[2018] KEHC 2876 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CRIMINAL CASE NO. 24 OF 2014

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

VERSUS

JOHN MWINZI KINYIRI.............................................1ST ACCUSED

MUGAO KINYIRI.........................................................2ND ACCUSED

ERIC MULUNGYE KINYIRI......................................3RD ACCUSED

ERASTUS SYENGO KINYIRI....................................4TH ACCUSED

MUTATI KINYIRI........................................................5TH ACCUSED

MULIWA KINYIRI......................................................6TH ACCUSED

SARAH KAMUNDA MWINZI...................................7TH ACCUSED

RACHAEL MWENDE MULUNGYE.......................8TH ACCUSED

PURITY MAKASI KINYIRI.....................................9TH ACCUSED

ANASTASIA MUTHONI KINYIRI.........................10TH ACCUSED

JUDGEMENT

1. The ten (10) accused persons herein (1) John Mwinzi Kinyiri, (2) Mugao Kinyiri, (3) Eric Mulungye Kinyiri, (4) Erastus Syengo Kinyiri, (5) Mutati Kinyiri, (6) Muliwa Kinyiri, (7) Sarah Kamunda Mwinzi, (8) Rachael Mwende Mulungye, (9) Purity Makasi Kinyiriand(10) Anastasia Muthoni Kinyiri stand charged with two counts of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of Count 1 are that on 8th December 2014 at Siokereke village, Siokereke Sub-Location Ngongoni Location, Tseikuru Sub-County within Kitui County murdered Japheth Mwinzi Kinyiri.

3. The particulars of Count 2 on the other hand are that on the same day and place murdered Ruth Kanini Kimanzi.

4. On being brought to court, have all denied the charges, and in attempting to prove their case, the prosecution brought 9 witnesses.

5. PW1 was Kangaria Mwinzi also called Wingate a 21 years old Primary School Teacher and daughter of the deceased.

6. It was her evidence that on 8/12/2014 while she was at the farm with her sister, aunty Wanja Kimanzi and Ruth Kanini Mwinzi (deceased) cultivating they were joined after half (½) an hour by her father Japheth (deceased).

7. Shortly thereafter, Syengo Kanyiri called his sister Muthoni Kanyiri both of whom were cultivating on a neighbouring farm and told her to bring the implement. Then, Mugaopicked a machete and stick and walked into their farm screaming saying “this person has bothered us - today is today.” At the same time Syengo screamed calling his brother John Mwinzi and his wife Sarah – who all came rushing. Syengo also called Eric Mulungye and his sister Makasi and all came and surrounded them – screaming saying that they would kill Japheth Mwinzi Kinyiri. According to her, the wife of Eric by the name Mwende came running accompanied by Muliwa Kinyiri, Syengo and Mutati Kinyiri.

8. She then stopped cultivating and asked, her father John Mwinzi to come home and discuss the issue amicably but John said that was impossible and threw a stone at Japheth Mwinzi. Muliwa Kinyiri then hit Japheth with a stick, and as the witness tried to leave with the sister, Mugao and John Kinyiri hit Japheth with hoes and he fell down.

9. Then Eric hit Japheth several times on the head, andSarah then lifted a hoe and pointed at the witness who then ran away to a nearby bush on a hill; where she met her sister. While at the hill they saw attackers surround their mother Ruth who was lifting her arms in despair.

10. They then ran, and explained the incident to the Assistant Chief Mr. Majira and together they went back to the scene accompanied by other people, and on arrival found both the father Japhet Kinyiri and her mother Ruth Kanini had been killed.

11. The chief and sub-chief then called the police from Tseikuru who came and took the bodies in a vehicle and proceeded to the house of Eric where all the accused persons had gathered, and took them to the police station.

12. According to this witness, John Mwinzi threw the first stone to her father Japhet which hit him on the forehead, and also hit him with a hoe. Mugao Kinyiri was the first to enter the farm and hit Japhet with a club. Eric the 3rd accused cut Japhet. The 4th accused was one of the people who surrounded Japhet while he lay down. According to her, all the accused persons had surrounded Japhet before the witness ran into the bush on the hill, from where she saw them surround her mother Ruth who lifted her arms in despair. She estimated that about 4 to 10 people surrounded her father Japhet.

13. She then clarified that all the male accused persons were stepbrothers of Japheth, while Sarah was wife of John Mwinzi, Rachael wife of Eric, and Purity daughter of Muliwa. Anastasia was sister of John Mwinzi, and Muliwa Kinyiri was the stepmother of the deceased Japhet, and her children were Muliwa, Eric, Mutati and Makasi. The witness stated that Muliwa Kinyiri, and Mwende came from the house, but the rest were from the farm.

14. According to her, she told the accused to discuss the matter home because she was aware of an existing land dispute and a pending court case.

15. In cross-examination, she stated that the house of Muliwa was near the farm, and Japhet’s house was almost a kilometer away, and that they were cultivating the farm they had cultivated since her grandfather was alive, and that all the adjoining farms were for Kinyiri’s family. She stated also that the school was not far and that on that day Syengo and Muthonicultivated together in one farm while Mugao cultivated separately in another farm.

16. She agreed that Japhet her father at the time had a hoe and machete. She said that Syengo arrived first and called John who hit Japhet with a stone after the rest had arrived. She denied witnessing a fight between her father Japhet and John, and maintained that her father was hit with a stone, and that though he pushed her, he did not fight anyone. She agreed that when her father was hit, he did not run away but she ran away. She agreed that her father was hit on the hand carrying the machete which must have fallen off.

