1. The accused person herein Rongoma Deche Rongoma is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) Laws of Kenya that on 10/3/2019 at Vevesi village, in Chonyi Sub-County within Kilifi County, jointly with others not before court murdered Humfrey Mwanjoli Mwanjani.
2. The accused person pleaded not guilty to the charge and the case was set down for hearing.
3. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when the court had made a ruling on case to answer that the accused had a case to answer. The accused person opted to have the case to proceed from where Hon. Lady Justice Anne Ong’ijo had left it. He gave sworn evidence in defence and did not call a witness.
4. The prosecution called six witnesses to support the charge.
5. The following is a brief summary of events that led to the commission of the offence. PW 1 Lawrence Nyamawi Mwajanzi, PW 2, Sammy Chibanza Mwajanzi and PW 4, Franton Mwangemi Mwajanzi are all brothers of the deceased Humfrey Mwanjole Mwanjani. PW 3 Patrick Mwakale Jilani is a nephew of the deceased by virtue of his grandmother being a sister to the mother of the deceased.
6. PW 3, Patrick gave evidence that he saw the accused person together with two others Amos Lukas and Killian Janji all armed with pangas attack and cut the deceased with the pangas. PW 4 Franton also gave evidence that when he approached the scene he spotted the accused person, Amos and Killian bending down and appearing to cut something on the ground which thing he shortly came to realize was the deceased. PW 1 and PW 2 each said that when he arrived at the scene, there was a crowd of people and the accused person with Amos and Killian each armed with a panga with blood stains, were standing around the deceased who was lying on the ground and had three panga cuts on the head.
7. Apparently, there was some land dispute between the family of the accused person and that of PW 3. PW 3 said that the family members of the accused person invaded a portion of land that had been previously cultivated by his father. They cleared a portion and started constructing a house on it. His father went there to find out why they were doing so. Screams were heard from the direction of the land and the deceased who had been at the home of one Peter Lewa in discussions with others, among them PW 4, left ahead of the others to go and find out what the matter was. It turned out that he was attacked and cut with pangas by the accused person and the two others who fled and had never been arrested. He died in hospital while undergoing treatment.
8. Before he took plea, a mental assessment report prepared by one Dr. C.M. Mwangombe M.Med consultant psychiatrist/DDMS dated 26/6/2019 declared that the accused person had no mental illness and therefore was fit to plead to the charges.
9. PW 5 IP Mathew Koech of Mtwapa police station at the time conducted an identification parade for the accused person and with 5 witnesses. Each of them was able to positively identify the accused person.
10. PW 6, Sgt Zaituni Mohamed was the investigating officer. He stated that there was overwhelming evidence against the accused person that he together with Amos Lukas and Killian Janji cut the deceased with pangas. The deceased later succumbed to the injuries while under treatment in hospital.
11. The accused person was put on his defence after a finding that there was sufficient evidence adduced by the prosecution making out a prima facie case against him. The accused person gave sworn evidence and did not call a witness in defence.
12. The accused person denied that he cut the deceased with others as alleged. He said that he was constructing on their ancestral land at home when he was attacked by people. He recognized some of them as Nzilani Katana, Lawrence Nyamawi Mwajanzi, Mwangomi Mwajanzi, Patrick Nzilani and Sammy Mwajanzi. The people cut his child Janzi Rongoma on the right hand with a panga and one of them Waziri Lewa burnt down his other child Baraka Rongoma’s house.
13. The accused person together with his children went to report the incident at Kaloleni police station. Nzilani Katana and Waziri Lewa were arrested and charged in Kaloleni Court Criminal Case No. 57 of 2019. While the case was proceeding, he was removed from court and taken to Mtwapa police station, far away from Kaloleni and charged for murder of Humfrey Mwanjale Mwanjama the deceased who was not even known to him and he never saw him that day. He denied that he attacked and cut the deceased or any of the other witnesses who testified herein.
14. The accused person said that the title number for the land he was constructing on is Kilifi/Chilulu/393 (D. Exh. 1). He also produced the P3 form for Janji Rongoma and Rongoma Deche, himself for the injuries that they sustained.
15. He said that they have had a conflict over the said parcel of land with the family of the witnesses who testified against him being from the family of Jilani all of who stay at Mtwapa and the same has never been resolved even as they are from the same clan.
16. After close of the defence case, learned counsel for the accused person filed submissions while the prosecution was content to rely on the evidence on record.
