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JudgmentREPUBLIC VERSUS EDISON BUKA MWAGAWE AND OTHERS35 min read

REPUBLIC VERSUS EDISON BUKA MWAGAWE AND OTHERS

High Court at Mombasa High Court · · Wendy Micheni


Introduction

  1. The 4 accused persons were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence as per the information dated 6th July, 2017 being that on 29th day of June, 2016 at Mbuyuni area of Maereni Location, Rabai Sub – County within Kilifi County jointly murdered LENNOX KAI LWEMBE.

The Prosecution case

  1. PW 1  WAS  Saumu Kadzo Charo, a resident of Tabu Sub – Country in Maereni Village. She told the court that the deceased Lennox Kai Lwembe; he was her husband. That Edison Buka Mwagawe, A1  was her nephew, the son of her brother in law.  James Buka Beja alias Modi Masha  the 3rd accused was her uncle and Julius Chengu Makemba the 4th Accused  her brother in law.
  2. PW 1 estified that on the 29th June, 2016 at 8.30 am; she was inside her house with her children ; Riziki,  16 years old, Farida aged 10 and Fauzia who was 6 years old. Her  late husband was also in the house, cooking while the children were studying. Her husband finished cooking and ate food with their children. Since the witness was sick she did not eat. Her husband told her that even though there was a wake at their homestead, he would not go because he was tired as he had come from Mariakani where there was a land case.
  3. According to the witness, the funeral wake was for Peter Makemba, her brother in law. Her husband told her that he wanted to sleep and before  he slept, he got up to go to the toilet . He had to bend so that he could get out as their house was Makuti thatched.
  4. That Her husband met the 1st Accused who was holding a jembe in his hand. The 2nd Accused was with him A1, at the door way. THAT the 1st Accused person attempted to cut her husband but he missed as he, the  husband, got back into the house. The 1st Accused person followed her husband into the house and the 2nd Accused person stood by the doorway.
  5. PW 1 told the court that the 1st Accused hit her husband on  the back of the head then Chengo (the 4th Accused) who had been standing outside the house came into the house and hit her husband with a pestle. She told the court that there was solar light from the neighbour’s house where the funeral wake  was going on and  also in her house, which was just one room ,they were using a tin lamp. She was therefore able to see pestle, which she identified in court, as the one that she saw the 4th accused ,Chengo holding  on the night and the one he hit her husband with
  6. That her husband fell down and the food he had eaten was coming out through his nose. Blood was oozing out from the injury on his head. He called out to Riziki and Farida as he took his last breath.  She screamt  but nobody went to their house and so she ran to the village elder’s home and informed him what had happened.
  7. PW 1 was accompanied by the village elder  back to the scene. They found the neighbours and the chief had gathered around the house and her brother in law had called the police. Then the  police came to the scene and took away her husband’s body. The following morning police officers from Mariakani came and picked her and they went to Mariakani Police Station.
  8. She added that  one Peter Makemba had died in Mandera where he was working as a  Kenya Defence Forces Soldier, and the 3rd Accused started   telling the 1st Accused and 2nd Accused that it was her husband who had bewitched  the said Peter , her brother in law. That was the genesis of the family disagreement.
  9. She added that there was also a land dispute between the deceased and Rajab who was a son to her brother in law called Shimba.

