1. The 4 accused persons are charged with the offence of murder contrary to section 203 as read with section 205 0f the penal code. The particulars are that on the 11th day of March 2019 at Gandini village in Gandini sublocation within Kinango sub county of Kwale county, they jointly murdered Mbito Mgandi.
2. Each of them pleaded not guilty and the state called the following witnesses to prove their case.
3. PW 1 was Kombo Mvurya Mwamutu –
He testified that he was well known to the deceased and the 4 accused persons whom he said came from his village. His testimony was that on 11/3/2019, at 4.00pm he went to the shopping Centre. He saw Lete Mwaiwe (A3) and Kombo Kwaka (A4) in a palm wine club together with the deceased. That A3 called him and showed him a memory card which he (A3) said he had found with the deceased. That the memory card was put in A3 phone as the deceased wanted to know the music in the memory card.
4. That Lete then showed him the phone and it had photographs of A1’s children in the memory card. That he asked the deceased where he had got the memory card and he (deceased) said he had picked it along the road. That then A1 was not with them and Lete ,A3 ,told him that he had alerted A1 who had said that he was in Mazeras.
5. That they all dispersed and there was no commotion in the club. They later meet at the home of De Mkala where there was palm wine. That Lete said they were still with the deceased until the ownership of the memory card is resolved. That A1 then arrived. He was shown the memory card which he put in his phone and saw the images. Upon confirming that the memory card was his ( A1 ), A3 tied the deceased with a rope and made him board a motor cycle. PW 1 said they tied the deceased hands and legs and carried him like luggage and left with him. That he remained with Kombo Kwaka. That they also separated with Kombo who went in the same direction that A1 and A3 had taken.
6. That before getting home he heard screams from the direction where A1 and A3 had taken the deceased. He went to check. He found that the deceased had been removed from the motorcycle. The group was at Balozi’s home and he identified A1, A4, and A3 at the scene. That the deceased was still tied. That A1 went to look for Balozi and returned with him.
7. That Balozi ordered that the deceased be released and he interrogated him on whether he had stolen the memory card which the deceased denied. That Balozi said that the deceased would be taken to the police. That A1 became harsh and started beating the deceased randomly using his fists all over the body. A3 also joined in and beat the deceased using fists. That Balozi told them to stop as he was to take the deceased to the police. That A3 tied the deceased with ropes again as Balozi went in to dress. That the rope was tied on the deceased neck then tied to the motorbike which was then driven by Kombo (A4) and they dragged the deceased. That Kombo’s brother intervened and shouted to Kombo to stop what he was doing and Kombo alighted from the motorbike and removed the rope which was tied on the deceased neck.
8. That the village elder one Njeie Mwambuye came and reprimanded A4 and A3 for what they had done. The village elder tried to call the chief. That as he was doing this, A3 took the motorbike again and started dragging the accused who was tied to the motorbike. That Pw1 pursued them and untied the deceased and Lete alighted from the motor bike which was taken by Njei .That A3 put the rope on the neck of the deceased and A1 started to drag the deceased on the ground at a high speed. That A1 stopped and he (PW 1) again removed the rope from the deceased neck. That A1 left for some unknown destination. That A2 then arrived and started to beat the accused using a stick. The village chairman stopped him.
9. That A1 returned with a bottle and poured some liquid on the deceased.
That when A1 poured the liquid, they realized it was petrol. That A1 asked for fire. That A2 had a match box which he used to light a fire and A1 took leaves that had been lighted and set the deceased on fire. That he (PW 1) took off but he again changed his mind and he went to put off the fire. That as he was putting off the fire, A1 came with some of the remaining petrol and poured it on the deceased and in the process, he, Pw1 , also got burnt in the jacket. That he ran and rolled on the sand so as to put off the fire on his jacket. That the chief then came to the scene.
10. Under cross examination he said A1 and A2 are brothers. It also emerged that his statement showed that the incident took place on 11/3/2015. This was however clarified by the INVESTIGATING OFFICER TO BE AN ERROR.
