[2022] KEHC 1509 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

HIGH COURT CRIMINAL CASE NO 7 OF 2017

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

VERSUS

HENRY MUSA MURIMI...........................................................................................1ST ACCUSED

STANLEY GICHUNGE KITHEKA........................................................................2ND ACCUSED

M’KAILIBI KAILIBI................................................................................................3RD ACCUSED

DANIEL KARATU.....................................................................................................4TH ACCUSED

GEDION KINGORI..................................................................................................5TH ACCUSED

IBRAHIM MEEME KIOBE................................................................................... 6TH ACCUSED

JUDGMENT

Introduction

1. The accused are charged with two counts of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offences in the two counts were set out in the Information dated 16th January 2017, as follows:

“Count I:

Statement of the Offence:

Murder c/s 203 as read with section 204 of the Penal Code cap 63 Laws of Kenya.

Particulars of the Offence:

(1) Henry Musa Murimi (2) Stanley Gichunge Kitheka (3) M’Kailibi Kailibi (4) Daniel Karatu Michubu (5) Gedion Kingori (6) Ibrahim Meeme Kiobe: On the 16th day of September 2008 at Kisima village, Kianda sub-location, Kiguru location in Igembe South District within Mere County jointly murdered Mutembi Musembi.”

Count II:

Statement of the Offence:

Murder c/s 203 as read with section 204 of the Penal Code cap. 63 Laws of Kenya.

Particulars of the Offence:

(1) Henry Musa Murimi (2) Stanley Gichunge Kitheka (3) M’Kailibi Kailibi (4) Daniel Karatu Michubu (5) Gedion Kingori (6) Ibrahim Meeme Kiobe: On the 16th day of September 2008 at Kisima village, Kianda sub-location, Kiguru location in Igembe South District within Meru County jointly murdered Samson Simba.”

2. The trial over the matter started in 2009 as HCCRC No. 15 of 2009 but was, at the point of Judgment declared a mistrial by the Court (Lesiit, J., as she then was) on the ground that the 5th Accused who had been joined to the trial after it had been filed had not taken actually plea in the case, although the case proceeded as if he had pleaded not guilty, the court ruling of 31/7/2014 as follows:

“9. The prosecution seem to have become aware of the fact the 5th accused had not taken a plea to the information before trial commenced when Ms. Nelima, then acting for all accused raised the issue.

10. On 7th July, 2014 the state brought a Nolle Prosequi and applied to withdraw the charge against the 5th accused under section 82 of the Criminal Procedure Code. Prosecution Counsel explained that the step was being sought because the 5th Accused had not taken plea.

11. The application was declined by the court and the case proceeded to defence hearing.

12. At the end of the trial I find that the 5th accused never took plea to the information in this case. To make the situation worse Criminal case No. 5 of 2010 against the 5th accused concerned a deceased Charles Mwirigi. The deceased in this case are totally different. So even the talk of consolidating criminal case No. 5 of 2010 was untenable and unviable as the two cases were not related.

13. The accused persons were charged jointly of murder of two persons. This was a joint trial. It would have been a miscarriage of justice to withdraw the case against the 5th accused with a view of trying him alone with same offence.

14. Since this was a joint trial and the accused persons same charges, I find that mistrial in regard to one accused affects all accused persons. In that regard there has been a mistrial in this case.

15. I accordingly declare this a mistrial and direct that the matter should start a fresh before a different court. In that regard the accused persons are discharged to be charged a fresh with this self same information before the vacation Judgeon 6th August, 2014. In the meantime, the accused will continue to be held in custody till then.

Dated at Meru this 31st July 2014.

Lesiit, J.

Judge”

3. The accused were charged afresh with the 6th accused included in the new Information dated 16th January 2017.

4. The accused denied the charges and upon being put on their defence gave sworn evidence all raising alibi defences that they were at different places at the time it is alleged that they committed the offences.

The Prosecution’s Case

5. The Prosecution set out its case in the opening speech by Mr. Mulochi, Prosecution Counsel, as follows:

“Mr. Mulochi:The accused are accused of murdering Mutemi Musembi Kathi on 16th September, 2008 at Kisima Village around 6. 00p.m. On 16th September, 2008 they murdered Samson Simba at around 6. 30p.m.

As regards count 1 the deceased Musembi the deceased Musembi Mutemi and Joseph Muthui were at a farm belonging to James Murungi at about 6. 00p.m. when the accused invaded the farm armed with arrows bows and rungus and ordered the two (2) to sit down. The two (2) took to their hills. However, the deceased was shot on the chest by the 5th accused with an arrow. The 5th accused also shot Joseph Muthui on the right buttock. The 5th accused gave chase but the two (2) outrun him after 30 meters, the deceased fell on the road and died. Joseph Muthui was found later and taken to Maua Hospital where he was treated and discharged. Shortly thereafter, the accused invaded the farm of Benard Munyua which was about 1. 5k.m. away. They found the deceased Simba Samson and one Jacob Kaburi who were employees of Benard Munyua guarding his Miraa. The accused sought to know where Benard Munyua was. The two informed them that Benard was away. The deceased and Jacob Kaburi tried to run away but the deceased was shot in the stomach. The accused’s set a blaze the granary of Benard and burnt it. The deceased fell a few meters away. He later succumbed to his injuries and died at Maua Methodist Hospital. We shall be demonstrating that the six accused caused the death of the two (2) that the extent of the injuries infers men’s Rea. We shall be pending 8 witnesses.”

The Evidence

6. The evidence presented to the Court by the Prosecution and the Defence upon finding of a case of answer is set out in full as follows:

“PW1 JOSEPH KABURI SWORN AND STATES IN SWAHILI

I am the above named. I hail from Thaicu Village, Kianda sub location within Meru County. I am a farmer. I recall on 16th September, 2008 at about 6. 30p.m. I was in the farm of Benard Munyua. I was in the company of Baariu and Simba. I cannot remember their other names. We were irrigating the miraa trees with water. The miraa belonged to Benard Munyua.

At that time, I saw 6 people who invaded the farm. I knew the six (6) very well. First Musa Murimi came into the farm carrying arrows, bows and jerrican. Then he was followed by five (5) others. They followed him after about one (1) minute.

I knew them all. The six (6) were Musa, Murimi, Kitheka, Gichunge Gedion Kingori Karatu, Adriano, and Muriuki. The other five were also armed. Kitheka Gichunge had a bow and arrows. Gedion Kingori had a bow and arrows Karatu also had a bow and arrows. Adriano and Muriuki had a bow and arrows. I can see those people in court.

1. Musa Murimi – 1st accused touched

2. Kitheka Gichunge – 2nd accused touched

3. Gideon Kingori – 5th accused touched

4. Karatu – 4th accused touched

Adriano was not arrested. Muriuki died this year. He had disappeared but died early this year. They asked us where Mr. Benard Munyua was. It is Musa Murimi (1st accused) who asked us. We told them that he was not there but was at home. It is me who answered them. They then ordered us to sit down. They started to pour some liquid on the house of Benard Munyua. It was a granary. The house was a store. It was a timber walled house. It was Musa who sprinkled the liquid that was in the jerrican around that store. Then other five (5) were with the 1st accused when he was sprinkling the liquid on the store. I was about 8 meters from that store. Then I saw fire. I took off when I saw the fire. Baari and Simba also took off. Each one of us run into different directions. The incident took about six (6) minutes. I then heard a scream from the direction where Simba was running to. It was a scream of pain. He was shouting “nakufa” nakufa” I decided to increase my speed in running away. I went to Benard Munyua’s home and informed him of the incident. I found him at home. He told me he was to go to the sub chief. The distance from the farm where we were to Munyua’s house is about 9 to 10 minutes running distance. The assistant chief is known as Samuel Katheru. I accompanied Munyua to the sub chief home. It was a 4 minutes’ walk from Munyua’s house. We found the Assistant chief at home. Benard Munyua told the Assistant chief of the incident. The assistant chief called the DO Shortly thereafter the DO and police officers arrived at the Assistant Chief’s home within about 15 minutes. Then DO was accompanied with three police officers.

Then the DO the 3 police officers, Assistant Chief and Benard Munyua went to the farm where the incident had taken place. I was left behind. I remained there for a while. The DO and his group came back with similar. The DO had come with his vehicle. Is aw Simba abroad the DO’s vehicle bleeding. This was about 8p.m. I used my torch to see Simba. It had two batteries. I went near the vehicle and looked at Simba. He had bled profusely as the was a lot of blood on the floor of the vehicle. He was lying on his back. I observed him for about 1. 5 minutes. Simba was alive at the time his eyes were blinking.

The DO’s vehicle left with simba to hospital. They took him to Maua Methodist hospital. I remained behind and headed to my home. It is a five (5) minutes’ walk distance. I slept till the following morning. I went to hospital to check on Simba at about 1p.m. I found him at Maua Methodist Hospital. He was in bad shape. He had been admitted and was on a drip. He was also having blood transfused to him. I left and went back home. On the 3rd day 18th September, 2017 I heard that Simba had died. I latter went to Maua police station and made my statement. I cannot recall the date when I recorded it. I was accompanied with Baariu. The police recorded the statement for me. They never read it back to me but I nevertheless signed it. I knew the 1st accused as I schooled with him in [Particulars Witheld] Primary School. I was ahead of him. It was in 1990. He is a village mate. Before this incident I had no grudge with him. I also knew the 2nd accused. We schooled together in Thaicu Primary. We are not related we had a good relationship. I also knew the 4th accused. We schooled the same school. We are not related. I had no grudge with him. The same for the 5th accused. The deceased was only a workmate. He was not related to me. We had worked at Benard’s farm for about 1 year. We related well with the deceased. When the attackers invaded us on 16th September, 2017 it was still day light and I could recognize them. I went back to work at Benard’s place. Baariu left working.

CROSS – EXAMINED BY MS. NELIMA

I have not carried out my identity card. It is no. 21285058. Munyua’s farm is Kithurai. I hail from Thaicu. The area chief is known as Samuel Katheru Mwika. That is the Assistant chief. The area chief is called kiburi.

I recall that I have once testified on this case. I know how to read a little English. Shown his statement, the witness states that in the statement I indicated that the people who invaded the farm were eight (8). The others are not there. In that statement, it is not indicated who had what weapon. I however had told the police. We run away because we saw fire. The granary was on fire. I do not know who put the granary on fire. In the statement, I indicated that Gideon is the one who set the granary on fire. I know the 1st accused is called Musa Murimi. We were school mates. He was behind me.

RE – EXAMINATION

Shown his statements and read to him, the witness states I stated that on 16th September, 2008 at 1800hours I was watering the farm. I saw a group of 8 people with bows and arrows and one of them had a 5 litre jerrican with petrol.

Pw 2 Joseph Muthui Mwinzi Sworn and States in Kiswahili

I am the above named I hail from Kianda sub-location. I am a farmer. I recall 16th September, 2008 at about 6. 00p.m. I was in the farm of James Murungi at Karimba. I was with Musembi Katua alone. While resting there. We saw the five men armed with weapons as follows: -

a.Kingori had arrows and a panga locally known as C-Line.

b.The rest had a panga each and woods used to burn houses.

When they came near Kingori 5th accused shot Musembi with an arrow on the left side of the chest. I ran away but felt a sharp piercing pain on my buttocks. Touching my buttocks. I felt that it was an arrow. We run towards the river and they left us. I and Musembi run while the arrows were lodged on our bodied.

A little further I tried to remove Musembi’s arrow but the arrow head remained lodged while I removed the arrow stick. We went towards the area chief’s home. I met the brother to the chief by the name Bataru. He removed the arrow from my buttocks. He called Murungi whose farm we were guarding Murungi came with his vehicle.

I had left Musembi behind when I went to the chief’s home. When we went back. There we found that he had fallen dead. They took me to Maua Hospital we passed through Maua Police station and made a report. I do not know why the five men attacked us. I knew all the five (5) men. We used to associate with the five men. We used to stay at Murungi’s home but would leave cows in the home of the 3rd accused.

There was no grudge between us and the five people. After I left hospital, I heard that there was a Court Order that came from a Maua court whereby the five were removed.

Murungi had defeated Kailibi is that court case which ordered the eviction of Kailibi. While in hospital on a person by the name simba was brought with his intestine outside. He had also been attacked but he died while undergoing treatment. I made my statement at Maua Police station.

CROSS – EXAMINATION BY MR. NELIMA

I was born in Ukambani. Seikuru. I came to Kianda sub – location in 2010. No, it is 2001. That is when I purchased land and started living there to date.

The incident occurred at Karimba. I was only employed there. I do not know if it is a location. From where I leave is far to Karimba. It is about 30km. at the time I used to work ploughing with cows. I used to live at Murungi’s home with my cows. I do not understand English well. I made a statement with the police in September of 2008. It was on 16th September, 2008 at about 9. 00a.m. the incident occurred on 16th September, 2008 at 6. p.m.

The five men who attacked us were Kailibi, Kingori, Meme Kitheka, Muriuki, Muriuki is not in court today. Witness shown his statement states this statement is mine. It was made on 17th December, 2008.

CROSS – EXAMINATION BY MRS. NTARAGWI

I said that I made my statement on 16th September, 2008, but when shown the statement by the lawyer for 1st accused is stated 17th December, 2008. The original is with the police. I never wrote a second statement. I made a report to the police and to assign an OB to go to the hospital.

After the attack I went to make the statement with the police within a month. I now state that I went to the police after I got healed. I did not take 3 months to go and record my statement.

Musembi was shot on the left side of this chest. Statement read to the witness, he states the statement is not correct when it indicates that I saw the assailants in hot pursuit and I heard Musembi shout that he had been shot. I insist that I saw Musembi being shot with an arrow. The one who recorded the statement got it wrong. I cannot recall the police officer whom I found at the station when I first made the report.

I am Joseph Muthui. I investigations diary read to the witness that he made a report at 10pm of 16th September, 2008. The report states that I mentioned Kingori, Henry Muriuki and his children. I think I was in pain when I was making the report to the police. I may have mentioned children. I did not name the children of Muriuki Kingori.

The arrow that I was shot with was left with the police.

CROSS – EXAMINATION BY MR. IGWETA

My home is Seikuru. The incident occurred at Karimba. I bought land at Kianda sub location and went to work in Karimba. I know Gedion Kingori. Those are his names I know. I knew him in 2007. I know him well. On the material day, Kinoru had a bow and C-line. It is Kingori who shot Musembi with an arrow. Kingori never spoke to us before he shot Musembi. The statement read to him. I hear it states that the group ordered us to vacate immediately. It is quite sometime by now. The statement states that without asking any question we rose and took off. I saw the attackers. I saw them approaching us before they attacked us.

Gedion shot Musembi while at a distance of about 10 metres. Approximation from court house. Our backs were against the house wall. I insist that it is Kingori who shot the arrow. I saw Meme. He had a panga a wood and rungu. It is Kingori who shot Musembi.

It is Kingori also who shot me with an arrow. I say it is Kingori who shot me even though I was running away. I did not carry any medical evidence to show that I was shot with an arrow.

I came to know the attackers because I had lived in that area for sometime.

RE - EXAMINATION

The incident occurred on 16th September, 2008. I was then aged 30 years. It is now about 10 years ago. It is a very long time.

I cannot recall the exact date when I wrote my statement. We went to the police about three (3) times. The first time was to report and went to hospital. The second time I brought the P3 and the 3rd time I wrote my statement. The statement was recorded by a police officer while I narrated to him what had happened. I narrated in Kiswahili whilst the statement is recorded in English. What I have told the court is what I told the police.

I was with the deceased and I witnessed the incident. The deceased was shot by Kingori on his chest. It was the cause of his death. I tried to remove it but could not uproot it. Kingori was carrying arrows and C-line. The others had pangas, rungus and wood poles. The nearest they came to us was 10 meters. The attackers were people I knew very well.

I made the 1st report to the police before going to the hospital. I named Kingori, Kailibi, Kitheka, Muriuki and Meme. I mentioned Kingori, Henry Muriuki. The four I mentioned are in court. Kingori is in court. Muriuki is not in Court.

I know that we are in Court because of the demise of Musembi. I know that the case touches on the death of Musembi and my being shot. I was a witness to the incident. I did not know if I was required to carry my medical records but they are there and can be produced if required.

PW3 BENARD MUNYWA SWORN AND STATES IN KISWAHILI

I am the above named. I live in Gaicho in Kianda sub location. I am a farmer. I recall on 16th September, 2008 at about 7p.m. Joseph Kabore and Jacob Mbariu came to my home and informed me that some people had come to where I had deployed the two to guard miraa and a store. That the people were armed with arrows, rungus and had petrol. That they asked for me. That they then poured fuel on the store which had food valued at over Kshs.400,000/= that they then set the stores on fire. That the attackers shot one Samson Simba with an arrow. That it is then the two ran to come and inform me of the incident. They told me that they knew the attackers well as the incident occurred during the day. They informed me that the attackers were people I had evicted with a Court Order.

