JUDGEMENT
The matter before the court for judgment after a full trial process took place in which the two co-accused were charged with 4 counts the offence of murder contrary to section 203 as read with section 204 of the penal code.
The particulars allege that on the 3 rd and 4 th night of March 2013 in KTDA Miritini area, Mombasa county, the two co-accused jointly murdered;
a) CHIEF INSPECTOR SALIM KIMUTAI CHEBII.
b) CONSTABLE STEPHEN MAITHYA.
c)CONSTABLE ANDREW SONGWA
d) OTIENO OWUOR
Having carefully considered all the evidence, submissions by witnesses and the counsel, I now render my judgment.
SUMMARY OF THE EVIDENCE
Pw1 testified that after the crime took place a warrant of arrest was issued for the accused persons , the who evaded arrest multiple times before they were caught up with several months later.
P w2 was a protected witness. He testified that among the people who died was one Mahahami, who was the brother of his friend and a member of the MRC. He was recruited and paid 250/-. The deceased used to be a fisherman. That about 4 or 5months before the general elections of 3.3.013, he was told of a person was doing recruitment for the MRC [Mombasa Republic -pwani si Kenya and they gave Ksh 250 to Mwinyi Hamisi Masudi in cash. The deceased's brother took him to this Mwinyi Hamisi Masudi.
His key evidence was that that Mr. Mwinyi Hamisi was indeed a member of MRC.
Pw3 was a traffic police officer and he stated that on particular day, he had left the station with a gun belonging to his co-worker who had left it at the station. That he used the gun to scare the crowd and not to kill anyone . That he had left the station to accompany IEBC officers and he was injured in the chest at the time. He produced a p3 to back up his assertion.
Pw4 testified that he accompanied 7 other officers and they went to Rashid's home on 6/11/2014. They found Rashid at home, but no weapons were found in the house. He could not determine whether Rashid killed the officers or not .
Pw8 stated that Rashid Juma was suspected of being part of the group that committed the murder of the police officers. His house was not far from the station, so they went over to his house and found out he was the landlord and collected a statement from him.
Pw9 was the consultant pathologist at Coast General Hospital. He performed the post-mortems on the four police officers Pandya Memorial Hospital. He had previously produced the 4 post-mortem reports in another court. He did not know the accused persons and I didn't see them during the post-mortem.
Pw10 was attached to the DCI serious crime unit in Chagamwe. His evidence established that some 3 suspects were interrogated and stated that the murders were caused by members of MRC, whose intent was to stop the general elections from taking place. That some Items were also discovered in the suspect's house that back up their claims.
That it had been established that some armed MRC members, were making their way to the polling station to tamper with the general election process. Thus, the 4 policemen were dispatched from the station to go and secure the area, but unfortunately, they met with their untimely death
That two other civilians also fell victim to the crossfire and died.
The offence was denied.
THE LAW
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 .
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.”
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
Therefore , on the first part , the state had to prove the deaths, and that the 2 accused person committed the acts or omissions which caused the death of the deceased.
In this case the death is not disputed. We also have the post-mortem reports
THE CAUSE OF DEATH.
The prosecution called a total of 10 witness, two of whom were protected witness. The evidence adduced was on the 3rd March 2013 on the eve of the General Election, 4 Police Officer were killed allegedly by members of the Mombasa Republican Council [MRC]. The 4 Police Officers were the Late Mr. Otieno Owour the OCPD, the late Salim Kimutai Chebii, the OCS, Changamwe Police Station, PC Stephen Maithya and PC Andrew Songwa. The key evidence was that by the two protected witnesses is that the 2nd Accused was a Member of Republican Council [MRC] and that he was the Chairman of the Miritini Branch.
The Mombasa Republican Council had been proscribed by the Government vide a Legal Notice No. 12585 of 18th October 2010. It was therefore an illegal organization. However the Ban was lifted by the Count vide its Judgment in RANDU NZAI RUWA AND 2 OTHERS VERSUS REPUBLIC Judgement delivered on 25th May 2012.
According to 10 witnesses, the 2 accused persons were members of the Mombasa Republic Council [MRC] and A2 was the Chairman of Miritini branch where an Oath allegedly took place. However no one testified before the Court on the alleged oath being taken. The evidence starts from Page 21 to page 24 for PW1 and PW2 from Pages 25 to Page 29. None of these witnesses had placed the 2nd Accused at the scene of the crime nor any where in the course of Planning of the said crime.
It was the duty of the Prosecution to prove beyond reasonable doubt that the 2 accused persons committed the offences for which they have been charged.
