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JudgmentThe Republic VS ADAN TULICHA DADACHA15 min read

The Republic VS ADAN TULICHA DADACHA

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


Introduction

  1. The accused Adan Tulicha Dadacha faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code.

  1. The particulars are that Adan Talicha Dadacha on 25th day of July 2022 at KPA High Level Estate, Shimanzi in Mombasa contrary murdered Joyce Wairimu Ngugi.
  2. The prosecution called 10 witnesses to support its case that the accused person committed the offence herein and he was placed on his defence. 

Prosecution Case

  1. The prosecution case was that PW2 Inspector Joyce Kaula of Makupa Police Station was on standby Duty officer on 25th July 2922 at around 09:30 hours P. C. Mohamed Godana who was at the report office approached her and informed her that there was a gentleman at the Report Desk who wanted to make a report that he had killed his girlfriend.  She instructed P. C. Godana to usher in the man who introduced himself as Adan Tulicha.   That the man told her he had killed his long time girl friend who is also a commercial sex worker at Blue Room area.  That the man explained he had picked Njeri at midnight at Blue Room area and that they proceeded to his brother’s house at High level KPA staff quarters.   That after informing the OCS of the report she was accompanied by the crime stand by officers to the scene led by the suspect.   That the suspect opened door to house number 9 on block JB High Level KPA Staff Quarters.  That on opening the door they saw the body of the deceased lying on the floor in a pool of blood.  That the deceased wore a short black dress and closed shoes.   That there was a handbag lying beside her.   That the deceased had a very deep cut on the neck and there was a knife stuck on the throat while the others lay besides the body.
  2. PW1 raised the scene s of crime officers DCI riband who went to the scene.   That the Sub-County Police Commander Kilindini and DCIO Kilindini also visited the scene.   That on 8/8/2022 sha had over mobile phone make Sanban S21 black and blue in Colour to P. C Nyamosi who was investigating the murder.   She said the deceased body lay in the corridor between the bedroom and the kitchen with the head facing the main door.  PW2 said the knife that lay besides the deceased body ha d blood stains.
  3. PW3 said he was at scene for about thirty (30) minutes before handing over to DCI Kilindini.  She said she could not confirm if the accused tried to drag the deceased on the floor.   She could not tell if there were blood stains anywhere else in the house.  She said she could not establish if there was commotion in the house prior to murder.  PW7 said that accused person reported that he had killed his girlfriend was booked before they went to scene.  PW3 Julia Lusifi an employee of Coast Sex Workers Alliance said the deceased was sex worker at Blue Room.   PW3 testified that on 25/7/2022 a public Health Officer known as Belinda Ochieng who worked at the Railway Dispensary informed her that there was a girl who had been killed at a house in High Level in Shimanzi.   That PW3 proceeded to Makupa Police Station to inquire about the death and she was informed that Kilindini Police were the ones investigating the death.  That on 26/7/2022 at 10:00a.m she went to port police and met P. C. Nyamosi who was the investigating the murder and she was told the body of the girl who had been killed was taken to Coast General Hospital Mortuary as an unknown body.

