Republic v Boniface Nganga Mailu

Masaku was remanded in one house, usually used by AdministrationPolice for residence while the deceased was to be kept in another. It looks like the deceased was considered a habitual illicit brewseller who had in the past not heeded the accused's warnings at all.P.W.1 told the court that before the deceased was taken to his cellwhile in the chiefs office the accused asked him why he defied hisdirectives not to continue with the brew trade. That the deceasedanswered that he did so to support himself, whereupon the accusedset on him with a whip and beat him thoroughly all over the body.That the assistant chiefs tried to stop the chief from this assault butthat he persisted in it. That he kicked the deceased in his privateparts also. That after that the accused directed P.W.2 and 6, to lockup the deceased for the night. That he told them that he hadwhipped Nyamai to show them how to deal with suspects. P.W.1 toldthe court that the deceased was tied all the while he was assaulted.That after all this, the accused told the assistant chiefs to go home.P.W.1 was directed to return the following morning to get the twosuspects (Nyamai and Masaku) from their temporary cells. ThatYumbya (P.W.2) would then take over the suspects, walk them to a place called Kitandi, from whence Nzomba P.W.6, would escort themto Nunguni (also called Kilome court) That when P.W.1 opened for the two suspects Masaku, whohad been ill the day before and had been vomiting, said that he wasin a fair shape. As for the deceased, he complained that he hadbeen much hurt by the accused's whippings. That on 8.4.98 P.W.1 with others including the accusedattended a District Commissioner's meeting at Kilome. It ended atabout 4.30p.m. The District Commissioner gave the assistant chiefsgoing the way of P.W.1 a lift in his landrover. That on the way pastthe local court when it was getting to 6.30p.m. one JanuaryMuthembwa (P.W.8) waved the District Commissioner's landroverdown. When the team in it came down the accused describedMuthembwa (P.W.8) with rest of the group, which had come to listento the cases of Nyamai and Masaku, as drunkards. That Nyamai (thedecease) lay some 15 meters away. That P.W.8 was drunk. Thosein the District Commissioner's landrover did not look over Nyamai.Instead they got back into the motor vehicle and the District In cross-examined the court heard that once when the post ofthe chief fell vacant, P.W.1 who was an assistant chief acted in it. Hedid not have long before retirement; the post was advertised and theaccused got it. It was no big deal to P.W.1. He reported that thechief (accused) assaulted Nyamai in his office in the presence of all the three assistant chiefs stated above. This witness who did not10 accompany the suspects from Kisunguni (Watema) to Kitandi on theway to Kilome Police Station did not know if Nyamai was given a P.3form there. That besides Muthembwa who waved down the DistrictCommissioner's landrover, there was also Masaku (P.W.3), hisbrother Kyalo (P.W.7) and a few more others. That Nyamai lay downin his red jacket. That Masaku Kasongo then explained to those in the District Commissioner's land rover that they were asking for transport to Kitandi. That he did not say who was sick and of what. Yumbya's (P.W.2) testimony added that he was actually with20 the accused when they raided Nyamai's home. The illicit brew was found there and Nyamai was arrested and tied with a string. Hisevidence was that he witnessed the accused assaulting the deceasedin the former's office. That the two suspects were locked up and thefollowing morning P.W.2 escorted them to Kitandi. He first took themvia a local market Masaku complained of a chest problem. Therelatives of the two suspects came to see them. Nyamai did notcomplain of any health problem. Then P.W.2 handed them to P.W.2.He too had attended the Kilome District Commissioner's meeting. Hewas also given a lift by the District Commissioner. On the way at aplace called Ithemboni the team came across Nyamai lying by theroadside. There also were Muthembwa, Kyalo, Masaku and oneBoniface Mutuku. When the District Commissioner's land roverstopped Kyalo Kasongo told those inside that January Muthembwa(P.W.8) who had fallen down was unwell and he needed transport.That the accused told the District Commissioner that all these peoplewere drunkards who had been arrested with illicit brews. They droveoff. On his part P.W.2 noticed Nyamai in his yellow shirt and blacktrousers. This witness was of the view that Nyamai was lying downbecause he was drunk. On 12.4.98, P.W.2 learnt of Nyamai's death.That later the accused told him that he was proceeding to Kilome police Station to record a statement about the deceased. In crossexamination P.W.2 said that when the accused assaulted Nyamai atthe formers office, they were alarmed.