17. She denied hearing her father respond to her stepbrothers, and stated that her mother Ruth also deceased, urged the attackers to allow discussions at home. She maintained that Sarah pointed a hoe at her though she did not follow her as she ran away. She stated that the bush on the hill was not far, and that they did not stay there long but merely looked back and saw the mother Ruth raising her hands in despair and proceeded past their father’s homestead to the assistant chief, after informing their grandmother about the incident, who also went with them to the scene.

18. She admitted that there was a pending land case at Kyuso Court, which was commenced after the death of her grandfather. She agreed that her grandfather drowned when she was 13 years old in the Tana River in a canoe steered by her father Japhet. She agreed that the accused were from two houses (wives) of her grandfather.

19. She did not know the type of dispute in the pending court case. She said that her biological mother died long ago, and Ruth was thus her stepmother. According to her, while she was in school John and Eric robbed her stepmother (Ruth the deceased). She denied that her father Japheth wanted to cut Muliwa, and said that Muliwa found the commotion ongoing. She maintained that she did not have a grudge against any of the accused.

20. In re-examination, she maintained that her family had cultivated that farm for many years, and that her father was killed on his farm.

21. This witness was stood down to be recalled later to identify exhibits, which had not been received from the Government Analyst, but she does not appear to have been recalled according to the record.

22. PW2 was Majira Gaisu the Assistant Chief of Ngongoni Sub-Location, Tseikuru Sub-County, Kitui County. He stated that Japheth the deceased was not from his Sub-Location, but from same location where the chief was Daniel Mwanzia.

23. It was his evidence that on 8/12/2014 while in office, Kangaria Mwinzi and her sister Gatwiri informed him that their father had been attacked by people at his farm, as the area Assistant Chief Nancy was away.

24. He then rode on his bicycle to the scene which he knew before, and found the body of Japhet, and about 100 meters away found the body of Ruth Kanini. He phoned police from Tseikuru who arrived one hour later and took the bodies away, and the police also went to the homestead of the accused persons and arrested them. He stated that the reportees merely said their father had been attacked but on arrival they found two bodies of dead people, after a journey of 1½ hours.

25. He was aware of an existing land dispute in the family, with several reports made to the chief and the police. He stated that at one time they wanted to sit down and resolve the dispute but the deceased Japhet failed to come. He stated that the 1st, 2nd, 3rd and 4th accused persons were stepbrothers of Japhet, while Sarah was the wife of 1st accused, Rachael wife of Eric, Purity stepsister of Japhet, as well as Anastasia.

26. According to him, the long standing land dispute was between the deceased Japhet and his stepbrothers and sisters as reported to the chief’s office.

27. In cross-examination, he stated that he was the secretary of the Konja clan and a distant uncle of the accused, as well as the deceased. He stated that the clan chairman Kithome had earlier called a meeting but they could not force Japhet to attend the meeting, and the meeting could they not proceed in his absence.

28. He stated that Japhet the deceased was older than the accused stepbrothers and confirmed that the older Kinyiri had drowned in Tana River while travelling in a canoe steered by Japhet. He confirmed that on 6/12/15 he received a phone call that Japhet had threatened his siblings with arrows and advised the reportee to inform the police.

29. He stated that the allegation then was that Japheth claimed that his siblings were illegitimate children, and wanted to take all the land. According to him the family was not at peace since the elder Kinyiri died.

30. In re-examination, he stated that the deceased was selfish, and that he was not sure about the nature of the claim in the pending court case.

31. PW3 was Richard Musyoka a Primary School Teacher and brother in law of Japhet Kinyiri the deceased, having married Japheth’s sister.

32. According to him, on 8/12/2014 while at Tseikuru market he was informed on phone by the Assistant Chief Mr. Kilonzi that Japhet had been killed with his wife. He proceeded to Tseikuru police station and shortly thereafter police arrived with the bodies and then took the bodies to Matuu Nursing Home.

33. On 12/12/2014 he was present at Matuu Nursing Home with Kimanzi Mwinzi the father of Ruth and both identified the bodies for to the doctor for postmortem examination.

34. PW4 was Kimanzi Mwinzi, the father of Ruth, the deceased. On 8/12/14 at 12 noon while at home in Ngongoni, received a report that Japhet and Ruth had been killed at the farm. He rushed to the farm and saw the bodies, both lying face downwards. He then proceeded to the police station with Mutegi Kinyiri who had given him the information on the deaths.

35. The police then proceeded to the scene at 3 pm leaving him behind, coming back with the bodies at 6 pm. He then accompanied the bodies to the mortuary.

36. On 12/12/2014 he witnessed the postmortem examination which was conducted by Dr. Kioko. According to him, all the accused were brought to the police station on the date of the killing.

37. PW5 was Winjoy Gatwiri Mwinzi a Form 2 Student at Tseikuru Secondary School aged 17, and a daughter of the deceased Japhet Mwinzi and Ruth Kanini,as well as a sister of Wingate Kangari Mwinzi (PW1), Naomi Gacheri Mwinzi and Jackline Muthoni Mwinzi.

38. She identified all the accused persons in court and described their relationships as members of one larger family. She stated that Kangari the mother of Muthoni and the mother of her father Japhet Kinyiri were not among the accused persons. According to her all the accused lived almost one (1) kilometer from her home.

39. It was her evidence that on 8/12/2014 at 8am while at their farm cultivating with her sister Wingate, Vivian her aunt and her mother Ruth Kanini, their father Japhet Kinyiri joined them carrying a machete. At that time, Erastus and Muthoni were cultivating at a nearby farm, and when Erastus saw Japhet arrive, Erastus called his brother Mugao, who in turn told Erastus to bring the items.

