[2023] KEHC 19915 (KLR)

Republic v Gona & 2 others (Criminal Case 54 of 2018) [2023] KEHC 19915 (KLR) (3 July 2023) (Judgment)

Neutral citation: [2023] KEHC 19915 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 54 of 2018

DKN Magare, J

July 3, 2023

Between

Republic

Prosecution

and

Salim Masha Gona

1st Accused

Kingi Charo Fondo

2nd Accused

Katana Kahindi Gona

3rd Accused

Judgment

1. The four Accused persons were charged on 6/12/2018, with murder contrary to Section 203 as with a Section 204 of the Penal Code. According to the information dated 5/12/2018, that the four persons, on 11/11/2018 at Kinani village, in Kaloleni Location, Kaloleni Sub- County within Kilifi County jointly murdered Michael Sirya Mdigo.

2. The information was signed by Sarah Ogweno Principal Prosecution Counsel in the Office of the Director of Public Prosecution. A total of 11 witnesses testified. The Court then placed the accused on their defence.

3. Upon the defence case being concluded I acquitted the fourth Accused and Deferred the reasons to be dealt with together with the entire Judgment. The same was set down for submissions, which were duly filed. The state filed submissions on 25/4/23 while the 3rd Accused filed submissions on 4/5/2023. The 1st accused filed submissions on 3/5/2021.

4. The second accused filed submissions on and urged me to acquit the accused persons as the state had not proved its case.

Burden of proof 5. The burden of proof is on the state. In criminal matters the legal burden is on the state. However, some evidentially burden may be on the accused. The legal burden never shifts. In Republic v Safari Katana Lugo [2021] eKLR, the court R. Nyakundi, stated as follows: -“It also follows that those who do not commit any offence should be acquitted. Most widely quoted maxim is by William Blackstone’s Law Dictionary Reprint (1978 )9th Edition:“That it is better that ten guilty persons escape, than one innocent suffer.”The expression “proof beyond reasonable doubt” found its definition and typical approach in the cases of Woolmington v DPP {1935} AC 462, Miller v Minister of Pensions {1947} ALL ER 373. The instructive message in both these cases is such that proof beyond reasonable doubt is not a possible doubt, a speculative, imaginary or forced doubt but one which is abiding verdict of guilty, after considering the evidence, in totality to place the accused at the scene as the person who committed the offence.This conceptual framework forms the necessary standard of proof that must be discharged by the prosecution for a conviction to ensue. These components consist of the burden of proof and evidential burden which duty is clearly enunciated by Fidelis in his book Modern Nigerian Law of Evidence, University of Lagos Press, Lagos {1999} 379 as follows:“The term Burden of Proof is used in two different senses. In the first sense, it means the burden or obligation to establish a case. This is the obligation which lies on a party to persuade the Court either by preponderance of evidence or beyond reasonable doubt, that the material facts which constitute his whole case are true, and consequently to have the case established and Judgment given in his favour. The other meaning of the expression burden of proof is the obligation to adduce evidence on a particular fact or issue. This evidence in some cases, must be sufficient to prove the fact or issue to justify a finding on that fact or issue, in favor of the party on whom the burden lies. It is called the evidential burden. This is the sense in which the expression is more generally used.”

Evidence 6. The accused were brought to Court on 5/12/2018. The Court fixed a date for plea on 18/12/2018. The advocates were to be Appointed and notified of the date.

7. The matter did not proceed on 15/12/2018 and proceeded on 24/12/2018 for plea. All the accused persons entered a plea of not guilty in Kiswahili.

8. The 4th accused was released on bond on 7/2/2019while the in custody pursuant to a Ruling made by the court on 27/3/2019.

9. The 1st, 2nd and 3rd accused were not released on bond for they denied bond. The matter then proceeded for hearing.

10. On 27/3/2019 PW11 testified she was a 15-year old minor. She was a standard 7 pupil at a local primary school. After voire dire examination the Court opted to have given unsworn testimony since she did not understand the consequences of oath.

11. She however understood the importance of telling the truth. She was cross examined to test the veracity of her evidence. She said her name was S.M. On 11/11/2018 at 6:10 pm. She was at Home with her siblings, whom she named. She is the daughter of Michael Sirya Mdigo. People came with the house where they were seated.

