[2023] KEHC 26950 (KLR)

Republic v Jeffa & 2 others (Criminal Case E014 of 2020) [2023] KEHC 26950 (KLR) (11 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26950 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case E014 of 2020

A. Ong’injo, J

December 11, 2023

Between

Republic

Prosecutor

and

Mwenye Heri Mgele Jeffa

1st Accused

Shadrack Nyiro Rasi

2nd Accused

Bernard Masai Mwangeka

3rd Accused

Judgment

1. The accused persons Mwenye Heri Mgele Jeffa, Shadrack Nyiro Rasi, Bernard Masai Mwangeka were jointly charged with the offence of murder contrary to Section 203 as read 204 of the penal code.

2. Particulars are that the accused persons on the 19th day of October 2020 at Kiwegu Village in Vanga Location Lungalunga Sub-County within Kwale County, murdered Mwalewa Jeffa.

Prosecution’s Case

3. The prosecution’s case was that on 19th October 2020 the deceased spend the night in their main house despite threats & attacks previously directed at him by his brothers in conjunction with his mother due to a land dispute. PW1, Ega Tsuma, the wife of the deceased feared and spent the night at her son Fredrick’s house. That at 2. 00 am, PW1 said she heard her husband screaming, crying and calling the son, Fredrick, to go and help him as there were people who were killing him.

4. That she got out and saw someone cutting the door. That her son tried to get out through the Makuti roof but stones were pelted at him by the attackers. That by the time the son got out through the roof the attackers had left. PW1 said that his son, Chombo, was in the same house with the father and when the attackers left he came out crying and saying his father had been killed.

5. PW1 said that she entered the house and found her husband crying and mentioning Mgele, Nyanje and 2 others whom he did not know as the ones who attacked him. She said her husband had cuts on the face, hands and legs which were fractured. A phone call was made to Tsuma who went to scenes and found other neighbours, Hassani Barua and Mwero Julius had also arrived. Tsuma went to Kiwegu to get a vehicle to take the deceased to hospital but he died on the way to hospital.

6. PW1 said that the disputed parcel of land was bought by her father-in-law on behalf of the deceased who paid Kshs. 8000/= in the 1980s when Chome Mgala’s wife wanted to sell her land to pay dowry for her son’s wife. She said by then the deceased was working at Bayusuf as a mechanic. That her husband returned home in 2001 when he lost his job and 8 years thereafter her father-in-law died.

7. That after the death of the father-in-law, the mother-in-law said she is the one who bought the land using dowry paid for her child. PW1 said on 22. 5.2020 there was an attempt on the life of the deceased when he was shot with an arrow but it did not stab him. That the deceased said he was able to identify Nyanje as the attacker and he was arrested and charged in Msambweni court. PW1 said that when her mother-in-law was told to go and see the arrow that had been used to shoot at the deceased, she refused.

8. That on 12. 10. 2020, PW2, the son of the deceased, was again attacked at night by Mgele Jeffa, Ngare and a 3rd person whom he did not identify. Again a report was made to the police but PW2 left home before suspects were arrested and shortly thereafter on 19/10/2020 the deceased was attacked and killed in his house at night.

9. PW1 said that after her husband’s death the mother-in-law, Mbodze Jeffa, and her brother-in-law’s wife went underground to date. She said A1 was her uncle’s son and A3 was not known to her. She said Nyanje had not been arrested and he stays at his uncle’s home. She said Nyanje was normally seen and then he would disappear.

10. PW1 said in cross examination the land that made her husband to be killed was in Umba and it was bought by her husband. She said that her husband send money for the land to be bought and she was already married but she did not have documentary exhibit and she did not witness the purchase. PW1 said the land dispute was discussed by elders and her mother-in-law was told the land belonged to the deceased. PW1 said that her son had a torch which he used to identify Mgele Jeffa and Nyale Mwalewa. She said A1’s 1st wife has a house in the same compound where they stay.

11. She said the mother-in-law, Mwaka, told her that her husband would be killed by her own people and not robbers. She said that when she heard the deceased cry that he was being killed, she did not get out as someone was cutting the door using a panga. PW1 said that the son Fredrick was able to see 6 people at the scene.

12. In cross examination by Mr. Otuoma Advocate for A2, PW1 said that she could not remember when her father-in-law died. She said the land dispute started after the death of her father-in-law. She said the dispute was brought about by her mother-in-law and her other children. She said A2 had no relationship with her in-laws but he had a case with Kombo Mwamose which brought about differences with her husband who introduced Mwamose to an advocate. She said Kombo Mwamose was also not related to the deceased.

13. PW1 said that the incident of 22. 05. 2020 did not involve A2. She said that the 2nd accused was also not mentioned in the incidents that took place on 12. 10. 2020 and 19. 10. 2020 save that the deceased talked of 2 other people whom he could not identify. She said the 2nd accused was seen by her son. She said that her brother Tsuma had no dispute with the 2nd accused. PW1 said she did not know A3. She said her husband mentioned Mgele Jeffa and Nafasi and not A3.

