High Court 2519 of 2022

under his armpit. The deceased removed a stool from his house and the two sat outside the house. The accused asked PW3 for a bucked because he had asked the deceased that they go and harvest honey. PW3 did not have a bucked and she told the accused so. PW3 stated that when the accused and the deceased were leaving the compound, the accused’s phone rang and PW3 heard him telling the people who were calling him to move to the road as he and the deceased were on the way. The accused took a burning piece of wood. PW3 stated that she put the deceased’s food in his house, went back to her house, ate and slept. PW3 stated that the following morning, PW3 stated that when she went to the deceased’s house, she found that the food she had kept for him had not been eaten. She stated that while at home, two children went to her home and told them that there was a dead man in the bush. When PW3 later went to the bush, she found the deceased with 4 cut wounds on his back and head, and was lying facing downwards. PW3 stated that the chairman asked her and PW2 who the deceased had left with the previous day and they told him that it was Mwatela Nguni, present in court. PW3 stated that when the village elder called her and PW2 aside to ask them questions, the accused disappeared and was later arrested at Tiribe. 7. PW4, Lewa Mwatela Nyamaa comes from Makamini, Vinyunduni in Kinango and Sawa Sawa Mwatela the deceased herein is his elder uncle. PW4 stated that on 22.2.2015 at 8.00 am he was at Shakula trading centre when the village elder Mboka Mbuja went and told them that he received a phone call from Mwatela and when he arrived, he found Mzee Sawa Sawa had been killed. PW4 stated that he accompanied the village elder to the forest where the body of Sawa Sawa was. The deceased had a cut on the head and mouth and he was lying on the ground facing down. He had two cuts on the back. PW4 asked the women how the deceased got to the scene and the women told him that Mwatela Nguni left with the deceased to go and hunt for honey. The area chief and the police went to pick the body. PW4 stated that Mwatela Nguni is a nephew to the deceased and the accused person in the dock. He stated that after the women said that Mwatela Nguni is the one who accompanied the deceased to go search for honey, he disappeared. PW4 stated that he never heard if the accused and the deceased had any differences. PW4 recorded his statement at Taru Police station. 8. PW5, Hamisi Ngoka Mbuja from Makamini Location, Vinyunduni Sub-location, Vinyunduni village stated that the deceased was known to him in the village but they are not related. He stated that on 22.2.2015 at 7.00 am, a young man by the name Mwatela Kamanza called him to go to his house where he went and found him together with members of his family. Mwatela told him that there were children who had gone to check on their charcoal when they found a man lying on the ground like he was drunk. PW5 stated that they accompanied him to the scene which was in the forest and found it was mzee Sawa Sawa who had cuts on the back and head and had died. There were insects on the area that had been cut. The deceased’s daughters-in-law told PW5 that the previous night the deceased left in the company of Mwatela Nguni to go and harvest honey. They said that the deceased did not come back and it was then that they were seeing him. PW5 stated that he made a phone call to the area chief who went with the police and collected the body. PW5 later went and recorded his statement. He stated that Mwatela was the accused in the dock and he is known to him as they come from the same village. PW5 was acting as the village elder as the previous village elder had just died. PW5 stated that he was not aware of any difference between the deceased and the accused and that he knew the accused as Mwatela Nguni. 9. PW6, Dele Mwatela stated that he is a farmer from Vinyunduni and the deceased was his brother. PW6 stated that on 21.2.2015 at around 7 pm, he was at home when his children went to check on their charcoal. The children came back and said they came across a person who was lying down and that they had run away. They did not identify the person as they feared. PW6 stated that the next day, the children went to school and he went to check on their charcoal when he saw the person still lying on the ground and insects were all over his body. PW6 stated that he also got scared and ran back home. He went and told his son that the person he saw did not look alive and he sent his child to go and report to the village elder. PW6 stated that when the village elder came, they proceeded to the scene and some two women told them that Mwatela Nguni went home and told the deceased they should go and harvest honey in the evening and the deceased did not go back home. PW6 said that Mwatela was at the scene of crime and when one of the women said that the deceased had left with Mwatela, Mwatela walked away. PW6 said that the body of the deceased was collected by the police and it was later buried. Sometime after burial, they learnt that Mwatela who was at large had been arrested. The deceased had been cut on the back, neck on left and right side. PW6 stated that there was no difference between the deceased and the accused. PW6 had known Mwatela since he was born and knew him as Mwatela Nguni Sanga. PW6 identified Mwatela in the dock. 10. On cross examination, PW6 stated that he did not find any weapon at the scene of crime. He stated that his children told him they saw someone lying on the ground and thought he was drunk. PW6 stated that he did not go to the scene that night. He went the following morning when he went to check on charcoal. He stated that the accused was a farmer. Also, there was a time he could work in Mombasa for like 2 months and then go back home. He also used to trade in charcoal. During that time, he was at home. PW6 stated that he was not aware of any dispute between the accused and the deceased. 