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JudgmentREPUBLIC VERSUS HAMISI HARE KARISA and SAID MWAMUYE MWALUNGO33 min read

REPUBLIC VERSUS HAMISI HARE KARISA and SAID MWAMUYE MWALUNGO

High Court at Mombasa High Court · · Wendy Micheni


Introduction

  1. The 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 19th January, 2018 being that on 7th day of January, 2018 at Nyali Centre Area in Kisauni Sub – County, within Mombasa County jointly with others not before Court murdered DAVID WOKABI KAMAU.

The Prosecution case

  1. PW 1 was Grace Mukame Ndungu, the deceased wife of seven years, learned of the incident on 6th January, 2018 at 5 am she received a phone call from an unknown number asking her if she knew the deceased . The caller told her that her husband had been involved in an accident and that she should go to Jocham Hospital. At the gate she saw her husband’s car KBZ 700W parked at the parking lot; there was no indication of an accident from the vehicle. She entered the Hospital and found David screaming but he could not talk. He was lying on the bed.
  2. PW 1 told the court that deceased was transferred to Agah Khan Hospital on the request of the doctor in Jocham where he was admitted in the ICU for 7 days. On 14th January, 2018 the deceased died. All those days he never intimated on what really happened to him. A post mortem was done at Agah Khan Hospital Mortuary; the report was in court MFI 1. The post mortem established that the deceased has severe blunt injuries to the neck and could not have survived. The treatment notes were also availed marked as MFI 2.
  3. She told the court that she later learnt from her husband’s friend that they were together and that when the deceased was leaving there was an alteracation at Nyali Centre Parking Lot and he was beaten by the security Guards at Nyali Centre. When cross examined she stated that what she had said, was what the 3rd parties. She did not have the full names of the  person who called her from Jocham Hospital. The deceased had gone to meet a family friend called Dennis..
  4. When reexamined she told the court that  she witnessed was that  her husband was at the Jocham Hospital and Agah Khan Hospital from the 7th to 14th January, 2018 when he died.
  5. PW 2 was Yvette Adhiambo Omollo, a credit officer at Micro Finance Company,and the deceased person was known to her client at Ngao Credit. On 7th January, 2018  she was with the deceased at Tapas Club at Nyali Centre and that around 3 am the deceased offered to give her a ride home.
  6. When they approached the parking lot the deceased decided to relieve himself (urinated) in the parking area and 3 or more security guards try to stop him from doing so. She urged David not to argue with the guards but when he entered the vehicle and was trying to leave; the guards closed the barrier at the exit  of the mall. That was when David called her and after that the guards started beating him with their rungus. One askari told her not to interfere or else they would beat her as well.
  7. PW 2 told the court that the askaris were beating him as if he was a thief. The deceased was hit severely on the head while the deceased tried to shief himself but the guards were too many. When they got to the hospital the doctors showed them the cuts on the head. There was a guard who came to them and asked where the panga but she did not see the panga. The deceased was beat up until he fell and was bleading and having seizures. Many people came to the scene after hearing  the commotion and one person realizing the deceased was in danger told her that if he left the deceased he was going to die.
  8. She told the court that she drove to Jocham and the deceased was admitted. While at Jocham his friends went to the police station to report the incident. She did not have her phone it had been stolen in the alteracation. She used David’s phone to call his friends. David was transferred to Agah Khan Hospital where he succumbed to the injuries a week later.
  9. When cross examined she stated that they were at Tapas from 10 pm to 3 am; they were drinking the whole time they were there and just having fun. When they left the club the deceased offered to take her home. Before they left 2 to 3 guards confronted the deceased while he was urinating.
  10. She could not recall the identity of the guards who confronted the deceased. A guard insinuated that they had a panga and she was aware that the deceased used a panga to slash the guard’s head. The deceased did not cut any of the guards. The guards’ action of killing were not justifiable.
