Introduction
1. The accused person MWENDA KOMBO MWAMOSE faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 of the Laws of Kenya.
2. The particulars are that on the 22nd day of June 2017 at Peoni Village in Lunga Lunga Division within Kwale County murdered LEWA CHIWAYA.
3. The prosecution called 8 witnesses to support its case that the accused person committed the offence herein.
4. The Accused Person filed submissions on no case to answer and she was placed on defence.
Prosecution Case
5. PW1, Tsuma Kasim Mwarocha stated that on 22.6.2017 at around 6.30 am, he was at home and as the chairman of the village, he received a call from a neighbor called Nyamawi Mazera who told him that his grandchild had died. PW1 said that he went to the scene at around 9.45 am and found Mzee Nyamawi, his wife Mama Mwenda Kombo, two daughters, three grandchildren and the body of the deceased. That after digging the grave, the child could not be buried as the mother had not arrived. That when the mother of the child arrived at 2 pm, she went to look at the child for the last time and discovered the body was in a normal state and said that the child was not dead.
6. PW1 informed court that he went to the mosque for prayers at 4.00 pm and when he came back, there was fighting in the family. That the mother Mwenda and two children were beating up Mzee Lewa Chiwaya with a stick. PW1 said that he tried to defend him but he was overpowered. PW1 decided to call the Chief for assistance and the Chief informed him to report the issue to the police which he did. That at 5.00 pm, he decided to go home and while on his way, he was informed that Mzee Lewa had been killed. He informed the Chief and his Assistant about it and explained to the Chief what had happened. The Chief told PW1 to wait for the police vehicle to take the police to the scene of crime. That when PW1 got to the scene, he saw the deceased had injuries on the left side of the head.
7. PW1 testified that Mzee Nyamawi told him that three deaths had been caused by Mzee Lewa Chiwaya. That Mama Mwenda said she is the one who killed Mzee Lewa Chiwaya. According to PW1, officers took photographs of the scene, put the body of the deceased inside the vehicle and Mama Mwenda was also arrested. PW1 said that there was a weapon which was also taken from the scene. He stated that the 3rd pictures showed the left hand which was mutilated, marked MFI (a)(b)(c). That the jembe which was the weapon was in court marked MFI 2. PW1 identified Mama Mwenda as the Accused Person in court. That he knew her prior to the incident and that she is a resident in the village where PW1 is the chairman.
8. PW2, Simba Marinda stated that on 22.6.2017 at about 2.30 am, he was at home when he got a report that the grandchild of Nyamawi had died. That he went for the burial with his wife and brother’s wife, and found around 15 people at the scene. PW2 said that after digging the grave, they waited for the mother of the child to arrive. When she arrived, she said the child had fainted as the body was still alive. PW2 testified that he went with the deceased to check and the confirmed that the body was not stiff. That the sister of the deceased brought up the issue of witchcraft and that there were two sides. When the deceased approached them to ask who was bewitching them, the sister said it was him and they started beating him. That Mama Mwenda and her daughters assaulted the deceased. PW2 tried to stop the fighting but was overpowered. That the deceased was beaten badly and told to resurrect the child.
9. PW2 said that he went away and later heard that Mzee Chiwaya had died. When PW2 went to the scene, he found the deceased had been cut with jembes on the left hand and the left side of the head. That he saw the jembe that had been used to dig the grave at the scene. The said jembe was in court and identified by PW2 as EX P2. PW2 also identified Mama Mwenda as the Accused Person in court and knew her as a neighbor and he knew her for about 3 years. He said that he has never disagreed with Mama Mwenda and he witnessed her say that she is the one who had killed the deceased and that she was tired because every year they were burying a family member and it was the deceased who was responsible.
10. PW3, Kamanza Kenya informed court that on 22.6.2017 he was at Kituamba when his aunt’s child died and he proceeded to the home of Mzee Nyamawi and when he arrived, he saw the body of his in-law Lewa Chiwaya lying beside the grave and was bleeding. That on 23.6.2017, he went to Lunga Lunga Police Station. That when he arrived at the funeral, he found that the murder had already been committed. PW3 said that the deceased was the one in the photograph in court MFIP1 (a)(b)(c). That the deceased was his brother-in-law and the brother to Nyamawi. PW3 also said that the Accused Person is his in-law and the wife to Nyamawi and that PW3’s sister was married to the deceased.
