[2022] KEHC 14691 (KLR)

Republic v Mweni (Criminal Case 28 of 2018) [2022] KEHC 14691 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14691 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 28 of 2018

A. Ong’injo, J

October 19, 2022

Between

Republic

Prosecution

and

Charo Mumbo Mweni

Accused

Judgment

1. The accused person Charo Mumbo Mweni faces 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 on the 2nd day of May 2018 at Mrima Minne village, Njunju location, within Kilifi County murdered Samini Khonde Khamisi alias Makmuga. The prosecution called 6 witnesses to support its case that the accused person committed the offence herein. Defence did not file submissions for no case to answer and the accused person was placed on his defence.

Prosecution Case 3. PW1, John Tsuma Kalenga stated that he lives in Juju location Milima Minne village in Kilifi County. That on April 30, 2018 at 7. 00 pm, he was drinking mnazi in a club in Milima Minne in the company of Bakei the owner of the club, Rogers Mgundulo, Sammy Konde and another person whose name he did not know when Charo Mumbo Mweni went to the club. PW1 stated that Charo Mumbo sat on the bench and ordered for mnazi. That Sammy Konde went outside leaving his bottle of mnazi in the club. He was then followed by Charo Mumbo but after 10 minutes, the two came back. PW1 stated that Charo Mumbo asked Sammy what he had put in his mnazi as it was bitter. That Sammy said he had put some medicine in it as he had a stomach problem. That Charo Mumbo told Sammy that he had put poison in the mnazi and started slapping Sammy who fell on the slab in the club. The two were taken out of the club by Bakei. PW1 stated that he continued drinking but after 10 minutes, Charo came back and called his brother Bakei where the two went outside and spoke. That Charo Mumbo went back to the club and informed them that he had finished with their person by the stairs and they should go and collect him from outside. PW1 stated that Bakei went back to the club but he refused to join the rest. That PW1, Rogers and Mwanjeni went to the steps leading to the club and found Sammy lying on the ground. They shone a torch on him and found that he was breathing but injured. PW1 stated that they parted ways with Rogers who said that he would pass by Sammy’s home and inform his family that he had been injured. PW1 stated that when he reached home, he tried to call Sammy and his brother but their phones were off. That the following morning before PW1 left his home, someone went and asked why he was still in the house and Sammy was about to die. PW1 stated that Sammy’s family went and took him to Vipingo hospital for treatment. Thereafter he was taken to Kilifi District Hospital but after 3 days they were informed that Sammy had died. PW1 stated that Rogers was requested by Sammy’s family to accompany them to Mtwapa Police Station where they recorded statements. That Charo Mumbo called PW1 and Rogers and told them that since they had recorded statements at the police station, he would deal with them. This threat was reported to the area sub-chief who informed the police about it. PW1 identified Charo Mumbo at the dock and stated that the accused is his neighbor and related to him, they have known each other since they were young and there is no grudge between them.

4. PW2, Lewa Kalama Hamisi stated that on 31. 4.2018 at 9. 00 am, he was called by his brother Lewa Ngura who told him that Sammy Konde had been attacked at night and was in a bad state near a certain kiosk. PW2 stated that he went there and found many people. That he tried to ask him what had happened but Sammy could not talk. That Sammy was taken to Vipingo Dispensary and was later referred to Kilifi District Hospital. PW2 stated that on May 2, 2018 in the morning, PW2 was informed that Sammy was dead. That he saw an injury below Sammy’s right eye, there was another injury beside the left eye, his leg was swollen at the ankle, and the right arm was also swollen. PW2 stated that he did not attend the postmortem of the deceased. He further stated that the deceased was known as Sammy Konde alias Makmuga, Uhuru, was born in 1963, he was his cousin but he did not have an identity card. That the name Hamisi is his grandfather’s name and that Sammy was also called Hamisi.

