https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11048

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL CASE NO. E021 OF 2020** **REPUBLIC …..……………….......……………………..………………………..PROSECUTION** **VERSUS** **SHIDA TUMBO MACHAKU………………….….......……………………..………....ACCUSED** **JUDGMENT** 1. The accused, Shida Tumbo Machaku, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on 4.11.2020 at Kaziweni Village, Mariango sub location Bamba location, Ganze Sub-county, Kilifi County, the accused murdered Sidi Menza Nzai alias Sidi Changa alias Sidi Mafua. 2. The Accused person pleaded not guilty to the charge. In the trial, a total of 6 witnesses testified for the prosecution. 3. PW1, Fikiri Charo Mudhengi stated that on 4.11.2020 at around 8am, the accused who is her nephew, came to her house to check on her as she had a wound in her leg. PW1 was in the house with the deceased, who was her mother in law. The accused started beating the deceased with punches and kicks. When PW1 asked the accused why he was attacking his grandmother, he told her to shut up. He then dragged the deceased outside by her leg and continued kicking and punching her. When he finished, he fled. PW1 then screamed and Kenga Tumbo Machaku and Dzombo Hare came. They took the deceased to Bamba Hospital where she died. 4. In cross examination, PW1 stated that she lived with the deceased and denied that the deceased was a witch or that she and other family members had taken an oath on 5.8.2020. 5. PW2 Kenga Tumbo Machaku, a brother to the Accused testified that on the material say at about 8am, he heard PW1 screaming. When he got to the home, he found the deceased and lifted her up. He called her but she did not respond. The accused came and stated that PW1 and the deceased were responsible for him not getting a job. Further that the Accused had claimed that the deceased was a witch and left. Dzombo Hare Machaku a boda boda rider came and they took the deceased to Bamba Hospital, where she was pronounced dead. PW2 witnessed the postmortem examination. He stated that 2 of the deceased’s ribs were fractured. 6. In cross examination, PW2 stated that he did not witness the attack on the deceased. He stated that on 5.8.2020, he witnessed family members take an oath due to witchcraft. In re-examination, he stated that the oath was due to the fact that a child had died. He stated that it was alleged that the deceased was a witch but that he did not know her as such. 7. PW3 Kache Kahindi Tumbo stated that on the material day at about 8am she was behind her house brushing her teeth. She lives in the same homestead with other family members including PW1 and the deceased. While there, she heard a door being knocked with someone saying “grandmother, grandmother, I have come to finish you today because of witchcraft in the homestead.” She peeped and saw it was the accused. She went to the land and while there she heard a scream and she went back home. When she got there, Dzende Kea came screaming as she had been told that the deceased was dead. When she got there, she found the deceased had been taken to hospital. 8. PW4 Nzai Katana Karisa, a boda boda rider testified that on the material day at around 9am, he was going home from the police station. On the way, he met the accused and PW2 who appeared to be quarrelling. PW4 asked PW2 what the problem was, he said that their grandmother had problems. PW4 went to where the deceased was behind the house of her son Karisa Machaku. She lay on her back breathing as if she was in pain. He went and told Dzombo Menza about the deceased. They both took her to Bamba Hospital and passed by Bamba Police Station and made a report. At the hospital, the doctor told them that the deceased had died. They went back to the police station and recorded statements. 9. In cross examination, PW4 stated that he did not see the accused commit the offence. He stated that on the material day, the accused who worked in Mombasa could not have left for Mombasa. He denied being requested by the accused’s brothers to give false evidence against him to have him removed from home for a long time. 10. PW5 Dzombo Hare Machaku a cousin of the accused testified that he spent the night of 3.11.2020 with the accused at a *mangwe.* He was chewing khat while the accused was taking alcohol. On their way home the following morning, they met the accused’s sister PW3 who was tilling her land. The accused called her a witch and accused her of bewitching her husband. The accused wanted to beat PW3 but PW5 restrained him and they headed home. They got to the home of Kaka Kikuku, who had allegedly sold jinis to PW3. The accused hit the door to the house and when Kaka opened the door, the accused hit him on the head accusing him of keeping jinis as a witch. PW5 tried to restrain the accused who hit him on the chest whereupon PW5 left for home. When he got home, he met the deceased who had slept in his house. The deceased told him that the accused had arrived from Mombasa the previous evening and told them he was going to drink and then come back and deal with all the witches. The deceased then left for her home. At about 8am, PW4 told him that the deceased had been attacked. He went and saw the deceased laying down in her son’s compound. He together with PW4 and Kenga took the deceased to hospital where she was pronounced dead. He recorded his statement with the police. 11. In cross examination, PW5 reiterated his testimony. He stated that the accused was drunk having drunk *mnazi* all night. He did not however know the extent of his drunkenness. He stated that the deceased was not a witch. He did not witness the attack on the deceased. He too stated that the deceased and others took an oath administered by a pastor who also shaved their heads and said they were witches. He stated that this was done by force. He denied that PW1 could have attacked the deceased to fix the accused. 