11. PW4, Kenya Joga testified that Lewa Chiwaya was his son-in-law. He said that on 22.6.2017 when he went back home from work, his wife informed him that Nyamawi’s child had died. He therefore went to attend the burial. He found that another person had been cut and left at the grave dead. That the deceased had panga cuts on the head, hand and legs and the body lay next to the grave where Nyamawi’s child had been buried. PW4 informed court that he did not ask who it was that had been killed and he did not identify him. That PW4 sat until the police arrived at 2.00 am to collect the body and take photographs. PW4 stated that the photographs he was shown in court were of his dead son-in-law- MF1P1 (a)(b)(c). That the following day he went to Lunga Lunga Police Station. PW4 said that the Accused Person is the wife to the deceased person’s brother.
12. PW5, No. 60026 CPL Emmanuel Kondo said that he was attached to CID Mombasa County working as Scene of Crime Officer, Gazette Notice No. 5853 of 31.8.2001. PW5 stated that on 10.7.2017, while working in Kwale County as Scene of Crime Officer, he received a DVD which was forwarded vide Exhibit Memo Form by PC Kiplagat of Lunga Lunga DCI. That he was required to receive the CD and print photographs from it. That the photographs were said to have been taken from the scene of murder.
13. PW5 testified that the 1st photograph showed the body of a male African with injuries on the head and left hand and the body was lying on its back. That the 2nd photograph showed the body a close view with a big hoe near on the left side of the body. That the 3rd photograph was a close-up of the face of the deceased for purposes of identification. PW5 said he prepared a certificate to confirm that he printed the photograph personally and without interference. PW5 produced the three photographs EXP1 (a)(b)(c), Certificate EXP1 (d), and the Exhibit Memo Form that forwarded the CD EXP1 (e).
14. PW6, Umazi Kenya informed court that the deceased was her husband. That on 22.6.2017 at 11.00 am, she was at home when her husband, the deceased, returned from a meeting and informed her that the grandchild to her brother had died. That at 4.00 pm, she left home for the funeral. PW6 said when she arrived at her brother-in-law’s home, she found that her husband had been killed. She stated that she found that the child had already been buried and her husband was lying on the ground near the child’s grave. PW6 said that her husband had a cut on the head and her brother-in-law’s wife, Mwenda, said that she is the one who had killed the deceased. That the police went and took the body of the deceased at 2.00 am and the Accused Person told her that she killed PW6’s husband because he was a witch.
15. PW7, Dr. Fatma Ahmed from Coast General Hospital testified that she had a medical report in respect to Lewa Chiwaya. She said that Dr. Salim Saif conducted the postmortem on 30.6.2017 at 11.15 am at Coast General Hospital. That according to the general observation, the body was in a checked shirt and a green pair of trousers, belt, and boxer which were all soiled with blood. PW7 said the body was of a male African with fair nutrition, height of 169 cm, and that the body was refrigerated. That externally, there was a deep cut on the left lower limb 5x3 cm cut. That there were no fractures and that there was a cut on the forehead measuring 6x4 cm deep.
16. PW7 said that on internal examination on the head, there was right parietal deep cut with scalp haematoma. There was a fracture of the right parietal scalp with massive epidural and subdural haematoma blood collected above and below covering of the brain. PW7 informed court that the other systems were normal. That according to the doctor’s opinion, as to the cause of death, there were several traumatic head injuries with communicated fracture of the skull and massive epidural and subdural haematoma secondary to assault. PW7 said the Postmortem Report was typed, signed and stamped. That PW7 worked with Dr. Salim for two years but went outside the country for further studies.
17. PW8, No. 92232 P. C. George Ochieng’ attached at DCI Lunga Lunga, testified that the initial Investigating Officer was CPL Kiplagat but was in Bomet County attending to an emergency at home. PW8 stated that he went through the file. That he was together with CPL Kiplagat during investigations. PW8 said that on 22.6.2017 at around 7.00 pm, the OCS Lunga Lunga Police Station CIP Loitanet informed DCIO CIP Mundi that he had received information from the Assistant Chief Kasemeni Sub-location that there was a murder incident in Peoni village. That they proceeded to the said village and arrived at 10.00 pm.
