[2022] KEHC 12886 (KLR)

Republic v Tinga (Criminal Case E013 of 2020) [2022] KEHC 12886 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12886 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case E013 of 2020

A. Ong’injo, J

July 7, 2022

Between

Republic

Prosecution

and

Edison Nyale Tinga

Accused

Judgment

1. The accused herein was charged with the offence of murder contrary to section 203 as read with 204 of thePenal Code cap 63 of the Laws of Kenya.

2. Particulars of the offence are that on the 22nd Day of September, 2020 at Mwarakaya Location in Chonyi Sub- County in Kilifi County jointly with others not before the court murdered Haningtong Tinga Nzombo.

3. The prosecution called seven witnesses.

Summary of Prosecution’s Case. 4. PW1 was Lilian Idza Tinga, daughter to the deceased and sister to the accused person. She testified that the accused person lost his child Neema Nyale from cesarean section complications in May 2020. When her body was brought for burial chaos erupted. Her brother Daniel Tinga removed the chair that their Uncle Majimbo had sat on and told him that he was involved in witchcraft. The deceased person came to inquire what was going on and the accused person told him to wait for the body to be buried so that he could exhume the body and eat the flesh. Uncle Majimbo reported the matter to the police and Daniel was arrested. In July 2020, the deceased grandchild took their mother from the home they shared with the deceased and took her to Likoni. The deceased remained at their house alone. In July of 2020 her brothers; Edison the accused, Ngombo, Peter and Daniel took the deceased to Duruma for an oath taking ceremony to establish if he practiced witchcraft. It was established that he was not practicing witchcraft. He called her after and expressed that he was happy as he had been saved. She went the following day to visit him and found her sister Fatuma there as well. They celebrated and after three days she went back to Kilifi. After two weeks the deceased called her at 10. 00 am and informed her that his house had been broken into at night and a hole had been dug next to his bed. Luckily, he had woken up and heard people running away. She advised him to go Ngombo’s, her brother’s house as it was a permanent structure. While at Ngombo’s, he called her informing her that the same incident had happened and a hole had been dug next to his bed at his house. Two weeks later, he informed her via a call that he was going for some training at 7 am. At 11 am he called her informing her that the Chief called him for a meeting as the sons wanted to reconcile. His children Ngombo, Edison the accused, Daniel, Shadrack, Racheal and her child were present in the meeting. The meeting was however not reconciliatory in nature as only Ngombo had greeted him and they had all refused to apologize to him. When the deceased went back to Ngombo’s house he found that he had been locked out and clothes thrown out. He went back to his house. He inquired from the chief what had happened and he was advised to go to her house. He took a matatu and went to her house in Kilifi. After three days, he reported the matter to Kijipwa police station. She stayed with the father till August of 2020. On September 23, 2020 in the morning she was informed by Mama John, that her father had been murdered.

5. PW2 Sebastian Mwalemba. He and the deceased came from the same sub location. He testified that on July 17, 2020 the deceased told him that his life was in danger and he was being suspected of being a witch by his children and they wanted to kill him. He did not specify who of his children wanted him dead. He referred them to Kijipwa police station but deceased did not report back to him. Two months after he reported that his family had denounced him. He summoned children of deceased; Ngombo, the accused, Shadrack, Peter and Daniel among others asked them for a meeting at 11. 00 am on July 24, 2020. Two days earlier the children of the deceased had taken him to an oath ceremony in Duruma to establish if he was a witch and it was established that he was not. On the way back they had abandoned him in Kwale and he had to look for his own means of transport. He also told him that two days earlier he had been woken up with people who had tried to dig a hole in his bedroom. During the meeting, he gave the sons an opportunity to talk and Ngombo said that they loved the deceased but he had been keeping bad company of witches. accused said that the deceased used to associate with witches. He advised them not to abandon their father. When they went back the sons locked their houses and left deceased to stay in his house that didn’t have security. His house was attacked a second time and he reported this as well at Kijipwa police station. However, he never saw the people who had dug at his house. After two weeks he got a report that the deceased had been murdered.

