1. The accused person, Athuman Kateria Kalinga, was arraigned in Court on 18th November, 2016 for the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on the night of 6th and 7th November, 2016, at Sisera Junior Academy, Taru Location in Kinango Sub-County, within Kwale County, jointly with others not before Court murdered John Omuse.
2. After pre-trial proceedings, the charge was read out to the accused person on 15th February, 2017. He pleaded not guilty to the charge. The case commenced hearing on 7th February, 2018 before Judge Ongeri, who heard the evidence of PW1 to PW4 before I took over the hearing of the case under the provisions of Section 201(2) of the Criminal Procedure Code.
3. PW1 was Winnie Gaudai Obonyo, a Carpenter who stays at Taru. She indicated that the deceased John Omuse was her husband, whom she had lived with for one year before he died. She stated that on 6th November, 2016 which was on a Sunday, she made food and after they had eaten, her husband left home at 8.00 p.m., for work at New Sisera Academy where he used to work as a Watchman, but he never returned on 7th November, 2016, yet he used to return home at 5.00 a.m., in the morning.
4. PW1 testified that as she was going to work, she heard people saying that someone had died at Sisera Academy. She called her husband but her calls were not going through. She then decided to go to Sisera Academy where she found many people. She then saw that her husband had been killed and his body was close to a wall. She stated that he had been cut on the left side of his body on the shoulder. She recorded a statement and later heard that someone had been arrested. She however did not know the accused person.
5. PW2 was Riziki Nyamawe, a resident of Taru. She stated that she was the deceased’s 3rd wife, and that she used to work at Sisera Academy as a cleaner during the day, whereas her husband used to work there as a Watchman.
6. It was PW2’s evidence that on 7th November, 2016, while on her way to the said School, she found children running away and they informed her that someone had been killed at the School. She saw the body of that person inside the compound, outside the Staffroom. She further stated that the body was lying down and she saw that the head had been cut off. She screamed and went to tell the owner of school of what she had seen. She testified that they found the head near the road in a culvert, and after that she was taken to her house. She stated that when she first saw the body, the head was missing.
7. On being cross-examined, PW1 stated that the body was on a mattress near the staffroom. She stated that PW1 was the 4th wife of the deceased.
8. PW3 was Abdalla Lumba Kamanza, from Taru, Kizangani, and an Elder of Nyuma Kumi. He stated that on 11th November, 2016 at 8.00 a.m., Kamanza Ketere (sic) went to his house and told him to accompany him to Taru Police Station. He further stated that the accused person wanted him and the Village Elder to accompany him (Kamanza) to the said Police Station. PW3 stated that he asked what the problem was, and Kamanza told him that the accused person was being looked for.
9. PW3 indicated that he went to the Police Station accompanied by Paula. On reaching there, he informed the OCS that the accused person had told them to escort him to the Police Station. That the OCS told them that they had done a good job and said that he would remain with the accused person. They were however not informed the reason as to why he was wanted by the Police. They left him at the Police Station.
10. PW4 was Yusuf Kuni Gateria (sic) a resident of Taru. He stated that between May and June 2016, he was working as a Watchman at Sisera (Academy), where he would work until 6.00 p.m. He stated that when leaving work, he would hand over to Athuman Kateria Kalinga (accused person). PW4 testified that on a date he could not recall during the said months, a lady went to the gate of the factory in the morning and asked for the accused person. PW4 told her that the accused person had passed by with the flour. PW4 further testified that the lady also asked for Kalinga’s number (telephone number) but PW4 did not know it.
11. PW4 stated that he was with Abdalla (PW9) at that time and he said that he had the accused person’s brother’s cellphone number. PW9 then called the accused person’s elder brother who said that he would inform the accused person when he got home, they in turn informed the lady.
12. PW4 further stated that the lady asked to be shown the route that the accused person had passed. He showed her and she followed the said route. PW4 testified that after the lady left, the accused person returned alone but the lady did not return. PW4 stated that the accused person was in his room the whole day and he handed over the work to him that night. PW4 stated that he did not know why the lady was looking for the accused person, who is his nephew.
13. PW4 testified that he knows that the accused person was arrested by the Police but he did not know the reason for his arrest until 16th November, 2016 when he went to write a statement and they were asked if the lady had gone back looking for the accused person. PW4 indicated that he did not know the name of the lady, and that was the first time for him to see her.
14. PW5 was Dr. Stephen Katana, who was working, at Voi Moi County Referral Hospital. It was his evidence that on 16th November, 2016 while at work, he conducted a postmortem examination on the body of John Omuse at 10.15 a.m. It was the Doctor’s evidence that on examination of the said body, he found multiple deep cuts on the deceased’s head caused by a sharp object, with the first cut which was about the 5 cm being on the frontal region, not penetrating to the skull. The Doctor testified that on the left parietal region, the deceased had a penetrating injury to the skull about 20 cm. long. He also had a deep cut which had cut off the left ear. The Doctor added that the said injury was on the left temporal region and ran to the Maxilla region (jaw bone). He further testified that the deceased had a deep cut on the left upper neck cutting the major vessels, that is the carotid artery and the jugular vein, with the said cut being 7 cm long. The Doctor explained that the jugular vein supplies blood to the head, while the carotid vein supplies blood to the heart from the head. It was his evidence that there was complete decapitation of the deceased’s head, meaning that the head had been severed from the body.
15. On the deceased’s body the Doctor noted that the left upper arm had a deep cut of the forearm which had cut the radius and ulna bones, and there was a small cut on the right forearm region. The Doctor formed the opinion that the cause of death was due to cardio pulmonary arrest with severe injuries secondary to decapitation of the head. He produced the Postmortem Report in evidence.
16. On being cross-examined, the Doctor asserted that the extent of the injuries was such that the deceased’s assailant intended to cause the death of the deceased.
17. PW6 was Philip Thoya Iha from Taru in Kwale County. He was the Assistant Chief of Dapharo Sub-location, a position he had worked in for 3 years. He stated that he did not know the accused person but had known the deceased John Omuse for 3 years as a Nyumba Kumi Officer in Maragoni in Taru.
18. PW6 testified that on 7th November, 2016 at 6.39 a.m., he received a call from the Chief of Taru location Raphael Mwachilungu, who informed him that a watchman of Sisera Academy had been killed and he should go to investigate.
19. PW6 further testified that he went to the scene at Sisera Academy, where he found members of the public. He stated that he saw the body of a man who had been decapitated, lying on the floor of an office. He also stated that the head of the person could not be found at the scene and the body was covered with a clothing material. On uncovering the body, PW6 saw that the body of the man was clothed in a light blue T-shirt. PW6 also saw foot prints on the floor that had been made by sports shoes. Beside the body, he saw a torch and a mobile phone.
20. PW6 testified that after seeing the light green T-shirt, he identified the body as that of John Omuse who used to wear the said T-shirt often. He also knew the said person as a Watchman at Sisera Academy. PW6 testified that he followed the footsteps which left a trail of blood but they ended at a fish pond. He stated that he called the Chief to find out if he had reported to the Police. He also called the OCS of Taru Police Station who said that he was on his way.
21. It was the evidence of PW6 that when the Police reached the scene, they followed the footsteps and trail of blood stains up to the Mombasa – Nairobi Highway, to a place where there was a bridge where they saw bloodstains. PW6 testified that a young man was asked to check under the bridge and he removed a human head which was handed over to the OCS, but PW6 did not look at it. He indicated that the distance where it was found was 250 metres from Sisera Academy. He stated that on the other side, opposite where the human head was recovered, a blood-stained white bucket was recovered, and it was taken by the Police. PW6 identified various photographs that were taken at the scene.
22. George Ogunda, an Assistant Principal Government Analyst testified as PW7. His evidence was that on 17th November, 2016, several exhibits were forwarded to the Government Chemist Mombasa vide an Exhibit Memo Form. That the said exhibits were taken there by Corporal Adan Grimpe of Taru Police Station. He testified that the exhibits comprised a blood-stained bucket marked A1, a pair of blue jeans trousers marked B1, a finger nail of the deceased marked C1 and a buccal swab of accused person marked D1.
23. He stated that the request made was to establish if there was any relationship in the said exhibits. He testified that the bucket and the pair of blue jeans trousers tested positive for human blood, but exhibit C1 - a finger nail of the deceased did not generate a positive DNA result.
24. It was the evidence of PW7 that the pair of blue jeans trousers and the bucket generated different male DNA profiles. He stated that the buccal swab of the accused person did not match any DNA profile generated from exhibits A1 and B2.
25. PW7 testified that the preservative used to preserve the finger nail was formaldehyde which degrades DNA and it was therefore not possible to generate DNA from the said finger nail. PW7 produced the Exhibit Memo Form and the Government Chemist’s Report as exhibits.
26. No. 93429 PC Philemon Kiprono Korir testified as PW8. He stated that in the year 2016, he was working with the DCI Taru as an investigator, and that on 13th November, 2016 at 7.00 a.m., he was with the OCS Taru Police Station, together with Cpl Charles Mainya and CPL Adan Grimpe, when the OCS told them that there was a murder suspect in the cells whom they should accompany to his house. PW8 testified that they removed the accused person from the cells and they took him to his house at Nyali Sisal Plantation, where they did a search. He stated that they recovered a long pair of jeans which had red stains that looked like blood, and they took the said jeans and went back to the Police Station.
27. He stated that on 15th November, 2016 he was accompanied by two (2) children of the deceased to Voi Moi Referral Hospital and a postmortem was done on the body of the deceased John Omuse, after his children identified it. PW8 stated that the Doctor removed a nail (finger nail) from the deceased for further investigations after he had established the cause of death. The Doctor also filled in the Postmortem Report.
28. It was PW8’s evidence that on 17th November, 2016, the accused person was escorted to the Government Chemist, Mombasa together with the bucket, the long pair of jeans trousers, and the finger nail from the deceased, and the exhibits were handed over to the said office. PW8 stated that a buccal swab was taken from the accused person.
29. PW9 was Abdallah Omar Mwachiramba, resident of Taru, Dzangani village. He stated that on a day he could not recall in September 2016, his wife called him and told him not to follow a certain route as there were Police Officers who were shooting in their homestead. He stated that he followed a certain route that goes through the bush, where he found his family members and they spent the night in the bush, where they took shelter after running away from their home. He testified that in the morning they went home and on reaching there, they were told that the Police were chasing the accused person, who was his cousin.
30. He further testified that on a date he could not recall, he was at the gate of Agro Processers, with Guni Kateria, another cousin of his, who was a Security Guard at the said company, whom he had gone to talk to. He recounted that when he was there, a woman went to the gate and asked for the accused person. That Guni Kateria (PW4) asked the woman if she would like to talk to the accused person and he informed her that he had no air time. PW9 testified that PW4 asked him to call the accused person’s brother called Chuphi, as the accused person did not have a cellphone. PW9 stated that PW4 spoke to Chuphi and asked him if he was with the accused person, but he said he was not there as he had gone to collect flour at the company. In turn, PW4 told Chuphi to inform the accused person that there was a visitor who was looking for him. PW9 stated that the woman who was looking for the accused person left and followed a route leading to the bush.
31. PW9 testified that after about an hour, the accused person emerged from the route that the woman had taken. PW9 stated that they had a general talk but he did not inform the accused person about the woman who had been looking for him, as he did not know if they had met or not, as they had used the same route.
