CASE BRIEF State –vs- Truphena Ndonga Aswani Criminal Case No. E011 OF 2020

By Boaz Kaawe
LL.B., Dip in Law (2021)

1. FACTS:

1.1. On the 14th day of December, 2020 in Ugenya Sub County within Siaya County, Truphena Aswani (the accused) murdered James Oyengo Obochi. The accused was arraigned for Plea taking on 27/1/2021, and on being asked whether she admits or denies the truth of the charge as read to her in the Kiswahili language which she understood, she replied in Kiswahili: “Ni ukweli Nilimuua lakini si kupanga kumuua marehemu” which in English means: “It is true I killed him but I did not plan or intend to kill the deceased.”

1.2. The Court then entered a plea of not guilty as the supposed admission of the charge of Murder was equivocal. When the matter came up for mention on 5/2/2021, Mr. Ngetich Prosecution counsel intimated to court that the Prosecution was amenable to accept Plea Bargaining and the court allowed the Plea Bargaining process to commence.

1.3. On 15/2/2021, the matter was mentioned in court and the accused person agreed to have signed a Plea Bargaining Agreement dated 12/2/2021 and the prosecution agreed to reduce the charge from Murder to the lesser offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

1.4. The above charge of Manslaughter was read over to the accused person in the Kiswahili language and she admitted the charge of manslaughter by unlawful killing of the deceased subject to the plea bargain. The facts of the case were also read out and recorded by the court and interpreted to the accused in Kiswahili language and she admitted the facts to be correct. The court then entered an unequivocal Plea of guilty to the charge of Manslaughter and convicted her accordingly.

2. BACKGROUND:

2.1. On the 14/12/2020, the deceased James Oyengo Obochi who was the husband to the accused returned home late after a drinking spree as was his norm and was served with dinner. After he had fed and while intoxicated, he picked a quarrel with the accused, demanding to be given possession of a title Deed to the land, which title Deed had been given to Truphena Ndonga Aswani (the accused person) by her father in-law, the deceased’s father, for reasons that the accused had cared for him well and also that the deceased who was irresponsible, could sell family land and render the family homeless.

2.2. The accused was trusted by her father in-law to protect family land from the deceased predator, as he had sold off his portion of land bequeathed to him by his late father.

2.3. In the process of demanding for the title deed from the accused, the deceased dashed into a corner of their bedroom, picked a panga and as he raised it to cut the accused, the accused held it and used it to cut the deceased severally, in self-defence. The deceased died upon which, out of fear, the accused pulled the deceased’s body and took it to a neighbour’s farm which was 200 metres away and covered it with grass then she returned to her house.

2.4. The following day, which was 15/12/2020, one Ishmael Awuor Obwaka who was taking his cattle to graze in the field, stumbled upon the deceased’s body so he went to the accused’s house to report to her of what he had found, as she was also the area village elder.

2.5. The accused person upon receiving the information, she accompanied Ishmael Awuor to the scene but pretended not to know what had transpired to the deceased. The accused and Ishmael Awuor then went and reported the discovery of the deceased’s body to Luanda Konyango Police Patrol Base and the Police Officers visited the scene and handed over investigations to Ugenya Department of Criminal Investigations.

3. PLAINTIFF’S CASE:

3.1. That the accused was a victim of domestic violence and that she nearby died from the frequent beatings administered on her by the now deceased husband.

3.2. That the accused needed counselling on trauma and be accorded a chance to care for her young son and an opportunity to reconcile with her in laws and clan members of the deceased.

3.3. That the area community leaders would welcome a non-custodial sentence.

4. DEFENDANT’S CASE:

4.1. That earlier on in the month of November on 6th November 2020, the deceased had assaulted the accused until she almost passed on and that even when she was assisted by a neighbour to Luanda Kongango Hospital, the deceased did not bother yet the accused was admitted in hospital. And that the deceased never visited her nor did he pay her hospital bills.

4.2. That prior to the fateful day, the deceased had threatened to kill the accused if she ever reported him to the police or sued him for the repeated assault.

4.3. That in killing her husband, she acted in self-defence and willingly surrendered to the police.

4.4. That she initially hid the body out of fear and that she was a victim of perpetual domestic violence being meted on her by her deceased husband evidenced by scars on her head; and

4.5. That she was a very remorseful respected village elder and had invested a lot in the deceased’s home.

5. ISSUES:

5.1. Whether the Accused unlawfully killed the deceased in self-defence?

5.2. What sentence does the accused deserve?

6. LAWS APPLICABLE:

6.1. The Penal Code Cap 63 (laws of Kenya)

6.2. Common law

7. ANALYSIS AND DETERMINANTION:

7.1. ISSUE ONE:

7.1.1. As to whether the Accused unlawfully killed the deceased in self-defence; yes, the Accused unlawfully killed the deceased in self-defence.