6. PW3 was Philip Chilango, the deceased was his father’s cousin. He testified that daughter to the accused died after undergoing a cesarean section. She was hesitant to have the caesarean section. When bringing the body to the funeral, a scuffle ensued and Uncle named Majimbo was sent away by Daniel Tinga but other children restrained Daniel from assaulting their Uncle. Majimbo reported the assault. He testified that he heard the accused tell the deceased during the burial, ‘Wewe mtu was 80 unauua mtoto wa miaka 25. ’ The police arrested Daniel and he was taken to Banda Salama. The next day Daniel went back to the station and apologized to Uncle Majimbo. It was documented and produced as MF1P1. After they went back home deceased told them that they should go for meeting. PW1, Tinga, fatuma Tinga,koshole Gami were present and he told them that his wife and children were trying to kill him on allegation that he was a witch. The wife had been taken away and had been left at their house alone. Later, deceased reported that a hole had been dug next to his bed, twice. In early September 2020, Ngombo, the accused, and Daniel came with a taxi and took the deceased. The accused and Daniel came the same morning to pick him up and took him to their home. He found Jambo Kwesha and the deceased. Ngombo told him that they were taking the deceased to an oath taking ceremony. Deceased went to get dressed and accused went to the bedroom door and shouted at him to hurry up lest he thought of escaping. They went and deceased came back at 3pm. He told him that the ceremony had been done and it was found that he wasn’t a witch. Despite this his children had left him to look for his own means of transport back. Documentation proving the oath taking ceremony had taken place was left with the children. He further testified that Daniel Tinga once called the deceased and told him that they would kill him and bury him with blood stained clothes. He accompanied deceased to Kijipwa police station and reported the matter under OB 17. On June 18, 2020. He recorded a statement and it was produced in Court as MF1P3and statement made by deceased was produced as MF1P4. Despite reporting the matter to the police the deceased told him that no action had been taken and his son Daniel still continued to threaten him. On September 22, 2020 at 9. 00 pm he had screams from the deceased house. He rushed there to find deceased lying outside his door in a pool of blood. He had cuts on his head, face and hands. He was immobile and could not talk. He called the inspector of police to organize for transportation but after a while groaning stopped and they established deceased had died.

7. PW4 was No 235013 PC Nzioka Matui, from Kijipiwa police station. On June 18, 2022, the deceased reported to the station that his son Daniel had called him vide 07510xxxxx though his usual number was 075885xxxx. Daniel had remarked that the deceased had killed a child and wanted to kill another. He called 075885xxxx but it didn’t go through. He established later that number was not registered. Deceased told him that he would summon his children to discuss the matter and he would report back to the station but he never did. He handed over investigations of the matter toDCI Mtwapa.

8. PW5 No 251586PC Ismael Ibrahim. He testified that on August 4, 2020 deceased came in with PW3 at kijipwa police station and reported that his children Edison the accused, Daniel, Peter, Shadrack, and Ngombo wanted to kill him. He testified that they had been a commotion at the funeral of the accused daughter because of Daniel and he had recorded and booked this report. He had summoned the sons but they did not comply. He pointed out to accused as the one who had threatened to kill the deceased.

9. PW6 was Dr Bernard Oduor a medical doctor at Kilifi County hospital. He testified that deceased had injuries on both arms, head and face. He testified that death of the deceased was a result of assault of intracerebral hemorrhage secondary to severe head injury. He produced postmortem report asEXP5.