40. Erastus then picked a bow and arrows, and called his brother Mwinzi three times and said – “today I will kill this dog” – referring to the witness’ father. They then approached with Muthoni Kinyiri carrying a hoe and stones, Mugao Kinyiri with machete and a club, and John Mwinzi with a hoe and stones. Then Erastus Kinyiri called his sister Makasi Kinyiri and Eric came with a hoe, a machete and stones, while Makasi had a hoe and stones.

41. They then surrounded them in their farm and screamed – “today we will kill him as he has really bothered us.” – In the process, those who were at home Mulungye Kinyiri came with a stick and stones, and Rachael Mwende came with a stick and stones. Mutati Kinyiri also came with a stick and stones, and same applied to Syengo Kinyiriwho had a catapult and stones. Anastasia Muthoni was also present and all surrounded them. When the witness asked what they were doing Mungao Kinyiri responded and said that Japhet had bothered them for long and that they would kill him, and Muliwa Kinyiri then hit Japhet on the right hand and the machete dropped, and when he bent to pick it up Mwinzi hit him with a hoe at the back of the neck, and then Mugao Kinyiri hit him on the back and he fell down.

42. Then Eric cut him with a machete on the head. When the witness saw the father (Japhet) fall down, she ran up to a nearby hill from where she observed each of the assailants attack her father with what they carried. She then ran away with her sister Wingate leaving behind their mother trying to escape. According to her, Vivian Wanja ran away just after the attackers arrived. As she was at the hill she saw her mother near Syengo lifting her hands as if gesturing for peace.

43. It was her evidence that she ran away after her father had been killed and lay on the ground. According to her, her mother Ruth Kinyiri lifted her hands in despair just next to her father. She then ran and reported the incident to the sub-chief and together proceeded back to the farm, where they found the father with cuts all over the body and with a severed leg cut. The mother was dead a distance away with a cut on the neck and hands.

44. The chief then phoned the police from Tseikuru police station who arrived at 12 noon and proceeded to the farm where they picked the two bodies, hoes and sticks used in the attack. They then found all the accused persons seated in the house of Eric having changed their clothes. According to her, the police recovered the machetes and clothes used during the incident, with the machetes recovered from the house of Eric, while clothes of Muliwa Kinyiri, Eric, Rachael Mwendewere all recovered from around the homestead together with a machete and bow, and the police thus arrested the accused persons and took them to the police station.

45. She identified the items picked by the police that is a stick in possession of Mugao MFI-1, a hoe in possession of Mwinzi MFI-2, a machete in possession of Eric MFI-3, a pair of grey trousers won by John Mwinzi MFI-4, light blue shirt of Mulungye Mwinzi MFI-5, with blood stains on the sleeve, a blue piece of cloth – “leso” of Muliwa Kinyiri MFI-6, a light blue skirt of Muliwa Kinyiri MFI-7, a blue leso with patterns of Rachael MFI-8, a blue stripped T-shirt of Eric MFI-9, a dark brown pair of trousers belonging to Eric MFI-10, a white blouse belonging to Makasi Kinyiri MFI-11, a piece of cloth with dark flowers won by Makasi on the head MFI-12. She stated that other clothes won by the culprits were not recovered, including a white T-shirt won by Muthoni Kinyiri.

46. She was not aware of any existing dispute between the accused and her late father. She maintained that all the accused persons whom she identified in the dock, killed the deceased.

47. In cross-examination, she maintained that all the accused persons were involved in the killing, including Muthoni – though Muthoni did not touch any of the deceased. According to her, Makasi and Sarah surrounded the deceased. She stated that Muliwa hit Japhet with a stick, thought the stick was not in court. She stated that Mwende and Muteti (the man) surrounded the deceased, while Erastus Syengo was the person who called the rest. According to her, Eric cut Japhet with a machete, and Mugao hit him with a hoe stick. She maintained that Mugao also had a machete.

48. According to her,John Mwinzi hit Japhet with a hoe, after first throwing 3 or 5 stones at him, which were bigger in size than those used with catapults. She maintained that her father Japhet joined them later at the farm carrying a machete and oar. She said their farm bordered that of Erastus Syengo. She clarified that initially Muliwa was not present, but was attracted by screams – “uuwii, uuwii!”.

49. According to her, her father Japhet tried to run away but was overcome. The mother Ruth tried to run away but was not able to do so. According to her, it was Muliwa (6th accused) who started hitting her father, though Muliwa came following screams. Before Muliwa’s arrival the rest had just surrounded them. She said her father could not run away as he was the target of the attack and they prevented him from doing so. She denied a suggestion that, that morning there was a boundary dispute between her late father and Syengo who pushed each other or that her father started the fight by hitting Muliwa.

50. When shown the short sleeved blue blouse of Muliwa, she denied that the blood stains in the left sleeve were from Muliwa’s blood. She maintained that the blood stains were from her late father and arose from a cut inflicted on him by Muliwa. She denied that her late father cut Muliwa with a machete. She stated that though John threw stones at her father, the stones did not hit his hand knocking down the machete.

51. She said also that her deceased stepmother Ruth was not armed. She confirmed that neither the deceased, nor herself screamed though the attackers creamed to call one another. She maintained that though she held her father’s hand and asked him to go home, she did not push her. She insisted that Eric cut her late father with a machete which was in court.

52. She said that she observed from the nearby hill that the attackers had surrounded her late mother. According to her, Vivian ran away earlier, and agreed that she did not witness anybody hit her stepmother. She was not aware of an existing land case between her late father and any of the accused persons filed at Kyuso Court. She agreed that after the incident, none of the accused persons escaped, but all went home.

53. She confirmed that her grandfather Kinyiri drowned in the Tana River in a canoe belonging to her father, but did not know who was piloting the canoe then.