  1. PW3 told P. C. Nyamosi she could establish the identity of the deceased.   That in company of one of the sex workers known as Hadija they went to the mortuary and identified the body as that of Susan, later in the evening when she went to Blue Room she learnt Susan had not been seen for two days and the other sex workers had reported to police.   That one of the sex workers made phone call to the children of the deceased who on coming with identity it was shown the deceased persons official name was Joyce.  That the children of the deceased identified the body.
  2. PW4 Agnes Njaabi Kamau testified that on 28/7/2022 she was at Kongowea market when her step sister Josephine Njoki called and told her there was an emergency.   That when she went to where Njoki was in Kongowea she learnt that their niece the deceased herein had not been seen since 25th July 2022 and that there were reports the body was recovered.  PW4 said the deceased was her sister’s daughter.  PW4 inquired from a police officer at Docks who confirmed that there was a report of murder at Dock Police Station.   That on 29/7/2022 they went to Port Police and thereafter proceeded to mortuary and identified the body.  That at the mortuary PW4 saw there was a cut on the neck of the deceased. PW4 said the deceased was staying with her two children in Shanzu.  PW4 said the deceased used to operate a kiosk but after her husband died she said she was working in a hotel in town.
  3. PW5 Margret Wambui Muthoni testified that she was sister of the deceased.  She said eh deceased was staying in Shanzu and that she was working in a hotel in Mombasa town.   That on 25/7/2022 she received a phone call from Rama the deceased person’s boyfriend who told her the deceased left on 24/7/2022 and had not returned.  That the deceased’s phone was not going through.  That on 26/7/2022 the deceased boyfriend called and told her the girls who walk with the deceased got a report from Makupa police station informing them there was a girl who had been killed in that area.  PW5 advised the girl friend to the deceased to go with children to the mortuary to identify the body.  PW5 was away from Mombasa and she was called by Makupa Police Station and advised to travel to Mombasa.   On arrival in Mombasa on 29/7/2022 she proceeded to the mortuary where she identified the body for post mortem.  PW5 said the deceased had two children aged 19 and 17 years old who had suffered depression due to involvement in drugs.  The second child had also dropped out of school. PW5 said the deceased had a boyfriend known as Rama but they were not cohabiting.   She said she was not aware that the deceased was a commercial sex worker.  she said she did not know the accused and she did not know of his friendship with the deceased.
  4. PW6 P. C. Mohamed Godana testified that prior to being transferred to JKIA he was at Makupa police station.   That on 25th July 2022 he was at the station when the accused Adan Tulicha Dadacha went and reported that he had murdered a woman at High Level Estate.  PW6 reported to IP Joyce Kaula PW2 the OC – Anti Crime.   He said he met the accused person for the first time.   In cross examination PW6 said the accused did not tell him why he committed murder.

  1. PW7 Shadrack Rutto testified that on the nights of 24th and 25th July 2022 he slept well.  He testified that he was a neighbour to accused persons’ brother at High Level Quarters.  He said that the accused persons brother Robert was normally not available and it is the accused person who lived in the brothers’ house.  PW7 said the accused person is a quiet person.  He said that on 25/7/2022 while he was at work at 10.00 am   he learnt police officers had gone to their residence where he was told a woman had been murdered at Block JB door 9.   That he proceeded to the house and found police had left.  PW7 said he didn’t see the accused person on the material day.  He said he didn’t know if the accused was in the house as he was rarely seen.   He said he didn’t hear any commotion in accused persons’ house at night.
  2. PW8 Sergent Benson Ingosi scenes of crime officer documented scene of murder at House No. 9 Block JB.   On 25/7/2022 upon request by doctor Mugambi the DCIO Port.  He said the suspect who was at the scene had blood stains on his hands and injuries on one of the fingers.  He said that the body of a female person lay at the entrance of the siting room with lot of blood on the floor.  He said that there were two kitchen knives with blood stains.  He said that the body of the deceased had a stab wound at the chin.   That there was also a sharp cut at the front part of the neck (throat).  PW8 further said one of the knives in the sitting room had a broken handle.   That when he visited the toilet he saw blood like solutions in the toilet.  PW8 produced the bundle of 12 photographs he took at scene as exhibit EXP3 (b).  He also produced certificate and report – exp 3 (a) and (b).

  1. PW9 DR. Abdul Aziz Mohamed produced post mortem report prepared by Dr. Umi when the body of the deceased was examined on 1/8/2022.  It was documented that the deceased had blood stained face with bruises and multiple sharp penetrating cut wounds on the right side of the face with sharp margins.   That the deceased also had deep cut wounds on anterior neck front part of the neck cuts, severed esophagus, trachea and major blood vessels.   That there was also dislocated cervical vertebrae of the neck with bruises on the upper limbs particularly on the elbow joints.   That the deceased also had cut wounds.  Dr. Umi Siti concluded that eth cause of death was hypovolemic shock secondary to decapitation of the anterior neck with severed major blood vessels, trachea and esophagus secondary to sharp object.   In cross examination PW9 said that defence cut wounds on the deceased were on the left hand.

