Republic v Mabel Kavati & 2 others

10.40 am. He went to Fred’s office and was referred to the office of the Dean of Students. Machariys said that he went to the Dean’s office and could not find him. He therefore went back to Fred to inform him. Fred referred him to Father Marandu. He went to Father Marandu’s office and found that he was not in. He decided to wait for Fr. Marandu outside his office. He says that as he waited there he saw three people a woman and two men pass through the library and walk towards classrooms and into the Administrative Block. He says that one of the two men went upstairs to where he was standing waiting for Father Marandu. He says that the man engaged him in a discussion and inquired whether Father Bertaina usually had people in his office. Macharius told the court that he told this person that he did not know. He said that he saw the man walk to Father Bertaina’s office and peep into the office through the door which was open at the time. Macharius said that the man walked back to where he was standing. Macharius stated that he decided to go down to the canteen to buy air time and that he left the man still standing upstairs. Macharius said that when he went downstairs he noticed a man and a woman who were looking at the notice board. Macharius could not get air time at the canteen and therefore he walked to the library to look for it. He says that he went and spoke with the Librarian for 15 minutes before going back to check on Father Marandu at his office. Macharius told the court that he met the two men and one woman going down as he went back upstairs. He said that one of the men bid him farewell in Kiswahili while the woman greeted him. Macharius said that he went to Fr. Marandu’s office and found him in. Father Marandu directed him to go and pay for the transcript at Father Bertaina’s office before he could be issued with the transcript. Macharius said that he went to Father Bertaina’s office and knocked three times but that there was no response. He then opened the door and found the Father lying down on the floor of his officer. He immediately sensed that all was not well and that the moment he turned he saw the Librarian Mr. Ndegwa on the corridor and he beckoned him to join him to see. Macharius said that when the Librarian went there he told him that he had seen one woman and two men going upstairs immediately before finding Father Bertaina lying down dead in his office, and that one of them was a former student. It is at that point that the Librarian Mr. Ndegwa ran first to call Fr. Marandu and then to the main gate to request that the gate should be locked. Mr. Ndegwa found that a woman, the 1st accused in the case, had already been apprehended and was being detained at the main gate. Mr. Macharius said that he recognized one of the two men he had seen that morning as a former student by the name Felix Kwesha. He identified him in court as the 2nd accused in the case. He also identified the 1st accused as the woman he had seen in the company of the 2nd accused. He said that he could not identify the 3rd accused. PW 5 was Michael Njeru Ngai, a guard at the main gate of the Institute. He said that he reported on duty at the gate at 6 am on the material day. Michael said that at around 11 am he saw three people approaching the gate from within the Institute to leave the compound. They were two men and a woman. He says that he stopped the three of them but all three refused to stop. Michael says just then a vehicle came and that when he opened for the vehicle, the three people sneaked out of the compound through the gate. He said that he decided to chase them and to raise an alarm. He says that he was able to apprehend the 1st accused, the woman in the group. Michael says that the 1st accused threatened to bite him in order to infect him with HIV+, but that he refused to be intimidated and apprehended her and took her back to the gate where he locked her in the gate’s sentry. Michael said that he had not seen the three entering the compound. He explained that there were two gates at the Institute, one which he was manning, and the other gate which was being manned by another guard. PW 5 identified the two men he saw leaving the compound as accused two and three. He said that the 2nd accused was wearing a red T-shirt while the 3rd accused was wearing a black coat. PW 7 was Haron Gacengechi was a Computer Technician at the Institute for a period of seven years as at the time he testified. He said that on the material day at around 11 am he went to see Father Bertaina’s because he needed some money from him to replace a UPS. He says that Father Bertaina gave him the money after which he left his office and went back to the library to inform the Chief Librarian that he was to go to town to buy the UPS. Mr. Gacengechi testified that as he left Father Bertaina’s office he met with a former student whom he greeted before going back to the library. Mr. Gacengechi testified that 15 minutes after leaving Father Bertaina’s office he went to the Chief Librarian intending to tell him that he was leaving only to learn that Father Bertaina had been murdered. Mr. Gacengechi stated that the former student he left on the corridor immediately after he left Father Bertaina’s office was the 2nd accused. Mr. Gacengechi also testified that before he went to Father Bertaina’s office he met Macharius, PW3, waiting