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So they pleaded with him notto do that. He repeated that when he walked the two suspects,Masaku and Nyamai to Kitandi, so that they would be escorted toKilome Police Station, only Masaku complained of ill health and thustheir progress was slow. That where the District Commissioner's landrover stopped after Muthembwa's group waved it down, he himselfwas lying down and there were attempts to raise him. Kyalo Kasongosaid that he was sick. That when P.W.2 later heard that Nyamai diedwhere they left him at Ithemboni he, P.W.2 was surprised because,he did not think of anything that would cause Nyamai's death. Masaku (P.W.3) similarly testified about the arrest on 6.4.98and being taken to the accused's office. He himself was locked upfirst leaving Nyamai behind. That he heard the accused asking thedeceased why he did not heed his (the chiefs directives) not to brewillicit liquors. That Nyamai then screamed and P.W.3 suspected thathe was being beaten. That the deceased screamed again and again and from his next door cell, P.W.3 heard it all. Then the deceasedwas locked up. That when P.W.1 (Maweu) came the morning Nyamaicomplained that he had slept with his hands tied and without food.The suspects were untied and walked by P.W.2 to the local market.P.W.1 bought cigarettes for the deceased. They carried their liquorcontainers and walked to Kitandi. From there they proceeded toKilome Police Station under escort of P.W.6. That the two boarded amotor vehicle over this trip because Nyamai was unable to move.That he had a swollen chest, head and hands. He could not even eatwhen they stopped at Kitandi. They were not beaten on the way toKilome Police station. The following day the two suspects were takento a local court. While P.W.3 admitted his charge of possessing illicitbrew and he was fined, Nyamai denied and was given bond. Theyleft the court in company of people like Mutuku Mulandi, JanuaryMuthembwa and Alex Kyalo Kasongo to go home. They stopped at alocal market to drink and P.W.3 was not certain whether thedeceased also drunk. That P.W.3 left the bar at about 5 p.m. drunkand did not know when/how Nyamai left. That the next day, the deceased's daughter informed P.W.3 that Nyamai had died by theroadside. However P.W.3 told that girl that he had not seen Nyamaiwhen they parted the previous day. P.W.3 who did not visit the sceneof death by the roadside, also said that he did not see the assaultweapon the accused used but on the evening he had been lockedaway leaving the accused holding a whip. In cross examination P.W.3 who testified that their "cells" wereclose to the accused's office, did not witness the accused beatingNyamai. He denied that his bad chest slowed down, the foot trip fromKasunguni market to Kitandi. That this was caused by Nyamai'scondition. This evidence seems to say something different from whatYumbya (P.W.2) said. He told the court that there was nothing wrongwith Nyamai but that Masaku's chest problem retarded their walkingprogress. That Nyamai did not complain of his injuries at KilomePolice Station but that a police officer there did. P.W.3, after thecourt appearance and getting drunk at the nearby bar, he left aloneand could not remember if anybody accompanied him. He could nottell if the deceased fought with somebody on the way home. David Nzomba (P.W.6) was the other assistant chief who tookpart in the arrest of Masaku (P.W.3) and the deceased Nyamai. Hetestified that the accused assaulted Nyamai at his office and the latterscreamed begging to be left alone. The assistant chiefs presentintervened on his behalf. When on 7.4.98 P.W.6 received the two suspects for the tripfrom Kitandi to Kilome, they came late because Nyamai was feelingunwell. He could not drink milk either. That at Kilome Police Stationan officer noticed Nyamai's injuries P.W.6 explained those to havebeen a result of resisting arrest. However why should Nzomba lie soyet he had the previous day witnessed the accused assaultingNyamai? After the District Commissioners meeting on 8.4.98, P.W.6 wasamong the local administrators whom the District Commissioner gavea lift. Like other witnesses before, save Masaku himself, this witnesstold the court that on the way home a group of people waved theDistrict Commissioner's land rover to a stop. These included MasakuKasongo, Kyalo Kasongo and January Muthembwa. It may be recalled that Masaku in his evidence said that he left the bar aloneand drunk to go home. He did not remember if anybody left with him.But P.W.6 noticed Nyamai lying on around plus another person. TheDistrict Commissioner considered all of them a bunch of drunkardsand ordered the landrover to move off. That the following day P.W.6learnt Nyamai died where they had seen him on the roadside. Andlater the accused told Nzomba to go to Kilome Police Station andrecord a statement on account of Nyamai's death.