32. In cross-examination, PW9 stated that the accused person was a Watchman at Agro Processors and their home was 100 metres from the said company.
33. In re-examination, PW9 stated that he could not recall the appearance of the woman who had gone to the gate of Agro Processors.
34. PW10 was No. 233682 was Assistant Superintendent of Police Henry Wesonga. He stated that in November 2016, he was the OCS Taru Police Station. His evidence was that on 7th November, 2016 at 7.00 a.m., he received a report from the Assistant Chief of Taru Sub-location who told him that someone had been killed at Sisera Academy. PW10 stated that accompanied by other Police Officers, they went to the said Academy where they found the deceased’s body soaked in blood. That the said body was lying between some classrooms where there was an open ground. It was the evidence of PW10 that the deceased’s head had been severed from the body by being cut off, and they started looking for the deceased’s head, after removing his torso from the scene.
35. PW10 testified that as they were leaving Sisera Academy, they saw a trail of blood from the place where the torso had been lying towards the Voi-Nairobi Highway which was a distance of 1km from the said Academy. It was PW10’s evidence that the trail of blood led them to a culvert where they found a white bucket that had blood on outer and inner part of it. He stated that in the culvert, they found the deceased’s head which had blood oozing from it. He further stated that they took the torso and the human head they had recovered to the mortuary at Moi Hospital, Voi.
36. PW10 testified that in the morning of 11th November, 2016, members of the public and the Village Elder from Nyali Village went to Taru Police Station accompanied by the accused person after the Police had passed on information that they were looking for him as a suspect. PW10 stated that they arrested the accused person and put him in the cells for him to assist them with investigations of the death of the deceased.
37. It was the evidence of PW10 that on 13th November, 2016 they removed the accused person from the cells and he led them to his house in Nyali village, which they searched. PW10 testified that in the said house, they recovered a pair of blue jeans trousers which had blood stains, which they took with them for further investigations. He stated that there was a cellphone number written on the wall of the accused person’s house using charcoal, and that the accused person told them that he had been given the cellphone number by the deceased’s child, but he did not disclose the name of the said child. On PW10 refreshing his memory from his statement, he stated that the cellphone number was 0716341194. That on being questioned about when he had been given the cellphone number, the accused person could not recall but he told the Police that he had been given the said number by the deceased’s child so that he could kill the deceased. Further, the accused person informed them that he had worked with the deceased at Nyali Sisal Company Limited (Agro Processors) at some point in time.
38. PW10 stated that the accused person told them that the deceased’s son wanted his father (deceased) killed due to family issues, but the accused person did not elaborate further.
39. PW10 testified that on 14th November, 2016, the accused person was taken to his office by the Police Officer who was at the Report Office for the purpose of recording a statement under inquiry from him. PW10 stated that he had already called the accused person’s brother by the name Jumaa Chuphi Kateria. PW10’s evidence was that he identified himself to the accused person and his brother and told them that he was investigating a case of murder contrary to Section 203 as read with Section 204 of the Penal Code, as he had reasons that made him believe that the accused person was involved in the murder or had information that could assist them in the investigation, in that on the night of 10th November, 2016 at an unknown time at Sisera Academy in Taru location in Kinango Sub-County in Kwale County, he and others murdered John Omuse. PW10 testified that he asked the accused person if he had anything to say but cautioned him that he was not obliged to say anything unless he wished to do so, and whatever he said would be taken down in writing and used in evidence. PW10 stated that the accused person signed the caution first and then he signed it. PW10’s evidence was that the accused person gave him information, which he put down in writing.
40. At that point, Ms Odhiang, learned Counsel for the accused person opposed to PW10 adducing evidence as to the contents of the statement under inquiry, on the grounds that the accused person did not record any statement with PW10 or give any information to the said Police Officer. Ms Odhiang contended that the accused person did not know the deceased or the alleged son of the deceased, and that no one paid him money to kill the deceased. She prayed for a Trial-within-a-Trial to be held.
41. On his part, Mr. Muthomi, Prosecution Counsel, contended that the statement under inquiry was voluntarily given and the accused person was not coerced or promised anything so as to record the said statement. Mr. Muthomi stated that the accused person appended his thumbprint on each and every page of the said statement, which was recorded in the presence of his brother Jumaa Chuphi Kateria, who signed to signify that he was a witness.
42. After hearing both contestations on the admission or otherwise of the statement under inquiry, I ordered for a Trial-within-a-Trial to be held and a hearing date was given for that purpose. On the day scheduled for the said trial, being the 14th July, 2021, Mr. Muthomi however informed me that he had considered the contents of the statement under inquiry which was recorded by PW10, and he had realized that the accused person did not confess to having committed the offence. Mr. Muthomi also informed me that there was no need for a Trial-within-a-Trial. As such, the issue of the statement under inquiry was abandoned.
43. On being cross-examined, PW10 stated that there was a Police Officer who was to make a follow up on the cellphone number written on the wall of the accused person’s house. PW10 stated that they did not find any other suspect who could have committed the offence.
44. PW11 was No.67043 Corporal James Mainya attached to CID Changamwe, Mombasa. He indicated that in the year 2016, he was working at Taru CID office. He testified that on 7th November, 2016 at 7.00 a.m., the Assistant Chief of Taru location by the name Philip Thoya reported that someone had been killed at Sisera Academy. PW11 accompanied the OCS Taru Police Station and other Police Officers to Sisera Academy, and on arrival, they found the deceased’s body. PW11 stated that he saw a lot of blood at the scene and that many people were gathered there.
45. It was the evidence of PW11 that they followed a trail of blood from where the deceased’s torso lay, and they went up to the Nairobi-Mombasa Highway where a white bucket which had a lot of blood was recovered. He stated that with members of the public, they looked for the deceased’s head, which they found in a culvert, from where it was removed.
46. PW11 stated that he took photographs of the deceased’s torso and the head, and that the said body parts were then loaded onto the police vehicle and taken to Voi Referral Hospital mortuary.
47. PW11 testified that they commenced investigations and on 8th November, 2016, they found that there was a suspect in Kisangani Village. That on 9th November, 2016, he with the OCS Taru Police Station and other Police Officers went to Kisangani Village in Nyali Estate, and on reaching the barrier of Nyali Estate, they saw a person running away. PW11 stated that on making inquiries on whether the accused person was working at the said Estate, they were told that he was the one who had run away. They then returned to the Police Station.
48. According to PW11, on 11th November, 2016 while at the Police Station, two Village Elders from Kisangani village went to the office of the OCS accompanied by the accused person, who said that he had gone to the Police Station because he was being looked for by the Police. PW11 stated that they arrested the accused person and put him in the cells. That on interrogating him, he informed PW11 that the deceased’s wife and his son had gone to see him, and they had asked him to assist in killing the deceased.
49. PW11 stated that he informed the OCS Taru Police Station what the accused person had told him and PW11 took the accused person to the said OCS who recorded a statement under inquiry.
50. PW11 testified that on 13th November, 2016, he accompanied the OCS Taru Police Station and other Police Officers and the accused person to the accused person’s house, where they did a search and recovered a blood-stained pair of blue jeans, which they look to Taru Police Station.
51. It was the evidence of PW11 that on 2nd December, 2016, the deceased’s wife by the name Selmina Adoyo went to the Police Station and an identification parade was conducted by Inspector Sebastian Maloba for the accused person to identify the person who approached him to kill the deceased, but the accused person was not able to identify the said person.
52. PW11 stated that Corporal Aden prepared an Exhibit Memo Form and took the pair of blood-stained jeans trousers and other exhibits to the Government Chemist.
53. PW11 further stated that after taking photographs with his phone, he went to see the Scenes of Crime Officer in Mombasa, who processed the photographs and sent them to him at Taru Police Station. PW11 produced 11 photographs that he took of the deceased’s head, torso and the scene where the body lay.
54. PW11 concluded his evidence by saying that he was the Investigating Officer in this case. He also produced the pair of blue jeans trousers that was recovered in the accused person’s house and the white bucket that had been recovered in the culvert where the deceased’s head was also recovered. He stated that he requested Corporal Aden to forward exhibits to the Government Chemist for analysis, which included the pair of blue jeans trousers, the white bucket, the deceased’s fingernail and the accused person’s buccal swab.
55. In cross-examination, PW11 stated that Selmina Adoyo was the deceased’s 1st wife and that the accused person was not able to identify her in an identification parade. PW11 said that he did not know why the accused person committed the offence and he did not know if he and the deceased knew each other. PW11 however expressed the belief that the accused person committed the offence as he recorded a statement under inquiry at the Police Station. PW11 could not recall the name of the deceased’s son, who was allegedly seen with Selmina Adoyo.
56. The accused person gave a sworn defence and stated that he was a resident of Vutsangani in Taru location and that he was working as a Security Guard at Agro Nyali Estate. He said that after the night of 6th and 7th November, 2016, he reported to work at 6.00 a.m., and left at 6.00 p.m. He stated that when at work at 6.00 a.m., he and his nephew received news from the workers of a Chinese company which was working at Agro Nyali Estate that someone had been killed at a school in Sisera.
57. The accused person denied knowing the deceased John Omuse. He stated that on 7th November, 2016, the Police went to his place of work and asked for Hamisi Katana Kalinga, but there was no one by that name, although there was Athuman Kateria Kalinga (himself). He stated that they were three of them at the gate when the Police went there, and that two of the Policemen went to a house near the gate and they told him to accompany them to the house of Kamanza Kateria which was 199 feet away.
58. The accused person stated that the OCS Taru Police Station gave orders for the Police to shoot and the occupants of the houses started running away on hearing gun shots. That they continued running after the 2nd gunshot, and that a child was hit in the chest by the 3rd gunshot. The accused person stated that they entered the homestead and found Kamanza Kateria, whom the Police hit, as they asked for Hamisi Katana Kalinga but Kamanza told them that there was no one in that homestead by that name.
59. In his defence, the accused person said that on 8th November, 2016, the Police went to the gate where he was working and they told him to go to the Police Station with the Village Chairman and the Village Elder. That on arrival there, he was interrogated and asked if he knew about the death of John Omuse. He denied having been approached by the deceased’s wife and son, so as to kill the deceased. He also denied that he was paid by them to kill the deceased.
60. The accused person stated that on the night of 6th and 7th November, 2016, he was at work with Kamanza Kateria, who was later arrested and taken to Shimo-la-Tewa and released on bond. He denied having killed the deceased.
61. On being cross-examined by the prosecution, the accused person stated that he used to be a night duty Security Guard but at times he would work during the day when asked to do so. He stated that during the day, the gate was manned by one Security Guard and at night, there used to be three Security Guards and he was permanent at the said gate. He stated that Kamanza was a fellow Security Guard, and that on 7th November, 2016, he was at work with Kamanza Kateria, and that Jogan Jemo was on duty during the day. He further stated that they used to sign a Register which was kept by their Supervisor by the name of Omolo, who would keep the record of their attendance at work. That on 6th November, 2016, he went to work at 6.00 p.m. He indicated that he used to live in a company house at his work place, but his child used to live at their homestead near the gate.
62. In re-examination, the accused person reiterated that he was at work on the night of 6th and 7th November, 2016.
63. In final submissions filed on 25th May 2023, by Ms Nyawinda, Principal Prosecution Counsel for the DPP, she summarized the evidence adduced by prosecution witnesses. She also gave a summary of the defence case. She stated that this being a case wherein the accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, the prosecution must establish three elements namely -
(i) Proof of death and the cause of death;
(ii) Proof that the death was due to an unlawful act or omission, and that the unlawful act or omission was on the part of the suspect;
(iii) That the unlawful act was with malice aforethought.