12. PW6 No. 249697 P. C. Omari Albert the investigating officer stated that the case was reported at Bamba Police Station on 4.11.2020 at 11.30 am. It was reported that the deceased had been attacked at home by the accused. The deceased was then rushed to hospital. Thereafter, witnesses recorded statements. A postmortem was done. The deceased had injuries on the left side of the head and her ribs were broken. She had internal haemorrhage which led to her death. The accused fled but was arrested on 11.12.2020. 13. In cross examination, PW6 stated that there was bad blood between the accused and his relatives at home. The accused had alleged that the deceased had bewitched him. He stated that pastor Nzongo Katanawas had been invited by the accused to cleanse their home of witchcraft; that the pastor had said that the deceased and 3 others were practicing witchcraft. He stated that there had been bad blood between the accused and his relatives. He further stated that the accused went underground and was arrested on 11.12.2020 in Mombasa by Chief Inspector Makau. The accused was thereafter charged. 14. In his sworn defence, the accused denied the charge. He stated that on 3.11.2020, he went home from Mombasa where he works, to see his family. On arrival at about 4pm, he found some women including the deceased with PW1 who was ill. He took a seat and they had a conversation about the illness and the home. At 7pm, he went to the shops where he joined PW5 and his friends who were drinking alcohol and they drank till morning. He and PW5 left for home at 6am. They passed through Kaka Kikuku’s home and greeted him and then headed home. He found the deceased sitting outside his younger father’s house while PW1 sat inside the house. He greeted them and told the deceased that he was returning to Mombasa. He then went to the shop with Amani’s wife to withdraw Kshs. 500/= sent to her by her husband which the accused was to use to travel back to Mombasa. After withdrawal of the money, he left for Mombasa. On arrival, he heard that the deceased had died as a result of a fall as she was taking maize from the granary. She was taken to hospital and died later. 15. The accused stated that he was unable to attend the deceased’ funeral due to work commitments. A week later, he was arrested by police who told him he was causing problems at home and that his brothers had told them to arrest and kill him. He stated that prior to his arrest, Amani’s sister Amina got very sick and was bleeding. Her mother took her to a pastor and left her with him for a week. She got better and the bleeding stopped. However, the pastor said that there were things at home that needed to be removed from the home through prayer. The chief issued a permit and the exercise was done and the offending items were removed and burned. 4 women including the deceased were shave and prayers were conducted. The accused thereafter returned to Mombasa. The accused stated that he loved the deceased very much and lived in peace until the incident with the pastor. He stated that they blamed him as they did not want pastor to come and held a grudge against him. 16. In cross examination, the accused stated that he had no witness to testify anything contrary to what PW1 had stated. Further that none of the witnesses he was to call was available. He stated that PW1 was in the house as her leg was hurting and did not see him when he was with the deceased. He stated that he was very close to the deceased but did not attend the funeral but only contributed money. 17. I have considered the evidence adduced herein together with the submissions filed by the State and the defence. 18. The accused is charged with the offence of murder, which is provided for in Section 203 of the Penal Code as follows: ***Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.*** 1. Section 204 provides that the punishment for a person convicted of murder shall death sentence. 2. In **Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR)** the Court of Appeal set out the elements of the offence of murder as follows: ***For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.*** 1. The question to be determined by this Court is whether the prosecution has proved its case beyond reasonable doubt against the accused. 2. The fact of the death of the deceased is not disputed. The post-mortem report was produced by PW6 confirming the death of the deceased. The cause of death was indicated as haemorrhagic shock secondary to trauma on the left side. 3. The next question that must be determined, is who caused the death of the deceased. PW1 testified that on the material date at around 8am, the accused came to her house to check on her as she had a wound in her leg. PW1 was in the house with the deceased. The accused started beating the deceased with punches and kicks. He then dragged the deceased outside by her leg and continued kicking and punching her. 4. PW5 testified that when he got home on the material day, he found that the deceased had slept in his house. She told him that the accused had arrived from Mombasa the previous evening and said that he was going to drink and then come back and deal with all the witches. The deceased then left for her home. At about 8am, PW4 told him that the deceased had been attacked. He went and saw the deceased laying down in her son’s compound. He together with PW4 and Kenga took the deceased to hospital where she was pronounced dead. He recorded his statement with the police. 5. The defence submitted that PW1’s testimony was uncorroborated. Further, that the testimony was tainted, untruthful and unreliable It was further submitted that PW1’s testimony was riddled with inconsistencies and contradictions namely that she stated that she did not follow the deceased and accused outside due to the injury in her leg but that in cross examination, she stated that she did follow them outside. The other contradiction is on the time of the incident. It was submitted that while PW1 stated that the accused came to her house at about 10am on the material day and assaulted the deceased, all other witnesses stated that the incident took place at 8am or 8.30am. Further, that PW4 stated that he met the accused and PW2 at about 9am. Lastly, that PW1 denied allegations that the deceased was a witch and that a cleansing exercise took place on 5.8.2020, yet PW2, PW5 and PW6 confirmed that this took place and the deceased identified as a witch. It was argued that PW2 was an untruthful witness and that the discrepancies and inconsistencies are fundamental and her evidence ought to be disregarded. 