1. The 1st to 4th accused persons herein respectively Aden Abdi Siiba alias Tall, Abdulkarim Musa Ali, Evans Omondi Ngei alias Omar and Katana Mangi Yaa are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) Laws of Kenya that between the 11th and 13th November 2017 at Bombolulu, Kisauni Sub-County of Mombasa County jointly with others not before court in the Republic of Kenya, jointly murdered Moiz Esmail Esmalji.
2. The accused persons pleaded not guilty to the charge and the case was set down for hearing.
3. The 2nd accused person Abdulkarim Musa Ali, absconded trial while out on bond while the 3rd accused person Evans Omondi Ngei alias Omar passed on in the course of the trial. The case concluded to conclusion with the 1st accused person Aden Abdi Siiba alias Tall and the 4th accused person Katana Mangi Yaa (they are thus the accused persons herein).
4. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when the court had made a ruling that the 1st and 4th accused persons had a case to answer.
5. The accused persons opted to have the case to proceed from where Hon. Lady Justice Anne Ong’ijo had left it. I took the accused persons’ defences. Each gave sworn evidence in defence and did not call any witness. They denied any involvement in the offence.
6. The prosecution called thirteen witnesses to support the charge. The prosecution’s case summary as gathered from the evidence of the 13 witnesses is as follows.
7. PW 12 CIP Kipkemboi Rop, then working as head of the Flying Squad, Coastal region said that a report was made by relatives of the deceased to the police at Central police station, Mombasa that the deceased Moiz Ismael had been kidnapped on 11/11/2017 while coming from Bondeni mosque within Mombasa town. The kidnappers had demanded a ransom of KShs 2 million through phone number 0706876687 from the relatives and they had been sent KShs 300,000/= in a bid to have the kidnappers free the deceased.
8. Investigations established that the money had been withdrawn from agent number 64821 operating under the name Brit Travel Car Hire Wamugunda, operated by Julie Munyazi Mwamuye, PW 10 through various phone numbers and deposits also made to other numbers. One of the numbers 0723 324344 was in the name of Katana Yaa which name is similar to that of the 4th accused person herein and to which KShs 50,000/= was deposited.
9. The operator of the M-pesa till number 64821 Julie Munyazi Mwamuye, PW 10 was identified and arrested to assist police with investigations. Julie informed the police that she had received instructions from her landlord Evans Omondi Ngei, the 3rd accused person about the money coming through her till number and how to distribute it through the withdrawals and deposits. The 3rd accused person was the one who gave her the phone number 0723 324344 into which to deposit KShs 50,000/=. Some of the money sent to the agent number was recovered and kept as exhibit.
10. PW 5, Adelaide Mapesa is an M-Pesa agent administrator operating a company called Brit Travel & Car Hire Co. Ltd. He gave evidence that the company had sub-let Till No. 64821 Store No. 553113 to PW 10, Julie Munyazi Mwamuye who was operating the M-pesa outlet at King’orani, Majengo, Wamugunda road in Mombasa town.
11. PW 10, Julie Munyazi Mwamuye gave evidence that on 11/11/2017 she was informed by her landlord Evans Omondi Ngei, the 3rd accused person (now deceased) that he had given out her M-pesa agent number 64821 under the name Brit Travel & Car Hire Wamugunda Mombasa to his friend to withdraw money from there. The following withdrawals were made:
a. 0728 915751, Alfred Lai, KShs 70,000/=, withdrawal
b. 0728 915751, Alfred Lai, KShs 10,000/=, withdrawal
c. 0722 378070, Sammy Martim, KShs 49,500/=, withdrawal
d. 0712 109522, Francis Gitonga Kilonzo KShs 69,500/=, withdrawal
12. The landlord also instructed her to deposit the money in his phone number 0726 663952. She did the deposit transaction in two batches of KShs 70,000/= and KShs 49,000/=. Two other withdrawal transactions were done as follows:
e. 0726 663952, Evans Omondi Ngei KShs 70,000/=, deposit
f. 0726 663952, Evans Omondi ngei KShs 49,000/=, deposit
13. More transactions were done as follows:
g. 0706 878110, Mustafa Abdul Kadir Ibrahim KShs 70,000/= withdrawal
h. 0706 878110 Mustafa Ibrahim KShs 15,000/=, withdrawal
i. 0712 105015 Antonious Oifier Odeche KShs 10,000/= withdrawal.
14. The landlord sent her a text message with another number for her to deposit KShs 50,000/=.
j. 0710 614444 Katana Yaa, KShs 50,000/=
15. The following day, her landlord, the 3rd accused person went to collect the balance of the money. When PW 10 did the transaction to deposit the money in No. 0726 663952, it did not go through. Her till number was not working. She went to check the problem with her super-agent PW 5, Adelaide Mapesa at Mtwapa and while there, police officers arrived and arrested her.
