Court sets free Kisumu man who killed wife’s lover
Despite having warned EMO repeatedly to keep off his wife, COO disclosed to the court, the offender continued with the love relationship.
On the evening of December 6, 2022, COO walked into his house in Manyatta Estate, Kisumu County, and caught his wife in the act with a neighbour.
Seething with rage, COO attacked the man identified as EMO with a panga and killed him.
COO would later sum up the intensity of anger aroused in him at that moment by stating that he did not know what happened after he caught the deceased in his matrimonial bed. He told the court that all he could remember was surrendering himself to the police afterwards.
Despite having warned EMO repeatedly to keep off his wife, COO disclosed to the court, the offender continued with the love relationship.
The killing saw COO imprisoned for 18 months by Kisumu High Court Judge Roselyne Aburili, who was persuaded by the law of insanity.
COO is a boda boda rider while EMO was a farmhand working in the neighbourhood.
In his testimony to the court, COO narrated how on the material day, he went to the hospital to take milk to his ailing child, only to find the minor alone without the mother. Upon inquiring from other patients in the ward, he was told that his wife had left.
He called her on the phone to establish her whereabouts and she informed him that she had returned to the house to take care of their other child whom she claimed was also unwell.
Sick child
“The accused stayed in the hospital with the sick child until 6pm when he decided to go to the house. It was the accused person’s testimony that he found the deceased and his wife having sex. He got angry and found himself at the police station at 8pm though he could not recall what he told the police,” said Justice Aburili in her judgement.
COO testified that he did not intend to kill EMO.
Following the attack, EMO was rushed to Jaramogi Oginga Odinga Teaching and Referral Hospital by a taxi driver, also a neighbour, but unfortunately, he succumbed to his injuries.
According to Dr Lucy Ombok who carried out the autopsy, EMO died as a result of severe bleeding caused by several deep cuts on the body, especially around the neck.
The defence counsel relied on Proverbs 6:32-35: “Whoever commits adultery with a woman lacks understanding. He who does so destroys his own soul. Wounds and dishonour he will get. And his reproach will not be wiped away. For jealousy is a husband’s fury; therefore he will not spare in the day of vengeance. He will accept no recompense, nor will he be appeased though you give many gifts.”
Interestingly not even EMO’s wife came to testify in favour of her husband. According to the judge, the investigating officer informed the court that she refused to testify because she had previously warned him against the affair.
All eight prosecution witnesses testified that the reason why COO attacked EMO was because he found him with his wife.
“He was a caring man, as is evident from the testimony where he was taking part in the care of his ailing child by staying overnight at the hospital,” read part of the judgment.
In a compromising situation
The court felt that the evidence presented showed that the accused had caught EMO several times in a compromising position with his wife and warned him to stay away from her.
Maybe this last instance that he caught EMO and his wife in his own house, the judge said, may have pushed him over the edge.
“I am satisfied that the accused person unlawfully killed the deceased in the heat of passion having found him having sex with his wife who had abandoned a sick child in hospital. I find and hold that malice aforethought was not proven beyond a reasonable doubt, despite the serious multiple injuries inflicted on the deceased using a panga,” said Justice Aburili, adding that the accused put forth the case that he was temporarily insane at the time he committed the offence.
She based her ruling on the notion that persons who cannot appreciate the consequences of their actions should not be punished if those actions happen to be criminal acts.
“Section 12 of the Penal Code recognises that insanity will only be a defence if it is proved that at the time of the commission of the offence charged, the accused person, by reason of unsoundness of mind, was either incapable of knowing that it was wrong or contrary to law,” said the judge.
She added: “But whereas murder was not on his mind, he nonetheless unlawfully killed the deceased upon being deprived of self-control which induced him to commit the offence. He was not justified to take away life, but to the courts, that was now water under the bridge.”
The court found COO not guilty of murder but convicted him of manslaughter and sentenced him to serve 18 months in prison.
And because he had been in custody from December 6, 2022, when he surrendered himself to the police, the court set him free.