12. The deceased’s wife was breastfeeding twins. They asked for the deceased’s number and the 2 men left the room in which they were had solar electricity which was illuminating where the 2 men was standing. The two men were identified at the dock as 2nd and 3rd accused.

13. The witness participated in the identification parade. She identified the 3rd accused from physical features, he was brown and short. The second accused was also identified she signed.

14. On cross- examination the emotion wrecked witness stated that he did not witness the actual murder. She stood firm on the physical and facial features of the two men that came to their home. She retained her evidence inspite of the intense cross examination.

15. PW2 – Hamisi Charo Mbita the Deceased’s widow was the second witness. She described her house. She stated that people came in and asked about the husband. One of the daughters gave them cellphone number. The visitors left about 7:00 p.m., and after 30 minutes they heard people mourning.

16. PW3 – Mishi Mwakamusha Mutingo testified on 3/12/2019 on 9/5/2017, the deceased who was her lover was with the witness. The deceased had a love affair with PW3 for 4 months. The 1st accused went to the witness’s husband to talk to her husband this was after, the witness’ husband came to know of the love affair between the deceased and the witness.

17. The husband required of PW3 to stop to stop the affair. The witness’s husband reportedly gave the first accused 30,000/= to kill the deceased. Subsequently, the witness’s husband was also killed arising from the death of the deceased herein.

18. PW4 testified on 22/10/2020 Alex said Katana as 29 years old, and a motor cycle taxi operator in Kaloleni Town. The owner hires the motor cycle when tired or off duty. The witness knows the 1st accused who is the witness uncle.

19. He stated that did not know Amina Swinaton. On 11/11/2018 the deceased called and asked the witness to pick her up. It did not happen later Michael who was a coach assigned the witness as captain. They played the game to a draw. He took the deceased at 6:00 p.m. He went home and took a different route. He met 2 people whom he greeted. He described the scene. The deceased was killed at the playground.

20. The witness saw the 1st accused riding a motor cycle from the direction of the football playground. On cross- examination he admitted to have passed the 1st accused from the playground. He stated that he did not change clothes. He simply took a jacket from a cloth line. He maintained he saw the 1st accused coming from the side of Kaloelni warriors.

21. PW5 – Martha Sirya Mdigo. He is the brother to the deceased. He identified the body to the public and attended post mortem.

22. PW6- Henry Wanje Kakio is a security guard and a cousin to the deceased. He described the body. He identified the body at the mortuary for post mortem.

23. PW7 – No. 23354, 23354, Chief Inspector Timothy Irungu Mwangi, the OCPD Kiene West. He was the OCS Mariakani in December, 2018. He had identification parade forms for Kingi Charo Fondo. He arraigned 8 people at the Female cell at Mariakani police station. He told the witness that “he had some people I had arraigned somewhere and it is likely that the person who committed the offence was among them. The witnesses, identified the 2nd accused in that 1st parade.

24. The 2nd accused was satisfied and signed the form as well as the witness. He also carried out an identification parade for Katana Kahindi Gona, Accused No. 3. PW1 identified the witness. Accused 3 signed the parade form. The parade for Accused 1 was not carried out, according to the witness.

25. PW8 – 80072 – Sergeant Benson Ingosi the scene of crime photos. He was not cross-examined.

26. PW9 – Swale Mansor produced the post mortem report for an examination he carried out on 15/11/2018.

27. PW10- 4573 Sergent Salim Juma Mwabage was from DCI Kaloleni. He was called upon to investigate. The deceased gave cell phone number as 0722 689189. He wrote a letter to Safaricom from 9/11/2018 – 12/11/18. On being stepped down, PW10 did not turn up. PW1 was called instead PW11. PW10 testified after PW11.

28. PW10 stated that he was investigating the murder of Michael Sirya Mdigo who died on 11/11/2018. The deceased’s cell phone number was 07242689189. The cell communicated with other numbers. I will deal with details in my analysis.

29. PW11- was sergeant Daniel Hamisi who testified that works at Safaricom, the leading telecommunication company in Kenya. He produced incoming and outgoing data for 0742689189 form 9/11/2018 to 12/11/2018 and other lines.

