The 8 accused persons has been charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code, Cap 63 of the Laws of Kenya. The particulars of the offence are that, on the 15th day of April, 2017 the 8 accused persons together with others not before the court murdered one Jonathan Kasemo Kapombe at Kashani Village, in Kisauni Division within Mombasa County.
The accused persons pleaded not guilty to the charge.
The prosecution called a total of 11 witnesses.
The offence of murder is established under Section 203 of the Penal Code. The ingredients that must be proved beyond reasonable doubt are:
(a) The fact of the death of the deceased
(b) That the death was caused by an unlawful act or omission by the accused.
(c) That there was malice aforethought as defined under Section 206 of the Penal Code.
4. These essential elements were reiterated in the case of Anthony Ndegwa Ngari v. Republic [2014] eKLR, where the Court of Appeal stated that the prosecution must prove:
a) The death of the deceased and the cause of that death.
b) That the accused committed the unlawful act or omission that caused the death
. c) That the accused had malice aforethought.
5. Issues for determination.
a) The death of the deceased and the cause of that death.
b) Whether the accused committed the unlawful act or omission that caused the death. c) Whether the accused had malice aforethought.
PROSECUTION CASE
PWI KASIWAKASEMO KAPOMBE testified that one of the 4th accused persons went to his house and requested to be shown where the deceased house was and he showed him and the said accused person left with the Deceased and later while in his work fishing he received a call that the deceased had been killed. That he took a motorbike went home and his wife recounted to him what had happened.
PW2 NAOMI KASIWA KAPOMBE the wife of the deceased testified that she was at home and a lady came shouting that her son Kasemo was being killed by a group and she shouted to Jonathan that his son was being killed they rushed to where the group was beating Kasemo and when they saw Jonathan they said they were interested in him to go and record a statement at the police station an she left with her son to the hospital leaving Jonathan behind and on her way back she learned they had killed Jonathan.
8. PW 3 PETER KITI JEFWA testified that he was at home having lunch when he had noises from boda bodas hooting outside and when he went out her saw a huge crowd numbering to 1000 person bagging at his neighbors Tsumas ’s door calling him a thief and a lady in the crowd made a phone call and shouted the one they were looking for has been found and they went towards Jonathans house and drove away with him and after 40 minutes he heard Jonathan had been killed and he called the police and informed them of what transpired and he mentioned several names of people he had identified.
PW4 POLA KITSAU the second wife of the deceased and the mother Wilson Kasemo Kapombe testified that she was at home when one Furaha came shouting that boda boda riders were killing her son together with her husband and co-wife they went to where the incident was happening and upon see the deceased they left the son and said they actually wanted the father and they left with him claiming they were taking him to record a statement at the police station and they took the son to the hospital and later leant that Jonathan had been killed and burnt.
PW5 COSMAS testified that he received information from the village elder while at home that his cousin brother one Jonathan Kasemo had been set on fire and burnt and he immediately proceeded to the police station where he met officers already going to the scene of crime and he accompanied then and upon reaching there he saw a burnt body and the police took the body and he was later called to the mortuary to identify the body which he positively identified to be that of Jonathan Kasemo.
PW6 AND PW7 THE I.P AMD O.C.S BAMBURI POLICE STATATION both testified that they received information that boda boda riders had burnt a person to death and they proceeded to the crime scene took the body to the Mortuary and put the matter into investigation where several individuals were arrested in connection of the murder and brought before the court to face charges of murder.
PW8 was the brother of the deceased testified that one of the accused persons went to his house and requested to be shown where the deceased house was and he showed him and the said accused person left with the Deceased and later while in his work fishing he received a call that the deceased had been killed. That he took a motorbike went home and his wife recounted to him what had happened.