11. PW 2 was Nya Munguya Dzelwi from Gandini , a Community Health volunteer.
His evidence was that On 11/03/2019, at 7pm – he was on his way home from Litsangali – He came across a crowd at Dmaza’s home. He stopped his motorbike. He saw the deceased being beaten by A1 and A2. A2 had a rungu and A1 was using his bare hands. He inquired why they were beating the deceased and he was told the deceased was a thief. That A1 and A2 were brothers and the deceased was a son to the uncle of the 2 accused. That the deceased was bleeding from the mouth and had excreted on himself. He asked what he had stolen and he was told it was a memory card, torch, radio and 2 phones and had been in possession of the memory card. The deceased was required to say where the other items were. He was shown the memory card – PEEXT 1 – 1 with advance macro 2GB. That the deceased was tied on both hands and he advised the complaining party to take him to the police. That they told him he was the one encouraging thieves in that place. That the accused persons are his close relatives and they all live in the same village. That it was at around 7.00pm and he had seen them well.
12. When they refused to heed his advice he tried to call the Chief but he was unsuccessful. He called his colleague elder (PW5) to try reach the Chief to come rescue the deceased. That as they were awaiting the Chief, Lete , A3 took a rope and tied around the deceased neck and Kombo (A4) started the motorbike which had the rope tied to the deceased tied to it and he (Kombo) A4 drove the motorbike along the road. That he was very close to the deceased and he even tried the untie the rope but A1 hit him on the back. That the deceased was dragged distance off around 100 metres along the marram road and he was bruised all over.
13. That Mbito then poured petrol on the deceased and a fire engulfed the deceased. That Juma Kombo tried to put of the fire but A1 added petrol on the fire exploded even caught Juma who ran away while on fire. That the deceased was burning until the fired died out on its own. That the Chief and his colleague arrived . They called the police at Kinango who came and took the deceased. He was still alive. That the memory card was put in Moses Nyundo’s phone and they established it had photographs of Ali’s family. He also said he snatched the petrol from A1 the second time A1 was dousing the deceased with it.
14. PW 3 was Dzombo Nie Chibara , A1 brother. He said that on 11/3/2019 at around 6.45pm, he was going to Mzee Dzala’s place to take Ugola -tobacco. That A1 called him and asked him to return as a thief had been caught and taken to his place. He went back and found a group of people with a motorbike. That he also found the deceased tied with a rope and A1 told him that the deceased had been found with a memory card. He saw the black memory card which was then put into a phone and it had pictures of AI’s children. That Nyae Dzena arrived at the scene. That A1 told him to ask the deceased where the other stolen items were. The deceased was his nephew. That the deceased said he had collected the memory card. That he moved away and later he saw the deceased tied to a motorbike. He maintained he did not see who beat the deceased.
15. PW 4 was Mwasika Mwanza za Iwao – from Gandini. His evidence was that on 11/3/2019 at around 7.00pm he sold ½ litre of petrol to A1 and A1 rode off with it on his motorbike. He was also arrested but later on released.
16. PW 5 was Athman Munga Mwema. He said he received a call from PW 2 who told him to look for the Chief as PW 2 had been unable to settle same scuffle. He looked for the Chief and they went to the scene. That the crowd which was at the scene dispersed when they arrived. The deceased was also in a bad state. They then called the police.
17. PW 6 was the Assistant Gandini Sublocation. His evidence was that PW 5 went and reported that someone had been lynched. He visited the scene and found PW 2 and the deceased. He called the police who took the victim to hospital.
18. PW 7 was Rajabu Mbeto Kasiko a nephew to deceased. He identified the body at Kinango hospital.
19. PW 8 was Jego Polo. He was an uncle to the deceased and he also identified the body.
20. PW 9 was Dr. Abdulah Aziz Mohammed from Coast General Hospital. He produced the post-mortem report prepared by Dr. Hassan dated 03/04/2019.
21. PW 10 was PC Salim Yunis the Investigating Officer. He was given the case file by CPC Wanngari on 1/5/2019. He visited Kinango hospital mortuary and viewed the body. He then recorded the statements of Nyae Mwayuya and Mjomba Njei. These two named the suspects who were arrested and charged after investigations.
