[2023] KEHC 25818 (KLR)

Republic v Mwachari (Criminal Case 3 of 2019) [2023] KEHC 25818 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25818 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Case 3 of 2019

GMA Dulu, J

November 21, 2023

Between

Republic

Prosecutor

and

Paul Mwalenga Mwachari

Accused

Judgment

1. The accused person herein stands charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of offence are that on 20th March 2019 at Lukasini village in Tausa Location within Voi Sub County in Taita Taveta County beat up and burnt Othiniel Mwachari Andrews who suffered severe injuries resulting in his death.

2. He has denied the charge. In proving their case, the prosecution has called 11 witnesses.

3. PW1 is Jafferson Mwawasi Mwachari a brother of the accused whose evidence is that on 20th March 2019 at 1:00a.m when asleep at home, Mwalenga the accused knocked at his door and informed him that he had found a witch sitting on his fathers grave and further that he would deal with him.

4. According to this witness the accused cautioned him not to come out, but the witness after a short while came out and proceeded to call an uncle Wilfred Mvoi who was Chairman of Nyumba Kumi in the area.

5. It was his further evidence that when the Chairman came near, Paul the accused wanted to assault him, as he did not want the said Mvoi (Chairman) to move near.

6. The witness however did not see the alleged witch, though Paul (accused) had indicated that the witch was Mwachari Andrew. Due to the hostile situation, Mvoi ran away and the witness entered his house to sleep, until 4:00a.m when the children of the deceased Sammy and Andrew came and asked whether their father had been killed.

7. This witness accompanied the said children of the deceased and about 5 meters to the witnesses brother’s (accused) house, they found the burnt body of the deceased, and later the accused was woken up by police and arrested.

8. According to this witness, his father had died earlier from an ailment, but the witness was not aware that the deceased was a witch. According to the witness the accused was armed with a stick when he woke him up that night and was drunk.

9. In cross-examination he stated that the accused’s house and his house were in the same compound. He did not see the deceased before calling the Nyumba Kumi Chairman. He knew it was Paul who killed Mzee Mwachari because Paul told him that he was going to deal with him and told him not to get out of the house.

10. He said Paul was taken from the house between 4:00a.m and 5:00a.m. He stated that the deceased’s body was found 5 meters from Paul’s house, while his father’s grave was 6 to 7 meters from where the body was found. He confirmed that Paul physically struggled with the Nyumba Kumi Chairman, and that the witnesse’s home was 25 meters from the accused’s house.

11. He also stated that the police took measurements of the scene to establish distances. He stated that the deceased’s home was 2km to 3km away, and that there was no moonlight and nobody raised alarm.

12. PW2 was Wilfred Mwai Mvoi of Lukasini village, an uncle of the accused person and also related to the deceased. It was his evidence that on 20th March 2019 at 1:00a.m he was asleep when his brother’s daughter Wasari Mwasingu called him to inform that Paul the accused was beating someone. As Nyumba Kumi elder, he hurriedly proceeded to the scene about 200 meters away, and met Jafferson Mwawasi who also told him that Paul was beating someone.

13. He and Jafferson then proceeded on and asked Paul what was happening whereupon Paul beat him, and when he felt that Paul would overpower him, he ran away. According to this witness the mother of Paul was at the scene and tried to persuade Paul not to beat the witness.

14. The witness then called Mbithe the Chairman of the Nyumba Kumi cluster, who advised him to report the incident at Tausa Police Station. It was his evidence that Mbithe and Mwakodi phoned Voi Police Station, who came at 3:00a.m. Before the police arrived Mbithe and Mwakodi proceeded to the scene and found that Mzee Othiniel had been killed.

15. Then many people gathered at the scene, and the police came later and found that the accused had locked himself in the house. He also stated that before going to Tausa Police Station, they saw the accused preparing firewood, and when they came back they found that Mzee Othiniel had been burnt.

16. He stated also that he had related well with Paul the accused and did not know him as a drunkard, though on that night during his attack by Paul, he noted that he was drunk, but not armed. He stated that the deceased was his brother and knew that Paul had returned home recently from Thika. He stated that Jafferson and Paul were children of same mother.

17. In cross-examination he stated that there was no moonlight and that he found Paul and the mother together at their home. He did not witness Paul doing anything. He also did not see any fire near the body of the deceased and came back to find a crowd of people together with the sons of the deceased. He confirmed that Paul and Jafferson were sons of his brother.

18. PW3 Petronila Mbithe Wambua, a village elder of Lukasini village stated that she knew Paul who hails from the village. She also knew the deceased Othiniel Mwachari from a nearby village. It was her evidence that on 20th March 2019 at 1:30a.m she was woken up by a phone call from a village elder who spoke in fear, and she called him back and he informed her that Paul was beating someone. She then advised them as members of the Nyumba Kumi to proceed to the scene and the caller then told her that Paul was aggressive. She then called the area Chief Naftally Ngeli, and Jeremiah Mwakodi a member of the community policing because the Chief did not respond.

19. According to this witness, Mwakodi called the incharge Tausa Police who advised that they go to Tausa, and she together with others like Mvoi proceeded to Tausa where they were given contacts of the OCS Voi Police Station and they called there and made a report. Shortly, they received phone information from the village elder that Paul was burning something at the scene. The police then advised them to go back to the scene and, on arrival at a valley, they saw the body of the deceased having been burnt with the hands appearing to be in defensive mode. They then proceeded to the house of Paul where they saw the door bolted from outside, and a crowd gathered with the deceased’s body about 10 meters away from Paul’s house. She then phoned the OCS and informed him that they had found the deceased already killed and burnt. She gave the OCS the directions and he later arrived, entered the house and brought out Paul.

20. It was her evidence that on interrogation, the accused stated that he found the deceased sitting on his father’s grave. It was her evidence also that police took photographs at the scene at 6:30a.m and collected the body, and that Paul lived at Thika for long, and came back and in less than one month he committed the offence. According to this witness Paul was a drunkard, and the deceased also took beer. Though nobody had informed her that Paul was a witch, Paul told the police that he was a witch.

21. In cross-examination, she stated that a mattress was used in burning the deceased. She stated that from the house of the brother of Paul, one could see the scene of incident.

22. PW4 was Wilfred Walter Msumba Msafari a resident of Mwololo in Lusikani village who sold alcohol and knew both accused and the deceased. He stated that on 19th March 2019 at 6:30p.m the deceased passed by his joint and bought palm wine worth Kshs. 200/= There was also another customer by the name Hudson who made a phone call to a relative from Mombasa who sent Kshs. 200/= through the phone for palm wine. These customers consumed palm wine which ran out at 10:00p.m when the deceased, Judah, and Katana left.

23. At 3:00a.m, he received a phone call from Andrew, a son of the deceased, asking if he had seen the deceased. According to this witness the accused had passed by the bar at 2p.m the previous day. He was not aware of an, existing grudge between deceased and accused.

24. PW5 was Dr. Joena Wali Nyatta of Moi Referral Hospital Voi, who testified in respect of a post mortem examination report on the deceased prepared by Dr. Mliwa who had left County Government Service. The report was on Othiniel Mwachari Andrew a male African about 80 years old. The body was stiff, with wounds on the scalp 3x2cm, facial wounds in the mouth, nostrils, and eyes covered with soil, burn wounds in abdomen exposing bones 4th degree in nature, multiple bruises on back, extensive burn wounds on upper limbs exposing bones and muscles, lower limbs also extreme burn wounds covering up to knee area. Cause of death was cardio pulmonary arrest due to multiple organ injury (heart and lungs) as a result of burnt force trauma with 4th degree burn wounds estimated to be 80% of total body.

25. PW6 was Jeremiah Mwakodi Mwaliwa a farmer in Tausa area who on 20th March 2019 at 1:30a.m received a phone call from Petrolina Mbithe – the Chairperson of cluster Nyumba Kumi who informed him that she had received information that someone had been killed. He then advised her to report the incident to the police and proceeded to the place and, on arrival, met Petrolina and made a phone call to IP Shukri of Tausa Police Station who advised that they go to the station and book a report.

26. Together with Wilfred Mvoi, they proceeded to the police station and made a report and IP Shukri then told them to go back to the scene, where on arrival they saw the body of the deceased Othiniel Mwachari having been burnt, and a crowd of people already gathered. The police later came to the scene, took photographs and removed the suspect (Paul) from inside the house.

27. PW7 was Judah Raghasi whose evidence was that he had drinks with the deceased and Wilfred Mshimba at Mzalenyi bar up to 10:00p.m when the bar owner closed shop, and they went home. Next day he learnt that Othiniel had been killed. He was informed that Paul was the killer.

28. PW6 was Mwidadi Omari a Government Analyst from Mombasa. His evidence was that he received an exhibit memo and exhibits from PC Michael Kokani with instructions to conduct DNA tests. It was his evidence that the trousers exhibit B generated DNA results that marched DNA profile of exhibit A the blood sample. Exhibit A was blood sample of the deceased.

29. PW9 was IP Peter Kyalo forensic crime scene investigator – DCI Voi. It was his evidence that he proceeded to the scene with IP Mwanzia and other police officers from Voi Police Station. He took 5 photographs at the scene which he produced as exhibits.

30. PW10 was PC Samuel Magangha Mwachari a son of the deceased, who was on leave at the time of incident. On 20th March 2019 at 3:00a.m he was woken up by a phone call from Salim, a step brother of the deceased, who informed him that he had received information that the father of the witness had been beaten and killed.

31. This witness then enquired on phone from his mother about the whereabouts of the father, and the mother stated that the father (deceased) had not returned home. The witness then phoned Mshimba who sold alcohol from to his father, who said that the deceased had left his bar at 10:00p.m in company of Judas. When Salim disclosed that he had received information that his father had been beaten at Paul Wakedi’s house, they proceeded there.

32. On arrival with his son Kevin and his brother Andrew, they found the home of Paul totally quiet. They then proceeded to the house where Paul slept, and though Andrew called Paul’s name, there was no response. They then pushed the door open and using a spotlight saw the accused sleeping across the bed with legs touching the ground and they then locked the house from outside.

33. They then knocked at Mwawasi’s house nearby who came out in a T-shirt and told them that Paul had beat their father near the grave of Paul’s father to death. According to this witness, Paul was brother to Andrew.

34. They then proceeded to the scene and identified the body of the deceased, and raised the alarm attracting the public to come. The members of the public bayed for the accused’s blood but they restrained them. Police later came from Voi and took over the matter, and arrested the accused. This witness identified his father during post mortem examination on 27th March 2019 as the body had ring finger.

35. PW11 was Cpl. Michael Kokani of DCI Voi. It was his evidence that he joined other officers including OCS, CIP Mwania to the scene. They found the accused person in bed wearing a blood stained pair of trousers and blood stained shoes. No weapon was recovered.

36. This witness carried out investigations and blood sample of deceased was taken during post mortem examination. He also took the grey trousers of the accused and blood sample to the Government Chemist in Mombasa. He produced the pair of trousers as an exhibit.

37. According to his investigations, the accused found the deceased at the accused’s father’s grave, and the accused thus suspected the deceased to be a witch, thus the assault. That was the prosecution evidence.

38. In his long sworn defence, the accused person denied killing the deceased. He stated that he was very drunk that day and went home and slept only to be assaulted later and told that he had killed somebody, which he denied. He was cross-examined at length but maintained his denial.

39. At the close of the case, both the Director of Public Prosecution and the defence counsel Mrs. Isika filed written submissions.

40. This is a case of murder. The prosecution had the burden to prove all the elements of the offence see Section 107 of the Evidence Act. This being a criminal case, the standard of proof is beyond any reasonable doubt.

41. Did the deceased die? The evidence of the prosecution is clear that PW1, PW2, PW3 and even the police went to the scene after the incident on 20th March 2019. They found the body of a male African extensively burnt and dead. The police took the body. The doctor conducted post mortem examination at Moi Referral Hospital Voi on 27th March 2019 and the cause of death was established as blunt trauma, and burning of the body. The body was charred by burns but identified by relatives through a known ring which he wore.

42. In my view, the prosecution proved beyond any reasonable doubt that the deceased died and the cause of death was as found by the doctor who conducted post mortem examination, which was blunt trauma, and burning.

43. Was the death unlawful? No reason was given to justify the death as lawful. The circumstances of the death and the way the deceased was burnt shows no indication of resemblance of any lawful act. There was no justifiable reason for the death. I find that the prosecution proved beyond reasonable doubt that the death was unlawful.

44. Was the death of the deceased caused by the accused person? The prosecution says so. The accused person has strongly denied that allegation.

45. No one saw the accused person herein killing the deceased. This is thus a case of circumstantial evidence. The prosecution has to show that the inculpatory facts are consistent with the guilt of the accused, and there should be no other explanation than that of guilt – see Sawe v Republic (2003) eKLR.

46. The evidence here is that of PW1, PW2, PW3, PW4 who stated that they knew both accused and deceased before. The accused person specifically told PW1 that he had seen the deceased sitting at the grave of the late father of the accused, and that he would deal with him. Attempts of his own brother PW1 and PW2 to intervene were met with hostility from the accused person.

47. The dead body of the deceased was found shortly thereafter near the house of the accused person. The accused person wore a pair of trouser stained with blood stains which the DNA test established to march that of the deceased.

48. In my view, the prosecution proved beyond any reasonable doubt that the accused person herein killed the deceased.

49. Was the death caused with malice aforethought? Malice aforethought is defined under Section 206 of the Penal Code (Cap.63) as an intention to cause death or do grievous bodily harm. In my view, the death herein was caused with malice aforethought.

50. In my view, there was no sudden provocation of any nature as the mere fact of a drunken old man sitting near a grave is no provocation at all. In any event, the accused had ample time to cool down, as he did not act immediately but went to tell his brother PW1 first before killing the deceased.

51. The nature of injuries also were so vicious that one cannot say that there was no intention to kill, as the nature of injuries were such that death would occur in any case.

52. I thus find that the prosecution proved malice aforethought beyond any reasonable doubt that the death herein was caused with malice aforethought.

53. Consequently and for the above reasons, I find that the prosecution proved beyond reasonable doubt that the accused person herein murdered the deceased. I thus find the accused person herein guilty of murder contrary to Section 203 as read with Section 204 of the Penal Code and convict him accordingly.

DATED, SIGNED AND DELIVERED THIS 21ST DAY OF NOVEMBER 2023 AT VOI.GEORGE DULUJUDGEIn the presence of:-Mr. Sirima for StateMr. Mosioma holding brief for Mrs. Isika for accusedAccused