[2023] KEHC 25879 (KLR)

Republic v Swaleh alias Ngovi Mwaiwe & 2 others (Criminal Case 35 of 2017) [2023] KEHC 25879 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25879 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 35 of 2017

DKN Magare, J

November 21, 2023

Between

Republic

Prosecutor

and

Hamisi Ngovi Swaleh Alias Ngovi Mwaiwe

1st Accused

Kombo Ali Ngovi

2nd Accused

Mbui Thiswa Mwalimu Alias Bakari Thiswa

3rd Accused

Judgment

1. The Accused persons herein, Hamisi Ngovi Swaleh alias Ngovi Mwaiwe, Kombo Ali Ngovi and Mbui Thiswa Mwalimu alias Bakari Thiswa were charged with the offence of murder contrary to Sections 203 as read with Section and 204 of the Penal Code, Cap 63.

2. The Accused persons had been charged separately in Mombasa HCCR 11, 13 and 35 of 2017 herein, before being consolidated with the 3 Accused herein. Mbui Thiswa Mwalimu alias Bakari Thiswa was charged in 13 of 2018, on 18/4/2018. Kombo Ali Ngovi Kombo Ali Ngovi was charged in Kombo Ali Ngovi Mombasa HCCR 11 of 2018 on 19. 03. 2018. On 27/7/2017 Hamisi Ngovi Swaleh alias Ngovi Mwaiwe was charged in 37 of 2017.

3. The cases were consolidated in an information dated 20/4/2018 filed on 1/8/2018 with the offence of murder contrary to sections 203 as read with section and 204 of the penal code, cap 63. The particulars of the offence were that the trio, on 3/5/2017 at 9. 00 am at Mikanjuni village, Gandini location, Kinango sub county jointly with others not before the court, murdered Chindoro Ngovi.

4. The accused persons denied having committed this offence and as such, a plea of not guilty was entered.

5. In support of its case, the prosecution called 8 witnesses. PW1, Saumu Mjeni Munga, testified that she was the wife of the deceased, Chindoro Ngovi. It was her case that on 2nd May 2017 at 8. 00 a.m she was sitting with the deceased outside the house together with their 5 children whom she named. She saw the first accused whom she knew and pointed out in court. She stated that they had a younger brother, Hassan who was sick. They threatened the deceased Chindoro Ngovi, to have Hassan recover within 24 hours to be able to walk, eat, urinate, go for long call like the deceased. It was their threat that, if Hassan died, the deceased, Chindoro Ngovi, will also go. This was the 1st and 2nd accused who were said to be doing the talking.

6. The deceased Chindoro Ngovi, went to see the village elder, Beruwa, to report the threat. The deceased was sent to the Chief, Umanzi, and was referred to Kinango police station.

7. On 2/5/2017, the 1st and 2nd accused went to their home and called their young brother and gave the deceased 24 hours to ensure Hassan another brother was able to walk and eat like my husband. They threatened that if Hassan died, her husband was to die also.

8. The deceased went to Peku Ndoro, the deceased’s uncle. Subsequently to the village elder Beniwa and reported the threat. The deceased was referred to by the chief Umazi to go to Kinango police station

9. On 3/5/2017, the 1st, 2nd and 3rd accused went to the deceased’s (Chindoro Ngovi) the home. The deceased was in the bedroom to change clothes as he had been rained. The witness was outside the house. The 1st accused cut the witness with a machete on the right hand, head and shoulder. The children started screaming. The witness entered the house and found the 2nd accused holding the deceased’s (Chindoro Ngovi) neck while the 3rd accused was holding him by the hands. The 1st accused started boxing the deceased on his back. The deceased lost consciousness. The 2nd accused cut Chindoro Ngovi 4 times outside the house. The 1st accused cut the deceased’s nose with a machete. This was before the 2nd accused gave the panga to the 3rd accused who cut the deceased’s mouth.

10. The witness and children were screaming. People started coming and the accused’s ran away. The assault took over an hour. The plea by the deceased to his brother fell on deaf ears. The witness was taken to hospital where she was stitched. The court could see the scar on the shoulder. They went back and found the deceased’s body lying outside. It was till 6. 00 pm when the police arrived. The witness was still traumatized to look at the deceased’s husband’s photos.

11. On cross examination the witness stated that when she was being cut she did not see what was happening in the house. The deceased was brought out to be killed. No question on identification of the witnesses was asked of this witness by all accused persons.

12. On cross examination by the 2nd Accused, she stated that she did not have defensive marks. She used to feel pain then that she was now well.

13. On cross examination by the 3rd Defendant, he stated that the 3rd Accused did not have a panga when he went to their home. She stated that she went to hospital at11am while the three accused persons had come to their home at 9. 00 am on 3/5/2017. A child was standing beside her when the incident occurred. On examination by the court, he stated that he knew Swaleh Ngovi

14. PW2, was 12 years old. The court carried out voire dire. The court was satisfied that she is intelligent enough to testify on oath as she understood the nature of oath. She was sworn by the holy Quran and stated that she is UZ. She saw the 2nd and 3rd accused carrying her father. The 1st Accused cut pw1. She stated that the deceased came from herding cows and was soaked wet. The three accused who she named and pointed at, came to their home where she was with her mother, RC at the veranda. The 1st accused picked RC, and threw her aside. The 2nd accused slapped the witness and the 1st accused slapped pw1. When pw1 fell accused 1 cut her on the head and shoulder. The 2nd and 3rd accused entered the house.

