[2023] KEHC 27268 (KLR)

Republic v Mbarak (Criminal Case E017 of 2021) [2023] KEHC 27268 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27268 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case E017 of 2021

A. Ong’injo, J

December 1, 2023

Between

Republic

Prosecutor

and

Ali Amani Mbarak

Accused

Ruling

1. The accused Ali Amani Mbarak is charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code.

2. Particulars are that Ali Amani Mbarak on the 10th of May 2021 at Lakeview Kadzandani area in Nyali Sub-County within Mombasa County jointly with others not before the Court murdered Joash Mosoti Nyakundi.

3. The deceased herein was discovered dead in his house when the accused person who was not known to the Caretaker - PW 4, a tenant whose house neighbored that of the deceased PW 5 and the Landlord PW 6 – entered the deceased persons house at 6. 00pm on the 10th May 2021 and immediately got out while carrying an iron box and 2 pairs of open shoes and over ripe bananas in a red carrier bag.

4. The deceased was found lying on the floor facing down while stark naked with the hands tied. According to PW4, PW5 and PW6 the accused person entered the house and also told those who asked him what he had gone to do inside the deceased persons house that there was something shocking inside the house. PW4, PW5 and PW6 entered the house and found that indeed there was something shocking. The deceased was lying dead facing down and was stark naked.

5. PW4 who is caretaker at the residence of the deceased had not anyone enter into the deceased persons house on the material day and that the accused didn’t take long in the house when he entered and came out with iron box and 2 pair of sandals. It was the first time PW4, the caretaker saw the accused although the deceased used to entertain many young men in Room no.15 but he could not identify them all. PW4 said that an 9th May 2021 he met the deceased going to dispose garbage at 1:00pm and that the deceased persons closest neighbor said he didn’t hear anything. PW5 said that he had never seen accused visit the deceased. He confirmed that the accused arrived at the apartment after the landlord Mr. Wachira - PW6 after borrowing Kshs.10k hurriedly climbed the stairs and proceeded to the deceased persons house where he took iron box and 2 pairs of open shoes.

6. PW6 said he saw the deceased alive on Saturday. He said the deceased was heavily built and that accused could only have murdered the deceased jointly with others. PW6 said that the caretaker informed him different young men between 17 to 20 years frequented the deceased person’s house but he didn’t establish how many of the young men visited on a daily basis. He said he didn’t know who visited on 8th and 9th May 2021. When PW 6 called the deceased persons number and it was not going through and accused person told him he didn’t understand what was going on in the house he peeped in and saw the deceased lying on the floor stark naked. He said the iron box and the 2 pairs of open shoes were not known to him and the open shoes didn’t belong to the deceased. He said that the drawer and TV Stand in the house appeared disturbed. PW 6 said that there was no commotion when the accused entered the deceased persons house.

7. PW7 said that on 11/5/2021, one day after Joashs body was recovered dead on his house he got a call from Kissinger at 5. 00am. Kissinger told him he had information that made him suspect Joash was not well. He sends Esther Nelima PW8 and Kennedy Mwendwa to go to Joashs house. They went and the caretaker told them Joash was found dead in the house and the body was taken to Coast General through mortuary by police. PW7 advised them to go to the mortuary and confirm the body was for Joash. PW7 called Francis Nyakundi the brother of Joash to inform relatives about the death. On 17/5/2021 PW7, and relatives of the deceased accompanied police to the hospital mortuary where the body was identified for postmortem and on 18th May 2021. PW7 recorded his statement. PW7 said the deceased was a peer educator with Hapa Kenya and was later trained as volunteer paralegal.

8. PW7 said that his organization people Alliance of Kenya sponsored by Kenya Red Cross. He said he didn’t know organization known as GALCK and he was not aware the deceased volunteered with them. He also said that he knew an organization known as PEMA Kenya but he had no relationship with them and he didn’t know what they did. He said his organization has 52 staff, 80 peer Educators and 20 volunteers.

9. PW 7 said the deceased worked with them for more than 2 year. He said he didn’t know the deceased was in association with GALCK and PEMA Kenya or LGBTQ. He said he was not aware the deceased had reported having been threatened.

10. PW 8 Esther Nelima Simiyu a Paralegal & Prevention Counsellor with Hapa Kenya testified that the deceased was one of their volunteers and that on 11/5/2021 their Director called at 6:00am and instructed her to go to Joash’s house and confirm if the information he got from one of the Co-ordinators of Health that Joash had died was true. She was accompanied by Kennedy Mwendwa. Pw8 said she had not been to Joash’s house but she knew he lived at Lake View Apartments in Bamburi.

11. That they met the caretaker who told them Joash body had been collected by police. That they went to Kadzandani Police Station and the OCS told them the body of Joash was found stark naked in his bedroom with his hands and legs tired and that the matter was being handled by DCI Nyali. PW 8 and Kennedy Mwendwa went to Coast General Hospital Mortuary and confirmed that indeed Joash had died. PW 8 said they also reached out to the deceased persons sister known as Everlyne & she was given Directors number and they talked. PW 8 said they also reached the brother who works and lives in Changamwe. PW 8 said they also recorded statements on 18/5/2021 after Postmortem was done on 17/5/2021. PW 8 said she was not aware if the deceased was married. PW 8 said the deceased had asked for permission to be away on Thursday in the afternoon and Friday, but he was not seen on Monday. That on Tuesday they inquired if he had permission to be away and they were told he had no permission for Monday and Tuesday the following week.

