other than bullets although it
was not possible to tell if the same had been broken from inside or outside the
house.
He further told the court that the
bullet that hit the wall could not have come from outside the house as it had
to pass through the door which was intact.
PW9 Sister Jane Francis Kamene told
the court that she was woken up by a loud bang at 5.25 a.m. PW3 and PW6 then came and knocked on her door. When they called, the accused told them there
were thieves in the compound. When they
went to the scene, they found the complainant in a pool of blood. In cross examination, she said that the
complainant never said that he had been shot by the accused person.
PW10 Onesmus Katua is a clinical officer attached to
Makueni District Hospital. He filled a
P3 form for the complainant. According
to the P3 form the complainant had a scar on the right lower abdomen, bullet
wounds on the abdomen and perineum, shattered distal radius and ulna, severe
soft tissue injuries, tear on the right femoral vein, bullet injuries to the
right sciatic nerve and several bullet wounds on both thighs. He produced the P3 form as exhibit.
PW11 Joseph Mumira was the D.C.I.O Makueni at the time of
the offence. He was the investigating
officer in this case. He said that he
went round the parish house but did not find any footsteps although it had been
raining that night. He said that the
bedroom window had its lowest and middle panes broken with a sand stone which
was in the room.
The lowest pane of the left shutter of the kitchen window
was also broken and there were glass shards outside the house. He told the court that they searched the
compound extensively for spent cartridge but did find any. He said that the only footsteps were outside
the door.
On 04/04/2010, he went back to the scene and the accused
handed over two spend cartridges from his shotgun and 38 rounds of ammunition. He said that except the window at the veranda,
the others glasses were outside the house.
According to him, the window must have been broken from
inside the house for the glasses to be outside the house. He said that the chain link fence around the
compound was intact. He told the court that
there was no evidence that there were robbers at the scene. He said that when pellets from the shotgun
hit a hard service they would crumble.
PW12 Superintendant Lawrence Nthiwa is a firearms
examiner. He said that the shotgun and
pistol allocated to the accused were in good working condition and capable of
being fired. The four shotgun shells
were confirmed to have been fired from the accused shotgun. The two damaged shot gun fragments were
unsuitable for comparative analysis.
PW13 Gerald Mbithi Munyao was a cook at the priest’s
house. He told the court that on the
material date he woke up at 5. 00 in the morning and went to the father’s house
about 100 meters away to prepare breakfast.
At 5.30 a.m., he heard a bang and some commotion. Later he opened the door to the sitting room
and found the complainant on the floor in a pool of blood. He said that he did not see anyone on his way
from his house to the priest’s house.
PW14 P.C. James Ngure accompanied PW11 to the scene. He said that they did not find any evidence
that there were robbers. He recovered
one pellet, 4 shotgun pellets, 12 rounds of ammunition from the pistol and 2
spent shotgun pellets which he forwarded for ballistic examination. He said
that one of the pellets was recovered from the body of the complainant whereas
the other was recovered from the scene.
PW15 Benjamin Stephen Mbindyo is an Orthopaedic surgeon and
consultant at Meter hospital. He told
the court that on 21/03/2010 he examined the complainant. He said that the complainant suffered bullet
injuries on the left arm, both thighs and perineum. He had fractures on the left femoral, left
ulna and the left sciatic nerve had had been damaged. The complainant was taken
to the intensive care unit and underwent surgery. He told the court that he removed bullet
fragments from the complainant’s forearm which he handed over to the
police.
When put on his defence, the accused person informed the
court that complainant and he were good friends. He said that he had known the complainant for
8-9 years. On the material night, they
enjoyed a very peaceful and healthy conversation.
There was no confrontation and argument between him and the
complainant. He told the court that he
was licensed to carry two guns i.e. a shot gun and a pistol. He says that the guns were allocated to him
due to security threats. He confirmed that on the material night it was raining
and there was no power. He told the
court that at 4.45 a.m., he saw some light which appeared like a torch. He then thought that thugs had invaded the
compound as they had done earlier.
He said that he woke up the complainant and PW6. He asked the complainant to hold for him two
bullets to enable him bend the shot gun for purpose of loading. He then fired a shot. He says that robbers shot back at them. He said that Sister Salome called him and
told him there were thugs outside.
He said that he shot again and the thugs also shot
back. It is then that he heard the
complainant cry out that he had been shot.
He said that had he intended to kill the complainant at the distance of
about 3 meters, he would have done so.
