[2023] KEHC 22532 (KLR)

Republic v Chigumba & 2 others (Criminal Appeal 6 of 2019) [2023] KEHC 22532 (KLR) (2 August 2023) (Judgment)

Neutral citation: [2023] KEHC 22532 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal 6 of 2019

A. Ong’injo, J

August 2, 2023

Between

Republic

Prosecutor

and

Chakaya Nicholas Chigumba alias Chigumba Foyo

1st Accused

Kapote Janga alias Wasi Kapote

2nd Accused

Nyale Lugo Alias Hamisi alias Chibogo

3rd Accused

Judgment

1. The accused persons Chakaya Nicholas Chigumba alias Chigumba Foyo, Kapote Jangaa alias Wasi Kapote and Nyale Lugo alias Hamisi alias Chibogo face a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 of the Laws of Kenya.

2. The particulars are that Chakaya Nicholas Chigumba alias Chigumba Foyo, Kapote Jangaa alias Wasi Kapote and Nyale Lugo alias Hamisi alias Chibogo on 14th January 2019 at around 2030 hrs at Chigombero Village, Mwavumbo Location in Kinango Sub-County within Kwale County jointly murdered Chiti Sadiki Mwachiti Genya.

3. The prosecution called 9 witnesses to support its case that the accused person committed the offence herein. The prosecution filed submissions on case to answer and the accused persons were placed on defence.

Prosecution Case 4. PW1, Umazi Mwangongo, testified that in 2019, she was staying with her husband Chiti Sadiki Mwachiti Genya in Chigombero village, Mwavumbo location where they had been for 19 years. That Chakaya Nicholas Chigumba was known to her but he stayed in the forest near the village and sometimes he would visit his friends Nyale and Kapote. That Kapote Jangaa was also known to her as he was her neighbour and Nyale Lugo is the son to her brother-in-law. PW1 identified the three in the dock.

5. PW1 informed court that on 14. 1.2019, at about 20. 30 hours, she was at home with her husband, her sister Luvuno Zawadi Mwagogo and her two young children. That they had supper and her sister was studying while PW1 and her husband were in the bedroom. That suddenly, the door was kicked open and somebody armed with a panga entered and held her husband on the neck. That they started struggling and that PW1 joined to help her husband and the person fell and the hood on his head fell off and that PW1 identified Nyale as the house also had light. That when Nyale fell, he called his accomplices saying “Jameni njooni mimi nimezidiwa nimeshindwa.” That others went and started cutting the door with a panga and managed to gain entry. That the second entered while armed with an axe and started cutting PW1’s husband with an axe.

6. PW1 said that the second attacker was Chigumba and that she stopped screaming and held onto her child and tried to squeeze against the wall. That when her husband tried to defend himself, he was cut on the head, face, hands, mouth and ears. That when they finished cutting him, they cut electricity wires and left. That she moved closer to her husband and got out through the door that had been cut halfway. That there was an opening that was made on the door and that she found her sister outside who told her there was a third attacker who guarded her to make sure she does not raise alarm. That when the attackers left, PW1 and her sister raised alarm and that the neighbours went except the nearest neighbour who is the eldest brother of Kapote. That Mwachiti Kazungu and Mnyuka Dalu are some of the neighbours that responded when they raised alarm.

7. PW1 said that the police went and took the body of her husband to Kinango. She said that the deceased told her that he received a phone call from an unknown number and was told that Chaga Jangaa would send attackers on allegations that her husband was a witch. That Chaga Jangaa was the eldest brother to Kapote Jangaa. That Chaga had lost his child Babu Chaga who died in 2018 and it was claimed that PW1’s husband had bewitched the child. That PW1 advised her husband to go and report to the police and that he promised to go and report.

8. PW2, Luvuno Zawadi testified that she was 19 years old and that the accused herein was her sister’s husband. That on 14. 1.2019 at 8. 30 pm, she was studying at the deceased’s house and that she was with her sister’s child while her sister, her husband and the small child were in the bedroom. That Nyale Lugo entered the house while carrying a panga and that Nyale was known to PW2 as he was a member of the family to her brother-in-law. PW2 said that they had light from solar and that there was security light outside. That Nyale was the first to enter and Chigumba Toyo followed while carrying an axe. That Chigumba was known to him and that there was a time her brother-in-law entrusted her with his livestock to herd in the forest where he used to stay. That Chigumba was armed with an axe and that when they entered the bedroom, PW2 heard commotion and that she decided to run away. That when she was leaving, she found Kapote on the main door and that he was with dogs. That she decided to go and call Mnyuka Dalu.

