REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VOI
CRIMINAL NO. 9 OF 2017
REPUBLIC ……………………..……………..……………….. PROSECUTOR
-VERSUS-
REBECCA MORI MKACHUMWA ……………………..…………ACCUSED
JUDGMENT
1. The accused person was charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code. The particulars of the charge were that on the 5th day of December, 2017 at around 8.30 p.m., at Kariokor Estate in Voi Sub-County within Taita-Taveta County, jointly with others not before the Court murdered Jonathan Mwakai Mwabili.
2. The accused person was first arraigned in Court on 27th December, 2017. After prerequisites for a murder trial had been met, the charge was read out to her on 22nd February, 2018, and she denied the charge of murder.The hearing of the case commenced on 24th July, 2018 before Judge F. Amin and 5 prosecution witnesses testified before the Honourable Judge. The first witness Raufus Tende Mauilli testified on the said date. The handwritten and typed proceedings however show that the said witness was not sworn or affirmed before he adduced evidence. Since the said witness was not sworn, I will not take his evidence into consideration as there was non-compliance with Section 151 of the Criminal Procedure Code.
3. PW2 was Nora Albert Kimoni. She was the Village Elder of Kariokor ya Kati in Voi. She had served in the said capacity since the year 2006. She stated that she knew the deceased Jonathan Mwikai Mugambi (sic) who had been one of her villagers for more than 1 year in Kariokor ya Kati. That he lived in a rented house about 100 – 200 metres behind her house. She also knew the accused person, but not by name.
4. PW2’s evidence was that in October 2017, the deceased (Jonathan Mwakai) went to her house and reported that he had a dispute with his neighbour who was a female who had placed her pot (mutungi) in his doorway restricting his access to the lavatory, and when he moved the pot, she would start shouting at him. PW2 stated that she told Jonathan Mwakai that was a small problem, which they could sort out between him and the neighbour without her (Mzee wa Mtaani).
5. PW2 stated after that she did not hear from Jonathan Mwakai until 5th December, 2017 at 7.00 a.m., when he told her that the problems had started again and the accused person had been arguing with him. That he asked PW2 to go to their place to see what the argument was all about, but on asking him if the other parties were there, he said they were not as they had both (husband and wife) gone to work. PW2 said that she told him that there was no point in her vising the place until after his neighbours had returned in the evening.
6. PW2 testified that at around 7.30 p.m., to 8.00 p.m., Jonathan Mwakai went back and reported that his neighbours had started the problems again and they were abusing him, and since he does not fight them, he goes to see her. That she told him to go back and once she had prayed the evening prayer “Isha” at 8.00 p.m., she would visit them.
7. It was PW2’s evidence that even before she started praying, about 10 to 15 minutes after Jonathan Mwakai had left her house, she heard neighbours knocking on her door and screaming. She stated that Rehema Mustafa and Miyoi Charles who were her neighbours told her that “Anguo” had been killed, but she responded that he was alive as he had just left her place. She explained that “Anguo” is a respectful name of a person whom another person does not know well.
8. It was PW2’s evidence that she found “Anguo” on the ground dead, lying in a pool of blood in front of the Municipal Council Offices at the verandah of Swaleh’s plot, which is an open plot. She also found a crowd of people at the scene. She further testified that she saw that he had been stabbed on the waist/appendix region on his right hand side. She stated that the deceased was lying on his back but when the police moved him, she saw stab wounds in his lower abdomen, on the right hand side. That the police took pictures of the deceased and took away the body. She indicated that she did not see the accused person in the crowd. PW2 also indicated that she saw the wounds on the deceased from headlights of the “pikipikis” (motorcycles) which arrived at the scene, and that people were using their phones to light up the place.
9. PW3 was Dr. Summaiya Seif of Moi Hospital – Voi, who had worked for 11 months at the said Hospital. She produced the post-mortem report of the deceased Jonathan Mwakai on behalf of Doctor Katana who had been transferred to Wesu County Hospital from Moi Hospital-Voi. She stated that the postmortem examination of Jonathan Mwakai was done on 8th December, 2017 after his death on 5th December, 2017. She also stated that the postmortem report, showed that Dr. Katana saw 3 deep stab wounds on the anterior chest wall of the deceased’s body and 3 deep stab wounds on the posterior. She stated that from the said report, 70% of the deceased’s body both internally and externally had injuries. She stated that the cause of death was cardiopulmonary arrest.
10. PW5 was Inspector Peter Kyalo, a Scenes of Crime Officer. He stated that on 5th December, 2017 in the evening between 8 p.m to 9 p.m., he was called by the OCS Voi who informed him that there was a murder at a place called Kariokor at Voi. That on proceeding there, he found a male adult by the name Jonathan Mwambili lying sideways on a verandah, with his legs extended away from the edge of the said verandah.
11. PW5 testified that at the scene, they were using improvised torches and car headlights, and he took 4 photos. He produced the photos as exhibits. He explained that there was not a lot of blood at the scene and it seemed that was not the scene of the incident, but that is where the body last went to lie. He stated that the injuries looked like they were caused by a sharp object.
12. PW5 was Zubeda Muthama Mwami, a resident of Kariokor. She stated that she knew the accused person Rebecca Mkachumwa who had been their neighbour for about 1 year. PW5’s evidence was that on 5th December, 2017 at around 8 p.m., when she was in her house, she heard someone, a man’s voice, shouting that he had been stabbed with a knife. That on going out of her house, she saw the man who was shouting that he had been stabbed running, as he was being followed by his pursuer. PW5 testified that the person who was shouting was “Fundi” who was her neighbour and that he used to live next to Rebecca (accused person). PW5 stated that the accused person’s door was in front and the “Fundi’s” was behind. PW5 said that the person who was pursuing the “Fundi” was a man, but she did not see how he looked like because it was dark. It was her evidence that from his voice, she knew that it was the “Fundi” who was being pursued.
13. She testified that when she screamed, her neighbours came out, including the accused person who was the first to come out, and that she asked PW5 why she was screaming and told her “wacha fundi huyu aoneshwe” (sic), and then the accused person started beating her by hitting her on the back because she was shouting about “Fundi”.
14. She stated that the neighbours helped her by taking the accused person off her, and the accused person ran away. She identified the accused person in the dock. PW5 testified that she heard a neighbour shouting saying that there was a man lying on the verandah dead. She stated that she confirmed that it was the “Fundi” who was at Swaleh’s verandah. She stated that he had been stabbed on his neck and abdomen. She further stated that she did not see the accused person at the scene or the man who had been chasing the “Fundi”. On being shown photograph 2(a) she identified the person in it as the “Fundi”.
15. PW6 was Briston Muganga Mwanyika a resident of Miweri, Voi Town. He stated that in December, 2017, he used to live at Kariokor in Voi Town, wherein there were 3 tenants in the same plot. He stated that one of the tenants was the accused person, who used to live with her husband Simon. PW6 indicated that he had lived in the same plot well with the other tenants for 1 year.
16. He testified that on 5th December, 2017 as he was preparing supper, he heard Simon quarrelling with Mwakai about a tool box which Simon had placed on the corridor thus making the corridor untidy. PW6 stated that the accused person, whom he identified at the dock, told Mwikai that he was used to taking them for granted.
17. It was the evidence of PW6 that the 3 continued quarrelling as they exited the plot and on going outside the plot after 30 minutes, he met with members of the public who told him that Mwakai, the “Shoe Maker”, had been killed. PW6 testified that he was taken to the scene which was 50 metres away from their house, where he saw Mwakai lying on the ground with his body facing downwards with a lot of blood on his back, and that his shirt was soaked in blood.
18. PW6 stated that he called his Aunt Phyllis whom he told about the death of Mwakai, and on going to the scene, she told him to pack his things and move out of the plot for his own safety and told him to go and live with her. PW6 stated that he did not see Simon or the accused person at the scene and he had never heard them quarrelling about the tool box placed along the corridor before that date.
19. In cross-examination, PW6 stated that Simon and Mwakai were the ones who started quarrelling and then the accused person joined in. PW6 stated that he did not follow them outside the house.
20. The Investigating Officer was No.110994 Police Constable (PC) Joel Kipngetich Chepkonga who was stationed at DCI Voi when he testified as PW7. He indicated that he assisted the initial Investigating Officer Corporal Joseph Rengine.
21. PW7’s evidence was that on 5th December, 2017, he CPL Joseph Rengine and PC Menta were on patrol duties when their DCIO Lina Kabahila called them and informed them that there was a scene of murder at Kariokor in Voi Town. That going to the scene, they found the OCS there. PW7 stated that he saw a man of about 38 to 40 years who was dead, lying facing downwards.
22. PW7 testified that he saw a stab wound on the deceased’s left side on the chest, another stab wound on his left abdomen, another stab wound on his abdomen and 3 stab wounds on his upper back.
23. PW7’s evidence was that Zubeda (PW5) informed them that the deceased was running from the plot he was staying in, towards PW5’s plot saying that he was being stabbed by George.
24. That on making inquiries from members of the public, they (police) were informed that the deceased had told the accused person and her husband to move a tool box from the corridor so that the deceased could clean the said corridor, but they refused to do so, and he went to see the Village Elder, Norah Albert (PW2), who told him that the case would be resolved in the evening, and that when the accused person and her husband reached home in the evening, the deceased went to inform the Village Elder that the two were at home and asked her to go and resolve the issue. That she told the deceased that she would first go to the mosque for evening prayers.
25. PW7 reiterated that PW5 told him that she heard the deceased shouting that he had been stabbed by George, who was the accused person’s brother.
26. PW7 testified that upon further inquiry, they were told that the accused person is the one who called George. PW7 said that he was also told that after the deceased returned to his house after going to see the Village Elder in the evening, he met the accused person at the corridor and she told him that he was used to taking them for granted.
27. PW7 stated that PW2 told them that was not the first time for Simon, the accused person and the deceased to quarrel about the tool box placed on the corridor.
28. That PW5 informed them that she saw the deceased running from the direction of the house he was staying in, as he was screaming for help, saying that he had been stabbed by George.
29. PW7 stated that PW5 informed them that as she started screaming for help, the accused person hit her and told her to keep quiet so that the deceased could be taught a lesson, and then George and the accused person ran away from the scene.
30. PW7 stated that on 9th December, 2017, they were informed that the accused person was hiding at her uncle’s house at Dembura, in Wundanyi Sub-County, and they proceeded there and arrested her.
31. PW7 testified that in the year 2018, PC John Wanyala received information that George had been seen at Mwakinyali, in Voi. That on going there, George attempted to flee and he was shot in the leg, but he bled a lot and on being taken to Moi Referral Hospital, Voi Sub-County, he died.
