REPUBLIC OF KENYA
IN THE HIGH COURT AT MAKUENI
CRIMINAL CASE NO. 203 OF 2017
REPUBLIC
-VS-
GILBERT MAINA
PAUL ODOYO NGOMA
JUDGMENT
1. The accused persons, Gilbert Maina and Paul Odoyo Ngoma, are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 of the Laws of Kenya.
2. The information states that; “On the 24 th and 25 th day of August 2016 at Mwingi District Hospital, in Mwingi Sub County within Kitui County, the accused persons, jointly with others not before Court, murdered Ngadi Malia”
3. The accused persons pleaded not guilty
4. The prosecution called twenty-one (21) witnesses in support of its case.
Prosecution’s case
5. PW1 was a protected witness whose evidence was that the witness was at work at Mwingi Level Five hospital at outpatient where the witness had reported at 2:00 pm and continued to 6:00 pm. At 6:50 pm, a patient arrived from (withheld). He was 27 years old. He had head injuries secondary to gunshots. When patient arrived, the nurse gave him first aid and took history from patient who said he had been shot and had pretended to be dead, then crawled up to the road and a good Samaritan took him to Ukasi Police Station, then Ukasi Dispensary. This was also in the treatment notes from the dispensary. PW1 wrote his/her own notes of 24/08/2016 at Mwingi Hospital and produced the certified copies as P.Exb 2 .
6. PW1 admitted the patient for an investigation. Nurse by the name Nzabu took the patient though radiotherapy and X-rays were done.PW1 continued with his/her job and left at 8:00 pm.
7. The following morning, PW1 reported to work at 8:00 am and heard that there was a man at the male ward who had been shot dead at 2:00 am. PW1 realized it was the same patient he/she had dealt with the previous day. PW1 recorded a statement in Machakos on 25/08/2016. PW1 saw the body which was taken to the morgue; saw injuries on abdomen penetrating inwards. The floor cemented floor was damaged. The patient was not known to PW1 and PW1 did not know who shot the patient.
8. On cross-examination by Mr. Muchoki , PW1 said that he/she used to work at Mwingi Hospital and was a registered clinical officer qualified in 2012. PW1 had worked six years since July 2013 with duties of treating in and out patients. On 24/08/2016, PW1 received patient Ngandi Malia at 6:50 pm. He was out of danger. He only had referral notes but no other identity documents. He was conscious and alert. He knew where he was. He said he was taken from his house in Kitui and told to lie down (facing down). He was able to tell when he was at a Petrol station. Patient came with referral notes. The referral notes said he was conscious when taken to Ukasi Dispensary. PW1 admitted the patient, administered some medicine to him and put him on intra-venous (IV) fluids.
9. PW1 had reported on duty at 2:00 pm and was to leave at 8:00 pm but left at 8:30 pm after waiting for a colleague. PW1 got information of shooting at hospital from somebody he/she could not remember. PW1 went to view the body at the ward. It was covered by a bed sheet on the floor. PW1 un covered the body as PW1 was allowed to confirm that a person is dead. PW1 did it out of curiosity as it was not within his/her responsibility to do so.
10. On cross-examination by Mr. Onyango , PW1 said that he/she had diploma, qualified as o a clinical officer, worked with doctors and would do procedures e.g., operations and . would receive patients as he/she was authorized to do so. PW1 agreed that he/she was not a doctor. PW1 was shown treatment notes of Ngandi Malia, 27 years old male dated 24/8/2018 marked as DMFI -1. PW1 conducted physical and local examination on the patient. Physical was General. Local was of the affected areas. The witness noted injured area had – yellow bandage back side of the head. It was covering the wound at the back of the head. It was alleged to be a gunshot wound. PW1 removed bandage and viewed the wound. PW1 saw about two gunshots wound at the back of the head.
11. PW1 could not tell the actual location of specific wounds in head and back. PW1 had worked in the hospital for three years. PW1 noted cut on ear, bruise on right eye. The patient told PW1 that he was forced into a police motor vehicle and told to lie facing down. PW1 believed his story. The patient told PW1 that he pretended he had died. PW1 agreed that he/she didn’t know any of the accused persons.
12. In the ward next morning, PW1 found body lying on the floor. On the night of the shooting there was a doctor in charge. There was radiographer and a doctor on call Doctor Nkulete. When PW1 went in, it was a crime scene. PW1 uncovered the body. No police officer was present. Police came and left. PW1 wanted to confirm whether it was same patient he/she dealt with previous day. PW1 saw injuries. There were penetrating injuries on the abdomen. People walked in and out. Scene of crime was not protected. Anybody could see him. The floor was damaged. Shooting evidence on floor was visible e.g., cracks.
13. PW2 was a protected witness and his/her evidence was that he/she was on night duty at Mwingi district Hospital. The witness reported on duty at 7:30 pm and was given a report that there was a patient brought from Ukasi Dispensary with gunshots. They would get reports as they signed in. Towards 10:00 pm, PW2 went to maternity ward and as he/she walked towards ward, he/she saw two gentlemen ahead of him/her. They walked ahead. There were no lights outside. PW2 caught up with them. PW2 saw them outside his/her department and asked them “habari zenu naweza wasaidia” they never answered. They were facing the other side. PW2 saw their backs.
14. PW2 opened the door of ward , entered and closed it. The two men were still outside. PW2 heard them talking between themselves. The language was Kikuyu language. PW2 went through another door to the patient and talked to him. The patient said he was Ngandi Malia. He was with a relative , one Mutua. As they talked, PW2 covered him. PW2 started taking particulars and sought what happened. The patient told PW2 that he was hungry. PW2 took blood pressure which was very low. The patient was anxious and said he had been shot by a gun. PW2 went to another room and asked patient whether he had seen people walk out. PW2 and Mutua opened the door but they were not there. While PW2 checked door, he/she saw them come in. PW2 knew them via the jackets they wore - one green colour and other black.
15. PW2 decided to call in charge and said that he/she was seeing a stranger within the ward. PW2 told her to call doctor to see the patient. Another patient said there was food which could be given to the patient Ngandi. The Patient said he afraid and wanted to be hidden. He said he called his (withheld) to come for him. PW2 asked him his problem. It was at 11:00 pm. PW2 went to the patient and heard footsteps. Nzambu came with two persons . She told PW2 that they were policemen to see patient. They talked to the policemen. They said they were to get security for the patient PW2 left with Nzambu . While outside, the (withheld) of Ngandi and another came.