5. PW3, Dr. Ngali Mbuuko, a consultant pathologist at Coast General Hospital stated that he had a postmortem report. That he conducted the postmortem on May 16, 2018 at Kilifi and that the body was for Khonde Hamisi, a male African and it was well preserved. PW3 stated that he noted that there were injuries externally which included bruises on the head especially either side of the eyes. The left eye was swollen, the upper lip was torn on the right side, two front upper teeth were broken and one lower right tooth broken, there were bruises on both hands with right elbow fracture, and there was a fracture on the right leg. PW3 stated that internally he observed blood clot on the left side of the head, there was skull fracture, the brain was swollen, and there was pus formation on the base of the brain. PW3 stated that as a result of examination, he formed an opinion that the cause of death was due to hemorrhage and increased intracranial pressure following blunt trauma on the head. PW3 stated that he signed the postmortem report and produced it as MFIPI – EX P1.

6. PW4, Rogers Gundulo Mwangome stated that the deceased and the accused are his neighbors in the village, and he identified Charo as the accused in the dock. PW4 stated that on May 2, 2018 at 6. 00 pm, he went to buy a drink at a club operated by Karisa who is Charo’s brother. That he found Karissa and the deceased at the club and later John Barida and Mwamgeni Charo also joined them. PW4 stated that Charo left the club to sort out a commotion that had ensured in their home and when he went back to the club, he started taking his brother’s palm wine. When he finished, he also took the deceased’s palm wine and said that the drink had poison. When the brother checked, he saw some black particles inside. That the deceased person said he had health issues and what the accused person saw was medicine called suburi. That the accused person did not understand what the deceased had said and he questioned why the deceased had laced the drink with poison. PW4 stated that Charo started fighting the deceased and Karisa sent them out of the club. That Charo came back to the club and told his brother ‘Nishamaliza kule’. PW4 said that they asked what he meant and Charo told them to go and check and he left. That PW4, John and Mwamgeni Charo proceeded to the scene where the accused said he had left the deceased and they found him lying with legs on the path and head in the thicket. They checked and found the left eye was bleeding, the right hand was fractured, and the leg was also fractured. PW4 informed Karissa and the village elder about what they had seen and since it was raining, no one went to the scene. In the morning, PW4 was informed by his aunt that the palm wine tapper had died. That PW4 went to the scene of crime and found that the deceased had not died. PW4 stated that they did a fund raising and took the deceased to hospital but he was later pronounced dead. PW4 stated that he then went and recorded his statement at Mtwapa Police Station and that later when he went to the club and in the company of John Kalenga, Charo went and told them that before he is arrested, he will make sure he eliminates them because they were the ones spreading rumors that he had beaten the deceased. PW4 stated that he reported the matter to the village elder and Mtwapa Police Station.

7. PW5, Daudi Bojo stated that the deceased is his uncle and that on May 16, 2018, he went to Kilifi to identify the body of the deceased to his uncle for postmortem and that the deceased had injuries to the head, that he had a hole on top of the head which caused the crack to the skull. PW5 further stated that the accused person is also known to him as they come from the same area and he has known him since childhood. PW5 identified the accused in the dock.

8. PW6, No. 66707 CPL Kenedy Keter stated that he is attached to Narok DCI office but formerly worked in Kilifi County. PW6 stated that on May 12, 2018, Mr. Chesoli the DCIO Kilifi South assigned them an offence to investigate and that there was an assault case reported from Njunju sub-location. PW6 stated that the person was assaulted on April 30, 2018 while drinking palm wine in the evening. He stated that it was alleged that the Accused entered Jaro Brass while drunk and he took the deceased person’s palm wine and the Accused told the deceased it appeared his palm wine had been poisoned. PW6 stated that the owner of the club sent them away while it was raining and that the Accused person later returned and told those at the club that he had finished the deceased. That when the rain subsided, the revelers left the palm wine den and found the accused had murdered the deceased. PW6 stated that when he took over the investigation, he called the village elder and was told that there was someone who was injured and taken to Kijipwa Health Centre and was later transferred to Kilifi County Hospital where he died while undergoing treatment.