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That Muthembwawas also lying down by the roadside when the DistrictCommissioner's landrover came upon them. P.W.6, on his part, toldthe court that Kyalo Kasongo (P.W.7) introduced Muthembwa to thegroup on the District Commissioner's landrover as a police officer -not that he was sick (see evidence of P.W.2 - Yumbya). To P.W.6there did not appear to have been a struggle at this scene but thatMuthembwa looked thoroughly drunk. Benson Kamanza (P.W.4) served the group of Kyalo Kasongo,Masaku and Muthembwa (etc.) at a bar at Ithemboni after they leftKilome court. That Nyamai did not take the beer; he only drunk soda. That the group left at about 3 p.m. together and the following dayKamanza learnt that Nyamai died. Boniface Mutuku Mulandi (P.W.5) who knew the accused aswell as the deceased proceeded to Kilome court to hear the pleasthat Masaku and Nyamai would offer to the charges of possession ofillicit brews. Masaku was fined Sh.2500/= which he paid andMuthembwa stood surety for Nyamai. On the way home theystopped at a bar to eat and drink. That Nyamai ate very little; helooked ill with swollen testes, head and chest which he showed toP.W.5. Those in that group included Muthembwa, Masaku, Kyalo andthe deceased. That at 5 p.m. the group got up to leave after muchdrinking. P.W.5 left alone. Nyamai had only taken soda. Thefollowing day Mutuku learnt that Nyamai had died on the way. This witness did not know a village called Kivungi, and he didnot know that Nyamai died on a sport near there. P.W.5 denied thaton the day Nyamai died he was at the scene - where the DistrictCommissioner's landrover was stopped by Muthembwa's groupheading towards Kitandi. However Yumbya (P.W.2) claimed that he noticed Mutuku at the scene. So did Muambi (P.W.1). He denied thatat this spot he shouted that he would kill somebody. That he had notworn a jacket with a hole at the elbow of the sleeve that day. Thatnobody fought with the deceased that day and P.W.5 insisted that hewas saying the truth only. Kyalo Kasongo (P.W.7) on 7.4.98 went to Kilome Police Stationto look up his brother Kasongo who was held there with Nyamai onaccount of possessing illicit brews. After giving food to Kasongo,P.W.7 noticed that Nyamai had a swollen right leg. He explained thatthose who had arrested him had beaten him up. The following day Kyalo came to court and all that transpiredhas been stated several times over before. But that before the courtproceedings started Nyamai told Kyalo that he wanted painkillers andthat the accused had beaten him in his private parts and on the chest.At the bar/eating house, Nyamai only took soup. He talked to otherpatrons. At 5.30 p.m. they all rose to go but P.W.7 did not seeNyamai. On the following day P.W.7 learnt that Nyamai did not return home; he learnt later that Nyamai had died on the road toKitandi. Kyalo denied that he stopped the District Commissioner'slandrover to carry Muthembwa. He was drunk and he saw no such amotor vehicle. January Muthembwa (P.W.8) a police officer at Port Victoriawas on leave at his home, at Nguluni village. On 6.4.98 the wives ofNyamai and Kasongo came along to enlist his help now that theirhusband's had been arrested with illicit brews. He went to KilomePolice Station and talked with the O.C.S who declined to grant thesuspects bond. P.W.8 said that he saw them and that Nyamai had aswollen face and hands. His tongue was heavy and his back boremarks of whip stripes. That Nyamai told P.W.8 that the accusedassaulted him. That the following day at Kilungu court (also knownas Kilome or Nunguni) the pleas, already alluded to were taken. The group then went to a nearby market to drink. At about5p.m. the whole group left. On the way P.W.8 was too drunk to walk Teresia Kaluki (P.W.9) now Nyamai's widow narrated how the20 accused and his team raided their home for illicit brews and proceeded to break containers and damage furniture. They tookNyamai away. The following day in company of Muthembwa andMasaku's wife they went to Kilome Police Station where the two (2)suspects were held in cells. She saw Nyamai with a swollen righthand; he did not eat food and he could not talk. Nyamai was notgiven a police bond but what went on in court, the