16. Doctor Nkulete came and saw patient. The (withheld) and another came to see patient. After doctor left, they talked to him. PW2 was insecure and told doctor to go with him/her. PW2 remained with patient. PW2 waited for security but it never came. At 2:00 am, PW2 heard a gun gunshot. PW2 was in a separate room. There were more than ten gunshots. PW2 heard Patients screaming. “The (withheld) to Ngandi said “You are killing him in my presence?” PW2 switched off his/her phone. PW2 heard Nzambu calling. She asked whether PW2 was there. Also, in charge of hospital M O H and two policemen who had come earlier with Nzambu. PW2 came out and went to where patient was and saw him on the floor lifeless.
17. PW2 saw his body. Blood was on the floor. The police took over scene. They moved patients from that room to another place. PW2 left at 8:30 am after hand over. PW2 returned the following day. The body had been removed and taken to a morgue. The following day PW2 was contacted by police. PW2 identified a request for an x-ray by a radiologist-P.MFI – 1, a card which PW2 wrote of R4/8/2016 - P.Ex 2, a referral letter/ note Ukasi Dispensary of 24/08/2016 -MF1 2. PW2 couldn’t identify the two people who were walking ahead of him/her in hospital. PW2 could remember the physique of the two men. PW2 recorded statement at police station.
18. On cross-examination by Mr. Muchoki , PW2 said that he/she was a nurse at Mwingi Hospital. His/her duties were to take care of patients. On 24/08/2016, PW2 reported at 7:30 pm. There was a handover done by Ann Njenga. . PW2 did not receive the patient Ngandi Malia but knew he was there during handover and knew that patient was coming from Ukasi. The nurse in ward gave same information. By time of handover, the patient was not in ward.
19. PW2 was not aware that the patient arrived at 6:50 pm. After hand over, PW2 attended patients in surgical ward. By then, Ngandi had not been brought there. Handover was thirty minutes. At 9:00 pm, PW2 was in ward and Ngandi had not been brought to the ward. At about 9:00 pm, PW2 walked headed to maternity ward and saw two men at around 10:00 pm. From maternity, PW2 was going to male surgical ward along corridor and saw two men around thirty metres away. The light was available but not well lit. When walking they went to dark area. PW2 could tell what they wore. One was in light green jacket and another black jacket. They were tall and light. PW2 saw x-ray of 24/08/2016. PW2 reported on duty on 24/08/2016 and the incident was at 2:00 am.
20. On cross-examination by Mr. Onyango , PW2 said that the police arrived and took over the scene after 3:00 am. Other patients were removed from scene. The place was closed by police to stop interference with scene. The place had three doors. The scene was protected. The doors were closed to protect access to scene. PW2 left hospital at 8:30. The medical superintendent was allowed to the scene.
21. PW3 was a protected witness and his/her evidence was that on 24/08/2016 he/she was at Nairobi and received a call from a girl friend of his/her (withheld) Ngandi Malia. She had received information that Ngandi had been arrested by policemen. PW3 decided to tell relatives. The girlfriend later told PW3 that Ngandi called her. PW3 heard that the people who arrested Ngandi tried to kill him. PW3 told the girlfriend to give number Ngandi was using. PW3 was given a number and called Ngandi and was given number of a doctor at Ukasi Dispensary. The doctor told PW3 that the patient was there and had gunshots and had been given first aid. Doctor said they were looking for means to take him to Mwingi general Hospital. PW3 told relatives and planned to travel. PW3 travelled at 6:00 pm and arrived at 10:30 pm at Mwingi. PW3 talked to the gatemen and was told it was not visiting hours and thus could not be allowed in. The gateman talked to nurse on duty and then PW3 was allowed in at11:00pm.
22. PW3 was with a friend from Nairobi and when they entered, they were told to wait first. As they were waiting, two people arrived with two watchmen and talked to the watchmen. They said they were CID officers from Mwingi to talk to the patient. They asked who PW3 and the friend were and PW3 said they were relatives. PW3 told them how he/she got police call while at Nairobi and came to see patient. The doctor allowed the officers to talk to patient and they went with nurse.
23. After about 15 minutes, they came out and left and PW3 was asked whether they found patient and talked with him. PW3 gave food to patient and he told them what happened. He told them that there were four officers who arrested him at Kitui and took him into a white land cruiser where he was forced to lay facing down. They went to Kitui police station and took another police officer who he described as (waria). The police officer asked them where they were going and they said to Ukasi. After a short while, they stopped and all officers went to the bush with Ngandi. They ordered him to face downward and shot him five times. He then pretended to have died. The officers said they had finished him and left.
24. Ngandi used his shirt to wrap his head as he was bleeding. He crawled to the road and saw boda boda person who he asked to help him go to a hospital. The boda boda person took him to road block where he got a note and took Ngandi to Ukasi dispensary where he got first aid. The doctor at Ukasi called Ukasi police station and Ngandi was taken to Mwingi District Hospital by a police motor vehicle. He was appearing fearful. “Alikuwa anawaza sana” .
25. PW3 and friend saw a door open and thought it was the wind. The friend closed it but it opened again. Two people were at the door one pushed him and he fell, the other remained at the door, while the other one went straight where the patient was in bed. The Patient said it was the same person he who took him to the bush and said; he has come “kunimaliza” PW3 was seated on different bed opposite him. The man removed pistol and started shooting. He shot three times and PW3 asked him why he was killing his/her (withheld) in his/her presence “what has he done to you? The person continued to shoot. Patients went under the beds. PW3 was seated there and fell down and hid under the bed.
26. The patient fell down and officer continued to shoot him. Shooting continued until patient died. PW3 could see shooting going on while under the bed. PW3 couldn’t tell the number of shots fired. Then the officer left. After 30 minutes to one hour, police officers came. Nurses told them to leave the ward. When PW3 woke up, he/she saw police officers and nurses. The patients and relatives were removed from the ward and taken to another room.
27. PW3 stayed up to morning then CID officers from Machakos came to investigate. PW3 and others were taken to another room where they recorded statements and then went home. They never went back to hospital. PW3 heard that post mortem was done but never attended. They received the body for burial. PW3 saw the person who was shooting. He was black and not too tall but medium. He wore black jacket. PW3 couldn’t remember the trouser colour. He held gun with right hand. PW3 could identify the person if he/she saw him. PW3 could not identify the person who was shooting. PW3 never saw the photos of the deceased. PW3 identified the photos of deceased at hospital after shooting - Twenty pictures MFI 3.
i. See the hospital and bed.
ii. Bed where the patient had lied on.
iii. Ward.
iv. Bed patient was sleeping on.
v. Covered body.
vi. The deceased body.
vii. Deceased body.
viii. Deceased body.
ix. Gunshots at backside.
x. Bed he was lying on showing gunshots.
xi. The plot (premises he was residing in).
xii. Same plot he resided in.
xiii. The room he used to occupy.
xiv. Same showing room he occupied.
xv. The houses he occupied.
xvi. Deceased house.
xvii. The plot and room he occupied.
xviii. Inside room he used to live in.
xix. Same room inside.
xx. Same room.
