THE INFORMATION
The accused person is faced with of the offence of murder contrary to section 203 as read with 204 of the Penal Code the particulars being that on the 17th day of February 2017 at DZIMANA village in VIGURUNGANI LOCATION, KINANGO SUB COUNTY IN KWALE COUNTY he MURDRED Kerem Lemule Nguso.
BACKGROUND
He pleaded not guilty to the offence and he was represented by MR Ajigo Advocate .
The state called 9 witnesses who interestingly were divided along tribal lines excepting those who were neither Masaia nor Durumas. The dispute leading to the fatal flare up revolved around conflicting land use between the pastoralists Masai and the Duruma farmers in DZIMANYA VIILAGE. It was said that the cows owned by the Maasais were destroying the crops grown by the Durumas.
THE EVIDENCE
PW1 was Mariam Ngephe Lodoo a sister to the late Kerem Lemule Nguso. Her evidence was that on 17/2/2017 the area Chief had sent the chairman one Chikiphe Mwanza (pw3) to call for a joint meeting between the Durumas and the Maasai’s to discuss security matters. The complaint was that the cattle belonging to the Maasai’s had destroyed the crops belonging to the Durumas. That her late brother used to live with her and he accompanied her to attend the meeting.
Along the way, they were accosted by Nyawa the accused person and Chengo as well as other people who joined the two later and surrounded them.
That the deceased was ordered to sit down ,which he did, and she was told to run away if she had the stamina but she would be shot with an arrow.
She ran and hid in the bushes but she could see what was going on from her hiding place. That she saw the accused person shoot the deceased with an arrow on the back of the left shoulder. That the brother ran off with the arrow stuck at his back and the group ran after him. That she was 8 meters away from the place where her brother was shot. That when the group ran after her brother she left her hiding place and called the police. That she met her other brother one Lazaro (pw2) who had also been shot with an arrow. They later met police vehicle which took them to Vigurungani sub-county hospital to the treatment.
. She had also been shot on the left an arrow and she was stitched.
That while in the hospital they got information that the younger brother Kerem had passed on.
That the police collected the body and a post mortem was conducted subsequently.
That she has known the accused person as her neighbour all her life and they had no differences.
PW2, Lazaro Malipo Ole Mule, testified that the area chief had called a meeting between the Maasais and the Durumas.
That he attended the meeting and he was with Micheal and Jeremiah. That they saw some Duruma people who were armed with Rungus , arrows, axes and pangas. That the Durumas went into the Chief’s office and when they came out they Durumas, surrounded them and he was cut on the head with a panga.
That he went to seek refuge in Pastor Edward’s church and when he sent word to Mariam that he had been injured, he learnt that Mariam had also been shot. He later got protection to go home and later on the police took him and Mariam to hospital.
Later they learnt that the deceased had passed on.
PW3 was Chikophe Mwanza Kondo the sub-chief Busa Sub-location in Vurungani location. He said that on 15/2/17 one Nyawa Mwangongo reported that 3 Masai men had taken cows to his farm and they had refused to drive the cows away ,upon request. That he called the Chief Chimera Nyawa for help. That in the evening he found one Masai man had been arrested and taken to the Chief’s office after he grazed his cows in the farm of NYAWA Mwangogo
The man was taken to Vigurungani police station but released.
That on 16/2/2017, Nyawa Mwongongo told him that the Masai who had been released by the police had gone back to his land with 5 other Masai men and told him to remove his wife and children from the farm. He called the Chief and said there was need to hold a meeting to resolve the issues between the Durumas and the Maasai’s
That on the morning of 17.2.17 he was told that one chikophe Mwaruwa who used to live in Nyawa’s homestead had been attacked by 6 Masai men with Rungu’s.
That the meeting started at 10.45 am with some Duruma men and there were no Masai present. That the some Duruma men went to look for the 6 Masai men. That the accused person was with them at the meeting. That he was the village Chairman for Dzminya “A”
He said that at 3.00 PM he heard that a Maasai man had been killed. He did not know if a Masai man had been killed. He was emphatic that the accused person went to the Chief’s officer at 9.45 Am and sat with him on the same bench to the end of the meeting up to 3.00 PM.
It however emerged that in his statement he had not recorded that the meeting went ahead on the 17.2.2019 and also did not mention that the accused was with him. The court also noted that from his demeanor, he was not telling the truth about the accused person being present at the Chief’s meeting of 17.2.2017( page 31 handwritten record)
PW4 was Dr. Gathendu Edwin. He performed the post mortem on the body of the deceased Kerem Lumune Nguso on 23.2.2017.
He noted a superficial skull laceration, penetrating arrow wound on the right shoulder with the arrow head in situ.
He removed the arrow head and gave to the police.
There was also another injury on the left arm caused by an arrow. No arrow, cloth applied.
There was mild hemorrhage on the brain beneath the part that had skull laceration.