He denied that he told the complainant to die.
As the complainant was taken to hospital, he went to the
police to report. He confirmed that he handed
over spent cartridge to the police later.
The accused person told the court that he was involved in assisting to
take the complainant to hospital. He
also assisted his mother and visited the complainant severally while at Mater
hospital.
He says that the complainant only changed his altitude
toward him on 02/01/2010 when he went to see the complainant at the Mater
hospital. It is on that date when the
complainant became hostile and abused him.
Since then he has been unable to reach him. In cross examination, he said that he saw an
opening on the fence.
According to him,
the robbers were three and had two torches.
He denied that he gave the complainant the pistol to hold for him
although he admitted that he gave him two bullets.
From the evidence tendered before the court by the
prosecution and the accused person and the submissions by both parties, the
following two issues need to be determined:
1.
Whether the accused person is the
one who shot the complainant.
2.
Whether the shooting, if any, of
the complainant by the accused was intentional and hence unlawful.
The accused person admitted that he had two guns on the
material night. He was licensed to carry the two guns. The guns were in good
working condition and were capable of being fired. The accused person also
admitted that he used the shot gun to shoot at the robbers on the material
night.
It is also not in dispute that the complainant sustained
bullet wound injuries. The discharge summary, Police surgeon form and the P3
form shows clearly that the complainant sustained bullet wounds. PW15 confirmed
this fact.
In determining whether the accused person is the one who
shot the complainant, it is important to determine whether there were robbers
on the material night. The accused person stuck to his defence that there were
robbers in the parish compound. According to him the robbers shot at him and he
shot back. Although he says that he saw three robbers who had two torches, he
never told the court how many of them had guns. Nevertheless, he says that the
robbers shot at him at least twice. From the evidence tendered before me, it is
clear that the issue of robbers was raised by the accused person alone. I have
gone through the entire prosecution evidence and note that there is no other
witness who testified to having seen the alleged robbers. The accused person in
his defence and submissions before the court relied on the prosecution witness
account of commotion to build on his claim that there were robbers. However the
alleged commotion does not in any way prove that there were robbers.
The witnesses who spoke about commotion were PW5, PW6 and
PW13. The other witness talked of hearing loud bang. PW3 did not say that she
saw any robbers. She only said that she heard gunshots behind their house.
Further, contrary to the accused allegations, PW3 did not tell him that that
there were robbers. The accused told the court that PW3 called him and informed
him there were robbers. However, the evidence of PW3 in examination in chief
and in cross examination is that she called the accused person to inquire what
was happening. She never told the accused person that there were robbers. It is
the accused person who told her that there were robbers but things were under
control. What had prompted PW3 to call the accused were the gunshots from the
accused gun.
PW5 Fr. Mutuku said that he heard a loud
voice which he said he thought was a gunshot. According to him the commotion he
heard was like ‘things falling”. It is important to recall that on the material
night it was raining heavily. The witness was most likely referring to the
rains when he talked of “things falling”. This witness never said that he saw
any robbers. PW4 Fr. Kioko said that he heard a sound which sounded like a
gunshot. He never said that he saw any robbers.
PW6 said that he heard commotion
twice. That was just before they slept and again at 5 am. The first commotion
he heard sounded like someone hitting a tin or a car. The
witness is not however clear on the nature of the second commotion. What is not
in dispute is that the witness never said that he saw any robbers. This witness
was with the accused person when he was shooting at the alleged robbers. He did
not see the robbers.
PW7 said that she heard several consecutive bangs.
According to her there were no robbers. The bangs she was referring to were the
gun shots.
It is also important to note that it was not PW7 who called
the accused person to inquire what was happening. It was PW3 the head of the
house who called the accused. PW3 told the court that she heard gunshot after
and not while talking to the accused. She said
‘immediately I hang up I heard a
gunshot from the house’. She never said that she heard gunshots while
speaking to the accused. The accused person also never said that the robbers
shot at him while he was talking on his phone.
PW6 said she was woken up by a loud bang which she thought
was an electric fault. She said that it was the accused person who told them
that there were robbers.