54. In re-examination, she maintained that Muliwa arrived when the others had surrounded her late father. According to her Muliwa was older than all the attackers and was mother to Eric, Mutati Kinyiri, and Makasi Kinyiri. She maintained that the first screams to call the rest came from Syengo. She said that none of the attackers was empty handed, and all said they would kill her late father Japhet because he had really bothered them. She maintained that her father was killed in his farm, and that Syengo was the last person to talk to her stepmother, so he was the person to say what happened.

55. PW6 was V W a 16 year old girl, and sister of Ruth Kanini deceased. Their home was about 6Km from that of the deceased but she used to visit them. She knew all the accused persons John, Mugao, Syengo and Muthoni being of the same mother whose name she could not remember. Eric, Mutati, Makasi from same mother Muliwa Kinyiri, while Mwende was wife of Eric.

56. According to her, the accused came to Japhet’s farm just after he had arrived from checking his canoe and put the oar at the green house. Then after 5 minutes, Syengo Kinyiri said today they must kill the person (Japhet), and called Mugao Kinyiri. At that time Syengo was with his sister Muthoni Kinyiri, Mugao Kinyiri then called Eric who was with his sister Makasi Kinyiri. Eric then called John Mwinzi who was with his wife Sarah Mwinzi.

57. Then the attackers entered the deceased’s farm and Muliwa Kinyiri was the first to hit Japhet with a big stick. In the encounter John carried a hoe and stones, Mugao had a hoe and big stick, Eric had a hoe and machete, Mutati had a big stick and catapult, Muliwa had a big stick, Makasi had a hoe and stones, Mwende and Eric had hoes, Makasi had a hoe and stones, Muthoni had a hoe and big stick, Syengo had a bow and arrows, Sarah had a hoe and big stick. According to the witness they all surrounded them before Muliwa hit Japhet on the upper arm, and then John hit him with a hoe on the back of the neck and he fell down, then Eric cut him thrice with a machete.

58. When Japhet fell down, the witness ran away to a nearby hill where on looking back she saw the attackers surrounding Ruth who was lifting and opening her palms in front of Syengo. The witness then ran home and informed her parents that Japhet had been killed. The parents proceeded to the scene and came back with news that Ruth was also no more.

59. It was her evidence that Wingate and Rachael ran from the scene after her. She said that the attackers called Japhet a dog, and that she left after she witnessed the killing of Japhet. She identified the attackers in court.

60. In cross-examination, she maintained that she was in Class 6 in 2014. She denied that Japhet carried a machete, and denied that he was cut using his own machete. She denied that Japhet cut Muliwa’s upper arm. She agreed that Japhet did not run away though Winjoy held his hand and told him to leave those people alone and go home. She agreed that Japhet had a bigger body physique than any of the attackers. She said that she ran for 6Kms home. She maintained the attackers called one another and denied that she lied to the police.

61. In re-examination, she stated that Wingate and Winjoy held their father to prevent him from being hit.

62. PW7 was Syengo Njeru a traditional medicine man from Ngomeni, who knew the deceased Japhet and Ruth. According to him the accused were related to the deceased. On 8/12/14 at 8 am he heard noise while at his farm and on going there he met Muliwa shouting, while Japhet was holding a piece of timber. According to him, those making noise were saying that Japhet had felled grass on Muliwa’s crops. As he approached Japhet pointed a stick at him and he went home.

63. On next morning, he received information that Japhet had died. He said that he did not see Ruth Kanini. He emphasised that he saw Japhet with Muliwa.

64. In cross-examination, he stated that Japhet and Muliwa quarrelled in the farm. He maintained that he did not see any other person. He stated that Muliwa complained that Japhet had spoiled her crops. He said the father of Japhet had 4 wives.

65. In re-examination, he said that Japhet did not quarrel him. He said that he did not see Japhet’s children.

66. PW8 was Dr. Abdalla Mohamed a doctor at Mwingi Level 4 Hospital. It was his evidence that he had previously worked with Dr. Muli Simeon Kioko who filled the postmortem forms for the two deceased persons Ruth Kanini Mwinzi and Japhet Mwinzi Kinyiri, but was now on study leave.

67. On the postmortem form for Japhet Mwinzi he said that it was filled on 12/12/14 at Matuu Nursing Home Mortuary. Clothes were all blood stained. It was the body of a male African about 40 years old of good nutrition. The body had been well preserved but rigor mortis (stiffening) had set in.

68. The left hand was severed at the wrist joint. There were cut wounds on the back of the skull, including the left earlobe. There was a cut wound on the left elbow. There was a deep cut wound on the lumbar region, (back of waist) and severed legs at the ankle joints. Internal appearance was normal.

69. Cause of death was massive haemorrhage secondary to multiple cut wounds. It was noted in the postmortem form that a blood sample was removed for further examination. He produced the postmortem form as an exhibit.

70. On the postmortem form for Ruth Kanini Mwinzi, examination was also done on 12/12/2014 at Matuu Nursing Home Mortuary. All the clothes were blood stained. It was the body of female African of good nutrition and a small body frame. The body was well preserved but rigor mortis had set in. Externally there was a deep cut on the scalp region, and an open fracture of the left occipital region. Internally, there was an open fracture on the left temporal bone – with haemorrhage in the head.

71. The cause of death was cardio pulmonary arrest secondary to haemorrhage due to deep cut wounds. It was also noted that a blood sample was taken for further analysis. The form was signed and stamped. He also produced the postmortem report as an exhibit.

