The five (5) accused persons were charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 of the Laws of Kenya.
The particulars are that on the night of 26 th and 27 th June, 2017 at Nyamalani village, Mackinon Road Location in Kinango Sub - County, within Kwale County in the Republic of Kenya, jointly murdered ELIAS KALAMA KARISA.
They all pleaded not guilty and the prosecution side called a total of thirteen witnesses.
These were;
Margaret Thoya - wife to deceased
Hamisi Mwagulu- nephew to deceased
Bakari Dani Mugura - Asst. chief
Nzara Tsuma - Mother to A2
Zawadi Kenga - sister in law
Charo Kalama - father to A3
Dr. Gabriel Mungola - Doctor
Monje Mgandi- Father to A1 and A5
Mwidadi Omar – Govt Analyst
Anthony Kinyajui - Scenes of Crime Photographer
No. 233682 - Henrty Wesonga- Chief Inspector, recorded confessions
Mumo Ndana Guyo- Rtd Chief
No. 241432 - Inspector Philimon Korir- Investigating officer
BACKGROUND
The 5 accused persons are all related and were also related to the deceased and the witnesses, save for local administrators and the investigators.
The evidence also shows that the deceased was attacked while sleeping in a makeshift structure in his farm where he had gone to guard his maize crop from wild animals. He was with his nephews PW2 and the A4. The two nephews say they did not see the attackers.
The younger one however, rushed home and alerted the wife to the deceased PW1, who called the sister in law PW5 and they rushed to the scene. A5 says he also rushed home, but neither PW1 nor PW2 or PW5 mentioned seeing him.
So in brief, we do not have any eye witness account as to what transpired and there was no other forensic evidence to shed any light as to how the attack happened.
The area Assistant Chief, PW3 and the Chief, however testified that somehow, members of the public got to know the culprits and rounded them up.They were taken to the police station and they then confessed to having committed the murder.
THE LAW
As a starting point I reiterate the case of R Vs Andrew Omwenga (2009) eKLR in which the court held as to the scope of the ingredients of murder under Section 203 of the penal code that:“ It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act omission there are therefore three ingredients of murder which is the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are :-
Death of the deceased and the cause of death
.b. That the accused committed the unlawful act which caused the death of the accused
c. The accused had the malice aforethought.
8.How is this evidence tested? The standard of proof expected of the prosecution case is as set out in Section 107 (1), 108 & 109 of the Evidence Act and the principles elucidated by non other than Lord Denning in the case of Miller Vs Ministry of Pensions 1947 2 ALL ER 373-375 thus;“That degree is well settled. It needs not reach certainty, but it must carry a high degree of probability. Proof of beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would prevail to protect the community if it addressed forceful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remedy possibility of his favour which can be dismissed with the sentence of course, it doubt but nothing of that will suffice” see also Woolmington vs DPP 1935 AC 462.From Kenny’s Outlines Of Criminal Law (16 TH EDN AT P. 416 the learned author stated that:“A larger minimum of proof is necessary to support an accusation of crime that will suffice when the charge is only of a civil nature… in criminal cases the burden rests upon the prosecution to prove that the accused is guilty beyond reasonable doubt. When therefore the case for the prosecution is closed after sufficient evidence has been adduced to necessitate an answer from the defence, the defence need do no more that show that there is reasonable doubt as to the guilt of the accused see R. V. Stoddart (1909) 2 Cr. App Rep. 217 at p 242.
THE DEATH
9. The death is not disputed. All the 5 accused persons testified that they got to know about the death of their uncle ELIAS KALUMA KARISA.
The death was also confirmed by PW7, Dr. Mngola who conducted the post mortem Form PEXT 3 which shows the following injuries;
Externally
Deep cut on the anterior neck measuring 9cm in length and 3cm in depth. Vessels grossly injured and deep cut wound noted on the right side of scalp and right cheek.
Internally:
crushed trachea rings then Scalp Haematoma with fracture of the skull on the right temporal region.
