REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL CASE NO. 7 OF 2018 REPUBLIC..................................................................................PROSECUTOR -VERSUSMAXWELL MWAIGOLO..................................................................ACCUSED JUDGMENT 1. The accused person Maxwell Mwaingolo is charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code. 2. Particulars are that Maxwell Mwaingolo on the 30 th day of January 2018 at Kiembeni Bombo Village in Kisauni Sub-County within Mombasa County murdered Rama Kombo Malau. Prosecution’s Case 3. PW 1 testified that the accused person was the aggressor. That after his wife the sister of the deceased had restrained him from attacking the deceased in the deceased persons house, he again got out of the house went and broke into the deceased house and came out with the deceased while struggling as the deceased called out to his sister saying ‘Amina amemuuua, Amina amemuua’. 4. That at the deceased house the accused dropped the deceased who fell on the ground and was bleeding. That PW 1 rushed to the police station and reported. He said he gave police direction to the scene and on arrival the accused was lying beside the deceased having been beaten by members of public. PW 1 identified the knife that was recovered by police as the murder weapon – EXP. 1. 5. PW 2 the father of the deceased got information from Hadija at 12.45 a.m to the effect Maxwell had committed murder. He said Maxwell was husband to his daughter Amina. When PW 2 arrived at scene Amina the wife of accused told him the accused had killed Rama. He found Rama’s door was broken and there was blood in Amina’s house. There was also a pool of blood at Rama’s door. 6. PW 2 found where the deceased’s body had been collected by police and he proceeded to Kiembeni Police Station where he found the body in the police vehicle tied in a white sheet soaked in blood. He found Maxwell was also lying beside the dead body and he was bleeding. He accompanied the body to the Coast General Hospital mortuary where it was preserved. PW 2 said when he went to identify the body of the deceased for postmortem he saw a stab wound on the right side near kidney. 7. PW 3 Dr. Fatma Kassian produced postmortem report prepared by Dr. Salim said on 30/1/2018 at Coast General Hospital mortuary in which it was concluded that the cause of death was hemorrhages lock secondary to severed femoral artery secondary to penetrative stab wound secondary to assault – EXP 2. 8. In cross examination PW 3 said the Post-mortem report indicated the deceased was stabbed by his brother-in-law. PW 3 said the deceased had multiple injuries including deep cut on the high & bruises. He said the penetrative stab the thigh tore a blood vessel. The wife of the accused was supposed to be a witness in this trial but pursuant to ruling delivered on 1 st July 2021 she could not be compelled. 9. PW 4 Cpl. Reuben Mwinga was the investigating officer. He was on patrol on the material night which he received a call from report office and he was informed of murder incident in Bombo village which they were required to attend to. He said on arrival he found the dead body of the deceased in a pool of blood and the accused who appeared injured also lay besides the dead body. 10. PW 4 recovered the knife used to stab the deceased near the deceased person’s door and it had blood stains. PW 4 collected the body of the deceased and also took accused to Coast General Hospital for treatment after being attacked by members of public where responded to distress call. PW 4 recorded statements and preferred charge against accused. He said he offence was committed on 30/01/2018 at 00.45
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hours and not 29/01/2018 at 00.45 hours as indicated in the statement of PW 1. He said they went to scene immediately after murder was committed. 11. PW 4 said it is accused person’s wife who explained why the accused was also lying beside the deceased injured. That rowdy members of public attacked her husband. He said it is the deceased who lay in a pool of blood. The knife recovered at scene had blood stains when accused was placed on defence he gave sworn statement and said that on 29 th January 2018 he left his work at 11.00 p.m after parking lies tuktuk at Shimo la Tewa prison and that he arrived home between 11.30p.m. and 12.00hrs in the morning. 12. That when he was 70 metres from home he saw flickering light like someone was smoking. That when he was about 40 metres he heard people talk but he could not tell who they were and what they said. That on approaching he greeted them and the person who responded was Omar his neighbour who asked for a cigarette but he told him he only had miraa and he gave him some and he proceeded home. 13. He said he lived in a single room and had spare key as he usually came late and didn’t want to disturb his wife. He said that he went to brush his teeth before he could take a bath but when he finished brushing and turned to go back to the house he was hit on the head and he fell down. That when he raised alarm. PW 1 instead ordered people to go back into their houses. He said he had not seen PW 1 before but he suspected he was in the group of people he met outside his compound as he was friend to Omari. 14. He said as he was trying to help himself he was cut on the leg. He said he was treated at Coast General Hospital and he produced treatment notes – EXD1. He said he managed to run into his house for safety after pushing the assailant with the leg that had not been cut. That he met his wife at the door and she was shocked as he was bleeding and they locked themselves inside. 