In the absence of direct evidence, the prosecution has sought to rely on circumstantial evidence in Order to prove its case. That because the 2nd Accused was a Member of Mombasa Republican Council [MRC] and therefore he participated in the killing of the Police Officers. That the 2nd Accused telephone number was found in the records which had been produced in an earlier Criminal Case [ see page 75 of the evidence]. That record was never produced in these proceedings despite affording the prosecution all the time and opportunity to do so.
It was further alleged that the name of the 2nd Accused was found in the telephone number was found in the records which had been produced in an earlier Criminal Case [ see page 75 of the evidence]. That record was never produced in these proceedings despite affording the prosecution all the time and opportunity to do so.
PW10 further alleged that the name of the 2nd Accused was found in the telephone belonging to MR. Randu the Secretary General of Mombasa Republican Council [MRC]. MR. Randu was never called as a witness and neither was he charged with any offence.
This case rests fully on circumstantial evidence; the court must satisfy that the evidence chain is an unbroken one that points conclusively to the guilt of the accused beyond a reasonable doubt. This principle was set out in R v Kipkering.
In our case, there evidence of the death that the deaths were attributed to the MRC members. There is no sufficient evidence that proves that the two accused are part of or even leaders of the group.
The only evidence that would have linked them directly would have been the 250/- receipt issued to Pw1's brother, but the receipt was llost.
In criminal cases of this gravity, where the liberty and life of the accused are at stake, the court must be particularly cautious not to convict based on suspicion, however strong.
The evidence presented, while raising questions about the circumstances of the deceased’s death, does not meet the high standard of proof required in criminal cases. There remain reasonable doubts that prevent me from safely concluding that any of the accused persons participated in the alleged murder.
It is unfortunate that we lost senior police officers under very unfortunate circumstances. Criminal gangs are to be condemned. We can not convict anyone without sufficient evidence no matter the circumstances.
Accordingly, I find that the prosecution has not proved its case against any of the accused persons beyond a reasonable doubt. I therefore acquit the two accused persons in all the four counts of murder contrary to section 203 as read with 204 of the penal code that had been preferred .
The sureties are hereby discharged and the security may be released to the depositors.
Dated signed and delivered this 24 th day of July 2025
Wendy kagendo
Judge
Present;
Mr Sirima for the state
The two accused persons and their advocates
Bebora court assistant
The matter before the court for judgment after a full trial process took place in which the two co-accused were charged with 4 counts the offence of murder contrary to section 203 as read with section 204 of the penal code.
The particulars allege that on the 3 rd and 4 th night of March 2013 in KTDA Miritini area, Mombasa county, the two co-accused jointly murdered;
a) CHIEF INSPECTOR SALIM KIMUTAI CHEBII.
b) CONSTABLE STEPHEN MAITHYA.
c)CONSTABLE ANDREW SONGWA
d) OTIENO OWUOR
Having carefully considered all the evidence, submissions by witnesses and the counsel, I now render my judgment.
SUMMARY OF THE EVIDENCE
Pw1 testified that after the crime took place a warrant of arrest was issued for the accused persons , the who evaded arrest multiple times before they were caught up with several months later.
P w2 was a protected witness. He testified that among the people who died was one Mahahami, who was the brother of his friend and a member of the MRC. He was recruited and paid 250/-. The deceased used to be a fisherman. That about 4 or 5months before the general elections of 3.3.013, he was told of a person was doing recruitment for the MRC [Mombasa Republic -pwani si Kenya and they gave Ksh 250 to Mwinyi Hamisi Masudi in cash. The deceased's brother took him to this Mwinyi Hamisi Masudi.
His key evidence was that that Mr. Mwinyi Hamisi was indeed a member of MRC.
Pw3 was a traffic police officer and he stated that on particular day, he had left the station with a gun belonging to his co-worker who had left it at the station. That he used the gun to scare the crowd and not to kill anyone . That he had left the station to accompany IEBC officers and he was injured in the chest at the time. He produced a p3 to back up his assertion.
Pw4 testified that he accompanied 7 other officers and they went to Rashid's home on 6/11/2014. They found Rashid at home, but no weapons were found in the house. He could not determine whether Rashid killed the officers or not .
Pw8 stated that Rashid Juma was suspected of being part of the group that committed the murder of the police officers. His house was not far from the station, so they went over to his house and found out he was the landlord and collected a statement from him.
Pw9 was the consultant pathologist at Coast General Hospital. He performed the post-mortems on the four police officers Pandya Memorial Hospital. He had previously produced the 4 post-mortem reports in another court. He did not know the accused persons and I didn't see them during the post-mortem.