Defence 30. On being put to Defence, the 1st accused opted for sworn testimony. He stated that he is 44 years old. He does not recall where he was on 11/11/2018. He only recalls that on 24/11/2018 he was on his way to Kambi ya waya, past Malindi when a police officer stopped him identified himself and arrested him. He was taken to Marereni police station where he was taken to court and charged. He denied being given 30,000 to killing the deceased.

31. He stated he was in Marereni and not in Kaloleni. When cross examined by the state, he stated that he is from vuvulawimbi village and he knows Kinani. He also knows Mwakamusha Kiti, pw3’s husband. He admitted that they were talking at the time PW3 Said but the subject matter a motor cycle. He said the witness who saw him in the scene was lying though himself he cannot remember where he was.

32. The second accused testified that he stays in Minyingoni Kaloleni and he is a wine tapper. He was arrested for illegal consumption of alcohol and then arraigned in court for this offence. He stated that the deceased’s phone was sold to him by Francis Kitsa Odieka. He was released upon interrogation.

33. He explained his being in the deceased home on 11/11/2018 that he was looking to look for a disco matanga D.J. for his late aunt Mama Modimodi. He said he called the deceased but he did not do any deal since the deceased was tired.

34. He stated that he bought he phone on 14/11/2018. He used his wife’s SIM card and missed called his own phone. He stated that it is a woman who knocked the door not a man. He was not with accused 3 at the deceased’s home. He did not name the woman who knocked the deceased’s door and the relationship with him.

35. He admitted he had not given the name of a person who had died for which they were looking for a disco matanga D.J. On re-examination he stated that aunt who died was mama Awida.

36. The 3rd accused testified that he is a casual labourer. He was arrested on 27/11/18 when he was asleep in his house. He stated that the identity parade was not okay. He stayed in custody till 5/12/2018. He doesn’t know why he was charged. On cross- examination, he stated that he knows Kinani village but he was not there that day.

37. The accused 4 stated that she went with the husband’s phone to Mariakani police station to see the husband who had been arrested earlier. He was arrested because her phone was tracked to the deceased number. She could not explain how her number ended up in the deceased’s phone. She admitted that Accused 2 is her husband. Upon testimony I acquitted the 4th accused on perusal of the flow of evidence.

Analysis 38. PW1 gave cogent evidence on how the 2nd and 3rd accused person came to their home and asked for the father’s number. I note the testimony of PW1, places the 2nd and 3rd accused at deceased’s home less than 30 minutes to his murder. Later she identified the 2nd and 3rd accused in an identification parade. Under Section 124 of the Evidence Act provides that the evidence such as the one given by PW1 ought to be corroborated in some material particulars. The said Section provides as follows: -“124. Corroboration required in criminal cases Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.

39. The evidence that come from the child is threefold.a.That two men came to their home and asked for the father’s number which Salome gave them.b.That there was hardly a time lapse between the giving out of the number to the two men and wailing by members of the public.c.That an ID parade was carried out where positive identification of the second and third accused was made. The second defendant admits having gone to the deceased home but for a different reason.d.Three PW10 and 11, place the accused in the accused home at the place and time that PW1 stated. Accused 2 in his testimony places himself in the home of the deceased but he gives a different explanation for his presence. I therefore find and hold that PW1s evidence is efficiently corroborated. It was also corroborated by PW2 who stated that the two men came to the deceased’s home.

40. I dismiss as a figment of the second accused rich imagination allegations that he was with a woman not a man. This defence was not raised against all witnesses till defence hearing. The woman who was with the second accused’s neither named not her role stated.

41. This was also not raised by the 3rd accused when PW1 was giving evidence on the men who came. That issue could have been put to the witnesses then. The evidence of PW3 raise the possible motivation for the murder of the deceased.

42. PW3 had nothing to gain from besmirching her own character by making baseless allegations. PW4 gave evidence station that the 2nd accused and the 1st accused are his relatives. He gave the deceased a ride, to his house and sent to wear a jacket. He narrates the last steps of the deceased and identified the deceased phone Nokia phone which was black. He denied taking part in the death of the deceased but he was one of the last persons to see the deceased alive.

