[2023] KEHC 25653 (KLR)

Republic v Baya (Criminal Case E025 of 2022) [2023] KEHC 25653 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25653 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case E025 of 2022

A. Ong’injo, J

November 16, 2023

Between

Republic

Prosecution

and

Hamisi Masha Baya

Accused

Judgment

Introduction 1. The accused Hamisi Masha Baya faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code.

2. Particulars of the offence are that on 19th day of August 2022 at Bombo Area in Kisauni Sub-County within Mombasa County murdered Clarence Safari Banzi.

3. The prosecution called 9 witnesses to support its case that the accused person committed the offence herein and he was placed on his defence.

Prosecution Case 4. PW1, Miriam Kazungu, said that she was a palm wine seller and that on 19. 8.2022, she was at home at 10. 00 pm and that she was seated with Mzee Banzi, the deceased herein when Masha, the accused, arrived without saying anything and slapped PW11. That PW11 was holding her phone and the accused grabbed it, broke it and threw it. That the accused was known to her as they were neighbours. That PW11 and the deceased asked the accused where he was taking PW11‘s phone and that the accused returned with a stick and used it to hit the deceased and when PW11 intervened, the accused hit PW11 on the head and leg with the same stick. That family members of the deceased went and took him to hospital.

5. PW11 testified that when the accused attacked them, she raised alarm and people went and apprehended him and that the police took him to Kiembeni Police Station. That PW11 went and reported at Kiembeni Police Station and was referred for treatment at a private hospital. She said that the deceased was taken to Mkunguni from where he was referred to Coast General Hospital. That the next day on 19. 8.2022, Banzi died in the morning while undergoing treatment. That the accused started behaving like he had mental issues but he was examined and found to be normal. PW11 identified the phone that the accused broke in court as well as the stick that the accused used to hit her and the deceased, treatment notes from the private hospital where she was treated, and the P3 Form issued at Kiembeni Police Station.

6. PW12, Michael Katana Chiwai, the elder brother of the deceased informed court that on 19. 8.2022 at about midnight to 1230 hrs, he was woken up by Emmanuel Chengo, a young man who worked with the deceased and told him Mzee Banzi had been beaten badly. That him and his brother Sammy Banzi proceeded to the home where the incident had occurred. PW12 said that on the way, they were told that Hamisi Masha had beaten their brother. That they saw the deceased standing and was making noise and calling for help. That a motorbike was used to take the deceased to hospital and that PW12 accompanied his brother to hospital in Mkunguni. PW12 said that they learnt that the suspect had been apprehended and that he was known to him. That the suspect had sold land to one Victor Zawadi Kirungi and that PW12 was a witness together with the deceased.

7. PW12 said that they were referred to Coast General Hospital as it appeared the deceased had internal injuries and needed an x-ray. That PW12 took his brother to Coast General Hospital at 5. 00 am where the deceased died while he was making payment for the x-ray. That the body of the deceased was taken to Kilifi Hospital Mortuary where the postmortem was done, PW12 identified the body, and that the deceased suffered injuries on the head. That when he went to his brother’s house, he found a copy of the sale agreement in which the accused sold the land. He positively identified the accused as the one in the dock.

8. PW13, Dr. Ruth Nyangi Walumbe, the Consultant Pathologist at Kilifi County Hospital testified that the body of the deceased was identified by Michael Katana Chai and Joseph Banzi on 29. 8.2022. She said that evidence of recent injuries was observed on the right occipital region which was 6 cm long. That internally, the respiratory, cardiovascular and genito-urinary systems were normal. That there was bleeding in the inner part of the scalp measuring 20x15 cm on the right side and there was depressed skull fracture. That in the brain, there was epidural hematoma which was below the skull on the surface of the brain, located on the back part of the brain to the middle part 16x10 cm. That on the left side of the brain, there was subdural hematoma located below the brain layer. PW13 formed the opinion that the cause of death was head injury due to blunt force trauma. She produced the Postmortem Report as Ex P5.

