The Republic VS Hamisi Mwalimu Mwabagizo AND Masudi Helefu Chinzele

THE PROSECUTION CASE

1. On the 14^th day of July 2018, NO. 93421 PC Sylvestsor Mawia, then of Msambweni DCI but housed at Diani Police Station. set out on what would tragically end up as his last journey on this side of life. Initially, he was alone but at the gate, he met PC Edweng More Marfadeh (PW5) and PC Abraham Kiplagat (PW8) and he persuaded them to accompany him to a party at Msambweni.  These two appeared to have a premonition about this trip, as  both testified they were reluctant to join him, but it appears he was very persuasive. The 3 then set off in a taxi Registration No. KBY 136T, driven by Obadiah Mbuguah. (PW2).
2. The 4 did not go directly to Msambweni. They stopped at Kinondoni. The reason for the detour according to PW5 and PW8, was a phone call that the deceased received while they were  in the car.
3. Both PW5 and PW8 testified that, after the call , the late PC Mutunga told them that he had been told by an informer that there was a shop  known as Tawakal shop ,where contra band sugar and polythene bags were being sold. PW2  was then instructed to drive into Kinondoni shopping centre and  he parked near a certain shop (10 – 50 meters).
4. The 3 Police  officers alighted and went into the shop which then found open. PW5 testified that they met the informer, dressed in a white shirt, and he identified the shop for them. He was with another man near the shop and when they entered the shop the other man , described as short and black ,closed the door of the shop from outside. PW8 said the shop owner signaled him (the short man) to close the door.
5. According to PW5 and PW8, inside the Tawakal shop and the store, which was owned by a Somali man called Abdi Saladi Abdi , they recovered 7 empty sacks   labelled Brazillian sugar (90 kgs) and then there were some unlabeled sacks of sugar filled with 50 kgs. They also recovered many polythene bags. PW5 then prepared an inventory which they all signed.
6. PW5 AND PW8 testified that while inside the shop, they heard some commotion and on going to check, they found that the shop had been surrounded by around 200 people who were confronting the driver (PW2).
7. On going outside, they found a charged crowd, which confronted them saying they were thieves. PW5 and PW8 testified that they introduced them but the crowd refused to listen. That some certain old man snatched PW8’s  police staff identity card and wallet and said they were imposters.
8. That the same old man instructed another tall man to deal with PW5 and this tall black man slapped PW5 and took the polythene bags and inventory and tore them. PW8 identified the tall black man as Maswad Helefu – (Accused 2).
9. That the shop keeper came out of  the shop shouting thieves then alleged that the 3 had taken Kshs. 50,000 from him. They were searched by some    young men but nothing was recovered .That Hamisi Mwalime (A1) ordered the young men to beat them to deter their conduct and   he also said that they deserved to be killed. That the crowd started pelting them with stones and that is when the deceased  Mutunga shot in the air  hoping to scare the crowd. Interestingly the crowd was unmoved with  some  stating that the officers’ fire arms were toy guns.
10. The 3  police officers then took off running with PW5 going towards the road whilst PW8 and the deceased Mutunga  ran towards the hospital and the beach.
11. PW8 testified that Accused 2 hit him with a stone and he fell down but fortunately  for him,the deceased PC  Mutunga  rescued him by shooting in the air. They ran  a distance of  about one and a half kms, then the deceased  Mutunga said he was tired and he could not keep up any more. As PW8  urging the deceased not to give up,  he  ( the deceased ) was hit with a stone  and he fell. PW8 added that the crowd chasing them  was led by Saladi Abdi and the stone that hit the deceased was thrown by Hamisi and Masudi.
12. PW8 further  testified  that the crowd continued to pelt the deceased with stones and all manner of weapons  and the deceased advised him to run for his life. That  he ran away while shooting in the air with part of the crowd in hot pursuit. Eventually, PW8 was rescued and taken to Diani hospital. His treatment notes were produced by Kea Abdalla (PW13) as PExht 3,and the  same Kea produced the medical records on respect to PW5 as PEXT 4 and those in respect to PW2 as P Exht 5.
13. On his part, Obadiah the driver, PW2, narrated to the court what transpired when his 3 passengers were inside the shop.  First he confirmed that the deceased had asked him to take him to Msambweni and they were joined by the other two at the gate.  He also confirmed the detour to Kinondoni as described  by PW5 and 8.
14. PW2 testified that  after parking  and whilst the 3 police officers were in the shop he was confronted by some old  man  who refused to believe that the 3 men in the shop were policemen. That the old man threatened him, snatched his car keys, made calls and shouted ‘thieves ‘ and that is when the crowd gathered. He identified the old man who interrogated him as Accused 1. He added that Accused 1 slapped him and he fell down then A1 continued to beat him with stones and he  then he heard gunshots. That  the crowd  also pelted his car with stones.
15. Eventually he was rescued and he got into a police car. They later saw the deceased lying down next to a piece of  wood ,they picked him and the 2 ,the deceased and himself,  were taken to Msambweni hospital but sadly Mutunga was pronounced dead.
16. A post mortem was conducted by PW1 Dr. Maali Mbuluko. The body was identified by Samuel Mwenda (PW 9) and Benedict Miumbu PW10.
17. PW3 and PW4 were the area chief and his assistant who visited the same and helped recover the firearm which had been taken from the deceased.   It was produced as PExt 2, the 4 rounds of ammunition as Pext 3 and firearm movement register -Pext 4. The others, PW6 and PW7 were the respective officers who visited the scene took the deceased to hospital and who conducted the investigations. Then they preferred the present charges of murder contrary to Section 203 as read with Section 204 of the Penal Code.