32. PW7 stated that on 8th December, 2017, they attended the postmortem examination of the deceased, Jonathan Mwakai Mwambili.
33. On being put on her defence the accused person gave a sworn defence. She stated that she knew Jonathan Mwakai as her neighbour in the same plot, where they lived 3 of them.
34. She stated that on 5th December, 2017, the deceased pushed her husband’s tool box near the toilet. That she asked Mwakai why he had pushed their things aside along the corridor. The accused person stated that her husband was there at that time, and then he went to work. That in the evening at 5.00 p.m., her husband told her that he had been beaten by Mwakai and on asking him why he had been beaten, he told her that he went to touch his stuff along the corridor, and Mwakai asked him why he was touching them.
35. That her husband responded by saying that the things were his and he could touch them. The accused person stated that her husband told her to move from the scene as Mwakai had told her that he was waiting for her so that he could finish unfinished business, and she left the house. That Mzee Rajab told her that he had separated the fight between her husband and Mwakai.
36. That she went to report to Voi Police Station at around 7.00 p.m., with her Aunt Amina, whose 2nd name she did not know.
37. The accused stated that before she went to the police station, she called her brother George and told him to talk to the deceased and she reported to the police that Mwakai had injured her husband on the eye as there was a disagreement with a neighbour who had threatened her. That the police told her that they were interested in the person who had been injured. That on calling her husband, he said that he was going to the Hospital, but she did not know to which Hospital.
38. The accused person further stated that she went back to their house at Kariokor at 7.39 p.m., and on entering the corridor she found her brother, her husband, the deceased and 7 to 10 other people, and that when Mwakai saw her he called her and told her “Mama Charles njoo”, and that he wanted to get hold of her, but she went outside. That the accused person went where she was, and once again wanted to get hold of her but she ran behind the house and met PW5 who was Mwakai’s friend. The accused person stated that PW5 got hold of her and started beating her although she did not understand the reason why she was being beaten.
39. The accused person said that Amina went to the scene and pulled PW5 away and 3 other women went there and removed her from the scene. The accused person indicated that she then went to the house of her grandmother, one Idaya, who used to live a bit far from where she was staying, and explained to her that PW5 had been beating her. The accused person stated that she informed her grandmother that she had reported to the police about the incident back home. She also told her grandmother that she was going to her uncle’s home at Ndebwa. That she reached there after 9.30 p.m. She explained that she feared because PW5 had beaten her, and she also feared Mwakai. That she was arrested by the police after 2 days. That on 6th December, 2017 she learnt through her husband that George had stabbed Mwakai with a knife.
40. She denied that she was at the scene when Mwakai was killed and that she was saying that he should be taught a lesson. She denied being at the scene, and that she talked to Briston, Mwakai or George. She stated that she saw George at their house when she came from making a report at the Police Station, and that neither her nor Mwakai had a knife. She stated that PW5 was the deceased’s girlfriend. She denied witnessing Mwakai being killed, and that her brother was not arrested as he was killed by the police.
41. In cross-examination, the accused person said that Mganga is the same person as Briston. She stated that George was her younger brother and he was living at Mwakinyali, and he would visit them from time to time. That she would assist him, and in turn, he would assist them when they had a problem. She admitted that before 5th December, 2017, they had problems with Mwikai from time to time and that on the said date, the problem started in the morning but her husband did not talk to Mwakai as the disagreement was between her and Mwakai.
42. The accused person denied that she told Mwakai that she would call her brother George to deal with him. That in the evening at around 5.30 p.m., she called George to go to their house so that they could resolve the She in the same breath stated that she did not see George being beaten by Mwakai. That when George went to their house, he found her and Mwakai. She stated that when she called George, she told him that Mwakai had threatened and he should go there and reconcile them. She stated that she had never called George before to reconcile her with Mwakai.
43. The accused person explained that Norah Albert (PW2) was their Village Elder who lived nearby, about 10 metres from their house but she had never called her to reconcile them. The accused person stated that they stayed along the corridor for about 10 minutes as they tried to resolve the problem. The accused person testified that when George went to their house, Mwakai did not beat her husband
44. The accused person stated that PW5 could not have mistaken her identity if she heard her speak, as she knew her and Mwakai well, and could not have mistaken the accused person for someone else. She admitted that PW5 saw them and she was within a hearing distance (earshot) to them, and she heard what was going on. The accused person stated that that she had not disagreed with PW5 before that day.
45. Amina Chao, was called as a witness for the accused person. She testified as DW2. Amina stated that on the evening of 5th December, 2017, the accused person went to her house to explain that her husband had been beaten by Mwakai, and that her husband had told her that she should go to report. DW2 stated that she accompanied the accused person to Voi Police Station where she reported, and that the police told her that they were interested in the person who was beaten. That the accused person called her husband and told him to go to the Police Station but he said he had gone to the Hospital.
46. She testified that she then accompanied the accused person to where she was living but did not get into their house. That when she was bending to tie her shoe laces, she saw a group of 5 people getting out of the plot where the accused person used to live chasing each other. DW2 stated that the accused person was behind them, and she followed them. She claimed that they came across PW5 who got hold of the accused person and started beating her, but she pulled away PW5, and that the accused person was pulled away by 3 women.
47. In written submissions filed on 8th August, 2023, Mr. Sirima, learned Counsel for the DPP summarized the evidence adduced by both the prosecution and the accused person. He stated that in order to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that –
(a) The death of the deceased and the cause of death;
(b) That the accused person caused the unlawful act or omission which caused the death; and
(c) That the accused person had malice aforethought as defined under Section 206 of the Penal Code.
48. Mr. Sirima submitted that from the evidence adduced by the prosecution there was no doubt that the accused person counselled her brother George to cause the unlawful act or omission which caused the death of the deceased, a fact that had been proved beyond reasonable doubt.
49. As to whether the accused person had malice aforethought, Mr. Sirima stated that malice aforethought is taken to be mens rea for the offence of murder. It is the intention to unlawfully kill which is the express malice of an intention unlawfully to cause grievous bodily harm which is the implied malice.
50. He cited the provisions of Section 206 of the Penal Code which define malice aforethought. He also cited the case of Republic v Stephen Sila Wambua Matheka [2017] eKLR, to the effect that an inference of malice aforethought can be established by considering the nature of the offence committed, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.
51. Mr. Sirima submitted that the deceased and the accused had been having disagreement since the month of October 2017, and that on 5th December, 2017, she called her brother George to go and teach the deceased a lesson. That the said George heeded the accused person’s words and proceeded to stab the deceased thrice causing his death.
52. The Prosecution Counsel stated that the deceased had gone to the Village Elder to report about the issues he had with the accused person and her husband, but the Village Elder told the deceased that he would sort out the issues after she had done her prayers. Counsel stated that it was however too late as the accused person had already counselled her brother George to teach the deceased a lesson.
53. Mr. Sirima contended that if the accused person had not called her brother George, the deceased would not have been killed.
54. Counsel stated that the deceased was brutally stabbed by the accused person’s brother, George, on the instructions of the accused person, and their main intention was to permanently incapacitate the deceased, which they succeeded in doing. Counsel further submitted that the evidence of the witnesses was consistent and cogent that the deceased was viciously stabbed by the accused person’s brother, George on the instructions of the accused person.
55. He stated that their actions towards the deceased were grotesque and unforgiving. He contended that they had the intention to cause death or grievous harm to the deceased, and as such, they had malice forethought to kill the deceased.
56. Mr. Sirima stated that there was no direct evidence that an eye witness saw the accused person commissioning her brother to stab the deceased, as as such, this case must be analysed and decided purely on circumstantial evidence.
57. Counsel submitted that the principles on the application of circumstantial evidence were set out in the case of Republic v Kipkering Arap Koskei & another 16 EACA 135.
58. Mr. Sirima submitted that it is not in dispute that there were disagreements between the accused and the deceased, and that the deceased had on several occasions gone to the Village Elder to report about the said issues and on the date of the incident, the accused person had called her brother to go to her plot and teach the deceased a lesson.
59. That PW5 had testified that when she saw the deceased running and being chased by another person. She screamed and the accused person told her to stop screaming and let the deceased be taught a lesson.
60. Mr. Sirima contended that it can be deciphered that the accused person knew what she had planned with her brother George, was to viciously assault and stab the deceased. Counsel stated that as to whether she had also told her brother George to stab the deceased, can be implied from her actions and statement to PW5 to let the deceased be taught a lesson by George. Counsel stated that from the evidence, it was clear that George killed the deceased albeit no one saw it, and that he had gone to the deceased’s plot on the request of the accused person.
61. As to whether she and George had a common intention, Mr. Sirima relied on the provisions of Section 20(1) of the Penal Code to assert that they had a common intention.
62. He submitted that the accused person confirmed that there was a dispute between her and the deceased, and that PW2 and PW6 confirmed the said fact. Mr. Sirima reiterated that the accused person was angered by the deceased and called her brother George to teach the deceased a lesson. That the “lesson taught” was to stab the deceased to death.
63. Counsel submitted that the accused person’s actions fall within the ambit of Section 20(1)(d) of the Penal Code. He asserted that the accused person counselled George to “teach the deceased a lesson” by stabbing him thrice, and that PW5 confirmed in her testimony that the accused person had told her to stop shouting for help so that the deceased could be taught a lesson. That the accused person went further to assault her by hitting her on the back, and it took the intervention of other neighbours to stop her. He stated that both the accused person and George had the common intention to kill the deceased.
64. He relied on the case of Republic v Musembi Nzioki & another [2018] eKLR, where the Court considered the doctrine of common intention.
65. Mr. Sirima submitted that the prosecution had proved the case against the accused person beyond reasonable doubt. He prayed for her to be found guilty for the offence of murder, and be convicted and sentenced accordingly.
66. The defence Counsel, Ms E. Munyari filed written submissions on behalf of the accused person on 18th September, 2023. She stated that the cardinal principal in criminal law is that the legal onus is always on the prosecution to prove the guilt of an accused person beyond reasonable doubt as was held in the case of R v David Ruo Nyambura & 4 others Nairobi Criminal Case No. 116 of 1999.
67. She submitted that the prosecution had the duty to prove that the deceased died as a result of the unlawful omission or commission of the accused person, and that in killing the deceased, she was actuated by either express or implied malice aforethought. She also submitted that it was incumbent upon the prosecution to place the accused person at the scene of murder. She contended that none of the ingredients of murder were proved by the prosecution against the accused person.
68. Ms Munyari submitted that the PW3, Dr. Sumuiya who was the Doctor who gave evidence stated that the deceased’s cause of death was due to Ardio-pulmonary (sic) arrest due to right lung massive haemothorax secondary to assault with a sharp object, as per the post-mortem report.
