https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12522

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA HIGH COURT CASE NUMBER: HCCRC/E016/2024 REPUBLIC VS MWALIMU CHENGO AND RAMMA NGONYO AND 4 OTHER(S) JUDGMENT Introduction and Background 1. This case arises from a tragic incident in which a family dispute, fueled by a belief that the deceased was responsible for a relative’s illness through alleged supernatural means, resulted in the unlawful death of a family member. The evidence before this Court demonstrates how suspicion and accusations within a family setting escalated into violence, culminating in the death of the deceased, Kazungu Magogo Mwavuo. 2. The deceased was the first-born son in his family. The 1st and 2nd accused persons, Kalume Ngonyo and Kadogo Ngata, were his younger brothers. The 3rd and 4th accused persons were sons of the 1st accused person, while the 5th and 6th accused persons were nephews within the same extended family. The evidence shows that the accused persons and the deceased lived within the same compound and were therefore persons well known to each other. 3. The events leading to the deceased’s death began on the evening of 2nd July 2024 when Nassir Mumba Hoto, a son of the 1st accused person, became unwell and was believed by the family to be experiencing an unusual condition. The six accused persons were present at the family homestead at the The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 1/18 material time. 4. Following discussions among the accused persons, it was agreed that the deceased should be summoned. The explanations given by the accused persons regarding the purpose of summoning the deceased varied. Some stated that he was called to assist because of the condition of Nassir, while others suggested that the deceased was suspected to be responsible for the condition. The evidence before Court established that there was an underlying 5. suspicion that the deceased was involved in witchcraft and was the cause of Nassir’s condition. The deceased was therefore summoned from his house and taken to the homestead of the 1st accused person where Nassir was located. 6. What followed was a confrontation in which the deceased was required to perform certain acts intended to remove the alleged affliction. The evidence of the prosecution witnesses was that when the attempted intervention failed, the situation deteriorated into violence. The deceased was assaulted and eventually fled to a neighbour’s house, where he was pursued and attacked. He later died from injuries sustained during the attack. 7. The prosecution evidence, particularly that of PW1 and PW2, the minor children of the deceased, placed the accused persons at the scene from the time the deceased was summoned until the events leading to his death. Their evidence was further corroborated in material respects by PW5, a neighbour who witnessed part of the assault. The Charge 8. The accused persons are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 Laws of Kenya. 9. The particulars of the charge are that: On the 2nd day of July 2024 at Lutsangani Village, Kilifi South Sub-County within Kilifi County, jointly with others not before court, the accused persons murdered Kazungu Magogo Mwavuo. 10. All the accused persons denied the charge and the matter proceeded to full trial. The Law on Murder The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 2/18 11. Section 203 of the Penal Code provides: “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 12. To sustain a conviction for murder, the prosecution must prove beyond reasonable doubt the following essential ingredients: a) The fact and cause of death of the deceased;b) That the death was caused by an unlawful act or omission of the accused persons; andc) That the unlawful act or omission was committed with malice aforethought. 13. The Court of Appeal in Republic v Tubere s/o Ochen (1945) 12 EACA 63 stated that in determining whether malice aforethought exists, the court must consider factors including the nature of the weapon used, the manner in which it was used, the part of the body targeted, the severity of the injuries inflicted and the conduct of the accused before, during and after the attack. 14. Similarly, in Nzuki v Republic [1993] KLR 171, the Court of Appeal held that malice aforethought is a question of fact to be inferred from the circumstances surrounding the killing, including the nature of the injuries inflicted. Section 206 of the Penal Code sets out circumstances from which malice 15. aforethought may be inferred, including: a) An intention to cause death or grievous harm to any person;b) Knowledge that the act causing death will probably cause death or grievous harm;c) An intention to commit a felony; ord) An intention to facilitate the escape of a person who has committed a felony. Prosecution Evidence 16. The prosecution called a total of eight (8) witnesses. PW1 – Sarah Kadzo 17. PW1, a minor child of the deceased, testified that on 2nd July 2024 at about 3.00 p.m., several accused persons came to their home and called their father, informing him that his brother was sick and needed his assistance. 18. PW1 testified that her father came out of the house and proceeded with the accused persons to the homestead of the 1st accused person where Nassir Mumba Hoto was located. 