43. PW4s evidence gives a small window of 30 minutes or so from 7:00p.m. till the deceased died. As I review the rest of the witnesses evidence, PW2s evidence places the 2nd and 3rd accused in a house till 7:00 pm. PW4 dropped the accused at his home slightly before 7 :00 a.m., he went home picked his jacket and came to pick the deceased in vain only to be told by Safari that Michael had been killed. This then places PW4 either as the killer or the key which will unravel the mystery of the demise of the deceased. That mystery will be unraveled by PW10 and PW11.

44. Exhibit 11 is a certificate of electronic evidence issued by Safaricom PLC certifying that the information on the electronic evidence is derived from the information that was supplied by the computer during data processing. Exhibit 10 is the registration issued by Safaricom PLC certifying that phone number 0712 867174 is owned by Kingi Charo Fondo ID NO. 13486967 and was registered on 28/09/15.

45. Exhibit – 9 is a court record form Safaricom showing that on 14/11/18 the deceased phone called Amina Chengo on 07225000xx. On 11/11/2018 at 1943. 47 there was a call from 712867174 to the deceased phone.

46. Exhibit 8 shows that 0742689189 had an incoming call for 0712867174. The scene of crime, exhibit No. 16 places the accused 2 and 3 at least less than 300 yards from the murder. DW4, confirms that the scene of the murder and the deceased home and near. PW10, stated that accused 4 had Nokia 310 which was the deceased phone.

47. The 1st accused sim card No. 0798850800 was used on the deceased phone on 14/12/18. The 4th accused ID No. 293xxxx55 and the two phones she had, were taken as inventory. PW10 confirmed the deceased was killed 283 meters from his house.

48. When cross examined, he confirmed that a second accused called the deceased less than 17 minutes before he was killed. PW10 sates that it’s the 1st accused who led him to the 2nd and 3rd accused who were the one given the assignment to kill the deceased. It also came out clearly Saida Katana Charo a nephew of the 1st accused (his uncle) leave the scene barely a few minutes after the murder of the deceased.

49. In the case of Abel Maina Mburu v Republic [2021] eKLR, the court, E C MWITA, dealt with evidence of recognition as doth: -36. The of Court of Appeal appreciated, however, that evidence of a single identifying witness can still prove a fact in a criminal trial thus leading to a conviction. In Ogeto v Republic [2004] KLR 19, it was stated:It is trite law that a fact can be proved by the evidence of a single witness although there is need to test with the greatest care the identification evidence of such a witness especially when it is shown that conditions favouring identification were difficult. Further, the Court has to bear in mind that it is possible for a witness to be honest but to be mistaken.37. In Roria v Republic [1967] EA 583, the court warned on the dangers of convicting on the evidence of a single identifying witness, stating:A conviction resting entirely on identity invariably causes a degree of uneasiness… That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.

50. I am aware of the danger of a single identifying witness. However, in this case it was recognition by a person well known to the 1st accused. Indeed, there were no factors making recognition difficult. The parties were close together and the identifying witness was not under threat. PW3 already knew the plan to kill the deceased for which the 1st accused was central. He admitted on oath of discussing with PW3’s late husband. In any case, though not under duty to prove his innocent, the alibi the first accused set at defence level does not put him away form the scene of crime. I am satisfied the recognition of the fist accused was proper and safe from error.

51. In his defence, and for the very first time at Defence level the 1st accused set up an Alibi. However, it was an incoherent alibi. He stated that he was not at the scene of murder, However, he did not know where the was at the time of murder. Can this be an alibi?

52. The evidence said Katana Charo remained unchallenged on how he saw the 1st accused leave nearby the scene. This then brings the question? Was the 1st accused at Kirereni or at the scene of murder.

53. To answer this question when PW3 stated that her husband had paid off the 1st Accused to kill the deceased. The answer the accused gave was that they were not discussing about murder but they were discussing about a motor cycle. He did not offer any details about what they were to do with the motor cycle. He also did not say when he left Kinani village, after discussing about a motor cycle with the PW3’s husband.

54. Though he stated the initial source was a matter of law, there was common ground that the witness PW3 actually saw accused 1 and her husband discourse.

55. This was done, immediately after PW3 confessed to the husband that she was having an affair to the deceased. We are not told what happened to the motor cycle they were allegedly discussing. All factors considered, I am not convinced that the accused has set up a proper alibi. It’s not the duty of the accused to disprove an alibi.