I called the Assistant Chief and informed him of the incident. The Assistant Chief called the D.O who sent a vehicle they went to my farm to see what had happened. I did not go myself as I feared. The following moving, I accompanied Bariu to police station to make a report. We also made a statement on that day 17th September, 2008. On the date, I received the information about the attack, I did not visit the scene I visited the scene after making a report to the police. The two who informed me about the incident were my employees. They told me that they were at the scene, but they run away. They told me that Samson Simba had been shot. He was also one of those I had deployed to guard my farm. I had a court case with Kailibi. He had wrongfully occupied that firm. The suit was at Maua. He lost and he appealed to the High Court Meru, however the high court dismissed the case as the farm was my land. I cannot recall the case number. The land is plot No. 4103 at Kalimba area. The court allowed me to evict Kailibi.

I had a case with M’ Kailibi Kailibi (3rd accused). Points at the 3rd accused. He had put people on my farm. Those were Gedion Kingori, Meme Kiobe, Karatu, Henry Musa.

The two reporters told me that they had been attacked and my store burnt. The one who was shot was taken to hospital. I saw him with injuries on his stomach and on his left while at the hospital. The attackers are neighbours. I have known them since childhood. I did not know Musembi before this incident.

CROSS – EXAMINED BY MS. NELIMA

I did not witness the incident. The case was between me and Kailibi. I did not sue Henry Musa. He only came in at the burning of the house. There is not relationship between Kailibi and Henry Musa they are neighbours.

CROSS – EXAMINED BY MRS. NTARAGWI

The information I received from the reporteees was that those involved in the incident were those that I had evicted from the farm. I named them in my statement. I now state that I did not state that in my statement. The case was No. 90 of 2002 at Maua. The auctioneers were Japheth Konga. I got police escort. The eviction was successful and was without incident in his report to the court while returning the warrants he indicated that those who were in the farm were the wife of Kailibi and Gitaari. Those are the two whom the auctioneer found on the farm and he evicted them.

M’ Kailibi appealed to the High court. I am the one in possession. It is not true that I brought this case so that the accused should be in jail while I enjoy possession of the property. I reported the burning of the store to the police on 17th September, 2008 informed that there is no indication in the investigation’s diary witness states. I made a report and the police visited the scene. I made a statement on 17th September, 2008. Then statement dated 17th December, 2008 is not mine. I see the statement shown to me by the advocate, it is dated 17th December, 2008. I insist that I recorded my statement on 17th September, 2008.

CROSS – EXAMINED BY MR. IGWETA

I had not sued Gedion Kingori and Ibrahim. They were also squirting on my farm. They were farming there. I sued Kailibi alone because he was the one who had put them on the farm. It is Joseph Kabore and Jacob Baariu who informed me that Simba had been shot. They never told me that Kingori shot simba. The two reportees told me that they had met Gedion and Ibrahim on the material day.

RE – EXAMINED BY MR. NAMITI

After being informed of the incident. I went to the police with Baariu the following day 17th September, 2008 at about 7a.m. I do not know the OB number for my report.

After 17th September, 2008 we went back on the same day to write our statements after visiting the scene. I narrated my story while the police officer recorded in English. I recall that I mentioned the names of the attackers in my statement. It is not true that I want the accused to be in jail so that I can continue to be in occupation.

PW4 JAMES MURUNGI SWORN AND STATES IN KISWAHILI

I am the above named. I hail from Kiogoro Location, Kianda sub location in Igembe Division. Karimba is near Meru Park. I am not 49 years old. I am a farmer. I farm maize and beans. I have a farm at a place called Karimba. It is about 8 acres I farm there. It is near Meru National Park. The farm is in Kigoro location. I do not live there. I live in Thaicu, in Kianda. We usually go to farm and return home. I used to have a farm house there.

In September, 2008 that farm house was there. It was made of timber and iron sheets. It was one roomed house of about 8 iron sheets. That is where I used to store the produce from the farm before transporting it home.

At the moment I do not have farm workers there. In 2008 I used to have farm workers on that farm. They used to come cultivate for a week with cows then return to their home. There was no one living there permanently. On 16th September, 2008, there were two farm workers on that farm. These were Joseph Muthui and Joseph Musembi Katiwa. They were tilling the farm using cows Musembi Katiwa had come from Kisimani within Kiogoro Location.

Before 16th September, 2008 we had come for one week in August, 2008, they were sleeping in the farm house. Musembi Katiwa is now deceased. He is one of the deceased in this case.

On 16th September, 2008 at about 7. pm. I was in Maua where I had my vehicle, Land Rover, KAN 131C, long size Green in colour while at Maua. I received a call from Henry Kaberia a neighbour. He informed me that my house at Kalimba had been burnt. I went to the chief’s office for Kianda Sub location. I met Joseph Muthui with an arrow lodged on the right buttocks. He informed me that he was attacked by people he knew. He named thmn as Gedion Kingori, Ibrahim Meme, Meme Kiobe Kitheka Gichunge M’ Kailibi Kailibi and Muriuki Abunwasi who is now deceased.

He told me that Gedion Kingori and Meme had arrows while the others had pangas and rungus. That Meme and Kingori shot them with arrows. That the house was then burnt. It is then that they disappeared. He told me that his colleague Musembi Katiwa had been shot and was unable to walk. Muthui was with Mbataru at the time he was telling me this we went to go to see Musembi. We found that he has fallen down and died with an arrow lodged on the right side of the abdomen near the ribs. He was lying on the road. There was no one around. It was about 4km from my farm.

We turned back and went to report the incident at Maua Police Station. We were given a P3 form for Muthui who went to hospital with it. He was treated and discharged. After that we went home. I slept at my home. The next morning the police came and picked me. We went to my farm. On arriving the scene, we found the house burnt to ashes. We went back home and the police collected the body and took it away.

At Karimba, there are neighbours. Their houses were burnt. I did not go to the neighbours houses. I was only concerned with my house. I later wrote my statement with the police. In the house there were two sacks of maize and beans and other farm items. Gideon Kingori is the one on the far left. (points at 5th accused) I know him. We went to school together and he is a classmate. He is not my neighbour. M’ Kailibi is here (points at 3rd accused) He is like my uncle. Meme Kiobe is 6th accused (points at him) we schooled together.

Kitheka is the one second from right. (points at 2nd accused) I know him from birth. I know his father and mother.

I know there was a land case between Benard Munywa (Pw3) and M’Kailibi Kailibi (Accused 3). After the 3rd accused lost that case we refused to leave that farm. He was then ordered to live by a court order. They were attacking the relatives of Benard Munywa. Benard Munywa was my brother in law having married our sister. Joseph Muthui did come and testified as PW2.

Cross – Examined by Mr. Mutuma for 1st, 2nd And 4th Accused

I cannot recall the plot Number of my farm at Karimba. I have not produced anything to prove my said farm. From Thaicu to Karimba farm is about 4 to 5 KMs.

On the material day I was at Maua. It is near National Park. From Maua to Karimba farm is about 15km by approximately.

I received the call around 9. 00p.m. on that day. It was Henry Kaberia who called me. I do not have anything to show that he called me. He is only a Neighbour. There were Joseph Muthui and Joseph Katiwa. From Maua I went to Gaicu first then proceeded to Karimba. I met Muthui at Gaicu. When we went to Karimba we found Katiwa already dead and we returned to take Muthui to hospital. The arrow had been removed from Muthui’s buttocks. It is me who took him to hospital. Mbataru is not my employee. But a brother to the chief. Muthui went to the Chief’s home where he met Mbatarie. I found Katiwa already dead. From Gaicu to where Katiwa was, is about 4km. the police visited the scene and photographed it. I do not have anything to show that I had a house on that farm.

I made my statement after sometime. The statement read to him, I deny that I wrote the statement the following day. I stayed for some time I may have made the statement on 17th December, 2008 as it states.

Kisima is near Katithini. It is about 12km. I am approximating it. The incident did not happen at Kasima. Samson Simba was at Munywa’s farm not in my farm. I was not involved in the case between Munyua and the 3rd accused. The 2nd to 6th accused hail from Kindari location. It is not in my location. My location and their location boarder each other. The 1st accused comes from a different location. The persons I mentioned is my statement are in court. I did not mention the 1st and 4th accused in my statement because they were not disclosed to me as having been there. I was a maize and beans farmer. On that farm there was no miraa. Currently I grow Miraa on that farm. Muthui had his arrow removed. However, Katiwa’s arrow was lodged inside his body.

CROSS – EXAMINED MRS. NTARANGWI FOR 3RD ACCUSED

It is Joseph Muthui who informed me that the 3rd accused was involved. We went to the police and reported the same day 16th September, 2008. This was before we went to hospital. OB extract read to the witness that Joseph Muthui reported that on 16th September, 2008 at about 10p.m. Suspects attacked him on the farm. The suspects names given were Kingori. Henry, Muriuki and the children of some accused. Witness states, Muthui did not mention the 3rd accused in the OB.

It is in December, 2008 when the police called me to go and write the statement. I did not know why the police took so long to call us.

Muthui was shot with an arrow while running away. That is why he was shot on the buttocks.

Munywa is my in law. He is married to my sister. He had a case with M’Kailibi Kailibi. It is Muthui who informed me that the 3rd accused was involved.

I reported the burning of my property because I decided to pursue the murder because it was serious.

I was told the cases between M’Kailibi and Munywa was concluded and the police evicted him. Muthui told me he was shot at about 6 pm . I met him at about 9 pm. He had clothing that is why the Arrow did not penetrate it. I waited until I was called by the police that is when and went to make my statement

Cross examined by Mr Igweta for 5th and 6th Accused

I was in Maua when I was called by Benard Kaberia. He did not tell me who the attackers were. He only told me that my house had been burnt.

When I met Muthui, he was crying. Mbataru was carrying the arrow which he had removed from Muthui. Muthui told me he saw Gedion and Meme aiming arrows at them. They took off but each was shot an arrow each. I saw the body of Katiwa. I used my vehicles head lights to identify the deceased. He had an arrow lodged from his rights ribs.

I do not know whether by the time I was making my statement, the accused had been arrested. they come from a little bit far from my home. I only saw the arrow that had shot Muthui. I cant recall if I told the police that the arrow was poisonous.

The land dispute was between the 3rd accused and Benard Munywa.

Re-examined by Mr Gitonga

Nil.

PW5 Samuel Katheru Mwika (sworn States in Kiswahili)

I am the above named. I hail from Igembe South, Kianda sublocation. I am the Assistant chief of the Kianda sub location. I was appointed In February 2006. In 2008 I was 2 years old.

On 16. 9.2008 at about 8 pm I was at home. I received a report from an informer that the house of PW4 had been burnt by people he knew. It is Charles Kimwilu. He told me he was present. He mentioned Joseph Kingori alia Sara, Musa Murimi, Ibrahim Kiobe and others. These are people I knew. They are neighbours. We went to school together. Those mentioned are in court. They are over there (Points at the accused)

My informer did not mention Kitheka (Accused 2), M’Kailibi (3rd Accused) and Karatu (4th accused). On receiving the report, I called the chief, James Kibori and informed him of the report. I also informed the Investigative Officer. They told me they will take action.

While at home at about 8pm, a mzee by the name Mutua and Kaunyangi came and informed me that the house of Benard Munywa had been burnt. They came running. I informed the chief.

Later Joseph Muthui came crying he had an arrow lodged on his right buttock. Mbataru removed the arrow which I was contacting the chief. Murugi PW4 came with his vehicle and took Muthui to hospital.

The police came and we went to Githurai and found the house of Munywa burnt. We also found in a neighbours house, Mzee Samson Simba having been shot with arrows twice on his stomach and leg. He was alive.

We took him to hospital with the police vehicle. He was talking but in a lot of pain. He said he was attacked by a group of people. He was not a resident. He could therefore not recognize the attackers.

He was a labourer living on Munywa’s home. I was left behind as the police took him to hospital. The following day the police came and he went to Karimba and found many housed burnt belongings to PW4, Joseph Njoka, Josphat Gitaari, Kaura M’Araini, Mutura Njau. Those are the ones I can remember.

We passed through Kiruiro while on our way to Karimba. At Kiruiro, we found a man by the name Joseph Katiwa already dead lying or the road. He had been shot with an arrow. I cannot recall where he had been shot.

The following day, I recorded my statement at Maua police statement. The number of houses that were burnt were eight in number. That is what I can recall.

The police who came to my help were from Maua police station. All those who were attacked were in my sublocation. The accused used to be in my sublocation but not any longer.

What I know is that there was a court order in a case between M’Kailibi and Munywa. Munywa won the case. All those at Karimba were attacked by the attackers, those related with Munywa and related. The attackers are related to 3rd accused.

The 6th Accused is a clansman to 3rd Accused. The 5th accused is an in law to 3rd accused. The 4th accused is a clansman to 3rd accused. The 1st accused is an in-law to the 3rd accused.

I do not know of any relationship between the 2nd accused and the 3rd accused.

Cross examined by Mr Mutuma

I have a relationship with PW4. It is Mbataru who is my brother. I only met PW4 when he came to pick Muthui. Mbataru was at home and is the one who helped Muthui. I was at my home at the time.

I have no relationship with Munywa we have intermarriage with Munywa’s family. My chief lives in Chunga it is about 10Km from my home. The farm that had a case was at Karimba belonging to Munywa. I do not know if Murungi 4th Accused was involved in that case.

From PW4’s farm to my home is about 7 km. In my statement, I indicated that I received the call at about 7. 45 pm. My informer was Charles Kimwilu. He is not a witness.

Between PW4’s farm and Munywa’s home is about 3km Munywas’s farm house that was burnt is in Githurai. PW4 is now cultivating miraa on the Karimba farm.

Simba was at Githurai near Munywa’s house. He was in Ibrahim Kaberia’s house. He did not name the attackers as he was new in the area. I spoke to Muthui. Mbataru was present. He came and found me talking to Muthui.

My informer told me that the accused had burnt houses starting with house of Njoka and had sworn to burn all the others. The informer came at about 7. 45 pm.

Cross examined by Mrs. Ntarangwi

My informer is alive. I do not know if he made any statement. Joseph Muthui came walking. PW4 found him in my house. He was in pain. He informed one who the attackers were. He never mentioned the 3rd accused. The 3rd accused’s clan is big. I cannot tell the actual number.

I have not produced any court order or the case number which led to the 3rd accuseds eviction. At that time the land in the area was under adjudication.

Cross-examined by Mr Igweta

Muthui mentioned 5 of the accused as the one who shot him. Simba did not identify any of the attackers. The 5th and 6th accused did not have any case. Simba was only a labourer.

Re-examined by Mr Gitonga

I spoke to Charles Kimwilu the informer, Muthui named Joseph Kingori alias Sarah (5th), Ibrahim Meme Kiobe (6th), Henry Musa Murimi. He said that he did not recognize the others.

PW6 George Kithaka sworn states in Kiswahili)

I am the above named. I live in Nthaangu. I am a farmer. I recall 16. 9.2008. I was at my farm called Kamataari. I was inspecting around it to see animals destroying my food crops. It was about between 6-7 pm. I then saw about 10 people armed with pangas and arrow coming towards me. They called me and shouted my name and said that was my last day. They surrounded my house but I was not in. however, inside were Mutemi and his wife Kasyoka with two children aged 4 ½ years and 2 years respectively.

Mutemi answered them from inside that I was not in. I was at the time about 20 metres away. I hid behind a huge tree. From where I was I could hear them. They surrounded the house and put fire on it. It was a 14 x 12 grass thatched house. The other house was 10x12.

Mutemi and his wife run away to the forest/thicket. I tiptoed to the neighbours house where I spent the night. In the morning I went to Tumutumu police post and reported the incident. The damage was of about Ksh. 30. 000/=. The incident was between 6 and 7 pm. There was darkness when they came. However, on putting the house on fire, there was a huge fire. I could see them well from where I was. They were about 10. I knew them and recognized them. I recognized 4 of them. I recognized:-

1. Musa son of Francis Laibuta

2. Meme Kiobe – 6th accused.

3. Kingori Kalwaba

4. M’Kailibi Kailibi

These are the 1st accused, 5th accused, 6th accused and the 3rd accused. (The witness walks across the court room and identifies the subject accused)

These were neighbors. They live in the neighboring village. I did not know why they did what they did.

I do not know who Samson Simba is. I only hear of him. I also do not know Musembi Mutemi.

Cross examined by Mr Mutuma

The land was mine. The house was mine. Mutemi was in my house as I had employed him. I was living at Nthaangu. I was not living on that land. He was guarding for me.

The incident occurred about 7 pm. I could see them from 20 meters. At that time my eye sight was good. I was 60 years then. I am now 70 years. There was an arson close in Maua.

I did not see any court order. It was between M’Kailibi and another. I was not there whenever they met. They sung at my house war songs. I did not see anyone being killed. I did not see Musembi being killed. It was Mutemi who was in house. He was my employee from Ukambani. He went to his home.

I cannot tell the nature of clothing they were on. Munywa is my in-law. Munywa had a land case with M’Kailibi Kailibi. The others are his children. I am here on my houses burning.

Cross examined by Mrs Ntarangwi

When they were burning the house, they were not facing me. They were facing the burning house. I reported the incident the following day. I recall making a statement at Maua Police Station. I cannot recall when.

After I made my report at Tumutumu. I waited for them to call me. I went the following January 2009.

I ran way after they started singing battle songs. I hid for sometime then ran away. Put that he did not mention M’Kailbi Kailibi in his statement (read to him). I saw him although I have not mentioned him in my statement.

Munywa is married to my sister. He is married to Karimi my sister. He had a case with Munywa.

