[2013] KEHC 1496 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MALINDI

CRIMINAL CASE NO. 2 OF 2010

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

VERSUS

HAKIM KAZUNGU THOYA…..................1ST ACCUSED

KATANA KARISA CHENGO…................2ND ACCUSED

JUDGEMENT

The accused were charged jointly with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars in the Information state that on diverse dates between 1st and 31st July, 2009 at Madamani Village within Kilifi District of the Coast province they jointly murdered KITSAO KABUNGU BATHITHE. The Accused denied the charge and were represented by Mr. Angima.

The Prosecution case is as follows. On 23rd December, 2009 Pw1, APC Livingston Madulu was on duty with a senior sergeant at the D.O's office, Vitengeni, Kilifi when he received information from one Sgt. Tsuma that a person had been murdered in August,2008 (the correct year is 2009)and body dumped in a pit latrine. They proceeded to the scene and arrested suspects being the two accused. On interrogation, the suspects led them to the pit latrine situated at the 1st Accused's home. They dug up the latrine and informed the local OCS. CIP Mureithi Macharia (Pw4) dispatched Inspector Newton Tsangalia Mjomba(Pw3). Digging resumed on the following day at the same latrine. Police discovered bones, human hair, a skull and clothes. Also recovered was a wallet bearing the identity card and elector's card in the name of Kitsao Kabungu Bathithe, the deceased.

The clothes, a sample of the remains, blood samples of the deceased's son one Karisa Kitsao Kabungu (Pw2) and of a brother to the deceased were sent over to the government chemist for analysis. With a view to determine whether the remains belonged to the person named in the identity and election cards.

Pw4 after cautioning the accused persons and before 3rd parties being relatives of the accused, recorded statements from them. Both were statements under inquiry to the effect that the 1st accused had been procured by one Katana Kahindi Katana to eliminate the deceased allegedly for bewitching Katana's relatives. The accused was in the company of the deceased and shared a local brew during the fateful day. That the 1st accused laced the deceased's drink with a drug (Power Tab) to incapacitate him. On their way home they got to a disused pit latrine and the deceased could hardly walk. 1st Accused then called the 2nd Accused to assist him to push the deceased into the latrine. They did so before covering him with soil and waste from the farm close by.

Pw2 stated that he resided in a house owned by one Kazungu Thoya at Mombasa. That his father had paid him a visit and on 27th July, 2009 had left for Ikango, their home, where he resided. That in September when he went to Ikango to visit, he did not find him but was not alarmed as it was normal for his father to go away for long periods of time. However on 24th December, 2009, he learnt via a radio announcement that his father's body had been discovered in Madamani in a pit latrine. He recorded a statement with the police and viewed bones at the mortuary.

Pw5, Dr. Ngali Mbuuko, a pathologist at Coast General Hospital, Mombasa produced a Postmortem Report indicating that the recovered bones were human, belonging to an African male. That some bones were missing and those recovered bore fractures predating the death. He was unable to establish the cause of death but sent a sample for DNA analysis.

In their defence the accused elected to make unsworn defences. The 1st Accused stated that on 23rd December, 2009 he was having breakfast with the 2nd Accused at his home at Vetengeni, Kilifi. Police from the AP's camp came and ordered them to accompany them to the D.O's camp. There, the senior sergeant of police called someone and reported that he had the “two men”. He then took them to the D.O. 's office. On the way, they were informed by another police officer that a person had been killed and buried at their home.

They were then put in the cells before being taken to the home where they found the area chief and members of the public digging at the family grave-site, at the grave of one Silas Kuzungu from whom his family had purchased the land. They continued digging the following day, and exhumed the body. They were then taken back to the cells before being taken to the D.Os' camp and back home where they found another grave being dug up and more bones were found. The bones were then put in a bag and taken to Kilifi Police Station. They were arraigned in court on 12th January, 2010. He denied participating in the murder as charged. The 2nd Accused adopted wholly the defence of the 1st Accused as his own.

For the defence it was submitted that there was no eye witness account, that the remains retrieved from the latrine may have come from a victim who had fallen inside and sustained injuries. That the evidence adduced was largely circumstantial; however circumstantial evidence must be of such a nature that no other inference can be drawn from it other than the accused's guilt. The defence argued that accounts by a person not called to testify and the confessions cannot be relied upon. Further, that the pathologist failed to establish the cause of death upon examination of the body.

It is not in dispute that the two accused were arrested together on the morning of 23rd December, 2009 at the home of the 1st Accused. Later on the same day police dug up the compound in the home. The digging resumed on 24th December, 2009. Several bones of humans, some bearing fractures and hair were exhumed. The court must determine whether these were the bones of the deceased and whether the accused persons participated in the murder.

The last person to see the deceased alive on 27th July, 2009 was his son Karisa Kitsao Kabungu (Pw2). He said the deceased visited him at his residence at Mvita and bade him farewell after two weeks, to travel back to their rural home at Ikango. Sometimes earlier the two men had lived in the homestead of the 1st Accused's father. After the disappearance of the deceased for several months, a report was received by APC Livingston Madulu of the D.O's office Vitengeni that a body of a murdered person was buried in a pit latrine.

The police arrested and interrogated the two accused who led them to the disused pit latrine from where the bones were retrieved after two days of digging. Also found were clothes, human hair and a wallet containing the deceased's national identity card and elector's card. Of these, only the wallet and cards were produced in court. It would seem that other recovered items and samples were sent to the police laboratories for analysis but not returned.

