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Republic v Katana & another (Criminal Case 45 of 2018) [2022] KEHC 13639 (KLR) (6 October 2022) (Judgment)

This judgment has been anonymised to protect personal information in compliance with the law.
Republic v Katana & another (Criminal Case 45 of 2018) [2022] KEHC 13639 (KLR) (6 October 2022) (Judgment)
Citation
Republic v Katana & another [2022] KEHC 13639 (KLR)
Media Neutral Citation
[2022] KEHC 13639 (KLR)
Court
High Court
Court station
High Court at Mombasa
Outcome
Acquitted
Case number
Criminal Case 45 of 2018
Attorneys
Mr. Munyari Advocate, Mr. Odhiambo Advocate holding brief for Mr. Obara Advocate,
Judges
A. Ong’injo
Judgment date
6 October 2022
Language
English
Type
Judgment
Collections
Date published
18 October 2022
Case action
Judgment
Court division
Criminal
Filing county
Mombasa
Order
Court’s hands tied as the prosecution has not sufficiently proved the charge of murder against the accused persons beyond all reasonable doubt. The accused persons are therefore acquitted and set at liberty.
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1.The accused persons Karembo Nzai Katana and Amani Nzai Katana charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 of the Laws of Kenya.
2.Particulars are that the accused persons Karembo Nzai Katana and Amani Nzai Katanaon on the August 25, 2018 at Mbirimbiri, Kayafungo Location, Kaloleni Sub County in Kilifi County within Coast Region jointly murdered Nzai Katana Nzai.
Prosecution Case
3.PW1, Daniel Tuva Kasangawa, stated that on September 4, 2018, he was at home when he was called on phone by Alphonse Kazungu the village elder at about 10.00 am who asked whether he knew anything about the deceased. PW1 asked what had happened and he was told that the deceased’s whereabouts was not known as he had not gone to work. That the deceased was PW1’s uncle and he found no one when he went to his house. That the deceased could also not be reached on phone. PW1 stated that when he went to the deceased’s house, he found a six-year old child who said that her mother had gone to Voi. That he also spoke to the other child, Amani, who said he had not seen his father for three months. PW1 stated that the following morning and in the company of Joseph, the village elder, they went to report the issue to the sub-chief. On September 6, 2018, the sub-chief, Samuel Jali, informed them that the deceased’s brothers had informed them that the decease’s brothers had made a report to the chief. That September 7, 2018, PW1 went to the deceased’s house and found the first accused whom he informed that the deceased’s family members were required at the police station. Shortly thereafter, the 2nd accused arrived and the two in the company of PW1 went to the police station where they were interrogated. They later boarded a police vehicle to the deceased home where they found a hole behind the house meant for construction of a pit latrine and the same had been covered.
4.PW1 further stated that the police asked for a hoe and started digging the hole. They recovered a knife with a black handle and the knife in court is not the one that was recovered. That the police continued digging and the decomposed body of the deceased was recovered from the hole. That the black trouser that the deceased wore was in court. The black trouser that the deceased wore was marked as MFI – 1. He had a blood stained jacket marked as MFI – 2. PW1 stated that on his upper torso, he had a piece of cloth which PW1 did not see well. That the police prevented members of the public from beating the accused persons as they were suspected to have killed the deceased. PW1 stated that the deceased and the first accused never used to get along as the deceased alleged that the 1st accused was a witch. That the deceased was imprisoned for one year for calling the 1st accused a witch. That the 2nd accused supported his mother and it is on this basis that he did not get along with the deceased. That the police took photographs of the scene where the deceased’s body was recovered, and the photographs marked MFI – 3 (a), (b), (c), (d)(i), (ii), and (iii), (e), (f), (g), (h), (i).