11. PW7, the Investigating Officer No. 92412 PC Job Ouma attached to DCI Taru Police Station. Chief Inspector Paul Njuguna who is retired was the lead investigator. PW7 stated that on 22.2.2015, he was at Taru Police Station at about 2.00 pm when they got a report of an old man who had been killed in Vinyunduni in Kinango Sub-county in Kwale County. There were officers on patrol including Chief Inspector Njuguna who visited the scene, processed the scene and took the body to Kinango Sub-county Hospital Mortuary for preservation and postmortem. PW7 stated that on 23.2.2015, in the company of relatives of the deceased went to the mortuary to identify the body and for the postmortem. They commenced investigations to establish who the perpetrator was. Several people were interrogated and statements recorded. It was established that on 21.2.2015 at 7.45 pm, the deceased was at home together with his two sisters in law when he was approached by Mwatela Nguni the accused herein. He told the accused he had seen a beehive somewhere in the bush and he wanted to go with the deceased to harvest the honey. He left with the deceased and that was the last time he was seen. PW7 stated that the next day, the deceased was found murdered in the thicket with panga cuts on his head, neck and back. The accused was never seen again and relatives of the deceased and investigators suspected him strongly. PW7 stated that on 7.3.2015, they were able to track the suspect in Tiribe area which is more that 100km from the Suspect’s home. He was arrested and charged with the offence of murder. PW7 stated that the post mortem was conducted on 23.2.2015 but the pathologist went to Egypt for further studies. He produced the postmortem report as Exhibit P1. 12. On cross examination by Ms. Kitoo, PW7 stated that he did not visit the scene of the murder. Him and Chief Inspector Paul Njuguna interrogated members of the public but there was no eye witness to the murder. The panga or murder weapon was not recovered. PW7 stated that it was not usual for the accused to go and harvest honey with the deceased. PW7 stated that PW1, PW2 and PW3 testified that the accused accompanied the deceased to go and harvest honey but he does not know if it was usual carrying panga and fire to go harvest honey was normal. PW7 stated that he did not get the accused person’s identification documents. The identification card shown to him was in the name of Hamisi Mwatela Muti, No. 27453567 and the image on the identification card resembles the accused. PW7 said the ID card could be for the accused person’s twin brother but he did not know whether the accused had a twin brother who resembled him. PW7 said that the

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accused gave his name as Mwatela Nguni before he was placed in custody and the family of the deceased told PW7 that it is Mwatela Nguni who accompanied the deceased to go and harvest honey and the last time he was seen alive. PW7 stated that there is nothing else linking the accused to the offence and the officers who visited the scene have not testified. Defence Case 13. The accused, DW1, was placed on defence, gave sworn evidence, and stated that his name is Hamisi Mwatela Muti and that he was charged with the offence of murder. DW1 stated that on 17.3.2015, he met two police officers who introduced themselves, asked who he was and said they were looking for Mwatela Guni. DW1 told them that he was not Mwatela Guni but one of the officers insisted that he was Mwatela Guni. He was handcuffed and taken to Tiribe Police Patrol Base and later to Kinango. At Kinango, police officers from Taru arrived and took him to Taru where the OCS at Taru interrogated him. DW1 produced a copy of his ID card as Defence Exhibit 1. DW1 stated that the next day at Taru Police Station, his fingerprints were taken and he was taken to court. That there was no investigation to establish his identity. DW1 stated that he was charged with the offence of killing Sawa Sawa Mwatela who is his elder uncle and that the deceased was the one who brought him up. DW1 stated that when his father died, it is the deceased who inherited their home and that they had never differed with the deceased, not even once. DW1 stated that on 22.2.2015, he was at work in Mombasa. The children of the deceased were not happy that their father gave DW1 a piece of land and even his father’s inheritance. DW1 said that the witnesses confirmed this fact. Accused Person’s Submissions 14. The Accused submits the following issues for determination:a) Whether the prosecution has proved mens rea in this case and that the death was caused by unlawful act or omission on the part of the accused person. b) Whether the prosecution has proved their case beyond a reasonable doubt. 