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following day isnow well known. P.W.9 left the men drinking at a nearby market. Thegroup has been named already. But the deceased did not follow herhome and the following day he was found dead by the roadside. Shewith others visited the scene and reported the case to police atKilome who later removed Nyamai's body. P.W.9 did not know the owners of the homes in the vicinitywhere Nyamai lay dead but she had heard of a woman called Katiwa.The only Katiwa in this case was also called Maria Kyeva (D.W.1). Dr.Patrick Lumumba (P.W.1) performed a post mortem onNyamai's body. It bore bruises over the trunk, waist, the scalp and lefthand. No fractures. The deceased had bled into the chest cavityand he suffered from mild cirrhosis (liver damage due to alcohol). That the skull was not fractured but there was much internal bleedingin the brain. The cause of death was said to be this internal bleeding in thebrain and a raptured vertebral aorta at the back of the head. Thisrapture was likely caused by a blunt object (Exh. PIA-B). This postmortem had been witnessed by Dr. Mutuma on behalf of the deceased's family. In cross examination P.w.10 said that the bruises noticed couldnot cause the death of Nyamai. And that twisting the deceased's neckwould possibly rapture the artery spoken of. P.C. Boniface Kaindi (P.W.11) told the court that it was theaccused herein and his two assistant chiefs who presented the twosuspects to him at Kilome Police Station. From all evidence so farthis is the first time to hear that the accused and two assistant chiefsdid thus alleging that the suspects had been offering a brew calledSUGHURM for sale. That Nyamai had bruises on the left arm and hehad pains all over his body. That Nyamai told P.W.11 that the chief had assaulted him. That P.C. Kaindi informed his superior officer IPNgugi who right away came to verify the remarks. P.W.11 thenbooked Nyamai and his mate for court appearance the following day.That P.W.11 made notes of the bruises and Nyamai's sick lookingappearance. IP Ngugi did not testify here and the notes aboutNyamai's appearance were not produced. Indeed no investigatingofficer testified here. One wonders why IP Ngugi did not right awayarrest the accused if the deceased had informedP.W.Hthat theaccused who was there had assaulted him. Why not even take astatement from the accused? Chiefs are not supposed to assaultsuspects. The next to be heard was Juliet Mbithe (P.W.12) thedeceased's daughter. She was present when the accused and histhree assistant chiefs came to their home and arrested her fatherNyamai, with illegal liquor. When Nyamai did not return home on themorning of 9.4.98 P.W.13 set off with her brother Mulinge to look forhim. This took them to the home of Masaku and onto the road toIthemboni. There they found the dead Nyamai by the roadside.. Thedeceased had a swollen face, right shoulders and legs. No cuts. The two children returned home to inform their mother. The body waslater collected from the scene and taken to Machakos GeneralHospital where Paul Kasongu Musyimi (P.W.13) identified the doctorwho performed the post mortem. Also present at that operation wasP.C. Shiundu (P.W.14) who was posted at Kilome Police Station atthe material time. P.W.14 told the court that he went to the scene.That they moved the body before an investigating officer arrived. Thatthe body lay some 50 -70 meters from the road and P.c. Shiundunoticed some treads and disturbance of/on the ground from the roadto the spot. It appeared as if the body had been pulled along. Thiswitness told the court that IP Ngugi investigated the case. ThatNyamai's body lay some 30 - 40 meters from the nearest house andthe witness would not say if its occupants were interrogated about thewhole matter. That ended the prosecution case. The defence opened with Maria Katiwa Kyeva (D.W.1) in thewitness box. Her home stood on the Kitandi - Nunguni road - some70-80 meters away. Sometime in 1998 while resting in her house,Katiwa heard somebody approaching and shouting too. She got outto see. It was Mutuku Mulandi (P.W.5). He asked for food and she served him with a piece of pumpkin (Mulandi denied this in cross-examination) which he ate as he cried. D.W.1 asked her why thiswas so and Mutuku answered that Chief Ngaanga, the accused, wasintending to have Mutuku, with others, return to Kilome where theyhad come from and that Mutuku was opposed to that. That P.W.5named his mates as January Muthembwa, Masaku and KyaloKasongo and Nyamai, the deceased. This witness did not see theseothers but she recalled that

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Mutuku was wearing a jacket with leatherelbow pads. That the coat was torn at the elbow of its left sleeve andMutuku wore his arm through it. It may not have been noted hereearlier but Teresia, the deceased's wife told the court that on the dayNyamai appeared at Kilungu court he wore a yellow T-shirt and acoat with leather patches at the elbows. That Mutuku was at Kitiwa's home at about 5 p.m. After eatinghe went home. The following morning while D.W.1's daughter-in-lawMagdelena Kamula (D.W.2) was going to a nearby school, she cameacross a dead body on the road. She ran back to inform Katiwa.This turned out to be Nyamai because as D.W.1 and 2 stood there ayoung girl and a boy arrived. They burst out in tears saying that the deceased was their father. This must have been Juliet (P.W.12) andher brother Mulinge. The police came but as Nyamai's body wasbeing taken away, D.W.1 noticed that he was wearing the jacket withleather pads that Mutuku (P.W.5) had had the previous day. Police asked nothing of these two women. In cross-examination D.W.1 said that she did not know Nyamaiphysically but Mutuku mentioned his name to her. She did not knowthe accused Chief Ngaanga either. That their own chief was calledNgui. That again it was Mutuku who spoke of chief Ngaanga. D.W.1knew Mutuku for long but could not say whether he was drunk on thisday, but he acted so. That also it was Mutuku who mentionedJanuary Muthembwa. D.W.1 did not know him. She could not sayhow the dead body came onto her land. She did not know thatNyamai brewed liquor. They did not come from the same area. Magdalena (D.W.2) also spoke of Mutuku visiting their homewearing a coat with patches; his arm went through a hole in onesleeve. When the next day she found Nyamai's body near theirhome, she called D.W.1. The rest is similar to what D.W.1 told the court. The D.W.2 knew Mutuku before, his mother was her mother-in-law's (Katiwa) friend, and he used to pass in that home going tothe market. She did not know Nyamai or Chief Ngaanga. The next defence witness was Richard Ndivo (D.W.3). On8.4.98 when he was proceeding from Nunguni via Kivungi village aG.K. landrover came and passed him. A little distance on, D.W.3came across five people by the roadside. One was leaning on theroad's bank. Among these people Ndivo recognized Mutuku Mulandi,Kyalo Kasongo, January Muthembwa and Masaku. That Masakucalled out the name of the seated man - Nyamai, saying that he hadrevealed/disclosed him as a local liquor brewer. That at that pointMuthembwa told Nyamai that they should proceed home and finishthe dispute there. That Nyamai answered that he was drunk andwould proceed home on his own and alone. That Nyamai added thatbefore the chief caught up with them, they had beaten him. He wondered whether they were about to assault him again. ThatMuthembwa pulled up Nyamai; they slapped him and Mutuku saidthat even if the chief had beaten him (Nyamai) they would beat himagain. That Muthembwa lifted Nyamai and they walked along. Both fell down heavily and Muthembwa beat Nyamai. When the restpulled up Nyamai his appearance had changed. That Mutuku washolding a coat with pads at the elbows and one sleeve had a hole atthe elbow. Mutuku wore that coat putting the left arm through the holein the elbow; he went to look for a home to leave Nyamai at. ThatMutuku expressed fear that keeping Nyamai in somebody's home inthe shape he was would cause problems, but he went to look for sucha home anyway. Ndivo then left. He learnt that Nyamai died thatevening of 8.4.98. In cross examination D.W.3said that he knew the accused - achief. He also knew Katiwa (D.W.1) even if their homes were farapart. That Muthembwa and Nyamai struggled near Katiwa's home.D.W.3 also knew Mutuku Mulandi (P.W.5). That Ndivo was not in thisgroup of Muthembwa; he just came across them on the road. Theywere behaving in a drunken manner, telling each other that they gohome. Ndivo