The Republic VS Brian Lugent Maghanga The Republic VS Brian Lugent Maghanga

The accused person herein Brian Lugent Maghanga stands charged with murder contrary to Section 203 as read with Section 204 of the Penal Code.
The particulars of the offence are that on 25^th December 2021 at Mwakaleri shopping centre in Ronge Juu Location of Mwatate Sub County within Taita Taveta County murdered Patrick Maghogho Mbwangi.
He has denied the charge. In their effort to prove their case, the prosecution has called nine (9) witnesses. On his part, the accused person tendered sworn defence testimony and did not call additional witnesses.
PW1 was Harry Mwakodi Mwakisuma a nyumba kumi elder, whose evidence was that on 25^th December 2021 he received a phone call from Assistant Chief Renson Malombe and proceeded to a scene where he found the deceased lying on the floor of a shop bleeding.
It was his evidence that the deceased told him that Maghanga a son of his brother assaulted him.
It was his further evidence that the Assistant Chief later arrived at the scene and took the deceased to Voi for treatment, but he later learnt that the deceased died before arrival at the hospital.
In cross-examination, he stated that he knew the deceased as a mason.
PW2 was Marsden Herman Mwalago a businessman at Mwakaleri village market whose evidence was that he knew Patrick Maghogho Mbwangi, and that on 25^th December 2021 after 7:30a.m he received a phone call from his shop employee Peter Taule who informed him that Patrick was lying at the witnesses shop in a pool of blood.
He then proceeded to the scene where Patrick said that his brother’s son Maghanga had beaten him. According to him the deceased had a visible stab wound on upper arm.
It was his evidence that he knew Maghanga the accused person and that he was present at the scene when the nyumba kumi chairman (PW1) came. It was his evidence also that the said nyumba kumi chairman asked questions to which the deceased also answered him.
It was also his evidence that the sister of the deceased (Wakesho) asked the deceased questions, and the deceased mentioned the name of Maghanga.
It was his further evidence they prepared a stretcher and some young men carried the deceased to a nearby clinic for treatment, and that at 4p.m same day he learnt that the deceased had died enroute to hospital. He stated that the accused person Brian Lugent Maghanga was not at the scene.
In cross-examination, he stated that James Mswahili was seated near the deceased when he arrived at the scene and was drunk and did not respond to questions. He maintained that the deceased person mentioned Lugent Maghanga. He stated that he did not know if deceased was drunk.
PW3 was Holiness Wakesho Mbwangi Jonah, a sister of Patrick Mwaghogho Bwangi the deceased, whose evidence was that on 25^th December 2021 at 7:45a.m Defence Kalage Mwavuwa, a sister-in-law, phoned to inform her that something had happened to the witnesses’ brother at Mwakaleri shopping centre.
She proceeded to the scene but on the way also received a call from the Assistant Chief on the same incident.
On arrival, she saw her brother lying down injured, with another person seated on the ground. She then observed a cut injury on left upper hand, a cut on the abdomen, and injuries on the head of the deceased.
According to this witness, the deceased told her that Lugent Maghanga his brother’s son had injured him. She stated that she phoned her brother Alfred and asked if he knew that Lugent had stabbed the Uncle.
It was her evidence also that the Assistant Chief arrived after her and organized people to make an improvised stretcher and took Patrick to a nearby clinic for first aid, then took him in a vehicle heading to (Moi) Voi referral hospital but he died on the way. It was her evidence that she was with the deceased when he died, and that the body was taken to Voi hospital mortuary for preservation.
In cross-examination, she confirmed that she met other people already at the scene, together with PW2. She also agreed that the deceased was at the shop verandah, and was not able to talk.
PW4 Defence Wawuda Mwambi a sister in law of the deceased testified that on 25^th December 2021 a neighbour Justine Mwangombe called her to help Patrick the deceased. She phoned Holiness Wakesho and proceeded to scene. Found deceased restless and did not talk to her.
PW5 was Dr. Shem Jeremiah who testified on a post mortem examination report prepared by Dr. Winnie Nyabuto, which was done at Moi Referral hospital Voi on 31^st December 2021. It was his evidence that the body was of a male African which was pale, with cut wound in frontal area 4cm x 3cm deep; cut wound on right brow, cut wound 5cm long on chest/abdomen. Upper left arm cut 4cm long penetrating artery. Cause of death was haemorragic shock secondary to cut of the bronchial artery with a sharp object. He produced the signed post mortem report as an exhibit.