5.PW2, Sulubu Randu Nzai, stated that on September 10, 2018, he was told that his cousin Nzai Katana Nzai, the deceased, had disappeared. PW2 stated that he had been formed that the deceased had not been seen after the night he attended a party at his brother’s homestead. That on September 16, 2018, PW2 went to Kilifi District Mortuary where he identified the deceased’s body. PW2 stated that on September 20, 2018, he attended a postmortem in the said mortuary for his cousin. He stated that the deceased’s clothes, a black trouser, black t-shirt, and white jacket were removed from the body. The witness identified the deceased’s trousers MFI – 1, the jacket MFI – 2, and the black t-shirt MFI 4. PW2 stated that the deceased had a cut wound on the right side of the head, a cut on the back of the head, and another cut wound on the right side of his cheek. That the deceased had been stabbed on the neck and it was a deep stab wound. The wrists and the elbows of both hands had been cut. PW2 stated that the deceased and the 1st accused had disagreed just before he died as he accused the 1st accused of being a witch.
6.PW3, Joseph Majimbo Karisa, a village elder for Mbirimbiri village stated that on September 6, 2018 at 1.00 pm, he recalls that he passed by the 1st accused’s home to borrow a tree from which to make a broom. That he wanted to go behind the house to cut the tree but he was told not to and she directed him to the left of the house. PW3 stated that while he was cutting the tree, the 1st accused was nearby. He stated that he saw some coconut which had dropped and the coconut tree is for Daniel Tuva. Thereafter, PW3 told Daniel Tuva about his coconuts then proceeded home. That at about 4.00 pm, Daniel Tuva, a member of the police community, and Kazungu Kambi, the village elder went to his home and told him that while he was picking the coconut, he saw some signs which were suspicious and that the pit which the deceased had dug had been covered in a casual way and suspected that the deceased who had gone missing had been buried in the pit. PW3 stated that a report had been made on September 4, 2018 that the deceased had gone missing and PW3 told the two that they should quietly conduct their investigations and on September 7, 2018, PW3 and Daniel Tuva went and reported their suspicions to the sub-chief who also told them that some members of the family had also reported their suspicions.
7.PW3 further stated that on September 9, 2018, at 7.00 pm, Garama Randu the younger brother of the deceased went and showed him the OB Number for the report he had made at Kaloleni Police Station. That on September 15, 2018, at 10.00 pm, the assistant chief called and instructed PW3 to inform the 1st accused and her son Amani to go to Kaloleni Police Station as the OCS wanted them. That at 2.00 pm, PW3 went to the deceased home and found the OCS Kaloleni Police Station had started digging the pit behind the house where he assisted. PW3 stated that about 3 feet, they recovered a knife which was in court MFI – 5 and as they continued digging, they came across the knee of the deceased. That the body of the deceased was 6 feet in the pit and it was already decomposed. That the body was buried in a black trouser, there was a jacket and a black t-shirt and the said clothes were in court identified as MFI – 2, MFI – 3 and MFI – 4 respectively. PW3 stated that before the body was exhumed, the OCS went and brought the 1st accused who confirmed that the body in the pit was that of her husband. PW3 stated that the relationship between the deceased and the accused was not good.
8.PW4, Kamone Bonea Kagongo, stated that he is related to the deceased and that the deceased’s home is about 30 minutes - walk from his home. That on August 24, 2018, he was at home on leave and had organized a ceremony for his child and the deceased passed by his home at 7.00 pm and stayed together up to 2.00 am when he left to go home. That the deceased was employed in a bakery at VOK and was to go back to work the following day. PW4 stated that he was with his uncle Kazungu Kagongo and the deceased and the ceremony was to take place the following day. That on August 25, 2018, the deceased did not show up. That the deceased was a close friend and he was expected as a guest. PW4 stated that on August 26, 2018, Katana, the deceased’s child passed by PW4’s place as he went to Madrassa and when asked where his father was, he stated that he had not seen the father for long. That on September 5, 2018, PW4 went to the police station and reported that the deceased was not being seen at home. PW4 stated that on September 5, 2018, the village elder for nyumba kumi went and told PW4 that the deceased person’s employer called the deceased’s uncle to ask why the deceased was not going to work and PW4 told Daniel Tuva that he was with the deceased on August 24, 2018. PW4 stated that on September 15, 2018, he witnesses the body of the deceased being exhumed from the pit. That the clothes which were on the deceased’s body were in court MFI – 2, 3, and 4.
