[2022] KEHC 14152 (KLR)

Republic v Wakabe & 2 others (Criminal Case 20 of 2018) [2022] KEHC 14152 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14152 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 20 of 2018

SN Riechi, J

October 7, 2022

Between

Republic

Prosecutor

and

Daniel Wafula Wakabe

1st Accused

Edwin Mukhwana Nambafu

2nd Accused

Andrew Wafula Njabikha

3rd Accused

Judgment

1. The accused Daniel Wafula Wakabe (1st accused), Edwin Mukhwana Nambafu (2nd accused) and Andrew Wafula Njabikha (3rd accused) are charged with offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on the April 3, 2018 at Kibisi village, Namarambi sub-location of Bungoma East Sub County within Bungoma County jointly with others not before court murdered Kelvin Wekesa Wakape.

3. The case for the prosecution is that on April 3, 2018 at between 9-10 am PW1 Jackline Khamar the wife of the deceased heard people say the deceased had been set on fire at the road. She went there and saw her husband the deceased lying on a trench with burns. They put him on a bodaboda and took him to Lugulu hospital where he was admitted and the next day transferred to Kakamega hospital where he died on April 13, 2018. While in hospital, the deceased told her that it is Christopher and Andrew who had killed him because of a land dispute with his uncle Daniel Wakabe who is the accused.

4. On being cross-examined by Makali for the accused 1 she stated that she did not see accused 1 at the scene but stated that the deceased mentioned the issue of land and Daniel, Christopher and Andrew. She denied knowing accused 2 Daniel.

5. PW2 Joseph Sitati testified that on April 3, 2018 at 9 am was at the bodabod stage when he ferried a passenger Musungu Mukhana on his motor cycle to Kamukuywa. On the way he found Daniel (accused 1) accused 2 Edwin whom he knew by appearance and Andrew (accused 3) and one Chris who is not in court. He saw accused 1 Daniel hit him on the head, he then saw Chris obtain petrol form a motor cycle and poured on the deceased. He then saw accused 1 Dan take a match box and set the deceased on fire. The deceased then jumped into a trench where there was water. The fire was put off by the water in the trench. They removed deceased and took him to hospital at Misikhu where he was later transferred to Kakamega Hospital where he died.

6. On being cross examined by Makali for accused 1 he stated that he knew deceased as a bodaboda rider and accused 1 as a teacher. He stated at the scene he found 5 people having tied the deceased. He stated he saw accused 1 Daniel hit the deceased with a stick and then set fire to him and many people came. Accused 1 then ran away.

7. On being cross examined by Onkangi for accused 2 he testified that though he saw accused 2 Edwin at the scene he did not see him do anything to the deceased. On being cross examined by Wekesa for accused 3 Andrew, he stated he saw accused 3 Andrew stepping on the deceased.

8. PW3 Gladys Khisa Simbari the grandmother of the deceased received a telephone call that deceased had been burnt at Kibisu. She went there and confirms. The deceased had burns and she covered him with a lesso. He was taken to where he died while undergoing treatment.

9. PW4 PC Julius Kosgey on April 3, 2018 received information that a person was being burnt by members of public who alleged that he had stolen a motor cycle. He called the OCS who sent officers to the scene. On April 17, 2018 he together with the investigating officers visited the scene where witness statements were recorded. He was given names of suspects accused 1 and 3 who were later arrested.

10. PW6 Segt John Namwano the investigating officer testified that on April 3, 2015 she received information that there was a boda boda rider who had been set on fire at Kibisu. She and other officers visited the scene. On arrival they were informed the person had been taken to hospital. She visited the person at the hospital and commenced investigations. She recorded statements and caused accused 1, 2, 3 to be arrested. The other suspect called Chris is still at large.

11. On being cross-examined by Makali for accused he stated that he visited the deceased in hospital but did not hear him mention.

12. PW7 Joshua Musungu Makhanu was riding on a motor cycle going to Misikhu. On the way he saw a person lying down and another person on top of him beating him. He heard people calling one Andrew and another Daniel. Daniel is accused 1 and Andrew is accused 3. He then herd accused 3 Andrew tell Daniel (Accused 1) to get petrol from a motor cycle. Accused 1 Daniel then got petrol from a motor cycle nearby and poured on the person lying down and lit a matchbox. The person lying down caught fire and rolled to a calvert. He saw many riders come to the scene and he and Joseph the rider left the scene. He stated that though there were many people at the scene, he saw accused 1 Daniel and accused 3 – Andrew active. He later saw the man who was set on fire being taken to hospital.

13. PW5 Dr Dickson Mchana Malundina conducted a post mortem on body of deceased. He found the deceased had infected burns covering face, chest, arms, buttocks veering 50% of the body. He had stab wound on left hand and right shoulder. He formed opinion that cause of death was due to severe infections secondary to dry heat burns and assault.

14. On June 22, 2022 Ms Natwati advocate for accused Daniel Wafula Wakabe informed this court that accused 1 has passed on and submitted the certificate of death and burial permit to court. The charges against accused 1 Daniel Wafula Wakabe were therefore withdrawn.

15. Accused 2 Edwin Mukhwana Nambafu and accused 3 Andrew Wafula Njambia gave sworn evidence. Accused 2 Edwin Mkhwana testified that on April 3, 2018 at 11 am he was at his farm weeding when he heard people screaming mwizi, Mwizi form the road which was about 50 meters from where he was. He went there and found the person had been taken to hospital. He did not know the people who beat him and he dined being involved in the killing of the deceased.