He formed the opinion that the cause of death was head injury with secondary brain injury. He produced his report as PEXT 2
PW5 produced the government chemist analyst report in respect to the arrow head as PEXT 3 B and the EXHT memo as PEXT 3A. The report shows no poison was traced on the arrow head.
PW6 WAS Police Inspector Robert Mwithi who conducted the identification parade in respect to the accused person . The PARADE FORM IS PEXT 4 .
PW7 was Jeremiah Daudi Lemule . His evidence was that he was notified about the security meeting on this 17.4. 2017 and he set out to attend. He was accompanied by Musa, Isaka, and Martin who however was sent to take a cow and its new born calf back home.
That they met a group of people armed with pangas who asked them where they were going. That the accused person disembarked from his motor cycle holding a panga and a rungu and asked him if he was a member of the Ngomas family which he denied. The accused person appeared like he was about to cut them but the group told them to run to the meeting.
That the accused person later overtook them on his motorcycle as they were talking to one Katiku, and he (accused) went and cut the deceased on the head. That the deceased had also been cut shot on upper side of his back and he was frog matched from a kiosk. That the group started attacking them and they ran away. He later got to hear that lemule had passed on.
Pw8 was Moses Chimar Nyae. His evidence was that on 17/2/2017 he called people ,door to door, to attend the security meeting. That he went to the chief’s office at 9.00am to report that the Masais had assaulted a Duruma man called Dawa. He found the chief already knew about the incidence and the meeting started at 10.00 AM. Under cross examination he said he was with the accused persom from 9.30AM UP TO 5.00PM and they heard about kerem’s death at 4. 45 pm.
PW9 was PC James Mwongera the investigating officer. They received the report, recorded statements and on 26.2.2017 they arrested Nyawa Mlinzi, Nyawa Chengo Mwangale and Bena Nyawa. That an identification parade was conducted and Nyawe Mlinzi was identified by the sister to the deceased.
RULING
The court found that the accused person had a case to answer and he was placed on his defence.
DEFENCE CASE
He denied having committed the offence. He maintained that he was present at Chief’s office having arrived there at 9.30 am and he stayed up to 3.00PM . He called two witnesses being Kalimbo Omar Ngoya (DW2) and Nyae Kokoi Kadzena (DW3) who stated that they were with the deceased at the meeting.
THE LAW
Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law.
The accused person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased.
Section 203 of the Penal Code provides the elements of the offence as follows: -
“ 203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:
“For the offence of murder to be proved, there are three elements which t 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)
THE DEATH
The post mortem dated 23.2.2017 was produced by PW4. It shows the doctor opined that the cause of death was Head injury with Secondary brain injury. The doctor removed the arrow head (PET 1) which was still in situ and gave it to the police to analyze and confirm if it had any poison and this was ruled out as per the report. PET 3
What we can conclude from the above is that the deceased died. His body was properly identified by Mwenendo Maika and Lazaro Lemwana Nguso. PW1 and 2 also saw the body of their late brother at the mortuary.
THE CAUSE OF DEATH
The next aspect is whether the death was caused by the actions or omissions of the accused person.
In this case, we do not have any photographic , videos , cctv nor forensic evidence to show who inflicted the injuries on the deceased Kerem. We do however have eye witness accounts of how with the deceased when he was accosted. This was his sister ,PW1 and pw7 .
PW1 said it is the accused person and one other person who stopped them and it is the accused person who spoke to the deceased.
That he had told the deceased to sit down and also asked where the deceased was going and on being told about the meeting the accused person said would be the last meeting for the deceased to attend. PW1 also testified that she saw the accused person shoot the deceased with an arrow. That her late brother ran off with the arrow in situ and the group which had now grown ran after him.
The accused person denied accosting the deceased. He maintained he was at the meeting at the Chief’s office. He even relied on the evidence of PW3 and PW8 and his two witnesses who said they were together at the meeting.
As earlier pointed out the evidence was tainted along tribal lines and even the prosecution witnessed aligned them selves to their kin. One had to carefully sift the entre evidence to separate the chaff from the kin.
Fortunately, the task was not too difficult. The record speaks volumes. My sister The Honorable Lady Justice Njoki Mwangi recorded at page 31 of the hand written proceedings that “ court notes that the demeanor of the witness (PW3) indicates that he was not telling the truth about the accused person being at the meeting called by the chied on 17.2.2027.
This was preceded by his contradictory evidence especially when it was pointed out to him that he had not mentioned being with the accused person on that day in his statement. He had not even mentioned that the meeting was held. Infact in his statement he had said the deceased was attacked and killed on 17.2. 2017 at 10.00 am.
I also noted that PW3 was also extremely biased and untruthful even to the point of saying he did not get to know the deceased had died only to later change his mind. He was shown his statement in which he had indicated that the deceased was attacked and killed at 10.00 am. In court he said they were alerted at 3.00PM.
So clearly PW3 was dishonest and an incredible witness for both the state and the accused who wished to rely on his evidence.
PW1 testified only saw the accused person shoot the deceased once on the shoulder. This is the injury shown in the sketch prepared by the PW4.
