[2014] KEHC 4008 (KLR)

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL CASE NO. 5 OF 2011

REPUBLIC………………………………..….…….………PROSECUTION

VERSUS

1. NZARO CHAI KARISA (DECEASED)

2. MOHAMMED TAWA KEA

3. WILLIAM JUMA SHAURI

4. SALIM SHAURI MWABORA…………………..…..……ACCUSED

JUDGMENT

The four accused persons namely NZARO CHAI KARISA (hereinafter referred to as the 1st accused), MOHAMED TAWA KEA (hereinafter referred to as the 2nd accused), WILLIAM JUMA SHAURI (hereinafter referred to as the 3rd accused) and SALIM SHAURI MWABORA (hereinafter referred to as the 4th accused) have all been jointly 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 6th day of February, 2011 at Shauri Moyo village Mwele sub-location Rabai Location in Kilifi County within Coast Region jointly with others not before court murdered ALI MWABARI MWADZIWE.”

All four accused persons were arraigned before the High Court in Mombasa on 21st March, 2011 and the information was read out. They each entered a plea of ‘Not Guilty’ to the charge. MR. GICHANA Advocate acted for all the four accused persons whilst MR. ONSERIO learned state counsel appeared for the prosecution and called fourteen (14) witnesses in support of their case.

The brief facts of the case were narrated by PW1 MWADZIWE DOSHO an elderly resident of Huruma Sub-Location in Rabai Location. PW1 told the court that due to land problems between the deceased and some of his family members, he as an uncle had come in and made attempts to settle this dispute but to no avail. PW1also states that the other family members branded the deceased and himself as witches. Due to fears of being lynched the two had reported threats on their lives to the local authorities. On 6th December, 2011 at about 10. 30 a.m. PW1 told the court that he was with the deceased at his homestead. A group of men armed with pangas descended on the home and set upon them cutting them up mercilessly. PW1 was cut on the hand but managed to escape to an adjacent Asian farm where he sought refuge and protection. He left the deceased behind at the mercy of the attackers. Police were called in and upon arrival at the scene found the deceased already dead from his cut wounds. PW1 was able to identify some of the men who attacked them and these persons were arrested by police. Upon the conclusion of police investigations the suspects were arraigned in court and charged.

The 1st accused person namely NZARO CHAI KARISA unfortunately passed away at the Provincial Coast General Hospital on 20th July, 2013 whilst undergoing treatment as per the signal dated 20th July, 2013 filed in court. The case against this accused was therefore discontinued. With respect to the 2nd, 3rd and 4th accused persons, the court found that they all had a case to answer and each was called upon to give a defence. They all elected to make unsworn statements by which they denied any involvement in the attack and subsequent murder of the deceased. It is now the duty of this court to analyze the evidence on record with a view to determining whether the prosecution have proved the charge of murder beyond a reasonable doubt as required by law.

The offence of murder is defined by 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.”

From this definition is derived three crucial ingredients of the offence of murder all of which must be proved beyond a reasonable doubt in order to prove the charge. These are

Proof of the fact as well as the cause of death of the deceased.

Proof that the deceased met his death as the result of an unlawful act or omission on the part of the accused.

Proof that said unlawful act or omission was committed with malice aforethought.

In this case proof of the first ingredient is quite readily available. PW1 told the court that he saw the deceased being attacked by a group of men armed with pangas. PW3 NDEGWA MWALUNYA a neighbour to the deceased and PW4 PATRICK NGOKAboth testified that they rushed to the scene upon hearing the commotion and saw the dead body of the deceased covered with cut wounds. Both witnesses who knew the deceased well were able to identify the body as that of ‘Ali Mwabari Mwadziwe’. PW11 SERGEANT MICHAEL ODUOR is a gazetted scenes of crime officer attached to the CID department in Mombasa. He told the court that he went to the Provincial Coast General Hospital mortuary on 23rd February, 2011 where the body of the deceased was pointed out to him by relatives. He took nine (9) photographs of the body which together with his report he has produced in court as exhibits Pexb2and Pexb3. The court was able to peruse the photographs which depicted the badly mutilated body of an elderly African male adult.

