Background
1. This case concerns the death of Chonyi Nyamawi, an elderly woman who was violently attacked in Kilifi County following accusations that she was practising witchcraft. It is regrettable that in the twenty-first century such beliefs continue to exist within some communities despite the predominance of Christianity, Islam and other established religions.
2. Historically, the colonial administration enacted the Witchcraft Act to address practices associated with witchcraft and the violence that often accompanied accusations of witchcraft. Unfortunately, such beliefs continue to manifest in tragic incidents such as the present one.
The Charge
3. The three accused persons were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
4. The particulars of the charge are that on 19 March 2024 at Chidogo Village, Junju Location, Kilifi South Sub-County in Kilifi County, jointly with others not before the court, they murdered Chonyi Nyamawi.
Prosecution Case
Evidence of PW1 – Chome Ngala
5. PW1 testified that he had served as a village elder in the area for about twenty-two years and knew both the deceased and the accused persons. He stated that the deceased frequently visited her sister Sidi Mhadhani.
6. On 19 March 2024, PW1 received a phone call from Dennis Kaingu, who informed him that a group of people had arrived at Sidi’s home carrying wooden planks and burning coconut fronds and appeared hostile.
7. PW1 was told that Safari Fimbo, accompanied by Toto Balagash, had removed Sidi from the house.
8. PW1 immediately informed the area chief Salome and the OCS Kijipwa Police Station. Upon arriving at the homestead he found the deceased seriously injured, bleeding and unable to speak.
9. PW1 testified that Sidi informed them that the accused persons together with Safari Fimbo and Toto Balagash had assaulted them and demanded that the deceased return to her home.
10. On cross-examination PW1 stated that they arrived at the scene at night and only found the second accused present. He also stated that Sidi had previously reported that Safari and the first accused had accused her of witchcraft and threatened her.
Evidence of PW2 – Rebman Mina Ngata Mwamudzu
11. PW2 testified that he is the nephew of the deceased. On the morning of 19 March 2024 he spoke with Sidi Mhadhani by telephone.
12. Later that evening he attempted to reach her again and at about 8.00 pm she informed him that Safari and Toto were at the homestead and intended to kill her sister because they believed she was a witch.
13. The following morning he went to Sidi’s home where he was informed that the deceased had been seriously injured and taken to hospital.
Evidence of PW3 – Dr Gideon Odhiambo
14. PW3 conducted the post-mortem examination on 24 March 2024 and produced the report.
15. He identified the deceased as a 75-year-old female.
16. He observed several external injuries including:
• a deep laceration
• abrasions on the left cheek and right zygoma
• a dislocated left shoulder
• an abrasion on the right knee
17. Internally, the doctor found triple skull fractures, subdural haematoma, and moderate scalp haematoma.
18. He concluded that the injuries were caused by both sharp and blunt objects and ruled out asphyxiation.
Evidence of PW4 – SKM (Protected Witness)
19. PW4, the deceased’s elder sister, testified that the deceased had purchased land near her home and had been farming there.
20. On 19 March 2024 at about 6.00 pm, the deceased returned from the farm when Safari and Toto arrived declaring that they would kill alleged witches.
21. PW4 testified that the two began beating the deceased while accusing her of being a witch.
22. The deceased requested to collect her belongings and after receiving them she was escorted away by a group towards Karanja’s shamba.
23. PW4 followed the group and observed members of the group assaulting the deceased with sticks.
24. She testified that she clearly saw the second and third accused striking the deceased on the head while shouting that she was a witch.
25. After the assault the group turned on PW4 and kicked her but she was spared when Toto intervened.
26. A neighbour known as Mama Paulina intervened after which the group dispersed.
27. PW4 testified that she knew the accused persons prior to the incident and therefore recognised them. She identified them in court.
Evidence of PW5 – Dennis Kaingu
28. PW5 testified that at about 7.30 pm on the material day he heard screams and shouting from a neighbouring homestead.
29. He recognised the voices of Safari and Toto shouting “Mchawi aende.”
30. He observed a crowd hitting the ground with logs while ordering the victim to leave and saw the deceased carrying clothes on her head while being led away by Toto.