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outside the Director’s office. Mr. Gacengechi said that he spoke to Marcarius before going to Father Bertaina’s office. PW8, Christopher Kiama Mwangi was the Maintenance Officer at the Institute. He told the court that he reported to work that day at 8 am. He said that at around 11 am or thereabout he was cutting flowers near the car park, with Simon Kimani Karanja when they saw fire and smoke coming from the fence near Brook House School. They decided to go and check out the fire and as they went towards the fire they were joined by Michael, the gate guard. Christopher said that as they walked towards the fire they saw three people following each other. He said that one of them was a woman whom he identified as the 1st accused. He said that of the two men, one was wearing a black suit, whom he identified as the 1st accused, and the other one was wearing a blue shirt and black trousers, whom he identified as the 2nd accused. Christopher described a briefcase which he said the 3rd accused was carrying and identified that briefcase as P. Exhibit 7. He also identified a grey woman’s purse P. Exhibit 8 as the bag the 1st accused was carrying. PW5 said that Michael ordered the three of them to stop and when they refused to stop Michael decided to chase them and was able to apprehend the woman, the 1st accused. Christopher said that he and Kimani chased after the two men but they stopped five minutes later because the 3rd accused who had a suit, suddenly stopped and started reaching out for something in his pocket as if he was looking for weapon. He says that even though they let them go out of fear, they were within 30 meters from them and that having chased them for about 5 minutes, he was able to identify them. PW 10 was Michael Njuraita Mwangi. He worked in the library at the Institute. Mr. Mwangi told the court that at around 10.30 am that morning, Father Bertaina called him to his office and gave him certain duties. He says that as he walked back to the library, he noticed one woman and two men crossing the road and walking towards the Administration Block of the Institute. He said that he waited to see where the three were going and that they came to within 2 meters from where he was standing. He said that he waited to see whether they were going to enter the library and that they did not but passed by the library. Mr. Mwangi testified that he left the Institute and returned at 2 pm only to learn of Father Bertaina’s death. Mr. Mwangi stated that he stood to watch the three people because it was unusual for a woman to be at the Institute, since it trained men to be Fathers. Mr. Mwangi identified the 1st accused as the woman he saw with the two men. Mr. Mwangi said that he could identify her because he watched her for one minute at close quarters. Mwangi said that he could not identify the two men but that one of them was wearing a suit and was carrying a bag. PW 11 and PW 12 were Police Officers. PW 11 Cpl. Mwakale was among the first Police Officers to arrive at the scene. Cpl Mwakale testified that after finding that a person had been murdered at the Institute, he telephoned his superiors. He said that PW12, PC Owino, a Scene of Crime Officer was sent to the scene and that he photographed the scene. PW 11 Sgt. Mworia said that the scene it and also did dusting. Cpl. Mwakale told the court that they searched the scene for the suspects and recovered a woman’s sandals P. Exhibit 10 in the case. Both Cpl. Mwakale and Cpl Mwenga PW 15, were among Police Officers who took action at the scene and also assisted in investigations. They took over exhibits in the case including the ropes, polythene bags which had been used to tie the deceased. PW15 Cpl Mwenga, was one of the police officers who arrested the 2nd accused on the 24th January 2009. PW17 Sgt. Mworia arrested the 3rd accused within the city centre. Sgt. Mworia told the court that the 2nd accused, who had already been arrested at the time called the 3rd accused on phone and asked him to go to town so that they could meet. PW17 testified that when the 3rd accused came to the meeting place is when they arrested him. Sgt Mworia produced Ksh.5, 105/- and 1000 Syrian pounds from the 3rd accused. He also recovered the bag P. Exhibit 7. It had in it spices. Sgt Mworia also testified that earlier on after arresting the 2nd accused they visited his house where they recovered a calculator which was also produced as an exhibit. PW13 was Dr Francis Maina Ndiang’ui. He performed post mortem on the body of the deceased. He also took photographs of the body which he produced in court as exhibits. Dr. Ndiangui testified that he first removed ropes from the hands and legs of the deceased, and polythene papers and masking tapes from the mouth and the neck. Dr. Ndiang’ui told the court that after carrying out the post mortem examination on the deceased, he formed the opinion that the cause of death was asphyxia due to ligature strangulation and gagging.