12. PW 8 said the acronym GALCK means Gay and Lesbian Coalition of Kenya. She said she was a member of GALCK and she was not aware the deceased was a member of GALCK. She said she heard the deceased had threats due to his association with LGBTQ. She said that she was not aware of the deceased was killed due to his association with LQBTQ. PW 8 Said PEMA does advocacy work on issues general aspects of health for the Community. PW8 said she didn’t know why Joash didn’t report to work on Monday and Tuesday. She didn’t also know the time Joash was murdered.

13. PW 9 Dr. Samo of Coast General Hospital examined the body of the deceased on 17/5/2021 and established that the deceased died as a result of Asphyxia Secondary to Strangulation and Blunt force trauma to the heard. He said in cross examination that he didn’t find any marks on the legs and hands of the deceased. PW 9 said it was not possible to establish time of death due to lapse of time and decomposition due to extreme weather conditions in Mombasa. He said the protruding tongue could have been as result of strangulation or even decomposition. He said there were fractures on the skull caused by blunt force trauma. The doctor said there must handle been a real struggle.

14. PW 10 P.C. Robinson Warisanga was at Kadzandani police station on 10/5/2021. When Pw4, Pw5 and Pw6 went to the station in company of the accused person reported that a body had been found dead in a rental house from which they found accused coming from. Report was booked and Duty Officer informed. The Duty Officer IP Cheruiyot proceeded to scene with his team as accused remained at the station and he was booked in the cells. That DCI Nyali took over investigations. PW10 said when he searched the accused he didn’t find anything. PW10 said he didn’t know if accused committed murder.

15. PW 11 P.C Samuel Mwanza investigated the murder herein. He testified that Chief Inspector Ireri John called and told them that there was a murder that had been reported at Kadzandani Police Station and they were requested to rush to the scene. They found IP Cheruiyot at the scene in Lake View Estate. He said the body of the deceased was in the house on 4th floor. He said the 4th floor had only a single unit and other space was used for laundry area.

16. PW11 said that he learnt a suspect had been arrested when he was seen enter and come out of the house where the deceased body was. That the suspect had a red carrier bag containing 2 pairs of shoes belonging to the deceased and iron box. PW11 said there was no sign of struggle inside the one-bedroom house but TV was missing from the sitting room. He said the body of the deceased lay naked in the bedroom and the hands were tied. He said the body lay facing down and the hands were tied to the front. He said there were marks on the legs that looked like it had been tied and untied. He said the bed was properly spread with white bedsheet.

17. PW11 said there was blood oozing from one side of the deceased chest. He said photographs were taken and body removed to the mortuary. That when they took the suspect he led them to where he stays in a one room mud house in Kadzandani. He said apart from papers there was nothing significant in the accused person’s house. PW11 said that the accused was arrested because he didn’t tell the police who was involved in the murder. He said the accused told them he untied the iron-box cable from the deceased person’s legs.

18. In cross examination he said that the accused entered the house although the children who were playing football outside told him the owner of the house was not in. That the accused came out with an iron box and 2 pairs of open shoes but not T.V, laptop and phone. PW11 said he didn’t conduct investigation to trace the accused person’s phones. He said by the time he went to the scene the deceased legs had been untied but the hands were still tied. He said there was blood that appeared to have come from the deceased’s chest. PW11 said that the accused told the children who were playing outside to go and see what he had seen in the house.

19. PW11 said that there was nothing in the deceased house that could link the accused to the murder. That the accused had no marks or scratches on his body and he didn’t protest. He said the deceased was last seen over the weekend but not on Sunday. He said he didn’t establish if the accused was culpable. PW11 said the deceased persons T.V, laptop and phone were missing but they were not recovered. He said he could not tell if the deceased sold the utensils or they were stolen. PW11 said that he established that the deceased had frequent parties on at his rooftop house for young boys. PW11 said that the open shoes the accused had taken from the deceased house belonged to the deceased but no one confirmed the ownership of the ironbox.

20. The Investigating Officer PW11 said that the accused entered the deceased persons house but did not take long. PW11 said he didn’t trace the object that inflicted injuries on the deceased. He said the accused was not taken to Government Chemist for forensic examination. He said he could not tell when the deceased died as he had not been seen. He said the door to the deceased house was closed but not locked. He said he didn’t find the accused with keys to deceased house and he didn’t establish the kind of lock used to lock the door to the deceased house.

21. PW11 confirmed that the accused told the children who were playing outside to go and see what he had seen in the house. PW11 said he interrogated the accused and observed he had mental challenges. He said that by the time accused led him to his house he didn’t know he had mental challenges. He also said he didn’t establish the deceased had asked for permission from work on Thursday. He said that the caretaker at the apartment was also acting as the watchman.

