[2022] KEHC 12240 (KLR)

Republic v Ingumba (Criminal Case 50 of 2018) [2022] KEHC 12240 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12240 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 50 of 2018

ACA Onginjo, J

June 16, 2022

Between

Republic

Prosecutor

and

Dancun Ingumba

Accused

Judgment

1. The Accused Dancun Ingumba is charged with the offence of Murder contrary to section 203 as read with section 204 of thepenal code cap 63 Laws of Kenya.

2. Particulars are that on the October 22, 2018at Nyali bridge area within Mvita Sub- County Mombasa County murdered John Kabare alais Baite.

3. The Prosecution’s case was supported by the evidence of 5 witnesses.

4. PW1 Amos Kilonzo Kyalo testified on March 8, 2019before Justice Thande. He testified that he lived in Buxton near Nyali Bridge and sold water for a living. It was his evidence that on October 22, 2018when he was going to sleep at 11. 00 pm he found the Accused person, Dan a guard, and Aba beating a person on his hands and legs using a rungu and slasher. They told him they were beating him because he was a thief. Another man called John was also present but he was not beating the deceased and even asked them to stop physically assaulting the deceased. Aba threatened the deceased that it would be the last day of his life. Dan and John left the scene. Accused and Aba then crossed the bridge with the deceased after Aba asked him to put his head on the bridge which he refused. PW1 cautioned both men to fear God and the government but they ignored him. After, they lifted deceased and threw him into the ocean, he screamed for help but soon drowned. He went and informed Dan and John what had happened then ran to the police road block which was about 50 meters and told the police what he had witnessed. The police arrested Accused but Aba fled. He recorded a statement and after 4 days he was informed that the body of deceased had been found. PW1 further testified that deceased was wearing a black shirt with a design at the front. He identified the black shirt in court as the one deceased was wearing that night.

5. PW2 was Dancun Wafula Kakai. He testified that he was staying in Buxton near M.M Shah. On October 22, 2018at 10. 00 pm, he was sleeping when Accused called him to go and identify someone who claimed to know him. He followed him and met John another guard with deceased who was sitting down. He identified the man as Kabare or Baite. Baite told him that he had just been walking around when he inquired what he was doing there. The Accused called Aba another security guard. They asked Baite if he knew Aba, he answered that he didn’t to which Aba told him, ‘I am the killer.’ Aba added that he would return to finish him. Aba left and came back with a slasher. The Accused held Baite’s leg and took a rungu which he had. It then started raining.PW1 arrived and PW2 went back to his house to find a weapon to assist the deceased. When he returned he found John another security officer had shielded himself under a tree from the rain but had no weapon. He did not find Accused, Aba and PW1 where he had left them. He then met PW1 who told him that the deceased had been thrown over the bridge. He went with PW1 at the section of the bridge where the deceased had been thrown off and they saw him swimming and screaming for help but then he drowned. Aba had disappeared but Accused was still at the bridge. PW1 and PW2 went to traffic officers but he did not go to the police station. When the police arrived, Accused was still on a bench near the bridge. The Police inquired where the person who was thrown off the bridge was but Accused could not answer. They arrested John and Accused person. After two days he recorded a statement. The body was found by police from Makupa police station.PW2 further testified that the t shirt that the deceased was wearing was black.

6. PW3 was Dr Fatma Ahmed medical officer from Coast General Hospital. She testified on behalf of Dr. Nabil. She testified that the body was found on October 27, 2018at 1. 30 PM. The date of death was 23rd October 2018. Deceased was strangled by security guards and thrown into the ocean through Nyali Bridge. Post mortem was done on March 1, 2019 as no one came to identify the body. The observations made were; - Body was decomposed and cause of death was drowning. She produced the PM report as EP2. In cross examination she asserted that it was not an anomaly for a post mortem report to be typed as in the case but it was normally handwritten. She further testified that the body was overly decomposed that the Doctor had concluded that the cause for death was drowning and clothes found on the body were in a polythene bag.

