INTRODUCTION
1. SABINA WANJALA KINJILI (A1) and LODI MZUNGU (A2) were charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 of laws of Kenya. The particulars of the case are that on the 29th day of May, 2017 at Mtwapa Township, within Kilifi County, jointly with others murdered Delgrosso Uga.”
2. The 2 accused persons pleaded not guilty to the offence.
3. The Prosecution pleaded its case and called forth six (6) witnesses , closed its case and the court found that the two had a case to answer.
4. In their respective defences, the 1st accused person gave un sworn testimony whilst the 2nd accused gave a sworn statement.
5. ISSUES FOR DETERMINATION
a) Whether the prosecution has proved its case beyond reasonable doubt.
b),Whether the accused is guilty as charged
a) Whether the prosecution has proved its case beyond reasonable doubt.
6. Under section 203 of the Penal Code, CAP 63 Laws of Kenya, for an offence of murder to suffice, the prosecution has to prove the following ingredients:
i. The death of the deceased.
ii. That the death of the deceased was unlawful and that it was the caused by some unlawful act or omission on the part of the accused person.
ii. That in the causing death of the deceased the accused had malice aforethought.
7. The case of ;. REPUBLIC V ANDREW MUECHE OMWENGA (2009) eKLR elaborately explains the three ingredients of murder of the offence of murder.
a. The death of the deceased
8. From the evidence adduced by PW4, Doctor Ngali Mbuko, we see that he examined the body of the deceased on 1st June, 2017 and conducted the postmortem and prepared a postmortem report, which he produced before this Honorable court as PEXT 1. He observed multiple stab wounds to the neck of the deceased, some perforating the carotid artery on the right side of the neck and he concluded that the cause of death of the decease was hemorrhagic shock. The Defence did not challenge the fact of the death of the deceased and the court finds that it was proved.
b. Whether death of the deceased was unlawfully caused by the accused persons .
9. Section 203 of the Penal Code defines murder as the causing, by a person or persons with malice aforethought, the death of another person by an unlawful act or omission. It reads: - “Any person who of malice aforethought causes the death of another person by any unlawful act or omission is guilty of murder.”
10. The two questions before this Honourable court are whether it is the 2 Accused persons who caused injuries to the deceased thereby leading to his death and if they may have had any lawful justification.
THE EVIDENCE
11.There is no eye witness that puts or places either of the 2 Accused persons inside the apartment where the Deceased was murdered.
On her part, the first accused person testified that she and the deceased were friends but were living separately. That she had planned to travel home to Makueni on 31st of May 2017, but she first visited her sister in Malindi to pick the sister’s child. That she alerted her care taker PW3 and she has no knowledge of the death. She only got a call that the deceased was un well when she was in Malindi through some anonymous call and she tried to confirm from PWI.
12. The prosecution built its case on the fact that the deceased was in a relationship with the 1st accused person. PW1 , the son to the deceased and his wife PW2, described the relationship as troubled and stressful as the accused was always asking for huge amounts of money like KSH 20,000.00 to KSH 30,000 daily and the deceased , a pensioner , did not have that kind of money. Further that after the two separated , the 1st accused person was sending threatening texts to the deceased and that she had threatened to kill him.
PW1 testified that the texts were numerous and he had read at least one of them.
13. To test these allegations, A1”s Samsang (duos) phone, PEXT 2 was taken for analysis and the report produced by POLICE INSPECTOR DAVID MUASYA as Pext 2 . It turned out that the messages were mostly MPESA transactions and the only amount received from the deceased was KSH 2,100.
14. From this print out, we do not see the huge amounts that the 1st accused was allegedly demanding and receiving from the deceased. I actually note that the bulk of them were for minimal amounts like airtime purchases of KSH 50.00. to Ksh 100.
15.We also do not see even one threat to the deceased from the 1st accused person contrary to PWI’S evidence.
16.As regards A2, the only evidence against him was that the 17. body of the deceased was found in the morning of the night that he had been on duty before handing over to the caretaker.
17. The 2nd Accused testified that his work was to patrol on the outside of the apartments and on that fateful day he did his work well, did not see or hear of any suspicious activities; he left his duty post in the morning at 6.00 am upon handing over to the caretaker who served as the day watchman.
18. The police investigations did not lead evidence as to the exact time of the murder. Also We did not get anything else such as any communication or conspiracy between the two accused persons. Further there was no recovery of murder weapon and nor was any item was recovered that would tie either of the 2 Accused to the murder.