16. DCI officers had contacted PW 5 the previous day and made inquiries about Till No. 533113 and he informed them that it was let out and operated by Julie Munyazi Mwamuye, PW 10. When she went there to inquire about her number not being operational, the police officers arrived and arrested her.
17. PW 6, Onesmus Willis Ismael is the husband to Julie, PW 10. When he learnt of his wife’s arrest, he went to her business and a neighbor, Mama Karani gave him the key to his wife’s shop and an envelope with money KShs 241,450/= and told him his wife had left it with her. He later established that his wife was being held by the police who confirmed the same to him. He later handed over the money to the police.
18. According to PW 12, police had advised the family of the deceased not to send any money to the kidnappers but they sent KShs 300,000/=. However, a calculation of the amounts said to have been withdrawn through the M-Pesa till number operated by PW 10 shows a higher figure of KShs 463,000/= and yet PW 10 said another transaction to deposit KShs 50,000/= more to the 3rd accused person’s account was not successful which would have made it at least KShs 513,000/=. Unfortunately, none of the people who are alleged to have sent the money was made available to testify on the same. PW 12, the investigating officer also said that they recovered KShs 98,000/= (Exh. 18) from PW 10, which they believed was part of the proceeds and another transaction of KShs 125,000/= did not go through. There was also KShs 241,450/= (Exh. 19) which was in PW 10’s bag and recovered by her husband PW 5 and handed over to the police.It would appear that PW 10 remained with the money withdrawn to be collected by Evans Omondi, the 3rd accused person (deceased).
19. PW 7 Cpl Moses Irungu, then of Anti-Terrorism Police Unit based in Nairobi gave evidence that upon request by the DCI Mombasa that the 2nd accused person was wanted for kidnapping and murder in Mombasa, arrested the 2nd accused person Abdulkarim Musa Ali in Nairobi where he had escaped together with his wife Chanza Hussein Yusuf on 15/11/2017. He escorted them to Mombasa and handed them over to the officers who had made the request.
20. PW 8, Dr. K. N. Mandalia conducted a post mortem on the body of the deceased on 13/11/2017 some four hours after it was recovered. He formed the opinion that the cause of death was due to asphyxia due to strangulation and chest injury with severe gagging of oral cavity and nose.
21. PW 9, James Munga Mundia gave evidence that he was a taxi driver. On 11/11/2017 at 3.00 a.m. a customer was taken to him by one Tutta. The customer told him he wanted to be taken to Bombolulu workshop to take food. PW 8 ferried the customer from Haille Selasie road in Mombasa town to Bombolulu workshop area to a house under construction. Two men in dreadlocks emerged from the house with a bucket each and one of them gave the taxi customer, a hot pot from the buckets. The taxi customer asked the two in Kiswahili “kwani hamukula?” (whether they had not eaten) and the dreadlocked man agreed. The customer alighted and spoke to the two men in low tones. He went back to the car, took the food he had carried and gave the two men and then went back to the car and they left.
22. PW 8 said that he was not able to identify the customer as the man did not want the taxi to be stopped where there was light. The customer paid PW 8 KShs 700/= using M-Pesa No. 0715 763877 under the name Abdulkarim Ali which is similar to that of the 2nd accused person herein. After they parted ways, the customer called PW 9 and told him that he had left his phone in the car and he would go for it the following day. He never went for it in spite of PW 9 calling him several times. PW 9 then made a report at Central Police station of the customer leaving the phone in his car. He was escorted to Urban DCI offices thereafter. He later took police officers to where he had taken the customer in Bombolulu area during the night.
23. PW 11, PC Ian Nahashon Mutamba of the DCI and attached to Safaricom Plc, Mombasa produced call data records and M-Pesa statements for the following numbers:
a. 0712 404855, b. 0722 458177, c. 0712 109645
d. 0706 878110 (Mustafa Abdikadir Ibrahim)
e. 0712 105015, f. 0712 109522, g. 0723 324344
h. 0706 876687, i. 0726663952, j. 0727 111119
k. Agent Till No. 64821
24. PW 11 gave evidence of the M-Pesa transactions done on the said phone numbers. In some instances, he also gave the names of the persons to whom the numbers were registered. His evidence confirmed what PW 10 said in evidence about the transactions
25. PW 12, CIP Kipkemoi Rop was the investigating officer in the case. The evidence of PW 12 was largely a recitation of the transactions done by PW 10 on her M-Pesa till number.
26. PW 12 said in cross-examination that many people withdrew money through PW 10’s agency but they were not there physically. He gave the names as Alfred Lai, Sammy Maritim, Kitonga Kilinzo, Mustafa Abdul Kadir Ibrahim, Antonious Oyier and Katana Yaa. He said he handed over the case to Mr. Kanake PW 13 before he could record statements from these people. He said that they are not witnesses in the case.
27. PW 12 said that Julie, PW 10 flouted Safaricom regulations and aided the perpetrators who kidnapped, demanded ransom and eventually killed the deceased. He handed over the matter to PW 13 for further investigations after he arrested Julie and Evans Omondi, the 3rd accused person.