15. The two accused took out the deceased. The 1st accused had a panga. The 2nd and 3rd accused cut the deceased in turns. When they were killing her father she stood afar screaming.

16. Testified that she was a daughter to the deceased and on 3rd May 2017, the Accused persons came to and asked for the deceased. The 1st accused slapped her and the younger sister. The 1st accused also slapped pw1 and she fell on the ground and cut her with a panga on the head and shoulder.

17. They screamed but the neighbors did not come immediately so the accused persons ran away. On cross examination, she stated that each of the accused persons had a panga. They screamed but neighbours did not come.

18. The next witness was Ali Nduke Shamakame, PW3. He stated that on 3rd May 2017, at around 9. 00 a.m. Pw1 went to his home and told him that her husband had been killed. He then went to the Deceased’s home and found dead body on the deceased lying on the ground outside the house with several cuts on the head. He then called a motorcycle that carried pw1 to the hospital for treatment. He called pw4 on phone. He identified the three Accuseds as the people who killed the deceased.

19. PW4, Peku Ngovi Swaleh, stated that the 1st and 2nd accused persons are sons to his elder brother and the 3rd accused person is his grandson. He also knew the deceased herein who was his brother’s son. The trio live 10 minutes’ walk away in Kidunyani while the witness lives in Tsunza.

20. It was his testimony that on 2nd may 2017 at 9. 30 pm the deceased went to his home and told him that he had been threatened by the accused persons that if the 1st, 2nd and 3rd accused’s. It was related to Bodwe Ngovi their brother who was sick. They accused had demanded that if Bodwe Ngovi did not get well they were to kill the deceased and collect his head. He advised but did not accompany the deceased to report to the village chairman. The deceased and the village chairman went back to pw4’s house reporting that the village chairman could not solve the issue. The deceased the witness went to the chief, the village chairman and the chief. In turn the chief who also refereed them to report to the police. The deceased was accompanied by the village chairman, the witness, Ali Nduke, Ngovi Swaleh reported to Kinango Police Station. They were to come back the next day with witnesses, that is the wife and the children. They reached the village 5 pm in the morning (this could have been a slip). On 3rd may 2017, he received a call that one Bodwe Ngovi who was sick had died and Chidoro Ngovi was also dead.

21. He went to the deceased’s home and found the deceased’s body with several cuts on the head and no one in the homestead. He knew that apart from the threat, there were disagreements between the deceased and the trio but did not know the cause. On cross examination he stated that he knew the 1st accused since his (the 1st accused’s birth). He stated that he did not know what Bodwe was suffering from. He said he found the deceased already killed but did not know who killed him. He stated that he had a good memory and repeated the people who accompanied him and the deceased to the chief’s place.

22. On cross examination by the third accused, he stated he knew the third accused as Mbui Thiswa. He is also known as Bakari Thiswa. He stated that the 3rd accused’s mother is a daughter to the witness’s niece. The niece is the witness’s brother’s daughter. He did not record the name of the 3rd accused in his statement to the police.

23. PW5, Ngovi Swaleh Ngala, a resident of Tsunsa in Kinango, Kwale. The witness knew the accused as the 1st and 2nd accused are brother while the 3rd accused was an uncle. The first and 2nd accused are uncles to the witness. The deceased was a step brother to the 1st and 2nd accused. The 3rd accused was the deceased’s uncle. The witness’s home is 15-minutes’ walk form the deceased’s home. The 1st and 2nd accused’s house were next to the deceased while the 3rd accused’s home is 15-minutes’ walk from the deceased’s home.

24. He stated that on 2nd May 2017 PW4 called him to his house where he found PW4, PW3 and the deceased. The deceased had reported the threat to kill by his step brothers, the 1st and 2nd accused. The report was given in the same geographic details, that the deceased was to ensure that Bodwe Ngovi was able to walk, defecate, urinate like the deceased or they were to go for the deceased’s head. They reported to the village elder who came with the village elder to pw4’s house they were advised to report to the chief they went to the chief’s office where he found pw4, the deceased, Ali Nduke, outside the chief’s office. They were given a letter to take to the police station. They reported to Kinango and the deceased was asked to bring his children and wife as witnesses on the following morning but the deceased was killed before then.

25. He stated that on 3/5/2017, he was called by pw4 and told that the deceased had been killed. He was told that Bodwe Ngovi was also dead. When he found pw 1, he saw her bleeding profusely and was carrying a small child at the back. They went to Lutsangani administrative camp where they were given a letter to take to the hospital for pw 1 to be treated. The witness took the small child pw1 was carrying and took pw1 for treatment at Lutsangani dispensary. They went back and found the body of the deceased was near the door. Police officers came and the body was taken to Kinango hospital mortuary.