64. Ms Nyawinda submitted that the death of the deceased was not in dispute as the Postmortem Report confirmed that the deceased died on 6th November, 2016, and the cause of death as per the Postmortem Report was due to cardiopulmonary arrest due to severe injuries secondary to decapitation of the head, which is not a natural cause. She stated that the prosecution had established that the deceased died and that his death was unlawful.
65. She further submitted that although there is no evidence linking the accused person to the deceased’s murder, the prosecution had brought forth circumstantial evidence linking the accused person to the deceased’s murder by the fact that they were both working as Watchmen with the accused person working at Nyali Estate and the deceased at Sisera Academy. Counsel stated that another fact which was not contested was that on the night of 6th and 7th November, 2016, the deceased was at work but the accused person did not sufficiently explain where he was that night. She submitted that another fact that incriminated the accused person is that when the Police visited Nyali Estate, he ran away and he was forcefully taken to the Police Station by the Village Elder and Village Chairman on 11th November, 2016, after there was a shooting at his home when the Police went there looking for him.
66. Counsel submitted that another incriminating factor is that when the Police went to the accused person’s home, they discovered a blood stained jeans trouser, although on being examined, it did not match the deceased’s DNA, but the accused person did not explain the blood stains on the said trouser.
67. It was submitted by Ms Nyawinda that another incriminating fact is that the accused person had the deceased’s cellphone number written on the wall of his house, a fact that he did not deny.
68. She stated that when the accused person was interrogated by PW10 and PW11, he admitted to have been sent by a lady, whom he could not identify, to kill the deceased, although he did not record a confession
69. Ms Nyawinda contended that according to PW11, his investigations did not lead him to any other person other than the accused person. She submitted that from the foregoing circumstantial evidence an inference can be drawn connecting the accused person to the deceased’s murder. She relied on the case of Ahamed Abolfathi Mohammed & another v Republic [2018] eKLR, on what constitutes circumstantial evidence. She submitted that in this case, the circumstances pointing to the deceased’s murder only point to the accused person and no other, and that it establishes that the accused person murdered the deceased.
70. Mr Nyawinda cited the provisions of Section 206 of the Penal Code to demonstrate that the accused person had malice aforethought when he committed the unlawful death of the deceased. She stated that the elements that constitute malice aforethought are the nature of the weapons used, the nature of injuries sustained the conduct before, during and after the incident and the manner in which the weapon was used.
71. Ms Nyawinda asserted that the prosecution proved through witnesses that the deceased was cold bloodedly murdered by having his head severed from his body, and his head was dumped almost a kilometre from the scene of murder. It was submitted that from the nature of injuries sustained and the type of weapon likely to have been used, the prosecution had proved that the accused person had malice aforethought when he caused the death of the deceased.
72. She prayed for the accused person to be found guilty of murder contrary to Section 203 as read with 204 of the Penal Code as charged.
73. Ms Odhiang, learned Counsel for the accused person filed written submissions on 29th June, 2023. She stated that the question to be determined by this Court is whether there is sufficient evidence to prove that the accused person unlawfully caused the death of the deceased as provided for under the provisions of Section 203 as read with Section 204 of the Penal Code. Counsel contended that no sufficient evidence was adduced to prove that the accused person committed the offence of murder as alleged by the prosecution. She stated that the prosecution had a duty to prove its case beyond reasonable doubt, and that any doubt cast on the prosecution’s case ought to benefit the accused person and result in an acquittal. She contended that the evidence of PW1, PW2, PW3, PW4 and PW5 did not link the accused person to the death of John Omuse, as no eye witnesses saw the offence being committed. She asserted that there was no circumstantial evidence on record.
74. Counsel submitted that the evidence of PW7, the Government Chemist was not conclusive enough to link the accused person to the offence of murder. She stated that PW7 produced Exhibit 4B which confirms that there was no relation to D1, and the buccal swab of the accused to exhibits A1 and B1, respectively. Ms. Odhiang further stated that the blue jeans recovered by PW8 after being subjected to DNA analysis failed to link the accused person to the offence. She stated that the findings of PW7 confirm the innocence of the accused person.
75. Ms Odhiang wondered why Selmena Adoyo, the deceased’s wife was not arrested for allegedly paying the accused person to murder the deceased. She submitted that the evidence of PW4, PW9, PW10 and PW11 attempted to link the accused person to the murder with the theory of said woman, who even participated in an identification parade. Counsel contended that there was no evidence of payment to the accused person, and that PW10 was unable to identify the woman and her son. Further, that no identification parade was conducted for PW9 and PW4 to identify the woman alleged to be the deceased’s wife.
76. Counsel contended that there was no evidence to prove motive on the part of the accused person. She submitted that the defence adduced the accused person withstood the test of cross-examination. She prayed for the Court to dismiss the charges against the accused person and acquit him accordingly.
DETERMINATION.
77. In order to determine if the accused person is guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, it is imperative to satisfy myself that the prerequisites of Section 206 of the Penal Code have been met. Section 206 of the Penal Code provides 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 escape from custody of any person who has committed or attempted to commit a felony.
78. From the above provisions, it is necessary to establish –
(i) If the death of the deceased arose from an unlawful act or omission;
(ii) If the accused person is the one who occasioned the unlawful act or omission that led to the death of the deceased;
(iii) If the answer to (ii) above is in the affirmative, whether the accused person had malice aforethought when he committed the offence.
If the death of the deceased arose from an unlawful act or omission.
79. The deceased was working as a Watchman at Sisera Academy. Winnie Guadasi Obonyo (PW1), was his 4th wife. On 6th November, 2016, which was on a Sunday, she was at home with the deceased. She cooked, they ate and thereafter her husband left at 8.00 p.m., for work at Sisera Academy, but never returned home on 7th November, 2016, yet his usual arrival time at home from work used to be 5.00 a.m., in the morning.
80. As PW1 was going to work on the morning of 7th November, 2016, she heard people saying that someone had died at Sisera Academy. She called the deceased but her call did not go through. She went to Sisera Academy and saw that her husband had been killed and his body was lying near a wall. She also saw that he had been cut on the left side of his body at his shoulder.
81. The same morning, Riziki Nyamawi (PW2) who was the deceased’s 3rd wife, was going to work at Sisera Academy where she used to work as a cleaner. On reaching there, she found children running away and they told her that someone had been killed at the School. She saw the body inside the compound outside the staff room. She also saw that the head had been cut off. She went to inform the owner of the School. She stated that they found the deceased’s head near the road in a culvert.
82. The same morning at 6.39 a.m., the Sub-Chief of Dupharo Sub-location (PW6), received a call from the Chief of Taru location, who informed him that a Watchman of Sisera Academy had been killed and that he should go to investigate. According to PW6, on arrival at the Academy, he saw the body of a man lying on the floor of an office. He also saw that the man’s head had been decapitated. On uncovering the body, he identified it as that of John Omuse, from the T-shirt he had worn.
83. PW6 followed footsteps which left a trail of blood but they ended at a fishpond. When the Police reached the scene, they followed the footsteps up to a bridge along the Mombasa – Nairobi Highway as there were bloodstains in that area. A young man was asked to check under the bridge and he removed a human head from a culvert. They also recovered a white blood-stained plastic bucket under the said bridge. The Police took away the body, the human head and blood-stained plastic bucket.
84. The evidence of PW6 was corroborated by that of PW10 and PW11 who were his fellow Police Officers who visited the scene and saw the deceased’s body (torso) and the head which had been severed off, which was recovered in a culvert under the said bridge.
85. Dr. Katana who conducted the postmortem examination on the deceased’s body on 16th November, 2016, concluded that the cause of death was due to cardiopulmonary arrest due to severe injuries, secondary to decapitation of the head. He produced the Postmortem Report in evidence.
86. It is clear to me from the evidence adduced by the witnesses who went to Sisera Academy and Dr. Katana, PW5, that the deceased’s head had been completely severed from his torso. The head also had multiple deep cut wounds and the torso also had injuries as described in the Postmortem Report.
87. Based on the said evidence it is conclusive that the deceased died as a result of an unlawful act in the hands of another person or persons. The death of the deceased was therefore unlawful.
If the accused person is the one who occasioned the unlawful act or omission that led to the death of the deceased.
88. As was correctly submitted by both Ms Nyawinda for the prosecution and Ms Odhiang for the accused person, there is no direct evidence linking the accused person to the death of the deceased.
89. I therefore have to analyze the circumstantial evidence on record and see if it meets the threshold set out in the case of Sawe vs Republic [2003] KLR 364, wherein the Court of Appeal held as follows:
1. In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.
2. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.
3. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.
92. In Abanga alias Onyango v Republic CA CR. A NO. 32 of 1990 (UR), cited by Ms. Odhiang for the accused person, the Court of Appeal set out the principles which should be applied in order to test circumstantial evidence in the following words-
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.
90. The deceased was a polygamous man. He had married 4 wives. PW1 was his 4th wife and she had been married for a period of one year before the deceased met his death. PW2 was his 3rd wife. On the day he met his death, the deceased had spent the day with PW1 and he left for work on 6th November, 2016 at 8.00 p.m. He was expected to return home on 7th November, 2016 at 5.00 a.m., but he did not. PW1 found his body at Sisera Academy. PW2 confirmed that she too found her husband’s (deceased’s) body at Sisera Academy, where the deceased used to work as a Watchman. She too worked in the said Academy as a cleaner.
91. PW4’s evidence was that on a date he could not recall in the months of May and June 2016 a lady he did not know went to the factory gate of Agro Processors also known as Nyali Sisal Estate, and asked for the accused person. PW4 told her that the accused person had gone to take flour from the factory and he had passed by with the flour. According to PW4, the said lady asked for accused person’s cellphone number but he did not have it, and Abdalla (PW9) who was with PW4 said he had the accused person’s brother’s phone number. That PW9 then called the accused person’s elder brother who said that he would tell the accused person when he got home about the lady who had gone to look for him.
92. PW4 testified that the lady asked which route the accused person had passed, he showed her and she followed that route. PW1 stated in his evidence that after she had left, the accused person went back alone and the lady did not return. PW3’s evidence was that he recorded a statement on 16th November, 2016 and he was asked about the woman who had gone asking for the accused person. PW4 stated that he did not know the said woman.
93. PW9, Abdallah Omar Mwachiramba gave evidence of how on a date he could not recall in September 2016 he and his wife spent the night in the bush as the Police had been at their homestead where they had been chasing the accused person, who as his cousin.
94. PW9 also gave evidence of another date which he could not recall when a woman went to Agro Processors where he was at the gate with Guni Kateria (PW4), another cousin of his, who was a Watchman, whom PW9 had gone to talk to.
95. PW9 corroborated the evidence of PW4 that when at the gate, a woman went there and asked for the accused person, and PW4 asked her if she wanted to talk to the accused person and she indicated that she wanted to talk to him. PW9 confirmed that PW4 said that he had no airtime for making a call, and asked PW9 to call the accused person’s brother Chuphi, because the accused person did not have a cellphone. PW9 testified that PW4 spoke to Chuphi and asked him if the accused person was with him but he said that he was not there as he had gone to collect flour at the company. That PW4 told Chuphi to tell the accused person that there was a visitor who was looking for him. PW9 stated that the woman who was looking for the accused person followed the route leading to the bush, and after an hour the accused person emerged from the route that the woman had taken, but PW4 did not tell him about her.