28. PW 13, SSP Jacob Kabiria Kanake also led the team of investigators in the case. He said that the relatives of the deceased had sent KShs 300,000/= through numbers 0712 109645, 0706 878110, 0712 105015. During investigations, they traced the numbers to Malindi prison Mixed Block B for high risk offenders. They proceeded there and conducted a search and recovered 38 phones inside a toilet, 37 sim cards and other contraband goods. An inventory of the recoveries was made which he signed together with the deputy In-charge of Malindi prison SSP Komora and they were taken to Nairobi for analysis. However, no suspect was found in the prison.
29. PW 1, Cpl Mika Mbatu Kwanza, PW 2, IP Felix Kesi Katana, PW 3, PC Bernard Opuko Ealal and PW 4, IP Philip Kiama Mwangi are all prison officers who were working at Malindi GK prison. They confirmed that a prison search was conducted at the facility on 11/11/2017 by prison officers in Mixed Bock A and by DCI officers in high risk Block B on 12/11/2017 and that phones and sim cards were recovered but none was linked to any of the prisoners.
30. PW 13 gave further evidence that on 13/11/2017 the body of the deceased, an Asian was recovered in an incomplete house at Bombolulu area in Kisauni after members of the public alerted the police. He visited the scene and established that the body was for the person whose report of kidnapping the police had received. He had been tied with a rope (Exh. 20) and gagged with celotape (Exh. 21). The deceased’s clothes were also produced as exhibits 22-24. His brothers identified the body at the scene.
31. When placed on their defence, each of the accused persons gave sworn evidence and did not call a witness in defence.
32. Each of the accused persons denied that he committed the offence. The 1st and 4th accused persons said in their respective defences that at the time of the incident, they were serving a sentence in prison but were not involved in any way in the commission of the offence herein. They each denied that they could have had access to any phone at the time as phones are considered as contraband in prison and in any case, as confirmed by the prison officers as well as PW 11 and PW 13, prison cells are jammed by mobile phone service providers to ensure that inmates cannot make or receive calls.
33. Learned counsels for the accused persons made written submissions with authorities, urging their respective positions on the matter. Their submissions are that there was no evidence either direct or circumstantial that connects the 1st and 4th accused persons to the offence herein.
34. Learned counsel for the 1st accused person submits that crucial witnesses were not called to give evidence, the electronic evidence tendered did not meet the threshold for admissibility of such evidence under section 106B of the Evidence Act (Cap. 80) Laws of Kenya, exhibits recovered were not produced in evidence and that in whole, investigations into the murder of the victim were incomplete and that the 1st accused persons were arrested and charged as a cover up for the real culprits. He further submitted that the alibi defence offered by the 1st accused person was not displaced by the prosecution.
35. Learned counsel for the 2nd accused person made submissions which are aligned with those made by learned counsel for the that 1st accused person.
36. The court has duly considered the submissions by learned counsles in the analysis following.
37. I have considered the evidence by the prosecution and the respective defences by the 1st and 4th accused persons as well as the submissions by learned counsels for the accused persons. The point for determination is whether or not the prosecution has proved its case against the accused persons beyond a reasonable doubt.
38. The offence of murder is provided for under section 203 of the Penal Code as follows:
“S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
39. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) the Court of Appeal said thus regarding the ingredients of the offence of murder:
“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that 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. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”
40. There is no direct evidence that links the two accused persons to the offence of murder of the deceased in this case. The prosecution case is based entirely on circumstantial evidence. In order to found a conviction on circumstantial evidence, the evidence must satisfy the following three tests as held in the case of Sawe v R (2003) KLR 364):
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 definite tendency unerringly pointing towards the 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 connected by the accused and none else.
41. The prosecution’s case was that a report was made to police that a person had been kidnapped on the evening of 11/11/2017 while he was coming from the mosque. On 13/11/2017, his body was found in a house under construction at Bombolulu area with all signs that he had been killed. PW 13 said that he visited the scene where the body was lying and confirmed that it was that of the person who was reported as having been kidnapped. He saw the body had its hands tied at the back with a rope and with celotape tied on the mouth and nose inhibiting his breathing. Apparently, the body was identified by the brothers of the deceased who attended the scene after PW 13 called them there. None of the brothers attended court to give evidence on such identification. Indeed, Dr. K. N. Mandalia, PW 8, conducted a post mortem on the body of the deceased on 13/11/2017 some four hours after it was recovered. He formed the opinion that the cause of death was due to asphyxia due to strangulation and chest injury with severe gagging of oral cavity and nose.
42. However, the link between the body recovered at Bombolulu and the person who was said to have been kidnapped was not established again because the family of the person ostensibly found no need to attend court to testify.
