[2023] KEHC 25116 (KLR)

Republic v Mangisi & 4 others (Criminal Case 10 of 2016) [2023] KEHC 25116 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25116 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 10 of 2016

A. Ong’injo, J

November 2, 2023

Between

Republic

Prosecutor

and

Mbogo Mangisi

1st Accused

Hamisi Bemwenda Jacob

2nd Accused

Mwarua Mwanyawa

3rd Accused

Joha Dzivo Joha

4th Accused

Nyamawi Shauri Kambi

5th Accused

Judgment

Introduction 1. The accused persons Mbogo Mangisi, Hamisi Bemwenda Jacob, Mwarua Mwanyawa, Joha Dzivo Joha and Nyamawi Shauri Kambi face a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 of the Laws of Kenya.

2. The particulars are that Mbogo Mangisi, Hamisi Bemwenda Jacob, Mwarua Mwanyawa, Joha Dzivo Joha and Nyamawi Shauri Kambi on the 12th day of January 2016 at Bofu village, in Mtaa Location within Kwale County murdered Haranga Mwamvula.

Prosecution Case 3. PW1, Binti Uchi Mwero testified that the deceased Haranga Mwamvula was her husband and that while they were sleeping on 12. 1.2016 at 0100 hrs the door to their house was broken into and five men whom she said she identified as accused persons herein entered and that while 4 of them stood by their bed and ordered her to keep quiet and not to scream, one man cut her husband’s right hand 4 times. She said it was the 1st accused who cut her husband. She said the 3rd accused was son-in-law to her brother-in-law and he was among those who attacked them. She said that the 4th accused, 2nd accused and 5th accused were also present.

4. PW1 said that her husband had a land dispute with her husband and that is the reason he was killed. She said the assailants left their panga in the bedroom after cutting the deceased and took the deceased person’s panga away. She did identify the panga that was left as Exp1. She said she gave the panga to her son who in turn gave it to the police. PW1 said that they slept with lights on and that she was able to identify the assailants with the help of the lights. She said in cross examination she was woken up by the sound of their metallic door being opened. PW1 said that she went to her son Mwero’s house to call the daughter-in-law after the attackers had left as the son was not home. She said the daughter-in-law’s door was locked from outside.

5. PW1 said she did not tell the police that she knew the people who killed her husband. PW1 said in cross examination by Mr. Nabwana that she knew the main suspect was Mwaruwa Mwanyawa, the 3rd accused. She said the other two cases involving land were settled. She said she did not frame the accused persons. She said her son known as Mwamvula was not involved in an incest case. She said the 3rd accused did not have a land dispute with the deceased. She said her husband died on the way to hospital. She said after the attackers left she screamed and neighbours came but she did not tell them who cut her husband.

6. PW2, Mwero Haranga Mwamvula said he used to work at Mabati Rolling Mills at Mariakani before the incident herein. He said he knew all the accused persons. He said he was in Mtongwe on 12. 1.2016 sleeping when at 0300 hrs he was woken up by the security guard of the place where he used to stay. The person told him that his father had been cut with pangas and he had died. That he was called by his boss and borrowed 400/- to use to travel home. That he arrived home at 1000 hrs and found the bedding, mosquito net and floor to his parents’ bedroom soaked in blood.

7. PW2 said that when he sat next to some men who were in their compound, he learnt that the assailants had abandoned a panga which was used as murder weapon. That when the panga was brought to him, he identified that it belonged to Nyamawi Shauri, the 5th accused herein. He said the handle of the panga made him identify it as belonging to Nyamawi and it also had the initials NS. He said he had seen A5 earlier with the said panga. That PW2 told the men who were seated with him that the panga belonged to Nyamawi. That when the police visited the scene, he told them the panga belonged to Nyamawi.

8. That on 13. 1.2016, he went to record his statement and thereafter went to identify the body of the deceased for postmortem. That on the way from the mortuary, the 3rd accused carried PW2 on his motorbike and told him it was Gawel, the 1st accused herein who had cut the deceased. That PW2 went back home and informed family members what the 3rd accused told him but cautioned them not to talk about it as the 3rd accused feared the accomplices.

9. PW2 said that on the 3rd day, the 3rd accused went to him with a black hen wanting to sell so he could get fare to go to Ryakalui. That in the evening when PW2 met the 3rd accused at the river, the 3rd accused told him he wanted to go to Ryakalui as he and the 1st accused as well as the 4th accused were suspected and he was likely going to be arrested as he had previously been arrested as a suspect in a murder case. That when a meeting was held and the OCS wanted to know who committed murder, the 3rd accused did not attend. That family members met at Gandini and decided to go to Ryakalui to look for the 3rd accused.

