•Judge says the prosecution failed to prove murder charge beyond reasonable doubt
•The victim had complained that the assailant disturbed his sleep by chewing miraa
A Marsabit herdsman will serve a jail term for killing a colleague who had complained of his miraa-chewing habit.
Abu Ali slashed Wario Halake on the head on the night of March 4-5, last year. The two lived together, herding Abdul Rahaman's cattle and those of his son Gedo Guyo.
Justice S. Chitembwe found him guilty of manslaughter after the prosecution failed to prove murder charge beyond reasonable doubt. The judge found that Ali had no malice aforethought when he committed the offence.
“I am satisfied that the cause of death was as a result of the injuries he sustained after he was assaulted and not the injuries sustained during the accident at Makuyu (as he was being taken to Kenyatta National Hospital in an ambulance). I am further satisfied that it is the accused who inflicted the fatal injuries,” he said.
Chitembwe said the killing was committed in circumstances which qualify the offence to be that of manslaughter.
“The upshot is that the accused is not found guilty of murder as charged. The accused is however found guilty of manslaughter."
The prosecution had seven witnesses, among them Rahaman, who said a neighbour informed him of the incident on March 5, 2018.
He said he took an ambulance to the scene and found Halake wrapped in a yellow sheet of paper. The assailant had escaped.
Halake had a long cut on the left side of the head. He was taken to Sololo Mission Hospital from where he was referred to Marsabit General Hospital. He did not accompany him to the hospital and instead went to report the attack to the police.
Ali had worked for him for two years while the accused had been his worker for three months.
Guyo was also informed of the attack on March 5 and that Halake was in critical condition. He and his father went to the scene and found the deceased unconscious. Police later called to say that Halaka had died on the way to hospital. They also said the accused had surrendered to them.
Ali, the two witnesses said, had complained that the accused disturbed his sleep by chewing miraa. He wanted to quit but Rahaman dissuaded him and promised to talk to the accused.
Pathologist John Njau said the deceased had been cut with a panga. He said the death was not a result of the accident at Makuyu.
The body had an admission number and the clothes were bloodstained. Njau said the facial lacerations had been stitched. The body had multiple needle puncture marks for infusing fluids.
The left facial artery had been severed, he said, adding that there were deep lacerations on the tongue. The left temporal bone skull and jaw bone were fractured, the pathologist said.
His opinion was that Ali died of initial injuries, not as a result of the accident.
Judgment will be in due course.