14. PW2, Nyale Mwalewa Jefa, received a phone call from the uncle Tsuma who told him at 3. 00 am on 19. 10. 2020 that his father was attacked and that the body was at Lungalunga Hospital mortuary. He left Ukunda and arrived at Lungalunga at 6. 00 am and confirmed the father was dead. They reported the matter at Lungalunga police station and the police took the body to Kwale Hospital for Postmortem and later it was released for burial.

15. PW2 reiterated what PW1 said about attack on the deceased on 22. 5.2020 and attack on him on 13. 10. 2020 before the murder of his father on 19. 10. 2020. He said that on 13. 10. 2020, he identified Mgele Jeffa, Ngome Jeffa and a 3rd person as his attackers. PW2 said he reported the attack but the suspects had not been arrested by the time his father was killed. PW2 said Nyanje Nafasi is not related to the deceased. He said that Nyanje was charged in Msambweni Court CR. Case No. 159 of 2020 with offence of attempting to shoot the deceased with an arrow.

16. PW2 said he did not know A3. PW2 said that A1 does not stay with them in the same compound and that Ngome Jeffa is his father’s younger brother. He said Ngome Jeffa and Nyanje went underground after the death of the deceased. He said that he accompanied police to Jego police station where they reported arrow shooting incident but A1 was not arrested and charged. That it was only Nyanje who was arrested and charged.

17. In cross examination by A2’s counsel, he said that A2 is his uncle and his niece got married to A1. He said he had not differed with A2. He said A2’s difference with the deceased arose when the deceased introduced a lawyer to a family that bought land from A2’s family. He said A2 was not among the people who attacked him with pangas. He also said he did not know A3 and he was not among those who attacked him.

18. PW3, Chombo Malewa, testified that Malewa Jeffa was his father. He said that on 19. 10. 2020 he spent the night in the same house with his father while the mother spent the night at Nyale Mwalewa, his brother’s house. That at about 2. 30 am he heard the father calling from his room. He said he was in a different room that was separated by a corridor from the one the father was sleeping in.

19. That he heard the father cry “njoo unisaidie mtoto wangu nauliwa”. That when he opened door to his room to and help his father, he found 3 people who attacked him and one cut his right hand. He said there was no light in the house but he had a torch. He said he was not however able to identify the 3 people who attacked him at the door. He said he was pushed back to his room. That while his room he heard someone bang his door. He said the attack took about 30 minutes. That when he realized the attackers had left he went and opened for the brother whose house had been locked from outside.

20. That he and Fredrick went to check on their father who was lying in a pool of blood and he had multiple cuts. He said the deceased was still alive and he told them Mgele Jeffa, Nyiro Rasi, Ngome Jeffa & Nyanje Nafasi are the ones who cut him. He said the names mentioned by the deceased are for people who were known to him. He said Hassan Barua and Mwero Julius were among neighbours who responded to alarm and took his father to Lungalunga Hospital but he died on the way. PW3 was also treated at Lungalunga Hospital as per – EXP 2 and P3 – EXP 3. He said Mgele Jeffa and Nyiro Rasi were A1 & A2. He said he did not know where Ngembe and Nafasi went to. He said he did not hear the attackers talk.

21. In cross examination, PW3 said that A1 was his father’s younger brother and that he had not differed with him. He said he did not know if A1 had differed with his father or mother. He said he did not see A1 or A2. He said he saw 3 people at his door which he opened the door. He said that A2 was his uncle from the mother’s side. He said Tsuma was also his uncle. He said he had no difference with Tsuma. He said he was not aware of a grudge between A2 and Tsuma. He also said he did not identify A3 and the deceased did not mention A3.

22. PW4, Fredrick Mwalewa, testified that when his father was attacked he was able to identify Mgele Jeffa, Nyiro Rasi, Nyanje Nafasi Ngome Jeffa, Tsuma Masai and a 6th person whom he did not know. He said the 6 were not having any weapons. He said his father was attacked for 30 minutes. He said the attackers had parked a motorbike at the home and as they were going they pushed it away. That his brother Chombo came and opened for him the door and they went and found his father lying in a pool of blood. He said the father was still alive and he said that Mgele Jeffa, Nyiro Rasi Nyanje Nafasi & Mgome Jeffa are the ones who attacked and cut him.