Evidence of the cause of death was tendered by PW9 DR. FRANCIS OTIENO a medical officer based at the Coast General Hospital who conducted the autopsy on the body of the deceased. He testified that upon an external examination of the body he noted deep cut wounds on the head, face and back. Upon an internal examination he noted multiple fractures to the back of head as well as bleeding on the brain. He concluded from his autopsy examination that the cause of death was “head injury due to repeated assault by a sharp object.” PW9 filled and signed the postmortem report which he has produced in court as an exhibit Pexb1. This was expert medical opinion evidence which was not challenged and/or controverted by the defence. I am therefore satisfied that there has been sufficient proof of the fact as well as the cause of death of the deceased. It is clear that the deceased met his death due to a brutal attack by persons wielding sharp objects.

The next crucial question which requires proof is that of the identity of the person or persons who launched this vicious attack on the deceased. PW1 was an eyewitness to the incident since as he told the court he was with the deceased at the material time – indeed he too was attacked by the very same people. The incident occurred at about 10. 30 a.m. It was broad daylight and visibility was good. PW1 told the court that he had escorted the deceased to his (the deceased’s) homestead where the deceased wished to collect an item. PW1 goes on to state that while there a group of men armed with pangas came into the compound and began to attack them. PW1 said that he himself was cut on the elbow before he managed to escape to a neighbouring farm from where he sought help from the watchman. However he left the deceased behind as he escaped. PW2 SAMUEL MARITA ONSERIO told the court that he works as a guard for a security firm. On the material day he was on duty at the farm of a certain Asian in Kaloleni. He confirms that at about 1. 00 p.m. an old man who was bleeding from a cut on his left hand ran to him seeking safety. PW2 states that the old man was being chased by men armed with pangas and rungus. PW2 called his supervisor who alerted the police. Upon returning to the scene a few hours later the police found the badly mutilated body of the deceased in that same compound. There can be no doubt therefore that the deceased met his death at the hands of these very men who had attacked both himself and PW1.

In his evidence PW1 states that he clearly saw and was able to identify the men who attacked them. He states as follows

“I saw the people who attacked me. They are all here in court. Accused 4 is Kabu Shauri, Acused 3 is Gonzi, Accused 2 is Tawa and Accused 1 is Nzaro………..….”

PW1was able to positively identify all the accused persons in the dock. He goes on to state

“They were armed with rungus and pangas and stones. They were hitting and cutting us. I saw the men cutting the deceased. The four accused were all cutting us. When I ran away I left the deceased having fallen down……………...”[my own emphasis]

Therefore by the time PW1 ran away the deceased had already been cut down. This court is mindful of the fact that this is testimony of a single identifying witness. However I find that PW1 gave clear, persuasive and consistent evidence. He remained unshaken under cross-examination by defence counsel. I have no doubt of his veracity as an eyewitness. The accused persons were all known to this witness before and he was able to identify them by name. Therefore aside from mere physical identification there is evidence of identification by way of recognition. In the case of ANJONONI & 4 OTHERS VS. REPUBLIC [1980] KLR 59 the Court of Appeal did hold that

“recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”

The fact that PW1 was able to identify the attackers by name proves that he was able to recognize these attackers and therefore strengthens his evidence of identification. The evidence of PW1 regarding identification is given credence by the testimony of PW5 LISTON CHIBOGO LIKONDA the village Assistant Chief who testified that it was PW1who led police and pointed out the persons who had attacked him. PW5 says

“I accompanied police and PW1 pointed out Salim Shauri (Accused 4), Tawa (Accused 2), William (Accused 3) and Nzaro Karisa (Accused 1) were all identified by PW1 as those who had attacked them.”

Thus it is clear that at no time did PW1 waver in his identification. He consistently named and pointed out the accused persons as the men who attacked both he and the deceased. The parties were well known to each other – indeed the evidence is that they were all from the same family.

The question may arise as to why the police failed to conduct an identification parade at which PW1 would have been called upon to pick out the suspects. However, given that as PW1 stated he knew the attackers prior to this incident an identification parade would have served no useful purpose and would indeed have been superfluous in the circumstances. I am satisfied that notwithstanding the fact that there exists identification by only one eyewitness, the evidence on identification does pass muster. The witness PW1 had a clear and unfettered view of the assailants, it was broad daylight and in addition the attackers were persons known to him thus he was able to both recognize and name them. The same witness did later point out the accused persons to police who effected their arrest. I am satisfied that there has been a clear, positive and reliable identification of the 2nd, 3rd and 4th accused persons as the persons who unlawfully attacked, cut up and killed the deceased. The second ingredient i.e. the actus reus of the offence of murder has been proved beyond a reasonable doubt.