10. That when PW2 and Sospeter Chiguzo found the 3rd accused, he repeated what he told PW2 about his father’s death. He was however fearful that if his accomplices knew he had revealed what happened, he would be in trouble. That the 3rd accused told them that it was the 1st accused who cut the deceased while the 5th accused held his legs and that he and the 2nd accused stood watch outside. PW2 said they were 9 people when they went to look for the 3rd accused but when they got to Kinango Police Station, only 2 people were allowed to enter with the 3rd accused. PW2 said his father had land dispute with the 5th accused and the verdict of the land dispute was to be delivered on 19. 1.2016 by Divisional Conflicts Resolution Committee for Kasemeni Division and it was in favour of the deceased.

11. PW2 said that the 3rd accused and his step brother took him to Kinango Hospital Mortuary and it was on the way back that he told PW2 that it was the 1st accused who committed murder. He said the 1st accused lived not far from them. He said the panga belonged to the 5th accused. He said the 1st and 2nd accused did not attend the meeting called by the OCS. He said the 3rd accused, 4th accused and 5th accused did not also attend the meeting.

12. In further cross examination by Mr. Muganda Advocate for the 3rd and 4th accused, PW2 said that he did not know who took the panga to his father’s bedroom. PW2 said he saw fragments of bones on his father’s bed and patches of hair but they were not brought to court. PW2 denied having had sex with his cousin. He denied that his father went to take oath on his behalf. PW2 said he was not present when the 5th accused was arrested. He said the 3rd accused was not forced to mention the 5th accused. In cross examination by Mr. Paul Magolo Advocate, PW2 said he did not know who killed his father. He said that he did not indicate in his statement about what the 3rd accused said about each suspect’s role. He said the 4th accused did not have a dispute with the deceased.

13. PW3, Teddy Mangunya Ruwa testified that on 12. 1.2016 at 3. 00 am, he was asleep when PW1 went to call him saying her husband had been cut. He rushed to the scene and found the deceased had 2 panga cuts on the head. He made a phone call to the police and to Mnyenzeni Hospital to send an ambulance. That when an ambulance came, the deceased was put in it but before they could get to hospital, he died and the body was taken to Kinango Hospital Mortuary. That the deceased was buried on the 5th day of his death and the family met to discuss how the deceased met his death. That at the meeting, they noticed that one of them was absent. It was learnt that he went to his farm in Ryakalui 2 days before the meeting. That his absence raised suspicion and a group of about 10 people were sent to go for him.

14. PW3 said his grandfather and the 3rd accused’s grandfather were brothers. That when he was found, Julius Mwaruwa Mwanyawa told Sospeter Nyiro and Nyae Mwangunya what happened. That the 3rd accused told them he was involved in the murder together with Mboga Mangisi, Joha and Nyamawi. PW3 said they took Julius to Kinango Police Station and they recorded their statements. He said the 3rd accused did not tell them why they committed murder. He said that Nyamawi is their neighbour and his sister was married to PW3’s elder brother but they separated. PW3 said the 4th accused Joha Dzivo was his father in-law’s brother. He said the 1st accused’s wife and his wife were cousins. He said the 2nd accused, Bemwenda, comes from another village and he only came to know him in court. That it is the 3rd accused who mentioned him.

15. PW3 in cross examination said he did not witness murder and he did not know who committed murder. In cross examination by Mr. Muganda Advocate, he said he did not see the 3rd and 5th accused murder the deceased. He said it is the 3rd accused who told them they killed the deceased. PW3 said he did not know Chizi Mnyaka but he knew Mwero Ruwa. He said Mwaka Shauri is the sister to Nyamawi Shauri Kambi. He said it was not true that Mwero Ruwa was jailed because of a complaint filed by the 5th accused. In cross examination by Mr. Paul Magolo Advocate for the 4th accused, PW3 said they were in a group of 10 people when they went to look for the 3rd accused.