9.PW5, No xxxxxx, P C Mark Sohelo attached at Kaloleni Police Station stated that on September 15, 2018 at about 3.00 pm, he was at the station when he was called by the OCS to his office. That the Chief Inspector Ali Ahmed called him together with his colleague P C Rotich and wanted them to accompany him to the scene of a missing person. PW5 stated that it is Nzai Katana Nzai who was missing and he went to the scene using a G K vehicle in the company of the 1st and 2nd accused persons herein together with two elders. That the scene was at Mbirimbiri in Kayafungo location and on arrival at the home of the missing person they approached her house and the OCS started interrogating the two suspects concerning the deceased and asked why they were not bothered. PW5 stated that they searched the compound and behind the house about 20 meters found some soil which was different from the surrounding. That they asked for a spade and jembe and started digging with the assistance of members of the public. He further stated that it was suspected the deceased had been killed and buried secretly. PW5 stated that while digging they found a knife which was identified as that of the deceased. That they continued digging and found the body of the deceased which was identified as that of Nzai Katana Nzai and it had stab wounds on the throat, there were multiple deep cuts on the right side of the head and there were cuts on both hands. That members of the public were enraged and were contained from undertaking mob justice. PW5 stated that the body of the deceased was taken to the mortuary for postmortem. Later on, he recorded his statement. That the Investigating Officer drew sketch maps which is a fair reflection of the scene MFI – 6. That the house of the deceased and that of the 2nd accused was approximately 20 meters apart.
10.PW6, Dr Swaleh Masood Muhsin, surgical resident at Coast General Hospital, stated that in 2018, he was in Kilifi as a medical officer and he used to conduct postmortem and prepare reports apart from other medical duties. That on September 20, 2018, he conducted a postmortem on the body of Juma Katana Nzai which was brought in by police officers. PW6 stated that the body had black trousers and black t-shirt that was blood stained and the whole body was covered with soil. That the body was in rigamortis state at the time of postmortem. Externally on occipital region, there was a deep cut wound approximately 6 cm. There was another deep cut wound with a fracture exposing the brain. The brain injury was on the side and front of the head. On the back, there were stab wounds with injuries to the trachea. On the right hand, there was a deep cut wound with a fracture at the wrist joint. He had mid shaft radial fracture. On the left hand, he had cut wound on phalanges, an ulna fracture, deep cut wound on the wrist joint, causing multiple fractures. PW6 stated that as a result of the examination, he formed an opinion that the cause of death was severe head injuries. PW6 stated that he filled a postmortem report dated September 20, 2018 and was stamped by the hospital stamp and produced as Ex P5.
11.PW7, No xxxxx, Sergent Stephen Nyamai attached to the Crime Scene Investigations DCI headquarters Mombasa County stated that he photographs crime scenes and processes photographs taken at the scenes. That he is gazette as the Crime Scenes Officer No xxxx of July 17, 2003 by the AG. PW7 stated that on October 27, 2018 at about 10.00 hours, he received a sealed packet No CR 316/206/218 signed by the Chief Inspector Ali Ahmed under cover letter No SECT01/2/10/2 dated October 22, 2018 and signed by the Chief Inspector Ali Ahmed who requested PW7 to process photographs. PW7 stated that he did process the photographs and the package MFI – 3 (j), letter dated October 22, 2018 from Kaloleni Police Station MFI – 6 (a). PW7 stated that he processed the photographs which he produced MFI – 3 (a) – (i). That the photographs have not been altered or interfered with in any way. That he received the CD from which he processed the photographs and that the CD was in court. PW7 further stated that he prepared a certificate dated October 22, 2018. PW7 produced the letter, package photographs, CD and certificate as Ex 3 (a) to (i), 3 (j) 3 (k), and 3 (l).