18. PW8 testified that on arrival, they found that there was a child who had died and had already been buried. Beside the grave was the body of the deceased Lewa Chiwaya. That the body had a cut on the head and the left arm. That they interrogated those were there and they learnt that it is the Accused Person Mwenda Kombo Mwamose who had cut the deceased. That upon interrogating the suspect, she admitted that she killed the deceased on allegations the deceased bewitched her grandson who had had been buried the same day. PW8 said they recovered the jembe that had been used to commit the murder. That they arrested the suspect and escorted her to Lunga Lunga Police Station. That the following day witnesses were summoned and they went and recorded their statement.
19. PW8 stated that on 26.6.2017, the Accused Person was arraigned at Kwale Law Courts to seek for more time for investigations and they were granted 10 days within which they escorted the suspect for mental assessment at Coast General Hospital. That P. C. Guchu attended the postmortem at Coast General Hospital on 30.6.2017. That they also took the Suspect to Diani Police Station where the Deputy DCIO CIP George Muchui recorded her confession statement. That the deceased was later brought to court and charged. PW8 stated that he remained at the station as CPL Kiplagat and other colleagues went to the scene. That the jembe was handed over to the police by the area Chairman Tsuma Mwarocha and that the jembe was in court which PW8 produced as EXP2.
Defence Case
20. The Accused, Mwenda Kombo Mwamose was sworn in Duruma and she said she knows that she was charged with the offence of murder of Lewa Chiwaya who was her husband’s younger brother. She said that on 22.6.2019, she recalled that her grandchild had died, the child was 3 years old but the child was not taken to the mortuary. The Accused Person said that the mother of the child was contacted by the father and she went for the burial. The Accused Person said that she was inside the house and did not understand if there was a problem. That Lewa Chiwaya went for the funeral of the child who had died. That she did not understand what happened, she just was Chiwaya had fallen dead beside the grave.
21. The Accused person testified that they buried the child and shortly thereafter the Accused Person saw the police car arrive. When they arrived, she was ordered to board and when she asked why they said they would tell her at the police station. The Accused Person testified that she is the only one who boarded the police vehicle and she was taken to Lunga Lunga Police Station. She said she did not know how long she took at the station and that the police spoke to her in Kiswahili but she did not understand. That it is not true she claimed that Lewa had bewitched her grandchild. That nobody saw her kill Lewa Chiwaya using a jembe. She stated that there were jembes at the grave site and she was in the house. That during funeral arrangements, women are normally in the background.
22. DW1, Nyamawi Chiwaya testified that the Accused Person is his wife. He said that his grandchild died which forced him to go and relay the information to the mother of the child who is also his daughter. DW1 informed court that he then went back home to wait for his daughter as they were to have a burial the same day. That his daughter arrived at 3.00 pm and viewed the body as the grave was being dug. DW1 stated that he left again at 4.30 pm to go and make a phone call to his elder daughter and when he came back, he did not find anyone at home. That the body of the child was buried at 8.30 pm.
23. DW1 said that when he returned and found another man lying dead on the ground near the grave. That DW1 inquired from his wife what had happened and he was told that they had not come out of the house. That they heard people making noise outside but they did not get out. DW1 said that he made a phone call to the village chairman who in turn called the police who went and collected the body of the deceased. The police also asked DW1’s wife to accompany them to the station. That the following day when DW1 went to the station, he learnt that she was suspected of having killed.
Analysis and Determination
24. In consideration of the evidence of 8 prosecution witnesses and in consideration of the defence witnesses’ sworn statements and submissions, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
25. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -
‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
26. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
Death of the deceased
27. Death of the deceased is not in dispute. PW1 stated that at 5.00 pm while on his way home, he was informed that the deceased had been killed. When he went to scene, he saw that the deceased had injuries on the left side of the head. PW2 stated that when he went to the scene of crime, he found the deceased had been cut with jembes on the left hand and on the left side of the head. PW3 stated that when he went to the home of Mzee Nyamawi, the body of the deceased was lying beside the grave bleeding and that the murder had already been committed.