17. Learned counsel for the accused person submits that the prosecution did not prove either by direct or circumstantial evidence any of the ingredients of the offence of murder against the accused person. That the prosecution did not prove a nexus between the death of the deceased and the accused person. That the manner and style of death of the deceased and who caused it was never proved. That the P3 form marked for identification in respect of the injuries sustained by the deceased was never produced as exhibit. Learned counsel cited the case of Justus Musau Wambua v. Republic [2020] eKLR where the case of Kenneth Nyaga Mwige v. Austin Kiguta & 2 others [2015] eKLR was cited to support the position that where a document marked for identification is not eventually formally produced as exhibit, it has no evidential weight and is fatal to whoever wishes to rely upon it. In the later case, the Court of Appeal observed as follows:
“The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.
Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.
In Des Raj Sharma -v- Reginam (1953) 19 EACA 310, it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa -v- The State (1994) 7-8 SCNJ 144, it was held that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence.”
18. Learned counsel submits that there were glaring inconsistencies and therefore different accounts in the evidence of the prosecution witnesses on what transpired. He cites the case of Richard Munene v. Republic [2018] eKLR where it was held that the inconsistencies or contradictions should not be trifling but substantial and fundamental to the main issues in question in order to create a doubt in the mind of the court from which an accused person will be entitled to the benefit.
19. Learned counsel further submits that the alleged panga nor any other weapon used to assault the deceased were not produced in evidence.
20. In that case, that the prosecution had not proved its case against the accused person beyond a reasonable doubt.
21. I have considered the evidence by the prosecution, the defence by the accused person and the submissions by learned counsel for the accused person. The point for determination is whether or not the prosecution has proved its case against the accused person beyond a reasonable doubt.
22. The two ingredients of the offence of murder - actus reus and mens rea – have both to be proved to the required standard of beyond a reasonable doubt to satisfy a charge and conviction of murder.
23. In this case, there were four witnesses PW 1, PW 2, PW 3 and PW 4 who testified that the accused person and two others cut the deceased on the head with their pangas. All these four people saw the accused person and the two other people who were all well known to them standing, armed with pangas and surrounding the deceased who was on the ground with panga cuts on the head and bleeding at the time.
24. PW 1 and PW 2 did not witness the incident of cutting. They got to the scene after the deceased was cut and was lying on the ground with the three assailants surrounding him and armed with their pangas. PW 3, Patrcik Mwamkale said he was at a distance of about 50 metres and approaching the scene when he saw the three assailants attack the deceased with their pangas and cut him. PW 4 Franton Mwangemi saw the three assailants bending down with their pangas and appearing to cut something which he later established was the deceased.
25. The incident happened in broad daylight. There is no dispute that the assailants were well known to the witnesses. The deceased, the witnesses and the accused person are members of the same clan and know each other well. That is why when the noises were heard coming from the direction of the farm, the deceased and others he was with headed there to find out what was happening. I therefore find the evidence by the accused person that he did not know the deceased and did not see him that day to be untrue and I reject it.
26. In this case the evidence adduced by the prosecution witnesses leaves me in no doubt that Humfrey Mwanjole Mwanjani died and that he died at the hands of the accused and the other assailants. That no postmortem was conducted on the body to establish the cause of death does not vitiate the strong evidence tendered that the panga cut injuries inflicted by the accused and the other assailants were the direct cause of his death. When he was carried away from the scene, he was overwhelmed by those injuries. He had been talking in discussions a few moments before he was viciously cut. He never spoke again. That means the injuries overwhelmed him.
27. Although learned counsel for the defence submits that the lack of medical evidence should lead the court to doubt that in fact death was caused by the accused person, I do not agree with that submission. The fact of death can be proved by circumstantial evidence even where the body of the deceased is not recovered. In this regard I am persuaded to follow the New Zealand case of Republic vs Harry (1952) NZLR 11 (3rd Digest Supp) cited in the case of Dorcas Jebet Ketter & Joseph Boit v Republic [2013] KECA 401 (KLR) where Oliver J. said: -
“At the trial of a person charged with murder, the fact of death is provable by circumstantial evidence, notwithstanding that neither the body or any trace of the body has been found and that the accused has made no confession of any participation in the crime before he can be convicted. The fact of death should be proved by such circumstances as renders the commission of the crime morally certain and leave no ground for reasonable doubt; the circumstantial evidence should be so cogent and compelling to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.”