10. PW7 was investigating officer Dennis Isemek attached to DCI Mtwapa. He testified that on September 22, 2020 he was called by DCIO Kilifi South and informed that there was a murder at Chonyi Sub County. He visited the scene and started investigations. He established that accused daughter had died after an unsuccessful caesarean section and the deceased was accused of bewitching her. The matter was reported to the Chief and agreement was reached. It was produced as EXP1. Tension continued between the deceased, accused and Daniel and they continued threatening to kill him. The deceased reported this to the chief on June 18, 2020 alongside witness statement ofPW3. Tension continued and accused wrote a letter to deceased telling him he was not his son and that he should leave him alone. Threats persisted and the house of deceased was broken into but assailants didn’t find him. He sought refuge in his daughter’s house in Mtwapa and reported threats at Kijipwa police station and it was booked under OB number August 4, 2020. PW3 recorded alongside the deceased a witness statement. He produced the OB from Chonyi police station asEXP6 and letter from accused to deceased as EXP7 and statement of deceased and PW3 as EXP8(a) (b)respectively.

11. At end of prosecution case the court found that aprima facie case against the accused person had been established and placed him in his defence vide a ruling dated March 31, 2022.

12. The defence called two witnesses.

Summary of Defence Case 13. DW1 was accused person. He testified that on 22nd August 20202 he was at his home in Likoni. He left home at 7. 30 am and went to look for work but the covid pandemic had affected everything. He came back home at 3. 00 pm. His wife Glady’s prepare tea and then after he left at 4 pm and went to a drinking den and drank two bottles of wine and returned home at 6. 00 pm. He had supper with his family at 8. 30 and switched off his phone to charge. At 9. 30 he switched on his phone and found missed calls from his brother Ngombo. He called him and he was informed that their father had been murdered. It was during curfew so they could not leave. At 5 am they all went to Chonyi and they found that the body had been taken to kilifi hospital. He went alongside his three brothers to the mortuary and he identified the body and started burial arrangements. He testified that Daniel is the one who had made calls to the father threatening him and believed that deceased had bewitched his daughter. He further testified that the dispute between Daniel and deceased on May 24, 2020 was documented by the sergeant in charge. On October 17, 2020 he was arrested alongside, Ngombo, Shadrack, Rachael and their mother Janet as they were going to bury the deceased. They were in custody for two weeks after which his mother and siblings were released. The Investigating officer never interrogated his wife in Likoni about his whereabouts. He was charged on mere suspicion. On cross examination he testified that he had a great relationship with the deceased as he was his advisor. He recalled that they had conflict in the past. In 2005 when he was in hospital for a month and the deceased had taken in his children as he was out of employment but they later had conflict on account of his unemployment. He had later written a letter inquiring why the deceased was discriminating him and no longer called him but deceased apologized. In 2011, he had failed to record that deceased had threatened to murder him. It was also in 2011 that deceased called him and his brother Ngombo and told them that there was a conspiracy to kill him by a man called Sammy Majunga. Majunga however said that it was PW3 who had had planned to kill him. The deceased was also said to have killed Mzee kaimeme but charges were never preferred against the deceased. These allegation were made by family of Mzee Kaimeme and they confronted their father and told them it was wrong. He further testified that it was his Uncle’s children that claimed that the deceased was a witch and there was a land dispute between him and his cousins. He testified that it is the deceased who had asked them to take him for the oath taking ceremony.

14. DW2 is Gladys Nyale, Spouse to accused. She testified that they had been married for 22years but had no marriage certificate. On August 22, 202 at 9. 30 pm they were with accused at Likoni in their home when they got news that deceased had died. accused left home the next day at 5. 00 am. The police came to interrogate her and asked where accused was on the day deceased was murdered and she told him them he was in Likoni. She further testified that the deceased used to visit them and even consoled her during the burial of her daughter and there was no blood between them and she was surprised when the husband was accused of the murder.

15. None of the parties tendered their submissions.

Analysis and Determination. 16. I have considered the evidence presented before the court both by the prosecution and the defence and in my opinion, the main issue for determination is; whether the prosecution proved the case against the accused to the required standard and which standard has been held to be that of beyond any reasonable doubt.