23. PW4 said a panga was recovered besides his father. That it had a wooden handle. That Hassan Barua and Julius Mwero responded to alarm and looked for a car to take the deceased to hospital. He later learnt from Safari Mwalewa that his father had died. PW4 said he led police to Rasi Nyiro who was arrested from his house which is 20 minutes’ walk away from the deceased’s home. That when they went to Mgele Jeffa’s place, he was not found. That when they went to Nyanje Nafasi’s home they found a motorbike behind his house. That when Nyanje Nafasi’s wife was asked if the husband had motorbike she said her husband did not have even a bicycle. That Nyanje’s wife said her husband left 3 days ago. PW4 said that Nyanje’s home is 30 minutes away. That police took the motorbike to Jego police station. PW4 said they did not go to Mgomo’s place. He said that they did not also go to Tsuma Masai’s home. PW4 said that on 21. 10. 2020 he went and recorded his statement at Lungalunga police station. PW4 said that their home had 3 houses including his brother Safari’s house, his father’s house and a goat house.

24. He said those who attacked his father did not talk. He said A1 was his father’s younger brother and A2 was a neighbor. He said that Nyanje Nafasi is his friend and they stay in the same village. He said Ngome Jeffa was also his father’s younger brother. PW4 said that Tsuma Masai is also a neighbor. He said A3 is not known to him. He identified the panga that was recovered at the scene of murder.

25. He said in cross examination that the attackers were walking away when he shone torch on them and that there was also moonlight on the material night. He said the attackers were walking besides each other and not in a line. He said he did not know who had the panga. He said that A1 did not ride the motorbike. He said that the deceased said he was attacked by four people. PW4 said that they did not find anyone at A1’s home. He said that A1’s wife was also not at home. He said that they went to 3 homes. He said that Nafasi was not arrested. He said he was not able to identify 3 people who stood at his father’s door but when they were leaving he was able to identify them.

26. PW4 said A2 was wearing black T-shirt. He said one suspect wore white shirt and black shirt trouser. He said the rest of the attackers wore black T-shirts and black short trousers. He said that the attackers had a motorbike and the person who wore white shirt rode the motorbike. He said that Nyiro Rasi had land dispute with Mzee Kombo. He said that the deceased introduced Mzee Kombo to a lawyer and Rasi Nyiro was not happy and that created animosity between A1 and the family of the deceased. PW4 said that he was not aware of the relationship between A2 and his mother. PW4 said A3 was not known to him. He said he did not see A3 at scene on 19. 10. 2020. He said he did not see A3 push the motorbike. He said the deceased mentioned names of 4 suspects as the ones who attacked him but did not mention A3.

27. PW5, Mangale Tsuma, testified that the deceased was married to his sister Ega Tsuma – PW1. He said the dispute between the deceased and his family was over land. He said the land in dispute was for the entire family. He said that land dispute was reported to Assistant Chief of Kiwegu where it was established that the land belonged to the deceased but other family members did not accept. PW5 said he used to accompany the deceased whenever he was attending meetings for the land dispute and he was summoned by OCS Lungalunga. He said that the OCS referred matter to elders when the deceased’s mother alleged she had been threatened and her life was in danger. 4 elders were identified to handle the dispute and following their report the deceased was charged.

28. PW5 also testified that the deceased reported to him that Mgele Jeffa and Nyanje Nafasi attempted to shoot him with an arrow on 22. 05. 2020 and Nyanje Nayasi was arrested and charged and was released on bond. That on 19. 10. 2020 at 3. 00 am he was at home when PW4 – Fredrick Mwalewa made a phone call and told him that the deceased had been cut and that he should go home. He said he rushed to the scene and found the deceased was still alive and could talk but he did not talk to him. That he rushed to go and get means of transport and took the deceased to Lungalunga but on arrival at the hospital he was pronounced dead. He said that he later identified the body for postmortem. He said Nyanje Nafasi has not been at home since the deceased was killed. He said Ngome Jeffa also escaped since the incident occurred. He said Tsuma Masai is currently at home. He said he knew A1 & A2 but he had no dispute with them.

29. In cross examination he said he stays in same area with A1 and he had no grudge with him. He said the deceased had other brothers and that he attended sittings over land dispute between the deceased and his siblings. He said the proceedings of the land dispute were not recorded by elders. He said that Nyanje was arrested and charged with attempt to shoot the deceased but A1 was not charged because he was not found and arrested. PW5 said he did not hear the deceased speak although he was still alive. He said A2 was his neighbor about 35 meters away and was like his brother. He said he had no land dispute with A2. He said he had constructed on A2’s land but when he got another land he moved out. He said that he keeps livestock for Mwalewa and his mother but he had not contributed to the land dispute. He said the deceased did not mention if he had a dispute with A2.

30. PW6, Nicholas Mwangale, testified that on 18. 10. 2020 Bernard Masai called and borrowed his motorbike saying he would return it at 8. 00 pm. He said he had left the motorbike at Masai stage when A3 called to borrow the motorbike and paid him 200/=. That at 8. 00 pm, he tried to call Bernard Masai but he was not reachable. That he went home and on 19/10/2020 in the morning he called Bernard who told him he had gone to Kerani. That when he told Bernard he wanted his motorbike he said it had been taken by police because of curfews that he was going to follow up at Jego Police Post.