28. At his death Ngandi was over 18 years but PW3 couldn’t recall actual age but said he was below 30 years.
29. On cross-examination by Mr. Muchoki , PW3 said that he/she received call from girl friend of Ngandi known as Esther Muthoni. PW3 knew her by then. PW3 received call between 10-11 am. Muthoni told PW3 that Ngandi had been arrested. PW3 went to tell relatives about it. Muthoni said he had been arrested by police officers of Kitui. She was told by care taker of the plot through phone call from care taker. She called PW3 later and told PW3 that Ngandi told her that he had been shot and officers tried to kill him. She told PW3 that he had been arrested about 7:00 am.
30. PW3 called Ngandi via phone number given by Muthoni. PW3 did not know it off head. PW3 talked to Ngandi on phone. He lost wallet with money and his phone. When PW3 called, boda boda person responded and gave the phone to Ngandi. The phone was owned by boda boda person. Ngandi told PW3 that he reported at road block. PW3 also talked to doctor at Ukasi Dispensary and identified himself/herself. Doctor told PW3 that Ngandi was brought by a boda boda person with gun shots and he was giving him first aid. Ngandi said that while at the bush after being shot, he could hear and had not lost consciousness. PW3 informed relatives the same information from Ngandi and called a friend who agreed to accompany him/her.
31. Ngandi said that he was arrested by four officers and he knew them. The fifth one was added at Kitui police station and didn’t know him (Woria). PW3 couldn’t remember whether Ngandi said that he was blind folded when taken to the bush. The four included driver and the 5 th was a woria from station Kitui. Ngandi remembered woria was shooting him. Ngandi never told PW3 whether he was tied when he was taken to the bush. PW3 and friend arrived in hospital between 10-11 pm. They entered hospital past11:00 am. Ngandi explained what happened and showed them gun shots – head (behind) backside, side of head. He had no shirt. He covered himself with bed sheet. He had torn his shirt to wrap his bleeding head. It was besides the bed. At 2:00am the doctor opened and PW3’s friend closed it. They did not see who opened it.
32. PW3 could not see anybody. The second time the doctor opened and PW3’s friend went to shut it a man hit him with shoulders and he fell and PW3 screamed . Ngandi said that said These are the people who wanted to kill me in the bush and have come to finish me. He could see the two people. One at the door and one who came near the bed. PW3 saw both of them when Ngandi was shouting and in panic mode when he said that the one who entered was not holding a gun. He removed pistol from waist. He never said anything. The man who shot was medium height, black. There was a thin person who remained at the door. He was brown. He wore white cap. PW3 couldn’t remember the colour of the clothing. When one man entered, he started firing shooting Ngandi. After three shots, PW3 talked to him. He shot one by one not in quick succession. He shot from stomach upward. PW3 had panicked but was conscious of what was happening. The other shootings were in quick succession. When he fell from bed, the officer continued to shoot him.
33. While patient was down the shots were many. Then the one shooting and one at the door left together. When police came, PW3 moved out from under the bed and was taken to an identity parade. PW3 identified a person in the parade. PW3 identified the person who shot Ngandi. PW3 didn’t see any of the persons in court.
34. On cross-examination by Mr. Onyango , PW3 said that Ngandi said he knew the officers who arrested him. He said they were four of them. He said they were not in uniform. He said they were CID officers from Kitui Police Station. He told PW3 that while in the land cruiser, he was ordered to lie facing downward. He was with three officers and one officer went to drive the motor vehicle. He told PW3 there were no other officers save the four. At the road block he knew it was a road block who stopped the motor vehicle and asked ‘ mnaenda wapi ’? After crawling to the road, he went to same roadblock and was asked what happened and he said the police wanted to kill him.
35. He was given note to go in the hospital. He saw bush as he was not blind folded. When they alighted from motor vehicle, he saw bushes. There were five officers. At police station one officer did alight. He told PW3 that he was still facing down lying down. At the police they stopped by road side. He was removed and taken to the bush. He was ordered to face downward and woria started shooting him at the bush. Other officer added shooting when he faced downward. They were saying waria is a sharp shooter.
36. The size of the ward was same size of the court room. The doctor was like at the witness box. The beds were about three or four from the door. The head was next to the wall. When two officers came, he saw both. When PW3’s friend screamed, Ngandi looked and saw the two officers. PW3 and friend stood at the door. One entered. The lights were on. PW3 saw the person who was shooting but did not see him in court. PW3 was seeing the accused in court for the first time. PW3 did not see them in the identification parade. PW3 went to identification parade 10 days after the incident.
37. PW4 was a protected witness and his/her evidence was that; on 24/08/2016, PW4 was in Nairobi and was called by a friend and told that the friend’s (withheld) was involved in accident and was in Mwingi hospital. It was at 10:30 am. PW4 agreed to accompany the friend and they left at 6:00 pm and arrived in Mwingi at 10:30 pm. PW4 was informed the (withheld) had been shot. They bought food for patient in Mwingi before going to hospital. They were stopped at gate to confirm whether there was a patient to be seen. They waited at the gate and were denied entry as two strangers had entered. They were taken to another place and told to wait for a nurse was to escort them. They waited next to maternity ward and later entered and saw the patient who talked to them. It was now 12 -12:30 am.
38. The Patient told them he was taken from his house in the morning by four officers who were not in uniform. He said he knew them. He used to see them at Kitui. They asked him if he was the one and he said yes and they took him to the motor vehicle where he was put in lying facing downward. They took him towards Garissa. They went towards Garissa. They stopped on the way and took him to the bush. He was told to lie down facing down and was shot with a gun. They shot him head and back side. He said he had three shots on head and one on the back. One officer said that with all shots he could not survive. Patient pretended to be dead. They left him there.
39. Later he wrapped his vest shirt on head and crawled towards road. He saw boda boda person and told him to take him where he could get help. They went to road block where they found police officers. He told them what had happened. The boda boda person took him to dispensary where he got first aid then he was taken to Mwingi hospital and arrived at 7:00 pm and was admitted. He had bandage on head and at the back side. He was stable and conscious when talking to them. PW4 didn’t see his back as he lay on his back. He ate food. They stayed with him and the door was opened. PW4 closed it and then opened third time. PW4 went to close it and a person knocked PW4 down. PW4 met the person who pushed him/her. He was a tall man. The patient said they were there to finish him. PW4 saw one person and felt shaken. PW4 couldn’t describe clothes as he/she was shaken. PW4 was still down when patient said “Ni hao wamekuja kunimaliza” . When shooting started, PW4 went under the bed and heard footsteps of the man going to shoot the patient.
40. PW4 hid under the bed. Several shots were fired. They were more than 10 times. The patient fell down from bed when he was being shot. PW4 saw patient later on the floor. That was after the attacker left the place. PW4 was fearful thus did not move out of under bed until two officers came. The officers asked what was happening. They told them that, somebody entered, shot patient and left. Many people came. Some people came later and told people not to go close to that place. They said they were police officers. PW4 was taken to another room in the hospital. PW4 and friend were removed from that ward. PW4 couldn’t remember up to what time they stayed there. They stayed up to morning and were taken to write statement recorded by police officers from Machakos. PW4 left for Nairobi and the friend went home to Kitui. PW4 never went back to hospital again.
41. PW4 did not see or identify the person who attacked patient. PW4 saw patient lying down after the shooting. They never talked to patient again. The (withheld)-PW3 said the patient was already dead. \. Patient was over twenty years of age. PW4’s friend told him/her that name of the patient was Ngandi Musyimi.
42. On cross-examination by Mr. Muchoki , PW4 said that they left Nairobi at 6:00 pm and arrived in Mwingi at 10:30 – 11:00 pm. They were stopped at the hospital gate by the watchman for about one hour. They were told that strangers had entered the hospital. The patient said he entered hospital at 7:00 pm. The strangers entered hospital after patient was admitted. They were told that the strangers were two men. The patient told PW4 and friend that he was taken from his home and taken to Garissa side. Patient said he had been shot. PW4 saw bandage on head (behind) and two both sides and the back side. He was having a sheet. He had his shirt on the bed. Patient told them he was shot side of Garissa in the bush. He said boda boda took him to the road block on the Garissa Road side.
43. The door opened and PW4 shut it again twice. The third time PW4 went to close, he/she met a person at the door step who pushed PW4 with hand backward and PW4 fell behind the door. That was the side patient bed was located. PW4 was so shocked
44. PW4 heard three footsteps towards patient. PW4 didn’t see the type of clothing and did not notice the body structure. PW4 saw a tall person. PW4 was not able to rise up and never screamed upon falling. PW4 heard more than 10 shots. During shooting, there was no screams. People kept quiet. PW4 only heard before shooting “ Hao wamekuja kunimalizia” PW4 didn’t see patient fall nor hear him fall from the bed. From PW4 to patient bed was like two steps. PW4’s friend sat next bed next to patient. The friend never said anything. The incident took like five minutes. PW4 only saw one person. The door was metal door with glass on top. The patient’s name was Ngandi Musyimi.
45. On cross-examination by Mr. Onyango , PW4 said that when the person came in, he/she was beside the door. The door opened inward. PW4 didn’t hear footsteps outside only for one who pushed him/her down.
46. PW5 was Mwangangi Tangili from Ukasi location. He testified that he was a farmer and a herdsman. He recalled that on 24/08/2016, he was at Kabongo trading centre taking tea then went to take care of his cattle just near the road. Before reaching, he heard screams from across the road. He identified the voices and ran and met Doris Mwende Mutange, his sister and her two children (aged 5 years and 2 years).
47. He asked what it was and she said that a person (wounded) had found them where she sold charcoal. The wounded person had gunshot wounds on the head. He had remained where they had come from. PW5 went to meet the man and found him sitting on the culvert.. PW5 asked his name and the man said he was Ngandi Malia from Kabati. His eye had been gauged out and he had a wound at the back of head.
48. The bullet was still there. He requested to be taken to hospital. PW5 stopped a Garissa bus to take him to the police roadblock before being taken to hospital. PW5 remained behind and called corporal Kyayoya at the station and reported the matter to him. The next day, the OCS Ukasi police station called PW5 and asked him to get the area elders to assist in showing the scene to the police. PW5 waited for the OCS who arrived and they got elders and went to the scene.
49. The lead elder was Mwikali Mwangangi (lady). She traced the footsteps and reached the scene (100 metres from the road into the forest). At the scene, they found blood, two shirt buttons and bullet head. Officer Kimutai who was with the OCS took all these as exhibits. PW5 went and recorded his statement. PW5 didn’t not know who injured the man. The buttons were white and PW5 identified them -two white shirt buttons MFI 3. PW5 never saw the injured man again and later heard that he died.
50. On cross-examination by Mr. Muchoki , he said that he found the injured man at the roadside. It was not wet. PW5 would not know when he was injured. PW5 found him at 2:00 pm. Mwikali Mwangangi -the elder was PW5’s wife.
51. On cross-examination by Mr. Onyango , he said that it was the right eye which had been injured. PW5 sent him to the roadblock and informed the corporal. PW5 confirmed that he was a police reservist. PW5 wanted the corporal to assist in getting a vehicle but he said it was occupied. Mwikali went to trace the footsteps on her own.
52. PW6 was Daniel Mbo Mumube of Ukasi. He testified that his work was boda boda transport. He recalled that on 25/08/2016 he was on duty at Ukasi centre – Barrier area. He was called by corporal Yoya. He rushed there and found him with somebody who was bleeding on the head. PW6 took him to hospital (Ukasi). The patient borrowed PW6’s phone and spoke with his (withheld) in Kikamba. He told (withheld) he was on duty and had been injured. PW6 returned to town. The patient was not known to PW6 and never saw him again. PW6 heard in the news that he had been transferred to Mwingi. PW6 was not called to the station thereafter. PW6 recorded a statement at his place of work.
53. PW7 was George Mululai from Mutomo and a stage attendant of matatus. He testified that on 24/08/2016, he woke up at 4:00 am and went to the toilet. He was at Majengo in Kitui-at a plot where he stayed. As he left the toilet, he met a person who told him to lie down. He complied and was down for ten minutes. He woke up and went to the house and never looked at him. When he woke up, he never saw that person. He prepared and went to work. On 28/8/2016, he was called by an officer from Kitui and he explained all that happened.
