[2022] KEHC 2271 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

(CORAM: CHERERE-J)

CRIMINAL CASE NO. 16 OF 2019

BETWEEN

REPUBLIC .................................................................... PROSECUTOR

AND

DOYO GALGALO ............................................................1ST ACCUSED

GALMO GUYO GALGALO ALIAS MAKAYANGU ..2ND ACCUSED

BOKAYO DIDA BORU ALIAS WARABO.....................3RD ACCUSED

SOMO HUKA KANCHARO.............................................4TH ACCUSED

JUDGMENT

1) DOYO GALGALO, GALMO GUYO GALGALO ALIAS MAKAYANGU, BOKAYO DIDA BORU ALIAS WARABU and SOMO HUKA KANCHARO(Accused 1,2,3 and 4 res[ectivey) are charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that

On 16th December 2018 at Gargarsa area in Quilta Korma Location, Marsabit Central Sub-County within Marsabit County jointly with others not before court murdered GEORGE GODANA DARARA.

Background

2) On 15th December, 2018, clashes arose between two communities within Marsabit County as a result of which two police reservists Doko Galgalo and Lububa Borana were killed.

3) The chief of Dirigombo Location GEORGE GODANA DARARA aka Chief Bika was one of the countless mourners that went for the burial of Doko Galgalo at Gargarsa area in Quilta Korma Location, Marsabit Central Sub-County within Marsabit County. The said Chief did not leave the burial alive having been killed and his body burnt with fuel drawn from his motor cycle. Following the murder, the 4 Accused persons herein were arrested and charged.

Prosecution case

4) PW1 BG testified that on 16th December, 2018 he went for the burial of Doko Galgalo at Gargasa Location and at the gravesite, he heard elders, the 1st accused and four others, talking about Chief George Godana Darara (Chief) whom they said was an enemy of their community. That while he was waiting for the arrival of the body of Doko Galgalo near the gate to Doko’s home, the Chief arrived on his GK motor cycle but was prevented from entering the compound by Accused 3 and other women as young men pelted him with stones. That he and others tried to shield the Chief but the 4th accused drew a knife (sword) and stabbed the Chief in the head. That they removed the Chief from the scene to a tent for his safety but 3rd accused upon seeing the Chief asked why he was still alive and 1st accused said that he should be killed and burned. That it was then that the 2nd and 4th accused and others went to the Chief’s motor cycle, and drew petrol which Accused 4 poured on the Chief and set him on fire as a result of which he died.

5) PW1 GWreferred to Accused persons by their names and stated that she had known them for a long time as residents of Marsabit. On 16th December, 2018 at about 11. 00 am while she was at the burial of Doko Galgalo, she saw people running and she followed to find out what was happening. That there she saw the Chief arriving aboard his GK motor cycle and it was there that Accused 1 referred to the Chief to a Gabra and asked the people that were around what they were waiting for. That upon Accused 1 uttering those words, the crowd among them Accused 2, 3 and 4 attacked the Chief with stones, rungus and pangas. That she heard Accused 3 say that the Chief should be killed and Accused 2 said that he should be set on fire. That she moved from the scene and from a distance saw the body of the Chief burning.

6) PW3 KG similarly testified that other that Accused 4 whom he saw for the first time on 16th December, 2018, Accused 1, 2 and 3 were residents of Marsabit whom he had known for a long time. He testified that on the material date at about 10. 00 am, he was at the home of Doko Galgalo waiting for his body for burial. It was his evidence that he was near the gate with the 1st Accused and others and when Chief arrived riding on a motorcycle, the 1st Accused confronted him and asked him where he was going. That Accused 1 then accused the chief of being a Gabra which utterances incited the crowd that attacked the Chief starting with the 3rd Accused who hit him with her phone and Accused 2 and others who attacked the chief with attacked the Chief with stones. That after the Chief was overwhelmed and he fell down, Accused 4 stabbed Chief on the head with a sharp knife and together with one Peter Nur drew petrol from Chief’s motorcycle and set him on fire.

7) PW4 BR equally referred to Accused persons by their manes and stated that he had known them for a long time as residents of Marsabit. He was also at the burial of Doko Galgalo on 16th December,2018. It was his evidence that after the Chief arrived, 1st accused confronted him and called him a Gabra which incited the crowd that attacked the Chief with stones and sticks. He said he saw Accused 2 and 3 attack the Chief whereas 4th accused stabbed the Chief and set his body on fire using petrol drrawn from the Chief’s motorcycle.

