[2023] KEHC 24618 (KLR)

Republic v Murichange (Criminal Case 32 of 2016) [2023] KEHC 24618 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 24618 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 32 of 2016

MN Mwangi, J

June 30, 2023

Between

Republic

Prosecutor

and

Mbui Harrison Murichange

Accused

Judgment

1. The accused person, Mbui Harrison Murichange was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge were that on the night of 28th and 29th July, 2016 at Mtaa A village, Mtaa location in Kinango, within Kwale County, he murdered Kasemani Bemuhache. The prosecution called 6 witnesses in support of its case.

2. PW1 was Margaret Mbeyu Kasemeni, a resident of Mtaa village at Kinango. She stated that on 29th July, 2016, she was informed that her father had been killed, information which she was given when she was at her home by people who were going to the river. She further stated that the said people informed her that her father had been killed at the home of Mbui Harrison. (accused person).

3. Her evidence was that she went to the home of the accused person and found her father dead. She stated that his body was behind the house and his head had been badly cut. That his hands had been cut and his fingers had been cut off. They then took the body to Kinango. She indicated that she had known the accused person since the time she was born as he was their neighbour. She also stated that his house was half an hour’s walk from theirs.

4. PW2 was Chengo Katana of Mtaa village, Mabesheni sub-location. He testified that on the morning of 29th July, 2016 while at home at 7. 00 a.m., someone called him and told him that his uncle, Kasemeni Bemuhache, had been cut with a panga. He stated that he notified his sister of the said information. That she went to the scene and told him that their uncle had been killed. That on going to the scene, PW2 found the body outside the house of the accused person, who is his uncle, by virtue of being married to his Aunt. He stated that the deceased was also his uncle as he was his father’s brother.

5. PW2 stated that he found the Chief and Assistant Chief of the area at the scene. He observed that the deceased’s head had been cut and opened, the fingers of both hands had been cut off and he had also been cut at the back of his waist.

6. PW2 stated that police officers went to the scene and took the deceased’s body to the mortuary at Kinango. It was his evidence that he knew that the deceased had disagreements with the accused person and the latter had reported to the Assistant Chief that the deceased used to sleep with his wife. That the case was taken to the Chief and it was reported to the police.

7. PW3 was Stephen Chupi Murichange, a resident of Mtaa at Kinango. He stated that on 29th July, 2016 at 5. 00a.m., he was at home when his sister-in-law by the name Tabu Ngeu Ndeme, who was married to his brother, went to his home. That she sat down and told him that Kasemeni had died at her home. That she requested PW3 to go and report the matter and on his part, he reported to the Chief by the name Jonathan Kombe and they all went to the accused person’s house.

8. PW3 testified that on reaching there, he saw Kasemeni (deceased) had been killed and his body was behind the house. He stated that he saw that the deceased’s head had been smashed and his hands were cut and they had injuries.

9. PW3 stated that the Chief took his sister-in-law (Tabu) and went with her to his office. That the Chief called the police who went to the scene, took measurements and removed the body of the deceased. They took the deceased’s body to Kinango Hospital Mortuary. PW3 stated that Tabu was not charged but her husband Mbui (accused person) was charged.

10. Jonathan Kombe, the Chief of Mtaa, Kinango Location testified as PW4. His evidence was that at 6:00a.m., on the morning of 29th July, 2016, one Chupi Harrison Murichange (PW3) went and told him that there was a person who had been killed at the house of Mbui Harrison Murichange. PW4 stated that he went to the scene where he found the wife of the accused person and he also saw the deceased’s body. He explained that the deceased had been cut on the hands and crashed on the head and that he was outside the house of the accused person. PW4 also saw a cut at the back of the deceased’s head and that his fingers had been chopped off.

11. PW4 testified that he found Tabu at the scene with children and that several people who were around her wanted to beat her up and he took her to his office and locked her therein for her safety. He indicated that the police went to the scene and picked the fingers that had been chopped off which they put in a paper bag. They also took the deceased’s body. He stated that when the police vehicle reached the area, they picked Tabu from his office and went to the scene of crime.

12. PW4’s evidence was that they interrogated Tabu and she said that she had killed the deceased and that she had a disagreement with the accused person. PW4 testified that the accused person had reported to his office that the deceased was having an affair with his wife (Tabu). It was PW4’s evidence that when he called the deceased person together with Tabu, she admitted that it was true that she had an affair but the deceased refused to pay “Malu”, the fine for having an affair with someone’s else’s wife. PW4 testified that the accused person had threatened the deceased and he gave him a letter to take to the police. He stated that when the deceased went to Kinango, the police asked him for fuel so that they could go and arrest the accused person, but he said that he did not have money and the matter ended.