43. That failure opened up a big gap in the case for the prosecution. The reason is that the prosecution relied heavily on electronic evidence being call data and M-pesa or electronic money transfer records to try to establish that upon being kidnapped, the perpetrators demanded for a ransom of KShs 2 million, received KShs 300,000/=but ended up killing their victim ostensibly when they realized that they were being sought after by police.
44. The first gap was as indicated above, failure to identify the deceased as the victim of the kidnapping. I am persuaded to follow the decision in Republic v Daniel Kenyanya Nyaata & 5 others [2018] eKLR where, the High Court, Majanja DAS, J., on finding that the body of the deceased was not identified acquitted the accused persons of murder by saying:
“In the circumstances, I do not find sufficient evidence to put the accused on their defence for several reasons. The deceased’s body was not identified nor was the cause of death and the accused were not put at the scene. I enter a verdict of not guilty under section 306(1) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya).”
45. The strongest link in this case, as submitted by learned counsels for the accused persons was the demand for ransom and alleged transmission of the same. The payment of the ransom was ostensibly effected and thus withdrawals made through M-pesa transactions done through the till number for PW 10. I say ostensibly because none of the persons who allegedly sent the money gave evidence herein, the numbers that sent the money and to which number(s) it was sent were also not given even by the investigating officer. PW 10 gave the numbers which made withdrawals and those to which she sent by way of deposit at the instructions of the 3rd accused person, Evans Omondi Ngei (deceased) her landlord. Her evidence on the same was confirmed by PW 11.
46. Through PW 11 the prosecution presented raw data of the M-pesa transactions from Safaricom Plc, showing the numbers and names of who withdrew the money from PW 10, M-pesa till number but without trying to establish from whom it had come (the victim’s relatives) and then gone to the numbers (the would be kidnappers) which then withdrew the money through PW 10’s outlet and the link it had to the accused persons.
47. It was alleged that the phone numbers demanding and receiving the ransoms were from Malindi prison. When a search was conducted there, several phones and SIM cards were recovered from one of the cells. It was said that the phones and SIM cards were taken for forensic analysis.
48. There was no connection made to either of the 1st or 4th accused persons. The only name that was linked to the money sent out by PW 10 through her till number was for one Katana Yaa of phone number 0710 614444 who received KShs 50,000/=. Indeed, the 4th accused person is Katana Mangi Yaa and he was in Malindi prison where the investigators alleged that the phone calls for ransom had come. Yet, there was no evidence to show that that a SIM card registered under that name was recovered from Malindi prison and that he was the Katana Yaa in Malindi prison at the time. The investigating officer said that the phones and SIM cards recovered from Malindi prison were taken for forensic analysis. The results of the analyses were never tendered in evidence.
49. The defences by the accused persons that they were not connected to the phones remained unassailed by the prosecution.
50. Therefore, it becomes inevitable for this court to find that the electronic evidence of the M-pesa transactions and call data records failed to positively identify the accused persons by placing either of them at the scene of the crime either by physical presence or as being accomplices. If there was evidence that they had possession of or were connected to any of the numbers that received the money, that would have placed them at the scene of the crime as conspirators.
51. It is quite unfortunate that two of the prime suspects to whom the evidence was pointing, the 2nd and 3rd accused persons were not available for the prosecution of the case to the end.
52. As a trier of fact, I am entitled to draw a logical and positive inference from the circumstantial evidence but should not be on speculation, conjecture or guess work. In this case, there is no direct evidence to show that the 1st and 4th accused persons participated in the commission of the offence of murder in any way. The only circumstantial evidence available is that both of them were in prison at the time the offence was committed and the suspicion that the phone numbers that demanded for ransom came from Malindi prison. It was suspicion because, as submitted by learned counsel for the 1st accused person no call phone numbers and their respective call logs were produced as exhibits to show that indeed there were such calls made from Malindi prison and their eventual connection to the 1st and 4th accused person. Consequently, there is no evidence that irresistibly points to the guilt of the 1st and 4th accused persons as perpetrators of the offence herein.
53. From whichever angle one looks at it, the prosecution who bore the burden of proof has failed to discharge that duty in circumstances that establishes beyond a reasonable doubt or even on reasonable suspicion reached by the investigating officer based on call data extracts and as analyzed by PW 11 that the 1st and 4th accused persons participated in the murder of the victim.
54. The evidence tendered herein falls short of establishing the elements of the offence of murder contrary to Section 203 of the Penal Code. It is only when the prosecution evidence tendered sufficiently proves on the whole elements of unlawful death and malice aforethought under Section 206 of the Penal Code in the information that a case of murder be proved beyond a reasonable doubt.
55. I therefore find that the prosecution has failed to prove its case against either of the accused persons beyond a reasonable doubt. Consequently, I find the charge of murder contrary to Section 203 of the Penal Code not proved against either of the 1st or 4th accused persons and is hereby dismissed and the 1st and 4th accused persons are set at liberty unless otherwise lawfully held.
56. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 13th day of February 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The 1st and 4th accused in person present in court.
Mr. Ngiri for the Prosecution.
Wamotsa for the 1st accused person.
Odundo for the 2nd accused person.
Etropia - Court Assistant
2. The accused persons pleaded not guilty to the charge and the case was set down for hearing.
3. The 2nd accused person Abdulkarim Musa Ali, absconded trial while out on bond while the 3rd accused person Evans Omondi Ngei alias Omar passed on in the course of the trial. The case concluded to conclusion with the 1st accused person Aden Abdi Siiba alias Tall and the 4th accused person Katana Mangi Yaa (they are thus the accused persons herein).
4. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when the court had made a ruling that the 1st and 4th accused persons had a case to answer.
5. The accused persons opted to have the case to proceed from where Hon. Lady Justice Anne Ong’ijo had left it. I took the accused persons’ defences. Each gave sworn evidence in defence and did not call any witness. They denied any involvement in the offence.
6. The prosecution called thirteen witnesses to support the charge. The prosecution’s case summary as gathered from the evidence of the 13 witnesses is as follows.
7. PW 12 CIP Kipkemboi Rop, then working as head of the Flying Squad, Coastal region said that a report was made by relatives of the deceased to the police at Central police station, Mombasa that the deceased Moiz Ismael had been kidnapped on 11/11/2017 while coming from Bondeni mosque within Mombasa town. The kidnappers had demanded a ransom of KShs 2 million through phone number 0706876687 from the relatives and they had been sent KShs 300,000/= in a bid to have the kidnappers free the deceased.
8. Investigations established that the money had been withdrawn from agent number 64821 operating under the name Brit Travel Car Hire Wamugunda, operated by Julie Munyazi Mwamuye, PW 10 through various phone numbers and deposits also made to other numbers. One of the numbers 0723 324344 was in the name of Katana Yaa which name is similar to that of the 4th accused person herein and to which KShs 50,000/= was deposited.
9. The operator of the M-pesa till number 64821 Julie Munyazi Mwamuye, PW 10 was identified and arrested to assist police with investigations. Julie informed the police that she had received instructions from her landlord Evans Omondi Ngei, the 3rd accused person about the money coming through her till number and how to distribute it through the withdrawals and deposits. The 3rd accused person was the one who gave her the phone number 0723 324344 into which to deposit KShs 50,000/=. Some of the money sent to the agent number was recovered and kept as exhibit.
10. PW 5, Adelaide Mapesa is an M-Pesa agent administrator operating a company called Brit Travel & Car Hire Co. Ltd. He gave evidence that the company had sub-let Till No. 64821 Store No. 553113 to PW 10, Julie Munyazi Mwamuye who was operating the M-pesa outlet at King’orani, Majengo, Wamugunda road in Mombasa town.
11. PW 10, Julie Munyazi Mwamuye gave evidence that on 11/11/2017 she was informed by her landlord Evans Omondi Ngei, the 3rd accused person (now deceased) that he had given out her M-pesa agent number 64821 under the name Brit Travel & Car Hire Wamugunda Mombasa to his friend to withdraw money from there. The following withdrawals were made:
a. 0728 915751, Alfred Lai, KShs 70,000/=, withdrawal
b. 0728 915751, Alfred Lai, KShs 10,000/=, withdrawal
c. 0722 378070, Sammy Martim, KShs 49,500/=, withdrawal
d. 0712 109522, Francis Gitonga Kilonzo KShs 69,500/=, withdrawal
12. The landlord also instructed her to deposit the money in his phone number 0726 663952. She did the deposit transaction in two batches of KShs 70,000/= and KShs 49,000/=. Two other withdrawal transactions were done as follows:
e. 0726 663952, Evans Omondi Ngei KShs 70,000/=, deposit
f. 0726 663952, Evans Omondi ngei KShs 49,000/=, deposit
13. More transactions were done as follows:
g. 0706 878110, Mustafa Abdul Kadir Ibrahim KShs 70,000/= withdrawal
h. 0706 878110 Mustafa Ibrahim KShs 15,000/=, withdrawal
i. 0712 105015 Antonious Oifier Odeche KShs 10,000/= withdrawal.
14. The landlord sent her a text message with another number for her to deposit KShs 50,000/=.
j. 0710 614444 Katana Yaa, KShs 50,000/=
15. The following day, her landlord, the 3rd accused person went to collect the balance of the money. When PW 10 did the transaction to deposit the money in No. 0726 663952, it did not go through. Her till number was not working. She went to check the problem with her super-agent PW 5, Adelaide Mapesa at Mtwapa and while there, police officers arrived and arrested her.
16. DCI officers had contacted PW 5 the previous day and made inquiries about Till No. 533113 and he informed them that it was let out and operated by Julie Munyazi Mwamuye, PW 10. When she went there to inquire about her number not being operational, the police officers arrived and arrested her.