54. On cross-examination by Mr. Onyango , he said that he did not know the officer’s name. He was the careta
[...truncated]
IN THE HIGH COURT AT MAKUENI
CRIMINAL CASE NO. 203 OF 2017
REPUBLIC
-VS-
GILBERT MAINA
PAUL ODOYO NGOMA
JUDGMENT
1. The accused persons, Gilbert Maina and Paul Odoyo Ngoma, are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 of the Laws of Kenya.
2. The information states that; “On the 24 th and 25 th day of August 2016 at Mwingi District Hospital, in Mwingi Sub County within Kitui County, the accused persons, jointly with others not before Court, murdered Ngadi Malia”
3. The accused persons pleaded not guilty
4. The prosecution called twenty-one (21) witnesses in support of its case.
Prosecution’s case
5. PW1 was a protected witness whose evidence was that the witness was at work at Mwingi Level Five hospital at outpatient where the witness had reported at 2:00 pm and continued to 6:00 pm. At 6:50 pm, a patient arrived from (withheld). He was 27 years old. He had head injuries secondary to gunshots. When patient arrived, the nurse gave him first aid and took history from patient who said he had been shot and had pretended to be dead, then crawled up to the road and a good Samaritan took him to Ukasi Police Station, then Ukasi Dispensary. This was also in the treatment notes from the dispensary. PW1 wrote his/her own notes of 24/08/2016 at Mwingi Hospital and produced the certified copies as P.Exb 2 .
6. PW1 admitted the patient for an investigation. Nurse by the name Nzabu took the patient though radiotherapy and X-rays were done.PW1 continued with his/her job and left at 8:00 pm.
7. The following morning, PW1 reported to work at 8:00 am and heard that there was a man at the male ward who had been shot dead at 2:00 am. PW1 realized it was the same patient he/she had dealt with the previous day. PW1 recorded a statement in Machakos on 25/08/2016. PW1 saw the body which was taken to the morgue; saw injuries on abdomen penetrating inwards. The floor cemented floor was damaged. The patient was not known to PW1 and PW1 did not know who shot the patient.
8. On cross-examination by Mr. Muchoki , PW1 said that he/she used to work at Mwingi Hospital and was a registered clinical officer qualified in 2012. PW1 had worked six years since July 2013 with duties of treating in and out patients. On 24/08/2016, PW1 received patient Ngandi Malia at 6:50 pm. He was out of danger. He only had referral notes but no other identity documents. He was conscious and alert. He knew where he was. He said he was taken from his house in Kitui and told to lie down (facing down). He was able to tell when he was at a Petrol station. Patient came with referral notes. The referral notes said he was conscious when taken to Ukasi Dispensary. PW1 admitted the patient, administered some medicine to him and put him on intra-venous (IV) fluids.
9. PW1 had reported on duty at 2:00 pm and was to leave at 8:00 pm but left at 8:30 pm after waiting for a colleague. PW1 got information of shooting at hospital from somebody he/she could not remember. PW1 went to view the body at the ward. It was covered by a bed sheet on the floor. PW1 un covered the body as PW1 was allowed to confirm that a person is dead. PW1 did it out of curiosity as it was not within his/her responsibility to do so.
10. On cross-examination by Mr. Onyango , PW1 said that he/she had diploma, qualified as o a clinical officer, worked with doctors and would do procedures e.g., operations and . would receive patients as he/she was authorized to do so. PW1 agreed that he/she was not a doctor. PW1 was shown treatment notes of Ngandi Malia, 27 years old male dated 24/8/2018 marked as DMFI -1. PW1 conducted physical and local examination on the patient. Physical was General. Local was of the affected areas. The witness noted injured area had – yellow bandage back side of the head. It was covering the wound at the back of the head. It was alleged to be a gunshot wound. PW1 removed bandage and viewed the wound. PW1 saw about two gunshots wound at the back of the head.
11. PW1 could not tell the actual location of specific wounds in head and back. PW1 had worked in the hospital for three years. PW1 noted cut on ear, bruise on right eye. The patient told PW1 that he was forced into a police motor vehicle and told to lie facing down. PW1 believed his story. The patient told PW1 that he pretended he had died. PW1 agreed that he/she didn’t know any of the accused persons.
12. In the ward next morning, PW1 found body lying on the floor. On the night of the shooting there was a doctor in charge. There was radiographer and a doctor on call Doctor Nkulete. When PW1 went in, it was a crime scene. PW1 uncovered the body. No police officer was present. Police came and left. PW1 wanted to confirm whether it was same patient he/she dealt with previous day. PW1 saw injuries. There were penetrating injuries on the abdomen. People walked in and out. Scene of crime was not protected. Anybody could see him. The floor was damaged. Shooting evidence on floor was visible e.g., cracks.
13. PW2 was a protected witness and his/her evidence was that he/she was on night duty at Mwingi district Hospital. The witness reported on duty at 7:30 pm and was given a report that there was a patient brought from Ukasi Dispensary with gunshots. They would get reports as they signed in. Towards 10:00 pm, PW2 went to maternity ward and as he/she walked towards ward, he/she saw two gentlemen ahead of him/her. They walked ahead. There were no lights outside. PW2 caught up with them. PW2 saw them outside his/her department and asked them “habari zenu naweza wasaidia” they never answered. They were facing the other side. PW2 saw their backs.
14. PW2 opened the door of ward , entered and closed it. The two men were still outside. PW2 heard them talking between themselves. The language was Kikuyu language. PW2 went through another door to the patient and talked to him. The patient said he was Ngandi Malia. He was with a relative , one Mutua. As they talked, PW2 covered him. PW2 started taking particulars and sought what happened. The patient told PW2 that he was hungry. PW2 took blood pressure which was very low. The patient was anxious and said he had been shot by a gun. PW2 went to another room and asked patient whether he had seen people walk out. PW2 and Mutua opened the door but they were not there. While PW2 checked door, he/she saw them come in. PW2 knew them via the jackets they wore - one green colour and other black.
15. PW2 decided to call in charge and said that he/she was seeing a stranger within the ward. PW2 told her to call doctor to see the patient. Another patient said there was food which could be given to the patient Ngandi. The Patient said he afraid and wanted to be hidden. He said he called his (withheld) to come for him. PW2 asked him his problem. It was at 11:00 pm. PW2 went to the patient and heard footsteps. Nzambu came with two persons . She told PW2 that they were policemen to see patient. They talked to the policemen. They said they were to get security for the patient PW2 left with Nzambu . While outside, the (withheld) of Ngandi and another came.
