INTRODUCTION
1. The accused person herein Patrick Kimanzi and Jasper Juma are before this court on one count of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya, the particulars of the offence that on the 25th day of March 2023 at Total Energies, Mwembe Tayari Station, in Mvita Sub County, within Mombasa County, they murdered one Ahmed Ali Mane. The accused persons pleaded not guilty to the charge when they appeared for plea.
2. From the record, the facts of this case are that on 25th March, 2023 a murder incident was reported by a manager of Total Energies Mwembe Tayari branch by the name Evans Sereti Mosingi (PW1).
3. It was the prosecution's case that with intent, the accused persons herein proceeded to murder the deceased in this case. The prosecution called upon a total of 8 witnesses to prove that the
accused had both the malice aforethought and the mens rea for the alleged offence and they committed the unlawful act that led to the death of the deceased
4. After considering the evidence adduced by the prosecution witnesses ,the Court in its Ruling delivered on 6th June, 2024, held that the 2
accused persons had a case to answer and they were subsequently placed on their defense.
6. Both accused persons gave sworn evidence and testified as DW-l and
DW-2 respectively, being the only witness on the part of the Defence.
Subsequently, the Defence closed its case and parties proceeded to
file their written submissions.
THE LAW
7.Section 203 of the Penal Code defines murder in the following terms:
'Any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder." Thus, the central ingredients of the offence of murder are a) malice aforethought; b) an unlaw{ul act or omission on the part of the accused’.
8. Section 206 defines malice aforethought in the following terms: -
“206, 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 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 (light or escape from custody of any person who has committed or attempted to commit a felony,"
9. ln REPUBLIC VS ANDREW OMWENGA (2009) EKLR the court
stated:
"It is clear {rom this definition that {or an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission. There are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to
secure a conviction. They are:
(a) the death of the deceased and the cawe of that death;
(b) that the accused committed the unlawiul act which cawed the death of the deceased and
(c) that the Accused had the malice aforethought."
ISSUES
10. In the instant case, the prosecution had to prove:
- That the 2 accused persons herein or either of them had the intention to cause the death of or to do grievous harm to the deceased ;
- That they had the knowledge that their acts or omission would probably cause death either to the person intended or to some other person;
- That they had the intent to commit a felony or that they had an
intention by the act or omission to facilitate the escape from custody
of any person who has committed or attempted to commit a felony.
11. The question that arises in the instant case is whether there is any
evidence on record tending to prove the above ingredients of the
offence of murder against the 2 accused persons.
ANALYSIS
a) The death of the deceased.
12. The prosecution called upon PW-5, Dr. Gabriel who produced a
postmortem report dated 12th April, 2023.
13. The postmortem shows the following injuries
External appearance of Body: Numerous bruises on the face right periorbital swelling. Bruises on the lower limbs, and upper limbs bruises on the chest swollen upper limbs peripheral cyanosis (minimal). Cut wounds on the fingers (right hand). Linear bruises on the right hand. Bruises on the anterior neck. Bruises on the shoulder and the back. Central cyanosis on the mouth. Traumatic hematomas on the upper limbs.
Internal appearance of Body: Respiratory System – Massive hematoma on trachea and neck muscles. Hemothorax fracture of ribs left (6-8 ribs)
Cardio-Vascular System – Dislocation of cervical spine C4 C5
Digestive System – No hemoperitoneum intestines both normal.
Genito -Urinary System – Normal
Head – Massive hematoma on the anterior neck muscles
Nervous System – Multiple scalp hematomas brain normal.
Spinal Column – Normal
Spinal Cord – Normal
14. The defence submitted that the doctor had not established the age of the purported bruises on the deceased's body. Therefore, it would not be possible to tell when if at all the deceased got the bruises on his body.
15. Their position was that the cause of the death of the deceased is therefore not clear from the postmortem report produced in court.
16.PW 4 testified that he saw Patrick (A1) leave and come back with the old man (the theft suspect) carrying a manila bag and they entered into the office where they were joined by Jaspha A2. The trio is Patrick, Jasper and the old man then left the office and went upstairs: Pw 4 identified the old man as the suspect who had stolen it.
17. That the next time he (PW4) saw the old man was when the police carried the body from upstairs and he identified the person who went upstairs with the 2 accused persons as the one whom he had seen in the CCTV stealing the oil, and the one shown in the photographs in
court.
18. A brief back ground to the events of the 25th of March 2023, was that there had been some theft of some oil at the petrol station where PW1, PW2, PW4, and the 2 accused persons were working. A1, the supervisor had reviewed the CCTV footage for that day and they saw the culprit. His image was circulated and on this 25th march 2025, information came that the suspect had been spotted. That is how, A1 went and came back with the old man, the deceased person that Pw4 was describing above.