  11. PW 3 Dr. Ngali Mbuko, a consultant pathologist confirmed that he conducted the post mortem on the deceased and he had the report in respect to David Wokabi Kamau as prepared on 17th January, 2018. He told the court that externally there was a bandage around the head which he removed and observed three stitched wounds that were lined on the top of the head at 6 cm, 4cm and 4 cm each. On the right knee he had three bruises. On the right side of the neck due to the medical reasons they had put tubes which had been removed. Internally he observed that the deceased had fractures on the skull which looked like had been caused by a blunt object. The brain was swollen; a condition known as autolysis. As a result of his examinationn his opinion was that the deceased died from a traumatic brain damage following severe blunt trauma to the head. He prepared a report which he produced as Pex 1.
  12. PW 4 Antony Njoroge, recalled that on 7th January, 2018 he received a phone call informing him that the deceased, the nephew to his wife had been attacked and was in hospital. He sent a friend of his to go see the deceased. On 9th January, 2018 he travelled to see the deceased who was in the ICU at Agah Khan in serious condition; the doctors told the witness they had placed him on an induced comma and had administered the necessary treatment.
  13. The witness got information that David had been attacked by known people  at Nyali Centre in Mombasa. On 14th January, 2018, he was in the course of transfering David when he got the information that David had become brain dead and the doctors had declared him dead. He travelled back to Mombasa and the pathologist showed them the injuries and fractures on the head. The face was swollen and his legs had soft tissue injuries. The major injuries were on the head. David was in his early 30s and the cause of his death was injuries to his head and brain.
  14. PW 5 Benson Kipngetich Mosonik, a business man in the business of the sale of motorvehicles recalled that on 7th January, 2018, he received a call that his friend and neighbour David Wokabi was involved in an accident at Naivas. His wife who was nurse of duty for the night shift at Mombasa Hospital called him to confirm the same.
  15. On inquiry about the incident ,he was told that the person who was beaten wanted to urinate at the parking lot hence the guards started beating him .These were the night guards from Solvit Security Guards Company. He  went there and asked for CCTV footage but the same was denied .He then went to Bamburi Police Station where he made a report and one Sgt. Yegon was seconded to him to accompany him to the mall. The CCTV footage was then availed and 4 guards identified by a lady working with Solvit Security Guards Company.
  16. The supervisor promised to recall the guards who were on night duty. When the night guards came the lady identified the ones she saw assaulting the deceased at night. They were told to go to the station and record their statement. From the CCTV footage , the incident happened at the exit gate. David was in the company of a lady. Those who were suspected to had committed the offence had not been found by the time David had died. Later two were traced and arrested and the other two disappeared upto the time of his testimony.
  17. The witness told the court that David was working with Stanbic Bank as a banker; he had a family a wife and two children 13 and 8 years old. He remembered the CCTV footage and the guards he saw assaulting the deceased and he identified them in court as the accused persons at the dock. They were armed with rungus when they assaulted David which they used in hitting him.
  18. When cross examined he stated that he went to inquire from Solvit Security Company what had transpired the previous night. He discovered that at Naivas Mall there were over 70 guards everynight. He was not aware of any other security companies offering their services at Naivas. He accessed the CCTV footage with PC Yegon and the supervior who showed them the footage. In the footage he saw four individuals assaulting the deceased but only two were in court. The other two had disappeared by the time David had died. He knew the 1st Accused was manning the entrance to Nyali Centre Mall; he saw him come from the entrance to the exit where the deceased was. The CCTV footage he saw was not in Court.