22. At the close of prosecution case the defence counsel filed submissions on 21//1/2023. He submitted that the accused didn’t take more than 3 minutes in the deceased house as per evidence of PW6 the landlord and could not have committed the offence of murder. The defence counsel also questioned why the deceased persons mobile phone was not investigated after it was established he was last seen on Saturday and was never accounted for on Sunday and Monday. Defence counsel also questioned why HR at HAPA Kenya was not called to explain reason the deceased was granted permission to be away from work from 7th in the afternoon and 8th as it seems his absence from work may have been related to his being found dead In the evening of 10th May 2021.

23. The defence counsel said the investigations carried out were shoddy as the pathologist said it was possible Joash had been murdered earlier than 10/5/2021 and that the Investigating Officer ignored a lot of information that came by his way including that the deceased was involved in a love triangle with a male lover or lovers and that is the reason he was murdered. He said that the perpetrators of the gruesome murder could only have been arrested if the mobile phone communication history of the deceased and his geo-location from when he left HAPA Kenya on 6/5/2021 until his phone went off was established.

24. Defense counsel argued that charging the mentally challenged accused person was a smoke screen to shield the real perpetrators from prosecution. Mr. Chacha said that the prosecution of accused was rushed and prematurely brought to court. That there was no evidence tendered from the scene of crime to corroborate and possibly settle the contradicting evidence on whether the house of the deceased was disturbed or not and no samples were taken to Government chemist link accused to murder.

25. The accused persons advocate referred to the holdings in Republic verses Abdi Ibrahim [2013] eKLR, Ramantal Tranbaklal Bhat vs Republic and Wibiro alias Musa vs Republic [1960] E.A. at 186 to support their position that prosecution had not proved its case beyond all reasonable doubt to warrant the accused person being placed on his defence.

Determination and Analysis 26. For a charge of murder to be proved by prosecution they must prove the fact of death, the cause of death, identity of perpetrator/perpetrators and the fact that they were actuated with malice aforethought. In this matter it is not in dispute that the deceased was found lying dead facing down and was stark naked in the bedroom in his rental house on 4th floor at Lake new apartments.

27. The deceased had asked for permission to be off duty on Thursday afternoon and Friday 6th & 7th May 2021 and that the last time he was seen alive by the caretaker of the apartment who also doubled up as watchman was Saturday 8th May 2021. Apart from PW4 saying that the deceased entertained many young men who frequented his residence he said he had never seen the accused in the apartment.

28. PW6 the Landlord also said it was the 1st time that he saw the accused who entered the apartment and found him opening the door to his unit and greeted him and borrowed 10 bob but then hurriedly climbed the stairs to go to deceased house. PW6 followed him and found he had entered Rm.15 on 4th floor which was the only house on that floor. PW6 said that accused took less than 2-3 minutes in the house & on coming out told the young boys who were playing football to go and see what he had seen in the house. PW6 entered the house and saw the deceased lying on the floor in the bed room

29. From the evidence on record by prosecution witnesses it is apparent that the deceased must have been murdered between 8th May 2021 when PW4 last saw him alive on Saturday and 10th May 2021 when he was found dead. By the time postmortem was done on 17/5/2021 the pathologist said that he could not ascertain exact time of death due to state of decomposition due to extreme weather conditions in Mombasa.

30. The Investigating Officer said that he charged the accused because he didn’t tell them who was involved in committing the murder but at the same time he admitted that the accused mental status was questionable from the way he was speaking and considering where he stayed. When accused was brought to court his mental assessment indicated he was fit to plead. Although it was alleged that he had challenges with his mental capacity there was no documentary evidence that he had been treated for mental illness.

31. All the same the prosecution didn’t investigate how and why the accused person accessed that

32. apartment and went straight to the deceased persons house, could there be someone who directed him there if he had not previously been seen at the apartment? PW 6 said the open shoes the accused took from the deceased persons house did not belong to the deceased. Could they belong to the perpetrator who said the accused to retrieve them?

33. PW 11 the Investigating Officer however said the open shoes belonged to the deceased but he didn’t say how he established that fact. There was also evidence of questionable relationships that the deceased had that could have been a factor that led to his murder but the investigating officer did not interrogate the same to reach a satisfactory conclusion as to how and why the deceased was murdered.

34. There is supposed to have been a night guard at the apartment who took over duties from the Caretaker/Day watchman but he/she was not questioned to know if anyone entered the deceased persons house on the night of 8th/9th May 2021 or 9th/10th May 2021 that could have committed the murder. The prosecution’s case that the accused committed the offence hangs on a very lose/thin string that he went to the house and did not explain who was involved in the murder of the deceased.

35. This court finds that the prosecution’s evidence is not sufficient to place accused on defence. Accused is acquitted under Section 306 (1) of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 01ST DAY OF DECEMBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMs. Anyumba – Court ProsecutorAccused – Present in personMr. Chacha Munta Advocate for accusedMr. Ganzala Advocate for AccusedHON. LADY JUSTICE A. ONG’INJOJUDGE