31. PW5 also observed a burning firebrand carried by members of the crowd.
Evidence of PW6 – PC John Nyaga
32. PW6 testified that he is authorised under Gazette Notice No. 1145 of 2023 to process photographic evidence.
33. On 24 March 2024 he printed and certified photographs taken at the scene.
Evidence of PW7 – Investigating Officer
34. PW7 testified that he received a report of murder on 19 March 2024.
35. Upon arrival he found the OCS Kijipwa Police Station preserving the scene.
36. PW4 informed him that the deceased had been accused of being a witch by Safari and Toto and ordered to leave.
37. A group assembled which included the first and second accused persons.
38. PW7 photographed the scene, transported the body to Kilifi Mortuary, and later attended the post-mortem.
39. He testified that the third accused was arrested on 13 August 2024.
40. He also stated that the scene was visible from about 20 metres and that a firebrand provided lighting.
41. At the close of the prosecution case the court delivered a ruling on 9 October 2025 placing the accused persons on their defence.
Defence Case
Evidence of DW1 – First Accused
42. The first accused testified that on the material day he left home at 11.00 am carrying palm wine to sell.
43. He stated that he remained at the trading centre until 9.45 pm and then returned home.
44. He denied participating in the assault and denied appearing in any photographs.
45. He stated that no weapon was recovered from him.
46. He further alleged that PW5 implicated him due to a dispute involving a woman.
47. On cross-examination he admitted that he could not recall the persons who had been drinking with him.
Evidence of DW2 – Second Accused
48. The second accused testified that he works as a palm wine tapper.
49. He stated that he could not recall his activities on 19 March 2024.
50. He testified that he was arrested three days later at his home.
51. On cross-examination he stated that he tapped palm wine alone that day and could not recall his clients between 6.00 pm and 9.00 pm.
Evidence of DW3 – Third Accused
52. The third accused testified that he was working in Mtwapa operating a motorcycle taxi between 8.00 am and 8.00 pm.
53. He stated that he returned home at about 10.30 pm.
54. He denied knowing PW4 and denied participating in the assault.
The Law
55. Article 26 of the Constitution protects the right to life.
56. In Anthony Ndegwa Ngari v Republic the Court of Appeal held that the prosecution must prove the death, the unlawful act causing death, and malice aforethought.
57. The burden of proof lies on the prosecution and never shifts to the accused as stated in Woolmington v Director of Public Prosecutions.
58. The meaning of proof beyond reasonable doubt was explained in Miller v Minister of Pensions.
59. Courts must exercise caution when dealing with identification evidence as emphasised in:
• Maitanyi v Republic
• Abdullah Bin Wendo v Rex
• Wamunga v Republic
Issues for Determination
60. In determining whether the offence of murder has been proved, the court must consider whether the prosecution established the following elements:
1. the death of the deceased and the cause of that death;
2. whether the accused persons caused the death through an unlawful act or omission;
3. whether the accused persons acted with malice aforethought.
4. This formulation has been affirmed in Anthony Ndegwa Ngari v Republic.
Analysis and Determination
(a) Whether the Death and Cause of Death Were Proved
61. The fact of death was proved through the medical evidence of PW3 and was not contested by the defence.
62. The post-mortem examination revealed multiple injuries including severe head trauma characterised by skull fractures and intracranial bleeding.
63. The medical opinion of PW3 was that the cause of death was severe head injury resulting from blunt force trauma.
65. The court has no reason to doubt the professional opinion of the pathologist, which was not challenged in cross-examination.
66. The court therefore finds that the death of the deceased and the cause of death were proved beyond reasonable doubt.
(b) Whether the Accused Persons Caused the Death of the Deceased
80. The central issue is whether the accused persons participated in the assault that caused the death of the deceased.
81. The prosecution relied primarily on the evidence of PW4, who testified that she saw the second and third accused persons assault the deceased with sticks.
82. The defence challenged the reliability of this identification on the basis that the incident occurred at night.
83. The law on identification in criminal cases is well settled. Courts must exercise caution where identification occurs under difficult circumstances.
84. In Maitanyi v Republic the Court of Appeal emphasised the need for courts to carefully examine such evidence to eliminate the possibility of error.
85. Similarly, in Wamunga v Republic the court held that evidence of visual identification must be tested with the greatest care.
86. In the present case several factors strengthen the reliability of PW4’s identification.
87. First, PW4 knew the accused persons prior to the incident. The identification was therefore by recognition, which the courts have consistently regarded as more reliable than identification of strangers.
88. Second, PW4 followed the group and observed the assault from a relatively close distance.
89. Third, the investigating officer confirmed that there was a firebrand providing illumination at the scene.
90. Fourth, PW4 remained consistent in her testimony and was not shaken during cross-examination.
91. The court therefore accepts her evidence that the second and third accused persons were among those who assaulted the deceased.