13. PW4 stated that at the Police Station, they called the accused person and when he went there, he was arrested. PW4 stated that Tabu went to his office four (4) weeks later and asked him to escort her to her house and she took her things and went to their home.

14. The Investigating Oficer was No. 236041 Inspector Albert Mwiti who testified as PW5. He stated that he was at Kinango Police Station on 29th July, 2016 at 7:00 a.m., when he received a phone call from the Assistant Chief of Mtaa location, by the name of Jonathan Kombe (PW4), who told him that there was a murder in his area. PW5 went to the scene with Sergeant Yator and PW Rashid. They passed by the office of the Assistant Chief at Mtaa market for him to show them the scene.

15. PW5’s evidence was that at the said office, they found Mbeu Ndeme, the wife of the accused person, who had been arrested in relation to the murder. He stated that they went with the Assistant Chief to the scene and left the suspect in the Assistant Chief’s Office.

16. PW5 testified that the scene was at the accused person’s house and that outside the said house, they found the body of the deceased which had an open skull and several cuts on the head and back. PW6 stated that the accused person’s four (4) fingers of his right hand which had been chopped off, lay next to his body and that his small left hand finger had also been chopped off and the body lay in a pool of blood.

17. PW5’s evidence was that he made inquiries and he was told that the deceased was sleeping with the accused person’s wife, Mbeu Ngeme and that on 29th July, 2016 at about 1:00a.m., the accused person woke up and sat on the bed. That Mbeu asked her husband why he had woken up and he informed her that he heard a knock at the door and that the accused person’s wife found a dead body outside their house by the door.

18. PW5’s evidence was that his investigations revealed that the accused person’s wife had been involved in a love affair with the deceased for a long time, and that the accused person used to fight the deceased whenever they met. PW5 stated that on the night in issue, the deceased had gone to visit the accused persons’s wife and did not expect to find the accused person but he was at home with his wife and a 3 year old child. PW5 stated that he photographed the scene and put the deceased’s body in the police vehicle and collected the accused person’s wife. He then took the deceased’s body to Kinango Police Station pending further investigations.

19. PW5 testified that the accused person was contacted through his cell phone and on arrival at Kinango Police Station, he was detained as a suspect. He stated that on 3rd August, 2016, the accused person’s wife led PW Yator and PW Rashid to the scene where she had hidden two (2) wooden sticks and two (2) pangas which she alleged were used to kill the deceased. He stated that the accused person’s wife had hidden the said items near a place where charcoal was being burnt. PW5 could not tell if the said items had blood stains as they were buried in the earth at the charcoal burning place. He produced the 2 pangas and two wooden sticks as exhibits. He indicated that photographs of the recovered exhibits were taken by PW Rashid.

20. PW5 testified that after investigations, he recommended the charging of both the accused person and his wife Mbeu Ngeme but the Office of the Director of Public Prosecutions directed that the accused person’s wife was not responsible for the deceased’s death and the accused person was charged with murder.

21. PW5 stated that a postmortem examination was done on 29th July, 2016 at Kinango Hospital Mortuary in the presence of PW Rashid and the cause of the deceased’s death was established to be the injuries that the deceased sustained.

22. PW5 stated that they charged the accused person with murder because he was implicated by his wife and that they got to learn about the love affair between his wife and the deceased after she was arrested. On the application of the prosecution, PW5 was recalled at a later date and he produced photographs taken at the scene of crime as exhibits.

23. Dr. Ahmed Mkuche Juma Hassan of Coast Province General Hospital testified as PW6. He testified on behalf of Doctor Abdala Fankupi who had gone for a Masters degree in medicine at Cairo, Egypt. PW6 stated that he had worked with the said doctor for one year and he was familiar with his handwriting. There was no objection from the defence Counsel on having PW6 testify on behalf of his colleague. The said witness stated that the postmortem examination on the deceased was done on 29th July, 2016, after the body was identified by Margaret Kasemenyi and Juma Chengo. PW6 stated that as per the postmortem report, the deceased had multiple lacerations on his skull, some of which had penetrated and damaged his brain, with bleeding on his brain tissue. Other injuries noted were rear amputation of his left wrist with the left little finger disarticulated (completely cut off). PW6 stated that the cuts on his wrist were defensive injuries and that four (4) fingers had been chopped off from his right hand. That he had a deep cut wound on his left thigh and 3 cuts on his back, with one cut being above his waist which led to lumbar fracture of the lower spine.