72. In cross-examination he stated that the body colour and hair differentiated Whites from Africans.

73. PW9 was Cpl Paul Macharia the investigating officer. He was on duty at Tseikuru Police Station on 8/12/2014 when the OCPD informed him of a murder incident at Siokereke area, Ngongoni Location. Together with PC Nyanje and PC Omari and the OCPD, proceeded to the scene about 25Km West of the Police Station where they found a crowd, and the Assistant Chief Mr. Manyika guided them to the exact place where they were shown the body of Japhet Mwinzi Kinyiri lying near the bank of Tana river. The body had deep cuts on the head, which were spread all over. The left hand was severed on the wrist and elbow, and the left leg was amputated near the ankle. They also found a blood stained hoe near the body.

74. Then they were shown the body of Ruth Kanini Kimanzi also lying in a pool of blood with three deep cuts on the head. The body lay face downwards. They photographed the scene where the two bodies lay 260 meters apart, with the first body lying near the river bank in a farm. He drew a rough sketch plan of the scene, and later prepared a fair sketch plan. The sketch plan showed the farm where the deceased were weeding, where they found the bodies, and the respective measurements. He produced the sketch plan as an exhibit.

75. On enquiries, he learnt that the deceased were attacked by the accused with machetes, hoes, clubs, stones and bows and arrows while they were weeding in their farm with their children and a sister of the deceased female. He was given the names of the attackers who were related or members of the same family. He learnt that the culprits alerted one another and when they arrived at the farm, Muliwa Kinyiri first hit the male deceased, with a club on the head, followed by John Mwinzi who hit him with a hoe on the shoulder. When he fell Muliwa hit him with a club on the back and then Eric Mulungye cut the male deceased (Japhet) three (3) times on the head with a machete. It was then that all the rest discorded on him with the weapons they carried, after chasing away the deceased’s children, who had witnessed the incident.

76. According to him the children observed all this form a nearby thicket, from where thus also witnessed the attack on the female deceased Ruth Kanini. He also learnt that as same family members the accused persons had a long standing dispute with Japhet and that there was a pending land case in Kyuso Court. He took possession of the hoe and club which were near the body of Japhet as exhibits. He produced the hoe and wooden club as exhibits.

77. They then picked the two bodies from the scene and found all the co-accused relaxing outside the house of Eric Mulungye Kinyiri and arrested them. They noted that John Mwinzi Kinyiri had fresh bruises on the head, and Muliwa Kinyiri had a bleeding left arm while Sarah Kamunda Mwinzi had a cut on the small right finger.

78. He conducted a search in the homes of the accused with the help of the children of the deceased and recovered one pair of brown trousers and a stripped T-shirt belonging to Eric Mulungye both blood stained. They also recovered a pair of grey long trousers belonging to John Kinyiri. He produced these items as exhibits. According to him the search was conducted with the assistance of PC Nyanje.

79. On further search, they recovered a blue blouse, a shirt and piece of cloth “leso” belonging to Muliwa Kinyiri. These were hidden in a thicket outside Muliwa’s house. He produced them as exhibits. They further recovered a “leso” in Eric’s home belonging to Rachael Mwende. All had blood stains. He produced them as exhibits.

80. They also recovered a scarf, a clean machete in the house of Eric. It was washed clean, so they thought it was suspect. It was produced as exhibit.

81. On the same day, the two bodies were removed to Matuu Nursing Home to await postmortem examination. He referred the injured accused to hospital for treatment and preparation of P3 forms. He received P3 form for Muliwa which he produced in court, another for John Mwinzi Kinyiri which he also produced as exhibit, together with treatment notes. He also produced treatment notes and P3 form for Sarah Mwinzi.

82. He filled an Exhibit Memo Form and instructed PC Nyanje to take exhibits for analysis of the Government Analyst. He received the Analyst’s report dated 29/7/15 prepared by Henry Kiptoo Sang. He produced the report as an exhibit.

83. On 12/12/2014 he requested PC Nyanje to accompany relatives of the deceased to Matuu Nursing Home where both bodies were identified for postmortem examination. He then charged the accused with the offences. He knew Eric and John Mwinzi before as he had handled their cases.

84. In cross-examination, he stated that, that he knew of previous family cases, in which Japhet was the complainant, and at Kyuso Court, he found that the family had many cases.

85. He said he found all the accused persons sitting outside Eric’s house, and found no evidence of arrow injuries on the deceased. He was convinced that all the accused persons hit the deceased, and confirmed that according to the Government Analyst’s report, the blue “leso” had no blood stains. According to him, some weapons could have been thrown into the river. He disagreed that Japhet ignited the fight, and maintained that Muliwa came from the house screaming and, in the company of others, surrounded Japhet who tried to defend himself.

86. He stated that the attackers chased away the daughters then attacked Ruth Kanini, and maintained that it was a planned attack and the land dispute was the motive.

87. In re-examination, he said that the clean machete found must have been used and washed. He reiterated that blood stains were found in the clothes taken for analysis.

88. That was the end of the prosecution evidence.

89. When put on their defence, each accused person elected to tender sworn testimony.

90. DW1 was Anastasia Muthoni (accused 10). She said that she was 17 years old attending Kalembui Secondary School in Form 3. She is a family member of all the accused and the two deceased. According to her, her deceased grandfather had four wives. The elder wife was Syamburi and none of her children were involved in the case. Next wife was Mukundi, mother of Japhet Mwinzi (deceased). The 3rd wife was Muliwa Kinyiri – mother of Eric, Mutati and Purity Makasi. The 4th wife was Kalula – mother of John Mwinzi, Mugao, Syengo, and Anastasia (herself).