17. PW 6, Onesmus Willis Ismael is the husband to Julie, PW 10. When he learnt of his wife’s arrest, he went to her business and a neighbor, Mama Karani gave him the key to his wife’s shop and an envelope with money KShs 241,450/= and told him his wife had left it with her. He later established that his wife was being held by the police who confirmed the same to him. He later handed over the money to the police.
18. According to PW 12, police had advised the family of the deceased not to send any money to the kidnappers but they sent KShs 300,000/=. However, a calculation of the amounts said to have been withdrawn through the M-Pesa till number operated by PW 10 shows a higher figure of KShs 463,000/= and yet PW 10 said another transaction to deposit KShs 50,000/= more to the 3rd accused person’s account was not successful which would have made it at least KShs 513,000/=. Unfortunately, none of the people who are alleged to have sent the money was made available to testify on the same. PW 12, the investigating officer also said that they recovered KShs 98,000/= (Exh. 18) from PW 10, which they believed was part of the proceeds and another transaction of KShs 125,000/= did not go through. There was also KShs 241,450/= (Exh. 19) which was in PW 10’s bag and recovered by her husband PW 5 and handed over to the police.It would appear that PW 10 remained with the money withdrawn to be collected by Evans Omondi, the 3rd accused person (deceased).
19. PW 7 Cpl Moses Irungu, then of Anti-Terrorism Police Unit based in Nairobi gave evidence that upon request by the DCI Mombasa that the 2nd accused person was wanted for kidnapping and murder in Mombasa, arrested the 2nd accused person Abdulkarim Musa Ali in Nairobi where he had escaped together with his wife Chanza Hussein Yusuf on 15/11/2017. He escorted them to Mombasa and handed them over to the officers who had made the request.
20. PW 8, Dr. K. N. Mandalia conducted a post mortem on the body of the deceased on 13/11/2017 some four hours after it was recovered. He formed the opinion that the cause of death was due to asphyxia due to strangulation and chest injury with severe gagging of oral cavity and nose.
21. PW 9, James Munga Mundia gave evidence that he was a taxi driver. On 11/11/2017 at 3.00 a.m. a customer was taken to him by one Tutta. The customer told him he wanted to be taken to Bombolulu workshop to take food. PW 8 ferried the customer from Haille Selasie road in Mombasa town to Bombolulu workshop area to a house under construction. Two men in dreadlocks emerged from the house with a bucket each and one of them gave the taxi customer, a hot pot from the buckets. The taxi customer asked the two in Kiswahili “kwani hamukula?” (whether they had not eaten) and the dreadlocked man agreed. The customer alighted and spoke to the two men in low tones. He went back to the car, took the food he had carried and gave the two men and then went back to the car and they left.
22. PW 8 said that he was not able to identify the customer as the man did not want the taxi to be stopped where there was light. The customer paid PW 8 KShs 700/= using M-Pesa No. 0715 763877 under the name Abdulkarim Ali which is similar to that of the 2nd accused person herein. After they parted ways, the customer called PW 9 and told him that he had left his phone in the car and he would go for it the following day. He never went for it in spite of PW 9 calling him several times. PW 9 then made a report at Central Police station of the customer leaving the phone in his car. He was escorted to Urban DCI offices thereafter. He later took police officers to where he had taken the customer in Bombolulu area during the night.
23. PW 11, PC Ian Nahashon Mutamba of the DCI and attached to Safaricom Plc, Mombasa produced call data records and M-Pesa statements for the following numbers:
a. 0712 404855, b. 0722 458177, c. 0712 109645
d. 0706 878110 (Mustafa Abdikadir Ibrahim)
e. 0712 105015, f. 0712 109522, g. 0723 324344
h. 0706 876687, i. 0726663952, j. 0727 111119
k. Agent Till No. 64821
24. PW 11 gave evidence of the M-Pesa transactions done on the said phone numbers. In some instances, he also gave the names of the persons to whom the numbers were registered. His evidence confirmed what PW 10 said in evidence about the transactions
25. PW 12, CIP Kipkemoi Rop was the investigating officer in the case. The evidence of PW 12 was largely a recitation of the transactions done by PW 10 on her M-Pesa till number.
26. PW 12 said in cross-examination that many people withdrew money through PW 10’s agency but they were not there physically. He gave the names as Alfred Lai, Sammy Maritim, Kitonga Kilinzo, Mustafa Abdul Kadir Ibrahim, Antonious Oyier and Katana Yaa. He said he handed over the case to Mr. Kanake PW 13 before he could record statements from these people. He said that they are not witnesses in the case.
27. PW 12 said that Julie, PW 10 flouted Safaricom regulations and aided the perpetrators who kidnapped, demanded ransom and eventually killed the deceased. He handed over the matter to PW 13 for further investigations after he arrested Julie and Evans Omondi, the 3rd accused person.