19. She testified that while there, the 3rd accused person, whom she identified The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 3/18 as Ponda, assaulted her father using a jembe. She further stated that one Bayo held her father while the assault continued. The deceased thereafter managed to escape, but the group pursued him. 20. During cross-examination, PW1 stated that she knew all the accused persons as they were her relatives and neighbours. She acknowledged that she did not see the person who initially knocked on their door but maintained that she saw the accused persons during the subsequent events. PW2 – Emmanuel Kazungu 21. PW2, another minor child of the deceased, testified that it was the 3rd accused person who came to their house and called his father to go and see the sick person. 22. PW2 testified that he followed his father and saw the accused persons at the homestead. He identified the 1st accused person, 2nd accused person, 3rd accused person and others who were present. 23. PW2 stated that the 3rd accused person was the first person to assault his father using a jembe. He further testified that after his father escaped, the group followed him while throwing stones. 24. PW2 testified that the 1st accused person had a stick and that the 2nd and 3rd accused persons participated in the attack PW3 – Dr. Ruth Nyangi (Pathologist) 25. PW3, Dr. Ruth Nyangi, a pathologist, testified on behalf of the prosecution. She produced the post-mortem report relating to the deceased, Kazungu Magogo Mwavuo. 26. The post-mortem examination revealed evidence of extensive external and internal injuries. The deceased had multiple lacerations on the head, bruises on various parts of the body, abrasions on the back, and injuries consistent with assault. 27. Internally, the examination revealed a subdural haematoma, skull fracture on the occipital bone, and brain injuries. The pathologist formed the opinion that the cause of death was: Head injury due to blunt force trauma. 28. The evidence of PW3 was not challenged in any material respect. The injuries described were consistent with a severe assault involving blunt objects and were inconsistent with accidental death or natural causes. The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 4/18 29. This Court is satisfied that the prosecution proved beyond reasonable doubt that the deceased died and that his death resulted from an unlawful act. PW4 – Zindi Ngumbao 30. PW4 testified that he was not present at the time the deceased was assaulted. He received information through a telephone call that his father had been killed. 31. His evidence was largely confirmatory of the fact that the deceased died following the incident. PW5 – Karisa Kazungu 32. PW5 was an important independent witness for the prosecution. He was a neighbour of the deceased and was not a member of the immediate family involved in the dispute. 33. PW5 testified that on the material night he was awakened by noise coming from the direction of the deceased’s home. Upon looking through a window, he saw the 1st accused person, Kalume Ngonyo, and the 2nd accused person, Kadogo Ngata, assaulting the deceased. 34. PW5 testified that the two accused persons were armed with objects which they used to hit the deceased. He specifically stated that he saw Kalume hit the deceased on the back of the head and also saw Kadogo assault him. 35. PW5 raised an alarm, following which neighbours responded. He however did not see the 5th and 6th accused persons participating in the actual assault. The importance of PW5’s evidence is that it provides independent 36. corroboration of the evidence of PW1 and PW2 regarding the involvement of the accused persons in the assault. 37. The Court notes that while PW5 did not witness the entire sequence of events, his evidence places two of the accused persons at the scene actively assaulting the deceased. It also corroborates the prosecution case that the deceased did not die from an isolated act but from a violent attack by persons acting together. PW6 – Paulina Masai 38. PW6 was the wife of the deceased. She testified that she was not present The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 5/18 when the incident occurred. She was informed by a friend, Fatuma, that her husband had died. 39. Her evidence mainly confirmed the relationship between herself and the deceased and the fact of his death. PW7 – Jackson Tawa (Area Chief) 40. PW7, the area Chief, testified regarding the background circumstances involving the deceased and his family. 41. He stated that he was aware of an earlier dispute involving the deceased and his brothers concerning stolen cattle. He also testified that there had previously been an incident where the deceased had stabbed the 2nd accused person with a knife. 42. PW7 however confirmed that he was not present when the deceased was attacked and therefore his evidence was not direct evidence of the killing. 43. The Court considers his evidence relevant only to provide background and context but does not rely upon it as proof of participation in the murder. PW8 – PC George Manyonge PW8, the investigating officer, narrated the circumstances under which 44. investigations were commenced and the evidence collected from witnesses. He confirmed that the accused persons were arrested following 45. investigations linking them to the death of the deceased. 46. During cross-examination, he denied that witnesses had provided false information or that the accused persons had been framed. Defence Case 47. At the close of the prosecution case, the Court found that a prima facie case had been established against all the accused persons and placed them on their defence. Defence of the 1st Accused Person 48. The 1st accused person admitted that he was present at the homestead on The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 6/18 the material evening. He confirmed that his son Nassir was unwell and that discussions took place regarding his condition. 49. He denied participating in the killing of the deceased. 50. He stated that the deceased arrived and there was an argument involving the deceased and other persons. He claimed that he did not witness what happened thereafter because he went inside the house. 51. He nevertheless admitted that the deceased was present at the homestead and that there was a confrontation involving members of the family. Defence of the 2nd Accused Person 52. The 2nd accused person denied involvement in the killing. 53. He stated that he heard noise but did not participate in the assault. He claimed that he only came out later after the situation had escalated. Defence of the 3rd and 4th Accused Persons 54. The 3rd accused person admitted that the deceased had been summoned because Nassir was sick. 55. He stated that the deceased came and spoke to Nassir and that thereafter they went to seek assistance from elders. 56. He denied seeing who assaulted or killed the deceased. 57. A4 likewise denied any involvement in the actual killing, however painted a very vivid picture of what happened that night . THAT the brother was unwell, they summoned the decease and forced him to cleanse the deceased several times and that the elders were not happy with the outcome. He however distanced himself from the murder saying he had taken the decased into the house,. Defence of the 5th Accused Person 57. The 5th accused person stated that he heard noise from the compound and went to find out what was happening. 58. He stated that he found the elders discussing the issue of Nassir’s sickness and that he later returned to his house. 59. He denied participating in any assault against the deceased. The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 7/18 60. During cross-examination, he admitted that he was within the same compound, that he knew the deceased and that he was aware of the events involving Nassir. Defence of the 6th Accused Person 61. The 6th accused person similarly denied involvement in the killing. 62. He did not dispute that he was related to the other accused persons or that he was within the family compound at the material time. Issues for Determination 63. Having considered the evidence presented by both the prosecution and the defence, the following issues arise for determination: (a) Whether the prosecution proved the death of the deceased and the cause thereof. (b) Whether the unlawful act causing the death was committed by the accused persons. (c) Whether the prosecution proved malice aforethought. (d) Whether the doctrine of common intention under section 21 of the Penal Code applies to all the accused persons. (e) Whether the identification and circumstantial evidence meets the threshold required for a conviction. Applicable Legal Principles The prosecution bears the burden of proving every ingredient of the 64. offence beyond reasonable doubt. The accused persons bear no burden to prove their innocence. 65. In Woolmington v DPP [1935] AC 462, the court affirmed the fundamental principle that the burden remains throughout on the prosecution to prove the guilt of the accused. 66. In Kenya, the Court of Appeal has repeatedly held that the prosecution must establish a complete chain of evidence that leaves no reasonable doubt as to the guilt of the accused. 67. In Sawe v Republic [2003] KLR 364, the Court of Appeal stated that The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 8/18 circumstantial evidence must be such that there are no other co-existing circumstances weakening the inference of guilt. 68. Similarly, in Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990, the Court held that circumstantial evidence must point irresistibly to the accused’s guilt and exclude any reasonable explanation consistent with innocence. Whether the Prosecution Proved that the Accused Persons Participated in the Unlawful Killing of the Deceased 69. The fact of death of the deceased is not in dispute. All the accused persons admitted that they were aware that the deceased died on the material night. The medical evidence of PW3, Dr. Ruth Nyangi, conclusively established that the deceased died as a result of head injury due to blunt force trauma. 70. The injuries described in the post-mortem report included lacerations on the head, skull fracture, subdural haematoma and brain injuries. These injuries were severe and were clearly not accidental. They were consistent with a deliberate and violent assault. 71. The next question for determination is whether the prosecution proved beyond reasonable doubt that the accused persons, either individually or jointly, were responsible for causing the unlawful death. Identification and Recognition Evidence 72. The prosecution case largely rests on the evidence of PW1 and PW2, who were children of the deceased, and PW5, an independent neighbour who witnessed part of the assault. 73. I have carefully considered the circumstances under which PW1 and PW2 identified the accused persons. The incident occurred in the evening; however, this was not a case of strangers confronting unknown assailants in difficult circumstances. 