26. A week later, after burial, the witness received threats from the 2nd accused that whoever will lead to the arrest of the 2nd accused will also be dead. He knew of the disagreements about ownership of some mango trees.

27. On being cross examined by the 1st accused, he stated that when he was called to pw4’s house, he stated there were other people in the house and some were too busy to hear their discussion. He confirmed what the deceased told them that the accused had threatened. He explained that the injuries on pw1 were like panga cuts.

28. On cross-examination by the 2nd accused, he stated that he had been told that Chindoro was deceased when he was going to their home on 3/5/2017. He did not witness the killings. On cross examination by the 3rd accused, he stated that the 3rd accused did not threaten the witness.

29. PW6, Mavune Betunda Kulala from Lutsangani. He is the village chairman. He knew all the three accused person s by name. He narrated how he received a call from community policing that the 2nd accused had been seen at Latsangoni shopping centre on 9th March 2018. He knew the second accused was a suspect, in the killing of the deceased herein. He arrested him and took him to Latsangoni police post where he was re-arrested. On cross examination he stated he did not know the first accused. He also did not know the 3rd accused.

30. After that testimony the 1st Accused who was on bond disappeared. A warrant was issued but in vain. We shall deal with his case herein after. As fate will have it, the matter then fell into my laps for dealing, the trial court having been transferred. I gave directions for the matter to proceed from where it had reached. I explained section 200 the two accused present, that is 2nd and 3rd accused persons. I gave hearing dates and issued summons to various witnesses.

31. PW7, Dr. Ahmed Mkuche Juma Assi, a medical doctor, testified and produced a postmortem was done on the body of the deceased on 4th may 2017 and cause of death was determined as traumatic brain injury consistent with assault with a sharp object. He also produced a p3 form for the injury on PW1. He was cross examined on the P3 a postmortem.

32. PW 8, the investigating officer stated that the deceased made a report on 2nd May 2017 at Kinango Police Station via OB No. 12/2/5/2017 at 1510hrs that his brothers Kombo Ngovi and Mwaiwe Ngovi had threated to kill him on allegation that he was bewitching their brother Bodwe ngovi. He took over from corporal Rioba who retired and changed his contacts.

33. The accused were suspecting the deceased, Chindoro Ngovi to be a witch. He is said to have bewitched his half-brother Hassan, who was sick. The accused threatened to kill the current deceased, if first deceased, Bodwe Ngovi died as accused were suspecting the deceased herein to be behind his sickness by way of witchcraft. Bodwe Ngovi Hassan died and the accused killed the deceased herein. The threats to the life of the deceased was reported to the police the previous day. The report was made a day prior to the death of Bodwe Ngovi. When Bodwe Ngovi dies, the threat was actualized by killing the deceased herein.

34. The following day, they received a report that the deceased had been killed after the demise of Bodwe Ngovi as per the threats. They started tracing the suspects who they arrested and arraigned in court. On cross examination the witness said that no weapon was recovered.

35. The first suspect disappeared when released on bond. His warrant is still out. There should equally be a warrant to the surety to have the bond liquidated.

36. Upon perusal of the record, I found the accused persons had a case to answer. I put then on their defence. They opted to give sworn testimony. The first accused had absconded. His advocate closed his case without claiming a witness.

Defence case 37. Upon being placed on his defence, DW1, Kombo Ali Ngovi, the 2nd Accused testified that he knew the deceased as his elder brother. He stated that he was in high seas on 3/5/2017. He came back on 7th May 2023. He was told by his wife that the deceased had died. He cannot remember when he went back home. He later stated it was on 7/5/2018. He denied killing the deceased. He stated that he left at 4an on 2/5/2017 from Tudor, Mombasa. He was with Bakari, Rumba and Salim. They went into the deep sea and came after 3 days. He had licenses for 2021 and 2001. He stated they had a good relationship.

38. He knew Hassan Ali. He is the witness’s uncle. He stated that he had no bad blood with the deceased.

39. It was his testimony that he found the deceased already buried and he did not know the circumstances under which the deceased died. It was his testimony that he had a license and had been fishing for the last 21 years. He however did not produce any such license. He blames Beku Swaleh who wanted to have a relationship with the mother. He wanted to inherit both their land and their mother. He stated that Ngovi Swaleh was not his brother. He only has 2 brothers, that is Chindoro and Madecha, both of whom are now deceased.

40. On being cross examined by Miss Nyawinda for state. He stated that the land is registered in the three names, that is Chindoro, Magwaro and Mavile, with Chindoro representing their family. He stated that in the high seas, he was Hamisi Kimageke and Chengo, both of whom have since died. He could not tell where he was between 2/5/2017 and 8/3/2018.

41. He stated he did not know Hassan Ali Ngovi. He stated that he was in pemba in Tanzania fishing. He said he did not know PW2. He stated that the brother was killed over family land. He stated that they found out that the deceased’s name had been added and the witness’s name was missing.