92. However, with respect to the first accused, PW4 did not testify that she saw him strike the deceased.
93. While the prosecution suggested that he was present among the group, there was no clear evidence demonstrating that he participated in the assault.
94. Criminal liability cannot be inferred merely from presence at the scene unless participation or common intention is proved.
95. Where reliance is placed on the doctrine of common intention, the prosecution must demonstrate that the accused shared the intention to commit the unlawful act.
96. In the absence of such evidence, the court finds that the prosecution failed to prove beyond reasonable doubt that the first accused participated in the fatal assault.
(c) Whether Malice Aforethought Was Proved
97. Malice aforethought is defined under section 206 of the Penal Code.
98. It may be inferred from circumstances such as the nature of the weapon used, the manner in which it was used, and the part of the body targeted.
99. This principle was reiterated in Dickson Mwangi Munene & Another v Republic.
100. In the present case, the evidence shows that:
• the attackers repeatedly accused the deceased of witchcraft;
• the deceased was assaulted by a group using sticks and other objects;
• the blows were directed at the head, a vulnerable and vital part of the body;
• the injuries inflicted were severe and ultimately fatal.
101. These circumstances clearly demonstrate an intention to cause at least grievous harm, which satisfies the legal threshold for malice aforethought.
102. The court therefore finds that the second and third accused persons acted with malice aforethought.
Conclusion
103. Upon evaluating the totality of the evidence, the court makes the following findings:
1. The prosecution proved the death of the deceased and the cause of death beyond reasonable doubt.
2. The prosecution proved that the second and third accused persons participated in the unlawful assault that caused the death of the deceased.
3. The prosecution proved that the second and third accused persons acted with malice aforethought.
4. The prosecution failed to prove beyond reasonable doubt that the first accused participated in the assault or shared a common intention to kill the deceased.
Verdict
104. Accordingly:
• The first accused is acquitted of the charge of murder contrary to section 203 as read with section 204 of the Penal Code under section 322 of the Criminal Procedure Code.
• The second and third accused persons are found guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and are hereby convicted under section 322 of the Criminal Procedure Code.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 5TH DAY OF MARCH 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
Mr Achoka for the 1st Accused and holding brief for Mr Mandi for the 2nd Accused
Mr Mwawasi for the 3rd Accused
Mr. Sirima for the state
Bebora Court Assistant
1. This case concerns the death of Chonyi Nyamawi, an elderly woman who was violently attacked in Kilifi County following accusations that she was practising witchcraft. It is regrettable that in the twenty-first century such beliefs continue to exist within some communities despite the predominance of Christianity, Islam and other established religions.
2. Historically, the colonial administration enacted the Witchcraft Act to address practices associated with witchcraft and the violence that often accompanied accusations of witchcraft. Unfortunately, such beliefs continue to manifest in tragic incidents such as the present one.
The Charge
3. The three accused persons were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
4. The particulars of the charge are that on 19 March 2024 at Chidogo Village, Junju Location, Kilifi South Sub-County in Kilifi County, jointly with others not before the court, they murdered Chonyi Nyamawi.
Prosecution Case
Evidence of PW1 – Chome Ngala
5. PW1 testified that he had served as a village elder in the area for about twenty-two years and knew both the deceased and the accused persons. He stated that the deceased frequently visited her sister Sidi Mhadhani.
6. On 19 March 2024, PW1 received a phone call from Dennis Kaingu, who informed him that a group of people had arrived at Sidi’s home carrying wooden planks and burning coconut fronds and appeared hostile.
7. PW1 was told that Safari Fimbo, accompanied by Toto Balagash, had removed Sidi from the house.
8. PW1 immediately informed the area chief Salome and the OCS Kijipwa Police Station. Upon arriving at the homestead he found the deceased seriously injured, bleeding and unable to speak.
9. PW1 testified that Sidi informed them that the accused persons together with Safari Fimbo and Toto Balagash had assaulted them and demanded that the deceased return to her home.
10. On cross-examination PW1 stated that they arrived at the scene at night and only found the second accused present. He also stated that Sidi had previously reported that Safari and the first accused had accused her of witchcraft and threatened her.
Evidence of PW2 – Rebman Mina Ngata Mwamudzu
11. PW2 testified that he is the nephew of the deceased. On the morning of 19 March 2024 he spoke with Sidi Mhadhani by telephone.
12. Later that evening he attempted to reach her again and at about 8.00 pm she informed him that Safari and Toto were at the homestead and intended to kill her sister because they believed she was a witch.
13. The following morning he went to Sidi’s home where he was informed that the deceased had been seriously injured and taken to hospital.
Evidence of PW3 – Dr Gideon Odhiambo
14. PW3 conducted the post-mortem examination on 24 March 2024 and produced the report.
15. He identified the deceased as a 75-year-old female.
16. He observed several external injuries including:
• a deep laceration
• abrasions on the left cheek and right zygoma
• a dislocated left shoulder
• an abrasion on the right knee
17. Internally, the doctor found triple skull fractures, subdural haematoma, and moderate scalp haematoma.
18. He concluded that the injuries were caused by both sharp and blunt objects and ruled out asphyxiation.
Evidence of PW4 – SKM (Protected Witness)
19. PW4, the deceased’s elder sister, testified that the deceased had purchased land near her home and had been farming there.
20. On 19 March 2024 at about 6.00 pm, the deceased returned from the farm when Safari and Toto arrived declaring that they would kill alleged witches.
21. PW4 testified that the two began beating the deceased while accusing her of being a witch.
22. The deceased requested to collect her belongings and after receiving them she was escorted away by a group towards Karanja’s shamba.
23. PW4 followed the group and observed members of the group assaulting the deceased with sticks.
24. She testified that she clearly saw the second and third accused striking the deceased on the head while shouting that she was a witch.
25. After the assault the group turned on PW4 and kicked her but she was spared when Toto intervened.
26. A neighbour known as Mama Paulina intervened after which the group dispersed.
27. PW4 testified that she knew the accused persons prior to the incident and therefore recognised them. She identified them in court.
Evidence of PW5 – Dennis Kaingu
28. PW5 testified that at about 7.30 pm on the material day he heard screams and shouting from a neighbouring homestead.
29. He recognised the voices of Safari and Toto shouting “Mchawi aende.”
30. He observed a crowd hitting the ground with logs while ordering the victim to leave and saw the deceased carrying clothes on her head while being led away by Toto.
31. PW5 also observed a burning firebrand carried by members of the crowd.
Evidence of PW6 – PC John Nyaga
32. PW6 testified that he is authorised under Gazette Notice No. 1145 of 2023 to process photographic evidence.
33. On 24 March 2024 he printed and certified photographs taken at the scene.
Evidence of PW7 – Investigating Officer
34. PW7 testified that he received a report of murder on 19 March 2024.
35. Upon arrival he found the OCS Kijipwa Police Station preserving the scene.
36. PW4 informed him that the deceased had been accused of being a witch by Safari and Toto and ordered to leave.
37. A group assembled which included the first and second accused persons.
38. PW7 photographed the scene, transported the body to Kilifi Mortuary, and later attended the post-mortem.
39. He testified that the third accused was arrested on 13 August 2024.
40. He also stated that the scene was visible from about 20 metres and that a firebrand provided lighting.
41. At the close of the prosecution case the court delivered a ruling on 9 October 2025 placing the accused persons on their defence.
Defence Case
Evidence of DW1 – First Accused
42. The first accused testified that on the material day he left home at 11.00 am carrying palm wine to sell.
43. He stated that he remained at the trading centre until 9.45 pm and then returned home.
44. He denied participating in the assault and denied appearing in any photographs.
45. He stated that no weapon was recovered from him.
46. He further alleged that PW5 implicated him due to a dispute involving a woman.
47. On cross-examination he admitted that he could not recall the persons who had been drinking with him.
Evidence of DW2 – Second Accused
48. The second accused testified that he works as a palm wine tapper.
49. He stated that he could not recall his activities on 19 March 2024.
50. He testified that he was arrested three days later at his home.
51. On cross-examination he stated that he tapped palm wine alone that day and could not recall his clients between 6.00 pm and 9.00 pm.
Evidence of DW3 – Third Accused
52. The third accused testified that he was working in Mtwapa operating a motorcycle taxi between 8.00 am and 8.00 pm.
53. He stated that he returned home at about 10.30 pm.
54. He denied knowing PW4 and denied participating in the assault.
The Law
55. Article 26 of the Constitution protects the right to life.
56. In Anthony Ndegwa Ngari v Republic the Court of Appeal held that the prosecution must prove the death, the unlawful act causing death, and malice aforethought.
57. The burden of proof lies on the prosecution and never shifts to the accused as stated in Woolmington v Director of Public Prosecutions.
58. The meaning of proof beyond reasonable doubt was explained in Miller v Minister of Pensions.
59. Courts must exercise caution when dealing with identification evidence as emphasised in:
• Maitanyi v Republic
• Abdullah Bin Wendo v Rex
• Wamunga v Republic
Issues for Determination
60. In determining whether the offence of murder has been proved, the court must consider whether the prosecution established the following elements:
1. the death of the deceased and the cause of that death;
2. whether the accused persons caused the death through an unlawful act or omission;
3. whether the accused persons acted with malice aforethought.
4. This formulation has been affirmed in Anthony Ndegwa Ngari v Republic.
Analysis and Determination
(a) Whether the Death and Cause of Death Were Proved
61. The fact of death was proved through the medical evidence of PW3 and was not contested by the defence.
62. The post-mortem examination revealed multiple injuries including severe head trauma characterised by skull fractures and intracranial bleeding.
63. The medical opinion of PW3 was that the cause of death was severe head injury resulting from blunt force trauma.
65. The court has no reason to doubt the professional opinion of the pathologist, which was not challenged in cross-examination.
66. The court therefore finds that the death of the deceased and the cause of death were proved beyond reasonable doubt.
(b) Whether the Accused Persons Caused the Death of the Deceased
80. The central issue is whether the accused persons participated in the assault that caused the death of the deceased.
81. The prosecution relied primarily on the evidence of PW4, who testified that she saw the second and third accused persons assault the deceased with sticks.
82. The defence challenged the reliability of this identification on the basis that the incident occurred at night.
83. The law on identification in criminal cases is well settled. Courts must exercise caution where identification occurs under difficult circumstances.
84. In Maitanyi v Republic the Court of Appeal emphasised the need for courts to carefully examine such evidence to eliminate the possibility of error.
85. Similarly, in Wamunga v Republic the court held that evidence of visual identification must be tested with the greatest care.
86. In the present case several factors strengthen the reliability of PW4’s identification.
87. First, PW4 knew the accused persons prior to the incident. The identification was therefore by recognition, which the courts have consistently regarded as more reliable than identification of strangers.
88. Second, PW4 followed the group and observed the assault from a relatively close distance.
89. Third, the investigating officer confirmed that there was a firebrand providing illumination at the scene.
90. Fourth, PW4 remained consistent in her testimony and was not shaken during cross-examination.
91. The court therefore accepts her evidence that the second and third accused persons were among those who assaulted the deceased.
92. However, with respect to the first accused, PW4 did not testify that she saw him strike the deceased.
93. While the prosecution suggested that he was present among the group, there was no clear evidence demonstrating that he participated in the assault.
94. Criminal liability cannot be inferred merely from presence at the scene unless participation or common intention is proved.
95. Where reliance is placed on the doctrine of common intention, the prosecution must demonstrate that the accused shared the intention to commit the unlawful act.
96. In the absence of such evidence, the court finds that the prosecution failed to prove beyond reasonable doubt that the first accused participated in the fatal assault.
(c) Whether Malice Aforethought Was Proved
97. Malice aforethought is defined under section 206 of the Penal Code.
98. It may be inferred from circumstances such as the nature of the weapon used, the manner in which it was used, and the part of the body targeted.
99. This principle was reiterated in Dickson Mwangi Munene & Another v Republic.
100. In the present case, the evidence shows that:
• the attackers repeatedly accused the deceased of witchcraft;
• the deceased was assaulted by a group using sticks and other objects;
• the blows were directed at the head, a vulnerable and vital part of the body;
• the injuries inflicted were severe and ultimately fatal.
101. These circumstances clearly demonstrate an intention to cause at least grievous harm, which satisfies the legal threshold for malice aforethought.
102. The court therefore finds that the second and third accused persons acted with malice aforethought.
Conclusion
103. Upon evaluating the totality of the evidence, the court makes the following findings:
1. The prosecution proved the death of the deceased and the cause of death beyond reasonable doubt.
2. The prosecution proved that the second and third accused persons participated in the unlawful assault that caused the death of the deceased.
3. The prosecution proved that the second and third accused persons acted with malice aforethought.
4. The prosecution failed to prove beyond reasonable doubt that the first accused participated in the assault or shared a common intention to kill the deceased.
Verdict
104. Accordingly:
• The first accused is acquitted of the charge of murder contrary to section 203 as read with section 204 of the Penal Code under section 322 of the Criminal Procedure Code.
• The second and third accused persons are found guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and are hereby convicted under section 322 of the Criminal Procedure Code.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 5TH DAY OF MARCH 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
Mr Achoka for the 1st Accused and holding brief for Mr Mandi for the 2nd Accused
Mr Mwawasi for the 3rd Accused
Mr. Sirima for the state
Bebora Court Assistant