12.PW8, No xxxxx, P C Gosi Ephantus Okombo from Kaloleni Police Station, the Investigating Officer in the case states that September 16, 2018, he was at the station when he was called by the OCS to his office to investigate a case of murder where one Nzai Katana Nzai was found secretly buried behind his house in an unused pit latrine. PW8 stated that he recorded the statement of witnesses and visited the scene and established that on August 24, 2018, the deceased left his home and went to attend a birthday party at the home of Kamone where his son Salim was celebrating his birthday. That at 2.00 hours, he excused himself to go back home and sleep and come back in the morning to continue with the party. PW8 stated that however, on August 25, 2018, Nzai did not show up. That on August 26, 2018 Kamone went to the deceased’s home and met Amani Nzai Katana, the 2nd accused, and asked for the father but Amani alleged that he had not seen the father for 3 weeks.
13.PW8 further stated that on September 4, 2018, one Daniel Tuva received a phone call from one village elder who asked for the whereabouts of the deceased since he received a phone call from his place of work as he had failed to report on duty. PW8 stated that Tuva went to the home but did not find him. That on September 6, 2018, Kamone was herding cattle on the land of the deceased where he found the 1st accused, wife of the deceased, and asked for a machete to cut brooms. However, the 1st accused restrained him from going towards the direction of the unused pit latrine behind the house. That after Kamone had made some brooms, he realized that some coconut belonging to Tuva were ripe which he went and informed Daniel Tuva about it. PW8 stated that on September 7, 2018, Tuva went to his farm neighboring the deceased farm and when he passed behind the deceased’s farm, he realized the unused pit latrine was covered with some grass. That Tuva went and collected the coconuts after which he went and reported to the village elder, one Majimbo.
14.PW8 stated that they started searching for the deceased and on September 9, 2018 Garama Randu, a cousin to the deceased reported at the police station. That on September 15, 2018, the information reached the OCS through the assistant chief that the deceased was missing and the pit latrine behind his house was covered with. That the OCS and other officers in the company of the assistant chief, the village elder, the 1st and 2nd accused went to the home of the deceased. PW8 stated that on arrival at the home of the deceased, the unused pit latrine was dug, odour started coming out and the body of the deceased was recovered from the pit latrine. That one knife was also recovered from the pit latrine, MFI – P5. That Kamone identified clothes which the deceased had worn on 24th while attending the birthday party of his son and the said clothes were in court, MFI – P1, 2 and 4, and produced them as EXP 1, 2, 4 & 5. PW8 stated that on September 20, 2018, he went to Kilifi County Hospital where post mortem was conducted and saw that the deceased had injuries on the wrists, neck, back of neck, and right side of the head above the ear. PW8 stated that after postmortem the accused persons were charged. PW8 drew a sketch map which shows the deceased house, the house of the 2nd accused, the unused pit latrine behind the deceased’s house, and the coconut trees planted on the neighbour’s land. PW8 produced the sketch maps as EXP6. PW8 stated that the photographs at the scene were taken by the then OCS retired Chief Inspector Ali.
Defence Case
15.The 1st accused, Karembo Nzai Katana, stated that she was charged with murder of her husband and that the 2nd accused is her son. That on August 24/25, 2018, she was not at home as she had left on August 20, 2018 to her daughter’s home in Taita and came back on September 14, 2018. That when she arrived home, she was informed by Daniel Kenga that in August 2018, they got a report that the deceased was missing, information which he got from Alfonse Kazungu, a village elder from another village. The 1st accused stated that Daniel Kenga accompanied her and the 2nd accused to the police station. That the last time the 1st accused spoke to her husband was on August 10, 2018 because she did not have a phone. That when they arrived at the police station, the 1st accused was told that she knew where her husband was. That at 2.00 pm, she was taken back to her home. That she gave out two jembes and Daniel Kenga got spades from his home. That while the 1st accused remained with the OCS in the kitchen, Daniel Kenga and the rest went to the back of the house. When she also went to the back of the house, the OCS showed her the body of her husband which was in a pit. She was shocked as she did not know what had happened.