91. On 8/12/14 a Monday, in the morning, she went to the farm with her brother Erastus Syengo to cultivate about 1Km to 2Kms from home with hoes. At the neighbouring farm they found Kangaria, Gatwiri, Wanja and Ruth (deceased) cultivating in their farm and singing loudly, that some people would go and leave behind their livestock and houses. John and his wife were on their own farm, and in between there was a road. Ruth and children were about 50 meters from them, while Eric, Purity and Makasi were in their own farm downhill and she could not see them.

92. Shortly thereafter, Japhet (deceased) passed carrying a machete and oar from the river. He then walked to his farm passing near their fence and asked why Erastus had placed grass on the fence, and Erastus said there was nothing wrong with that. He then picked a pole and pushed the grass away. Erastus then called John who came and enquired about the issue and Japhet said that he was young man. Then Eric came from his farm with his wife and asked about the matter. Thereafter, the wife of Japhet came and there was an exchange of words. The children of Japhet came and surrounded him – Kangaria told her father to remove the grass but Gatwiri told him not to remove the grass.

93. The noise of Gatwiri and her sister attracted Rachael and Muliwa who were at home. Muliwa arrived and asked Japhet why he was talking rudely to his siblings, and Syengo who was cutting trees near the river was attracted and came. Japhet then told Syengo an elder not to interfere with family matters, and in the process Japhet cut Muliwa with a machete on the upper arm and this caused ran home, and Rachael who was pregnant pleaded not to be left behind. She assisted her for a distance then left her behind, but she also ran home.

94. On arrival at home, she informed her mother about the incident, and discouraged her from going to the scene because she was partly deaf. John Mwinzi, Erastus and Mugao then came home, and John had an injury on the head, and said he had been hit with a hoe. They said Muliwa was at home, but did not say where Japhet was. She assisted in giving first aid to the injured, who said Japhet was dead.

95. At 2pm, the police arrived in a motor vehicle, and they were all taken to the police station. According to her, Mutati was not present at the scene, but they were arrested together at home. At the police station, she said she did not see anything because the police asked her with a lot of harshness. She denied killing Mwinzi or Ruth.

96. In cross-examination, she confirmed that Japhet was her stepbrother and Ruth his wife. She was aware of a family land dispute, which was not resolved. She had not heard Japhet sing except that day. She said she saw all the accused except Mutati at the scene. She admitted that initially everyone was in their respective farm. She admitted also that the disputed fence was between her mother’s farm and Japhet’s farm, while John’s farm was 50 meters away. She maintained that though Mutati did not come to the scene, she stated that in the pending court case at Kyuso - her mother Kalula and Muliwa were the defendants, and that Muliwa was the mother of Eric, Muteti and Purity. She said that she heard Muliwa tell her son Wambua at 10am that Japhet was dead. She said that initially, she gave a false statement at Kyuso Police Station.

97. DW2 was Mutati Kinyiri a 16 years old boy. He confirmed the family relations described by DW1 Anastasia Kinyiri. It was his defence that he was aware that on 8/12/14 Japhet and Ruth died. He stated that on that day, he went to their farm which was a distance from Japhet’s farm. He came home for lunch at 1pm only to find everybody gathered there and her mother injured on the shoulder. Shortly thereafter, the police arrived and arrested him, though he was not at the scene of the killing.

98. In cross-examination, he stated that in the morning as he took cows to plough, and met Japhet, Ruth and children going to their farm which was about 3Km from their farm. He insisted that he left the farm for home at 1pm, and added that his brother Wambua left the farm at 10. 30am to fetch water. He admitted though, that he told the police that he left the farm at 10am.

99. He denied going to the scene to find out who had cut his mother. He denied that he was charged and not Wambua, and that he was at the scene.

100. DW3 was John Mwinzi Kinyiri who in his sworn statement said that he was a farmer, and namesake of Japhet Mwinzi Kinyiri.

101. On 8/12/2014 a Monday he was with his wife Sarah at his farm. At around 9am Japhet passed near them by the road and did not talk to them, and proceeded down to the river. It was his evidence that his farm and his mother’s farm bordered the farm of Japhet which had a small fence. According to him his sister Anastasia and brother Erastus cultivated his mother’s farm that morning, while Eric cultivated with his sister Purity on Eric’s farm. Japhet was at his farm with Ruth Kanini, Kangaria Mwinzi, Gatwiri and Wanja cultivating on Japhet’s farm – as they sang abusive songs such as – “some will go leaving their wives and others will not cultivate their farms” – though they did not mention names. He thought the songs related to him and the others as they did not have a peaceful life.

102. When Japhet came from checking his boat at the river, he passed near Anastasia and Erastus, and then he heard noise of people talking in harsh voices and proceeded there with hoes in his hand and met Japhet with a fencing pole, and a machete. Japhet used the fencing pole to push weeds on the crops, and when he asked him why he was moving grass on the fence onto the crops, he said he was not his neighbour. Purity and Eric heard the noise and came, and Gatwiri the daughter of the deceased told Japhet not to be threatened by people. Kangaria the deceased’s daughter held Japhet by the hand but he refused to heed and continued to push the grass while his wife Wanja drew near.

103. Muliwa Kinyiri and Rachael Mwende heard the noise from home and came and an elder Syengo Njeru came and Muliwa asked what the problem was, and Japhet was very rude and told him not to get involved. Syengo could not pacify the situation and left while the rest remained there exchanging words with Japhet.

104. According to him, Japhet then approached Purity Makasi with a machete and when she ran away, he cut this accused’s mother Muliwa on the upper arm and a fight broke out between them and Japhet and his wife Ruth. Japhet chased Eric who hit him with a stone and fell and when Japhet rose, the fight continued. According to him the fight also involved the children of Japhet. Later he noticed that Japhet had fallen and Japhet’s children then left.