69. Counsel contended that the accused person did not cause the deceased’s death because no witness saw her attack the deceased with the alleged weapon - sharp object/knife, and the alleged weapon was not produced. She submitted that no witness saw George, the brother of the accused person stab the deceased person.
70. Counsel contended that the incident never arose from a fight between the deceased and a pursuer as stated by PW5, Zubeda Muthama Mwami. She referred to the evidence of the said witness to the effect that the person who was pursuing Mwakai was a man, and that PW5 came out of her house when she heard screams and that the accused person was behind her. Further, that the accused person asked PW5 why she was screaming and said “wacha fundi aoneshwe” (sic) and started beating her.
71. Ms Munyari stated that on being cross-examined, PW5 stated that Mama Mbula is the one who defended her from being beaten by the accused person. Ms Munyari pointed out that the said Mama Mbula was not a witness in this case and therefore the said facts cannot be proved.
72. The defence Counsel urged this Court to disregard PW7’s evidence that the accused person in her statement stated that she called her brother George to go and teach the deceased a lesson, as the said alleged statement by the accused person was not produced in evidence.
73. Ms Munyari contended that it was not proved that the accused person had malice aforethought and qualified that submission by stating that the accused person, her husband and PW6, Benson Muganga Mwanyika were living in the same plot.
That PW6 stated that as he was preparing supper, he heard Simon quarrelling with the deceased about a tool box that had been placed on the corridor. That the 3 continued quarrelling as they exited the plot and he went outside after 30 minutes. Ms Munyari contended that from the said facts, there was a quarrel and an abrupt fight erupted, and that was not planned.
74. She further contended that there was no witness who related or showed that the accused person had ill intention with the deceased and as such, the accused person had not planned the incident herein.
75. The defence Counsel submitted that the prosecution’s case against the accused person is based on circumstantial evidence as nobody saw her at the scene, and nobody saw her or George stabbing the deceased.
76. Counsel stated that the fact that there was an altercation between the accused person, her husband Simon and Mwakai is the only link between Mwakai and the accused person. On the issue of circumstantial evidence, Counsel relied on the case of R v Elizabeth Anyango Ojwang Nairobi High Court Criminal Case No. 11 of 2014, where the accused person was acquitted in a case based purely on circumstantial evidence. Ms Munyari also relied on the case of Anjan Kumar Sarma v State of Assam, Criminal Appeal No. 560 of 2014 on the doctrine of “last seen”.
77. Ms Munyari contended that the accused person was not at the scene when the accused person died as she only learnt of his death through her husband, and in her defence, she said that she had called George to go and reconcile them and that she even called Mzee Rajab.
78. Ms Munyari cited the case of Solomon Kirimi M’Rukaria v Republic Criminal Civil Appeal No. 46 of 2011 on alibi defence said that in the case of Uganda v Sebyala & others [1969] EA 204, it was held that an accused person does not have to establish that his alibi is reasonably true, as all he has to do is to create doubt as to the strength of the case for the prosecution, and when the prosecution’s case as thin, an alibi which is not strong may very well raise doubts.
79. Ms Munyari sought to distinguish between the case of Njoroge v Republic [1983] KLR 197 and this case, by stating that in the present case, the accused person was not at the scene. She also cited the case of Republic v Stephen Sila Wambua Matheka Kajiado High Court Criminal Case No. 10 of 2015, to advance the same argument.
80. She prayed for the accused person to be acquitted of the charge of murder, as the prosecution had not proved its case beyond reasonable doubt.
DETERMINATON
81. The issues for determination are –
(i) If the deceased died from an unlawful act or omission;
(ii) If he did, if the unlawful death was caused by the accused person; and
(iii) If she caused the death of the deceased, if was with malice aforethought.
82. It is not contested that the deceased died from an unlawful act. As per the evidence of PW2, she heard her neighbours knocking on her door before 8.00 p.m., on the night of 5th December, 2017. Her neigbours Rehema Mustafa and Miyoi Charles informed her that “Anguo” had been killed. On going out of her house, she found him on the ground dead. He was lying in a pool of blood. She also saw that he had been stabbed at his waist/appendix region on the right side.
Since he was on his back, when the police moved his bod. PW2 saw stab wounds on his lower abdomen on his right hand side.
83. Among the Police Officers who went to the scene, was the scenes of crime officer, Inspector Peter Kyalo who took 4 photographs of the deceased. The first photograph produced as P. exhibit 2(a) was a medium shot of the deceased’s body, showing him lying on the verandah with a blood stained T-shirt. The 2nd photograph P. exhibit 2(b) was a close up photograph of the deceased showing his internal organ seeping out to the side of his belly, and it was on raising the T-shirt that they saw that they saw the said injury was on the right side. The photograph produced as P. Exhibit 2(c) was a close up shot taken from the back of the deceased showing 3 deep cuts on the deceased’s body on the back.
84. The 4th photograph produced as P. Exhibit 2(d) was a medium close up shot showing the body of the deceased with another wound inside the upper arm almost at his armpit and another one between his chest and belly.
85. PW5 Zubeda Muthama Mwami was on the night of 5th December, 2017 at 8.00 p.m., was in her house when she heard a man’s voice which she identified as that of the deceased shouting that he had been stabbed with a knife. On going out of her house, she saw the deceased running as he was being pursued by a man whom she was unable to identify as it was dark. She stated that she later heard a neighbour shouting that there was a man lying dead on the verandah, and on going there, she saw it was the deceased.
86. On 5th December, 2017, as PW6 was preparing supper, she heard the deceased, the accused person and her husband Simon quarrelling, and then the 3 exited the plot. 30 minutes later, PW6 went outside where he found members of the public who informed him that Mwakai, the “Shoe Maker” had been killed. PW6’s evidence was that he was taken to a scene 50 metres away where he saw the deceased lying on the ground with his body facing downwards, with a lot of blood on his back, and that his shirt was soaked in blood.
87. On going to the scene with other Police Officers, PW7 PC Joel found a man of between 38 - 40 years old dead lying facing downwards. PW7 saw that the deceased had a stab wound on the left side of his chest. He also saw another stab wound on the deceased’s left abdomen, another stab would on the right side of his abdomen and 3 stab wounds on his upper back.
88. From the postmortem report produced by Dr. Sumaiya (PW3) on behalf of Dr. Katana who conducted the postmortem examination on the deceased’s body, the said Doctor noted several stab wounds on the deceased’s body as reflected on the said report. PW3 explained that the extent of both internal and external injuries is that they covered 70% to 80% of the deceased’s body.
89. It is therefore evident from the testimony of PW2, PW4, PW5, PW6 and PW7 that the deceased did not die of natural causes but he was stabbed as the said witnesses saw several stab wounds on his body on the night of 5th December, 2017. The postmortem examination established the cause of the deceased’s death as cardio-pulmonary arrest due to right lung massive haemothorax secondary to assault with a sharp object.
90. On the material night, PW5 heard the deceased shouting that he had been stabbed with a knife on the material night. On going out of her house, she saw that the deceased was being pursued by a man. PW3 produced a postmortem report which showed that the deceased died of injuries which were consistent with stab wounds as had been seen by the witnesses who saw the deceased lying dead on the verandah of Swaleh’s house. It is therefore apparent that the cause of the deceased’s death was as a result of an unlawful commission.
91. As to whether the unlawful death of the deceased was caused by the accused person, the evidence adduced by PW2 who was the Villager Elder was that on the morning of 5th December, 2017, the deceased went to her house at 7.00 a.m. and reported that there was a disagreement between him and a female neighbour. He requested PW2 to go to their place and see what the argument was all about and on being asked if the other parties were there, he said they were not, as they had left for work. PW2 told the deceased that there was no point in her visiting the place until the deceased’s neighbours returned in the evening. On the same day in the early night at around 7.30 p.m to 8.00 p.m., the deceased went back to PW2 and reported that the neighbours had started the problems again and they were abusing him.
92. PW2 told him to return home as she had not said the 8.00 p.m., prayers. She told him that she would visit. Before she had even said her prayers, she heard a knock on her door and she was informed by 2 neighbours that “Anguo”, which name she explained as a respectful name of a person one does not know well, had been killed. Her response was that he could not be dead as he had left her house a few minutes back. She then went to the scene and found the man whom she was referring to as “Anguo” (deceased) lying dead at the verandah of Swaleh’s house.
93. PW2 testified of how in October 2017 the deceased had gone to her house and reported that he had a dispute with his female neighbour, whose name he did not disclose, in that the neighbour had placed her pots (mitungi) in his doorway restricting his access even to the lavatory, and that when he moved the said pots, she would start making noise by shouting at him.
94. PW2 told the deceased that was a small problem they could sort out between them and was not a matter for “Mzee wa Mtaani”. After that, she did not hear of anything until the fateful day of 5th December, 2017.
95. On his part, PW6 confirmed that there was a quarrel between the deceased, the accused and her husband on the evening of 5th December, 2017 about a tool box that the accused person’s husband had placed on the corridor of the Swahili type house, making the said corridor untidy. That the accused person told the deceased that he was used to taking them for granted and the 3 continued quarrelling as they exited the plot.
96. PW5 recounted of how on the material night she heard the deceased shouting that he had been stabbed with a knife, while running, as a man pursued him. When PW5 heard the deceased shouting, she identified his voice. On going outside and seeing what was happening, she screamed and neighbours went out of their houses. According to PW5, the first person to get out of the house was the accused person who asked her why she was screaming and told her “wacha fundi huyu aoneshwe” (sic). PW5 testified that the accused person started beating her by hitting her on the back because she was shouting about the “Fundi”. PW5’s evidence was that the neighbours assisted by pulling the accused person off her, and she explained to the neighbours what was happening, and the accused person ran away.
97. The Investigating Officer (PW7) in his evidence stated that PW5 informed him that she heard the deceased shouting that he had been stabbed by George. In her evidence in Court, PW5 however stated that she saw that the person who was pursuing the deceased was a man. She also said that she was unable to identify the deceased’s pursuer because it was dark. She did not testify that the deceased said that he had been stabbed by George.
98. The Investigating Officer followed the evidence he had gathered from witnesses. He and other Police Officers went in search of the accused person whom they arrested. They also looked for George, whom they managed to trace. He however attempted to flee, and was shot in the leg. He died as a result of heavy bleeding from the gunshot wound.
99. There was no evidence that the accused person’s husband was involved in the death of the deceased and so he was not charged.