15. The Accused submits on the first issue that he must possess the intention to kill or cause harm or malice aforethought. Mens rea is an essential element which the accused must possess the intention to cause harm or kill as it is the malice aforethought. The Accused cited the case of Republic v Paul Omondi Odongo [2019] eKLR where it was held that malice aforethought is a very important ingredient for the offence of murder. The prosecution has to establish malice aforethought. Section 206 of the Penal Code sets down the facts which constitute malice aforethought. The Accused submits that during cross examination, PW1 states that the Accused and the deceased had a good relationship. PW2 and PW3 also confirmed the good relations. The Investigating Officer PW7 also confirmed the same position. Therefore, the accused person and the deceased were in good relations. Nothing shows that the action was premeditated beforehand as the two were best friends. The Accused submits that PW4 confirmed that there was no kind of animosity between the accused person and the deceased. Therefore, the Prosecution failed to establish that this key ingredient was evident in this matter. The Accused submits on whether the death was caused by an unlawful act or omission by the accused that no evidence led by the prosecution pointed such an act or omission by the accused. All that came out was suspicion. Therefore, the prosecution failed to prove the key ingredients of the Murder charge upon the Accused. 16. The Accused submits on the second issue that the prosecution has not proved their case beyond reasonable doubt. That the Constitution of Kenya 2010 under Article 50 (2) (a) states that an accused person is presumed innocent until proven guilty. The Accused submits that the prosecution bears the onus of proof and should prove that the Accused committed the crime beyond reasonable doubt, according to Section 107 (1) of the Evidence Act Cap 80 Laws of Kenya. The Accused cited the case of Miller v Minister of Pensions [1947] 2 ALL ER 372. The Accused submits that the Investigating Officer during his cross examination confirmed that going for honey harvesting at any time was a common practice in that area. Further, other than the fact that the Accused was the last seen person with the deceased when alive, the Investigating Officer confirms that there was no eye witness who witnessed the action taking place and nothing else linking him to the crime of murder. 17. The Accused further submits to the above that PW7 stated in Examination in Chief that the Accused was arrested as he disappeared when the event took place leading the accused to be doubted. The Accused in his defence stated that he had worked in Tiribe and hence the reason he was there. The Accused submits that mere doubt of an accused person should not be the reason for him to undergo trial. Investigation ought to have fully taken place but not drag an accused person to court for the mere fact that there was an element of doubt. Mere doubt is not an element in determining the degree of guilt where an accused person is concerned. The Accused submits that during cross examination of PW7, it further confirmed that there was no evidence linking the accused to the crime save for the fact that he was last seen with the deceased. The Prosecution has failed to prove this as no witness puts the Accused on the scene of crime, neither is there a weapon that has been found that puts the Accused as the person who wielded the weapon that was used in murdering the deceased. The Accused submits that it was clear from the prosecution witnesses that they had an issue with the accused person because he was having affairs with their wives. They also stated that they had quarrels over land with the accused person. This was confirmed by PW1. 18. The Accused submits that PW6 in examination in chief stated that the Accused just like the other villagers had gone to the scene of crime but he left because he heard some ladies referring to him. During cross examination, PW6 confirmed that the ladies started implicating the Accused of having committed the crime. The Accused submits that all the Prosecution witnesses who have testified have failed to provide substantial evidence that links the Accused person to the murder of the deceased. Save for PW3, all the other prosecution witnesses relied on hearsay that the Accused left with the deceased. PW2 stated that she did not see anything else apart from seeing the Accused in the homestead. PW3 further stated that after the accused and the deceased left, she did not know whether he came back or not. She only heard about the death the next day. The Accused submits that no prosecution witness witnessed the Accused carrying a panga which was stated to be the weapon of murder. PW1 who mentioned the panga did not witness it. PW3 only stated that the only thing that the accused asked for was a jerrican. There was also contradicting evidence on whether the Accused and the deceased used to tap honey together. PW1 stated that they used to tap honey whereas PW3 stated that the deceased never used to tap honey. The evidence of PW3 was corroborated by that of the Accused when he said he never went to tap honey with the deceased.

