[1997] KEHC 18 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Criminal Case 49 of 1995

REPUBLIC…………………....………..………………..PROSECUTOR

VERSUS

CHARO NZAI KATANA.......................... …………………….ACCUSED

JUDGMENT

CHARO NZAI KATANA, (the accused) faces a charge of murdercontrary to Section 203 and 204 of the Penal Code. It was allegedthat on 23. 05. 1994 at Maduguni Village in Gada location withinKilifi District of the Coast Province he murdered two personsKAHINDI KATANA MANGI and CHENDA CHARO RANDU.

In order to discharge its statutory duty of proving the saidcharge and particulars of the offence beyond reasonable doubt, theprosecution called 10 witnesses. These may be loosely grouped intothree:

1) Those who were involved in or witnessed the incident:

These were:

PW1: - KITSAO BAYA NYAWA (KITSAO)

PW2 - SIMON KITSAO NGALA (NGALA)

2PW3 - SAFARI KABADU MAZARAPWE (SAFARI)PW7 - NGARAMA KATANA NGUNG'OMBE (NGARAMA)

2) Those who investigated the incident:PW5 - JOSEPH ZIRO NYANJE (JOSEPH)

PW6 - PC OBED SAMUEL MULUNGA (PC MULUNGA)PW8 - IP WAFULA KERE (IP WAFULA)

3) Those who filed reports:

PW9 - DR MATHIAS KAI (DR KAI)PW10- GEORGE OPELO OGUTU (OGUTU)

Not included in those groups was PW4, KATANA MANGI BOKIRA, the70 year-old father of the deceased, KAHINDI KATANA. When he gaveevidence in the witness box, he looked confused and incoherent. He was not present when the incident occured and his evidence mayappropriately be dismissed as hearsay and therefore inadmissible.That is, save for the detail that Kahindi Katana was his son andthat he died.

Qualification may also be made on the evidence of one otherwitness before his evidence is examined in detail. That is theevidence of PW3 SAFARI. This witness was declared hostile by theProsecution with leave of the court. That is because the evidencehe gave on oath before the court was inconsistent with thestatement, not on oath, given to the police at the investigationstage. The Prosecution then proceeded to cross examine the witnessto show that he was unreliable. The assessors were accordinglydirected on the effect of such procedure, that although the evidence is admissible and can be considered, its weight or valueto be attached to it is negligible and at times worthless. If itwas the only evidence, no finding of guilt can be based on it sincethe unreliability of the witness must itself introduce an elementof reasonable doubt. They were also directed that it was possiblefor them to believe the hostile witness to have been truthful insome part of his evidence if he was consistent in that part and ifit can be separated from the rest of his evidence which isinconsistent. The evidence of PW3 shall therefore be considered inthat context.

On the afternoon of 23. 5.1994, the Prosecution witnesses inthe first group were among many villagers who had gone to attendthe funeral of another villager at Manduguni village. The deceasedthere was one CHENGO MWANYALE, the granfather of the accused. Thefuneral started at about 1 p.m. and ended at about 4. 30 pm. As isthe tradition in this area after funerals, the villagers startedlooking for traditional liquor or Palm wine, commonly known as"MNAZI" to drink. No food is normally served in funerals in thearea and none was served in this particlar funeral.

At about "the time the funeral was ending, PW7, Ngarama, aPalm wine seller was passing by transporting a 50-litre jerricanfull of Mnazi for sale at Malindi on his bicycle. Many people atthe funeral stopped him to buy Mnazi from him, but he did not haveany bottles or containers to sell from. So the people brought their own and he started selling the Mnazi to them. He could notremember how many people bought. But he remembered one group thatbought and sat nearby to drink - about 10 yards away. He joinedthem later and also drunk with them.

At first it was a group of four people who bought their Mnaziin a 5-litre jerry can. Among the four were PWI (KITSAO), PW3Safari and one of the deceased persons, Kahindi Katana. They hadno way of sharing out the' Mnazi from the container since they had no glasses or cups. But traditionally they use a small cup-likecontainer known as "MBOKO" which only PW2 Ngala had. Ngala hadbought his own four bottles of the same Mnazi and he, together withother four villagers joined the group of PWI, Kitsao. It seemsthat there were two women in the group who were sitting on the sidebut sharing the same Mnazi from the same Mboko. One of them wasCHENDA CHARO RANDU, the second deceased. So that , there was nowa group of eight villagers, excluding the Mnazi seller who werepartaking of this drink and sharing it from one Mboko. About halfan hour later, that is about 5 p.m. the group had cleared about half the Mnazi in the 5-litre jerrycan. The seller PW7, Ngaramawas also about to finish selling from the 50-litre jerycan when theaccused arrived with two empty bottles and bought his own Mnazi.He did not have a Mboko either. He went and sat behind PWI, Kitsaofacing the same direction.

There is consistent evidence that the accused brought the two bottles and bought Mnazi from PW7, Ngarama. It is not clear fromthe prosecution witnesses however, what the description of thosebottles was.

PWI Kitsao said one was "white"/ the other "black". He wasnot shown any bottle to identify in court. PW2, Ngala said one was"white" the other "Green". PW7, Ngarama said one was "white" theother "black". Shown a "Green" bottle that was produced as anexhibit by the prosecution as the "Black" bottle he referred to,this witness denied that it was the bottle that the accused had.

What followed after the accused is said to have bought hisMnazi and sat with or near the group of 8 or 9 other drinkers ismost crucial and the assessors were directed to consider thatevidence carefully. For it was part of the evidence relied on bythe Prosecution to establish that the accused had maliceaforethought and is the one who caused the death of two people inthat group.

The Prosecution set out to prove that when the accused joinedthe group, he asked for a "Mboko" and proceeded to serve themourners from one of the bottles while he himself tasted or dranknothing from that bottle but strictly drank from the second bottle.It was soon after the mourners were served with Mnazi from thatbottle that they became sick and two of them died. The inferenceis that the accused knew that the bottle contained poisoned Mnaziand he served the mourners with the intention of killing them.

This was basically the evidence of PW2 - Ngala. He was clearabout the Green bottle which was produced in court as an exhibit.He gave a graphic account of how the accused would personally pourout a Mboko of Mnazi from that green bottle and in turn give toeach of the persons in the group who would drink the whole Mbokowhile he himself, the accused, was only swigging from the whitebottle. Within no time - about 5 minutes - everyone of the 9 peoplewho were given the Mnazi started vomiting and having abdominalpains and diarrhoea. Kahindi Katana who was the first to drink itdied at the bus stage before he could be taken to hospital. ChendaCharo Randu died at the Hospital undergoing treatment. She wasNgala's uncle's daughter while the accused was Ngala's uncle's son.They were cousins. Ngala himself did not drink the whole Mbokothat he says he was given by the accused. He only tasted it andfound the Mnazi bitter. Ngala was so insistent that his account ofevents was the correct version that he would not accept that anyoneelse would give a different account. He called such a person aliar. But he was also called a liar by that person who also gavean account of what he insisted was the true version of events.That was PW1, KITSAO.

Kitsao testified that when the accused arrived with his twobottles* of Mnazi, the Mnazi from the black bottle was poured into5- litre jerrycan where everybody was drinking from. It was mixedup with the Mnazi already remaining in the jerrycan. The accusedhowever continued to drink from the white bottle. The person who poured the Mnazi from the black bottle into the jerrycan was SafariKabado, PW3. It was also PW3 who was pouring out the Mnazi fromthe jerrycan into the Mboko and giving it out for drinking. He waspositive that the accused never at any time poured out any drinkinto the Mboko to give it to any of the mourners including him.The police had recorded in his statement that he had said it wasthe accused who poured out the Mnazi from the black bottle and gaveit to each one of the eight people who fell sick and two of themdied. He disowned those parts of the statement ascribing suchevidence to him. He was not declared hostile however, and hisevidence on oath must have been presented as truthful. On thisscore the evidence of PW1 and PW2 are contradictory. Thatcontradiction was not resolved by PW7, Ngarama.

