[2023] KEHC 24572 (KLR)

Republic v Koi (Criminal Case 56 of 2018) [2023] KEHC 24572 (KLR) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24572 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 56 of 2018

A. Ong’injo, J

October 19, 2023

Between

Republic

Prosecutor

and

Hamisi Katana Koi

Accused

Judgment

1. The accused Hamisi Katana Koi is charged with the offence of murder contrary to section 203 as read with section 204 of the penal code. Particulars are that Hamisi Katana Koi on the 31st day of July 2018 at Matolani Village Viragoni Sub-location in Kaloleni Location within Kilifi County murdered Katana Koi Mwayele.

2. The prosecution’s case was that PW1 was called by his brother’s child on 31st of July 2018 and told that his father the deceased was being killed in the river. That he rushed to the river and found his father’s clothes and soap but he didn’t see his father. That they searched for the father and found his body floating in the river. PW1 said that the village elders and area Chief went to scene. PW1 said that he is a brother to the accused from same mother and father.

3. PW1 said there was a time the accused claimed the father had bewitched him. That elders discussed the dispute between accused and the deceased 2 years prior to the murder incident. PW1 said green slippers were found at murder scene and together with the clothes & soap were taken by police as exhibits. PW1 said he didn’t find accused at the river. PW1 said he was not present when the deceased was murdered.

4. PW2 Gaston Chengo Karisa testified that on July 31, 2018 he was in the house when he heard screams outside. On coming out, he found people were running towards the river. He followed them and found Katana Koi had been killed. That on August 2, 2018, he identified the body of the deceased at Coast General Hospital and Postmortem was done. He said he had known the deceased since childhood. PW2 said he was given the photograph of Hamisi Katana Koi and he handed it to the police.

5. PW3 Gabron Tsuma Kadweka testified that he was Assistant Chief of Virangoni Sub-location Kaloleni Sub-County. He said that on July 31, 2018 at 11. 00am the Village elder Matolani Kahindi Karisa called and told him that someone had been murdered in his village. That PW3 reported to his serious and proceeded to scene at 12. 00noon where he found officers from Mariakani Police Station had arrived.

6. PW3 said murder was committed in the river and the body of the deceased was found floating in the river. He said across the river were clothes – a cloth and short trouser which were identified to belong to the deceased. He said there were also green slippers nearby and they were identified to belong to the accused. PW3 said Mama Shida who was herding goats near the river saw the accused person attack the deceased and she ran back home to go and alert family members. PW3 said the deceased had injuries on the head and the hands had bruises.

7. PW4 Shida Kaingu testified that on old man was strangled by the son. She said it was Katana Koi who shouted “Mwanangu unaniua!” She said it is Hamisi Katana who was beating the father with a stick. PW4 said she is wife to the deceased and that the accused is son to her co-wife. She said she is the 3rd wife to the deceased. She said the incident happened at 9. 30am when she was in the field grazing. She said she heard screams and rushed to scene where she found the accused struggling with the father and she ran back home to report. She said she reached 7 metres from where accused was fighting with the father using a log. She said her co-wives and children who were at home accompanied her back to the river which is just 2 minutes when one is running.

8. PW4 said the deceased had gone to take a bath at the river and accused attacked him when he was naked. She said the deceased didn’t have shoes when he went to the river. She said when they returned to the scene they didn’t find the accused. PW4 said that accused and deceased were not having a cordial relationship but she didn’t know why. She said they could not even greet each other. She said she arrived at scene and found the accused had wrestled the deceased to the ground and he was now not crying as he was unconscious. PW4 said when they returned to scene they found accused had put the deceased in water.

9. PW5 Kache Chitsao Kadweka testified that on July 31, 2018 her husband went to take a bath and he died there. She said they heard screams and on arrival they found the deceased had died in the water. PW5 said it is her Co-wife Shida who went and reported to them. PW5 said that the co-wife Shida had gone to graze and she heard her screaming and running back home. That they responded and accompanied her back to the river. She confirmed that PW4 told them she heard the deceased cry “Mtoto wangu unaniua!” She said the deceased body was in the water and he had a cut on the head. She also said that the deceased person’s clothes were found besides the water/river as the deceased had removed his clothes to bath.

10. PW5 said accused was traced after 3 months. She said the accused ordinarily stayed at home. PW5 said they remained at the scene until police arrived and collected the body. PW5 said the accused claimed his father bewitched him and that is why he was having pain all over the body. In cross examination, PW5 said that Shida Katana reported to her that she heard the deceased crying in the river and saying his child was killing him.