7.1.2. Reasoning:

7.1.2.1. Having considered the mitigation, the circumstances under which the murder was committed and the admission made by the accused, the Court came to a conclusion that she indeed killed her late husband in self-defence though from the detailed injuries in the post mortem report, and the fact that the deceased was intoxicated, the accused used excessive force in defending herself.

7.1.2.2. Reference was made to Section 17 of the Penal Code which subjects criminal responsibility for use of force in the defence of person or property to the principles of English Common Law, except where there are express provisions to the contrary in the Penal Code or any other Law in operation in Kenya.

7.1.2.3. Further, in resolving this issue, the Learned Judge referred to the common law position as regards the defence of self-defence as was articulated in Solomon Beckford -vs- The Queen which was cited in I.P Veronicah Gitahi & Another -vs- Republic [2017] e KLR [1987] 3 All ER 425, and in Ahmed Mohammed Omar & 5 Others v. Republic, Cr. App. No. 414 of 2012 that at Common law, the defence of self-defence allows one to use reasonable force to defend oneself, prevent attack of another person, and to defend their property.

7.1.2.4. Court also cited with approval the case of Beckford v R (supra), where it was held that if self-defence is raised as an issue in criminal trial, it must be disproved by the prosecution. That this is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful. In such cases, the prosecution is enjoined to prove that the violence used by the accused was unlawful.

7.1.2.5. Therefore, considering the domestic violence that the accused had undergone over the years, occasioned by her deceased husband, the deceased was vividly described as an irresponsible, violent, brutal and torturous human being who did not treat the accused with any dignity or respect at all. He had constantly butchered the accused from time to time and had never provided for the family but the accused persevered and neither took revenge nor deserted him for her own safety.

7.1.2.6. That from the accused’s description of how she was assaulted and tortured on 6/11/2020 culminating in her being admitted in hospital and nearly dying, the deceased neither paid her a visit in hospital nor apologized to her. He also did not pay her hospital bill but rather acted with impunity and was determined to continue torturing her until the unfortunate fateful night when he got “a dose of his own medicine.”

7.1.2.7. Further that in the course of the deceased raising the panga to cut the accused, there was unrebutted submission by the accused that she managed to snatch the panga from the deceased and cut him in self-defence and subsequently the deceased breathed his last.

7.1.2.8. That from the facts narrated by the Prosecution, the Probation Officer and the accused person in mitigation, the situation was that either the accused was to be killed or she be killed.

7.1.2.9. That in addition, there was unrebutted evidence by the prosecution as narrated in the facts of the case that the accused suffered from domestic violence. She however never left her husband and always hoped that he would change especially after bearing him a son.

7.1.2.10. That his other wives were said to have deserted him because of his violence towards them. More so the deceased used to beat up the accused in the presence of their children and even villagers whom she led, being their village elder.

7.1.2.11. Applying the subjective test and taking into account the particular circumstances of this case, Court was persuaded that the accused person acted in self-defence when she killed her deceased husband with a panga that he had purposed to use to cut her into pieces. That there was ample evidence that the accused person was attacked by the deceased who was armed and that in such circumstances, the only way out was for the accused person to engage the deceased.

7.2. ISSUE TWO:

7.2.1. As to what sentence the accused deserve, court determined that the deceased deserved a one-day non-custodial sentence.

7.2.2. Reasoning:

7.2.2.1. Relying on the case of Ambani -vs- Republic, where the High Court stated that a sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that the court should look at the facts and the circumstances of the case in their entirety before settling for any given sentence. and;

7.2.2.2. Considering the objectives of the Judiciary Sentencing Policy Guidelines, the accused deserved a non- custodial sentence to enable her to be counselled to recover from the traumatic experience that she had underwent prior to, during and after the unfortunate demise of her husband whom she loved and stuck with despite his HIV status yet she was HIV negative and bore him a son who was ten years old at the time.

7.2.2.3. Further that the accused had fostered the deceased’s children whose mothers had left the deceased due to his violence as thus she did not deserve to be punished harshly.

7.2.2.4. Consequently, the accused was given a non-custodial sentence of one-day imprisonment that was to last at the end of the court session.