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JudgmentThe Republic VS CHAI JABIRI24 min read

The Republic VS CHAI JABIRI

High Court at Mombasa High Court · · Wendy Micheni


Introduction

  1. 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 of the offence being that on 9th day of October, 2021 at Radiant Apartments at Coal View Area within Mtwapa Township within Kilifi County murdered MAURICE TEMBO. Upon arraignment in Court, the accused person pleaded not guilty and the prosecution called eight (8) witnesses in support of its case.

The Prosecution case

  1. PW 1 PC Benjamin Mukiti, told the court that he was attached at the Mtwapa Police Station and had been there from 2017. He recalled that on 9th October, 2021 he was on duty with CPL Juma; at around 5 pm they took a vehicle and proceeded on patrol in Mtwapa as CPL Juma remained at the station to do some work assigned to him by the OCS. They had gone to Maweni when CPL Juma made a phone call and  told them that they were supposed to attend to a situation at Radiant Apartment. They proceeded to th scene and found people   taking photographs. He told the court that they managed to access the scene through the crowd and they found a body lying on the ground and there was a pool of blood.
  2. According to the witness, CPL Juma who was also at the scene; was talking to a members of the public. The witness also interrogated the members of the public and learned that the second person who was at the scene with injuries, had also been beaten by Members of the public  when he stabbed the deceased. The scene was outside Radiant Apartment. He effected the arrest of the suspect and placed him in the police vehicle. They secured the scene  as they waited for DCI officers to take over from Kilifi South. When DCI personnel arrived they processed the scene and assisted them to take the suspect to hospital where he was treated after which they took him to the police station.
  3. According to the witness the body was also escorted to the Coast General Hospital Mortuary. The suspect they arrested was known as Chai Jabiri  whom he identified  at the dock in court. When cross examined he stated that they arrived at the scene after the deceased had been stabbed. They found the body lifeless in a pool of blood.
  4. PW 2 Mwarama Hamad Mwatenda, told the court that he was a resident of Likoni and worked in construction sites as a casual labourer. He was currently working at Mtwapa as a store keeper at Radiant Apartment. He was a caretaker of a store keeping construction materials; he had been a shorekeeper for 2 years. On 9th October, 2021 he recalled that he was at the site and was working as usual. He issued tools to the workers. At 5 pm people were paid and they left. He checked through the stores and confirmed that they were locked. At the road he saw 2 people pushing each other; he also saw the 3rd Person across the road where the two people were and he  also joined the fight. He did not know if the third person was separating the initial two
  5. The witness told the court that he started going towards the fight while creaming when he saw one person fall to the ground while the two others continued to fight. The witness’ screams attracted other members of the public including the casual labourers who were around the construction premises. The person who had initially started fighting started running had injured the one who had fallen on the ground. The person who had fallen on the ground was bleeding from the back. He fell on his back and he lay on the ground looking up.
  6. According to PW 2 the people who were fighting were not known to him. After the person who was running had been apprehended and the police visited to the scene , he went back to his work to wind up on his tasks of the day. The body of the deceased was taken to the Mortuary. He later recorded his statement at Mtwapa Police Station; he identified the accused person at the dock in court and stated that the accused person was the one who was initially fighting with the deceased and he was the one who attempted to escape but was apprehended.
  7. The witness told the court that he did not see the object used in injuring the deceased. When cross examined he confirmed that he narrated his statement in Swahili. He saw a third person cross the road to join the two others who were fighting. He did not know what had happened to the person who fell. After the accused person was apprehended he left and returned to his place of work. The witness could not tell if the persons fighting were workers at the construction site. He learned that the deceased had been stabbed with a knife although he did not know if it was the 3rd person who had stabbed the deceased.
  8. PW 3 Dr. Mwidadi Omar, told the court that he was a government analyst from the Government Chemist Department and he had a degree in Analytical Chemistry from the International University of Africa which was in Khartoum, Sudan and that he had graduated in 2007. He had worked as an analyst for more than 10 years and he was gazetted under Gazette Notice No. 9025 of 1st August, 2018. He had a Government Analyst report dated 11th March, 2022 and the exihibit memo that he ahd received from PC Mailu David from DCI Kilifi South. The memo was received on 15th October, 2021 forwarding 2 exhibits namely:-
  9. Kitchen knife – stained
  10. Blood sample from the deceased
