THE CHARGE
- The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars are on the 25th day of April 2023 at Majajani Area in Kijipwa Area within Kilifi South County, he unlawfully murdered Catherine Njambi. He pleaded not guilty and the matter proceeded to full hearing.
THE LAW
3.Section 203 of the Penal Code defines murder in the following terms:
'Any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder." Thus, the central ingredients of the offence of murder are a) malice aforethought; b) an unlaw{ul act or omission on the part of the accused’.
4. Section 206 defines malice aforethought in the following terms: -
“206, Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances -
a.) an intention to cause the 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 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 (light or escape from custody of any person who has committed or attempted to commit a felony,"
5
. ln REPUBLIC VS ANDREW OMWENGA (2009) EKLR the court
stated:
"It is clear {rom this definition that {or an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission. There are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to
secure a conviction. They are:
(a) the death of the deceased and the cause of that death;
(b) that the accused committed the unlawful act which cawed the death of the deceased and
(c) that the Accused had the malice aforethought."
ISSUES
6. In the instant case, the prosecution had to prove:
- That the accused person herein had the intention to cause the death of or to do grievous harm to the deceased ;
- That he had the knowledge that his acts or omission would probably cause death either to the person intended or to some other person;
- That he had the intent to commit a felony or that they had an
intention by the act or omission to facilitate the escape from custody
of any person who has committed or attempted to commit a felony.
7. The question that arises in the instant case is whether there is any
evidence on record tending to prove the above ingredients of the
offence of murder against the accused person.
ANALYSIS
- The death is not disputed. Even the accused person ,in his testimony, referred to the ‘’deceased seller” at the Mangwe - palm wine bar in his evidence. Nevertheless, the 5 prosecution witnesses all referenced the death with PW 6 – Susan Chumtai Tumand confirming that she identified the body before the postmortem was conducted. The postmortem talks of a body where Rigor Mortis had set on 9/5/2023. The pathologist then goes on to examine the body externally & internally and so, there is no doubt as to the death On 25/4/2024.
Cause of Death
- The doctor concluded that the cause of death was Pulmonary hemorrhage left lung and right lung pheme demo thorax and allelicities.
- Externally the following injuries were noted.
Respiratory System: Dissection revealed;
penetrating wound in the posterior right rib cage or low length and penetrating cut in the posterior aspect of right upper lung lobe, Lung appears pinkish however left lung exhibits purplish live & blood in pale on dissection.
Cardio-Vascular System: Intact-heart appears normal in gross amebiform.
Digestive System: Organs intact – liver, pancreas, small and large intestines grossly normal.
- The key question is; how were these injuries inflicted?
- It is common ground that on 24/8/2023, Fredrick Peter Ngala (PW 1), Kassim Chivatsi Karisa (PW 2), Shilko Mazuri Gedion Ngua (PW 3), Cornellus Katana Charo (PW 5) and the accused person were all drinking palm wine in the ‘Kiboko mangwe ‘– palm wine bar, owned by Tamar Kazungu Karisa (PW 4) and the seller was the deceased Catherine Njambi. PW 4 confirmed that he had just employed Catherine on 16/4/2023 and she was on duty on 25/4/2023. PW 1, PW 2, PW 3, PW 5 and the accused person were also in the company of one Weston Kiringi Ngoa said to be a cousin to the accused person , but who did not testify for either side.
- The 4 prosecution witnesses who were with both the accused and the deceased all testified the genesis of this case was some Kenya shillings one thousand ( Kshs.1000/=) note, that the said Weston gave to the late Catherine Njambi to pay for his bottle of palm wine. Unfortunately, Catherine did not have the change and she started asking around. When she failed to get the change at Kiboko club, she decided to go to the neighboring mangwe called Gubes . PW 1 had a motorcycle and he was to take PW 5 home. As the two (PW 1 and PW 5) were leaving they gave Catherine a lift from her ‘kiboko mangwe’ to Gube’s mangwe so she can look for change.
- PW 1 and PW 5 testified that on arrival at Gube’s Mangwe, they found it locked. They knocked but there was no response. When PW 1 was about to take Catherine back to Kiboko, the accused person called PW 5 asking where they were and PW 5 told him they were at Gube’ s looking for change and he was about to take Catherine back to Kiboko. The group of the accused, Weston and PW 3 however decided to go to Gube’s instead.
- On arrival at Gube’s , the accused person and Weston are said to have confronted the late Catherine over the Kshs.1000/=. PW 1, PW 2, PW 3 and PW 5 testified that Weston said Catherine wanted to run away with the Kshs.1000/= but both PW 1 and PW 5 defended her and urged Weston and the accused person to knock at Gube’s Mangwe to see if anyone would open.
