Republic VS Mark Mwamondo Chao AND Paul Mwanyuma Mwakio Republic VS Mark Mwamondo Chao AND Paul Mwanyuma Mwakio

The two accused persons herein stand charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of offence are that on 19^th August 2019 at Magarisoni village, Giba area in Voi township within Taita Taveta County murdered Andrew Chamangi Mwakalu.
Both have denied the charge.
In proving their case, the prosecution called eleven (11) witnesses.
PW1 was Dorah Chao Mjomba mother of 2^nd accused Paul Mwanyuma Mwakio, whose evidence was that on 19^th August 2019 at about 12:30a.m, she was at home when she heard screams of a person saying “nisaidie” which means “help me” outside her house.
On coming out of her house, she found an injured man bleeding. She also met 1^st and 2^nd accused persons and the 2^nd accused person informed her that they found the injured man in a ditch.
According to her, the injured man had a walking stick and tried to stand up using the stick but fell down, and said that he had been beaten by people he did not know.
The witness then told the 1^st and 2^nd accused persons to make a report to the village elder which they did and the police later arrived and took the injured man to hospital but he died while undergoing treatment.
According to this witness, the police came back later and asked for the jacket of the 2^nd accused person, which was handed over to them. She denied telling the police that the 2^nd accused beat the deceased. She stated that there was moonlight at the time, and identified both the walking stick of the deceased and the jacket of 2^nd accused person in court.

It is of note that this witness was a reluctant witness, and had to be locked in to testify, and the trial court put it on record that she appeared to be an untruthful witness. It was also noted that her witness statement was to the effect that both accused hit the deceased on the head. She was cross-examined at length.
PW2 Zacharia Mwapea Mndeke testified that he was a village elder and Pastor at Sagalla, and that on 19^th August 2019 at 12:30a.m two young men he knew before woke him up and informed him that a man had fallen in a ditch, and on enquiry from them they said that they had beaten him slightly.
He then proceeded to the scene with them and saw a man he knew seriously injured and bleeding from both sides of the face, and with a broken leg. He identified the injuries in photographs shown to him in court.
According to him, the two accused persons told him that they beat the man because they thought that he was a wizard. It was his evidence that he saw a stick beside the injured man, but that the man did not talk much.
According to him, also PW1 said that she had warned the two accused persons not to beat the man but they did not heed. He made a phone report to the police, who came and took the injured person to hospital.
In cross-examination, he insisted that 1^st accused told him in Kiswahili that “tulimchapa kidogo,” that is we beat him a little. He met many people at the scene, and added that the injured person was on the side of the road and not in a gulley.
PW3 Jonathan Malombe Mwachongo, an employee of an NGO called East African Natural History Society in Nairobi and a nephew of the deceased, testified that on 19^th August 2019 before midnight while at Voi, he received a phone call from a sister in law Christine Mwakale, informing him that his Uncle had fallen into a ditch.