PW9 WILSON KASEMO KAPOMBE the son of the deceased testified that he left home to the shopping center at majaoni and while he was walking by the road he heard sounds of motorbikes and one person shouted that he was Jonathan Kapombe’s Son and they started throwing stones at him .That he saw his aunt among the group and she rushed to call his father. When the father arrived at the scene the bodaboda left him and said they actually wanted his father and took him saying he was going to record a statement at the police station he left with his mother to the hospital and later learnt they had killed his father .He was later called to the police station and a parade was conducted and he positively identified one person. A4 AND
PW11 THE INVESTIGATION OFFICER testified that he received information that a group of boda boda riders had killed and burnt a person and he was tasked with the duty to do the investigations and bring the culprits to book. He stated that during his investigation he was informed by key witnesses that the boda boda riders armed with rungus went to the house of the deceased and took him forcefully to Majaoni where they killed and burnt him. On Cross-examination with regards to the involvement of the accused persons testified that he was informed that he was one among the boda boda riders who went to the deceased house but he was not riding a motorbike he was being carried by another rider. When asked on the role played by the each of the accused persons he claimed that he was informed that they were among those beating the deceased with rungus. He further stated that the witness who informed him on the involvement of the 5 Accused persons later retracted his statement and refused to testify. Further on asked why the arrest of the accused persons took about two months and given that he claims he was actively involved as informed, he said that they went into hiding. When asked where they were hiding he stated in Kashani where the incident happened. He confirmed that when the 5th Accused was arrested he was not found with any motorbike or weapon and no Identification Parade was conducted he was just charged based on information that was later retracted by the said informer who the officer could not identify or name.
DEFENCE CASE
All the 8 accused persons testified and they all denied having committing the offence.
They further told the court that they heard from other people in the area about the death of one Jonathan Kasemo Kapombe, but none had any involvement with the incident at the time it occurred.
A4 confirmed that he was present at the scene and he carried the deceased on his motor bike . He however testified that this was in a bid to rescue his in law from the marauding mob. He said that along the way his motorbike ran out of fuel and the irate mob snatched the victim and lynched him. He called his wife and the village elder to support his good intentions in the whole saga.
The others emphasized that they were not involved in the incident in any way and were not present at the scene of the crime. T also testified that he was unexpectedly arrested approximately two months after the incident and was informed that he was being accused of being involved in the murder. They expressed shock at the arrest and maintained that they were innocent and had no role in the death of the deceased and were surprised to find themselves facing such serious allegations, insisting that they had been wrongfully accused.
The death of the deceased and the cause of that death.
The post mortem report produced in Court by PW10, Dr. Nafisa Seif from Coast General Hospital, indicated that the deceased was confirmed to be dead due to suffocation and 100% burn. However, the Post-Mortem report did not prove that the deceased was killed by the accused persons.
Further, all the Prosecution Witnesses testified and none of them testified to the fact that they saw any of the accused the accused commit the alleged offence.
b) That the accused persons committed the unlawful act or omission that caused the death. According to this element of the offence of murder, the Prosecution is required to establish that the death of the deceased resulted directly from an unlawful act or omission by the accused, which constitutes the actus reus of the offence.
The only evidence that touched on any of the accused persons was against A4. That he carried the deceased on his motor bike. He however called evidence to explain his actions.
Unfortunately, we did not get any witness who was present when A4’S motor bike stopped and the only version we have is that given by A4.
The investigating officer said that he had recorded statements from several eye witnesses. That however there was a lot of interferences and some witnesses recanted their evidence. He also mentioned that some witnesses were under witness protection but none of them came forward to testify.
Pw9, the son to the deceased testified that he was attacked by the irate mob. That when his parents went to rescue him the mob turned upon his father and said that he is the one they wanted. He confirmed that A4 rode off with the deceased while saying that he was taking him to the police station.
Pw9 added that he went to hospital and it was from there he heard that the father had been lynched . Therefore in as much as he identified some people, these are the ones who assaulted him or who were present at the original scene of crime but not where his late father was eventually killed.
From all this the court finds that the Prosecution witnesses did not establish that the accused persons committed or omitted any act that directly resulted in the death of the deceased this is so because non-of the witnesses who testified seeing any of the 8 Accused persons carrying any weapon, beating the deceased, setting him on fire or being a member of the boda boda riders.
Consequently, the element of actus reus has not been established beyond reasonable doubt.
While the Prosecution has succeeded in proving that the deceased is indeed dead, the evidence presented amounts largely to hearsay. As to the identity of the person responsible for the death, the witnesses merely speculated and pointed fingers, without offering concrete or credible proof linking the 8 accused persons to the unlawful act.
Whether 8 accused persons or any of them had malice aforethought .
In this case, the Court must determine whether the accused persons, acting with malice aforethought, inflicted the injuries that ultimately led to the death of the deceased. The ingredients of murder were further explained in the case of Roba Galma Wario Vs Republic [2015] eKLR where the court held that; “For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
. Section 206 defines malice aforethought as: “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances.
An intention to cause the death of or to do grievous arm to any person, whether that person is the person actually killed or not;
Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
An intent to commit a felony;
An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
Malice aforethought was defined in the in the case of Daniel Muthee Vs Republic Criminal Appeal No. 218 of 2005 (UR) cited in the case of Republic Vs Lawrence Mukaria & Another [2014] eKLR, Bosire, O’kubasu and Onyango Otieno JJA., while considering what constitutes malice aforethought observed as follows: “When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.”
Prosecution Witnesses 1 to 11 testified that, based on the information they received, the deceased died as a result of being set on fire. This was corroborated by the medical report, which confirmed that the cause of death was suffocation due to burns. However, none of the witnesses stated that they saw the any of the 8 accused person set the deceased on fire. Consequently, there is no direct evidence linking the 8 accused to the act, nor is there any indication that any of them intended to harm or cause the death of the deceased.
For malice aforethought to be established, the Prosecution must first prove the existence of the element of actus reus. In the present case, none of the Prosecution’s witnesses testified to having seen the 8 accused persons commit any act or omission that led to the death of the deceased. Their testimonies were based solely on what they had been told by others, and not on firsthand knowledge. Such evidence amounts to hearsay, which is inadmissible in law. This position is supported by the decision in LK v Republic [2020] eKLR, where the court relied on the case of Kinyatti v Republic, Criminal Appeal No. 60 of 1983 (CA), which held: “Hearsay or indirect evidence is the assertion of a person other than the witness who is testifying. It is not original evidence and is inadmissible.” Given that no admissible evidence has been presented to establish that the 8 accused persons committed any unlawful act or omission, the element of actus reus has not been proven. Consequently, in the absence of actus reus, it cannot be said that the any or all accused acted with malice aforethought.
CONCLUSION
The court finds that the prosecution failed to prove beyond all reasonable doubt the essential elements of murder. The investigator said there was some evidence but it was not adduced in court despite the assertion that the witnesses were under protection. Even the motive behind the murder
was not established. Accordingly the 8 accused persons are given the benefit of doubt and acquitted of the charge of murder contrary to section 203 as read with 204 of the penal code.
They may be set at liberty if not otherwise lawfully held.
A signal to be sent.
The file closed
It is so ordered.
Dated , signed and delivered this 26 th day of June 2025.
Lady Justice Wendy kagendo
In the presence of
The accused persons and their advocates Ms Memia fir A1,MS Musyoki for A3,MR. Mokua for A4, and MR Lugogo for A5
MR Ngiri for the state
Bebora court assistant
;
The accused persons pleaded not guilty to the charge.
The prosecution called a total of 11 witnesses.
The offence of murder is established under Section 203 of the Penal Code. The ingredients that must be proved beyond reasonable doubt are:
(a) The fact of the death of the deceased
(b) That the death was caused by an unlawful act or omission by the accused.
(c) That there was malice aforethought as defined under Section 206 of the Penal Code.
4. These essential elements were reiterated in the case of Anthony Ndegwa Ngari v. Republic [2014] eKLR, where the Court of Appeal stated that the prosecution must prove:
a) The death of the deceased and the cause of that death.
b) That the accused committed the unlawful act or omission that caused the death
. c) That the accused had malice aforethought.
5. Issues for determination.
a) The death of the deceased and the cause of that death.
b) Whether the accused committed the unlawful act or omission that caused the death. c) Whether the accused had malice aforethought.
PROSECUTION CASE
PWI KASIWAKASEMO KAPOMBE testified that one of the 4th accused persons went to his house and requested to be shown where the deceased house was and he showed him and the said accused person left with the Deceased and later while in his work fishing he received a call that the deceased had been killed. That he took a motorbike went home and his wife recounted to him what had happened.
PW2 NAOMI KASIWA KAPOMBE the wife of the deceased testified that she was at home and a lady came shouting that her son Kasemo was being killed by a group and she shouted to Jonathan that his son was being killed they rushed to where the group was beating Kasemo and when they saw Jonathan they said they were interested in him to go and record a statement at the police station an she left with her son to the hospital leaving Jonathan behind and on her way back she learned they had killed Jonathan.
8. PW 3 PETER KITI JEFWA testified that he was at home having lunch when he had noises from boda bodas hooting outside and when he went out her saw a huge crowd numbering to 1000 person bagging at his neighbors Tsumas ’s door calling him a thief and a lady in the crowd made a phone call and shouted the one they were looking for has been found and they went towards Jonathans house and drove away with him and after 40 minutes he heard Jonathan had been killed and he called the police and informed them of what transpired and he mentioned several names of people he had identified.
PW4 POLA KITSAU the second wife of the deceased and the mother Wilson Kasemo Kapombe testified that she was at home when one Furaha came shouting that boda boda riders were killing her son together with her husband and co-wife they went to where the incident was happening and upon see the deceased they left the son and said they actually wanted the father and they left with him claiming they were taking him to record a statement at the police station and they took the son to the hospital and later leant that Jonathan had been killed and burnt.
PW5 COSMAS testified that he received information from the village elder while at home that his cousin brother one Jonathan Kasemo had been set on fire and burnt and he immediately proceeded to the police station where he met officers already going to the scene of crime and he accompanied then and upon reaching there he saw a burnt body and the police took the body and he was later called to the mortuary to identify the body which he positively identified to be that of Jonathan Kasemo.
PW6 AND PW7 THE I.P AMD O.C.S BAMBURI POLICE STATATION both testified that they received information that boda boda riders had burnt a person to death and they proceeded to the crime scene took the body to the Mortuary and put the matter into investigation where several individuals were arrested in connection of the murder and brought before the court to face charges of murder.
PW8 was the brother of the deceased testified that one of the accused persons went to his house and requested to be shown where the deceased house was and he showed him and the said accused person left with the Deceased and later while in his work fishing he received a call that the deceased had been killed. That he took a motorbike went home and his wife recounted to him what had happened.
PW9 WILSON KASEMO KAPOMBE the son of the deceased testified that he left home to the shopping center at majaoni and while he was walking by the road he heard sounds of motorbikes and one person shouted that he was Jonathan Kapombe’s Son and they started throwing stones at him .That he saw his aunt among the group and she rushed to call his father. When the father arrived at the scene the bodaboda left him and said they actually wanted his father and took him saying he was going to record a statement at the police station he left with his mother to the hospital and later learnt they had killed his father .He was later called to the police station and a parade was conducted and he positively identified one person. A4 AND
PW11 THE INVESTIGATION OFFICER testified that he received information that a group of boda boda riders had killed and burnt a person and he was tasked with the duty to do the investigations and bring the culprits to book. He stated that during his investigation he was informed by key witnesses that the boda boda riders armed with rungus went to the house of the deceased and took him forcefully to Majaoni where they killed and burnt him. On Cross-examination with regards to the involvement of the accused persons testified that he was informed that he was one among the boda boda riders who went to the deceased house but he was not riding a motorbike he was being carried by another rider. When asked on the role played by the each of the accused persons he claimed that he was informed that they were among those beating the deceased with rungus. He further stated that the witness who informed him on the involvement of the 5 Accused persons later retracted his statement and refused to testify. Further on asked why the arrest of the accused persons took about two months and given that he claims he was actively involved as informed, he said that they went into hiding. When asked where they were hiding he stated in Kashani where the incident happened. He confirmed that when the 5th Accused was arrested he was not found with any motorbike or weapon and no Identification Parade was conducted he was just charged based on information that was later retracted by the said informer who the officer could not identify or name.
DEFENCE CASE
All the 8 accused persons testified and they all denied having committing the offence.
They further told the court that they heard from other people in the area about the death of one Jonathan Kasemo Kapombe, but none had any involvement with the incident at the time it occurred.
A4 confirmed that he was present at the scene and he carried the deceased on his motor bike . He however testified that this was in a bid to rescue his in law from the marauding mob. He said that along the way his motorbike ran out of fuel and the irate mob snatched the victim and lynched him. He called his wife and the village elder to support his good intentions in the whole saga.
The others emphasized that they were not involved in the incident in any way and were not present at the scene of the crime. T also testified that he was unexpectedly arrested approximately two months after the incident and was informed that he was being accused of being involved in the murder. They expressed shock at the arrest and maintained that they were innocent and had no role in the death of the deceased and were surprised to find themselves facing such serious allegations, insisting that they had been wrongfully accused.
The death of the deceased and the cause of that death.
The post mortem report produced in Court by PW10, Dr. Nafisa Seif from Coast General Hospital, indicated that the deceased was confirmed to be dead due to suffocation and 100% burn. However, the Post-Mortem report did not prove that the deceased was killed by the accused persons.
Further, all the Prosecution Witnesses testified and none of them testified to the fact that they saw any of the accused the accused commit the alleged offence.
b) That the accused persons committed the unlawful act or omission that caused the death. According to this element of the offence of murder, the Prosecution is required to establish that the death of the deceased resulted directly from an unlawful act or omission by the accused, which constitutes the actus reus of the offence.