did not think that something serious was about to occur.But that Nyamai on falling, screamed and this disturbed D.W.3. ThatNdivo did not tell anyone about this incident and police did notsummon him over it at all. Ndivo stuck by his testimony in court. The accused testified last (D.W.4) that with his assistant chiefsthey raided the homes of Masaku and Nyamai for illegal brews. Whenthey got into Nyamai's home, a child had espied them and alertedhim and the revelers. They scattered. Nyamai who appeared drunkand rather violent held the accused by his coat lapels. However, hewas arrested with some liquor. That the team started off going toKola Police Post. But the course was changed to proceed to thechiefs office when Masaku complained of chest pains and

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Nyamaispoke of a bad leg. At about 7.30 p.m. they arrived at the chief'soffice. The suspects were locked up. It started raining until 10 p.m.that is when the accused with the three assistant chiefs proceededhome. He directed that the suspects be taken to Kilome PoliceStation the following day and he allocated the duties. The accuseddenied ever assaulting Nyamai while in his office. That the followingday while at Kilungu District Officers' office Nzomba assured theaccused that he had escorted the two suspects and delivered them atKilome Police Station. That after the meeting with the DistrictCommissioner on 8.4.98 as already said, at about 4.30 p.m. theaccused, with his assistant chief's, was in the District Commissioner's land rover proceeding home. That near Ithemboni market the teamcame across the deceased, Muthembwa, Mutuku, Masaku and KyaloKasongo. That Kyalo waved the District Commissioner's land roverto a stop and the accused noticed Nyamai and Muthembwa lying bythe roadside. That Kyalo explained that Muthembwa (a policeman)was drunk and he required a lift to go home at Kitandi. That theaccused then explained to the District Commissioner that he knewthat group by the wayside; they had been arrested with illegal brews.On hearing this the District Commissioner directed that the land roverproceed on its way. That in the following day the accused visited Nyamai's home,and one Peter Mutiso told the accused that Nyamai had died on thespot they found him lying by the roadside. That IP Francis NgugiOCS Kilome Police Station investigated the case. The accuseddenied that he was responsible for the injuries that caused Nyamai'sdeath." He said in cross-examination that nyamais habit of brewingillicit liquors in his home irritated the accused because that wascontrary to his, the accused's line of duty. That on his arrest the deceased resisted; he was drunk but theaccused was not rough with him. The accused said that he wastaken by surprise when his assistant chiefs (P.W.1, 2 and 6) testifiedthat he beat Nyamai. He attributed this to a bad relationship betweenthem - a matter they had earlier sorted out before their superiors.That Masaku said something unfavourable about the accusedbecause he was arrested with illegal brew. After going over the evidence both counsel submitted - a Mr. F.Mulwa for acquittal while the Learned State Counsel was forconviction. Each side considered various aspects of the case. Whenthe two assessors returned their opinions one was for outrightacquittal while the other found the accused guilty of a lesser offenceof manslaughter. The court then rose to consider the followingdetermination. It is not in doubt that Nyamai died on or about 8.4.98. While theassistant chiefs said that they witnessed the accused assaulting thedeceased with a rubbery whip, for not giving up his trade, Masakuonly heard the screams from the chiefs office and suspected that Nyamai was being beaten. That the following day Nyamai toldMasaku that the chief (the accused) beat him. The accused deniedthe assault on 6.4.98 and attributed the unfavourable testimony ofP.W.1, 2, 3 and 6 to bad working relationship or because Masakuwas arrested. However from all the evidence the court was left withthe impression that Nyamai who irritated the accused with hishabitual brewing of illegal brews was beaten by him, the accused, onthe night of the arrest. The court believed the eyewitnesses on this. The court was also satisfied that the deceased bore