9. PW2 said that Kapote is the closest neighbour but she did not go there because it was claimed that her brother-in-law had bewitched Kapote’s nephew who had died. That when PW2 saw Kapote at the door, she suspected he was keeping guard to make sure her brother-in-law is killed. PW2 identified Kapote in the dock. That when she heard her sister raise alarm, she returned home. That Kapote who were the nearest neighbours did not respond and Changa Jangaa whose child was claimed to have been bewitched. PW2 said that her life was in danger and that one of Kapote’s brothers sent people to attack her on two occasions and that she reported to the police.

10. PW3, Mwagongo Nzavila, the mother-in-law to the deceased testified that the accused persons were known to her and that her child Umazi went and reported to her that her husband was being threatened. That when Chaga Jangaa’s child died, it did not take long before the deceased was killed. That it was claimed the deceased killed Jangaa’s child using jini and that when PW3’s in-law went for a memorial service, he received a phone call by a person who told him to leave the ceremony as he would be killed. That he left in the company of another person and when he arrived home, his herdsman Mwithe Mwahanje was going to take a bath when he was suddenly cut. The herdsman raised alarm and the attackers realized that they cut the wrong person. That the deceased was later killed when he had just returned from his uncle’s funeral and that PW3 was informed by her daughter that she knew the people who killed her husband. That PW3 went to the scene and found her in-law had been cut on the face and hands that he was using to shield himself.

11. PW4, Kalu Chiti Mwachiti, testified that the deceased was his uncle and that the accused persons were known to him. He said that on 14. 1.2019 at 10. 00 pm, he was at home in Ukunda when his wife called and told him that his uncle had been killed. That he accompanied officers to Kinango Hospital where he identified the body for postmortem to be done. He said that the body had multiple cuts on the head and on the hands.

12. PW5, Mwachiti Kazungu, said that the deceased was his uncle and that the accused persons were known to him. He informed court that on 14. 1.2019 at about 10. 00 pm, he was woken up by a neighbour who told him that Sadiki had been injured. He said that he got out and accompanied the neighbours and that when they entered the house, they found the inner door had its glass broken and the deceased’s wife was crying. That the deceased had injuries on the head and he was restless. That the door could not open and they had to break it. That they made a phone call to the assistant chief. PW5 testified that at 3. 00 am, the police went to the scene and took the body to Kinango. That on 30. 1.2019, he went to record his statement with the police at Kinango and that the deceased’s wife also recorded her statement.

13. PW6, Ali Lugo Nyale, said that on 14. 1.2019, he was at home and at 8. 30 pm, his son Nyale Lugo Nyale went home and told him that he had received a report from Nyamawi Tsuma that Sadiki had been attacked by unknown people and he had died. That when he got the report, he rushed to the deceased’s home which was about 600m away and found a woman crying in pain. That he entered the house and found the bedroom door had been broken, and there was an opening about 2 feet. That the deceased had injury on the abdomen and the left hand. That there was blood all over the house and things were scattered. He said there was a sign of struggle in the room. That he went out of the house and called the OCS Taru and that police officers went to the scene and photographs were taken after which the body was taken to Kinango for postmortem. PW6 said that he recorded his statement and later they started funeral arrangements.

14. PW7, Alfred Munyuka Dalu testified that on 14. 1.2019, he was at his home in the evening at 7. 45 pm taking a bath when a woman went to his home crying saying her husband was being killed. That the woman was Umazi Daro and her neighbour who lives 100 meters from his home. That he accompanied her to her home and on arrival, he entered the house and found the bedroom door was broken in the middle. That PW7 used the torch on his phone and saw the husband was trying to stand but was falling. That PW7 tried to open the door but was unable. That when PW7 went to get the village elder, he got back and found the deceased had died.

15. PW7 said that the deceased had a cut on the back of the head, on the right jaw and fingers on one of the hands. That the items in the bedroom were scattered which showed there was a struggle, the table in the room was upside down and the bed had been pushed. That Mwachiti made a phone call to the Chief and the police from Taru. That PW7 accompanied them when they were taking the body of the deceased to the mortuary at Kinango and that the body was buried the next day as he was muslim.

16. PW8, Nyamawi Mangale testified that on 14. 1.2019 at 9. 00 pm, Zawadi Daro Mwangongo went and reported to him that her in-law Sadiki Chiti Mwachiti had been cut with a panga. That PW9 proceeded to the scene and found Chiti had cuts on the head, hand and abdomen. That he was attacked inside his house in Chigombero. That Sadiki had already succumbed to the injuries. That he called the police from Taru and they went and collected the body and took it to Kinango Hospital Mortuary. That it was alleged Sadiki was a witch and that he bewitched Chaga Jangaa Mangale’s child and it was alleged he was killed in revenge. PW9 said that Chigumba Foyo used to stay in the forest to make charcoal and that PW9 would meet him when he went to graze and sometimes he would find him at Chaga Jangaa’s home either late in the evening or early in the morning. That Kapote and Nyale Lugo are members of the family but Kapote and Nyale did not attend Sadiki’s barial.

