J U D G M E N T
1. The two accused person were charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code.
2. The particulars of the offence are RAMATHAN TSUMA NYIRO CHIDZAO, KACHE CHANGAWA CHENGO; on the night of 6th and 7th July 2018 at Zukurukani Village at Kilibasi Sub-Location within Kwale County jointly murdered SAUMU KOKOI NYAE.
3. Both pleaded not guilty and the State called a total of 5 witnesses.
THE LAW
4. 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.
5. Section 203 of the Penal Code gives the elements of the offence as follows: -
“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
6. The elements of murder were set out 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 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 an
(c) the intention
7. Therefore , on the first part , the state had to prove the deaths, and that the accused person committed the acts or omissions which caused the death of the deceased.
8. In this case the death is not disputed. We also have the post-mortem report form. PEXT 3, it shows the cause of death was cardiopulmonary arrest secondary to severe head injuries due to multiple cut wounds on the head and deep cut wounds on the thorax and right arm.
9. Now, apart from the death, the only other evidence we have against the two accused persons is the alleged confession by A1.
10. The record shows that A1 was a sister in law to the deceased Saumu who was married to her brother one Chengo Changawa Chengo. From the evidence of the village elder PW 1 and the Chief, the family had some dispute and were very hostile to each other. That is the 1st accused person and her siblings against the deceased.
11. It was alleged that the deceased had been scalded with hot water by one Kaingu Chengo another Sister to the 1st accused and a report made at Mackinon Police Post. She passed on while this issue was un resolved.
12. It was also alleged that the late Saumu’s mother had visited the family of the 1st accused to complain that her daughter was being mistreated. That the deceased mother had also said that she had given her daughter, the late Saumu , some concoction to wipe out the entire family so that her daughter, , the late Saumu can live in peace.
13. It was after this that the 1st accused person is alleged to have decided to deal with the deceased once and for all to protect her kin. She is said to have confessed that she hired A2 to finish the deceased. An open and shut case or so it appeared.
14. Unfortunately, there was no admissible confession that we can rely upon.
CONFESSIONS
16. .Section 25A of the Evidence Act provides that:“(1)A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.”
17. .Section 26 of the Evidence Act provides that:“
A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”
16. .The rights of an accused are listed under rule 4 of the Evidence (Out of Court Confessions) Rules 2009 as follows:“. Where an accused person intimates to the police that he wishes to make a confession, the recording officer shall take charge of the accused person and shall ensure that the accused person–
(a)has stated his preferred language of communication;
(b)is provided with an interpreter free of charge where he does not speak either Kiswahili or English;
(c)is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment
;(d ) is informed of his right to have legal representation of his own choice;
(e)is not deprived of food, water or sleep;
(f)has his duration, including date and time of arrest and detention in police custody, established and recorded;
(g)has his medical complaint, if any, adequately addressed;
(h)is availed appropriate communication facilities; and
(i)communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5.”
18. In our case, there was no semblance of any attempt to get an admissible confession. What emerged is that the 1st accused, her mother, sister and brother the key suspects had been subjected to mob injustice.
19. Pw 2 who was present from the start narrated how the mob interrogated the 1st accused person’s family members. That the family members asked for some time to talk alone after which they came back and they all said they had no idea who had killed the late Saumu.
20. Upon hearing this, the mob had become incensed. They tied and put the 4 suspected family members in the grave which had been dug burry the late Saumu. PW 2 testified that Petrol was also purchased and fire lit ready to lynch them. Luckily for them the village elder and the KWS Officers rescued them.These testied as PW2 and 3. They said they found the 4 tied up and they had been subjected to a severe beating.
21. It was after this rescue that the confession was made. PW 1 testified he found the 4 bound and Kache asked the 1st accused to confess so that they are not all killed.
22. Can such a confession be said to be voluntary? Definitely not. It was not freely given as there was torture and threats of death.
23. A2 on the other hand is said to have made a confession to a police inspector. Unfortunately, no such evidence was produced.
24. Confessions are an act to corroborate other evidence. In this case there was none except for the suspicion.
25. As to the malice aforethought, there was this issues of the bad blood amongst the in laws. Again, that was from the said confession by A1. I have found that the confession was not freely given and accordingly cannot be relied upon especially without any other evidence.
26. Accordingly, it would be unsafe to convict either of the 2 accused persons. They are given the benefit of doubt and acquitted of the offence of murder centrally to section 203 as read with 205 0f the Penal code.
27. They are hereby set at liberty.
28. It is so ordered
Delivered this 26th day of June 2025 .