He then informed his brother Edward Mwashigadi about the report who proceeded to the scene with one Leonard. The three of them converged at the scene at Magarizoni where they met a crowd, and noted that the deceased had suffered deep cuts, and the hands and legs were broken.
It was his evidence that police had already been called and, on arrival, took the deceased to hospital accompanied by relatives who were left at the hospital casualty department and were later informed that the deceased had passed away. He stated that the 2^nd accused accompanied them to hospital and was eager to record a statement to explain what had happened.
He testified that the walking stick had blood stains and that the deceased person sometimes got mentally confused. In cross-examination, he stated that he lived in Nairobi since 2019, but at that time of incident he attended a funeral at Voi. He stated that the deceased who was his Uncle merely said “hii ni bakora” – this is the walking stick, but did not say who injured him.
PW4 Edward Mwashigadi Mwachongo a nephew of the deceased testified that on 19^th August 2019 at 1:00a.m, a brother Jonathan informed him that their Uncle Andrew had fallen in a gulley. On arrival at the scene 1 kilometer away, they saw the Uncle lying beside the road, and the deceased asked for water but they decided to take him to hospital.
He noticed injuries on the head, hand and legs and the police who had already been called by a village elder took the injured person to Moi Referral Hospital Voi but he died. He knew the 2^nd accused before, and the 1^st accused surrendered to the police. It was his evidence that the village elder informed the police at the hospital that 1^st accused was involved in the killing. In cross-examination, he stated that at the scene 2^nd accused offered to record a statement. He also stated that there was moonlight and people used torches. He stated that deceased was not in a gulley, and that the mother of 2^nd accused was at the scene.
PW5 Samuel Kimando Mwatirisa and family grandson of the deceased, testified that on 18^th August 2019 the deceased said that he was going for a funeral at Kighombo, but on 19^th August 2019 at 6a.m. he was informed that Mwakalu the deceased had been killed. In cross-examination, he maintained that the deceased was from a funeral.
PW6 Cpl. Michael Kokani testified that at 3a.m. on 19^th August 2019, he was instructed by Deputy DCI at Voi to accompany him to a murder scene at Gimba, and using police vehicle with other police officers proceeded to the scene led by village elder Zacharia who rode a motor bike.
At the scene, they found the deceased near the road and a stick sid to be blood stained. It was his evidence that the two accused persons said they saw the deceased walking while bending and suspected him to be a witch and beat him with a stick.
They then entered 1^st accused’s house, and found nothing of interest. With regard to the 2^nd accused, his mother brought a cream jacket with blood stains, which the said mother said the 2^nd accused wore at the time.
It was his evidence that PC Gloria who had recovered a walking stick at the scene, handed it over to them. In cross-examination, he maintained that the two accused persons said they beat the deceased with a walking stick. He however did not know if any items were taken for analysis.
PW7 was Cpl. Shem Asher a gazetted photographer since 2013. It was his evidence that he attended the post mortem examination of the deceased and took photographs. He also visited the scene and took photographs. He stated also that Andrew Mwadime and Andrew Chamangi refer to the same person. He was not aware of a recovered jacket. He processed the photographs and produced them in court as exhibits.
PW8 Dr. Christopher Mbogho Mliwa testified that on 19^th August 2019 at Voi Moi Hospital he conducted a post mortem examination of the deceased who was identified by relatives. He observed injuries in the head, broken right leg and deep cut on right arm. The total number of cuts was nine (9), and in the head there was a fracture. He also noted a hunch back on the deceased.
According to his evidence, the cause of death was cardio pulmonary arrest secondary to head injury and haemorrhage. He took a blood sample for analysis. In cross-examination, he maintained that the injuries were not consistent with a fall. He produced the signed post mortem report form in court as exhibit.
PW9 was Irene Furaha Masha a Government Analyst at Mombasa who received various items for analysis. After analysis she established that the blood stains on the stick generated DNA of the deceased person. The cream jacket of 2^nd accused had no blood stains. The blood of the two accuseds persons did not match any item. He produced the signed report as an exhibit. In cross-examination she stated that the findings from the analysis meant that the person who used the deceased’s stick did not bleed.
PW10 was PC Gloria Jeruto Kemunto who was on duty at Voi Police Station on 19^th August 2019 at 2a.m when she proceeded to a murder scene at Gimba and saw the deceased lying on the back, injured and bleeding. She recovered a stick which was beside the deceased. The village elder also pointed the 2^nd accused and said there was another suspect, as two people reported the incident.
They then rushed the deceased to Moi Referral Hospital Voi but he died at the hospital. On arrival at the police station, they found that Mwamondo had already surrendered to the police. In cross-examination, she stated that she noticed blood stains at the scene.
PW11 was Sgt. Omar Babusa of DCI Voi and investigating officer. It was his evidence that on 19^th August 2019 at 8a.m, DCI informed him of a murder incident and that two suspects were in custody. He mobilized crime police officers, took possession of recovered items, and with other police officers proceeded to the scene at Gimba in police vehicle.
Scenes of Crime Officers took photographs. He also proceeded to the mortuary where the body was photographed. He charged both accused persons in Miscellaneous Case No. 2019 and sent recovered items and blood samples to the Government Chemist Mombasa for analysis, and later received the report therefrom.
He recorded witness statements. On interrogating the accused persons, they stated that they found the deceased lying in a ditch.
In cross-examination, he stated that he had no information that 2^nd accused’s mother witnessed the beating. He also stated that the said mother (PW1) was locked in by the Judge in order to testify. He admitted that he had heard allegation of deceased being a witch. That was the prosecution evidence.
When put on their defences, each of the two accused persons tendered sworn defence testimony.