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19. The Accused submits that when he was put on defence, he stated that his official name was not Mwatela Guni. He produced his national identity card before court as exhibit 1 which read Hamisi Mwatela Muti. He further stated that when two men went to arrest him and sought arrest Mwatela Guni, he tried telling them that it was not him but the same fell on deaf ears. He was nabbed and charged without clear investigations on his identity. PW7 confirmed that the only reason they arrested the accused was because he was last seen with the deceased. The Accused cited the case of Republic v Silas Mugoye Lugalia [2017] eKLR where it was held that whereas there is suspicion as to the involvement of the accused, mere suspicion however strong cannot be a basis to sustain a conviction. The Accused prayed that he be acquitted and set at liberty forthwith. Analysis and Determination 20. In determining whether or not the accused participated in the commission of the offence, the prosecution is required to prove the offence beyond reasonable doubt. All elements of the offence have to be established to the satisfaction of the court. This position was expounded in the case of Woolmington v DPP [1935] AC in Miller v Minister of Pensions [1947] 2 ALL ER 372 where the court held:- “That degree is well settled. It need not reach certainty, but it must carry a high degree of possibility proof beyond reasonable doubt does not mean proof beyond the shadow a doubt. The Law would fail to produce the connectivity if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course, it is possible, but not in the lease probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 21. The offence of murder is defined under Section 203 of the Penal Code as follows:- “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 22. Under the above section, the prosecution is required to prove the following elements beyond reasonable doubt:a) The death of the deceased (b) That the death was through unlawful acts or omission of the accused (c) That the accused had malice aforethought (d) As such, the quality of evidence placed the accused person at the scene of the murder Death of the deceased 23. PW7 No. 92412 PC Job Ouma stated that the post mortem on the body of the deceased was conducted on 23.2.2015 by a pathologist who went to Egypt for further studies. PW7 produced the postmortem report as Exhibit 1. This court perused the said Postmortem Report on record and confirmed that the postmortem was conducted on 23.2.2015 by Dr. Fahad Swaleh and a confirmation of the death of the deceased. The report indicated that the body was sent under the escort of No. 84283 PC Eric Nyakundi and it was identified by Benja Sawasawa and Mwatela Sawasawa. This was sufficient confirmation of the death of the deceased, an element which has not been disputed. The death was through unlawful acts or omission of the accused 24. According to the Postmortem Report, the external appearance showed petechiae around the abdominal and lower back area. There were multiple deep cuts on the back measuring 30cm, 29cm, 18cm, and 11cm. One of the cuts deep with protrusion of abdominal contents. There was deep posterior neck cut with structures involved including esophagus, trachea, corotid artery, and jugular vein. The deep cut on the skull exposed the brain. According to the Report, the cause of death was bleeding leading to hemorrhage shock secondary to deep cuts on the neck, severe head injury secondary to a deep cut on the skull. Additionally, the prosecution witnesses who confirmed having seen deep cut wounds on the body of the deceased include PW1, PW2, PW3, PW4, PW5, and PW6. 25. In the case of Gusambizi Wesunga v Republic [1948] 15EACA 65, the court held as follows:- “Every homicide is presumed to be unlawful except where circumstances make it excusable or it where it has been authorized by law. For a homicide to be excusable, it must have been caused under justifiable circumstances, for example in self defence or in defence of property.” 26. This court finds that death of the deceased was caused by the unlawful acts or omissions of the accused. This position has been proved by the prosecution below beyond reasonable doubt. The accused had malice aforethought 27. According to PW2, the accused went to look for the deceased in the evening at 5.00 pm. Later at 7.00 pm he again went to the house and inquired from PW3 where the deceased was. The accused was having a panga under his arm pit. He borrowed a bucket from PW3 to go and harvest honey but PW3 did not have the bucket. While armed with a panga and fire, presumably to be used in smoking the bees, the accused