10. The cause of death was Hemorrhagic shock secondary to raptured carotiad (jugular) vessels secondary to assault.
Therefore the death was proved,
Whether the 5 accused persons or some of them unlawfully caused the death.
11. As earlier noted, we only have the confessions by Mwangombe Mgandi -A1 Hussein Kafisi Tsuma -A2, and Safari Charo Kalama A3 to go by . Their wriiten statements under inquiry were produced as PEXTS 6 (A), (B) and (C).
These were recorded by Chief Inspector of Police, Henry Wesonga of Taru Police Station on 30/6/2017 and 1/7/2017.
THE LAW ON CONFESIONS
12. In Kenya, confessions are governed by the Constitution of Kenya 2010; the Evidence Act (Cap.80); the Evidence (Out of Court Confessions) Rules, 2009 and decisional law.
13. Article 49 of the Constitution guarantees rights of arrested person certain rights including the right to be informed promptly, in language that the person understands, of the reason for the arrest; the right to remain silent and the consequences of not remaining silent; to communicate with an advocate, and other persons whose assistance is necessary and not to be compelled to make any confession or admission that could be used in evidence against the person.
14. Article 50(4)) of the Constitution also excludes any evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
15. Similarly, Article 50 (2) (l) guarantees each Accused Person a right to refuse to give self-incriminating evidence.
General rule
16. IN R ISAACK KAGIRI WANJIKU, Justice F. Gikonyo stated that ;
It bears repeating that, as a general rule, confessions in Kenya are inadmissible in a criminal trial unless the confession is made in accordance with rigid rules provided in the Evidence Act and Rules promulgated thereunder. These provisions are to be interpreted restrictively in order to avert the return of the dark days when confessions were extracted through torture to obtain conviction for political or other extraneous purposes, and worse still, in politically-motivated criminal trials. The days of Mwakenya, Pambana and Nyayo torture chambers incidents have not receded to the background in our memories even with passage of considerable time.
17. Admissibility of confessions is provided in Section 25A and 26 of the Evidence Act. Section 25A provides as follows:
“(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.
(2) The Attorney General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court.”
18. Section 26 provides thus:
“A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”
19. The rules envisaged under Section 25A (2) above are known as the Evidence (Out of Court Confessions) Rules, 2009 (hereinafter the “Confessions Rules”.) The Confession Rules set out rigorous procedure that must be followed before a confession is recorded from a suspect. Rule 4 provides that, among other things, the Recording Officer:
a. Shall ask and record the Accused Person’s preferred language of communication;
b. Shall provide the Accused Person with an interpreter free of charge where he does not speak Kiswahili or English;
c. Shall ensure that the Accused Person is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment;
d. Shall ensure that the Accused Person is informed of his right to have legal representation of his own choice among others;
e. Shall ask the Accused Person to nominate a third party to be present during the confession and the particulars of the third party and the relationship to the accused must be recorded.
20. Further, the Confessions Rules require the Accused Person to be informed of the option to record his own statement in his preferred language or to have it recorded for him (Rule 7); the option to clarify or add anything in the statement after the same has been recorded (Rule 8) and the requirement to administer a caution before recording the statement (Rule 5). To these legal provisions add the numerous judicial pronouncements on extra-judicial confessions.
21. In light therefore, voluntariness of a confession entails: -
a) Absence of threat or coercion or torture or inducement of any form; and
b) That the statement was made and taken in accordance with the law- the Constitution, the Evidence Act, the Confession Rules and decisional law.
22. THEREFORE in law, a confession cannot be given in evidence, unless the prosecution shows it to be a voluntary statement in the sense that it was not obtained from the accused by fear of prejudice or hope or promise of advantage exercised or held out by a person in authority or by coercion or threat or torture. And, if the admissibility of the confession is in dispute, the issue fell to be determined by the trial judge in a trial within a trial on evidence. Accordingly, the prosecution bears the legal burden of proving beyond reasonable doubt that the confession was voluntary. If the prosecution failed to discharge this burden, the confession was inadmissible. However, I am of the view that, even if the court is satisfied beyond reasonable doubt that it was made voluntarily, in light of the Constitution, the Evidence Act and rules made thereunder, the trial court could exclude it, in the exercise of discretion, on the grounds that:
(i) its admission makes the trial unfair; or
(ii) its prejudicial effect on the administration of justice outweighed its probative value;
(ii) it was obtained in a manner that violates any right or fundamental freedom in the Bill of Rights; or
(iii) it was obtained in breach of the law and rules relating to confessions.