42. DW2, Mbui Dziswa Mwalimu, testified that the foregoing is his correct name. He has a wife and 5 children. He stated that he left home on 2nd march 2017 to go fishing in Shimoni and when he came back after 3 days he was told that the deceased had died. On 8th March 2017 he went to the deceased’s home and was arrested. On cross examination, it was his case that he had stayed in Tudor where he also worked for 20 years. He also testified that he did not know Hassan and he was not Bakari Thiswa.

43. They went home and went to the deceased’s home on 7/5/2017. He stated he went to the place where Chindoro had died. At this point the 2nd accused reportedly fell sick. We reluctantly adjourned the matter. He stated that he went to the deceased’s home on 8th march of a year he could not recall. He spoke with the deceased’s wife and mother. There was nothing amiss. He left at 4pm. He stated that he left home on 17/3/2017. He was arrested after 3 weeks, nop, a year after death of the deceased. He did not know why he was arrested. On cross examination he stated that he had a license to fish for 2021 and 2023. He stated that on 3/5/2017 he was at sea.

44. He changed his mind again and said he was at sea on 2/5/2017 for 3 days. On 3/5/2017 he was a Tudor. He denied the name on the charge sheet but admitted that it is he pleaded. It is the name I called him to the witness boss and he accepted. He was informed of the death on 6/3/2017. (this was two months before the deceased died! On cross examination by the court, he stated that he did not let his advocate know about the meeting with pw1 on 8/3/2017. He only set up the alibi during the testimony.

45. DW3, Kache Ngando Chigundu, was the next witness. She was the wife of the 3rd accused for 12 years and they have 5 children. It was her case that on 2nd may 2017, the 3rd accused was in the sea and came back on 8th may 2017 when they went to the deceased’s home and were welcomed by the deceased’s wife after which he was arrested. She had been staying at home but the period Chindoro dies is the only period she stayed at Tudor Mombasa. Though her husband did not know DW2, she indicated she knew her very well. She stated that she did not know whether the husband was involved.

46. Though they were staying in Tudor, she did not know the exact point where they were staying. I got a definite impression that she was lying. She does not know Tudor at all. Though allegedly staying in Tudor, her children were schooling back at Kinango and were staying with her.

47. I recalled the words of CJ Madan in the case of N vs. N [1991] KLR 685 as captured uccintly by justice G V Odunga in Kioko Peter v Kisakwa Ndolo Kingóku [2019] eKLR: -“I have perused the said ruling and it is clear that this court found that the said application was devoid of merit and dismissed the application. What the Court said was that the applicant ought to have applied for review before the lower court. In my view to marked such remarkable averments can only be taken to be meant to mislead the court. Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”

48. In the South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that“in my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa…”

49. He evidence was not believable, but understandably so.

State submissions 50. The prosecution filed its written submissions on 18th September 2023. It was submitted that the prosecution has proved the three ingredients on the charge if murder against the accused persons as set out in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR. Where the court of appeal (Visram, Koome & Odek, JJ.A) stated as doth: -“for the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the accused had the malice aforethought. (See Nyambura & others-vs-republic, [2001] KLR 355). From the evidence on record it is clear that the appellant stabbed the deceased with a knife on his neck. As a result of the injuries the deceased died. This was established by the uncontroverted evidence of Obadia who witnessed the appellant stabbing the deceased and James who saw the appellant running with a sword after the incident. Further, the murder weapon was found with the appellant on the same night. The issue for determination is whether the appellant had malice aforethought when he stabbed the deceased. Instances when malice aforethought is established is provided for in section 206 of the penal code:-“malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstance:-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 of 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 the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

51. On death of the deceased, they submitted that evidence of pw1, pw2 and PW3 and the postmortem report confirm the death.

52. They stated that the accused committed the offence. They stated that this element is in two parts, that is, whether the accused’s omissions or commission caused the offence and secondly, whether the accused persons were responsible. It is the state’s case that the deceased did not die of natural causes. The killings were carried out in the presence of pw2 and pw 3 at 9. 900 am in the morning.

53. They stated that there was malice aforethought since the evidence of PW2, PW4 and PW5 place the threats to kill by the accused persons which was reported at Kinango police station as confirmed by PW8. Further the nature of the injuries and weapons show an intent to kill. They rely on section 206 of the penal code which provides as doth: -“206. Malice aforethought malice aforethought shall be deemed to be established by evidence proving any one 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 of 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 the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

54. Consequently, the prosecution submitted that it had proved that the deceased died due to unlawful act but the accused persons and that the accused had malice aforethought.

3rd accused’s submissions 55. The 3rd Accused submitted that the offence of murder is set out in Section 203 of the Penal Code as doth: -“203. Murder Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

56. Consequently, the state is under duty to prove the following against the 3rd Accused: -a.The death of the deceased and the cause of that death;b.The accused committed the unlawful act which caused the death of the deceased andc.The accused had the malice aforethought.