  19. PW 5 further stated that the CCTV footage did not show people cutting each other with a panga. There were ten guards on duty but only seven went back when the supervisor calleed them. None of the guards who were called back had any injuries. The guards who had assaulted the deceased were all from the same company. He was with the deceased on 6th January, 2018 during the day but not at night.
  20. When reexamined he stated that both the entrance and the exit were close to each other. He could not tell which of the guards were manning which gate and saw all of them assaulting the deceased. He made inquires onn what had happened he was told that when the deceased was told not to urinate. He did not see any sword being used when the deceased was being assaulted. The CCTV footage was at the Solvit Security Company Office.
  21. PW 6 Enoch Burundi Shami, was   a former employee of a security firm attached at Nyali Centre and now businessman but was doing business now. He recalled that on 7th January, 2018, he was at work at Nyali Centre where he was a security guard as back up. On the material day at 3 am, a guard known as Humphrey called them saying there was someone who had cut the a guard called Said Mwawuye. They proceeded to the scene and they found the Said had a cut on the left hand and he was bleeding. He was cut in the palm.
  22. PW 6 inquired on the particulars of the incident and he was told that the deceased was urinating at the car park and when he was told where he was supposed to go,  he had gone to his car and came back with a somali sword and cut Said.
  23. The witness called the supervisor Sammy Kanja and explained to him the incident and that one of the guards was cut by someone known to them as he was a manager at CFC Bank within the Nyali Centre Complex. The guards had detained the deceased and he told them to allow him leave.
  24. When the deceased was at the main gate leaving he alighted from his vehicle with a somali sword and he cut rope they used as a barrier. He heard vehicle hooting so they decided to go back to the main gate to establish why the vehicles were hooting. On arrival they found the deceased beaten, bleeding and was being carried to his vehicle. The guards told him that they snatch the somali sword from him when he cut the rope used as a barrier. They handed over the somali sword to him.  He decided to get to Nyali Police Station to male a report and also he reported to the supervisor.
  25. He took the guard who had been hurt to Hospital at Bombolulu. By the time the deceased was being carried to his vehicle he was bleeding from the head and was not talking. He showed the court the sword that was handed to him by the guards and it was marked as MFI 3; the exit barrier rope that which was made of manila material was marked as MFI 4.
  26. When cross examined he confirmed that there were many people at the gate and vehicles were hooting. All the guards were at the scene. He did not know the guards that beat up the deceased. He did not know why Humphrey and Jackson were not charged, the sword belonged to the deceased. It was Jackson who handed it over to him. The guards at the main gate stated that it was Mr. Kamau who cut the barrier rope which rope belonged to Solvit Security Company ahnd that he was the one who cut Said’s palm. It took about 20 minutes before they went back to the gate. The deceased had a deep cut on the head.
  27. PW 6 confirmed that he did not witness the incident. The deceased was drunk at the time of the incident and he was the one who took the 2nd Accused person to Hospital.
  28. PW 7 Sgt Anthony Yegon, attached at Muguga Police Station, Kiambu recalled that on 7th January, 2018 while attached at Bamburi Police Station at around 10 am PW 5 reported that his colleague David had been assaulted at Nyali Trading Center as he was leaving the Tapas Night Club by the Guards from Solvit Security Company and had been rushed to Jocham Hospital for 1st aid and transferred to Agah Khan Hospital for further treatment. They proceeded to the scene at Nyali Centre and found blood stains at the main entrance where the incident had occurred. He proceeded to Agah Khan Hospital where the deceaded David had been induced into a comma. Upon observation of the injuries he had sustained he had bruises on the neck and head injuries.
  29. PW 7 told the court that he later recorded statements of the witnesses. The allegations were that the deceased upon getting out of the club responded to a call of nature by urinating at the parking area. The guard who was manning the parking area confronted him and a commotion ensued between the guard and the deceased and deceased removed a sword from his car and in the process injured the guard on his left palm. The deceased was in the company of a lady friend who was seated in the car.