8) PW5 MR arrived at the scene of crime long after the Chief was killed and his body set on fire.PW7 Joseph Orabu Nyakwara, who was Deputy County Commissioner Marsabit at the material time visited the scene two days after the murder. He stated that the Chief had previously complained of threats to his life. PW8 PC Abdullahi Jillo, a crime scene investigator visited the scene of crime on 16th December, 2018 and took 33 photographs which he tendered as PEXH5 and the report and certificate as PEXH6.

9) PW9 DR. Imbusi Mark on 16th December, 2018 conducted an autopsy on the body of Chief at Marsabit County Hospital. The body had burns of about 60% surface area of the whole body. The right side of the neck had a deep degloving 10 cm injury, occipital (rear head) was fractured and had a deep degloving, injury with bone exposed, there were multiple deep cuts and fractures on the frontal part of the face and the nose was completely disfiguredHe formed the opinion that the deceased died of excessive bleeding, inhalation burns and disfiguring head injuries as shown on the postmortem report PEXH7.

10) PW10 CPL Kennedy Onyango Otienovisited the scene of murder and removed the body of the Chief to the mortuary. Accused persons who were implicated with the murder were subsequently arrested and charged.

DEFENCE CASE

11) Accused 1Doyo Galgaloin his sworn statement denied the offence. He confirmed that he went to the burial of Doko Galgalo on 16th December, 2018 and stated that he was at the grave site when he was informed that the Chief had been killed. He testified that he related well with the Chief and had no reason to kill him. His witnesses Dobu Goyo, Aden Duba and Doyo Jaltani stated that they were with Accused 1 at the gravesite of Doko Galgalo on 16th December, 2018 when they received information that the Chief had been killed. Mohamed Alkano the 4th witness had left the scene when he received information that the Chief had been killed.

12) Accused 2Galmo Gayo Galgalo alias Makayango stated that he was at his construction site on 16th December, 2018 and did not attend the burial of Doko Galgalo where the Chief was killed. His witness Denge Goyo testified that he was at the construction site with Accused 2 until about 4:30pm.

13) Accused 3DW3 Bokonyo Diba Boro alias Warabo confirmed that she went to the burial of Doko Galgalo on 16th December,2018. She stated that at about 11. 00 am, she heard noise and scream from a distance and fearing for her life left the scene and returned home from where she received information that the Chief had been killed. Her witnesses Nasibo Molu Guyo and Guyatu Wako stated that they left the home of Doko Galgalo after they heard noise and screams from a distance and later received information that the Chief had been killed. Fariya Ibrahim Dalal and Kade Goyo also testified that they had on 16th December,2018 hurriedly left the home of Doko Galgalo after they heard gunshots and on the way met accused 3 and two other ladies with whom they travelled back to Marsabit town.

14) Accused 4DW4 Somo Hoka Kanchoro in his sworn testimony stated that on 16th December, 2018, he was at his construction site of one Rukia Kamadha at Majengo until 5pm and denied going to the scene of murder. He called a witnessAden Halkano who testified he was with him at Majengo the whole day.

SUBMISSIONS

15) The Prosecution contends that it has tendered evidence to prove that Accused persons pepetrated the murder of the Chief. The Prosecution holds the view that common intention on the part of the Accused persons was established and in support thereof relied onWanjiro d/o Wamario v Republic 20 EACA 521 Stephen Ariga & Another v. Republic [2018] eKLRandEunice Musenya Ndui v. Republic [2011] eKLR.Prosecution also contends that malice aforethought was established and in support thereof relied on Republic v Edward Kamau Mburu & 2 others [2016] eKLR.Concerning the defences, the prosecution argues that they are an afterthought and ought to be rejected. Finally, the prosecution submitted that failure to tender the murder weapon was not fatal to its case and placed reliance on Paul Nakwale Ekai v Republic [1981] eKLR.

16) Of the 4 Accused persons, the court received only the submission of the 3rd Accused. The 3rd accused submitted that the prosecution witnesses portrayed themselves as unreliable and urged that the inconsistencies of the witnesses’ testimonies be resolved in her favour. The Accused faulted the prosecution’s failure to call all the witnesses who were at the scene and for failing to conduct an identification parade. Accused contends that the Chief was attacked by a mob and thus it would be difficult to identify the perpetrators. Finally, it was submitted that the prosecution did not prove the ingredients of murder. Reliance was placed on Ndung’u Kimanyi V Republic [1979] KLR 283 andWamunga v Republic (1989) KLR 424.