28. PW4 stated that when he went to attend the burial, he found that another person had been cut and left at the grave dead. That the deceased had panga cuts on the head, hand and legs, and the body lay next to the grave where Nyamawi’s child had been buried. PW6 stated that when she arrived at the brother-in-law’s home, she found that her husband had been killed. She stated that the child had already been buried and her husband was lying on the ground dead near the child’s grave. That her husband had a cut on the head and her brother-in-law’s wife, Mwenda said that she is the one who had killed the deceased.
29. PW7, Dr. Fatma Ahmed from Coast General Hospital had a report of the postmortem conducted by Dr. Salim Saif which confirmed death of the deceased which resulted from traumatic head injuries with communicated fracture of the skull and massive epidural and subdural haematoma secondary to assault. PW8, the Investigating Officer, stated that when they arrived at the scene, they found that there was a child who had died and already been buried, and beside the grave was the body of the deceased Lewa Chiwaya. That the body had a cut on the head and the left arm.
Whether death was caused by an unlawful act or omission
30. PW1 stated that the mother Mwenda and two children were beating up Mzee Lewa Chiwaya with a stick and that he tried to defend him but he was overpowered. According to PW2, Mama Mwenda and her daughters assaulted the deceased. He stated that he tried to stop the fight but he was overpowered, and that the deceased was beaten badly and told to resurrect the child. PW4 stated that the deceased had panga cuts on the head, hand and legs, and the body lay next to the grave where Nyamawi’s child had been buried. PW6 stated that the deceased who was her husband had been killed and he had a cut on the head. PW8 stated that the deceased had a cut on the head and the left arm.
31. That externally, there was a deep cut on the left lower limb 5x3 cm cut. That there were no fractures and that there was a cut on the forehead measuring 6x4 cm deep. That on internal examination on the head, there was right parietal deep cut with scalp haematoma. There was a fracture of the right parietal scalp with massive epidural and subdural haematoma blood collected above and below covering of the brain. According to the doctor’s opinion, as to the cause of death, there were several traumatic head injuries with communicated fracture of the skull and massive epidural and subdural haematoma secondary to assault.
32. Criminal law requires proof of acts and omissions at the very least on the part of the accused that take the form of an act of assault, striking, beating, shooting or stabbing in order to bring the conduct within the element of unlawfulness in the offence of murder.
Participation of the accused in the commission of the alleged offence
33. The Accused Person stated that she was in the house and did not understand what was happening. DW1 also stated that when he inquired from his wife what had happened, he was told that they heard people making noise outside but they did not get out. On the contrary, PW8 stated that they found that there was a child who had died and had already been buried. Beside the grave was the body of the deceased Lewa Chiwaya. That the body had a cut on the head and the left arm. That they interrogated those were there and they learnt that it is the Accused Person Mwenda Kombo Mwamose who had cut the deceased. That upon interrogating the Accused, she admitted that she killed the deceased on allegations the deceased bewitched her grandson who had had been buried the same day.
Malice aforethought
34. Section 206 of the Penal Code defines malice aforethought as follows: -
“Malice aforethought shall be deemed to be established by evidence proving anyone 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 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 act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
35. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -
“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”
36. Evidence of prosecution witnesses show that there was express malice aforethought on the part of the Accused Person as she intended to kill the deceased. The evidence of PW1 and PW2 shows that they tried to stop the fight but were overpowered by the Accused Person and her daughters who were beating up the deceased. Further, the injuries caused on the body of the deceased shows the intention of the Accused Person of killing the deceased. PW7 stated that there was a deep cut on the left lower limb 5x3 cm cut, there was right parietal deep cut with scalp haematoma, there was a fracture of the right parietal scalp with massive epidural and subdural haematoma blood collected above and below covering of the brain, several traumatic head injuries with communicated fracture of the skull and massive epidural and subdural haematoma secondary to assault.
37. In conclusion, this court finds that the prosecution has proved its case beyond reasonable doubt. The Accused Person is guilty of the offence of murder and convicted accordingly.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 10th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for the State
Ms. Musyoki Advocate for the Accused Person
Accused person present in person
Mr. Ngiri: No previous records.
Ms. Musyoki: I pray for Pre-Sentence Report
Order: Mention on 25.6.2024 for mitigation, pre-sentence report, victim impact statement. Accused Person to be remanded in custody at Shimo La Tewa Women Prison.