9. PW14, No. 110758 PC Teddy Tanui attached at Kiembeni Police Station said that on 20. 8.2022, he was on duty on patrol in Majaoni area when they got a phone call that there was someone who had caused a scuffle in Changala Macho. That they proceeded to the scene and found one person known as Masha whose hands and legs had been tied. That there was a woman who identified herself as Masha’s wife who requested that Masha be taken to Port Reitz Hospital which they did and that Masha was admitted. PW14 testified that they went back to the station and handed over duty and that while they were off duty, they received a phone call from the OCS who informed them that the person whom Masha had attacked in Bombo area had died while undergoing treatment. That the DCIO took over the matter and PW14 recorded his statement concerning what happened.

10. PW15, Emmanuel Chengo, testified that on August 19, 2022 at 10. 00 pm, he was in the house when he heard people screaming “Amemuua! Amemuua!” That he went out of the house and proceeded to where there was noise and found Clarence Banzi was bleeding. That Clarence was at a club belonging to PW11. That PW15 ran and called Michael, the deceased person’s brother and on return found the accused had been apprehended by members of the public. That the deceased was a mason and PW11 used to work with him. That PW15 was not aware of any differences between the accused and the deceased as they stay in different homes. PW15 identified Masha as the accused in the dock.

11. PW16, Joseph Mwagana Banzi, testified that on 20. 8.2022, he received a phone call at 6. 00 am from Samuel Banzi, his brother who informed him that his brother was beaten and injured at night. That they took him to Mkunguni Hospital but were referred to Coast General Hospital. PW16 said that they rushed to Coast General Hospital where they found his brother was unconscious at the emergency. That PW16 was given a bill to pay so that an x-ray of the head could be done. That in the course of looking for money, they went to Mpesa and while there another brother followed to tell them Clarence had died and there was no need of paying the money. PW16 said that they paid the bill and took the body to Kilifi Hospital Mortuary. That on 29. 8.2022, postmortem was done and on 3. 9.2022 the deceased was buried. PW16 said he was not aware of any differences between his late brother and the accused.

12. PW17, Samuel Banzi Jabiri, testified that the deceased was his elder brother and that on 19. 8.2022 at about 11. 00 pm, he was asleep when he received a phone call from PW12 who informed him to rush to the deceased’s home immediately. That he went and found a young man commonly known in the village as Katoi who told them that their brother had been involved in an accident. That when he went to the scene, he found his brother’s whole body was soaked in blood. That at the scene, there was another person who had been tied with ropes and he was told the person had injured his brother. PW17 testified that he took his brother to Utange Dispensary for first aid and were then referred to Coast General Hospital. That the deceased died while they were queuing to pay. PW17 identified the accused in court as the person found tied with ropes at the scene.

13. PW18, Jeremia Tsuma Machahe, the Chief of Bamburi Location testified that on 20. 8.2022 at night, he received a phone call by Community Policing that in Bombo area, there was someone known as Masha who had assaulted and injured Banzi. That PW18 made a phone call to the OCS Kiembeni, Chief Inspector Kibet, to send officers to the scene. PW18 testified that he learnt police officers went to the scene and found the assailant and Banzi was rushed to hospital. That the following day at around 10. 00 am when he went to the scene, he got information that the deceased had succumbed to injuries inflicted on him by the Masha.

14. PW18 said that he reported to the OCS Kiembeni and he was informed that they were with Masha and headed to Port Reitz. That the OCS told him to inquire if the murder weapon was recovered and that members of the public told PW18 that the accused had used fencing posts to inflict injuries on the deceased. The broken pieces of the posts were handed over to PW18 and that they had blood stains and that he took them to Kiembeni Police Station. That PW18 then recorded his statement.