28. On the first ingredient of murder, that of actus reus, I am satisfied that it was indeed the act of the accused person that led to the death of the deceased. I accept the evidence of PW 3 and PW 4, as they corroborated each other in all material aspects that the accused person and the others two people cut the deceased with pangas.
29. The evidence of the accused person is that in fact, the witnesses herein and other members of the Jilani family were the ones who attacked him and his family. I do not find this evidence to be entirely untrue. There is some truth in it from his evidence that his house was torched and he was also injured together with his son and he produced the supporting P3 forms as evidence to confirm.
30. I believe that to some extent, the prosecution witnesses were not entirely honest in their testimony of how this event unfolded. What I note from both the evidence by the prosecution and that of the accused person is that the deceased seems to have been a victim of circumstances. There was a conflict over land involving the accused’s family and that of some of the witnesses, what the accused referred to as the Jilani family. Indeed, Patrick Mwakale Jilani, PW 3 testified that his father was not pleased with the accused person constructing on that parcel of land and he went there to demand to know why. There is evidence that there were screams from that direction before the deceased headed there to find out what was taking place. It would appear that there was a fight between the two antagonistic groups both who seem to have been armed, going by the fact that people from both sides sustained cut injuries and a house was torched. The deceased having been a neutral person and unarmed seems to have found himself on the wrong side of the accused person and his group and they set upon cutting him.
31. Why they cut him is not exactly known but it is most likely that they felt he was on the side of their protagonists. It was indeed an unfortunate incident for him.
32. All the same, the fact that the accused person and the two others attacked him with pangas and inflicted severe injuries upon him is proof that they acted with malice aforethought.
33. The accused person used a panga as a weapon with knowledge that it would cause grievous harm. His denial that he never saw the deceased at the scene and that he was not known to him is plainly lies and is discounted by the evidence of PW 1 to PW 4 that he was there and he cut him.
34. I find no material contradictions as alleged in the submissions of the learned counsel for the defence to vitiate a guilty finding or water down the evidence adduced against the accused person.
35. I am satisfied that the prosecution has discharged its onus to prove beyond a reasonable doubt that the accused person murdered the deceased and I find the accused person guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and convict him accordingly.
36. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 25th day of November 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused in person from Shimo La Tewa prison.
Motuka for the accused person.
Mr. Ngiri for the Respondent
Etropia - Court Assistant
2. The accused person pleaded not guilty to the charge and the case was set down for hearing.
3. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when the court had made a ruling on case to answer that the accused had a case to answer. The accused person opted to have the case to proceed from where Hon. Lady Justice Anne Ong’ijo had left it. He gave sworn evidence in defence and did not call a witness.
4. The prosecution called six witnesses to support the charge.
5. The following is a brief summary of events that led to the commission of the offence. PW 1 Lawrence Nyamawi Mwajanzi, PW 2, Sammy Chibanza Mwajanzi and PW 4, Franton Mwangemi Mwajanzi are all brothers of the deceased Humfrey Mwanjole Mwanjani. PW 3 Patrick Mwakale Jilani is a nephew of the deceased by virtue of his grandmother being a sister to the mother of the deceased.
6. PW 3, Patrick gave evidence that he saw the accused person together with two others Amos Lukas and Killian Janji all armed with pangas attack and cut the deceased with the pangas. PW 4 Franton also gave evidence that when he approached the scene he spotted the accused person, Amos and Killian bending down and appearing to cut something on the ground which thing he shortly came to realize was the deceased. PW 1 and PW 2 each said that when he arrived at the scene, there was a crowd of people and the accused person with Amos and Killian each armed with a panga with blood stains, were standing around the deceased who was lying on the ground and had three panga cuts on the head.
7. Apparently, there was some land dispute between the family of the accused person and that of PW 3. PW 3 said that the family members of the accused person invaded a portion of land that had been previously cultivated by his father. They cleared a portion and started constructing a house on it. His father went there to find out why they were doing so. Screams were heard from the direction of the land and the deceased who had been at the home of one Peter Lewa in discussions with others, among them PW 4, left ahead of the others to go and find out what the matter was. It turned out that he was attacked and cut with pangas by the accused person and the two others who fled and had never been arrested. He died in hospital while undergoing treatment.
8. Before he took plea, a mental assessment report prepared by one Dr. C.M. Mwangombe M.Med consultant psychiatrist/DDMS dated 26/6/2019 declared that the accused person had no mental illness and therefore was fit to plead to the charges.