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The prosecution relied on two statements taken from the 2nd and 3rd accused. PW 14 Joseph Karanja took a statement from Felix Kwesha the 2nd accused, on the 28th February 2009. That was four days after the arrest of the 2nd accused. The 2nd accused person retracted the statement prompting the court to conduct a trial within a trial. I allowed the statement to be admitted in evidence because I was satisfied that the 2nd accused made the statement voluntarily and without force, intimidation, threats or inducement of any kind. I was satisfied that even if the 2nd accused had been threatened or told what to write by the police as he alleged, at the time he sat alone with Mr. Karanja PW14 to make the statement he was under no threat or intimidation and that none of the previous threats operated in his mind at the time. PW 16 Margaret Kasera took a statement from the 3rd accused. The court however rejected the statement because the learned magistrate did not give proper attention to ensure that she recorded what the 3rd accused stated in his own words. What Mrs. Kasera did was to transcribe the statement made by the 3rd accused from Kiswahili in which the 3rd accused spoke directly into English. A statement from an accused person should be taken down and recorded by the statement officer in the language it was given by the accused. The officer should be careful to write down the exact words used by the accused. It is only thereafter that a transcript may be prepared if necessary. Both the original statement and the transcript would then be produced in court as evidence. This is very important because words and languages have meaning and different people may interpret them differently, just like science and art. Different people may understand certain words differently and that is the reason why it is very important that the exact words used by the accused person are recorded. The statement taken by Mrs. Kasera was her own interpretation of what the 3rd accused said. There was no guarantee that she understood Kiswahili well as her proficiency in that language was not disclosed to the court. There was no assurance that she accurately interpreted the words spoken by the accused. There is no way this aspect could be tested in the absence of the statement made in the words of the accused. Further, a Magistrate tasked with the duty of taking a confession from a suspect cannot place upon his shoulders other burdens and duties which the law never contemplated be undertaken by them. I believe the duty to transcribe was never intended to be played by the Statement recording Officer. It is for these reasons that statement recorded by her honour Mrs. Kasera could not be admitted in evidence. After the prosecution closed its case the court was satisfied that all three accused should answer the charge against them. The 1st accused gave unsworn statement. She told the court that on the material day she left her house in the morning and walked towards Karen to look for a job. She said that she walked around Karen and onto Langata road up to the Chief’s Office near Bomas of Kenya. She says that as she was continuing with her journey she saw two men running and that she decided to ignore them and continue walking and that the two men were being chased by other men. She said that one of the men decided to apprehend her claiming that she was with them. She then told the court how eventually she was arrested and charged with this offence. The 2nd accused gave a sworn statement he told the court that he was shocked by the case because on the 17th January 2009 he was reading the Standard Newspaper when he saw an article that Father Giuseppe Bertaina had been murdered. He admitted that he had been a student at Consolata Institute of Philosophy between 2004 and 2006. Regarding the matter in question the 2nd accused testified that on the 24th January 2009 he traveled from Kakamega and went to his house at 6 pm and that he was visited by a friend called McDonald and that they had supper together after that they proceeded to a nearby bar where they bought beer and they were drinking. He says while at that bar he was arrested by two people who did not utter a single word. He was then arrested and taken to Hardy Police Station. The 2nd accused narrated how he was interrogated by the police and continuously harassed and beaten between the 24th of January the day of his arrest to the time he was brought to court. He says that the police were forcing him to record a statement in the words that they were giving him. He said that he was given a written script and told to memorize it in order to reproduce it in a statement he was to make with the Magistrate. He says that eventually he was taken to a Magistrate where he made a statement on the 28th. The 2nd accused testified that at the time he was making his statement to Mr. Karanja, PW14, he complained to him that he had been tortured and that he was being forced to say what he had stated in his statement. He said that when he asked the Magistrate to assist him Mr. Karanja told him that if he wanted any assistance he would get it from the High Court. The 2nd accused also admitted that after his arrest Police Officers visited his house and took away a calculator

