Republic v Ibrahim Tawa

“Tsodzoka ni mchawi tutamkatakata” He said the writings referred to the deceased and he saw them. He said the deceased told him it was the accused who wrote those words. 11. That when he inquired from the accused he said he was angry when he wrote as his child was sick but had since recovered and he asked for forgiveness and that he would not do it again. That 2 weeks later the accused went to him and alleged his children were sick and he shore that he was going to cut up the deceased and he discouraged him. 12. That on 9/8/2019 at 6.00am, the accused person’s brother known as Moi called to inform him the deceased was unwell and he should go and see him. He informed the wife the father was sick and that she should go and take him to hospital but when she arrived home she called him and told him the father had been killed. That he proceeded to Coast General Hospital and found the accused his father and Omari Tawa in police vehicle. That the deceased person’s body was also in the police vehicle and it had on the right hand and the skull which had a crack. That the body was kept in the mortuary and postmortem carried out on 10/8/2019 after he identified it. PW 2 said that when accused alleged that the deceased was a witch he didn’t report to police. 13. PW 3 Hadija Mjeni Tawa – the daughter of the deceased testified that accused was her cousin. She testified that her cousin Moi called her on 9/8/2019 at 5.00am and informed her that her father was sick and she needed to go and take him to hospital. She proceeded to her father’s home and found many people gathered at home while others were crying. She found a big stain at her parents’ house and found her father seated at a corner in the bedroom covered with clothes and when he didn’t respond when she called she realized he was dead as there was blood all over in the room. 14. That her cousin called the police at Rabai Police Station as well as Deputy County Commissioner. She said when police uncovered the body there was a crushed skull and right had was cut. She said that her aunt Kuvuna had 3 years earlier claimed the deceased was a witch when her child fainted and a pastor was called and a meeting held and the dispute resolved. 15. PW 3 testified that accused also made the allegations of witchcraft towards the end of 2018 which his child was admitted at Mariakani Hospital but the child recovered. That after sometimes the accused wrote on a stone with a piece of chalk that the deceased was a witch and that they would kill him. That PW 2 asked the accused about what he wrote and he admitted. 16. PW 3 said that her house and the deceased house is a 30 minute walking distance. She said whenever she went home her father would tell her what was going on. PW 3 said that when she went home she saw accused standing at a distance and she didn’t know if he committed the offence but accused was at home when the offence was committed. She said the words that were written on the stone were in Kiswahili and were written in August 2019. 17. PW 4 –Kuvuna Tawa testified that the deceased was her husbands brother. She said on 9/8/2019 she was sleeping when at 2.00am she heard dogs bark but she didn’t go out as she feared. That later the wife to the deceased went to call her to go and help her as her husband had been killed. She said the deceased’s wife was bleeding from the right leg. She opened and found PW 1 seated on the ground with an injury on the leg. That she warmed water and cleaned her wound and the next day at 7.00am when PW 3 came she accompanied her to the scene leaving PW 1 behind as she could not walk. 18. That when she entered the deceased house she found he had been made to sit against the wall in the bedroom and he had a cut at the back of the head. That she and PW 3 raised alarm and call was made to Chief who called the police and went to scene to collect the body of the deceased. That PW 1 was taken to hospital and she was referred to Mariakani for X-ray. 19. PW 4 deemed having said that the deceased was a witch. She also denied that accused claimed the deceased was a witch. She said that PW 1 didn’t tell her if she saw the assailants. She said accused went to scene when police arrived and that he was arrested together with PW 4 & PW 4’s husband and a 4th person, she said she didn’t know if accused participated in the murder and she didn’t know why they were released and accused charged. 20. PW 5 Sergent Steve Owuor together with OCS Rabai Police Station visited scene of murder on 9/8/2019 at the home of PW 1 and the deceased. He said the door to deceased house was opening on both sides and there was blood stains on floor in the living area and deceased body was between the bed and wall in the bedroom and he was in a seated position. 21. They found the deceased wife had been taken to hospital as she sustained a cut on the right leg. PW 5 said the wife of the deceased recognized the voice of suspect herein when he told his companion to kill the deceased. He said the deceased had received death threats an allegations he was a witch. That PW 2 sat and spoke to accused concerning the allegations he made over the deceased and he confessed and apologized. PW 5 arrested and charged accused. 22. PW 5 said accused was present when they arrived at the scene. He said the door to deceased house was forced open. PW 5 said the solar light in the room was very dim and PW 1 was under the bed and she only recognized the accused person’s voice. He denied the PW 2 a person officer influenced his decision to charge the accused. 23. He said the late (former) OCS established allegations that accused wrote threats on a stone but he didn’t have OB report on the same. He said that PW 2 sat with accused and deceased and accused confessed have written the threats on a stone and that he apologized. He said accused and his accomplice accompanied them to police station together with the body of the deceased. He said he could not remember name of the other suspect who was released as he was not mentioned. He said PW 1 woke up the other suspect and he accompanied her to go and look for help. He said accused didn’t have injuries when he was arrested. He said there were drops of blood in the sitting room and a pool of blood where deceased body sat.

page 2 of 4

24. PW 5 said that accused was interrogated on arrest but what he said was not relevant to the case and his statement was not recorded. PW 6 Dr. Fatma Ahmed produced postmortem report filled by Dr. Mirfat where cause of death was established as severe traumatic head injury when the accused was placed on defence he gave sworn statement and said that on 8/8/2019 he was at home with his parents and wife when DW 4 his father’s younger brother visited and spent the night in his house. He denied having committed the murder of his father’s elder brother. He said he heard dogs bark at night and didn’t suspect anything until the following day when his wife came to wake him upto go and see there were people at the neighbours home. 25. That DW 4 accompanied him to scene where they found PW 1 crying and she told him they had been attacked at night but she didn’t identify the attackers and she was also injured. That his step brother DW 3 took PW 1 to hospital on advise of the daughter whom they contacted on phone. That it is DW 3 who made phone call to area chief and reported the attack. That when area Chief arrived in company of police the deceased person’s house was opened and body was collected. He said police came with a list of names which was called out and he was among the names called together with his brother Chengo Tawa, his father, Tawa Munga and DW 3s mother. That they were made to board the vehicle that carried the body and upon the body being left at the mortuary there were told to wash the car and later taken to police station and placed in cells to assist with investigations. 26. Accused said that his father and brother Chengo Tawa remained in the cells for 9 days and were released on cashbail. He said the son of the deceased was also arrested but was also released as he remained on the cells and was charged. Accused denied having written on a stone that the deceased was a witch as alleged by PW 2 – the son-in-law to the deceased. He said he never visited PW 2 and there is no time he sat with PW 2 concerning his relationship with the deceased. 27. Accused said that on the nights of 5 th and 9th August 2019, he was sleeping in his house with his wife and his uncle DW 4. Accused said he was fabricated by PW 1, PW 2 & PW 3. He said he didn’t attack the deceased at night. DW 2 the wife of the accused also testified that on the nights of 8th & 9th August 2019 she was in the house the entire night with the accused. DW 1 also gave similar testimony that he spent the night at his nephew the accused person’s house and that he didn’t leave during the night and could not have committed the murder of his father’s brother. 28. DW 3 the cousin to the accused also testified that on 8 th August 2019 he passed by the accused persons place in the evening and they shared a meal together with DW 4 before he left at 9.00pm to go and sleep leaving the accused and DW 4. He said he heard dogs bark at night but he thought at was normal only to be woken up, the next day by noise of people saying his uncle had been killed. He said he went to scene and saw the deceased had an injury on the leg. He called Area Chief and he took PW 1 to Shika Adabu Dispensary where she was transferred to Mariakani Hospital. 29. That on return he found the deceased body had been taken to mortuary and those who accompanied the body were detained including his mother but his mother was later released. That 2 others were released after 9 days when they paid cashbail of Kshs.20,000/= DW 3 said they were told that murder case is serious and someone had to be charged. 30. DW 3 said when she took PW 1 to hospital he inquired if she was able to identify anyone and she said she didn’t, DW 3 said he was surprised PW 1 said in court that she identified the accused. He said PW 2 and PW 3 don’t stay in their village and he didn’t know where they got the information that accused called the deceased a witch. He said accused was younger than him and he didn’t hear him differ with the deceased. DW 4 the accused persons uncle and DW 5 the accused persons & father also vouched for his innocence saying he didn’t kill his uncle. Analysis and Determination 31. Upon consideration of the evidence on record for the prosecution and the evidence of accused and his witnesses as well as defence submission the issues for determination Is whether the charge against the accused person has been proved beyond all reasonable doubt. In order to prove a charge of murder against an accused person the prosecution as was held in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR ought to prove:a) That death occurred. b) That death occurred as a result of an unlawful act and/or omission c) That the unlawful act and/or omission was committed by the accused and d) That the accused persons act was activated with malice aforethought. 32. It is not in dispute that death occurred where Tawa Hedimed Munga the husband of PW 1 lost his life. It is also not in dispute that death was caused by an unlawful act actuated with malice aforethought. The manner of breaking into the deceased and PW 1’s house and hacking him with a panga on very vital part and of the body was not intended to spare his life. There was express malice exhibited by the assailant(s) herein in the manner they carried out the execution of the offence. They left no chance for the deceased to survive. From the postmortem report the deceased suffered crushed head, fracture at the left 1/3 forearm with brain matter exposed. Dr. Murfat concluded that he died due to severe traumatic head injury. 33. The ingredients were properly established beyond all reasonable doubt. However, the dispute is whether it is the accused herein who committed the heinous act. 34. According to PW 1, she was able to recognize the voice of accused, herein when he told, his companion “muuwe kabisa”. PW 1 also said that there was solar light in the house and she managed to see accused persons face as it was not covered. PW 1 at the same time said

page 3 of 4

that she was hiding under the bed and the leg that was not completely hidden was cut. 35. PW 1, also said that accused wrote on a stone near their house “huyu mzee nitamuua” she said PW 4 and the accused had claimed that her husband was a witch and that is reason he was killed. She said the accused person wrote the words in Kiswahili language that he would kill the deceased. PW 1 did not see the writings but she alleged the deceased told her so. 36. PW 1 had been taken to hospital by DW 3 by the time police officers arrived to collect the body of the deceased and the investigating officer didn’t explain how and when he got the names of the suspects who were arrested together with the accused after they accompanied the body of the deceased to the mortuary. Those arrested included the son to the deceased, DW 3’s mother as well as brother & father to the accused person who were later released and the investigating officer didn’t explain circumstances under which they were released. 37. If PW 1 recognized the voice of accused person or recognized the accused it does not make sense that five people were arrested even before PW 1 met with the investigating officer as she had gone to hospital. The circumstances under which the 1st prosecution witness claimed she identified the accused person were not conducive for proper identification. PW 2 said when he arrived at the scene he had to use torch on his phone to find the deceased in the bedroom. 38. PW 6 the Investigating Officer also said the solar light in the bed house was dim. Further PW 1 said that when the deceased was cut at the door he ran towards the bedroom and she went under the bed and that the leg that was not hidden completely under the bed was cut. That she could see and recognize someone from under the bed with the dim solar light in her bedroom in highly doubtful more so considering that she was the sole identifying witness. 39. Whereas PW 1 said that the writing on the stone was in Kiswahili. PW 2 said that it was in Rabai language. PW 1 didn’t see the writings. PW 2 claimed that he counselled the accused who confessed to have written the threats on the stone and that he apologized. Accused denied these claims. DW 3 also denied that any threats were written on a stone by the accused. PW 2 didn’t take a photograph of the words allegedly written on a stone and he didn’t report the threats to the police. The fact that he says the words were in Kirabai and PW 1 & PW 3 say they were written in Kiswahili puts doubt in the allegations that the accused wrote the alleged threatening words. 40. In any event even if it was proved that accused wrote the words alleged to threaten the life of the deceased the prosecution had the onus of connecting those words to the act of killing the deceased. It is not understood how an offence can be committed within a family setup where close family members live within close proximity to each other and yet they fail to know during the night but it was upon the prosecution to link the offence to accused beyond all reasonable doubt. 41. Having found that doubt has been raised in the prosecution’s case this court finds that, that doubt should be resolved in favour of the accused and he is acquitted under Section 322(1) & (2) of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 3RD DAY OF FEBRUARY 2022 HON. LADY JUSTICE A. ONG’INJO JUDGE IN THE PRESENCE OF:OGWEL- COURT ASSISTANT MS. ONGETI FOR STATE ACCUSED – PRESENT IN PERSON MR. OCHIENG ADVOCATE FOR ACCUSED HON. LADY JUSTICE A. ONG’INJO JUDGE COURT CERTIFIED COPY OF JUDGMENT TO BE SUPPLIED TO ACCUSED COUNSEL ON PAYMENT OF COPYING CHARGES. HON. LADY JUSTICE A. ONG’INJO JUDGE

page 4 of 4