16.The 1st accused further stated that Daniel Kenga’s family have palm trees on the farm nearby and the first palm trees belonged to Kamone and the second palm trees near the pit latrine where the deceased’s body was found belonged to Kenga. The 1st accused stated that the deceased used to work at a bakery in VOK Mombasa but she did not know where VOK is. That her husband would come home after one or two months. The 1st accused stated that when her husband called her a witch, she went and reported to the police station as he was endangering her life and this happened before she gave birth to their last born child. That her husband was charged and committed to serve one year on probation but after that they continued staying well. The 1st accused further stated that Garama Randu sold a piece of land without involving the deceased which created a difference between the two.
17.DW2, the second accused, Amani Nzai Katana, stated that on August 24/25, 2018, he was staying in Mbirimbiri Village and that he related well with the deceased who is his father. The 2nd accused stated that the last time he met his father was on August 11, 2018 when he left to go back to his place of work at a bakery in VOK. That on September 15, 2018, he went to his father’s home and he was told that the OCS had called and informed them that the deceased had not been seen at his place of work for 3 weeks and no one knew where he was. That Daniel said that Alphonse Kazungu reported to him on September 4, 2018 that his father was missing. The 2nd accused stated that Daniel told Kazungu that he was with the deceased on August 25, 2018 when he had a party at his home and and that the deceased left at 2.00 am and promised to return the next day but did not return. That Daniel did not follow up to know if the deceased had arrived home. The 2nd accused stated that he accompanied his mother, Daniel Tuva and Kamone Bonea to the police station. That when the OCS called, he asked when the accused persons last spoke with the deceased and the relationship between Garama Randu, Sulubu Randu and Charo Randu with the deceased. The 2nd accused stated that his mother, the 1st accused left to go to Taita on August 20, 2018 when the deceased was not at home. That Garama comes home every weekend and he had a problem with the deceased because there was a land case that was resolved in the favour of the deceased.
18.The 2nd accused further stated that on September 15, 2018 after going to the police station with his mother, he was arrested but he was not told the reason for his arrest. That after questioning, they proceeded home in the company of at least two officers, Bonea and Daniel Tuva. The 2nd accused stated that they were then taken to the pit latrine and the body of the deceased was retrieved and placed on a mat beside the pit. That the 1st accused and the 2nd accused identified the body of the deceased. The 2nd accused stated that he did not lead the police to where the deceased’s body was recovered and he does not know who killed the deceased.
19.DW3, Dama Nzai Katana, stated that the 1st accused, Karembo Nzai is her mother while the deceased is her father. She stated that her mother stays in Kaloleni and was doing farming while her father stayed in Mombasa where he worked in a bakery. DW3 also stated that she is aware her mother and brother are charged with the offence of murder. That her mother, the 1st accused went to DW3’s home on August 20, 2018 to help her harvest before going back to her home. DW3 also stated that Daniel Tuva, PW1 is not known to her but she knows Kenga and Kamone. DW3 stated that her father and mother differed over neglect of children but they resolved the issue and stayed peacefully, and even had their last born. That her father lived with his cousins on the same farm. Kenga, Kamene, Garama Randu also lived on the same farm. DW3 stated that her father wanted land to be subdivided so he could remain with his portion and his cousins refused. That the also refused to produce a title to the land. DW3 stated that cousins to her father sold the land and her father went to court which restrained the buyer from using the land. DW3 stated that after the death of her father, the buyer continued tilling the land and that the reason why the 1st accused is in custody is to ensure that the land is taken. DW3 states that her mother was not at home when her father was killed and that her mother and brother 2nd accused are framed to ensure they do not get their father’s land.