APPLYING THE TEST
23. In our present case, the confessions were taken before chief Inspector of Police. So the first hurdle under section 25 A OF the evidence act was passed successfully. The record also shows that he explained to the accused persons all their rights including the right not to say anything and he also allowed them to call in a witness.
24. A1 had his father present (PW8). A2 called his mother (PW4) and A3 had his father present (PW6).
25.The statements under inquiry were produced without any objection and PW4, PW6 and PW8 testified that they were indeed present when the OCS (PW11) recorded the statement from their respective sons. These witnesses testified that the confessions were given voluntarily.
26.Having seen the evidence of the parents to the accused persons who testified that indeed their sons confessed voluntarily, I am satisfied that indeed the confessions met all the standard set.
27. The other significant piece of evidence was the recovery of the panga PEXT1 and axe PEXT2 which are said to be the murder weapons and PW8 confirmed that A1 is the one who led the police and the chief to recover the same from his house.
MALICE AFORETHOUGHT
28. The motive behind this murder was also gleaned from the confessions. Unfortunately, like many other cases in jurisdiction, the reason behind this grissly and beastly act was the suspicion of being of witchcraft.
.29. We get this from the statement of Mwangombe Mgadi A1 where he states , “ the reason that made me kill Kalama Karisa is that I strongly suspected him to be a witch as I could at times during the night find myself ploughing his shamba without knowing, I feared complaining to my mother as I thought she could ask him and the results couldn’t be good to me. That is all I can state.”
30. On his part Safari Charo stated that, “ I personally participated in the killing of Kalama Karisa because he was a witch, he had killed my mother some years back and that I could not be employed for a long time due to his witchcraft practices, As if that was not enough, my wife has been complaining of sickness and whenever I consult a witch doctor they confirm it was Kalama who was bewitching us. In fact one day he took photographs of my wife against her will which he had been using to bewitch her.” That’s all I can state.
32. Hussein Kafisi did not give any reason but he stated that he was present and in fact he is the one who carried the axe.
33. On the actual attacks Mwangombe Mgandi (A1) stated , “I remember well on 26/6/2017 at 7.00 pm I left our home and went to our shamba which is far from home to guard our maize and green peas from being eaten by wild animlas. Reaching the sahmba, I found my brothers namely Hamisi Mgandi, Managale Mgandi and Mwaka Mgandi having already come with food for my supper. My brothers Mangale Mgandi and Mwaka Mgandi left for home leaving me with Hamisi Mgandi. At about 9.00 p.m, Safari Charo Kalama and Robert Hussein Tsuma and Ngala Chaji came t the shamba where we were by then. They woke us up as we had slept and on waking up, Safari Charo Kaluma said that we go and do the job before sleeping. I tried to resist but later gave in as he said that we go and kill one of called Kalama who is our relative and a neighbor, Safari Charo Kalama, Hussein Robert Tsuma, Ngala Chaji Mwagudu , Hamisi Mgandi and I then left the shamba and went to the shamba of Kalama Karisa which is just close to ur shamba, We then went to Kalama Karisa’s make shift shelter in the shamba and entered therein. In the said shelter, Ngala Chaji Mwagudu spot lighted and I cut Kalama Karisa on the neck as he was asleep using a panga. Then Safari Charo cut Karama Karisa with an axe on the head. After cutting him we all left and went home. On the way home we pulled the panga and axe on the soil to remove blood stains and we kept in my house with Safari Charo Kalama as the rest went away. In the morning each of us went his own on 276/2017 as I went to Mackinon at about 6.00 a.m to look for any casual work.
At 8.00 a.m I came back home after failing to get any work and after a while I went to the bedrom of my mother’s house and slept. At about 2.00 p.m while in my mother’s house I heard the door being pushed in and on coming out of bed I saw one Shaban Mrabu who is our neighbor who immediately arrested me and took me out where there were many people and was put on a waiting motorcycle and was taken to Mackinon Police Post and was placed in the cell. In the cell, I found Hamisi Mgandi and Safari Charo Kalama who had already been arrested. Later on, I was removed from cell and taken home to the house of my mother in which a panga and an axe were found and taken away by the police officers. From our home we went to Mackinon Road Polce Post where I was returned to the cell. After a while in the cell, I , Hamisi Mgandi, Safari Charo Kalama , Ngala Chaji Mwagudu and Hussein Robert Tsuma were all removed and taken to Taru Police Station and placed in cell.”
34. Hussein Robert Tsuma (A2) stated , “ I remember very well on 26 th June, 2017 at about 8.00p.m, I was at the home of Mzee Ndegwa talking with his son namely Ndegwa Baraka when Safari Charo Kalama and Ziro Nyawa came and told me to accompany them to the shamba of the deceased Kalama Karisa. I then accompanied Safari Charo Kalama to the shamba of Kalama Kaisa Leaving behind Ziro Nyawa. Reaching the shamba, we found Hamisi Mgandi and Ngala Mwagudu and Mwangombe Mgandi sitting therein. We sat together until about one hour when we proceeded to the house of Kalama Karisa five of us while I was carrying an axe, Safari Charo Kalama was carrying a panga. Reaching the house which had no door, we all entered in and Ngala Mwagudu spotlighted. I then gave Safari Charo Kalama the axe I had and he cut Kalama Karisa as I came out. Mwangombe Mgandi who has a panga also cut Kalama Karisa as I was out I saw one child coming from the house and ran away into the darkness. After killing Kalama Karisa we went to the shamba of Mwangombe Mgandi which was just nearby. Reaching the shamba, I went my own way home and slept leaving the rest on their own.”
35. Safari Charo (A3) stated , “ I remember that on 26 th June, 2017 at about 10.00 p.m, I accompanied one Ngala Chaji to go to the Shanba of Mwangombe within Nyamalani area of Mackinon Road location. After a short while Mwangombe Mgandi, Hamisi Mgandi and Robert Hussein joined us. We then proceeded to the shamba of Kalama Karisa while I was armed with a panga, Mwangombe Mgandi had a panga too. Reaching at Kalama Karisa’s makeshift house in his shamba, we entered therein all of us as it had no door. Kalama Karisa rose up from sleep to confront us, but we overpowered him by holding him and pushing him down. Then I cut him with a panga on the neck which then each of us used to cut him more. We also used an axe to kill by cutting on the neck. After realizing he was dead we all left the house and went to our respective homes and slept.”
36.The panga and axe were tested but did not test positive for the blood. This was however explained in the confession by A1 who said that they pulled the panga and axe in the soil to clean the blood.
37.The Assistant Chief, PW3 and the Chief (PW8) also stated that they noted blood stains on the clothes of A1, but when they went to arrest him later, they found that he had washed the clothes.
38. As regards the fate of A4 AND A5, I note they were implicated by their kin who said they were all together and they did not test this evidence. The 5 accused persons had a common intention which they jointly executed.
38. From all this, I am satisfied that the 3 elements of murder were proved as against the 5 accused persons. The 5 accused persons, based on the suspicion of witch craft, planned and jointly executed their evil scheme in the dead of the night. They attacked their uncle and kin who was sleeping and literally slaughtered him by hacking him with an axe and pangas. The deceased sustained multiple fatal wounds inflicted by sharp objects. The senseless attack was brutal and deliberate and they abandoned him in the shamba and went home to sleep.
39. This was despicable conduct and the court does not hesitate to convict each of the 5 accused persons for the offence of Murder contrary to Section 203 as read with section 204 of the Penal Code.
40.It is so ordered.
Dated signed and delivered this 26 th day of June 2025.