PW13 the cook said that he heard a bang and a commotion
which sounded like thunder. It is imperative to note that PW13 had minutes
before the shooting started, walked from his house to the house occupied by the
priests. He says that the house was 100 m away. The accused person said the
house was 60 m away. He used the same door at the corridor where the
complainant was shot. He went to the kitchen and started preparing breakfast
for the accused and his colleagues. He told the court that he did not see any
one on the way to the house. He never saw the alleged torches. It is therefore
not true that PW13 told the accused person that he saw the robbers while coming
to the house. PW13 heard the first bang 30 minutes after he had started
preparing breakfast. This is the first shot by the accused. It is therefore
clear that by the time the accused person woke up and started shooting, PW13
was already in the house preparing breakfast. The time the accused states that
he saw the robbers walk towards the sister house is the same time PW13 was
walking to the house. If indeed there were robbers PW13 should have met them.
He also did not hear the robbers call on the accused to hand over the gun and
money as he alleged although he was in the house.
The sisters did not also see the robbers or the torches
although the accused said the robbers went towards their house. The accused
person had shot severally before he woke up the complainant and PW6. These are
the shots which woke up his house mates and the sisters. All these witness talked
of consecutive shots. They never talked of any exchange of fire.
According to the accused person the robbers did not shoot
back at him before he woke up the complainant and PW6. This notwithstanding, he
continued reloading and shooting at the alleged thugs. When the accused woke up
the complainant and PW6, he did not show them the direction the robbers had
taken. He did not even tell them that he had seen the robbers. That is clear in
his evidence in cross examination. The complainant and PW6 were with the
accused as he shot at the robbers. They however never saw or heard the alleged
robbers shoot back. So where were these robbers whom no one else saw except the
accused?
PW8 PC Odhiambo, PW11 Supt. Mumira and PW14 PC Ngure are
the officers who visited the scene immediately the accused made the report. PW
11 said they arrived at the scene at 7am. The accused said he reported the
incident at 6.30 am. The three witnesses told the court that the accused told
them that he had been battling robbers that night. PW8 said they searched every
inch of the compound. PW14 said they searched the compound for a good 4 hours.
They could not however trace any footsteps at the scene the accused person said
he had seen the robbers. The compound had grass around and bearing in mind that
it had been raining, it could have been easy to trace the footsteps on the
ground.
The three officers said that they thoroughly searched the
compound for spent cartridges in vain. If truly the robbers shot back at the
accused as alleged why is it then that not a single spent cartridge could be
traced even after the scene had been preserved. The officers arrived at the
scene less than two hours after the alleged shoot out. There is no evidence
that any member of public went to the scene before the officers arrived and or
interfered with the scene. I am
satisfied that the three officers thoroughly searched the compound. The accused
cannot also claim otherwise. This is because when the officers came and started
doing the search, he went away to attend mass. He only came later and found
that they had left. The accused person should have been around to show the
officers around the compound or the chain link fence he alleged had been cut.
Having gone away, he cannot claim that the officers did not search the
compound.
The evidence on
record shows that the chain link fence had not been cut as alleged. PW11 said
they went round the fence but did not see any opening. Interestingly the
accused person told this court that he only showed the fence to his lawyer, the
cook and Fr. Mutuku. Father Mutuku testified as PW5. He never said that the
accused showed him the fence which had been cut. The cook was PW13. Similarly
he never said that the accused showed cut fence. The two never said that they
went to see the fence on 25/3/2012. Why didn’t the accused show the same to the
police officers on the material date or later? I believe the prosecution
evidence that there was no fence which had been cut.
There is also the issue of the broken window glass. There
is no dispute that some windows had their glass panes broken. Some of the
glasses were inside while some were outside the house. The window at the
corridor hand its lowest pane broken. One of the bedroom windows had its lowest
and middle panes broken with a sand stone. The kitchen window had its lowest
window pane broken. Other that the corridor window, all the others windows had
glasses outside the house. This means that they were most likely broken from
inside the house. Further if indeed the robbers had shot at the windows, the
panes would have bullet holes and not necessarily shatter. It is also to be
noted that the entire house had no single bullet hole or mark on the outside
wall or the door to show that the house had been shot at. It should also be
noted that no one including the accused person heard and or saw the windows
being broken.There is also no evidence that the glasses were broken on the
material night. I reject the accused defence and make a finding that there were
no robbers on the material night.
The accused person gave the possibility that
the complaint was either a victim of friendly fire meaning that he may have
shot him accidently or that he was shot by the alleged robbers. In his defence
he made three statements. First when asked by his counsel whether he had shot
the complainant, he stated that he had not purposely shot him. He then stated
that he had not purposely or otherwise shot the complainant. When asked by the
court he said that he did not know who had shot the complainant.
The prosecution was however categorical that the accused
person is the one who shot the complainant.
The evidence on
record shows that when the complainant was shot, there was no one else in the
room except him and the accused person. Contrary to the submissions by the
accused, PW6 was not present when the complainant was shot. When the accused
person woke up the complaint and the PW6, he went to the window from where he
started shooting. In his evidence before the court, PW6 said that when the
accused person and the complainant went to the corridor, he went back to the
bedroom and hid under the bed. It was only later that that he walked out of the
bedroom and met the accused person who told him that the complainant had been
shot by robbers. Pw6 was not there when the complaint was shot. It was actually
the accused person who informed him that the complainant had been shot.
The complainant told the court that it was the accused
person who asked him to crawl along the corridor and open the door to the
sitting room because according to the accused the robbers appeared to have been
in the sitting room. PW6 told the court that he did not hear accused person ask
the complainant to open the door although he did confirm that he left the two
after they went together to the corridor. The accused was in front and was
followed by the complainant while PW6 was behind. PW6 told the court the two
were working together and did not involve him. The complainant was shot in the
corridor next to the door leading to the sitting room. He must have gone past
the accused. The witnesses who came to the scene after the complainant was shot
found him lying at the corridor. The photographs produced as exhibit shows
blood stains at the corridor next to the door.
Even the accused person confirmed that the complainant was shot while at
the corridor. With this evidence, I am convinced by the complainant’s evidence
that the accused person is the one who told him to go to the corridor and open
the door.
The complainant said that the accused shot him when he
attempted to open the door. The first shot was on his hand. Immediately, the
complainant alerted the accused that he had shot him. This particular evidence
is supported by the testimony of PW4 and PW6. PW6 told the court that after the
shooting he heard the complainant say,
‘and you
have shot me’.
PW4
told the court that after the shooting he heard someone crying and saying
‘father you have shot
me’.
These witnesses were in their rooms next the corridor.
There is no evidence that the two witnesses lied against the accused person.
The two witnesses were good friends to the accused. PW4 was a fellow priest to
the accused. They lived together in the same house. PW6 was a friend to the
accused. On the material night he had come to visit him. They therefore had no
reason to lie against him. PW6 even appeared to favour the accused in his
evidence especially when he says that the charge facing the accused is contrary
to what happened. The two witness testimony supports the complainant’s evidence
that he told the accused that he had shot him.
Beside the complainant’s testimony there is further
evidence that the accused person is the one who shot the complainant. As I
stated earlier, there were no bullet marks or holes at the wall outside the
house. There were no spent cartridges found outside the house. Considering the
design of the house and the point where the complainant was shot, it would not
have been possible that the bullet came from outside the house. As stated by PW8
the bullets that had hit the wall next to where the complainant was shot could
not have come from outside the house. This is because the bullet had to pass
through the door. However the door was intact. It was also not possible for the
complainant to have been shot at the thighs and abdomen by a person outside the
house considering the height of the corridor wall. The complainant was
therefore shot by a person inside the house. The accused person admitted that
he was the only one in the house who had a gun on the material night.
The firearms examiner confirmed that the four bullet
fragments which were recovered from the corridor were analysed and found to
have been shot from the accused person’s shot gun. PW15 told the court that he
removed a bullet fragment from the complainant’s body and handed it to the
police.
However it appears that the same had been damaged and could
not be comparatively analysed. The pellet recovered in the house was most
likely damaged after it hit the wall. This was explained by PW11. There is no
doubt that the pellet recovered from the complainant was a bullet fragment.
Being the only person who used his gun that night, and considering the other
evidence on record, it is safe to conclude that the bullet fragment recovered
from the complainant’s hand was fired from the accused shot gun.
After considering the evidence on record, I have come to
the conclusion that the accused person is the one who shot the complainant.
Having so found, I now wish to
determine whether the shooting was intentional or accidental. When he shot the
complainant the first the time, one would have excused it as accidental.
However, the subsequent events undoubtedly show that the same was not
accidental. The record shows that when the accused person shot the complainant
the first time the complainant alerted him that he had shot him. This evidence
as I have stated has been corroborated by PW4 and PW6. This notwithstanding the
accused proceeded to pump more bullets into the complainant’s body. The first
shot hit the complainant on the hand. This is confirmed by the medical records.
After the first shot, the accused shot the complainant severally on the on the
thighs and the abdomen.
The P3 form shows that the
complainant suffered bullet wounds on the left hand, abdomen and both thighs.
