[2016] KEHC 2311 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CRIMINAL CASE NO. 25 OF 2014

REPUBLIC

VERSUS

SALIM TSOFA MKALA …………………….…….....….. 1ST ACCUSED

KAZUNGU TSOFA MKALA ….......................................... 2ND ACCUSED

JUDGEMENT

The accused were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code Chapter 63 Law of Kenya. The particulars of the offence are that the accused, on 10th September, 2014 at about 1. 00 pm at Kakanjuni Village in Kilifi Township Location within Kilifi County, murdered TSOFA KALAMA MKALA.

Eight witnesses testified for the prosecution. PW1 KANZE PETER NGUMBAO an old woman, testified that on the 10th September, 2014 at about 1. 00 pm she was at her daughter’s house. Her daughter is called Salama (PW2). Some youth went there while pushing the deceased. She was able to see SALIM TSOFA, KAZUNGU TSOFA, FIKIRI TSOFA, MUMBA CHARO and AMANI MARTIN. There were many youths. The youths claimed that the deceased was a witch. They kept on pushing the deceased who would fall down after being pushed. The deceased’s children were alledging that the deceased and PW1 were witches. Salim and Fikiri alledged that she was a witch.

It is PW1’s further evidence that Mumba went and told her that she was a witch. He took and threw her onto the fire. By that time they had already burnt the deceased but was not dead yet. Amani Martin poured petrol on her and lit a match stick and threw it on her. She was on fire and started running. Neigbours poured sand on her and she survived. Her child ALFRED KESI called the police. The deceased and herself were taken to Kilifi hospital where she was hospitalized for three months. The two accused did not assault her but they alledged that she was a witch.

PW2 PATIENCE PETER NGUMBAO is PW1’s daughter. On the 10th September, 2014 at about 1. 00 pm she was at her house with PW1. She was outside the house removing husks from maize. She saw many people coming to her home which is near the road. She saw the deceased who was at the front and the deceased’s son, Salim. There were some people behind the deceased followed by Salim, the 1st accused. PW1 was carrying a young child on her back. One young man told PW1 to remove the child. She took the child. She was kicked and she fell down. They took PW1 and she ran away to her mother’s house where she informed her neighbours about the incident. When they went back to her house she found her mother (PW1) had sustained burns from the waist upwards. The police went to the scene. The deceased had already been burnt. She boarded the police vehicle which took the deceased’s body and PW1 to Kilifi hospital. Her mother was hospitalized for three months. It is her evidence that she did not see the first accused beating his father that day but he was alledging that his father was a witch. She did not see the 2nd accused that day. The crowed was saying that they had one witch and wanted to get the other one. She had known the 1st accused for long.

PW3, ALFRED KESI NGUMBAO is the brother to PW2 and PW1’s son. He is the area village elder. He testified that on 6th September, 2014 at about 10. 00 am the deceased, who was his neighbor, went to inform him that his son, the 1st accused was threatening his life. The deceased told him that 1st accused wanted him to sell land so that the 1st accused could buy a motor bike. PW3 referred the deceased to the area chief. The deceased told him that the 1st accused wanted to kill him and that they had quarreled but had not fought.

It is PW3’s further evidence that the chief wrote a letter to the 1st accused. PW3 delivered the letter to the 1st accused’s wife on 7th September, 2014. The letter was asking the 1st accused to go to the chief’s office. Salim did not go to the chief’s office. The chief wrote a second letter to Salim. PW3 delivered the letter to Salim. The first accused read the letter and handed it back to PW3. This was on 8th September, 2014. The chief referred the deceased to the police. The deceased was told by the police to go back on Friday 12th September, 2014. However the deceased was killed on Wednesday 10th September, 2014. On that day, 10th September, 2014 the deceased went to PW3’s home at 9. 00 am and gave him the report from the police.

It is PW3’s further evidence that at about mid-day, he saw a crowd heading to the deceased’s home being led by the 1st accused. The people were saying “mzee Tsofa umchawi” – Mzee Tsofa, you are a witch. He moved out so that he could make a phone call. He called the area chief and police. He was told that the crowd was heading to PW2’s home and the people were alledging that PW1 was also a witch. He ran on the road. A police vehicle came and he boarded. On reaching PW2’s home, they found the deceased had already been burnt and PW1 had sustained injuries. He did not see the 2nd accused on that day.

PW4 PATRICK SAMINI YAA is the area assistant chief. On 7th September, 2014 the deceased was referred to him by the village elder, PW3. The deceased went to his office at about 9. 00 am. The deceased told him that his life was in danger as his son, Salim was threatening to kill him. PW4 gave the deceased a letter summoning the 1st accused to go to his office on 8th September, 2014. PW4 gave the letter to PW3 for delivery. On 8th September, 2014, the deceased went to PW4’s office waiting for his son to attend but the 1st accused did not go to the office. It is PW3’s further evidence that he gave the deceased a letter to take to the OCS Kilifi police station. The OCS later called him to confirm that the deceased had delivered the letter. A few days later, the village elder called to inform him that Salim and a group of youth were heading to the deceased’s home. PW4 called the police. The police went to the scene but found the deceased had already been burnt while the village elder’s mother sustained burns. The deceased only informed him that it was his son Salim who was threatening to kill him but did not mention another person.

PW5, Dr. HASHIM SELEIMAN was based at the Kilifi hospital. He produced the deceased’s postmortem report conducted by his colleague, Dr. Shehnaz on 25th September, 2014. The deceased was burnt from the neck to the knees. He had burns in the respiratory system and head. The cause of death was cardiopulmonary arrest due to inhaling smoke. PW5 also produced treatment notes for PW1.

PW6 P.C. LUCAS OBURA was based at the Kilifi police station. On 8th September, 2014 the deceased went to the station and reported that his son, Salim Tsofa was threatening to kill him because of land. He booked the report under occurrence book (OB) reference number 24/8/9/2014. The deceased informed him that he had reported the matter to the area chief but his son had refused to go to the chief’s office. On 10th September, 2014 PW6 got information that the deceased had bene killed.

PW7, P.C. JULIUS KOITABA was also based at the Kilifi police station. K On 10th September, 2014 at about 3. 00 pm they got a report from the village elder that someone was being killed by a mob. He dashed to the scene with his colleagues. On reaching the scene they found the deceased had already been burnt and PW1 had also sustained injuries. They found women at the scene. The perpetrators had already left. They took the deceased’s body and PW1 to Kilifi hospital. Later the two accused took themselves to the police station.

PW8, P.C. ABDALLA SAID was based at Kilifi police station. He investigated the case. He got the report made on 8th September, 2014 by the deceased that his son Salim Tsofa was threatening to kill him. He gave the deceased a letter asking Salim to go to the police station on 9th September, 2014. On 9th September, 2014 Salim, the 1st accused did not go to the police station. The deceased went to the police station and reported that Salim had declined to take the letter. PW8 told the deceased that he would go and arrest Salim.

It is PW8’s evidence that on 10th September, 2014 at about 1. 00 pm they got a report that someone was being burnt. His colleagues went to the scene but found the deceased had already been killed. The second accused went to the police station on the same day asking for preparations of his father’s burial. The second accused informed him that the deceased had differences with family members especially after the death of their relative by the name Fikirini. PW8 asked the 2nd accused to take his brothers to the station but they did not. On 19th October, 2014 PW8 retained the 2nd accused at the station but released him on a free bond. The 2nd accused used to go to the station asking about the post mortem of his father. On 24th October, 2014 the 1st accused, Salim Tsofa, surrendered himself at the police station. PW1 had informed him that she had seen the two accused during the killing. PW1 also mentioned Amani Martin, and Mumba Charo. PW8 visited the scene on 20th September, 2014 and drew a sketch plan. According to PW8, the main motive for the killing was witchcraft. There was also the information that the first accused wanted his father to sell land so that he could buy a motor bike. The postmortem was done on 25th September, 2014. PW3 went to look for the suspect at the deceased’s homestead three times but could not trace them.

The accused gave sworn evidence. The 1st accused in his sworn evidence informed the court that on the 10. 9.2014 he was at his place of work at Timboni loading sand on lorries. The deceased was his father. He got information from a young child that his father had been killed. He decided to go home and on his way he got information that the body had been taken to Kilifi hospital. He went to the hospital and met PW1 who was hospitalized. He later traced his father’s body in the mortuary. He denied killing the deceased. He does not know PW1 and PW2. The deceased was not killed at their home but at a different village.

The 2nd accused also gave sworn statement. He also informed the court that he works at Timboni in a quarry. He deals with coral blocks. He got several messages on his phone informing him that his father had been killed and the body had been taken to Kilifi hospital. It was about 2. 30 pm. He took a vehicle and went to Kilifi hospital and was told that the body had just been taken to the mortuary. He stayed at the hospital for 30 minutes and then went to report the incident at the police station. He was arrested and detained at the police station. He had no grudge with his father. He had not heard that his father was a witch as he was never called before the area chief. He was not aware that the 1st accused had been summoned by the area assistant chief.

Mr. Ogeto, counsel for the accused submitted that the prosecution did not prove its case beyond reasonable doubt. The deceased was alledged to be practicing witchcraft with PW1. There was a big crowd. PW1 and PW2 testified that the accused did not touch the deceased. PW1 informed the court that she saw the 1st accused behind the crowd. That evidence exonerates the accused. PW3 did not see the 2nd accused on that date.

This court is being called upon to determine the issue as to whether the prosecution evidence does prove that the accused murdered the deceased. In other words, has the prosecution proved its case beyond reasonable doubt against the two accused?

The evidence against the 1st accused, Salim Tsofa Mkala is provided by PW1, PW2, pw3, PW4, PW6 and PW8. It is the evidence of PW1 that she was at PW2’s house when she saw some youth pushing the deceased claiming that he was a witch. It was about 1. 00 pm during the day. She was able to see the 1st accused among other people in the crowd. PW2’s evidence is that she saw the 1st accused behind the group.

It is the evidence of PW3, Alfred Kesi Ngumbao, a village elder and PW1’s son, That the deceased was his neighbor. On 6. 9.2014 the deceased informed him that the first accused was threatening his life. The 1st accused wanted the deceased to sell land so that he could buy a motor cycle. He referred the deceased to the area assistant chief, PW4. PW3 was also given a letter by PW4 to deliver to the 1st accused which he did. On the material day, 10. 9.2014 PW3 met the deceased at about 9. 00 am. Later at about mid-day he saw the 1st accused leading a crowd heading to the deceased’s home. People were alleging that the deceased was a witch.

Similarly, it is the evidence of PW4, the area assistant chief that the deceased went to him on 7. 9.2014 having been referred by PW3. The deceased told him that the 1st accused was threatening to kill him. PW4 summoned the 1st accused. On 8. 9.2014 at the Kilifi police station. The deceased told him that his son, Salim Tsofa was threatening to kill him because of land. PW8 investigated the case. He gave a letter to the deceased summoning the 1st accused. On 9. 9.2014, the deceased went to the police station to report that the 1st accused had declined to take the letter.

In his sworn defence, the 1st accused testified that on the 10. 9.2014 he was at this place of work at Timboni loading sand on a lorry. It is half an hour walk distance from Timboni to his home. The deceased was his father. He got information about his death and decided to go home. On the way he heard that the body had been taken to hospital. He went to the hospital and saw PW1. He then traced his father’s body at the mortuary. He did not know PW1 and PW2.

It is clear from the evidence on record that the deceased knew that his life was in danger. He followed up the normal administrative process and notified the village elder, PW3. PW3 escalated the matter to the area assistant chief, PW4. The dates given in the evidence show a sequence of events. PW3 talked with the deceased on the issue of threats to his life on 6. 9.2014. PW4 knew about the problem on 7. 9.2014. PW4 referred the deceased to the police on 8. 9.2014. It is the evidence of PW6 that the deceased went to Kilifi police station on 8. 9.2014. PW8 gave the deceased a letter summoning the 1st accused who was to go to the police station on 9. 9.2014. The deceased went to the station on 9. 9.2014.

There is also the evidence of PW1 and PW2 to the effect that they saw the 1st accused in the crowd that was heading to the deceased’s homestead. PW3 was able to see the 1st accused leading the crowd to his father’s home.

Mr. Ogeto, counsel for the accused submitted that it is the evidence of PW1 that the 1st accused did not assault her or touch the deceased. He was behind the crowed. PW2 also did not see the 1st accused touching the deceased.

According to the 1st accused, he was not at home when his father was killed. He was at his place of work at Timboni loading sand on a lorry. The evidence of PW1, PW2 and PW3 is to the effect that the accused was with the crowed which killed the deceased. The incident occurred at about 1. 00 pm. PW3 saw the 1st accused leading the crowed.

Murder is proved if there is malice aforethought. An intention to cause death or do grievous harm or to commit a felony establishes malice aforethought under section 206 of the Penal Code. Mr. Ogeto contends that the 1st accused did not touch the deceased. Section 20 of the Penal Code provides for parties to an offence and states as follows: -

1. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

a. Very person who actually does the act or makes the commission which constitutes the offence;

b. Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

c. Every person who aids or abets another person in committing the offence;

d. Any person who counsels or procures any other person to commit the offence;

and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.

2. A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

3. Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission.”

Given the evidence on record, I do find that the evidence against the 1st accused is direct. There was motive to kill the deceased. The 1st accused wanted his father to sell land so that he could buy a motor bike. The deceased felt that his life was in danger. He confided to the village elder, the assistant chief and even the police at Kilifi police station. There is no evidence that PW3 is on a revenge mission due to the injuries sustained by his mother. If that were to be so, there is the independent evidence of PW4 and the police.

The defence evidence does not raise doubt on the prosecution case. The 1st accused was present when the deceased was killed. The issue of witchcraft was only an excuse. The deceased informed the administrators that the dispute was on the sale of land so that the 1st accused could buy a motor cycle. The deceased seems to have been opposing the sale of land and had to be killed. The 1st accused participated in the killing of his father. He is a principal offender. He is found guilty of the offence of murder contrary to section 203 as read with section 204 of the penal code and is convicted accordingly.

The evidence against the second accused Kazungu Tsofa Mkala is that of PW1 only. PW1 testified that she saw the 2nd accused in the crowd. PW2 and PW3 did not see the 2nd accused in the crowd. It was during the day. PW3, PW4, PW6 and PW8 did not testify that the deceased mentioned the 2nd accused. I do find that the 2nd accused had no issues with the deceased according to the evidence on record. The deceased did not make any complaint against him. I am satisfied that the 2nd accused is entitled to the benefit of doubt. He is not found guilty of the offence of murder as charged.

In the end, I do find that the prosecution has proved its case beyond reasonable doubt against the 1st accused. The case against the 2nd accused is not proved. The 1st accused, Salim Tsofa Mkala is found guilty of the offence of murder as charged. The 2nd accused, Kazungu Tsofa Mkala is found not guilty of murder and is hereby acquitted do the offence of murder.

Dated and delivered in Malindi this 27th day of October, 2016.

S.J. CHITEMBWE

JUDGE