https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11610

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL CASE NO. E014 OF 2022** **REPUBLIC …..……………….......……………………..……………………….. PROSECUTION** **VERSUS** **MUNGA BARAKA MWANGEMI ………….….........……………………..………....ACCUSED** **JUDGMENT** 1. The accused Munga Baraka Mwangemi is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on 8.3.2020 at Kilifi Town, Kilifi North subcounty, Kilifi County, the accused murdered Pendo Charo Konde. 2. The Accused person pleaded not guilty to the charge. In the trial, a total of 6 witnesses testified for the prosecution. 3. In her testimony, PW1 Sanita Muhabi Fondo stated while at home at 1pm on 8.3.2020 her daughter, the deceased took her (PW1’s) phone to answer a call from the accused. The deceased told the accused that she would go to him once she finished cooking lunch. She left after lunch and did not return. The following day 9.3.2020 at 9am, PW1 phoned the accused to ask him the whereabouts of the deceased who told her he was not with her. When PW1 phoned her sister Maggie Fondo to report the matter, her sister told her that the deceased was a wife to the accused. Further that the accused’s wife had told the deceased that she would be finished for having a relationship with another woman’s husband. She further testified that on 11.3.2020 while selling *mahamri*, to 2 women, they said that a body in a very bad state had been recovered at Mzungu’s plot. She went there and found the body being retrieved from a septic tank. The body was that of her daughter and was taken to Kilifi Mortuary where she identified it. She then recorded her statement. 4. In cross examination, PW1 stated that the deceased did not call her to tell her she had arrived and was with the accused. She did not witness how the deceased’s body was placed in the septic tank. She also stated that the accused did not come for the deceased from her home. 5. PW2 Aisha Akiba the deceased’s sister, corroborated PW1’s account having been present when the accused called the deceased and directed her to go to his workplace near Makuti Villa. The deceased left and was later found dead in a septic tank at the accused’s place of work. In cross-examination, PW2 stated that she could not recall the exact time the deceased left home and that she did not know how her body got into the septic tank. 6. PW3, Pole Chibungu, stated that he, James Riono and the accused worked at a construction site belonging to Lilian Chebet, where the accused was the foreman. He stated that on Sunday 8.3.2020, James informed him that he saw the accused coming from the direction of the septic tank, shirtless, full of sweat and holding a crowbar. He and James found the padlocks to the tool store and James’ room had been broken. In the tool store, they found the crowbar had been broken and had been welded. In James’ room, there were signs of a struggle, the net was torn and plastic seats, and jugs were in disarray. They also saw marks of something that had been dragged from the door up to the unused septic tank. The lid to the septic tank was broken. When the accused reported to work the following morning Monday, he placed new locks in the tool store and James’ room. When we told him about the septic tank, he asked if we had opened the same. At 1pm, he told them to stop working and return the tools to the store. 7. PW3 went on to testify that on Tuesday morning, the accused told him that he and James would handle the work as he would not be working that day. PW3 noticed that the accused had nail scratch marks on his cheeks and neck and on inquiry, he said that he had disagreed with his wife. When PW3 completed the work at 10am, he called the accused but could not reach him. They decided to inform their boss of what had transpired and she informed the police. When the police came, PW3 and James led them to the store, James’ room and the septic tank. The drag marks were still visible. Upon opening the septic tank, a body was seen therein. The body was retrieved the following morning and taken to the mortuary. They then recorded statements at the DCI. 8. In cross examination, PW3 stated that he did not see or know what had been dragged to the septic tank and neither did he see the deceased’s body being placed in the septic tank. He further stated that the deceased had tried to commit suicide because she had been told to stay away from the accused who was in a relationship with her younger mother. 9. PW4, Lily Chebet, the proprietor of the construction site, testified that she was in Eldoret on 9.3.2020 travelling to Kilifi by bus. She rested in her house in Vipingo and travelled to Kilifi the following day. She stated that she was informed by her workers James and Baraza that the septic tank had been broken and that something had been dragged from the house to the septic tank. She reported the matter to police. The police came and when the septic tank was opened they saw a human being in it. She confirmed the accused had worked for her as a foreman for approximately one year. In cross-examination she conceded she was not present when the incident occurred. 10. PW5, Dr. Ruth Nyangi, a Consultant Pathologist at Kilifi County referral Hospital, testified that she conducted the post-mortem on the deceased’s body on 12.3.2020 at the Kilifi County Hospital Mortuary. She stated that she found early decomposition changes consistent with death having occurred approximately three days earlier. She stated that the deceased had multiple fractures to ribs 1–7 on the right side and the right clavicle was fractured just above the ribs. PW5 formed the opinion that the cause of death was chest and clavicular injury due to blunt force trauma. 11. PW6, No. 214318 Inspector Dominic Omondi, the investigating officer, testified that on 10.3.2020 he received a report that a dead body had been discovered in a septic tank. With the help of the fire and rescue team from Kilifi County, the body was retrieved and taken to Kilifi mortuary pending post mortem. The body was identified by PW1 and other family. PW6 recorded statements from various persons including the accused’s co-workers at the construction site. It was established that the accused had called the deceased to the construction site on 8.3.2020, where she was last seen alive. PW6 further testified that the accused became unreachable as his phone was off and everyone was looking for him. He therefore became the prime suspect. Thereafter, they were able to trace him using their intelligence system and arrested him in Kaloleni. The accused was then charged with murder. 12. In cross-examination, PW6 stated that call data records showed communication between the accused and the deceased’s mother. 1. On 13.10.2025, this Court found the accused had a case to answer and placed him on his defense. 2. DW1, Simeon Ouma a carpenter resident in Kisumu, testified that he knew the accused as they worked together in construction sites. He stated that the accused went to Kisumu on 15.2.2020 when he called him for work at Uhuru market. He stated that on 8.3.2020, they were together and thereafter until 30.6.22 when the accused was arrested. 3. In his sworn statement, the accused denied the charge and stated that between March 2020 and June 2022, he was working in Kisumu. He testified that on 8.3.2020, he was in Kisumu engaged in construction work at Uhuru Market. He got to know of the opportunity through DW1. He stayed in Kisumu until 30.6.22 when he was arrested and taken to Kisumu Central Police Station. 2 days later, he was taken to Kilifi Police Station. Thereafter he was charged with murder. 4. In cross examination, the accused stated that he knew PW1 and PW2. Further, that the deceased was his girlfriend from 2017 to 2019 when they separated. He stated that he booked his bus fare to Kisumu online and was unable to produce the receipt as the ticket was sent to his phone. 5. I have considered the evidence adduced herein together with the submissions filed by the defence. The prosecution opted to rely on the record. The question to be determined by this Court is whether the prosecution has proved its case against the accused, beyond reasonable doubt. 6. The accused is charged with the offence of murder, which is provided for in Section 203 of the Penal Code as follows: ***Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.*** 1. Section 204 provides that the punishment for a person convicted of murder shall death sentence. 2. In **Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR)** the Court of Appeal set out the elements of the offence of murder as follows: ***For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.*** 1. The fact of the death of the deceased is not disputed. The post-mortem report was produced by PW5 confirming the death of the deceased. 2. The next question that must be determined, is whether it is the accused who committed the unlawful act which caused the death of the deceased. 3. From the evidence on record, there is no eye witness account as to how exactly the deceased met her death. The evidence herein is entirely circumstantial. It is trite that in such a situation, for the inference of guilt to be justified, the inculpatory facts must be inconsistent with the innocence of the accused. 4. In **Sawe v Republic [2003] KECA 182 (KLR)**, the Court of Appeal stated: ***In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of Iris guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on.*** 1. The circumstances of the instant case are that PW1 and PW2 were present when the accused called the deceased on PW1’s phone on 8.3.2020 at about 1 pm and heard her tell him that she would go to him once she finished cooking lunch. The deceased left home to go and meet with the accused and did not return, only for her dead body to be found in a septic tank on 10.3.2020. The deceased and the accused were in a relationship and this is stated by PW1, PW2 and PW3. The evidence of PW3 is that the accused was seen at the construction site on a non-working day walking from the septic tank in which the deceased was found. He was shirtless, full of sweat and held a crowbar. The locks to the tool store and James’ room were found to have been broken but the accused replaced them with new ones on Monday. There were signs of a struggle in James’ room, the net was torn and plastic chairs and jugs were in disarray. There were marks of something being dragged from James’s door to the septic tank. The lid to the septic tank was broken. In the tool store was a crowbar which was broken but had been welded. The accused had nail scratches on his cheek and neck. On being asked about the broken lid of septic tank the accused asked PW3 if they had opened the same and told them that the same did not concern them. Later that day, the accused left work and switched off his phone and was never seen again. 2. The totality of this circumstantial evidence taken together forms an unbroken chain of events which irresistibly point not only to the guilt of the accused but is also incompatible with his innocence. There can be no conclusion other than that the death of the deceased was caused by the accused. 3. Having found that the death of the deceased was caused by the unlawful act of the accused, the next issue for determination is whether the accused had malice aforethought. 4. Section 206 of the Penal Code provides: ***Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—*** 1. ***an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;*** 2. ***knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;*** 3. ***an intent to commit a felony;*** 4. ***an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.*** 5. The factors that constitute malice aforethought are intention to cause death or grievous harm, knowledge that the act or omission causing death will cause death or grievous harm to some person. It is immaterial that the person is actually killed or not. An intent to commit a felony and an intention by act or omission to facilitate escape from custody of a person who has committed or attempted to commit a felony all constitute malice aforethought. 6. In **Morris Aluoch v Republic [1997] KECA 29 (KLR)**, the Court of Appeal had this to say on malice aforethought: ***In the case of REX VS TUBERE S/O OCHEN (supra) the assault was of a serious nature causing severe injuries from which the victim died shortly afterwards. In that sense, the case of TUBERE is distinguishable. It was correctly pointed out in TUBERE case as follows;-*** ***“With regard to the use of stick(s) in cases of homicide, this Court has not attempted to lay down any hard and fast rule. It has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick; that is not to say that the Court takes a lenient view where a stick is used. Every case has, of course, to be judged on its own facts. The same remarks applies as regards the view that which this Court takes were a ruptured spleen is the cause of death.”*** 1. PW5’s testimony was that the deceased had multiple rib fractures together with a fractured clavicle. This discloses a forceful assault to a vital area of the body that is inconsistent with an accidental or trivial encounter. There is also the fact that the deceased’s body was recovered in a septic tank. Malice aforethought is self-evident and is indicative of an intention by the accused to cause the death of or to do grievous harm to the deceased. I accordingly find that malice aforethought was established. 2. The accused raised a defence of alibi. This defence was raised late in the day. I have nevertheless weighed the alibi against the totality of the prosecution evidence, as guided by the Court of Appeal which in **Juma Mohamed Ganzi & 2 others v Republic [2005] eKLR**, stated: ***The trial Magistrate considered the case of each appellant separately. She weighed the defence of alibi of each appellant against the weight of the prosecution evidence. This is the correct approach where the defence of alibi is first raised in the appellant’s defence and not when he pleaded to the charge – see Wang’ombe v. The Republic [1980] KLR 149.*** 1. In their testimony, the accused and DW1 stated that the accused was in Kisumu at the material time. DW1 stated that the accused went to Kisumu on 15.2.2020. On his part, the accused stated that between March 2020 and June 2022, he was working in Kisumu. There is already a contradiction in their testimony. Notably, the accused did not specify the date in March 2020, when he went to Kisumu. Additionally, PW1 and PW2 stated that the accused called the deceased on phone and asked her to go to his place in Kilifi. Surely, the deceased could not have been going to visit the accused in Kisumu. Further, the testimony of PW3, a construction worker under the accused as foreman clearly placed him at the scene in Kilifi on the material date. He stated that they had been working together at the construction site in question for over a year. On her part, PW4 stated that the accused had worked for her as a foreman at her site in Kilifi and had worked for her for approximately 1 year. After weighing the accused’s alibi against the totality of the prosecution evidence, my finding is that the same was displaced by the prosecution’s evidence that squarely placed the accused at the scene. The accused’s defence of alibi thus fails. 2. In the end, I do find that the prosecution has proved its case against the accused beyond reasonable doubt. The accused is hereby found guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and is convicted accordingly. **DATED SIGNED and DELIVERED in MALINDI this 24th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **M. THANDE** **JUDGE**