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The 3rd accused opted to give an unsworn statement. He told the court that he hawked spices like cloves and iliki. He told the court that on the 27th of January, 2009 he left his house carrying some spices and also some money with which he intended to go and buy more spices. He said that on reaching the town, some Police Officers came from behind him, four in number. He says that they stopped him and questioned him. He says that before he could answer anything they took his luggage and started inspecting it. They told him he would be arrested for hawking everywhere without a license. He says that on reaching the Police Station he was informed that he was under arrest for the offence of murder. He says that he did not understand what happened and he denied the offence. The 2nd accused person called Dr. Zephaniah Kamau who produced a P3 form giving details of his findings when he examined the 2nd accused on the 23rd January, 2004. In summary the doctor said that the 2nd accused had a bruise on the lateral aspect of the right eye brow. He assessed the degree of injury as harm. Dr. Kamau stated that the accused gave him a history of assault five days before the examination. The counsels for the accused and the State each gave their submissions. Ms Odembo represented the 1st accused, Mr. Mbiyu the 2nd accused, Mrs. Rashid the 3rd accused and Ms Wafula and Ms Rutto for the State. I have considered the submissions of the counsels and will be dealing with the issues raised in those submissions as I analyze and evaluate the evidence. The most critical issue raised by all counsels was the issue of the identification of each of the accused persons. It is not in dispute that the incident took place during the morning hours on the date in question. It was therefore in broad daylight. The other point is that there is no dispute there was no eyewitness of the incident. The prosecution is relying on circumstantial evidence. Regarding circumstantial evidence I am guided by decision in the case of SAWE –V- REP [2003] KLR 354, where the Court of Appeal held as follows: “1. In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt. 2.Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on. 3.The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused. 4... 5... 6... 7. Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.” Regarding identification I am guided by the case of ABDULLAH BINWENDO VS. REX 20 EACA 166,where the Judges of Appeal emphasized the need for careful scrutiny of the evidence of identification especially by a single witness, before basing any conviction on it. The Court held as follows: “Subject to certain well known exceptions it is trite law that a fact may be proved by a testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt from which a Judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can safely be accepted as free from the possibility of error.” The evidence of the prosecution is that some three people, identified as the three accused in this case went to the Institute and hovered around the floor where the deceased had his office. No sooner had they walked out of the building, the deceased was found dead. I have in this judgment set out the movements of the people around the floor where the incident took place. There were six players, Fr. Marandu, Mr. Ndegwa, Mr. Macharius, Mr. Gacengechi, Mr. Fred and

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Mr. Michael Njuraita. At the centre of these movements was Macharius on the one hand and Michael Njuraita on the other. Macharius evidence was that he had gone to that floor to get his transcript. He said he arrived at 10.40 am and headed straight to the office of Mr. Fred. He could not get the Dean and a second visit to Fred had him sent back to the Director who was not in. He therefore waited outside Fr. Marandu’s office. Before Fr. Marandu came, Macharius went to the canteen and also the Library looking for credit. When he finally got to Fr. Marandu, he claims to have come into contact with three other visitors to the same floor, one a woman, who was arrested soon thereafter, and two men only one of whom he recognized as a former college mate. After seeing Fr. Marandu, he was referred by him to pay for the transcript to Fr. Bertaina. It was when he went to pay him that he found him dead. Mr. Njuraita was summoned by Fr. Bertaina at about 11am and given some assignment to perform. He said that when he left Fr. Bertaina’s office, he noted three people crossing the road walking towards the Institution. He said he got curious to know where they were going to know one of them was a woman, persons who were rear in that Institution. He said that he waited until they passed within ten meters from where he was standing watching them. He identified the woman he saw that day as the 1st accused. Mr. Gachengechi on his part said he saw and spoke with two people on the same corridor that morning. On his way to see Fr. Bertaina he said he saw Macharius outside Fr. Marandu’s office. Later he met the 2nd accused, a person he knew as a former student there, as he left Fr. Bertaina’s office. He said he