57. They place the burden of proof on the state as doth: -“107. Burden of proof1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

58. They stated that it is safe to conclude that the motive of the murder is based on issues of bewitching. he questions the roof of motive in the murder. the 3rd accused is said not to have been proved to have participated in the threats. there was also no intention for the 3rd Accused to kill the deceased.

59. This was followed with a self-serving question which questions the reasonableness of the court to reach the opposite results. the question was whether the evidence tendered is sufficient for a reasonable tribunal properly directing its mind would convict the accused person for the offence of murder.

60. On mens rea, it was submitted that the 3rd accused had no malice aforethought as the 3rd accused was not mentioned in the OB report as having threatened the deceased with murder or at all.

61. It was thus submitted that the prosecution did not prove that the 3rd accused person committed an unlawful act as required under section 206 of the penal code. There case was that the person sued is Thiswa while the person in court is Mbui Dsiswa Mwalimu.

62. They rely on the fact that the 3rd accused did not issue threats to state that there is a possibility of a wrong person being in court.

63. They further question the absence of the murder weapons. they stated that the photographs were not produced in evidence.

64. They also raised issue with contradictory and inconsistent evidence. there was allegedly a contradiction between PW2 and PW3. They stated that the accused persons all had pangas and another said the 3rd accused person did not have a panga. I dare add that another said that the 3rd accused was given a panga by the 2nd defendant. these are the contradictions they say, entitled him to freedom.

65. They relied on the case of Richard Munene v Republic [2018] eKLR, where the Court of Appeal stated that: -“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.”

66. They also relied on alibi defence. reliance was paced on the decision of Kimotho Kiarie v Republic [1984] eKLR, where the court of Appeal (JA, Chesoni & Nyarangi Ag JJA) stated as doth: -“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable; Said v Republic [1963] EA 6. The judge erred in accepting the Senior Resident Magistrate’s finding in the alibi because the finding is not supported by any reasons. It is not possible to tell from the judgment of the Senior Resident Magistrate if the correct onus was applied and if the prosecution was required to discharge the alibi Raphael v Republic, [1973] E A 473. The defence of alibi was rejected for unrevealed reasons. That was a grave omission.”

67. Further in Victor Mwendwa Mulinge v Republic [2014] eKLR, the court of Appeal, Kihara Kariuki (Pca), Musinga & Gatembu, JJ.A), stated as doth: -“But having made that observation, the learned judges fell into the same pit as the trial court because they neither analysed the appellant’s defence nor considered the law regarding the defence of alibi.It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja V Republic [1983] KLR 501. ”

68. He also raised other issues for consideration by the court. I will deal with those allegations in the main analysis. They prayed that the case be dismissed against the 3rd Accused.

69. Contrary to my earlier directions, they annexed the decisions they relied on. I have neither read them or perused them. I had directed that no authorities were to be annexed. this is because I prefer to read the same authorities online, which I did. I may not vouch for the integrity of printed copies.

70. The 2nd Accused did not find it either useful or necessary to file submissions, despite having an olive branch extended to him.

Analysis 71. The matter herein is fairly straight forward, before I deal with facts of the case, I need to deal with three aspects of general misdirection of law. These are 1. a.The accused’s nameb.State of arrestc.Motive

72. Under section 9 of the Penal Code, the motive and intention of a person is immaterial. It provides as doth: -“9. Intention and motive

(1)Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.(2)Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.(3)Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

73. It is therefore, immaterial what the accused persons intended to do. There motive is irrelevant. The threat to the deceased does not need to be carried out by the same people who threatened to do so. Section 21 of the penal code provides as doth: -“21. Joint offenders in prosecution of common purpose When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

74. It does not matter that some of the people in a group wee not carrying weapons or just opened the door. Once a common purpose is establish, the actions of the conspirators become irrelevant.

75. The proof of the offence of murder is based on proof of two aspects, that is mens rea and actus reus.

76. Malice aforethought is proved or inferred from the circumstances of the case. Each case will turn on its own facts.

77. In Republic v Josephine Mbatha Kimonyi & another [2021] eKLR, Justice, D. K. KEMEI stated as doth: -“The Court of Appeal in the case of Nzuki -V- Republic (1993) KLR stated: -“Malice aforethought is a term of art and emphasized that:-Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions-a.The intention to cause death.b.The intention to cause grievous bodily harm.c.Where the accused knows that there is a serious risk that death or grievous bodily harm will ensure from these acts and commits those acts deliberately and without lawful excuse, the intention to expose a potential victim to that risk as the result of those acts.”Malice aforethought can be inferred from the circumstances of the case. In Republic -V- Tubere S/O Ochen (1945) E.A C.A. 63, the court stated that malice aforethought can be inferred from the following factors: -a.The nature of the weapon used.b.The part of the body targetedc.The manner of killing or in which the weapon was used.d.The conduct of the accused, before, during and after the attack.

78. This does not disappear because a party is not arrested. If a person intended to show that there was contradiction between the evidence tendered by the prosecution and reality, it is done at cross examination to allow prosecution witnesses answer those questions.