  30. Out of the commotion the security guards came to figure out ehat was going on and in the process the decessed was identified as a staff of the Stanbic Bank which was located at Nyali Centre. The deceased was cooled down by the lady friend and the guards. He got into his vehicle and proceeded to the exit point. Upon reaching the exit there was a barrier and he demanded for the barrier to be removed but the accused person refused to open it. This prompted the deceased to get out his vehicle Motor vehicle registration KBZ 700W Make Harrier white in color. As soon as he got out of the vehicle he was confronted by the said guards and subjected to serious bodily injuries and the sword taken away from him and used to inflict multiple injuries on the head.
  31. Upon investigations, the 2nd accused person reported to Nyali Police Station with Hare Karisa that he had been assaulted by the deceased. They went to report as an afterthough when they realized they had inflicted serious injuries on the deceased. On 10th January, 2018, the two accused persons were arraigned before Shanzu Coirt and charged with the offence of assault and causing actual bodily harm.
  32. On 14th January, 2018 at around 6 pm, the deceased succumbed to his injuries while undergoing treatement at Agah Khan Hospital. On 17th January, 2018 a post mortem was conducted by the Government pathologist from Coast General Hospital – Dr. Abok and the cause of death was established as severe head injuries. They managed to get the CCTV footage of that night where the offence occurred; the footage was taken for analysis. They also managed to obtain the sword and the rope used to close the main gate.
  33. The investigations showed that the accused persons acted inhuman and reckless in nature and caused serious bodily injuries that resulted to the death of the deceased. Upon getting out of the club the accused persons positively identified the deceased and they went ahead to assemble other guards and blocked him from getting out of Nyali Centre. The accused persons were on duty according to the secured duty register and comfirmed that indeed they were employees of the Solvit Security Company who were mandated to safeguard property and people within Nyali Centre.
  34. It was their duty to provide security to all in the Centre including the deceased who was even an employee of the Stanbic Bank branch within the complex. He produced the recovered sword as Pex 3 and the rope used as a barrier at the exit gate as Pex 4. He identified the suspected he arrested as the accused persons in the dock in court.
  35. When cross examined PW 7 told the court that he got information from the management at Nyali Centre and the suspectes that the centre was guarded by Solvit Security Company. The parking and entrance were being guarded by guards from the said company. He also got information from the Human Resource Manager at Solvit. His statement did not have information that there was dry blood stains at the exit of Nyali Centre. The information was in his covering report. Hamisis was the guard at the entrance and he was the one who confronted the deceased. A sword was recovered from Said, the 2nd Accused person which belonged to the deceased and he produced it to use it. The accused persons took the sword from the deceased. The 1st accused was posted at the entrance of Nyali Centre. There were about 6 guards who cme to the entrance/exit. The guards that assaulted the deceased were from Solvit Security Company as per the application letters he got from the Human Resource at the company. The exit was baricadded but he did not know the identity of the guard who did although he was from Solvit Security Company.
  36. PW 7 further confirmed that the 2nd Accused was assaulted during the commotion but his degree of injury compared to that of the deceased was not severe. The accused persons are part of the guards who closed the gate. It was the Accused persons Said and Hamisi who took the sword to Nyali Police Station. The sword was used in inflicting injuries on the deceased. There was an eye witness to the assault. The sword was not subjected to forensic analysis to confirm if it was used to inflict the injuries and the witness did not prepare an inventory on the recovery of the sword and the rope. Six guards responded when the alarm was raised but they did not inflict the injuries on the deceased. He did not know the names of the 6 guards but they were not captured in the CCTV footage.