100. In her sworn defence, in her examination-in-chief, she stated that there was a disagreement between the deceased, her and her husband. In cross-examination, she said that she called George to their house on the fateful evening when there was a disagreement between her and the deceased so that George could reconcile her and the deceased. Further in cross-examination, she stated that George was her younger brother. It is therefore not lost to this Court that the accused person could not have called her younger brother to reconcile her and the deceased. If anything, the accused person being older than her brother should have known that the best way to resolve the dispute was by reporting it to the Village Elder, as the deceased had done. It is clear from the evidence adduced that whereas the deceased was looking for an amicable way to resolve the dispute, the accused person on the other hand was the rubble rouser.
101. In his investigations, PW7 established that the accused person used to keep water jerry cans along the corridor of the Swahili type house where she, the deceased and PW6 used to live in, and when the accused person was asked by the deceased why she was limiting access, she would start abusing her. On the fateful day, the deceased reported the disagreement between him and the accused person to the Villager Elder both in the morning and the evening.
102. It turned out that PW2 thought that the complaint was petty, and she did not take it seriously and act expeditiously as would be expected of a person who had been put in a position of responsibility. The fact that she delayed in going to the deceased’s house on the early night of 5th December, 2017 to resolve the dispute cost the deceased his life, as within a span of a few minutes after leaving PW2’s house, he lay dead on the corridor of Swaleh’s house.
103. This case rests entirely on circumstantial evidence. In the case of Sawe v Republic [2003] KLR 364, the Court of Appeal held as follows in regard to circumstantial evidence –
“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 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 remains with the prosecution. It is a burden which never shifts to the party accused”.
104. See also the case of Abanga alias Onyo Republic Cr. App No. 32 of 1990, page 5 where the learned Judges of the Court of Appeal espoused the principles which should be applied to test circumstantial evidence. The 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 no one else.”
105. Although I agree with Ms Munyari that there is no evidence that the accused person personally inflicted the fatal injuries on the deceased, from the evidence adduced, she is however the one who called her brother George to her house at Kariokor in Voi. It is clear to me that she called George not with the intention of reconciling her, her husband and the deceased or to resolve the dispute. I am convinced that she called George in bad faith so that he could cause harm to the deceased. Although the accused person would want me not to believe the evidence of PW5 for allegedly being the deceased’s girlfriend, it is my finding that her evidence was not only cogent but was also consistent and it withstood the rigours of cross-examination. PW5 adduced evidence of how she went out of her house when she heard the deceased shouting that he had been stabbed with a knife. PW5 screamed when she saw the deceased being chased by a man. After she screamed, the first person to come out of the neighbouring houses was the accused person. She got hold of PW5 and told her to stop screaming and told her,“wacha fundi aoneshwe” (sic). She also started beating on PW5 on her back. The accused person was pulled off PW5 by members of the public. The utterances made by the accused person clearly show that she called her brother George to her house for the sole purpose of harming the deceased. None of the witnesses testified that George attempted to reconcile the accused person, her husband and the deceased.
106. In addition to the above, the accused person was a married woman who had her husband in the house with her on the night of 5th December, 2017. It was therefore upon them to amicably resolve the dispute they had with the deceased amicably, but instead she invited on outsider (George) into a matter that did not concern him, which led to the loss of a life.
107. PW5 saw a man pursuing the deceased who was by then saying that he had been stabbed. In her defence, the accused person said that her husband informed her that George had stabbed the deceased. From the evidence adduced by PW5 to the effect that she saw George being pursued by a man, and the fact that the accused person wanted the deceased to be taught a lesson, coupled by the fact that she admitted that she is the one who called George to her house and he indeed turned up, I am satisfied from the circumstances of this case, the deceased’s pursuer was George, the accused person’s brother. From the circumstantial evidence on record, I am satisfied that George is the one who inflicted the fatal stab wounds on the deceased. This then brings into play, the doctrine of common intention as provided for in Section 20(1) of the Penal Code. The said doctrine states as follows-
“(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charge with actually committing it, that is to say-
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids or abets another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence, and in the last mentioned case he may be charged either with committing the offence or with counselling or procuring its commission” (Emphasis added).
108. Further, Section 21 of the Penal Code states as follows-
“When 2 more or more persons form a common intention, to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed such nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence”
109. In addressing the issue of common intention, the Court of Appeal in the case of Njoroge v Republic [1983] KLR 197 held as follows-
“If several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder against all who are present whether they actually aided or abetted or not provided that the death was caused by the act of someone of the party in the course of his endeavours to effect the common assault of the assembly………………………………………………………………Their common intention may be inferred from their presence, their actions and the omission of either of them to dissociate himself from the assault”
110. In this case, it is evident that the accused person procured her brother by calling him to go to her house on the material night to unlawfully cause the death of the deceased and aided him in committing the offence by creating an opportunity for him to do so. When PW5 heard the deceased shouting saying that he had been stabbed with a knife, she screamed but the accused person went where she was and told her to stop screaming so that the deceased could be taught a lesson. She created an opportunity for the deceased person being attacked further and for his pursuer to escape, by holding PW5 whom she started beating on her back. The actions of the accused person were not those of an innocent person who was seeking reconciliation. In the said circumstances, the accused person acted in concert with George in commission of the unlawful death of the deceased.
111. The last issue is whether the accused person had malice aforethought when she caused the unlawful death of the deceased. Malice aforethought is defined in Section 206 of the Penal Code, which is reproduced hereunder-
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances –
(a) An intention to cause 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”
112. The Court of Appeal in the case of Bonaya Tutu Ipu & another v Republic [2015] eKLR, stated as follows:
“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. In the persuasive decision of CHESAKIT V. UGANDA, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in 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. 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…”
113. In this case, when the accuse person asked PW5 why she was screaming after she heard the deceased shouting that he had been stabbed with a knife, and upon her going out of her house and seeing the deceased running as he was being pursued by a man, the accused person told PW5 “wacha fundi huyu aoneshwe” (sic) which means “let this fundi be shown” or “let this fundi be taught a lesson”. The accused person that started beating PW5 because of screaming about the deceased.
114. The accused person was pulled away from PW5 by members of the public and she fled the scene after PW5 explained what she had seen. The conduct of the accused person of restraining PW5 from shouting for help so that the deceased could be assisted and the words she uttered is evidence of malice aforethought. Further, her running away from the scene and going to seek shelter in her grandmother’s house and then in her uncle’s house after the deceased was killed is conduct of a guilty mind.
115. As a result of the stab wounds inflicted on him, the deceased suffered cardio-pulmonary arrest due to right lung massive haemothorax secondary to assault with a sharp object. Having perused the postmortem report, the severity of the injuries and the number of injuries that the deceased sustained is also evidence of malice aforethought. The post mortem report shows that the deceased sustained the following injuries-
1. In the thorax and abdomen, he had three deep stab wounds on the anterior chest wall and three deep stab wounds on the posterior;
(a) The stab wound in right apex region of the chest measured 3 cm and penetrated to the lung;
(b) The stab wound in the right epigastric region measured 3 cm and penetrated to the tissues;
(c) The stab wound in the right flank region penetrated the peritoneum exposing the intestines and measured 3 cm;
(d) The stab wound on the 11th rib posterior region was 3cm long and penetrated to the rib;
(e) The stab wound on the 7th vertebra was 3 cm long and penetrated to the vertebra bone; and
(f) The stab wound on the 12th rib region posteriorly was 3 cm long and penetrated to the tissue.
2. In the upper limb the deceased sustained 2 deep stab wounds-
(a) Between the thumb and the 1st finger; and
(b) In the medial aspect of the forearm.
116. In her defence, the accused person raised an alibi defence that she was not at her house when the offence was committed. In the case of Athuman Salim Athuman vs Republic [2016] eKLR, the Court of Appeal when addressing the issue of alibi defence stated thus:
"The principle has long been accepted that an accused person who wishes to rely on a defence of alibi must raise it at the earliest opportunity to accord the prosecution an opportunity to investigate the truth or otherwise of the alibi way back in 1993 in R v Sukha Singh s/o Wazir Singh & others (1939) 6 EACA 145, the former Court of Appeal for Eastern Africa upheld the decision of the High Court in which it was stated-
“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forwards at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped.”
117. Similarly, the Supreme Court of Uganda in Festo Androa Asenua vs Uganda, Criminal Appeal No. 1 of 1998 stated as follows:
“We should point out that in our experience in criminal proceedings in this country it is the tendency for accused persons to raise some sort of alibi always belatedly when such accused persons give evidence. At that stage the most that the prosecution can do is to seek adjournment of the hearing of the case and investigate the alibi. But that may be too late. Although for the time being there is no statutory requirement for an accused person to disclose his case prior to presentation of his defence at the trial, or any prohibition of belated disclosure as in the UK statute cited above, such belated disclosure must go to the credibility of the defence.”
118. As per my earlier stated in this judgement, it is my finding that PW5 was a truthful witness, whose evidence was not shaken even during cross-examination. The said witness put the accused person at the scene of crime on the material night. Although the accused person called a witness, who was DW2, to support her alibi defence, the said witness added no value to the accused person’s defence. In this Court’s view, the said witness seems to have been someone that the accused person picked on and convinced to come in Court to beef up her alibi defence. I find it unbelievable that although the accused person said that DW2 was her Aunt, she did not even know her 2nd name.
119. Further, the accused person through her Advocate failed to inform the prosecution that she would be raising an alibi defence in order to give the prosecution an opportunity to countercheck the said alibi defence and counteract/rebut it if that was necessary. It is my finding that the alibi defence put forth was dislodged by the prosecution evidence.
120. Although the accused person claimed that her husband was beaten by the deceased and he went to Hospital as a result, and she was accompanied by DW2 when she went to report the incident to the Police Station, the Investigating Officer did not state that such a report was ever made at Voi Police Station or that the accused person’s husband was assaulted by the deceased. I therefore find the rest of the defence raised by the accused person as being unbelievable and I dismiss it as untruthful.
121. It is evident that the accused person is the one who caused the propulsion of a small disagreement to explode into a storm leading to the unlawful death of deceased. In so doing, she procured, aided and abetted her brother George to murder the deceased. I agree with the submission made by Mr. Sirima that under the doctrine of common intention, although the accused person did not personally inflict the stab wounds on the deceased, the prosecution proved its case against her beyond reasonable doubt. I find her guilty of charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. I convict her for the charge of murder under the said provisions of the law.