  1. PW2, Mjabe Tange, was  the chief of Maereni Location. He recalled that on 29th June, 2016 he was at  home at 8.40 pm , when he received a phone call from Rajils Mwaguwe who informed him that Kai had been attacked by unknown people at his house and his state was bad. He arrived at Kai’s house at 9.10 pm, and found villagers had surrounded the house. He found the deceased on the ground outside his house. He was bleeding profusely from the head. He called the deceased wife’s Saumu to ask what had happened; she told him that there were people who attacked the deceased and cut him.
  2. When he asked her if she had identified any of the attackers, she told him that she had identified the 1st Accused. The witness decided to make a phone call to the police station, but by the time the police arrived at the scene the deceased was already dead.
  3. THAT when he arrived at the scene, the deceased was still alive but was groaning. The police collected the body and took it to the mortuary. The deceased lay near the door to his house. That the deceased lived with his wife and children. The deceased wife told him that the  the deceased was attacked in his house but later removed  out of the house. The 1st , 3rd and 4th accused persons were known to him. The 2nd Accused was not known to him. The deceased had not reported any complaint against the accused persons to him.
  4. When cross examined he stated that the deceased was known to him as he hailed from the same village. He was not aware of any dispute between the accused persons and the deceased. He did not witness the attack. The witness told the court that his house was around 200 meters from the deceased’s home. There were alternative lights but not electricity. There was no funeral near the deceased’s house. The person who called said that unknown people attacked the deceased. He got information from the wife of the deceased. The witness used a torch for ease to see the injuries sustained by the deceased. He found the deceased outside the house.
  5. PW 3 was Riziki Kai, a Form 4 student at Kambe Secondary School . She recalled that on 29th June, 2016 it was 8.30 pm she was with her father, mother and sisters namely Farida Kai, Fauzia Kai. Her father was the deceased herein. They were preparing to sleep but there was some noise from a nearby funeral wake where there were people talking in loud voices
  6. That it was her cousin brother, Peter, who had died in Mandera. Then they heard noises and her father went out, while she remained in the house. Then her father came back to the picture,  and the 1st and 2nd Accused followed him into the house. Her father wanted to escape but Edison pushed him. Her mother got out and found the father had fallen and the 1st and 2nd Accused thought her father had died and they escaped.
  7. That  Edison had alleged that her father had bewitched Peter , her cousin. That when her mother went to call the village elder, she took her two sisters and left the house. The village elder came and found her father and he made a phone call to the chief. She told the court that her father was hit on his head with a jembe. That the place was well lit with the tin lamp and outside there were lights from the funeral wake. This enabled her to identify the 1st and 2nd Accused persons. She identified the 1st and 2nd Accused person in court.
  8. PW 3 told the court that Buka and Chengo , the 3rd and 4th Accused  persons ,were known to her. That before her father died, it was alleged by a neighbor’s family that he was bewitching them. When Peter died in a road traffic accident in Mandera , Edison and  Mrira sent word to her father who said they will kill him. That the neighbours who were peddling rumors that her father was a wizard were not their relatives. When her father died they were in Class 5 at Maereni Primary School. PW 3 told the court that her father was paying the school fees.
  9. When cross examined she stated that her father was a farmer and he had his own land. She did not know if the land dispute was dealt with in court. The dispute was not on the land they resided on. She did not know what was decided in court. She recalled that Edison was wearing overalls but she could not remember its colour. She was with the siblings in the house during the incident. She could not remember the names of the neighbours who alleged that her father was a wizard. The trial was concluded and the suspects given custodial sentence. Her father had a difference with the person he took to court.
  10. PW 3 told the court that there was a funeral in the neighbourhood. It was not possible that her father was attacked by other people. She told the court that it was the 1st and 2nd Accused. Her father was injured on the head. Her father was attacked outside and inside the house. She saw the 1st and 2nd Accused persons attack her father. It was the 1st Accused who was armed with the jembe.
  11. PW 4 Dupin Mwamtitsi Chengo, told the court that the deceased, his elder brother was his closest neighbor. His house was 200 meters from his house and was well known to him. On 29th June, 2016, he recalled that they had a dispute with Mzee Samuel Ngala and that was due for determination. At 8.30 pm a young man called Dena came to him and reported there was a woman crying at the path to their house. He told Dena there was a funeral in the direction of the cry as there was a man Peter who had died.
