Criminal
Trial
BHUNU
J:
The
delay in handing down judgement in this case was due to the loss of
the notebook and delay in transcribing the record of proceedings.
The
accused is charged with murder as defined in s47(1) of the Criminal
Law (Codification and Reform) Act [Chapter
9:07].
He is alleged to have struck and mortally wounded his friend Lucky
Mafuta on 18 December 2011 who eventually died on 9 January 2012.
The
facts surrounding the alleged murder are to a large extent common
cause.
The
undisputed facts are that the accused and the deceased were
unemployed friends who decided to pool their resources together and
embark on a joint business venture buying and selling airtime
recharge cards.
Each
partner contributed an initial capital of US$23.00.
The
deceased was responsible for keeping both the capital and proceeds of
the business venture.
The
accused eventually found alternative part-time employment resulting
in the two agreeing to dissolve the partnership and share equally the
business capital and profits on 18 December 2011.
On
the morning of that date, the accused visited the deceased's
lodgings at house number 559 Makomo, Epworth for that purpose. He
found the deceased at home. Instead of getting down to the business
of dissolving the partnership and sharing the business proceeds the
deceased took him on a wild goose chase.
He
first asked him to accompany him to Munyuki bar where they had a few
drinks with a friend before returning to the deceased's residence.
At
the residence the deceased could not produce the money alleging that
it was with his father who was away drinking. When the accused
suggested that he would go and fetch the father the deceased objected
saying that his father detested being disturbed when drinking.
This
resulted in a brawl which broke out into a fist fight.
There
were no eye witnesses to the fight. What transpired during the fight
can best be related in the words of the accused person's own words;
“….
He grabbed me with his right hand by the neck. Thereafter I tried to
get hold of his hand to remove it from my neck. He then said I was
desecrating him. He then assaulted me using clenched fists. I was
unable to retaliate because I then fell down. I fell on the bicycle
and I sustained a cut on my left temple. Thereafter he took a piece
of firewood that was behind the door next to the primus stove. I was
now standing up. He feigned me with the firewood because he was
aiming on the head. When he tried to assault me on the head I dodged
and lifted my legs. He then assaulted me on the right leg. I was down
and I did not get a chance to get up. After he had assaulted me I
told him that he had injured me and he told me that he wanted to
injure me. He did not say why he wanted to injure me. By the time I
spoke to him that is when I got the opportunity to stand up. I stood
up, I managed to get the piece of wood that was in his hand and we
started wrestling for that piece of wood. When we started wrestling
that is when I got the opportunity to get a piece of firewood behind
the door. I
assaulted him with the piece of firewood just above the ear once.
When I assaulted him that is when I got the chance to escape because
the deceased was older than me. I then managed to run away”
From
the accused's own testimony it is apparent and a matter of common
cause that he struck and killed the deceased with a blunt object as
alleged by the State. The only point of dispute is whether or not he
used the back of the wooden handle of an axe as alleged by the State
or a piece of wood as alleged by the accused.
In
my view there is no material difference. The bottom line is that the
accused struck the deceased a vicious blow with a blunt object on the
head with sufficient force to cause fatal injuries.
Because
there were no eyewitnesses to the commission of the offence the
accused's own testimony which is consistent with the facts and all
the other available evidence is to be preferred.
This
is what he had to say under cross-examination;
“Q.
Confirm you struck the deceased on the head with a hard object?
A.
Yes.
Q.
What object?
A.
Firewood.
Q.
How big?
A.
45cm long.
Q.
Thickness?
A.
I could not put my hand around it.
Q.
Meaning it was heavy?
A.
Yes.
Q.
The doctor said there were fragments where the deceased had been
struck on the head?
A.
I do confirm.
Q.
That means you used severe force?
A.
Yes.
Q.
Why did you choose to strike on the head?
A.
Since I was being assaulted that was the only way I could escape.
Q.
Why not strike on the hand?
A.
When I struck the deceased on the head I was not looking where I was
striking. I only wanted to strike him and escape.
Q.
You appreciated the head was the most vulnerable part of the body?
A.
Yes.
Q.
Why did you not render him assistance?
A.
I was afraid.”
The
accused having admitted that he deliberately struck the deceased on a
vulnerable part of the body the only issue that remains is whether or
not he has a partial or complete defence for his conduct.
The
evidence establishes without any doubt that the accused struck the
deceased with a heavy piece of wood on the head with severe force to
cause multiple fatal fractures to the head. Having regard to the
nature of the weapon used and the force applied the accused must have
foreseen and therefore did appreciate that death was likely to ensue.
The
fatal blow was however struck in circumstances of severe provocation
and in the course of a fight.
His
defence that he was acting in self-defence is somewhat justified but
having regard to all the available evidence he exceeded the bounds of
self-defence.
The
deceased appears to have been a dishonest fellow intent on cheating
the accused of proceeds from their joint venture business upon the
dissolution of the partnership. Having led the accused on a wild
goose chase he then attacked the accused in a bid to deter him from
demanding his share of the business proceeds.
Murder
is a specific intent crime that may be reduced to non-specific lesser
crimes such as culpable homicide or assault by provocation or some
blameworthy conduct on the party of the deceased justifying the
existence of a partial defence. See S
v Tenganyika
1958 R & N 228 FSC.
In
this case I am satisfied that the deceased's conduct in attempting
to cheat the accused and then attacking him is conduct sufficient to
reduce the verdict of murder to that of culpable homicide.
The
accused is accordingly found guilty of culpable homicide.
SENTENCE
The
accused stands convicted of culpable homicide. He killed his friend
with whom he was in a business partnership of selling juice cards.
In
assessing sentence the court takes into account that the accused is a
young first offender. He was only 21 years old at the material time.
He is now 24 years of age.
He
is married with one child to look after.
The
accused is unemployed and has no valuable assets. He survives on
buying and selling as a vendor.
The
court also takes into account that the accused is remorseful and
contrite.
He
has been asthmatic since birth although he has now improved. It is
feared that if he is send to prison there might be a relapse.
The
court will also take into account that the accused has spent two
years in prison on remand pending trial.
His
relatives have offered to pay compensation but it appears they have
not taken any effective steps to effect compensation which remains
outstanding.
The
court also takes into account that there was severe provocation in
that from the facts of this case it appears the deceased wanted to
defraud the accused.
On
the other hand the court takes into account first and foremost the
sanctity of human life. The accused's moral blameworthiness is
aggravated by his failure to render assistance after he had seriously
wounded the deceased.
The
offence of culpable homicide where life is needlessly lost is always
considered by the courts to be a serious offence which calls for
severe and deterrent sentences.
In
this case although laboring under severe provocation there was need
for the accused to exercise self-restraint.
In
the circumstances of this case I am in agreement with submissions
made by state counsel that a short and sharp sentence would meet the
justice of this case.
In
the result the accused is sentenced to four years imprisonment of
which two years imprisonment is suspended for a period of five years
on condition the accused does not again within that period commit any
offence involving the unlawful killing of a fellow human being.
The
Prosecutor General's Office,
the
State's legal practitioners
G
Machingambi Legal Practitioners,
the
defendant's legal practitioners