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and the decease left at 7.00pm to go to the forest. The deceased was ahead and the accused followed. The deceased was found lying dead not very far from his home the following day. 28. The accused in submitting stated that him and the deceased were in good relations and that nothing shows that the action was premeditated beforehand as the two were best friends. However, the accused did not return with the deceased or even with the honey. He did not go back to explain if any incident had happened while they were harvesting honey. Instead PW2 found him in the morning at his farm which was very close to the deceased’s home and which in his own words was given to him by the deceased. 29. The Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR held:- “Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused; i) The intention to cause death; ii) The intention to cause grievous bodily harm; iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed…” 30. Additionally, in the case of Stephen Haruna v The Attorney General of the Federation [2012] LPELP 782, it was held as follows:- “The Law requires a person last seen with the deceased, whose cause and nature of death is in contention to offer an explanation of what he knows about the death of the deceased onus is always on the person last seen with the deceased to offer a minimum explanation of what he knows about the death of the deceased.” 31. This court has no other conclusion to make other than that the accused committed the brutal and heinous act of cutting short the life of his uncle under the cover of darkness. This court finds that he was possessed of malice afterthought and that is why he persistently looked for the deceased and lured him to go out with him in darkness. The parts of the body cut, the head/skull and neck can only be said he meant to commit a fatal act. The quality of evidence placed the accused person at the scene of murder 21. This case was based on circumstantial evidence to arrive at the inference of guilt of the accused. To prove a case based on circumstantial evidence, such evidence must satisfy the tests as was held in the case of Abanga alias Onyango v Republic Cr App No 32 of 199 as follows:- “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else.” 22. PW2 and PW3 saw the accused with the deceased. PW3 saw the accused leave the homestead with the deceased. A short while later, PW6’s children came across a man lying on the ground and out of fear they ran back home and reported to PW6. The next day, PW6 also came across the body and fearing went back home and sent his son to the village elder. PW2 – Nyamvula Mbuja Chirunga and PW3 – Mupa Burusi said the accused was at the scene of crime and but disappeared and/or walked away from the scene when he heard PW2 and PW3 saw he was the one last seen leaving home with the deceased. It is not true the accused was in Mombasa on 21.2.2015 or even on 22.2.2015. When arrested, he did not raise a defence or alibi with the arresting officers or even with the investigating officers. He did not produce any evidence that he was employed in Mombasa or even Teribe. 23. On the issue of identification of the accused, the accused submits that his official name was not Mwatela Guni. He produced his national identity card before court as exhibit 1 which read Hamisi Mwatela Muti. He further stated that when two men went to arrest him and sought arrest Mwatela Guni, he tried telling them that it was not him but the same fell on deaf ears. He was nabbed and charged without clear investigations on his identity. This court finds that this was a case of recognition rather than identification. The accused was a nephew to the deceased and from the evidence of the accused and other witnesses such as PW1, PW2, PW3, PW4, PW5, and PW6. Therefore, this court rules out the issue of arrest of the accused on the basis of mistaken identity. 24. In conclusion, this court finds the accused guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and hereby convict him accordingly.

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Dated, signed and delivered in Open Court/online through MS TEAMS, this 3rd day of February 2022 HON. LADY JUSTICE A. ONG’INJO JUDGE In the presence of:Ogwel- Court Assistant Mr. Ongeti holding brief for Mr. Mulamula for the State Mr. Kiti holding brief for Ms. Kitoo for the Accused HON. LADY JUSTICE A. ONG’INJO JUDGE

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