[2022] KEHC 889 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL CASE NO. 6 OF 2019

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

VERSUS

SULEIMAN AMUKOYA SHIKHAYA............................................................1ST ACCUSED

MONICA NYAKOA.........................................................................................2ND ACCUSED

MICHAEL KIMILU ALIAS MIKE MUKAMBA........................................3RD ACCUSED

J U D G M E N T

The accused SULEIMAN AMUKOYA SHIKHAYA (accused 1), MONICA NYAKOA (accused 2) and MICHAEL KIMILU alias MIKE MUKAMBA (accused 3) are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

Particulars of the offence are that SULEIMAN AMUKOYA SHIKHAYA (accused 1), MONICA NYAKOA (accused 2) and MICHAEL KIMILU alias MIKE MUKAMBA (accused 3) on the 14th day of January 2019 at Lumino village, Nabongo location, Mumias West Sub-County within Kakamega County jointly with another before court murdered one PHILIP SILA.

The case for the prosecution is that on 14. 1.2019, PW1 Rajab Shihanyawas asleep when at 1 a.m. he heard screams. He came out and heard the screams were from the home of his uncle. He went there and found 2 people beating Sila (the deceased). He recognized the people as Amukoya (accused 3) and Kevin Indombera. Accused 2 Monica was present flashing the torch for them. They were using a jembe stick to assault him. He did not talk to him as he feared. The assailants were alleging that deceased was a thief. The next day deceased was found dead and he volunteered the information to the police. Accused 3 was then arrested by members of public and later accused 1 Suleiman and accused 2 Monica were arrested.

On cross-examination by M/s Masakwe for accused he stated he saw more than 3 people assaulting deceased saying he was stealing windows. He stated he knew the accused well as they are neighbours and recognized them by voice and there was torch light flashed by accused 2 Monica. He denied that they have a land dispute with Suleiman (accused 1).

PW2 Shaban Tabuwas asleep in his house when at 1. 15 a.m. he heard screams from outside of a person saying “Baba Unaniua”. He armed himself with a panga and went to the scene. He then saw Sila being beaten by Kevin who was armed with a jembe stick. He then saw Suleiman (accused 1) also beating him. They were saying that deceased was a thief. He urged them to stop beating him but they refused. They asked him to leave and he left. The next day he received information that deceased had died. He then recorded his statement. He testified that Kevin has since run away from the area. He testified he did not see Mike (accused 3) at the scene.

On being cross-examined by M/s Masakwe for accused he stated that he told police that Monica (accused 2) had a torch and he would see her well. He testified that Suleiman (accused 1) is his brother and Monica (accused 2) is his wife. He admitted they have disputes within the family relating to land. He confirmed that on 14. 5.2019 a ruling as delivered in ELC case, involving them.

PW3 Amos Otoyo Maende testified that the deceased was his sister’s son. On 15. 1.2019 he received information that deceased had been killed at Lumino. He went to the scene where he confirmed the same. He found many people and a suspect Michael (accused 3) was brought from his house whom upon being beaten by members of public named Kevo, the grandmother (accused 2) and grandfather (accused 1)

PW4 Yasmin Ndalilo was taking medicine to her child who was sleeping at a neighbours house when she met 3 people and saw a person lying down. He recognized the person as Mike (accused 3). Accused 3 spoke to her and after explaining her mission told her to go back. The next day she was informed that the person she had seen lying down was the deceased.

PW5 Patrick Konzolo was from hospital when he met one Kevin and Mike (accused 3) who asked him where he (witness) was coming from. He told them and noticed that there was a person lying where they were and the person was bleeding from the head. The next day he received information that the person had died.

In cross-examination he said he was able to identify the people from the street lights. He also confirmed that Kevin was a vigilante.

PW6 Geoffrey Okello was from watching a football match on 14. 1.2019 at 2. am when he saw 3 people. He recognized them as Kevo, Mike (accused 3) and the deceased. He saw Mike (accused 3) and Kevo were carrying the deceased and bringing him to the market. He heard the deceased was crying out of pain. The people who were carrying him were saying he was a thief. The deceased said he was not a thief but was only looking for a place to sleep. He then saw Kevo hit the deceased with a jembe stick on the head and chest. Kevo then threatened the witness who started to leave but also saw the wife of Patrick. He then went to sleep. The next day he was informed the person he had seen being carried by Kevo and Mike (accused 3) had died.