In one breath, Ngarama said the accused borrowed a Mboko andstarted pouring from the black bottle and gave the others while hedrank from the white bottle. He, the witness, was then called bySafari PW3, and asked why the Mnazi was tasting different. He wasgiven a Mboko which he tasted and started sweating and shaking. Inanother breath he said it was Safari Kabado who had been given theMboko to serve the Mnazi. He was not serving from the bottle butfrom the jerry can. It was Safari who complained that there was a problem with the Mboko. In the end," it was not possible for PW7, Ngarama, to state positively or at all whether the "poison" was in the Mboko or in the bottle. He told both the police and theAssistant chief that he suspected Ngala's Mboko and accused's bottle to have contained poison.

This was the same theory that was advanced by the witness whowas declared hostile by the Prosecution, P.W.3. He said on oaththat he had suspected the Mboko which belonged to Simeon NgalaP.W.2. That is because even before the accused came with his twobottles, Ngala had poured out some Mnazi in his Mboko, given it tothe deceased, Kahindi Katana, and then to the two women who weresitting separately, one of whom died. He saw nothing wrong withthe accused having requested to join their company to share theirMboko since this is the custom. He testified that he poured outsome of the Mnazi from the black bottle for the accused to drinkand the accused did, before the Mnazi was poured into the jerry can.Safari confirmed that he was the one who was pouring out the Mnazifrom the jeryy can and serving the others. He disowned some parts of his statement to the police, saying that he had been forced tosign it under threats. He was not shown any bottle to identify in court.

That is as far as the eye-witness account of events went.

The assessors were also directed to consider carefully themanner of arrest of the accused and the investigations that werecarried out subsequent to the arrest.

The arrest was carried out by the Assistant Chief of the area,P.W.5 Joseph. He said, when he arrived at the funeral he foundsome people being carried away as they could not help themselves.On enquiry he was told by P.W.2 Ngala, that they had drunk Mnazifrom a green bottle which the accused had. Joseph then started looking for the accused and found him outside his house, verydrunk. He was not responding to his questions. He went into theaccused's house and took the green bottle which was said to havebeen used to serve the poisonous Mnazi. He then said, the accusedstill had the bottle in his hands when he found him outside hishouse. He took the bottle and smelt it. It smelt of alcohol(Mnazi) and he took it for further investigations. He wentstraight to the police where the accused was rearrested and hehanded over the bottle at 7 p.m. It had taken him fifteen minutesto go to the accused home from the funeral.

Other eye witness account of how the accused was arrestedhowever, is different. P.W.2, Ngala was positive that the accusedwas not arrested at his home but was found at the scene immediatelypeople became sick. The Assistant Chief, he said, found him there.He, Ngala, was indeed the one who told the Assistant Chief thesuspected source of the problem. The Assistant Chief then took thebottle there and then. It still had a little wine. The accused had not finished drinking from his white bottle either, nor was the Mnazi in the jerrycan or the 50 litre container of Ngarama,finished when the Assistant chief came. He came when people were vomiting. P.W.7, Ngarama, also, confirmed that when the AssistantChief came, the 5 litre jerry can was still there and the ' black'bottle ,was still with the accused. He was positive that theaccused was arrested on the spot and the bottle taken by theAssistant Chief, adding, if the Assistant Chief was not there, theaccused would have been beaten by members of the public. He said the Assistant Chief took both the "white" and "black" bottlesfrom the accused.