9. PW 5 IP Mathew Koech of Mtwapa police station at the time conducted an identification parade for the accused person and with 5 witnesses. Each of them was able to positively identify the accused person.
10. PW 6, Sgt Zaituni Mohamed was the investigating officer. He stated that there was overwhelming evidence against the accused person that he together with Amos Lukas and Killian Janji cut the deceased with pangas. The deceased later succumbed to the injuries while under treatment in hospital.
11. The accused person was put on his defence after a finding that there was sufficient evidence adduced by the prosecution making out a prima facie case against him. The accused person gave sworn evidence and did not call a witness in defence.
12. The accused person denied that he cut the deceased with others as alleged. He said that he was constructing on their ancestral land at home when he was attacked by people. He recognized some of them as Nzilani Katana, Lawrence Nyamawi Mwajanzi, Mwangomi Mwajanzi, Patrick Nzilani and Sammy Mwajanzi. The people cut his child Janzi Rongoma on the right hand with a panga and one of them Waziri Lewa burnt down his other child Baraka Rongoma’s house.
13. The accused person together with his children went to report the incident at Kaloleni police station. Nzilani Katana and Waziri Lewa were arrested and charged in Kaloleni Court Criminal Case No. 57 of 2019. While the case was proceeding, he was removed from court and taken to Mtwapa police station, far away from Kaloleni and charged for murder of Humfrey Mwanjale Mwanjama the deceased who was not even known to him and he never saw him that day. He denied that he attacked and cut the deceased or any of the other witnesses who testified herein.
14. The accused person said that the title number for the land he was constructing on is Kilifi/Chilulu/393 (D. Exh. 1). He also produced the P3 form for Janji Rongoma and Rongoma Deche, himself for the injuries that they sustained.
15. He said that they have had a conflict over the said parcel of land with the family of the witnesses who testified against him being from the family of Jilani all of who stay at Mtwapa and the same has never been resolved even as they are from the same clan.
16. After close of the defence case, learned counsel for the accused person filed submissions while the prosecution was content to rely on the evidence on record.
17. Learned counsel for the accused person submits that the prosecution did not prove either by direct or circumstantial evidence any of the ingredients of the offence of murder against the accused person. That the prosecution did not prove a nexus between the death of the deceased and the accused person. That the manner and style of death of the deceased and who caused it was never proved. That the P3 form marked for identification in respect of the injuries sustained by the deceased was never produced as exhibit. Learned counsel cited the case of Justus Musau Wambua v. Republic [2020] eKLR where the case of Kenneth Nyaga Mwige v. Austin Kiguta & 2 others [2015] eKLR was cited to support the position that where a document marked for identification is not eventually formally produced as exhibit, it has no evidential weight and is fatal to whoever wishes to rely upon it. In the later case, the Court of Appeal observed as follows:
“The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.
Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.
In Des Raj Sharma -v- Reginam (1953) 19 EACA 310, it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa -v- The State (1994) 7-8 SCNJ 144, it was held that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence.”
18. Learned counsel submits that there were glaring inconsistencies and therefore different accounts in the evidence of the prosecution witnesses on what transpired. He cites the case of Richard Munene v. Republic [2018] eKLR where it was held that the inconsistencies or contradictions should not be trifling but substantial and fundamental to the main issues in question in order to create a doubt in the mind of the court from which an accused person will be entitled to the benefit.
19. Learned counsel further submits that the alleged panga nor any other weapon used to assault the deceased were not produced in evidence.
20. In that case, that the prosecution had not proved its case against the accused person beyond a reasonable doubt.
21. I have considered the evidence by the prosecution, the defence by the accused person and the submissions by learned counsel for the accused person. The point for determination is whether or not the prosecution has proved its case against the accused person beyond a reasonable doubt.
22. The two ingredients of the offence of murder - actus reus and mens rea – have both to be proved to the required standard of beyond a reasonable doubt to satisfy a charge and conviction of murder.
23. In this case, there were four witnesses PW 1, PW 2, PW 3 and PW 4 who testified that the accused person and two others cut the deceased on the head with their pangas. All these four people saw the accused person and the two other people who were all well known to them standing, armed with pangas and surrounding the deceased who was on the ground with panga cuts on the head and bleeding at the time.