PW1 said the group pursued the deceased and they were armed with Pangas and Rungus.
Pw8 picked up the evidence and said that he saw the deceased being cut on the head with a panga by the deceased.
The cause of death is said to be the head injury though the doctor conceded that blood loss from the other injuries could have contributed.
There are other witnesses who had recorded statements but were not traced. One must wonder what happened to the Governments long hands that it could misplace some of its citizens?
That aside, one can safely conclude that the accused person is the one who inflicted the injuries that caused the death of Kerem. He was present and he shot at and injured the deceased and injured him.
We now move to the issue of intention.
- On the element of malice aforethought, the prosecution must prove beyond reasonable doubt that the accused intended to cause the death of the deceased. Malice aforethought is defined and well explained under section 206 of the Penal Code as follows:-
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c)an intent to commit a felony;
(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”This being a murder charge, the prosecution had the onus to prove mens rea and actus reus. The actus reus has been established. The mens rea of murder is traditionally called malice aforethought and it connotes existence of culpability or moral blameworthiness on the part of the accused person.
The Court of Appeal in Bonaya Tutu Ipu & Another Vs Republic [2015] eKLR stated as follows on the prove of malice aforethought; - “It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances.
Further in the persuasive decision of Chesakit Vs Uganda, CR. app. no. 95 OF 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.
Earlier in Rex v Tubere s/o Ochen [1945] 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue: It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick.
The motive in this case was the grazing rights dispute and according to PW3 some assault on an elderly man residing at the Nyawa’s homestead.
This is one of those inter community conflicts over resources that was badly managed.
Certain people decided to take the law into the own hands and it appears the local leader’s hands were not clean as these same village headmen came to lie in court. Pw7 testified how he confronted pw3 for luring them to the meeting point to be attacked. Pw2 also stated they were attacked within the chiefs compound in the presence of the chief and several people sustained injuries. It appears it was a fully blown tribal clash, yet the defence would want us to believe that the calmly sat down and had a peaceful meeting the entire day .
The truth however has a way of turning up. When one looks at the evidence of all those who allege that there was am meeting attended by the accused person, we note that each of them gave a different time line.
Pw3 said he went for the meeting at 9.30 am and the accused person joined him at 9 .45 am. He gave two different tomes for when the meeting started . At page 28, in his evidence in chief he said the meeting started at 10.45am .At page 29 overleaf he says the meeting started at 11.30 Am and ended at 3.00pm.
PW 8 says the meeting started at 10.00 am and he was with the accused person from 9.30 am. to 5.00pm. That the meeting ended around 2.00pm and they heard that a maasai young man had died at 4.45pm.
The accused person on his part said he attended the meeting from 8.30 AM and the meeting started at 10.00 am and ended at 12.45 pm to 1.pm.
Dw1 said he attended the meeting from 10.00am to 12.45 pm and the accused could not have killed the deceased at 12.00 noon.
Dw2 also said that the meeting started at 10.00 am and it ended at 12.45 pm.
Clearly one does not need to be a rocket scientist to see that this conflicting evidence was rehearsed.
We do not have any physical or forensic evidence to connect the accused person to the fatal blow on the head that caused the death of the deceased. The offence took place in the interior where we do not have CCTV INSTALED.
We do however have an witness who testified that the accused was the first one to strike the deceased KEREM with the arrow and he then joined the group that chased after HIM when had taken off with the arrow still in situ.
A short while later the deceased was found dead with the arrow still in situ and with some other injuries including what the doctor says was the cause of death.
How do courts proceed with such evidence? If we were to go by pw1s evidence alone we would go back to the doctrine of common intention. He was part of the murderous mob that set upon the deceased with arrows and pangas. The mere act of shooting at someone with an arrow through the back , then chasing after him shows one intended to kill him or cause grievous harm.
Pw1 also testified that when the deceased Kerem told the accused person that he was going to attend the meeting the accused told him the ‘ His meeting was going to be at that place and it would be his last meeting. The accused then shot at the deceased whom he had made to sit down.
Clearly those words show that the accused person intended to murder the deceased Kerem.
Apart from the evidence of pw1 we also had PW7 who said he saw the accused person cut the deceased on the head and also shoot at him. That appeared to be contradictory since pw7 was not with pw8. The post mortem report however shows that the deceased ha two seperate injuries caused by arrows and therefore it was possible pw7 witnesed a different shooting. I had some misgivings about the evidence of pw7 but
even if we were to disregard it pw1 ‘s evidence was sufficient.
DETERMINATION
A case is not proved based on the volume but the quality of the evidence. I find that both pw1 and pw2 were honest and credible witnesses who did not exaggerate their evidence.
Accordingly I find that the prosecution proved all the elements of the offence and the accused person is convicted of the offence of murder contrary to section 203 as read with 204 of the penal code .
Dated signed and delivered in open court this 30th day of January 2025.
Lady Justice Wendy Kagendo
Present
Mr Ngiri for the state
Mr Ajilo for the defence
Bebora court Assistant