16. PW4, Musena Beja Ngowa, the assistant Chief of Bofu Location testified that on 12. 1.2016 at 6. 00 am, he received a phone call from the chief who told him that there was a case of murder in his sub-location. He was informed Mzee Haranga had been cut by unknown people and had died. That on the way to the scene, he learnt the police had collected the body. That 2 to 3 days after burial, PW4 and Chief interrogated the wife of the deceased and she told them she identified the assailants as Mangisi, Nyamawi, Joha and Bemwenda. PW4 said Bemwenda was not known to him very well. That an order was issued that suspects were required at the police station and they were summoned and Joha went to the station with his two brothers and they were escorted to the station. That Nyamawi Shauri and his father Shauri Kambi were also invited but they did not attend.

17. PW4 said that the deceased family wanted to avenge the death of the deceased when he learnt that Nyamawi Shauri was attending funeral at his in laws place and the deceased person’s family wanted to go and attack and he proceeded there with the police and got Nyamawi Shauri apprehended and mob prevented from harming him. PW4 said that in the course of protecting Nyamawi Shauri, there was a commotion and his shirt was torn and a police officer kicked. The Assistant Chief said there was a dispute over land between the deceased and the family of Shauri which was resolved by Assistant County Commissioner. When cross examined by Mr. Muganda, PW4 said that wife to the deceased gave them names of the assailants. He said he did not take part in land disputes. He said that in 1991, Mwero Ruwa made the child to Mwaka Ruwa pregnant. That Mwaka Shauri is the sister to Nyamawi Shauri. PW4 said A4 was at home and when he was summoned, he responded.

18. PW5, Francis Chikophe testified he responded to alarm raised by PW1 who was crying that her husband had been killed. On arrival, he entered the house where he found Mzee Haranga had not died and he got out and told people who were present to make arrangements and take the deceased to hospital. That an ambulance came and took the deceased but he died shortly after the journey to hospital started and the body was taken to Kinango Hospital Mortuary. That on 18. 2.2016, Mzee Nyae Mwangunya called and told him one of the suspects they were looking for was attending a funeral at Chizini Village. That he informed the assistant chief to arrange to go and arrest him. He said the suspect was arrested on 20. 2.2016 and it was Nyamawi who was suspected as he had land dispute with the deceased. PW5 said the deceased did not have a dispute with the 1st and 2nd accused. PW5 said that the 3rd accused’s father was the elder brother to the deceased. He said the 5th accused was a neighbour and not related to the deceased. He said the 3rd accused was not involved in land dispute for which it is suspected the deceased was murdered. He said that Nyamawi was suspected of having murdered Haranga because of land dispute. PW5 said the light in the deceased’s house was very dim and he used light from his phone to see the deceased whom he found was still alive.

19. PW6, Mshenga Kavindo Mshenga testified that on 17. 12. 2015, he was in the office of the Assistant Commissioner to resolve land dispute between Haranga Mwamvula and Nyamawi Shauri. That on 21. 12. 2015, they went to the scene at Bofu and they were shown disputed parcel. PW6 said that Mzee Haranga had reported that there were young men who had attempted to pour petrol on the house while he was sleeping but he heard them and chased them away. The deceased was advised to go and report to the police. That on 26. 1.2016 when they were to deliver judgment, they heard Mzee Haranga had been killed and they decided not to give verdict and they set another date. PW6 said they had established land belonged to the deceased. In cross examination, he said he did not know the accused person except he went to resolve the dispute between Haranga and Shauri. He said he did not know who killed Haranga. He said he was retired chief, minutes were taken by the secretary and he did not have them in court. He said he did not know if the 4th accused, Joha Dzivo Joha, was present for the meeting of 21. 12. 2015 as he was not a party.

20. PW7, Patrice Edward Ngea, testified that on 17. 12. 2015, the Assistant County Commissioner sent them to Bofu because of land dispute between Haranga Mwamvula and Nyamawi Shauri. He said the parties were not known to him. He said he was the secretary of the Division Conflicts Resolution Committee whereas Samuel Chitieke was Chairman and Thuku and Ronald Tsimba were members. He said they had discussions on 17. 12. 2015 and 21. 12. 2015 when there was an attendance of 38 and 49 respectively. He said that Nyamawi Shauri’s team boycotted identifying the land. That when they were due to deliver the verdict, they learnt that Mzee Haranga had been killed. PW7 was stood down for the minutes to be supplied to defence counsel before production.

21. PW8, Sospeter Nyiro Chikophe testified that on 12. 1.2016 at about 3. 00 am, he was woken up by screams of people crying in the direction of Mzee Haranga Mwamvula’s home. He said Mzee Haranga was his father’s younger brother. That he rushed to the scene and on inquiring, he was told his uncle had been attacked by people who cut him with panga. That he entered the house and found his uncle was still alive but his whole body was stained with blood. That he called Administration Police officer who promised to send an ambulance. That P.C. Nzai called Mnyenzeni Health Centre and an ambulance was sent within 15 minutes. That he, Teddy Ruwa and Mwamvula Mwanyawa accompanied the deceased to hospital but when they got to Bofu Centre, the deceased died and they proceeded to Kinango Hospital Mortuary after reporting at the police station.

22. PW8 said that the son to the deceased arrived home and the wife of the deceased showed them a panga that assailants left in the bedroom after attack. PW1 told them her panga was missing after attack and the assailant’s panga remained at the scene. That the decased person’s son saw the panga and said it belonged to Nyamawi as he had used it to during the time they used to burn charcoal together. That because incidents of murder and insecurity had become rampant, the OCS Kinango called a meeting at Bofu on 30. 1.2016. That on 29. 1.2016 when he went to his farm in Makanuni, Mwaruwa Mwanayawa accompanied him and told him he would not wait for the meeting by the OCS as he heard the OCS was going to arrest everyone who killed the deceased. That he asked why he was worried if he did not commit the offence and the 3rd accused said that the OCS may just decide to arrest him as he had been bailed out another time by PW8 from the station.

23. PW8 said he gave the 3rd accused a lift on his motorbike. That at Gandini, he narrated what the 3rd accused had said and it was decided that the 3rd accused should be called to tell family members what he knew about the death. That PW8 was accompanied by 6 family members from Gandini to go and look for the 3rd accused. That they arrived at night and they got Mwaruwa, the 3rd accused, and he was interrogated. PW8, Nyae Mwangunya and Alfred Ruwa said he told them it is him and the other 4 accused persons who killed the deceased. That the 3rd accused then accepted to go and tell the police what he had told them. That the 3rd accused was taken to the police station where he recorded his statement. In cross examination by Ms. Musyoki Advocate for the 1st and 2nd accused, he said the 1st accused was their neighbour but he did not know of any differences between him and the deceased. He said he also knew Hamisi Bemwenda, the 2nd accused as he used to see him in Bofu. He said he was not aware of the 2nd accused’s relationship with the deceased.

24. In cross examination by Mr. Muganda Advocate for the 3rd and 5th accused, he said that the 3rd accused is his brother and the 5th accused is their neighbour. He said that Mwaka Shauri was not known to her. He said his home and the deceased person’s home is 500m apart. He said the deceased person’s house was lit by bulbs connected to batteries. He said that the deceased was alive when he arrived but he did not say anything. He said he did not find the 3rd and 4th accused at the scene. He said he did not see a panga in the deceased person’s house and that it is Mwero, PW2, who identified the panga belonging to the 5th accused.

25. PW8 said the 3rd accused is his younger brother and he had never heard him quarrel with the deceased. He said the 3rd accused’s father, Mwanyawa, is brother to the deceased. He said the 3rd accused accompanied him to Ryakalui where they have a farm. He said the 5th accused was arrested in his absence. He said the 3rd accused was not beaten on 31. 1.2016 and denied that he had an affair with the 3rd accused’s wife when he was in remand. He said they did not go for oath taking after death of the deceased. He said the 4th accused was their neighbour but his cattle had never strayed into the 4th accused’s farm. He said the 4th accused had 3 wives but he had no relationship with any of them. He said that 9 people went to look for the 3rd accused and they interrogated him in the absence of police officers. He said he recorded what the 3rd accused said on phone.

26. PW9, Nzao Ruwa Mwavula said that on 12. 1.2016 he was at Kongowea – Shauri Yako when at 3. 00 am Mwangunya Zeha called and told him that his father had been cut with pangas but he had not died. That PW9 advised that he should be taken to hospital. That at 5. 00 am he got a call that his father had died and that he called a friend with a tuktuk who took him home. That when he arrived home, he found there was a panga which was abandoned on the bed where the father had been attacked. That PW9’s mother said it was not their panga and when PW9 looked at the panga and saw marks that he identified. PW9 identified the panga as the one in court. That before the arrival of the police, Mwero Haranga went and identified the panga as for Nyamawi Shauri. He said that he used to make charcoal with Nyamawi and he knew the panga.