74. The witnesses were identifying members of their own family whom they knew well. The accused persons were their uncles and cousins, and they lived within the same family compound. The interaction between the deceased and the accused persons was not brief. It involved several stages: a) The accused persons going to the deceased’s home;b) Calling him out;c) Walking with him to the homestead of the 1st accused person;d) Taking part in discussions The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 9/18 concerning Nassir’s condition;e) Moving to seek assistance from elders; andf) Returning to the homestead where the confrontation escalated. 75. The Court of Appeal in Wamunga v Republic [1989] KLR 424 identification, warned courts to examine carefully the circumstances of particularly where identification occurs at night. The Court however distinguished recognition evidence by persons familiar with the accused from identification of strangers. 76. Similarly, in Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition of a person known to the witness is generally more reliable than identification of a stranger. 77. In the present case, the witnesses did not merely identify persons seen briefly during a chaotic incident. They recognised close relatives who were part of a prolonged interaction with the deceased before, during and after the attack. 78. The Court is therefore satisfied that the possibility of mistaken identity is remote. Evidence of PW5 and Corroboration 79. The evidence of PW5 is significant because he was an independent witness who had no demonstrated interest in the outcome of the case. 80. PW5 testified that after being awakened by noise, he looked out and saw the 1st and 2nd accused persons assaulting the deceased. He specifically witnessed Kalume Ngonyo striking the deceased on the head and also saw Kadogo Ngata assaulting him. 81. His evidence directly corroborates the testimony of PW1 and PW2 that the deceased was attacked by members of his own family. The fact that PW5 did not see every accused person assaulting the 82. deceased does not weaken the prosecution case. The charge before Court is based on joint responsibility. The issue is not whether each accused personally delivered the fatal blow, but whether they participated in a common unlawful enterprise that resulted in the death. Circumstantial Evidence 83. The prosecution case against some of the accused persons is partly based The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 10/18 on circumstantial evidence. The law on circumstantial evidence is well settled. 84. In Sawe v Republic [2003] KLR 364, the Court of Appeal stated: “In order to justify a conviction on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.” 85. Similarly, in Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990, the Court held that before relying on circumstantial evidence, the Court must establish: a) The circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established; b) Those circumstances should be of a definite tendency pointing towards guilt; c) The circumstances taken cumulatively should form a chain so Applying the above principles to the present case, the circumstances established by the prosecution form a continuous and unbroken chain of events. 86. The evidence establishes that: a) The accused persons were together at the family homestead when Nassir Mumba Hoto became unwell; b) They discussed the situation and collectively decided that the deceased should be summoned; c) The deceased was brought to the homestead because of the belief that he was connected to Nassir’s condition; d) The deceased was subjected to demands that he remedy the alleged problem; e) Following the failure of that intervention, the deceased was assaulted; f) When the deceased escaped, he was pursued by members of the same group; and g) He subsequently died from injuries inflicted during that attack. 88. These facts cannot be viewed in isolation. They constitute a sequence of events demonstrating a common purpose directed against the deceased. 89. The accused persons’ own defences confirm their presence at the scene and their knowledge of the events surrounding the deceased. Their explanation that they were mere observers is inconsistent with the surrounding circumstances and the evidence of the prosecution witnesses. 90. The Court finds that the prosecution established a coherent chain of evidence that irresistibly points to the accused persons’ involvement in the The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 11/18 unlawful killing. Whether Malice Aforethought Was Proved 91. The prosecution is required to prove not only that the accused persons caused the death of the deceased but also that the killing was accompanied by malice aforethought. 92. Section 206 of the Penal Code provides circumstances from which malice aforethought may be inferred, including an intention to cause death or grievous harm or knowledge that the act causing death will probably result in death or grievous harm. 93. In Republic v Tubere s/o Ochen (1945) 12 EACA 63, the Court held that in determining whether malice aforethought exists, courts should consider: • The nature of the weapon used; • The manner in which it was used; • The part of the body targeted; • The severity of the injuries inflicted; and • The conduct of the accused before and after the attack. In this case, the deceased sustained serious injuries to his head, including 94. a skull fracture, subdural haematoma and brain injuries. The head is a vulnerable and vital part of the human body. 95. The repeated assault on the deceased using blunt objects, including blows directed at the head, demonstrates knowledge that such actions were likely to cause death or grievous harm. 96. The Court therefore finds that malice aforethought was proved beyond reasonable doubt. Whether Common Intention Under Section 21 of the Penal Code Was Established 97. The central issue in this case is whether all the accused persons can be held criminally responsible for the acts resulting in the death of the deceased. 