17. PW9, Dalu Mambo informed court that on 15. 1.2019, at 6. 00 am, he received a call from his cousin Chiti Chiboga who informed him that Sadiki Chiti Mwachiti had been cut. That when he heard that, he was surprised because Nyale Lugo did not tell them about the death in Chigombero yet he had come from there that morning and it was unusual for Nyale to go to their home that early. That they then proceeded to Chigombero and found the body of Sadiki had been taken to the mortuary. That Nyale did not attend the burial and also failed to attend the meeting organized by the District Officer to discuss the murder.

18. PW9 said that what surprised him was that in the evening at around 6. 00 or 7. 00 pm, he would find his step mother Uchi Mgalo and her daughter Nazua Mgalo carrying water and food to the forest. That one day he decided to follow them and found Nyale on Ndunguni Hill and that he was seated with Chigumba Foyo facing opposite directions. That when he saw them, he went back home and made a call to Kalu and gave directions to where he had seen Nyale. That on 2. 3.2019, PW9 led Kalu and police to where he had seen Nyale and it was Chigumba Foyo and Mwachiti Lugo who were found but Mwachiti Lugo was later released. That Nyale Lugo moved to Kinagoni after the arrest of Mwachiti Lugo and Chigumba and that when Nyale learnt that he was wanted, he moved again to Kaza Moyo where he was burning charcoal. That one day at 3. 00 am when PW9 was coming from Samburu, he met Lugo who hid behind a tree. That he went and reported to the Chairman Mnyika Kazungu but the chairman did not believe him because he was a bit drunk.

19. PW9 said that the next day he decided to do his own investigations and that saw Nazua Mgala taking food to the house in the farm where he was told there was a snake and no one should go there. That he made a phone call to Chiti and told him Nyale was in a house on their farm. That on 16. 9.2019 at 11. 00 am, PW9 led police officers to the house and that Nyale got out and started running away. That police officers shot in the air to scare him but he did not stop. He was however apprehended by people who were going back to work from lunch and was rearrested and taken to Taru.

Defence Case 20. DW1, the 1st accused, Chakaya Nicholas Chigumba gave sworn evidence and testified that he was arrested on 2. 3.2019 by police officers from Taru Police Station who were taken to where he was by 2 people from Chigomero. That he was not told what he was being arrested for but he was told he had committed a murder on 4. 3.2019 when he was taken to court. He said that the 2nd accused is not known to him but used to see him as his home which was in the hills and would herd his cattle closer to where he works. That he never asked who he was or worked with him. He said that he did not know the deceased or differed with him or any of the witnesses. That he used to see Umazi and Luvuno at Taru Police Station and that he was not placed on any identification parade.

21. DW2, the 2nd accused, Kapote Jangaa Mangale gave sworn evidence that on 14. 1.2019 at 1. 00 pm, he went to the shop and bought some items and returned home. That the deceased was known to him and that the road to the shop is close to the deceased’s home and that it is a big road used by many people. That it is not true that he had a dog when going to the shop and that he does not keep dogs. He said that on his way from the shop someone passed past him while running but he did not identify the person. That it was already dark and he could not tell where the person was coming from and that the 2nd accused continued going to his house. That he took the medicine he had bought and slept and later heard noise coming from the house of Chiti Sadiki.

22. DW2 said that he did not have differences with the deceased or any of the witnesses and that he heard witnesses say that the family of Jangaa and the deceased were not in good terms. That his brother’s child died and he has never blamed the death on the deceased. He said that the child was sick and was taken to Samburu Hospital and unfortunately, he died. That he heard claims of witchcraft in court. That he heard another witness say that their family was not involved in the funeral arrangements of the deceased and it was because it was claimed his brother was involved in the murder and he feared for his life. That he was arrested at his home where he was all along and that he did not escape.

23. DW3, the 3rd accused, Nyale Lugo Chibogo testified that on 14. 1.2019, he was in Mombasa where he was working in construction sites. That on 1. 1.2019, DW3 and his siblings had new year celebrations together and that on 3. 1.2019, his brother Chibogo went with him to Mombasa where he looked for casual jobs. That on 12. 1.2019, his brother went home and left him in his house and that on 18. 1.2019, his brother returned and informed him that his uncle Sadiki had been attacked, killed and buried. That he had no issues with his uncle and the allegations that he was seen at the scene of crime is not true. That DW3 was arrested on 16. 9.2019 and that Dalu assisted the police in arresting DW3.