The accused person was less than five metres from the complainant when he shot
at him. He is the one who had asked the complainant to go to the corridor. It
is not possible that the accused did not hear the complainant tell him that he
had shot him. PW6 and PW4 heard the complainant tell the accused that he had
shot him while in the adjacent rooms.
The accused was experienced in the use
of the gun. He indeed confirmed that he was proficient in the use of guns. Having
been issued with the gun in 1990 he had been in possession of the gun for close
to 20 years not to mention the fact that he had been trained by the
commissioner of police himself. He therefore knew that shooting the complainant
would be fatal and or cause him grievous harm.
The accused told the court that if he
wanted to kill the complainant, he could not be alive to testify. My response
to that is that the complainant should
thank his God that he is alive. He sustained life threatening injuries.
According to PW15, the complainant sustained gunshot wounds which resulted to
fracture of the left radius and ulna, multiple soft tissue injuries on both
thighs and perineum. His right femoral ulna had been fractured by bullets. The
complainant suffered serious bleeding and shock. He was admitted to the
intensive care unit for resuscitation and stabilization. He underwent at least
three surgical operations to remove dead tissue and foreign bodies. The
complainant was in hospital for a total of 44 days. He was still on treatment
by the time he was testifying. The complainant is lucky that he survived the
shooting.
I am also satisfied that the accused
person told the complainant to die when he sought to know why he was shooting
him. It is true that no one else heard the accused utter those words. But it is
important to note that the other persons were not in the corridor and had by
now taken cover because of fear.
Lastly,
the accused person confirmed that he gave the complainant two bullets to hold
for him. According to him he did so to enable him bend the shot gun when
loading. This does not however make any sense. Before he woke up the
complainant the accused had used his shot gun. He said that he shot at the
robbers and then went back and loaded the shot gun and shot again. Who held the
bullets for the accused the first time he loaded?
It is also extremely suspicious that the accused woke up
the complainant and PW6. The complainant was not armed nor was PW6. The
complainant was not trained in the use of guns. Why did the accused ask the
complainant to follow him to the corridor? Did the accused person expect the
complainant to assist in repulsing armed robbers whist he was not armed.
Why
did the accused wake up the complainant instead of his deputy Fr.
Mutuku –PW5. When that question was
posed to him by the prosecutor he said that he did not wake him up because he
knew that “kambas” fear guns! But aren’t the complainant and PW6 “kambas” by
tribe? If he knew that “kambas” fear guns why did he wake up the complainant and
PW6. Being proficient in the use of guns as he claimed, the accused knew that
he was subjecting the complainant to grave danger by asking to the “face armed
robbers”. Nevertheless, to fulfil his plan he had to wake up the complainant.
The reason he woke him up and gave him bullets was to ensure that he did not
leave the scene and hence became an easy target.
Further,
the accused person’s conduct after the complainant was shot betrays his
innocence. After the shooting, the accused let the complainant lay on the floor
bleeding profusely for 20 minutes. It was not until the sisters came that the
complainant was taken to hospital. Even when the sisters arrived at the scene,
the accused person was nowhere to be seen. I do not buy the accused argument
that he feared for his life. The sisters walked all the way from their house to
the priest’s house. It was almost six in the morning and the accused person
still feared to take his great friend to hospital.
The
record further shows that the accused did not even bother to call the police
when the complainant was shot. The accused person collected spent cartridges from
the scene and kept them without forwarding them to the police. It was not until
the officers visited the scene the 2nd time that the accused person
handed over the cartridges. In so doing, the accused intended to conceal any
incriminating evidence. All this goes a long way to show that the accused
person shot the complainant intentionally.
It is true that the reason why the
accused person shot the complainant is not clear. However, motive is not material
as long as the intent exists. The important ingredient is the overt act and the
intention to cause the death of the victim. The law requires that the
prosecution must prove that the accused person attempted to unlawfully cause
the death of the complainant. Attempt is defined by section 388 of the penal
code as follows
“When a person, intending to commit an offence, begins to
put his intention into execution by
means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his
intention to such an extent as to commit the offence, he is deemed to attempt
to commit the offence”.
Subsection 2 states as follows.
“It is immaterial , except so far as regards punishment,
whether the offender does all that is necessary on his part for completing the
commission of the offence, or whether the complete fulfilment of his intention
is prevented by circumstances independent of his will, or whether he desists of
his own motion from the further prosecution of his intention”.