Pw10 was attached to the DCI serious crime unit in Chagamwe. His evidence established that some 3 suspects were interrogated and stated that the murders were caused by members of MRC, whose intent was to stop the general elections from taking place. That some Items were also discovered in the suspect's house that back up their claims.
That it had been established that some armed MRC members, were making their way to the polling station to tamper with the general election process. Thus, the 4 policemen were dispatched from the station to go and secure the area, but unfortunately, they met with their untimely death
That two other civilians also fell victim to the crossfire and died.
The offence was denied.
THE LAW
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 .
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.”
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
Therefore , on the first part , the state had to prove the deaths, and that the 2 accused person committed the acts or omissions which caused the death of the deceased.
In this case the death is not disputed. We also have the post-mortem reports
THE CAUSE OF DEATH.
The prosecution called a total of 10 witness, two of whom were protected witness. The evidence adduced was on the 3rd March 2013 on the eve of the General Election, 4 Police Officer were killed allegedly by members of the Mombasa Republican Council [MRC]. The 4 Police Officers were the Late Mr. Otieno Owour the OCPD, the late Salim Kimutai Chebii, the OCS, Changamwe Police Station, PC Stephen Maithya and PC Andrew Songwa. The key evidence was that by the two protected witnesses is that the 2nd Accused was a Member of Republican Council [MRC] and that he was the Chairman of the Miritini Branch.
The Mombasa Republican Council had been proscribed by the Government vide a Legal Notice No. 12585 of 18th October 2010. It was therefore an illegal organization. However the Ban was lifted by the Count vide its Judgment in RANDU NZAI RUWA AND 2 OTHERS VERSUS REPUBLIC Judgement delivered on 25th May 2012.
According to 10 witnesses, the 2 accused persons were members of the Mombasa Republic Council [MRC] and A2 was the Chairman of Miritini branch where an Oath allegedly took place. However no one testified before the Court on the alleged oath being taken. The evidence starts from Page 21 to page 24 for PW1 and PW2 from Pages 25 to Page 29. None of these witnesses had placed the 2nd Accused at the scene of the crime nor any where in the course of Planning of the said crime.
It was the duty of the Prosecution to prove beyond reasonable doubt that the 2 accused persons committed the offences for which they have been charged.
In the absence of direct evidence, the prosecution has sought to rely on circumstantial evidence in Order to prove its case. That because the 2nd Accused was a Member of Mombasa Republican Council [MRC] and therefore he participated in the killing of the Police Officers. That the 2nd Accused telephone number was found in the records which had been produced in an earlier Criminal Case [ see page 75 of the evidence]. That record was never produced in these proceedings despite affording the prosecution all the time and opportunity to do so.
It was further alleged that the name of the 2nd Accused was found in the telephone number was found in the records which had been produced in an earlier Criminal Case [ see page 75 of the evidence]. That record was never produced in these proceedings despite affording the prosecution all the time and opportunity to do so.
PW10 further alleged that the name of the 2nd Accused was found in the telephone belonging to MR. Randu the Secretary General of Mombasa Republican Council [MRC]. MR. Randu was never called as a witness and neither was he charged with any offence.
This case rests fully on circumstantial evidence; the court must satisfy that the evidence chain is an unbroken one that points conclusively to the guilt of the accused beyond a reasonable doubt. This principle was set out in R v Kipkering.
In our case, there evidence of the death that the deaths were attributed to the MRC members. There is no sufficient evidence that proves that the two accused are part of or even leaders of the group.
The only evidence that would have linked them directly would have been the 250/- receipt issued to Pw1's brother, but the receipt was llost.
In criminal cases of this gravity, where the liberty and life of the accused are at stake, the court must be particularly cautious not to convict based on suspicion, however strong.
The evidence presented, while raising questions about the circumstances of the deceased’s death, does not meet the high standard of proof required in criminal cases. There remain reasonable doubts that prevent me from safely concluding that any of the accused persons participated in the alleged murder.
It is unfortunate that we lost senior police officers under very unfortunate circumstances. Criminal gangs are to be condemned. We can not convict anyone without sufficient evidence no matter the circumstances.
Accordingly, I find that the prosecution has not proved its case against any of the accused persons beyond a reasonable doubt. I therefore acquit the two accused persons in all the four counts of murder contrary to section 203 as read with 204 of the penal code that had been preferred .
The sureties are hereby discharged and the security may be released to the depositors.
Dated signed and delivered this 24 th day of July 2025
Wendy kagendo
Judge
Present;
Mr Sirima for the state
The two accused persons and their advocates
Bebora court assistant