On cross examination by M/s Masakwe he stated he saw Kevo and Mike from the light of moonlight and torches. They were dragging the deceased on the ground. He said he did not see Suleiman (accused 1). He saw Kevin alias Kevo has not been arrested and that Kevo and Mike (accused 3) were members of vigilante group.

PW7 No. 118955 P.C Mark Too the Investigating officer received information of the murder from the OCS who instructed him to visit the scene. At the scene he found the body of the deceased and accused 3 Mike having been arrested by members of the public and beaten. They took the body to the mortuary and accused 3 to the hospital for treatment. He then recorded witness statements and attended the post mortem.

On being cross-examined by M/s Masakwe for accused, he stated that from the evidence of the witnesses it is Kevin (Kevo) and Mike (accused 3) who assaulted the deceased. Kevin is the son of accused 1 Suleiman whom he had requested to record a statement but refused as Kevin was his son. Kevin escaped and has not been arrested. He arrested accused 1 Suleiman and accused 2 Monica because they were mentioned by PW1 Rajab, PW2 Shikaya and PW6 Geoffrey. He confirmed that accused 1 Suleiman is the husband of accused 2 Monica.

PW8 Dr. Juma Sabastina Ayombe performed the post mortem on body of the deceased on 18. 1.2019. His findings were that the deceased had bruise on the head, old scar on forehead laceration on right leg. On opening the body he found there was a fracture of left 7 and 8 rib, haemotoma on chest all, blood in abdomen, ruptured spleen and fracture of skull. He formed opinion that cause of death was due to haemhorage due to ruptured spleen due to blunt trauma.

The accused upon being placed on their defence gave sworn evidence. Accused 1 Suleiman Wamukoha Shikaya testified that the evidence of the prosecution witnesses were lies and that he has a land dispute with PW2 and that he does not have a son called Kevin alias Kevo. On being cross-examined by M/s Mukhangu for state he confirmed the ruling in ELC 23/2018 was given on 14. 5.2019 after the date of the murder and witnesses had recorded statement on 16. 1.2019.

Accused 2 Monica Nyakoya Amukoya testified that she is the wife of accused 1 Suleiman. She stated she was at her home on the material day and was only arrested when she went to check on accused 1 her husband who was arrested and was at Bungoma prison. She stated on the material night she did not hear any screams and that the shops where the incident happened was about 1. 5 km away.

Accused 3 Michael Kimili testified that on 14. 1.2019 he was at his home with his wife when mama Mwajuma came and informed him that there were screams from Suleiman (accused 1’s) house. The husband of Mama Mwajuma is called Owino and who is also a nyumba kumi official. He went to the home of Suleiman (accused 1) where he saw accused 1, Suleiman, accused 2 Monica, Kevin and Sila the deceased who was lying down. Kevin told them that deceased had been arrested while stealing from an unfished house. He went to his house to take his wife who had labour pains to hospital. He then remained at home until when he was apprehended by 4 people who said he was wanted by the chief. They started beating him alleging he had killed the deceased. He was taken to the shops where he was further assaulted and he became unconscious. He was rescued by the police and taken to hospital.

In cross examination by M/s Mukhangu for state, he stated accused 1 and 2 are neighbours for the past 10 years, and their homes are separated by a fence. He stated that when he went to the scene he found deceased at gate of accused 1 and 2. He confirmed that he is a member of community policing but accused 1 and 2 are not. He confirmed that accused 1 Suleiman is a grandfather of Kevin and would stay with accused 1 and his home.

The accused 1 and 2 called DW4 Ramathan Salunde who is a neighbour of accused 1 and 2. He testified that on the material day he did not hear any screams from home of accused 1 and 2. He only heard of the murder on 15. 1.2019 in the evening.

The accused are charged with the offence of murder contrary to Section 203 of the Penal Code. Sec. 203 provides….

“Any person who of malice aforethought causes death of another person by any unlawful act or omission is guilty of murder.”

The ingredients of the offence which the prosecution must produce beyond reasonable doubt are:

a. The fact and cause of death

b. The unlawful act or omission that caused the death

c. That it is accused who occasion the unlawful act or omission or inflicted the injuries that caused the death

d. That the accused had the intention of causing death or malice aforethought.

PW8 Dr. Juma testified that the deceased suffered fracture on the skull and ruptured spleen caused by blunt force trauma. He confirmed both the fact and cause of death of the deceased.

