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ORIGINAL JURISDICTION C' ':eyA Registry) CI'4IHAL SSION CASE 1'P7P OF 1981 THE REPJBLIC versus le Di'JIE! McANYILO 2. NORBRT KIBENGU Mur4et c/si 196 of the Co4e0 JUGMENT MR&)SO, J0 DANIEL MGANYILO chhd NURERT K±3ENGU tê hom I sh11 often refer in this judgment as fifst and s8cOn'A accse.scns rospectively were among four perC:1s of chamdini \Tiliaoe, rjnc'a Listrict charged with the murder of oas..ngia Maiwala of the same village cn 25th •:ctober, 180 The pther `;t -6i Akilimal± Feeni and aniei Nocya have since died while if and the c:orqe a'ia,inst them has cchsesuent1y abated. There has been evider:cra thai a person called ".csinqisa 1 taw•a1a, a Masai of Chamdindi village, died in JctC'bor, 10 frcm a cut 'wound O his head which went through the scalp, skull .'-'d the brain meeter. The doctor who performed a post—mortem exnjn:,.tiCn on the hLdv cf tfle deceased after it was idenbified to him by Fd.hhila lialw1a, a brother of the deceased, did tot give evidnce but the post.-mortem report. was admitted in evidence under section 27,5 of the Criminal Procedued, Kibahila M1wa1a (PW1) testified that On 25/10/80 he togethe tith the deceased -Wro was ah elder brother and a younger brother went to a pombe shop where they Ltarted drinking from a0m, till 8 pi,, n1i night. They left towards home in a drunken statc. He claimed that the to accused persons before the court were also preseht at the pombe shop0 He could no knbw the time at which the accusd persons left. When the three brothers passed near the house of'the accused persons it is claimed by Kibahila (Pwl) that a saw the accused persons throwing stones at them but none of thrr. was .it . 1(ibhila and his two brothers who included the deceased run aw.y but only Kiahila ani a younger Irother arrived hoMe. The deceded did not get back home and was never again seen alive.' The witnss said deceased was found dead in the tori aboi,: four days l'.it:ei' Itis his evidence that 0 !j. he Suspected the aCcused persons the Ones who may 'ia.e killed the deceased. Kibahila told the cQurt th.at he and the decd as w..1 as the accused persons lived in the same villace and they :ere all on good terms He could not know why the accused per.ons threw stcnes at them nor the reason why te accused persons. kl.Jn-th.e±ed. There was brirrnt moonlioht, so he could not have mistaen other people for the accused persOris . Mwangalile Mwaludaja (P12), a membeit of the same villaqe as that of tha accused persohS,'nd the deceased said that duting the night of 25/10/ at a1out 9 p.m. he heard voices and the souhd a qoat's bell near 'his hotjge. When he weit outside he saW thd'cèused persons beating with stte.ks the deceaa who was then slAtihel on the ground and appeared to be i bad conditibn.v He Also saw some .djats, about ten of them. He was told that the dèeased had stolen belonging to the seond aecused Kibengu. He' dvised them not'to continue beating the dedeased as he might'. die and that they §hCuld take him to the chairman Of the village defende and security committee. The accused persohs told him they would o so and proceeded ahead as if they wCre really going to the chairirari. .n the followiid day he heard that the deceased had not been seen. 94 did not tell vil1qers that he had seen the accused persons beating him because, he dlaimed, the village chairman had f.orbiden him not to dC until deceased was found. This witness also said in hi evidence that he was able to c'early identify the accused persons because there was full moonlight and alsb hedause th persons talked to him. . . . . . . . .• .. . Both accused persOr1 made their dfChces in unswr tatèthflti, In his very hrie StaMah€ thefirst acCUsed said on 5/10/80 he was at home and that five days 'later he was atres.ted and has been in cu§tody since. The second . aCCUd kibéNlU said he and his wife had been to a pomb shOp from noon till .6 p0rn. When they returned home. He did not go Out again unti.l the follt'wihg day. His wife whom he called as d witness save similar evidence. When under cross-examination she denied that any goats belonging to her husband had. been stOlen in the night of 25/10/80. She said they. did. not.havé any animals at all, not even •hic ken., When the wife of' accused Kibongu was pressed under cross-exanthat.iOn . if she