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JudgmentThe Republic VS ABDULAZIZ ALI SWALEH19 min read

The Republic VS ABDULAZIZ ALI SWALEH

High Court at Mombasa High Court · · Anne Ong'injo


Introduction

  1. The accused Abdulaziz Ali Sualeh faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code.
  2. Particulars of the offence are that on the 21st day of January 2023 at Bondeni Estate in Mvita sub-county within Mombasa County unlawfully killed Sharifa Ali Salim.
  3. The prosecution called 15 witnesses to support its case that the accused person committed the offence herein and he was placed on his defence. 

Prosecution Case

  1. PW1, Antonina Bahati Kahindi, stated that she used to work as a househelp for the deceased, sometimes in December 2022 the accused went to live with the deceased who was his grandmother; that he used to talk and laugh alone and looked like he had a mental problem but she was not aware whether the accused was treated for the mental condition. She recalled that on 21/1/2023, after they had dinner, she prepared the deceased’s bedroom and they went to sleep. After a while, she heard someone hitting the wall; she called the accused and asked him not to disturb the deceased but he did not respond. She later heard commotion in the deceased’s bedroom being opened; she called the deceased’s phone but there was no response, she called a second time and the accused is the one who answered and told her that “naskia sauti ikiniambia nimuuwe haba an niko na kisu mkononi’, she shouted and asked him not to kill her. She raised an alarm and called the neighbours to come to their rescue, neighbours responded and she opened the door for them, at the time the accused was in the sitting room kneeling and holding his waist, sweating profusely and crying, Mohamed Salim, one of the neighbours who had responded entered Sharifa’s bedroom and found her dead and was bleeding from the neck. They then called the police and the accused was arrested. On cross-examination, she however conceded that she did not see the accused killing the deceased and it is only after the neighbours had responded that they found out that the deceased had been killed; that when they found the accused in the sitting room kneeling and crying, he did not say anything.

  1. PW2, Mohammed Dumilla, recalled that on 21/1/2023, he was at home sleeping when his wife received a call that there was commotion in his mother in-law’s house; he then proceeded to the deceased’s house which is 7 minutes walking distance, on arrival he found that his mother in-law had been murdered and the accused had been detained in the sitting room. He went into the deceased’s room; he found the deceased laying on her back on the bed, there was a lot of blood, the bedsheets and mattress had been soaked in blood. Later, the police went and processed the scene and moved the body to the Coast General Hospital for post-mortem, he attended the post-mortem and the pathologist said that the deceased had a deep cut in the trachea. He also stated that they didn’t recover the weapon used to inflict the injuries but maintained that the accused is the one who killed the deceased. On cross-examination; he conceded that he did not witness the murder.
  2. PW3, Mohammed Ali Salim, a neighbour to the deceased recalled that on 21/1/2023 at about 9:30om to 10:00pm; he heard PW1 raise an alarm and calling his wife “mamake Salim, mamake Salim, Abdul anataka kumuua mama Sharifa”, they also heard commotion. They rushed to Sharifa’s house, on arrival, they found the accused on the floor crying, he rushed to the deceased’s room and returned and restrained the accused to prevent him from running away. On cross-examination; he stated that when he entered the deceased’s room, he found her lying in bed. And further that he did not know whether the accused had mental problem.

  1. PW4, Fatuma Ahmed, the deceased’s neighbour, stated that on 21/1/2023 between 9:30pm to 10:00pm; she heard PW1 raising an alarm and calling for help, she woke her husband (PW3) and they rushed to the deceased’s house upstairs. They entered the house and went to the deceased’s bedroom where they found the deceased lying in bed and there was blood, she did not move close to see the injuries on the deceased. On cross-examination, she conceded that she did not see the weapon used. She also stated that she used to see the accused talking or laughing alone and she suspected that he had mental problem but maintained that she cannot vouch for the accused’s mental status.