22. The court considered the evidence adduced above to be sufficient and placed each of them on their defence.
23. In his defence , A1 stated that on 11/03/2019 – while on his way home he was told a thief had been arrested. He went to the place the person was said to be but he was told he had been taken to Bondeni. He went to Bondeni and found of mob and Balozi advised that they call the Subchief. That as he was calling the Subchief, the mob beat and lynched the suspect. That he was not able to identify those who beat up the victim. That he even contributed many to take the victim to hospital.
24. Under cross examination he admitted that some items had been stolen from him on 09/03/2019 which included his worker’s memory card.
25. A2 testified that he was a cousin to the deceased. Their fathers are brothers. That on 11/03/2019 he was called at around 7.45pm by his step brother Mwingo Kasiko and told that his brother was being beaten by the roadside. He went and found the deceased having been lynched. That he took the deceased to Balozi’s home. That he assisted the deceased by getting him a change of clothes and they waited for the police and he even put the deceased on the police vehicle. That he even visited the deceased in hospital and they were arrested when they went to collect the body.
26. A3 – testified that on 19/03/2019 he was drinking Mnazi with the deceased and A4 from around 6.00pm That they moved to a second mnazi den –when the deceased bought him more mnazi. They separated all around 7.45pm, he got the deceased a lift on a bodaboda. The next day he heard the deceased had been attacked by a mob.
27. A4 also testified that he was with A3 and the deceased in a mnazi pub. He however said he was in a hurry and he left the two behind. He got to hear about the lynching the next day. He even visited the deceased in hospital.
Analysis and Determination
Considering the testimonies of both the prosecution and defence it was now upon this Court to determine whether or not the offence of Murder had been proved beyond reasonable doubt.
Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. The accused person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased.
Section 203 of the Penal Code provides the elements of the offence as follows: -
“ 203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:
“For the offence of murder to be proved, there are three elements which t the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”
28. On the first element of death and cause a post mortem report was produced by pw9. It shows that the deceased sustained 80% burns on 20 5 0f his body. The body was properly identified by PW7 and PW8. In any event, even the accused persons admitted that the got to know of the attack upon the deceased and A2 and A4 even said they visited him in hospital and learnt of the death. As such the first element of the death was proved.
29. The harder nut to crack was what caused this death and if all or any or all the accused were responsible for any acts that led to this death. All the 4 of them denied any role in the activities leading to that death of the late Mbito Mgandi.
30. A3 and A4 admitted in court that they were with the deceased at a palm wine den in the earlier part of the evening, They both said that they separated peacefully after getting a lift for the deceased on a motor bike
31. .This evidence contradicts that of pw1, 2 and 5. Pw1 testified that indeed A3 and A4 were in a mnazi den earlier that evening, but the encounter was not without incidence and it did not end there. That the deceased had the memory card which had the images of A1’s children and he was being interrogated as to where he had got if from. That A3 telephoned A1 after which the deceased was tied with ropes and put on a motorbike. They later re grouped at the home of Pw3 and now A1 was present. A1 confirmed that the images in the memory card were those of his family members. That Pw3 and Pw5 suggested that the police be called but A1 would not hear of it and that is how he ,A1 ,started to assault the deceased with his bear hands. A2 also joined in the assault first using his bare hands and later on a plank of wood. The deceased was being beaten so as to force him to confess where the other stolen items were.
32. The assault escalated to the point where A3 tied a rope around the neck of the deceased which rope was then tied to a motor cycle that A4 rode and dragged the deceased along the marram road. When Pw1 attempted to untie the rope, A1 hit him, PW1, with a piece of wood. Pw3 and pw5 are said to have tried to stop the assault but they failed,
33. It is noted that Pw3 did not implicate either of the accused persons. This is understandable since A1 and A2 are hid brothers . The court however did not believe his stance ‘of see no evil and hear no evil’ yet the prolonged episode took place at his home.
34. Pw4 testified that he sold petrol to A1 that evening and both PW1 and PW5 testified that A1 doused the deceased with the fuel and set him on fire which was lite by A2. When PW5 tried to put off the fire ,A1 poured more fuel on the deceased causing the fire to explode and catch the jacket of PW5. The said jacket was availed in court but it was not produced since it was not properly identified.