16. Doctor Nkulete came and saw patient. The (withheld) and another came to see patient. After doctor left, they talked to him. PW2 was insecure and told doctor to go with him/her. PW2 remained with patient. PW2 waited for security but it never came. At 2:00 am, PW2 heard a gun gunshot. PW2 was in a separate room. There were more than ten gunshots. PW2 heard Patients screaming. “The (withheld) to Ngandi said “You are killing him in my presence?” PW2 switched off his/her phone. PW2 heard Nzambu calling. She asked whether PW2 was there. Also, in charge of hospital M O H and two policemen who had come earlier with Nzambu. PW2 came out and went to where patient was and saw him on the floor lifeless.
17. PW2 saw his body. Blood was on the floor. The police took over scene. They moved patients from that room to another place. PW2 left at 8:30 am after hand over. PW2 returned the following day. The body had been removed and taken to a morgue. The following day PW2 was contacted by police. PW2 identified a request for an x-ray by a radiologist-P.MFI – 1, a card which PW2 wrote of R4/8/2016 - P.Ex 2, a referral letter/ note Ukasi Dispensary of 24/08/2016 -MF1 2. PW2 couldn’t identify the two people who were walking ahead of him/her in hospital. PW2 could remember the physique of the two men. PW2 recorded statement at police station.
18. On cross-examination by Mr. Muchoki , PW2 said that he/she was a nurse at Mwingi Hospital. His/her duties were to take care of patients. On 24/08/2016, PW2 reported at 7:30 pm. There was a handover done by Ann Njenga. . PW2 did not receive the patient Ngandi Malia but knew he was there during handover and knew that patient was coming from Ukasi. The nurse in ward gave same information. By time of handover, the patient was not in ward.
19. PW2 was not aware that the patient arrived at 6:50 pm. After hand over, PW2 attended patients in surgical ward. By then, Ngandi had not been brought there. Handover was thirty minutes. At 9:00 pm, PW2 was in ward and Ngandi had not been brought to the ward. At about 9:00 pm, PW2 walked headed to maternity ward and saw two men at around 10:00 pm. From maternity, PW2 was going to male surgical ward along corridor and saw two men around thirty metres away. The light was available but not well lit. When walking they went to dark area. PW2 could tell what they wore. One was in light green jacket and another black jacket. They were tall and light. PW2 saw x-ray of 24/08/2016. PW2 reported on duty on 24/08/2016 and the incident was at 2:00 am.
20. On cross-examination by Mr. Onyango , PW2 said that the police arrived and took over the scene after 3:00 am. Other patients were removed from scene. The place was closed by police to stop interference with scene. The place had three doors. The scene was protected. The doors were closed to protect access to scene. PW2 left hospital at 8:30. The medical superintendent was allowed to the scene.
21. PW3 was a protected witness and his/her evidence was that on 24/08/2016 he/she was at Nairobi and received a call from a girl friend of his/her (withheld) Ngandi Malia. She had received information that Ngandi had been arrested by policemen. PW3 decided to tell relatives. The girlfriend later told PW3 that Ngandi called her. PW3 heard that the people who arrested Ngandi tried to kill him. PW3 told the girlfriend to give number Ngandi was using. PW3 was given a number and called Ngandi and was given number of a doctor at Ukasi Dispensary. The doctor told PW3 that the patient was there and had gunshots and had been given first aid. Doctor said they were looking for means to take him to Mwingi general Hospital. PW3 told relatives and planned to travel. PW3 travelled at 6:00 pm and arrived at 10:30 pm at Mwingi. PW3 talked to the gatemen and was told it was not visiting hours and thus could not be allowed in. The gateman talked to nurse on duty and then PW3 was allowed in at11:00pm.
22. PW3 was with a friend from Nairobi and when they entered, they were told to wait first. As they were waiting, two people arrived with two watchmen and talked to the watchmen. They said they were CID officers from Mwingi to talk to the patient. They asked who PW3 and the friend were and PW3 said they were relatives. PW3 told them how he/she got police call while at Nairobi and came to see patient. The doctor allowed the officers to talk to patient and they went with nurse.
23. After about 15 minutes, they came out and left and PW3 was asked whether they found patient and talked with him. PW3 gave food to patient and he told them what happened. He told them that there were four officers who arrested him at Kitui and took him into a white land cruiser where he was forced to lay facing down. They went to Kitui police station and took another police officer who he described as (waria). The police officer asked them where they were going and they said to Ukasi. After a short while, they stopped and all officers went to the bush with Ngandi. They ordered him to face downward and shot him five times. He then pretended to have died. The officers said they had finished him and left.
24. Ngandi used his shirt to wrap his head as he was bleeding. He crawled to the road and saw boda boda person who he asked to help him go to a hospital. The boda boda person took him to road block where he got a note and took Ngandi to Ukasi dispensary where he got first aid. The doctor at Ukasi called Ukasi police station and Ngandi was taken to Mwingi District Hospital by a police motor vehicle. He was appearing fearful. “Alikuwa anawaza sana” .
25. PW3 and friend saw a door open and thought it was the wind. The friend closed it but it opened again. Two people were at the door one pushed him and he fell, the other remained at the door, while the other one went straight where the patient was in bed. The Patient said it was the same person he who took him to the bush and said; he has come “kunimaliza” PW3 was seated on different bed opposite him. The man removed pistol and started shooting. He shot three times and PW3 asked him why he was killing his/her (withheld) in his/her presence “what has he done to you? The person continued to shoot. Patients went under the beds. PW3 was seated there and fell down and hid under the bed.
26. The patient fell down and officer continued to shoot him. Shooting continued until patient died. PW3 could see shooting going on while under the bed. PW3 couldn’t tell the number of shots fired. Then the officer left. After 30 minutes to one hour, police officers came. Nurses told them to leave the ward. When PW3 woke up, he/she saw police officers and nurses. The patients and relatives were removed from the ward and taken to another room.
27. PW3 stayed up to morning then CID officers from Machakos came to investigate. PW3 and others were taken to another room where they recorded statements and then went home. They never went back to hospital. PW3 heard that post mortem was done but never attended. They received the body for burial. PW3 saw the person who was shooting. He was black and not too tall but medium. He wore black jacket. PW3 couldn’t remember the trouser colour. He held gun with right hand. PW3 could identify the person if he/she saw him. PW3 could not identify the person who was shooting. PW3 never saw the photos of the deceased. PW3 identified the photos of deceased at hospital after shooting - Twenty pictures MFI 3.
i. See the hospital and bed.
ii. Bed where the patient had lied on.
iii. Ward.
iv. Bed patient was sleeping on.
v. Covered body.
vi. The deceased body.
vii. Deceased body.
viii. Deceased body.
ix. Gunshots at backside.
x. Bed he was lying on showing gunshots.
xi. The plot (premises he was residing in).
xii. Same plot he resided in.
xiii. The room he used to occupy.
xiv. Same showing room he occupied.
xv. The houses he occupied.
xvi. Deceased house.
xvii. The plot and room he occupied.
xviii. Inside room he used to live in.
xix. Same room inside.
xx. Same room.