  11. PW 3 told the court that he did a DNA analysis and the results confirmed that the kitchen knife which was exhibit A tested negative for human blood. There was no DNA profile generated from the knife. The blood sample generated  DNA of a male profile. The knife was produced in court. He was not able to establish what kind of stains were on the knife. He produced the DNA reportt as Pex 2 and the exhibit memo as Pex 1. The knife with a black handle was marked as MFI P3.
  12. When cross examined he stated that there was no traces of human blood on the knife. There was no DNA profile generated from the knife.
  13. PW 4 Tembo Kadenge, told the court that he was a casual labourer and that the deceased was his younger brother. He recalled that on 15th October, 2021 he was at Coast General Hospital Mortuary to identify the body of his brother for post mortem. According to him his brother was stabbed with a knife on the back. He was not at the scene of the murder when it happened.
  14. PW 5 Dr. Gabriel Mugola, based at Coast General Teaching Referral Hospital told the court that he held a degree in Medical Surgery from University of Nairobi. He held a post graduate Diploma in Diabetes Management from University of South Wales and had worked at Coast General Hospital from 2008. He had a post mortem report in repect to the body of Maurice Tembo conducted on 15th October, 2021 at the Coast Provincial General Hospital Mortuary by Dr. Saida who was well known to him and had worked at the Civil Servant Clinic where she was at the time of his testimony.
  15. According to the witness the Post mortem was also stamped with the Hospital stamp. The body was identified by Tembo Kadenge the brother and George Mbaru – the cousin to the deceased. According to the witness the general observations were that the clothes were yellow  with a brownish belt, red boxers, white polo shirt , white vest with blood stains. There were sharp marks on the vest and the tshirt.
  16. The witness told the court that the body was a male african; 35 years of age. He was well nourished. He had a good physique and he was 177 cm tall. The Post mortem changes and assessment at the time of death – the body was refrigerated. The external appearance was that:-
  17. Peripheral cynosis
  18. Bruises below right eye
  19. There was a sharp wound about 3.5 cm with sharp margins at the back below left Scapula about 8 cm below.
  20. PW 5 told the court that there was no fracture noted and no other bruises. On the internal appearance, the witness told the court that:-
  21. The respiratory system left haemothorax (massive) with punctured
  22. Cardio – vascular system –punctured aota with haedipelilandum. The heart looked normal. All other systems were normal.
  23. Dr. Saida concluded that the cause of death was a haemothorax shock with massive left haemothorax secondary to incisional deep cut wound in the back. He produced the post mortem report which was signed and dated 15th January, 2021 stamped as Pex 4. When crossexamined he stated that there was a sharp mark on the vest and the tshirt.
  24. PW 6 Huley Kadenge, told the court that he came from Kilifi and he worked as a driver. The deceased Maurice Tembo was his cousin. On 15th October, 2021 he recalled he went to the Coast General Hospital to identify the body of the deceased for Post mortem. He saw that he had a stab wound on the back near the spinal cord. The deceased was a casual labourer in Mtwapa and he died at Radiant Apartment – Cool View Area. He did not know who stabbed his cousin. When cross examined he confirmed that he was not at Mtwapa when the deceased was killed. He learned of the murder from a phone call.
  25. PW 7 CPL Joseph Mutie, told the court that he was attached at the DCI headquarters in the Photographiuc department. His duties were to analyse CCTV footage, document crime scenes using audio visual and photographic analysis in accordance with Section 78 (a) and 106B of the Evidence Act. He was gazetted under Gazette Notice No. 10784 of 15th December, 2006. He recorded an exhibit memo dated 1st November, 2021 from one No. 100474 PC Mailu David of DCI Mtwapa. He brought sealed Khaki envelop with a flash disk constaining a CCTV footage recorded on 10th September, 2021; the clip was in MP4 format. Upon receipt he verified the clip was a raw copy.
  26. The witness told the court that he captured the images from the footage. The first and second photographs showed the victim wearing khaki trousers with a white tshirt and carrying a black bag standing with 3 other people at the construction site at 17.31.40 hours to 17.31.54 hours. It was captured on the camera number 2 on 10th September, 2021 around 1732 hours. The suspect was around the site and walked over to greet the victim. Between 17.32.06 to 17.32.07 hours the suspect reaching for a knife at the back of his trousers using his right hand while still holding the victim by the collar. The victim dropped his bag trying to free himself  from the attackers.
  27. The witness told the court that at 17 hours 32 minutes and 24 seconds the suspect and the victim were struggling. Another man wearing a white t-shirt and black trousers picked a stone and tries to save the victim by throwing a stone at the suspect. Photograph No. 7 to 10 according to the witness showed that the struggle between the suspect and the victim goes off camera. The third person tried to intervene by throwing stones at the Suspect.