The "Green" bottle taken by the Assistant Chief was handedover to the Investigating Officer P.W.6, PC Mulunga at MalindiPolice Station. It was in turn handed over to The GovernmentChemist for Chemical analysis and report. The analysis was done byP.W.10, Ogutu who filed a report confirming that the Greenbottle had no traces of pesticide or any other poison. But thesame witness P.W.10, also carried out chemical analysis on the blood, liver, kidney and stomach contents of the two deceasedpersons. He detected orqanoChlorine Pesticide in the stomachcontents only. This is a chemical used as a pesticide which haschlorine content which, if taken by human beings above minimumlevel can kill. It is thus poisonous.

That poison ended up in the stomach contents somehow and itwas for the prosecution to prove beyond reasonable doubt that thesource of the poison was the Green bottle that was exhibited incourt. In considering whether such proof was availed, theassessors were directed to consider the evidence available onrecord that there were other containers which had Mnazi that daybut none of them was subjected: to investigations.

There was the large container where all the Mnazi sold at thefuneral' home came from. There was the 5 litre jerry can which wasused by the group of 9 mourners including the deceased persons andthe Mnazi seller. There was the Mboko which was commonly used bythe mourners in that group. And there were four bottles which P.W.2 Ngala said he bought and poured the contents into the same 5litre jerry can before the accused came later to join them. None ofthese containers was available for examination and investigation toeliminate any possible connection with the poison detected in thestomach contents of the two deceased.

The accused gave a statement to P.W8 IP Wafula and alsotestified in his defence. He denied knowledge of the poison orthat he intentionally or at all administered it to the deceasedpersons. He admitted however that he met the Mnazi seller at thegate of the funeral home and on being told that there were nocontainers to sell the Mnazi he rushed to his house to collectcontainers and came back with two bottles - one green and one clear- which were then filled up with Mnazi. Contrary to what some ofthe witnesses said that he joined the group of 9 drinkers, he saidhe only sat nearby and drank his two bottles because the people inthe group were not his age mates. On finishing them he startedgoing home. But before he reached there, some people came runningafter him and the Assistant Chief took the bottles he had and smeltthem. He was told he had poisoned people and was immediatelyarrested and taken to the police with bottles. He denied havingpoisoned any person or having any reason or motive for so doing.

That the two persons alleged to have been murdered didactually die, was proved beyond doubt through oral evidence of theprosecution witnesses and through the evidence of P.W.9 Dr Kai.He performed the Post Mortem on the two bodies and confirmed thatthey had died of poisoning. He could not however determine the exact nature of the poisoning. This was done by P.W.10 Ogutu whofound Organ chlorine pesticide in the stomach contents of bothdeceased persons and gave the opinion that the substance is toxicand taken by human beings beyond minimum levels, it can lead todeath. That evidence was not sufficiently challenged and Itherefore find it proved beyond reasonable doubt that the twopersons died and that they died of organochlorine Pesticide poisoning.

Was the poison administered by the accused and if so was itdone with malice aforethought? Mr. Gacivih, for the Prosecutionsubmitted that the poison could only have been introduced by theaccused who had the necessary intention to kill. That is becausethe group of people, including the deceased, had no problem withthe Mnazi they were drinking until the accused came along, half anhour later, with his own. Knowing that there was poison in thegreen bottle, the accused did not taste any drink from that bottlewhich he served to the group but drank from the other bottle.This, he submitted, established that the accused's presence in thegroup was not innocent and he had intended to poison and kill manypeople. As for the evidence from the Government Chemist that thegreen bottle contained no traces of poison, Mr. Gacivih submitedthat there was evidence from PC Mulunga that it had been washedbefore it was taken away and handed over to the Police.