Actus Reus 79. The actus reus is the unlawful killing of the deceased. In this matter it was agreed that the deceased was attacked and fatally wounded. He was killed in the morning in the presence of not only PW1 and PW2 but also younger children. They screamed their hearts out but there was conspirational silence on part of the neighbours. They conveniently came after they were sure the deceased was dead.

80. The killing was done after the deceased was given a very specific threat. This threat came out from 4 witnesses. PW1 who witnessed the threat from Accused 1, 2 and 3. The deceased took it serious and escalated it to the village chairman, then chief then the police station at Kinango. Instead of acting, given the grave nature of the threat, they asked that he comes the following day. I am sure the deceased must have expressed real and reasonable threat to his life from his own relatives.

81. Unfortunately, for the deceased, things moved too fast. Bondwe Ngovi or Hassan died before 9am on the following day, that is 3/5/2017. The three accused persons came to the home of the deceased, their relative. He had just been rained on after leaving to herd cattle and was changing.

82. PW2 graphically explained How their younger sister was toast aside, PW 2 was slapped. This was then a child of tender years. She was around 10-11 years. The mother was cut as she also followed into the door to see the love of her life being held like chicken by the neck legs and hands. He was then brutally slaughtered in the presence of the wife and 3 children. Some too young to fathom the immediate and dire ramification that had befallen them.

83. All the cries and sopranos fell on deaf ears. The killing was maximized by plucking off of the nose and mouth. This then created a grotesque horror scene in one place and under hands of people who are supposed to love one another. Or this in the name of witchcraft. The death was thus proved. The medical officer explained the death in details. These details tally in material respect to the evidence of PW1.

84. The deceased has open comminuted fracture of the right frontal, parietal and temporal region with cerebral contusion. He had deep cut wounds extending from the right to the left eye socket. Deep cut wound extending from the right to the left cheek with maxillary and nasal fractures. He also had a right deep mandibular cut wound extending to pre-auricular region (in front of the ear) There was traumatic brain injury right frontal occipital, temporal lobes with hematoma. In simple terms the brain was injured and had blood flowing into the brain after been cut with sharp object(s)

85. The first witness, the deceased’s wife had several wounds inflicted on her. They were visible to the court. I will not address much on the P3 in the Absence of the 1st accused who was said to have inflicted the injury and now is at large.

86. The cause of death was traumatic brain injury consistent with assault with a sharp object. I am satisfied that the actus reus took place. Only two other questions remain. The mens rea and whether the injuries were inflicted by the accused persons.

87. The accused were recognized at three levels. The first level was when the deceased positively identified the people who gave the threats. The threat were tied to a specific event, death of Bodwe Ngovi, the deceased’s brother. He reported to authorities. Though authorities let him down, they had the report. The second level was PW1 and PW who recognized the accused persons. PW 1 saw then on 2/5/2017 and both PW1 and PW3 saw and recognized the three killers as the three persons now before me.

88. The 3rd accused raised an issue that he was not specifically named as a person who issued threats. It is an irrelevant question. The threats to kill were delivered to the deceased. He was positively by pw 1 and pw3. He is the .one who was given a panga by accused 2 and cut off the deceased’s mouth. This was at 9. 00 am in the morning there was absolutely no attempt to hide the fact of the actions.

89. Before I proceed I need to consider their alibi. They set an alibi at defence level. The alibi was what a can call a fictitious alibi. First they said they were at high seas. Secondly, the second accused was with people who are now deceased. He was in a place unknown to anyone. Thirdly, wherever he was had no Cellphone network. Even if the state wanted to disprove the falsity of the allegation, where would the state start.

90. For the 3rd accused person, he set up an alibi at defence level but crumbled it himself. The witness for the 3rd accused made it worse by lying under oath that they were in Tudor but knew nothing as to where they were. The 2nd accused, in the heat of stupor, released to the court, a truth that was hidden inside him. The deceased was killed because of land. The deceased’s name was placed on the land tile while the 2nd accused’s name was not there. This was basically an excuse to eliminate the deceased and gain land.

91. Section 6 of the Witchcraft Act, Cap 67, Laws of Kenya states as follows: -“6. Charging persons with witchcraft Any person who accuses or threatens to accuse any person with being a witch or with practising witchcraft shall be guilty of an offence and liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding five years:

Provided that this section shall not apply to any person who makes an accusation to a District Commissioner, a police officer, a chief or any other person in authority.”

92. The accusation of witchcraft was thus a commission of a crime. The Accused were in the process of committing a crime under section 6 of the witchcraft act when they killed the deceased. They did not explain in their defence, how they knew the deceased was a witch, unless, they were involved in witchcraft themselves or engaged in another crime under section 7 of the Witchcraft act, which provides as doth: -“7. Attempt to discover crime by witchcraft Any person who employs or solicits any other person to name or indicate by the use of any non-natural means any person as the perpetrator of any alleged crime or other act complained of shall be guilty of an offence and liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding five years.”