was certain that her haM did not gc' out dur" o the night •t 2511.0/80, she said she di.rct see him 96 Out 0 That, of coure, does not mean that, if she was speakint the truth, her husband could not have gone out without her knowledge, especially so considering that she had been c1 rinking from noon till 6 o.m, and maj, as a result, = have fallen into deep sleep0 At any rate, the ali'i raised by the accused Kibengu will have to be considered in the context of the other evidence which was received. There is no doubt to me that there was bright moonlight ir the night of 25/10/80 and that if PW1 Kibahila and Ph1waiugaja saw the accused - persons within a close distance they would recognize them. It is particutarlyso in th 6 case of PW? Mwaluaaja who claimed to have heard the accused persons talk to hirfi. However, I find the story by Kibahila that the accused perc'hs hrew stoneat the witness and his two brothers for no reasc'n-at all, difficult to accent. Normally people do not attack fellow villagers for no reasonat all. So, if, in fact, the accused persons at-tacked the three r:aai boher, there must have a reason wh5.ch dbahila is unwilling to disdlOe to the court. In the same vein, the r'eäscn must be something which the witness knows is dishoflurable or unpalatable0 If Mwalugaja (P2), is hlievgd Lfl whet he said he sai and was told by the accused pers'n then we can qet a clue eg-3L'dina what Kibahila was suppressing from 4ettina known tO the court 0 If the three brothers had stolen gca€ in their c±unken mood durina the night of 25/10/80 and one pf thomi th deceased, was c ~­uqht when the qoats were being driven away, it ±5 Obviously uLt&kely that ibahila would have disclosed that to the court. -e would ook up the little naive story that they were attached for -xci re Zs o ri aL all After careful cchsideration I am in a nositich to say thatPW2 Mwalugaia was telling the truth when hC said that he saw the deceaed in the cCmpany of thC acdused oersons and that the accused persons were beating the deceased exlaininq that he had stolen goats0 It may well be, as was suggested .y ne Of the as.e;sct', that far mote villagers tcok art in' he iri the dece::sed as a, pdnishment far stealing goats. That may exriiain the cons':ir'tcri;,l instructions by the village chairman that no One shoul I 1scioae abput the heating until the deceased was found first Since I cannot finL reaen fc- suposinq that PW2 - Malugaja w*tild fabricate false evjdoCe aairis the accused persons I hav to eje'rt the statements by the accused oerw'ns denying being involved ir causing the Ieatti of ft. dc?e'-d by be 't ic him wi h sticks. - -_---;- t 4 HavIng accepted the circumstances leadirg i.e the the 4 deceaed—I am reluctant to find that the accused persons had malice aforethought. The accused persons did not use lethal weapons and could have killed him instantly if they had intended to kill hirn 0ne of the assessors suggested that the adcused persons should be convicted of murder as charged and the other assessor said that so many villagers, possbily includinq 2 :velcaja himself, may have been involved in beating up deceased.that she could nothe sure if Mwaiugaja really saw the two accused beating the deceased. She suggested that the accused persons be acquitted0 ?br the reasons which I have already given, I respectifuily differ with both assessors. I acquit both accused persons of the offence of murdr and find them guilty of the lesser offence of manslaughter, contrary to sectIon 195 of the Pepal Code Iccordingly, I convict them. J.A. MRSd JUDGE Mr. Teemba: No previous record s Mr. The first accused i3 aged about 45 years and the second accused is aged about 50 yesrs They are first off ,-ndtilg and have bean in custody for five yers nOw 0 The wife of first aecusd died when he was in custody0 Tiiere is no no one to lôôk after th4 children. The second accused has e+tn children and a blind father depend on him. I ask for leniency for these accused pershns0 S E N T E N C E I have taken into consideration all that was said on behalf of the accusekl persons in mitigaticn of sentence, particularly the fact that they have been in custody for five years waiting for their trial* They are senteneed to hree years imprisonment. J.A. MRdS' JUDGE Right of Appee, explained. AssessOrth4ked and discharged0 J.A. MR)S At rnca JUDGE