  1. PW10 P. C. Bernard Nyamose investigated the murder   on instructions of DCIO Kilindini.   He said the suspect had surrendered himself at Makupa police station where he reported he had killed his girlfriend in the house at KPA Staff Quarters.   That the suspect led police to the scene – house No. JB door No. 9 and opened the door using keys he had in pockets.   That in the house the body of a female was found lying on the floor in a pool of blood.  That when he arrived at scene he found the scene had been processed.  That the accused who had already been arrested was handed over to him.   That he recovered a blood stained knives at the scene and one was broken.   The two knives were produced as EX P5 (a) – broken and 5(b) not broken.

  1. PW10 said that before the accused went to report at the police station he changed his clothes and took a shower.  That the blood stained clothes were stashed in a wardrobe in one of the bedrooms where the suspect lived.   Blue and white T-shirt with KPA Logo was produced as an exhibit EXP 5 (a).   Somali kikoi – EXP6 (b).  PW10 said the suspect had a cut on the middle finger of the left hand which the suspect alleged was bitten by the deceased.  PW10 said he took a swab of the blood on the accused persons finger and from the cut which was fresh.  That he took vaginal swab from the deceased and processed the exhibit for investigations.   That the body of the deceased was removed to the mortuary for identification as it did not have any identification documents.   That finger prints were also taken from the deceased body.  That the accused was taken to Coast General Hospital where the wound on his finger was dressed and he was treated and discharged.   That vide Misc. Application No. 339 of 2022.  PW10 was granted time to detain the accused for purpose of investigations.  That the accused was taken for medical assessment where he was found fit to plead.  PW10 also said that the deceased finger prints were taken for purposes of investigations to identify her and she was identified as Joyce Wairimu Ngugi holder of Identity Card Number 21646156 – EXP 9 (b).  that the relatives of the deceased identified the body for post mortem and also availed identity card – EXP 10 (a).
  2. PW10 did prepare exhibit memo form with which he forwarded exhibits to Government Chemist for forensic DNA analysis.  The exhibits included stained knives, blood-stained clothes belonging to the suspect, swabs collected from the suspect and the deceased.   The Government Analyst Report was produced by PW1 as EXP1.  It established that the broken knife – Accused 1 and the 2nd knife A2 generated similar female DNA profile that matched the DNA profile generated from the clothe s of the suspect.  That the DNA profile generated from the vaginal swab of the deceased generated a mixed male DNA profile that matched the DNA profile generated from the buccal swab of the suspect with some alleles originated from the deceased virginal swab – EXD1.                                         

Defence Case

  1. Upon the close of prosecution case the accused was placed on defence and he gave sworn statement and said the deceased was his lover.   He said he had known her for three (3) months at Blue Room in Mwembe Tayari.   That on the material day he found her on the streets near Blue Room and they used tuktuk to go home.   That they passed by a wines and spirit shop and bought some drinks which they went to drink at home as they watched movies.  The accused said he wanted the deceased to stop the work she was doing and open week earlier he had promised to start for her a business in Mtwapa.  That on the material night when he told her he didn’t have the money yet the deceased got angry and told him that one of them would die.  That since he was drunk he didn’t take her seriously.  That the deceased who knew the house well went to the kitchen.  That when he told her he was going to call tuktuk to take her back to work she became furious and said she would not go.  That suddenly the deceased attacked him with a knife which he held and it broke.  That the deceased had taken 2 knives from the Kitchen. That when she wanted to stab him using the second knife he again held it and hey struggled over the knife and she told him to leave her alone.   That the deceased pushed him away and he fell down and she stabbed herself.  That when he was pushed away he collapsed as he was drunk.   That when he came to he found the deceased lying unconscious in a pool of blood.   That he thought she was still alive and he went to report to police.   That when he returned with police he found the deceased had died.   That accused said that he did not intend or imagine such a thing could happen to him.  He said he was drunk and the deceased was drunk.   He said the deceased died out of one stab wound.   That she stabbed herself.   The accused said he had never committed any offence.             

