Introduction
The accused person was 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 were that on the night of 22 nd and 23 rd January, 2017 at Gandini village, Chonyi division within Kilifi County the accused persons jointly with other murdered Daniel Nzai Kombe.
The Prosecution case
The prosecution called a total of 16 witnesses whose evidence was as follows: -
PW 1 SADA LEWA WAZIRO , recalled on 23 rd January, 2017, she was at home selling Tembo to her customers. She knew some of the customers but did not know some others. He knew Daniel Nzai, he came to her home with Mlanda and she sold them two bottles of tembo. When they finished drinking, they bid her goodbye and went to their homes while she remained in her house. The witness told the court that she knew Kiti he came and greeted Daniel Nzai. Dan and Mlanda were the last as her ‘tembo’ was finished. Kiti left before Mlanda and Daniel.
She told the court that she usually closed her business at 8 pm when she finished her traditional drink ‘tembo’; Mlanda, Kiti and Daniel left at 11 pm; she would close late where there was still ‘tembo’ and customers were still drinking. On the material day, she left them drinking outside and she went inside. The following day at 7 am; she saw people at the road side when she got close she saw Daniel Nzai lying down; he had left her house with Mlanda.
PW 1 returned to her house; Daniel did not complain about anything when he came to his house. He drunk tembo at her house. She could not recall hearing any noise being that her house was very close to the road where Daniel was laying. She identified Kiti in court as the 2 nd Accused. She also confirmed to know the 3 rd Accused he was known as Kalama but she did not see him on the day Daniel was at her house.
When cross examined she stated that Kiti did not drink tembo at her house; it was Daniel and Mlanda who were drinking. When the two were drinking, they did not quarrel. She saw them talking; when Kiti came they were quarreling with him. Her house she stated was near the road and she saw the body of Daniel at the road. There was no blood when she saw the body; the place was a slope and his head was facing the road. It had not rained, he did not see any indication that the deceased had fallen and slid. The deceased was drunk before he left her house. She did not see anyone kill the deceased.
She further told the court that the deceased came at 6 pm to her house. She sold them 2 bottles of tembo with Mlanda. They drank until 11 pm. It was dark on that night but it had not rained.
When reexamined she stated that she did not recall when she went to sleep; by the time she went to sleep Kiti had left and left Mlanda and the deceased who were still drinking.
PW 2 MLANDA ZIRO , recalled on 22 nd January, 2017, he was with Mzee Daniel Nzai at 8 am to drink tembo; they drank two bottles, the next place they drank two bottles as well. He was the one buying the drinks for Daniel at the house of Dizo, where after they went to another joint owned by Mama Sinitatisi and they drank two more bottles of Mnazi/ Tembo. He stayed up at the joint until 8 pm with Daniel. There were other customers at the joint. They drank from 3 pm to late in the night. At around 8 pm they decided to go home. They left Kalama, Kiti and Mama Zada and Toa. While they were crossing the road they saw the deceased on the ground.
The witness tried to assist the deceased as there was vehicle passing. He helped the deceased up; he had an injury on his mouth. The deceased did not stand up; the witness shouted so that he could get help. He started looking after the deceased and he stayed there for 2 hours that’s when he saw people. When people came he did not get any assistance. After that PW 2 went to the police station (Gandini Police Station) where he reported that he was with his brother called Toa.
PW 2 confirmed that he was with Kalama and Kiti whom he identified in Court as the 3 rd Accused and 2 nd Accused respectively. According to the witness Kiti and Kalama were talking to Daniel. He went and recorded a statement in which he stated that Chilango said he would kill Daniel and his son. Daniel never responded. He knew Chilango who he stated came from Gandini village. PW 2 told the court that Daniel was his employee.
PW2 stated that when a motor vehicle emerged ahead and with the head Lampson, he saw three people following them, and he recognized them as the three accused persons. The three went to where the deceased was and he heard the deceased shouting for help. After sometime the deceased went silent and the three accused walked away. PW2 then went and reached to where the deceased was to check , but he realized he was not talking.
When cross examined he stated that he had told the court that he was drinking with Daniel while Chilango, Kiti and Kalama came. That when Daniel fell down he did not loose consciousness. He did not see anyone else close to the deceased he was with the deceased when he died. That Ziro and the deceased never quarreled. The fight was between Kalama and Daniel; Ziro did not have a problem with Daniel neither did he see Ziro at the scene. He was alone and he left the deceased there and went to sleep. He told the court he was too sleepy.
PW 3 TOA CHIKUMBO , told the court that he was at the shop on 22 nd January, 2017 then he went to the Mwembeni Club to greet his grandmother who was sick . While at Mwembeni Club he started drinking; he bought one bottle of alcohol. Kiti Ngombo came and asked for a bottle of tembo and he was told the same was finished. The witness left at 3 pm that night. He only knew Kiti whom he found drinking at the club. He left and went back to his home. The place according to the witness belonged to Aunty Zada Lewa who was the one who gave him a drink.
PW 3 stated that in the morning he heard that Daniel Nzai had died. He was shocked because he was with the deceased at Mwembeni and he had also seen Mlanda Ziro with Daniel. He went to Mlanda’s house and found him and inquired what had happened. The witness sent to the body; the deceased was laying on the ground facing the road in a place a tractor had dug. Police were called and the witness took the child to school and the body was removed. He wrote his statement at Mtwapa Base at CID. He knew the deceased for many years. He identified Kiti in court (2 nd Accused); he found him at Mwembeni but the witness left him there. He knew the 1 st Accused stating that they called him Marua but his name was Kalama.
PW 3 told the court that he also knew the 3 rd Accused although he was not at Mwembeni. Kiti found him at Mwembeni but he did not drink alcohol as it was finished. When he heard that Daniel was dead, he went to the home of Mlanda Ziro. He did not come out of his house neither did he tell him anything. The witness did not know what caused the death of the deceased because he was not there when he died.
PW 3 confirmed that he did not see the 3 rd Accused. The witness was the one who told Mlanda to go and report. He told Mlanda that he was with the deceased. The witness informed the village elder. He was there when the body was taken to the mortuary. He did not go to Kilifi. The witness told the court that he tried to wake up Mlanda but Mlanda did not wake up neither did he come to the body. There was a …under the body of the deceased which Mlanda said belonged to him. The witness saw blood coming out of the deceased’ mouth.