35. I note that Pw1 and Pw5 were well known to the accused persons since they all live in the same area. Pw1 is related to them whilst Pw5 was the village elder. The incidence dragged on from around 6.00pm up to around 9.3opm when the chief, PW6, AND THE POLICE ARRIVED.
36. PW1 AND PW5 interacted closely with the accused persons and there was no mention of any grudge which would have made them to falsely implicate the accused persons. Their evidence was very thorough and consistent even under cross examination and the court believed them.
37. Even though the cause of death is shown to be the 80% burns, there was evidence that A3 And A4 caused severe injuries to the deceased by dragging him along the road after tying him to the motor cycle . In fact these two are the ones who started the entire incidence by calling A1 and transporting the deceased to Pw3’s homestead.
38. The court finds that each of the 4 accused persons played a specific role in this regrettable incidence. A3 and A4 arrested the accused in the palm wine bar, tied him with ropes and took him to PW3’s home. The two then dragged him along the road causing him extensive injuries. A2 hit the deceased with his bare hands and later a plank of wood and he is also the one who lit the fire using a match box to enable A1 set the deceased on fire. A1 hit the accused person with his bare hands , he then purchased the fuel from PW4 , DOUSED THE DECEASED WITH IT AND SET HIM ON FIRE. He even added more fuel to the victim when Pw5 tried to put off the fire.
39. Even though A5 played the last role of setting the deceased on fire, the others were equally involved and part and parcel of the same transaction. The court finds that the aspect of the participation of each of the accused persons in the act that caused the death of the late Mbito was proved.
40. We now move to the issue of intention.
41. On the element of malice aforethought, the prosecution must prove beyond reasonable doubt that the accused intended to cause the death of the deceased. Malice aforethought is defined and well explained under section 206 of the Penal Code as follows:-
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b)knowledge that the act or omission causing death will probably cause the death 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;
(c)an intent to commit a felony;
(d)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.”
42. This being a murder charge, the prosecution had the onus to prove mens rea and actus reus. The actus reus has been established. The mens rea of murder is traditionally called malice aforethought and it connotes existence of culpability or moral blameworthiness on the part of the accused person.
43.The Court of Appeal in Bonaya Tutu Ipu & Another Vs Republic [2015] eKLR stated as follows on the prove of malice aforethought; - “It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances.
44.Further in the persuasive decision of Chesakit Vs Uganda, CR. app. no. 95 OF 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.
45. Earlier in Rex v Tubere s/o Ochen [1945] 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue: It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick.
45. In this case , the motive was clear. The late mbito was suspected to have stolen some items from the home of A1. He denied the theft and said he had collected the memory card but his accusers would not hear of it. Pw1 and even Pw5 advised them to loop in the police, but again their plea fell on deaf ears. PW5, the village elder was accused of encouraging thieves in the area.
46. The late Mbito may or may not have been a bad character but the accused persons were not justified in taking his life. Kenya is not a banana republic and we cannot encourage hooliganism in the name of run away vigilantes. All the 4 accused persons had the intention to cause grievous harm to the late Mbito. We see A3 and A4 tying him like a log across the motor cycle earlier on in the evening. Later on they tie his neck with a rope and drag him along the marram road causing him intensive injuries. A1 and A2 assaulted the deceased and later set him on fire. They even attacked Pw1 and Pw5 who tried to rescue the deceased. Clearly they all formed a joint sinister motive which they jointly executed. No one is allowed to take the law into their own hands and viciously and in humanely assault another and set them on fire whilst alive. That act alone shows an intention to kill. Under the circumstances the court is satisfied that they all had the intention to murder the late Mbito.
47.The court therefore finds that all the ingredients of murder were proved against each of the 4 accused persons. Accordingly, each one of them is hereby convicted for the offence of murder contrary to section 202 as read with section 205 of the penal code.
DATED SIGNED AND DELIVERED THIS 28TH DAY OF NOVEMBER 2024
LADY JUSTICE WENDY KAGENDO MICHENI
IN THE PRESENCE OF;
THE ACUSSED PERSONS
(The advocates absent and this being the second time they have absented themselves)
MS MAINA FOR THE STATE
BEB0RA COURT ASSISTANT