knew both of them before as former students at the Institution. Fifteen minutes after leaving his office, Fr. Bertaina was dead. Fr. Marandu said that he saw the deceased at about 10.30am when he went to find out whether he had any messages for him. A little later Macharius entered his office and he sent him to Fr. Bertaina to pay for what he had asked him for. It was when Macharius went to Fr. Bertaina to pay that it was known the latter had been murdered. Ndegwa saw Macharius as he knocked at the door of Fr. Bertaina because when Fred told him that Fr. Bertaina was not picking his phone, Ndegwa stepped out of Fred’s office to see Macharius beckoning to him. From the evidence of Macharius, Ndegwa and Fr. Marandu, that death occurred between the time Macharius walked to the canteen and library to look for credit and the time that Ndegwa left his office for Fred’s office. This is so because by the time Macharius returned to Fr. Marandu’s office fifteen minutes after meeting the three visitors on the floor the deceased had his office after leaving the library, the deceased was already dead. Going by the timings of Ndegwa and Macharius, the time of death was about 11am. On the question of who could have committed the murder, we have evidence of Gachengechi, Ndegwa and Macharius that there were indeed three visitors on the floor where the office of the deceased’s was located whose mission remained unknown as they did not enter any other office in the entire Institution. They were seen by two people who recognized at least one of them, Macharius and Gachengeci. Njuraita said he saw and could identify the woman among them as the 1st accused. In terms of opportunity, I have no doubt that the trio seen on that corridor that morning had the opportunity to commit the offence. We have the evidence of Macharius and Gachengechi that they had waited around the corridor and I find that they waited purposely for an opportunity to enter the office of the deceased unnoticed. The 2nd accused person implicated Macharius as having fabricated him due to enmity they had between them when they were in that Institution. The 2nd accused alleged that the enmity arose out of football games in which both of them were playing for different teams. I did not find any substance in that allegation that a fierce enmity could possibly have arisen out of football teams in the same Institution. In any event, that issue was not put to Macharius during his cross examination. I found it an afterthought. The presence of the 2nd accused on the floor where the deceased’s office was housed was corroborated by Gacengehi who knew the 2nd accused before. Ndegwa the Chief Librarian confirmed Macharius’ evidence that at the time the body of the deceased was discovered, Macharius said that he had seen the 2nd accused and two others on that corridor the same morning. It is therefore clear that Macharius did not mention the name of the 2nd accused as an afterthought. The conduct of the accused was that of a guilty mind. The 2nd accused and his accomplices ran away from the scene after the incident. On the question of whether the prosecution has established malice aforethought it is important to consider what the law says. Section 206 of the Penal Code defines malice aforethought as follows: “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances –

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(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) ... (d) ...” I will also rely on a court of appeal case. In DANIEL MUTHEE -V- REP. CA NO. 218 OF 2005 (UR), BOSIRE, O’KUBASU and ONYANGO OTIENO JJA., while considering what constitutes malice aforethought observed as follows: “when the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code. In view of the foregoing, we are in no doubt that the appellant was convicted on very sound and watertight evidence as his guilt on the two counts of murder was proved beyond any shadow of doubt.” The evidence of the prosecution was that the deceased had polythene paper bags tied stuffed into his throat and secured with masking tape. The doctor’s evidence was that the deceased had died of asphyxia due to the stuffing by the polythene and due also to manual strangulation. It is quite clear that the person or persons who did that to him had formed an intention to cause the deceased grievous harm or death. They had formed the necessary mens rea to cause either death or grievous harm to the deceased. There was evidence that the office of the deceased had been ransacked and things were scattered everywhere. There was also evidence that cheque books which belonged to the Institution, and therefore which the deceased kept by virtue of being the Financial Administrator, were found at the sentry where the 1st accused had been held upon apprehension and before re-arrest by the Police. T he presence of the cheque books at the sentry where the 1st accused had been detained is strong circumstantial evidence to connect the 1st accused as an accomplice to the murder. I find that the prosecution established malice aforethought to the required standard. DATED SINGED AND DELIVERED AT NAIROBI THIS 21ST DAY OF OCTOBER 2010 J. LESIIT JUDGE

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