11. PW6 Kadzo Kiti said that on July 31, 2018 she had gone to where she was burning charcoal when she got report that her husband had been killed in the water. She went to scene and saw the body. She said it took her 2 minutes to go to the scene. She said her co-wife Shida is the one who brought information that their husband was being killed in the river. She said she saw the deceased person’s clothes, a shirt and trouser short. She said the accused was her 6th born. She said the accused and deceased had no differences that were known to her. PW 6 confirmed that Shida – PW4 who was grazing near the river when she heard the deceased cry that he was being killed.

12. PW7 P.C. Robert Ochola of DCI Kaloleni testified that on July 31, 2018 he was at Mariakani Police Station when he got a report of murder from Area Chief Mr. Kadweka through a phone call. He proceeded to the scene with other officers and found the body of the deceased had injuries on the head. He said the body was naked and was inside a seasonal stream. They got information from the deceased 3rd wife that she was herding animals near the stream when she heard the deceased voice saying “kwanini unanua?” That she ran back home and reported to those at home.

13. That on return to scene the suspect had escaped and the body of the deceased hidden on the stream. Body was removed to Coast General Hospital for postmortem and on 3rd August 2018 statements were recorded and search for suspect started. That they were provided with the suspects photograph and from intelligence it was established he had changed his Safaricom number to Airtel No. 0739-xxx 485. That the airtel number was tracked along Tanzania/Kenya border in Taveta where he had intention to cross the border back to Kenya and go to Mombasa.

14. That on 6th December 2018 the number was tracked and it was established he had reached Voi. That an ambush was laid after establishing the vehicle he was travelling in – Tahmeed Coach. The bus was stopped at Shangia along Nairobi-Mombasa road and upon search being conducted and production of his ID Card it was confirmed he was the one. That when his Airtel no. was called it rung on his hand. The ID bus ticket and phone were taken as exhibits and inventory duly prepared and signed. That the accused was escorted to Mariakani Police Station and charged. PW7 produced ID Card – Ex. P3 mobile phone – Exp. 4, bus ticket – Exp. 59(a) dated 6/12/2018 and 7/12/2018 for Arusha to Mombasa-Taveta respectively.

15. PW8 Dr Gabriel Mngola produced postmortem report prepared by Dr. Zahra in respect of the body of Katana Koi Mwayele and signed by Senior Pathologist Dr Mbuko of Coast General Hospital. He said Dr Zahra was of the opinion death was caused by severe multiple trauma injury of the head and chest secondary to assault.

16. When placed on defence the accused gave sworn evidence and denied having murdered his father. He said on July 31, 2018 he was not at home. He said he was staying in Mushomoroni. He said he works with a transport company known as Transami. He said that on 25/07/2018 his cousin Dzombo Kalume called and informed him of his aunt’s death in Kilifi. That on July 26, 2018 he went to attend his aunt’s funeral in Sangasini in Kilifi County. That after the funeral he went to his father’s home and after greeting his parents he left at 8. 00pm and went back to the aunt’s place. He said the aunt was buried on July 28, 2018 and on July 29, 2018 he went back to Mombasa where he was working. That on July 31, 2018 he went back home when his brother called and told him his father had been killed. He said he was informed the person who killed his father was seen but no one knew him.

17. He said he arrived at scene at 2. 00pm and the body was still at scene. He said the blue slippers found at scene appeared to belong to the killer. He said his relationship with Shida Kaingu was not good. Accused said ‘that there was a time his elder uncle died and when he went to attend funeral he found a magician had been brought and he was required to take part in the proceedings of the magician. He said the difference between him and Shida was reported to elders but was not resolved.

18. The accused person said that Kazungu Katana was his elder brother but denied having spent the night at home as Kazungu Katana and his wife and 3 children were staying in his house. He said the witnesses didn’t identify the owner of the blue slippers that were recovered at scene. He said that no weapon was recovered from him and he had not differed with the deceased. He said he never claimed his father was a witch. Accused said he had no evidence he was working with Transami on that he was at work on July 31, 2018 when the deceased was killed.

19. He said he was in Mshomoroni from July 31, 2018 to 6/12/2018. He said he was arrested at Mariakani when in Tahmeed Bus. He said that Shida Kaingu had claimed he had an affair with her and that is why they differed. He said he reported the claim to elders and there was a sitting but most of the elders have since died. He admitted Shida Kaingu knows him very well. He said Shida didn’t say the deceased disclosed the name of the child who was killing him. He said witnesses didn’t say they didn’t see him at the burial of his father. Accused said that his mother and step mothers were kept in seclusion when their husband was being buried in line with Mijikenda traditions and could not have seen him.

20. He said he was arrested in Tahmeed Bus on his way from Taita-Taveta on his way to Mombasa. He said he is a loader with Transami and he asked for permission from Hassan Juma Karisa to go and bury his father.