I a not mentioning Kailibi M’Kailibi in order to help my brother in law. I do not know any other offence that they committed. I have only said they burnt my house. I do not know if they went to another village to murder people.

Cross examined by Mr Igweta

I knew Meme before the incident. It is the Meme in court I saw that day. The 5th Accused is called Kingori Kalwamba and also Gedion. All of them had a match box each. I named those I recognized. I do not know who was killed. I cannot tell who called my name and stated that I come out of the house as it was my last day.

Re-examination by Mr Namiti.

The Incident was in 2008. It is over 10 years ago. Now I cannot see well. My eyesight then was perfectly ok. I never saw anyone get killed. I heard them sing that they will go to their land at Arimba to plan the war. They were armed with arrows, pangas and clubs.

PW7 Jacob Baariu Mubea (sworn and states in Kiswahili)

I hail from Kianda villageThaangu. I am a farmer. I recall on 16. 9.2008 about 6 pm. I was at Benard Munywa’s place. I was with Kabore and Simba. He had employed me to irrigate miraa with water. About 8 people came led by Musa. Musa was carrying a small Jerican/Container Adriano asked us where Munywa was. We told them he was not there.

Gedion Kingori told us to sit down. When we sat Musa sprinkled a liquid on the house. It was fuel. We run away. They started shooting arrows. I ran away. I heard someone screaming behind. Simba was the one screaming. I know this the following day that it was Simba. When the attackers came they had arrows and pangas. We were 3 of us but one of us was shot.

It was about 6. 30 pm . I ran towards my house through thickets. The following day I heard that Simba had been injured and taken to hospital. He died afterwards.

Neither I or my other colleague was injured only Simba. It was about 6. 30 pm. There was some light. It was not yet dark. I knew them. Musa is my village mate. We went to the same school. I saw all the 8 of them. I recognized Musa (1st Accused), Kitheka Kiobe (2nd Accused), Karatu (4th Accused), Gedion Kingori (5th Accused), Meme (6th Accused)

The others are not here like Gitari, Mulindi, Adriano and Muriuki Abunuasi. These are the ones I saw. I later came to know that there had been a court order which had ordered their eviction. Simba later died. I did not know Mutemi Musembi Katwii. We are clan members. Before this incident I knew them as they were just friends.

Cross examined by Mr Mutuma

I was with Joseph Kabori and Simba. We were ordered to sit down by Gedion Kingori. I come from Thaangu village. I have not seen arrows and pangas here. All of them had arrows and pangas. I do not know why they were not brought.

After things went bad, I took off. I saw an arrow in hospital when I went to visit Simba. Each one run unto his own way. I visited Simba in hospital. I recorded my statement on 17. 12. 2008. The Police took time to call us. There was TumuTumu police post. Where I wrote my statement. I did not record the statement at Maua police station but at Tumutumu police post. After I left the scene I went home. I did not go to Munywa’s home. If my statement states as such, it is not correct. I did not see Simba being taken to hospital. The statement is not correct to that extent. I do not know Mutemi Musembi.

Crossexamined by Mrs Ntarangwi

Benard Munywa is only an employer. When we saw Musa sprinkling fuel on the roof of the house, we took off.

The farm of George Kithaka to Munywa’s place is a little bit far. It is a 30 minute distance. Mutemi was shot far away at George Kithaka’s house. I was at Munywa’s farm. I do not know who killed Mutemi.

SIGNED

HON A. MABEYA

Cross examined by Mr Igweta

Gedion was with arrows. Meme had arrows and a club. We squatted then ran away when we felt the smell of fuel. I cannot recall where to Simba ran to.

After we started running I never saw the 5th and 6th accused shoot any arrow. Simba had an arrow on the leg and stomach. I heard there was a court order which caused all this problems. I never saw it.

Re-examination by Namiti:Nil

PW8 Dr. Kenneth Muthuri (Sworn states in English)

I am the above named. I am working in Meru Referral Hospital with qualification of MBCHB Kampala University 2014. I have been at the hospital for 3 years. I have a post mortem form issued by Maua police station on 26. 9.2008.

It is in respect of the body of Mutemi Musembi Gatui. It is in respect of the post Mortem carried out at the hospital mortuary on 26. 9.2008. it was carried by a Doctor Macharia, Senior Medical Officer. It is stamped by the Hospital stamp.

Dr Macharia left the hospital. We do not know where he is. I am familiar with his signature in this and other documents.

From the Report the body was of a male African apparent age 30 years of 5”4”. The body was moderately decomposed.

Externally, there was a penetrating chest wound on the right part of the chest. Internally, the respiratory system there was a penetrating chest injury on the right chest haemothorax.

The rest of the systems were normal. The cause of death was opined to be cardio pulmonary arrest secondary to penetrating chest injury.

Death certificate No. 0069589 signed and stamped by hospital stamp. There were witnesses who identified the body as Robert Munyoki Kaura and Joseph Muthui. I wish to produce it as PExh I

I also have a post mortem report in respect of the body of Samson Simba. It was conducted at Nyambene district hospital on 23. 12. 2008. It was conducted by Dr. Odanga. Nyambene District hospital is under our Referral Hospital. It is duly stamped by the hospital stamp. The body was identified by Benard Munya and another.

I do not know Dr. Odanga. The document is a formal and official document from that hospital.

The postmortem took place at Maua Methodist hospital on 23. 12. 2008 at 11. 00 hours.

It was a body of a male adult apparent age 40 years with good nutrition status. Average physique 168 cm. post mortem changes was cold due to refrigeration. Externally there was a cut on the left mid abdomen approximately 3 cm. sutured communicating with abdominal cavity.

There was an extended midline incision. There was a deep wound on the left thigh just above the left knee approximately 10 cm.

Internally, there was a perforation of the small gut 2 in numbers approximately 2 cm that was sutured. There was perforation of the semi colon approximately 3 cm and was also sutured.

Chemoperitorium approximately 20mls (blood in the abdomen). The rest of the systems were normal. The cause of death was opined to be cardiorespiratory arrest secondary to poisoning by arrows.

It was signed by Dr Odanga and stamped accordingly. I wish to produce it as PExh 2.

Cross examined by Mr Mutuma

On PExh 1, the police indicated the death to be on 16. 9.2008 at 11 pm. The post mortem was done on 26. 9.2008. it depends on when a post mortem is to be done. The body had decomposed meaning the body was not well preserved. Not withstanding that the body was decomposed, the report is still conclusive. As the injuries could be seen. I am not the one who conducted the examination. On PExh2, the exam was on 23/12/2008. The date of death is indicated as 16. 9.2008. The post mortem was done 2 months after the date of death. It was done at Maua Methodist hospital.

I see a statement by Munyua. He says that the body was taken to Meru Central District Hospital. The body is usually identified by the net of kin. If not identified by a next of kin, a doctor cannot exactly state whose body he examined.

Although the exam was after 2 months, the report is conclusive and the cause of death. There were no tests done to confirm the presence of poison. I cannot explain how it was arrived at that the death was due to poison.

Cross examined by Mrs Ntarangwi

I do not know the nature of identification used. At decomposition, there is a likelihood that there would be interference of the identification

Re-examination by Mr Gitonga

With regard to PExh 1. The other name of Mutemi Musembi is Gatui Munyua stated that the body was removed to Meru Central District Hospital. It his body (Gatui) that was examined at Meru Central District Hospital Mortuary. It was identified by Robert Munywoki Kaura and Joseph Muthui. Munyua’s statement refers to the body of Gatui to Meru Central Hospital Mortuary.

On PExh 2, as a doctor can give an opinion about the poisoning without going to toxology. Here the doctor only gave his opinion.

PW9 No. 79799 IP Abdi Hussein Adan Sworn States in Kiswahili

I am the above named. Currently attached to Marakwet West Police station in Elgeyo Marakwet county. In 2008, I was at Maua police station.

On 17. 9.2008, at about 6 am I received a report that a murder had been committed and arson at Thaicu area.

In the company of the D/OCS IP Wakaba PC Ekoron and others whom I cannot remember went to the place. On arrival we found the body of Musembe Gatua lying on the road. I had an arrow lodged on his chest.

We removed the body and proceeded to the farm where we found so many houses had been burnt. We also found that there was someone else who had been shot with an arrow and had been rushed to the hospital. His name was Samson Simba. He had been injured in the stomach. He succumbed to the injuries at Maua Methodist hospital.

I recorded statements from some witnesses and witnessed on the post mortem on the body.

On 11. 12. 2008 two suspects by the name M’Kailibi Kailibi and Daniel Karatu were arrested, by the instructions of the OCS.

I handed over the case to the DCIO Igembe North for further Investigations.

In the course of the Investigations I got 8 suspects by the names of Kingori Sarah, Muriuki Alias Abunwasi, Ibrahim Meme, Musa Murimi, Kitheka Gichange, Karatu, Muthani Mutinda and Adriano Munene.

Initially, the witnesses mentioned 3 suspects. But they had indicated that the suspects were 8 in number. I did not have the opportunity to know the suspects.

In my investigation, I established that the reason for the destruction was that there had been a court order issued to evict M’Kailibi from the farming Benard Munywa. The Order was executed by the OCS, Maua. It is on the said execution that the destruction followed.

This is the far that I was involved in the Investigation of this case.

Cross examined by Mutuma for and on behalf of all the accused.

When I went to the scene, only Musembi Gatua that we found. We did not find the other victim. He had been taken to hospital. We did not find any other people at the scene. I was not there when the accused were arrested. I handed over the file to the DCIO, Igembe North. There was another Investigating Officer by the name PC Geoffrey Mwiti. He recorded statements but I do not know which ones.

In the original police file I have seen PC Geoffrey Mwiti’s Statement. I am not aware if that statement was not supplied to you. The accused were arrested later. I do not know if there was any Identification parade that was conducted.

I do not know the accused. The 8 people I have named were given to me by the witnesses whose statements I recorded.

I recorded my statement on 27. 1.2009.

I witnessed the Post mortem of one of the bodies. It was Musembi Gatua.

The post mortem for Mutemi Musembi shows that it is PC Daniel Lokelo who witnessed the post mortem. I did not record any other statement further to the one I had recorded in January 2009.

I indicated in my statement that the accused were never mentioned by any witnesses and I forwarded my recommendation to the DPP that the accused be released. I was referring to M’Kailibia and Daniel Karatu. This is what I had by the time I handed over the file. I did not have any other suspects by then. In my statement I named other suspects. There were only 2 suspects who were in custody. M’Kailibia and Daniel Karatu. These were the ones I had recommended they be released.

By the time I was handing over. I had not seen the other suspects.

I do not know who preferred the charges. No one was charged for arson.

I see the post mortem for Samson Simba. It was conducted on 23. 12. 2008 which I witnessed. This is when I got the family members to identify the body.

This matter was initially reported on 17. 9.2008. OB no. 64 of that date. It was made at the Maua police station. I am not the one who arrested the two. It is the OCS who gave instructions for the arrest of M’Kailibi and Daniel Karatu. They were arrested for forcible detainer. I am not sure for what he was being arrested. The Investigating diary shows that they were being arrested.

The Investigation diary shows that they were being arrested for murder and assault. The OB of 30/11/12/2008. Daniel Karatu was to be charged with the offence of suspect of murder or contempt of court.

Ibrahim Murimi was to be charged with the offence of Robbery, illegal death. OB NO. 27/11/12/2008 indicates that M’Kailibi was placed under custody for “Civil Service No. 90 of 2002”. I think there was a typing error. He was a suspect of murder. In my investigations I did see the court order the precipitated the violence. I do not have a copy of the same.

Cross examined by Mrs Ntarangwi

According to the first report, it was made to the OCS but I cannot remember by who. The name of the 3rd accused M’Kailibi was not reported as having been seen at the scene. It is the report of 17. 9.2008.

The report does not state who made the report. Names of suspects were not given. I was the initial Investigating Officer. This is why I recommended that the suspects be released. This was as at that time. I had not recorded all statements from other witnesses.

Some witnesses were volunteering in January 2009. Maybe they were fearing and opted to come out later. I do not recall any of them informing me that they were fearing for his/her life.

M’Kailibi had been sued in Civil Case No. 90 of 2002. I do not know how the parties were in that case. The only person to answer the questions as to whether the accused were charged on mere suspicion is the DCIO Igembe North.

Re-examined by Mr Namiti

It took a period of 4 months to record statements because there was tension in the area and witnesses took their time. As an Investigator, there is no time limit within which witnesses have to record statements.

After the incident it took us more than 2 hours to arrive at the scene. We could not get the suspects at the scene. In my statement as at 11/12/2008. I made recommendations when I had only 2 suspects, M’Kailibi i.e and Daniel Karatu. This was based on the information held as at that time.

When put on their defence the accused persons led evidence as follows:

DW1 ADULT MALE CHRISTIAN SWORN AND STATES IN KISWAHILI: -

I am Henry Musa Murimi. I have my Identity Card No.14639547. I live at Kijuru Ward, Kianda Sub-location, Ndimene village.

Before I was arrested I worked as irrigation assistant at Miraa Shamba. I have been charged with Murder in 2 counts. One for Samson Simba and Mwiti.

I am charged with 5 others whom I do not know. I got to know them while in custody at the Prison.

On 16th September, 2008 I was at Ndinene village. It was at 4. 00p.m. In afternoon. I had been employed by one Josphat Miriti Simba. I was hired to irrigate Miraa plants. We irrigated the Miraa plants from 4. 00p.m. On 16th September, 2008 up to 7. 00a.m. On 17th September, 2008.

I then went off to bed. I slept from 7. 00a.m. In the morning to 1. 00p.m. When I woke up I then went with chores at my home, giving my cows water. I stayed at my home up to 7. 00p.m. As the children were coming from school, I left home to a shopping Centre to buy batteries for my torch. I went with the Sub-Chief Samuel Kathero who asked me to accompany him to a canteen, a shop. At the shop, we found the OCS Maua Police Station with 12 officers. One of them came from where we had sat down and informed me that I was under arrest. He said that I had burnt down the house belonging to Munyua Bernard. I was then taken to police post at Tumutumu, where police post I was held overnight. It was morning of 18th September, 2008 I stayed in the police post upto 12. 00noon when I was taken to police station at Maua where I reached at 4. 00p.m. I was arraigned in court on the following day 19th September, 2008. I was charged at Maua Law Court with the offence of arson for burning the house of (Pw3) Munyua. I denied the charge and I was granted a bond of Kshs. 100,000. I was released on bond. In December, 2008 when I secured bond.

In January, 2009 while coming from court I met with Munyua with 2 person who I later learnt were police officers. They took me to Maua Police Station. They said I had killed a person. I stayed at the station about 14 days and I was brought to court High Court and charged with Murder.

I didn’t commit the offence. I have heard the evidence of the prosecution witnesses. The evidence is false. When I was hired by Joseph Miriti Simba I knew he had a grudge with Benard Munyua invloving land. The case at Maua. Munyua Kirege trumped up a charge against me as I worked for said Joseph Miriti Simba. The case had started in 2009 – Criminal case no. 15 of 2009. R.V. Henry Justin Murimo and those who are charged in this case except Gedion Kingori.

The evidence of prosecution witnesses in Criminal 15 of 2009 is different from the evidence given by the said witness in this case No. 7 of 2017 (High Court after the mistrial. Proceedings Exhibit No. 1.

The 2 witnesses James Muriungi and George Kihaka (Pw4 and PW6 respectively)

(Statement of James Muriungi) James Muriungi has not mentioned my name. I pray the statement of PW4 marked DW 2.

(Statement by George Kihaka) The statement does not mention my name. The evidence related to the death of Mutemi. Statement of George Kithaka DW1 No. 3. In Criminal Case No. 15 of 2009 there was no I. O. that is all.

CROSS – EXAMINED BY DPP MS. NANDWA

On 16th September, 2008 at 7. 00p.m. I was at Miriti Simba’s farm irrigating Miraa trees. I have worked for Miriti Simba for 2 years. I was working together with Miriti Simba and other persons who I can’t recall. I have a witness.

From 4. 00p.m. to 7. 00a.m. We’re working day. We were irrigating the Miraa Shamba. It is usual to irrigate Miraa plants through our the nights as sometimes there is no water during the day.

I got to know Benard Munyua. My children and his went to the same school. We are in the same area. I knew him well.

The shamba case between Miriti and Munyua was over ownership of the shamba. Miriti Simba won the case. The case was at Maua Court.

Witness Jacob Baariu evidence is not true.

CROSS – EXAMINED BY COUNSEL FOR ACCUSED 2,3,4,5 & 6

Nil

RE-EXAMANATION BY MS. NANDWA

Nil

DW2 ADULT MALE CHRISTIAN SWORN AND STATES IN KISWAHILI LANGUAGE: -

I am Joseph Miriti Simba. I come from Thango Village area Ndimene. I work as a farmer. I cultivate Miraa, Maize and beans. I have come to testify for Henry Musa.

Before he was arrested I had employed Henry Musa to water Miraa at my shamba. I hired him for about 2 years.

On 16th September, 2008 I asked Musa to accompany me to irrigating my shamba. We started irrigating at 4. 00p.m. Until 7. 00a.m. The following morning. I then went to sleep at my home and he also went away to his home. The distance from my shamba to his home for 1st accused is about 500 meters. I left home at about 6. 00p.m. I was told that he had been arrested. I went where he had been detained and he told me he had been arrested.