The only evidence that touched on any of the accused persons was against A4. That he carried the deceased on his motor bike. He however called evidence to explain his actions.
Unfortunately, we did not get any witness who was present when A4’S motor bike stopped and the only version we have is that given by A4.
The investigating officer said that he had recorded statements from several eye witnesses. That however there was a lot of interferences and some witnesses recanted their evidence. He also mentioned that some witnesses were under witness protection but none of them came forward to testify.
Pw9, the son to the deceased testified that he was attacked by the irate mob. That when his parents went to rescue him the mob turned upon his father and said that he is the one they wanted. He confirmed that A4 rode off with the deceased while saying that he was taking him to the police station.
Pw9 added that he went to hospital and it was from there he heard that the father had been lynched . Therefore in as much as he identified some people, these are the ones who assaulted him or who were present at the original scene of crime but not where his late father was eventually killed.
From all this the court finds that the Prosecution witnesses did not establish that the accused persons committed or omitted any act that directly resulted in the death of the deceased this is so because non-of the witnesses who testified seeing any of the 8 Accused persons carrying any weapon, beating the deceased, setting him on fire or being a member of the boda boda riders.
Consequently, the element of actus reus has not been established beyond reasonable doubt.
While the Prosecution has succeeded in proving that the deceased is indeed dead, the evidence presented amounts largely to hearsay. As to the identity of the person responsible for the death, the witnesses merely speculated and pointed fingers, without offering concrete or credible proof linking the 8 accused persons to the unlawful act.
Whether 8 accused persons or any of them had malice aforethought .
In this case, the Court must determine whether the accused persons, acting with malice aforethought, inflicted the injuries that ultimately led to the death of the deceased. The ingredients of murder were further explained in the case of Roba Galma Wario Vs Republic [2015] eKLR where the court held that; “For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
. Section 206 defines malice aforethought as: “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances.
An intention to cause the death of or to do grievous arm to any person, whether that person is the person actually killed or not;
Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
An intent to commit a felony;
An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
Malice aforethought was defined in the in the case of Daniel Muthee Vs Republic Criminal Appeal No. 218 of 2005 (UR) cited in the case of Republic Vs Lawrence Mukaria & Another [2014] eKLR, Bosire, O’kubasu and Onyango Otieno JJA., while considering what constitutes malice aforethought observed as follows: “When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.”
Prosecution Witnesses 1 to 11 testified that, based on the information they received, the deceased died as a result of being set on fire. This was corroborated by the medical report, which confirmed that the cause of death was suffocation due to burns. However, none of the witnesses stated that they saw the any of the 8 accused person set the deceased on fire. Consequently, there is no direct evidence linking the 8 accused to the act, nor is there any indication that any of them intended to harm or cause the death of the deceased.
For malice aforethought to be established, the Prosecution must first prove the existence of the element of actus reus. In the present case, none of the Prosecution’s witnesses testified to having seen the 8 accused persons commit any act or omission that led to the death of the deceased. Their testimonies were based solely on what they had been told by others, and not on firsthand knowledge. Such evidence amounts to hearsay, which is inadmissible in law. This position is supported by the decision in LK v Republic [2020] eKLR, where the court relied on the case of Kinyatti v Republic, Criminal Appeal No. 60 of 1983 (CA), which held: “Hearsay or indirect evidence is the assertion of a person other than the witness who is testifying. It is not original evidence and is inadmissible.” Given that no admissible evidence has been presented to establish that the 8 accused persons committed any unlawful act or omission, the element of actus reus has not been proven. Consequently, in the absence of actus reus, it cannot be said that the any or all accused acted with malice aforethought.
CONCLUSION
The court finds that the prosecution failed to prove beyond all reasonable doubt the essential elements of murder. The investigator said there was some evidence but it was not adduced in court despite the assertion that the witnesses were under protection. Even the motive behind the murder
was not established. Accordingly the 8 accused persons are given the benefit of doubt and acquitted of the charge of murder contrary to section 203 as read with 204 of the penal code.
They may be set at liberty if not otherwise lawfully held.
A signal to be sent.
The file closed
It is so ordered.
Dated , signed and delivered this 26 th day of June 2025.
Lady Justice Wendy kagendo
In the presence of
The accused persons and their advocates Ms Memia fir A1,MS Musyoki for A3,MR. Mokua for A4, and MR Lugogo for A5
MR Ngiri for the state
Bebora court assistant
;