24. PW 1 and PW 2 did not witness the incident of cutting. They got to the scene after the deceased was cut and was lying on the ground with the three assailants surrounding him and armed with their pangas. PW 3, Patrcik Mwamkale said he was at a distance of about 50 metres and approaching the scene when he saw the three assailants attack the deceased with their pangas and cut him. PW 4 Franton Mwangemi saw the three assailants bending down with their pangas and appearing to cut something which he later established was the deceased.
25. The incident happened in broad daylight. There is no dispute that the assailants were well known to the witnesses. The deceased, the witnesses and the accused person are members of the same clan and know each other well. That is why when the noises were heard coming from the direction of the farm, the deceased and others he was with headed there to find out what was happening. I therefore find the evidence by the accused person that he did not know the deceased and did not see him that day to be untrue and I reject it.
26. In this case the evidence adduced by the prosecution witnesses leaves me in no doubt that Humfrey Mwanjole Mwanjani died and that he died at the hands of the accused and the other assailants. That no postmortem was conducted on the body to establish the cause of death does not vitiate the strong evidence tendered that the panga cut injuries inflicted by the accused and the other assailants were the direct cause of his death. When he was carried away from the scene, he was overwhelmed by those injuries. He had been talking in discussions a few moments before he was viciously cut. He never spoke again. That means the injuries overwhelmed him.
27. Although learned counsel for the defence submits that the lack of medical evidence should lead the court to doubt that in fact death was caused by the accused person, I do not agree with that submission. The fact of death can be proved by circumstantial evidence even where the body of the deceased is not recovered. In this regard I am persuaded to follow the New Zealand case of Republic vs Harry (1952) NZLR 11 (3rd Digest Supp) cited in the case of Dorcas Jebet Ketter & Joseph Boit v Republic [2013] KECA 401 (KLR) where Oliver J. said: -
“At the trial of a person charged with murder, the fact of death is provable by circumstantial evidence, notwithstanding that neither the body or any trace of the body has been found and that the accused has made no confession of any participation in the crime before he can be convicted. The fact of death should be proved by such circumstances as renders the commission of the crime morally certain and leave no ground for reasonable doubt; the circumstantial evidence should be so cogent and compelling to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.”
28. On the first ingredient of murder, that of actus reus, I am satisfied that it was indeed the act of the accused person that led to the death of the deceased. I accept the evidence of PW 3 and PW 4, as they corroborated each other in all material aspects that the accused person and the others two people cut the deceased with pangas.
29. The evidence of the accused person is that in fact, the witnesses herein and other members of the Jilani family were the ones who attacked him and his family. I do not find this evidence to be entirely untrue. There is some truth in it from his evidence that his house was torched and he was also injured together with his son and he produced the supporting P3 forms as evidence to confirm.
30. I believe that to some extent, the prosecution witnesses were not entirely honest in their testimony of how this event unfolded. What I note from both the evidence by the prosecution and that of the accused person is that the deceased seems to have been a victim of circumstances. There was a conflict over land involving the accused’s family and that of some of the witnesses, what the accused referred to as the Jilani family. Indeed, Patrick Mwakale Jilani, PW 3 testified that his father was not pleased with the accused person constructing on that parcel of land and he went there to demand to know why. There is evidence that there were screams from that direction before the deceased headed there to find out what was taking place. It would appear that there was a fight between the two antagonistic groups both who seem to have been armed, going by the fact that people from both sides sustained cut injuries and a house was torched. The deceased having been a neutral person and unarmed seems to have found himself on the wrong side of the accused person and his group and they set upon cutting him.
31. Why they cut him is not exactly known but it is most likely that they felt he was on the side of their protagonists. It was indeed an unfortunate incident for him.
32. All the same, the fact that the accused person and the two others attacked him with pangas and inflicted severe injuries upon him is proof that they acted with malice aforethought.
33. The accused person used a panga as a weapon with knowledge that it would cause grievous harm. His denial that he never saw the deceased at the scene and that he was not known to him is plainly lies and is discounted by the evidence of PW 1 to PW 4 that he was there and he cut him.
34. I find no material contradictions as alleged in the submissions of the learned counsel for the defence to vitiate a guilty finding or water down the evidence adduced against the accused person.
35. I am satisfied that the prosecution has discharged its onus to prove beyond a reasonable doubt that the accused person murdered the deceased and I find the accused person guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and convict him accordingly.
36. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 25th day of November 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused in person from Shimo La Tewa prison.
Motuka for the accused person.
Mr. Ngiri for the Respondent
Etropia - Court Assistant