15. That while inside the house he heard someone call for help saying he had been stabbed and he recognized the voice as that of his brotherin-law, the deceased herein. He said that they got out with his wife but he was weak as he had bled. That when one realized it was his brother-in-law he held him so that he doesn’t fall as he told his wife to call for help. Defence Case 16. Accused said there was no light at the scene and he could not identify which part of his body was stabbed and as it was dark and he was also weak. That accused person’s wife went to knock at PW 1’s house to seek for help while screaming but he lost consciousness and he didn’t know what happened thereafter as he came to while at the Coast General Hospital. That at 2.00pm, 2 people went to where he was admitted in the ward and told him he was a murder suspect. 17. He said he didn’t commit murder and none of the prosecution witnesses testified as having seen him stab the deceased. He said the knife produced in court was not known to him and no one testified as having seen him hold it. He said he didn’t know when and where knife was recovered and no report was availed to confirm he handled the knife. 18. The accused alleged that relationship between him and PW 1 was not good because PW’1 demanded for Kshs. 25,000/= from him when he bought his plot from the Mother-in-law and when he refused PW 1 and sons to accused person’s mother-in-law made same demand from the mother-in-law and they were given Kshs. 15,000/=. He also said that PW 1 made advances at his wife and when he got the report he informed his mother-in-law. He said the statement attributed to him dated 1/1/2018 was not signed and the police forced him to record it. He said content of the statement is not true. 19. In cross examination he said he was attacked by a person he didn’t identify as it was dark. He said he heard the deceased raise alarm after he had entered his house. He said Samuel Mgandi was his immediate neighbour and that the deceased stayed 20-25 metres away from his house. He said he had never differed with his father-in-law – Suleiman. 20. The Accused Person’s advocate filed submissions on 21 st October and stated that PW1 never saw the accused stab the deceased and that that hs evidence and statement to the police had been contradictory. It was also submitted that PW2 never witnessed the killing and his alleged time contradicts the time in the charge sheet and that his evidence contradicted his statement. It was further submitted that PW2 failed to tender any evidence linking the accused to the crime charged and there was no evidence confirming that the offence occurred on 30th January 2021. Analysis and Determination 21. The prosecution is required to prove the ingredients of murder beyond reasonable doubt against the accused person for it to secure a conviction. Section 107 (1) of the Evidence Act states as follows: - ‘Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’ 22. On the ingredients of the offence of murder contrary to Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused was charged, the court held as follows in the case of Republic v Andrew Omwenga [2009] eKLR: - “It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission – there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:
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(a) The death of the deceased and the cause of the death, (b)That the accused committed the unlawful act which caused the death of the deceased; and (c)That the accused had the malice aforethought”. 23. The fact that the deceased died is not in dispute as it is confirmed by PW1, PW2, PW3, PW4 and the Accused Person. Dr. Salim Said who examined the body of the deceased on 30 th January 2018 formed the opinion that the cause of death was hemorrhagic shock secondary to severe femoral artery secondary to penetrative stab wound secondary to assault. 24. The injuries inflicted on the deceased were not accidental and therefore amounted to unlawful act on the part of the perpetrator. That the injuries were inflicted on very vital organs of the deceased’s body was a clear indication that the perpetrator was actuated with malice aforethought. 25. According to PW1 who said he was the immediate neighbor of the accused and his wife and the deceased, it is the accused who attacked the deceased. PW1 said there was light at the scene which made him recognize the accused as the perpetrator. The accused person claimed that there was no light at the scene was therefore challenged. The accused person’s father-in-law was also called and informed that his son had been killed by the accused. The accused person was also treated at Coast General Hospital after mob injustice after he had stabbed his brother-in-law to death. 26. In consideration of the evidence by the prosecution witnesses, vis-à-vis the evidence of the accused, the submissions by the accused person’s advocate, this court finds that the prosecution has proved their case beyond all reasonable doubt. The accused person is found guilty and is convicted accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 10 TH DAY OF MARCH, 2022 HON. LADY JUSTICE A. ONG’INJO JUDGE In the presence of: Ogwel- Court Assistant Mr. Ngiri for the State Mr. Wafula for the Accused – No appearance Accused present in person HON. LADY JUSTICE A. ONG’INJO JUDGE Mr. Ngiri: No records
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