6. I have considered the submissions by the defence. It is noted that PW1 denied that a witchcraft cleansing exercise took place on 5.8.2020 but the evidence shows that the same did in fact happen. While this is untruthful, it does not render her testimony on what happened to the deceased untruthful. This is because PW1 stated that the accused attacked the deceased with kicks and blows and then dragged her out of the house and continued assaulting her. Both PW4 and PW5 stated that they were informed that the deceased had been attacked and they found her laying on the ground behind her son’s house. The fact that PW1 lied on the issue of the cleansing exercise does not invalidate her entire testimony. 7. I have noted and considered the inconsistencies pointed out by the defence in the testimony of PW1. The inconsistencies on the time of the incident. Further, she stated that she did not follow the deceased and accused outside but then in cross examination, she stated that she did follow them outside. These inconsistencies are in my view minor and inconsequential and do not go to the root of the prosecution case. As such, they cannot be a ground for vitiating the evidence of PW1. In this regard, I find useful guidance in the case of **Philip Nzaka Watu v Republic [2016] eKLR**, where the Court of Appeal had this to say: ***However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.*** 1. And in **Joseph Maina Mwangi v Republic [2000] KECA 282 (KLR)**, the Court of Appeal recognised that discrepancies are not strange in any trial and stated: ***In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 CPC,*viz *whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.*** 1. PW1 is an eye witness and gave direct evidence. She witnessed the accused attacking the deceased with punches and kicks while in the house and saw him drag her out of the house where he continued assaulting her. From her evidence, it is clear that it is the accused who by his brutal attack caused the death of the deceased, a helpless 92 year old woman. The testimony of the accused that he heard that the deceased had died as a result of a fall was not corroborated and did not dislodge the testimony of PW1. 2. Having found that the death of the deceased was caused by the unlawful act of the accused, the next issue for determination is whether the accused had malice aforethought. 3. Section 206 of the Penal Code provides: ***Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—*** 1. ***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;*** 2. ***knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;*** 3. ***an intent to commit a felony;*** 4. ***an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.*** 5. In **Morris Aluoch v Republic [1997] KECA 29 (KLR)**, the Court of Appeal had this to say on malice aforethought: ***In the case of REX VS TUBERE S/O OCHEN (supra) the assault was of a serious nature causing severe injuries from which the victim died shortly afterwards. In that sense, the case of TUBERE is distinguishable. It was correctly pointed out in TUBERE case as follows;-*** ***“With regard to the use of stick(s) in cases of homicide, this Court has not attempted to lay down any hard and fast rule. It has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick; that is not to say that the Court takes a lenient view where a stick is used. Every case has, of course, to be judged on its own facts. The same remarks applies as regards the view that which this Court takes were a ruptured spleen is the cause of death.”*** 1. In the present case, the Accused assaulted the deceased with kicks and blows and then dragged her out of the house by her leg and continued assaulting her. At 92 years, the deceased could not have survived such a brutal attack. 2. Further, PW2 stated that the accused had accused the deceased of being a witch and that she and PW1 were responsible for him not getting a job. On his part, PW5 testified that the deceased had slept in his home where she had taken refuge. Her reason for so doing is that when the accused arrived from Mombasa, he had said he was going to drink and then come back and deal with all the witches. PW5 further stated that on their way home on the material day, they met PW3 and the accused called her a witch and accused her of bewitching her husband. He attempted to beat her but PW5 restrained him and they headed home. When they got to the home of Kaka Kikuku, the accused hit the door to the house and when Kaka opened the door, the accused hit him on the head accusing him of keeping jinis as a witch. PW5 tried to restrain the accused but he hit him on the chest whereupon PW5 left for home. 3. From the foregoing, it is clear that the accused carried out his intentions of dealing with those he perceived to be witches, including PW3, Kaka Kikuku and the deceased. Unfortunately, the deceased, a frail 92 year old woman bore the brunt of the Accused’s brutal attack. In the premises, I am satisfied that the accused’s conduct before attacking the deceased and the brutality with which he attacked her, are a clear demonstration of malice aforethought. 4. In the end, I do find that the prosecution has proved its case beyond reasonable doubt against the accused. The accused is hereby found guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and is convicted accordingly. **DATED SIGNED and DELIVERED in MALINDI this 17th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **M. THANDE** **JUDGE**