The other ingredient of the offence the prosecution must prove is that it is accused who caused or inflicted the injuries from which the deceased died.

PW1 Rajab Shaban testified that upon responding to the screams and going to the scene, he saw it was Mike (accused 3) Kevin who is still at large and accused 1 Suleiman who were beating him. He saw accused 2 Monica. PW2 Shaban Tabu also testified that upon arriving at the scene, he saw the deceased being beaten by Kevin who was armed with a jembe stick. He also saw accused 1 beating the deceased. PW3 Amos Otoyo Masinde only arrived and found deceased dead and accused 3 Mike having been arrested. He did not see who assaulted the deceased, PW4 Yasmin Ndalilu was on her way when she met 3 people and saw a person lying down of the 3 people one of them whom she recognized as accused 3 Mike spoke to her and told her to go away.

PW5 Patrick Konzolo testified that while form hospital where he had taken a patient, he met Kevin and Mike (accused 3). He saw at the place where Kevin and accused 3 were there was a person lying down and bleeding from the head. His evidence therefore was that he saw Kevin and accused 3 Mike at the scene. He did not see accused 1 Suleiman and accused 2 Monica.

PW6 Geoffrey Okello testified that while from watching football he saw torch lights and went to the scene where he found Kevo, Mike (accused 3) and the deceased. They were drugging the deceased to the market. Kevo and accused 3 said deceased was a thief which claims the deceased denied but said he was only looking for a place to sleep. He then saw Kevo hit him on the knee and chest. He, Pati and his wife advised them to take the deceased to police but they refused.

Accused 1 Suleiman and accused 2 Monica denied being at the scene of the murder as PW1 Rajab and PW2 Shaban testified. Yasmin testified that it is accused 3 Mike who stopped her on the road where she saw the person lying down. PW5 Patrick Konzolo testified that at the scene he saw Kevo and Mike accused 3. PW6 Geoffrey Okello testified that he saw Kevo, accrued 3 and the deceased. Other than PW1 Rajab and PW2 Shaban who mentioned accused 1 and 2 on the other witnesses did not mention accused 1 and 2 as the people who assaulted the deceased. On how the accused 1 and accused 2 were connected to this offence PW7 PC Mark Too the investigating officer stated..

“From the investigation it is accused 3 and Kevin who assaulted him. I recorded the statement on 15th and 16th. Suleiman (accused 1) was to be a witness. I called him to come and record statement but he refused because Kevin is his son. This is the request to attend (DMF 1)

I arrested accused 1 and 2 on 24. 10. 2019 9 months after the incident. I was directed by the ODPP to arrest them. They were mentioned by PW1 and PW2 as being at the scene. The deceased was killed on the side of the road where there were shops. Shikaya (PW2) Rajab (PW1 and Geoffrey (PW6), Patrick and his wife also came there. It was at night and accused 1 and 2 were present. But what they beat deceased is not shown. I called accused 1 the husband of accused 2. Kevo is the son of accused 1’s brother.”

Considering all the evidence I find the evidence that accused 1 and 2 assaulted the deceased relied on by the prosecution not to be credible and unsafe to found a conviction for the offence of murder against accused 1 Suleiman Amukoya and accused 2 Monica Nyakoa. I therefore find accused 1 Suleiman Amukoya Ashiyaka and accused 2 Monica Nyakoa not guilty of the offence of murder and acquit them under Section 215 C.P.C. Accused 1 Suleiman Amukoya and Accused 2 Monica Nyakoa to be set at liberty unless otherwise lawfully detained.

As for accused 3 Michael Kimilu alias Mike Mukama, I am satisfied that accused 3 and one Kevin who is still at large inflicted the injuries on the deceased from which he died. The injuries were inflicted on deceased on allegation of being a thief. From the post mortem report, the injuries were concentrated on the head leading to fracture of the skull and the abdomen which led to the rupture of the spleen. The parts of the body targeted and the force used showed that they had the intention of causing grievous harm or death of the deceased. This demonstrates that they had the requisite malice aforethought necessary in an offence of murder.

I therefore find that the prosecution has proved a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code against accused 3. I therefore find accused 3 Michael Kimilu alias Mike Mkamba guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and convict him accordingly.

DATED AT BUNGOMA THIS 28TH DAY OF MARCH, 2022

S.N RIECHI

JUDGE