  1. PW5, Yusuf Muchafi Badia, the deceased’s neighbour said that on 21/1/2023 at about 9:30pm, he was at home resting when his wife informed him that their neighbour had been killed. He proceeded to the scene and found the deceased who had a deep cut on the neck and was lying on the bed, the accused had been restrained. They later called the police. On cross-examination, he conceded that she did not witness the murder but on arrival found that the accused had been restrained as the suspect. He also stated that he did not see the murder weapon.

  1. PW6, Said Ali Swaleh, the accused’s step brother stated that on 21/1/2023, he received a call at around 9:25pm from his aunt who was crying, on arrival at the deceased’s house he found the accused who had been restrained on the floor by PW2; he rushed to the bedroom where he found the deceased lying on bed and there was blood on the entire bed, she had a deep small cut on the throat. He stated that he was not aware of any difference between the accused and the deceased nor any complaint about him from the deceased. On cross examination he stated that their father had previously intimated that the accused had mental issues and he intended to take him to a mental hospital at Port Reitz. He conceded that he didn’t see the weapon used to kill his grandmother, that he spoke to the accused and he told him that he heard voices telling him to kill the deceased and he used a knife. The police searched the house but did not find the knife that the accused used.

  1. PW7, Mwangolo Tunga Mdoe alias Hassan, a neighbour of the deceased stated that on 21/1/2023 he heard PW1 calling for help, he rushed to the deceased’s house and found PW2 who informed him that the accused had killed the deceased. The deceased was lying on the bed bleeding and had a cut on her throat, he did not see the knife that was used to kill the deceased. On cross-examination he stated that he was not aware whether the accused had mental problems as he had not interacted with him much.

  1. PW8, Ahmed Abdulrazak, Senior Chief Old Town stated that on 21/1/2023, he received a call from the village elder Yusuf Muhaji that there was a murder incident, he called the police and thereafter rushed to the scene; where he found the accused detained in one of the rooms and the deceased was lying on her bed with blood all over, she had a cut on the neck. No one was allowed to touch the deceased until the police arrived at the scene. On cross-examination, he conceded that he did not see the murder weapon and that the accused was not known to him prior to the incident.

  1. PW9, Ali Swaleh Said, the deceased’s son and the accused’s father testified that on 21/1/2023, at around midnight he received a call from his brother in-law that the accused had killed his mother. He stated that the accused was not normal; that he had suffered depression, he had been referred to Dr. Mwangabe of Coast General Hospital who examined him and prescribed some drugs, which the accused had been taking. On cross-examination, he reiterated that the accused had mental problems, he had been treated at Malindi General Hospital and was referred to Coast General Hospital. He however stated that he did not have enough money to admit the accused in a hospital.

  1. PW10, IP Benard Mukami Gitau, No. 238913 said that on 21/1/2023, he received a call from IP Timothy Mutua informing him that there was a report of murder at Juakali Area in Old Town. He briefed other officers, the Sub-County Police Commander and from Crime Scenes Personnel and they all proceeded to the scene. On arrival, they found the accused detained in one of the bedrooms and the deceased was lying in bed in the other bedroom, she was lying facing up and her throat had been slit. The scene was processed and they thereafter moved the body to Coast General Hospital to await postmortem. The accused also had some injuries and was taken to hospital before being placed in cells to await investigations. On cross-examination he conceded that he did not see the murder weapon.

  1. PW11, IP Timonthy Muturi, No. 239485 testified that on 21/1/2023, he was working at Central Police Station, PW10 informed him that there was a murder incident at Jua Kali area, they proceeded to the scene; they found the accused restrained on suspicion that he killed the deceased. The crime scene personnel processed the scene while they the accused to the hospital, the body of the deceased was also taken to the Coast General Hospital Mortuary. On cross-examination, he stated that they were the first officers to arrive at the scene but he is not the Investigating Officer in the matter, that there were people in the house but not in the bedroom where the deceased was lying, that he did not interrogate the accused on that day, he did not see the murder weapon.