27. PW9 testified that prior to the murder of Haranga and before the land dispute between Nyamawi Shauri and Haranga, there was an attempt to set the house on fire and Nyamawi Shauri ploughed Haranga’s farm. That the farm was in the name of Zeha, the brother of the deceased. That when Nyamawi planted maize, Haranga uprooted the maize. That when there was an attempt to set Haranga’s house on fire, PW9 accompanied him and followed the footprints to Nyamawi’s home. That when the elders went to do land dispute, Haranga complained that Nyamawi attempted to kill him and that his life was in danger.

28. PW10, Japheth Babu Zeha, informed court that on 12. 1.2016 at 0401 hrs, he was asleep when his cousin said that his uncle had been cut and that it was Rama who made the phone call. That PW10 called the chief and that the deceased died on the way to hospital. That they had land dispute within the family and it was his uncle who was the spokesman. PW10 said that it was his father’s land that had a dispute. That they did not know who killed his uncle but his uncle’s wife said she was able to identify Gawe and Nyamawi as the assailants.

29. PW10 said that they later learnt that their uncle’s son who was a bodaboda rider was the one who transported the assailants. Mwaruwa Mwanya, the bodaboda rider also escaped after the murder of the deceased. That when he was traced, he told them that Nyamawi, Mangisi, Joha Dzivo and 4 others murdered the deceased. That they mobilized members of the public to apprehend the suspects and Joha was arrested in Bofu and Gawe Mangisi was arrested in Tudor. That Mwaruwa was said to have left his motorbike at their sister’s place in Pemba and that he went for petrol at their other sister, and at 4. 45 am, Kalimbo saw Mwaruwa carrying Mangisi and he did not go back. PW10 said that he went to the scene in his uncle’s home in the morning and when he entered the house, he found the police had gone to the scene and collected the body and other exhibits. PW10 positively identified all the accused persons except the 2nd accused who was not known to him.

30. PW11, Nyae Mwangunya, the village elder testified that on 31. 1.2016 Haranga Mwamvula, his cousin was killed and they conducted burial without knowing who the assailants were. That after some time, there are people from Bofu who went to Gandini to meet with a group of people from Gandini to discuss the reason for murder and that they told them that there was someone they suspected and they wanted them to go there and interrogate him. That Mwaruwa Mwanyawa, the son of PW10’s brother flee from the village and he was suspected. That he was seen transporting someone known as Gawe on the material night on a motorbike to Mazeras. That they wondered why he was not shocked by the death of his uncle. That Mwaruwa had escaped to Ryakaluii area from Bofu. That they went to Ryakalui and apprehended him and interrogated him and that he said he was not involved but he knew the assailants and that their chairman was Nyamawi Shauri. That members of the group also included Mboga Mangisi, Joha Dzivo aka Kajiwe, Chimambo Nyundo, and Lubado. That he told them that he was warned that if he revealed that their uncle was to be killed, he would have been killed. That they handed him over to the police at Kinango and PW11 later recorded his statement.

31. PW12, Dr. Kitsao Njimba Kalume from Kinango Sub-County Hospital produced the postmortem report prepared by Dr. Gathendu Edwin who was on study leave and whom PW12 had worked with from 2018 to 2021. That the postmortem was in reference to the body of Haranga Mwamvula and that the postmortem was conducted on 15. 1.2016 at 5. 00 pm. That Dr. Gathendu signed the postmortem report and PW12 knew his signature and handwriting. That on external appearance, the parietal region on the left had extensive head trauma with compound cranial fracture with excessive primary brain injury secondary to assault by sharp object. On internal examination, the head and the nervous system were the only parts affected and Dr. Gathendu was of the opinion that death was caused by extensive primary brain injury secondary to trauma inflicted by sharp object. PW12 produced the postmortem report as ExhP 2.

32. PW13, No. 217975 CPL Benjamin Kimeli said that IP Moses Okapesi was the initial Investigating Officer who went on transfer and handed the file over to him. That IP Okapesi recorded statements from witnesses who mentioned suspects namely Mwaruwa Mwanyawa, Joha Dzivo, Nyamawi Shauri, Ruwa, and Mboga. That inside the house where the deceased was murdered, an abandoned panga was recovered and it was kept as an exhibit and the murder weapon. That the deceased was cut on the head and died on the way to hospital. The panga that was recovered was in court and PW13 produced it as ExhP 1. That IP Okapesi recorded a statement and PW13 produced it as ExhP 4.

Defence Case 33. DW1, Mboga Mangisi, gave sworn statement that on 12. 1.2016, he was in Tudor in his house and that when he went to work, his wife called in the evening and informed him that their neighbour Haranga Nyamvula had died. That it was his child Mjeni who called and informed his wife about the death. That when he learnt of the death, he went home for the funeral and that when he arrived, he found the body at the mortuary and burial was planned for Saturday which he attended. That he later went back to Mombasa and on 26. 2.2016, the police from Makupa went to his house in Tudor at 3. 00 am and arrested him. That the police went in the company of some of the witnesses and that others were not known to him. He said that he had no differences with the deceased and does not know who killed him.

34. DW2, Hamisi Bemwenda Jacob gave sworn evidence that on 23. 2.2016, at about 5. 00 pm, he was coming from his place of business and when he got to Bofu, he was stopped by Nzao Ruwa who asked him if he had a pair of uniform that could fit his child. That when he opened the bag to check for the uniform, the old man suddenly hit him on the head with his walking stick. That he suffered a cut and fell. That he then kicked him on the mouth which broke his tooth. That DW2 managed to escape by running home. That he went and reported at Kalalani Police Station where he was advised to go to Mariakani Hospital for treatment. DW2 produced the letter and patient prescription form as ExhP 1 (a), (b) and (c). That he went to Mariakani Hospital where he was treated and that he was told to go for review on 26. 1.2016.

35. DW2 further said that when he arrived home on 24. 1.2016, he went to report to the chief of Bofu and the chief told him that he received some items from the old man who beat him. That the chief showed him the items and promised to summon the old man. That he waited up to 5. 00 pm when he saw a vehicle from Kinango Police Station which he was told to board. That he was taken to Kinango Police Station where he was remanded and later charged with murder. He said that he did not commit the offence, that the deceased was not known to him and that he does not know who killed the deceased.

36. DW3, Mwaruwa Mwanyawa, said that the charges levelled against him are false and that on 12. 1.2016, he was in Mazeras working and that at about 5. 00 pm, he got an old man who wanted to go to pemba though his home is in Bofu. That on the way to Pemba, he passed by Bofu and that he met his brother Chigudzo Chipole who informed him that their uncle had been attacked and killed at night. That he got information about death of the deceased from his brother. DW3 testified that he was arrested on 31. 1.2016 and that it is not true that he escaped from home. He said that he has 2 wives and the elder one stays in Ryakalui while the while the 2nd one stays in Bofu. That after burial his first wife known as Mbodze called and informed him that his 3rd born child was sick and that he left Bofu to go and attend to the child.

37. DW3 said that he was arrested by 2 people who were not known to him together with some members of his family. That Uchi Mwero who is DW3’s eldest mother and Sospeter Nyiro, the son to his eldest uncle know his home in Ryakalui. That Sospeter alleged that DW3 admitted having killed the deceased and that DW3 was arrested at 8. 00 pm by 9 people. That they went with him to a forest known a Kitilu where they stopped their motorbikes. That they had tied him with ropes and decided that he should be killed because he also murdered the deceased. That those who were known to him rode away and he was left with 4 people. That they had a list of names which they asked him about while beating him and that his name was also on the list. That they were demanding to know who was involved in the murder and that he denied.

38. DW4, Nyamawi Shauri Kambi gave sworn evidence that the charge against him was a fabrication and that on 12. 1.2016, he was in Chikwakwani Village and that his grandfather had died. He said that it was not true that he was at the scene of crime. He claimed that PW2’s brother defiled his sister’s daughter who was in grade 6 and impregnated her. That PW2’s brother was jailed for 7 years and that he fabricated the accused to avenge the brother’s imprisonment. The 4th accused said the panga recovered did not have his name and that he was not involved in the land dispute between the deceased person’s brothers and his father’s brothers.

39. DW5, Joha Dzivo, the 4th accused who said that on 12. 1.2016, he was herding his animals in the field when a woman who was passing by told him of the attack on the deceased. He said that he had no land dispute with the deceased and that he got a letter to go to the chief on allegation that his wife had reported him about domestic dispute. That on arrival he found his wife at the chief’s office and the chief told him to wait. That while he was waiting, police officers went and put him in a make shift cell in the toilet. That at 1. 00 pm, police from Kinango went and took him to the police station.