15. PW19, No. 93008 P. C. Noah Sangut, the investigating officer in the case said that in August 2022, he was at DCI Kisauni and that on 24. 8.2022, he was instructed by the DCIO that there was an incident which had occurred at Kiembeni Bombo area on 19. 8.2022 and required PW19 to record statements of the witnesses in the case. That the matter had been reported at Kiembeni Police Station and one suspect taken to Port Reitz Mental Hospital over the same issue. That PW19 was informed the suspect had assaulted and injured the deceased who succumbed to the injuries while undergoing treatment.

16. PW19 said that Mariam Kazungu and Chengo recorded their statements and that upon interrogation, Mariam said that on 19. 8.2022 at around 10. 00 pm, she was at her house where she sells mnazi with the deceased Clarence Banzi who was taking mnazi. That she said the accused stormed into her compound and without reasonable cause snatched her mobile phone and broke it into 2 pieces. That PW19 was shown a piece of the broken mobile phone and that Mariam was unable to trace the other part of the phone. That when the accused and Mariam were struggling over the phone, the deceased rose from where he was seated and confronted the accused on why he had attacked Mariam.

17. PW19 testified that Mariam said the accused left hurriedly and went back to his house which is nearby and within no time returned with a piece of log. That the accused went straight to where the deceased was seated and hit him at the back of the head with the piece of log. That he hit the deceased several times and Mariam screamed and called for help. That when Mariam raised alarm, the accused hit her on the forehead and left leg and she sustained injuries. That neighbours responded to the distress call and Emmanuel Chengo was the first at the scene. That when he saw the deceased lying down bleeding, he told Mariam that he knew the brother of the deceased Michael Chiwaya. That Emmanuel called Michael who went to the scene and found the deceased lying down unconscious and the accused’s hands and legs had been tied. That Michael called for a boda boda which took the diseased to Mkunguni Dispensary within Utange area where first aid was done and they were referred to Coast General Hospital. That while at Coast General Hospital, the deceased passed on while they were in the process of making payment.

18. PW19 informed court that after recording statements on 29. 8.2022, Michael Katana and Joseph Banzi accompanied him to Kilifi County Hospital for purposes of witnessing postmortem. PW19 said that he went to Port Reitz Hospital and found the accused was still under medication. That the doctor from Port Reitz called PW19 and informed him that the report was ready and he went and arrested the accused on 16. 9.2022 and brought him to court on 19. 9.2022 after compiling the investigations file to answer to the charges of murder. PW19 produced the piece of broken phone as Ex P1 and the pieces of broken fencing posts as Ex P2. That the log post had been broken into 3 pieces and there was a nail on one of the pieces which had faded blood stains. That no analysis was done on the broken pieces of wood. PW19 said that the person who assaulted the deceased was known as Hamisi Masha Baya whom he identified as the accused in the dock.

Defence Case 19. The accused, Hamisi Masha Baya gave sworn evidence that on 19. 8.2022, he left home at 6. 00 am to go to Kongowea Market to buy stuff on wholesale for his Kiosk. He said that he usually opened his business from 9. 00 am to 6. 00 pm and that Mariam Kazungu Maitha is his neighbour in Bombo. That it is not true he had a relationship with Mariam and that it is not true he injured her and took her phone. He said that he found himself at a place not known to him and when he asked the watchmen, he was told it was Port Reitz. That when the accused asked how he ended up there, he was told to calm down as the people who took him there would show up. The accused informed court that while at Port Reitz, he was given uniform and put on treatment but he was not aware why he was being treated. That he was later discharged and brought to court.

20. The accused said that he has never caused injuries to anyone. The accused said that he does not sell land as he has no title deed and that his family has no land. He said that Clarence was not known to him, that he does not know his family members and that he had no differences with him. That when he found himself at Port Reitz, his civilian clothes did not have blood stains and when he was discharged, the clothes were given to him and he wore them up to the time he went to Shimo La Tewa. He said he has never committed a crime and no reports have been made against him even to the village elder.

Analysis and Determination 21. In consideration of the evidence of 9 prosecution witnesses and in consideration of the accused person’s sworn statement, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal CodeChapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.