28. PW 13, SSP Jacob Kabiria Kanake also led the team of investigators in the case. He said that the relatives of the deceased had sent KShs 300,000/= through numbers 0712 109645, 0706 878110, 0712 105015. During investigations, they traced the numbers to Malindi prison Mixed Block B for high risk offenders. They proceeded there and conducted a search and recovered 38 phones inside a toilet, 37 sim cards and other contraband goods. An inventory of the recoveries was made which he signed together with the deputy In-charge of Malindi prison SSP Komora and they were taken to Nairobi for analysis. However, no suspect was found in the prison.
29. PW 1, Cpl Mika Mbatu Kwanza, PW 2, IP Felix Kesi Katana, PW 3, PC Bernard Opuko Ealal and PW 4, IP Philip Kiama Mwangi are all prison officers who were working at Malindi GK prison. They confirmed that a prison search was conducted at the facility on 11/11/2017 by prison officers in Mixed Bock A and by DCI officers in high risk Block B on 12/11/2017 and that phones and sim cards were recovered but none was linked to any of the prisoners.
30. PW 13 gave further evidence that on 13/11/2017 the body of the deceased, an Asian was recovered in an incomplete house at Bombolulu area in Kisauni after members of the public alerted the police. He visited the scene and established that the body was for the person whose report of kidnapping the police had received. He had been tied with a rope (Exh. 20) and gagged with celotape (Exh. 21). The deceased’s clothes were also produced as exhibits 22-24. His brothers identified the body at the scene.
31. When placed on their defence, each of the accused persons gave sworn evidence and did not call a witness in defence.
32. Each of the accused persons denied that he committed the offence. The 1st and 4th accused persons said in their respective defences that at the time of the incident, they were serving a sentence in prison but were not involved in any way in the commission of the offence herein. They each denied that they could have had access to any phone at the time as phones are considered as contraband in prison and in any case, as confirmed by the prison officers as well as PW 11 and PW 13, prison cells are jammed by mobile phone service providers to ensure that inmates cannot make or receive calls.
33. Learned counsels for the accused persons made written submissions with authorities, urging their respective positions on the matter. Their submissions are that there was no evidence either direct or circumstantial that connects the 1st and 4th accused persons to the offence herein.
34. Learned counsel for the 1st accused person submits that crucial witnesses were not called to give evidence, the electronic evidence tendered did not meet the threshold for admissibility of such evidence under section 106B of the Evidence Act (Cap. 80) Laws of Kenya, exhibits recovered were not produced in evidence and that in whole, investigations into the murder of the victim were incomplete and that the 1st accused persons were arrested and charged as a cover up for the real culprits. He further submitted that the alibi defence offered by the 1st accused person was not displaced by the prosecution.
35. Learned counsel for the 2nd accused person made submissions which are aligned with those made by learned counsel for the that 1st accused person.
36. The court has duly considered the submissions by learned counsles in the analysis following.
37. I have considered the evidence by the prosecution and the respective defences by the 1st and 4th accused persons as well as the submissions by learned counsels for the accused persons. The point for determination is whether or not the prosecution has proved its case against the accused persons beyond a reasonable doubt.
38. The offence of murder is provided for under section 203 of the Penal Code as follows:
“S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
39. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) the Court of Appeal said thus regarding the ingredients of the offence of murder:
“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that 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. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”
40. There is no direct evidence that links the two accused persons to the offence of murder of the deceased in this case. The prosecution case is based entirely on circumstantial evidence. In order to found a conviction on circumstantial evidence, the evidence must satisfy the following three tests as held in the case of Sawe v R (2003) KLR 364):
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 definite tendency unerringly pointing towards the 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 connected by the accused and none else.
41. The prosecution’s case was that a report was made to police that a person had been kidnapped on the evening of 11/11/2017 while he was coming from the mosque. On 13/11/2017, his body was found in a house under construction at Bombolulu area with all signs that he had been killed. PW 13 said that he visited the scene where the body was lying and confirmed that it was that of the person who was reported as having been kidnapped. He saw the body had its hands tied at the back with a rope and with celotape tied on the mouth and nose inhibiting his breathing. Apparently, the body was identified by the brothers of the deceased who attended the scene after PW 13 called them there. None of the brothers attended court to give evidence on such identification. Indeed, Dr. K. N. Mandalia, PW 8, conducted a post mortem on the body of the deceased on 13/11/2017 some four hours after it was recovered. He formed the opinion that the cause of death was due to asphyxia due to strangulation and chest injury with severe gagging of oral cavity and nose.
42. However, the link between the body recovered at Bombolulu and the person who was said to have been kidnapped was not established again because the family of the person ostensibly found no need to attend court to testify.
43. That failure opened up a big gap in the case for the prosecution. The reason is that the prosecution relied heavily on electronic evidence being call data and M-pesa or electronic money transfer records to try to establish that upon being kidnapped, the perpetrators demanded for a ransom of KShs 2 million, received KShs 300,000/=but ended up killing their victim ostensibly when they realized that they were being sought after by police.