bruises ofthe beatings. But even though Dr. Lumumba (P.W.10) noted them,his opinion was that these injuries could not cause the death ofNyamai at all. The death he said was due to bleeding in the brainbecause of a head injury and that this coupled with a raptured arteryat the back of the head of Nyamai. With this the court was of theopinion that although the accused assaulted Nyamai, itself an unlawful act, that was not the cause of the death at all. It is very probable that the raptured artery was caused by an. act, quite likely on the day of the death 8.4.98. It is unfortunate that this case was never investigated by the police or that if Ngugi didinvestigate it, he did not testify about the whole thing. Theprosecutor did not get into this bit. The court has the evidence of Ndivo (D.W.3). He knewMuthembwa, Nyamai, Mutukuthe Kasongos etc. On 8.4.98 he cameacross them on the road from Nunguni to Kitandi. It was in theevening. That is the day of court appearance. The group lookeddrunk and behaved so. He said that Muthembwa and Nyamai heldonto each other trying to walk home and at the same time it appearedthat there had been a disagreement between Nyamai and Masaku inwhich the former had disclosed the latter's brewing

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activities. ThatMuthembwa and Nyamai fell heavily on the roadside. Nyamaiscreamed and did not wake up. The group beat him. Whichever wayNdivo's evidence was viewed by the prosecution here, the court wasleft with the view that this intervening circumstance could have hadsomething to do with Nyamai's death. The other aspect that left this court not quite clear about thedeceased's night injuries was the contradiction between the evidence the assistant chiefs. While Maweu woke up the two suspects on7.4.98 and only Masaku complained of chest pain Nyamai was saidto be alright. But then the other assistant chiefs said Nyamairetarded the march to Kitandi because he was swollen all over. Thisstarted on the way? The if at Kilome Police Station Nyamai revealedthat the accused assaulted him, why did PC. Kaindi (P.W.11) whoreceived the report or IP Ngugi whom he told of this, not arrest oreven take a statement from the accused? P.W.11 for the fist andonly time said that two (not one) assistant chiefs and the accusedwere present when the two suspects were booked in at Kilome PoliceStation on 7.4.98. Only one assistant Chief claimed to have takenthe deceased to Kilome - Nzomba (P.W.6). The court was not comfortable with January Muthemba's storyat all. He appeared evasive if not hostile. The same with MutukuMulandi (P.W.5). P.W.1, 2 and 6, while in the DistrictCommissioner's landrover found and saw Mutheu at the scene whereNyamai and Muthembwa were lying by the roadside. He denied it.Then Katiwa (D.W.1) and Magdelena (D.W.2) saw him wearingNyamai's coat (with leather pads he having his arm through a hole at the sleeve) when he came to their home. They knew him. They gavehim a piece of pumpkin which he ate while crying. He denied that heever went to Katiwa's home and ate pumpkin. Yet this is the sameMulandi whom Ndivo saw wearing the torn coat, run to a nearbyhome to look for a place to keep the injured Nyamai overnight! Thefollowing day Nyamai was dead on the land of D.W.1 and 2. WasMulandi all the truth in this court? Hardly. From all the foregoing this court was of the last view that theaccused did not murder Nyamai and he should be acquitted. Death of a person is a serious thing indeed. It carries deathsentence if proved against one who may have caused it. So whendeath is allegedly caused, the State should put in place all efforts toinvestigate it - not that it should ignore lesser offences. They areequally injurious to the peace of the citizens. Yet here Nyamai'sdeath apparently was not investigated! We had no evidence on this.As shown above there are contradictions or omissions that aninvestigation would have put in order to lay due charges ifestablished. It was not done. Even Katiwa and Magdalena Kb.VV.1and 2) whom police found where Nyamai was lying dead werenot asked any question! So much for now. The accused is acquitted of the charge. Judgement accordingly. Delivered on 30th April 2002. J. W. MWERA JUDGE

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