  12. PW 4 told the court that on arrival at the house he found  the deceased had fallen and he had a cut on his head. He was not bleeding profusely on the head; he had vomited and was unconscious. They made a phone call to the chief and he came but he arrived after the deceased had passed on. He was amongst those who arrived at the scene first. The attackers escaped with a jembe.
  13. The witness recalled that on 15th July, 2015,   the deceased went to stay at his house because Edison Buka and Mrira used to go to his house at night with a view to attack him. They alleged that the deceased was a wizard. The 3rd Accused alleged that the Jumwa was a wizard and they chased him away.  The 3rd Accused wanted to attack Jumwa with a panga.  Jumwa came to lodge at his place. They escaped because they feared they would be killed. They warned the accused persons but the accused did not heed to their warnings.
  14. According to the witness, when his father died, his mother got married to the 3rd Accused’s father. The 3rd Accused was his step brother. The 1st Accused was the son to the 3rd Accused. The 2nd Accused was his uncle’s son. After the murder the deceased, the accused persons escaped. The 3rd Accused’s wife was arrested when the husband escaped.
  15. PW 4 told the court that the accused persons committed the heinous act the village shook. The  deceased had no differences with anyone,  and they had asked the accused persons not to commit any offences but they insisted on killing the deceased. There was a land dispute, Mzee Ngala was satisfied with the verdict of the dispute. The allegations of witchcraft started prior to the death of the police officer – Peter who died in Mandera.
  16. When cross examined he stated that he did not witness when the deceased was killed. There was a road that passed between the two homesteads. The land dispute was between the deceased and Samuel Ngala. It was on the day the deceased went to pick the verdict of the land dispute at the District Office in Rabai that he was killed at night. It was established that the land belonged to the deceased. The said land was being used by them. There was a man by the name of Abdi who was using the land in dispute. He did not witness the deceased being beaten with a rungu. The deceased had reported the accused person to the chief. The deceased was accused of witchcraft by the neighbours who were charged and acquitted. It was not that the murder occurred due to the land dispute. It was not true that the neighbours who were charged were the ones who killed him.
  17. According to the witness there was a letter which was addressed to the accused persons to move out of the area. The letter was issued after the murder. He told the court that he was involved in the arresting of the accused persons. It was the entire family which was involved in the search of the suspects. After Kai had been murdered the accused persons escaped. Prior to the murder the 1st and 2nd Accused persons stated openly that they wanted to kill Kai because he was a wizard.
  18. PW 4 told the court that he did not hear the names of the 2nd, 3rd and 4th Accused being mentioned by witnesses.
  19. When reexamined he stated that the letter demanding that the accused persons vacate was served on them by the chief but the accused persons were not served. There were accusations that Kai engaged in witchcraft. He did not pursue the case and did not follow up.
  20. PW 5 Ruwa Temo, told the court that the deceased was his neighbour. He recalled that on 21st June, 2016 he was in the farm when his wife came and told him that a young man Peter who had gone to Mandera had died. His wife told him that the vehicle Peter was travelling on went over an explosive and they got burnt. On 26th June, 2016 at 8.30 am he was going to his farm when he met one person known as Modi holding a panga. He identified Modi as the 3rd Accused. The 3rd Accused told the witness that Peter was bewitched by Kai and that they were not going to bury Peter until they kill Kai
  21. The witness told the court that he resisted from asking why the 3rd Accused person why he was talking the way he was because he had a panga. The utterances were made on Sunday. On 29th June, 2016 at 8.30 pm he was going home when he heard the deceased’s wife crying “Edison umeua bwanangu amefanya nini? Edison bwanangu amekufanyia nini?”. The witness identified Edison as the 1st Accused in the dock. When he arrived  at the deceased home, the witness found him  having fallen, facing down and he had a cut on his head. He found a crowd of people and there was a funeralwake nearby and those who were at the funeral responded to the cries of the deceased’s wife. There was moonlight. There was also light from the house where there was the funeral.
  22. PW 5 did not see the jembe used to cut the deceased. The rungu was in court. The same was used to hit the deceased. He heard the 3rd Accused say that Kai had to be killed before Peter was buried. That was on a Sunday. On Monday, Kai was killed. He used to see the suspects everyday on a daily basis. The deceased and the accused persons were his neighbors. According to the witness it was the 3rd Accused person who came up with the idea that the deceased was a wizard. The current MCA tried to resolve the issue.