98. Section 21 of the Penal Code provides: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 12/18 committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” 99. Common intention does not require that each accused person performs the same act or delivers the fatal blow. It is sufficient if the prosecution proves that the accused persons acted together in pursuit of a common unlawful purpose. 100. In Njoroge v Republic [1983] KLR 197, the Court of Appeal stated that common intention may be inferred from the circumstances surrounding the offence and the conduct of the accused persons. 101. In Dickson Mwangi Munene & Another v Republic [2014] eKLR, the Court of Appeal, citing Abdi Alli v Republic [1956] 23 EACA 573 and R v Cheya [1973] EA 500, emphasized that common intention may arise where persons act together in furtherance of a shared purpose and an offence is committed as a probable consequence of that purpose. 102. The Court must, however, be careful not to infer common intention merely from association or presence. There must be evidence demonstrating participation in the common enterprise. 103. In the present case, the evidence goes beyond mere presence. The accused persons were not strangers who happened upon an 104. unfortunate event. They were members of the same family who collectively engaged in confronting the deceased. 105. The evidence shows a progression from discussion, summoning, confrontation, assault and pursuit. The accused persons acted together before, during and after the fatal assault. 106. The belief that the deceased was responsible for Nassir’s condition provided the motive for the confrontation. The accused persons collectively subjected the deceased to an ordeal intended to force him to resolve the perceived problem. 107. When that effort failed, violence followed. The deceased was attacked, escaped, and was pursued by the same group. 108. The Court finds that the assault was not an isolated act by one individual. It was the culmination of a common design directed against the deceased. Application to the 5th and 6th Accused Persons The 5th and 6th accused persons argued that there was no direct 109. evidence that they assaulted the deceased. The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 13/18 110. The Court has considered this submission carefully. Criminal responsibility under section 21 of the Penal Code does not 111. depend solely on who physically inflicted the fatal injuries. Where persons participate in a common unlawful purpose, each person is responsible for acts committed in furtherance of that purpose. 112. The evidence placed the 5th and 6th accused persons within the family compound during the material events. They were aware of Nassir’s condition, participated in the gathering and were present during the confrontation. 113. Their conduct must be considered together with the conduct of the entire group. 114. The Court rejects the argument that they were innocent bystanders. The circumstances demonstrate that they were part of the group that confronted the deceased and that the unlawful assault occurred in furtherance of the common intention shared by all the accused persons. The Court is satisfied beyond reasonable doubt that the 5th and 6th 115. accused persons shared the common intention to confront and assault the deceased and are therefore equally responsible for the consequences of that unlawful act. Findings 116. Having considered the totality of the evidence, the Court makes the following findings: a) The deceased, Kazungu Magogo Mwavuo, died as a result of unlawful injuries inflicted upon him. b) The injuries were caused by a violent assault involving blunt force trauma. c) The accused persons were properly recognised and identified by witnesses who knew them well. d) The evidence of PW1 and PW2 was credible and was corroborated in material respects by PW5. e) The prosecution proved that the accused persons acted jointly pursuant to a common intention. f) Malice aforethought was established from the nature and severity of the injuries inflicted. Final Determination The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 14/18 The Court has carefully considered the evidence adduced by the and the the defences advanced by the accused persons, 117. prosecution, submissions made by counsel. 118. The prosecution bears the legal burden of proving the guilt of the accused persons beyond reasonable doubt. That burden never shifts to the accused persons. However, upon evaluating the totality of the evidence, the Court is satisfied that the prosecution has discharged that burden. 119. The evidence of PW1 and PW2, who were present from the beginning of the events leading to the death of their father, was consistent and credible. They recognised the accused persons, who were members of their extended family and persons with whom they interacted regularly. 