24. DW3 further testified that he is married to a woman who comes from Dalu’s home area and that Umazi is his uncle’s wife. That in mid-December 2018 at around 7. 00 pm after a football game where Dalu’s people had gone to play football in DW3’s area, the 3rd accused found Umazi and Dalu together and that when they saw him, Dalu stood and went away. That Umazi told DW3 that Dalu wanted a certain girl in the village and that she warned DW3 not to tell anyone about what he had seen. That DW3’s father also warned DW3 against telling anyone about what he had seen. DW3 said that Dalu and Umazi fixed him because they feared he had found them in a compromising position. DW3 denied killing the deceased.

25. DW4, Chibogo Nyawa Chibogo testified that the 3rd accused is his younger brother while the 2nd accused is his uncle. That on 1. 1.2019, he was with the 3rd accused ushering in the new year at home in Chigombero. That on 3. 1.2019 they went to Magongo where DW4 was staying and that the 3rd accused used to look for casual work in construction sites while staying with him. That on 12. 1.2019, DW4 went back home and that he left the 3rd accused in his house in Magongo. That on 14. 1.2019 the incident herein took place where their younger uncle was killed and that the attackers were not known. That DW4 left home for Magongo on 18. 1.2019 after burial and that he told the 3rd accused about the attack and death of their uncle. That the 3rd accused was in Magongo and DW4 could not tell whether he was involved as DW4 is the one who informed him of the death.

26. At the close of the defence case, accused persons filed their submissions.

Analysis and Determination 27. In consideration of the evidence of 9 prosecution witnesses and in consideration of the accused persons sworn statements as well as the evidence of DW4 and submissions filed herein, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.

28. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was 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.’

29. 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 30. Although the postmortem report that was supposed to confirm the cause of death of the deceased was not produced as Dr. Mjimba who performed the postmortem did not attend, the fact of death of the deceased is not disputed by the prosecution and the defence. This court finds that failure to produce the postmortem report in the circumstances is not fatal to the prosecution’s case.

Death was caused by an unlawful act or omission 31. The postmortem The injuries that the deceased suffered were inflicted on the night of 14. 1.2019 when he was attacked in his house in Chigombero village, Mwavumbo Location in Kwale County. PW1 said that the deceased was cut with a panga and an axe by the two attackers and he sustained cuts on the head, face, hands, mouth and ears. The police visited the scene and moved the body to the mortuary where postmortem was done.

32. PW3 also confirmed the deceased was cut on the face and the hands that he was using to shield himself at the time that he was cut. PW4, Kalu Chiti Mwachiti said that when he went to identify the body of his uncle, he said there were multiple cuts on the head and the hands. PW5, Mwachiti Kazungu also said that when he responded to the deceased’s alarm, he found the deceased in the bedroom, he had injuries and was restless.

33. PW6, Ali Lugo Nyale, said that the deceased had injuries on the abdomen and the left hand and that inside the bedroom there was blood all over and things were scattered. There were signs of struggle in the room. PW7 said the deceased’s wife went to call him and told him that her husband was being killed. He said he saw the deceased through an opening on the door and that the deceased was trying to stand but was falling due to the injuries that he had sustained.

34. PW8, Nyamawi Mangale, was also called by PW2 and told that the deceased and his wife had been killed. He said the deceased had cuts on the head, hands and abdomen and when he arrived at the scene the deceased had already succumbed to those injuries. The evidence of all the witnesses point to the fact that the deceased was attacked and fatal injuries inflicted on him. The injuries suffered were not self-inflicted or accidental. It is no doubt therefore that the cause of death was through an unlawful act.

Participation of the accused in the commission of the alleged offence 35. The evidence of PW1 and PW2 point to the fact that they recognized the accused persons as the perpetrators of the murder. They said there was light from solar lamp which PW2 was using to read at the time of the attack which enabled them to recognize the attackers. When PW2 wanted to escape after 2 of the attackers had entered the bedroom to the deceased and PW1, PW2 tried to escape from the house but she found there was a 3rd person who was keeping watch and was accompanied by his dogs. Because of security light at the door, she was able to recognize the person as Kapote Jangaa, the 2nd accused herein. She said that the 2nd accused was known to be always walking with his dogs around.

36. The 2nd and 3rd accused persons were said to be residents of Chigombero village and were neighbours and relatives to the deceased but when the deceased was attacked, they did not respond to the alarm and they did not attend the burial. Even when the District Officer called for a meeting of the villagers to establish the perpetrators of the murder, they were not present at that meeting.

