Republic v James Wanjala Maruti & 3 others

pangas. The 1st accused had a hoe and he saw him cut the deceased at the back, 2nd accused had a panga and he cut the deceased on the head. He also saw the 4th accused (since deceased) cut the deceased on the chest. The third had a whip and he whipped the deceased. They got to the scene and told the people that the deceased was sick. The assailants then dispersed. The deceased was in bad shape. They got him to hospital where he was treated but died after a week. 4. PW2 Simon Simiyu recalled that on 30/4/2012 between 5.45 a.m. and 6.00a.m. he heard PW1 calling him. He was informed of the deceased disappearance and they all left go look for the deceased. At about 6.30 a.m. at check point they saw people on the road near Khamoti Primary School. As they neared he identified 1st accused, 2nd accused, third accused and a fourth person. He saw 1st accused with a hoe, which the said accused raised and hit the deceased. The 4th person had a panga, 3rd accused had a whip which he used to whip the deceased. On reaching near the assailants left. 5. PW5 Richard Kundu Wanyama recalled being woken up by PW1 on 30/4/2012 with information that PW1’s mentally ill brother had disappeared. Together with PW1 & PW2 they started looking for the boy and on nearing Khamoti Primary school they found the young man lying down. He saw about 15 people among them 1st accused, 2nd accused, 3rd accused and 4th accused. Third accused was standing at the periphery. When the assaillants saw them they ran away. They then took the injured person to hospital. In cross examination he said that he saw the 1st accused with a hoe, 2nd accused with a panga, 3rd with a whip and 4th with a panga. It was also his testimony that they found the 4 assaulting the deceased. 6. PW4 David Wangila Simiyu recalled that on 30th April 2012 as he left for work, and as he got to check point near Khamoti Primary school he found the 1st accused, 2nd, 3rd and 4th beating the deceased together with one other not before Court. He tried to enquire and the 1st accused turned against him when he decided to ride and alert the deceased relatives. On getting to their home he found that they had left to look for the deceased. In cross examination he said that there were over 20 people at the scene and he had seen the 1st accused with a hoe, the 2nd accused with a rungu, 3rd accused with a whip, 4th a rungu and a panga the 4 accused with were infront of the crowd and he identified them. 7. PW5 PC Richard Kipkorir Tuwei received a report of a death on 15/5/2012 from PW1 who reported of the assault meted out on the deceased on 30/4/2012. He was informed that the 4 accused persons were armed and had assaulted the deceased who bled profusely and later died. He visited the home and found the body of the deceased with wounds and they moved the body to Webuye mortuary. He attended the post mortem on 17/5/2012. In cross examination he confirmed that in his report to the O.D.P.P. he had indicated the assault was by a crowd, which included the 4 accused persons. 8. PW7 Dr. Wambani Mutoro Medical Superintendent of Webuye sub-county hospital produced a post mortem with consent of the defence that was performed by his colleague Dr. Limo Kiplagat. According to the report the deceased had Multiple wounds to the following areas; BULLETS * Bilateral anterior knee joint * Mid chest * Left forearm anterior * Occipital region * Transverse cut extending to the skull * Fracture of the skull * Several wounds on the head Internally Fracture of skull * Depression acrossOpinion formed: death was due to severe head injuries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/1943/eng@2017-11-02 2

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9. PW7 Fredrick Simiyu. He recalled accompanying PW1 to look for the deceased on 30/4/2012 at 6a.m. Deceased was mentally unstable. They found people saying thief, thief on moving closer it was the deceased. They stopped those shouting thief who on seeing them ran away. The deceased was beaten on suspicion that he was a thief. He saw 1st accused, whom he knows, 2nd accused, 3rd accused. 1st accused had a panga, 2nd accused a panga, third a stick. There was also one person with a jembe. 10. The accused were found to have a case to answer. The 1st, 2nd and 3rd opted to give unsworn statement. The 4th was reported to have died on 11th January 2017. 11. In his defence DW1 James Wanjala Maruti denied having been part of the crowd that killed the deceased. He admitted having gone to the scene but on seeing the deceased naked he thought he must have been mad and he left, only to learn that the boy was from Kakumanyi. 12. DW2 Aggrey Maruti Saita, the second accused on his part stated that he did not kill the deceased, that on the material day he heard shouts of mwizi, mwizi, he got out of his house but did not find any one and returned back. Later in the evening while at the commercial centre he learnt of a naked person who was found and taken to hospital. 13. DW3 Wanyonyi Abset Simbuki stated in his defence that he was not aware of what happened on the material day. He stays far from 1st and 2nd accused. He heard of the incident later in the day. 14. In its submission the Prosecution stated that it had proved its case against the accused, as the accused persons were placed at the scene of crime, were identified and linked to the murder. It urged for a conviction. 15. As for the defence, they admitted that the deceased died as a result of injuries sustained but maintained that Accused 1-3 were not at the scene and since there is denial malice aforethought cannot be visited upon them. 16. This is a Criminal Case and the onus of proving the same is upon the Prosecution. The evidence to sustain the charge ought to be beyond reasonable doubt; See Woolington V D.P.P. (1935) A.C (d) 462. 17. And as rightly put by the defence three necessary ingredients must be proved; i) - ii) The fact of death iii) Whether the act or omission causing death is linked to the accused iv) Whether the death was actuated with malice aforethought. 18. It is clear from evidence on record that the deceased died as a result of severe injuries sustained and more particularly the severe injuries on his head. 19. The evidence of PW1, PW2, PW3, PW4 and PW7 is that they are known to the 3 accused persons and on 30th of April 2012 as they looked for the deceased who was mentally unstable and had disappeared from his home they found the three assaulting the deceased armed with a hoe, a machete and a whip, further there was a crowd and the three were at the fore front. PW5 PC Richard Tuei received similar information upon investigation of the incident 20. In my considered opinion the Prosecution witnesses were credible, their evidence cogent and consistent that the accused person with others not before Court mistook the accused for a thief and mercilessly beat him occasioning him fatal injuries, the deceased died after a week. https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/1943/eng@2017-11-02 3

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21. I considered the defence which was mere denial and find that the same has not discredited the Prosecution case. 22. I also form the opinion that all the three ingredients of the offence of murder were proved. 23. Consequently I find that the three accused persons are guilty of the offence of murder contrary to Section 203 as read with 204 of the Penal Code. Accordingly therefore I convict them of the offence. DATED AND DELIVERED AT BUNGOMA THIS 2ND DAY OF NOVEMBER, 2017 ALI ARONI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/1943/eng@2017-11-02 4

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