1. The accused person MWENDA KOMBO MWAMOSE faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 of the Laws of Kenya.
2. The particulars are that on the 22nd day of June 2017 at Peoni Village in Lunga Lunga Division within Kwale County murdered LEWA CHIWAYA.
3. The prosecution called 8 witnesses to support its case that the accused person committed the offence herein.
4. The Accused Person filed submissions on no case to answer and she was placed on defence.
Prosecution Case
5. PW1, Tsuma Kasim Mwarocha stated that on 22.6.2017 at around 6.30 am, he was at home and as the chairman of the village, he received a call from a neighbor called Nyamawi Mazera who told him that his grandchild had died. PW1 said that he went to the scene at around 9.45 am and found Mzee Nyamawi, his wife Mama Mwenda Kombo, two daughters, three grandchildren and the body of the deceased. That after digging the grave, the child could not be buried as the mother had not arrived. That when the mother of the child arrived at 2 pm, she went to look at the child for the last time and discovered the body was in a normal state and said that the child was not dead.
6. PW1 informed court that he went to the mosque for prayers at 4.00 pm and when he came back, there was fighting in the family. That the mother Mwenda and two children were beating up Mzee Lewa Chiwaya with a stick. PW1 said that he tried to defend him but he was overpowered. PW1 decided to call the Chief for assistance and the Chief informed him to report the issue to the police which he did. That at 5.00 pm, he decided to go home and while on his way, he was informed that Mzee Lewa had been killed. He informed the Chief and his Assistant about it and explained to the Chief what had happened. The Chief told PW1 to wait for the police vehicle to take the police to the scene of crime. That when PW1 got to the scene, he saw the deceased had injuries on the left side of the head.
7. PW1 testified that Mzee Nyamawi told him that three deaths had been caused by Mzee Lewa Chiwaya. That Mama Mwenda said she is the one who killed Mzee Lewa Chiwaya. According to PW1, officers took photographs of the scene, put the body of the deceased inside the vehicle and Mama Mwenda was also arrested. PW1 said that there was a weapon which was also taken from the scene. He stated that the 3rd pictures showed the left hand which was mutilated, marked MFI (a)(b)(c). That the jembe which was the weapon was in court marked MFI 2. PW1 identified Mama Mwenda as the Accused Person in court. That he knew her prior to the incident and that she is a resident in the village where PW1 is the chairman.
8. PW2, Simba Marinda stated that on 22.6.2017 at about 2.30 am, he was at home when he got a report that the grandchild of Nyamawi had died. That he went for the burial with his wife and brother’s wife, and found around 15 people at the scene. PW2 said that after digging the grave, they waited for the mother of the child to arrive. When she arrived, she said the child had fainted as the body was still alive. PW2 testified that he went with the deceased to check and the confirmed that the body was not stiff. That the sister of the deceased brought up the issue of witchcraft and that there were two sides. When the deceased approached them to ask who was bewitching them, the sister said it was him and they started beating him. That Mama Mwenda and her daughters assaulted the deceased. PW2 tried to stop the fighting but was overpowered. That the deceased was beaten badly and told to resurrect the child.
9. PW2 said that he went away and later heard that Mzee Chiwaya had died. When PW2 went to the scene, he found the deceased had been cut with jembes on the left hand and the left side of the head. That he saw the jembe that had been used to dig the grave at the scene. The said jembe was in court and identified by PW2 as EX P2. PW2 also identified Mama Mwenda as the Accused Person in court and knew her as a neighbor and he knew her for about 3 years. He said that he has never disagreed with Mama Mwenda and he witnessed her say that she is the one who had killed the deceased and that she was tired because every year they were burying a family member and it was the deceased who was responsible.
10. PW3, Kamanza Kenya informed court that on 22.6.2017 he was at Kituamba when his aunt’s child died and he proceeded to the home of Mzee Nyamawi and when he arrived, he saw the body of his in-law Lewa Chiwaya lying beside the grave and was bleeding. That on 23.6.2017, he went to Lunga Lunga Police Station. That when he arrived at the funeral, he found that the murder had already been committed. PW3 said that the deceased was the one in the photograph in court MFIP1 (a)(b)(c). That the deceased was his brother-in-law and the brother to Nyamawi. PW3 also said that the Accused Person is his in-law and the wife to Nyamawi and that PW3’s sister was married to the deceased.