96. On being re-examined, PW9 stated that he could not recall the appearance of the woman who had gone to the gate of Agro Processors.
97. PW3 Abdalla Lumba Kamanza, an Elder of Nyumba Kumi, was on 11th November, 2016 informed by one Kamanza Kateria that he had been told to go to Taru Police Station with the accused person, and he did as instructed in the company of one Paula, but they were never told why the accused person was wanted by the Police.
98. PW11, the Investigating Officer in his evidence stated that on 8th November, 2016, with the OCS Taru Police Station, they went to the said village in Nyali Estate and upon reaching the barrier to the said Estate, they saw a person running away. On inquiring if the accused person was working at Nyali Estate, they were told that he was the one who had run away. PW11 and the other Police Officers then went back to the Police Station. It was his evidence that on 11th November, 2016 while at the Police Station, a Village Elder from Kisangani Village accompanied accused person went to the Police Station because the latter was being looked for.
99. On being interrogated by PW11, the accused person informed him that the deceased’s wife and son had gone to see him and they had asked him to assist to kill the deceased. PW11 informed the OCS Taru Police Station what he had been told by the accused person, whom he took to the said OCS to record a statement under inquiry.
100. The OCS Taru Police Station, Assistant Superintendent of Police, who testified as PW10 supported PW11’s evidence to the effect that on 11th November, 2016 in the morning, members of the Public and the Village Elder of Nyali Village went to Taru Police Station accompanied by the accused person as they had passed on information that they were looking for him. They arrested, and put him in the cells to assist in investigations of the death of the deceased.
101. From the evidence adduced by prosecution witnesses, on 13th November, 2016, the Police removed the accused person from the cells and he led PW10, PW11 and other Police Officers to his house in Nyali Village, where they found no one. PW11 and the other Police Officers searched his house and recovered a pair of blue jeans which had blood stains. They took away the said pair of jeans for further investigations.
102. PW11’s evidence was that on the wall of the accused person’s house, there was a cellphone number written thereon using charcoal, and the accused person told them that he had been given the said cellphone number by the deceased’s child but the accused person did not tell them the name of the said child. PW11 said that the cellphone number was 0716341194. PW11 asked the accused person when he had been given the cellphone number, but he said he could not recall. He however informed PW11 that he had been given the said number so that he could kill the deceased. According to PW11, the accused person knew the deceased as they had at one time worked in Nyali Sisal Company Limited. Further, PW11’s evidence was that the accused person told them that the deceased’s son had wanted his father killed due to family issues, but the accused person did not elaborate further.
103. After the visit to the accused person’s house, on 14th November, 2016, the accused person was taken to PW10’s office by the Police Officer who was at the Report Office with the intention of recording a statement under inquiry. Ms Odhiang objected to the prosecution relying on the said statement under inquiry and I ordered for a Trial-Within-a-Trial to be held.
104. On the date slated for the said trial, Mr. Muthomi informed me that he had gone through the said statement, and he had established that it did not amount to a confession. For the said reason, the Trial-within-a Trial never took place.
105. PW11 corroborated the evidence of PW10 that they recovered a pair of blue jeans trousers which was blood stained in the accused person’s house which they collected for forensic analysis.
106. PW7 confirmed that the Government Chemist, Mombasa received four (4) exhibits on 17th November, 2016 from Corporal Adan Grimpe of Taru Police Station vide an Exhibit Memo Form. The exhibits were a blood-stained bucket marked A1, a pair of blue jeans trousers marked B1, a finger nail of the deceased marked C1 and a buccal swab of the accused person marked D1.
107. PW7, George Oguda, a Government Analyst, testified that they were required to establish if there was any relationship in the above exhibits. It was the evidence of PW7 that the bucket and pair of blue jeans trousers tested positive for human blood but of different male profiles. It was also his evidence that the buccal swab from the accused person did not match any profile generated from exhibits A1 and B1, that is the blood-stained bucket and the pair of blue jeans trouser.
108. PW7 explained that the fingernail marked C1 was stored in a preservative and did not generate any positive result as the preservative known as formaldehyde, degrades DNA and it was not possible to extract any DNA from the said finger nail.
109. On being cross-examined, PW7 stated that the blood-stained bucket (exhibit A1) and the pair of blue jeans trouser (exhibit B1) were not related to the buccal swab (exhibit D1).
110. Going back to circumstantial evidence, in the case of Ahmad Abolfathi Mohamed & another v Republic [2018] eKLR, the Court of Appeal stated thus -
“However it is a truism that the guilt of an accused person can be Proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a Court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence.”
111. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Donovan [1928] Cr. Amp. R 21 –
“It has been said that evidence against the applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial”.
112. In this case, I have considered the circumstantial evidence adduced by prosecution witnesses and I am in concurrence with Ms Odhiang that there are missing links in the chain of the evidence adduced by the prosecution. For instance, PW10 testified that the accused person informed the Police Officers who went to his house that he had been given the cellphone number of the deceased by the deceased’s child (son) who wanted to have his father (deceased) killed by the accused person.
113. PW11 testified that when they arrested the accused person, he stated that the deceased’s wife Selmina Adoyo had paid him to kill the deceased. No evidence was however adduced by either PW10 or PW11 as to why they did not arrest the deceased’s son and Selmina Adoyo to interrogate them on the veracity of the said information, as the accused person was incriminating them in having procured his services to kill the deceased.
114. Instead of arresting and interrogating the two, the Police instead decided to conduct an identification parade in which Selmina Adoyo participated, with the accused person being a witness in the identification parade. Obviously, the accused person could not have incriminated himself by identifying Selmina Adoyo in the said identification parade, as by so doing, he would have confirmed that he was procured by her to kill the deceased, and that he had executed the said assignment. Noting that the statement under inquiry recorded by PW10 from the accused person was not a confession, the accused person must have known that he would be tightening the noose around his neck if he identified Selmina Adoyo as being the woman who had allegedly paid him to kill her husband (deceased).
115. The Investigating Officer, PW11, tried to link the identity of the woman who had gone to the gate of Agro Processors Ltd looking for the accused person to Selmina Adoyo. There was however no evidence establishing that the said woman was indeed Selmina Adoyo, as according to PW4, he did not know the said woman and she did not tell him her name. PW4 did not also know how she was connected to this case. PW9 who was at the gate with PW4 when the woman went to the gate of the said factory looking for the accused person, stated that he did not know the said woman before that day.
116. From the evidence of PW4 and PW9, if the Police wanted to ascertain if Selmina Adoyo was the woman who had gone to the gate of Agro Processors Ltd, they should have arranged for an identification parade with PW4 and PW9 being witnesses, to try and identify the said woman so as to ascertain if she was the one who had gone there looking for the accused person.
117. Another factor that needed closer scrutiny by the Police was the cellphone number of the deceased that was written on the wall of accused person’s house. The Police needed to show the nexus between the said number and the alleged payment that was made by the deceased’s wife to establish if the accused was supposed to call the deceased and lure him to create an opportunity to kill him. It was however the evidence of PW4 that the accused person did not have a cellphone and that is why PW9 called the accused person’s brother to inform him of the woman who had gone looking for him. In addition, PW10 stated that there was a time that the accused person was working together with the deceased at Agro Processors Ltd. It cannot therefore be ruled out that the accused person got to know deceased’s cellphone number then and wrote it on the wall of his house since he had no phone. The accused person in his defence however denied having known the deceased.
118. Although there is no evidence of bad faith on the part of the Police in the conduct of their investigations, it is however evident that they botched their investigations by failing to request the Doctor who conducted the postmortem examination on the deceased’s body to take a blood sample of the deceased for onward transmission to the Government Chemist for analysis. Instead, the police requested for a fingernail of the deceased. The said fingernail was stored in a preservative namely, formaldehyde which degraded the DNA, which made it not possible to extract any DNA from the fingernail. Although the Police had good intentions and hoped to obtain DNA from the fingernail, it is obvious that they did not know the best chemical to store their evidence in.
119. On the other hand, I note that the deceased’s head had been chopped off and severed from his torso. There must have been massive bleeding due to the said decapitation. It was therefore up to the Investigating Officer to explain to me as to whether there was any blood left in the deceased’s body at the time of postmortem examination, or if all his blood had drained out of his head and torso, leading to extraction of the deceased’s fingernail instead of a blood sample for DNA sampling and comparison with the exhibits that were recovered by the Police.
120. The Government Analyst’s Report exonerated the accused person from the blood-stained exhibits, namely the pair of blue jeans trousers which was recovered in his house and the blood-stained white bucket that was recovered in the culvert along the Mombasa-Nairobi Highway near Sisera Academy. The Government Analyst found no connection between the blood stains on the bucket with the blood stains on the blue jeans trousers, and the buccal swab taken from the accused person. From the evidence of PW7, the three (3) exhibits generated DNA of different male profiles. The Government Analyst was as such unable to determine if the blood stains on the blue jeans trouser and/or on the white bucket originated from the deceased.
121. In cross-examination, PW7 stated that there was no relationship between the fingernail with the buccal swab, and the DNA on the bucket and the pair of jeans trousers were not related to the buccal swab. From the Report produced by PW7 dated 16th June, 2017, there was no evidence connecting the accused person to the blood stains on the blue jeans trousers recovered in his house, and the deceased’s finger nail, due to lack of proper storage of the fingernail obtained from the deceased’s body.
122. The last thing for me to address is the fact that the deceased ran away when the Police went to look for him at the gate of Agro Processors Ltd. Running away from the Police could be evidence of a guilty mind but at times people are also known to run away from the Police due to fear. In the present case, when the Police went to the homestead of Kamanza Kateria where the accused person had a house, they started shooting and everyone ran away and slept in the bush that night. PW4 stated they slept in the bush out of fear. It turned out that in the process of shooting, a young boy was shot in the chest. Since the accused person did not disappear from his homestead for days, weeks, months or years, but turned himself in at the Police Station, I cannot conclude that he ran away upon seeing the police due to a guilty mind.
123. Having examined all the foregoing factors, I find that they weakened the prosecution’s case. The Police did not take up the investigations of this case with the seriousness it deserved. PW10 mentioned that there was a Police Officer who was to follow up on the cellphone number written on the wall of the accused person’s house. No evidence was adduced of the outcome of such a follow up, if it was ever done. By not being thorough in their investigations, the police left many loopholes in their case, which I hereby resolve to the benefit of the accused person.
124. Suspicion however strong can never form the basis of a conviction. The Court of Appeal in the case of Joan Chebichii Sawe v Republic (supra) stated thus:
“The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira vs Republic (Criminal Appeal No. 17 of 1998 (unreported), suspicion however strong cannot provide a basis for inferring guilty which must be proved by evidence.”
125. In conclusion, I find the accused person not guilty of the offence of murder contrary to Section 203 as read with 204 of the Penal Code. I hereby acquit him for the said offence. He shall be set at liberty forthwith unless otherwise lawfully held.
It is so ordered
DATED, SIGNED and DELIVERED at NAIROBI on this 22nd day of November, 2024. Judgment delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
The accused person
Ms Odhiang Advocate for the accused person
Ms Nyawinda – Principal Prosecution Counsel for the DPP
Ms B. Wokabi– Court Assistant
Ms Bebora Mwaka – Court Assistant.