  37. When reexamined he stated that the camera at the main entrance after the 2nd Accused squared and when he was being approached by the deceased. The 2nd Accused person was part of the people who barracaded the main entrance. He did not prepare an inventory for the recovered sword. The sword was taken to Nyali Police Station by the 2nd Accused when he reported that it was used in assaulting him. He investigated the incident with Sgt Patrice Lumbasi of the DCI.
  38. PW 8 Sgt Patrice Lumbasi, attached at the DCI Kakamega County recalled on 22nd January, 2018 while at the DCI Kisauni office, his DCIO Mr. Kisungu Josephat requested him to accompany him to Bamburi Police Station where an incident of assault was reported on 7th January, 2018 involving an employee at Stanbic bank at Nyali Centre. The said employee had succumbed to his injuries; a post mortem had already been conducted. At the police station the investigating officer CPL Yegon now Sergent had called to inform him that he had commenced investigations. PW 7 handed him the police file, CCTV footage and the flashdisk and the rope. The two suspects before court had already appeared before before Shanzu Court vide Case No. 64 of 2018 and were out on bond they were to appear for a mention on 25th January, 2018 where the two appeared and the charges read to them. The assault case was dismissed under Section 87(a) of the Criminal Procedure Code and Sgt Yegon and other officers arrested the two suspects and arraigned them the High Court in Mombasa through a Miscellaneous Application where they requested the the court detain them at Bamburi Police Station for a mental assessment, interrogation and recording their statements.
  39. PW 8 stated that they prepared the exhibit memo and forwarded the flashdisk for CCTV footage to OC – Photography DCI Headquarters for analysis. During the interrogation, the 2nd Accused told them about the assault case he reported at Nyali Police Statition vide OB No. 6/7/1/2018 and stated that the weapon used against him was at Nyali Police Station; they confirmed the same with Nyali Police and took possession of the maasai sword. On 22nd January, 2018 they were taken to the scene besides the exit at Naivas there were stains on the pavement reddish appearing to be blood stains. The rope they used to barracade the entrance marked as MFI 4 he produced as Pex 4. The sword was produced as Pex 3. He identified the accused person they arrested in court at the dock.
  40. When cross examined PW 8 told the court that the two assault reports were made the same day at Bamburi and Nyali Police Station. The report at Bamburi Police Station was made by PW 5. The report at Nyali Police Station was made at 03.25 hours vide OB No. 6/7/1/2018. The report at Bamburi was made at 1100 hours on 7th January, 2018. The report at Nyali was made first. During interrogation, the 2nd Accused alleged that the deceaded used the sword which belonged to the deceased to assault him. The 2nd Accused was in the middle of the parking lot when the scuffle started. He was with other guards. The 1st Accused person was at the main entrance. The entrance and exit were adjacent to each other. There were guards both on the entrance and the exit. They did their investigations and arrived at the conclusion that the accused persons and other persons not before Court committed murder.
  41. According to PW 8 there were more than 70 guards at Nyali Centre. He did not establish the number of those guards who were involved in the murder. The other guards were not interrogated as there were none to be found. It was only the accused person who were available. The witness did not have the names of the guards who were not charged. The incident he confirmed did not occur at the middle of the parking lot. The officers visited the offices of the security company in Nyali but did not trace the other guards involved. According to the company there was something fishy about the disappearance of the other 3 suspects.
  42. When reexamination he confirmed he arrested the accused persons on 25th January, 2018. The accused persons in the involved in the attack. The two accused persons were on duty and interacted with the deceased. There was a court order in Petition Number 6 of 2018 where the police were restrained from arresting the Petitioners.

