INTRODUCTION
1. The accused persons Nyanje Mdoe and Mkalla Mdoe stand charged with the offence of murder contrary to Section 203 read with Section 204 of the Penal Code
2. The accused persons pleaded not guilty therefore and therefore the prosecution had to discharge their duty to prove all the essential elements of the offence of murder beyond reasonable doubt.
To prove this the following witnesses were availed by the prosecution.
3.PW1. Mwero Dena, the deceased son told the court on oath that he was notified of the father's death by the elder brother. He went on to acknowledge that the deceased had been having a land dispute with the brothers who are the accused. He affirmed that there were various meetings between the accused and the deceased to decide on the ownerhip of some land and eventually it was decicded that the deceased was indeed the owner of the land in dispute .He told the court that after these said meetings the deceased started receiving threats through phone and he went to report to the police. He then identified the accused persons in court and he added that the land in dispute was sold.
4 .PW2, Mbega Nyando, identified himself as a village elder from Samburu ,Mwembeni village.He testified that he was an active party in the hearing of the land dispute between the deceased and accused persons. That the accused persons went to him with the matter in which he convened a meeting to discuss it alongside 42 elders .Upon hearing the issue they resolved that the land belonged to the deceased-Dena Dzuya. He added that the accused persons were dissatisfied with the decision and took their complaints to the chief and they did not pay the full fine given to them.
PW2”S evidence was that The chief also conveyed a hearing in which the outcome was the same like the elders. That is that the land belonged to the deceased and the accused accepted to go home but they did not comply with the decision. That they lodged another challenge to the assistant chief in which he attended. On 1/2/2017 as they were waiting for the written minutes , he got a report that the deceased had been killed along the road from Taru. He proceeded to the scene and saw the body with cuts on the head. He says he knew the deceased since childhood. He stated that the deceased wanted to sell the land and stay away from his cousins.
5 .PW3.Ndolo Mwandongo Ndolo the assistant chief testified that the accused had been complaining about the land in dispute and he called a meeting. It was held at the 2nd accused’s home and came to the conclusion the land belonged to the deceased. He added that he thinks the death was due to the land dispute. That when the deceased started selling portions of the land a he started getting death threats from family members. He testified that the deceased notified him of the threats to him and he advised the deceased to report.
6.PW4. Hassan Said was a businessman selling palm wine and was among the last people to see the deceased when he and his friend went to his shop. He was however not aware of what happened after the deceased left his shop. He stated that he is not aware of any disputes whatsoever but knows the accused persons.
7.PW5. Juma Tsuma, a nephew to deceased confirmed the dispute as he was told by the deceased. He Said he is not aware of any threats.
8.PW6. Dr. Gathendu conducted post moterm on the body of the deceased. He found injuries at the back of the head and neck and ruled cause of death as severe head injuries with pulmonary brain damage.
9.PW6.CPL Charles Maina testified that on 1/2/2017 while attached to Taru police station a report of murder was made by one Ali Nyanje and Said .That in the company OCS Taru,,and CPL Aden they proceeded to the scene and found the body of the deceased lying near the road with deep cuts on the head. He testified that no weapons were found at the scene of crime. That Investigations confirmed the presence of the land dispute between the parties and the deceased had complained to the village elders that the accused persons had threatened him. He also testified that the deceased was in fear as the accused persons had threatened they wanted to kill him but no report was made to police. He was transferred before completing the investigations.
10.PW8. Sgt. took over the investigations. He accompanied CPL Kiplagat to conductthe arrests of the suspects who were then jointly charged with the offense of murder.
11.PW9. Athuman Katana was the key witness for the prosecution. He is currently serving a prison term for the offence of murder . His evidence was that the accused persons are related to him .That in February 2016,he met with the accused, who told him they wanted to kill the deceased because of a land dispute but he she refused to be involved in the scheme. He then left and told his younger uncle what had transpired. Later says he looked for the deceased and notified him about the said plans and he urged the deceased to go and report. He testified that the deceased reported after 3 weeks and that he was be required to record a statement. That he was in remand when the deceased was murdered. He recorded statement after death of the deceased.
12. The defence did not provide any witnesses or alibis to support their case and relied on weakness of the prosecutions case. The defences critisizes the evidence adduced by PW7 by bringing to focus that there were no entries in the OB of any threats reported to the police.
ISSUES
13.The issues before this court is whether the prosecution has discharged the burden of proof beyond reasonable doubt in respect to the charge in respect with the charge of murder aginst the accused persons.