2. After pre-trial proceedings, the charge was read out to the accused person on 15th February, 2017. He pleaded not guilty to the charge. The case commenced hearing on 7th February, 2018 before Judge Ongeri, who heard the evidence of PW1 to PW4 before I took over the hearing of the case under the provisions of Section 201(2) of the Criminal Procedure Code.
3. PW1 was Winnie Gaudai Obonyo, a Carpenter who stays at Taru. She indicated that the deceased John Omuse was her husband, whom she had lived with for one year before he died. She stated that on 6th November, 2016 which was on a Sunday, she made food and after they had eaten, her husband left home at 8.00 p.m., for work at New Sisera Academy where he used to work as a Watchman, but he never returned on 7th November, 2016, yet he used to return home at 5.00 a.m., in the morning.
4. PW1 testified that as she was going to work, she heard people saying that someone had died at Sisera Academy. She called her husband but her calls were not going through. She then decided to go to Sisera Academy where she found many people. She then saw that her husband had been killed and his body was close to a wall. She stated that he had been cut on the left side of his body on the shoulder. She recorded a statement and later heard that someone had been arrested. She however did not know the accused person.
5. PW2 was Riziki Nyamawe, a resident of Taru. She stated that she was the deceased’s 3rd wife, and that she used to work at Sisera Academy as a cleaner during the day, whereas her husband used to work there as a Watchman.
6. It was PW2’s evidence that on 7th November, 2016, while on her way to the said School, she found children running away and they informed her that someone had been killed at the School. She saw the body of that person inside the compound, outside the Staffroom. She further stated that the body was lying down and she saw that the head had been cut off. She screamed and went to tell the owner of school of what she had seen. She testified that they found the head near the road in a culvert, and after that she was taken to her house. She stated that when she first saw the body, the head was missing.
7. On being cross-examined, PW1 stated that the body was on a mattress near the staffroom. She stated that PW1 was the 4th wife of the deceased.
8. PW3 was Abdalla Lumba Kamanza, from Taru, Kizangani, and an Elder of Nyuma Kumi. He stated that on 11th November, 2016 at 8.00 a.m., Kamanza Ketere (sic) went to his house and told him to accompany him to Taru Police Station. He further stated that the accused person wanted him and the Village Elder to accompany him (Kamanza) to the said Police Station. PW3 stated that he asked what the problem was, and Kamanza told him that the accused person was being looked for.
9. PW3 indicated that he went to the Police Station accompanied by Paula. On reaching there, he informed the OCS that the accused person had told them to escort him to the Police Station. That the OCS told them that they had done a good job and said that he would remain with the accused person. They were however not informed the reason as to why he was wanted by the Police. They left him at the Police Station.
10. PW4 was Yusuf Kuni Gateria (sic) a resident of Taru. He stated that between May and June 2016, he was working as a Watchman at Sisera (Academy), where he would work until 6.00 p.m. He stated that when leaving work, he would hand over to Athuman Kateria Kalinga (accused person). PW4 testified that on a date he could not recall during the said months, a lady went to the gate of the factory in the morning and asked for the accused person. PW4 told her that the accused person had passed by with the flour. PW4 further testified that the lady also asked for Kalinga’s number (telephone number) but PW4 did not know it.
11. PW4 stated that he was with Abdalla (PW9) at that time and he said that he had the accused person’s brother’s cellphone number. PW9 then called the accused person’s elder brother who said that he would inform the accused person when he got home, they in turn informed the lady.
12. PW4 further stated that the lady asked to be shown the route that the accused person had passed. He showed her and she followed the said route. PW4 testified that after the lady left, the accused person returned alone but the lady did not return. PW4 stated that the accused person was in his room the whole day and he handed over the work to him that night. PW4 stated that he did not know why the lady was looking for the accused person, who is his nephew.
13. PW4 testified that he knows that the accused person was arrested by the Police but he did not know the reason for his arrest until 16th November, 2016 when he went to write a statement and they were asked if the lady had gone back looking for the accused person. PW4 indicated that he did not know the name of the lady, and that was the first time for him to see her.
14. PW5 was Dr. Stephen Katana, who was working, at Voi Moi County Referral Hospital. It was his evidence that on 16th November, 2016 while at work, he conducted a postmortem examination on the body of John Omuse at 10.15 a.m. It was the Doctor’s evidence that on examination of the said body, he found multiple deep cuts on the deceased’s head caused by a sharp object, with the first cut which was about the 5 cm being on the frontal region, not penetrating to the skull. The Doctor testified that on the left parietal region, the deceased had a penetrating injury to the skull about 20 cm. long. He also had a deep cut which had cut off the left ear. The Doctor added that the said injury was on the left temporal region and ran to the Maxilla region (jaw bone). He further testified that the deceased had a deep cut on the left upper neck cutting the major vessels, that is the carotid artery and the jugular vein, with the said cut being 7 cm long. The Doctor explained that the jugular vein supplies blood to the head, while the carotid vein supplies blood to the heart from the head. It was his evidence that there was complete decapitation of the deceased’s head, meaning that the head had been severed from the body.
15. On the deceased’s body the Doctor noted that the left upper arm had a deep cut of the forearm which had cut the radius and ulna bones, and there was a small cut on the right forearm region. The Doctor formed the opinion that the cause of death was due to cardio pulmonary arrest with severe injuries secondary to decapitation of the head. He produced the Postmortem Report in evidence.
16. On being cross-examined, the Doctor asserted that the extent of the injuries was such that the deceased’s assailant intended to cause the death of the deceased.
17. PW6 was Philip Thoya Iha from Taru in Kwale County. He was the Assistant Chief of Dapharo Sub-location, a position he had worked in for 3 years. He stated that he did not know the accused person but had known the deceased John Omuse for 3 years as a Nyumba Kumi Officer in Maragoni in Taru.
18. PW6 testified that on 7th November, 2016 at 6.39 a.m., he received a call from the Chief of Taru location Raphael Mwachilungu, who informed him that a watchman of Sisera Academy had been killed and he should go to investigate.
19. PW6 further testified that he went to the scene at Sisera Academy, where he found members of the public. He stated that he saw the body of a man who had been decapitated, lying on the floor of an office. He also stated that the head of the person could not be found at the scene and the body was covered with a clothing material. On uncovering the body, PW6 saw that the body of the man was clothed in a light blue T-shirt. PW6 also saw foot prints on the floor that had been made by sports shoes. Beside the body, he saw a torch and a mobile phone.
20. PW6 testified that after seeing the light green T-shirt, he identified the body as that of John Omuse who used to wear the said T-shirt often. He also knew the said person as a Watchman at Sisera Academy. PW6 testified that he followed the footsteps which left a trail of blood but they ended at a fish pond. He stated that he called the Chief to find out if he had reported to the Police. He also called the OCS of Taru Police Station who said that he was on his way.
21. It was the evidence of PW6 that when the Police reached the scene, they followed the footsteps and trail of blood stains up to the Mombasa – Nairobi Highway, to a place where there was a bridge where they saw bloodstains. PW6 testified that a young man was asked to check under the bridge and he removed a human head which was handed over to the OCS, but PW6 did not look at it. He indicated that the distance where it was found was 250 metres from Sisera Academy. He stated that on the other side, opposite where the human head was recovered, a blood-stained white bucket was recovered, and it was taken by the Police. PW6 identified various photographs that were taken at the scene.
22. George Ogunda, an Assistant Principal Government Analyst testified as PW7. His evidence was that on 17th November, 2016, several exhibits were forwarded to the Government Chemist Mombasa vide an Exhibit Memo Form. That the said exhibits were taken there by Corporal Adan Grimpe of Taru Police Station. He testified that the exhibits comprised a blood-stained bucket marked A1, a pair of blue jeans trousers marked B1, a finger nail of the deceased marked C1 and a buccal swab of accused person marked D1.
23. He stated that the request made was to establish if there was any relationship in the said exhibits. He testified that the bucket and the pair of blue jeans trousers tested positive for human blood, but exhibit C1 - a finger nail of the deceased did not generate a positive DNA result.
24. It was the evidence of PW7 that the pair of blue jeans trousers and the bucket generated different male DNA profiles. He stated that the buccal swab of the accused person did not match any DNA profile generated from exhibits A1 and B2.
25. PW7 testified that the preservative used to preserve the finger nail was formaldehyde which degrades DNA and it was therefore not possible to generate DNA from the said finger nail. PW7 produced the Exhibit Memo Form and the Government Chemist’s Report as exhibits.
26. No. 93429 PC Philemon Kiprono Korir testified as PW8. He stated that in the year 2016, he was working with the DCI Taru as an investigator, and that on 13th November, 2016 at 7.00 a.m., he was with the OCS Taru Police Station, together with Cpl Charles Mainya and CPL Adan Grimpe, when the OCS told them that there was a murder suspect in the cells whom they should accompany to his house. PW8 testified that they removed the accused person from the cells and they took him to his house at Nyali Sisal Plantation, where they did a search. He stated that they recovered a long pair of jeans which had red stains that looked like blood, and they took the said jeans and went back to the Police Station.
27. He stated that on 15th November, 2016 he was accompanied by two (2) children of the deceased to Voi Moi Referral Hospital and a postmortem was done on the body of the deceased John Omuse, after his children identified it. PW8 stated that the Doctor removed a nail (finger nail) from the deceased for further investigations after he had established the cause of death. The Doctor also filled in the Postmortem Report.
28. It was PW8’s evidence that on 17th November, 2016, the accused person was escorted to the Government Chemist, Mombasa together with the bucket, the long pair of jeans trousers, and the finger nail from the deceased, and the exhibits were handed over to the said office. PW8 stated that a buccal swab was taken from the accused person.
29. PW9 was Abdallah Omar Mwachiramba, resident of Taru, Dzangani village. He stated that on a day he could not recall in September 2016, his wife called him and told him not to follow a certain route as there were Police Officers who were shooting in their homestead. He stated that he followed a certain route that goes through the bush, where he found his family members and they spent the night in the bush, where they took shelter after running away from their home. He testified that in the morning they went home and on reaching there, they were told that the Police were chasing the accused person, who was his cousin.
30. He further testified that on a date he could not recall, he was at the gate of Agro Processers, with Guni Kateria, another cousin of his, who was a Security Guard at the said company, whom he had gone to talk to. He recounted that when he was there, a woman went to the gate and asked for the accused person. That Guni Kateria (PW4) asked the woman if she would like to talk to the accused person and he informed her that he had no air time. PW9 testified that PW4 asked him to call the accused person’s brother called Chuphi, as the accused person did not have a cellphone. PW9 stated that PW4 spoke to Chuphi and asked him if he was with the accused person, but he said he was not there as he had gone to collect flour at the company. In turn, PW4 told Chuphi to inform the accused person that there was a visitor who was looking for him. PW9 stated that the woman who was looking for the accused person left and followed a route leading to the bush.
31. PW9 testified that after about an hour, the accused person emerged from the route that the woman had taken. PW9 stated that they had a general talk but he did not inform the accused person about the woman who had been looking for him, as he did not know if they had met or not, as they had used the same route.
32. In cross-examination, PW9 stated that the accused person was a Watchman at Agro Processors and their home was 100 metres from the said company.