Ruling

1. After considering the prosecution evidence, the court placed the 2 accused persons on their defence . They each gave their evidence and called two other witnesses.

Defence case

1. The two accused persons denied any involvement in the crime. Accused 1 testified that it was his brother Juma Mwalim (DW3) who telephoned him and reported that some 3 strangers had locked themselves in his (Accused 1) shop. He went to the scene which was 15 minutes away and they also called the chief (PW3). The chief arrived some 20 minutes later and by that time a crowd had gathered. That it was this crowd who interrogated the 3 men who did not have any identification documents or a search warrant and the crowd chased them. That he remained at the shop guarding it, up to when the police arrived. That he recorded a statement that evening , and he was released. Then in 2020 he was arrested over some dispute over a plot plot and this is how he was charged.
2. DW3 testified that he was present when the silver salon vehicle arrived and 3 men alighted and went into Accused 1’s shop. That he confirmed that the shop was locked and he called Accused 1. That as he was waiting for Accused 1, he went back to his shop. That when in his shop he heard the sound of gun shots . That Accused 1 then told them to call the chief. That accused 1   was not around when the chaos occurred and he (Accused 1) arrived after the crowd had gone and he ( Accused 1) remained guarding his shop.
3. Accused 2 testified that he is the chairman of the Nyumba kumi and a fisherman. That he arrived at the scene past 6:00 pm where he met the driver  of the taxi being beaten. That they assisted the taxi driver and they were even stoned for their efforts. That later policeman arrived and took the taxi driver. Later at 8:00 pm some young men whom he did not know handed over the firearm to him which he gave to the chief.
4. DW4 testified that he was at the hospital side and  he saw Accused 2 and the   assistant chief helping the  injured man .

Analysis and Determination

1. Considering the testimonies of both the prosecution and defence it was now upon this 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 persons herein face 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. The question that arises is whether the prosecution has proved the death of the deceased; that Accused persons caused the death and that they actuated by malice. In the case of Republic – Versus -  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 – Versus -  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.”

The Death

1. This was not in dispute as even the defence testified they got to know that a policeman died following that incidence of 14/7/2018.
2. Nevertheless, the Police Form 23, The Post Mortem  form dated 26/7/2018 (PExh 1) that was produced by Dr. Ngali Mbuko (PW1) confirmed the death the death of Sylvester Mutunga. PW9 and PW10 identified the body.

CAUSE OF DEATH.

1.       The deceased PC MUTUNGA  was alive and in good spirits intending to attend a party this fateful evening.   From all the evidence it is the injuries he sustained that caused his death. Pw2, 6 and 7 testified that when they  traced him, they found him in very bad shape as his head had been crashed. He could not talk and he was pronounced dead on arrival at the Msambweni hospital .
2. The post mortem form report has the folding findings.

External appearance

Head deformed by multiple bruises and irregular cuts (form stemata) on the face and rest of the head.

Largest cut on the left supraorbital region is 8 by 4 cm and bears soft tissue bridges vertical cuts on the below right ear, right vertex ear bone torn

10 by 5 cm bruises on the ant chest

2 II cm long slashing injuries on the left chest below the breast.

Bruises and lacerations on both upper limbs.

Two cuts on the posterior aspect of the right hand phalanges (proximal phalanges 3 and 4 fractured).

Dislocated left ankle joint.

Internally

Hematoma on the anterior chest left to issues lungs normal

Secondary food material in the stomach

Carreon distended.

Fractures of the anterior facial bones including the nasal bridge

Fractural left supra arbitral fracture with an 8 by 4 opening into the cranial cavity. Some fractures pics are driven into the brain cavity.