93. The issue of the name crumbled when he stated that Bakari Dsiswa is his Islamic name. Further, he set his alibi on 3. 3/2017, a whole 2 months before the demise of the deceased. He could not explain where he was between that date and 2018 when he was arrested. If he left on 2/3/2017, he should have been back by 6/5/2017. He gave no alibi for days after 6/3/2017. The alibi was baseless and did not meet the standards of an alibi.

94. An alibi defence must be raised at the earliest opportunity. This is because the burden of disproving the alibi is on the prosecution. Therefore, such must be raised during the prosecution case, otherwise there is no time to rebut the same. In Athuman Salim Athuman v Republic [2016] eKLR the Court of Appeal stated as follows:‘The principle has long been accepted that an accused person who wishes to rely on a defence of alibi must raise it at the earliest opportunity to afford the prosecution an opportunity to investigate the truth or otherwise of the alibi. Way back in 1939 in R V Sukha Singh S/o Wazir Singh & Others (1939) 6 Eaca 145, the former Court of Appeal for Eastern Africa upheld a decision of the High Court in which it was stated:'If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped'.

95. In Argut v Republic of Kenya (Criminal Appeal 205 of 2017) [2023] KEHC 2690 (KLR) (28 March 2023) (Judgment), Justice TM Matheka, J stated as follows on the issue of alibi defence on 28/3/2023: -“Although the appellant in this case put forth his alibi defence rather late in the trial, the trial court weighed the defence of alibi against the prosecution evidence. It discredited the Appellant’s alibi defence on grounds that DW3 & DW4 who stated that the appellant had gone to park the car when he was arrested did not disclose that indeed they were discussing the plot which was at that point and in dispute. However the issue was where the appellant was at 1:00pm when the offence is alleged to have been committed. The appellant clearly stated where he was and two of his witnesses confirmed that they were together at that time.

76. yes, there are authorities about the time an accused person can raise an alibi. However the letter of the law states that the moment an accused person raises an alibi the prosecution can seek an adjournment to go and bring evidence to challenge it. That is what the law says. My view is that it is upon the prosecution to take advantage of that provision of the law and seek to dislodge the alibi. Whether it is too late in the say can only emerge when the prosecution has sought to dislodge the alibi as provided for by the law. The law recognises that until an accused person is put to his defence he does not have to say anything about his case. So did the Appellant’s alibi defence create doubt in the prosecution’s case? I say so. The Appellant testified that he was not at the scene at the time the assault allegedly happened. He said he was at the office from morning till 3 p.m. DW2 and DW5 who were his co-employees corroborated this position. The complainant stated that she was assaulted at around 1 pm and her witness PW2 confirmed she witnessed the same.”

96. In the case of Republic v Stephen Ekeya [2020] eKLR, Justice Kiarie Waweru Kiarie, J: -“6. It is trite law that when an accused person pleads an alibi, the burden of proving the falsity, if at all, of the defence of alibi lies with the prosecution. In the case of Victor Mwendwa Mulinge vs. R [2014] eKLR the Court of Appeal while addressing alibi defence stated:

It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs. R [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.”

97. In the case of Erick Otieno Meda v Republic [2019] eKLR, the Court of Appeal stated as doth: -“19. In the recent case of Victor Mwendwa Mulinge –v- R, [2014] eKLR this Court rendered itself thus on the issue of alibi:

“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution....” 20. Comparatively, in the South African case of S -v- Malefo en andere 1998 (1) SACR 127 (W) at 158 a - e the court set out five principles with respect to the assessment of alibi evidence:(a)There is no burden of proof on the accused to prove his alibi.(b)If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt.(c)An alibi "moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die getuies beoordeel word."(d)If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable ("betroubaar").(e)The ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt — and for this purpose a court may take into account the fact that the accused had raised a false alibi.

21. In another persuasive South African case of R - v - Biya 1952 (4) SA 514 (A) at 521C - D Greenberg JA said:‘If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime.’”

22. In S –v- Sithole 1999 (1) SACR 585 (W) at 590g - i it was correctly stated:“There is only one test in a criminal case, and that is whether the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that an accused is entitled to be acquitted if there is a reasonable possibility that an innocent explanation which he has proffered might be true. These are not two independent tests, but rather the statement of one test, viewed from two perspectives. In order to convict, there must be no reasonable doubt that the evidence implicating the accused is true, which can only be so if there is at the same time no reasonable possibility that the evidence exculpating him is not true. The two conclusions go hand in hand, each one being the corollary of the other. Thus in order for there to be a reasonable possibility that an innocent explanation which has been proffered by the accused might be true, there must at the same time be a reasonable possibility that the evidence which implicates him might be false or mistaken.”The comparative decisions cited above are persuasive and espouse good law which we adopt herein. In considering an alibi, we observe that:(a)An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.(b)An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.(c)The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.(d)The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail. (See Mhlungu - v - S (AR 300/13) [2014] ZAKZPHC 27 (16 May 2014)

98. In the current case, the accused persons set forth spectacular alibis at defence level. They were at unknown places at sea at unknown dates doing unknown things with witnesses who have now died when this happened. This will therefore depend on the credibility of the defence witnesses and the impregnability of the prosecution case.