56. It is the duty of the state however the accused must set up an alibi defence at the earliest as possible. In this case it was set up after all prosecution witnesses had testified. In order for the state to disapprove an alibi there needs to be evidence and cogent one on that on where the accused is alleging.

57. In this case, the appellant simply says I was not there and he doesn’t care and he doesn’t offer an alternative place where he was. This kind of alibi is evasive and has absolutely no use. This is because the state cannot know where to check in view of the wide nature of the alibi. In the case of Erick Otieno Meda v Republic [2019] eKLR the court of appeal stated as follows:-“18. In an alibi defence based on witness testimony, the credibility of the witness can strengthen or weaken the defence dramatically. A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden of proof on the accused to prove an alibi. If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt. In the case of Kiarie – v- Republic [1984] KLR, this Court stated:“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 sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable…...”19. In the recent case of Victor Mwendwa Mulinge –v- R, [2014] eKLR this Court rendered itself thus on the issue of alibi:“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution....”20. Comparatively, in the South African case of S -v- Malefo en andere 1998 (1) SACR 127 (W) at 158 a - e the court set out five principles with respect to the assessment of alibi evidence:(a)There is no burden of proof on the accused to prove his alibi.(b)If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt.(c)An alibi "moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die getuies beoordeel word."(d)If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable ("betroubaar").(e)The ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt — and for this purpose a court may take into account the fact that the accused had raised a false alibi.

58. I therefore find that the alibi is untenable and in view of the evidence by PW4, 10 and 11, the available evidence places the 1st accused at the scene of murder.

Actus Reus 59. From the evidence of PW6, PW7 AND PW5, it comes out clear that the deceased suffered severe injuries, deep cut wounds. His grey matter was spread all over. From the nature and the viciousness of the injury where he had a deep cut wound measuring 20 cm from the left temporal extending to the occipital region with the brain exposed.

60. The neck had a posterior lateral deep cut wound with injury to the spinal cord and cervical spine. Injury to neck muscles was noted. The cause of death was severe hemorrhage secondary to severe head injury and spinal cord injury. The photos show the deceased was athletic build and it took brutal force to kill the deceased.

61. From the nature of the injuries it’s clear that the death was pre-meditated and with malice aforethought. The only question then is whether the accused were responsible. The fourth accused person was only connected through a phone that use her number 3 days after the death of the deceased but it is clear that it emanated from the 2nd accused.

62. All the witnesses indicate that the two persons who come to the deceased house to look for him were both men. The explanation or lack of it does not in any way place the deceased anywhere near the fourth accused.

63. I have perused the evidence tendered by all the 11 Prosecution witnesses and I have no doubt in my mind that there’s no scintilla of evidence placing the 4th Accused with the motive, motivation and the opportunity to kill the deceased.

64. I also note that the phone as only used on 14th both by the 2nd accused and the 4TH accused. No other evidence brings her in cross roads with the deceased. I also observed her demeanour during her testimony and noted that she was naïve enough to carry the phone she thought belonged to her husband to the police station where she had been arrested for murder.

65. I do not find her sophisticated enough to pull the pre-medicated murder that was carried out. In the circumstances I dismiss the charge of murder against the 4th accused and set her free unless otherwise lawfully held.

First Accused 66. Like every planned event, same things go wrong. In this case the first accused planned a perfect murder which went awfully wrong when he set up an untenable alibi. The danger of an alibi is that once it has been set up its fall discharges the states burden of proving mens rea.

67. In this case, there was sufficient evidence that the first accused hired the 2nd and 3rd accused to kill the deceased. As if that was not enough, he personally attended to ensure that they carried out to perfection.

68. Though the evidence against the 1st accused is circumstantial evidence. However, I have to warn myself of the danger of relying on circumstantial evidence. It is the best evidence that can be made out in this case. In Joan Chebichii Sawe v Republic [2003] eKLR the court stated as doth; -“before a court of law can convict a person/accused upon circumstantial evidence, such evidence must be where the inference of guilt, the inculpatory facts are incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. That such evidence must be so mathematically accurate as a basis of conviction in exclusion of any other co-existing circumstances weakening the chain of circumstances relied on by the prosecution. These principles articulate the position in law that the question as to the cause of death may either be answered by way of medical or circumstantial evidence.”

