Three men who were convicted of a vicious attack that resulted in the death of a 30-year-old man at Okeeke location in the Onyaluwili village in the Omusati region nearly four years ago, had their conviction and sentence overturned by the High Court.
On 20 September 2019, the Oshakati Regional Court convicted Shetunyenga Isaska, Shipingana Eelu and Kampolo Kampolo on a charge of murder, and subsequently sentenced them to 15 years imprisonment each.
However, acting judges Danie Small and David Munsu of the appeal court set aside the convictions of murder as well as the 15-year sentences.
They substituted these with a conviction
of culpable homicide, and sentenced the trio to serve 10-year imprisonment terms, of which three years were suspended for five years on condition that they are not convicted of culpable homicide or assault with the intent to do grievous bodily harm – resulting in a seven-year sentence for each man.
The court further ordered that the new sentences be ante-dated to 20 September 2019.
The court was of the opinion that
although Isaska and his co-accused had a common cause while perpetuating the assault, the act does not have to be causally linked to the death of the deceased.
“The intention to kill the deceased
cannot be said to have been proven by the State. The prosecutor did not attempt to establish that conscious or advertent negligence was present insofar as the accused foresaw the prohibited result but unreasonably decided that it will not ensue,” explained the judges.
The court furthermore found that the state only managed to prove an intent to assault the deceased with the intent of injuring him seriously. Thus, the Regional Court misdirected itself in convicting the group of murder.
At the time, the Regional Court had found Isaska and his co-accused guilty of intentionally assaulting Endjele Nambala by kicking him and punching him all over his body. They were said to have inflicted severe injuries, which resulted in Nambala’s death two days after the assault. The incident took place on 13 January 2017.
According to the post-mortem report, Nambala died as a result of acute bleeding in an area between the brain and surrounding membrane. The report states that the injury could have been caused by the head hitting the ground during a fall or by kicks. Furthermore, blood was found in his stomach, caused by injuries inflicted on his oesophagus. No external injuries were observed.
The men were seen assaulting Nambala by witnesses who took the stand during the trial. It was established that Nambala and the accused were intoxicated.
-mamakali@nepc.com.na