  1. PW12, Nassir Mohammed, the deceased’s neighbour said that on 21/1/2023, he passed by the deceased’s house after prayers and stayed with her until around 9:00pm. At around 10pm, he heard commotion at the deceased’s door, PW1 was shouting that “Aziz ameua”. He went to the deceased’s room and found her motionless. He later learnt that the accused was not mentally stable. The police went to the scene and the body was taken to the mortuary while the accused was taken to the hospital. On cross-examination, he stated that prior to the commotion on Sharifa’s door, he did not hear any noise, when they entered the house, two neighbours went to the deceased’s room and confirmed that she was dead and they covered her body with a blanket. He confirmed that he did not see the knife that was used to inflict the injuries, he also conceded that the accused did not appear normal; that from the facial expression and how he behaved after the incident showed that he was not normal.

  1. PW13, is Dr. Abdul Aziz Mohammed testified on behalf of Mohammed Ali who performed the postmortem and filled the postmortem report. Postmortem was conducted on 22/1/2023; the body had a fresh cut wound on the right side of the neck measuring 10cm by 2cm and an exposed cut trachea, the right carotid artery was also cut. He explained that the cause of death was haemorrhagic shock secondary to traumatic penetrating cut wound on the neck. He produced the postmortem report as Pexh. 1. On cross-examination, he stated that the weapon that caused the stab wound is not indicated in the postmortem report but it must have been a sharp object.
  2. PW14, CI Klein Kulicha No. 235210, an Officer appointed under Gazette Notice No. 5548 dated 30/06/2015; he received a call from Sgt Allan Adalo on 21/1/2023 at around 11:30pm, who instructed him to proceed to the crime scene in old town. He found the body of the deceased lying in bed, the neck was deeply cut. He documented the scene by taking photographs; photographs 1 & 2 – were the general view of the room where the body was, photographs 3 & 4 – general view of the body from different directions, photograph 5 – physical appearance of the deceased, photographs 6, 7 & 8 – showing the injury on the neck of the deceased. The certificate of photographic prints was produced as Pexh. 2 and the bundle of photographs produced as Pexh. 3 (a) – (h). he further stated that the house had one exit and windows were covered with curtains and did not see how they looked like. On cross-examination, he conceded that he could not tell is the accused person was the perpetrator of the murder and maintained that his role was only to document the scene.

  1. PW15, Sgt. Allan Adalo, No. 74802 said that on 21/1/2023 he received a call informing him of a murder incident in Bondeni. He rushed to the scene in the company of two other officers, on arrival they found that the suspect had been apprehended and held in a separate room, he went to the other bedroom and found the body of the deceased lying on a pool of blood, he contacted PW14 who responded immediately and processed the scene. He stated that the murder weapon was not in the bedroom where the deceased was, he asked the accused who informed him that he had returned it to the kitchen, he then took all the 3 knives on the table in the kitchen, he also took the white blood-stained t-shirt from the accused, the red blood- stained dera that the deceased was wearing. The body was moved to Coast General Teaching Referral Hospital Mortuary for postmortem. The house had only one exit door and grilled windows.
  2. PW15 said that they commenced investigations. He reiterated the testimony of PW1 of the happenings of the fateful day. Postmortem was conducted and the cause of death was established as excessive bleeding. They took the t-shirt, knives and dera to the Government Chemist in Mombasa for analysis; no DNA profile from accused blood samples matched the DNA sample from the other exhibits. He produced the DNA report as Pexh. 4, the Exhibit Memo Form as Pexh. 5, the 3 knives were produced as Pexh. 6 (a), (b) and (c), the white t-shirt with blood stains as Pexh. 7, red blood-stained dera as Pexh. 8.