19.We did not get any CCTV footage or any forensic evidence at all on which to build the prosecution case.
20. This means that the prosecution case was built on circumstantial evidence. In REPUBLIC VS. DENIS KIPKOECH (2019) eKLR it was stated that; “In a case depending exclusively on circumstantial evidence, the court must before deciding upon a conviction find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt”
21. In the case of REPUBLIC VS. MICHAEL MURIUKI MUNYURI CRIMINAL CASE NO. 71 OF 2010 Lessit J. Judge cited the CASE of ABANGA ALIAS ONYANGO – VS- REPUBLIC CR. APPEAL NO. 32 OF 1990 (UR) in which the Court of Appeal rendered that; “It is settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) The circumstances from which any inference of guilt is 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 with all human probability the crime was committed by the accused and no one else.”
22.We look at the other ingredients before settling this.
c. Whether the Accused persons had malice aforethought.
23. In the case of REPUBLIC VS. KYUNU MAMBO CRIMINAL CASE 8 OF 2018 C. Kariuki Judge relied in the case of JOHN MUTUMA GATOBU VS REPUBLIC [2015] KLR where the Court of Appeal stated that: “Malice aforethought in our law is used in a technical sense properly defined under Section 206 of the Penal…. There is nothing in that definition that denotes the popular meaning of malice as ill will or wishing harm and all the related negative feelings. Nor, for that matter, is it to be confused with motive as such. Our law does not require proof of motive, plan or desire to kill in order for the offence of murder to stand proved, though the existence of these may go to the proof of malice aforethought”
24. As pointed out in the analysis above there is no evidence that directly links the 2 Accused persons directly to the murder of the deceased.There was however some attempt to show that the 1st accused person acted suspiciously by travelling to Malindi and later to Makueni. The investigator used her phone and traced her to a guest house in Malindi and later to Makueni. The most incriminating aspect was the use of a different name on the manifest of the mash bus to Machakos.
25. A1 however explained her travels and the explanation was not tested.
26. There was also mention of some repair men and a sofa set but that was not proved to be connected to the murder or either of the accused persons.
27. The trip to Malindi and later on to Makueni from where A1 was arrested was highly suspicious. But was it sufficient?
28. In the case of MARY WANJIRU GUCHIVA –VS- REPUBLIC CRIMINAL APPEAL NO. 17 OF 1998 the court held as follows:-
“….However strong, suspicion , it is cannot be proved by evidence. Before a court of law convicts an accused person of an offence, it ought to be satisfied that the evidence against him is over whelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life....”
29. In the case of JOO –VS- REPUBLIC (2015) eKLR the court of appeal held as follows:-
“….It is not lost to this court that the offence which the Appellant faced was such a serious once had ought to be denounced in the strongest terms possible. However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled; proof beyond any reasonable doubt hence this case cannot be an exception. This court holds the view that it is better to acquit ten guilty persons than to convict one innocent person…”
30. Before a court of law finds an accused guilty of an offence, it must be satisfied that the offence has been proved beyond any reasonable doubt. What amounts to reasonable doubt was settled in by Lord Denning in Miller –vs- Ministry of Pensions (1947) 2 ALLER 372 where he stated:-
“….. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does .not mean proof beyond the shadow of a doubt. The law would fail to protect community if it admitted fancily possibilities to deflect the course of justice. If the evidence is so showing against a man as to leave only a remote possibility in his favor which can be dismissed with the sentence of course it is possible, but not in the leant probable, the case if proved beyond reasonable doubt but nothing short of that will suffice…”
31. In this case considering all the evidence I am not satisfied that that standard has been attained . I therefore find that neither of the two the accused , that is SABINA WANJALA KINJILI (A1) and LODI MZUNGU (A2) is guilty of the offence of murder and I Hereby acquit each of them under of the offence of murder contrary to section 203 as read with section 204 of the Penal code .
32. I direct the both SABINA WANJALA KINJILI (A1) and LODI MZUNGU (A2) to be set at liberty unless if otherwise lawfully detained.
33.It is so ordered.
DATED SIGNED and D DELIVERED THIS 6TH DAY OF MARCH 2025.
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF
1ST ACCUSED PERSON A2 ABSENT SICK IN HOSPITAL
MS MUNYORI FOR A1 AND holding brief FOR MUTANU & CO FOR A2
MR NGIRI, MR SIRIMA AND MS CHEROP FOR THE STATE
MS BEBORA COURT ASSISTANT