PW 4 THOMAS NYALE KITI , testified that on 23 rd January, 2017 at around 6 am while he was at home he received information that the deceased his father in law had died and his body had been found on the road side in Gandini area. He informed the area chief and the D.O.’s office in Chonyi about the incidence to inform him about the situation. When he reached the scene he found the deceased’s body which was laying in a trench alongside the road. The deceased had his shirt and shoes on, the shirt had blood stains.
PW 4 told the court that he was aware there was a land dispute between the 1 st Accused Person and the deceased. When cross examined he stated that he was married to the niece of the deceased. He was the one who told the chief about the land dispute. The 2 nd Accused person resided in Gandini, he was a neighbor about two compounds. He knew Mlanda Ziro; he heard the deceased had been drinking with him. He did not know who was the last person seen with the deceased. Doris was the one who told him about the deceased.
On the topography of the road, the witness told the court that the road had been dug and there was a trench. The witness could not say that the deceased slid and fell. The deceased did not have any bruises on the face. If the deceased fell off, he would have been bruised. The blood was on the head. He could not recall the time the body was taken by the police. With reference to particulars stolen, the witness told the court that the deceased had shoes on and a hat on the head. The 2 nd picture showed that the deceased with a straw but there was no alcohol.
When reexamined he stated that the 1 st Accused was a neighbor; they were not related; when he went to the scene. Many people had arrived. The injury was at the back of the head.
PW 5 LENOX MUTENGO MWAMBAKU , told the court that the on 23 rd January, 2017, when he informed by Nicholas Kalama of the deceased death who was his uncle. He rushed to the scene and found the deceased laying dead at the road side at a trench. He had a kofia (cap) which had blood on it. His shirt also had blood. There were many people at the scene. After a short time, the deceased’s phone rang from his pocket. The witness’ sister removed it and gave it to the first person; the caller wanted to know if the phone belonged to the deceased. The caller did not leave his name. The second call was from Laazaro; the witness told him what had happened and Lazaro instructed him to go to the chief.
When cross examined he stated that when he got to the scene there were many people; he could not say if the deceased fell or he had been pushed. From the way he was laying, the witness told the court he had to have been put there because if he had fallen he would have supported himself with his hands. The deceased was laying on his stomach but his head had been turned. This was not the way of to the deceased home; his house was at Gondini after the school.
The witness did not where the deceased had been drinking although he had the place was near where he was found dead.
PW 6 EMMANUEL KOMBE NZAI , told the court that on 23 rd January, 2017 at around 8:00 a.m he was informed that the father had been found dead by the roadside. That on 22 nd January 2017 the deceased had called him and expressed his concerns about threats he was receiving from the 1 st accused. That the 1 st accused had threatened to kill him. That he is aware that the 1 st accused had alleged that the land title registration no. Kilifi/Chasimba/63 belonged to him.
He told the court that he was the deceased’s son. He told the court that his father the deceased had called him that morning concerned about a complaint he had made. The OB report that Chilango Kalama Kiti who had threatened him. The OB number was OB 05/11/12/2016 of Bandasalama Chief’s camp. The title deed for the piece of land Kilifi/ Chasimba/ 63 was marked as MFI 2. On 23 rd January, 2017, the witness travelled to Kilifi and went to the Kilifi District hospital and attended the post mortem for the deceased which post mortem report was marked as MFI 2.
When cross examined he stated that he knew the 2 nd Accused person from the neighborhood in Gondini. He had no dispute with the deceased. The witness had no information against the 2 nd Accused of him having made any threats against the deceased. Mulanda Ziro was the one who told him that the 2 nd accused was involved in the commission of the offence which led to the dad’s death. The witness did not know the 3 rd Accused who also came from Gandini neighborhood. Mulanda insisted that the three accused persons were the last people to see the deceased alive.
PW 7 SARAH TUMAINI NZAI , the deceased daughter stated on the 23 rd January 2017 at around 6:20 a.m. while she was on her way to work, she received a call informing her that the deceased had been found dead by the roadside. She proceeded to the Kijipwa police station to report the matter since she was aware the deceased had been receiving death threats from Nzai. She told the court that her father had called her and told her that the 1 st Accused person had tried to attack him at a funeral from the back but people shouted and his father turned her and she evaded the attack. She told the father to report the matter to the police at Bandasalama.
PW 8 MBURA MWASAMBU MBURA , stated that the deceased is his cousin. That on the 8 th December, 2016, the deceased had visited him and informed him that he had been threatened by the 1st accused person and at some point the 1 st accused had assaulted him while at a neighbour’s funeral because of a dispute over a parcel land. That on the 23 rd January 2017 while at his home he received information that his cousin, the deceased, had been murdered. The witness immediately proceeded to the scene of the murder. He saw the deceased body was lying beside the road, the body facing downwards, his face facing the side. He had his shoes on cap on his head blood on the cap but no body injuries were seen.
PW 9 KALAMA NDEWA MGUNYA , told the court that the village elder stated that on the 23 rd January 2017, around 5.30am he received a call of the deceased death. He later went to the crime scene where he found the deceased body lying down. Officers from the Kijipwa police station arrived. The police carried out their necessary procedures, took possession of the body, and he then returned home.
PW 10 MARY MWAMBARO , testified that the deceased sister, stated that on the 23 rd January 2017, she was informed by PW5 of the deceased death. She went to the scene they found the deceased's lifeless body lying beside the road. The scene was undisturbed, and there were no signs of confrontation.
PW11 PASCAL HAMISI KAHANGA, confirmed that there was indeed a land dispute between the deceased person and the 1 st accused person. He knew the deceased as a neighbor in his father’s land in Kilifi/Chasimba/64 and the deceased’s piece of land Kilifi/Chasimba/63. He knew the deceased from the year of 2003 until his death. The witness knew Chilango Kalama Kiti in the year 2004 because he started cultivating in his father’s land; whom he identified as the 1 st Accused. The witness gave a background on the land dispute stating that the 1 st Accused person was claiming that the deceased did not buy the piece of land Kilifi/ Chasimba/63 but that what he had bought was the trees on that parcel of land.
The deceased was residing on another piece of land. Kalama Kiti sold a piece of land to the deceased. Kalama Kiti, Saa Mategwe and Gari Kiti were left 2.6 hectares. They returned Kilifi/ Chasimba/53 after selling Kilifi/ Chasimba/63 and Kilifi/ Chasimba/ 64. According to the witness he was never threatened by anyone but Daniel used to call him and tell him that he had been threatened over the land by the 1 st Accused person.
When cross examined he confirmed that he had not filed a complaint in court against the 1 st Accused person. He had never gone back to the shamba since the 1 st Accused person chased his workers away. He had never been threatened by anyone and his father used to cultivate on the said land. When shown MFI 1 the witness told the court that the title registration was done in the name of Daniel Nzai Kombe and issued on 30 th September ………………….(the year was not clear).
When reexamined he reiterated that his father went to court to give evidence as the land was registered in his name. he was alive at the time. The title for Kilifi/ Chasimba/64 was issued in 1982 not 1972.
PW12 CPL DOUGLAS G. KARISA , stated that he works at Banda La Salama police camp. That on the 24 th January 2017 PW6 informed them that he suspected the1^st accused person was responsible for the murder of his father, the deceased person. The murder had occurred on the 22 nd January 2017. In response to this information, Inspector A. Amwoka, together with PW6, apprehended the 1 st accused. He was immediately taken to Kijipwa Police Station for further investigation and necessary police procedures.
The witness told the court that Sgt. Kadzomba drew a sketch plan of the scene of incident, recorded witness statement and exhibits. He collected a white cap marked as MFI 4; a shirt marked as MFI 5. Sgt Kadzomba also drew a sketch plan and recorded statements from the prosecution witnesses. He also arrested the accused persons.
According to the witness the evidence showed that the deceased had gone to take Mnazi and he was beaten by three people namely Chilango Kalama Kiti, Ziro Lewa Ndunyo and Kiti Ngombo Tinga. The witness did not know them. According to the evidence the deceased had bought a piece of land from Chilango’s father land parcel number Kilifi/ Chilango/ 63 which was 1.2 hectares. It was registered in the name of Daniel Nzai Kombe. Chilango told the deceased that he was residing in a piece of land which was not his as it belonged to his father. Chilango
PW 13 CI JOSHUA NYAMBU SHOKA, stated that he was the current investigating officer. He took over the matter from the initial investigating officer Sgt Kadzomba who died on 11 th August, 2021. The investigating officer recorded witness statement and visited the scene. The evidence gathered by the investigating officer was that on the night of 22 nd January, 2017 the deceased had gone drinking Mnazi when the three accused persons attacked him and killed him over a land dispute.
PW2 had recorded in his statement he left the Mnazi den together with the deceased when a motor vehicle emerged ahead and with the head lamps he saw three people following them, whom he recognized as the three accused person. The three went out where the deceased was and he heard the deceased shouting for help. After sometime the deceased went silent and the three accused walked away. PW2 reached to check the deceased but he realized he was not talking. He went to his home and reported the matter the following day. He produced the exhibits the tittle deed, the cap and the shirt.
The witness confirmed from the witnesses and as per his investigations that the deceased had gone to take mnazi and he was beaten by three people namely Chilango Kalama Kiti, Ziro Lewa Ndunyo and Kiti Ngombo Tinga. The witness did not know them. According to the evidence, the witness had bought a piece of land from Chilango’s father. The title number was Kilifi/ Chasimba/63 which was 1.2 hectares. It was registered in the name of Daniel Nzai Kombe. Another piece of Land was Kilifi/ Chasimba/55 which was 2.6 hectares in the name of Ngari Kiti, Saa Mwatembwe Saa and Kalama Kiti. Chilango told the deceased that he was residing on a piece of land which was not his as it belonged to his father. Chilango had told the deceased to move from the shamba.
According to the witness the title deed for Kilifi/ Chasimba/63 identified as MFI 1. Investigations revealed that the deceased was the owner of the two parcels of land. Investigations also revealed that after taking Mnazi (statement of Sgt Kadzomba) in the company of Mlanda going wtowards home about 200 metres away a rough road; a vehicle emerged ahead of them with the headlights on. They turned back and saw 3 people following them. When the deceased saw the 3 people and recalled how he had been threatened by Chilango because of the parcel of land Kilifi/Chasimba/ 63. That Chilango started running away. Unfortunately he fell down. The three people passed Mlanda and went to the place where the deceased had fallen. Mlanda could hear the deceased shouting and asking for help telling the deceased that he had told him to move from the shamba and he had refused to do so and that he would then finish him.
Investigations showed that the deceased continued screaming until he went silent. No one went to help them. Another vehicle emerged ahead with its headlights on the light enabled Mlanda to see that the three people were going towards him. Mlanda took a log and waited for them. The vehicle drove away and the 3 men went to the bush and disappeared. Mlanda went back to where the deceased was attacked and found that he had passed on. The following day Mlanda reported that the deceased had been attacked. Investigations started and the deceased’s body was taken to Kilifi County Hospital Mortuary for post mortem examination the post mortem report was present in court. The post mortem report was identified as MFI 2. On 20 th January, 2023, he recorded his statement based on the initial investigation.
The witness produced a certified copy title deed for Kilifi/Chasimba/63 in the name of Daniel Nzai Kombe ID No. 5010091 issued on 30 th September, 2018 which he produced as Pex 3.
PW 14 BERNARD OTIENO ODUOR , a clinical officer testified on the post mortem report and stated that the on the external appearance of the body; the head and neck had a semicircular marks on the anterior neck. There has a bruise on the angle of the mouth. On rotating the neck it was going beyond 180 degrees. According to the witness there was blood stains on the trousers, shirt and cap. His clothes were dusty. The body was pale; his pupils were fixe and the body was cold. The body was producing an odor. The abdomen was distended. At the time of the post mortem, there were no signs of decomposition. On external appearance of the body, the head and neck had circular marks on the anterior neck.
The neck had a fracture of the cervical vertebrae and hematoma. The cause of death was respiratory failure due to cervical fracture following strangulation. The post-mortem report was produced as Pex 2a and 2b.
When cross examined he stated that he was not a pathologist neither did he work at the mortuary at Kilifi County Hospital. He did not fill the post mortem report. Dr. Mansur was not a pathologist; he was a general doctor but was a doctor at the time he conducted the post mortem examination. The current pathologist reported to work in 2022. The deceased died on the night of 22 nd January, 2017 and 23 rd January, 2017. The deceased shirt, cap and trousers had blood stains. His clothes were dusty.
When reexamined he stated that the doctor did not conclude that the deceased died as a result of a fall. The fracture of the cervical vertebrae was as a result of strangulation.
PW 15 OMAR MWIDADI , a government analyst produced the government analyst Pex 7 which was the report memo dated 23 rd January, 2017 and the report dated 2 nd February, 2017 as Pex 16 the same was for blood samples, the DNA of the blood found on the deceased’s shirt. When cross examined he stated that the exhibit memo was prepared by Sgt. Kadzomba which was dated 2 nd February, 2017. The time and place where exhibits were found, showed the time was 1000 his 23 rd January, 2014. The exhibit were found by the OCS Kijipwa. There was no court order accompanying the exhibit memo. The blood samples were brought to them. The exhibits were brought to them on 2 nd February, 2017. The tests were done on 17 th July, 2017 five months after receipt of the exhibits. Blood can be contaminated if it was not property stored. He did not know if the police have storage facilities like theirs. He did not know who drew blood from the accused person. It took 5 months before the DNA analysis was analyzed. All the exhibits were with the government analyst.
The witness stated that there was no mention of the name Ziro Lewa Ndunyo in the government chemist report. The report bears the name of Mlanda Ziro Mlanda. The blood of the accused persons was not found on the shirt that was marked as exhibit D and the Cap marked as exhibit C in the exhibit memo form.
PW16 CI KULICHA , the scenes of crime officer produced the photographs as PEX 1(a)-1(i). He testified that on 10 th December, 2022 at about 11.30 am, he received in a sealed packed reference CR 312/18/2017 sent by Chief Inspector Shoka requesting that he should examine the CD and prepare the photographic prints. The letter and package were dated and signed by himself and annexed hereto as an exhibit before the court as stated above. The certificate was produced as exhibit 8(a) and request letter as exhibit 8(b).
When cross examined he stated that the scene of crime offices did not attend to the scene. The source of the photographs was Chief Inspector Shoka. He did not know who took the documents the CD .brought to him. The item that was brought to him was the CD. He was still had the CD. The CD was bought to him by the chief Inspector Shoka. The letter dated 23 rd January, 2017 was written by Sgt Kadzomba. The chief Inspector Shoka brought the CD to him. There were no photographs taken outside the mortuary.
The Defence Case
DW 1 Chilango Kalama Kiti , the Accused told the court that he knew Daniel Nzai Kombe. His father and the deceased’s father used to laon each other trees over the yeas.The trees belonged to the accused person’s father who died in 1997. The bailing was in 1967 / 1968. The witness told the court that his father was to pay. He finished paying the debt to Daniel Nzai Kombe. Their homes were 2 kms apart. They moved to their area and the deceased’s family were their immediate neigbours. The deceased did not have a plot of land near their home. When shown the title for Kilifi/ Chasimba/ 65 he told the court that the title was for their land. The registered owners were his father, Saa Kiti was his elder uncle while Kalama Kiti was his younger uncle. According to the accused person Saa Mwajembe was his uncle (baba mdogo in swahili).
DW 1 told the court that he resided on the said land as Kiti. The witness told the court that the deceased was claiming the land; the case was solved; DW 1 went to Kilifi Law Courts before Hon. Ndunyu and he won his claim. They had concluded the case and had no land dispute. It was not true that there was a pending land dispute. He recalled that on 22 nd January, 2017 he was not in the mnazi den. He knew the alcohol seller (PW 1). He used to go there but it was long since he had visited the place. He was in Malindi for a medical issue. He came back the same day on 23 rd January, 2017 and was at home. He heard that Daniel had died. He went to Malindi on 23 rd January, 2017; he was called on the same day he was taken to the DO’s office, Chonyi and was being accused of murder.
DW 1 told the court that he was taken to Kijipwa Police Station then Mtwapa Police Station. He saw PW 1 in the vehicle. She had been arrested. He left PW 1 at Kijipwa. At Port Reitz this was someone before DW 2 was arrested. PW 2 and himself were taken to Chanzu. He stayed there for 15 years. He was taken before court. After investigations he was taken to the police station. It was after this that the 2 nd Accused was brought. After 15 days he was in custody. He was not taken to Chanzu. After 3 days afterwards the 2 nd Accused as he was brought to court. The DNA and blood tests were carried out for him and the 2 nd Accused person. Mlanda testified that the 2 nd Accused went to drink mnazi.
DW 1 testified that if it was not true that he had beaten the deceased. He was not there. The deceased was buried at his home. He did not have a reason to kill the deceased.
When cross examined he stated that his father …………. Oranges. There was no agreement. The deceased was claiming the entire land. The land was Kilifi/ Chasimba/ 65 and had no dispute. The deceased said according to the accused person that the accused’s father had sold Plot 63. The deceased was the title holder. The Accused person told the court that he removed the deceased from Plot 63 then he went to court.
The accused person did not know when he was in Malindi according to his cross examination whether it was on 22 nd January, 2017 or 23 rd January, 2017. He insisted that he was at home though PW 1 said that he was at the den, he was not there. He averred that he was not with PW 2 on the material date.
When reexamined he stated that the land dispute was on Plot 55 not Plot 63.
DW 2 DAMARIS KIWETI KARISA , told the court that the 1 st Accused person was her husband; she knew the deceased but she was not acquainted to him; they had a land dispute and they were residing in the disputed land. The deceased was not a neighbor and she knew his house. On 22 nd January, 2017, she was at home and had husband had gone to Malindi. In the morning they had that the deceased was found dead near Gandini Primary School. She went to the scene and she was the body which was beside the road. PW 2 was the one who held the body of the deceased. Besides the body she stated that there was a small cup of mnazi. There was a shoe on the head. The next day was when the police went to her house and arrested the husband. She later learnt that he had been charged with the murder of the deceased.
When cross examined she confirmed that she knew her co – wives and the child of the 1 st Accused. She confirmed that it was only their house that was on the suit property. On 22 nd January, 2017, her husband came home at 5 pm. She knew Mama Sindi’s den (PW 1) and she knew the accused. She could not recall who told her about the passing of the deceased. (At this point the court made a note that the witness was lying).
DW 2 proceeded to state that the deceased died 10 minutes away from their home. The 1 st Accused did not go to the scene of where the body was found.
DW 3 KITI NGOMBO TINGA , 2 nd accused person told the court that he did not know the 1 st an
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The accused person was 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 were that on the night of 22 nd and 23 rd January, 2017 at Gandini village, Chonyi division within Kilifi County the accused persons jointly with other murdered Daniel Nzai Kombe.
The Prosecution case
The prosecution called a total of 16 witnesses whose evidence was as follows: -
PW 1 SADA LEWA WAZIRO , recalled on 23 rd January, 2017, she was at home selling Tembo to her customers. She knew some of the customers but did not know some others. He knew Daniel Nzai, he came to her home with Mlanda and she sold them two bottles of tembo. When they finished drinking, they bid her goodbye and went to their homes while she remained in her house. The witness told the court that she knew Kiti he came and greeted Daniel Nzai. Dan and Mlanda were the last as her ‘tembo’ was finished. Kiti left before Mlanda and Daniel.
She told the court that she usually closed her business at 8 pm when she finished her traditional drink ‘tembo’; Mlanda, Kiti and Daniel left at 11 pm; she would close late where there was still ‘tembo’ and customers were still drinking. On the material day, she left them drinking outside and she went inside. The following day at 7 am; she saw people at the road side when she got close she saw Daniel Nzai lying down; he had left her house with Mlanda.
PW 1 returned to her house; Daniel did not complain about anything when he came to his house. He drunk tembo at her house. She could not recall hearing any noise being that her house was very close to the road where Daniel was laying. She identified Kiti in court as the 2 nd Accused. She also confirmed to know the 3 rd Accused he was known as Kalama but she did not see him on the day Daniel was at her house.
When cross examined she stated that Kiti did not drink tembo at her house; it was Daniel and Mlanda who were drinking. When the two were drinking, they did not quarrel. She saw them talking; when Kiti came they were quarreling with him. Her house she stated was near the road and she saw the body of Daniel at the road. There was no blood when she saw the body; the place was a slope and his head was facing the road. It had not rained, he did not see any indication that the deceased had fallen and slid. The deceased was drunk before he left her house. She did not see anyone kill the deceased.
She further told the court that the deceased came at 6 pm to her house. She sold them 2 bottles of tembo with Mlanda. They drank until 11 pm. It was dark on that night but it had not rained.
When reexamined she stated that she did not recall when she went to sleep; by the time she went to sleep Kiti had left and left Mlanda and the deceased who were still drinking.
PW 2 MLANDA ZIRO , recalled on 22 nd January, 2017, he was with Mzee Daniel Nzai at 8 am to drink tembo; they drank two bottles, the next place they drank two bottles as well. He was the one buying the drinks for Daniel at the house of Dizo, where after they went to another joint owned by Mama Sinitatisi and they drank two more bottles of Mnazi/ Tembo. He stayed up at the joint until 8 pm with Daniel. There were other customers at the joint. They drank from 3 pm to late in the night. At around 8 pm they decided to go home. They left Kalama, Kiti and Mama Zada and Toa. While they were crossing the road they saw the deceased on the ground.
The witness tried to assist the deceased as there was vehicle passing. He helped the deceased up; he had an injury on his mouth. The deceased did not stand up; the witness shouted so that he could get help. He started looking after the deceased and he stayed there for 2 hours that’s when he saw people. When people came he did not get any assistance. After that PW 2 went to the police station (Gandini Police Station) where he reported that he was with his brother called Toa.
PW 2 confirmed that he was with Kalama and Kiti whom he identified in Court as the 3 rd Accused and 2 nd Accused respectively. According to the witness Kiti and Kalama were talking to Daniel. He went and recorded a statement in which he stated that Chilango said he would kill Daniel and his son. Daniel never responded. He knew Chilango who he stated came from Gandini village. PW 2 told the court that Daniel was his employee.
PW2 stated that when a motor vehicle emerged ahead and with the head Lampson, he saw three people following them, and he recognized them as the three accused persons. The three went to where the deceased was and he heard the deceased shouting for help. After sometime the deceased went silent and the three accused walked away. PW2 then went and reached to where the deceased was to check , but he realized he was not talking.
When cross examined he stated that he had told the court that he was drinking with Daniel while Chilango, Kiti and Kalama came. That when Daniel fell down he did not loose consciousness. He did not see anyone else close to the deceased he was with the deceased when he died. That Ziro and the deceased never quarreled. The fight was between Kalama and Daniel; Ziro did not have a problem with Daniel neither did he see Ziro at the scene. He was alone and he left the deceased there and went to sleep. He told the court he was too sleepy.
PW 3 TOA CHIKUMBO , told the court that he was at the shop on 22 nd January, 2017 then he went to the Mwembeni Club to greet his grandmother who was sick . While at Mwembeni Club he started drinking; he bought one bottle of alcohol. Kiti Ngombo came and asked for a bottle of tembo and he was told the same was finished. The witness left at 3 pm that night. He only knew Kiti whom he found drinking at the club. He left and went back to his home. The place according to the witness belonged to Aunty Zada Lewa who was the one who gave him a drink.
PW 3 stated that in the morning he heard that Daniel Nzai had died. He was shocked because he was with the deceased at Mwembeni and he had also seen Mlanda Ziro with Daniel. He went to Mlanda’s house and found him and inquired what had happened. The witness sent to the body; the deceased was laying on the ground facing the road in a place a tractor had dug. Police were called and the witness took the child to school and the body was removed. He wrote his statement at Mtwapa Base at CID. He knew the deceased for many years. He identified Kiti in court (2 nd Accused); he found him at Mwembeni but the witness left him there. He knew the 1 st Accused stating that they called him Marua but his name was Kalama.
PW 3 told the court that he also knew the 3 rd Accused although he was not at Mwembeni. Kiti found him at Mwembeni but he did not drink alcohol as it was finished. When he heard that Daniel was dead, he went to the home of Mlanda Ziro. He did not come out of his house neither did he tell him anything. The witness did not know what caused the death of the deceased because he was not there when he died.
PW 3 confirmed that he did not see the 3 rd Accused. The witness was the one who told Mlanda to go and report. He told Mlanda that he was with the deceased. The witness informed the village elder. He was there when the body was taken to the mortuary. He did not go to Kilifi. The witness told the court that he tried to wake up Mlanda but Mlanda did not wake up neither did he come to the body. There was a …under the body of the deceased which Mlanda said belonged to him. The witness saw blood coming out of the deceased’ mouth.
PW 4 THOMAS NYALE KITI , testified that on 23 rd January, 2017 at around 6 am while he was at home he received information that the deceased his father in law had died and his body had been found on the road side in Gandini area. He informed the area chief and the D.O.’s office in Chonyi about the incidence to inform him about the situation. When he reached the scene he found the deceased’s body which was laying in a trench alongside the road. The deceased had his shirt and shoes on, the shirt had blood stains.
PW 4 told the court that he was aware there was a land dispute between the 1 st Accused Person and the deceased. When cross examined he stated that he was married to the niece of the deceased. He was the one who told the chief about the land dispute. The 2 nd Accused person resided in Gandini, he was a neighbor about two compounds. He knew Mlanda Ziro; he heard the deceased had been drinking with him. He did not know who was the last person seen with the deceased. Doris was the one who told him about the deceased.
On the topography of the road, the witness told the court that the road had been dug and there was a trench. The witness could not say that the deceased slid and fell. The deceased did not have any bruises on the face. If the deceased fell off, he would have been bruised. The blood was on the head. He could not recall the time the body was taken by the police. With reference to particulars stolen, the witness told the court that the deceased had shoes on and a hat on the head. The 2 nd picture showed that the deceased with a straw but there was no alcohol.
When reexamined he stated that the 1 st Accused was a neighbor; they were not related; when he went to the scene. Many people had arrived. The injury was at the back of the head.
PW 5 LENOX MUTENGO MWAMBAKU , told the court that the on 23 rd January, 2017, when he informed by Nicholas Kalama of the deceased death who was his uncle. He rushed to the scene and found the deceased laying dead at the road side at a trench. He had a kofia (cap) which had blood on it. His shirt also had blood. There were many people at the scene. After a short time, the deceased’s phone rang from his pocket. The witness’ sister removed it and gave it to the first person; the caller wanted to know if the phone belonged to the deceased. The caller did not leave his name. The second call was from Laazaro; the witness told him what had happened and Lazaro instructed him to go to the chief.
When cross examined he stated that when he got to the scene there were many people; he could not say if the deceased fell or he had been pushed. From the way he was laying, the witness told the court he had to have been put there because if he had fallen he would have supported himself with his hands. The deceased was laying on his stomach but his head had been turned. This was not the way of to the deceased home; his house was at Gondini after the school.
The witness did not where the deceased had been drinking although he had the place was near where he was found dead.
PW 6 EMMANUEL KOMBE NZAI , told the court that on 23 rd January, 2017 at around 8:00 a.m he was informed that the father had been found dead by the roadside. That on 22 nd January 2017 the deceased had called him and expressed his concerns about threats he was receiving from the 1 st accused. That the 1 st accused had threatened to kill him. That he is aware that the 1 st accused had alleged that the land title registration no. Kilifi/Chasimba/63 belonged to him.
He told the court that he was the deceased’s son. He told the court that his father the deceased had called him that morning concerned about a complaint he had made. The OB report that Chilango Kalama Kiti who had threatened him. The OB number was OB 05/11/12/2016 of Bandasalama Chief’s camp. The title deed for the piece of land Kilifi/ Chasimba/ 63 was marked as MFI 2. On 23 rd January, 2017, the witness travelled to Kilifi and went to the Kilifi District hospital and attended the post mortem for the deceased which post mortem report was marked as MFI 2.
When cross examined he stated that he knew the 2 nd Accused person from the neighborhood in Gondini. He had no dispute with the deceased. The witness had no information against the 2 nd Accused of him having made any threats against the deceased. Mulanda Ziro was the one who told him that the 2 nd accused was involved in the commission of the offence which led to the dad’s death. The witness did not know the 3 rd Accused who also came from Gandini neighborhood. Mulanda insisted that the three accused persons were the last people to see the deceased alive.
PW 7 SARAH TUMAINI NZAI , the deceased daughter stated on the 23 rd January 2017 at around 6:20 a.m. while she was on her way to work, she received a call informing her that the deceased had been found dead by the roadside. She proceeded to the Kijipwa police station to report the matter since she was aware the deceased had been receiving death threats from Nzai. She told the court that her father had called her and told her that the 1 st Accused person had tried to attack him at a funeral from the back but people shouted and his father turned her and she evaded the attack. She told the father to report the matter to the police at Bandasalama.
PW 8 MBURA MWASAMBU MBURA , stated that the deceased is his cousin. That on the 8 th December, 2016, the deceased had visited him and informed him that he had been threatened by the 1st accused person and at some point the 1 st accused had assaulted him while at a neighbour’s funeral because of a dispute over a parcel land. That on the 23 rd January 2017 while at his home he received information that his cousin, the deceased, had been murdered. The witness immediately proceeded to the scene of the murder. He saw the deceased body was lying beside the road, the body facing downwards, his face facing the side. He had his shoes on cap on his head blood on the cap but no body injuries were seen.
PW 9 KALAMA NDEWA MGUNYA , told the court that the village elder stated that on the 23 rd January 2017, around 5.30am he received a call of the deceased death. He later went to the crime scene where he found the deceased body lying down. Officers from the Kijipwa police station arrived. The police carried out their necessary procedures, took possession of the body, and he then returned home.
PW 10 MARY MWAMBARO , testified that the deceased sister, stated that on the 23 rd January 2017, she was informed by PW5 of the deceased death. She went to the scene they found the deceased's lifeless body lying beside the road. The scene was undisturbed, and there were no signs of confrontation.
PW11 PASCAL HAMISI KAHANGA, confirmed that there was indeed a land dispute between the deceased person and the 1 st accused person. He knew the deceased as a neighbor in his father’s land in Kilifi/Chasimba/64 and the deceased’s piece of land Kilifi/Chasimba/63. He knew the deceased from the year of 2003 until his death. The witness knew Chilango Kalama Kiti in the year 2004 because he started cultivating in his father’s land; whom he identified as the 1 st Accused. The witness gave a background on the land dispute stating that the 1 st Accused person was claiming that the deceased did not buy the piece of land Kilifi/ Chasimba/63 but that what he had bought was the trees on that parcel of land.
The deceased was residing on another piece of land. Kalama Kiti sold a piece of land to the deceased. Kalama Kiti, Saa Mategwe and Gari Kiti were left 2.6 hectares. They returned Kilifi/ Chasimba/53 after selling Kilifi/ Chasimba/63 and Kilifi/ Chasimba/ 64. According to the witness he was never threatened by anyone but Daniel used to call him and tell him that he had been threatened over the land by the 1 st Accused person.
When cross examined he confirmed that he had not filed a complaint in court against the 1 st Accused person. He had never gone back to the shamba since the 1 st Accused person chased his workers away. He had never been threatened by anyone and his father used to cultivate on the said land. When shown MFI 1 the witness told the court that the title registration was done in the name of Daniel Nzai Kombe and issued on 30 th September ………………….(the year was not clear).
When reexamined he reiterated that his father went to court to give evidence as the land was registered in his name. he was alive at the time. The title for Kilifi/ Chasimba/64 was issued in 1982 not 1972.
PW12 CPL DOUGLAS G. KARISA , stated that he works at Banda La Salama police camp. That on the 24 th January 2017 PW6 informed them that he suspected the1^st accused person was responsible for the murder of his father, the deceased person. The murder had occurred on the 22 nd January 2017. In response to this information, Inspector A. Amwoka, together with PW6, apprehended the 1 st accused. He was immediately taken to Kijipwa Police Station for further investigation and necessary police procedures.
The witness told the court that Sgt. Kadzomba drew a sketch plan of the scene of incident, recorded witness statement and exhibits. He collected a white cap marked as MFI 4; a shirt marked as MFI 5. Sgt Kadzomba also drew a sketch plan and recorded statements from the prosecution witnesses. He also arrested the accused persons.
According to the witness the evidence showed that the deceased had gone to take Mnazi and he was beaten by three people namely Chilango Kalama Kiti, Ziro Lewa Ndunyo and Kiti Ngombo Tinga. The witness did not know them. According to the evidence the deceased had bought a piece of land from Chilango’s father land parcel number Kilifi/ Chilango/ 63 which was 1.2 hectares. It was registered in the name of Daniel Nzai Kombe. Chilango told the deceased that he was residing in a piece of land which was not his as it belonged to his father. Chilango
PW 13 CI JOSHUA NYAMBU SHOKA, stated that he was the current investigating officer. He took over the matter from the initial investigating officer Sgt Kadzomba who died on 11 th August, 2021. The investigating officer recorded witness statement and visited the scene. The evidence gathered by the investigating officer was that on the night of 22 nd January, 2017 the deceased had gone drinking Mnazi when the three accused persons attacked him and killed him over a land dispute.
PW2 had recorded in his statement he left the Mnazi den together with the deceased when a motor vehicle emerged ahead and with the head lamps he saw three people following them, whom he recognized as the three accused person. The three went out where the deceased was and he heard the deceased shouting for help. After sometime the deceased went silent and the three accused walked away. PW2 reached to check the deceased but he realized he was not talking. He went to his home and reported the matter the following day. He produced the exhibits the tittle deed, the cap and the shirt.
The witness confirmed from the witnesses and as per his investigations that the deceased had gone to take mnazi and he was beaten by three people namely Chilango Kalama Kiti, Ziro Lewa Ndunyo and Kiti Ngombo Tinga. The witness did not know them. According to the evidence, the witness had bought a piece of land from Chilango’s father. The title number was Kilifi/ Chasimba/63 which was 1.2 hectares. It was registered in the name of Daniel Nzai Kombe. Another piece of Land was Kilifi/ Chasimba/55 which was 2.6 hectares in the name of Ngari Kiti, Saa Mwatembwe Saa and Kalama Kiti. Chilango told the deceased that he was residing on a piece of land which was not his as it belonged to his father. Chilango had told the deceased to move from the shamba.
According to the witness the title deed for Kilifi/ Chasimba/63 identified as MFI 1. Investigations revealed that the deceased was the owner of the two parcels of land. Investigations also revealed that after taking Mnazi (statement of Sgt Kadzomba) in the company of Mlanda going wtowards home about 200 metres away a rough road; a vehicle emerged ahead of them with the headlights on. They turned back and saw 3 people following them. When the deceased saw the 3 people and recalled how he had been threatened by Chilango because of the parcel of land Kilifi/Chasimba/ 63. That Chilango started running away. Unfortunately he fell down. The three people passed Mlanda and went to the place where the deceased had fallen. Mlanda could hear the deceased shouting and asking for help telling the deceased that he had told him to move from the shamba and he had refused to do so and that he would then finish him.
Investigations showed that the deceased continued screaming until he went silent. No one went to help them. Another vehicle emerged ahead with its headlights on the light enabled Mlanda to see that the three people were going towards him. Mlanda took a log and waited for them. The vehicle drove away and the 3 men went to the bush and disappeared. Mlanda went back to where the deceased was attacked and found that he had passed on. The following day Mlanda reported that the deceased had been attacked. Investigations started and the deceased’s body was taken to Kilifi County Hospital Mortuary for post mortem examination the post mortem report was present in court. The post mortem report was identified as MFI 2. On 20 th January, 2023, he recorded his statement based on the initial investigation.
The witness produced a certified copy title deed for Kilifi/Chasimba/63 in the name of Daniel Nzai Kombe ID No. 5010091 issued on 30 th September, 2018 which he produced as Pex 3.
PW 14 BERNARD OTIENO ODUOR , a clinical officer testified on the post mortem report and stated that the on the external appearance of the body; the head and neck had a semicircular marks on the anterior neck. There has a bruise on the angle of the mouth. On rotating the neck it was going beyond 180 degrees. According to the witness there was blood stains on the trousers, shirt and cap. His clothes were dusty. The body was pale; his pupils were fixe and the body was cold. The body was producing an odor. The abdomen was distended. At the time of the post mortem, there were no signs of decomposition. On external appearance of the body, the head and neck had circular marks on the anterior neck.
The neck had a fracture of the cervical vertebrae and hematoma. The cause of death was respiratory failure due to cervical fracture following strangulation. The post-mortem report was produced as Pex 2a and 2b.
When cross examined he stated that he was not a pathologist neither did he work at the mortuary at Kilifi County Hospital. He did not fill the post mortem report. Dr. Mansur was not a pathologist; he was a general doctor but was a doctor at the time he conducted the post mortem examination. The current pathologist reported to work in 2022. The deceased died on the night of 22 nd January, 2017 and 23 rd January, 2017. The deceased shirt, cap and trousers had blood stains. His clothes were dusty.
When reexamined he stated that the doctor did not conclude that the deceased died as a result of a fall. The fracture of the cervical vertebrae was as a result of strangulation.
PW 15 OMAR MWIDADI , a government analyst produced the government analyst Pex 7 which was the report memo dated 23 rd January, 2017 and the report dated 2 nd February, 2017 as Pex 16 the same was for blood samples, the DNA of the blood found on the deceased’s shirt. When cross examined he stated that the exhibit memo was prepared by Sgt. Kadzomba which was dated 2 nd February, 2017. The time and place where exhibits were found, showed the time was 1000 his 23 rd January, 2014. The exhibit were found by the OCS Kijipwa. There was no court order accompanying the exhibit memo. The blood samples were brought to them. The exhibits were brought to them on 2 nd February, 2017. The tests were done on 17 th July, 2017 five months after receipt of the exhibits. Blood can be contaminated if it was not property stored. He did not know if the police have storage facilities like theirs. He did not know who drew blood from the accused person. It took 5 months before the DNA analysis was analyzed. All the exhibits were with the government analyst.
The witness stated that there was no mention of the name Ziro Lewa Ndunyo in the government chemist report. The report bears the name of Mlanda Ziro Mlanda. The blood of the accused persons was not found on the shirt that was marked as exhibit D and the Cap marked as exhibit C in the exhibit memo form.
PW16 CI KULICHA , the scenes of crime officer produced the photographs as PEX 1(a)-1(i). He testified that on 10 th December, 2022 at about 11.30 am, he received in a sealed packed reference CR 312/18/2017 sent by Chief Inspector Shoka requesting that he should examine the CD and prepare the photographic prints. The letter and package were dated and signed by himself and annexed hereto as an exhibit before the court as stated above. The certificate was produced as exhibit 8(a) and request letter as exhibit 8(b).
When cross examined he stated that the scene of crime offices did not attend to the scene. The source of the photographs was Chief Inspector Shoka. He did not know who took the documents the CD .brought to him. The item that was brought to him was the CD. He was still had the CD. The CD was bought to him by the chief Inspector Shoka. The letter dated 23 rd January, 2017 was written by Sgt Kadzomba. The chief Inspector Shoka brought the CD to him. There were no photographs taken outside the mortuary.
The Defence Case
DW 1 Chilango Kalama Kiti , the Accused told the court that he knew Daniel Nzai Kombe. His father and the deceased’s father used to laon each other trees over the yeas.The trees belonged to the accused person’s father who died in 1997. The bailing was in 1967 / 1968. The witness told the court that his father was to pay. He finished paying the debt to Daniel Nzai Kombe. Their homes were 2 kms apart. They moved to their area and the deceased’s family were their immediate neigbours. The deceased did not have a plot of land near their home. When shown the title for Kilifi/ Chasimba/ 65 he told the court that the title was for their land. The registered owners were his father, Saa Kiti was his elder uncle while Kalama Kiti was his younger uncle. According to the accused person Saa Mwajembe was his uncle (baba mdogo in swahili).
DW 1 told the court that he resided on the said land as Kiti. The witness told the court that the deceased was claiming the land; the case was solved; DW 1 went to Kilifi Law Courts before Hon. Ndunyu and he won his claim. They had concluded the case and had no land dispute. It was not true that there was a pending land dispute. He recalled that on 22 nd January, 2017 he was not in the mnazi den. He knew the alcohol seller (PW 1). He used to go there but it was long since he had visited the place. He was in Malindi for a medical issue. He came back the same day on 23 rd January, 2017 and was at home. He heard that Daniel had died. He went to Malindi on 23 rd January, 2017; he was called on the same day he was taken to the DO’s office, Chonyi and was being accused of murder.
DW 1 told the court that he was taken to Kijipwa Police Station then Mtwapa Police Station. He saw PW 1 in the vehicle. She had been arrested. He left PW 1 at Kijipwa. At Port Reitz this was someone before DW 2 was arrested. PW 2 and himself were taken to Chanzu. He stayed there for 15 years. He was taken before court. After investigations he was taken to the police station. It was after this that the 2 nd Accused was brought. After 15 days he was in custody. He was not taken to Chanzu. After 3 days afterwards the 2 nd Accused as he was brought to court. The DNA and blood tests were carried out for him and the 2 nd Accused person. Mlanda testified that the 2 nd Accused went to drink mnazi.
DW 1 testified that if it was not true that he had beaten the deceased. He was not there. The deceased was buried at his home. He did not have a reason to kill the deceased.
When cross examined he stated that his father …………. Oranges. There was no agreement. The deceased was claiming the entire land. The land was Kilifi/ Chasimba/ 65 and had no dispute. The deceased said according to the accused person that the accused’s father had sold Plot 63. The deceased was the title holder. The Accused person told the court that he removed the deceased from Plot 63 then he went to court.
The accused person did not know when he was in Malindi according to his cross examination whether it was on 22 nd January, 2017 or 23 rd January, 2017. He insisted that he was at home though PW 1 said that he was at the den, he was not there. He averred that he was not with PW 2 on the material date.
When reexamined he stated that the land dispute was on Plot 55 not Plot 63.
DW 2 DAMARIS KIWETI KARISA , told the court that the 1 st Accused person was her husband; she knew the deceased but she was not acquainted to him; they had a land dispute and they were residing in the disputed land. The deceased was not a neighbor and she knew his house. On 22 nd January, 2017, she was at home and had husband had gone to Malindi. In the morning they had that the deceased was found dead near Gandini Primary School. She went to the scene and she was the body which was beside the road. PW 2 was the one who held the body of the deceased. Besides the body she stated that there was a small cup of mnazi. There was a shoe on the head. The next day was when the police went to her house and arrested the husband. She later learnt that he had been charged with the murder of the deceased.
When cross examined she confirmed that she knew her co – wives and the child of the 1 st Accused. She confirmed that it was only their house that was on the suit property. On 22 nd January, 2017, her husband came home at 5 pm. She knew Mama Sindi’s den (PW 1) and she knew the accused. She could not recall who told her about the passing of the deceased. (At this point the court made a note that the witness was lying).
DW 2 proceeded to state that the deceased died 10 minutes away from their home. The 1 st Accused did not go to the scene of where the body was found.
DW 3 KITI NGOMBO TINGA , 2 nd accused person told the court that he did not know the 1 st an
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