19. This evidence shows that indeed, the deceased was alive and walking
at around 11.00am on 25/3/2025 and by 2pm he was not. Even though the post-mortem report does not state the age of the
injuries, the death was proved and it was between the hours of
11.00am and 2.00pm.
20. The court was satisfied that the death was proved beyond reasonable doubt.
B. WHETHER THE TWO ACCUSED PERSONS CAUSED THE DEATH OF THE DECEASED.
21. From the testimonies of PW-l to PW8, it is clear that no one actually witnessed the actual incident leading to the death. The only evidence we have is that of pw4 who testified that he saw the accused persons with the deceased on this fateful day.
22. The defence submitted that the evidence of PW4 is contradictory to
that of PW-2, one Ms. Elali Ogombe, who said that one of the businessmen by
the name of Hemed Lukasi informed him that the deceased had been
sitting at the staircase and was wounded. That upon receipt of
the information by Mr. Hemed Lukasi, PW2 informed PW4, and asked
him to go check on injured person. THAT PW-2 informed Court that PW4,
went to the stair case to check up on the deceased but PW4 never
gave any feedback to PW-2.
23. This is not true as the record does not mention that PW 4 went upstairs. PW 2 said he expected PW 4 to go upstairs.
24. It was the investigating officer's evidence that the said PW4 was in fact the first one to report the alleged murder incident to his
manager Mr. Evans Seteti PW-1 and Evans PW 1 confirmed the same. Therefore PW 4, reported the incidence to the PW 1 who was the Manager as at that time.
25. The defence points out that PW 4 ought to have reported to the supervisor but this supervisor was the(A1) was the suspect. That would have been self- defeating.
CIRCUMSTANCIAL EVIDENCE
26. From the above, the big question however is, whether the accused persons were responsible for the death of the deceased? Alternatively did the prosecution prove beyond reasonable doubt that it was the appellants and nobody else who committed the unlawful act that led to the death of the deceased? From the evidence tendered before court it is clear that none of the prosecution witnesses actually saw or witnessed the appellants or indeed any other person kill the deceased. Thus, there was no direct evidence linking the appellants to the death of the deceased. The prosecution case on this aspect therefore hinged on circumstantial evidence.
27. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the court of Appeal had this to say on circumstantial evidence: “However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence.
28. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial. ”
29.In Abanga alias Onyango v. Republic CR. App NO. 32 of 1990(UR) in which same court held as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established
, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”
30. Also in Sawe Vs. Republic [2003] KLR 364, the Court of Appeal amplified on the above thus:“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”
LAST SEEN ALIVE WITH
31. The key evidence tending to link the accused persons to the crime was that of PW4 who testified that he saw the two accused persons go upstairs with the deceased person .
32. This leads us to the criminal law doctrine of “last seen with” whose principles are that if the accused persons were the last people to be seen with the deceased and the deceased was later found dead then they must have had a hand in her death.
33. Regarding the doctrine of “last seen with” I will revert to Nigerian case of Moses Jua V. The State (2007) LPELR-CA/IL/42/2006. The court, while considering the ‘last seen alive with’ doctrine held: "Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.
34.”In yet another Nigerian case considering the same doctrine, Stephen Haruna V. The Attorney-General Of The Federation (2010) 1 iLAW/CA/A/86/C/2009 the court opined thus:“The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”
35. In the comparative jurisprudence, the Court in Sharma v State of Assam {2017} 6 Scale 556 stated as follows:
“The last seen theory comes into play where the time gap between the part of time when the accused and deceased were seen. Last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused, when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come a conclusion of guilt in those cases.”
35. In the Indian case of Ramreddy Rajeshkhanna Reddy & Another V. State of Andhra Pradesh, JT 2006 (4) SC 16 the court held: “That even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.”
36. Locally, this doctrine has been invoked in the case of Republic v EEK [2018] eKLR.
37. The prosecution adduced evidence on this aspect through PW4. He confirmed that indeed the deceased was last seen alive in the company of the 2 accused persons. The presence of the deceased at the petrol station was explained. He was was the one who had been captured stealing some oil on the CCTV. PW4 said that A1 had circulated the picture of the deceased and he was spotted the 1st accused person was alerted and he went and brought him to the office where he interrogated him. It was after this that the trio went upstairs.
38.The body was found locked in the lubricants store at the petrol station where the two accused person worked later that day.. Even though the defence argued that even 3rd parties had offices upstairs , we note the body was not found in a random store.
39. Further PW3 Ondieki Felix ,testified when it was reported by PW1 that the CCTV camera at the same Mwembe Tayari Shell Petrol station had no footage, they went there and confirmed that the hard disc had been formatted.