7. PW4 was No. 07014 P. C Ashfad Kinyua. He testified that on 22nd October 2018 at about 11. 00pm he was at Anti-crime stand by with Corporal Caroline Malala at Makupa Police Station. Two police officers manning Buxtan road block near Nyali bridge came to bring the Accused and his colleague John Wesonga Mariko. They were also with PW1 who informed them that the Accused and his colleague had beaten up someone and threw him in the ocean. They went to Nyali bridge but could not see any person in the ocean. They placed the Accused and John Wesonga in the vehicle. On October 27, 2018 in the morning they got information that a body had been seen near Tudor Nora. There was a t-shirt and jeans on the body and scene of crime personnel came and took photos of the body. The body was whitish; mouth and teeth were broken and body had injuries on the head and legs. They took the t-shirt as an exhibit. He produced the t-shirt as exhibit MF1P1-1. The body was never identified and no ID was collected on it.

8. PW5 was No. 52225 P.C Safari Chea he took over investigations. He produced the report and photographs of the scene prepared on October 27, 2018and produced them as MF1P2(a).

9. On February 28, 2022, the court ruled that Accused person had a case to answer and he was put on his defence.

10. Accused gave sworn evidence on April 1, 2022. He testified that on October 22, 2018at 5pm he prepared to go to work as a guard at Nyali Bridge. His work was to guard the rail guards along the bridge. He arrived at 6pm and his colleague John Wesonga joined him at 6. 30 PM. While doing patrols with John they saw two people, one of them Amos smoking bhang. They warned Amos that he was not supposed to be here as it was almost 9pm. He however objected and refused to move. They went to report the matter to the police offices that that they had been threatened. The police told them to report to them in case any incident occurred. They went back to the middle of the bridge and saw PW1 and the other unknown man walking across the bridge towards lights. At 11pm PW1 walked across them. After about 15 minutes he saw three people walking toward them one being PW1 and two police men. They inquired where they had thrown a man off the bridge and this surprised them as they knew nothing of the matter. The Police men then accompanied them to MM shah and placed them in a Land cruiser and they were taken to Makupa. They were locked in the cell for four days and then brought to court however Wesonga was called outside the cell and he never saw him again and was unaware that John had recorded a police statement. He further testified that he never went to PW2’s house at any point of the night. Lastly he asserted that he had a plastic rungu which was never brought before court.

Submissions 11. Accused person filed submission dated April 12, 2022. In a nut shell it was submitted that prosecution did no prove its case beyond reasonable doubt. It is submitted that no direct evidence was given to link the Accused to the murder and the weapon he purportedly used to beat the deceased was never brought before court. Further to this the cause of death was inconclusively as the post mortem indicated he had died of ‘decomposed drowning with a question mark.’ The body was never identified as well and no DNA was done to prove that it was indeed the deceased. The police also conducted shoddy investigations as they indicated that the deceased was strangled yet this was not reflected in the post mortem report and John Wesonga who was also arrested was never brought before court.

Analysis and Determination 12. From the evidence on record for both parties and submissions by Accused Person’s Advocate the core issue for determination is; Did the Prosecution prove its case beyond reasonable doubt?

13. Murder is defined under Section 203 of the Penal Code as Follows: - “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”

14. In the Court of Appeal case Anthony Ndegwa Ngarivs Republic[2014] Eklr., it was established that ingredients that prove the offence of murder are; -I.fact of death and its cause;II.that the accused unlawfully caused the death (actus reus)III.malice aforethought (mens rea).