ANALYSIS AND DETERMINATION

17) I have considered the evidence on record and I have deduced the following issues for determination.

1. Whether case has been proved to the required standard

2. Common Intention

3. Identification of the assailants

4. Whether all crucial witnesses were called

5. Whether failure to produce murder weapon is fatal to prosecution case

18) For Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients the death, that Accused persons committed the murder and that they were actuated by malice. (See Anthony Ndegwa Ngari v Republic [2014] eKLR).

(a) The death of the deceased

19) That GEORGE GODANA DARARA died was confirmed by all the prosecution witnesses and the Accused. Their evidence was corroborated by the evidence of the doctor contained in the postmortem form tendered as PEXH. 7which reveals that the Chief died of excessive bleeding, inhalation burns and disfiguring head injuries.

(b)Proof thataccused persons or any one of them committed the unlawful act which caused the death of the deceased

20) Section 203 and 204of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. They require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased through malice aforethought. The sections read as follows:

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

204. Any person who is convicted of murder shall be sentenced to death.”

21) The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves any one 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 of 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 the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

22) Testimonies by prosecution witnesses who witnessed the murder of the Chief is that although Accused 1 did not physically attack the Chief, he incited the crowd against the Chief whom he referred to as a Gabra and an enemy of the people. No doubt his words were meant to provoke emotions considering that it was suspected that Doko Godana whose burial was going on the material day had been killed by members of the community from which the Chief belonged. Indeed, emotions were evoked as a result of which Accused 2, 3, 4 and others attacked the chief with stones and sticks. Particularly, prosecution witnesses have identified Accused 4 as the one that stabbed the Chief with a sharp object on the head and also set his body on fire.

23) Concerning whether Accused persons had a common intention to kill the Chief, the provisions of Section 21 of the Penal Code Section provide that common intention is deduced where there are two or more parties that intend to pursue or to further an unlawful object or a lawful object by unlawful means and so act or express themselves as to reveal such intention. It implies a pre-arranged plan. Although common intention can develop in the course of the commission of an offence, it is normally anterior in point of time to the commission of the crime showing a pre-meditated plan to act in concert. It comes into being, in point of time, prior to the commission of the (See Dickson Mwangi Munene & Another v Republic [2014] eKLR).

24) In Solomon Mungai v. Republic [1965] E.A. 363, the predecessor of the Court of Appeal held that in order for this section to apply, it must be shown that the accused had shared with the other perpetrators of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged.

25) In Njoroge v Republic, [1983] KLR 197 at p. 204, the Court of Appeal stated that: -

“If several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder in all who are present whether they actually aided or abetted or not provided that the death was caused by the act of someone of the party in the course of his endeavours to effect the common object of the assembly.”

26) Common intention may also be inferred from the presence, the actions and the omission of either of the suspects to disassociate themselves from the offence (See R v Tabulayenka s/o Kirya (1943) EACA 51).

27) In this case, there is evidence that each of the Accused 2, 3 and 4 took part in assaulting the chief in one way or another and although Accused 1 did not physically attack the Chief, he is the one that incited the crowd that included Accused 2, 3 and 4 to kill the Chief.

28) I have considered whether identification parades were critical in this case as there were a lot of people at the scene of crime. The Court of Appeal in Andrea Nahashon Mwarisha v Republic [2016] eKLR stated the applicable principle in the following terms: -

“Identification parades are necessary though not absolutely where the witness purports to identify a suspect did in extremely difficult conditions, say, where the offence is committed at night and when visibility may have been a challenge having regard to the availability or lack of light and when the circumstances under which the offence is committed are harrowing to the witness thereby impairing his ability to positively perceive and with certainty identify the culprit or where the incident lasts for a short time. The purpose of identification parade as explained in Kinyanjui & Others v Republic, (1989) KLR 60: "is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify and for a proper record to be made of that event to remove possible later confusion......” Further identification parades are meant to gauge and test the correctness of a witness's identification of a suspect given the circumstances under which he claims to have identified the suspect. See John Mwangi Kamau v Republic (2014) eKLR.

In this case, the offence was not committed in difficult circumstances at all. It was during the day and visibility was not poor. The complainant too spent some time with the appellant at the scene of crime……. ………. In those circumstances, of what evidential value would have been the identification parade? We cannot think of any. To our mind, it would have been superfluous. The identification parade would even have been hampered by want of earlier description by the complainant of any attributes of the appellant. Even if the complaint by the appellant was valid, we are still of the view that given the circumstances under which the identification was made, there was no room for mistaken identity. The complainant had all the opportunity to properly and positively identify the appellant as one of the robbers....”