37. Evidence was adduced that the reason for the killing of the deceased were allegations that he had bewitched and killed the child to the 2nd accused’s brother. The deceased had received a phone call from an unknown caller telling him that Chaga Jangaa was to send people to kill him to avenge the death of his son. The threats were executed when the deceased returned home to go and attend his uncle’s burial and on the day that he returned to his home before he could go back to work, he was attacked and killed.

38. The evidence of PW9, Dalu Mambo, corroborates the evidence of PW1 and PW2 that the accused persons herein committed the murder of the deceased. On the morning following the death of the deceased at night, PW9 saw the 3rd accused person at their home at 5. 00 am in the morning and he said that he greeted him but later when he learnt at 6. 00 am that Sadiki Chiti Mwachiti who is related to the 3rd accused and stays in the same village with the 3rd accused that he had been attacked and killed and that the 3rd accused had not informed him, he got suspicious. He looked for the 3rd accused and did not find him and that it was unusual for him to go to their home that early in the morning.

39. PW9 conducted his own investigations to know where his step mother Uchi Mwagalo and her daughter Nazua Mgalo, the wife of 3rd accused were going every evening while carrying food and water and he discovered that the food and water were being taken to the 3rd and 1st accused. He testified that he once found them seated on Ngunguni Hill while facing opposite directions and he did see an injury on the back of 3rd accused which he suffered on the day he killed the deceased.

40. On 2nd March 2019, PW9 led PW4, Kalu Chiti Mwachiti and the police to where he had seen the 1st and 3rd accused but it is only the 1st accused and Mwachiti Lugo who were found and arrested. That after the arrest of the 1st accused and Mwachiti Lugo, the 3rd accused moved to Kinagoni and later to Kazamoyo where he was harboured in a farm house of PW9’ father. When Gonzi Chakaya sent word that the 3rd accused was in the farm, PW9 led the police on 16th September 2019 to the farm and the 3rd accused was arrested when he attempted to escape.

41. The evidence of PW1, PW2 and PW9 coupled with the circumstances surrounding the murder of the deceased makes this court believe that the three accused persons and one Chaga Jangaa were involved in the murder to avenge the death of Chaga Jangaa’s son who was allegedly bewitched by the deceased.

42. Although the police officers who arrested the accused persons and investigated the case did not attend to testify, the defence by the accused persons has not challenged the overwhelming evidence of the prosecution witnesses. There is strong evidence that the 1st accused used to herd cattle for the deceased and he was being seen either late in the evening or early in the morning at Chaga Jangaa’s home. He cannot therefore say that he did not know the deceased and his family members as well as his co-accused persons when PW9 found him seated on a hill with the 3rd accused and when he was arrested, he was arrested together with a relative of the 3rd accused, Mwachiti Lugo.

43. Allegations by the 3rd accused that he was fabricated for the death of the deceased because he found PW1 and PW9 in a compromising situation is an afterthought because it was not raised by the said PW1 and PW9 when they testified in court. In any case, if he was fabricated to prevent him from revealing an alleged relationship then the deceased who was supposed to have been told had already died. The 3rd accused was on the run to his in-law’s place on 15th January 2019, immediately after the death of the deceased. He stayed in the forest and was being fed by his wife and mother-in-law and when his accomplices were arrested on 2nd March 2019, he sought refuge at his father-in-law’s farmhouse until he was arrested on 16th September 2019. DW4 confirmed that he could not tell that while he was at home, the accused was actually home or in magongo where he committed the offence.

Malice aforethought 44. 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”.

45. On the element of malice aforethought in respect to Section 206 of the Penal 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.”

46. 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.”

47. The precision with which the offence was planned and committed is proof of the extent of malice on the part of the perpetrators.

48. In conclusion, this court find that the prosecution has proved its case beyond reasonable doubt. The accused persons are jointly found guilty of the offence of murder and are convicted accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 2ND DAY OF AUGUST 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the StateMr. Kahindi Advocate H/B for Ms. Mwanzia Advocate for the 1st AccusedMr. Obara Advocate for the 2nd Accused Person presentMr. Kahindi Advocate H/B for Mr. Gitonga Advocate for the 3rd AccusedAccused persons present in person from Shimo la TewaMr. Ngiri: We don’t have previous records. I pray for a copy of judgmentMr. Kahindi Advocate: I request to be given time to mitigate on 4. 8.2023Mr. Obara Advocate: I pray for time to mitigateORDER:Mention on 20. 9.2023 for Victim Impact Statement, mitigation and sentence.HON. LADY JUSTICE A. ONG’INJOJUDGE