In cross-examination, he stated that the report did not indicate if the deceased was clothed.
PW6 was Renson Malombe Senior Assistant Chief Ronge Juu location who testified that both the accused and deceased hailed from his location.
That on 25^th December 2021 – 7:30a.m he received a phone call from a herdsman Harison Mwangolo informing him that as he was going to church, he saw someone lying in a pool of blood, whose name was said to be Patrick.
He then informed the nyumba kumi elder Harry Mwakodi who proceeded to the scene and confirmed that he saw an injured man who could not walk. The witness then conveyed the information to Senior Chief Herman Malachala and proceeded to the scene.
On arrival, he met Harry Marsden, Defence, Peter Raga and Wakesho. He noted that the deceased had suffered visible injuries and was in pain. He then requested the nyumba kumi elder to blow a whistle which he did to call the public to help.
They then made an improvised stretcher and carried Patrick to a nearby private clinic, where he was put on drip, and later a vehicle arrived from Voi at 2p.m and Wakesho accompanied the deceased to Voi hospital in the vehicle.
It was his evidence that at 5:4p.m he received a phone call informing him that Patrick had died, and he conveyed the information to the Senior Chief.
It was his evidence that at the clinic he learnt from those he found at the scene, that Brian Lugent injured the deceased, and he was thus arrested on instructions of the Senior Chief.
It was his evidence that youth traced the accused and found him at Mwakarale area on the road having boarded a motor bike, and the police from Mwatate arrived and re-arrested the accused person at 21:00p.m. It was his evidence that the deceased person did not talk to him.
In cross-examination, he agreed that the accused was not carrying anything when he was arrested.
PW7 Harrison Kudungula Mwangolo testified that he was an Anglican Church Pastor and knew the deceased and accused person as relatives.
It was his evidence that on 25^th December 2021 at 6:30a.m as he proceeded to church, he found Patrick on the floor at the shopping centre and near him was James Mswahili. He did not talk to either and proceeded for prayers.
On coming back, he still saw the two and he then phoned the Assistant Chief then proceeded home for breakfast. He confirmed that he did not meet Wakesho at the scene.
In cross-examination, he stated that he did not know what James Mswahili was doing at the scene.
PW8 was Judith Wawuda Mwaramu whose evidence was that he was a waiter at Garden Bar & Restaurant, and that he knew Patrick (the deceased) as a labourer at the bar as well as a patron.
It was her evidence that on 24^th December 2021, she worked at the bar in accounts section and went to sleep at 10p.m. Next morning 25^th December 2021 at 8a.m Mwakodi knocked the window and asked that the bar owner a Mr. Shwashwa be called. Mwakodi then led him to see the deceased who lay beside the bar. It was his evidence that he did not see Brian at the scene, but he came to the bar later at midday.
In cross-examination, he maintained that he did not see Brian the accused at the bar on 24^th December 2021, but that Brian came to the bar on 25^th December 2021 and sat at a table.
PW9 was PC Gitonga Kimaru the investigating officer whose evidence was that on 26^th December 2021 he was instructed by DCIO Mwatate Mr. Kirui to investigate this case.
He visited the scene as the suspect had already been arrested by the public. The scene was already disturbed. He recorded witness statements from Harrison Kidungwa Mwanyiro who was first to see the deceased.
He recorded statements from witnesses, some of whom said that the deceased talked before he died. It was his evidence that Defence Wawuda Mwambi PW4 on arrival greeted the deceased who did not respond. He gathered that Holiness Wakesho PW3 who arrived at the scene on being called on phone by Wawuda stated that the deceased told her – “ni Lugent amenidunga,” and then phoned Alfred a brother to inform him that Lugent had stabbed Patrick with a knife.
According to this witness, he interviewed the accused person who said he was a waiter at Garden Bar & Restaurant and that on 24^th December 2021 he was at the bar until 2100hours when the Uncle Patrick arrived and asked for vodka and called him a thief and they had a scuffle but other customers separated them. That the accused then proceeded home at 2a.m. That after conducting investigations, he decided to charge the accused person with murder.
When put on his defence, the accused person tendered sworn defence testimony. It was his defence that he worked at Garden Bar and Restaurant and that on 24^th December 2021 he worked late due to Christmas, but did not see Patrick. On that day he worked at the back lodging section.