29) The witnesses particularly PW1, PW2, PW3 and PW4 all recorded their statements at the police station either on the material day or the following day. The Court of Appeal in Terekali & Another vs. Republic [1952] EA 259 pronounced itself that: -

“Evidence of first report by the Complainant to a person in authority is important as it often provides a good test by which the truth and accuracy of subsequent statement may be gauged and provides a safeguard against later embellishment or made up case. Truth will always come out in a first statement taken from a witness at a time when recollection is very fresh and there has been no time for consultation with others…”

30) The conditions and circumstances of identification were conducive the incident having taken place in broad day light, Additionally, the four prosecution witnesses all knew the accused persons prior to the incident and this was therefore not a case of identification of strangers but a case of recognition. I am of the view that the identification parades were not necessary in the circumstances of this case.

Whether Prosecution failed to call crucial witnesses

31) Section 143 of Evidence Act (Cap 80) Laws of Kenya provides:

“143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

32) In Donald Majiwa Achilwa and 2 other v R (2009) eKLR the Court stated:

“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.”

33) In Keter v Republic [2007] 1 EA 135 the court held inter alia:

“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”

34) In the instant case. the prosecution was at liberty to call the witnesses they deemed necessary to establish and prove their case. I am satisfied that the evidence by the witnesses who testified proved the prosecution’s case beyond reasonable doubt against the Accused persons and find no basis on which this court can safely make an inference that the evidence of other witnesses if adduced would have been adverse to the prosecution’s case.

Whether failure to produce murder weapon is fatal to prosecution case

35) The postmortem report PEXH7 report reveals the Chief suffered burns and deep cuts. Witnesses testified that the Chief was attacked with stones, sticks was stabbed with a sharp knife (sword) and his body set on fire. The fact that neither of the murder weapons were produced as exhibits is not fatal to the prosecution case for the reason that the injuries suffered by the Chief were confirmed by the doctor (See Paul Nakwale Ekai v Republic [1981] eKLR).

36) Having come to the conclusion that the Accused persons killed the Chief, the final issue for determination is whether malice aforethought has been established.

37) Section 2016 of the penal Code as follows; -

206 Malice Aforethought shall be deemed to be established by evidence proving any one 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 of 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 the act or omission to facilitate the flight or escape of any person who has committed or attempted to commit a felony

38) Malice aforethought has been defined in the following cases;

(a) NZUKI VS REPUBLIC [1993] KLR 171 where the Court of Appeal held that before an act can be murder, it must be aimed at someone and in addition it must be an act committed with the following intentions, the test of which is always subjective to the actual accused.

- Intention to cause death

- Intention to cause grievous bodily harm

-Where accused knows that there is a risk that death or grievous bodily harm will ensue from his acts and commits them without lawful excuse.

(b) In the case of DANIEL MUTHEE VS REPUBLIC Criminal Appeal No. 218 of 2005 (UR)cited in the case of REPUBLIC VS LAWRENCE MUKARIA & ANOTHER [2014] eKLR, Bosire, O’kubasu and Onyango Otieno JJA., while considering what constitutes malice aforethought observed as follows:

“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.”

39) The attack on the Chief was violent and cruel. He was not only stoned and stabbed but his body was desecrated by being set on fire and this leaves no doubt in the mind of the court that Accused persons’ sole intention was to kill the Chief.

40) All the Accused persons raised their defences and called witnesses with each denying that they were at the scene where the Chief was killed.

41) An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable. (See Kiarie v Republic [1984] KLR).

42) I have weighed the defences of alibi as against the evidence offered by the prosecution and I conclude that the defences have not been able to dislodge the well corroborated prosecution case that Accused persons were not only at the scene of crime but also took party in killing the Chief.

43) Consequently, I have come to the conclusion each of the four Accused persons is found GUILTY of the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code and each one of them is accordingly convicted.

DELIVERED AT MERU THIS 10th DAY OF FEBRUARY 2022

WAMAE. T. W. CHERERE

JUDGE

Appearances

Court Assistant - Kinoti

Accused 1 - Present

Accused 2 - Present

Accused 3 - Present

Accused 4 - Present

For the Accused 1, 2 and 4 - Mr. Anyenga

For the Accused 3 - Mr. Kiget

For the State - Mr. Okeyo