14. In determination of such, the Supreme Court of Nigeriain Bakare vs State[1985] 2 NWLR stated;
"Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary criminal justice system. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including in the administration of justice. Proof beyond reasonable doubt means just what it says, not admit of plausible possibilities and fanctiful possibilities but it does admit a high degree of cogency consistent with an equally high degree of probability".
13. Issues would therefore be :
a] whether prosecution proved death of deceased and that it was unlawful.
b] Whether there was sufficient circumstantial evidence to link the accused to the murder.
c] Whether the said threats made by the accused ,corroborated by witnesses established guilt beyond reasonable doubt.
d] Whether there was malice aforethought.
14. In the case, there is no dispute that the deceased is dead. This is informed by the post moterm report produced by Dr. Gathendu . It confirms the death of deceased was caused by severe head injuries and brain damage as a result to the fatal cuts sustained in the back of the head. There is no dispute as to the proof of death as a requirement of law under Section 203 of the Penal code as against the deceased.
15. The next step will be to prove that the accused persons caused the unlawful death. .These elements are are provided under Section 203 of the Penal Code. It is founded in law that every homicide is unlawful unless where circumstances are authorized in the law which make it excusable as contemplated in Art 23[4] C.O.K .
16 .The prosecutions case heavily hinges on circumstantial evidence and as set out in the Republic v Kipkering Arap Koskei and another(1949) 16 EACA 135, where it was held that:
"In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and inapable of explanation upon any other reasonablehypothesis that that of guilt".
17. In this case, it is said that the accused were threatening the deceased .Various prosecution tesfified on this issue. These INCLUDED PW1,PW3,PW6. Un fortunately these threats only go to prove the mens rea or motive. There was no evidence whatsoever to prove the actual act.
The prosecution neede to prove the 3 elementS of murder and the evidence is not sufficient . There was a strong suspicion but that alone can not suffice.
The court finds the accused persons are not guilty of the offence of murder contary to Section 203 as resd with section 204 of the Penal Code and I hereby acquit them .
They are set at liberty and any securuty deposited may be released to the depositor.
It is so ordered.
DATED AND DELIVERED AT MOMBASA THIS 23RD DAY OF JUNE 2025.
WENDY KAGENDO.
JUDGE
PRESENT:
MR SIRIMA FOR THE STATE
MR MWAWASA FOR THE ACCUSED PERSONS
BEBORA COURT ASSISTANT
1. The accused persons Nyanje Mdoe and Mkalla Mdoe stand charged with the offence of murder contrary to Section 203 read with Section 204 of the Penal Code
2. The accused persons pleaded not guilty therefore and therefore the prosecution had to discharge their duty to prove all the essential elements of the offence of murder beyond reasonable doubt.
To prove this the following witnesses were availed by the prosecution.
3.PW1. Mwero Dena, the deceased son told the court on oath that he was notified of the father's death by the elder brother. He went on to acknowledge that the deceased had been having a land dispute with the brothers who are the accused. He affirmed that there were various meetings between the accused and the deceased to decide on the ownerhip of some land and eventually it was decicded that the deceased was indeed the owner of the land in dispute .He told the court that after these said meetings the deceased started receiving threats through phone and he went to report to the police. He then identified the accused persons in court and he added that the land in dispute was sold.
4 .PW2, Mbega Nyando, identified himself as a village elder from Samburu ,Mwembeni village.He testified that he was an active party in the hearing of the land dispute between the deceased and accused persons. That the accused persons went to him with the matter in which he convened a meeting to discuss it alongside 42 elders .Upon hearing the issue they resolved that the land belonged to the deceased-Dena Dzuya. He added that the accused persons were dissatisfied with the decision and took their complaints to the chief and they did not pay the full fine given to them.
PW2”S evidence was that The chief also conveyed a hearing in which the outcome was the same like the elders. That is that the land belonged to the deceased and the accused accepted to go home but they did not comply with the decision. That they lodged another challenge to the assistant chief in which he attended. On 1/2/2017 as they were waiting for the written minutes , he got a report that the deceased had been killed along the road from Taru. He proceeded to the scene and saw the body with cuts on the head. He says he knew the deceased since childhood. He stated that the deceased wanted to sell the land and stay away from his cousins.
5 .PW3.Ndolo Mwandongo Ndolo the assistant chief testified that the accused had been complaining about the land in dispute and he called a meeting. It was held at the 2nd accused’s home and came to the conclusion the land belonged to the deceased. He added that he thinks the death was due to the land dispute. That when the deceased started selling portions of the land a he started getting death threats from family members. He testified that the deceased notified him of the threats to him and he advised the deceased to report.