  23. When cross examined the witness confirmed that Abubakar Abdi belonged to the family of the accused persons. He had a land dispute with Abubakar Abdi which was resolved. He did not witness the murder and neither did he see the accused persons commit murder.
  24. PW 6 Polycarp Chwende, told the court that the deceased was his cousin and his neighbour. On 29th June, 2016 he recalled that about 8.45 pm he was at home preparing dinner before he could retire to sleep. He heard screams on the lower side of their house. He cooked the food and rushed to go see what had happened. On arrival he found the deceased had been cut with a jembe and  was lying on the ground at his home with a cut on the head bleeding. When he inquired from the wife and the 1st born daughter of the deceased,they told him that it was the 1st Accused who had cut the deceased. THAT Edison was in the company of others who had escaped. The deceased was still alive when he arrived at the scene groaning loudly.
  25. The witness tried to seek for help but everyone had run away from light which was at the door where the deceased had fallen. He decided to call Mzee Chengo who came back with the chief. Mzee Chengo called Samson who helped to take the deceased to hospital. Samson came with the car but was informed that the deceased had passed on. The chief made phone calls to the police and reported the incident and the police came and collected the body of the deceased to the mortuary.
  26. He testified that on 28th June, 2016, he had  met with James Buka who was saying that the body of the officer would not be buried until the deceased was killed and was buried as well.
  27. The witness warned James Buka to stop making such utterances as it was out of taste. James became angry and told the witness he was siding with witches, he could not heed to his warning less than a  week later Lennox was killed. That the following day on 23rd  June, 2016 Lennox went to him  to ask him to get someone who could buy his coconuts as he wanted to the proceeds for the absolution of the allegations of witchcraft against him. They agreed to talk about the issue on what he had heard after the burial of Peter but the same did not happen.
  28. PW 6 told the court that he did not have a grudge against the accused persons until when the deceased was killed. The 3rd Accused was the son of the deceased’s younger brother. When Peter visited he gave people money and even gave Kshs 200/- to Kai to buy soda. Kai was not the only person who was given the money. Peter gave money to other villagers. The 2nd Accused once stole coconuts from Kai the deceased but the witness spoke to Kai and beseeched him to leave the 2nd Accused alone. When he reported the matter to the police Kai withdrew the theft of his coconuts.
  29. PW 6 told the court that it was the 3rd Accused who was inciting the young men to harm the deceased.  They were conducting protests at the deceased’s house with pangas and rungus. Some of the men who participated in the demonstration escaped and were at large. Lennox reported the issues to him as he was the chair of Nyumba Kumi  and the witness referred the matter to the chief.
  30. According to the witness, the deceased said 2 of the suspects cut him with a jembe; when he fell, one suspect took a mche and used it to beat him on the ribs and back. He identified the accused persons in court. The 3rd Accused was the one who instigated the murder of the deceased. The 3rd Accused was the son of the 1st Accused; he taught them how to execute the murder.
  31. When cross examined he stated that he was at the scene of the murder. He did not see the 1st, 2nd and 3rd Accused kill the deceased. The 3rd Accused was not in the group of killers. The 4th accused was present; this he was told. There were people who went underground so that they would not be called to testify. What he had said in court was what the deceased’s wife told him. He said she did not see the 3rd Accused.
  32. PW 7 Rajab Ali Mwagawi, told the court that Lennox Kai the deceased was her uncle. He died in 2016. The deceased lived in the same compound in Kambe village, Maereni location. Her house was 100 meters from the deceased’s  house. He was staying with his aunt known as Saumu who was his wife. The deceased had children staying with him. On 29th June, 2016 at around 8 pm she was in the house after having dinner when she heard unusual screams within the homestead. The screaming signified danger. She sent her young brothers to go and check what was happening . Chengo and some other young men.
  33. The witness told the court that when they returned they told her that her uncle had been attacked and was badly injured. She told the court that she rushed to the scene and found her uncle had fallen on the ground bleeding. She used a touch to check the state of her uncle and where he was bleeding from. Her uncle fell at his doorstep; he was bleeding from his head. She was only told that the uncle had been attacked by her uncle’s wife. The wife was able to identify Edison and Mrira as the attackers. She made a phone call to the chief who came to the scene and he made phone calls to the police who went and collected the body.