11. PW4, Kenya Joga testified that Lewa Chiwaya was his son-in-law. He said that on 22.6.2017 when he went back home from work, his wife informed him that Nyamawi’s child had died. He therefore went to attend the burial. He found that another person had been cut and left at the grave dead. That the deceased had panga cuts on the head, hand and legs and the body lay next to the grave where Nyamawi’s child had been buried. PW4 informed court that he did not ask who it was that had been killed and he did not identify him. That PW4 sat until the police arrived at 2.00 am to collect the body and take photographs. PW4 stated that the photographs he was shown in court were of his dead son-in-law- MF1P1 (a)(b)(c). That the following day he went to Lunga Lunga Police Station. PW4 said that the Accused Person is the wife to the deceased person’s brother.
12. PW5, No. 60026 CPL Emmanuel Kondo said that he was attached to CID Mombasa County working as Scene of Crime Officer, Gazette Notice No. 5853 of 31.8.2001. PW5 stated that on 10.7.2017, while working in Kwale County as Scene of Crime Officer, he received a DVD which was forwarded vide Exhibit Memo Form by PC Kiplagat of Lunga Lunga DCI. That he was required to receive the CD and print photographs from it. That the photographs were said to have been taken from the scene of murder.
13. PW5 testified that the 1st photograph showed the body of a male African with injuries on the head and left hand and the body was lying on its back. That the 2nd photograph showed the body a close view with a big hoe near on the left side of the body. That the 3rd photograph was a close-up of the face of the deceased for purposes of identification. PW5 said he prepared a certificate to confirm that he printed the photograph personally and without interference. PW5 produced the three photographs EXP1 (a)(b)(c), Certificate EXP1 (d), and the Exhibit Memo Form that forwarded the CD EXP1 (e).
14. PW6, Umazi Kenya informed court that the deceased was her husband. That on 22.6.2017 at 11.00 am, she was at home when her husband, the deceased, returned from a meeting and informed her that the grandchild to her brother had died. That at 4.00 pm, she left home for the funeral. PW6 said when she arrived at her brother-in-law’s home, she found that her husband had been killed. She stated that she found that the child had already been buried and her husband was lying on the ground near the child’s grave. PW6 said that her husband had a cut on the head and her brother-in-law’s wife, Mwenda, said that she is the one who had killed the deceased. That the police went and took the body of the deceased at 2.00 am and the Accused Person told her that she killed PW6’s husband because he was a witch.
15. PW7, Dr. Fatma Ahmed from Coast General Hospital testified that she had a medical report in respect to Lewa Chiwaya. She said that Dr. Salim Saif conducted the postmortem on 30.6.2017 at 11.15 am at Coast General Hospital. That according to the general observation, the body was in a checked shirt and a green pair of trousers, belt, and boxer which were all soiled with blood. PW7 said the body was of a male African with fair nutrition, height of 169 cm, and that the body was refrigerated. That externally, there was a deep cut on the left lower limb 5x3 cm cut. That there were no fractures and that there was a cut on the forehead measuring 6x4 cm deep.
16. PW7 said that on internal examination on the head, there was right parietal deep cut with scalp haematoma. There was a fracture of the right parietal scalp with massive epidural and subdural haematoma blood collected above and below covering of the brain. PW7 informed court that the other systems were normal. That according to the doctor’s opinion, as to the cause of death, there were several traumatic head injuries with communicated fracture of the skull and massive epidural and subdural haematoma secondary to assault. PW7 said the Postmortem Report was typed, signed and stamped. That PW7 worked with Dr. Salim for two years but went outside the country for further studies.
17. PW8, No. 92232 P. C. George Ochieng’ attached at DCI Lunga Lunga, testified that the initial Investigating Officer was CPL Kiplagat but was in Bomet County attending to an emergency at home. PW8 stated that he went through the file. That he was together with CPL Kiplagat during investigations. PW8 said that on 22.6.2017 at around 7.00 pm, the OCS Lunga Lunga Police Station CIP Loitanet informed DCIO CIP Mundi that he had received information from the Assistant Chief Kasemeni Sub-location that there was a murder incident in Peoni village. That they proceeded to the said village and arrived at 10.00 pm.