31. That at 10. 00am when he called again A3 told him he was in Kiwego within Lungalunga. That Ndegwa Chimera a bodaboda operator assisted PW 6 to trace A3. That they went to Kiwego but didn’t find him. That they went to Mamba Police Station and reported about missing motorbike. That on Wednesday he learnt Bernard was seen at the stage at 5. 00 pm. That his brother accompanied him and Bernard to Mamba Police post to record statement about the missing motorbike. That at Mamba they were told to go to Lungalunga Police Station where Bernard was placed in cells.

32. He said Bernard Masai was not related to him and was not his friend. He said Bernard Masai comes from Masai Stage. PW6 said he came to testify in respect to his lost motorbike. He said his motorbike had not been recovered to date. He said he did not know A1. He said he had left his motorbike with Mzungu Mazaro at the stage. He said he bought the motorbike on hire purchase. He said when he went to look for A3 in Ferani he did not find A1. He said A2 was not known to him. He said he did not know if his motorbike was at Jego police station. He said he was informed his motorbike was connected to murder. He said he was not at the stage when the motorbike was given to A3. He said that he learnt at Lungalunga Police Station that his motorcycle was connected with murder. He said he didn’t know if Mzungu Madzao committed murder.

33. PW7, Hassan Amadi Koja, said he was the 1st to arrive at the deceased home when he heard screams and on arrival found the deceased had been cut and was bleeding from all over the body. PW7 said he made phone call to Chief who in turn called police who came to scene. He said a motor vehicle was brought and the deceased was taken to hospital. He said accused persons were not known to him and he did not know why the deceased was attacked. He said A1 is a brother to the deceased. He said he did not see A1 when he arrived at the scene. He said Fredrick and Chombo, the deceased’s children, did not mention A1 as a suspect.

34. He said he did not witness attack and did not see A2 at the scene. He said there was moonlight. He said the deceased was on the floor and he told his children to make him sit properly as he was injured and he was made to sit on a chair. He said the deceased did not mention anyone’s name as a suspect. He said he did not know A3. He said his home to the deceased home is about 5 to 10 minutes’ walk. He said he did not see or hear the sound of a motorbike on the material day. He also said he did not see A3 at the deceased persons home and he did not hear anyone mention his name.

35. PW8, Kwekwe Nyamawi, testified that Nyanje Nafasi was her husband. She said her husband was a palm wine tapper. PW8 testified that on 18. 10. 2020 at 7. 00 a.m. She went to the forest to cut grass and returned at 4. 00 pm and found her husband was at home sleeping. She said her husband left to go and tap wine but did not return. That at 2. 00am the Area Chief, 2 police officers and one elder and 2 young men went to her home and knocked. That they asked where her husband was and she told them he had not come back. That they asked whose motorbike was behind her house and she told them she was not aware there was a motorbike behind her house and she did not know who brought it. That the Area Chief took the motorbike and went away.

36. That after 3 days her husband returned and she told him he was required at Lungalunga police station. That later when she called him he said he could not tell her where he was. That he told her to look for a job and fend for herself and the children. That when the husband returned police went and arrested him. She said she also recorded a statement. She said Nyanje was not in court and she did not know where he was. She said that A1 was known to her but she did not know if he was involved with the motorcycle. She said she had not come to testify about murder. She said in cross examination by Mr. Otwoma Advocate for A2 that she did not know her husband’s friends and she did not know if accused persons were her husband’s friends.

37. She said she knew A1 & A2 but not A3. She said her husband did not know how to ride a motorbike. She said her brother-in-law who knew how to ride a motor bike left home 3 years ago. She said she did not hear the sound of motorbike. She said their home is not fenced and anyone could chance entered. She said she did not see A3 at her home before she went to sleep. She said she with her mother-in-law, her sister-in-law & 3 grandchildren at home. She said it is the Area Chief who made her know there was a motorbike behind her house. She said her husband had never spent the night outside but he was away for 3 days. She said she did not know if her husband committed offence. She said that when her husband did not come back home for 3 days she tried to call him but he was not reachable and she told the mother.

38. PW9 Dr. Paul Gathuma conducted postmortem on the body of the deceased and filled postmortem report which he produced as exhibit – 1. His opinion was that cause of death was severe haemorrhage and severe head injury secondary to injury with sharp object. He said the deceased had multiple injuries.

39. PW10 CPL Ochieng Otieno from Jego Police Patrol Base testified that on 19. 10. 2020 he received call from Senior Chief Kaema who informed him that someone had been attacked in the Kiwegu village. That in company of P.C. Ramadhan they proceeded to the scene which was the name of Mwale wa Jeffa whom they found being carried. He said he had several panga cuts. He said that the deceased was alive and when he saw him he covered his face with a lesso that was being used to cover him. While the deceased was taken to Lungalunga Sub-County Hospital Fredrick Mwalewa led them to the home of A2 whom he claimed was in the group that attacked the deceased. He said they were with Area Chief and they found A2 and arrested him.