  34. PW 7 told the court that Edison was known to her; he was the son to her elder cousin. His father was her namesake. Chengo was also her uncle’s son. The three accused persons were from one family. The accused persons alleged that the deceased was a wizard. They had a funeral, as her cousin brother ,a police officer , had an accident in Mandera and it was alleged that her uncle had bewitched him. She identified the accused persons in court.
  35. When cross examined he stated that Samuel Ngala was known to her as  he was a village elder. There was a land dispute between the deceased and the family. The land was a family land and was currently being used by her aunty and the witness’ mother. There was a decision which had been made on the dispute. She was not present when the murder occurred. It was the deceased’s wife who gave her the names of the alleged assailants.
  36. The witness denied  having given Kshs 6,000/- to the police to cause them to arrest the suspects and she was not aware that other people attacked the deceased.
  37. PW 8 Dr. Abdul Aziz Mohamed, attached at Coast General Referral Hospital produced the  post mortem report  in repect to  Lennox Kai dated 8th July, 2016 on behalf of  Dr. Muchiti. The history presented by the police was that the deceased was murdered on 29th June, 2016 on suspicion of being a wizard. The general observation was that the black coat and white t-shirt soaked with blood. The body was male, African with good strong physique and height of 170 centimeters.
  38. On the external appearances, the witness stated that there were several sharp cut wounds on the head and bruises. On the internal appearance there were several cut wounds on the head, fracture of the skull with exposed brains. The conclusion was that the death was caused by traumatic head injury secondary to assault. He produced the report as prosecution exhibit 2.
  39. When cross examined he stated that his colleague conducted the post mortem. The colleague had been transferred to Kilifi. The report had been stamped on 14th July, 2016. The death was a as a result of a traumatic head injury secondary to assault. The description of the injuries were multiple cut wounds on his head.
  40. PW 9 was CPL Ali Galole, attached to Central Police Station, Mombasa formerly from Rabai Police Station – Bondora Police Post. He recalled on 29th June, 2016, while at Bondora Police Station, a murder was reported by Mr. Martin Mjape, a chief of Pangoni location within Maereni Village. He accompanied the chief to the scene of the incident with PC Koech. At the scene there was the body of Kai lying at the doorstep of his house with a deep cut on the head. There was a club lying next to the body of the deceased. He identified the club in court marked as MFI – 1.
  41. PW 9 told the court that DCI officers from Rabai collected the body and escorted it to Coast General Hospital Mortuary pending the Post mortem. The club was kept at Rabai Police Station and he produced it as Prosecution exhibit 1.
  42. When cross examined he stated that he did not witness the incident.
  43. PW 10 PC Khangu, currently based at DCI Headquarters – General Investigation Unit. He was the investigating officer in the case. Initially he was based at Mariakani where DCI Kaloleni had its headquarters. He was instructed by CIP Libese, the DCIO to take over the murder investigations which was being conducted by officers at the Police Post; this was in 2016. When he took over the matter there were statements that had already been recorded. The murder was in respect to Lennox Kai. From the statement of Saumu Kadzo Kai, the wife to the deceased and the daughter he got the knowledge that the deceased, on 29th June, 2016 at around 8.30 pm went out for a call of nature and he was attacked by Edison Buka using a jembe and he fell back into the house.
  44. According to PW 10, Buka said that the deceased had bewitched Peter, a relative of theirs that had died in Mandera. The body was examined and the cause of death determined. He produced the club as Prosecution Exhibit 1. The suspects ran away but later reported to the police station and they were arrested.
  45. When cross examined he stated that he conducted the investigations herein. The 1st, 2nd and 3rd Accused persons had already been arrested after they presented themselves at Bondora Police Station. He could not tell if the parents had been arrested. He understood that the deceased was murdered due to allegations of witchcraft. The witness learnt that the deceased had been previously accused of being a wizard. There was a funeral on the night of the attack. There was a mob outside the house of the deceased. One Chengo used a club to hit the deceased on the head occasioning severe injuries. The wife and the daughter of the deceased shouted for help and the neighbors responded.
  46. PW 10 told the court that they left the deceased lying down outside the house. He was told there was light from the Koroboi lamp in the house which enabled the identity of the 1st Accused. There was also solar light from outside which enabled the family of the deceased identify the accused persons. The chief called the police who came to the scene and moved the body to the mortuary. After the death of the deceased, the accused persons fled and when the deceased fell inside the house they pulled him outside.
  47. The witness told the court that the deceased had been previously been accused persons on allegations of witchcraft. The accused persons were apprehended after one month of the incident.