99. PW1 did not justify identify the three accused persons. She recognized them. She not only witnessed though her eyes but also received slaps and accused one was on top of her while cutting her.

100. PW2 corroborated the evidence of PW1. There were no contradictions between them. There were minor differences which arise from perception. It is instructive to note that none of the accused person cross examined the witnesses on the recognition.

101. This was not backed only by evidence of the other persons in terms of PW3- PW8 but also evidence from the yonder. The deceased had recorded the threats that he received. The same occurred the way it was reported. This happened in broad daylight. Each evidence was corroborating with the subsequent witnesses. The evidence of PW1 and PW 2 was on the mark as regards the kind of injuries that the deceased received. It was clear that from the grotesque nature of the final results, PW 1 could not look at the photos. This was too traumatizing.

102. On the other hand, the alibi given by the accused crumbled on their face. Though they said they left for three days, and did not know each other, they came in March 2018. By arguing that they were around all this time, they negate their own alibis that they were at sea.

103. In Geofrey Haggar Samuel v Republic [2022] eKLR, Justice J.N. Onyiego court stated as doth: -“34. The court in the case of Leonard Kipkemoi v Republic (supra)while dealing with the issue of recognition stated that;

“the factors to be considered with respect to recognition as set out in R vs Turnbull & Others (1976) 3 ALL ER 549 must always be borne in mind when a court is dealing with the question of identification. The court in that case stated as follows:“... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

104. In George Mwaura Kinyita v Republic [2020] eKLR, the Court of Appeal (Okwengu, Warsame & Murgor, JJ.A) stated as doth: -“19. Therefore, where the prosecution relies on identification the court needs to satisfy itself on the circumstances of that identification. We believe that neither the trial court nor the first appellate court was sensitive to the need to adequately satisfy themselves on the recognition evidence. In Peter Kifue Kiilu & Another vs. Republic [2005] eKLR, this court citing Abdalla bin Wendo and Another vs. Republic [1953], 20 EACA.166 stated:

“Subject to certain well known exceptions, it is trite law that a fact may be proved by testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error”. 20. In the case of Kariuki Njiru & 7 Others vs. Republic, Criminal Appeal No. 6 of 2001, (UR) this Court stated:

“The law on identification is well settled. …the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the Court is satisfied that the identification is positive and freefrom the possibility of error. The surrounding circumstances must be considered… Among the factors the Court is required to consider is whether the eye witness gave a description of his or her attacker or attackers to the police at the earliest opportunity or at all.This Court, in Mohamed Elibite Hibuy & Another vs. Republic Criminal Appeal No. 22 of 1996 (unreported) held that:“If (sic) is for the prosecution to elicit during evidence as to whether the witness had observed the features of the culprit and if so, the conspicuous details regarding his features given to anyone particularly to the police at the first opportunity. Both the investigation officer and the prosecutor have to ensure that such information is recorded during investigation and elicited in court during evidence. Omissions of evidence of this nature at investigation stage or at the time of prosecution in court has, depending on the particular circumstances of a case, proved fatal – this being a proven reliable way of testing the power of observation, and accuracy of memory of a witness and the degree of consistency in his evidence.”

105. PW1 was a person well known to the assailants. She knew them since they were relatives. The incident occurred during broad daylight. They talked to her and slapped her children.

106. PW2, was standing 12 meters away. They ran away after their father was killed. She saw the assailants. Accused 2 slapped her. This was up close and personal. PW3 and 4 confirmed that this is a crisis they started dealing with the previous night. Accused 2 still had the audacity to threaten PW 5 and PW4 with dire consequences.

107. I am satisfied beyond reasonable doubt that the accused persons committed this offence and there was no error in their identification. The level of brutality and deep cuts the deceased suffered at the hands of his brother and uncle left no doubt that they intended to cause previous harm and ultimately death. The means rea was thus proved as against each of the 3 accused persons.

108. In the circumstances I dismiss the alibi as an afterthought. The entirety of the evidence places the accused persons in the locus in quo. They did this with great impunity and did not bother to hide their actions. The state has been able to displace the alibi. The accused were nowhere else other than the scene of crime.

109. I accordingly find that the 1st, 2nd and 3rd accused were all identified as murderers of Chindoro Ngovi. The case of murder contrary to Section 203 as read with Section 204 of the Penal Code is duly proved. I therefore find Hamisi Ngovi Swale Aka Ngovi Mwauwe, Kombo Ali Ngovi, Mbui Thisa Mwalimu Aka Bakari Thisa alias Mbui Dziswa Mwalim, the 1st, 2nd and 3rd accused respectively, guilty of murder of Chindoro Ngovi on 3/5/2017 at 9. 00 am at Mikanjuni village, Gandini location, Kinango sub county as charged.

110. I find the 1st, 2nd and 3rd accused guilty and convict the him of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Miss Aroka for the 3rd AccusedMiss Anyumba for the stateMiss Aroka for Mr. Lijoodi for the 2nd AccusedNo appearance for the 1st Accused and their advocates.Court assistant - Brian