40. That they also went to the house of A1 but he was not in. That the wife said he had gone for a funeral. That they went to the home of Nyanje where they found the wife and children. That the wife of Nyanje said her husband left the previous night and had not returned. That at Nyanje’s house Area Chief noticed a motorbike parked behind the makuti thatched house and the engine was still warm. They suspected that it had just been parked. That he informed the OCS, OCPD & DCIO & DCI Officers took over investigation. PW 10 said that he later learnt the deceased had succumbed to his injuries.

41. PW10 said he recovered a panga from the scene. PW10 said the deceased did not speak to him when he arrived at the scene. He said he did not know if the Senior Chief who called to report the attack recorded his statement. He didn’t also know if Ramadhan recorded a statement. He said A1 was arrested in Kasarani on 22. 10. 2020. He said A1’s wife told them that he had gone for a funeral but they did not follow him to the alleged funeral. He said A1 and the deceased are brothers. He said the 1st accused and the deceased had land dispute. He said the deceased had made a report of creating disturbance.

42. PW10 said that his prior knowledge of the deceased did not make him arrest A2. He said they did not search A2’s house as they were in a hurry to track the other suspects. PW10 said he did not know how A3 was arrested. He said the panga recovered from the deceased house had blood stains. He said a motorcycle was recovered on the material night of the murder.

43. PW11 CPL Agapius Njeru testified that on 19. 10. 2020 at around midnight, his boss called and informed him there was a murder incident in Jego area. The station driver accompanied him to hospital where the deceased body had been taken and they met family members who reported that the victim died on arrival at the hospital body had deep cuts on the chest, mouth and arms. That photographs were taken. The body was escorted to Kwale County Hospital where postmortem was done.

44. PW11 said that they went to scene in Jego village and Officers from Jego police joined them. He said they found the door to the house where deceased was attacked smashed open and there was a pool of blood on the floor. That blood was splashed on the walls. He said that one of the suspects who was identified was arrested after the eye witness led police to his house. That they found a motorbike that was suspected to have been used was abandoned behind the house of one of the suspects. That the wife of the said suspect did not know the motorbike was parked behind her house. The wife was told to tell the husband to go to the station on return. That one suspect who was arrested by officers from Jego was handed over to them. He said that 3 suspects were arrested and charged whereas the 4th suspect was charged in CR. Case No. E024 of 2021.

45. PW11 testified that his investigations revealed that the deceased had a long standing despite with his brothers and mother and reports had been made to police. He said there was a pending matters in Msambweni, 2 of which the deceased was the Complainant and one where the deceased was the accused. PW 11 said the blood stained panga was not taken for analysis as the biometrics in it had already been interfered with. He identified photographs that were taken at the scene of crime and certificate issued by scenes of crime officer as to processing and preventing – MFI P6(a) (i) to (iii) and 6(b). PW11 identified photographs of motorcycle as well MFI P6(i) to (iii). He said that ID parade was conducted but objection to produce the forms was upheld and it was ordered that the officer who conducted parade should attend and testify as to ID Parade.

46. PW11 said that Mwachupa Mazera was charged later as he was at large. When the accused persons herein were arrested and charged. He said the motorcycle was recovered behind the house of suspect charged in CR. Case No. E024 of 2021. He said the cases between accused persons and the deceased are in Msambweni. He said that Nyanje Mwachupa Mazera and an unknown suspect were not in court. He said they had not yet arrested the 4th suspect. He said the panga recovered from the house where the deceased was killed had blood stains. He said the panga was handled by members of the deceased family and the officers who responded to the scene. He said the panga was already removed from the scene and he did not take photographs.

47. PW11 testified further that A1 was arrested by members of public and handed over to officers at Jego police station who in turn handed him over to PW11. He said in cross examination that call data for A1’s phone showed he was in Jego village on the material night the murder was committed.

48. PW11 in cross examination by A2’s advocate said that officers from Jego patrol base led them to the scene in the morning where he drew skeleton. He said statements of suspects were taken by his sermons. He said he did not interview the wife and children of 2nd accused. He said the motive behind the killing was an alleged land dispute where the mother and brothers of the deceased ganged against him. He said the deceased had a case with A2’s brothers and in one of the cases A2 was a witness. He said that Nyanje Nafasi was reported to have attempted to murder the deceased previously but was not arrested. That there was also an attempt on the deceased son’s life which was still pending action.