Hematoma (blood clot) on the left side of the face

1. PW1 opined that the cause of death was traumatic cranial cerebral damage following severe blunt trauma on the head.
2. There were no other intervening circumstances that we can attribute to the death but the injuries he sustained that evening.  Further there was no evidence of any justification or defence such as self defence or provocation save for the allegations that they were thieves or out to extort money from Saladi Abdi  and therefore we can safely conclude that it was an unlawful death.
3. The presence of the 3 police officers so incensed the  residents of Kinondoni and  turned them  into a murderous mob which decided to take the law into their own hands and mete out mob injustice.  Whatever their reasoning , those involved caused an unlawful death.

Whether the 2 accused persons or either of them caused the death of the deceased Pc Sylvester Mawia.

1. The key question then is; Whether the 2 accused person are the ones who caused or if they contributed towards inflicting these injuries.
2. The agreed facts are that they Accused 1 and Accused 2 were at Kinondoni shopping Centre this fateful evening of 24/8/2024.
3. Accused 1 said he arrived there after being called by DW3. He denied any involvement in the beating of the deceased. DW2 tried to allude to Accused 1’s absence but that was not true. It goes even against Accused’s 1 evidence. PW2 said that it is Accused 1 who interrogated him on his presence and mission in Kinondoni and he is the one who slapped him (PW2) and took the car keys. PW2   said he also  saw Accused 1 at the place where the DCI officers picked the deceased.
4. PW5 testified that Accused 1 introduced himself as the landlord and he (Accused 1) is the one who interrogated them. That it was Accused 2 who snatched the polythene bags and inventory they had prepared in the shop   and tore them and he,  A2, also slapped him (PW5).
5. PW8 also identified Accused 1 as the one who interrogated them and he was the tall black man who snatched the inventory and polythene bags from PW5 and also the one who slapped PW5 page (50 – 51 handwritten  proceedings). That Accused 2 also snatched his identity card and wallet containing his certificate of appointment. That accused 1 ordered the  youth to search them and beat them and as a deterrent and added that they ought to be killed.
6. The whole incidence took 2 to 3 hours from around 4:30 pm to 8 :00 pm. The confrontation started at the shops and the crowd then pursues the deceased and PW8 past the hospital towards the beach a distance of 1 to 1.5 km according to PW8. The deceased then ran out of energy and gave up.
7. PW8 was the only prosecution witness who was near the place where the deceased eventually ended with the severe fatal beating.  He (PW8) said when the Late PC Mutunga got tired and could no longer run, he “Mutunga” advised him (PW8) to run and save his life. PW8 then shot in the air and continued running. He nevertheless said  saw Accused 1 and Accused 2 throw stones which caused  the deceased Mutunga to fall down after which the Mob descended upon him.
8. The starring point is  that there was no eye witness, nor any Forensic, or photographic evidence to show us who inflicted the final blows upon the deceased, especially with the wooden plank of wood . What the court has to consider is the circumstantial evidence and more importantly, whether the presence of the 2 Accused persons at the initial stages of the assault make them culpable for his death.
9. That takes us to the law of common intention

In this respect, the 2 accused persons are charged jointly with the offence of killing the deceased. This brings into perspective the provisions of Section 20 as read together with Section 21 of the Penal Code.  Section 21 of the Code provides the features of criminal responsibility as follows:

“When two or more persons, form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of that purpose, each of them is deemed to have committed the offence.”

1. The other overriding elements of a common intention concerns characteristics of it being formed at the very onset or during the commission of the offence.  It may also arise spontaneously on the spur of the moment.  According to Section 10 of the Evidence Act, anything said, done or written by any of the persons deemed to have a common intention, in reference to their common intention is relevant evidence of such intention.  What is required of the prosecution is evidence tending to show that the individual accused persons were infact part of the conspirators in a gang of two or more, sharing a common intention, purposed to commit a particular offence.

See  Rex v Mikaeri Kyeyuniu {1941} 8 EACA 84 Wanja Kanyoro v R {1965} EA 501, Livingstone v R {2005} 1 EA 229, R v Nyambera {2001} KLR, Karani v R {1991} KLR 622, Rex v Tabulayenka S/o Kirya & 3 others {1943} 10 EACA 51.

43. In any given case,  the onus is to try to untangle the facts to determine the existence or non-existence of common intention.  The Court in Ismael Kiseregwa & Another v Uganda CA CRIM Appeal No. 6 of 1978 held as follows:

“In order to make the doctrine of common intention applicable, it must be shown that the accused had shared with the actual perpetrator of the crime a common intention to pursue a specific unlawful purpose, which led to the commission of the offence. It it can be shown that the accused persons shared with one another a common intention to pursue a specific unlawful purpose and in the prosecution of that unlawful purpose an offence was committed, the doctrine of common intention would apply irrespective of whether the offence committed was murder or manslaughter.”