  28. According to the witness photograph 11 to 13 at around 17.32.26 hours to 17.32.35 hours the three men struggle and went away from the camera and the victim was captured falling on to the ground. The man trying to rescue the victim continued to fight suspect throwing stones. Part of the deceaased legs were captured by the Camera laying down.
  29. Further PW 7 told the court that photos 14, 15 and 16 were for the time between 17.36.30 to 17.36. 42; the footage showed several people around where the victim had fallen. The suspect moved away from the camera. Photographs 17 and 18 were for the time between 17.36 and the footage showed the victim lying on the ground and the suspect was confronted by a mob. The victim was lying motionless on the ground. The images were captured. He verified that the photographs No. 1 to 18 were captured from the footage and saved on a flashdisk; the same were not modified during the process of production. The report dated 28th April, 2022 and the certificate of even date. The exhibit memo dated 1st November, 2021 was produced as Pex 5 (a) and the report produced as Pex 5(b); copy of the gazette notice dated 5th December, 2006 was produced as Pex 5(c). The bundle of 18 photographs was produced as Pex 5(d); flash disc as Pex 5(e); brown khaki envelop used to carry the exhibits produced as Pex 5(f).
  30. When cross examined he stated that he verified the footage through a software and established that there was no interference. He analyzed the footage and he prepared the report. According to the witness it was the suspect stabbed the victim. The suspect was the one who had the knife.
  31. PW 8 PC Mailu David, attached at DCI Kilifi South told the court that he had investigative duties. This case was minuted to him on 9th October 2021; on the same day at around 18 hours he received a phone call from PC Dennis Semek who requested him to accompany him to a murder scene. The scene was at a construction site by the name of Radiant Apartment. When they got to the scene they found the deceased lying in a pool of blood facing up. He was bleeding from the back, there was a blood stained knife about a metre away close to the bleeding victim. The deceased was wearing a black trouser with a white shirt and he had an injury on his left check.
  32. The witness made inquiries on what had happened and he was told that the accused person followed the deceased and started fighting the victim and in the process the accused person produced a knife from his back pocket and used it to stab the deceased who died on the spot. The accused person tried to run away but he was arrested by members of the public. The scene was processed and the body of the deceased moved to the Coast General Hospital Mortuary. Whereas the suspect was taken to a health care centre for treatment.
  33. The witness told the court that he took the knife and kept it as an exhibit. The knife was produced as Pex 3. It had a black handle. On 12th October, 2021 he went to Shanzu Law Courts to seek for detention orders to enable him complete his investigations and the the orders were issued. He recorded the statement and on 15th October, 2021 attended a post mortem where the doctor indicated that the deceased died due to a haemoragic shock.
  34. He told the court that he prepared an exhibit memo on 15th October, 2021  which he produced as Pext 1 and forwarded the blood specimen from the deceased to the Government Chemist together with the knife for analysis. The results were received. The incident was captured by a nearby CCTV camera that was on a nearby building on the day of the incident. On 1st November, 2021 he requested through an exhibit memo,, the photographict section CID  Headquarters  to produce still pictures of the CCTV footage. He had the exhibit memo which he produced as Pex 6 dated 28th October, 2021. The file was forwarded to the ODPP office after they concluded their investigations and on 2nd November, 2021 the suspect was charged with the offence before court.
  35. According to PW 8 the accused person had a wife who he had separated from and she developed a relationship with the deceased. PW 8 confirmed that he did not establish if the deceased and the accused knew each other but the accused said that he had warned the deceased to stay away from his wife. The accused person followed the deceased to his work place and attacked him which incident was captured on the CCTV camera. The witness identified the accused person in the dock in court with the blue tshirt.
  36. When cross examined he stated that the Government analyst said that there was  a match  of the DNA profile on the knife from the deceased linking the accused to the offence. The CCTV footage was received on 10th October, 2021 and was forwarded for analysis. He informed the forensic analysts about the murder case and they advised that they would visit Mombasa and retrieve the footage.
  37. According to the witness, the accused was seen removing a knife from his pocket. The deceased was Maurice Tembo. Samuel was a watchman at the site but he had not been able to trace him. He also did not trace the cousin to the deceased who tried to intervene and separate the deceased from the accused. CCTV footage analysis was done at the CID headquarters; it took 5 months to retrive the information.
  38. When reexamined he stated that apart from the CCTV footage there were eyewitnesses at the scene. The knife did not generate the DNA profile.

