Man who killed fellow reveller in chang'aa den escapes death row

Lady luck smiled on a Kakamega man who killed another using a stone during a chang'aa drinking spree after an appellate court vacated his death conviction and instead gave him 25 years.

Court papers show that at 9:30am on April 20, 2011, Lossi Wambulwa Wanema together with Henry Silungai Kaskon, who would become his victim, went to a neighbour to buy the illicit liquor.

At the drinking den, a quarrel broke out between them “after the appellant [Wanema] accused the deceased [Kaskon] of being proud because of the money he had received after disposing land.”

The comment elicited anger in Wanema, making him to dash out of the house and return carrying a sharp stone which he used to hit Kaskon on the right side of the head near the ear.

With Kaskon profusely bleeding, Wanema took to his heels, fleeing the scene.

Kaskon was taken through various health facilities before landing at Moi Teaching and Referral Hospital in Eldoret where he succumbed to the injury two days later.

A post-mortem conducted on  the deceased by Dr David Chumba revealed a fracture on the right palatal wall with massive brain haemorrhage. The pathologist formed that opinion that the deceased had died from a blunt head trauma and brain haemorrhage.

In his defence, Wanema denied being with Kaskon on the material day or taking alcohol at the home of the neighbour, claiming he was away at Mumias picking molasses for his employer since he worked as a turn boy.

The High Court dismissed his alibi, finding that the prosecution witnesses’ story was consistent and put the responsibility on his shoulders.

The court also ruled that the defense of intoxication was not available to the appellant because it was a self-induced intoxication. He was convicted for murder and sent on death row.

On appeal, he complained that the judge convicted him without considering that he was drunk at the time of the offense, and that malice a forethought was not established.

He also contended that “the judge failed to take note of the variance between the information of the charge and the evidence tendered…”

He rallied against the death sentence, citing the 2017 Supreme Court decision that declared its mandatory nature unlawful. He asked the court to quash his sentence and refer the matter back to the trial court for sentence re-hearing.

The prosecution rebutted that Wanema could not claim the defense of intoxication on appeal yet he denied being drunk or ever taking alcohol at the trial stage.

They said “….that according to the evidence on record, the appellant was not intoxicated and that he knew what he was doing.”

“Further, that the actions of the appellant amounted to malice aforethought as he had sufficient time to cool off his anger.”

But the court gave him more than he sought.

The three judge-bench sided with the convict, lifting his death sentence. It also varied his sentence instead of his request to have it transmitted back to the High Court for re-sentencing hearing.

“Even though the appellant prays that this court remits the case back to the trial court for sentencing proceedings, it is our view that although remittance of the matter to the trial court is indeed one of the orders this court can make, this court has the power to vary the sentence as passed by the trial court,” the court said.

This will avoid the unnecessary outcome of keeping the appellant in the court system longer than is necessary, it added.

The court noted that the appellant was not admitted to bail or bond and was hence in custody for about five years before being convicted and sentenced. Since his sentencing, he had served about six years and eight months.

“Cumulatively, the appellant has been in custody for approximately 11 years and eight months. We have taken all these factors into account including the fact that the appellant only hit the deceased once.”

On these grounds, the the death sentence was quashed and substituted with a sentence of 25 years imprisonment.