The fact and cause of death 15. Accused asserts that fact of death was not proved conclusively as the body was never identified as that of the person he is alleged to have thrown into the ocean over Nyali bridge. From evidence on record, PW1 and PW2 confirm that when a body was recovered at the source of the ocean near Tudor Nora on the upper part of Nyali bridge they were never called to identify it. However, it is the evidence of PW1 and PW2 confirm that the Accused and his colleagues beat up Baite and PW1 saw the Accused and Aba throw the deceased in the ocean and he screamed for help and later drowned. PW3 produced a postmortem report prepared by Dr. Nabil confirming that body recovered died as a result of drowning.PW1and PW2 also gave evidence that Baite was wearing a black t-shirt at the time of the incident. PW4, PC Kinyua said the body recovered on October 27, 2018was dressed in a black t-shirt and jeans trouser which PW1 identified in Court as exhibit 1 and was what Baite was wearing that night. The body was also recovered 5 days after Baite was thrown into the ocean and not far from where he was thrown and no other report of a missing person was filed within that time range in that area. These bits of circumstantial evidence draw the conclusion that the body recovered was that of Baite. Moreover, the fact that deceased was homeless and described himself as a ‘survivor’ explains why no one came to identify his body. In Dorcas Jebet Ketter and Anor. Versus Republic [2013] eKLR, the Court of Appeal cited a decision of New Zealand Court of Appeal in Republic Versus Harry [1952] NZLR’’ (3rd Digest Supp.) where the court made the following observations; ‘‘At the trial of a person charged with murder, the fact of death is provable by circumstantial evidence, notwithstanding that neither the body or any trace of the body has been found and that the Accused has made no confession of any participation in the crime before he can be convicted. The fact of death should be proved by such circumstances as renders the commission of the crime morally certain and leave no ground for reasonable doubt; the circumstantial evidence should be so cogent and compelling to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.’’It is my finding that the circumstantial evidence is cogent and compelling to meet the first ingredient of the offence of murder.

That the Accused unlawfully caused the death (actus reus). 16. It was the evidence of PW1 that he saw the Accused person and his colleague Aba throw the deceased in the ocean after beating him using rungus and a slasher. PW2’s evidence also places the Accused at the scene of the crime. Accused person gave evidence that this never occurred and the police just questioned him on throwing deceased into the ocean. I find the Accused version of events to be an afterthought as his assertions that he had reported PW1 to the police for smoking bhang were never corroborated by the police. I find PW1 and PW2’s evidence to be consistent and truthful. Beating and throwing the ocean into the ocean on the suspicion of being a thief was unlawful and beyond their mandate as night guards. This act was barbaric. I therefore find that this second ingredient was met.

Malice Aforethought. 17. Section 206 of the penal code defines Malice aforethought as: -(a) an intention to cause the death of or to do grievous arm 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.

18. It was the evidence of PW 1 that Accused and Aba threw deceased into the ocean after beating him up. Aba had threatened the deceased that it would be his last day. Accused and his colleague Aba ignored PW1 when he warned them against doing any further harm to the deceased. The only conclusion that could be drawn from actions of the two persons was that they intended to kill deceased by throwing him into the ocean in the middle of the night when it would be nearly impossible for deceased to be saved from drowning. The persistent actions of the Accused and his colleague in beating the deceased and throwing him into the ocean even after being told that he was known to PW1 and PW2I was actuated with malice aforethought.

19. In conclusion I find that the prosecution proved its case beyond reasonable doubt and find Accused person guilty of Murder and he is convicted under section 322(1) of the Criminal Procedure Code Cap 75 Laws of Kenya.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 16TH JUNE 2022. HON. LADY JUSTICE A. ONG’INJOJUDGEIN THE PRESENCE OF: -Mrs Makuto Advocate for AccusedAccused present in personMr. Ngiri for StateOgwel, CourtAssistant.Mr. Ngiri; No previous recordsMrs MakutoMention laterHON. LADY JUSTICE A. ONG’INJOJUDGELater at 10. 15amCoram as beforeMrs Makuto Advocate MitigationThe Accused is a 1st time offender. He is a young man. He is married and has a three-year-old child. The Accused is sole bread winner to his young family. He is remorseful. He has been attending court without fail. He has been out on bond. He has been doing menial jobs to fend for his young family. We pray for a lenient sentence preferably non-custodial sentence to have him fend for his young family which will suffer in his absence. We also urge for a pre-sentencing report to assist Court to arrive at a lenient sentenceORDERAccused to be paced in custody at Shimo La Tewa, GK prison to await pre-sentencing report as well as victim impact assessment.Mention on 7th July 2022HON. LADY JUSTICE A. ONG’INJOJUDGE16th June 2022