Submissions by the 1st and 2nd accused persons 40. The 1st and 2nd accused persons’ submissions were filed on 18th July 2023 and said that the prosecution had not proved beyond reasonable doubt that the accused committed the unlawful act that caused the death of the deceased. That the 12 prosecution witnesses were not eye witnesses. That the testimony of PW1, the widow of the deceased failed to state how she was able to identify the suspect in the wee hours of the night. It was submitted that in the absence of adequate light that can pass the test of identification at night cast serious doubt as to how she could identify the suspect.

41. The credibility of PW1’s evidence was also brought to question because she did not explain how she was able to get away and go to her daughter’s house 50m away if there was a man who remained behind to guard her. It was further submitted that the evidence of the 1st accused person that he was in his home in Tudor and only received news of the death of the deceased refuted the evidence of PW1 that she identified him on the material night. It was contended that PW1 did not know the people who attacked her husband and the inconsistency in her narration is contrary to a truthful person.

42. It was further submitted that since the prosecution had not proved elements of actus reus, the consequence is that they also failed to prove mens rea on the part of the accused persons. It was submitted that the existence of submission that the accused persons may have been involved in the murder of the deceased is not a basis for conviction.

Submissions by the 3rd and 5th accused persons 43. The submissions by the 3rd and 5th accused persons were filed on 10th July 2023. It was submitted that there was no eye witness to the murder of the deceased and hence there was no evidence to conform that the 3rd and 5th accused persons committed the murderous acts. That PW1, Uche Mwero who attempted to see Nyamawi Shauri and Mboga Mangisi with pangas at 3. 00 am, was not sufficient because she failed to identify the suspects in the wee hours of the night and she used which light. It was argued the absence of adequate source of light casts serious doubt as to how PW1 could identify the suspects.

44. Counsel for 3rd and 5th accused persons contended that PW1 who was the widow of the deceased who had a land dispute with the 5th accused had every reason to use the unfortunate death of her husband to witch-hunt the accused persons.

45. It was submitted that without evidence of identification it was unsafe to base the conviction of guilty on the evidence of PW1 alone as there is no direct or circumstantial evidence of identification tendered beyond reasonable doubt by the prosecution.

46. On whether the accused persons had malice aforethought, it has been submitted that there is no evidence of malice aforethought against the 3rd and 5th accused persons proved, inferred or in any way linking any malice on them and in addition showing they attacked the deceased in any malicious way.

Analysis and Determination 47. In consideration of the evidence of 5 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.

48. 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.’

49. 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 50. Fact of death of the deceased is confirmed by the prosecution and defence witnesses.

Death was caused by an unlawful act or omission 51. The deceased was attacked when he was sleeping in his house and he suffered extensive head trauma, compound cranial fracture and extensive primary brain injury secondary to assault by a sharp object. He succumbed to the injuries on the way to the hospital. His wife PW1 was sleeping with him in the same room when they were attacked and the injuries inflicted. The injuries were inflicted by unlawful act of assailants.

Whether the accused persons participated in the commission of the offence 52. Apart from PW1, there was no one else at the scene who could confirm and corroborate PW1’s evidence that she identified the assailants. When PW1 testified, she said that it was the 1st accused person who cut her husband and that the 2nd, 3rd, 4th and 5th accused were standing by the bedside when the husband was being attacked by the 1st accused. Although she said that they sleep with lights on, evidence adduced by PW5 indicated that the light in the house was very dim and PW1 said that the incident took minutes. PW1 did not tell her neighbours if she identified the people who attacked her husband but later, she is alleged to have informed PW4, the Assistant Chief and the police about the people she allegedly saw on the material night.

53. PW4, the Assistant Chief, said that after burial of the deceased on PW1 was interrogated and she gave the names of the 1st, 2nd, 4th and 5th accused persons as the assailants who attacked them and inflicted fatal injuries on her husband.

54. The deceased and the 5th accused had a protracted land dispute which PW6 and PW7 presided over and on the day that they were going to give a verdict, they learnt that the deceased had been attacked and killed and so they deferred the verdict. The relatives of the deceased had a strong suspicion that he was killed because of the land dispute.

55. PW9 testified that there was an attempt to set the deceased’s house on fire and PW9 accompanied the deceased and followed the footprints to Nyamawi’s home. That when the elders went to do land dispute, Haranga complained that Nyamawi attempted to kill him and that his life was in danger. There was evidence that after the death and burial of the deceased, the OCS called for a meeting to determine the cause of rampant insecurity in the area and to establish who were the suspects in the murder of the deceased herein but the 3rd accused person who was said to have been seen ferrying the 1st accused to Mazeras on the night of the incident escaped to Ryakalui and he did not attend the meeting discussing his uncle’s murder. The 3rd accused person who is said to have informed PW2 that he was with A1, A2, A4 and A5 when A1 cut the deceased on the material night.