Dr. Ngali Mbuuko ( Pw5) who examined the bones concluded they were of an adult male African and that they bore several fractures as shown in the postmortem form. In the course of their evidence the accused suggested that these remains were retrieved from a family graveyard in the home. This matter however had never been canvassed at the trial even after several prosecution witnesses asserted that the remains were retrieved from a pit latrine in the home of the 1st accused.

Secondly, it was also asserted that the wallet containing the deceased's documents were also retrieved from the same spot. Besides, the two accused persons gave lengthy confessions to CIP Mureithi Macharia (pw4) detailing the manner in which they participated in forcing the deceased inside the pit latrine. According to Pw1, the accused led the police to that latrine.

During the trial the defence did not object at all to the production of the confessions made to Pw4 by the two accused. I have looked at the confessions. They are detailed in many respects. They clearly identify the victim who was well known to both accused and how he was lured and disabled by the 1st Accused through laced alcohol, before he sought the help of the 2nd accused to force the body down the into the pit latrine and fill up the disused latrine with dry vegetation from the shamba.

According to the confessions the 1st accused was procured to carry out the murder by one Katana Kahindi Katana who suspected the deceased to have bewitched his father and sister whose names are indicated. He was paid Kshs. 5,000. 00 as deposit for his charges. The 2nd accused also agreed to assist in the “work” for a promised fee which was not honoured, and may likely have led to the matter leaking out to police. Most of the bones found in the pit latrine had fractures, in my view, consistent with the force used to push the deceased into the pit latrine. In the statement under inquiry by the 2nd Accused, he stated that when he arrived at the murder scene the deceased was lying down on the ground.

The law regarding confessional evidence was settled since the case ofTuwamoi v Uganda (1967)E.A 84. In that case, the accused had retracted the confession which was the basis of his conviction. The Court stated:

“The present rule then as applied in East Africa in regard to a retracted confession is that as a matter of practice or prudence the trial Court should direct itself that it is dangerous to act upon a statement which has been retracted in the absence of corroboration in some material particular, but the court might do so if it is fully satisfied in the circumstances of the case that the confession must be true”.

The accused herein gave lengthy statements to police in full confession of their crime. They neither retracted nor repudiated the confession during the trial. They also led police to the pit latrine where the body was exhumed. It is rather late in the day for them to allege that the remains were dug from the graves of other deceased persons or that they were not involved in the murder of the deceased.

The facts of this case compare well with the case of Patricio Njiru Kirangi and Another v R [2005] eKLR. The body of the deceased in that case was found in a pit latrine six days after she disappeared. The pit latrine was at the home of the 1st Appellant therein. The said appellant led police to the said latrine. He also made a confession to the murder in a Charge and Caution Statement. He retracted it during the trial. The 2nd appellant gave a detailed Statement under Inquiry detailing his role in the murder. The said statement was produced together with a further Charge and Caution Statement without objection by the defence. Both appellants were convicted by the High court.

On appeal to the Court of Appeal, the court stated:

“The statement under inquiry and the charge and caution statement made by (the 2nd Appellant) are a clear admission of his guilt. The (2nd) appellant goes into great detail and describes the circumstances in which he took active part in killing the deceased and why he and the (other) appellant did so...We see no reason or justification for discounting the value of the confession so made by the (2nd) appellant. The trial court, in our view, could convict upon such confession. Since taking all the circumstances of the case into consideration, there seems to be no reason to believe that the confession is not true. We uphold the conviction of the 2nd appellant.”

Concerning the 1st appellant the court stated:

“There is sufficient evidence on record to show that the 1st appellant led the police to the pit latrine at his home. The evidence relating to the discovery of the body, which is independently adduced corroborates materially the confession obtained from the first appellant.”

As stated earlier on, in the present case, the confessions were neither retracted or repudiated.

Looking at the over all evidence, I am satisfied that the prosecution has established a case beyond any reasonable doubt against both the accused persons for the offence charged. I do convict them accordingly.

Delivered and Signed at Malindi on this 2nd day of October, 2013 in the presence of the Accused, Miss Mathangani for the State, Mr Angima for the Accused

Court Clerk – Evans.

C. W. Meoli

JUDGE

MISS MATHANGANI - I do not have records.

C. W. Meoli

JUDGE

COURT – Record and sentencing on 17th October, 2013.

C. W. Meoli

JUDGE

23-10-2013

Before C W Meoli – J

Mr. Nyongesa for State

Court clerk – Samwel

Mr. Gekanana holding brief for Mr. Angima for Accused

Accused – present

MR. NYONGESA - Treat accused as first offender.

MR. ANGIMA – 1st Accused is 28 years old and unmarried. The 2nd accused is married and 27 years old. Family and parents depend on him.

C. W. Meoli

JUDGE

NOTES ON SENTENCE

The accused were treated as first offenders. I have noted their mitigation. I note their young age and their family responsibilities. However, the killing of innocent old people on suspicion of being witches has become extremely common in this jurisdiction. The court cannot overlook the fact that Accused 1 plotted and executed his plan of killing the deceased and throwing his body in a pit latrine. Such callous conduct is difficult to countenance.

C. W. Meoli

JUDGE

SENTENCE

Each accused sentenced to 30 (thirty) years imprisonment.

Right of appeal 14 days.

C. W. Meoli

JUDGE

ORDER – Proceedings be provided to defence.

C. W. Meoli

JUDGE