The Defence Case

  1. DW 1 Edison Buka Mwagawe, the 1st Accused told the court that he lived in Kambe – Rabai, Kilifi County. He operated a boda boda. He had not married; his family were his parents. The witness told the court that he was 30 years old. He knew of the charges facing him; it was in respect to the death of Lennox Makemba on 29th June, 2016.  In the year 2016, he was aged around 23  - 24 years old. He knew the deceased, who was his grandfather. They resided in the same home. The deceased was from the same clan. The deceased was not his father’s father.
  2. DW 1 told the court that he recalled the day of the incident but could not recall the time. He was on duty at the Makindi stage where he operated the boda boda. This was quite some distance away from the homestead. His mother Elizabeth Baraka was the one who telephoned him. She asked where he was at the stage and she told him to go home explaining that there was a problem. She told him that Babu Kai had been attacked and killed. He went home and found indeed his grandfather had been killed. There were many people there.
  3. DW 1 stated that the body was in the compound in the front of his house. The people present were their chief, their assistant chief, Rajab Abdi and PW 3. That time they were also mourning and funeral preparation for Peter Makeba who was an officer and had lost her life in Mandera. He spoke to Petris and Boniface. They continued to stay there until came at midnight to collect the body. He recalled PW 1’s evidence when she mentioned him.
  4. DW 1 told the court that he had no differences with the deceased. It was also not true that the wife of the deceased saw him hit the deceased with a jembe. The only person the witness had an issue with was Rajab; he did not live with them. He was present all along. No one alleged that night that he was involved in the murdering of the deceased. He was not arrested; they buried the deceased on Saturday and on Sunday the mother was arrested. He went to the police station. It was his sister who informed him about the mother’s arrest. His father was also went to the police station.
  5. He met Rajab who gave evidence, then Yumin, Juma Piano and Alice Kigano. They were seated outside; he saw his mother. Rajab came and gave the police money after which Rajab told the police to lock the witness up. Then they released the witness’ mother. He was taken to Mariakani Police Station and eventually charged.
  6. When cross examined he stated that he received a call from his mother while at the stage. It was not true he was at home and he heard noise from the house. These were allegations. They had not planed to kill the deceased. He did not escape from the home. He did not go to Miritini. His father never came to call him.
  7. DW 2 Elizabeth Mathaka Baraka told the court that Edison was his child – the 3rd born. She recalled the night of 29th June, 2016. He was at home. Then at 8 pm the events started. She had not slept she was outside. Then the incident happened. The old man for the accident. Then he got killed. She did not witness what had happened.  She was at home outside when together with the deceased. The deceased’s house was abit far to the gate – 30 40 meters. She never heard the commotion.
  8. According to the witness Edison operated a boda boda. He was at a road.  She was the one who called Edison. When cross examined she stated that she was Edison’s mother; he was at the road.
  9. DW 3 Elias Mrira Kebo, the 2nd Accused person told the court that he was 24 years old and married with one child. He knew the deceased who was his uncle – his father’s elder brother. On the night of 29th June, 2016, he was at his grand mother’s home. Then he was a student at Kambe Secondary School in Form 1. He was a day scholar. So his mother left home with him. He was not there when the incident occurred. To go to his grandmother’s house one had to take a boda boda and pay Kshs 100/-. His father was Michael Kabo. His father and the deceased had a good relationship. He also used to relate well with this uncle. It was his mother who had told him about the death of Lennox being that she was coming from a Funeral in Mombasa.
  10. His mother attended the funeral on Saturday. She spent the night there. Then on Sunday they were told that his mother had been arrested.
  11. When cross examined he stated that his mother was Prisca Maye; she was the one who told her about the death. It was not true that he was at home.
  12. DW 4 Kahozi Lozi Chizi, told the court that the 2nd Accused was her grandson. The night of 29th June, 2016, she was with her grandson and he did not leave the house that night. She was with him.
  13. DW 5 Prisca Kazungu, she told the court that Elias was her son; DW 4 Kahozi was her mother. She was married. She resided in her mother’s house and worked in Mombasa. On the night of 29th June, 2016, she was at work in Mombasa. Her son Elias was living with her mother. It was Elias’ younger brother who alerted her of the death of the deceased.
  14. When cross examined she had come to court to sat that Elias used to live with the grandmother. She did not know what happened that night.
  15. DW 6 James Buka Beja, the 3rd Accused told the court that he was a farmer and at the time of his testimony was 64 years old. The deceased was his elder brother. He recalled on 29th June, 2016; he was not at home. They lived in the same compound at home. He stated that he was at work in Mtwapa; he was a musician. He was not aware of the incident. The witness got to hear about if after 3 days. He was arrested when he went to find out why his wife had been arrested. His wife was Elizabeth. She was arrested from home and taken to the police station. He was not told why he was arrested. He could not recall the evidence of PW 5. On the allegation of the bad relationship with the deceased, the witness stated that those were false allegations. Even PW 5’s allegations that even his evidence that they separated with him at 9 pm was mere allegations.
  16. His wife was Elizabeth, she had given evidence. It had been alleged that she called. Those were all allegations even that he said that the deceased must die before the bury the person who passed.
  17. DW 7 Julius Chengo, the 4th Accused told the court that he does casual labour in construction sites. He knew the charges and also knew the deceased. He did not know the allegations that he participated in his death. He did not recall his death. He knew Saumu (PW 1); he knew what mchi was. Its name in English is a pestle. He knew of the death but not the actual death. The witness heard that the deceased was killed.
  18. According to the witness it was his father who told him that the brother had died. He had gone to the shops to buy flour. When he went back he found the body there. He found the area chief and same elders at home. The shop is the same place they pay Kshs 50/- on boda boda. It was some distance but not too far. He had no problem with the deceased. He had no problem with Saumu. She was cross examined and she said that she did not name the witness amongst those who killed the deceased.
  19. DW 7 told the court that he did not participate in the death of Lennox.