The Defence Case

  1. The Accused person testified as DW 1 and told the court that he was Chai Jabiri, an electrician and a resident of Kilifi. He was aware why he was in court. He recalled that on 9th October, 2021; he was at Radiant Apartment; he was on duty. It was in Maweni, Mtwapa. He was doing some piping work at a construction site in the same house. At around 5 pm, his fellow artisans (fundis) that was Maurice Tembo and Rama Kenga started fighting and he went to separate them. He asked them what the problem was and they intimated that it was because of a lady called Pauline. He tried to calm them down telling them that they were colleagues and that they should not fight over a girl.
  2. According to DW 1 when Maurice was told that he became furious and abused him but could not repeat the insults in court. The two attacked him and started beating him as Maurice was attacking him. He had his tools of trade and had a pair of pliers, tester and a knife. When Maurice beat him he removed his knife and threatened Maurice with it. When Maurice saw the knife he moved back and did not attack him again. He moved aside and three people followed him; they were all fundis by the names of Maurice Tembo, Hassan Chome and Ngala.
  3. He told the court that he went and put his tools in the tool bag and they came up to where he was. They let Maurice speak up and he said to the witness ‘Tumalize dose’ meaning lets complete the dose. That was when Ngala slapped him; Hassan was holding a knife. DW 1 pushed Maurice and the knife Hassan was holding which he wanted to stab DW 1 with stabbed Maurice. Hassan had his own knife not the one he had earlier. People called the police officers who came and escorted him to the police station. According to him Hassan was one of the 7 prosecution witnesses who testified. Pauline was not one of the prosecution witnesses. The investigating officer had said that the knife had blood stains but of an unknown person. His DNA was not  on the knife. DW 1 told the court that the CCTV was screened; it did not show what went on.
  4. When cross examined, he stated that he had a knife as part of his tools of trade. He threatened Maurice and the same people assaulted him. The police rescued him and took him to hospital; although he did not report the assault. He had not called Samuel, Pauline or Rita as his witness. He knew Maurice Tembo as they worked together. He did not know that Maurice had had a relationship with his wife and that was not why he attacked Maurice.

Analysis and Determination

  1. Considering the testimonies of both the prosecution and defence it was now upon this Honourable Court to determine whether or not the offence of Murder had been proved beyond reasonable doubt.
  2. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. The accused person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased. Section 203 of the Penal Code provides the elements of the offence as follows: -

“ 203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

  1. In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:

“For the offence of murder to be proved, there are three elements 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 caused the death of the deceased and (c) that the Accused had the malice aforethought.”

  1. On the first element of death and cause of death, PW 5 testified that the cause of death was hemorrhagic shock with massive left hemothorax secondary to incisional deep cut wound in the back. He produced the postmortem report as evidence. The testimony of PW10 corroborates that of PW8 who narrated the circumstances under which the deceased met his death and who also had investigated the offence.
  2. On the element of the unlawful act which caused the death of the deceased, the prosecution bears the legal burden of proving that the accused was linked to the death of the deceased. This can be proved through evidence that the accused was at the scene of the crime when it occurred .The  CCTV footage and the testimony of PW 7 was that he captured the images from the footage. The first and second photographs showed the victim wearing khaki trousers with a white tshirt and carrying a black bag standing with 3 other people at the construction site at 17.31.40 hours to 17.31.54 hours. It was captured on the camera number 2 on 10th September, 2021 around 1732 hours. The suspect was around the site and walked over to greet the victim. Between 17.32.06 to 17.32.07 hours the suspect reaching for a knife at the back of his trousers using his right hand while still holding the victim by the collar. The victim dropped his bag trying to free himself  from the attackers. Further PW 7 told the court that photos 14, 15 and 16 were for the time between 17.36.30 to 17.36. 42; the footage showed several people around where the victim had fallen. The suspect moved away from the camera. Photographs 17 and 18 were for the time between 17.36 and the footage showed the victim lying on the ground and the suspect was confronted by a mob.
  3. According to PW 2  on 9th October, 2021 he recalled that he was at the site and was working as usual. He issued tools to the workers. At 5 pm people were paid and they left. He checked through the stores and confirmed that they were locked. At the road he saw 2 people pushing each other; he also saw the 3rd Person across the road where the two people were and he joined the fight. He did not know if the third person was separating.
  4. PW 2 started going towards the fight while creaming when he saw one person fall to the ground while the two others continued to fight. The witness’ screams attracted other members of the public including the casual labourers who were around the construction premises. The person who had initially started fighting started running had injured the one who had fallen on the ground. The person who had fallen on the ground was bleeding from the back. He fell on his back and he laid on the round looking up.
  5. The question of whether it is the accused who caused the death of the deceased is answered in the affirmative. In my view the narration of PW 2 places the accused at the scene of the crime  and even the details and the injury inflicted on the deceased which are corroborrated by the CCTV footage and the still photos produced by PW 7.  Even if we were to go by his version that it was not his knife which slashed the deceased, he admitted that he is the one who pushed the deceased to the person who was holding the knife.  He would have been liable under the doctrine of causation.
  6. That version was however discounted  by the evidence of PW1 , PW7 and The CCTV footage.  The 3rd person who joined in is clearly seen picking stones so as to separate the two.  He was not armed with anything else.  In fact at some point in the footage, the knife the accused person had drops down and he picks it up again.  This  is after the deceased is seen to be lying on the ground.
  7. Its is true the CCTV footage does not show the entire stabbing incident as the kept moving, but the accused is seen holding the deceased by the neck and lifting his hand up, and then the deceased drops down to the ground.  The 3rd person is some distance away and that is when the 3rd person throws a stone at the accused person and the knife drops.  All this happens within seconds and there is no where the accused is seen going back to his bag as he stated.  After the deceased dropped down, he turned to the 3rd person who had tried to separate them and the two are seen throwing stones at each other before other people join in.
  8. This is one of the few cases where we have a clear footage of what went on and the accused person is seen removing the knife from his pocket while holding the deceased. It is also very clear that the 3rd person who tried to stop him only used stones and the accused person never went to keep his knife away.
  9. The knife fell down in the ensuing commotion, he is seen picking it before he was also overpowered.  This drop of the knife can explain why no DNA was developed from the same.  That not withstanding, the court is satisfied , beyond reasonable doubt, that the accused person inflicted the injury that caused the death  of the deceased.
  10. On the element of malice aforethought, the prosecution must prove beyond reasonable doubt that the accused intended to cause the death of the deceased. Malice aforethought is defined and well explained under section 206 of the Penal Code as follows:-