6.PW4. Hassan Said was a businessman selling palm wine and was among the last people to see the deceased when he and his friend went to his shop. He was however not aware of what happened after the deceased left his shop. He stated that he is not aware of any disputes whatsoever but knows the accused persons.
7.PW5. Juma Tsuma, a nephew to deceased confirmed the dispute as he was told by the deceased. He Said he is not aware of any threats.
8.PW6. Dr. Gathendu conducted post moterm on the body of the deceased. He found injuries at the back of the head and neck and ruled cause of death as severe head injuries with pulmonary brain damage.
9.PW6.CPL Charles Maina testified that on 1/2/2017 while attached to Taru police station a report of murder was made by one Ali Nyanje and Said .That in the company OCS Taru,,and CPL Aden they proceeded to the scene and found the body of the deceased lying near the road with deep cuts on the head. He testified that no weapons were found at the scene of crime. That Investigations confirmed the presence of the land dispute between the parties and the deceased had complained to the village elders that the accused persons had threatened him. He also testified that the deceased was in fear as the accused persons had threatened they wanted to kill him but no report was made to police. He was transferred before completing the investigations.
10.PW8. Sgt. took over the investigations. He accompanied CPL Kiplagat to conductthe arrests of the suspects who were then jointly charged with the offense of murder.
11.PW9. Athuman Katana was the key witness for the prosecution. He is currently serving a prison term for the offence of murder . His evidence was that the accused persons are related to him .That in February 2016,he met with the accused, who told him they wanted to kill the deceased because of a land dispute but he she refused to be involved in the scheme. He then left and told his younger uncle what had transpired. Later says he looked for the deceased and notified him about the said plans and he urged the deceased to go and report. He testified that the deceased reported after 3 weeks and that he was be required to record a statement. That he was in remand when the deceased was murdered. He recorded statement after death of the deceased.
12. The defence did not provide any witnesses or alibis to support their case and relied on weakness of the prosecutions case. The defences critisizes the evidence adduced by PW7 by bringing to focus that there were no entries in the OB of any threats reported to the police.
ISSUES
13.The issues before this court is whether the prosecution has discharged the burden of proof beyond reasonable doubt in respect to the charge in respect with the charge of murder aginst the accused persons.
14. In determination of such, the Supreme Court of Nigeriain Bakare vs State[1985] 2 NWLR stated;
"Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary criminal justice system. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including in the administration of justice. Proof beyond reasonable doubt means just what it says, not admit of plausible possibilities and fanctiful possibilities but it does admit a high degree of cogency consistent with an equally high degree of probability".
13. Issues would therefore be :
a] whether prosecution proved death of deceased and that it was unlawful.
b] Whether there was sufficient circumstantial evidence to link the accused to the murder.
c] Whether the said threats made by the accused ,corroborated by witnesses established guilt beyond reasonable doubt.
d] Whether there was malice aforethought.
14. In the case, there is no dispute that the deceased is dead. This is informed by the post moterm report produced by Dr. Gathendu . It confirms the death of deceased was caused by severe head injuries and brain damage as a result to the fatal cuts sustained in the back of the head. There is no dispute as to the proof of death as a requirement of law under Section 203 of the Penal code as against the deceased.
15. The next step will be to prove that the accused persons caused the unlawful death. .These elements are are provided under Section 203 of the Penal Code. It is founded in law that every homicide is unlawful unless where circumstances are authorized in the law which make it excusable as contemplated in Art 23[4] C.O.K .
16 .The prosecutions case heavily hinges on circumstantial evidence and as set out in the Republic v Kipkering Arap Koskei and another(1949) 16 EACA 135, where it was held that:
"In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and inapable of explanation upon any other reasonablehypothesis that that of guilt".
17. In this case, it is said that the accused were threatening the deceased .Various prosecution tesfified on this issue. These INCLUDED PW1,PW3,PW6. Un fortunately these threats only go to prove the mens rea or motive. There was no evidence whatsoever to prove the actual act.
The prosecution neede to prove the 3 elementS of murder and the evidence is not sufficient . There was a strong suspicion but that alone can not suffice.
The court finds the accused persons are not guilty of the offence of murder contary to Section 203 as resd with section 204 of the Penal Code and I hereby acquit them .
They are set at liberty and any securuty deposited may be released to the depositor.
It is so ordered.
DATED AND DELIVERED AT MOMBASA THIS 23RD DAY OF JUNE 2025.
WENDY KAGENDO.
JUDGE
PRESENT:
MR SIRIMA FOR THE STATE
MR MWAWASA FOR THE ACCUSED PERSONS
BEBORA COURT ASSISTANT