Republic v Tyson Juma Walumbe & 1 other

Mayanja Chief’s Camp and he left them there. On cross examination he stated that he is a nyumba kumi official and that he saw accused 1 hitting deceased with fists while accused 2 was holding him. He admitted having been arrested by police as a suspect and later released. He stated that accused had said they had been sent by the clerk of the chief called Karibi to arrest deceased. PW9 Andrew Nyongesa Wepukhulu was at his home on 1.8.2019 when he heard screams at a road junction. He ran there and saw 4 people beating the deceased with fists and kicks. He recognized the 4 people as Tyson (accused 1) Brian (accused 2) Ashrak and Wekesa. He tried to restrain them but they said he (the deceased) was wanted at the Chief’s camp. They placed the deceased on the bodaboda and went away to the chief’s camp. On cross-examination he admitted that he was arrested and later released but denied that he assaulted the deceased. PW7 Dr. Brian Inimi Kenyani performed the post mortem on body of deceased on 6.8.2019. He found the deceased had swelling on side of the head and collection of blood in the brain and on parietal side of the head. From the examination he formed opinion that the cause of death was due to intra-cranial haemotoma due to blunt trauma on the head. PW11 No. 65450 PC Samuel Liru the Investigating officer received information on the murder and commenced investigations. He found that accused had assaulted deceased on allegation that deceased had killed the father. He found that it is accused 1 Tyson, accused 2 Brian and Ashrak and Wekesa who assaulted the deceased. Ashrak and Wekesa are still at large. Upon being placed on their defence accused gave sworn evidence. Tyson Juma Walumbe testified that on 1.8.2019 he as at Lwakaha where his mother stays, and was weeding tobacco upto 4 p.m. On 2.8.2019 he went to Mayanja market at the barber shop of accused 2 Brian. While at the shop she saw the sister of deceased Lydia (PW1) who told him that he had killed her brother the deceased and that she will ensure they are arrested. He knew the deceased and had a fracas in a changaa drinking den over rumors that deceased had killed the father. During that incident accused 1 was with accused 2 Brian. He went back to Lwakaha until 23.11.2019 when he was arrested. He denied that he was present when deceased was being assaulted on the material day. On being cross-examined by M/s Makungu he confirmed that he fought with deceased in 2017 when he was 20 years old. On 1.8.2019 he stated he was at his mother’s place at Lwakaha. He admitted he would visit Uganda. Accused 2 Brian Wamalwa Wanjala testified that he operates a barber shop at Mayanja. On 1.8.2019 he was at his shop where he heard screams. He came out and saw people going towards the chief’s camp. He followed them and was informed deceased had been taken to hospital. He did not see deceased on that day. On 2.8.2019 he was at the shop when accused 1 came there. While there Lydia (PW1) the sister of deceased told accused 1 that she knew it is accused 1 who had killed the deceased Tobias and that she will make sure he is imprisoned, by even buying witnesses. He recalls an incident at a changaa drinking den when there was a fight between him and accused 1 on one part and deceased on the romours that deceased had killed the father. On cross-examination he stated that he knew Lydia (PW1) as she was his regular customer and had a grudge with him. He testified that he knows Ashraf and Wekesa as his friends and were not present when accused 1 and deceased fought in 2017. Accused 1 Tyson called his mother DW3 Alice Juma Walumbe who testified that on 1.8.2019, accused 1 was at her home in Lwakaha. Mr. Wamalwa R. for the accused field written submissions. He submitted that there are inconsistencies contradictions and discrepancies in the evidence by the prosecution. He submits that the witnesses did not state how they identified or recognized the accused and that some witnesses admitted to having eye problems therefore affecting their identification. He submitted that some of the witnesses were not credible witnesses in particular PW1 Lydia the sister of the deceased. Counsel submits hat the accused’s alibi defence was not rebutted or challenged by the prosecution and consequently has not been displaced. The accused are charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 provides: “Any person who of malice aforethought causes death of another person by any unlawful act or omission is guilty of murder.” The elements of the offence which the prosecution must prove beyond reasonable doubt are: a) The fact and cause of death b) The unlawful act or omission that caused the death c) That it is accused who occasion the unlawful act or omission or inflicted the injuries that caused the death d) That the accused had the intention of causing death or malice aforethought. On the fact of death, PW7 Dr. Brian Imina Kenyani who performed the post mortem on body of deceased found he had swelling on both

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sides of the head, blood haematoma in the brain with collection of blood on both sides. Middle part of the head had collection of blood. From the examination he formed opinion that cause of death was due to intra-cranial haemotoma secondary to blunt trauma. This witness therefore not only confirmed the fact of death but also the cause of death which was due to blunt force trauma. The issue of the fact and cause of death having been established the next element the prosecution must prove is who committed the unlawful act or omission that caused the death. In this case who inflicted the injury on the deceased that led to his death. From the evidence adduced this incident happened during the day around 2 p.m. or thereabout PW1 Lydia Nafula Makokha testified that while responding to screams to where the screams were from. On arrival she found Accused 1 Tyson, accused 2 Brian, Ashrak and another person assaulting her brother the deceased. She tried to intervene but they pushed her away. They then placed deceased on a motor cycle and took him towards the police. She followed them and found deceased at the camp with severe injuries. PW2 Mercyline Masiva Wanjala on responding to noise of a person being chased in her compound stated that among the people chasing deceased was accused 1 Tyson and accused 2 Brian. Accused 1 was around with a stick and accused 2 with Iron bar. She saw them beating deceased. She asked them not to beat him in her compound and they dragged him away. PW3 Richard Wamukuria saw a person being chased to his compound. He saw it was deceased who was being chased by Tyson (accused 1) Brian (accused 2) and Ashrak. They were beating him. He tried to separate them. They were suing fists and kicks to beat deceased. Ashrak told him they had been directed to arrest him. PW6 Joel Nato Wekesa also went to the scene and saw Tyson (accused 1) Brian (accused 2) Ashrak and Wekesa. He tried to restrain them but they said deceased was wanted at the chief’s camp. They later put him on a motor cycle and took him to the chief’s camp. Accused 1 Tyson Juma Walumbe’s defence is that he was not at the place where the offence was alleged to have been committed. He testified that on that day he was at Lwakaha the whole day and never was at Nabwela village where the offence occurred. His was therefore an alibi defence. Accused 2 Brian Wamalwa Wanjala’s defence is that when deceased was being assaulted he was not there but only joined the group that were taking him to the chief’s camp, when they passed near his barber shop. Mr. Wamalwa for accused submitted that the accused having raised an alibi defence, it was necessary for the prosecution to apply under Sec. 309 C.P.C to adduce further evidence to rebut it and the prosecution having failed to do the evidence of the accused on this issue stands unchallenged. An alibi defence challenges the identification of the accused as the person who committed the offence. Addressing extensively the defence of alibi, the court of appeal in Erick Otieno Meda –vs- R (2019) EKLR stated….. “In an alibi defence based on witness testimony, the credibility of the witness can strengthen or weaken the defence dramatically. A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden of proof on the accused to prove an alibi. If there is a reasonable possibility that the accused’s alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt. In the case of Kiarie –vs- Republic (1984) KLR, this court stated: “An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is no unreasonable…….” In the recent case of Victor Mwendwa Mulinge –vs- R, (2014) eKLR this court rendered itself thus on the issue of alibi: “It is trite law that the burden of p roving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution…” Comparatively, in South African case of S –vs- Malefo en andere 1998 (1) SACR 127(W) at 158 a-e the court set out five principles with respect to the assessment of alibi evidence: (a) There is no burden of proof on the accused to prove his alibi. (b) If there is a reasonable possibility that the accused’s alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt. (c) An alibi “moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die getuies beoordeel word.” (d) If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable (“betroubaar”) In another persuasive South African case of R-vs- Biya 1952(4) SA 514 (A) at 521C- D Greenberg JA said: “If there is evidence of an accused person’s presence at a place and at a time which makes it impossible for him to have committed the crime charged then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means

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that there is the same possibility that he has not committed the crime.” In S –vs- Sithole 1999(1) SACR 585 (W) at 590 g-i it was correctly stated: “There is only one test in a criminal case, and that is whether the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that an accused is entitled to be acquitted if there is a reasonable possibility that an innocent explanation which he has proffered might be true. These are not two independent tests, but rather the statement of one test, viewed from two perspectives. In order to convict, there must be no reasonable doubt that the evidence implicating the accused is true, which can only be so if there is at the same time no reasonable possibility that the evidence exculpating him is not true. The two conclusions go hand in hand, each one being the corollary of the other. Thus in order for there to be a reasonable possibility that an innocent explanation which has been proffered by the accused might be true, there must at the same time be a reasonable possibility that the evidence which implicates him might be false or mistaken.” The comparative decisions cited above are persuasive and espouse good law which we adopt herein. In considering an alibi, we observe that: (a) An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view. (b) An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross- examination of the trial. (c) The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court. (d) The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail. (see Mhulungu –vs- S (AR 300/13) [2014] ZAKZPHC 27 (16 May, 2014) It is now settled that an accused can raise his alibi defence at any stage of the trial. The prosecution can displace the defence of alibi by evidence showing that the accused was present at the place and time the offence was committed by him. In this case PW1 Lydia, PW2 Mercyline, PW3 Richard, PW5 Joel and PW8 Davis testified that they saw accused 1 Tyson and accused 2 Brian together with others not in court assaulting the deceased. The witnesses were well known to the accused previously. Indeed even accused admit knowing them before. The incident happened during the day and the witnesses tried to intervene and stop the beating but were repulsed by the accused 1 and accused 2 and others. The incident having occurred in broad daylight, both accused and witnesses knew each other before and on during the assault the witnesses interacted closely with accused 1 and 2. I find that the conditions of positive identification and recognition existed and the identification of accused was free from error. The accused 1 and accused 2 having been identified by witnesses and placed at the scene their alibi defence is found to be false and has been displaced by the prosecution evidence, which placed each of them at the scene. I therefore find that it is accused 1 Tyson and Accused 2 Brian together with others not before court who assaulted the deceased and inflicted the injuries from which he died. The last issue the prosecution must prove is whether the accused in committing the unlawful act had the mental intention or malice aforethought. Malice aforethought is defined as: Section 206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances – 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) an intent to commit a felony; d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. In Tebere S/O Ochua Vs R 1945 EACA 63 the court of appeal of Eastern Africa stated: “In determining the existence or non-existence of malice aforethought one has to look at the factors such as weapon used, the manner in which it is used, and part of the body injured…” In this case there is evidence that the deceased sustained injuries on the head which is a vulnerable part of the body. That the blunt trauma

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were concentrated on the head is an affirmation of the intention to cause death or grievous harm. In this case the injuries which were inflicted on the head caused the death demonstrating the malice aforethought possessed by the accused 1 and accused 2. In the result, I find that the prosecution have proved a charge of murder against accused 1 and accused 2 beyond reasonable doubt. I therefore find accused 1 Tyson Juma Walumbe and accused 2 Brian Wamalwa Wanjala guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and convict each one of them accordingly. DATED AT BUNGOMA THIS 16TH DAY OF MARCH 2022 S.N RIECHI JUDGE

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