40. Even though we do not know when and by whom , the hard disc had been formatted, it had to be someone with assess to the office. Pw3 testified that the hard disc was in the strong room and the formatting was done from the display in the station manager’s office. Further both PW1 and PW4 1 testified that A1 had earlier on showed them the footage of the theft with the suspect running away and also PW1 said that it is only A1 who had the password to see past recordings since he was the supervisor. PW4 also confirmed that it was only A1 who had assess to the CCTV footage.
41.The theft of the oil was on 20th March 2023 and this incident happened on the 25th of March 2025.This provided the motive for this murder. Pw4 testified that they were told that the suspect had been spotted A1 went and brought the person they had seen on the CCTV footage on 20th march 2023.
42. PW2 testified that Hemedi told him of an injured person upstairs and he in turn told PW4. This was around 1.00pm . PW1 then arrived, talked to PW4 and then reported and the Police including PW8 visited the scene. Pw8 testified that they found the body in the lubricants sto.
43.The court is satisfied with the evidence of both PW4 and PW1 ; that only A1 could operate the CCTV footage, the formatting of the CCTV hard disc, the location of the body in the lubricants store point at the guilt of the two accused persons. The time frame and the circumstances meet the criterial for both seen alive with and the inculpatory facts are incompatible with the innocence of the 2 accused persons and incapable of explanation upon any other reasonable hypothesis than that of their guilt. There are no other co-existing circumstances weakening the chain of circumstances relied upon.
COMMON INTENTION
44. The two accused persons were employees at shell petrol station but we also do not know who between the two inflicted which injury but in such case the court relies on the doctrine of common intention. In this respect, the accused persons are charged jointly with the offence of killing the deceased. This brings into perspective the provisions of Section 20 as read together with Section 21 of the Penal Code. Section 21 of the Code provides the features of criminal responsibility as follows:
“When two or more persons, form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence.”
45. The other overriding elements of a common intention concerns characteristics of it being formed at the very onset or during the commission of the offence. It may also arise spontaneously on the spur of the moment. According to Section 10 of the Evidence Act, anything said, done or written by any of the persons deemed to have a common intention, in reference to their common intention is relevant evidence of such intention. What is required of the prosecution is evidence tending to show that the individual accused persons were in fact part of the conspirators in a gang of two or more, sharing a common intention, purposed to commit a particular offence.
46. The Court in Ismael Kiseregwa & Another v Uganda CA CRIM Appeal No. 6 of 1978 held as follows:
“In order to make the doctrine of common intention applicable, it must be shown that the accused had shared with the actual perpetrator of the crime a common intention to pursue a specific unlawful purpose, which led to the commission of the offence. It t can be shown that the accused persons shared with one another a common intention to pursue a specific unlawful purpose and in the prosecution of that unlawful purpose an offence was committed, the doctrine of common intention would apply irrespective of whether the offence committed was murder or manslaughter.”
47. It is now settled that an unlawful common intention does not imply a pre-arranged plan. Common intention may be inferred from the presence of the accused persons, their actions, and the omissions of any of them to disassociate himself from the assault. It can develop in the course of events, though it might not have been present from the start. It is immaterial whether the original common intention was lawful so long as an unlawful purpose develops in the course of events. It is also irrelevant whether the two participated in the commission of the offence where the doctrine of common intention applies, it is not necessary to make a finding as to who actually caused the death.
48. Let us go back to basic facts of this case. The two accused persons were employees at shell petrol station but we also do not know who between the two inflicted which injury . The two however allocated themselves the multiple roles of complainant, arresting officers, investigators , judges and executioners. They them meted out the mob injustice which resulted in the following injuries;
-Respiratory System – Massive hematoma on trachea and neck muscles. Hemothorax fracture of ribs left (6-8 ribs)
--Cardio-Vascular System – Dislocation of cervical spine C4 C5
Head – Massive hematoma on the anterior neck muscles
Nervous System – Multiple scalp hematomas brain normal.
These injuries caused the death of the accused person and the court finds that the two accused persons had a common intention
MALICE AFORETHOUGHT
49. On the malice aforethought, the two accused persons, as noted above, took the law into their own hands by arresting and locking up the deceased at their place of work. They then meted out a severe beating. When things went south , they warned PW4 not to say anything and they left the body in the store .From the severity of injuries noted above including fracture ribs, to the extent of the said injuries (covering the entire body) to hiding the body in the store and warning others to be silent and even formatting the CCTV, the two had the intention to cause the death or cause grievous harm as set out in section 206 of the Penal code.
50. Accordingly the court finds them guilty as charged for the offence of murder Contrary to section 203 as read with section 204 of the penal code.
51.It is so ordered accordingly.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 20th day of March 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
The 2 accused persons and their advocates
Mr Sirima for the Prosecution
Ms Bebora court assistant
………………………………………….