17. Section 203 and 204 of the Penal Code under which the accused person is charged provide for the offence of murder and the punishment for it. The sections read as follows: “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. Any person who is convicted of murder shall be sentenced to death.”

18. The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves 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.”

19. In Mombasa High Court Case Number 42 of 2009 between Republic vs Daniel Musyoka Muasya, Paul Mutua Musya and Walter Otieno Ojwang the court expressed itself as hereunder: “The prosecution therefore is required to tender sufficient proof of the following three crucial ingredients in order to establish a charge of murder: a) Proof of the fact as well as the cause of the death of the deceased persons. b) Proof that the death of the deceased’s resulted from an unlawful act or omission on the part of the accused persons. c) Proof that such unlawful act or omission was committed with malice aforethought.”

Proof of Fact as Well As Cause of Death of Deceased Person 20. This first ingredient of murder was not in dispute. The death of the deceased was attested to by all prosecution witnesses as well as the defence witnesses. Doctor Bernard Otieno, PW6 testified that deceased had deep cuts wounds on the back of his head, face and died from intracerebral hemorrhage due to severe injury.

Proof That Death of Deceased Resulted From An Unlawful Act or Omission on The Part of The accused Person 21. It was the evidence of PW3 that heard screams from the deceased house at about 9pm on October 22, 2020 and ran out to find deceased with deep cuts on hands, face and hands. By the time he got to the deceased house the deceased was alone. The accused person however provided an alibi for defence vide the testimony of DW2 who corroborated his assertions that he was at their home in Likoni on the 22nd of August at 9. 30 pm when they received news of the murder of the deceased. There was no witness or evidence provided by the prosecution that put the accused person at the scene of the crim. It would also not have been possible for accused to have murdered the deceased and made it home by 9. 30 pm as the distance between the two places is about 65 kilometers and it was during the lockdown that there was a night time curfew between 9. 00 pm and 4. 00 am. From the foregoing it is my finding that this ingredient was not proved to the required standard the prosecution.

Proof That Such Unlawful Act Or Omission Was Committed With Malice Aforethought. 22. From evidence provided by the prosecution it is clear that the deceased had a strained relationship with most of his family members especially the male children. The accused person had lost his daughter from childbirth and had suspected the deceased of bewitching her and this belief was also held by Daniel, Shadrack, Peter and Ngombo, who even forced the deceased to undergo an oath ceremony to confirm or disapprove their beliefs. After the ceremony. despite the deceased being found not to be a witch his children left him to find his own means of transport and also threw out of Ngombo’s house, indicating that they harbored deep hatred for their father. It is also in evidence that both the accused person and Daniel had threatened the deceased severally that they would kill him. accused person went as far as to disown his father vide a letter. From the foregoing it is evident that his sons especially accused and Daniel harbored ill motive towards him and it could have been all of them who ganged up against him or one of them. However, the prosecution failed to provide evidence that could have put the accused or any of his brothers at the murder scene. From the foregoing I find that this element was not proved to the required standard.

23. In conclusion I find that the police did not conduct proper investigation into the matter as Daniel was never arrested to establish his whereabouts on the night the deceased was killed. Also, telephone records could have been provided to establish where accused person and his brothers were the night the deceased was murdered. The police could also have done more to protect the deceased after he made several reports that his life was in danger.

24. The upshot of the matter is I find that the prosecution did not prove the matter to the required standard and the accused is acquitted forthwith.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 7th JULY 2022. HON. LADY JUSTICE A. ONG’INJOJUDGEIN THE PRESENCE OF: -Mr. Mwabodza for Advocate for accused personOgwel - Court Assistantaccused - present in personMr.Ngiri for StateHON. LADY JUSTICE A. ONG’INJO J07/07/2022Mr. Mwabodza; I pray that surety be dischargedORDER: Surety to Accused discharged.HON. LADY JUSTICE A. ONG’INJO J07/07/2022