33. In re-examination, PW9 stated that he could not recall the appearance of the woman who had gone to the gate of Agro Processors.
34. PW10 was No. 233682 was Assistant Superintendent of Police Henry Wesonga. He stated that in November 2016, he was the OCS Taru Police Station. His evidence was that on 7th November, 2016 at 7.00 a.m., he received a report from the Assistant Chief of Taru Sub-location who told him that someone had been killed at Sisera Academy. PW10 stated that accompanied by other Police Officers, they went to the said Academy where they found the deceased’s body soaked in blood. That the said body was lying between some classrooms where there was an open ground. It was the evidence of PW10 that the deceased’s head had been severed from the body by being cut off, and they started looking for the deceased’s head, after removing his torso from the scene.
35. PW10 testified that as they were leaving Sisera Academy, they saw a trail of blood from the place where the torso had been lying towards the Voi-Nairobi Highway which was a distance of 1km from the said Academy. It was PW10’s evidence that the trail of blood led them to a culvert where they found a white bucket that had blood on outer and inner part of it. He stated that in the culvert, they found the deceased’s head which had blood oozing from it. He further stated that they took the torso and the human head they had recovered to the mortuary at Moi Hospital, Voi.
36. PW10 testified that in the morning of 11th November, 2016, members of the public and the Village Elder from Nyali Village went to Taru Police Station accompanied by the accused person after the Police had passed on information that they were looking for him as a suspect. PW10 stated that they arrested the accused person and put him in the cells for him to assist them with investigations of the death of the deceased.
37. It was the evidence of PW10 that on 13th November, 2016 they removed the accused person from the cells and he led them to his house in Nyali village, which they searched. PW10 testified that in the said house, they recovered a pair of blue jeans trousers which had blood stains, which they took with them for further investigations. He stated that there was a cellphone number written on the wall of the accused person’s house using charcoal, and that the accused person told them that he had been given the cellphone number by the deceased’s child, but he did not disclose the name of the said child. On PW10 refreshing his memory from his statement, he stated that the cellphone number was 0716341194. That on being questioned about when he had been given the cellphone number, the accused person could not recall but he told the Police that he had been given the said number by the deceased’s child so that he could kill the deceased. Further, the accused person informed them that he had worked with the deceased at Nyali Sisal Company Limited (Agro Processors) at some point in time.
38. PW10 stated that the accused person told them that the deceased’s son wanted his father (deceased) killed due to family issues, but the accused person did not elaborate further.
39. PW10 testified that on 14th November, 2016, the accused person was taken to his office by the Police Officer who was at the Report Office for the purpose of recording a statement under inquiry from him. PW10 stated that he had already called the accused person’s brother by the name Jumaa Chuphi Kateria. PW10’s evidence was that he identified himself to the accused person and his brother and told them that he was investigating a case of murder contrary to Section 203 as read with Section 204 of the Penal Code, as he had reasons that made him believe that the accused person was involved in the murder or had information that could assist them in the investigation, in that on the night of 10th November, 2016 at an unknown time at Sisera Academy in Taru location in Kinango Sub-County in Kwale County, he and others murdered John Omuse. PW10 testified that he asked the accused person if he had anything to say but cautioned him that he was not obliged to say anything unless he wished to do so, and whatever he said would be taken down in writing and used in evidence. PW10 stated that the accused person signed the caution first and then he signed it. PW10’s evidence was that the accused person gave him information, which he put down in writing.
40. At that point, Ms Odhiang, learned Counsel for the accused person opposed to PW10 adducing evidence as to the contents of the statement under inquiry, on the grounds that the accused person did not record any statement with PW10 or give any information to the said Police Officer. Ms Odhiang contended that the accused person did not know the deceased or the alleged son of the deceased, and that no one paid him money to kill the deceased. She prayed for a Trial-within-a-Trial to be held.
41. On his part, Mr. Muthomi, Prosecution Counsel, contended that the statement under inquiry was voluntarily given and the accused person was not coerced or promised anything so as to record the said statement. Mr. Muthomi stated that the accused person appended his thumbprint on each and every page of the said statement, which was recorded in the presence of his brother Jumaa Chuphi Kateria, who signed to signify that he was a witness.
42. After hearing both contestations on the admission or otherwise of the statement under inquiry, I ordered for a Trial-within-a-Trial to be held and a hearing date was given for that purpose. On the day scheduled for the said trial, being the 14th July, 2021, Mr. Muthomi however informed me that he had considered the contents of the statement under inquiry which was recorded by PW10, and he had realized that the accused person did not confess to having committed the offence. Mr. Muthomi also informed me that there was no need for a Trial-within-a-Trial. As such, the issue of the statement under inquiry was abandoned.
43. On being cross-examined, PW10 stated that there was a Police Officer who was to make a follow up on the cellphone number written on the wall of the accused person’s house. PW10 stated that they did not find any other suspect who could have committed the offence.
44. PW11 was No.67043 Corporal James Mainya attached to CID Changamwe, Mombasa. He indicated that in the year 2016, he was working at Taru CID office. He testified that on 7th November, 2016 at 7.00 a.m., the Assistant Chief of Taru location by the name Philip Thoya reported that someone had been killed at Sisera Academy. PW11 accompanied the OCS Taru Police Station and other Police Officers to Sisera Academy, and on arrival, they found the deceased’s body. PW11 stated that he saw a lot of blood at the scene and that many people were gathered there.
45. It was the evidence of PW11 that they followed a trail of blood from where the deceased’s torso lay, and they went up to the Nairobi-Mombasa Highway where a white bucket which had a lot of blood was recovered. He stated that with members of the public, they looked for the deceased’s head, which they found in a culvert, from where it was removed.
46. PW11 stated that he took photographs of the deceased’s torso and the head, and that the said body parts were then loaded onto the police vehicle and taken to Voi Referral Hospital mortuary.
47. PW11 testified that they commenced investigations and on 8th November, 2016, they found that there was a suspect in Kisangani Village. That on 9th November, 2016, he with the OCS Taru Police Station and other Police Officers went to Kisangani Village in Nyali Estate, and on reaching the barrier of Nyali Estate, they saw a person running away. PW11 stated that on making inquiries on whether the accused person was working at the said Estate, they were told that he was the one who had run away. They then returned to the Police Station.
48. According to PW11, on 11th November, 2016 while at the Police Station, two Village Elders from Kisangani village went to the office of the OCS accompanied by the accused person, who said that he had gone to the Police Station because he was being looked for by the Police. PW11 stated that they arrested the accused person and put him in the cells. That on interrogating him, he informed PW11 that the deceased’s wife and his son had gone to see him, and they had asked him to assist in killing the deceased.
49. PW11 stated that he informed the OCS Taru Police Station what the accused person had told him and PW11 took the accused person to the said OCS who recorded a statement under inquiry.
50. PW11 testified that on 13th November, 2016, he accompanied the OCS Taru Police Station and other Police Officers and the accused person to the accused person’s house, where they did a search and recovered a blood-stained pair of blue jeans, which they look to Taru Police Station.
51. It was the evidence of PW11 that on 2nd December, 2016, the deceased’s wife by the name Selmina Adoyo went to the Police Station and an identification parade was conducted by Inspector Sebastian Maloba for the accused person to identify the person who approached him to kill the deceased, but the accused person was not able to identify the said person.
52. PW11 stated that Corporal Aden prepared an Exhibit Memo Form and took the pair of blood-stained jeans trousers and other exhibits to the Government Chemist.
53. PW11 further stated that after taking photographs with his phone, he went to see the Scenes of Crime Officer in Mombasa, who processed the photographs and sent them to him at Taru Police Station. PW11 produced 11 photographs that he took of the deceased’s head, torso and the scene where the body lay.
54. PW11 concluded his evidence by saying that he was the Investigating Officer in this case. He also produced the pair of blue jeans trousers that was recovered in the accused person’s house and the white bucket that had been recovered in the culvert where the deceased’s head was also recovered. He stated that he requested Corporal Aden to forward exhibits to the Government Chemist for analysis, which included the pair of blue jeans trousers, the white bucket, the deceased’s fingernail and the accused person’s buccal swab.
55. In cross-examination, PW11 stated that Selmina Adoyo was the deceased’s 1st wife and that the accused person was not able to identify her in an identification parade. PW11 said that he did not know why the accused person committed the offence and he did not know if he and the deceased knew each other. PW11 however expressed the belief that the accused person committed the offence as he recorded a statement under inquiry at the Police Station. PW11 could not recall the name of the deceased’s son, who was allegedly seen with Selmina Adoyo.
56. The accused person gave a sworn defence and stated that he was a resident of Vutsangani in Taru location and that he was working as a Security Guard at Agro Nyali Estate. He said that after the night of 6th and 7th November, 2016, he reported to work at 6.00 a.m., and left at 6.00 p.m. He stated that when at work at 6.00 a.m., he and his nephew received news from the workers of a Chinese company which was working at Agro Nyali Estate that someone had been killed at a school in Sisera.
57. The accused person denied knowing the deceased John Omuse. He stated that on 7th November, 2016, the Police went to his place of work and asked for Hamisi Katana Kalinga, but there was no one by that name, although there was Athuman Kateria Kalinga (himself). He stated that they were three of them at the gate when the Police went there, and that two of the Policemen went to a house near the gate and they told him to accompany them to the house of Kamanza Kateria which was 199 feet away.
58. The accused person stated that the OCS Taru Police Station gave orders for the Police to shoot and the occupants of the houses started running away on hearing gun shots. That they continued running after the 2nd gunshot, and that a child was hit in the chest by the 3rd gunshot. The accused person stated that they entered the homestead and found Kamanza Kateria, whom the Police hit, as they asked for Hamisi Katana Kalinga but Kamanza told them that there was no one in that homestead by that name.
59. In his defence, the accused person said that on 8th November, 2016, the Police went to the gate where he was working and they told him to go to the Police Station with the Village Chairman and the Village Elder. That on arrival there, he was interrogated and asked if he knew about the death of John Omuse. He denied having been approached by the deceased’s wife and son, so as to kill the deceased. He also denied that he was paid by them to kill the deceased.
60. The accused person stated that on the night of 6th and 7th November, 2016, he was at work with Kamanza Kateria, who was later arrested and taken to Shimo-la-Tewa and released on bond. He denied having killed the deceased.
61. On being cross-examined by the prosecution, the accused person stated that he used to be a night duty Security Guard but at times he would work during the day when asked to do so. He stated that during the day, the gate was manned by one Security Guard and at night, there used to be three Security Guards and he was permanent at the said gate. He stated that Kamanza was a fellow Security Guard, and that on 7th November, 2016, he was at work with Kamanza Kateria, and that Jogan Jemo was on duty during the day. He further stated that they used to sign a Register which was kept by their Supervisor by the name of Omolo, who would keep the record of their attendance at work. That on 6th November, 2016, he went to work at 6.00 p.m. He indicated that he used to live in a company house at his work place, but his child used to live at their homestead near the gate.
62. In re-examination, the accused person reiterated that he was at work on the night of 6th and 7th November, 2016.
63. In final submissions filed on 25th May 2023, by Ms Nyawinda, Principal Prosecution Counsel for the DPP, she summarized the evidence adduced by prosecution witnesses. She also gave a summary of the defence case. She stated that this being a case wherein the accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, the prosecution must establish three elements namely -
(i) Proof of death and the cause of death;
(ii) Proof that the death was due to an unlawful act or omission, and that the unlawful act or omission was on the part of the suspect;
(iii) That the unlawful act was with malice aforethought.