The last ingredient requiring proof is that of ‘malice aforethought’which forms the mens rea for the offence of murder. Although malice aforethought is distinguishable from motive the evidence adduced in this case establishes bothmalice aforethought as well as motive. Section 206 of the Penal Code defines malice aforethought as follows

“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances

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

………………………..

………………………..

………………………..”

By launching an attack on an unarmed man and by slashing him so mercilessly it is clear that the accused persons fully intended to cause the death of or at the very least intended to cause grievous harm to their victims. No other outcome could possibly have been intended. As such I find that the actions of the accused’s establish malice aforethought as defined by section 206(1) of the Penal Code.

As stated earlier this was a case where there was clear evidence of motive. The witnesses testified that the deceased was believed to be a witch and this is what led to the attack upon his person. PW1 told the court that following a land dispute between the family member, allegations were made by some that the deceased was a witch. This evidence is confirmed by PW5 the assistant chief who stated that he was aware of the family land dispute and had even called all the brothers together in an attempt to have them discuss and resolve the issue. After allegations of witchcraft were made against the deceased PW5advised him to report to the police. PW8 APC CORPORAL SAMUEL NGENO from Shika Adabu Police Post confirms that the report had indeed been made at Kaloleni Police Station of threats to the deceased’s life. Thus it is clear that the deceased was murdered due to a family land dispute and due to suspicions that he was a witch. The motive is quite evident.

Based on the foregoing I find that the prosecution have proved this charge of murder as against each of the three accused persons beyond reasonable doubt. I therefore convict the 2nd, 3rd and 4th accused of the offence of murder.

Dated and delivered in Mombasa this 24th day of June, 2014.

M. ODERO

JUDGE

In the presence of:

Mr. Bosire h/b Mr. Gichana

Mr. Dzumo for State

Court Clerk Mutisya

Court:

Mention on 26/6/2014 for mitigation and sentence.

M. ODERO

JUDGE

Court:

Bond for Accused 2 is hereby cancelled.

M. ODERO

JUDGE

24/6/2014

26/6/2014

Before Hon. Justice M. Odero

Mr. Muriithi for State

Mr. Gichana for Accused

Court Clerk Mutisya

Mr. Gichana:

I seek time to prepare for mitigation.

Court:

Mention 9/7/2014 for mitigation.

M. ODERO

JUDGE

26/6/2014

9/7/2014

Before Hon. Justice M. Odero

Mr. Nangila for Stte

Mr. Gichana for Accused

Court Clerk Mutisya

Mr. Gichana in mitigation:

The three accused are all first offenders. Accused 2 was aged 17 years at the time of his arrest. We urge court to take into account the provisions of the Children Act 2001. Accused 3 was aged 21 at the time of this incident. His father died when he was 6 years. His mother is alive. The family lives in abject poverty. The Accused 3 dropped out of school but took up odd jobs to assist his mother. He pleads for leniency. Accused 2 holds a Diploma in Biblical studies. He is very religious and holds a certificate of Achievement in the Alternatives to Violence Project. We pray for a lenient sentence.

As regards Accused 4 he is 27 years old. He is married and has one child. He has no father. He was training as a Pastor in Rabai before this incident. Accused 3 and Accused 4 are both remorseful. If given a chance they will be ambassadors for peace. We seek a non-custodial sentence.

Court:

With respect to Accused 2 Mohamed Tawa Kea, I direct that an age assessment be conducted before sentence. The officer in charge Shimo La Tewa to facilitate this. Mention for Accused 2 on 25/7/2014.

With respect to the Accused 3 and Accused 4 I note that they launched as vicious and unprovoked attack on an elderly unarmed man. The court takes note of the abhorrent practice of killing elderly persons on suspicion of being witches which is rampant in this area. This is a practice which must be condemned in no uncertain terms. As a deterrent to others I am of the mind that a stiff sentence is called for. I therefore sentence the 3rd and 4th accused persons herein to life imprisonment. They have a right to appeal against both conviction and sentence.

M. ODERO

JUDGE

Mr. Gichana:

I apply to be supplied with certified copies of the proceedings and judgment.

Court:

Certified copies to be supplied upon payment of requisite fee.

M. ODERO

JUDGE

Court:

Mention on 25/7/2014 for Accused 2.

A

M. ODERO

JUDGE

9/7/2014