9. PW6 stated that the village elder told him the deceased was with Rogers Gundulo when they were drinking and that he was also with Lewa Kalama Hamisi, Mwangeni Charo and Charo Mumbo Mweni. He stated that he recorded statements of the other witnesses and gave PP2 to Rogers Gundulo to take to the Accused but he did not turn up as required. That when the Accused was served with PP2, he threatened to kill the elders who went to the station and recorded statements. When PW6 completed recording statements on May 16, 2018, postmortem was done. PW6 stated that the deceased person’s hand was twisted, the right side of the face was injured, and the left hand was also twisted. That photographs of the body were taken and in court. He stated that the Accused person was arrested by community policing and was escorted to Kijipwa Police Station, collected from Kijipwa and detained at Mtwapa Police Station where he was charged. The photographs MFIP2 (a) to (e) were certified at DCI headquarters Mombasa by the Scenes of Crime Officer who also appended his signature. PW6 stated that the letter he wrote to the scene of crime office dated 18. 6.2018 was in court and produced as MFI P3. The certificate as to photographs dated June 18, 2018 MFI P4. He produced photographs, the letter and certificates as Ex P2, 3 and 4. PW6 visited the scene and found the accused person’s house to scene was 20 meters. It had rained so PW6 did not see any blood stains. In cross examination, the Investigating Officer said that he relied on the statements recorded by witnesses to investigate the offence. He said that a quarrel started between the Accused and the deceased in the club but the owner of the club chased them away but when the Accused returned to the club one hour later, he told other revelers at the palm wine club that he had finished the deceased. He also said that the deceased succumbed to the injuries inflicted on him by the Accused five days later.

Defence Case 10. The Accused Person, Charo Mumbo Mweni, gave sworn statement and stated that he went to drink at a club in the evening when a scuffle ensured, that their colleague Uhuru got drunk and caused a commotion. That he uttered insults to the Accused person and he was removed from the club by Rodgers Vundulo and John Tsuma. The Accused person stated that when John Tsuma and Rodgers went back, he had finished his drink and decided to go home at about 8. 00 pm. The Accused Person stated that when he left the club, he found his wife outside who had gone to pick him, he accompanied her home which is 100 meters away, and on arrival, it started raining. That he had supper and slept. The Accused stated that the exchange between him and the deceased was the reason why he was connected to the murder. That the next morning when he was coming back from tapping palm wine, he learnt that the person that he had quarreled with had been killed. He stated that he left at 5. 00 am to go and tap palm wine, returned at 7. 00 am and that is when he learnt from the neighbours that the deceased had been killed. However, he stated that he was not told what had caused the deceased person’s death and while he was at home on May 25, 2018, the police went to arrest him and took him to Mtwapa Police Station. The Accused stated that he was neither told anything nor interrogated. That he does not know why or who killed the deceased, that he did not have any differences with the deceased and that he was framed in the murder. On cross examination by the prosecution, the Accused Person said that he had mistaken the deceased person’s drink for his that is why the deceased started insulting him, that they pushed each other and that is why the deceased was removed from the club. He said that Rogers who is husband to his sister testified against him because of a grudge. The Accused admitted having slapped the deceased person twice.

11. DW2, Phina Atieno Onyango gave sworn evidence and stated that the Accused Person is her husband. She stated that on April 30, 2018 at 9. 00 pm, she was at home when she heard people quarreling at the palm wine club. DW2 stated that she went to see what was happening and on arrival she saw one drunkard being held by people and had been removed from the club. She stated that after the drunkard had been led away, Charo went back to the club but she told him that they should go back home. That Charo accepted to go home with DW2 and did not leave the house again until the next morning. DW2 stated that when the police went to arrest the Accused, they said he had murdered someone yet on the material night he did not leave the house. That the person who was removed from the club was known to DW2 as he stayed in the same village. She stated that the deceased was walking when he was removed from the club and learnt after three days that the deceased had died while undergoing treatment.

Analysis and Determination 12. In consideration of the evidence of 6 prosecution witnesses and in consideration of the defence witnesses’ sworn statement, 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.