20. He further stated that the accused was taken for mental assessment; where it was found that at the time of the incident, the accused was not on any medication, he was not attending any clinic and was well. On cross-examination he conceded that he looked for the murder weapon but could not establish which of the 3 knives was used as the murder weapon, the same was also not confirmed after the analysis at the government chemist, no DNA profile was generated from any of the knives and it is possible that the murder weapon was washed, he reiterated that the there was no match between the blood stains from the accused’s t-shirt and the blood on the deceased’s clothes. He also confirmed that he learnt from the accused’s father that the accused had a history of mental problem, he however maintained that as at the time of the murder, the accused had no mental issue. The accused and the deceased lived harmoniously.                                                       

Defence Case

21. When called upon to defend himself, the accused opted to give a sworn statement in which he denied committing murder.   He recalled that on 21/1/2023, they all had dinner with his grandmother and thereafter they all went to sleep, that after a short while, his grandmother died, it was said that she had been cut with a knife though he cannot tell how it happened. It was his defence that while in Malindi, he was being taken to rehabilitation and to hospital for medication for mental health, that whenever he was in Mombasa he would go to hospital for mental health treatment. He also stated that whenever he has mental issues he talks on his own, he hears voices telling him to jump from high buildings, laughing without cause, at times he feels possessed spiritually. He however said that he feels better. He maintained that he did not kill his grandmother.

22. Parties were given time to file their final submissions, however, on a perusal of the court record, none of the parties filed their submissions. Be that as it may, I will proceed to determine the matter herein on merit.            

Analysis and Determination

23. The Accused faces a charge of murder.  This being a criminal case, the prosecution has a duty to prove its case beyond any reasonable doubt to sustain a conviction. Halsbury’s Laws of England 4th Edition Volume 17 paragraph 13 and 14 set out the legal burden as follows: -

“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”

24. In Miller v Ministry of Pension (1947) 2 ALL ER 372 Lord Denning addressed what amounts to reasonable doubt and stated as follows: -

“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 the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

25. To prove a charge of murder under Section 203 of the Penal Code, the prosecution has to establish beyond reasonable doubt that the following ingredients exist: -

  1. The death of the deceased;
  2. That accused committed the act or omission that led to the death; and
  3. That accused possessed malice a forethought.

26. The death of the deceased is not in dispute. The testimony of PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW10, PW11, PW12, PW14 and PW15 all confirm that Sharifa Ali Salim died following an assault.  This fact was further confirmed by the accused in his testimony on defence.

27. PW13 testified on behalf of the doctor who conducted the post-mortem on the deceased. From the post-mortem Report which was produced as Pexh.1. It was found that the body had a fresh cut wound on the right side of the neck measuring 10cm by 2cm and an exposed cut trachea, the right carotid artery was also cut. He explained that the cause of death was hemorrhagic shock secondary to traumatic penetrating cut wound on the neck. This evidence corroborated the evidence of the other prosecution witnesses that the deceased met her death after an attack and assault. There being no other evidence contradicting the medical finding on the cause of death, this Court concurs with that medical evidence produced as Pexh.1 that the deceased died as a result of the unlawful act.

Whether Accused caused the death

28. From the onset, it is important to note that none of the prosecution witnesses witnessed the murder of Sharifa Ali Salim. According to PW1 who lived in the same house with the deceased and the accused, she heard commotion from her bedroom, she then called the deceased phone and on the second time, the accused answered the deceased phone and said that “naskia sauti ikiniambia nimuuwe haba na niko na kisu mkononi’. She raised an alarm and the neighbours came to their rescue. All the other prosecution witnesses came after the murder incident had been committed and the deceased was already dead.

29. Having found that there was no eye-witness account on how the deceased died; from the testimonies and the evidence on record, it is clear that the prosecution’s case rests on circumstantial evidence. The court is therefore mandated to analyse the said evidence and ascertain whether the evidence satisfies the following requirements: -

(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) The 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. According to PW1, they lived with the deceased and the accused who had gone to visit them in the month of December, 2022. On the fateful day, after having dinner, the deceased retired to her bedroom and she also went to sleep in a separate bedroom. Since the house had two bedrooms, the accused used to sleep in the sitting room. After a while, she heard commotion. It is her testimony that when the accused answered the phone, he told her that “naskia sauti ikiniambia nimuuwe haba na niko na kisu mkononi’. She raised an alarm and when the neighbour’s responded, she opened for them. PW12, a next-door neighbour, who had been with the family of the deceased on the fateful day until 9:00pm also confirmed that he left the deceased in the company of the house help (PW1) and the accused.