56. When A3 left the village in fear of being arrested for the murder of his uncle, PW2, PW3, PW5, PW8, PW10 and PW11 in the company of other members of the family went to look for him, he gave them the names of the suspects who were involved in the murder of the deceased and said they warned him not to disclose the information that his uncle was going to be killed. That he was told that if he disclosed the information, he would also be killed. A3 was taken to the police station and his confession led to the arrest of the other suspects and they were jointly charged with the offence of murder.

57. The accused persons denied having been at the scene or having committed the offence and their defence came long after prosecution witnesses had testified and was therefore not tested for veracity. The 1st accused does not give the name of the wife who told him that the deceased had died on 12. 1.2016. His alleged child who could have confirmed that he was not at home on the material night was also not called as a witness. The 2nd accused has not given an account of where he was on 12. 1.2016 if it is not true that he was part of the assailants who committed the murder. The 3rd accused person told PW2 about his involvement in the murder of his uncle on 2 occasion when he carried him on the motorbike and when they went to a bath in the river. He also told PW11 about his fears and why he had to leave the village as he suspected he would be arrested for the murder of his uncle. The 3rd accused person had no grudge with any of the prosecution witnesses most of whom were his relatives and even after the death of the deceased, they did not have any suspicion that he could have been involved in the sinister murder of his uncle. However, out of the blues, he started divulging information as to what transpired. Nobody forced him to tell PW2 and PW11 about the assailant’s. He was not under any threat or coercion when he divulged the information. Those who went after him in Ryakalui were prompted by the information that he had given voluntarily.

58. The 4th accused claimed that he had gone to herd his animals in the morning when he learnt about the death of the deceased. He did not account for his whereabouts on the night that the deceased was killed. He has not said whether he had a dispute with the 3rd accused who mentioned him as having been one of the assailants who murdered the deceased. The 5th accused person alleged that he was in Chikwakwai village for the funeral of his grandfather and that he was not at the scene. He also said that he had a case with his brother-in-law and that is why PW2 fabricated him to avenge imprisonment of his brother who lost his teaching job. The defence of alibi by the 5th accused has been brought late in the day and can also not be verified. He did not give the name of his grandfather who died and he did not produce evidence of such death. The allegation that PW2’s brother defiled his niece was not particularized and witnesses denied that such a thing happened.

59. The circumstances surrounding the murder of the deceased, the refusal by the accused persons herein to attend the security meeting called by the OCS, the attempt by the 5th accused to set the deceased person’s house on fire because of a land dispute, the escape of the 1st accused, the 3rd accused and the 5th accused from the village following the murder of the deceased and the disclosure by the 3rd accused person makes this court believe that the accused persons participated in the murder of the deceased.

Whether there was malice aforethought 60. 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”.

61. 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.”

62. 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.”

63. The accused persons went to the deceased person’s house under the cover of darkness, broke into his house and inflicted fatal injuries on his head. PW1 said that when she went to call her daughter-in-law, she found that they had even locked her house from outside so she could not come out. The perpetrators made sure that the deceased could not get any help. The precision with which the offence was planned and committed is proof of the extent of malice on the part of the perpetrators.

64. In conclusion, this court finds that the prosecution has proved its case beyond reasonable doubt, the accused persons are found guilty and they are convicted in accordance with Section 322 of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 2ND DAY OF NOVEMBER, 2023. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the StateMs. Musyoki Advocate for the 1st and 2nd Accused PersonsMs. Musyoki H/B for Mr. Muganda Advocate for the 3rd and 5th Accused PersonsMs. Musyoki H/B for Mr. Magolo Paul Advocate for the 4th Accused Person1st Accused person present in court2nd Accused person present from Shimo la Tewa3rd Accused person present from Shimo la Tewa4th Accused person present from Shimo la Tewa5th Accused person present in courtHON. LADY JUSTICE A. ONG’INJOJUDGEMs. Musyoki Advocate: I request for a date for mitigationOrder: Mention on 16. 11. 2023 for Pre-Sentence Report, Victim Impact Statement, Records, Mitigation and Sentence.HON. LADY JUSTICE A. ONG’INJOJUDGE2. 11. 2023