44. The first gap was as indicated above, failure to identify the deceased as the victim of the kidnapping. I am persuaded to follow the decision in Republic v Daniel Kenyanya Nyaata & 5 others [2018] eKLR where, the High Court, Majanja DAS, J., on finding that the body of the deceased was not identified acquitted the accused persons of murder by saying:
“In the circumstances, I do not find sufficient evidence to put the accused on their defence for several reasons. The deceased’s body was not identified nor was the cause of death and the accused were not put at the scene. I enter a verdict of not guilty under section 306(1) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya).”
45. The strongest link in this case, as submitted by learned counsels for the accused persons was the demand for ransom and alleged transmission of the same. The payment of the ransom was ostensibly effected and thus withdrawals made through M-pesa transactions done through the till number for PW 10. I say ostensibly because none of the persons who allegedly sent the money gave evidence herein, the numbers that sent the money and to which number(s) it was sent were also not given even by the investigating officer. PW 10 gave the numbers which made withdrawals and those to which she sent by way of deposit at the instructions of the 3rd accused person, Evans Omondi Ngei (deceased) her landlord. Her evidence on the same was confirmed by PW 11.
46. Through PW 11 the prosecution presented raw data of the M-pesa transactions from Safaricom Plc, showing the numbers and names of who withdrew the money from PW 10, M-pesa till number but without trying to establish from whom it had come (the victim’s relatives) and then gone to the numbers (the would be kidnappers) which then withdrew the money through PW 10’s outlet and the link it had to the accused persons.
47. It was alleged that the phone numbers demanding and receiving the ransoms were from Malindi prison. When a search was conducted there, several phones and SIM cards were recovered from one of the cells. It was said that the phones and SIM cards were taken for forensic analysis.
48. There was no connection made to either of the 1st or 4th accused persons. The only name that was linked to the money sent out by PW 10 through her till number was for one Katana Yaa of phone number 0710 614444 who received KShs 50,000/=. Indeed, the 4th accused person is Katana Mangi Yaa and he was in Malindi prison where the investigators alleged that the phone calls for ransom had come. Yet, there was no evidence to show that that a SIM card registered under that name was recovered from Malindi prison and that he was the Katana Yaa in Malindi prison at the time. The investigating officer said that the phones and SIM cards recovered from Malindi prison were taken for forensic analysis. The results of the analyses were never tendered in evidence.
49. The defences by the accused persons that they were not connected to the phones remained unassailed by the prosecution.
50. Therefore, it becomes inevitable for this court to find that the electronic evidence of the M-pesa transactions and call data records failed to positively identify the accused persons by placing either of them at the scene of the crime either by physical presence or as being accomplices. If there was evidence that they had possession of or were connected to any of the numbers that received the money, that would have placed them at the scene of the crime as conspirators.
51. It is quite unfortunate that two of the prime suspects to whom the evidence was pointing, the 2nd and 3rd accused persons were not available for the prosecution of the case to the end.
52. As a trier of fact, I am entitled to draw a logical and positive inference from the circumstantial evidence but should not be on speculation, conjecture or guess work. In this case, there is no direct evidence to show that the 1st and 4th accused persons participated in the commission of the offence of murder in any way. The only circumstantial evidence available is that both of them were in prison at the time the offence was committed and the suspicion that the phone numbers that demanded for ransom came from Malindi prison. It was suspicion because, as submitted by learned counsel for the 1st accused person no call phone numbers and their respective call logs were produced as exhibits to show that indeed there were such calls made from Malindi prison and their eventual connection to the 1st and 4th accused person. Consequently, there is no evidence that irresistibly points to the guilt of the 1st and 4th accused persons as perpetrators of the offence herein.
53. From whichever angle one looks at it, the prosecution who bore the burden of proof has failed to discharge that duty in circumstances that establishes beyond a reasonable doubt or even on reasonable suspicion reached by the investigating officer based on call data extracts and as analyzed by PW 11 that the 1st and 4th accused persons participated in the murder of the victim.
54. The evidence tendered herein falls short of establishing the elements of the offence of murder contrary to Section 203 of the Penal Code. It is only when the prosecution evidence tendered sufficiently proves on the whole elements of unlawful death and malice aforethought under Section 206 of the Penal Code in the information that a case of murder be proved beyond a reasonable doubt.
55. I therefore find that the prosecution has failed to prove its case against either of the accused persons beyond a reasonable doubt. Consequently, I find the charge of murder contrary to Section 203 of the Penal Code not proved against either of the 1st or 4th accused persons and is hereby dismissed and the 1st and 4th accused persons are set at liberty unless otherwise lawfully held.
56. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 13th day of February 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The 1st and 4th accused in person present in court.
Mr. Ngiri for the Prosecution.
Wamotsa for the 1st accused person.
Odundo for the 2nd accused person.
Etropia - Court Assistant