64. Ms Nyawinda submitted that the death of the deceased was not in dispute as the Postmortem Report confirmed that the deceased died on 6th November, 2016, and the cause of death as per the Postmortem Report was due to cardiopulmonary arrest due to severe injuries secondary to decapitation of the head, which is not a natural cause. She stated that the prosecution had established that the deceased died and that his death was unlawful.
65. She further submitted that although there is no evidence linking the accused person to the deceased’s murder, the prosecution had brought forth circumstantial evidence linking the accused person to the deceased’s murder by the fact that they were both working as Watchmen with the accused person working at Nyali Estate and the deceased at Sisera Academy. Counsel stated that another fact which was not contested was that on the night of 6th and 7th November, 2016, the deceased was at work but the accused person did not sufficiently explain where he was that night. She submitted that another fact that incriminated the accused person is that when the Police visited Nyali Estate, he ran away and he was forcefully taken to the Police Station by the Village Elder and Village Chairman on 11th November, 2016, after there was a shooting at his home when the Police went there looking for him.
66. Counsel submitted that another incriminating factor is that when the Police went to the accused person’s home, they discovered a blood stained jeans trouser, although on being examined, it did not match the deceased’s DNA, but the accused person did not explain the blood stains on the said trouser.
67. It was submitted by Ms Nyawinda that another incriminating fact is that the accused person had the deceased’s cellphone number written on the wall of his house, a fact that he did not deny.
68. She stated that when the accused person was interrogated by PW10 and PW11, he admitted to have been sent by a lady, whom he could not identify, to kill the deceased, although he did not record a confession
69. Ms Nyawinda contended that according to PW11, his investigations did not lead him to any other person other than the accused person. She submitted that from the foregoing circumstantial evidence an inference can be drawn connecting the accused person to the deceased’s murder. She relied on the case of Ahamed Abolfathi Mohammed & another v Republic [2018] eKLR, on what constitutes circumstantial evidence. She submitted that in this case, the circumstances pointing to the deceased’s murder only point to the accused person and no other, and that it establishes that the accused person murdered the deceased.
70. Mr Nyawinda cited the provisions of Section 206 of the Penal Code to demonstrate that the accused person had malice aforethought when he committed the unlawful death of the deceased. She stated that the elements that constitute malice aforethought are the nature of the weapons used, the nature of injuries sustained the conduct before, during and after the incident and the manner in which the weapon was used.
71. Ms Nyawinda asserted that the prosecution proved through witnesses that the deceased was cold bloodedly murdered by having his head severed from his body, and his head was dumped almost a kilometre from the scene of murder. It was submitted that from the nature of injuries sustained and the type of weapon likely to have been used, the prosecution had proved that the accused person had malice aforethought when he caused the death of the deceased.
72. She prayed for the accused person to be found guilty of murder contrary to Section 203 as read with 204 of the Penal Code as charged.
73. Ms Odhiang, learned Counsel for the accused person filed written submissions on 29th June, 2023. She stated that the question to be determined by this Court is whether there is sufficient evidence to prove that the accused person unlawfully caused the death of the deceased as provided for under the provisions of Section 203 as read with Section 204 of the Penal Code. Counsel contended that no sufficient evidence was adduced to prove that the accused person committed the offence of murder as alleged by the prosecution. She stated that the prosecution had a duty to prove its case beyond reasonable doubt, and that any doubt cast on the prosecution’s case ought to benefit the accused person and result in an acquittal. She contended that the evidence of PW1, PW2, PW3, PW4 and PW5 did not link the accused person to the death of John Omuse, as no eye witnesses saw the offence being committed. She asserted that there was no circumstantial evidence on record.
74. Counsel submitted that the evidence of PW7, the Government Chemist was not conclusive enough to link the accused person to the offence of murder. She stated that PW7 produced Exhibit 4B which confirms that there was no relation to D1, and the buccal swab of the accused to exhibits A1 and B1, respectively. Ms. Odhiang further stated that the blue jeans recovered by PW8 after being subjected to DNA analysis failed to link the accused person to the offence. She stated that the findings of PW7 confirm the innocence of the accused person.
75. Ms Odhiang wondered why Selmena Adoyo, the deceased’s wife was not arrested for allegedly paying the accused person to murder the deceased. She submitted that the evidence of PW4, PW9, PW10 and PW11 attempted to link the accused person to the murder with the theory of said woman, who even participated in an identification parade. Counsel contended that there was no evidence of payment to the accused person, and that PW10 was unable to identify the woman and her son. Further, that no identification parade was conducted for PW9 and PW4 to identify the woman alleged to be the deceased’s wife.
76. Counsel contended that there was no evidence to prove motive on the part of the accused person. She submitted that the defence adduced the accused person withstood the test of cross-examination. She prayed for the Court to dismiss the charges against the accused person and acquit him accordingly.
DETERMINATION.
77. In order to determine if the accused person is guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, it is imperative to satisfy myself that the prerequisites of Section 206 of the Penal Code have been met. Section 206 of the Penal Code provides 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 escape from custody of any person who has committed or attempted to commit a felony.
78. From the above provisions, it is necessary to establish –
(i) If the death of the deceased arose from an unlawful act or omission;
(ii) If the accused person is the one who occasioned the unlawful act or omission that led to the death of the deceased;
(iii) If the answer to (ii) above is in the affirmative, whether the accused person had malice aforethought when he committed the offence.
If the death of the deceased arose from an unlawful act or omission.
79. The deceased was working as a Watchman at Sisera Academy. Winnie Guadasi Obonyo (PW1), was his 4th wife. On 6th November, 2016, which was on a Sunday, she was at home with the deceased. She cooked, they ate and thereafter her husband left at 8.00 p.m., for work at Sisera Academy, but never returned home on 7th November, 2016, yet his usual arrival time at home from work used to be 5.00 a.m., in the morning.
80. As PW1 was going to work on the morning of 7th November, 2016, she heard people saying that someone had died at Sisera Academy. She called the deceased but her call did not go through. She went to Sisera Academy and saw that her husband had been killed and his body was lying near a wall. She also saw that he had been cut on the left side of his body at his shoulder.
81. The same morning, Riziki Nyamawi (PW2) who was the deceased’s 3rd wife, was going to work at Sisera Academy where she used to work as a cleaner. On reaching there, she found children running away and they told her that someone had been killed at the School. She saw the body inside the compound outside the staff room. She also saw that the head had been cut off. She went to inform the owner of the School. She stated that they found the deceased’s head near the road in a culvert.
82. The same morning at 6.39 a.m., the Sub-Chief of Dupharo Sub-location (PW6), received a call from the Chief of Taru location, who informed him that a Watchman of Sisera Academy had been killed and that he should go to investigate. According to PW6, on arrival at the Academy, he saw the body of a man lying on the floor of an office. He also saw that the man’s head had been decapitated. On uncovering the body, he identified it as that of John Omuse, from the T-shirt he had worn.
83. PW6 followed footsteps which left a trail of blood but they ended at a fishpond. When the Police reached the scene, they followed the footsteps up to a bridge along the Mombasa – Nairobi Highway as there were bloodstains in that area. A young man was asked to check under the bridge and he removed a human head from a culvert. They also recovered a white blood-stained plastic bucket under the said bridge. The Police took away the body, the human head and blood-stained plastic bucket.
84. The evidence of PW6 was corroborated by that of PW10 and PW11 who were his fellow Police Officers who visited the scene and saw the deceased’s body (torso) and the head which had been severed off, which was recovered in a culvert under the said bridge.
85. Dr. Katana who conducted the postmortem examination on the deceased’s body on 16th November, 2016, concluded that the cause of death was due to cardiopulmonary arrest due to severe injuries, secondary to decapitation of the head. He produced the Postmortem Report in evidence.
86. It is clear to me from the evidence adduced by the witnesses who went to Sisera Academy and Dr. Katana, PW5, that the deceased’s head had been completely severed from his torso. The head also had multiple deep cut wounds and the torso also had injuries as described in the Postmortem Report.
87. Based on the said evidence it is conclusive that the deceased died as a result of an unlawful act in the hands of another person or persons. The death of the deceased was therefore unlawful.
If the accused person is the one who occasioned the unlawful act or omission that led to the death of the deceased.
88. As was correctly submitted by both Ms Nyawinda for the prosecution and Ms Odhiang for the accused person, there is no direct evidence linking the accused person to the death of the deceased.
89. I therefore have to analyze the circumstantial evidence on record and see if it meets the threshold set out in the case of Sawe vs Republic [2003] KLR 364, wherein the Court of Appeal held as follows:
1. In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.
2. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.
3. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.
92. In Abanga alias Onyango v Republic CA CR. A NO. 32 of 1990 (UR), cited by Ms. Odhiang for the accused person, the Court of Appeal set out the principles which should be applied in order to test circumstantial evidence in the following words-
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.
90. The deceased was a polygamous man. He had married 4 wives. PW1 was his 4th wife and she had been married for a period of one year before the deceased met his death. PW2 was his 3rd wife. On the day he met his death, the deceased had spent the day with PW1 and he left for work on 6th November, 2016 at 8.00 p.m. He was expected to return home on 7th November, 2016 at 5.00 a.m., but he did not. PW1 found his body at Sisera Academy. PW2 confirmed that she too found her husband’s (deceased’s) body at Sisera Academy, where the deceased used to work as a Watchman. She too worked in the said Academy as a cleaner.
91. PW4’s evidence was that on a date he could not recall in the months of May and June 2016 a lady he did not know went to the factory gate of Agro Processors also known as Nyali Sisal Estate, and asked for the accused person. PW4 told her that the accused person had gone to take flour from the factory and he had passed by with the flour. According to PW4, the said lady asked for accused person’s cellphone number but he did not have it, and Abdalla (PW9) who was with PW4 said he had the accused person’s brother’s phone number. That PW9 then called the accused person’s elder brother who said that he would tell the accused person when he got home about the lady who had gone to look for him.
92. PW4 testified that the lady asked which route the accused person had passed, he showed her and she followed that route. PW1 stated in his evidence that after she had left, the accused person went back alone and the lady did not return. PW3’s evidence was that he recorded a statement on 16th November, 2016 and he was asked about the woman who had gone asking for the accused person. PW4 stated that he did not know the said woman.
93. PW9, Abdallah Omar Mwachiramba gave evidence of how on a date he could not recall in September 2016 he and his wife spent the night in the bush as the Police had been at their homestead where they had been chasing the accused person, who as his cousin.
94. PW9 also gave evidence of another date which he could not recall when a woman went to Agro Processors where he was at the gate with Guni Kateria (PW4), another cousin of his, who was a Watchman, whom PW9 had gone to talk to.
95. PW9 corroborated the evidence of PW4 that when at the gate, a woman went there and asked for the accused person, and PW4 asked her if she wanted to talk to the accused person and she indicated that she wanted to talk to him. PW9 confirmed that PW4 said that he had no airtime for making a call, and asked PW9 to call the accused person’s brother Chuphi, because the accused person did not have a cellphone. PW9 testified that PW4 spoke to Chuphi and asked him if the accused person was with him but he said that he was not there as he had gone to collect flour at the company. That PW4 told Chuphi to tell the accused person that there was a visitor who was looking for him. PW9 stated that the woman who was looking for the accused person followed the route leading to the bush, and after an hour the accused person emerged from the route that the woman had taken, but PW4 did not tell him about her.