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF:
THE 5 ACCCUSED PERSONS AND MS MACHOGU ADVOCATE FOR A3
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT
The particulars are that on the night of 26 th and 27 th June, 2017 at Nyamalani village, Mackinon Road Location in Kinango Sub - County, within Kwale County in the Republic of Kenya, jointly murdered ELIAS KALAMA KARISA.
They all pleaded not guilty and the prosecution side called a total of thirteen witnesses.
These were;
Margaret Thoya - wife to deceased
Hamisi Mwagulu- nephew to deceased
Bakari Dani Mugura - Asst. chief
Nzara Tsuma - Mother to A2
Zawadi Kenga - sister in law
Charo Kalama - father to A3
Dr. Gabriel Mungola - Doctor
Monje Mgandi- Father to A1 and A5
Mwidadi Omar – Govt Analyst
Anthony Kinyajui - Scenes of Crime Photographer
No. 233682 - Henrty Wesonga- Chief Inspector, recorded confessions
Mumo Ndana Guyo- Rtd Chief
No. 241432 - Inspector Philimon Korir- Investigating officer
BACKGROUND
The 5 accused persons are all related and were also related to the deceased and the witnesses, save for local administrators and the investigators.
The evidence also shows that the deceased was attacked while sleeping in a makeshift structure in his farm where he had gone to guard his maize crop from wild animals. He was with his nephews PW2 and the A4. The two nephews say they did not see the attackers.
The younger one however, rushed home and alerted the wife to the deceased PW1, who called the sister in law PW5 and they rushed to the scene. A5 says he also rushed home, but neither PW1 nor PW2 or PW5 mentioned seeing him.
So in brief, we do not have any eye witness account as to what transpired and there was no other forensic evidence to shed any light as to how the attack happened.
The area Assistant Chief, PW3 and the Chief, however testified that somehow, members of the public got to know the culprits and rounded them up.They were taken to the police station and they then confessed to having committed the murder.
THE LAW
As a starting point I reiterate the case of R Vs Andrew Omwenga (2009) eKLR in which the court held as to the scope of the ingredients of murder under Section 203 of the penal code that:“ It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act omission there are therefore three ingredients of murder which is the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are :-
Death of the deceased and the cause of death
.b. That the accused committed the unlawful act which caused the death of the accused
c. The accused had the malice aforethought.
8.How is this evidence tested? The standard of proof expected of the prosecution case is as set out in Section 107 (1), 108 & 109 of the Evidence Act and the principles elucidated by non other than Lord Denning in the case of Miller Vs Ministry of Pensions 1947 2 ALL ER 373-375 thus;“That degree is well settled. It needs not reach certainty, but it must carry a high degree of probability. Proof of beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would prevail to protect the community if it addressed forceful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remedy possibility of his favour which can be dismissed with the sentence of course, it doubt but nothing of that will suffice” see also Woolmington vs DPP 1935 AC 462.From Kenny’s Outlines Of Criminal Law (16 TH EDN AT P. 416 the learned author stated that:“A larger minimum of proof is necessary to support an accusation of crime that will suffice when the charge is only of a civil nature… in criminal cases the burden rests upon the prosecution to prove that the accused is guilty beyond reasonable doubt. When therefore the case for the prosecution is closed after sufficient evidence has been adduced to necessitate an answer from the defence, the defence need do no more that show that there is reasonable doubt as to the guilt of the accused see R. V. Stoddart (1909) 2 Cr. App Rep. 217 at p 242.
THE DEATH
9. The death is not disputed. All the 5 accused persons testified that they got to know about the death of their uncle ELIAS KALUMA KARISA.
The death was also confirmed by PW7, Dr. Mngola who conducted the post mortem Form PEXT 3 which shows the following injuries;
Externally
Deep cut on the anterior neck measuring 9cm in length and 3cm in depth. Vessels grossly injured and deep cut wound noted on the right side of scalp and right cheek.
Internally:
crushed trachea rings then Scalp Haematoma with fracture of the skull on the right temporal region.
10. The cause of death was Hemorrhagic shock secondary to raptured carotiad (jugular) vessels secondary to assault.
Therefore the death was proved,
Whether the 5 accused persons or some of them unlawfully caused the death.