1St Accused Submissions
20.The 1st accused person submitted that it is a cardinal principal law that the legal onus is on the prosecution to prove the guilt of an accused person and the standard of proof is beyond reasonable doubt. According to the submissions, there are 3 ingredients which the prosecution must prove beyond reasonable doubt so as to have a conviction, namely the death of the deceased, and the cause of death, that the accused committed the unlawful act which caused the deceased’s death, and that the deceased had malice aforethought. The 1st accused stated that none of the said ingredients has been proved by the prosecution against the 1st accused person
21.It was submitted that the prosecution confirmed the death of the deceased herein where Dr Swaleh Monsoor gave evidence in respect of the issue. A post mortem report was produced but there was no proof that the accused caused the death of the deceased. The 1st accused further stated in the submissions that the prosecution has a duty to prove that the 1st accused caused the death of the deceased in its case through unlawful acts. That however, there is no witness who saw the accused commit the alleged offence and that the prosecution’s case is full of contradictions and inconsistencies. The 1st accused submitted by citing the case of Criminal Appeal No 41 of 2019, Josephat Manoti Omwancha v Republic where it was held that the inconsistencies and/or inadequacies are fatal to the prosecution case. Further, it was submitted that no malice aforethought was proved and that there was no intention to kill the deceased by the 1st accused herein. According to the submissions, the evidence in the case is circumstantial which cannot warrant a conviction in a murder case and that suspicion alone is not sufficient basis for finding a conviction. Reference was made to the Court of Appeal at Kisumu Criminal Appeal No 41 of 2019, Josephat Manoti Omwancha v Republic, where the appellant’s conviction fell short of proof beyond reasonable doubt.
2nd Accused Submissions
22.According to submissions of the 2nd accused, he was placed on his defence and gave sworn evidence where he denied committing the offence, and his evidence was not shaken on cross examination. The 2nd accused submitted that the burden of proof does not shift and it was important for the prosecution to bring sufficient evidence. That there was no direct evidence linking the 2nd accused with the offence and none of the witnesses directly linked the 2nd accused with the offence.
23.In submitting, the 2nd accused further stated that several questions that remained unanswered included what the motive was, who was the last person seen alive with the deceased, where the deceased was killed, whether the deceased was killed elsewhere and his body damped in the pit latrine, who dumped the body in the pit latrine, what was the murder weapon and where it was, what led PW1 into concluding that the deceased was in the pit latrine and whether there was anything strange with the 2nd accused not knowing where the deceased was. The 2nd accused submitted that the prosecution failed to establish any motive against him. All the prosecution did was to say that there was bad relationship between the deceased and the 2nd accused. That the prosecution pegged this on their having been cases of alleged witchcraft between the deceased and the 1st accused and that the 2nd accused had sided with the 1st accused.
Analysis and Determination
24.In consideration of the evidence of 8 prosecution witnesses and in consideration of the three defence witnesses’ sworn statements and submissions, this court is to determine whether the ingredients of the offence of murder as provided for under section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
25.Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused persons were charged provides as follows: -‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
26.The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -i.That the deceased died;ii.That the death was caused by an unlawful act or omission;iii.That there was malice aforethought; andiv.That the accused person directly or indirectly participated in the commission of the alleged offence.
Death of the deceased
27.The fact of death of the deceased is not in doubt. His decomposing body was retrieved from an unused pit latrine according to the evidence of PW1, PW3, PW5, and PW8. The accused persons equally testified that they saw the decomposing body of the deceased that had been retrieved from the pit latrine. PW2 stated that he went and identified the body of the deceased at Kilifi District Mortuary and attended the postmortem. Further, PW6, Dr Swaleh Mahsood conducted a postmortem on the body of the deceased and formed the opinion that the cause of death was severe head injuries. He then prepared a postmortem report.
Death was caused by an unlawful act or omission
28.Under the common law principles, proof of voluntary conduct under the law that applies to the commission of crime can be found in the persuasive precedent by the South Africa Supreme Court in S v Cunningham [1996] 1 SACR 631 where it was held as follows: -“In discharging the onus upon it, the state, however, is assisted by the natural inference that in the absence of exceptional circumstances a sane person who engages in conduct which would ordinarily give rise to criminal liability does so consciously and voluntarily. Common sense dictates that before this inference will be disturbed a proper basis must be laid which is sufficiently cogent and compelling to raise a reasonable doubt as to the voluntary nature of the alleged actus reus and, if involuntary, that this was attributable to some cause other than mental pathology.”