Motive refers to the reason for doing
something. Intention on the other hand refers to what one plans to do or the
aim. The Black’s law Dictionary defines intent to mean the state of mind
accompanying an act especially a forbidden act. It goes on to differentiate
between motive and intent.
While motive is the inducement to do some act, intent is
the mental resolution or determination
to do it. When the intent to do an act that violates the law exists, motive
becomes immaterial”. (Underline mine)
The accused person made a detailed
defence in which he expounded on his good virtue and generosity towards the
society in general and complainant and his relatives in particular. He talked
of the assistance he accorded the complainant before, during and even after he
was shot. He gave details of how he assisted the complainant to go to hospital,
raised funds for him, visited him in hospital and even asked people to donate
blood for him. To prove that the complainant was his great friend, he said that
he attended his silver jubilee celebration at which occasion he sang praise in
his favour. By this the accused person wanted to prove that he had no reason to
attempt to murder the complainant. However, as long as the intent to commit the
offence exists, then motive is no longer material. There is sufficient evidence
that the accused person intended to commit the offence. For that reason the
absence of the motive to commit the offence is not important.
Counsel for the accused submitted that
the accused actions before and after the event do not point towards any malice
or ill will. In legal terms malice means wrongful intention. One may not be
able to tell the reason why the accused shot the complainant. However, one can
safely deduce the intent. The accused person’s actions prove that he had
resolved in his mind and was determined to cause his death. The intention to
cause the death of the complainant is itself unlawful. The intention to cause
the death of the complainant coupled with the act of shooting him constitute
the offence of attempted murder.
I am alive to the fact that I did not see
any of the prosecution witness testify. I cannot therefore comment on their
demeanour. However the evidence tendered by the prosecution witness was clear
and consistent. I do not find any contradiction in their testimony. It is also
important to recall that majority of the witness for the prosecution were
indeed friends to the accused person. No evidence was tendered to prove that
any of them had reason to lie against the accused. The accused said he had many
enemies who could have rejoiced at his tribulations. He never singled out any
of the
prosecution witness. Having
analysed the evidence on record I am satisfied that the witness spoke the
truth.
I have
cautioned myself of the danger of convicting an accused person on the evidence
of a single witness. This was the finding in the case Karani –vs- Rep (1985) KLR 290. The said decision is binding
on me. The court held that a fact may be proved by the evidence of a single
witness. However, whenever the evidence upon which a charge is brought is that
of a single witness, the court must first treat such evidence with caution and
subject it to the test to rule out the possibility of error or mistake. The
second thing a court ought to do is to caution itself of the danger of relying
on such evidence of a single witness and can only convict if satisfied that the
witness was telling the truth and that the evidence standing on its own is
strong enough to sustain a conviction.
I have gone through the complainant’s
evidence and I am satisfied that he spoke the truth. His testimony was strong
and consistent and was not shaken even in cross examination. There is no evidence of mistake or error.
Even on its own, that evidence was strong enough to sustain a conviction. I
find that the complainant’s evidence is credible. Further, looking at the
evidence in its totality, I am satisfied that the complainant’s testimony was
corroborated by the evidence of the other prosecution witness.
The
accused person concocted the theory of robbers to conceal the offence. He
conceived and devised a plan to kill the complainant and blame it on nonexistent
robbers. The accused person started by shooting aimlessly to create an
impression that there were robbers. Having identified his prime target, he
isolated him by waking him up. He lured him out of the safety of his bedroom.
Innocently, the complainant followed him oblivious of the danger ahead. The
accused person gave him bullets to ensure that he did not escape the trap. He
surreptitiously sent the complainant to the door and then shot him repeatedly
as he begged for his life. The accused person even had the guts to tell the
complainant to die. Having shot the complainant, the accused person remained
unmoved as the complainant bled and writhed in pain for 20 minutes. The much he
could do is pace around and ask someone to take his confession before he died! Surprised
that the complainant had survived, he started warming himself into his heart. The accused person was unable, due to factors
beyond his control to fully execute his plan.
The
evidence that has been tendered before the court is sufficient to prove that
the accused person attempted to unlawfully cause the death of the complainant.
The prosecution has proved its case against the accused beyond reasonable
doubt. The accused person is found guilty of attempting to murder the
complainant as charged. He is convicted accordingly under section 215 of the
criminal procedure code.
DELIVERED IN OPEN COURT THIS 18TH DAY OFJUNE,
2012.
GICHIMU J. WAITITU
SRM"
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