24. The Doctor explained that as per the postmortem report, the 2nd cut was on the back below the shoulder but it was not a deep cut. That there was a vertical cut on the chest below the collar bone extending on the collar bone on the chest, which did not penetrate deep. PW6 stated that Dr. Abdala formed the opinion that the cause of death was severe injuries and hemorrhagic shock caused by wounds inflicted by a sharp object. PW6 produced the postmortem report as an exhibit.

25. On being put on his defence, the accused person stated that he was a shamba boy and that on the night of 28th and 29th July, 2016, when the offence was alleged have occurred, he was at Pangumbweni village in Kinango Sub-County, in the place where he works as a shamba boy. He stated that he was called by his brother Joseph on the morning of 29th July, 2016 at 8. 00 a.m., and he was informed that there was a dead man who had been found outside his house.

26. That at 10. 00 a.m., the Assistant Chief called him and told him to go to Kinango Police Station, where he reached at 1. 00p.m. That he was interrogated and he said that he did not know what had happened at his house. He was then locked up at the Police Station. The accused person stated that he heard the evidence a police officer who testified that his wife told them that he was the one who committed the offence but she also told the police that she is the one who had killed the deceased and that she led the police to the place where 2 pangas and a log were recovered. He denied ever having met the deceased.

27. Mr. Muthomi, Prosecution Counsel filed written submissions on 24th February, 2020 on behalf of the DPP. He cited the case of Republic v Tabere S/o Ochen (1945) EACA 63, where the Court held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused person before, during and after the attack.

28. He also relied on the case of Ogelo v Republic (2004) 2 KLR 14, where the Court held that malice aforethought can also be inferred from the manner the killing was executed.

29. Mr. Muthomi stated that the evidence on record indicates that the deceased and the wife of the accused person had a love affair and PW2 stated that the accused person had reported about it to PW4. That PW4 testified that the deceased refused to pay “Malu”, the fine for having an affair with another man’s wife and that the accused person had threatened him.

30. The Prosecution Counsel submitted that PW5, Inspector Albert Mwiti testified that on making inquiries, he was told that on 29th July, 2016 at around 1. 00 a.m., the accused person woke up and sat on the bed and his wife asked him why he had woken up and he told her that he had heard a knock at the door. That the accused person then went outside the house and a voice was heard saying “mmeniua”. That PW5 was able to establish that the deceased had a love affair with the accused person’s wife.

31. Mr. Muthomi submitted that the accused person was aware that the deceased was involved in a love affair with his wife and that there is an irresistible and unbreakable chain which circumstantially shows that the accused person had malice aforethought to kill the deceased. He urged this Court to find that malice aforethought was established by the actions of the deceased. He submitted that even though there was no eye witness who saw the incident, there was ample circumstantial evidence to point that the accused caused the death of the deceased. He relied on the decision in Abanga alias Onyango v Republic Criminal Appeal No. 32 of 1990 and Sawe v Republic [2003] KLR 364, to illustrate what constitutes circumstantial evidence.

32. Mr. Muthomi submitted that the deceased’s body was found outside the house of the accused person and there was a clear disagreement/grudge between him and the deceased because the latter was having an affair with the wife of the accused person.

33. He further submitted that although the wife of the accused person was the only witness who was present when the incident took place, she was not a compellable witness for the prosecution but the accused person had the right to apply in Court to have his wife come and testify in this case. Mr. Muthomi expressed the view that during cross-examination, the accused person was cagey when the question was put to him as to whether he would be calling his wife as a defence witness. He urged this Court to draw the inference that failure by the accused person to call his wife to come and testify was because she would have given testimony that would be adverse to him.

34. Mr. Muthomi contended that although the accused person claimed to have been away on the night of the incident, as he was working for his boss, he never produced anything tangible to support the assertion.

35. Ms Chala, the defence Counsel filed her written submissions on 14th January, 2020. She stated that all that the prosecution witnesses said in Court was that they had been told by the accused person’s wife that it was the accused person who had killed the deceased. She submitted that there was no direct and/or independent evidence adduced by the prosecution in this matter.

36. She stated that the storyline in the prosecution’s case is that the wife of the accused person is the only person who implicated her husband of having committed the murder. Ms Chala stated that it follows that whatever the other witnesses said in Court as having been told by the accused person’s wife amounts to hearsay and cannot be admitted to be used to convict the accused person.