18. PW8 testified that on arrival, they found that there was a child who had died and had already been buried. Beside the grave was the body of the deceased Lewa Chiwaya. That the body had a cut on the head and the left arm. That they interrogated those were there and they learnt that it is the Accused Person Mwenda Kombo Mwamose who had cut the deceased. That upon interrogating the suspect, she admitted that she killed the deceased on allegations the deceased bewitched her grandson who had had been buried the same day. PW8 said they recovered the jembe that had been used to commit the murder. That they arrested the suspect and escorted her to Lunga Lunga Police Station. That the following day witnesses were summoned and they went and recorded their statement.
19. PW8 stated that on 26.6.2017, the Accused Person was arraigned at Kwale Law Courts to seek for more time for investigations and they were granted 10 days within which they escorted the suspect for mental assessment at Coast General Hospital. That P. C. Guchu attended the postmortem at Coast General Hospital on 30.6.2017. That they also took the Suspect to Diani Police Station where the Deputy DCIO CIP George Muchui recorded her confession statement. That the deceased was later brought to court and charged. PW8 stated that he remained at the station as CPL Kiplagat and other colleagues went to the scene. That the jembe was handed over to the police by the area Chairman Tsuma Mwarocha and that the jembe was in court which PW8 produced as EXP2.
Defence Case
20. The Accused, Mwenda Kombo Mwamose was sworn in Duruma and she said she knows that she was charged with the offence of murder of Lewa Chiwaya who was her husband’s younger brother. She said that on 22.6.2019, she recalled that her grandchild had died, the child was 3 years old but the child was not taken to the mortuary. The Accused Person said that the mother of the child was contacted by the father and she went for the burial. The Accused Person said that she was inside the house and did not understand if there was a problem. That Lewa Chiwaya went for the funeral of the child who had died. That she did not understand what happened, she just was Chiwaya had fallen dead beside the grave.
21. The Accused person testified that they buried the child and shortly thereafter the Accused Person saw the police car arrive. When they arrived, she was ordered to board and when she asked why they said they would tell her at the police station. The Accused Person testified that she is the only one who boarded the police vehicle and she was taken to Lunga Lunga Police Station. She said she did not know how long she took at the station and that the police spoke to her in Kiswahili but she did not understand. That it is not true she claimed that Lewa had bewitched her grandchild. That nobody saw her kill Lewa Chiwaya using a jembe. She stated that there were jembes at the grave site and she was in the house. That during funeral arrangements, women are normally in the background.
22. DW1, Nyamawi Chiwaya testified that the Accused Person is his wife. He said that his grandchild died which forced him to go and relay the information to the mother of the child who is also his daughter. DW1 informed court that he then went back home to wait for his daughter as they were to have a burial the same day. That his daughter arrived at 3.00 pm and viewed the body as the grave was being dug. DW1 stated that he left again at 4.30 pm to go and make a phone call to his elder daughter and when he came back, he did not find anyone at home. That the body of the child was buried at 8.30 pm.
23. DW1 said that when he returned and found another man lying dead on the ground near the grave. That DW1 inquired from his wife what had happened and he was told that they had not come out of the house. That they heard people making noise outside but they did not get out. DW1 said that he made a phone call to the village chairman who in turn called the police who went and collected the body of the deceased. The police also asked DW1’s wife to accompany them to the station. That the following day when DW1 went to the station, he learnt that she was suspected of having killed.
Analysis and Determination
24. In consideration of the evidence of 8 prosecution witnesses and in consideration of the defence witnesses’ sworn statements and submissions, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
25. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -
‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
26. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
Death of the deceased
27. Death of the deceased is not in dispute. PW1 stated that at 5.00 pm while on his way home, he was informed that the deceased had been killed. When he went to scene, he saw that the deceased had injuries on the left side of the head. PW2 stated that when he went to the scene of crime, he found the deceased had been cut with jembes on the left hand and on the left side of the head. PW3 stated that when he went to the home of Mzee Nyamawi, the body of the deceased was lying beside the grave bleeding and that the murder had already been committed.
28. PW4 stated that when he went to attend the burial, he found that another person had been cut and left at the grave dead. That the deceased had panga cuts on the head, hand and legs, and the body lay next to the grave where Nyamawi’s child had been buried. PW6 stated that when she arrived at the brother-in-law’s home, she found that her husband had been killed. She stated that the child had already been buried and her husband was lying on the ground dead near the child’s grave. That her husband had a cut on the head and her brother-in-law’s wife, Mwenda said that she is the one who had killed the deceased.
29. PW7, Dr. Fatma Ahmed from Coast General Hospital had a report of the postmortem conducted by Dr. Salim Saif which confirmed death of the deceased which resulted from traumatic head injuries with communicated fracture of the skull and massive epidural and subdural haematoma secondary to assault. PW8, the Investigating Officer, stated that when they arrived at the scene, they found that there was a child who had died and already been buried, and beside the grave was the body of the deceased Lewa Chiwaya. That the body had a cut on the head and the left arm.
Whether death was caused by an unlawful act or omission
30. PW1 stated that the mother Mwenda and two children were beating up Mzee Lewa Chiwaya with a stick and that he tried to defend him but he was overpowered. According to PW2, Mama Mwenda and her daughters assaulted the deceased. He stated that he tried to stop the fight but he was overpowered, and that the deceased was beaten badly and told to resurrect the child. PW4 stated that the deceased had panga cuts on the head, hand and legs, and the body lay next to the grave where Nyamawi’s child had been buried. PW6 stated that the deceased who was her husband had been killed and he had a cut on the head. PW8 stated that the deceased had a cut on the head and the left arm.
31. That externally, there was a deep cut on the left lower limb 5x3 cm cut. That there were no fractures and that there was a cut on the forehead measuring 6x4 cm deep. That on internal examination on the head, there was right parietal deep cut with scalp haematoma. There was a fracture of the right parietal scalp with massive epidural and subdural haematoma blood collected above and below covering of the brain. According to the doctor’s opinion, as to the cause of death, there were several traumatic head injuries with communicated fracture of the skull and massive epidural and subdural haematoma secondary to assault.
32. Criminal law requires proof of acts and omissions at the very least on the part of the accused that take the form of an act of assault, striking, beating, shooting or stabbing in order to bring the conduct within the element of unlawfulness in the offence of murder.
Participation of the accused in the commission of the alleged offence
33. The Accused Person stated that she was in the house and did not understand what was happening. DW1 also stated that when he inquired from his wife what had happened, he was told that they heard people making noise outside but they did not get out. On the contrary, PW8 stated that they found that there was a child who had died and had already been buried. Beside the grave was the body of the deceased Lewa Chiwaya. That the body had a cut on the head and the left arm. That they interrogated those were there and they learnt that it is the Accused Person Mwenda Kombo Mwamose who had cut the deceased. That upon interrogating the Accused, she admitted that she killed the deceased on allegations the deceased bewitched her grandson who had had been buried the same day.
Malice aforethought
34. Section 206 of the Penal Code defines malice aforethought as follows: -
“Malice aforethought shall be deemed to be established by evidence proving anyone 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 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 act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
35. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -
“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”
36. Evidence of prosecution witnesses show that there was express malice aforethought on the part of the Accused Person as she intended to kill the deceased. The evidence of PW1 and PW2 shows that they tried to stop the fight but were overpowered by the Accused Person and her daughters who were beating up the deceased. Further, the injuries caused on the body of the deceased shows the intention of the Accused Person of killing the deceased. PW7 stated that there was a deep cut on the left lower limb 5x3 cm cut, there was right parietal deep cut with scalp haematoma, there was a fracture of the right parietal scalp with massive epidural and subdural haematoma blood collected above and below covering of the brain, several traumatic head injuries with communicated fracture of the skull and massive epidural and subdural haematoma secondary to assault.
37. In conclusion, this court finds that the prosecution has proved its case beyond reasonable doubt. The Accused Person is guilty of the offence of murder and convicted accordingly.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 10th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for the State
Ms. Musyoki Advocate for the Accused Person
Accused person present in person
Mr. Ngiri: No previous records.
Ms. Musyoki: I pray for Pre-Sentence Report
Order: Mention on 25.6.2024 for mitigation, pre-sentence report, victim impact statement. Accused Person to be remanded in custody at Shimo La Tewa Women Prison.