CROSS – EXAMINED BY MS. NANDWA FOR DPP

We were at the shamba from 4. 00p.m. We were irrigating Miraa trees. My shamba is about 2 acres. We use machine generator and pipes to water the trees.

We use the generator to pump the water and we use pipes to water the plants. We need more than one person. We did not use a sprinkler. One cannot leave the watering exercise. It is a continuous exercise. It is about 2 acres of land. It depends in the flow of water. We irrigated from 4. 00p.m. to 7. 00a.m. In the morning. We can be there the whole night irrigating the 2 acres shamba. There was no one else who was with us while we irrigating the shamba. My wife knew I was irrigating as she was the one who gave us tea in the evening. The family of the 1st accused also knew about as he left there in the morning. There are witnesses to be called to support this evidence. It is not true that I was with the 1st accused that day.

CROSS – EXAMINED BY ACCUSED 2,3,4,5 & 6 COUNSEL

Nil

RE-EXAMINED BY MS. NANDWA

Nil. That is the close of the case of the 1st accused.

A2 DW1 ADULT MALE CHRISTIAN STATES IN KISWAHILI LANGUAGE

I am Stanley Gichunge Kitheka. I reside Karingene area, Kiguune Sub-Location Kiindaani, Igembe South. Before I was arrested I worked as a Miraa farmer. I know the charges of Murder facing me. I do not know my co-accused. I got to know him in prison.

On 16th September, 2008 I was at Kanjo Location Igembe North. I went there on 12th September, 2008. I was at Kanjo where I worked as a casual labourer until 15th November, 2008.

The alleged killing happened at Kiigine Village, Kianda Sub-Location is very far from where I was on that day. It is a day’s trip from Kisima to Kanjo. I was there from the date it is said the killing happened until 15th November, 2008. After coming back home. I was arrested during the December holiday on 13th December, 2008. When I was taken to DO’s camp and later taken to Maua Police Station. I have been arrested for drunkenness.

At the station I was held for 5 days and when called to the OCS office where I found 5 people who I did not know but later learnt they were witnesses in the case, they were: -

1. Benard Munyua

2. Denis Murungi

3. Jacob Baariu

4. Joseph Kaburi

5. Muthuri Mwangi

Benard Munyua told the OCS that I was one of the M’Kailibi’s clan. M’Kailibi is the 3rd accused. Munyua said that I was one of the people who burnt the house. I was then charged with case in December, 2008. It was at Maua Police Station we were charged at Maua Court. I got a bond and we proceeded with the case.

On January 31st 2009 I was arrested while coming to attend court for the arson charge. I was arrested and taken to Maua Police Station. I stayed for 10 days but I had not been told the reason for my arrest. I was charged before the court in January 2009. I do not recall this. When I came to court we were two, Henry Musa and I. We were charged with Murder. It was in case No. 15 of 2009. I testified in the case. The case went up to the end.

Proceedings of criminal case no. 15 of 2009. The evidence in Criminal Case No. 15 of 2009 is different from the evidence produced in this case.

The evidence of investigating officer in this case arose from the case of M’Kailibi and Munyua. I was not one of the parties in the case. I have no relationship with M’Kailibi.

All the witnesses of prosecution Joseph Kabiru (PW1) and Jacob Baariu (Pw7) are brothers to Benard Munyua. Murungi and Kithaka are in laws. Pw4 and pw6. It was a frame up charge which brought persons who were members of clan of M’Kailubi. Accused no. 4 is related to Accused No. 3. I do not belong to the clan of M’Kailubi.

CROSS – EXAMINED BY MS. NANDWA FOR DPP

I was at Kanjo. My family knew I went for causal labourer but they did not know exactly where. I did not inform them. I said I would tell them when I come back. At the place I worked it was the work of picking Miraa. I was permanently employed. I would get causal labourers from different persons.

On 16th September, 2008 at 7. 00p.m. I had come from the shamba. I did not have a person who will testify that I was working there. I was just a casual labour and I did not know people there.

It is not true that I was at Benard Munyua’s Shamba. I got to know Munyua from the statement and the appearance in court.

I got to know that Joseph and Jacob were brothers and they said so in court.

I did not know the 3rd accused. I heard him say that the 3rd and 4th accused were elders. I heard it at this court when testifying.

CROSS – EXAMINED BY ACCUSED 1,3,4,5 &6

Nil

RE – EXAMINED BY MS. NELIMA FOR 2ND ACCUSED

Nil

A3DW1 SWORN AND STATES IN KIMERU WITH INTERPRETATION BY COURT ASSISTANT MUCHUI.

I am M’Kailibi Kailibi. I come from Kendani Location. I know the charge that I face before this court. It is a charge of Murder for 2 people. I am charged with 5 others.

I only knew Daniel Karutu 4th accused. He is son of my brother who was left with me when the father died. I am not related with any other accused person. We do not even hail from the same clan. I do not know what they were charged with.

I heard that one of the deceased person is Simba and the other Katui. I also heard that Samson Simba. It was said that the incident happened on 16th September, 2008.

On that date 16th September, 2008 I was at Nanyuki on a charge. I was with the 4th accused as I can’t recall he had come to help me. I had gone to see Advocate Murangi to help me with an appeal. He had filed the appeal but we wanted us to prepare for the appeal. The appeal arose from a shamba case at Maua Law Court. I had appealed to the High Court here at Meru.

In the Shamba case, Benard Munyua was the plaintiff. He testified in this court in this charge (as PW3). The judgment of the Shamba case at Maua was against me.

I was born in 1923. I am 97 years old. I had stayed on the shamba since 1964 and I used to cultivate on it and it belonged to my father.

When people came to be removed from the Shamba. I have 2 wives. The younger wife was living on the shamba. The 1st wife is at Kiguura in Kindari ward. The eviction on the shamba in June, 2008.

The person who living on the land in which I have a dispute with Munyua. At the time was my wife and Kiamira, a young man. There was also a young man called Gitari.

On the date when it is said the people were killed I had gone to Nanyuki. I came from home to Nanyuki early in the morning. I found the advocate was not present and he came the following day. I left Nanyuki at 5. 00p.m and came to Meru, where I slept because I did not have sufficient bus fare. I do not recall the name of the place I stayed. I hired out a room. On the following day I went to court on the appeal from the shamba case. The appeal did not proceed as the other person Benard Munyua did not attend court.

I went home and found the matter of the killing. My home had also been burnt. I have 2 wives. I stayed with the first wife at Kiguma. I stayed there for the night and the next day. I went and found that my stores had been burnt.

I was arrested at Maua and I was charged with refusing to get out of the Shamba. I was arrested with 4th accused. I was brought on the charges of this case later after I had been released on the earlier case.

I did not know the 2 people.

CROSS – EXAMINED BY MS. NANDWA FOR DPP

I had gone to Nanyuki on the date 16th September, 2008. I was with Karatu Daniel the 4th accused. When we did not get the advocate we came back with Karuti to Meru.

The appeal on the shamba case has not been concluded. The file is still before the court.

I do not have witness as I was with Karuti in Nanyuki and later at Meru. It is not true that we were at the area where the incident happened.

When I went to the home of the younger wife I found that the house had been burnt and my wife had run away. I reported the matter of burning of my property when I went to report I found Munyua and I was arrested over this case. I went to report at the police station on a date I cannot recall.

CROSS – EXAMINED BY COUNSEL FOR 1,2,4,5 & 6

Nil

RE-EXAMINED

Nil

A4DW1 ADULT MALE CHRISTIAN SWORN AND STATES IN KISWAHILI LANGUAGE.

I am Daniel Karatu Michubu. I come from Kigumo Sub-location Kindani Location, Igembe South.

Before I was arrested, I was working in Miraa Business. I used to buy and sell Miraa. I only knew the 3rd accused in this case. He is my Step-Father. I am aware of the two charges of Murder. The 1st accused is Mugambi Katua and 2nd is Samson Simba.

It is alleged that I killed 2 people on 16th September, 2008 together with my co-accused.

On 16th September, 2008 Mzee Kailibi came to my home at 5. 00p.m. In the morning and woke me up and he requested me to go with him to Nanyuki to see his advocate. The advocate was Mwangi and he was to go and see him for purposes of preparing for appeal which he had filed in a shamba matter between him and Benard Munyua. The appeal number of the case is no. 93 of 2008 at Meru High Court.

I accompanied Mzee Kailibi and we reached at 1. 00p.m. We left Nanyuki at 8. 00-8. 30a.m. and reached at 1. 00p.m.

At 1. 00pm. We reached Nanyuki and at 2. 00p.m. We went to the advocate’s office. We were told to wait for the advocate who was not in. We waited upto 4. 00p.m. But the advocate did not come. The advocate’s clerk advised that the appeal was set for the following day. We should go and we will meet the advocate at the court.

Mzee Kailibi and I left Nanyuki and came to Meru. We arrived at about 7. 00p.m. as I did not have fare to go and come back to Meru as well as Mzee, we rented rooms to stay at Meru and the next day we came to court. The following day we met the advocate and we came to court. The case was called out. Mzee Kailibi stood but the other person Munyua had not come. We were asked to wait for about 2 hours and when the matter was called and the other person had not come, we were given another date.

On 17th September, 2008 we went back home and when we arrived at about 1. 00p.m. Mzee was told that the house had been burnt. Mzee spent the night and went to report to the police station at Maua on 18th September, 2008. I was with Mzee and when we went to the police that is when found Benard Munyua, Kaburi Joseph and James Murungu. Benard pointed out as the people who had refused to vacate the shamba. We were arrested even before we reported at the OB desk. We were charged with an offence of refusing to vacate the shamba.

The following day were charged with the offence we were given bond. We were represented by Manjaru Advocate. We were released on bond on that date.

We were later arrested on 11th December, 2008. We were arrested at Maua Police Station. We had gone to hear the case of refusing to vacate the shamba. I was arrested with Mzee Kailibi. We were told that we had refused to vacate the shamba. We were charged and were granted bond. We were later arrested and charged with this case.

Prosecution evidence. It is that time I did not reside on the disputed land. I stayed at Kiguma Sub-Location. The prosecution evidence is false.

CROSS – EXAMINED BY THE DPP

On 16th September, 2008 I had gone to Nanyuki and we came back but slept at Meru. We did not have enough money to go home and come back to Meru. So when we arrived at Meru we decided to rent a room at Meru for Kshs. 200. It is somewhere in Meru. I can’t recall the place. The bus fare is Kshs. 200 at the night. We got one room Kshs. 200. It was a single room. It was a room I can’t recall the name of the building. I was new at Meru. I can’t get a witness to confirm that we spent at Meru that night. I had taken the 3rd accused.

On 18th September, 2008 that the houses had been burnt. It was at Maua Police Station. We were not allowed to get to the report desk as we found Munyua and Kabiru at the door of the office to OCS. They pointed us out and we were arrested.

It is at time that we were at the scene of crime on 16th September, 2008. The 3rd accused’s wives knew that I had taken him to Nanyuki to prepare for the appeal. They can come to court.

CROSS – EXAMINED BY ACCUSED PERSONS 1,2,5,6

Nil

CROSS -EXAMINED BY MISS. NANDWA

Nil

RE – EXAMINED BY MRS. NTARANGWI FOR 3RD ACCUSED

The Appeal Case was No. 90 of 2002 at Maua Law Court between Mzee Kailibi and Benard Munyua. It was Benard Munyua who had sued Mzee Kailibi. The case at Maua had been delivered in 2008. I do not remember the date of judgment.

After the decision Mzee appealed to the High Court at the time Advocate Mwangi did the case for Mzee Kailibi was in a law firm at Maua. I do not know the law firm. The law firm had offices at Maua, Meru and headquarters at Nanyuki.

A5DW1 ADULT MALE CHRISTIAN SWORN AND STATES IN KISWAHILI LANGUAGE.

I am Gedion Kingori Karwamba. I hail from Kithani ward, Kilili Sub-Location. Before arrest I worked as a businessman. I buying and selling Miraa. I have been charged with killing 2 people. I heard one is called Simba and the other Mugambi. I do not know them. I also do not know the co-accused. I got to know them when we were arrested.

On 16th September, 2008 I was in Ukambani area Tseikuru selling my Miraa. I was in Teikuru from morning to 6. 00p.m. When I went to rest at Treikuru. I was never at Kisimani village where the killing allegedly happened.

I was arrested 28th January, 2010 while at the market at Maina buying Miraa to take to Ukambani. I was arrested by Sub-chief Samuel Katheri of Kianda Sub-Location with 2 police officers. They didn’t tell me why they were arresting me. They took me to Maua Police Station. I was locked up in the Maua Police Station.

On 1st February, 2010 and I was taken to OCS’S office. I found 4 people. 2 men and 2 women. I recall 2 people. James Murungi, Ibrahim Mbarara. I was asked whether I knew of person of the 4. I said I knew the 2 and I used to do business with James Murungi in the Miraa Trade. I said I had no information to what was happening.

When I was brought from Maua to Meru I was charged with Criminal Case No. 5/2020. It was a charge of Murder of one Charles Mwirigi.

I was later on 16th May, 2012 while in the custody I was produced before the court and joined together with the co-accused in this case. I was charged with killing of 2 people at Kisimani village.

Prosecution evidence of PW3 Joseph Mbui Mwirigi that I was seen with an arrow is false. The witness is a worker for James Murungi. He lied to court that he had also been shot. His evidence was contradicting.

The Prosecution Evidence is false. The witness were from the same family. I have no relationship with M’ Kailibi.

CROSS – EXAMINED BY MS. NANDWA FOR DPP

I was in Treikuru Ukambani selling Miraa on 16th September, 2008. I have no witness. My wife knew about it. My brother knew of my business. When I was arrested they were arrested and got scared.

I do not know any of the co-accused. I was joined in the case in 2012. It is true that I had another case before Ong’injo. I was arrested. I was with Accused No. 6. We were both arrested. It was Case No 5 of 2010 and later 23/2014. We were sentenced to death.

It is not true that it was me in the person who killed the deceased in this case. I was at Tseikuru.

CROSS – EXAMINED BY MS. NELIMA FOR 1, 2, AND 4 ACCUSED

Deceased Mutemi according to prosecution evidence was an employee. I do not recall from either person.

CROSS – EXAMINED IBY MS. NTARANGWI FOR 3RD ACCUSED

Nil

RE-EXAMINED BY MR. IGWETA

Criminal Case 23 of 2014. We have appealed the Judgment. It has not been heard.

A6DW1 ADULT MALE CHRISTIAN SWORN AND STATES IN KISWAHILI LANGUAGE

I am Ibrahim Meeme Kiobe. I hail at Kiguma village. Before I got arrested I was working as a farmer at Kiindani Location. I know the charges before me in court. I do not know the deceased regarding the Murder charges.

I do not know the co-accused. I met the co -accused when the case in 2014 was consolidated when I was joined to the case I was alone.

On 16th September, 2008 in the morning we quarreled with my wife and I was left with my children at home at Kiguma. My wife is called Mureti Zaberina.

My wife went back to her home and I was left with my children. They were young about 6 years a boy, 3 years a boy and 1 year a girl.

I stayed with my children until the evening. My wife did not come back and in the morning of 17th September, 2008 I decided to take the youngest child to where my wife was. On the 16th September, 2008 I did not leave home and I was taking care of the children.

From 2008 I was arrested 2013 on 15th August, 2013. I was arrested alone by an officer named Murega. I was working on timber cutting. The police officer said he was arresting for cutting timber and he arrested me together with my power saw to Maua Police Station. At Maua police station I was informed that I had killed one Joseph Mwirigi. In Case No. 23 of 2014 I was charged alone first and latter consolidated with accused 5 and the 1st accused.

As we went on with the case I was prosecuted before the court and joined together with the co-accused in this case on killing Mugambi and Simba.

Prosecution case the evidence of PW3 Joseph Mbui Mwirigi that he saw me with arrows was the 5th accused was false. I was not there at the scene.

CROSS – EXAMINED BY MS. NANDWA FOR DPP

On 16th September, 2008 it was in a quarrel with my wife. I have neighbours where I live. My neighbours knew I had a disagreement with my wife. Came to testify and his fear to be jailed.

I am a farmer on 16th September, 2008 I was at home. From September, October, November and December 2008. I was at home at Kiguma.

I was at home the year 2009. I was a home also on 2010, 2011, 2012 and 2013. It is not true that I had run away from home. I was cutting timber when I was arrested.

I do not have a witness as to where I was between 2008 – 2013. The only person who could come as a witness died last year. It is not true that I had run away from home.

CROSS – EXAMINED for ACCUSED 1,2,3,4 AND 5

Nil

RE – EXAMINED BY MR. IGWETA

I was not in the case of the co-accused when a retrial was declared. I was mentioned only in 2017. I was not in the Criminal Case No 15 of 2009. ”

Submissions

7. The Counsel for the 1st accused and 3rd accused filed written submissions. Counsel for the 2nd, 4th, 5th and 6th accused did not file written submissions but oral submissions were made on their defence. For the DPP, Ms. Nandwa Prosecution Counsel, who had not filed written submissions on the date the matter came up for highlighting of submissions chose to rely on the evidence on record.