13. 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.’

14. 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.The fact of deathii.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 unlawful act and/or omission; andiv.That there was malice aforethought.

The fact of death 15. It is not in dispute that death occurred. PW5 went to Kilifi County Hospital Mortuary on May 16, 2018 and identified the body of the deceased upon which PW3 conducted postmortem. PW3 prepared a postmortem report in which he established the cause of death as hemorrhage and increased intracranial pressure following blunt trauma to the head. PW1 and PW4 also confirmed the fact of death which the Accused and his witness have not disputed.Death was caused by an unlawful act or omission and Participation of the accused in the commission of the unlawful act and/or omission

16. The injuries that were seen on the deceased person by PW1 were beside the eye and the left eye. There was a swelling on the ankle and the right arm. PW1 who was at the club with the Accused and the deceased said that when they found the deceased lying on the ground, he had injuries. PW3 during postmortem observed bruises on the head on either side of the eye. The deceased’s left eye was swollen, the upper lip was torn on the right side, there was a fracture of the right upper jaw and on the right side, two upper front teeth were broken and one lower right tooth broken. There were also bruises on both hands with right elbow fracture. There was fracture of the left leg, internally, he observed blood clot on the left side of the head with skull fracture and swollen brain. PW4 also confirmed the injuries that were inflicted on the deceased. That he was bleeding from the left eye, the right hand was fractured, the leg was also fractured. According to PW1 and PW4, the deceased had been drinking with them at The palm wine club belonging to the Accused Person’s brother when the Accused Person arrived and took the deceased person’s wine and claimed that the same had been poisoned. As a result of which he started slapping the deceased. The Accused Person’s brother Karissa chased the Accused person and the deceased from the club and when the Accused Person returned to the club, he retorted ‘Nishammaliza kule’.

17. The deceased did not have injuries seen on his body by PW3 and they were not self-inflicted injuries. The injuries must have been inflicted by a 3rd party whom PW1 and PW4 identified as the Accused Person. The Accused Person admits having been at the club and confirms that there were commotions which he attributed to the deceased but PW1 and PW4 refuted that allegation and said that it is the Accused who caused the commotion. This court finds that death of the deceased was caused by an unlawful act perpetrated by the Accused Person.

18. The Accused person’s defence and that of DW1 have been considered. The two confirm that the Accused Person was at the scene. They also confirm that there was a commotion and that he went home and did not leave his house but he beat the deceased before going to his house.That there was malice aforethought

19. 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”.

20. In the High Court of Kenya at Nyeri in Isaac Kimathi Kanuachobi -vs- R (2013) eKLR, the court held as follows in respect to the element of malice aforethought: -“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.”

21. Evidence of the prosecution shows that there was express malice aforethought on the part of the Accused. He assaulted the deceased and he went back to the club to report ‘Nishammaliza kule’. Further and without remorse, he threatened PW1 and PW4 and particularly stated to PW4 that he would eliminate them because they were the ones spreading rumors that he had beaten the deceased. The Accused was the aggressor according to PW1 and PW4 and he did not desist from beating the deceased even when he was being restrained and his brother the owner of the club sent both out of the club where he accomplished his mission of causing grievous harm to the deceased for no justifiable reason. This court finds that the Accused Person was possessed of malice aforethought.

22. In conclusion, this court finds that the prosecution has proved the charge of murder against the Accused beyond reasonable doubt. The Accused is found guilty and convicted accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 19TH DAY OF OCTOBER 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMs. Kambaga for the StateMr. Anangwe Advocate for the Accused PersonAccused present in personHON. LADY JUSTICE A. ONG’INJOJUDGEMr. NgiriI do not have accused persons’ recordsMr. Anangwe AdvocateAccused expressed the interest to mitigate personally. I pray for a mention date.Order: Mention on 2. 11. 2022 for mitigation, victim impact statements and sentence. AP/C P. O. to issue.HON. LADY JUSTICE A. ONG’INJOJUDGE