Analysis and Determination

  1. In consideration of the evidence of 10 prosecution witnesses and in consideration of the defence witness’ sworn statement, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.

  1. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -

‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’

20. The said provision creates elements for the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -

i. That the deceased died;

ii. That the death was caused by an unlawful act or omission;

iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and

iv. That there was malice aforethought.

21. That the deceased died is not disputed.  The testimony of the prosecution witnesses and the accused person confirms that Joyce Wairimu Ngugi died.  PW9 Dr. Abdul Aziz Mohamed produced post mortem report on behalf of Dr. Umi Siti in which it was observed that the body of the deceased had multiple sharp penetrating cut wounds on the right side of the face with sharp margins as well as deep cut wound on the anterior neck with severed aesopagus, trachea and major blood vessels with dislocated cervical spine.   It was also observed that she had blood stained face with bruises.  That she also had bruises on the upper limbs particularly on the elbow joints a sign that she was defending herself from an attack.

22. Whether the accused committed the unlawful act or omission that led to the death of the deceased it was his defence that the deceased got angry with him for failing to fulfil a promise he had made to her that he would finance and start a business for her.  That  the deceased went to the kitchen took two knives and used them to attack him. That the accused said he managed to hold the 1st knife which got broken and that when she wanted to stab him with the second knife he again held her and they struggled and she pushed him away and he fell down. He claimed that when he fell down  the deceased stabbed herself.  The accused said that when he was pushed he collapsed as he was drunk. 23. There was no other person in the house at the time of the incident and therefore the court can only analyse the circumstances under which the death occurred to establish whether  the prosecution has proved to the satisfaction of the court that the circumstantial evidence tendered points to the accused person as the perpetrator of the murder.    When the accused person went to  Makupa police station to make a report he met P. C.  Mohamed Godana – PW6 and he reported that he had killed his girlfriend. PW6 took the accused person to PW2 IP Joyce Kaula and again upon introducing himself the accused person informed PW2 that he had gone to report that he had killed his girlfriend.  PW2 booked the accused person’s report before escalating the information to the OCS and proceeded to the scene in company of other officers led by the accused.  At the scene she again informed  the DCI Urban and scenes of crime officers who proceeded to the scene upon which she handed over the phone recovered from the accused person to the investigating officer P. C. Nyamosi.

23. This court has considered the post mortem report and had a look at the photographs of the body of the deceased which showed that the attack on her was so vicious and meant to cause grievous harm or even death and the accused persons defence that it is the deceased who attacked him  is not compatible with  the evidence collected from the scene.   The accused person suffered only a bite mark on his middle finger whereas the deceased suffered multiple sharp penetrating cut wound on right side of the  face with sharp margins; deep cut wounds on anterior neck with severed  aesophagus, trachea and major blood vessels; dislocation of cervical spine; bruises on upper limbs particularly on elbow joints as well as defence cut wounds on the left hand.   These injuries are as stark contrast to what the accused person  said that the deceased allegedly stabbed herself to death.   The severed trachea esophagus and major blood vessels as well as the dislocated cervical spine and multiple cuts are not explained if one was to believe that the deceased truly stabbed herself. 

24. According to PW10 the investigating officer it was  established that  before the accused person went to report that he had killed his girlfriend he had changed his clothes and took a shower.  The blood stained clothes were recovered stashed in a wardrobe in the bed room where the accused lived.   This court’s finding is that the multiple injuries  and the targeting of   vital and delicate parts of the deceased body point out to the fact that the accused person committed the unlawful act that led to the death of the deceased and that he was actuated with malice aforethought.   There is nothing to show that  the accused was drunk when he committed the murder of the deceased.

25. In the circumstances, this court find that the prosecution has proved beyond all reasonable doubt that the accused person murdered the deceased. He is found guilty and convicted accordingly under Section 322 (1) of the Criminal Procedure Code.      


    The Republic VS ADAN TULICHA DADACHA The Republic VS ADAN TULICHA DADACHA