DW1 Mark Mwamondo (1^st accused) testified on oath that he is an artisan and lives with his family. That 2^nd accused is a neighbour who lived with parents.
It was his defence that on 19^th August 2019 he drunk palm wine up to 4p.m at Ogoni village and later took alcohol in a bar until 11p.m after having been joined by 2^nd accused at 5:30p.m.
That the two left together for home and near Mangarizoni heard cries and on approaching saw an old man in a trench near the road who asked for assistance, and shortly they met the mother of 2^nd accused. They then removed the man from the trench and though he asked for water, they were advised not to give him water as he was seriously bleeding. He testified that together with Mwanyuma (2^nd accused), they informed the village elder about the incident. He denied informing the village elder that they beat the deceased. He was cross-examined at length.
On his part, the 2^nd accused Paul Mwanyuma testified as DW2 ono oath that on 19^th August 2019 he went to drink ‘mnazi’ – palm wine and left the bar at about 11p.m. That bar was Rosa Maghema joint.
They left for home with 1^st accused and near home they heard cries in Kiswahili language of a person asking for assistance. On approaching, they met his mother and they assisted to remove the man from the trench and on advice of his mother, they made a report of the incident to the village elder who came on a motor bike.
The police then arrived and took the injured person to Voi Referral Hospital. He denied knowing what killed the man and admitted ownership of a jacket that was taken possession of by police. He denied informing the village elder that he beat the deceased and added that there was a grazing dispute between him and the village elder. According to him, the injured man asked for drinking water but his mother advised against giving him water. He was cross-examined at length.
The accused persons did not call any additional witnesses. After the close of the prosecution and the defence evidence, the Director of Public Prosecutions for the State, and Mr. Mwanyumba for both accused persons filed written submissions, which I have perused and considered.
This is a murder case. The burden was on the prosecution to prove all the ingredients of the offence. This burden is codified under Section 107 of the Evidence Act (Cap.80).
This being a criminal case, the standard of proof is beyond any reasonable doubt – see Sawe =Versus= Republic (2003) eKLR.
The elements of the offence of murder are the death of the deceased, whether the death is unlawful, whether the accused person or persons caused the death, and finally whether the death was caused with malice aforethought.
Did the deceased die? The evidence of the prosecution is clear that the deceased who was an aged man who walked with a stick and had a back deformity, was found lying down bleeding near a road in Voi town on the night of 18^th and 19^th August 2019. He had visible injuries on his body and was bleeding.
He was taken to Moi Referral Hospital at Voi and died shortly after arrival at the hospital.
The post mortem examination was conducted by Dr. Christopher Mbogho Mliwa PW8 on the 19^th August 2019, who formed the opinion that the deceased died of cardio pulmonary arrest secondary to head injury and haemorrhage.
In my view therefore, the prosecution proved beyond any reasonable doubt that the deceased died.
Was the death unlawful. No lawful reason was given for the cuts that were inflicted on the deceased and breaking of his leg and arm, which caused the severe bleeding and death. I find that the prosecution proved beyond reasonable doubt that the death was unlawful.
Did the accused or any of them cause the death of the deceased? The prosecution say so. The defence on the other hand deny this. Having evaluated all the evidence on record, I find that this is a case where the connection of the accused persons to the death of the deceased is them being the first people to be at the scene of injury of the deceased, and evidence of two witnesses PW1 Dorah Chao Mjomba mother of 2^nd accused, and PW2 Zacharia Mwapea Mndeka a village elder.
The evidence of these two witnesses is that the accused persons informed them that they hit the deceased because he was a witch who was walking at night while bending.
The evidence of these two witnesses is however watered down firstly because PW1 was almost declared a hostile witness and had to be put in custody to testify. Secondly, though PW2 would be an independent witness if there was some other supporting evidence, that is not so in this case. Certainly, the injuries suffered cannot have been caused by beatings of a stick, and there is no evidence of the weapons used.
Thirdly, the breaking of the arm and leg were obviously caused by forceful means, and there is no evidence to connect the two accused persons with such a vicious struggle.
Lastly, there was no evidence of the accused persons or any of them having any traces of blood stains from the deceased which could connect them to the injuries. In my view, if they were active participants in the actual struggle and cause of the injuries, some blood would have flashed on them or their clothes. It is apparent to me therefore, that they came into the picture after the injuries had already been inflicted on the deceased.
This being a case of circumstantial evidence, and since there is a reasonable doubt on their involvement in causing the injuries, I give the benefit of the doubt to the two accused persons, as I am required to do, and find that the prosecution did not prove that the accused persons or any of them caused the death of the deceased. I rely on the case of Sawe =Versus= Republic (2003) eKLR.
Was the death caused with malice aforethought? Malice aforethought is defined under Section 206 of the Penal Code. It is an intention to cause death or do grievous bodily harm. With the vicious injuries suffered by the deceased including deep cuts and fracture of the head, and breaking of the arm and leg, I find that the prosecution proved beyond any reasonable doubt, that the death was caused with malice aforethought.
Since I have found that the prosecution did not prove that the two accused persons or any of them caused the death of the deceased, I also find that they are not guilty of the offence of murder, and I will acquit them accordingly.
For the above reasons, I find the accused persons not guilty of murder, and acquit each of them of the offence charged accordingly.

Dated, signed and delivered this 26^th day of May 2024 in open court at Voi.

In the presence of:-

Alfred/Trizah – Court Assistants

Mr. Sirima for State

Mr. Mwanyumba for both accused

Both accused