The Defence Case

  1. The 1st Accused person, Hamisi Hare Karisa testified as DW 1. He told the court that he understood the charges but He did not assault the deceased neither did he participate in assaulting the deceased. He further stated that he used to work at Nyali Centre as a private guard with Solvit Security Company. He was deployed at Naivas Nyali Centre. On the day of the incident he was at the entrance and was supposed to  search the vehicles as they entered for security purposes. He got to hear about the incident that took place at the parking lot which is where it all started then ended at the exit area.
  2. DW 1 told the court that he was not at the exit area, he was at the entrance; the distance is quite far. There was also a guard post between the entrance and the exit place. He heard what CPL Yegon (PW 6) said but he did not do what the witness said. PW 5 said that there was CCTV footage showing him and the 2nd Accused beating the deceased; he argued that he had not seen the said footage. He argued that the allegations by PW 5 were also false.
  3. When cross examined DW 1 stated that the centre had multiple exits and entries. The entry and the exit area were different and the vehicles entered and left from different parts of the centre. He was at the entry when he heard about the commotion. He stated that he did not attack the deceased with a panga.
  4. DW 1 confirmed that he recorded his statement at the police station and he was told that whatever he said may be used against him. He did not get involved in the assault of the deceased.
  5. The 2nd Accused person, Said Mwamuye Mwalungo testified as DW 2, he told the court he worked in construction sites. In 2018 he was employed as a security guard by Solvit Sexurity Company and deployed at Nyali Centre. He recalled on 7th January, he reported to work at 5 pm and he was deployed to the parking lot. At 11 pm, a Toyota Harrier came and three people a man and two ladies alighted. The man moved away from the car and went to answer the call of nature. He approached him and counselled him on his act which was against the Centre’s policy; the man did not respond. He became abusive and started insulting him. Other guards came and tried to resolve the issue and the witness asked the deceased to let the issue be. The deceased proceeded to leave with his company to Tapas Club.
  6. At around 3 am now 8th January, 2018, the man came back accompanied by a lady and they boarded his vehicle.
  7. The witness told the court that he was leaning against a vehicle and when the deceased saw the him leaning on the vehicle ,he alighted from the vehicle and went to urinate on another vehicle. According to DW 2 he said nothing; the deceased looked at him and started insulting him but DW 2 did not respond. Then the deceased came close to him he grabbed him by the throat while still hurling insults at him. The witness told the deceased to release him. The witness’ colleagues also tried to calm the deceased down the first time they witnessed this. They struggled, the witness stated that the deceased was heavily build and he overpowered him. He eventually managed to free himself.
  8. DW 2 told the court that the deceased went over to his car bent over and came back with a panga; wanting to cut his head, he lifted his hand and the deceased slashed his left hand almost near the pinky finger (the witness showed the court his scar). He struggled to get the panga and they were in between the vehicles. His colleagues could not get there; eventually he managed to release the panga and ran; the deceased pursued him and the witness hid behind a vits when he went around he managed to run to gate C which was for both exit and entrance.
  9. DW 2 stated that he was running for his life while bleeding. He was not present at the exit gate. He did not witness what had transpired there. When running to gate C he met the other guards. They asked him what had happened and he explained to them the incident. He had not met the deceased before that night. He was taken to Nyali Police Station where he recorded that he had been assaulted. He was issued with a P3 form. The investigating officer confirmed that he sustained injuries. He did not know who assaulted the deceased. He did not know who was deployed at the exit neither did he witness the incident. The distance from the parking lot to the exit is 30 to 40 metres.
  10. When cross examined he stated that he could not tell if the deceased had taken alcohol because he was not staggering neither did he smell alcohol in his breath. The deceased had the panga in his vehicle. DW 2 ran towards gate C shouting he had been cut. He saw other guards and boda boda people pursuing him. He indicated in his statement that it was 15 people.

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 person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased. Section 203 of the Penal Code provides the elements of the offence as follows: -

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

  1. 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.”

  1. The fact of the deceased’s death is not in contention. Dr. Ngali (PW3) conducted a post mortem on the deceased’s body and concluded that the deceased had succumbed to severe injury due to a blunt force trauma to the head.
  2. The key question for determination therefore is whether the 2 Accused herein were the persons who, of malice afterthought, inflicted these injuries on the deceased. 
  3. Admittedly, the prosecution case against the Accused persons primarily rests on circumstantial evidence.       This is because we do not have any eye witness or forensic evidence tying the two or either of them to the actual  scene of crime.
  4. PW2 Who was with the deceased that night , testified about the genesis of the altercation but she was not able to pick out even one of the guards  as having been involved.  It should also not be forgotten that that they had been drinking with the deceased from 10.00 PM so she may not have been too alert.
  5. PW6 on the other hand testified that when Humphrey told him that A2 had been injured, he went , confirmed the injury and then they called their supervisor who advised that the deceased should be allowed to go as he took A2  to hospital.     That they later heard hooting at the exit and on going there they found the deceased had bee n assaulted.         This evidence tends to remove the second accused person from the gate.
  6. We however have the circumstantial evidence and that of the CCTV. How do we treat it/
  7. It is not uncommon for legal practitioners to attack and deride circumstantial evidence in criminal cases, almost suggesting that it has little probative value or at the best, rate such evidence as weaker,  in comparison to direct evidence.
  8. In the case of Ahamad Abolfathi Mohammed and Another – Versus -  Republic [2018] eKLR, the Court of Appeal had this to say on this point:-