LADY JUSTICE WENDY KAGENDO
IN THE PRESENCE OF:
MR NGIRI FOR RHE REPUBLIC
THE 2 ACCUSED PERSONS AND THEIR ADVOCATE MR MWAWASI
BEBORA COURT ASSISTANT
1. The two accused person were charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code.
2. The particulars of the offence are RAMATHAN TSUMA NYIRO CHIDZAO, KACHE CHANGAWA CHENGO; on the night of 6th and 7th July 2018 at Zukurukani Village at Kilibasi Sub-Location within Kwale County jointly murdered SAUMU KOKOI NYAE.
3. Both pleaded not guilty and the State called a total of 5 witnesses.
THE LAW
4. 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.
5. Section 203 of the Penal Code gives the elements of the offence as follows: -
“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
6. The elements of murder were set out 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 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 an
(c) the intention
7. Therefore , on the first part , the state had to prove the deaths, and that the accused person committed the acts or omissions which caused the death of the deceased.
8. In this case the death is not disputed. We also have the post-mortem report form. PEXT 3, it shows the cause of death was cardiopulmonary arrest secondary to severe head injuries due to multiple cut wounds on the head and deep cut wounds on the thorax and right arm.
9. Now, apart from the death, the only other evidence we have against the two accused persons is the alleged confession by A1.
10. The record shows that A1 was a sister in law to the deceased Saumu who was married to her brother one Chengo Changawa Chengo. From the evidence of the village elder PW 1 and the Chief, the family had some dispute and were very hostile to each other. That is the 1st accused person and her siblings against the deceased.
11. It was alleged that the deceased had been scalded with hot water by one Kaingu Chengo another Sister to the 1st accused and a report made at Mackinon Police Post. She passed on while this issue was un resolved.
12. It was also alleged that the late Saumu’s mother had visited the family of the 1st accused to complain that her daughter was being mistreated. That the deceased mother had also said that she had given her daughter, the late Saumu , some concoction to wipe out the entire family so that her daughter, , the late Saumu can live in peace.
13. It was after this that the 1st accused person is alleged to have decided to deal with the deceased once and for all to protect her kin. She is said to have confessed that she hired A2 to finish the deceased. An open and shut case or so it appeared.
14. Unfortunately, there was no admissible confession that we can rely upon.
CONFESSIONS
16. .Section 25A of the Evidence Act provides that:“(1)A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.”
17. .Section 26 of the Evidence Act provides that:“
A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”
16. .The rights of an accused are listed under rule 4 of the Evidence (Out of Court Confessions) Rules 2009 as follows:“. Where an accused person intimates to the police that he wishes to make a confession, the recording officer shall take charge of the accused person and shall ensure that the accused person–
(a)has stated his preferred language of communication;
(b)is provided with an interpreter free of charge where he does not speak either Kiswahili or English;
(c)is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment
;(d ) is informed of his right to have legal representation of his own choice;
(e)is not deprived of food, water or sleep;
(f)has his duration, including date and time of arrest and detention in police custody, established and recorded;
(g)has his medical complaint, if any, adequately addressed;
(h)is availed appropriate communication facilities; and
(i)communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5.”
18. In our case, there was no semblance of any attempt to get an admissible confession. What emerged is that the 1st accused, her mother, sister and brother the key suspects had been subjected to mob injustice.
19. Pw 2 who was present from the start narrated how the mob interrogated the 1st accused person’s family members. That the family members asked for some time to talk alone after which they came back and they all said they had no idea who had killed the late Saumu.
20. Upon hearing this, the mob had become incensed. They tied and put the 4 suspected family members in the grave which had been dug burry the late Saumu. PW 2 testified that Petrol was also purchased and fire lit ready to lynch them. Luckily for them the village elder and the KWS Officers rescued them.These testied as PW2 and 3. They said they found the 4 tied up and they had been subjected to a severe beating.
21. It was after this rescue that the confession was made. PW 1 testified he found the 4 bound and Kache asked the 1st accused to confess so that they are not all killed.
22. Can such a confession be said to be voluntary? Definitely not. It was not freely given as there was torture and threats of death.
23. A2 on the other hand is said to have made a confession to a police inspector. Unfortunately, no such evidence was produced.
24. Confessions are an act to corroborate other evidence. In this case there was none except for the suspicion.
25. As to the malice aforethought, there was this issues of the bad blood amongst the in laws. Again, that was from the said confession by A1. I have found that the confession was not freely given and accordingly cannot be relied upon especially without any other evidence.
26. Accordingly, it would be unsafe to convict either of the 2 accused persons. They are given the benefit of doubt and acquitted of the offence of murder centrally to section 203 as read with 205 0f the Penal code.
27. They are hereby set at liberty.
28. It is so ordered
Delivered this 26th day of June 2025 .
LADY JUSTICE WENDY KAGENDO
IN THE PRESENCE OF:
MR NGIRI FOR RHE REPUBLIC
THE 2 ACCUSED PERSONS AND THEIR ADVOCATE MR MWAWASI
BEBORA COURT ASSISTANT