37. She submitted that apart from such evidence amounting to hearsay, the Court should take note that what was stated by the Investigating Officer in Court when he testified was that the accused person’s wife first implicated herself as having committed the crime, then she later on implicated her husband. Ms Chala contended that the two versions as explained by the Investigating Officer raise serious doubt as to the statements of the accused person’s wife because one is left to wonder whether it was the accused person or his wife who committed the crime. She wondered if there was any direct evidence connecting the accused person to the crime because the statements made by the accused person’s wife were rather conflicting and contradictory as per the evidence of the Investigating Officer.

38. Ms Chala stated that due to the glaring unresolved questions, it follows that the prosecution did not prove its case beyond reasonable doubt to warrant the conviction of the accused person.

39. In regard to the provisions of Section 127(2)(iii) of the Evidence Act, Ms Chala submitted that the accused person’s failure to call his wife cannot form the basis of any arguments as advanced by the prosecution. She submitted that the law bars the prosecution from calling her evidence and the accused person cannot be condemned just because he did not call her as his witness. She prayed for the accused person to be acquitted of the charge facing him.

Determination 40. The issues for determination are-i.If the accused killed the deceased;ii.If the answer to issue No. 1 above is in the affirmative, whether he killed the deceased with malice aforethought.

If the accused killed the deceased 41. There was no eyewitness to the commission of the offence. If the accused person’s wife witnessed anything, the prosecution could not compel her to testify against her husband, the accused person. Despite Mr. Muthomi’s invitation for this Court to make a negative inference from the fact that the accused person did not call his wife as a witness, this Court cannot do so in light of the proviso to Section 127(2) of the Evidence Act. The said Section states as follows-“In criminal proceedings every person charged with an offence, and the wife or husband of the person charged, shall be a competent witness for the defence at every stage of the proceedings, whether such person is charged alone or jointly with any other person:Provided that—(i)the person charged shall not be called as a witness except upon his own application;(ii)save as provided in subsection (3) of this section, the wife or husband of the person charged shall not be called as a witness except upon the application of the person charged;iii.the failure of the person charged (or of the wife or husband of that person) to give evidence shall not be made the subject of any comment by the prosecution. (emphasis added).

42. The evidence adduced by PW4, Jonathan Kombe, the Chief of Kinango location was that on 29th July, 2016 at 6. 00 a.m., PW3 went and told him that there was a person who had been killed at the home of the accused person.

43. PW4 went to the scene and saw that the deceased’s body had been cut on the hands and crashed on the head. The said body was outside the house of the accused person. The said witness described the multiple cuts he saw on the deceased’s head and hands. PW4’s evidence was that the accused person’s wife told the police in his presence that she was the one who had killed the deceased. Other witnesses such as PW1, PW2, PW3 and PW5 visited the scene of crime and found the deceased lying outside the accused person’s house with multiple cut wounds. The Doctor who conducted the postmortem gave a detailed description of the injuries he found on the deceased’s body. From the evidence of the witnesses who testified, it was apparent that the deceased’s death was caused by a vicious attack on him and that he was unlawfully killed at the scene where his body was found.

44. In regard to the identity of the person or persons who killed the deceased, according to PW4, the accused person’s wife informed them that she was the one who had killed the deceased. According to the Investigating Officer PW5, she incriminated the accused person as she said that when he went out of the house at night, she heard someone say “mnaniua.”

45. The accused person’s wife was not a compellable witness for the prosecution and so she was not called to testify for the prosecution. The accused person had initially stated that he would call her as his witness but he later on changed his mind after making his defence. Such a change of heart cannot be used against him or be made an issue of comment by the prosecution as Mr. Muthomi did.

46. Since there is no direct evidence as to the identity of the person who killed the deceased, this Court will rely on circumstantial evidence. What is clear is that either the accused person or his wife or the two of them committed the offence. In order to resolve the said issue, it is important to look at what constitutes circumstantial evidence. One of the decisions on what constitutes circumstantial evidence is Abanga alias Onyango v Republic Criminal(supra) where the then East Africa Court of Appeal held that–“(i)The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.i.Those circumstances should be of a definite tendency pointing towards guilt of an accused.ii.The circumstances taken cumulatively should form a chain to complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and no one else.iii.The circumstances and facts must be absolutely incompatible upon reasonable hypothesis of the accused and incapable of explanation other than that of guilt of the accused.”