“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.  Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21:-

“It has been said that the 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.”

  1. The Court of Appeal in proceeded to lay down the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction.  The court stated:-

“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Accused person, and to no other person, as the perpetrator of the offence.  In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions as follows:

“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 the guilt of the Accused; 9iii) the circumstances taken cumulatively, should from 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.

In addition, the prosecution must establish that there are no other co-existing circumstances, which could weaken on destroy the inference of guilt.

  1. In Dhalay Singh – Versus - Republic, Cr. App. No. 10 of 1997, this court reiterated this principle as follows:-

“For our part, we think that if there be other co-existing circumstances which would weaken or destroy the inference of guilt, then the case has not been proved beyond any reasonable doubt and an Accused is entitled to an acquittal.”

  1. In Sawe – Versus - Republic (2003) eKLR the court reiterated the above stated conditions and added that the prosecution must also establish that there are no other coexisting circumstances, which could Weaken or destroy the inference of guilt.
  2. Coming back to the evidence tendered before this court, PW 2 told the court that the 2nd accused person had had an altercation with the deceased which evidence was supported by the evidence of PW 6 who told the court they had resolved the issue only for them to hear commotion and find the deceased on the ground at the exit; he further went to state that he did not witness the accused persons attacking the deceased. The weapon used were rungus and a sword alleged to belong to the deceased. Other than that PW 2 could not definitively point out that it was the accused persons that beat the deceased person to his death.
  3. The incidence took place at night and the Evidence of a single identifying witness under unfavorable conditions has to be taken with a lot of caution to avoid mistakes in identity. In the case of Abdalla Bin Wendoh – Versus -  Republic 20 EACA 166, the East Africa Court of Appeal stated as follows:-

“Subject to certain well-known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respectively identification especially when it is known that the conditions for owing a correct identification were difficult. In such circumstances what is needed is other evidences, whether it be circumstantial or direct, pointing to the guilty, from which a judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness, can safely be accepted as free from possibility of error.”

  1. In Wamunga – Versus - Republic (1989) KLR 424, the Court of Appeal states that:-

In Wamunga vs. Republic (1989) KLR 424, the Court of Appeal states that:-

“It is trite law that a fact can be proved by the evidence of a single witness although there is need to test with the greatest care the identification evidence of such a witness especially when it is shown that conditions favoring identification were difficult. Further, the Court has to bear in mind that it is possible for a witness to be honest but to be mistaken.

  1. Further in the case of Roria – Versus - Republic (1967) EA 583, the Court opined that:-

“A conviction resting entirely on identity invariably causes a degree of uneasiness… That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification”.

