Republic & 1 other v Abdalla Hamisi Mwabako

offence of murder. The fact of the death of the deceased cannot be in any doubt. Several of the prosecution witnesses testify that on the material day the deceased having been engaged in a fight with the accused emerged from the bushes bleeding heavily with cut wounds on his head and face. He was rushed to hospital but unfortunately lost the fight for his life. Evidence as to the cause of death was given by DR. K N. MANDALIA who testified as PW3 in this matter. He conducted an autopsy on the body of the deceased. He noted cut wounds as well as a fracture of the ribs on the left side of the body. In the opinion of PW3 the cause of death was “intracranial hemorrhage due to head injury resulting from a cut wound to the skull”. This is expert medical evidence which has not been challenged or contoverted in any way. I therefore find a fact that the deceased met his untimely death as a result of a cut wound to the head. However to merely prove the death and the cause of death of the deceased will not suffice. The prosecution must adduce evidence sufficient to prove that it was the accused person who committed the unlawful act which led to the death of the deceased. i.e it must be proved that it was the accused who committed the actus reus that led to the death of the deceased. In this case it is alleged that the accused and the deceased who were friends had disagreed over their miraa business. Apparently the deceased had alleged that the accused had stolen his miraa. This disagreement led to a fight between the two. PW1 RASHID MWATENGULI a brother to the deceased told the court that he was called to the scene by neighbours. He saw his brother (the deceased) emerge from the bushes with cuts on his head. Neither he nor any other witness actually saw the accused cut the deceased. Although the cause of death is said to have resulted from cut wound, the weapon which inflicted these cut wounds was apparently never recovered. No witness saw the accused arrive with a panga and police who visited the scene immediately thereafter did not recover any panga or knife at the scene. As the trial court, I was able to observe the demeanour of PW1 as he gave evidence. He was confused and self-contradicting. Under cross examination by MR KADIMA, learned counsel for the accused, PW1 stated as follows “the deceased said he has been injured by Tabia”[the accused}. He said he has been cut by a panga” Surprisingly PW1 then proceeds to admit that he did not include this crucial evidence of a dying declaration in his statement. Why would he leave out so important a statement. The demeanour of PW1 was in my view totally dishonest. It was clear that he was out to slant his evidence so as to “pin” this murder on the accused. The veracity of this witness cannot be taken at face value and his evidence is suspect. PW6 SALIM MOHAMED RAMOYO was the only eyewitness to the incident. Contrary to the assertions made by PW1 that the deceased did not drink alcohol at all PW6 told the court that both the accused and the deceased were drunk at the time of the incident. He told the court that after the quarrel ensued the accused and deceased continued pushing and shoving each other into the bushes. A few minutes later the deceased emerged from the bushes with cuts. PW6 is categorical that he never saw accused with any type of weapon, much less a panga. More pertinently, PW6 did not see what happened after the two left his line of vision. He therefore cannot tell what happened to the deceased after he disappeared into the bushes. PW2 HAMISI MOHAMMED MWANGOZI the village chairman states in his evidence that after the two men fought each other into the bushes “the accused ran home and got a panga. He returned and cut up the deceased”

page 2 of 3

This is mere conjecture on the part of PW2. He did not see this panga and neither did he see the accused cutting up the deceased. Further PW2 admits that these were the ‘stories” he heard from fellow villagers. He does not name these ‘fellow villagers” nor has any one of them been called to corroborate his tale. It appears that the case against the accused is largely based on suspicion because it is claimed that he ran away after the incident. It is a well established tenet of law that mere suspicion no matter how strong cannot form the basis for a conviction. There is no concrete evidence to show what befell the deceased after he went into the bushes. The court cannot rule out the possibility that a person or persons other than the accused attacked and killed him. No murder weapon was recovered. In my view the evidence tendered against the accused is weak at best. If the accused elected to keep silent in his defence then this evidence would not support a conviction. The witnesses were unreliable and contradictory. I find that the prosecution have not established a prima facie case against the accused and I do hereby acquit him of this charge under S. 306(1) of the Criminal Procedure Code. The accused is to be set at liberty forthwith unless he is otherwise lawfully held. Dated and delivered in Mombasa this 2nd day of September 2011. M. ODERO JUDGE In the presence of Mr. Onserio – state counsel Mr. Ngetich holding brief for Mr. kadima – for accused Mutisya – court clerk. M. ODERO JUDGE 2/09/2011

page 3 of 3