22. Section 203 of the Penal CodeChapter 63 of the Laws of Kenya under which the accused persons were charged provides as follows: -‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’

23. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -i.That the deceased died;ii.That the death was caused by an unlawful act or omission;iii.That the accused person directly or indirectly participated in the commission of the alleged offence; andiv.That there was malice aforethought.

Death of the deceased 24. PW12, PW16 and PW17 were with their brother, the deceased at Coast General Hospital where the deceased died while they were making payment for an x-ray. The body of the deceased was taken to Kilifi Hospital Mortuary where PW12 and PW17 identified the body for postmortem and PW13, Dr. Ruth Nyangi Walumbe conducted the postmortem and established the cause of death to be head injury due to blunt force trauma. Death of the deceased is therefore not disputed.

Death was caused by an unlawful act or omission 25. When PW17 went to the scene, he found his brother’s whole body was soaked in blood, and PW11 said that the deceased had been hit with a stick on the head. PW18 recovered the broken pieces of fencing posts that inflicted injuries on the deceased and the said fencing posts which had blood stains were produced in court by PW19 as Ex P2.

26. PW13, Dr. Ruth Nyangi Walumbe, at Kilifi County Hospital who conducted the postmortem said that evidence of recent injuries was observed on the right occipital region which was 6 cm long, there was bleeding in the inner part of the scalp measuring 20x15 cm on the right side, there was depressed skull fracture, there was epidural hematoma which was below the skull on the surface of the brain, and there was subdural hematoma located below the brain layer.

27. According to the evidence of PW11 who saw the deceased being hit, PW17 who found the deceased at the scene in a critical condition and took him to hospital, PW18 who recovered the posts used in hitting the deceased and the evidence of PW19 the investigating officer as well as PW13 the doctor who conducted the postmortem, this court finds that the injuries sustained by the deceased were not self-inflicted or accidental. The cause of death therefore was through an unlawful act.

Participation of the accused in the commission of the alleged offence 28. PW11 witnessed the accused hitting the deceased on the head and she raised alarm leading to apprehension of the accused by members of the public. PW15 and PW17 who were at the scene saw the accused having been apprehended, and PW14 PC Teddy Tanui from Kiembeni Police Station went and took the accused to Port Reitz Hospital on allegation of mental incapacitation which the doctor confirmed not to be true. This court therefore finds that the accused person committed the unlawful act that caused the death of the deceased.

Malice aforethought 29. Section 206 of the Penal Code defines malice aforethought as follows: -“Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: -(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)knowledge that the act or omission causing death will probably cause the death or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)an intent to commit a felony;(d)an intention by act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.

30. On the element of malice aforethought in respect to Section 206 of thePenal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi v R (2013) eKLR: -“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”

31. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R(CACRA No. 32 of 1990) where the Court held:“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”

32. The accused and PW11 were struggling over a phone, in the presence of the deceased and when the deceased rose from where he was seated and confronted him, the accused left and returned with a piece of log and went straight to where the deceased was seated and hit him on the back of the head with the piece of log. The accused hit the deceased several times and when PW11 raised alarm, the accused hit her on the forehead and left leg and she sustained injuries. When the neighbours and family of the deceased responded to the alarm, they found the deceased lying down bleeding. The log used, the vital part of the body hit which is the head and the many times which the accused hit the deceased shows malice on the part of the accused.

33. In conclusion, this court finds that the prosecution has proved its case beyond reasonable doubt. The accused person is found guilty of the offence of murder and convicted accordingly pursuant to Section 322 of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 16TH DAY OF NOVEMBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the StateMs. Memia Advocate for the AccusedAccused person present in personHON. LADY JUSTICE A. ONG’INJOJUDGEMr. Ngiri: No previous records.Ms. Memia Advocate: I pray for a date to mitigate on behalf of the accused after being supplied with a copy of pre-sentence report and judgment.Order: Mention on 30. 11. 2023 for Victim Impact Statement, presentence report, mitigation and sentence.HON. LADY JUSTICE A. ONG’INJOJUDGE11. 2023