Next day 25^th December 2021, he reported for duty at 12noon and was there up to 2p.m when he was sent by the employer to ferry cases of beer on a motor bike to a sister club. On coming back, the Assistant Chief informed him that allegations had been made against him by Holiness and he was then arrested. He denied committing the offence.
In cross-examination, he stated that he had a land dispute with his aunt Holiness, and also a dispute with PW2 Marsden Mwalagho.
After the close of the prosecution and defence evidence, both the Director of Public Prosecutions, and the defence counsel Mr. Mwazighe filed written submissions.
This is a murder case. Section 203 of the Penal Code defines the elements of murder.
The burden is on the prosecution to prove the allegations levelled against the accused person. This legal burden is codified under Section 107 of the Evidence Act (Cap.80).
This being a criminal case, the standard of proof is beyond any reasonable doubt – see Sawe =Versus= Republic (2003) eKLR.
Th elements of the offence of murder are the death of the victim, whether the death was unlawful, thirdly whether the death was caused by the accused person, and fourthly whether the death was caused with malice aforethought.
Did the deceased die? The evidence on record is clear. The deceased was seen lying in a pool of blood in the morning of 25^th December 2021 at Mwakileri trading centre. This is clear from the evidence of PW1 and PW2. He was injured and bleeding profusely.
He was taken to a nearby medical clinic for first aid, and died the same day in transit to Moi Referral Hospital Voi. The doctor PW5 Dr. Shem Jeremiah confirmed that the deceased died of haemorrhagic shock secondary to cut of the bronchial artery.
I find that the prosecution proved beyond any reasonable doubt that the deceased died.
Was the death unlawful? No justifiable or lawful reason has been given or suggested for the severe injuries suffered by the deceased which caused the death. I find that the prosecution proved beyond any reasonable doubt that the death of the deceased was unlawful.
Was the death caused by the accused person? This is a case of circumstantial evidence as nobody witnessed the accused person stabbing the deceased person.
In such cases, the prosecution must establish that there are no other co-existing circumstances, which could weaken or destroy the inference of guilt – see Sawe =Versus= Republic (2003) eKLR.
In the case before court, the only evidence connecting the accused person to the death of the deceased was an alleged dying declaration to the effect that PW1 Harry Mwakodi, PW2 Marsden Herman Mwalaghe and PW3 Holiness Wakesho stated in evidence that the deceased person told them that it was the accused person who stabbed him.
In my view, the truthfulness of this evidence of a dying declaration is in doubt. First, the person who was found sitting with the deceased by Harrison Mwangolo PW7 was not called to testify in court by the prosecution and no explanation was given. That person in my view was crucial to explain the circumstances in which the deceased was injured.
Secondly, PW4 Defence Wawuda, who arrived at the scene before Holiness stated in evidence that the deceased could not respond to her questions. Thus, in my view, it cannot be true that the deceased talked to a late comer, and the said PW4 who was present could not hear that talk. There is also nothing else that could suggest that the deceased and the accused person were together at the time he was injured, to connect the death or injury of the deceased to the accused person.
In my view therefore, the evidence relating to the alleged dying declaration of the deceased, could be untrue and leaves a lot of doubt, which doubt has to be given to the accused person and I do so. I thus find that the prosecution did not prove beyond any reasonable doubt that the accused person stabbed and killed the deceased.
Was the death caused with malice aforethought? With the evidence of the vicious stabbing of the deceased’s arm which led to the death, in my view, it was intended that the assault would result either in his death or grievous bodily harm. In accordance with the provisions of Section 206 of the Penal Code therefore, I find that the prosecution proved beyond any reasonable doubt that the death of the deceased was caused with malice aforethought.
To conclude, having found that the prosecution did not prove that the accused person herein caused the death of the deceased person, this court finds that the accused person is not guilty of murder and I acquit him of murder accordingly.

Dated, signed and delivered this 30^th day of May 2024 in open court at Voi.

In the presence of:-

Alfred/Chao – Court Assistants

Mr. Sirima for State

Mr. Mwandoto for accused

Accused