Analysis and Determination 21. In consideration of the evidence of 8 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.

22. 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.’

23. 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.

Death of the deceased 24. It is not in dispute that the deceased, Katana Koi Mwayele, was brutally murdered on July 31, 2018 while he was taking a bath at a stream near his home.

Whether death was caused by an unlawful act or omission 25. The postmortem report produced as Exh P – 6 produced by Dr. Gabriel Mngola, PW8, on behalf of Dr Zahra show that the deceased had multiple cut wounds on the head, right side cut wound on the head, sharp cut wounds on the left hand, and fracture of the left hand. It was also observed that internally he had a fracture of the right clavicle, fracture of the first three right bibs and right hemothorax. The skull was also fractured with temporal bone subdural hematoma. Dr Zahra was of the opinion that death was caused by severe multiple trauma injuries on the head and chest secondary to assault. The injuries were not accidental or self-inflicted. PW4 heard the deceased crying that he was being killed and she rushed to the scene and when she was about 7 meters away from the scene, she saw the person who was attacking the deceased and she rushed home and reported to those who were at home so that they could go and help the deceased. The death of the deceased was therefore caused by an unlawful act.

Whether the accused person participated in the Commission of the Offence 26. PW4 who was grazing goats in the field at 9. 30 am when she heard the deceased crying and saying “mwanangu unaniua!” She rushed to the scene and found the accused struggling with the father. She said the accused was using a log to fight the father. That she rushed home and informed the co-wives and the children who were at home and they accompanied her back to the river within a span of 2 minutes. That when they went to the river, they did not find the accused person and that the deceased had been put in the water.

27. PW5 confirmed that her co-wife PW4 reported that the deceased cried “mtoto wangu unaniua!” She confirmed that the deceased had a cut on the head and his clothes were beside the river as he had gone to take a bath. PW5 said the accused used to stay at home but he was traced only 3 months after the incident. PW5 further said the accused had claimed his father, the deceased, had bewitched him. This was confirmed by PW1 the brother of the accused who had claimed the deceased had bewitched him and elders discussed about the dispute two years prior to the murder incident.

28. PW6, the mother of the accused, confirmed that her co-wife PW4 called her and told her husband was being killed in the water. That she rushed and reached the scene within 2 minutes.

29. Evidence was adduced that apart from PW4 witnessing the accused beating the deceased in the river, green slippers which were identified to belong to him were recovered at the scene. The slippers were however misplaced at the police station and were never produced as exhibits but PW3 also confirmed that the slippers were recovered and were said to belong to the accused person.

30. The accused person in his defence said he was not at home when the father died and that he attended the burial of his father but his brother, PW1, his mother PW6 and his step mothers PW4 and PW5 did not say that he was at the burial. PW5 said that the accused was traced 3 months after the death of the deceased. PW7 testified how they laid an ambush and arrested the accused person who was traveling by Tahmeed Coach from Tanzania and bus tickets from Arusha to Mombasa dated December 6, 2018 and a return ticket from Mombasa to Taveta dated December 7, 2018 were recovered.

31. The offence herein was committed in broad daylight and there is confirmation particularly from PW5 and PW6 that it is PW4 who was grazing in the field who went to call them and inform them that the deceased was being killed in the stream. It was also confirmed that the stream was a 2 minute-run from the deceased person’s home and when PW4 raised alarm and went to call for help, it did not take long for PW1, PW2, PW5, and PW6 to arrive at the scene. Allegations that PW4 had differences with the accused were not substantiated and when PW4 was cross examined, it only came out that the accused had claimed his father was a witch. There is therefore no reason why PW4 would have implicated him if she did not hear the deceased crying that his son was killing him and if she did not see that the so was the accused person.

Malice aforethought 32. 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”.

33. 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 v 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.”

34. 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.”

35. The accused ambushed his father while he was stark naked taking a bath in the river and inflicted severe multiple injuries to the head and chest with a clear intention of killing him. PW4 said that she saw the accused fighting with the father and he used a log to beat him. After beating the deceased unconscious, he put his body in the river. There was express malice exhibited by the actions of the accused person in executing the offence.

36. In conclusion, this court finds that the prosecution has proved its case beyond reasonable doubt that the accused person is found guilty of the offence of murder and is convicted accordingly under section 322 of Criminal Procedure Code.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 19TH DAY OF OCTOBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the StateMr. Were Advocate for the Accused PersonAccused person present in personMr. Ngiri: We don’t have records for the accusedMr. Were Advocate in mitigation: The accused is a first time offender. He regrets the offence and prays for leniency. The accused has a family that relies on him.Order:Mention on 9. 11. 2023 for Victim Impact Statement & Sentence.HON. LADY JUSTICE A. ONG’INJOJUDGE