It is so ordered
DATED, SIGNED and DELIVERED at NAIROBI on this 25th day of July, 2024. Judgement delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
The accused person
Ms. E. Munyari for the accused person
Mr. F. Sirima Prosecution Counsel - for the DPP
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT VOI
CRIMINAL NO. 9 OF 2017
REPUBLIC ……………………..……………..……………….. PROSECUTOR
-VERSUS-
REBECCA MORI MKACHUMWA ……………………..…………ACCUSED
JUDGMENT
1. The accused person was charged with the offence of murder contrary to Section 203 as read with 204 of the Penal Code. The particulars of the charge were that on the 5th day of December, 2017 at around 8.30 p.m., at Kariokor Estate in Voi Sub-County within Taita-Taveta County, jointly with others not before the Court murdered Jonathan Mwakai Mwabili.
2. The accused person was first arraigned in Court on 27th December, 2017. After prerequisites for a murder trial had been met, the charge was read out to her on 22nd February, 2018, and she denied the charge of murder.The hearing of the case commenced on 24th July, 2018 before Judge F. Amin and 5 prosecution witnesses testified before the Honourable Judge. The first witness Raufus Tende Mauilli testified on the said date. The handwritten and typed proceedings however show that the said witness was not sworn or affirmed before he adduced evidence. Since the said witness was not sworn, I will not take his evidence into consideration as there was non-compliance with Section 151 of the Criminal Procedure Code.
3. PW2 was Nora Albert Kimoni. She was the Village Elder of Kariokor ya Kati in Voi. She had served in the said capacity since the year 2006. She stated that she knew the deceased Jonathan Mwikai Mugambi (sic) who had been one of her villagers for more than 1 year in Kariokor ya Kati. That he lived in a rented house about 100 – 200 metres behind her house. She also knew the accused person, but not by name.
4. PW2’s evidence was that in October 2017, the deceased (Jonathan Mwakai) went to her house and reported that he had a dispute with his neighbour who was a female who had placed her pot (mutungi) in his doorway restricting his access to the lavatory, and when he moved the pot, she would start shouting at him. PW2 stated that she told Jonathan Mwakai that was a small problem, which they could sort out between him and the neighbour without her (Mzee wa Mtaani).
5. PW2 stated after that she did not hear from Jonathan Mwakai until 5th December, 2017 at 7.00 a.m., when he told her that the problems had started again and the accused person had been arguing with him. That he asked PW2 to go to their place to see what the argument was all about, but on asking him if the other parties were there, he said they were not as they had both (husband and wife) gone to work. PW2 said that she told him that there was no point in her vising the place until after his neighbours had returned in the evening.
6. PW2 testified that at around 7.30 p.m., to 8.00 p.m., Jonathan Mwakai went back and reported that his neighbours had started the problems again and they were abusing him, and since he does not fight them, he goes to see her. That she told him to go back and once she had prayed the evening prayer “Isha” at 8.00 p.m., she would visit them.
7. It was PW2’s evidence that even before she started praying, about 10 to 15 minutes after Jonathan Mwakai had left her house, she heard neighbours knocking on her door and screaming. She stated that Rehema Mustafa and Miyoi Charles who were her neighbours told her that “Anguo” had been killed, but she responded that he was alive as he had just left her place. She explained that “Anguo” is a respectful name of a person whom another person does not know well.
8. It was PW2’s evidence that she found “Anguo” on the ground dead, lying in a pool of blood in front of the Municipal Council Offices at the verandah of Swaleh’s plot, which is an open plot. She also found a crowd of people at the scene. She further testified that she saw that he had been stabbed on the waist/appendix region on his right hand side. She stated that the deceased was lying on his back but when the police moved him, she saw stab wounds in his lower abdomen, on the right hand side. That the police took pictures of the deceased and took away the body. She indicated that she did not see the accused person in the crowd. PW2 also indicated that she saw the wounds on the deceased from headlights of the “pikipikis” (motorcycles) which arrived at the scene, and that people were using their phones to light up the place.
9. PW3 was Dr. Summaiya Seif of Moi Hospital – Voi, who had worked for 11 months at the said Hospital. She produced the post-mortem report of the deceased Jonathan Mwakai on behalf of Doctor Katana who had been transferred to Wesu County Hospital from Moi Hospital-Voi. She stated that the postmortem examination of Jonathan Mwakai was done on 8th December, 2017 after his death on 5th December, 2017. She also stated that the postmortem report, showed that Dr. Katana saw 3 deep stab wounds on the anterior chest wall of the deceased’s body and 3 deep stab wounds on the posterior. She stated that from the said report, 70% of the deceased’s body both internally and externally had injuries. She stated that the cause of death was cardiopulmonary arrest.
10. PW5 was Inspector Peter Kyalo, a Scenes of Crime Officer. He stated that on 5th December, 2017 in the evening between 8 p.m to 9 p.m., he was called by the OCS Voi who informed him that there was a murder at a place called Kariokor at Voi. That on proceeding there, he found a male adult by the name Jonathan Mwambili lying sideways on a verandah, with his legs extended away from the edge of the said verandah.
11. PW5 testified that at the scene, they were using improvised torches and car headlights, and he took 4 photos. He produced the photos as exhibits. He explained that there was not a lot of blood at the scene and it seemed that was not the scene of the incident, but that is where the body last went to lie. He stated that the injuries looked like they were caused by a sharp object.
12. PW5 was Zubeda Muthama Mwami, a resident of Kariokor. She stated that she knew the accused person Rebecca Mkachumwa who had been their neighbour for about 1 year. PW5’s evidence was that on 5th December, 2017 at around 8 p.m., when she was in her house, she heard someone, a man’s voice, shouting that he had been stabbed with a knife. That on going out of her house, she saw the man who was shouting that he had been stabbed running, as he was being followed by his pursuer. PW5 testified that the person who was shouting was “Fundi” who was her neighbour and that he used to live next to Rebecca (accused person). PW5 stated that the accused person’s door was in front and the “Fundi’s” was behind. PW5 said that the person who was pursuing the “Fundi” was a man, but she did not see how he looked like because it was dark. It was her evidence that from his voice, she knew that it was the “Fundi” who was being pursued.
13. She testified that when she screamed, her neighbours came out, including the accused person who was the first to come out, and that she asked PW5 why she was screaming and told her “wacha fundi huyu aoneshwe” (sic), and then the accused person started beating her by hitting her on the back because she was shouting about “Fundi”.
14. She stated that the neighbours helped her by taking the accused person off her, and the accused person ran away. She identified the accused person in the dock. PW5 testified that she heard a neighbour shouting saying that there was a man lying on the verandah dead. She stated that she confirmed that it was the “Fundi” who was at Swaleh’s verandah. She stated that he had been stabbed on his neck and abdomen. She further stated that she did not see the accused person at the scene or the man who had been chasing the “Fundi”. On being shown photograph 2(a) she identified the person in it as the “Fundi”.
15. PW6 was Briston Muganga Mwanyika a resident of Miweri, Voi Town. He stated that in December, 2017, he used to live at Kariokor in Voi Town, wherein there were 3 tenants in the same plot. He stated that one of the tenants was the accused person, who used to live with her husband Simon. PW6 indicated that he had lived in the same plot well with the other tenants for 1 year.
16. He testified that on 5th December, 2017 as he was preparing supper, he heard Simon quarrelling with Mwakai about a tool box which Simon had placed on the corridor thus making the corridor untidy. PW6 stated that the accused person, whom he identified at the dock, told Mwikai that he was used to taking them for granted.
17. It was the evidence of PW6 that the 3 continued quarrelling as they exited the plot and on going outside the plot after 30 minutes, he met with members of the public who told him that Mwakai, the “Shoe Maker”, had been killed. PW6 testified that he was taken to the scene which was 50 metres away from their house, where he saw Mwakai lying on the ground with his body facing downwards with a lot of blood on his back, and that his shirt was soaked in blood.
18. PW6 stated that he called his Aunt Phyllis whom he told about the death of Mwakai, and on going to the scene, she told him to pack his things and move out of the plot for his own safety and told him to go and live with her. PW6 stated that he did not see Simon or the accused person at the scene and he had never heard them quarrelling about the tool box placed along the corridor before that date.
19. In cross-examination, PW6 stated that Simon and Mwakai were the ones who started quarrelling and then the accused person joined in. PW6 stated that he did not follow them outside the house.
20. The Investigating Officer was No.110994 Police Constable (PC) Joel Kipngetich Chepkonga who was stationed at DCI Voi when he testified as PW7. He indicated that he assisted the initial Investigating Officer Corporal Joseph Rengine.
21. PW7’s evidence was that on 5th December, 2017, he CPL Joseph Rengine and PC Menta were on patrol duties when their DCIO Lina Kabahila called them and informed them that there was a scene of murder at Kariokor in Voi Town. That going to the scene, they found the OCS there. PW7 stated that he saw a man of about 38 to 40 years who was dead, lying facing downwards.
22. PW7 testified that he saw a stab wound on the deceased’s left side on the chest, another stab wound on his left abdomen, another stab wound on his abdomen and 3 stab wounds on his upper back.
23. PW7’s evidence was that Zubeda (PW5) informed them that the deceased was running from the plot he was staying in, towards PW5’s plot saying that he was being stabbed by George.
24. That on making inquiries from members of the public, they (police) were informed that the deceased had told the accused person and her husband to move a tool box from the corridor so that the deceased could clean the said corridor, but they refused to do so, and he went to see the Village Elder, Norah Albert (PW2), who told him that the case would be resolved in the evening, and that when the accused person and her husband reached home in the evening, the deceased went to inform the Village Elder that the two were at home and asked her to go and resolve the issue. That she told the deceased that she would first go to the mosque for evening prayers.
25. PW7 reiterated that PW5 told him that she heard the deceased shouting that he had been stabbed by George, who was the accused person’s brother.
26. PW7 testified that upon further inquiry, they were told that the accused person is the one who called George. PW7 said that he was also told that after the deceased returned to his house after going to see the Village Elder in the evening, he met the accused person at the corridor and she told him that he was used to taking them for granted.
27. PW7 stated that PW2 told them that was not the first time for Simon, the accused person and the deceased to quarrel about the tool box placed on the corridor.
28. That PW5 informed them that she saw the deceased running from the direction of the house he was staying in, as he was screaming for help, saying that he had been stabbed by George.
29. PW7 stated that PW5 informed them that as she started screaming for help, the accused person hit her and told her to keep quiet so that the deceased could be taught a lesson, and then George and the accused person ran away from the scene.
30. PW7 stated that on 9th December, 2017, they were informed that the accused person was hiding at her uncle’s house at Dembura, in Wundanyi Sub-County, and they proceeded there and arrested her.
31. PW7 testified that in the year 2018, PC John Wanyala received information that George had been seen at Mwakinyali, in Voi. That on going there, George attempted to flee and he was shot in the leg, but he bled a lot and on being taken to Moi Referral Hospital, Voi Sub-County, he died.
32. PW7 stated that on 8th December, 2017, they attended the postmortem examination of the deceased, Jonathan Mwakai Mwambili.
33. On being put on her defence the accused person gave a sworn defence. She stated that she knew Jonathan Mwakai as her neighbour in the same plot, where they lived 3 of them.
34. She stated that on 5th December, 2017, the deceased pushed her husband’s tool box near the toilet. That she asked Mwakai why he had pushed their things aside along the corridor. The accused person stated that her husband was there at that time, and then he went to work. That in the evening at 5.00 p.m., her husband told her that he had been beaten by Mwakai and on asking him why he had been beaten, he told her that he went to touch his stuff along the corridor, and Mwakai asked him why he was touching them.
35. That her husband responded by saying that the things were his and he could touch them. The accused person stated that her husband told her to move from the scene as Mwakai had told her that he was waiting for her so that he could finish unfinished business, and she left the house. That Mzee Rajab told her that he had separated the fight between her husband and Mwakai.
36. That she went to report to Voi Police Station at around 7.00 p.m., with her Aunt Amina, whose 2nd name she did not know.
37. The accused stated that before she went to the police station, she called her brother George and told him to talk to the deceased and she reported to the police that Mwakai had injured her husband on the eye as there was a disagreement with a neighbour who had threatened her. That the police told her that they were interested in the person who had been injured. That on calling her husband, he said that he was going to the Hospital, but she did not know to which Hospital.
38. The accused person further stated that she went back to their house at Kariokor at 7.39 p.m., and on entering the corridor she found her brother, her husband, the deceased and 7 to 10 other people, and that when Mwakai saw her he called her and told her “Mama Charles njoo”, and that he wanted to get hold of her, but she went outside. That the accused person went where she was, and once again wanted to get hold of her but she ran behind the house and met PW5 who was Mwakai’s friend. The accused person stated that PW5 got hold of her and started beating her although she did not understand the reason why she was being beaten.
39. The accused person said that Amina went to the scene and pulled PW5 away and 3 other women went there and removed her from the scene. The accused person indicated that she then went to the house of her grandmother, one Idaya, who used to live a bit far from where she was staying, and explained to her that PW5 had been beating her. The accused person stated that she informed her grandmother that she had reported to the police about the incident back home. She also told her grandmother that she was going to her uncle’s home at Ndebwa. That she reached there after 9.30 p.m. She explained that she feared because PW5 had beaten her, and she also feared Mwakai. That she was arrested by the police after 2 days. That on 6th December, 2017 she learnt through her husband that George had stabbed Mwakai with a knife.
40. She denied that she was at the scene when Mwakai was killed and that she was saying that he should be taught a lesson. She denied being at the scene, and that she talked to Briston, Mwakai or George. She stated that she saw George at their house when she came from making a report at the Police Station, and that neither her nor Mwakai had a knife. She stated that PW5 was the deceased’s girlfriend. She denied witnessing Mwakai being killed, and that her brother was not arrested as he was killed by the police.
41. In cross-examination, the accused person said that Mganga is the same person as Briston. She stated that George was her younger brother and he was living at Mwakinyali, and he would visit them from time to time. That she would assist him, and in turn, he would assist them when they had a problem. She admitted that before 5th December, 2017, they had problems with Mwikai from time to time and that on the said date, the problem started in the morning but her husband did not talk to Mwakai as the disagreement was between her and Mwakai.
42. The accused person denied that she told Mwakai that she would call her brother George to deal with him. That in the evening at around 5.30 p.m., she called George to go to their house so that they could resolve the She in the same breath stated that she did not see George being beaten by Mwakai. That when George went to their house, he found her and Mwakai. She stated that when she called George, she told him that Mwakai had threatened and he should go there and reconcile them. She stated that she had never called George before to reconcile her with Mwakai.
43. The accused person explained that Norah Albert (PW2) was their Village Elder who lived nearby, about 10 metres from their house but she had never called her to reconcile them. The accused person stated that they stayed along the corridor for about 10 minutes as they tried to resolve the problem. The accused person testified that when George went to their house, Mwakai did not beat her husband
44. The accused person stated that PW5 could not have mistaken her identity if she heard her speak, as she knew her and Mwakai well, and could not have mistaken the accused person for someone else. She admitted that PW5 saw them and she was within a hearing distance (earshot) to them, and she heard what was going on. The accused person stated that that she had not disagreed with PW5 before that day.
45. Amina Chao, was called as a witness for the accused person. She testified as DW2. Amina stated that on the evening of 5th December, 2017, the accused person went to her house to explain that her husband had been beaten by Mwakai, and that her husband had told her that she should go to report. DW2 stated that she accompanied the accused person to Voi Police Station where she reported, and that the police told her that they were interested in the person who was beaten. That the accused person called her husband and told him to go to the Police Station but he said he had gone to the Hospital.
46. She testified that she then accompanied the accused person to where she was living but did not get into their house. That when she was bending to tie her shoe laces, she saw a group of 5 people getting out of the plot where the accused person used to live chasing each other. DW2 stated that the accused person was behind them, and she followed them. She claimed that they came across PW5 who got hold of the accused person and started beating her, but she pulled away PW5, and that the accused person was pulled away by 3 women.
47. In written submissions filed on 8th August, 2023, Mr. Sirima, learned Counsel for the DPP summarized the evidence adduced by both the prosecution and the accused person. He stated that in order to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that –
(a) The death of the deceased and the cause of death;
(b) That the accused person caused the unlawful act or omission which caused the death; and
(c) That the accused person had malice aforethought as defined under Section 206 of the Penal Code.
48. Mr. Sirima submitted that from the evidence adduced by the prosecution there was no doubt that the accused person counselled her brother George to cause the unlawful act or omission which caused the death of the deceased, a fact that had been proved beyond reasonable doubt.
49. As to whether the accused person had malice aforethought, Mr. Sirima stated that malice aforethought is taken to be mens rea for the offence of murder. It is the intention to unlawfully kill which is the express malice of an intention unlawfully to cause grievous bodily harm which is the implied malice.
50. He cited the provisions of Section 206 of the Penal Code which define malice aforethought. He also cited the case of Republic v Stephen Sila Wambua Matheka [2017] eKLR, to the effect that an inference of malice aforethought can be established by considering the nature of the offence committed, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.
51. Mr. Sirima submitted that the deceased and the accused had been having disagreement since the month of October 2017, and that on 5th December, 2017, she called her brother George to go and teach the deceased a lesson. That the said George heeded the accused person’s words and proceeded to stab the deceased thrice causing his death.
52. The Prosecution Counsel stated that the deceased had gone to the Village Elder to report about the issues he had with the accused person and her husband, but the Village Elder told the deceased that he would sort out the issues after she had done her prayers. Counsel stated that it was however too late as the accused person had already counselled her brother George to teach the deceased a lesson.
53. Mr. Sirima contended that if the accused person had not called her brother George, the deceased would not have been killed.
54. Counsel stated that the deceased was brutally stabbed by the accused person’s brother, George, on the instructions of the accused person, and their main intention was to permanently incapacitate the deceased, which they succeeded in doing. Counsel further submitted that the evidence of the witnesses was consistent and cogent that the deceased was viciously stabbed by the accused person’s brother, George on the instructions of the accused person.
55. He stated that their actions towards the deceased were grotesque and unforgiving. He contended that they had the intention to cause death or grievous harm to the deceased, and as such, they had malice forethought to kill the deceased.
56. Mr. Sirima stated that there was no direct evidence that an eye witness saw the accused person commissioning her brother to stab the deceased, as as such, this case must be analysed and decided purely on circumstantial evidence.
57. Counsel submitted that the principles on the application of circumstantial evidence were set out in the case of Republic v Kipkering Arap Koskei & another 16 EACA 135.
58. Mr. Sirima submitted that it is not in dispute that there were disagreements between the accused and the deceased, and that the deceased had on several occasions gone to the Village Elder to report about the said issues and on the date of the incident, the accused person had called her brother to go to her plot and teach the deceased a lesson.
59. That PW5 had testified that when she saw the deceased running and being chased by another person. She screamed and the accused person told her to stop screaming and let the deceased be taught a lesson.
60. Mr. Sirima contended that it can be deciphered that the accused person knew what she had planned with her brother George, was to viciously assault and stab the deceased. Counsel stated that as to whether she had also told her brother George to stab the deceased, can be implied from her actions and statement to PW5 to let the deceased be taught a lesson by George. Counsel stated that from the evidence, it was clear that George killed the deceased albeit no one saw it, and that he had gone to the deceased’s plot on the request of the accused person.
61. As to whether she and George had a common intention, Mr. Sirima relied on the provisions of Section 20(1) of the Penal Code to assert that they had a common intention.
62. He submitted that the accused person confirmed that there was a dispute between her and the deceased, and that PW2 and PW6 confirmed the said fact. Mr. Sirima reiterated that the accused person was angered by the deceased and called her brother George to teach the deceased a lesson. That the “lesson taught” was to stab the deceased to death.
63. Counsel submitted that the accused person’s actions fall within the ambit of Section 20(1)(d) of the Penal Code. He asserted that the accused person counselled George to “teach the deceased a lesson” by stabbing him thrice, and that PW5 confirmed in her testimony that the accused person had told her to stop shouting for help so that the deceased could be taught a lesson. That the accused person went further to assault her by hitting her on the back, and it took the intervention of other neighbours to stop her. He stated that both the accused person and George had the common intention to kill the deceased.
64. He relied on the case of Republic v Musembi Nzioki & another [2018] eKLR, where the Court considered the doctrine of common intention.
65. Mr. Sirima submitted that the prosecution had proved the case against the accused person beyond reasonable doubt. He prayed for her to be found guilty for the offence of murder, and be convicted and sentenced accordingly.
66. The defence Counsel, Ms E. Munyari filed written submissions on behalf of the accused person on 18th September, 2023. She stated that the cardinal principal in criminal law is that the legal onus is always on the prosecution to prove the guilt of an accused person beyond reasonable doubt as was held in the case of R v David Ruo Nyambura & 4 others Nairobi Criminal Case No. 116 of 1999.
67. She submitted that the prosecution had the duty to prove that the deceased died as a result of the unlawful omission or commission of the accused person, and that in killing the deceased, she was actuated by either express or implied malice aforethought. She also submitted that it was incumbent upon the prosecution to place the accused person at the scene of murder. She contended that none of the ingredients of murder were proved by the prosecution against the accused person.
68. Ms Munyari submitted that the PW3, Dr. Sumuiya who was the Doctor who gave evidence stated that the deceased’s cause of death was due to Ardio-pulmonary (sic) arrest due to right lung massive haemothorax secondary to assault with a sharp object, as per the post-mortem report.
69. Counsel contended that the accused person did not cause the deceased’s death because no witness saw her attack the deceased with the alleged weapon - sharp object/knife, and the alleged weapon was not produced. She submitted that no witness saw George, the brother of the accused person stab the deceased person.
70. Counsel contended that the incident never arose from a fight between the deceased and a pursuer as stated by PW5, Zubeda Muthama Mwami. She referred to the evidence of the said witness to the effect that the person who was pursuing Mwakai was a man, and that PW5 came out of her house when she heard screams and that the accused person was behind her. Further, that the accused person asked PW5 why she was screaming and said “wacha fundi aoneshwe” (sic) and started beating her.
71. Ms Munyari stated that on being cross-examined, PW5 stated that Mama Mbula is the one who defended her from being beaten by the accused person. Ms Munyari pointed out that the said Mama Mbula was not a witness in this case and therefore the said facts cannot be proved.
72. The defence Counsel urged this Court to disregard PW7’s evidence that the accused person in her statement stated that she called her brother George to go and teach the deceased a lesson, as the said alleged statement by the accused person was not produced in evidence.
73. Ms Munyari contended that it was not proved that the accused person had malice aforethought and qualified that submission by stating that the accused person, her husband and PW6, Benson Muganga Mwanyika were living in the same plot.
That PW6 stated that as he was preparing supper, he heard Simon quarrelling with the deceased about a tool box that had been placed on the corridor. That the 3 continued quarrelling as they exited the plot and he went outside after 30 minutes. Ms Munyari contended that from the said facts, there was a quarrel and an abrupt fight erupted, and that was not planned.
74. She further contended that there was no witness who related or showed that the accused person had ill intention with the deceased and as such, the accused person had not planned the incident herein.
75. The defence Counsel submitted that the prosecution’s case against the accused person is based on circumstantial evidence as nobody saw her at the scene, and nobody saw her or George stabbing the deceased.
76. Counsel stated that the fact that there was an altercation between the accused person, her husband Simon and Mwakai is the only link between Mwakai and the accused person. On the issue of circumstantial evidence, Counsel relied on the case of R v Elizabeth Anyango Ojwang Nairobi High Court Criminal Case No. 11 of 2014, where the accused person was acquitted in a case based purely on circumstantial evidence. Ms Munyari also relied on the case of Anjan Kumar Sarma v State of Assam, Criminal Appeal No. 560 of 2014 on the doctrine of “last seen”.
77. Ms Munyari contended that the accused person was not at the scene when the accused person died as she only learnt of his death through her husband, and in her defence, she said that she had called George to go and reconcile them and that she even called Mzee Rajab.
78. Ms Munyari cited the case of Solomon Kirimi M’Rukaria v Republic Criminal Civil Appeal No. 46 of 2011 on alibi defence said that in the case of Uganda v Sebyala & others [1969] EA 204, it was held that an accused person does not have to establish that his alibi is reasonably true, as all he has to do is to create doubt as to the strength of the case for the prosecution, and when the prosecution’s case as thin, an alibi which is not strong may very well raise doubts.
79. Ms Munyari sought to distinguish between the case of Njoroge v Republic [1983] KLR 197 and this case, by stating that in the present case, the accused person was not at the scene. She also cited the case of Republic v Stephen Sila Wambua Matheka Kajiado High Court Criminal Case No. 10 of 2015, to advance the same argument.
80. She prayed for the accused person to be acquitted of the charge of murder, as the prosecution had not proved its case beyond reasonable doubt.
DETERMINATON
81. The issues for determination are –
(i) If the deceased died from an unlawful act or omission;
(ii) If he did, if the unlawful death was caused by the accused person; and
(iii) If she caused the death of the deceased, if was with malice aforethought.
82. It is not contested that the deceased died from an unlawful act. As per the evidence of PW2, she heard her neighbours knocking on her door before 8.00 p.m., on the night of 5th December, 2017. Her neigbours Rehema Mustafa and Miyoi Charles informed her that “Anguo” had been killed. On going out of her house, she found him on the ground dead. He was lying in a pool of blood. She also saw that he had been stabbed at his waist/appendix region on the right side.
Since he was on his back, when the police moved his bod. PW2 saw stab wounds on his lower abdomen on his right hand side.
83. Among the Police Officers who went to the scene, was the scenes of crime officer, Inspector Peter Kyalo who took 4 photographs of the deceased. The first photograph produced as P. exhibit 2(a) was a medium shot of the deceased’s body, showing him lying on the verandah with a blood stained T-shirt. The 2nd photograph P. exhibit 2(b) was a close up photograph of the deceased showing his internal organ seeping out to the side of his belly, and it was on raising the T-shirt that they saw that they saw the said injury was on the right side. The photograph produced as P. Exhibit 2(c) was a close up shot taken from the back of the deceased showing 3 deep cuts on the deceased’s body on the back.
84. The 4th photograph produced as P. Exhibit 2(d) was a medium close up shot showing the body of the deceased with another wound inside the upper arm almost at his armpit and another one between his chest and belly.
85. PW5 Zubeda Muthama Mwami was on the night of 5th December, 2017 at 8.00 p.m., was in her house when she heard a man’s voice which she identified as that of the deceased shouting that he had been stabbed with a knife. On going out of her house, she saw the deceased running as he was being pursued by a man whom she was unable to identify as it was dark. She stated that she later heard a neighbour shouting that there was a man lying dead on the verandah, and on going there, she saw it was the deceased.
86. On 5th December, 2017, as PW6 was preparing supper, she heard the deceased, the accused person and her husband Simon quarrelling, and then the 3 exited the plot. 30 minutes later, PW6 went outside where he found members of the public who informed him that Mwakai, the “Shoe Maker” had been killed. PW6’s evidence was that he was taken to a scene 50 metres away where he saw the deceased lying on the ground with his body facing downwards, with a lot of blood on his back, and that his shirt was soaked in blood.
87. On going to the scene with other Police Officers, PW7 PC Joel found a man of between 38 - 40 years old dead lying facing downwards. PW7 saw that the deceased had a stab wound on the left side of his chest. He also saw another stab wound on the deceased’s left abdomen, another stab would on the right side of his abdomen and 3 stab wounds on his upper back.
88. From the postmortem report produced by Dr. Sumaiya (PW3) on behalf of Dr. Katana who conducted the postmortem examination on the deceased’s body, the said Doctor noted several stab wounds on the deceased’s body as reflected on the said report. PW3 explained that the extent of both internal and external injuries is that they covered 70% to 80% of the deceased’s body.
89. It is therefore evident from the testimony of PW2, PW4, PW5, PW6 and PW7 that the deceased did not die of natural causes but he was stabbed as the said witnesses saw several stab wounds on his body on the night of 5th December, 2017. The postmortem examination established the cause of the deceased’s death as cardio-pulmonary arrest due to right lung massive haemothorax secondary to assault with a sharp object.
90. On the material night, PW5 heard the deceased shouting that he had been stabbed with a knife on the material night. On going out of her house, she saw that the deceased was being pursued by a man. PW3 produced a postmortem report which showed that the deceased died of injuries which were consistent with stab wounds as had been seen by the witnesses who saw the deceased lying dead on the verandah of Swaleh’s house. It is therefore apparent that the cause of the deceased’s death was as a result of an unlawful commission.
91. As to whether the unlawful death of the deceased was caused by the accused person, the evidence adduced by PW2 who was the Villager Elder was that on the morning of 5th December, 2017, the deceased went to her house at 7.00 a.m. and reported that there was a disagreement between him and a female neighbour. He requested PW2 to go to their place and see what the argument was all about and on being asked if the other parties were there, he said they were not, as they had left for work. PW2 told the deceased that there was no point in her visiting the place until the deceased’s neighbours returned in the evening. On the same day in the early night at around 7.30 p.m to 8.00 p.m., the deceased went back to PW2 and reported that the neighbours had started the problems again and they were abusing him.
92. PW2 told him to return home as she had not said the 8.00 p.m., prayers. She told him that she would visit. Before she had even said her prayers, she heard a knock on her door and she was informed by 2 neighbours that “Anguo”, which name she explained as a respectful name of a person one does not know well, had been killed. Her response was that he could not be dead as he had left her house a few minutes back. She then went to the scene and found the man whom she was referring to as “Anguo” (deceased) lying dead at the verandah of Swaleh’s house.
93. PW2 testified of how in October 2017 the deceased had gone to her house and reported that he had a dispute with his female neighbour, whose name he did not disclose, in that the neighbour had placed her pots (mitungi) in his doorway restricting his access even to the lavatory, and that when he moved the said pots, she would start making noise by shouting at him.
94. PW2 told the deceased that was a small problem they could sort out between them and was not a matter for “Mzee wa Mtaani”. After that, she did not hear of anything until the fateful day of 5th December, 2017.
95. On his part, PW6 confirmed that there was a quarrel between the deceased, the accused and her husband on the evening of 5th December, 2017 about a tool box that the accused person’s husband had placed on the corridor of the Swahili type house, making the said corridor untidy. That the accused person told the deceased that he was used to taking them for granted and the 3 continued quarrelling as they exited the plot.
96. PW5 recounted of how on the material night she heard the deceased shouting that he had been stabbed with a knife, while running, as a man pursued him. When PW5 heard the deceased shouting, she identified his voice. On going outside and seeing what was happening, she screamed and neighbours went out of their houses. According to PW5, the first person to get out of the house was the accused person who asked her why she was screaming and told her “wacha fundi huyu aoneshwe” (sic). PW5 testified that the accused person started beating her by hitting her on the back because she was shouting about the “Fundi”. PW5’s evidence was that the neighbours assisted by pulling the accused person off her, and she explained to the neighbours what was happening, and the accused person ran away.
97. The Investigating Officer (PW7) in his evidence stated that PW5 informed him that she heard the deceased shouting that he had been stabbed by George. In her evidence in Court, PW5 however stated that she saw that the person who was pursuing the deceased was a man. She also said that she was unable to identify the deceased’s pursuer because it was dark. She did not testify that the deceased said that he had been stabbed by George.
98. The Investigating Officer followed the evidence he had gathered from witnesses. He and other Police Officers went in search of the accused person whom they arrested. They also looked for George, whom they managed to trace. He however attempted to flee, and was shot in the leg. He died as a result of heavy bleeding from the gunshot wound.
99. There was no evidence that the accused person’s husband was involved in the death of the deceased and so he was not charged.