28. At his death Ngandi was over 18 years but PW3 couldn’t recall actual age but said he was below 30 years.
29. On cross-examination by Mr. Muchoki , PW3 said that he/she received call from girl friend of Ngandi known as Esther Muthoni. PW3 knew her by then. PW3 received call between 10-11 am. Muthoni told PW3 that Ngandi had been arrested. PW3 went to tell relatives about it. Muthoni said he had been arrested by police officers of Kitui. She was told by care taker of the plot through phone call from care taker. She called PW3 later and told PW3 that Ngandi told her that he had been shot and officers tried to kill him. She told PW3 that he had been arrested about 7:00 am.
30. PW3 called Ngandi via phone number given by Muthoni. PW3 did not know it off head. PW3 talked to Ngandi on phone. He lost wallet with money and his phone. When PW3 called, boda boda person responded and gave the phone to Ngandi. The phone was owned by boda boda person. Ngandi told PW3 that he reported at road block. PW3 also talked to doctor at Ukasi Dispensary and identified himself/herself. Doctor told PW3 that Ngandi was brought by a boda boda person with gun shots and he was giving him first aid. Ngandi said that while at the bush after being shot, he could hear and had not lost consciousness. PW3 informed relatives the same information from Ngandi and called a friend who agreed to accompany him/her.
31. Ngandi said that he was arrested by four officers and he knew them. The fifth one was added at Kitui police station and didn’t know him (Woria). PW3 couldn’t remember whether Ngandi said that he was blind folded when taken to the bush. The four included driver and the 5 th was a woria from station Kitui. Ngandi remembered woria was shooting him. Ngandi never told PW3 whether he was tied when he was taken to the bush. PW3 and friend arrived in hospital between 10-11 pm. They entered hospital past11:00 am. Ngandi explained what happened and showed them gun shots – head (behind) backside, side of head. He had no shirt. He covered himself with bed sheet. He had torn his shirt to wrap his bleeding head. It was besides the bed. At 2:00am the doctor opened and PW3’s friend closed it. They did not see who opened it.
32. PW3 could not see anybody. The second time the doctor opened and PW3’s friend went to shut it a man hit him with shoulders and he fell and PW3 screamed . Ngandi said that said These are the people who wanted to kill me in the bush and have come to finish me. He could see the two people. One at the door and one who came near the bed. PW3 saw both of them when Ngandi was shouting and in panic mode when he said that the one who entered was not holding a gun. He removed pistol from waist. He never said anything. The man who shot was medium height, black. There was a thin person who remained at the door. He was brown. He wore white cap. PW3 couldn’t remember the colour of the clothing. When one man entered, he started firing shooting Ngandi. After three shots, PW3 talked to him. He shot one by one not in quick succession. He shot from stomach upward. PW3 had panicked but was conscious of what was happening. The other shootings were in quick succession. When he fell from bed, the officer continued to shoot him.
33. While patient was down the shots were many. Then the one shooting and one at the door left together. When police came, PW3 moved out from under the bed and was taken to an identity parade. PW3 identified a person in the parade. PW3 identified the person who shot Ngandi. PW3 didn’t see any of the persons in court.
34. On cross-examination by Mr. Onyango , PW3 said that Ngandi said he knew the officers who arrested him. He said they were four of them. He said they were not in uniform. He said they were CID officers from Kitui Police Station. He told PW3 that while in the land cruiser, he was ordered to lie facing downward. He was with three officers and one officer went to drive the motor vehicle. He told PW3 there were no other officers save the four. At the road block he knew it was a road block who stopped the motor vehicle and asked ‘ mnaenda wapi ’? After crawling to the road, he went to same roadblock and was asked what happened and he said the police wanted to kill him.
35. He was given note to go in the hospital. He saw bush as he was not blind folded. When they alighted from motor vehicle, he saw bushes. There were five officers. At police station one officer did alight. He told PW3 that he was still facing down lying down. At the police they stopped by road side. He was removed and taken to the bush. He was ordered to face downward and woria started shooting him at the bush. Other officer added shooting when he faced downward. They were saying waria is a sharp shooter.
36. The size of the ward was same size of the court room. The doctor was like at the witness box. The beds were about three or four from the door. The head was next to the wall. When two officers came, he saw both. When PW3’s friend screamed, Ngandi looked and saw the two officers. PW3 and friend stood at the door. One entered. The lights were on. PW3 saw the person who was shooting but did not see him in court. PW3 was seeing the accused in court for the first time. PW3 did not see them in the identification parade. PW3 went to identification parade 10 days after the incident.
37. PW4 was a protected witness and his/her evidence was that; on 24/08/2016, PW4 was in Nairobi and was called by a friend and told that the friend’s (withheld) was involved in accident and was in Mwingi hospital. It was at 10:30 am. PW4 agreed to accompany the friend and they left at 6:00 pm and arrived in Mwingi at 10:30 pm. PW4 was informed the (withheld) had been shot. They bought food for patient in Mwingi before going to hospital. They were stopped at gate to confirm whether there was a patient to be seen. They waited at the gate and were denied entry as two strangers had entered. They were taken to another place and told to wait for a nurse was to escort them. They waited next to maternity ward and later entered and saw the patient who talked to them. It was now 12 -12:30 am.
38. The Patient told them he was taken from his house in the morning by four officers who were not in uniform. He said he knew them. He used to see them at Kitui. They asked him if he was the one and he said yes and they took him to the motor vehicle where he was put in lying facing downward. They took him towards Garissa. They went towards Garissa. They stopped on the way and took him to the bush. He was told to lie down facing down and was shot with a gun. They shot him head and back side. He said he had three shots on head and one on the back. One officer said that with all shots he could not survive. Patient pretended to be dead. They left him there.