69. For circumstantial evidence to work it must point out on the guilt of the accused and is incapable of any other explanation other than the guilt of the accused. There must be an irresistible circumstances pointing out the guilt of the Accused. Such evidence must be incapable of any other reasonable explanation other than the guilt of the accused.

70. Where the evidence is circumstantial, the test however is that the evidence must be inconsistent with the accused’s innocence in Chiragu & another v Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR) (17 December 2021) (Judgment), the court stated as doth: -“Alternatively, did the prosecution prove beyond reasonable doubt that it was the appellants and nobody else who committed the unlawful act that led to the death of the deceased? From the evidence tendered before court it is clear that none of the prosecution witnesses actually saw or witnessed the appellants or indeed any other person kill the deceased…The conditions for the application of circumstantial evidence in order to sustain a conviction in any criminal trial have been laid down in several authorities of this court. Suffice to mention Abanga alias Onyango v. Republic CR. App NO. 32 of 1990(UR) in which this court held as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,(ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

71. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of appeal had this to say on circumstantial evidence:“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

72. The courts have relied on the case of Sawe Vs. Republic [2003] KLR 364 where the Court of Appeal stated as doth regarding circumstantial evidence in criminal cases: -“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”

73. After the allegations of murder of the deceased came out, PW3 went in to hiding as a love affair was suspected to be the cause. The husband equally went into hiding as well as the 1st accused. Without any provocation whatsoever, the 1st accused left his home in Kaloleni and went far off to Kirereni Malindi. He was arrested after the police had a man hunt for him a month or so later.

74. PW3’s husband, was not lucky. It is not the police who found him first but the members of the public who quickly dispatched him to the nether world. The 1st accused does not completely explain his presence around the scene of murder in the face of his own admission that his home is not nearby. After listening to his testimony in court, I noted he was evasive and did not want to answer simple questions.

75. In the circumstances, the state has proved beyond reasonable doubt that 1st accused was the mastermind and was on the scene of the murder on the material day. There’s no reasonable doubt on the guilt of the 1st accused. I therefore find him guilty of murder contrary to section 203 as read with 204 of the penal code.

76. Innocent people don’t run away.

2nd and 3rd Accused 77. From the foregoing its clear that the 2nd accused went into the deceased’s home at about 6:30 and asked for the deceased number which he used at 18:47; to call the deceased and lure him to his death. The deceased was dropped at his home by PW4 at 6:59 where he met the 2nd and third accused who lured him to the stadium where loved practicing and had been a few minutes earlier.

78. The time lapse between the time they left the deceased home and the time the deceased was found dead in conjunction with the time which. PW4 dropped the deceased at home I have no doubt it is the 2nd and 3rd accused person who lured the deceased and left him to the waiting first accused who together with his two mutually bludgeoned the deceased spilling his brains in the football field and cutting deep cut wounds.

79. The court may not state the role PW3’s husband played about given the intensity of the wounds the level of hate is simply too much. The 3rd Accused did not give a defence on where he was on the material date and time. The evidence of PW1 places him 30 minutes before the murder at the deceased home. He does not know the deceased but was available to accompany the 2nd defendant to the deceased home.

80. It is simply unbelievable that adults who have come in good faith and had been told that the woman at the house is present find no reason to ask her to call the husband but instead engage teenage girls and children and request their father’s number, who turns up date 30 minutes later, brutally murdered.

81. What was wrong in asking for help form the wife of the deceased. He also ended ‘buying’ the deceased’s phone a few hours after he was dead. The coincidences are too many. The evidence irresistible point to the 2nd accused as the killer.

82. From the evidence of PW1 they literary took the number from the phone and did not appear interested in speaking to their mother. That is not behavior for people without something to hide. The 2nd accused call logs clearly place him as a person of interest. The ID parade was unimpeached. PW8 conducted the ID parade without any coercion following the police guidelines.

83. Despite the difficult circumstances, PW1 was able to point out the same people accused 2 and 3 in the dock. All factors considered, the prosecution has proved his case against accused 1, 2 and 3. I therefore find them guilty of murder contrary to Section 203 and 204 of the Penal Code.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 3RD DAY OF JULY, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Muchere for the first AccusedAnangwe for the second AccusedAdala for the third AccusedAnangwe for the fourth AccusedNyawinda for the he stateCourt Assistant – Brian