11. As earlier noted, we only have the confessions by Mwangombe Mgandi -A1 Hussein Kafisi Tsuma -A2, and Safari Charo Kalama A3 to go by . Their wriiten statements under inquiry were produced as PEXTS 6 (A), (B) and (C).
These were recorded by Chief Inspector of Police, Henry Wesonga of Taru Police Station on 30/6/2017 and 1/7/2017.
THE LAW ON CONFESIONS
12. In Kenya, confessions are governed by the Constitution of Kenya 2010; the Evidence Act (Cap.80); the Evidence (Out of Court Confessions) Rules, 2009 and decisional law.
13. Article 49 of the Constitution guarantees rights of arrested person certain rights including the right to be informed promptly, in language that the person understands, of the reason for the arrest; the right to remain silent and the consequences of not remaining silent; to communicate with an advocate, and other persons whose assistance is necessary and not to be compelled to make any confession or admission that could be used in evidence against the person.
14. Article 50(4)) of the Constitution also excludes any evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
15. Similarly, Article 50 (2) (l) guarantees each Accused Person a right to refuse to give self-incriminating evidence.
General rule
16. IN R ISAACK KAGIRI WANJIKU, Justice F. Gikonyo stated that ;
It bears repeating that, as a general rule, confessions in Kenya are inadmissible in a criminal trial unless the confession is made in accordance with rigid rules provided in the Evidence Act and Rules promulgated thereunder. These provisions are to be interpreted restrictively in order to avert the return of the dark days when confessions were extracted through torture to obtain conviction for political or other extraneous purposes, and worse still, in politically-motivated criminal trials. The days of Mwakenya, Pambana and Nyayo torture chambers incidents have not receded to the background in our memories even with passage of considerable time.
17. Admissibility of confessions is provided in Section 25A and 26 of the Evidence Act. Section 25A provides as follows:
“(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.
(2) The Attorney General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court.”
18. Section 26 provides thus:
“A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”
19. The rules envisaged under Section 25A (2) above are known as the Evidence (Out of Court Confessions) Rules, 2009 (hereinafter the “Confessions Rules”.) The Confession Rules set out rigorous procedure that must be followed before a confession is recorded from a suspect. Rule 4 provides that, among other things, the Recording Officer:
a. Shall ask and record the Accused Person’s preferred language of communication;
b. Shall provide the Accused Person with an interpreter free of charge where he does not speak Kiswahili or English;
c. Shall ensure that the Accused Person is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment;
d. Shall ensure that the Accused Person is informed of his right to have legal representation of his own choice among others;
e. Shall ask the Accused Person to nominate a third party to be present during the confession and the particulars of the third party and the relationship to the accused must be recorded.
20. Further, the Confessions Rules require the Accused Person to be informed of the option to record his own statement in his preferred language or to have it recorded for him (Rule 7); the option to clarify or add anything in the statement after the same has been recorded (Rule 8) and the requirement to administer a caution before recording the statement (Rule 5). To these legal provisions add the numerous judicial pronouncements on extra-judicial confessions.
21. In light therefore, voluntariness of a confession entails: -
a) Absence of threat or coercion or torture or inducement of any form; and
b) That the statement was made and taken in accordance with the law- the Constitution, the Evidence Act, the Confession Rules and decisional law.
22. THEREFORE in law, a confession cannot be given in evidence, unless the prosecution shows it to be a voluntary statement in the sense that it was not obtained from the accused by fear of prejudice or hope or promise of advantage exercised or held out by a person in authority or by coercion or threat or torture. And, if the admissibility of the confession is in dispute, the issue fell to be determined by the trial judge in a trial within a trial on evidence. Accordingly, the prosecution bears the legal burden of proving beyond reasonable doubt that the confession was voluntary. If the prosecution failed to discharge this burden, the confession was inadmissible. However, I am of the view that, even if the court is satisfied beyond reasonable doubt that it was made voluntarily, in light of the Constitution, the Evidence Act and rules made thereunder, the trial court could exclude it, in the exercise of discretion, on the grounds that:
(i) its admission makes the trial unfair; or
(ii) its prejudicial effect on the administration of justice outweighed its probative value;
(ii) it was obtained in a manner that violates any right or fundamental freedom in the Bill of Rights; or
(iii) it was obtained in breach of the law and rules relating to confessions.