8. For the 1st Accused, Ms. Nelima filed submissions dated 3rd November 2021 fashioned on the elements of the offence of murder as follows:

“1. DEATH OF DECEASED

Your Lordship the death of the two deceased persons is not in dispute neither is the cause of death. The post-mortem forms both prove that the deceased persons died and also show the cause of death.

2. PROOF THAT ACCUSED COMMITED THE UNLAWFUL ACT WHICH CAUSED THE DEATH OF THE DECEASED.

The accused person is charged with two counts of murder. The first count is in relation to MUSEMBI KATIWA and the other to SAMSON SIMBA.

With respect to count 1 it is my submission that there is no evidence that the 1st accused caused the death of MUSEMBI KATIWA as none of the eyewitnesses mentioned him as being one of the-attackers.

YOUR LORDSHIP the only witnesses who testified as to the death of the 1st victim MUTEMI KATIWA were PW2 AND PW4, PWS the Assistant Chief only recounted what he Was told by an informer about the death of the said MUSEMBI.

PW2 JOSEPH MUTHUI MWINZI who was with the deceased MUSEMBI at the time of the alleged attack never mentioned the 1st accused as being present during the incident. PW4 JAMES MURUNGI who is the owner of the farm where the deceased-and JOSEPH were attacked also does not mention the 1staccused as being amongst the attackers. The evidence of PW5 the Assistant Chief of the area was to the effect that he received information from an informer one CHARLES KIMWlLU that 1st accused was amongst those who burnt the house of PW4 and that he was present and witnessed the whole incident. CHARLES KIMWILU was not called as a witness nor did he record any statement with the police. In fact none of the witnesses who were present when the incident involving MUSEMBI mention him as being present. His testimony that the 1st accused was present is contradicted by that of PW2 who was present and was with the deceased arid therefore cannot be believed.

Your lordship from the evidence adduced by the witnesses with respect to count one of the-murder of MUSEMB-IKATIWA, we submit that the t" accused was not part of the group that kilted the deceased and we urge the court to so find and acquit him with respect to that count.

With respect to count no. 2 involving the death of SAMSON SIMBA, the witnesses that testified with respect to his death are PWI JOSEPH KABURI, JACOB BAARlU, BERNARD MUNYWA AND PW5 the assistant chief. Your lordship when you look at their previous testimonies compared to the current testimonies especially as to what transpired and who did what there are material contradictions and inconsistencies in their testimonies. The most glaring of them is the testimony of the assistant chief SAMUEL. In his previous testimony upon cross examination and especially when his statement was-shown to him, he confirmed that in his statement he said that the deceased SAMSON SIMBA told him that he was shot at 8. prn with an arrow by people whom he was not able to identify. In his testimony in chief he stated that the deceased mentioned the names of his attackers to be GEDION, MUSA AND MEME. In the-current testimony ne-says that the-deceased was new in the area and was thus not able to id his attackers.

The two deceased persons were attacked in different locations and by a different set of people as per the testimony of the witnesses. Both incidences are said to have taken place at 6pm in different locations and by a different set of people. Some witnesses mention some accused persons as being present others don't mention some at all. We are left to wonder why all the accused persons were charged jointly with the murder of the two decreased persons yet in both incidences the- witnesses save for the I.O and chief are different. It is not possible that the same accused persons murdered SAMSON SIMBA as well as MUTEMBl KATIWA. This is because the two incidences took place at different locations and the witnesses to both deaths are not the same.

Your lordship even the doctrine of common intention cannot apply to the accused persons-in view of the- fact that both deaths were witnessed by completely different witnesses yet they are said to have occurred at the same time and at the same-place as per the charge-sheet and involving all accused persons.

The particulars in the charge sheet and the evidence of the witnesses are at variance especially with regard to the place where the two deaths occurred and with respect to who did what. Your lordship the prosecution's case has been weakened and doubt cast by the contradictions and inconsistencies in the testimonies of the witnesses and we-urge the court to so find and acquit the accused persons.”

9. For the 2nd and 4th Accused persons, Mr. Mutuma made oral submissions as follows:

“On behalf of the 2nd and 4th Accused, we urge court to find prosecution has not established a case for the conviction of the accused. The Information is defective. The particulars of the offence. The facts are not correct. The Prosecution noted that both deceased died on the same date of 16/9/2008. The exhibits which are the post-mortem Pexb. No 2 for Simba the date is 22/9/2008 and Pexb. No.4 Postmortem of Mutemi is indicated 16/9/2008.

The common intention –

The Post mortme reports were 3 months apart on 22/9/2008 and 23/12/2008. The Prosecution wishes to show that common intention. The charges should not have been lumped together. Evidence show both incidents happened at different locations, more than 4km apart. Is it possible that 2nd and 4th Accused murdered 2 people km apart at the same time?

Evidence of the I.O. PW9 statement was produced as exhibit for the 2nd and 3rd accused. The I.O. pointed that vide OB of 11/12/2008 No. 27 3rd accused and 4th accused and OB 14/12/2008 , the 3rd accused were arrested by seprate officers and “on conducting investigations the accused persons were not mentioned.” He recommended that Stanley Kitheka and Daniel Karatu and 3rd Accused to be released for not having been mentioned by the persons he had interviewed.

The DPP, however, recommended that they be charged. There is a defective Information, no common intention and it is not possible for all witnesses to testify who the accused 2 and 4. It is impossible to place the accused at the scene at the same time.

10. For the 3rd Accused, Mrs. Ntarangwi filed written submissions dated 5th October 2021 analysing the evidence before the court as follows:

“My Lord, after the close of the prosecution case, the accused person was placed on his defence. The 3rd accused person raised an alibi to the effect that he was not at any of the scenes where the late Mutemi and Samson Simba were at the time they were inflicted with fatal injuries by the attackers. He stated that he had spent at Meru Town having travelled from Nanyuki where he and one Karatu had gone to consult their advocates.

Your Honour, it is the 3rd accused submissions that the prosecution has failed to establish a case of murder against the 3rd accused person. The issue of recognition of the 3rd accused person as having been one of the intruders has not been proved to the required standard. My Lord, in testing the evidence on recognition, the 3rd accused person prays that the court do take into account the fact that the prosecution witnesses took about 3 months to record their statements. The accused person was all along at his home and had he been known to have been one of the persons who committed the crime there was nothing that prevented the police from arresting him. The accused person was arrested together with the 4 accused person 3 months after the commission of the offence. The prosecution witnesses who are said to have recognised the accused person as one of the attackers failed to mention him in their statement as having been involved in the commission of the offence hence their evidence in court that they recognised the 3rd accused person was an afterthought.

My Lord, the 1st report which was made to the police by the prosecution witness did not include the name of the accused person as having been involved in the commission of the offence.

The 3rd accused person was arrested, charged due to the fact that he has had a long standing land dispute with one Munyua and he was suspected as having organised the attackers to burn the houses of a number of residents including the property for the said witness. The prosecution failed to prove the allegation that the 3rd accused person was related to the other accused person save for the 4th accused. The prosecution evidence that the other accused persons lived on the land in dispute is not true. The 3rd accused did not live on the land in issue and it was his wife and one Gitaari who lived and were evicted from the land. The 3rd accused person had a claim over the said land.

My lord, suspicious no matter how strong cannot be a basis for conviction. My Lord, the 3rd accused person raised the defence of alibi. The said defence is reasonable. The accused person has no burden of proving his innocence. This defence was not raised for the 1st time during the hearing. When the accused persons were being tried in criminal case Number 15 of 2009, Republic v. Henry Musa and 4 others which was declared as a mistrial, the said defence had been raised. The prosecution had the opportunity to investigate and disapprove the same but that was not done. The 3rd accused person submits that his defence was not dislodged and the 3rd accused person was not placed at the scene of the offence.

My Lords, it is the 3rd accused person’s submission that the prosecution has failed to prove to the required standard the two counts of murder against him and he prays that he be acquitted. The 3rd accused prays that the court be persuaded by the following decisions:

1. TEKERALI S/O KORONGOZI AND 4 OTHERS VERSUS REPUBLIC EACA 259.

2. JOAN CHEBICHII SAWE VERSUS REPUBLIC, NAIROBI COURT OF APPEAL CRIMINAL APPEAL UMBER 2 OF 2002.

3. ZAKA YO KARIUKI KAMAU VERSUS REPUBLIC, NYERI COURT OF APPEAL CRIMINAL APPEAL NUMBER 10 OF 2011. ”

11. Ms. Nelima, advocate for the 1st Accused who held brief for Mr. Igweta for the 5th and 6th Accused persons, made oral submissions based on the submissions filed for the 1st Accused, for which she indicated she had instructions to urge for latter, as follows:

“I have filed my submissions. I have instructions to rely on the submissions for the 1st Accused with respect to the submissions for 5th and 6th Accused.

On behalf of 1st, 5th and 6th Accused persons, I submitted that the accused are charged jointly with 3others with two counts for different deceased persons.

In both counts offence occurred at Kisima village.

The three ingredients of offence of murder are:

1. Death of the Deceased;

2. It is the accused who was involved.

3. Malice aforethought.

1. Death of the Deceased is not disputed. The cause of death is also not disputed.

2. Whether accuse caused death.

There is no witness who mentioned the 1st accused as attacking Mutemi deceased. The two sets of witnesses with respect to death of Mutemi witnesses are Joseph PW2, PW4 and the Assistant Chief PW5.

With respect to Samson Simba three were PW1, PW7 and PW3.

The two witnesses for the 1st deceased did not mention the name of he 1st Accused. PW5 is the one who mentioned the 1st Accused but he evidence is hearsay from Charles Kimwilu. Charles Kimwilu was never called as a witness and never recorded evidence.

PW2 never mentioned 1st Accused. The evidence of Assistant Chief cannot be relied upon.

Death of Samson Simba, PW2 and PW1 are eye-witnesses. The 1st accused, 5th and 6th have been mentioned by these witnesses. Evidence in previous proceedings which were declared a mistrial, there are contradictions. The most glaring is the evidence of the Chief with regard to the 5th and 6th Accused. In previous testimony, the chief said, on cross-examination from his statement that he found Samson in someone’s house. He said Samson told him that when Samson Simba was in the boma he was shot with an arrow from people he did not identify at 8. 00pm. Samson made a dying declaration. If the incident happened at 8. 00pm it casts doubt on the evidence of PW1 and PW7.

Offences occurred at different locations at 6. 00pm. The farms were at different places, a difference of 7km separating the two. It cannot be correct that the two groups attacked the two at the same time.

In view of the contradictions and inconsistencies, reasonable doubt has been cast on the evidence of the prosecution. We ask that the court finds the prosecution has not proved the case and acquit the accused who have been in custody for 12 years. We invite the court to see the contradictions in the previous proceedings with the present proceedings.”

Issues for Determination

12. There was no question that the deceased persons subject of the murder charges herein were killed and the cause of death for both established as cardio-respiratory problems arising from shooting by arrows. The issues for determination arising from the evidence and submissions, consistent with the elements of the offence of murder (see Antony Ndegwa Ngari v. R [2014] eKLR] where the Court of Appeal at Nyeri held that –

“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought (seeNyambura & Others-vs-Republic, [2001] KLR 355)”,are therefore:

i. whether the accused persons were properly identified as being part of the persons who shot the deceased persons; and or whether there was a common purpose among the accused persons as binds the one to the actions of the other(s); and

ii. whether there was malice afore-thought for the killing of the deceased persons.

13. There was also raised questions of the defectiveness of the charge sheet.

14. Further, as guided by Okeyo Kigeni v. R (1965) EA 188, the Court shall consider the question, which although not taken by the prosecution or Defence arises from the circumstances of case, whether the 3rd accused procured the offences to be committed by the other accused persons, such as to make him liable for the offences even though he be not present at the scene of crime.

Determination

Defective charge sheet

15. Does failure to indicate the time and accurate place of the offences in the particulars fatal to the charges as submitted by counsel for the 1st accused? Or indicating the wrong date of death of a deceased? Section 137 of the CPC gives the answer in terms as follows:

“137. Rules for the framing of charges and informations

The following provisions shall apply to all charges and informations, and, notwithstanding any rule of law or practice, a charge or information shall, subject to this Code, not be open to objection in respect of its form or contents if it is framed in accordance with this Code—

(a)(i)Mode in which offences are to be charged.—a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;

(ii)the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;

(iii)after the statement of the offence, particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary: Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require more particulars to be given than those so required;

(iv) the forms set out in the Second Schedule or forms conforming thereto as nearly as may be shall be used in cases to which they are applicable; and in other cases forms to the same effect or conforming thereto as nearly as may be shall be used, the statement of offence and the particulars of offence being varied according to the circumstances of each case;

(v) where a charge or information contains more than one count, the counts shall be numbered consecutively;

(b)(i)Provisions as to statutory offences.—where an enactment constituting an offence states the offence to be the doing of or the omission to do any one of any different acts in the alternative, or the doing of or the omission to do any act in any one of any different capacities, or with any one of different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the count charging the offence;

(ii)it shall not be necessary, in a count charging an offence constituted by an enactment, to negative any exception or exemption from, or qualifications to, the operation of the enactment creating the offence;

(c)(i)Description of property.—the description of property in a charge or information shall be in ordinary language, and shall indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property;

(ii) where the property is vested in more than one person, and the owners of the property are referred to in a charge or information, it shall be sufficient to describe the property as owned by one of those persons by name with the others, and, if the persons owning the property are a body of persons with a collective name, such as a joint stock company or “Inhabitants”, “Trustees”, “Commissioners” or “Club” or other similar name, it shall be sufficient to use the collective name without naming any individual:

(iii) property belonging to or provided for the use of a public establishment, service or department may be described as the property of the Government;

(iv) coin, bank notes and currency notes may be described as money; and an allegation as to money, so far as regards the description of the property, shall be sustained by proof of an amount of coin or of any bank or currency note (although the particular species of coin of which the amount was composed or the particular nature of the bank or currency note is not proved); and, in cases of stealing and defrauding by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although the coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering it or to another person and that part has been returned accordingly;

(d)Description of persons.—the description or designation in a charge or information of the accused person, or of another person to whom reference is made therein, shall be reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree or occupation; and if, owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, a description or designation shall be given as is reasonably practicable in the circumstances, or the person may be described as “a person unknown”;

(e)a copy Description of document.—where it is necessary to refer to a document or instrument in a charge or information, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport thereof, without setting out thereof;

(f)General rule as to description.—subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to;

(g)Statement of intent.—it shall not be necessary, in stating an intent to defraud, deceive or injure, to state an intent to defraud, deceive or injure a particular person, where the enactment creating the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence;

(h)Mode of charging previous convictions.—where a previous conviction of an offence is charged in a charge or information, it shall be charged at the end of the charge or information by means of a statement that the accused person has been previously convicted of that offence at a certain time and place without stating the particulars of the offence;

(i)Use of figures and abbreviations.—figures and abbreviations may be used for expressing anything which is commonly expressed thereby;

(j)Gross sum may be specified in certain cases of stealing.—when a person is charged with an offence under section 280, 281, 282 or 283 of the Penal Code (Cap. 63), it shall be sufficient to specify the gross amount of property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged have been committed without specifying particular times or exact dates. [Act No. 22 of 1959, s. 14,L.N. 124/1964,Act No. 13 of 1967, First Sch.]

16. In addition, section 134 of the CPC provides on sufficiency of a charge or information as follows:

“134. Offence to be specified in charge or information with necessary particulars

Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

17. As regards joinder of counts, provision is made under section 135 for offences which are or form part of a series or offences of the same transaction as follows:

“135. Joinder of counts in a charge or information

(1)Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.

(2)Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.

(3)Where, before trial, or at any stage of a trial, the court is of the opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same charge or information, or that for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information, the court may order a separate trial of any count or counts of that charge or information.”

18. Section 136 of the Criminal Procedure Code provides for joinder of accused persons who may be charged and tried together, as follows:

“136. Joinder of two or more accused in one charge or information

The following persons may be joined in one charge or information and may be tried together—

(a)persons accused of the same offence committed in the course of the same transaction;

(b)persons accused of an offence and persons accused of abetment, or of an attempt to commit the offence;

(c)persons accused of more offences than one of the same kind (that is to say, offences punishable with the same amount of punishment under the same section of the Penal Code or of any other Act or law) committed by them jointly within a period of twelve months;

(d)persons accused of different offences committed in the course of the same transaction;

(e)persons accused of an offence under Chapters XXVI to XXX, inclusive, of the Penal Code (Cap. 63), and persons accused of receiving or retaining property, possession of which is alleged to have been transferred by an offence committed by the first-named persons, or of abetment of or attempting to commit either of the last-named offences;

(f)persons accused of an offence relating to counterfeit coin under Chapter XXXVI of the Penal Code, and persons accused of another offence under that Chapter relating to the same coin, or of abetment of or attempting to commit any such offence.”

19. With respect to Counsel for the 1st, 2nd, 4th, 5th and 6th Accused, I do not agree that the charge is defective for charging the 6 accused persons together for the two offences of murder together, which allegedly happened at two different localities but in the same Kianda sub-location. The object of section 134 of the Criminal Procedure Code to communicate the offence charged was not breached by failure to pinpoint the correct village where the offence took place in the circumstances of this case. The 2 charges clearly indicate in the particulars of the offence the date of the offence, the sub-location area where the offence occurred and the person alleged to have been murdered. The 2 persons alleged to have been murdered are clearly stated and the murders separately charged under different counts. It would depend on the evidence to prove whether the killings were committed simultaneously or one after the other as part of the same transaction.

20. If failure to specify the actual area of the village in the sub-location where the killing of the named deceased person occurred is a default, it is one which does not go to the root of the charge and it may be cured by section 382 of the CPC which provides as follows:

“382. Finding or sentence when reversible by reason of error or omission in charge or other proceedings

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:

Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.

[Act No. 33 of 1963, First Sch.]”

21. By the charges in the information as set, the accused are effectively informed with “reasonable clearness” of the charges of murder of 2 persons whom they are alleged to have jointly murdered on the named date at the named area of Kianda location, Igembe South sub-County, Meru county. The failure to specify the exact time and place, or inaccurately stating the exact area or village name in Kianda sub-location where the killing occurred is not fatal.

22. The charges and the accused persons were properly joined under section 135 of the Criminal Procedure Code because the offences arose from the same transaction of the incidents happened on the same day with only short time difference and locations and involving the burning of the houses of the PW3 and his relatives, in the course of which some of their employees were shot with arrows and some succumbing to their injuries.

Malice aforethought

23. Section 206 of the Penal Code provides for malice aforethought in murder cases as follows:

“206. Malice aforethought

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 oforto 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.

24. In accordance with Olenja v. R [1973] EA 546, malice aforethought depends on the facts and circumstances of each case as follows:

“The definition of "malice aforethought" (as set out in our s.206) has given arise to several different interpretations both in England and in East Africa and as a result the law has been amended in England and in Uganda (supra). The law has not however been amended in Kenya and at present the decisions of this court would not, on the face of it, appear to be as clear and as decisive as desirable.

We are of the view that it is not possible to lay down a general interpretation to be followed in all cases. The decision must depend on the facts and circumstances of each case. There are however certain definite and clear rules of interpretation which have been decided and in our view rightly decided in our courts. First there is the rule as laid down in the English case of Jarman which followed the House of Lords decision in the Beard case and has been approved by the decisions of this court to which we have referred. The rule is "that he who uses violent measures in the commission of a felony involving personal violence does so at his own risk and is guilty of murder if these violent measures result even inadvertently in the death of the victim". This rule has been applied in cases of rape, arson, burglary and stealing cattle when armed. An exception was however made in the Kimno Kipturji case and in the Abdurabi case to cases where the offence was unlawful wounding only. Unlawful wounding is no longer a felony in Kenya but in Abdurabi's case this court suggested that subsection (c) would not apply to cases where personal injury was the intended result of the offence as this would be already covered by sub-heads (a) and (b) of the section.”

Alibi defences

25. All the accused persons raised alibi defences stating that they were at different places at the time the offences are alleged to have been committed on the 16th of September 2008 at 6pm to 7pm in Kianda sub-location of Kiguru location, Igembe South sub-county of Meru County; and that they could not, therefore, have taken part in the offences as they were at the named different places, respectively.

26. Although an accused who raises and alibi defence does not thereby assume the burden of proof of the alibi (see Wang’ombe v. Republic (1980) KLR 149, [1976-80] KLR 1683; Karanja v. Republic [1983] KLR 501 and Kiarie v. Republic [1984] KLR 739. The court in analysing the evidence must have the defences in mind while considering the question whether the prosecution has proved its case. In other words, the alibi evidence may raise a reasonable doubt as to the accused’s presence at the scene of crime and or involvement in the offence. The trial court in weighing the evidence before it as a whole is required to keep in mind the defence when considering the prosecution’s case. See also the Ugandan case of Ssentale v. Uganda (1968) EA 365.

27. There was no direct evidence of common purpose, within the meaning of section 21 of the Penal Code, that the 6 accused together with the others mentioned in the trial “formed “common intention to prosecute an unlawful purpose in conjunction with one another”, so that the prosecution of that purpose by burning of the complainants’ houses and the killing of the deceased herein by any of them it is deemed that each of them committed the offence.

28. The prosecution did not call evidence to show expressly that the 6 accused persons where the very persons who were evicted from PW3’s land and that they had formed a common purpose to avenge the eviction, as suggested by the prosecution witnesses. No evidence of meetings, telephone communication or other media by which such a common purpose may have been formed and communicated. There was no evidence of the pleadings, judgement or orders in the civil suit between PW3 Munyua and Accused No. 3 as would form a basis for inferring a motive for the attach. The Court notes however, from the Defence Exhibit A1DW1 exb.1, the prosecution witness PW3 Bernard Munyua had in that case which was declared a mistrial produced in exhibit documents in relation to the civil suit between him and the 3rd Accused saying “I have the court order I mentioned. I also have the decree and auctioneers letter. I obtained this court order from High Court Meru. I got the decree from Maua Law Courts. I got the return of warrant from Japhet Nkonge Auctioneer. [Prosecution] P.Exhibit 1, 2 and 3. The case I was having was between me and this old man. (points at 3rd Accused)”. The Court cannot rely on these, however, as they were not produced before this court.

29. However, common intention may be inferred by their presence and participations in acts as described by the eye witness towards the burning at the farms in which the houses were burnt and the 2 deceased killed. In Njoroge v. R (1983) KLR 197, 204 it was held that common intention may be inferred from the presence of the accused persons at the scene of crime and involvement in some aspects of the offence, as follows:

“Both appellants said that they did not plan to kill the deceased, that their intention was to rob him of money only, and it was Karuga by himself who killed the deceased with the axe.

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.

The appellants and Karuga set out to rob the deceased. All three were armed. Assuming that it was Karuga who killed the deceased with his axe the appellants joined him to dispose of the body by throwing it into a pit, but changed their mind and threw it into the bush. Muiruri carried a big stone to throw it with the body into the pit. They brought the body out of the house. They were aiding Karuga in pursuance of a common purpose to rob which resulted in the death of the deceased which was a probable consequence which could necessarily ensue as a result of their unlawful design to rob, and each of them is deemed to have committed the act as provided in section 21 of the Penal Code (cap 63). Their common intention may be inferred from their presence, their actionsand the omission of either of them to disassociate himself from the assault R v Tabulayenka s/o Kirya (1943) 10 EACA 51.

Apart from the direct evidence of possession of the deceased's stolen cattle and sheep and his garments by both appellants, the remaining circumstantial evidence was such as to be explained only upon the hypothesis of the appellants' guilt and incompatible with any other innocent explanation. The three assessors were unanimously of the opinion that both appellants were guilty of murder. We agree.”

30. Although motive for an offence is irrelevant to a criminal charge as provided under section 9 (3) of the Penal Code, a motive to cause the damage or revenge alleged in this case could have assisted the court in assessing the Prosecution’s evidence against the defence of alibi raised by the accused. Indeed, in Choge v Republic 1985 KLR 1 motive was accepted as offering corroboration of the evidence of the prosecution, by circumstantial evidence, when taken with other circumstances.

31. As required of a joint trial against several accused persons, the Court shall consider the evidence by the Prosecution against each accused separately. In Munyole v. R (1985) KLR 662, the Court of Appeal has guided individual consideration of responsibility of several accused persons in a joint trial, as follows:

“In a joint trial involving more than one accused person, the evidence against each accused must be considered separately and the case against each accused must be such as to prove the guilt of that particular accused beyond reasonable doubt. It is also a misdirection to deal separately with one part of the evidence and omit to relate it to the whole.”

32. The court considers the evidence of the burning of the houses of the farm of PW3 (Munyua), PW4 (Murungi) and PW6 (Kithaka) between 6-7pm on the 16th September 2008 and the killing in the process of Mutemi Musembi at PW4’s farm and Samson Simba at PW3’s farm to be part of the same transaction and the evidence thereon admissible as part of the res gestae under section 6 of the Evidence Act. See Choge v. Republic, supra.

OB reports at the Police station

33. It has been held by the Court of Appeal in Japheth Gituma Joseph & 2 others v Republic [2016] eKLR, Occurrence Book (OB) extracts are not Evidence, as follows:

“Reports of commission of alleged crimes are normally made to a duty officer at a police station and may be made by a person who is not the complainant as in cases where the complainant is admitted in hospital. The report is merely a report of occurrence – a bare report of a crime and not evidence of commission of an offence against any person.”

34. OB reports may, however, be used to impeach the credit of a witness under section 153 or 163 (1) (c) of the Evidence Act or to show consistency under section 165 of the Evidence Act. The decision of Tekerali Kirongozi, supra, relied on by the Counsel for the 3rd Accused indicates the use of police station reports as a first reports of a complaint or crime. The Court is also carefully cognisant of the fact that witness statements are usually written by police officers for the witnesses, and errors may occur in the capturing and recording of witness’ statement. When, therefore, a witness states that he told the police officer but the police officer did not write down a particular fact, the matter is to be resolved by reference to other evidence proving or disproving the fact.

Proof of deaths

35. PW8 doctor Kenneth Muthuri adduced evidence by way of post-mortem examination reports on the two deceased persons herein and established the cause of death of Mutemi Musembi Gatui as cardiopulmonary arrest secondary to penetration chest injury and of Samson Simba as cardiorespiratory arrest secondary to poisoning by arrows. On both bodies the doctor observed respectively,“penetrating chest injury on the right chest haemothorax” and “deep wound of the left thigh above the knee [and} perforation of the small gut 2 in number... [and] perforation of the semi-colon [with] blood in the abdomen”.The court accepts, as properly conceded by Counsel for the 1st Accused, that death was proved; and the unlawful killing of the murder established by the nature of the injuries and cause of death.

Specific deaths and perpetrators

36. In considering whether the specific accused persons charged were responsible for the unlawful killing of the deceased with malice aforethought necessary for the offence of murder, the court shall now look at the evidence on each case subject of the two counts of murder. Death was caused by the act of shooting with arrows, an unlawful act and it remains only to establish persons responsible therefor.

37. Of course, the court bears in mind that in considering the prosecution evidence of the involvement of the accused persons herein regard must be had of the counter vailing evidence of the defence that they were elsewhere at the time the killings were alleged to have been committed at Kianda sub-location of Kiguru location of Igembe South Sub-County. As the evidence against the accused lies on their alleged identification at the scenes of the attacks the court shall in accordance with case law authorities (see Roria v R (1967) EA 583) warn itself of the danger of convicting upon identification evidence and consequently seek corroboration in each case. The court considers that identification by two eye witnesses is stronger and more reliable than that of a single identifying witness in difficult circumstances.

38. The court also accepts as guided by Reuben Taabu Anjononi & 2 Others v Republic[1980] eKLR, (1981) KLR that evidence of identification by recognition is stronger than physical identification, the Court of Appeal stating as follows of the identification that case–

“Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification inSiro Ole Giteya v The Republic(unreported).

We consider that in the present case the recognition of the appellants by Wanyoni and Joice to whom they were previously well known personally, the first appellant also being related to them as their son-in-law, was made both possible and satisfactory in the two brightly-lit torches which two of the appellants kept flashing about in Wanyoni’s bedroom in such a manner that the possibility of any mistake was minimal. In addition, immediately after the robbers left, Wanyoni reported their names to the owner of the farm where he worked. He also later on the same night gave the names of the three appellants to the police as the robbers who had robbed him.

We are satisfied that there was no mistake as to the identity of the three appellants and they were properly found guilty of the offence with which they were charged in count 1. ”

The murder in Count I - Mutemi Musembi

39. Mutemi Musembithe deceased in Count no. I on murder charge information dated 16th January 2017. The particulars of the offence, as set out above, do not disclose the time of the event and only the date of 16th September 2008 is given. The evidence of the prosecution witnesses is that the act of shooting with arrows on the deceased took place during the first of 3 attacks that happened between 6 and 7 pm. On the evidence the attacks were carried out at about 6pm at PW4 (Joseph Murungi’s farm) then at about 6. 30 pm at PW3 (Munyu’s farm) which is a distance of 4-5 km of 30 minutes walking distance according to the witnesses, and finally at PW6’s (George Kithaka’s farm) at 7pm. On the first 2 attacks, 3 persons were shot with arrows, 2 of them succumbing to their injuries while on the 3rd attack only property (house) was burnt, but no arson charges were preferred therefor

40. The prosecution evidence was that Mutemi Musembi was shot by an arrow on his chest by Kingori (5th accused) according to PW2 Joseph Muthuri Mwinzi, who was at about 6pm on 16th September 2008 alone with the said Musembi at the farm of Joseph Murungi at Karimba in Kianda sub-location. PW2 was himself shot on his buttocks with an arrow. He identified 5 men who attacked them as: Kailibi (3rd accused), Kingori (5th accused), Meme (6th accused), Kitheka (2nd accused), and Muriuki (not charged, said to be deceased). He said Kingori had arrows and C-line panga and the rest with pangas and pieces of wood used to burn houses.

41. The statement of PW4 made to the police on 17/12/2008 was put in evidence for the Defence. While it is not evidence, it was put in to impeach the credit of PW4. In it the witness said that he met his employee Joseph Muthuri (PW2) “in the company of another namely Mbataru and on inquiring what had happened, Muthuri told me he and Katui had been attacked with arrows by a group of five people namely Gedion Kingori, Muriuki son of M’Kairibi, Meme Kiobe, M’Kairibi Karibi and Kitheka”. I do not see any inconsistency with the evidence of PW2.

42. PW6’s statement was also put in evidence for the defence. The statement dated 22/1/2009 told of an attack on his shamba at Kamatari around 7. 00pm when a group of “around 10 people scattered around the compound armed with bows and arrows” two of who he immediately recognised as Adriano Baithiri and Elijah Muriuki Mungania (Alias Kabunwasi) and “the group then set my house on fire and due to the fierce blaze’s light, I did identify the following arsonists. (i) Julius Meme Kiobe (ii) Daniel Mukira Kandura (iii) Musa Alias Francis M’Raibuta (iv) Kingori Karwamba (v) Muriuki M’Kairibi [and] others I could not identify them properly.”

43. Having considered the statements of PW4 and PW6 against heir evidence before the court, I do not, respectfully, find material inconsistencies or contradictions. Caution is called for, however, because of the late making of the statements so that they do reflect in terms of section 165 of the Evidence Act “former statement made by such witness, whether written or oral, relating to the same fact at or about the time when the fact took place”, having been done respectively on 17/12/2008 and 22/1/2009.

Accused Nos. 1, 3 & 4

44. PW2 does not place the 1st and 4th accused at the scene of the attack on Joseph Murungi’s farm at Karimba. The area Assistant Chief PW5, the Assistant Chief of Kianda sub-location, testified that he had received a report at 8pm on 18th September 2008 from an informer named Charles Kimwilu who told him that the house of PW4 (Joseph Murungi) had been burnt by persons known to the informer, mentioning Joseph Kingori alias Sarah, Musa Murimi, Ibrahim Kiobe and others. He testified that the informer had not mentioned the 2nd accused, the 3rd accused and 4th accused. On re-examination PW5 also dropped accused 2 from the list of persons present saying “Muthui PW2 named Jospeh Kingori alias Sara (5th), Ibrahim Meme Kiobe (6th), Henry Musa Murimi (1st). He said he did not recognise the others.”

45. The report to the Assistant Chief as to the attackers indicated only the 1st, 5th and 6th as having been identified as involved in the attack together with others that the eye-witness did not recognise. When testifying before the court PW2 named 4 persons who were before the court as being part of the group of 5 men who attacked them at his employer’s farm at Karimba as Kingori accused 5, Kailibi accused 3, Kitheka accused 2, Meme accused 6. The employer himself PW4 said that PW2 had named “Gideon Kingori, Ibrahim Meme Kiobe, Kithaka Gichunge, M’Kailibi and Muriuki Abnuasi who is now deceased”

46. Although not corroborative of the fact of involvement of the other accused persons as the informer was not called as a witness, the Assistant Chief’s testimony that “my informer did not name Kitheka accused 2, M’Kailibi accused 3 and Karatu accused 4”, exonerates these accused persons from involvement on the said attack on PW4’s farm. PW9, the Investigation Office (I.O.), confirmed he had also recommended the release of the 3rd and 4th accused.

Accused 2, 5 and 6

47. The principle of common intention under section 21 of the Penal Code would apply to infer common intention, by their very presence, on all persons who are placed at the scene of the offence even though no evidence is availed directly implicating them in a common purpose, as was held in Njoroge v R, supra.

48. Is PW2’s identification evidence against the 2nd, 5th and 6th accused corroborated by any material evidence as required of the evidence of a single identifying witness by the leading authority of Abdalla bin wendo and another v R (1953) 20 ECA 166? See also Wamunga v R(1989) KLR 424 and Nyeri Court of Appeal Criminal Appeal No. 10/2011, Zakayo Kariuki Kamau v R of 14th April 2016. PW2 testified that he knew all the five men who attacked them:

“I do not know why the 5 men attacked us. I knew all the 5 men. We used to associate with the 5 men. We used to stay at Murungi’s home but would leave cows in the home of the 3rd accused.”

The incident happened at 6 pm. The first report by PW2 to his employer PW4 was that “he was attacked by people he knew. He named them as Gideon Kingori, Ibrahim Meme, Kitheka Gichunge, M’Kailibi and Muriuki Abunuasi who is now deceased”. However, PW9 (I.O.) on cross-examination by Counsel for the 3rd accused confirmed that “according to the 1st report it was made to the OCS, but I cannot remember by who. The name of the 3rd accused was not reported as having been at the scene”.