  1. All the, above case draw guidance from the case of R – Versus -  Turnbull (1971)QB 277 that provides useful guidelines in so far as identification is concerned. The court said:-

“... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?.... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

  1. PW 5 and PW 7 testified that they viewed a CCTV footage of the incidence that was provided to them by the employer of the accused persons at that time. According to PW 5 the four guards were identified by a lady working with Solvit Security Guards Company. In the footage he saw four individuals assaulting the deceased but only two were in court. The other two had disappeared by the time David had died. He knew the 1st Accused was manning the entrance to Nyali Centre Mall; he saw him come from the entrance to the exit where the deceased was.
  2. This Court however takes cognizance that the CCTV footage was not produced neither was it played in Court. Further the alleged perpetrators of this act were employees of Solvit Security Guards Company; no work records or signing sheets were produced in court to show that on the day of the incident; the Accused persons were on duty at the same exact time that the deceased met his death.
  3. In the absence of direct evidence the CCTV footage would have  been enough evidence to show the court on what transpired on the night of 7th January, 2018 that lead to the death of DAVID WOKABI KAMAU but the same was not produced. From the analysis of the circumstantial evidence available and the testimonies of the prosecution witnesses, the Court is left in doubt as to whether PW 2 and PW 6 who were at the scene of the incident properly identified the accused persons as the assailants under the prevailing circumstances, on the road that night.
  4. All that the Court is sure about is that at some point that night the deceased and the 2nd Accused person had a disagreement which led to the assault of the 2nd Accused person at the parking lot of Nyali Centre and that the deceased was murdered. The accused persons are the prime suspects .
  5. There is strong suspicion, against the Accused but as has been stated by courts, before, suspicion alone, however strong, cannot be a basis for a conviction. The prosecution has to prove its case against the accused beyond any reasonable doubt. I should conclude this judgment by citing the holding of the Court of Appeal in Erickson Chengoli Wanyonyi – Versus - Republic (2018) eKLR, where the court said:-

“We find that there was no circumstantial evidence adduced against the appellant that could lead to the inescapable conclusion that he was guilty of the murder of the deceased. All there was, was suspicion, but a court of law cannot act on mere suspicion no matter how strong. The appellant’s conviction was therefore not safe..”(emphasis ours).

  1. This being a murder charge, the prosecution has the onus to prove mens rea and actus reus. The actus reus has not been established against the accused persons since they were not properly identified 
  2. We note that even the lady who is said to have identified them on the CCTV footage did not give evidence and the court was not told what became of the footage.  Even the muster roll or deployment records were not produced and so we cannot tell which guard had been deployed in which area.  The investigating officers put the total number of guards at 70.
  3. OTHER than the two other witnesses that  said they viewed the CCTV footage, which was never produced in Court as evidence, there  is no other sufficient evidence placing the accused persons at the scene inflicting the injuries on the deceased. The Court cannot therefore conclude that the accused persons are the ones who hurt or murdered the deceased.
  4. I have also considered the defense and note that the same dislodged the evidence of the prosecution. The role of the defense is to punch holes into the evidence of the prosecution with the aim of creating reasonable doubt and if any is created, the benefit should be given to the accused persons; this the accused persons did. The 2nd accused stated that he was attacked by the deceased with a sword which sword was presented to Nyali Police Station when the Accused persons reported an assault case against the deceased.
  5. Further the evidence presented by the defence would only be dislodged if the CCTV footage that was an alleged to have recorded the whole incident and how the deceased lost his life was produced in Court.  That omission was fatal to this case.

Conclusion and Disposition

  1. At the end  the prosecution has failed to prove its case against  the 2 accused persons beyond reasonable doubt and the doubt is resolved in favour of the accused persons and they are hereby acquitted of the charge of murder  contrary to section 203 as read with section 204 of the Penal code.  The 2 are acquitted under Section 322 (1) of the Criminal Procedure Code. The 1st and 2nd Accused persons are set at liberty forthwith unless otherwise lawfully held.
  2. As for the late David Wokabi Kamau, this was a very unfortunate , needless and senseless loss of an otherwise very productive life. May his soul rest in peace.

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;

MS CHERONO, MR NGIRI, AND MR SIRIMA for the republic;

The 2 Accused persons and their advocates

    REPUBLIC VERSUS HAMISI HARE KARISA and SAID MWAMUYE MWALUNGO REPUBLIC VERSUS HAMISI HARE KARISA and SAID MWAMUYE MWALUNGO