100. In her sworn defence, in her examination-in-chief, she stated that there was a disagreement between the deceased, her and her husband. In cross-examination, she said that she called George to their house on the fateful evening when there was a disagreement between her and the deceased so that George could reconcile her and the deceased. Further in cross-examination, she stated that George was her younger brother. It is therefore not lost to this Court that the accused person could not have called her younger brother to reconcile her and the deceased. If anything, the accused person being older than her brother should have known that the best way to resolve the dispute was by reporting it to the Village Elder, as the deceased had done. It is clear from the evidence adduced that whereas the deceased was looking for an amicable way to resolve the dispute, the accused person on the other hand was the rubble rouser.
101. In his investigations, PW7 established that the accused person used to keep water jerry cans along the corridor of the Swahili type house where she, the deceased and PW6 used to live in, and when the accused person was asked by the deceased why she was limiting access, she would start abusing her. On the fateful day, the deceased reported the disagreement between him and the accused person to the Villager Elder both in the morning and the evening.
102. It turned out that PW2 thought that the complaint was petty, and she did not take it seriously and act expeditiously as would be expected of a person who had been put in a position of responsibility. The fact that she delayed in going to the deceased’s house on the early night of 5th December, 2017 to resolve the dispute cost the deceased his life, as within a span of a few minutes after leaving PW2’s house, he lay dead on the corridor of Swaleh’s house.
103. This case rests entirely on circumstantial evidence. In the case of Sawe v Republic [2003] KLR 364, the Court of Appeal held as follows in regard to circumstantial evidence –
“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 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 remains with the prosecution. It is a burden which never shifts to the party accused”.
104. See also the case of Abanga alias Onyo Republic Cr. App No. 32 of 1990, page 5 where the learned Judges of the Court of Appeal espoused the principles which should be applied to test circumstantial evidence. The 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 no one else.”
105. Although I agree with Ms Munyari that there is no evidence that the accused person personally inflicted the fatal injuries on the deceased, from the evidence adduced, she is however the one who called her brother George to her house at Kariokor in Voi. It is clear to me that she called George not with the intention of reconciling her, her husband and the deceased or to resolve the dispute. I am convinced that she called George in bad faith so that he could cause harm to the deceased. Although the accused person would want me not to believe the evidence of PW5 for allegedly being the deceased’s girlfriend, it is my finding that her evidence was not only cogent but was also consistent and it withstood the rigours of cross-examination. PW5 adduced evidence of how she went out of her house when she heard the deceased shouting that he had been stabbed with a knife. PW5 screamed when she saw the deceased being chased by a man. After she screamed, the first person to come out of the neighbouring houses was the accused person. She got hold of PW5 and told her to stop screaming and told her,“wacha fundi aoneshwe” (sic). She also started beating on PW5 on her back. The accused person was pulled off PW5 by members of the public. The utterances made by the accused person clearly show that she called her brother George to her house for the sole purpose of harming the deceased. None of the witnesses testified that George attempted to reconcile the accused person, her husband and the deceased.
106. In addition to the above, the accused person was a married woman who had her husband in the house with her on the night of 5th December, 2017. It was therefore upon them to amicably resolve the dispute they had with the deceased amicably, but instead she invited on outsider (George) into a matter that did not concern him, which led to the loss of a life.
107. PW5 saw a man pursuing the deceased who was by then saying that he had been stabbed. In her defence, the accused person said that her husband informed her that George had stabbed the deceased. From the evidence adduced by PW5 to the effect that she saw George being pursued by a man, and the fact that the accused person wanted the deceased to be taught a lesson, coupled by the fact that she admitted that she is the one who called George to her house and he indeed turned up, I am satisfied from the circumstances of this case, the deceased’s pursuer was George, the accused person’s brother. From the circumstantial evidence on record, I am satisfied that George is the one who inflicted the fatal stab wounds on the deceased. This then brings into play, the doctrine of common intention as provided for in Section 20(1) of the Penal Code. The said doctrine states as follows-
“(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charge with actually committing it, that is to say-
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids or abets another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence, and in the last mentioned case he may be charged either with committing the offence or with counselling or procuring its commission” (Emphasis added).
108. Further, Section 21 of the Penal Code states as follows-
“When 2 more or more persons form a common intention, to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed such nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence”
109. In addressing the issue of common intention, the Court of Appeal in the case of Njoroge v Republic [1983] KLR 197 held as follows-
“If several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder against all who are present whether they actually aided or abetted or not provided that the death was caused by the act of someone of the party in the course of his endeavours to effect the common assault of the assembly………………………………………………………………Their common intention may be inferred from their presence, their actions and the omission of either of them to dissociate himself from the assault”
110. In this case, it is evident that the accused person procured her brother by calling him to go to her house on the material night to unlawfully cause the death of the deceased and aided him in committing the offence by creating an opportunity for him to do so. When PW5 heard the deceased shouting saying that he had been stabbed with a knife, she screamed but the accused person went where she was and told her to stop screaming so that the deceased could be taught a lesson. She created an opportunity for the deceased person being attacked further and for his pursuer to escape, by holding PW5 whom she started beating on her back. The actions of the accused person were not those of an innocent person who was seeking reconciliation. In the said circumstances, the accused person acted in concert with George in commission of the unlawful death of the deceased.
111. The last issue is whether the accused person had malice aforethought when she caused the unlawful death of the deceased. Malice aforethought is defined in Section 206 of the Penal Code, which is reproduced hereunder-
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances –
(a) An intention to cause 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”
112. The Court of Appeal in the case of Bonaya Tutu Ipu & another v Republic [2015] eKLR, stated as follows:
“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. In the persuasive decision of CHESAKIT V. UGANDA, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in 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. 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…”
113. In this case, when the accuse person asked PW5 why she was screaming after she heard the deceased shouting that he had been stabbed with a knife, and upon her going out of her house and seeing the deceased running as he was being pursued by a man, the accused person told PW5 “wacha fundi huyu aoneshwe” (sic) which means “let this fundi be shown” or “let this fundi be taught a lesson”. The accused person that started beating PW5 because of screaming about the deceased.
114. The accused person was pulled away from PW5 by members of the public and she fled the scene after PW5 explained what she had seen. The conduct of the accused person of restraining PW5 from shouting for help so that the deceased could be assisted and the words she uttered is evidence of malice aforethought. Further, her running away from the scene and going to seek shelter in her grandmother’s house and then in her uncle’s house after the deceased was killed is conduct of a guilty mind.
115. As a result of the stab wounds inflicted on him, the deceased suffered cardio-pulmonary arrest due to right lung massive haemothorax secondary to assault with a sharp object. Having perused the postmortem report, the severity of the injuries and the number of injuries that the deceased sustained is also evidence of malice aforethought. The post mortem report shows that the deceased sustained the following injuries-
1. In the thorax and abdomen, he had three deep stab wounds on the anterior chest wall and three deep stab wounds on the posterior;
(a) The stab wound in right apex region of the chest measured 3 cm and penetrated to the lung;
(b) The stab wound in the right epigastric region measured 3 cm and penetrated to the tissues;
(c) The stab wound in the right flank region penetrated the peritoneum exposing the intestines and measured 3 cm;
(d) The stab wound on the 11th rib posterior region was 3cm long and penetrated to the rib;
(e) The stab wound on the 7th vertebra was 3 cm long and penetrated to the vertebra bone; and
(f) The stab wound on the 12th rib region posteriorly was 3 cm long and penetrated to the tissue.
2. In the upper limb the deceased sustained 2 deep stab wounds-
(a) Between the thumb and the 1st finger; and
(b) In the medial aspect of the forearm.
116. In her defence, the accused person raised an alibi defence that she was not at her house when the offence was committed. In the case of Athuman Salim Athuman vs Republic [2016] eKLR, the Court of Appeal when addressing the issue of alibi defence stated thus:
"The principle has long been accepted that an accused person who wishes to rely on a defence of alibi must raise it at the earliest opportunity to accord the prosecution an opportunity to investigate the truth or otherwise of the alibi way back in 1993 in R v Sukha Singh s/o Wazir Singh & others (1939) 6 EACA 145, the former Court of Appeal for Eastern Africa upheld the decision of the High Court in which it was stated-
“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forwards at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped.”
117. Similarly, the Supreme Court of Uganda in Festo Androa Asenua vs Uganda, Criminal Appeal No. 1 of 1998 stated as follows:
“We should point out that in our experience in criminal proceedings in this country it is the tendency for accused persons to raise some sort of alibi always belatedly when such accused persons give evidence. At that stage the most that the prosecution can do is to seek adjournment of the hearing of the case and investigate the alibi. But that may be too late. Although for the time being there is no statutory requirement for an accused person to disclose his case prior to presentation of his defence at the trial, or any prohibition of belated disclosure as in the UK statute cited above, such belated disclosure must go to the credibility of the defence.”
118. As per my earlier stated in this judgement, it is my finding that PW5 was a truthful witness, whose evidence was not shaken even during cross-examination. The said witness put the accused person at the scene of crime on the material night. Although the accused person called a witness, who was DW2, to support her alibi defence, the said witness added no value to the accused person’s defence. In this Court’s view, the said witness seems to have been someone that the accused person picked on and convinced to come in Court to beef up her alibi defence. I find it unbelievable that although the accused person said that DW2 was her Aunt, she did not even know her 2nd name.
119. Further, the accused person through her Advocate failed to inform the prosecution that she would be raising an alibi defence in order to give the prosecution an opportunity to countercheck the said alibi defence and counteract/rebut it if that was necessary. It is my finding that the alibi defence put forth was dislodged by the prosecution evidence.
120. Although the accused person claimed that her husband was beaten by the deceased and he went to Hospital as a result, and she was accompanied by DW2 when she went to report the incident to the Police Station, the Investigating Officer did not state that such a report was ever made at Voi Police Station or that the accused person’s husband was assaulted by the deceased. I therefore find the rest of the defence raised by the accused person as being unbelievable and I dismiss it as untruthful.
121. It is evident that the accused person is the one who caused the propulsion of a small disagreement to explode into a storm leading to the unlawful death of deceased. In so doing, she procured, aided and abetted her brother George to murder the deceased. I agree with the submission made by Mr. Sirima that under the doctrine of common intention, although the accused person did not personally inflict the stab wounds on the deceased, the prosecution proved its case against her beyond reasonable doubt. I find her guilty of charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. I convict her for the charge of murder under the said provisions of the law.
It is so ordered
DATED, SIGNED and DELIVERED at NAIROBI on this 25th day of July, 2024. Judgement delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
The accused person
Ms. E. Munyari for the accused person
Mr. F. Sirima Prosecution Counsel - for the DPP
Ms B. Wokabi – Court Assistant.