49. PW2 testified that when the attackers “came near Kingori 5th accused shot Musembi with an arrow on the left side of the chest”. He said “Kingori had arrows and a panga locally known as C-line. The rest had a panga each and wood used to burn houses.”

50. I have considered that PW2 evidence is one of recognition of the attackers whom he knew as persons he used to associate with. The circumstances of the identification were not difficult as it was only 6 pm in the day. Moreover, I find the testimony of Assistant Chief PW5, on what the eye-witness told him in his first report as corroborating the presence during the attack of Kingori accused 5 who shot the deceased and the 6th accused Ibrahim Meme who had “panga, a wood and rungu”. I reject the accused 5 and 6 alibi excuses, respectively, that they were at Tseikuru in Ukambani selling miraa and at home in Kisima village babysitting children when his wife left in the morning of 16th September after a quarrel, in the face of the Prosecution evidence of presence at the scene and corroboration by first reports thereof. The eye witness’ employer PW4 in addition to the Assistant Chief confirmed the first reporting of witness PW2. PW4, however testified on cross examination that he had not mentioned “the 1st and 4th accused in my statement because they were not disclosed to me as having been there”, and that “Muthui PW2 did not mention the 3rd accused in the OB”.

51. The principle of first report in Tekerali s/o Korongozi and 4 others v Regina (1952) EACA 259 provides that “evidence of first complaints to persons in authority are important as they often provide a good test by which the truth and accuracy of subsequent statements may be gauged and provide a safeguard against later embellishment or a made-up case. Truth will often out in a first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.”The Court in Tekerali was considering the Indian Evidence Act provision under section 157 which is in similar with the Kenyan section 165 of the Evidence Act, as follows:

“165. Proof of consistency by former statements

In order to show that the testimony of a witness is consistent any former statement made by such witness, whether written or oral, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”

52. Section 165 of the Evidence Act applies to any former statement made by a witness at or about the time when the fact took place, and I consider that the report to an employer such as PW3 and PW4 in this case and an Assistant Chief with jurisdiction over the area of the occurrence, as well as a report to police station qualify as first report for purposes of section 165 and Tekerali decision.

Finding on Count I

53. On the evidence, I would find that while the eye witness reports of attack on the 16th September 2008 at 6pm at PW4’s farm at Karimba are consistent with the 1st report, to the extent of accused 2, 5 and 6, as the evidence of PW4, PW5 and PW9 exempt the accused 1, 3 and 4 with respect to this first attack leading to the death of the deceased in Count I, Mutemi Musembi. I would, consequently, find that the accused 1, 3 and 4 have not been shown to have been among the attackers at Joseph Murungi’s farm where the deceased in Count No. I was shot and killed. and it would be unsafe to convict them.

54. The court would, therefore, hold that the case of the Prosecution against the 2nd, 5th and 6th proved by reason of having been present at the attack where the 5th Accused shot the deceased with an arrow and the others burnt the house belonging to PW4. The common intention of the attackers is inferred from their presence during the said attack and their having been armed with pangas and pieces of wood which were used to burn the house. The cases against the 1st, 3rd and 4th accused persons, as joint attackers, were not established.

55. Of course, in accordance with the individual responsibility principle enunciated in Munyole, supra, the finding of responsibility, or otherwise, on any of the accused persons in the murder charge subject of Count I herein does not implicate, or exonerate, such accused person(s) in the murder charge the subject of Count No. II, which is dealt with here-below.

Count II - Murder of Samson Simba

56. The attack resulting in the killing of Samson Simba took place on 16th September 2008 at about 6. 30pm at the farm of Bernard Munyua PW3. It was witnessed by 2 witnesses PW1 and PW7, both employees of Munyua who were at the time irrigating miraa trees belonging to their employer, together with their co employee Samson Simba the deceased herein.

57. According to PW1 at that time 6 people invaded the farm:

“I know the 6 very well. First Musa Murimi came to the farm carrying arrows, bows and jerrican, then he was followed by 5 others. They followed him after about one minute (1) I knew them all, the six were Musa Murimi, Kitheka Gichunge, Gedion Kingori, Karatu, Adriano and Muriuki. The other 5 were also armed. Kitheka Gichunge had a bow and arrows. Gideon had a bow and arrows. Karatu also had a bow and arrows. Adriano and Muriuki had a bow and arrows. I can see these people in court.

1. Musa Murimi 1st accused touched

2. Kitheka”Gichunge 2nd accused touched

3. Gideon Kingori 5th accused touched

4. Karatu 4th accused touched

Adriano was not arrested. Muriuki died this year. He had disappeared but died early this year.”

58. According to PW1, it was Musa Murimi who asked them upon arrival where Bernard Munyua (their employer PW3 )was and on being told that Munyua was not there but at home ordered the witness and his colleagues to sit down and then started to pour some liquid that was in the jerrycan around the granary store house, while the other 5 were with the 1st accused. PW1 and his colleagues Baariu (PW7) and Simba (the deceased) took off when they saw a fire, the whole incidence taking about 6 minutes. Shortly the witness PW1 heard ‘a scream from the direction where Simba ran; a scream of pain and shouting ‘nakufa, nakufa’ [I am dying, I am dying].

59. PW 1 said he went to Benard Munyuas (PW3s) home about 10 minutes from the farm and informed him of the incident. Munyua told PW1 that he would go to the sub chief (PW5) and PW1 accompanied Munyua to the assistant chiefs home about 4 minutes’ walk from Munyuas house. The assistant chief called the DO who came shortly thereafter about 15 minutes later accompanied by 3 police officers. The DO, the 3 police officers, the assistant chief and Benard Munyua went to the farm where the incident had taken place while the witness PW1 was left behind. Later about 8 pm the DO [District Officer] came back and using a torch (2 battery) the witness saw Samson Simba aboard the DO’s vehicle while bleeding profusely but alive and blinking with a lot of blood on the floor of the vehicle. Simba was taken to hospital and the witness went to check him the following day at 1pm and found him in a bad shape and on the 3rd day 18th September 2008 he learnt that Simba had died.

60. PW1 indicated that he knew the accused persons he had named well and that he had recognized them as follows:

“I knew the 1st accused as I schooled with him in Thaicu Primary School. I was ahead of him. It was in 1990. He is a village mate. Before this incident I had no grudge with him. I also knew the 2nd accused. We schooled together in Thaicu Primary. We are not related we had a good relationship. I also knew the 4th accused. We schooled the same school. We are not related. I had no grudge with him. The same for the 5th accused. The deceased was only a workmate. He was not related to me. We had worked at Benard’s farm for about 1 year. We related well with the deceased. When the attackers invaded us on 16th September, 2017 it was still day light and I could recognize them. I went back to work at Benard’s place. Baariu left working.”

61. On cross examination, PW1 conceded that his statement had not indicated who had what weapon and he had indicated there were 8 attackers but said that the others were not in court and further he did not know who put the granary on fire although the statement indicated that it was Gideon. On re-examination he said he say “a group of 8 people with bows and arrows and one of them had a 5 litre jerrican with petrol”.

62. PW7, the core employee of PW1 and who was with him at the time of the attack testified that the attack was by a group of about 8 people led by Musa Murimi who was carrying a jerrican; that Adriano had asked where Munyua was and Kingori had told them to sit down”. PW7 named the suspects who had not been charged as Adriano, Mulindi, Gitari and Muriuki. He pointed out the circumstances of his identification of the attackers as follows:

“It was about 6. 30pm. There was some light. It was not yet dark. I knew them. Musa is my village mate. We went to the same school. I saw all 8 of them. I rrecognised Musa (1st accused), Kitheka Kiobe (2nd accused), Karatu (4th accused), Gideon Kingori (5th accused), Meme (6th accused). The others are not here like Gitari, Mulindi, Adriano and Muriuki Abunusasi”.

On cross examination, PW7 said Gideon the 5th accused had arrows and 6th accused Meme had arrows and a club and that Simba had an arrow on the leg and stomach although he never saw who shot the arrows. PW7 does not mention accused 3 in the group of the attackers.

63. PW3 Bernard Munyua employer of PW1 and PW7 and to whom PW1 made his first report testifies that -

“On 16/9/2008 a about 7pm Joseph Kabore and Jacob Mbaario came to my home and informed me that some people had come to where I had deployed the 2 to guard miraa and a store. That the people were armed with arrows, rungus and had petro. They asked for me. That they poured fuel on the store which had food valued at over ksh. 400,000 that they then set the store on fire. That it is then the 2 ran to come and inform me of the incident. They told me that he knew the attackers well and the incident occurred during the day. They informed me that the attackers were people I had evicted with a court order.”

64. PW3 testimony confirms that PW1 and PW7 reported the incidence to him. There is however a clear case of embellishment when he states that “they informed me that the attackers were people I had evicted with a court order. He introduces the issue of a court case with the 3rd accused as follows:

“I had a court case with Kailibi. He had wrongfully occupied that farm. The suit was at Maua. He lost and he appealed to the High Court Meru. However, the High Court dismissed the case as the farm was my land. I cannot recall the case number. The land is plot no. 4103 at Kalimba area. The court allowed me to evict Kailibi. I had a case with MKailibi (3rd accused) points to 3rd accused. He had put people on my farm. Those were Gideon Kingori, Meme Kiobe, Henry Musa. The 2 reportees told me that they had been attacked and my store burned. The one who was shot was taken to hospital. I saw him with injury on his stomach and on his left [leg] in hospital.”

65. The 2 reportees, PW1 and PW7, could not have told PW3 that the 3rd accused was among the attackers because in the testimonies of the 2 they do not name the 3rd accused as one of the attackers. PW3 would appear to have included him because he was the party with whom he had a civil case leading to the alleged eviction order. PW7 testified that he never went to Munyua’s home.

66. PW5 the area sub-chief to whom PW3 reported the matter while accompainied by PW1, (PW1 indicating that he had accompanied Munyua to the Assistant Chief’s home) testified of the report by the informer one Charles Kimwilu, who was not called as a witness and confirmed thata his informer did not mention the (2nd accused), MKailibi (3rd accused) and Karatu (4th accused). However, this was in regard to the attack subject of count 1, as he said:

“On 16. 9.2008 at about 8 pm I was at home. I received a report from an informer that the house of PW4 had been burnt down by people he knew. It was Charles Kimwilu. He told me he was present. He mentioned Joseph Kingori alias Sara, Musa Murimi, Ibrahim Kiobe and others.

67. As regards the attack of PW3’s farm PW5 said:

“While at home at about 8pm a mzee by the name Mutua and Kaunyangi came and informed me that the house of Benard Munyua had been burn. The police came and we went to Githurai and found the house of Munyua burnt. We also found in a neighbours house, mzee Samson Simba having been shot with arrows twice on this stomach and leg. He was alive, we took him to hospital with the police vehicle. He was talking and with a lot of pain. He said he was attacked by a group of people. He was not a resident. He could not therefore recognize the attackers. He as a labourer living on Munyuas home.”

68. Contrary to submission by counsel for the defence, it is the report of the incident that the witness received at 8. 00pm not the occurrence of attacks. PW5’s evidence as regards the deceased in Count II is, as urged by Counsel for the 1st accused inconsistent with what he testified in the previous trial declared mistrial as he had then said the Simba had had told them that he had been injured by Gedion Kingori, Henry Musa and Ibrahim Meme. However, in the face of the consistent evidence of the two eye-witnesses PW1 and PW7, the Court does not seek corroboration from the Assistant Chief. The apparent contradiction between what the witness said in the previous trial in 2014 and the present trial in 2019, may be explained by the passage of time on the memory of events of 2008 but the court does not rely on PW5’s evidence as corroboration. The court does not also find that it by itself creates a reasonable doubt in view of the consistent evidence of recognition by the two identifying witnesses PW1 and PW3 and their report to their employer PW3.

69. PW5 said 8 houses were burnt in the area at 2 places of his Kianda sublocation at Githurai and Karimba and named some of the owners of the houses burned at Joseph Njoka. Josephat Gitari, Kaura MArimi, Mutora Njau apart from those of Munyua and Murungi he said:

“All those who were attacked were in my sublocation. The accused used to be in my sublocation but not any longer. What I know is that there was a court order in a case between MKailibi and Munyua. Munyua won the case. All those at Karimba were attacked by the attackers, those related with Munyua and the attackers are related to 3rd accused. The 6th accused is a clansman to 3rd accused. The 5th accused is an in-law to the 3rd accused. The 4th accused is a clansman to 3rd accused. The 1st accused is an inlaw to 3rd accused. I do not know of any relationship between the 2nd and 3rd accused.”

70. The Assistant Chief PW5 testified on the relative proximity of the places of the attacks as follows in cross examination:

“Between PW4s farm [where the attack subject of murder charge in Count I occurred] and Munyua’s house is about 3 kilometers. Farm house that was burnt is in Githurai. PW4 is now cultivating miraa on the Karimba farm. Simba was at Githurai near Munyua’s house. He was in Ibrahim Kaberias house.”

Arson at Kithaka’s Farm

71. PW6 George Kithaka testified on the burning of his house by a group of about 10 people who were armed with pangas and arrows at about 6-7pm when there was “darkness when they came, however, on putting the house on fire… I could see them well”. He said the attackers had called out for him while he was in his shamba inspecting crop damage by animals. In the house were Mutemi his employee and his wife Kasyoka and their 2 children. Hiding behind a tree about 20m away from where he could see and hear them, he saw them surround the house and put fire on. Mutemi and his wife ran away while he went to his neighbour and spent the night, and reported the incidence at Tumutumu the next day. He said he was able to identify some of his attackers:

“I could see them from where I was, they were about 10. I knew them and recognized them. I recognised 4 of them. I recognized

1. Musa son of Francis Laibuta

2. Meme – 6th accused

3. Kingori Kaluaba

4. MKailibi

These are the 1st accused, 5th accused, 6th accused and 3rd accused. (The witness walks across the court room and identifies the subject accused). These were neighbours.”

The witness said the attackers were armed with “arrows, pangas and clubs.”

72. PW6 confirmed that he had not witnessed the accused persons kill any person and that he was only a witness of the burning of his house. His circumstances of identification were difficult where it was dark and he relied on lighting from the fire which was burning his house to identify the ackers who he admitted were not facing in the direction of his hiding place. He testified that he was Munyua’s (PW3’s) relative –

“Munyua is my in-law. Munyua had a land case with MKailibi Kailibi. The others are his children. I am here on my houses burning.”

He confirmed that he had not mentioned M’Kailibi (3rd accused) in his statement, on cross examination as follows:

“I recall making a statement at Maua police station. I cannot recall when. After I make my report at Tumutumu I waited for them to call me. I went the following January 2009. I ran away after they started to sing battle songs. I hid for sometime then ran away. Put that he did not mention MKailibi Kailibi in his statement (read to him). I saw him although I have not mentioned him in my statement. Munyua is married to my sister. He is married to Karimi my sister. He had a case with Munyua . I am not mentioning Kailibi in order to help my brother-in-law. I do not know any other offences they committed. I have only said they burnt my house.”

73. PW9, the I.O. testified as to his involvement in the investigations in the matter and said that :

“On 17. 9.2008 at about 6am I received a report that a murder had been committed and an arson at Thaicu area. In the company of d/OCS IP Wakaba, PC Ekoror and others whom I cannot remember went to the place. On arrival we found the body of Musembi Gatua laying on the road. He had an arrow lodged on his chest. We removed the body and proceeded to the farm where we found so many houses had been burned. We also found that there was someone else who had been shot with an arrow and had been rushed to the hospital. His name was Samson Simba. He had been injured in the stomach. He succumbed to the injuries at Maua Methodist hospital. I recorded statements from some witnesses and witnessed the post-mortem on the body.”

74. The I.O. named the suspects in the matter as follows:

“In the cause of the investigations I got 8 suspects by the names of Kingori Sara, Muriuki alias Abaunuasi, Ibrahim Meme, Musa Murimi, Kitheka Gichunge, Karatu, Muthami Mutinda and Adriano Munene. Initially, the witnesses mentioned 3 suspects. But they had indicated the suspects were 8 in number. I did not have opportunity to know the suspects. In my investigations, I established that the reason for the destruction was that there had been a court order issued to evict MKailibi from the farm of Benard Munyua. The order was executed by the OCS Maua. It is on the said execution that the destruction followed. That is the far that I was involved in the investigations in this case.”

75. The witness (PW9) further said that –

“On 11. 12. 2008 2 suspects by the names MKailibi Kailibi and Daniel Karatu were arrested by the instructions of the OCS. I handed over the case to DCIO Igembe Southfor further investigations.”

The OCS Maua and the DCIO Igembe Maua have not been called as witnesses.

76. PW9 testified on cross examination that he had on 11/12/2008 recommended the release of M’Kailibi and Daniel Karatu who were then the only suspects in custody on instructions of the OCS but had not been mentioned by any witnesses in the statements that he had taken as at that time when he handed over the matter to the DCIO, and that he “he had not recorded all statements from other witnesses.”