For the accused, Mr. Anyanzwa forcefully submitted that it wasthe crux of the Prosecution case that the accused brought along agreen bottle knowing it to have contained a poisonous substance, filled it with Mnazi and personally served it to various persons,two of whom died as a consequence of that poison. But it is alsothe same Prosecution which tendered unequivocal evidence from aGovernment analyst that there was "no pesticide or any other poisondetected in the green bottle." It was also the same Prosecutionwhich tendered evidence that the Mnazi in the green bottle waspoured into a larger container and served from there by someoneelse other than the accused. He further observed that theallegation of the green bottle having been washed before it wastaken to the police was only a supposition made by one witness, PCMulunga. Other witnesses, including the Assistant Chief who handedover the bottle to PC. Mulunga gave no evidence to suggest thatthere was any opportunity by the accused to wash the bottle. Moreimportantly, it was Mr. Anyanzwa's submission that the Prosecutionmade a grave error in failing to subject all the containers, whichon evidence, could have provided leads to the poisoning, tochemical analysis. These included the main container from whichall the Mnazi was sold that day, the jerrycan from which the groupof a mourners drank from, the four bottles which P.W.2 Ngala hadbought Mnazi and poured into the Jerrycan, and the 'Mboko' whichwas commonly used by the 9 mourners who all became sick and two ofthem died. There was no-explanation, he submitted, for such anomission, which casts grave doubts on the source of the poison.The possibility was not excluded that other persons present had anopportunity of introducing poison into the Mnazi.

Finally Mr. Anyanzwa, submitted that the prosecution made no attempt to establish any motive for such dastardly offence. Therewas no evidence that the two deceased were known to the accusedprior to that day or why there should be any malice against personsunknown to the accused.

In their opinions, the two assessors assisting me in thistrial, were forthright that the accused person was not guilty ascharged.

The first assessor PURITY CHONGA based her opinion on theprosecution evidence that there was no poison in the Green bottlealthough this had been put forward as the source of the poison.She was of the view that the omission by the prosecution ofsubjecting other containers of Mnazi which was drunk by the twodeceased that day to chemical analysis, was fatal to the case asthis left unproved the source of the poison. There was no directevidence that the accused was seen putting the poison in the greenbottle. She also accepted the evidence of P.W.3, who was declaredhostile that the accused drank the first Mboko,of the Mnazi fromthe green bottle as tradition demands before he joined the group ofthe other drinkers. The same view found favour with the secondAssessor JULIUS KIVUVA. He added that he found no evidence of anyMotive and at best, the prosecution evidence on the presence ofpoison in the green bottle was based on Conjecture. The accusedwould otherwise, in his view have got rid of the bottle after thekillings instead of going home with it or keeping it until it wastaken from him at the scene as some prosecution witnessestestified. There was evidence that the poison could have emanated from the Mboko which was owned and was introduced in the group byone of the prosecution witnesses. It was also that witness whointroduced the idea of the poison having been in the green bottle.But the Mboko mysteriously disappeared and could not be subjectedto chemical analysis. It was the view of this assessor that thatmay amount to a cover-up or at best leave grave doubts as to thesource of the poison.

I have carefully considered all the evidence, the submissionsof Counsel and the opinions of the two Assessors, which in law arenot binding on me. It is clear in my mind that the prosecution hasnot proved beyond reasonable doubt that Charo Nzai Katana, ofmalice aforethought or at all administered a poisonous substancewhich caused the death of Kahindi Katana Mangi and Chenda CharoRandu, on 23. 5,94. I accept the submissions of defence counsel andthe reasons for the opinions given by the two assessors in thisregard.

The prosecution evidence on the source of the poison was notonly conflicting and variable but was in the main based onconjecture. There was no direct evidence that the accusedintroduced the poison alleged to have been in the green bottlethat was produced in evidence as the source of the killer poison.On the contrary scientific evidence confirmed that there was nosuch poison. It was necessary in the circumstances for theprosecution to carry out further investigations to eliminate anyother possible source of the poison by examining other containersevidently used by the deceased persons. This they did not do and I am of the view that it was fatal to their case. The burden ofproof imposed on the prosecution has not been fully discharged.

In the circumstances I find the accused not guilty as chargedand I acquit him accordingly. He shall be set at liberty forthwithunless he is otherwise lawfully held.

Dated at Mombasa this 2nd day of September 1997

P. N. WAKI

JUDGE