29.Criminal law requires proof of acts and omissions at the very least on the part of the accused that take the form of an act of assault, striking, beating, shooting or stabbing in order to bring the conduct within the element of unlawfulness in the offence of murder. According to the evidence of PW6, Dr Swaleh Mahsood, there was a deep cut wound approximately 6 cm on the occipital region. There was another deep cut wound with a fracture on the front of the head exposing the brain. There were stab wounds on the back of the head with injuries to the trachea. On the right hand, there was a deep cut wound with a fracture at the wrist joint and mid shaft radial fracture. On the left hand, he had a deep cut wound on the phalanges, an ulna fracture, deep cut wound on the wrist joint, causing multiple fractures. This shows that the death was caused by an unlawful act or omission.
Malice aforethought
30.Section 206 of the Penal Code defines malice aforethought as follows: -“Malice aforethought shall be deemed to be established by evidence proving anyone 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 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 act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
31.On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi v R (Nyeri) Criminal Appeal No 96 of 2007 (UR): -“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”The perpetrators of the heinous act killed the deceased, dumped his body in the pit latrine and covered the pit with soil. PW1, PW3 and PW5 witnessed the decomposing body of the deceased being retrieved from the pit. PW6, the doctor who conducted the postmortem formed an opinion that the cause of death was severe head injuries. The injuries inflicted on the deceased are such that the perpetrator is shown to have intended to kill him. There was express malice aforethought in the manner in which the offence was executed.
Participation of the accused in the commission of the alleged offence
32.Evidence of the prosecution witnesses show that no one witnessed the accused killing the deceased. This then brings in the issue of circumstantial evidence upon which this case was based. In using circumstantial evidence to prove this case, the prosecution was required to satisfy the test of a negative inference against the accused person as was set out in the case of Musoke v R (1958) EA 175 where the court cited the decision in Teper v R (1952) ALL 480 as follows: -“It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”
33.The Court of Appeal in the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR stated a follows: -“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr App R 21: -“It has been said that the evidence against the applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr App No 32 of 1990, this court set out the conditions as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
34.From the evidence of PW1, when he inquired from the 2nd accused when he saw his father last, the 2nd accused said he had not seen his father for 3 months. PW1 told the 2nd accused that his father had not been seen at his place of work. PW1 saw the deceased on August 23, 2018 at their home at 8.00 pm where he had been invited for a party that was to take place the following morning. He saw him at Kamote Bonea’s home who was his younger brother. PW1 was told by the 1st accused’s child that she had gone to take a child to school in Taita. That the 2nd accused also told him that the 1st accused had also left for Taita on August 24, 2018 in the morning. PW1 also says that the 1st accused’s daughter was married in Taita and he had not seen her for a whole month and she did not know where she was. PW1 said that he was not surprised when the 2nd accused told him that he had not seen his father for 3 months and he had last seen the deceased on August 24, 2018.
35.PW2 stated that the deceased had called the 1st accused a witch which led the deceased to being imprisoned for a year but they resolved the dispute and continued living together. PW3 got suspicious when he went to borrow a tree on which to make a broom on September 6, 2018 but the 1st accused told him not to go behind the house and directed him to use the left side of the house. That he found Daniel Tuva’s coconuts had fallen that he went and informed him about it and when Daniel Tuva went to pick the coconuts, he found the pit that the deceased had dug had been covered and suspected the deceased who had been reported missing 2 days ago could have been buried in the pit. PW3 confirms evidence of the accused persons that it was after the body of the deceased was exhumed that they were brought to identify the body and the 1st accused said that she did not know who buried the body of the deceased. PW3 did not see the deceased being killed. He testified that a land dispute between the buyer and the deceased was resolved. The witchcraft claims between the deceased and the 1st accused was also resolved and they lived together. He is not aware if the 2nd accused was involved in the death of the deceased and the knife recovered from where the deceased was buried was not known to him previously.
36.PW4 testified that the deceased arrived at his home at 7.00 pm on August 24, 2018 and that the deceased usually passes at his home as he was his friend and he left at 2.00 am to go to his home which is a 30-minute walk. PW4 was the last person to see the deceased alive. On August 25, 2018, the deceased did not go to attend the party and on August 26, 2018, PW4 talked to the deceased’s 10-year old called Katana to inquire if the deceased was at home and the child said he had not seen his father for a long time. This made PW4 to go report on September 5, 2018. PW4 said he did not go to the deceased’s home as he never used to get along with the 1st accused and that is why he did not know whether the 1st accused was home or not. PW4 confirmed that the land upon which the deceased was staying was being taken care of by his son Ruwa who had leased it out to some people who were using it. He also said that Randu Sai Katana the son of the deceased also told him he had not seen his father for a long time.
37.According to the evidence of defence witnesses, the 1st accused stated that she was not at home on August 24/25, 2018 as she had left home on August 20, 2018 and took a child to her sister in Taita who was to help in educating her. That she left other children at home and they were to spend nights at their uncle Gharama Randu. The 1st accused said that when she went back home on September 14, 2018, Daniel Kenga saw her arrive on a motorbike and told her that the deceased had gone missing in August 2018. The 1st accused also told Daniel Kenga that the last time she spoke to the deceased was on August 10, 2018 as she did not have a mobile phone. The 1st accused further stated that the deceased alleged that she was a witch and she went and reported the issue to the police station leading to the deceased being charged, convicted and sentenced to serve one year on probation. Thereafter, they resolved their dispute and continued staying as husband and wife and even gave birth to their last born son. The 1st accused also stated that Garama Randu sold a piece of land without involving the deceased which caused differences between the two.
38.DW3, Dama Nzai Katana supported the evidence of the 1st accused and stated that the 1st accused took DW3’s sister Salama Jumwa Nzai to Taita for school. DW3 stated that the 1st accused travelled on August 20, 2018 and helped her harvest before going back home. DW 3 also stated that her father, the deceased, worked in Mombasa and would go home at the end of the month or even at the end of two months. She stated that her father lived on the same farm with his cousins and that her father wanted land to be subdivided so that he could remain with his portion but his cousins refused including refusing to produce title to the land. That the deceased’s cousins sold the land forcing the deceased to go to court which led to restrain of the buyer from using the land. However, after the deceased passed on, the buyer continued tilling the land.
39.This court finds that the death of the deceased is not disputed and that the death of the deceased was caused by malice aforethought. However, participation of the accused persons in committing the murder through circumstantial evidence as presented by the prosecution has not been proved beyond reasonable doubt. According to the evidence presented, the 1st accused had travelled when the murder was committed. It is not clear why the 2nd accused was arrested and charged with the offence, and the last people to see the deceased alive were PW4 Kamone Bonea Kagongo and his uncle Kazungu Kagongo. The prosecution has not established whether it is the accused person, the persons who last saw the deceased, the deceased’s cousins or the buyer of the land who killed the deceased.
40.In conclusion, this court’s hands are tied as the prosecution has not sufficiently proved the charge of murder against the accused persons beyond all reasonable doubt. The accused persons are therefore acquitted and set at liberty.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 6TH DAY OF OCTOBER, 2022.HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: Ogwel- Court AssistantMs. Kambaga for the StateMr. Munyari Advocate for the 1st Accused PersonMr. Odhiambo Advocate holding brief for Mr. Obara Advocate for the 2nd Accused Person1st Accused present in person2nd Accused present in personHON. LADY JUSTICE A. ONG’INJOJUDGECourt: Certified copy of judgment to be supplied to the prosecuting counsel.HON. LADY JUSTICE A. ONG’INJOJUDGE
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