120. The Court has considered the fact that PW1 and PW2 were minors. Their evidence has been carefully examined with the caution required by law. The Court is satisfied that their testimony was not only credible but also materially corroborated by the independent evidence of PW5. Pw5 cofirmed that the plca was well light wit solar lights, he clearly saw A1 and a2 with weapons with which they hit the deceased on the back and head. PW5, though he did not witness every stage of the incident, provided 121. important corroboration that the deceased was assaulted by the accused persons. His evidence confirms that the assault was real, violent and committed by members of the accused group. 122. The Court rejects the suggestion that the accused persons were merely present or that the deceased’s death was caused by an isolated act of one individual. The evidence demonstrates a chain of events in which the accused persons acted together from the time the deceased was summoned, confronted, assaulted and pursued. 123. The Court is satisfied that the accused persons had a shared purpose and acted in furtherance of that purpose. The unlawful assault was a probable consequence of their collective actions. 124. The doctrine of common intention under section 21 of the Penal Code is therefore applicable. Consideration of the Defence 125. The accused persons denied participation in the killing and each sought to distance themselves from the assault. The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 15/18 The Court has carefully considered these defences. However, 126. the explanations given by the accused persons are not consistent with the established facts. 127. The accused persons admitted being present at the homestead and admitted knowledge of the events concerning Nassir’s illness. Their evidence confirms the prosecution case that the deceased was summoned and confronted because of the belief that he was connected to Nassir’s condition. 128. The Court finds that the defences raised are mere denials intended to avoid responsibility. They do not displace the strong prosecution evidence placing the accused persons at the centre of the events leading to the deceased’s death. 129. In Maitanyi v Republic [1986] KLR 198, the Court of Appeal emphasised that the Court must examine all evidence carefully but is entitled to reject a defence where it is inconsistent with credible prosecution evidence. 130. In the present case, the prosecution evidence remains unshaken. Whether the Prosecution Proved Murder 131. The Court must now determine whether all the ingredients of murder under section 203 of the Penal Code were established. Death of the Deceased 132. The death of Kazungu Magogo Mwavuo was proved through the evidence of PW3 and was admitted by the accused persons. Unlawful Act Causing Death 133. The post-mortem evidence established that the deceased died from head injuries caused by blunt force trauma. 134. The injuries were inflicted by human action and were therefore unlawful. Malice Aforethought 135. The Court has already found that malice aforethought was established. 136. The accused persons participated in a violent assault involving repeated blows to the deceased’s head and body. Such conduct demonstrates an intention to cause grievous harm and knowledge that death was a probable consequence. Accordingly, all the ingredients of the offence of murder have been 137. proved beyond reasonable doubt. The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 16/18 Conviction 138. The Court therefore finds each of the six accused persons, namely KALUME NGONYO MWAVUOALIAS MBAITHE, KADENGE NGONYO NGALA, ABDALLA PONDA KALUME ,RAMA KALUME NGONYO AND SIMON KAINGU KARISA ALIAS SAMMY , AND MWALIMU KARISA CHENGU guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. 139. Each accused person is hereby convicted accordingly. Sentence 140. The Court shall invite mitigation from the convicted persons and their advocates before considering the appropriate sentence in accordance with the Constitution, the Penal Code, and the applicable sentencing principles. 141. The Court notes that the offence resulted in the loss of human life and arose from a deliberate act of violence against a family member. In determining the appropriate sentence, the Court shall take into account all relevant circumstances, including the gravity of the offence, the circumstances of the offenders, the mitigation offered, and the objectives of sentencing. 142. A pre-sentence report and a Victim Impact Statement shall be prepared, filed and served before the sentencing date. 143. The accused persons shall remain in custody pending mitigation and sentencing. 144. The bonds previously granted to the 2nd and 3rd accused persons are hereby cancelled. 145. The matter shall come up for mitigation and sentencing on 30th September 2026. Order s DATED, SIGNED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY 2026. HON. LADY JUSTICE W. K. MICHENI JUDGE In the presence of: The Prosecutor – Mr. Sirima, for the State The Judiciary of Kenya Doc IDENTITY: 32283432847768818776325264258 Tracking Number:OOWQQD2026 17/18 Ms. Bebora Mwaka – Court Assistant Ms. Kuria – Advocate for the 5th and 6th Accused PersonsMr. Mwawasi – Advocate for the 1st and 2nd Accused PersonsMs. Memia – Advocate for the 3rd and 4th Accused Persons SIGNED BY/FOR: □ TH E J U D I C I A R Y O F K E N Y A ★ HON. LADY JUSTICE WENDY MICHENI Mombasa High Court High Court Criminal Date: 2026-07-27 17:03:49