APPLYING THE TEST
23. In our present case, the confessions were taken before chief Inspector of Police. So the first hurdle under section 25 A OF the evidence act was passed successfully. The record also shows that he explained to the accused persons all their rights including the right not to say anything and he also allowed them to call in a witness.
24. A1 had his father present (PW8). A2 called his mother (PW4) and A3 had his father present (PW6).
25.The statements under inquiry were produced without any objection and PW4, PW6 and PW8 testified that they were indeed present when the OCS (PW11) recorded the statement from their respective sons. These witnesses testified that the confessions were given voluntarily.
26.Having seen the evidence of the parents to the accused persons who testified that indeed their sons confessed voluntarily, I am satisfied that indeed the confessions met all the standard set.
27. The other significant piece of evidence was the recovery of the panga PEXT1 and axe PEXT2 which are said to be the murder weapons and PW8 confirmed that A1 is the one who led the police and the chief to recover the same from his house.
MALICE AFORETHOUGHT
28. The motive behind this murder was also gleaned from the confessions. Unfortunately, like many other cases in jurisdiction, the reason behind this grissly and beastly act was the suspicion of being of witchcraft.
.29. We get this from the statement of Mwangombe Mgadi A1 where he states , “ the reason that made me kill Kalama Karisa is that I strongly suspected him to be a witch as I could at times during the night find myself ploughing his shamba without knowing, I feared complaining to my mother as I thought she could ask him and the results couldn’t be good to me. That is all I can state.”
30. On his part Safari Charo stated that, “ I personally participated in the killing of Kalama Karisa because he was a witch, he had killed my mother some years back and that I could not be employed for a long time due to his witchcraft practices, As if that was not enough, my wife has been complaining of sickness and whenever I consult a witch doctor they confirm it was Kalama who was bewitching us. In fact one day he took photographs of my wife against her will which he had been using to bewitch her.” That’s all I can state.
32. Hussein Kafisi did not give any reason but he stated that he was present and in fact he is the one who carried the axe.
33. On the actual attacks Mwangombe Mgandi (A1) stated , “I remember well on 26/6/2017 at 7.00 pm I left our home and went to our shamba which is far from home to guard our maize and green peas from being eaten by wild animlas. Reaching the sahmba, I found my brothers namely Hamisi Mgandi, Managale Mgandi and Mwaka Mgandi having already come with food for my supper. My brothers Mangale Mgandi and Mwaka Mgandi left for home leaving me with Hamisi Mgandi. At about 9.00 p.m, Safari Charo Kalama and Robert Hussein Tsuma and Ngala Chaji came t the shamba where we were by then. They woke us up as we had slept and on waking up, Safari Charo Kaluma said that we go and do the job before sleeping. I tried to resist but later gave in as he said that we go and kill one of called Kalama who is our relative and a neighbor, Safari Charo Kalama, Hussein Robert Tsuma, Ngala Chaji Mwagudu , Hamisi Mgandi and I then left the shamba and went to the shamba of Kalama Karisa which is just close to ur shamba, We then went to Kalama Karisa’s make shift shelter in the shamba and entered therein. In the said shelter, Ngala Chaji Mwagudu spot lighted and I cut Kalama Karisa on the neck as he was asleep using a panga. Then Safari Charo cut Karama Karisa with an axe on the head. After cutting him we all left and went home. On the way home we pulled the panga and axe on the soil to remove blood stains and we kept in my house with Safari Charo Kalama as the rest went away. In the morning each of us went his own on 276/2017 as I went to Mackinon at about 6.00 a.m to look for any casual work.
