Republic v Samuel Wamalwa Wasike alias Mutehe Sina & 2 others

sustained injuries. The accused persons are her neighbours. There was no blood at the scene. 8. PW2 Patrick Wafula Cheloti is a son of the deceased. On the 24th of August, 2011 he left for work and on the way just after the bridge he saw a black object on the railway line, he went near and noticed that the object was his late father. He was with a friend Felix. He requested Felix to remain at the scene as he went to inform his mother. His father was dressed in a striped shirt, black trouser, black coat and gum boots. The railway line is 10m away. He lived 200m away from there. His father had injuries on the nose, a cut behind the ear and his forehead. The accused persons were known to him. They had good relations with his father. The third accused used to help his father plough using an oxen. All 3 used to drink together. He never heard that the accused had differences with his father. 9. PW3 Hudson Wangile Musee a neighbour. His cow died and 1st and 2nd accused bought ½ a kilo of meat from him the fateful night. He visited the place the deceased was found lying the following day. The deceased had cuts on the forehead, nose and a fracture of his right upper arm. There was no blood at the scene. He did not know the deceased drinking habits. 10. PW5 Anthony Musee Sibali. He knew the deceased. The deceased used to drink at a known den. He learnt of the deceased death, rushed to the scene, noticed injuries on the head, nose and saw a fractured arm. He did not notice any blood stains. PW6 Dr. Wambani Mutoro. He produced a post mortem report of the deceased on behalf of a colleague one Dr. Ouma who was away on study leave. The same was filed on 26/5/2011. He gave the following information. External examination - Multiple injuries on the abdomen - Bruise on the right ear 4X6 cm - Multiple cuts on the head, hand - A penetrating wound 2cm deep on the nose. - Deep cut wound on the ocupital region 4cm - Cut on the right posterial (ear) measuring 6cm - Brain matter exposed Internal: Fracture of the skull Cause of death: Cardio pulmonary arrest secondary to severe head injury caused by a sharp object. 11. PW7 Patrick Cheloti identified the deceased at the post mortem examination. The deceased was his brother. He learnt of his death on 24th August, 2011. On learning of the death he went to the place the body was lying. 12. PW8 C M A knew the deceased who used to visit their home to take alcohol. He was then 13 years. On 23rd August, 2011 the deceased visited their home at about 6p.m. His father was sick and asleep. The drink was being served in the sitting room. The 3 accused persons were also there. The deceased was drinking with them. The deceased who appeared annoyed bought a drink and took it all by himself which annoyed the other 3. Meat was bought and roasted for them and all shared. They continued drinking until 11p.m. when 1st accused started beating the deceased a quarrel started over the meat as accused was

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angry that they ate his meat. The 2nd accused stabbed the deceased. Then they dragged him to the railway line. The witness was in the bedroom watching thereafter he followed them to the railway line. In the company of his brother PW9. His mother was in the sitting room when this happened. He saw all the 3, one stabbed and others beat the deceased. All 3 took the deceased to the railway line. On the way they washed the deceased at the neighbours; one Anthony Mzee Shibale. As they washed the deceased the deceased had already died. He cannot recall the clothing of the deceased but the deceased had a cap on. 2nd Accused stabbed the deceased on the stomach and 1st on the ear. In cross examination he stated that all 3 accused persons were with knives as they stabbed the deceased. The meat was sent for by the deceased who had just sold sugar cane and had money. There was a tin lamp in the house. Blood dripped in their home and the same was cleaned the following day. His mother never screamed. When he followed the accused persons out he was able to see as there was moonlight. 13. PW9 L A a brother to PW8 stated that he was at home on the fateful night. He was then 11 years, at the time of hearing he said he was 15 years. The Court noted that he may be much order and had him sworn as he appeared to understand the meaning of an Oath. He testified that on the 23rd of August the accused and the deceased had gone to their home for chang’aa. That all left at 8p.m. The three came with meat that his mother roasted. He further stated that a quarrel started. The deceased was annoyed as he got little meat. He could not tell who stabbed the deceased. Further that Noah the second accused had a Somali sword. He also stated as PW8 did that the 1 st accused bought a drink and shared however the deceased bought and did not share which appeared to have angered the others. He did not know who took the deceased to the railway line or who stabbed him. On being informed that in his statement to the police he stated that he saw what happened he confirmed that what he told the police was correct. At this point the State Counsel declared the witness a hostile witness and sought to have his statement produced as exhibit which was not objected to by the defence. In cross examination the witness said that he had seen the 1 st accused with a knife, third accused had no knife and 2nd accused had a Somali sword. He denied that the deceased was stabbed in their home and that he had followed the accused persons to the railway line. 14. At the close of the Prosecution case, the Court found the accused persons had a case to answer. They all gave sworn statements and had no witnesses. 15. DW1 the 1st accused testified that together with the 2nd accused and Wanjala Bifuoli not before Court they bought meat from his uncle Hudson Wangila Mzee and headed to M A’s where chang’aa was sold. They found A’s wife and 2 children. There were no other people. The meat was roasted by the lady of the house, there was ugali and they all ate including the 2 children. Thereafter they all left to their homes. The next day he had screams from the railway line he joined those going to the place where there was a big crowd and found the deceased Josephat Wafula dead. He stays in Ngwelo and the deceased lived in Khabwali. He denied having met the deceased at the chang’aa den on the fateful night. He also denied having been with the 3rd accused. DW2, Accused two on his part denied that he had killed the deceased. He, like DW2 stated that the two went to Hudson’s house together and in company of Wangila Bifwoli, bought meat and thereafter left for Mzee A’s where they found A’s wife, his children and the Mzee. The meat was roasted and they ate the same with some ugali. He did not find the deceased at the home he suggested that the deceased may have been there earlier. On 24/8 he heard screams along the road. He learnt of the deceased death, and went to the scene, he found the deceased lying dead. He denied having been with the third accused. DW3, Accused number 3 stated that he was not Bifwoli and was from Abwabi village. He denied killing the deceased. He denied having met his co-accused on the material day or visiting Hudson or A’s for a drink. He stated that he did not leave his home as he was repairing his kitchen. He knows Wanjala Bifwoli A’s home is 3Km from his home and the deceased 800m away.

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16. No doubt the deceased was murdered and his body discovered in the morning of 24th of August 2011. PW5 the doctor who conducted the post mortem confirmed that the deceased sustained several injuries and cause of death was due to severe injury on the head. 17. Were the accused persons involved in killing the deceased? PW8 who was 13 years at the time of the death of the deceased stated that the accused persons and deceased visited their home the night before the morning the deceased was found dead. He saw the accused persons attack the deceased, kill him, clean his body and moved the body to the railway line – PW9 who was 11 years’ at the time confirmed seeing the accused and the deceased at their time. He confirmed that the first and 2 nd accused persons had a Somali sword and a knife respectively. In his statement to the police the witness stated that a fight started between the deceased and the accused persons. He saw the 1st accused box the deceased severally, he also said he saw the first and 3 rd accused take the deceased towards the sugar cane plantation as the deceased screamed in pain. Later the deceased went silent and he and his brother followed and saw the accused person’s clean the deceased and dumped him at the railway line. Although this witness decline to testify further as regards stabbing and dumping of the deceased, his statement to the police corroborates PW8’s evidence. Their testimony in terms of injuries sustained are corroborated by the evidence of PW6. 18. In their defence the accused persons merely denied the charge. I do not find their evidence to have dislodged the evidence of the 2 eye witnesses. Indeed the evidence of PW8 and PW9 explains why the body of the deceased had no blood on it why there was no blood where the same was found. 19. Coupled with the above the Court has considered “the last seen theory” The deceased was last seen drinking with the accused. In the case of State of Rajasthan V Kasni Ram (2006)12 SCC 254 a Case decided by Supreme Court of India, the said Court held; “It is not necessary to multiply with authorities. The Principal is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving the fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis facts within his special knowledge, he fails to discharge the burden upon him” 20. The accused failed to discharge this burden. Their defences were mere denials. The Section quoted above is similar to Section 111 of the Evidence Act Cap 80 of the Laws of Kenya. 21. I have formed the opinion that the accused person herein all having been seen by PW8 and PW9 beat the deceased to death. They were accomplice in the killing of the deceased. 22. There is evidence that the 3 and the deceased were drinking when a fight ensued. They were all friends and drinking mates. An argument ensued when 1st accused beat the deceased and stabbed him followed by the 2nd accused on realizing deceased was dead they washed the blood and damped his body where it was found the next day. No evidence of malice aforethought was however placed before Court. All were drunk at the time. 23. Consequently I find the three guilty of the offence of manslaughter and I convict them accordingly. DATED and DELIVERED at BUNGOMA this 12th day of October, 2017

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ALI-ARONI JUDGE

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