16. Accused 3 Andrew Wafula Njabika testified that on April 3, 2018 he was at his carpentry shop where at 11. 30 am he heard that a thief had been arrested at their home on allegation of stealing a motor cycle. But he did not leave his workshop. He was later arrested by police. He stated he did not know his co-accused nor the deceased.

17. The accused are charged with the offence of murder contrary to section 203 of the Penal Code. Section 203 provides:'Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.'

18. The ingredients of the offence of murder which the prosecution must prove beyond reasonable doubt are:a.The fact and cause of death.b.The unlawful act or omission causing the deathc.That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d.That the accused committed the unlawful act with malice aforethought.

19. PW5 Dr Dickson Machana who performed the post moterm on the deceased testified that the deceased suffered 56% burns and had stab wound on left hand and shoulder. After examination he formed opinion that cause of death was dry heart burns and assault. He produced the post mortem form which he produced and Exhibit 3.

20. The second ingredient that the prosecution must prove in a charge of murder is that it is the accused who by an unlawful act inflicted the injuries on the deceased from which he died. This is therefore the issue of positive identification of accused as the person or persons who set fire to the deceased and effected the assault.

21. PW1 Jackline Khamali the wife of the deceased testified that on the material day she herd people saying that her husband Kevin had been set on fire. She went there and deceased mentioned the name of Daniel Wakabe (accused 1 now deceased) and Andrew accused 3 and another person Chris who is at large as persons who burnt him because of a land case his father had with the father of Daniel (accused 1) and that he was not a thief. In cross examination by Mr Onkangi for accused 2 she stated she did not know accused 2 Edwin and only saw him in court

22. PW2 Joseph Sitati who arrived at the scene while on his way in a motor cycle, on testifying what he saw stated:'I stopped and alighted. I saw they had cut him on the head. I saw accused 1 hitting him on the head. I then saw Chris go to a motor cycle and removed petrol. He came and poured on the deceased. I know the deceased as Dan. After Chris had poured petrol on him accused 1 took a match box and lit fire. People came and deceased jumped into a trench which had water. The people came and accused ran away. The fire was put off by the water. We removed him and took him to Misikhu Hospital. later I learnt that he was taken to Kakamega where he died.'

23. On cross examination by MR Onkangi for accused 2 on the role of accused 2 Edwin at the scene he stated:'The accused 2 stays at Misikhu. His home is about 2 km form mine. I did not see accused 2 do anything at the scene'.

24. In respect to accused 3 Andrew he stated'I found the deceased already tied. I saw accused 3 stepping on the deceased. Accused is the one who lit the fire. 1, Joshua took him to hospital. The wife of deceased followed us. Accused 3 has a posho mill at Misikhu. I have known accused 3 for other 12 years. I have not seen the motor cycle where petrol was removed from in court.'

25. PW7 Joshua Musunga Makwhana in his evidence stated:'The one who was beating him was not known to me but they were calling him Andrew. There was another called Daniel who was telling Andrew to continue beating him so that he cannot overwhelm them. I heard of the names as they were calling each other. Andrew is accused 3. He is on the screen. Daniel is accused 1. He is on the screen. Those are the ones I heard their names. I then heard Andrew accused 3 tell Daniel accused 1 to get petrol from a motor cycle. Daniel then got petrol form a motor cycle which was near there. They were saying he had stolen a motor bike. Daniel removed the petrol into a plastic container. He then poured on him and lit a match body. There were many people present. The person rolled into a culvert while still burning. I then saw many moto cycles from Misikhu coming to the scene. I left the scene as I feared the bodaboda. I told the rider and we left the scene. The rider was Joseph (PW2). I only saw the 2 being active. The others were just watching.'

26. From the evidence of these witnesses the persons who assaulted the deceased were accused 1 Daniel (now deceased) and accused 3 Andrew. They do not in their evidence state the role if any played by accused 2 Edwin Mukhwana. Accused 3 Andrew in his defence stated that though he heard of a per son having arrested on allegation of stealing a motor cycle, he remained at his workshop and did not go to the scene. He was then later arrested. His defence therefore is that he was not at the scene where the offence occurred at the time it occurred. I have considered the evidence of PW2 Joseph and PW7 Joshua and I am satisfied that their evidence places accused 3 Andrew at the scene and his alibi defence has therefore been displaced by the prosecution evidence. I am therefore satisfied that accused 3 Andrew Wafula Jointly with accused 1 Daniel now deceased inflicted the injuries on the deceased from which he died.

27. As for accused 2 Edwin Mukhwana Nambafu I find no evidence connecting him to the death of the deceased. I therefore find accused 2 Edwin Mukhwana Wafula not guilty of the offence of murder contrary to section 204 of the Penal Code and acquit him accordingly. Accused 2 Edwin Mukhwana to be set at liberty unless otherwise lawfully detained.

28. As for accused 3 Andrew I find that the act of participating in setting fire to the deceased with others was aimed at causing grievous harm or death and therefore malice aforethought has been proved.

29. I therefore find accused 3 Andrew Wafula Njabikha 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 7THDAY OF OCTOBER, 2022SN RIECHIJUDGE