At 8.00 a.m I came back home after failing to get any work and after a while I went to the bedrom of my mother’s house and slept. At about 2.00 p.m while in my mother’s house I heard the door being pushed in and on coming out of bed I saw one Shaban Mrabu who is our neighbor who immediately arrested me and took me out where there were many people and was put on a waiting motorcycle and was taken to Mackinon Police Post and was placed in the cell. In the cell, I found Hamisi Mgandi and Safari Charo Kalama who had already been arrested. Later on, I was removed from cell and taken home to the house of my mother in which a panga and an axe were found and taken away by the police officers. From our home we went to Mackinon Road Polce Post where I was returned to the cell. After a while in the cell, I , Hamisi Mgandi, Safari Charo Kalama , Ngala Chaji Mwagudu and Hussein Robert Tsuma were all removed and taken to Taru Police Station and placed in cell.”
34. Hussein Robert Tsuma (A2) stated , “ I remember very well on 26 th June, 2017 at about 8.00p.m, I was at the home of Mzee Ndegwa talking with his son namely Ndegwa Baraka when Safari Charo Kalama and Ziro Nyawa came and told me to accompany them to the shamba of the deceased Kalama Karisa. I then accompanied Safari Charo Kalama to the shamba of Kalama Kaisa Leaving behind Ziro Nyawa. Reaching the shamba, we found Hamisi Mgandi and Ngala Mwagudu and Mwangombe Mgandi sitting therein. We sat together until about one hour when we proceeded to the house of Kalama Karisa five of us while I was carrying an axe, Safari Charo Kalama was carrying a panga. Reaching the house which had no door, we all entered in and Ngala Mwagudu spotlighted. I then gave Safari Charo Kalama the axe I had and he cut Kalama Karisa as I came out. Mwangombe Mgandi who has a panga also cut Kalama Karisa as I was out I saw one child coming from the house and ran away into the darkness. After killing Kalama Karisa we went to the shamba of Mwangombe Mgandi which was just nearby. Reaching the shamba, I went my own way home and slept leaving the rest on their own.”
35. Safari Charo (A3) stated , “ I remember that on 26 th June, 2017 at about 10.00 p.m, I accompanied one Ngala Chaji to go to the Shanba of Mwangombe within Nyamalani area of Mackinon Road location. After a short while Mwangombe Mgandi, Hamisi Mgandi and Robert Hussein joined us. We then proceeded to the shamba of Kalama Karisa while I was armed with a panga, Mwangombe Mgandi had a panga too. Reaching at Kalama Karisa’s makeshift house in his shamba, we entered therein all of us as it had no door. Kalama Karisa rose up from sleep to confront us, but we overpowered him by holding him and pushing him down. Then I cut him with a panga on the neck which then each of us used to cut him more. We also used an axe to kill by cutting on the neck. After realizing he was dead we all left the house and went to our respective homes and slept.”
36.The panga and axe were tested but did not test positive for the blood. This was however explained in the confession by A1 who said that they pulled the panga and axe in the soil to clean the blood.
37.The Assistant Chief, PW3 and the Chief (PW8) also stated that they noted blood stains on the clothes of A1, but when they went to arrest him later, they found that he had washed the clothes.
38. As regards the fate of A4 AND A5, I note they were implicated by their kin who said they were all together and they did not test this evidence. The 5 accused persons had a common intention which they jointly executed.
38. From all this, I am satisfied that the 3 elements of murder were proved as against the 5 accused persons. The 5 accused persons, based on the suspicion of witch craft, planned and jointly executed their evil scheme in the dead of the night. They attacked their uncle and kin who was sleeping and literally slaughtered him by hacking him with an axe and pangas. The deceased sustained multiple fatal wounds inflicted by sharp objects. The senseless attack was brutal and deliberate and they abandoned him in the shamba and went home to sleep.
39. This was despicable conduct and the court does not hesitate to convict each of the 5 accused persons for the offence of Murder contrary to Section 203 as read with section 204 of the Penal Code.
40.It is so ordered.
Dated signed and delivered this 26 th day of June 2025.
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF:
THE 5 ACCCUSED PERSONS AND MS MACHOGU ADVOCATE FOR A3
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT