[1998] KEHC 76 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

Criminal Case 14 of 1995

REPUBLIC.................................................................................... PROSECUTOR

versus

1. RUPHUS MBOGHO MWANEI......................................... FIRST ACCUSED

2 . EDWARD MWAREA (DECEASED).......................... SECOND ACCUSED

3 . KWEKWE MALANDI......................................................... THIRD ACCUSED

4 . MIRIAM MENZA............................................................. FOURTH ACCUSED

JUDGMENT

Whilst awaiting his trial the 2nd Accused person in this caseexpired. The case against him has since abated.

The trial proceeded against the remaining three Accusedpersons who had pleaded not guilty to the offence of murdercontrary to section 204 as read with section 203 of the Penal Code.

The particulars of the offence being that on the 18th ofOctober, 1993 at Kishamba Village, Kishamba Sub-Location inTaita/Taveta District of the Coast Province jointly murderedRaphael Malandi.

In the opening address by the State a brief circumstances ofthe case to be proved by them was that Accused No.l & 2 acted inconcert with Accused 3 & 4 to kill the deceased.2

The 1st and 3rd Accused are said to have been paramours. Theyintended to get rid of the husband to the 3rd Accused. Both 1stand 3rd Accused had children from their relationship. They weretrying to get the deceased out of the way. At first the plan wouldbe for Accused No. 2 to administer poison on the deceased. Thisthey would do on payment from the proceeds that the deceased hadfrom the sale of his cattle.

When the murder took place money was to be found under the bedwhere it is said it is normally kept, dug in the dirt ground.

What actually came out of the prosecution evidence is that onthe material morning of 18. 10. 93 at 2. 30 a.m., PW.l was at afuneral when he heard screams and a commotion. PW.3 also stated hewas at a funeral and heard screams coming from the deceased'shouse. Members of the public ran towards the house. They had bynow informed the Assistant Chief PW.2 of the incident and at 3. 00a.m. the Assistant Chief found the deceased's body tied with a ropefrom the rafter.

The deceased's body was naked and kneeling. PW.5 the son ofthe deceased lived a kilometer away and came to the scene on thatmaterial day. He then found the door locked. On gaining access hefound the body kneeling by the bed with a rope round it. He lateridentified the body during post-mortem.

It seems that members of the public were able to notefootprints that led from the vicinity of the deceased's house. Thefoot-prints were followed with PW.1& PW.3 being involved. Two foot-prints were bare footed. Two had sandles. The foot-printswere of a total of four people. These foot-prints ended in thehouse of the Accused No. 1 & 2. They were able to apprehend theAccused No.2 in the forest but Accused No.1 gave himself up at thepolice station.

The two Accused No.3 & 4 were apprehended and interrogated.Both stated that they heard a break-in. They fled out the back-door. They informed this to PW.7 an Inspector of Police.

A total of Kshs.6,007/- was recovered from the deceased'sjacket pocket believed to be proceeds of the sale of the cows.

PW.4 stated on the material morning of 18. 10. 93 she heard onlythe noise of a whistle. She provided information in theprosecution case that the 2nd Accused was a medicine man, awitchdoctor or wizard who did try to heal her son.

I presumed the prosecution brought in her evidence to try andprove that the Accused No. 2 may have intended to murder thedeceased through medicine.

A post-mortem report was produced by PW.9.

The evidence next that was brought by the prosecution was ofa charge and cautionary statement. The statement of Accused No.2was never produced as this court ruled it was inadmissible.

The statement of Accused 1, 2 & 4 were produced.

In the evidence given by Accused No.1 with his statement tothe police was that the 2nd Accused requested he assists in thekilling of the deceased. He agreed to this. The door was to be left opened by his wife and moneys they were to be paid would beunder the bed.

They found the door opened., went in, strangled the deceasedthen hanged him from the rafters.

In their evidence in court on their defence, Accused No.lstated under oath that he did not know the deceased; he had nochildren with the Accused No.3 and wife of the deceased. He knewAccused No. 2 as one of the village youths. He heard the policewere looking for him. He went and gave himself up at the policestation.

The Accused No.3 in her unsworn statement said that she heardpeople break-in through the front door. She ran out the back withAccused No.4 - a guest of hers who had been looking for employment.

Accused No.4 stated she had been looking for employment. Asit was late; Accused No.3 invited her to spend the night. Peopleattacked the house at night. She ran out of the back door. Theywent away screaming and the whistle was blown.In the submissions the advocate for the Accused stated that apart from the confession statements given by the Accused personsthere are no evidence,that proved their guilt.

The State Counsel still relied on his theory that the AccusedNo.l and 3 were lovers. They being the move of the murder.

The assessors in their opinion found all the three Accusedpersons guilty as charged. Each of the assessors gave their ownindividual opinion. Accused No.l was not reliable and appeared to be lying. The aspect that the Accused 1 & 3 were lovers was provedthrough their statement. It was Accused No.3 who showed the roomwhere the deceased was and actually brought the rope.

The floor had been dug under the bed. This required to taketime. Both Accused 3 & 4 were aware of this due to the time itwould take to dig.

The door has been purposely left opened for the Accused 1 & 2to gain entry is also an indication of the guilt of the Accused 3 & 4.

No case law has been submitted by any of the advocates.

I find in this murder trial a lot of emphasis was raised onthe foot-prints that led from the deceased's house to the house ofthe Accused 1 & 2. Accused No. 2 was arrested in the forest butAccused No.l gave himself up at the police station. He did this onhearing that he was wanted by the police? He gave his confessionto the police.

Apart from the confessionary statement, the law requires thatsuch statements be supported or corroborated by the evidence of thewitnesses. Some independent evidence. This can normally be donewhere the police in their investigations connect the commission ofthe offence to the Accused persons.

The first being that of finger-prints. On using the scene thepolice should have taken finger-prints from the deceased's body andthose of the three - four Accused. By doing this it is aconnection to establishing whether the 1st and 2nd Accused were the ones at the scene,

A photograph of the scene of the deceased would have been ofeminence assistance.

Thereafter there was the issue of foot-prints being followed.These foot-prints were treated and followed at night. The sameshould have been photographed and the investigating officer shownhow this was connected to the Accused 1 & 2.

After a charge and cautionary statement be taken from theAccused. This was duly done. These statements should not in thenormal circumstances stand alone. They were admitted in evidencebut must be supported with at lease some independent evidence.

The motive of killing the prosecution stated was that of love.This was never proved. There was no evidence that an affair hadbeen going on before with the two of them.

The other aspect is that the three Accused are said to haveplanned to administer poison on the deceased. This was in factnever proved.

The assessors are of the view that the fact the 1st and 2ndAccused spent time to dig under the bed and to leave the front dooropen is an indication that Accused 3 & 4 participated in the killing.

If they did participate they should never have made a reportto the Chief.

I hereby find that there is a strong suspicion that the threeAccused and another may have committed the offence but I would findthat they be given the benefit of a doubt.

They are found Not Guilty.

They are set at liberty unless otherwise lawfully held.

Dated this 6th day of March, 1998 at Mombasa.

M. ANG'AWA

J U D G E