39. Later he wrapped his vest shirt on head and crawled towards road. He saw boda boda person and told him to take him where he could get help. They went to road block where they found police officers. He told them what had happened. The boda boda person took him to dispensary where he got first aid then he was taken to Mwingi hospital and arrived at 7:00 pm and was admitted. He had bandage on head and at the back side. He was stable and conscious when talking to them. PW4 didn’t see his back as he lay on his back. He ate food. They stayed with him and the door was opened. PW4 closed it and then opened third time. PW4 went to close it and a person knocked PW4 down. PW4 met the person who pushed him/her. He was a tall man. The patient said they were there to finish him. PW4 saw one person and felt shaken. PW4 couldn’t describe clothes as he/she was shaken. PW4 was still down when patient said “Ni hao wamekuja kunimaliza” . When shooting started, PW4 went under the bed and heard footsteps of the man going to shoot the patient.
40. PW4 hid under the bed. Several shots were fired. They were more than 10 times. The patient fell down from bed when he was being shot. PW4 saw patient later on the floor. That was after the attacker left the place. PW4 was fearful thus did not move out of under bed until two officers came. The officers asked what was happening. They told them that, somebody entered, shot patient and left. Many people came. Some people came later and told people not to go close to that place. They said they were police officers. PW4 was taken to another room in the hospital. PW4 and friend were removed from that ward. PW4 couldn’t remember up to what time they stayed there. They stayed up to morning and were taken to write statement recorded by police officers from Machakos. PW4 left for Nairobi and the friend went home to Kitui. PW4 never went back to hospital again.
41. PW4 did not see or identify the person who attacked patient. PW4 saw patient lying down after the shooting. They never talked to patient again. The (withheld)-PW3 said the patient was already dead. \. Patient was over twenty years of age. PW4’s friend told him/her that name of the patient was Ngandi Musyimi.
42. On cross-examination by Mr. Muchoki , PW4 said that they left Nairobi at 6:00 pm and arrived in Mwingi at 10:30 – 11:00 pm. They were stopped at the hospital gate by the watchman for about one hour. They were told that strangers had entered the hospital. The patient said he entered hospital at 7:00 pm. The strangers entered hospital after patient was admitted. They were told that the strangers were two men. The patient told PW4 and friend that he was taken from his home and taken to Garissa side. Patient said he had been shot. PW4 saw bandage on head (behind) and two both sides and the back side. He was having a sheet. He had his shirt on the bed. Patient told them he was shot side of Garissa in the bush. He said boda boda took him to the road block on the Garissa Road side.
43. The door opened and PW4 shut it again twice. The third time PW4 went to close, he/she met a person at the door step who pushed PW4 with hand backward and PW4 fell behind the door. That was the side patient bed was located. PW4 was so shocked
44. PW4 heard three footsteps towards patient. PW4 didn’t see the type of clothing and did not notice the body structure. PW4 saw a tall person. PW4 was not able to rise up and never screamed upon falling. PW4 heard more than 10 shots. During shooting, there was no screams. People kept quiet. PW4 only heard before shooting “ Hao wamekuja kunimalizia” PW4 didn’t see patient fall nor hear him fall from the bed. From PW4 to patient bed was like two steps. PW4’s friend sat next bed next to patient. The friend never said anything. The incident took like five minutes. PW4 only saw one person. The door was metal door with glass on top. The patient’s name was Ngandi Musyimi.
45. On cross-examination by Mr. Onyango , PW4 said that when the person came in, he/she was beside the door. The door opened inward. PW4 didn’t hear footsteps outside only for one who pushed him/her down.
46. PW5 was Mwangangi Tangili from Ukasi location. He testified that he was a farmer and a herdsman. He recalled that on 24/08/2016, he was at Kabongo trading centre taking tea then went to take care of his cattle just near the road. Before reaching, he heard screams from across the road. He identified the voices and ran and met Doris Mwende Mutange, his sister and her two children (aged 5 years and 2 years).
47. He asked what it was and she said that a person (wounded) had found them where she sold charcoal. The wounded person had gunshot wounds on the head. He had remained where they had come from. PW5 went to meet the man and found him sitting on the culvert.. PW5 asked his name and the man said he was Ngandi Malia from Kabati. His eye had been gauged out and he had a wound at the back of head.
48. The bullet was still there. He requested to be taken to hospital. PW5 stopped a Garissa bus to take him to the police roadblock before being taken to hospital. PW5 remained behind and called corporal Kyayoya at the station and reported the matter to him. The next day, the OCS Ukasi police station called PW5 and asked him to get the area elders to assist in showing the scene to the police. PW5 waited for the OCS who arrived and they got elders and went to the scene.
49. The lead elder was Mwikali Mwangangi (lady). She traced the footsteps and reached the scene (100 metres from the road into the forest). At the scene, they found blood, two shirt buttons and bullet head. Officer Kimutai who was with the OCS took all these as exhibits. PW5 went and recorded his statement. PW5 didn’t not know who injured the man. The buttons were white and PW5 identified them -two white shirt buttons MFI 3. PW5 never saw the injured man again and later heard that he died.
50. On cross-examination by Mr. Muchoki , he said that he found the injured man at the roadside. It was not wet. PW5 would not know when he was injured. PW5 found him at 2:00 pm. Mwikali Mwangangi -the elder was PW5’s wife.
51. On cross-examination by Mr. Onyango , he said that it was the right eye which had been injured. PW5 sent him to the roadblock and informed the corporal. PW5 confirmed that he was a police reservist. PW5 wanted the corporal to assist in getting a vehicle but he said it was occupied. Mwikali went to trace the footsteps on her own.
52. PW6 was Daniel Mbo Mumube of Ukasi. He testified that his work was boda boda transport. He recalled that on 25/08/2016 he was on duty at Ukasi centre – Barrier area. He was called by corporal Yoya. He rushed there and found him with somebody who was bleeding on the head. PW6 took him to hospital (Ukasi). The patient borrowed PW6’s phone and spoke with his (withheld) in Kikamba. He told (withheld) he was on duty and had been injured. PW6 returned to town. The patient was not known to PW6 and never saw him again. PW6 heard in the news that he had been transferred to Mwingi. PW6 was not called to the station thereafter. PW6 recorded a statement at his place of work.
53. PW7 was George Mululai from Mutomo and a stage attendant of matatus. He testified that on 24/08/2016, he woke up at 4:00 am and went to the toilet. He was at Majengo in Kitui-at a plot where he stayed. As he left the toilet, he met a person who told him to lie down. He complied and was down for ten minutes. He woke up and went to the house and never looked at him. When he woke up, he never saw that person. He prepared and went to work. On 28/8/2016, he was called by an officer from Kitui and he explained all that happened.
54. On cross-examination by Mr. Onyango , he said that he did not know the officer’s name. He was the careta
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