Analysis and Determination

  1. Considering the testimonies of both the prosecution and defence it was now upon this Honourable Court to determine whether or not the offence of Murder had been proved beyond reasonable doubt.
  2. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. The accused persons herein face the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased. Section 203 of the Penal Code provides the elements of the offence as follows: -

“203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

  1. The question that arises is whether the prosecution has proved the death of the deceased; that Accused persons caused the death and that they actuated by malice. In the case of Republic – Versus -  W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari – Versus -  Republic [2014] eKLR, as follows:

“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”

The death of the deceased

  1. The post mortem from Pex 2 filed by PW 8 Dr. Abdul Aziz Mohamed dated 8th July, 2016 and stamped on 14th July, 2016 revealed that death was as a result of a traumatic head injury secondary to assault. The description of the injuries were multiple cut wounds on his head.
  2. The deceased Lennox had been healthy and he cooked for his family that night as the wife was dead. He died from injuries he sustained inside and outside his house that evening. There were no other intervening circumstances as he did not even go to hospital.  No one alegged that the deceased attacked or provoked him and so we can not rely on self defence. So clearly this was an unlawful death.

Proof that accused persons committed the unlawful act which caused the death of the deceased

  1. PW 1 and PW 3 identified the accused persons  who attacked the deceased and hit him with a jembe and a pestle. Being that the deceased and the accused persons were related  the witnesses knew the accused persons. The incident took place around 8.30 pm but both eye witnesses said there was light from the tin lamp and also from the solar lights next door where the wake was on going.  I find that there existed conducive conditions for recognition of the Accused persons.
  2. From the foregoing, I find that the  A1, A2 and the 4th Accused persons were properly identified.  The roles that each of them performed were also articulated.
  3. The  defence ,by the accused persons  that they were not in the vicinity of the scene of crime does not cast doubt on the well corroborated prosecution case that the 3 accused persons were the ones that caused the head injury that led to the death of the deceased. A1 got into the house first and he hit the deceased with the rungu , while accompanied by A2 who likewise hit the deseased  before A4 finished him off with the peastle.
  4. As for A3, no one said he was present on the fateful night.  His contribution appears to have been stating that the deased was a wizard who must be killes before the KDF kin could be buried.
  5. He appears to have had the intention and he incited others , but for an offence of murder we must  all the ingredients.  That takes us to the intention.

Malice Aforethought

  1. Having found that the prosecution has proved the actus reus, the issue for determination is whether malice aforethought  was present. The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves any one or more of the following circumstances:

“(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;

(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

(c) An intent to commit a felony;

(d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

  1. In order to arrive at  a conviction on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law dictionary, 10th Edition malice aforethought is defined as:

The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).