“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 of 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 flight or escape from custody of any person who has committed or attempted to commit a felony.”

  1. This being a murder charge, the prosecution had the onus to prove mens rea and actus reus. The actus reus has been established. The mens rea of murder is traditionally called malice aforethought and it connotes existence of culpability or moral blameworthiness on the part of the accused person.
  2. The Court of Appeal in Bonaya Tutu Ipu & Another Vs Republic [2015] eKLR stated as follows on the prove of malice aforethought; - “It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances.
  3. Further in the persuasive decision of Chesakit Vs Uganda, CR. app. no. 95 OF 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex v Tubere s/o Ochen [1945] 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue: It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick.
  4. PW 8 told the court that the the accused person had a wife who he had separated from and she developed a relationship with the deceased. PW 8 confirmed that he did not establish if the deceased and the accused knew each other but the accused said that he had warned the deceased to stay away from his wife. The Accused person did not dispute the alleged relationship between his wife and the deceased; he only stated that he had found out about it.
  5. Malice is to be inferred from the way the deceased lost his life and the injury inflicted on him by the accused person .  The CCTV footage captures the accused person walking to where the accused person was standing.  He appears to greet him but then grabs him by the throat , before removing the knife from the back of his trouser pocket.   The act of arming himself with a kitchen       knife and going to the deceased place of work and initiating the physical attack shows a pre determined mind. This is sufficient evidence  to  enable the court to safely conclude that the accused had malice aforethought.  He planned, armed himself, and went on to execute the attack that led to the death of the deceased,
  6. I have considered his defense and note that the same has not dislodged the evidence of the prosecution in any way. The role of the defense is to punch holes into the evidence of the prosecution with the aim of creating reasonable doubt and if any is created, the benefit should be given to the accused person. The accused stated that he was only defending himself after the deceased and two other colleagues of his attacked him therefore putting in play self defence and that it was the deceased and the two other colleagues who followed him to where he was putting his tools. This evidence cannot be true as the CCTV camera recorded the whole incident and how the deceased lost his life. Further from the CCTV footage and the evidence , the deceased is seen calmly standing before the accused person goes up to him and initiates the attack. The 3rd party only came in to separate the two and rescue the deceased from the accused who was armed with the long kitchen knife which is properly captured on camera. It was not a case of self defence.

Conclusion and Disposition

  1. In the end, having considered the evidence before me and the relevant laws, it is my finding that the prosecution has proved the offence of murder beyond reasonable doubt. The accused is therefore found guilty of the offence of murder contrary to section 203 as read with Section 204 of the Penal Code Cap 63  Laws of Kenya and is hereby convicted accordingly.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …28th….…………DAY OF ……November…………………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

The accused K person  and his advocate Ms Kuria

M/s. Bebora-Court Assistant;

Ms. Maina- State Counsel

    The Republic VS CHAI JABIRI The Republic VS CHAI JABIRI