47. The evidence as adduced by PW4, the Chief of Kinango location was that the accused person and his wife had a disagreement and he had reported to PW4 in his office that the deceased was having an affair with his wife. That when he called the deceased, the accused person, and the accused person’s wife to his office, she said that it was true that she was having an affair with the deceased. The deceased however refused to pay a fine, “Malu”, for having an affair with someone else’s wife. PW4’s evidence was that the accused person had threatened the deceased and he gave him a letter to take to the police. That he went to Kinango Police Station but the police asked him for fuel to go and arrest the accused person. The deceased said he did not have anything and the matter ended there.

48. The above evidence clearly points to the fact that the accused person was cuckolded and in the said circumstances, the person who would have wanted to get rid of the deceased was the accused person and not his wife, who had already submitted to the wiles of the deceased.

49. The accused person raised an alibi defence to the effect that he was at his employer’s place of work on the night of the incident. He said that his place of work was 10 minutes away from his house but he used to go home after every 3 months. That on its own sounds unbelievable, that a man whose wife and family was only 10 minutes walking distance away from his work place would only see them every 3 months. It is also not lost to this Court that the accused person never informed the prosecution early in the case that he would be raising an alibi defence. In so doing, he denied the prosecution an opportunity to cross check the veracity of his alibi. It is also evident that the accused person had lied in his defence when he claimed not to know the deceased, yet he had complained to PW3 and PW4 about the love affair his wife was having with the deceased.

50. The Court in the case of R v Sukha Singh S/o Wazer Singh & others [1939] 6 EACA 145 held as follows-“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there is naturally a doubt as to whether he has not been preparing it in the internal and secondly, if he brings it forward at the earliest possible moment it will give the prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness, proceedings will be stopped.” (emphasis added)

51. Having taken into account the circumstances of this case, I am satisfied that the person who killed the deceased is the accused person. I reject his alibi defence as being untruthful.

52. The Court of Appeal in the case of Ahamad Abolfathi Mohammed & another v Republic [2008] eKLR had the following to say on circumstantial evidence –“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Howard CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donavan [1928] Cr. App. R. 21“It has been said that the evidence against the applicant is circumstantial. So it is, but circumstantial evidence is often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematic. It is no derogation from evidence to say that it is circumstantial.” (emphasis added)

53. This Court’s finding is that based on the circumstantial evidence on record, the inculpatory facts point to the guilt of the accused person as a cuckolded husband. The said facts are incapable of any reasonable hypothesis other than that of his guilt. I therefore hold that the accused person is the one who killed the deceased.

54. As to whether he had malice aforethought, the evidence shows that the deceased was found lying dead outside the accused person’s house. The deceased had no business going to the accused person’s homestead at night, more so because his wife had admitted before PW4 that she was having an affair with the deceased. It is evident that the deceased picked on the wrong night to visit his lover, as on the material night, the accused person was in his house. His visit to the accused person’s house was provocation of the highest order. Having been told to pay the traditional fine “Malu”, the deceased was unable to do so. Good logic would have dictated that he should never set foot on the accused person’s homestead ever again after the admission made by the accused’s wife of having been in an illicit relationship with the deceased.

55. This Court’s finding is that the charge of murder contrary to Section 203 as read with 204 of the Penal Code was not proved beyond reasonable. I however make a finding that the accused person is guilty of the lesser charge of manslaughter as he was propelled by provocation, to commit the offence.

56. I therefore convict the accused person for the offence of manslaughter contrary to Section 202 as read with 205 of the Penal Code.

DATED, SIGNED AND DELIVERED AT MOMBASA IN OPEN COURT ON THIS 30TH DAY OF JUNE, 2023. NJOKI MWANGIJUDGESentence1. This Court notes that the accused person’s wife had admitted before the Chief (PW4) to having an adulterous affair with the deceased. The fact was known to the accused person who lodged the complaint.2. It is therefore apparent that the accused person was provoked when the deceased went to his homestead at night. It could only have been in pursuit of the illicit love affair.3. The accused person however took the law into his hands by killing the deceased, instead of taking him to the Chief or to the police.4. For the said reason the accused person will serve three (3) years imprisonment from today.DATED, SIGNED and DELIVERED at MOMBASA in open Court on this 30th day of June, 2023. NJOKI MWANGIJUDGEIn the presence of:Accused personMr. Otieno h/b for Mr. Aming’a for the accused personMs Nyawinda, Prosecution Counsel for the DPPMs Bebora Mwaka – Court Assistant.