44.It is now settled that an unlawful common intention does not imply a pre-arranged plan. Common intention may be inferred from the presence of the accused persons, their actions, and the omissions of any of them to disassociate himself from the assault.  It can develop in the course of events, though it might not have been present from the start.  It is immaterial whether the original common intention was lawful so long as an unlawful purpose develops in the course of events.  It is also irrelevant whether the two participated in the commission of the offence where the doctrine of common intention applies, it is not necessary to make a finding as to who actually caused the death

1. In the present case,the two accused persons were present outside the Tawakal shop and   It is only PW8 Who ran in the same direction as the deceased  and he said that he saw the two  accused persons pursuing them and throwing stones at them.      That when PC Mutunga got tired and said he could not run anymore , he was unfortunately  hit by a stone thrown by Hamisi and Masudi and he fell down. That the crowd was15 meters away when A1 and A2 pelted PC Mutunga with stones.
2. I found this evidence to be un believable.   First PW8 was scared and running for his life as he was now shooting in the air.              The evidence was that the crowd consisted of about 200 people and night was setting in. Those are not very good conditions for an identification.
3. Then, PW8’S evidence that Masudi And Helufi threw the stone that made the deceased fall down made me doubt his sincerity. Why? It is highly unlucky that two people will take a stone and jointly throw it at a distance of 15 meters.
4. Further  PW2, PW5 AND PW8 all described A1 and A2 as old men A1 testified that he is 65 years old.      The distance from the shop to where the deceased was killed was about one and a half kilometer away.   In other words it was a distance long enough to tire the deceased , a trained policeman.        Could the two old men have  run that distance and be at the front? I think not.
5. Further we have the evidence of PW4, The Assistant Chief ,who said that when he arrived at the shop, he met  the shop owner Abdul A1  and A2, a Nyumba kumi elder there  and it is  these two who briefed him on what had gone on . He added that A2, assisted him in  rescuing the, driver, PW2 and taking him to Kinondo kwetu  clinic .This was conformed by DW4, who was on duty at the hospital side. From this we can rule out  the presence of both 2 accused persons at the exact location where the deceased fell and was clobbered .
6. I have mentioned that the conditions for identification were not very good and all these people were strangers as it was their first encounter.  We note this mix up in the evidence of Pw5 and pw8 as to who slapped PW5.   Further Pw2 testified that it was A1 who was interrogating him and making calls whilst DW3 a brother to A1 said he is the one who called people including A1.Further pw8 said he saw A2 at the station at 8.00p yet the investigators said they got to the station at 8.00PM. These were red flags that cannot be ignored.
7. The final  critical question on to answer is if the  presence of the 2 accused persons  at the shop  where the confrontation started makes them liable under the common intention doctrine. In this case I have noted especially in respect to A2, that he was identified as a village elder by the assistant chief PW4 who said that he, A2 helped rescue  Pw2.
8. I also note that A2 is the one who looked for and returned the pistol that had been stolen by the residents.  These actions of rescuing Pw2 and even going out to trace the fire arm sets A2 apart from the murderous mob.     He did not exude any character place him in synch or   to show that he was in agreement with the criminal elements.
9.   The investigating officer said he charged A2 as he gave conflicting information about tracing the gun.         That is not sufficient evidence to prove , beyond reasonable doubt, either the criminal intent or his participation.
10. As to A1, there is the issue of identification and doubt as to whether it is him or his brother DW3 WHO INCITED THE MOB.  The evidence of pw4 and A1's defence does cast some doubt as to his guilt  that night .  That is if he can be said to have had any mens rea or common intention.   There was also the inordinate delay of almost 2 years  in arresting him which was not explained and and he was gave some disturbing evidence as to why and how he was arrested.  From all this , there are some lingering doubts.
11. Accordingly I exercise these  doubts in favor of the two accused persons and  hereby acquit each of them for the offence of murder contrary to section to section 203 as read with section 204 of the Penal code. Each is set at liberty unless if otherwise lawfully held.
12. As for the late Pc Sylvester Mutunga, may his Soul rest in peace

DELIVERED, DATED and SIGNED at MOMBASA on this 27th day of February, 2025. Judgment delivered through Microsoft Teams Online Platform.

WENDY KAGENDO MICHENI

JUDGE

In the presence of:-

The 2 accused persons

MS CHEROP   the Prosecutor.

MS BEBORA     Court Assistant .