105. He stated that at the beginning of the fight, Muthoni left, Muliwa left after she was cut, Rachael Mwende was hit with a hoe by Ruth and as she was pregnant she left. Sarah his wife left and Purity was chased with a machete and left. All the male people involved did not leave the scene, until after the fight was over.

106. He said he had a hoe, and Japhet had a machete and a pole, Eric had a machete and a stone, others had hoes. He said he was told by Eric that Japhet had a bow which he hid somewhere. He said the quarrel took long but the fight with machetes and stones lasted for 20 – 30 minutes. He identified some of the items (exhibits) produced in court by the prosecution.

107. He said that the fight ended when Japhet fell and he went home, and learnt later that Ruth was dead. He said the fight was a tough fight. He identified a P3 form in which it was recorded that he suffered a bruise on the side of his face and stated that it was caused by Ruth. He said that what he said to the police was in order to avoid further beatings.

108. According to him their disagreement with Japhet started in 2007 when their father died mysteriously in the river while he was in a canoe rowed by Japhet. He also said the mother of Japhet was a Mutharaka, and Japhet said that the other two Kamba wives of his father were imposters who did not deserve inheritance, and that though they called a meeting of elders, the two Tharaka wives of his father refused to attend.

109. According to him, there were a number of cases in Kyuso Court in one of which he and Eric were implicated by Japhet as having robbed his wife. Muliwa and Rachael were also accused by Japhet for attempted arson. Eric and himself also took Japhet to court for theft of a cow and the case was dismissed. He denied planning to kill Japhet.

110. He was cross-examined at length. He said that though he fought Japhet he did not kill him as he died in a fight. He denied he had intention to kill, and said he only fought Japhet though Ruth hit him. Though they reported the disappearance of their father, the police did not blame anybody.

111. DW4 Muliwa Kinyiri said on oath that when she arrived at the scene; she met all the male children of Kinyiri, but did not meet the school boy Mutati. She also met females such as Kanini (deceased), Mwende, Sarah, Muthoni and Makasi. She did not see the females do anything. There was also another man Syengo alias Kauwaya who tried to pacify them but Japhet did not agree.

112. DW5 Purity Makasi Kinyiri also said on oath that she went to the scene attracted by shouts. She said she was chased by Japhet by pointing his hoe and machete. She was also cross-examined.

113. DW6 was Rachael Mwende Mulungye– wife of Eric Mulungye. She said on oath that she went to the farm, but was not feeling well and went to hospital then home, where police arrived later. She was cross-examined.

114. DW7 was Erastus Syengo Kinyiri stepbrother of Japhet. He said on oath that he was at the scene and described how the incident occurred. However, he only heard of the death of Japhet when the police came. He was cross-examined.

115. DW8 was Mugao Kinyiri. He said on oath that on 8/12/14 as he was going to the river to check on fish traps, he met Kangaria Mwinzi and her sisters running. Though he tried to talk to them they did not talk to him.

116. On his way back, he was shocked to see the body of Japhet Kinyiri lying on the ground. He proceeded home and as he talked with others on the matter, his mother Muliwa came from her nearby house bleeding from her arm. He was cross-examined.

117. DW9 was Sarah Kamunda stated on oath that she was attracted to the scene by screams. She met all the rest except Mutati. She also did not see Mugao. According to him, when she enquired about the problem, Gatwiri hit her arm with the timber piece of a hoe, and she ran home. She was wife of John Mwinzi. She was cross-examined.

118. DW10 was Eric Mulungye Mwinzi – who stated on oath that she was at the farm when Makasi informed him of a quarrel uphill and he went there. He described what happened. According to him, when Japhet charged at him he felt very offended, went home and phoned the Chief of Tseikuru and told him to inform the police about the conflict. It was Mugao who told him later that Japhet Mwinzi was lying on the ground dead. He denied cutting Japhet Mwinzi or killing him. He was cross-examined.

119. That was the end of the defence evidence.

120. This is a murder case of two persons, a husband and wife. The accused persons are ten (10) in number.

121. In all criminal cases the prosecution has the onus to prove their case against the accused beyond any reasonable doubt. The accused person does not have any burden to prove his innocence. The prosecution has the burden to prove their case beyond reasonable doubt, even if the defence raises a defence of alibi. See the case of Leonard Aniseth vs Republic [1963] EA. The accused can merely raise doubts in the prosecution case.

122. The prosecution has the burden of proving beyond any reasonable doubts all the ingredients of the offence. In a murder case the prosecution has to prove four ingredients. First, whether the deceased died. Secondly, whether the death was unlawful. Thirdly, whether the accused caused the death. Fourthly, whether the death was caused with malice aforethought.

123. Did Japhet Mwinzi Kinyiri and Ruth Kanini die? The evidence of both the prosecution and the defence is that indeed, the two died. The police who were called and went to the scene at their farm near the Tana River on 8th December 2014 saw the dead bodies lying some meters apart. Each body had several wounds, and they took the bodies to Matuu Hospital Mortuary.

124. The postmortem report on Japhet Mwinzi Kinyiri filled by Dr. Muli Simeon Kioko and produced in court by PW8 Dr. Abdalla Mohamed had recorded that it was the body of a male African about 40 years old, with several cuts on the body and severed wrist joint and ankles of the legs. Cause of death was haemorrhage secondary to multiple cut wounds.

125. With regard to Ruth Kanini Mwinzi, she had deep cut on scalp, an open fracture of left occipital region. Cause of death was cardio pulmonary arrest secondary to deep cut wounds.

126. In my view, the prosecution proved beyond any reasonable doubt that both Japhet Mwinzi and Ruth Kanini died.

127. Were the deaths unlawful? From the evidence on record both died on their farm. There is no suggestion that anybody was authorised by law to kill any of the two deceased persons in the way they died. I find that both deaths were unlawful.

128. Were the deaths caused by the accused persons? It has to be borne in mind that the deceased are two people, and the accused persons are then (10) in number.

129. This is a matter in which ten (10) people stand charged with the murder of two people. From both the prosecution and defence evidence, the incident occurred in broad daylight. Starting with accused 5 – Mutati Kinyiri. The prosecution evidence connecting the accused with the offence is that of three eye witnesses. PW1 Wingate Kangaria Kinyiri, PW5 Winjoy Gatwiri Mzinzi, PW6 Vivian Wanja, and to a lesser extent PW7 Syengo Njeru. In their defences each of the accused tendered sworn testimony and was cross-examined. Mutati was a young man, and the evidence on record is that he might have been at the scene. He said that he went to graze cattle before going home at 1pm when he found the rest assembled there before the police came and arrested him. He was the son of Muliwa Kinyiri who was said to have been injured in the incident. In my view, Mutati Kinyiri was not proved by the prosecution beyond any reasonable doubt to have killed any of the deceased persons.

130. I now go to Muliwa Kinyiri. She was an old woman and stepmother of the male deceased person Japhet Kinyiri. The evidence on record from eye witnesses is that she was attracted by screams from others and came to the farm from her nearby house. She had an exchange of words with Japhet Kinyiri regarding his placing weeds on her farm and then hit the deceased Japhet Kinyiri with a hoe. She was said to be the first person to hit Japhet Kinyiri, but then she was hit back on the upper arm she ran away home. In my view, what the prosecution established was a mere assault by her on Japhet Kinyiri causing actual bodily harm. She did not kill the deceased Japhet. She also did not kill or assault Ruth Kanini.She however committed an assault onJaphet Kinyiricausing actual bodily harm.

131. I now turn to Purity Makasi Kinyiri. This one was also at the scene. Though she was at the scene, it is not clear what exactly she did in the attack other than generally surrounding the deceased. I find that the prosecution did not prove the offences alleged against her.

132. Anastasia Muthoni Kinyiri also surrounded Japhet Kinyiri. There is no evidence that she killed or assaulted him. She did not kill or assault Ruth Kanini Kinyiri. The prosecution did not prove an offence against her.

133. Rachael Mwende Kinyiri also participated in surrounding Japhet Kinyiri, but not Ruth Kanini. No offence was proved against her.

134. Sarah Kamunda participated in surrounding Japhet Kinyiri, but there is no evidence that she killed Ruth Kanini. From the evidence on record, she was not proved to have committed the offences charged.

135. The evidence shows that John Mwinzi Kinyiri, Mugao Kinyiri, Eric Mulungye Kinyiri and Erastus Syengo Kinyiri participated in the killing of Japhet Kinyiri, each doing certain acts which caused his death. From the evidence of eye witnesses PW1 Kangaria Mwinzi and PW5 Winjoy Gatwiri Mwinzi, PW6 Vivian, Erastus Syengo called the rest and somewhat led and coordinated the attack which resulted in the killing of Japhet.

136. John Mwinzi Kinyiri, Mugao Kinyiri, Eric Mulungye Kinyiri and Erastus Syengo Kinyiri also participated in the killing of Ruth Kanini Kimanzi. Again Erastus Syengo led the attack and was clearly seen by the eye witnesses PW1Kangaria Mwinzi,PW5Winjoy Mwinzi and PW6 Vivian Wanja.

137. Was the death of Japhet Kinyiri caused with malice aforethought? Malice aforethought is defined under section 206 of the Penal Code. It is an intention to cause death or do grievious bodily harm. It is called premeditation. There appears to have been a long standing dispute in the larger family of the late Kinyiri on the issue of land and its inheritance in that polygamous family. It was reported to the elders, and at times ended up in court. There appears to have been a simmering problem which only awaited an explosive moment, and it came that day because of a small problem of grass being put on the road by other members of the family, and Japhet Kinyiri removing the grass from the path and allegedly, pushing it into to the farm of Muliwa who was initially not even at the scene.

138. The injuries suffered by the deceased were severe and serious. Japhet Kinyiri’s limbs – wrists and ankles were even severed from the rest of the body. In my view however, from the totality of the evidence, the killing of Japhet Kinyiri was not with malice aforethought or premeditated and was thus manslaughter, as it arose from an altercation that morning.

139. The same applies to the killing of Ruth Kanini, who was also viciously killed simply because she attempted to defend her husband and infuriated the attackers. It thus cannot be said that the killing was pre-meditated. I find that malice aforethought was not proved, and thus the killing of Ruth Kanini was also manslaughter.

140. What are my findings with regard to each of the accused persons herein? Mutati Kinyiri, Sarah Kamunda Mwinzi, Rachael Mwende Mulungye, Purity Makasi Kinyiri, and Anastacia Muthoni Kinyiri are found not guilty of the offences. I acquit them of both counts of murder and set them free.

141. I find John Mwinzi Kinyiri, Mugao Kinyiri, Eric Mulungye Kinyiri and Erastus Syengo Kinyiri guilty of the lesser offence of manslaughter contrary to section 202 of the Penal Code on both counts, and convict each of them for the two offences accordingly.

142. As for Muliwa Kanyiri, I find her guilty and convict her of assault causing actual bodily harm on Japhet Mwinzi Kinyiri contrary to section 251 of the Penal Code. I acquit her on the charge of murder of Ruth Kanini.

Dated and delivered at Garissa this 1st day of November, 2018.

.....................

George Dulu

JUDGE