77. As regards the deceased in Count No. II, 2 PW9 said:

“I see the postmortem for Samson Simba. It was conducted on the 23/12/2008 which I witnessed. This is when I got the family members to identify the body. This matter was initially reported on 17. 9.2008. OB number 64 of 17. 9.2008. It was made at Maua police station. I am not the one who arrested the 2. It is the OCS who gave instructions for the arrest to MKailibi and Daniel Karatu. They were arrested for forcible detainer. I am not sure for what he was being arrested. The Investigation Diary shows that they weer being arrested for murder and assault. The OB No. 30/11/12/2008Daniel Karatu to be charged with the offence of suspect of murder and contempt of court. Ibrahim Murimi was to be charged with the offence of robbery, illegal death. OB No. 27/11/12/2008 indicated that M’Kailibi was placed under custody for “civil suit No. 90 of 2002. ” I think there is a typing error. He was a suspect of murder.”

78. From the state of the evidence presented before the court by the prosecution witnesses and the evidence by the defence based on alibi the court is able to make a determination that –

1. The victims of the attacks were PW3 and his relatives including PW4 and PW6 whose houses were burned and some of their employees shot, injured and killed.

2. It was not established that all the attackers were relatives of the accused 3 M’Kailibi Kailibi; or that they were victims of eviction from the parcel of land in dispute between PW3 and the 3rd accused so as to afford a motive of revenge for the attack.

3. The 3rd accused was not named as one of the attackers by the eye witnesses PW1 and PW7, and the prosecution has not established that he was part of the group that attacked PW3s employees at his Githurai farm during which the deceased in court II Samson Simba was shot and killed.

4. The 3rd accused naming as one of the attackers at one of PW3s relatives PW6 is immaterial to the murder charge in count number II as the attack only involves the burning of the house of PW6 and no arson charge was levelled against the accused. In addition, PW6 admitted that he had not named the 3rd accused as one of the attackers in his statement and the court does not accept that it is proved that the 3rd accused was part of the group of allegedly 10 people that attacked PW6s home.

5. Although PW9 the I.O., had recommended the release of the 3rd accused and the 4th accused as having not been mentioned by the witnesses, the same was based on the state of witness statements as at 11/12/2008 and the court must consider the evidence of the prosecution witnesses in determining the involvement of the 4th accused against his alibi, as the statements of the witnesses were recorded later on 17/12/2008.

6. While it is desirable that witness statements should be recorded as soon as possible following the incident subject of a charge, the prosecution may record statements any time before trial and the timing of the statements only goes to the credibility of the statements set out therein and as applicable, to the question of fair trial where the recording of the statements do not permit the defence reasonable opportunity to answer or challenge the claims set out therein.

7. Malice aforethought on the part of the attackers is inferred by the fact of their being armed with arrows, pangas and club, and their intention to kill or at least cause grievous harm and damage to property is clear by the shooting of the deceased with arrows and burning the houses; and, consequently, malice aforethought within the meaning of section 206 of the Penal Code is complete.

Specific involvement of the accused

Accused 1, Musa Murimi

79. PW1 and PW7 identified Musa Murimi as the one who led the group of attacker carrying a bow and arrows and a jerrican, and sprinkling its contents around the store before the fire erupted. Although it was not shown that he was the one who set the fire or shot the arrows that killed Samson Simba he was placed at the scene of crime. Despite his alibi defence supported by a witness that he was watering miraa plants at DW2s shamba all the night long, I find the consistent evidence of the 2 prosecution witnesses PW1 and PW7 recognising the 1st accused at 6. 30 when “it was still daylight” according to PW1 who said that he had schooled with the accused at Thaicu primary school as with PW7, to be unshaken and I accept it. Although an accused who raises an alibi does not assume any duty to prove it (see Karanja v R, supra) the court does not accept that the 1st accused and his employer required the whole evening and night from 4pm to 7am to water their miraa trees in a 2-acre plot. I find the 1st accused to have been placed at the scene of crime as the leader of the group that attacked PW1, PW7 and the deceased, employees of PW3 at Githurai area Kisima village in Kianda sub-location of Kiguru location Igembe South sub-County of Meru county and consequently find him guilty of the offence of murder contrary to section 203 as read with 204 of the Penal Code.

Accused 2, Stanley Gichunge Kitheka

80. The 2nd accused alibi was that he was on 16th September at Kanjo location Igembe South where he had gone on 12 September 2008 and worked as casual labourer until 15th November 2008, and Kanjo is a day’s trip from Kisima in Kianda sublocataion where the killing charged in count II took place. PW1 and PW7 identified the 2nd accused as one of the attackers who came armed with arrows and pangas. PW7 enumerated all the 8 attackers whom he said he knew as village mates. [In cross examination, no question as to the alibi defence was taken] other than, as submitted by Mrs. Ntarangwi for the 3rd accused, this was a retrial no formal notice of alibi was given at the beginning or early in the trial as required (see Karanja v R supra). In exonerating the 2nd accused alongside the 3rd and 4th accused, PW5s informer was reporting on the attack at the farm of PW4, which is the subject of the charge in count no I. The 2 places were a short distance apart (3kms) according to Assistant Chief PW5 and the attacks were 30 minutes spaced and it cannot be assumed that the same parties who were involved in the one attack were also in the other attack, and vice versa. It may well be that the persons who were involved in the 1st attack were joined by others in carrying out the 2nd attack, or some of the attackers in the 1st attack did not proceed to the venue of the 2nd attack. I find the recognition identification of the accused by the 2 witnesses PW1 and PW7 who expressed their identification by touching the accused persons before the court, being persons they knew well as village and former school mates, as discharging the alibi set up by the accused.

Accused 3, MKailibi Kailibi.

81. The 3rd accused is not named by the eye witnesses PW1 and PW7 as part of the group of the attackers at PW3’s farm. His mention as a member of the attackers at PW6s house is inconsequential with regard to the murder charge in Count II. There is no evidence or basis for inference of common design as he is not shown to be present at the scene of the offence charged. He is acquitted.

Accused 4 Daniel Karatu

82. Karatu’s sworn alibi statement was that he had on the material day 16th September 2008 accompanied PW3 to Nanyuki to meet with the latter’s advocate to prepare for the conduct of the appeal in the suit between the 3rd Accused and PW3 which was coming up the following day on 17/9/2008 and on return had, for lack of bus-fare to go to Kianda and come back the following day, spent the night at Meru at a lodging house he could not recall. PW1 and PW7 placed the accused NO.2 at eh scene of attack at Bernard Munyua’s at 6. 30pm where, as with the others, he armed with arrows and pangas. First reports of the witnesses to their employer PW3 and the Assistant Chief PW5 show consistency in terms of section 165 of the Evidence Act. PW1 said he knew Accused 2 Although, he had no duty to prove his alibi, the court noted that he could tell on cross-examination the name of the lodging house at Meru where he spent the night with Accused 3 awaiting the hearing of the appeal on the land matter the following day.

Accused 5 Gedion Kingori

83. Gedion testified that he was selling his Miraa at Tseikuru in Ukambani way out of the area of attack at Kianda sub-location. PW7 said he identified the 5th accused at the scene as the one ordered them to sit down but never saw Accused 5 and 6 shoot any arrow as he and PW1 had started ran away when the 1st accused sprinkled a liquid on the house and there was smell of fuel. PW1, said he knew the accused who like 1, 2, 4 had gone to the same school, Thaicu Primary School. He was placed at the scene by the two eye witnesses and it cannot be true that he was away at Tseikuru Ukambani at the time of the attack.

Accused 6 Ibrahim Meeme

84. Meeme’s alibi was that he was at home the whole day baby-sitting his two young children who had been left by their mother following a quarrel with him that very morning 16/9/2008. PW1 does not place Accused 6 at the scene. PW7 testified that he recognized the accused as part of the 8-man group of attackers all of whom he knew previously as friends, village mates and school mates. I do not find that the single witness identification evidence of PW7 as to the presence of the Accused 6 at the attack at Benard Munyua’s farm house where the death of employee Samson Simba subject of Count II of the information occurred is corroborated in any way.

85. I would acquit the 6th Accused on this count. If he is proved to be present at George Kithaka’s farm, where only arson was committed but which is not charged, he cannot be brought into the murder charges in the absence of evidence of common intention other than by presence at the scene of the crime of murder charged.

Finding on Count II

86. The Prosecution has established its case against the 1st, 2nd, 4th and 5th Accused persons for the offence of murder contrary to section 203 as read with 204 of the Penal Code as charged in Count II. It has not been shown that Accused 3 and 6 were at the scene of crime charged under Count II and they are acquitted.

CONCLUSION

87. The Prosecution’s case in the two offences of murder charged as Count I and Count II on the Information dated 16/1/2017 was based on a theory of common purpose of the accused persons and others not before the court to revenge their loss of occupation of a parcel of land named as Plot NO. 4103 at Kalimba (also referred to as Karimba by some of the witnesses) following a civil dispute thereon between the 3rd Accused, M’Kailibi Kailibi, as defendant and the PW3 as plaintiff which culminated in execution by the OCS Maua of eviction orders issued by the High Court upon an unsuccessful appeal by the 3rd accused from the Maua Chief Magistrate’s Court in Civil Case No. 9 of 2002.

88. The revenge was alleged to have been executed by the evictee (Accused 3) and members of the family/clan of the Accused 3 upon the said Bernard Munyua PW3 and his extended family among them the brothers in law, PW4 and PW6. The revenge took the form of burning of stores and houses at Munyua and his family members’ farms on the disputed piece of land and other parcels which they occupied in the Kianda sub-location of Igembe South Sub-County. In the course of the attacks, the assailants shot and injured employees of the said Munyua and his relatives, and two of these succumbed to their injuries and their unlawful deaths were the subject of the murder charges in the two counts of the Information herein.

No charges for the accompanying arson were levelled.

89. All the accused persons raised alibi defences that they were elsewhere when the alleged attacks took place at the named places within Kianda sub-location, Kiguru Location, Igembe South Sub- County of Meru County.

90. The Court has weighed the prosecution’s evidence and the alibi defences of the accused as a whole and with all alternative defences as clearly emerge from the evidence, (such as the defective charge submission and inconsistency of evidence in the present trial and previous trial declared mistrial), as required by case-law authority, respectively, Okethi Olale & Others v. R (1965) EA 555 and Okeyo Kigeni v. R (1965) EA 188.

91. Upon consideration of the prosecution evidence with the alibi defences of the accused persons as a whole and being careful in the evaluation of the evidence of identification of the accused persons at the scenes of crime, although the identification was by more than a single identifying witness (cf. Abdala bin Wendo v. R and Roria v. R, supra) the Court has found that the identification evidence by the three eye-witnesses was one of recognition, (which is stronger; see Anjononi v. R, supra) by the witnesses of the accused, whom they knew previously as village mates and school mates, as having been part of the attackers and the court would find the recognition to discharge the defences of alibi raised by the accused persons, and which the court consequently rejects. Moreover, the identification evidence was nonetheless corroborated by first reports made by the witnesses to their respective employers, PW3 and PW4, and the Assistant Chief for Kiwanda sub-location, PW5.

92. There was no direct evidence of any conspiracy or planning for the attacks among the accused as to expressly show a common purpose among the accused. However, on the principle in Njoroge v. R[1983] KLR 197, their common intention is inferred from their proved presence at the scene where the attacks took place and participation in the unlawful acts.

93. The Court must find, having considered each accused persons’ case, that the accused alibi defences are sham. The defences cannot, however, be said in this case to be afterthought, in the explanation of the term in Karanja v. Republic 1983 KLR 501, as the same defences were raised, as urged by Counsel for the 3rd Accused, in the previous trial which was declared mistrial by the court (Lessit J. (as she then was) in HCCRC 15 of 2009) on 31 July 2014. The defences may have been an afterthought in the previous trial, but they are definitely sham in view of the consistent and overwhelming evidence of eye–witnesses in this case.

94. Save for Accused No. 3 who PW1 placed at his home 3 kilometres away from the scene of the attack at (Munyua’s farm) at 6. 30pm on 16th September 2008, and Accused 6 in respect of Count NO. II, all the other accused persons were identified by various witnesses as having been part of the attackers who burnt the houses belonging to, respectively PW4 Joseph Murungi at 6. 00pm and Bernard Munyua PW3 at 6. 30 pm on the same day in two incidents in which the deceased subject of the murder trials herein Musembi and Simba were killed by shooting with arrows; and at George Kithaka ‘s (PW6) house at about 7. 00pm later that night.

95. Unlike in the case of a joint charge against only two accused persons (see Kioko v. R [1983] KLR 289) where acquittal of one discharges the other of the joint charge, if there are more than two accused persons and one is acquitted, a joint charge remains with the rest as they could be charged with having jointly murdered the deceased in the course of a common design. In this case where there were several accused persons, the acquittal of some of them in the joint charge is not fatal to the joint charge.

96. With regard to Accused 3, no evidence was availed to prove that he was among the attackers at the two places where the attacks leading to the deaths subject of the two counts before the court took place. There was also no evidence of his having procured, (within the meaning of section 20 (3) of the Penal Code), the attackers to do his bidding with regard to the attack even though he was alleged to be the principal protagonist with the PW3, with whom he had land dispute, and his relatives. (see Dismas v. R [1984)] KLR 634 on procurement of an offence and effect thereof. In addition, as common intention under section 21 of the Penal Code was not proved (although there was insinuation of revenge for the PW3’s eviction of accused from a piece of land under dispute motive is under section 9 (3) of the Penal Code irrelevant to a criminal offence), it would be unsafe to convict the 3rd Accused for any association with the other accused persons not amounting to common intention and or procurement of the offence of murder, which would make him guilty of the same offence as if he had himself been part of, and taken part in, the attacks.

97. Ultimately, the diagnosis of the Court as to the anatomy of the attack on PW3 and his relations was the scorching of their stores/houses at their shambas and killing their employees deployed therein in an apparently well organised plan executed about 6. 00 - 7. 00pm on 16th September 2008 at different locations one after the other. Suspicion (although suspicion no matter how strong cannot found a conviction as held in Sawe v. R [2003] KLR eKLR; KLR 364) that the attackers were acting in common design with the 3rd Accused who had a civil dispute over a parcel of land with the PW3 and, consequently, a motive for the attack and or that Accused 3 may have procured, within the meaning of section 20 (3) of the Penal Code, his relatives to carry out the attacks was not proved. It was proved, however, that the Accused persons 1, 2, 4, 5 and 6 were present during the attacks and the killing subject of the murder charges in Count Nos. I and II in the Information dated 16/1/2017. While Accused 6 was shown to have been present in the attack subject of Count I of the Information, there was no evidence from the eye witnesses that he was part of the persons who attacked PW3’s farm, which was the subject of Count II. The accused were armed with arrows, pangas and clubs, and their intention to kill or at least cause grievous harm and commit a felony by damage to property is clear by the shooting of the deceased employees of the farm owners with arrows and burning the houses, and malice aforethought, within the meaning of section 206 (a) and (c) of the Penal Code as elaborated in Olenja, supra, is complete. Indeed, the attackers’ intention to kill may be inferred from the use of arrows on the victims. For their presence and taking part in the attacks on PW3 and his two relatives, PW4 and PW6 who testified before the Court is demonstrable evidence from which common intention is inferred, in accordance with the law.

98. The said accused persons are, therefore, jointly guilty of the offences of murder contrary to section 203 as read with 204 of the Penal Code, on the principle of execution of common purpose under section 21 of the Penal Code, and they are convicted as charged. Accused No. 3 who was not shown to have been present at either of the two incidents subject of charges in Count I and II is acquitted on both counts.

ORDERS

99. Accordingly, for the reasons set above, the Court makes the following Orders:

1. For the offence under Count I of the Information dated 16th January 2017:

i. the Court convicts the 2nd, 5th and 6th Accused persons, namely Stanley Gichunge Kitheka, Gedion Kingori Alias Sarahand Ibrahim Kiobe,for the offence of murder contrary to section 203 as read with 204 of the Penal Code; and

ii. the accused persons Nos. 1, 3 and 4, namelyHenry Musa, M’Kailibi Kailibiand Daniel Karatu,are acquitted of the said offence as charged.

2. For the Offence under Count No. II of the Information dated 16th January 2017:

i. the Court convicts Accused persons Nos. 1, 2, 4, and 5, namely, Henry Musa Murimi, Stanley Gichunge Kitheka, Daniel Karatu, Gedion Kingori Alias Sarah for the offence of murder c/s 203 as read with 204 of the Penal Code; and

ii. Accused persons Nos. 3 and 6, namely, M’Kailibi Kailibi and Ibrahim Meme Kiobe, are acquitted.

3. The sentencing proceedings for Accused Nos. 1, 2, 4, 5 and 6 in the respective counts shall be held on a subsequent date to be fixed.

4. There shall be an order for the immediate release from custody of Accused No. 3, namely M’Kailibi Kailibi, unless he is otherwise lawfully held.

Order accordingly.

DATED AND DELIVERED THIS 10TH DAY OF MARCH 2022.

EDWARD M. MURIITHI

JUDGE

APPEARANCES:

Ms. Nandwa, Prosecution Counsel for DPP.

Ms Nelima, Advocate for the 1st Accused.

Mr. Mutuma, Advocate for the 2nd and 4th Accused.

Mrs. Ntarangwi, Advocate for the 3rd Accused.

Mr. Igweta, Advocate for the 5th and 6th Accused.