R. v. Simoni Crim. Sass. 27-A-71; 11/12/71; Kwikima Ag. J.

R. v. Simoni Crim. Sass. 27-A-71; 11/12/71; Kwikima Ag. J.

The accused was charged with the murder of his father. He pleaded “not guilty”. The prosecution could not bring forward evidence of any eye witness to the act of killing. They, however, called no less that five witnesses, four of whom were related to the accused and his late father, who attested that the accused had admitted the killing of his father to them. The doctor who examined the body of the deceased said that there was a head wound caused by a sharp instrument which occasioned bleeding in the brain-intracerebral haemorrhage. The postmortem examination performed on 10/12/70 revealed that death had occurred within 24 hours of the examination. This was corroborated by the five witnesses to whom the accused admitted to have killed his father in that they all said that they saw the freshly stained body on the evening of 9/12/70. The evidence of the five witnesses established that the accused had led a crowd of the assembled villages to the body after confessing to the act. At the time he was carrying a blood-stained axe which was seized from him after he had shown his unwillingness to surrender it when he was called upon to do so. The accused had also made an extra-judicial statement admitting the act. In his defence he retracted this statement.

            Held: (1) “There is no evidence that the accused was induced to admit or that pressure was brought to bear on him. The admission is therefore admissible, following the case of Shsrifaali and Anor v. R. (1955) 22 E.A.C.A. 379”. (2)”The only question to consider is whether malice aforethought has been proved or not. The court must take into account the fact that he accused used an axe, that it was used in a very deliberate manner and that the blow was aimed at the head. Such have been held to be the salient considerations in R. v. Tubere Ochen (1945) 12 E.A.C.A. 63. I am certain in my mind, and both the gentlemen assessors agree with me that the accused killed his father and the use of the axe to inflict the fatal blow on the forehead could be evidence that he intended to kill his father. There is evidence that accused was angry at his father for having removed the cattle from his (accused’s) house. So angry was the accused that he did not feel content to kill the deceased only. He went further to kill and destroys the cattle. It is little wonder that the accused has offered no defence in his unsworn evidence. He does not explain why all the witnesses should tell lies against him. It has been held that to strike a person on the head with a sharp instrument like a spear, an axe or an arrow is a manifestation of malice aforethought (R. v. Gwogere Sinyangwira (1953) 2E.A.C.A. 133). Judging from the circumstances of this case, and the evidence as a whole, I am left in some doubt the accused killed his father with malice aforethought. There is evidence given by Daniel that the deceased was looking for his son just before he

Died. The deceased is reported to have been very angry when doing so. When the deceased at last saw accused, he could have started a fight during which he the accused could have struck the fatal blow. With this possibility in mind, I am left in some doubt whether the accused killed his father with malice aforethought, the deceased must have been angry for the loss of his goat and the possibility of his acting violently on seeing his son cannot be ruled out completely. It is a cardinal rule of criminal law that any doubt which the court may have should benefit the accused. (3) “The evidence before me being what it is, I am left in some doubt whether the prosecution have proved malice afore-thought on the part of the accused. I would therefore find accused not guilty of murder. In view of the overwhelming evidence that he killed his father, I would find him guilty and convict him of manslaughter.”