31. The question that therefore follows is whether an inference of guilt can cogently and firmly be established. There is no doubt that there were three people in the deceased’s house on the fateful day, there was no possibility of a break-in. PW1 testified that she is the one who opened the door for the neighbours who had come to her rescue. Further, the testimony of PW14 and PW15 showed that the house only had one exit and the windows were grilled.

32. When the accused answered the deceased phone, he said that he had a knife in his hand and he was hearing voices telling him to kill his grandmother. Moreover, PW13 established that the murder weapon must have been a sharp object. This evidence was not controverted by the defence. Further, the accused in his testimony stated that he could hear voices telling him to do certain things.

33. Taking the prosecution’s evidence in totality; it is the finding of this court that the circumstances in the instant case form a complete chain and points to the conclusion that within all human probability, the crime was committed by the accused.   

Whether the accused had malice aforethought

34. Malice aforethought is defined in Section 206 of the Penal Code.   It provides: -

“206 malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: -

  1. 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;
  2. Knowledge that the act or omission causing death will probably cause the death of or grievous harm to same person, whether the person is the person actually killed or not although such knowledge is accompanied by indifference. Whether death or grievously bodily harm is caused.
  3. an intent to commit a felony;
  4. an intention by the act or omission facilitates the flight or escape from custody of any person who has committed or attempted to commit a felony”

35. In Rex v Tubere s/o Ochen (1945) 12 EACA 63, the East African Court of Appeal observed: -

“In determining existence or non-existence of malice, court has to look at the facts proving the weapon used, the manner in which it is used and part of the body injured.”

36. Further in the case of Hyan v DPP (1979) AC the court held: -

“Malice aforethought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another the accused knew that it was highly probable that, that act would result in death or serious bodily harm.”

37. The accused pleaded the defence of insanity. It was his testimony that he was taken to rehabilitation and while in Mombasa he would go to hospital for mental health treatment. He also stated that whenever he had mental issues, he talks to himself, hears voices, laughs without cause and feels possessed spiritually. This fact was further confirmed by PW1, PW4, PW6 and PW12 who all stated that the accused did not appear normal and had mental problems. PW9; the accused’s father testified that the accused suffered depression and had mental problems and that he had intended to admit him in a mental facility.

38. I have also noted the letter from Coast General Teaching & Referral Hospital dated 22/2/2023 which outlined the accused’s history that he has been on follow-up for schizophrenia for 3 years now. Had been using cannabis, muguka and miraa for 6 years, the last use being prior to his arrest. Is this a possibility that at the time of the murder incident he was not in the right mental state to understand his actions and forming the intent? I do however acknowledge that at the time of trial, the accused had been declared to be of sound mind and fit to stand trial.

39. In a defence of insanity, the evidence should demonstrate that the accused was prevented, by reason of insanity, from appreciating what he was doing or from knowing that it was wrong. Taking the letter dated 22/2/2023 and the testimony of PW1, PW4, PW6, PW9 and PW12 into consideration, I find in the affirmative. Due to the accused’s mental status on account of the schizophrenia, it can be concluded that at the time of the incident, he suffered temporary insanity.  

40. In the end, I am satisfied that the prosecution proved that the deceased’s death was caused by an unlawful act on the part of the accused person herein. However, considering the evidence and history of his mental status as shown in the report dated 22nd February 2023, this court finds that he was not in his right mental state to understand his actions. His actions could not have been informed by a right thinking person and therefore he cannot be found to have had malice aforethought. He is therefore guilty for having committed an unlawful act that led to the death of the deceased.   


    The Republic VS ABDULAZIZ ALI SWALEH The Republic VS ABDULAZIZ ALI SWALEH