49. He said A1 & A2 are neighbours to the deceased. He said when he visited scene and the roof that was removed to enable a witness to see the suspects who attacked the deceased had been returned. He said he did not take photograph of the makuti thatched house from where the witness saw the assailants. He said there is no other connection between A2 and the scene apart from evidence of the alleged eye witness. When Ms. Atieno Advocate for A3 cross examined PW11 he said that A3 went to the station to ask for the motorbike that he claimed he had parked somewhere. PW11 said A3 claimed he had parked motorbike outside a lodging and that is where it was taken from. He said A3 was not found at crime scenes and he was also not found where motorcycle was recovered abandoned. He said motorcycle was used by assailants to get away from scene.

50. PW 12 P.C. Murimi Musabi processed photographs submitted to him by P.C. Guchu and he issued certificate to that effect. He produced the photographs and certificate – EXP. 6(a)- Certificate. EXP. 6(b) (i)(ii) & (ii) – Photographs Exhibit Memor form – EXP. 5. He also produced photographs of motorbike and certificate EXP 6(c), (d), & (e).

Defence Case

51. When accused persons were placed on their defence A1 gave sworn statement and said it was not true that he killed his brother. He said that on 19. 10. 2020 he was in Kinango at his uncle Nyanje’s home and that he was not at the scene.

52. He said he recorded his statement to that effect and he wanted the court to adopt it. He said he had no intention of killing his brother. He said the deceased had threatened his mother and the case was taken to Msambweni. He said he was arrested on 22. 10. 2020 in Bondeni village. He said Bondeni is a neighbouring village. He said that from the statements he was given, the deceased was killed by unknown people as per OB No. 4 of 19. 10. 2020 at 4. 00 a.m. He said that it is after 3 days that the deceased’s children recorded their statements and alleged that he and others were involved in the murder. A1 also produced OB No. 10 of 19. 10. 2020 – Ex D2 where PW3 & PW4 said they spent the night in same house with their father. A1 said he did not know who killed the deceased.

53. He said Fredrick Mwalewa’s statement to the police and information in OB No. 10 are contradictory. He said that allegations that he shot the deceased with an arrow was investigated & dismissed. He said that allegations that he attempted to attack PW2 were also not established and he was not charged. A1 said the deceased had threatened to kill the mother over land dispute. He said in cross-examination that A2 is brother to his father-in-law and A3 was not known to him.

54. A2 in his defence said that he wanted his statement with the police adopted. He said that there were two disputes in the family of the deceased and between him and the witnesses who testified. He said he was not involved in the dispute in the family of the deceased. He said he was also not involved in the charge of attempt to murder the deceased. He said his home to deceased person’s home is a distance of about 500 meters. He said he was sleeping in his house when he was arrested between 2. 00 am – 5. 00 am. He said the police who went to this house were with Area Chief of Jego Sub-location. He said that he had heard noise in the night but he did not know what was going on. He said his house was searched but nothing was recovered. He said the police told him that PW4, son to the deceased, Area Chief & Mangale Tsuma led them to his house because he was suspected to have been involved in the murder. A1 said he learnt of the attack at Jego Police Patrol Base. He said DCI officers went with him to the scene from the patrol base and they found people crying and he learnt Mwelewa had died.

55. He said he had a dispute with PW5 who is a brother-in-law to the deceased. He said PW5 & Ega Tsuma the wife of the deceased are children to his aunt. He said his elder brother was killed by robbers on 2018 and investigations raised suspicion as to involvement by PW5. He said PW4 was his 1st cousin – PW1’s son and they knew each other very well.

56. A3 in his defence said that he did not commit murder. He said that on 18. 10. 2020 he was in Dzombo location, Kwa Masai village in Kwale County. He said he recorded a statement on 25. 10. 2020 which he wanted to rely on. He said the deceased was not known to him. He said he was not arrested. He said his motorcycle Registration No. KME Z 175 and was taken on 19. 10. 2020. He said he left the motorcycle at Nyanje Nafasi’s home because he was drunk. He said the wife to Nyanje told him that Nyanje had gone to tap wine and he was told to keep the motorbike behind the house. He said that after leaving the motorcycle behind Nyanje Nafasis house he went with his girlfriend Luvuno to her home.

57. A3 said that when he returned for his motorcycle he found it had been taken by Area Chief of Kiwego. That Balozi/village elder accompanied him to Area Chief and they found he had gone to Msambweni. That he learnt of Mwalewas death and he went to the home in company of the Balozi as he learnt the deceased came from his Mijikenda tribe. That as he was waiting for Area Chief at Mwalewas place the body was brought and he participated in funeral arrangements and even digging the grave.

58. He said the Chief came at about 4. 00 pm and called him aside and he explained how his motorcycle came to be at Nyanje Nafasi’s home. That the Chief told him to go for his motorcycle from Jego police patrol base the following day. That he spent the night at the deceased’s home so that he could go to Jego police patrol base the following day. He said Balozi accompanied him to Jego Police Patrol Base and he found the motorcycle had been taken by DCI Officers to Lunga-lunga police station. That he returned to the deceased’s home and attended burial then Balozi accompanied him to Lungalunga.

59. He said it was Mashujaa Day and police officers were attending Mashujaa Day celebrations. That when the officers came back to the station they told him to avail ownership documents. That on 21. 10. 2020 the owner of the motorbike accompanied him to the police station where he was placed in cells for purposes of investigations to establish who was riding the motorbike. He said he did not know the deceased and he had no reason to kill him. He said he had no document he and his lover went to a pub to drink as they were drinking palm wine. He said it is his friend’s wife who told him to keep motorbike behind the house.

Analysis and Determination 60. In consideration of the evidence of 12 prosecution witnesses and in consideration of the defence witnesses’ sworn statements, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.

61. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’

62. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -i.That the deceased died;ii.That the death was caused by an unlawful act or omission;iii.That the accused person directly or indirectly participated in the commission of the alleged offence; andiv.That there was malice aforethought.

Whether fact of death of the deceased was proved

63. There is no dispute as to death of the deceased Mwalewa Jeffa.

Whether death was caused by an unlawful act or omission

64. PW1, PW3 and PW4 said that the deceased was attacked in his house and multiple fatal injuries inflicted on his body and he died while on the way to the hospital. The wife of the deceased further said that the deceased was cut on the face, hands and legs and that the legs were fractured. PW3 who was with the deceased in the house also sustained a cut on the right hand when he went and tried to assist the deceased. PW7 was the first to arrive at the scene and he found the deceased had been cut and he was bleeding all over the body. PW10, Cpl Ochieng’ Otieno, also responded to the scene and said that he found the deceased had several panga cuts. Dr. Paul Gathuma of Kwale Hospital observed multiple deep incisions and excisions on the head, neck, chest, arms, back, and right thigh of the deceased during postmortem.

65. From the above, this court is satisfied that injuries were inflicted on the deceased that led to his death. Medical evidence produced by PW9, Dr. Gathuma and the other prosecution witnesses is sufficient proof that the death of the deceased was caused by an unlawful act. The injuries were not self-inflicted and they were not accidental. It is no doubt therefore that the cause of death was through an unlawful act.Whether the accused persons participated in the commission of the unlawful act that led to the death of the deceased

66. The deceased and the 1st accused person are brothers and brief history of this matter is that it is alleged a land dispute arose between the deceased and his mother and siblings after the death of their father. It was said by PW1 both in Criminal Case No. E014 of 2020 and E034 of 2021 that the deceased gave his father money to buy for him land in the 1980s but when the deceased claimed the land after his father’s death, his mother and siblings ganged up against him. According to prosecution witnesses as well as Cpl Ochieng Otieno, several attempts had been made on the life of the deceased. One such instance being on 22. 5.2020 when the deceased was shot with an arrow when he was on his way home and identified the assailants as the Mgele Jefa, the 1st accused herein and Nyanje Mazera, accused person in Criminal Case No. E034 of 2021. The incident was reported and Nyanje was charged in Msambweni Court CR. Case No. 159 of 2020 with offence of attempting to shoot the deceased with an arrow. That case was pending.

67. On 12. 10. 2020, PW2, Nyale Mwalewa Jefa, the son of the deceased again found Mgele Jefa and Ngome Jefa, his uncles, and a 3rd person at their home while armed with pangas and when he shone a torch on them, they threw a panga at him and started running after him. That he ran back to the house while raising alarm and when his father and brothers came out, the three suspects escaped. This incident was reported by OB No. 4 of 13/10/2020 but before the suspects could be arrested, the deceased was attacked and killed on the night of 19. 10. 2020. According to PW2, his father’s brothers were hunting him like an animal and PW1 said that her mother-in-law Mwaka told her that her husband the deceased would be killed by his own people and that she should not involve her children.

68. PW1 testified that when she heard the voice of Nyanje Safari in the coconut plantation on the material night talking to Mgele on phone, and she suspected they were planning to attack the husband, she informed the husband of her suspicion and suggested that they should not spend the night in the house but the deceased told her that he could not run from his home. PW1 went to sleep at the son, PW4’s house for fear of attack. PW1’s fears came to pass when she heard her husband screaming and calling for help as he had been attacked. The found the son’s house had been locked from outside and they could not go out and help the deceased.

69. PW1 testified that her when she went and found her husband had been injured, he was still alive and he said that it was Mgele and Nyanje and two other people who were unknown to him who had attacked him. PW3 also said that when he and PW4 went to where their father was lying in a pool of blood, he told them that it was Mgele Jefa, Nyiro Rasi, Mgome Jefa, and Nyanje Nafasi who had attacked him. PW7, Hassan Amadi Koja, said there was moonlight and that when he arrived at the scene, the deceased was still able to talk and he told his children to make him sit properly as he was injured and he was made to sit on a chair.

70. PW4 claimed that he was able to identify 6 people namely Mgele Jefa, Nyiro Rasi, Nyanje Nafasi, Mgome Jefa, Tsuma Masai, and a 6th person who was not known to him coming from his father’s house after the attack. He said the attackers had packed a motorbike at their home and as they were leaving, they pushed it away. He also said that the deceased told him that Mgele Jefa, Nyiro Rasi, Nyanje Nafasi, and Mgome Jefa are the ones who attacked and cut him.

71. When PW10, Cpl Ochieng Otieno, and his colleague PC Ramadhan arrived at the scene, PW4 and other villagers together with the Assistant Chief immediately led them to the homes of the 2nd accused person whom they claimed was in the group that attacked the deceased and he was arrested. That when they went to the home of the 1st accused, he was not found at home and his wife said he had gone for a funeral. The team also went to the home of Nyanje Mazera, the accused in Criminal Case No. E034 of 2021 and his wife told PW10 that he had left the previous day. That a suspected motorbike was found parked behind the makuti thatched house of Nyanje Mazera and it was suspected it had just been packed as its engine was still warm.

72. From the evidence of PW8, the wife of Nyanje Mazera, her husband did not sleep at home and she said she did not know who brought the motorbike that was found behind her house. Investigations established that the motorbike belonged to PW6 who told court that he had hired it to the 3rd accused person on 18. 10. 2020 and the 3rd accused did not return the motorbike and when he called him, he was not reachable. That the following day when he reached out to the 3rd accused, he learnt that his motorbike had been taken by police officers because of curfew. The 3rd accused person’s defence that he left the motorbike and its ignition key behind PW8’s house at her instructions because he was drunk is contradicted by the evidence of PW6 and PW8. The 3rd accused person did not call Mrima to be his witness to confirm that he gave him a lift to Mwamose. He did not give the name of the lover that he had gone to visit and he did not explain why he gave contradictory information to PW6 as to the whereabouts of his motorbike. The 3rd accused person’s explanation as to why he was in the village where the deceased was attacked on the material night is not satisfactory because he had told PW6 that he was going to Magogo and not to Kiwegu village.

73. The 1st accused denied having killed the deceased and said that he was in Kinango when the deceased died and he did not know who killed him but evidence by all prosecution witnesses point to the bad blood between him and his elder brother due to a land dispute. The circumstances surrounding the commission of the offence herein and the evidence adduced by witnesses including the fact that the 1st accused person has evicted the family of the deceased from the land in question makes this court believe that he was in the forefront in planning and executing the murder of his elder brother in the company of his accomplices, the 2nd and 3rd accused person as well as the accused person in Criminal Case No. E034 of 2021.

74. Evidence that the deceased gave the names of the people who attacked him, evidence that PW4 was able to identify the people who were leaving his father’s house after the attack, evidence by PW7 that there was moonlight on the material night, evidence of the finding of a strange motorbike behind one of the suspects’ house on the morning after the offence was committed, and evidence of previous attacks and subsisting charge against Nyanje Mazera for the offence of attempting to shoot the deceased makes this court believe that the prosecution has proved its case against the accused persons herein and in Criminal Case No. E034 of 2021.

75. The accused persons are therefore found to have committed the unlawful act that caused the death of the deceased.

Malice aforethought

76. Section 206 of the Penal Code defines malice aforethought as follows: -“Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: -(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)knowledge that the act or omission causing death will probably cause the death 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 act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.

77. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”

78. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held:“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”

79. Several assailants attacked the deceased and indiscriminately cut him. In the words of PW10 Cpl Ochieng’ Otieno, the deceased had several panga cuts to the extent that pieces of flesh were hanging from his head, belly and shoulders and he bled profusely. Prosecution witnesses said that the deceased lay in a pool of blood in his bedroom. The weapon used by the assailants, the parts of the body cut, the number of assailants involved and the fact that PW1 and PW4 were locked in the house so that they could not intervene and rescue the deceased show that the assailants were possessed of malice aforethought. They had previously tried to eliminate the deceased and succeeded on 19Th October 2020.

80. In conclusion, this court finds that the prosecution has proved its case beyond reasonable doubt. The accused persons are found guilty of the offence of murder and convicted accordingly pursuant to Section 322 of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 11TH DAY OF DECEMBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the StateMr. Were Advocate for the 1st Accused PersonMr. Otuoma Advocate for the 2nd Accused PersonMs. Mbaka Advocate H/B for Ms. Ayieko Advocate for the 3rd Accused PersonAccused persons present in personHON. LADY JUSTICE A. ONG’INJOJUDGEOrder: Mention on 12. 2.2024 for records, mitigation, Presentence Report, Victim Impact Statement and sentence. Copies of judgment to be supplied to defence and prosecution. AP/C.HON. LADY JUSTICE A. ONG’INJOJUDGEPARA 11. 12. 2023CR. Case E014. 2020 Page 34 of 34 A. Ong’injo J