96. On being re-examined, PW9 stated that he could not recall the appearance of the woman who had gone to the gate of Agro Processors.
97. PW3 Abdalla Lumba Kamanza, an Elder of Nyumba Kumi, was on 11th November, 2016 informed by one Kamanza Kateria that he had been told to go to Taru Police Station with the accused person, and he did as instructed in the company of one Paula, but they were never told why the accused person was wanted by the Police.
98. PW11, the Investigating Officer in his evidence stated that on 8th November, 2016, with the OCS Taru Police Station, they went to the said village in Nyali Estate and upon reaching the barrier to the said Estate, they saw a person running away. On inquiring if the accused person was working at Nyali Estate, they were told that he was the one who had run away. PW11 and the other Police Officers then went back to the Police Station. It was his evidence that on 11th November, 2016 while at the Police Station, a Village Elder from Kisangani Village accompanied accused person went to the Police Station because the latter was being looked for.
99. On being interrogated by PW11, the accused person informed him that the deceased’s wife and son had gone to see him and they had asked him to assist to kill the deceased. PW11 informed the OCS Taru Police Station what he had been told by the accused person, whom he took to the said OCS to record a statement under inquiry.
100. The OCS Taru Police Station, Assistant Superintendent of Police, who testified as PW10 supported PW11’s evidence to the effect that on 11th November, 2016 in the morning, members of the Public and the Village Elder of Nyali Village went to Taru Police Station accompanied by the accused person as they had passed on information that they were looking for him. They arrested, and put him in the cells to assist in investigations of the death of the deceased.
101. From the evidence adduced by prosecution witnesses, on 13th November, 2016, the Police removed the accused person from the cells and he led PW10, PW11 and other Police Officers to his house in Nyali Village, where they found no one. PW11 and the other Police Officers searched his house and recovered a pair of blue jeans which had blood stains. They took away the said pair of jeans for further investigations.
102. PW11’s evidence was that on the wall of the accused person’s house, there was a cellphone number written thereon using charcoal, and the accused person told them that he had been given the said cellphone number by the deceased’s child but the accused person did not tell them the name of the said child. PW11 said that the cellphone number was 0716341194. PW11 asked the accused person when he had been given the cellphone number, but he said he could not recall. He however informed PW11 that he had been given the said number so that he could kill the deceased. According to PW11, the accused person knew the deceased as they had at one time worked in Nyali Sisal Company Limited. Further, PW11’s evidence was that the accused person told them that the deceased’s son had wanted his father killed due to family issues, but the accused person did not elaborate further.
103. After the visit to the accused person’s house, on 14th November, 2016, the accused person was taken to PW10’s office by the Police Officer who was at the Report Office with the intention of recording a statement under inquiry. Ms Odhiang objected to the prosecution relying on the said statement under inquiry and I ordered for a Trial-Within-a-Trial to be held.
104. On the date slated for the said trial, Mr. Muthomi informed me that he had gone through the said statement, and he had established that it did not amount to a confession. For the said reason, the Trial-within-a Trial never took place.
105. PW11 corroborated the evidence of PW10 that they recovered a pair of blue jeans trousers which was blood stained in the accused person’s house which they collected for forensic analysis.
106. PW7 confirmed that the Government Chemist, Mombasa received four (4) exhibits on 17th November, 2016 from Corporal Adan Grimpe of Taru Police Station vide an Exhibit Memo Form. The exhibits were a blood-stained bucket marked A1, a pair of blue jeans trousers marked B1, a finger nail of the deceased marked C1 and a buccal swab of the accused person marked D1.
107. PW7, George Oguda, a Government Analyst, testified that they were required to establish if there was any relationship in the above exhibits. It was the evidence of PW7 that the bucket and pair of blue jeans trousers tested positive for human blood but of different male profiles. It was also his evidence that the buccal swab from the accused person did not match any profile generated from exhibits A1 and B1, that is the blood-stained bucket and the pair of blue jeans trouser.
108. PW7 explained that the fingernail marked C1 was stored in a preservative and did not generate any positive result as the preservative known as formaldehyde, degrades DNA and it was not possible to extract any DNA from the said finger nail.
109. On being cross-examined, PW7 stated that the blood-stained bucket (exhibit A1) and the pair of blue jeans trouser (exhibit B1) were not related to the buccal swab (exhibit D1).
110. Going back to circumstantial evidence, in the case of Ahmad Abolfathi Mohamed & another v Republic [2018] eKLR, the Court of Appeal stated thus -
“However it is a truism that the guilt of an accused person can be Proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a Court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence.”
111. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Donovan [1928] Cr. Amp. R 21 –
“It has been said that evidence against the applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial”.
112. In this case, I have considered the circumstantial evidence adduced by prosecution witnesses and I am in concurrence with Ms Odhiang that there are missing links in the chain of the evidence adduced by the prosecution. For instance, PW10 testified that the accused person informed the Police Officers who went to his house that he had been given the cellphone number of the deceased by the deceased’s child (son) who wanted to have his father (deceased) killed by the accused person.
113. PW11 testified that when they arrested the accused person, he stated that the deceased’s wife Selmina Adoyo had paid him to kill the deceased. No evidence was however adduced by either PW10 or PW11 as to why they did not arrest the deceased’s son and Selmina Adoyo to interrogate them on the veracity of the said information, as the accused person was incriminating them in having procured his services to kill the deceased.
114. Instead of arresting and interrogating the two, the Police instead decided to conduct an identification parade in which Selmina Adoyo participated, with the accused person being a witness in the identification parade. Obviously, the accused person could not have incriminated himself by identifying Selmina Adoyo in the said identification parade, as by so doing, he would have confirmed that he was procured by her to kill the deceased, and that he had executed the said assignment. Noting that the statement under inquiry recorded by PW10 from the accused person was not a confession, the accused person must have known that he would be tightening the noose around his neck if he identified Selmina Adoyo as being the woman who had allegedly paid him to kill her husband (deceased).
115. The Investigating Officer, PW11, tried to link the identity of the woman who had gone to the gate of Agro Processors Ltd looking for the accused person to Selmina Adoyo. There was however no evidence establishing that the said woman was indeed Selmina Adoyo, as according to PW4, he did not know the said woman and she did not tell him her name. PW4 did not also know how she was connected to this case. PW9 who was at the gate with PW4 when the woman went to the gate of the said factory looking for the accused person, stated that he did not know the said woman before that day.
116. From the evidence of PW4 and PW9, if the Police wanted to ascertain if Selmina Adoyo was the woman who had gone to the gate of Agro Processors Ltd, they should have arranged for an identification parade with PW4 and PW9 being witnesses, to try and identify the said woman so as to ascertain if she was the one who had gone there looking for the accused person.
117. Another factor that needed closer scrutiny by the Police was the cellphone number of the deceased that was written on the wall of accused person’s house. The Police needed to show the nexus between the said number and the alleged payment that was made by the deceased’s wife to establish if the accused was supposed to call the deceased and lure him to create an opportunity to kill him. It was however the evidence of PW4 that the accused person did not have a cellphone and that is why PW9 called the accused person’s brother to inform him of the woman who had gone looking for him. In addition, PW10 stated that there was a time that the accused person was working together with the deceased at Agro Processors Ltd. It cannot therefore be ruled out that the accused person got to know deceased’s cellphone number then and wrote it on the wall of his house since he had no phone. The accused person in his defence however denied having known the deceased.
118. Although there is no evidence of bad faith on the part of the Police in the conduct of their investigations, it is however evident that they botched their investigations by failing to request the Doctor who conducted the postmortem examination on the deceased’s body to take a blood sample of the deceased for onward transmission to the Government Chemist for analysis. Instead, the police requested for a fingernail of the deceased. The said fingernail was stored in a preservative namely, formaldehyde which degraded the DNA, which made it not possible to extract any DNA from the fingernail. Although the Police had good intentions and hoped to obtain DNA from the fingernail, it is obvious that they did not know the best chemical to store their evidence in.
119. On the other hand, I note that the deceased’s head had been chopped off and severed from his torso. There must have been massive bleeding due to the said decapitation. It was therefore up to the Investigating Officer to explain to me as to whether there was any blood left in the deceased’s body at the time of postmortem examination, or if all his blood had drained out of his head and torso, leading to extraction of the deceased’s fingernail instead of a blood sample for DNA sampling and comparison with the exhibits that were recovered by the Police.
120. The Government Analyst’s Report exonerated the accused person from the blood-stained exhibits, namely the pair of blue jeans trousers which was recovered in his house and the blood-stained white bucket that was recovered in the culvert along the Mombasa-Nairobi Highway near Sisera Academy. The Government Analyst found no connection between the blood stains on the bucket with the blood stains on the blue jeans trousers, and the buccal swab taken from the accused person. From the evidence of PW7, the three (3) exhibits generated DNA of different male profiles. The Government Analyst was as such unable to determine if the blood stains on the blue jeans trouser and/or on the white bucket originated from the deceased.
121. In cross-examination, PW7 stated that there was no relationship between the fingernail with the buccal swab, and the DNA on the bucket and the pair of jeans trousers were not related to the buccal swab. From the Report produced by PW7 dated 16th June, 2017, there was no evidence connecting the accused person to the blood stains on the blue jeans trousers recovered in his house, and the deceased’s finger nail, due to lack of proper storage of the fingernail obtained from the deceased’s body.
122. The last thing for me to address is the fact that the deceased ran away when the Police went to look for him at the gate of Agro Processors Ltd. Running away from the Police could be evidence of a guilty mind but at times people are also known to run away from the Police due to fear. In the present case, when the Police went to the homestead of Kamanza Kateria where the accused person had a house, they started shooting and everyone ran away and slept in the bush that night. PW4 stated they slept in the bush out of fear. It turned out that in the process of shooting, a young boy was shot in the chest. Since the accused person did not disappear from his homestead for days, weeks, months or years, but turned himself in at the Police Station, I cannot conclude that he ran away upon seeing the police due to a guilty mind.
123. Having examined all the foregoing factors, I find that they weakened the prosecution’s case. The Police did not take up the investigations of this case with the seriousness it deserved. PW10 mentioned that there was a Police Officer who was to follow up on the cellphone number written on the wall of the accused person’s house. No evidence was adduced of the outcome of such a follow up, if it was ever done. By not being thorough in their investigations, the police left many loopholes in their case, which I hereby resolve to the benefit of the accused person.
124. Suspicion however strong can never form the basis of a conviction. The Court of Appeal in the case of Joan Chebichii Sawe v Republic (supra) stated thus:
“The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira vs Republic (Criminal Appeal No. 17 of 1998 (unreported), suspicion however strong cannot provide a basis for inferring guilty which must be proved by evidence.”
125. In conclusion, I find the accused person not guilty of the offence of murder contrary to Section 203 as read with 204 of the Penal Code. I hereby acquit him for the said offence. He shall be set at liberty forthwith unless otherwise lawfully held.
It is so ordered
DATED, SIGNED and DELIVERED at NAIROBI on this 22nd day of November, 2024. Judgment delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
The accused person
Ms Odhiang Advocate for the accused person
Ms Nyawinda – Principal Prosecution Counsel for the DPP
Ms B. Wokabi– Court Assistant
Ms Bebora Mwaka – Court Assistant.