  1. When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under section 202 Penal Code which is punishable under section 205 Penal Code by a term of imprisonment extending up to life.
  2. In “Morris Aluoch – Versus -  Republic Cr. Appeal No. 47 of 1996 [1997] eKLR)”, the Court of Appeal cited the case of “Rex – Versus -  Tubere S/O Ochen (1945) 12 EACA 63” with approval where it was in stated as follows:-

“If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days later.

  1. In this case, the motive was known.  The deceased Lennox, was alleged to be a wizard who had somehow used his skills to cause a vehicle to run over some land mines in Mandera, and as a result  one Peter had died.  The main peddler of this story was said to be A3. The team then set out to eliminate the wizard.
  2. PW 1 told the court that the 1st Accused hit her husband at the back of the head then Chengo (the 4th Accused) who had been standing outside the house came to the house and hit her husband with a pestle. There was solar light from the neighbours house where the funeral was in her house which was a one room they were using a tin lamp. She saw a pestle in court; she told the court that she knew it since she saw the 4th accused Chengo holding it on the day he hit her husband. At that time she was screaming and her husband had fallen down. The food he had eaten was coming out through his nose. Blood was oozing out from the injury on his head. Her husband called out to Riziki and Farida as he took his last breath. Nobody went to their house; she ran to the village elder’s home and informed him what had happened. PW3 also said she saw A1 and A2 attack her late father. They had the common intention to kill him as pw5 testified had heard of the allegations and he tried  to stop the perpetrators to no avail.
  3. PW 5 told the court that the 3rd Accused told the him that Peter was bewitched by Kai and that they were not going to bury Peter until they kill Kai. This evidence was corroborated by PW 2 and PW 4 who stated that they heard on different occasions the accused persons threatening to take the deceased’s life. From the evidence on the record, it is evident that the accused persons intended to kill the deceased.
  4. There is no doubt that being  there were wrangles between the accused persons and the deceased most especially putting into consideration that the 3rd Accused kept insinuating that the deceased was a wizard and the land dispute that had since been resolved.
  5. We however  note that A3, was not placed at the scene on this fateful night. He may have had the intention, but he is not seen actuating the idea.
  6. The accused persons have raised the defence of alibi with the 1st Accused stating that he was at the stage being that he was a boda boda rider but he did not call anyone who saw him at the stage at that time. The 2nd Accused alleged that on the night of 29th June, 2016, he was at his grand mother’s home and in as much as the grand mother testified to that the family of the deceased places the accused at the scene. The 3rd Accused person had no alibi and the 4th Accused person recalls that he had gone to the shops to buy flour. When he went back he found the body there.
  7. When an accused person pleads an alibi the onus is on the prosecution to disprove the same. This is even when this defence is raised for the first time while the accused is giving his defence. In the  case of “Victor Mwendwa Mulinge – Versus -  Republic [2014] eKLR” the Court of Appeal rendered itself thus on the issue of alibi:

It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see KARANJA V R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.

  1. In spite of the contention by the1st 2nd and 4th  accused persons that they were not at the scene, I find that the prosecution had adduced evidence that displaces the alibi defence.  They were properly identified  by PW1 AND 3.
  2. In the instant case, malice aforethought was established. I therefore, find that the prosecution has proved the offence of murder against the  1st 2nd and 4th accused persons
  3. In respect to A3, EVEN though he made the witchcraft allegations and incited others, he was not placed at the scene.

Conclusion and Disposition

The end is that the prosecution has proved its case against EDISON BUKA MWAGAWE- A1, ELIAS MRIRA KUBO -A2 AND JULIUS CHENGU MAKEMBA -A4 , beyond reasonable and find them guilty as charged OF THE OFFENCE OF MURDER  contrary to section 203 as read with section 204 of the Penal Code and I accordingly convict them.

THE case against A3 d,JAMES BUKA BEJA alias MODI MASHA did not meet all the parameters and accordingly he is acquitted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code,

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS  20th DAY OF FEBRUARY 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

NGIRI. MS CHEROP AND MR SIRIMA  FOR THE STATE

Accused persons and their advocates

    REPUBLIC VERSUS EDISON BUKA MWAGAWE AND OTHERS REPUBLIC VERSUS EDISON BUKA MWAGAWE AND OTHERS