- It was at that point that the accused person is said to have turned on the late Njambi who was still aboard PW 1’s motorbike. He started by slapping her and when PW1tried to stop him, Weston said she was a thief and wondered why PW 1 was defending her. That Njambi alighted from the motorcycle to avoid the beating but the accused person continued to beat her on the ground.
- Both PW 1, PW 3 and PW 5 tried to intervene and get her back on the motorcycle but she was said to have asked why the accused was beating her yet the money was not his. This incensed him and he assaulted her some more. Eventually she boarded the motor cycle but the accused continued to beat her when she was on it and so she alighted to evade the beating.
- All the witnesses testified that the accused person then dragged the case Catherine while beating her and they were close enough but PW 2 was closest. PW 2 testified that they tried to rescue the deceased but the accused person was extremely violent. That he pulled the deceased and she fell, he continued to hit her while on the ground and then they heard her say – ‘amenidunga kisu..amenidunga kisu. ‘
- PW 3 testified that when he looked he saw Catherine bleeding from the back. He also saw a knife on the ground and Weston picked the knife but the accused later demanded it back and he was given the knife which he tuckcked on his waist. PW 1 and PW 2 then put Njambi and PW 1’s motorbike, they went and woke PW 4 and they took her to Kilifi hospital but she was produced dead. They then reported to the police.
- From the above, we have 4 witnesses who testified that it is the accused person who slapped and beat up the deceased Catherine and also dragged her away from them. That it was only him, the accused, who was with her when she said amenidunga kisu and they saw her bleeding. PW 3 who was the closest one to them saw the knife n.
- PW 6 was the arresting officer and he said when he arrested the accused person he conducted a quick search and he recovered a knife PEXT 1 hoisted in his trousers waistline and he also had a razor blade. PW 3 testified that indeed he saw the knife and the accused person demanded it from Weston. The knife (PEXT.1) had some blood stains even though no DNA was generated from it.
- That DNA evidence would have sealed the case for us as it would have created the nexus between the deceased, the murder weapon and the accused person. Unfortunately even the blood sample taken from the deceased was said not to have generated any DNA profile. So we do not have any direct or forensic evidence against the accused person. We nevertheless have the oral evidence and the circumstantial evidence.
- Circumstantial evidence case.
.23. . In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the court of Appeal had this to say on circumstantial evidence: “However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence.
28. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial. ”
29.In Abanga alias Onyango v. Republic CR. App NO. 32 of 1990(UR) in which same 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 none else.”
30. Also in Sawe Vs. Republic [2003] KLR 364, the Court of Appeal amplified on the above thus:“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 his 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 remain with the prosecution. It is a burden which never shift to the party accused.”
- In his defence, the accused person says that on arrival at Gube’s club, they continued drinking and he fell asleep. He did not mention any confrontation. That defence cannot be true as 4 of his drinking mates, even PW 2 who walked with him from Kiboko club stated that he is the only one who attacked the late Njambi . That he started off by hitting her then he dragged her to the side and he is the only one who was with her when she got stabbed. PW3 identified the knife pext1 as the one he saw after Njambi was stabbed and the accused took it and hid it in his trouser from where the arresting officer recovered it.
- PW1, PW2 AND PW3 all testified that when they tried to intervene the accused became extremely violent. There was no evidence that the late Njambi provoked him or attacked him so the death was unlawful. The court has analyzed the evidence and is satisfied that this evidence against the accused person passes all the tests. There can be no other explanation than that he is the one who inflicted the injury noted to have caused the death of Njambi who was pronounced dead on arrival to hospital..
- Malice aforethought.
- The accused person says he was asleep. It was also noted he had been drinking. He however did not raise the defence of intoxication. He said he was asleep. PW 2 however said that the accused person appeared like he was possessed by evil spirits and when they tried to intervene he became very violent.
- I note that the deceased and the accused person were not known to each other. He was fairly drunk and accordingly he may not have been in full control of his faculties and so he may not have had the capacity to form any mens rea . I will therefore give him the benefit of doubt and acquit him for murder C/S 203 as read with 204 of the penal code, and convict him for the lesser offence of manslaughter contrary to section 202 of the penal code as read with section 205 of the Penal Code,
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 20th day of March 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
THE ACCUSED PERSON AND HIS ADVOCATE MR SALIM
MR SIRIMA FOR THE PROSECUTION
MS BEBORA COURT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE