The Republic VS IBRAHIM NOOR MOHAMED, AFATHIYA IBRAHIM,ABSHIR NOOR AINAB & ABEL MWAIVU MWASINGO

1. STATEMENT OF OFFENCE.
2. The 4 accused persons are said to have committed   the offence of   murder contrary to section 203 as read with 204 of the penal code.  The particulars being  that on the 5^th day of January 2020 , at Mackinon area , in Kinango sub location , within Kwale county, jointly with others not before court , they murdered JOHN JUMA.
3. THE EVIDENCE
4. The state called 8 witnesses.
5. PW 1 was Redempta Munene Nyamai,  who had employed the deceased John Juma Naloyo in her bar since the year 2015.
6. Her evidence was that the late Juma was disciplined until the year 2018, when he started absenting himself from work so as to spend time at a lady neighbor’s shop. This caused her to terminate his employment , but his brother in law, Pastor Mkalla (PW2)  intervened and pleaded with her to reinstate him .She l conceded after getting an apology from the deceased Juma.
7. That in April 2019, her mother in law passed on and she gave Juma a few days off, so that he could be left in charge of the business when she was engaged in the Funeral arrangements.
8. Then  one Kyalo told her that the deceased had been found in Ibrahim’s house and he was having an affair with Ibrahim’s wife and Ibrahim had sworn that he would do something that would shock everyone in Mackninon.
9. Come the 19/7/2019 at 2:35 AM , one Ndegwa Mbanya called her number but she did not pick. That shortly thereafter Kioko the watchman knocked at her window and told her that Juma had been burnt.
10. She followed them at Mount Zion Hospital, then she went to the police station where she saw Juma with burns all over and he  was also bleeding. That Juma could see her but was not talking.
11. They took him to Voi hospital then he was transferred to Coast Referral Hospital as he also had deep cut wounds on the head. He later on succumbed on 5/1/2020.
12. PW2 was Ernest Juma Kilingi a brother in law to the deceased Juma.
13. His evidence was that on the night of 19^th 20^th July 2019, he was on his way home from watching Football. He met one Kioko who told him to rush to the police station as his in law had been burnt. He rushed to the station, saw the deceased was indeed burnt and they took him to hospital with PW1. That they would visit him at Coast General Hospital.
14. That on 28/7/2019, the deceased started talking and asked for police assistance. He alerted PW1 and on 5/8/2019 the police men went and recorded the  of the  statement of the deceased who later on passed away on 5/1/2020. That the deceased had told him that he was in a relationship with some Somali lady and they had warned him against it. That A1’s shop is 50 meters from PW1’s shop and Accused 2 is Accused 1’s wife.
15. When cross examined by MS Nzamba For Accused 4, he said that when he had asked the deceased person what had happened,  he had said the issues were weighty and he wanted police Assistance.
16. He was shown his statement Page 2 paragraph 2 which reads. “That the deceased told me that his girlfriend went to his house in the company other people who set his house on fire.”
17. He also mentioned having been given a number to call Fatma who refused to talk  .
18. PW3 was Kioko Wambua a watchman at Dmeez Bar which is owned by PW1.
19. His evidence was that he reported on duty at 6 .00 pm the night of 19^th/20^th July, 2019. That at 2:15 am, Juma a waiter at the club, arrived and told him he had been beaten and set on fire. PW3 woke up their employee (PW1) to take Juma to hospital. Under cross examination he said Juma did not tell him who had injured him. He also added that Juma was with Elijah and Ndegwa.
20. PW4 was Juma Ndegwa Baya. His evidence was that on the night of 19tth/ 20^th July, 2019, between 1:00 a.m. and 2:00 AM he was going home form watching football.
21. That he saw fire burning in the deceased house and some women were screaming. He went and saw Juma standing outside and he had burns all over. He tried calling PW1 but she did not pick. That he called Edward who arrived with his brothers Elijah and Josephat. They helped Juma to walk to Zion Clinic as he could not be carried on a motor bike. They later went to Cornel hospital and later Voi hospital. He said the deceased did not tell them what had happened.
22. PW5 was James Mkalla Walajo a brother to the deceased. His evidence was that on the night of 19th/ 20^th July 2019 at around 1:30 am he heard some  noises outside (people walking). Then he heard as if someone had been attacked. The noise was from Juma’s house. When he got out he found Juma’s house on fire with the door open.
23. That Juma was standing outside with injuries. That good Samaritans carried Juma away as he tried to put off the fire. That he visited Juma in hospital the following day but did he talk to him due to the extensive injuries and also he (PW5) was in shock. That there was a time the deceased was involved with a Somali lady but they discouraged him. That he questioned Juma if he had continued with the relationship and the deceased had told him that the Somali lady woman had come with some other people who attacked him. That the deceased did not tell him who the other people were. He identified Accused 2 as the woman that the deceased had a relationship with.
24. PW6 was Edward Uwaseda Chenja. He said that on 19/7/2019, he was with Ndegwa ,Elijah and Joseph watching football. That on the way home between 1:O0am and 2:00 am, Ndegwa told him that Juma’s house was on fire. They rushed there and met other people trying to put off the fire. They assisted in taking the deceased to hospital.
25. PW7 was PC Josphat Rotich. He gave his evidence that on 17/1/2024, whilst the previous witness PW6 , testified way back on 11/11/2021. Whereas  the evidence had flowed seamlessly  up the PW6, the case appears to have been jinxed thereafter. After a 2 year lull,  PW7, testified on behalf of Sgt. Derick Omumia the investigating officer whom he said had since retired.
26. PW7 testified that he had been at the station when the offences occurred and he even visited the scene where he took some photographs on his phone. PEXT 4
27. They then recorded statements. Further on 5/8/2018, they visited the deceased  Juma at Coast General Hospital and they recorded his statement. That the deceased had said that his lover had opened the door and she came with other people who attacked him.
28. That he gave the names as;
29. Ibrahim Mohamud
30. Able Mwaivu
31. Abshei Noor Ainab
32. Fathina Ibrahim
33. Kyalo
34. Maseyo.
35. That they read the statement to the deceased and he signed it. That they took the names to Mackinnon police station and the people were arrested except for 2 who were not traced. That on 6/8/2019, the suspects were charged at Mariakani Court with the offence of attempted murder and arson.
36. That on 5/1/2020, the deceased died. A post mortem was conducted on 7/1/2020. He produced the photographs he took and the certificate.
37. PW8 was Dr. Gabriel Mngala who produced the post mortem report in respect to the deceased.

ANALYSIS OF THE EVIDENCE

1. As earlier pointed out, the matter had progressed very well, with the civilian witnesses. When the turn of the investigators came it literally stalled. The main investigating offer was said to be Sgt. Dickson Omumia Oulo, who apparently retired from the service
2. When PW7 was cross examined, he said he did not try to establish the availability of  this Sgt. Dickson as he was not the investigating officer. He said he was not aware that Sgt. Dickson is at Muthaiga police station.
3. According to PW7, Sgt. Omumia recorded his statement on 9/8/2019 and a further statement on 10/1/2020. The visit to the hospital  was on 5/8/2019. He did not have Sgt. Omumia’s statement dated 5/8/2019.
4. When cross examined by the Advocate for Accused 2, PW7 said the deceased statement mentions these names; Ibrahim alias uncle, Mbogo, Abel Mwasugi Kyalo, Musa Baras and others. SGT Omumia’s statement had a more detailed list giving 2 to 3 names per person.
5. Now interestingly non of these two statements, that is that of the deceased Juma, nor that of the said Sgt Dickson was produced. There was not even an attempt to produce the same.   This was the turning point for this case.
6. Why do I say so?  To begin with we do not have any other evidence to prop the prosecution’s case. The deceased was all alone in his house and even his brother and neighbor PW5 , responded to the attack after the culprits had left.    We did not  any eye witness , nor any photographic or documentary  or forensic evidence.   Then , We note that the deceased did not name his attackers to anyone else.
7. PW  5did mention  that a Somali woman was involved ,but the name was not given. This Somali woman was alluded to as the motive behind this heinous act .  According to the state, fingers point at A1 because   of the love triangle. The  deceased Juma is said to have been involved in a love relationship with Accused 2 who in turn is A1’s wife..
8.   The deceased person’s  employer, PW1, his brother in law PW2 and brother PW5 all  alluded  to  a relationship between the late Juma and a certain somali lady who had a business near PW1’S club. The 3 said they had warned the deceased to desist from this affair. Infact PW1 went as far as suspending him from work. Interestingly PW1 and PW2 did not identify Accused 2  as the Somali lady that the deceased had a relationship with , nor did they identify A1 as A2’S husband yet  the somali couple ,are said to have been PW1’s tenants and the shops are barely 50 meters apart.(According to PW5).
9. The Friends to the deceased, who appear to have known him well and who fondly referred to him in their evidence as Sir Juma or sir J, also did not mention any relationship between the deceased and Accused 2. They said the deceased did not tell them what had gone on  and he was only terrified that he will never see again since he had been badly injured on the eye.   The kioko who heard the threats also did not testify.
10. PW1 said that the husband to the Somali lady had made some threats in April 2019. She however did not identify Accused 2 as the husband to Accused 1 who made the threats.
11. PW2 said that when he interrogated the deceased he had said the issues were weighty and he would respond later.
12. So that leaves us only with the statement that was recorded by SGT Omumia from the deceased.
13.   That takes us to the realm of DYING DECLARATIONS and their weight in  evidence,
14. The evidence of a dying declaration or statement is admissible under section 33 (a) of the Evidence Act cap. 80 which reads as follows:
15. 33.Statement by deceased person, etc., When Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—a.relating to cause of death when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
16. This provision of the law is in pari materia with section 32(1) of the Indian Evidence Act, which applied in this country prior to the enactment of our own Evidence Act. It has been applied in several cases where the evidence of a dying declaration has been brought to the fore; one such case was Jasunga s/o Okumu versus Republic (1954) 21 E.A.C.A 331.
      The admissibility of a dying declaration does not depend, as it is in England, upon the declarant having at the time, a settled, hopeless expectation of imminent death, so that the awful solemnity of his situation may be considered as creating an obligation equivalent to that imposed by the taking of an oath.
17. In   in the above cited case it was held that ; ”  In Kenya (as in India) the admissibility of statements by persons who have died as to the cause of death depends merely upon section 32 of the Indian Evidence Act. It has been said by this court that the weight to be attached to the dying decelerations in this country must, consequently, be less than that attached to them in England, and that the exercise of caution in the reception of such statements is even more necessary in this country than in England.The question of the caution to be exercised in the reception of dying declarations and the necessity for their corroboration has been considered by this Court in numerous cases, and a passage from the 7^th edition of Field on Evidence has repeatedly been cited with approval.
18. The caution with which this kind of testimony should be received has often been commented upon. The test of cross-examination may be wholly wanting; and... the particulars of the violence may have occurred circumstances of confusion and surprise calculated to prevent their being accurately observed…The deceased may have stated his inferences from facts concerning which he may have committed important particulars, from not having his attention called to them. Particular caution must be exercised when an attack takes place in darkness when identification of the assailant is, usually, more difficult than in daylight (R v. Ramazani bin Mirandu (1934) 1 E.A.C.A 107; R v. Muyovya bin Msuma (1939) 6E.A.C. A. 128.
19. The fact that the deceased told different persons that the appellant was the assailant is evidence of consistency of his belief that such was the case: it is no guarantee of accuracy.
20. On  whether corroboration is necessary in order to sustain a safe conviction solely based on a dying declaration, the court had this to say; It   is not a rule of law that, in order to support a conviction, there must be corroboration of a dying declaration (R. v. Eligu s/o Odel &Another 1943) 10 E.A.C.A 90; re Guruswami (1940) Mad. 158,
21. So basically dyeing declarations are admissible evidence but the weight according to each is to be carefully considered on a case to case basis.
22. In this case the statement was given several days after the incidence.   the incidence as on 20th July 2019 and he recorded  the statement on 5th August 2019.     The record shows that the deceased could talk  even at the scene though he was weak.  He also appeared hesitant to speak about  the incident which he described as weighty.
23. But worst still his  written  statement was not produced and neither did the person who wrote it down testify.  In fact even the said investigator's statement was not produced.
24. It would appear that these statements were available and had even been supplied to the defence as A4’s advocate refers to them in detail in their submissions.
25. As earlier pointed out the investigators were hesitant to come to court and when pw7 did come, it was to produce hearsay evidence as he had not recorded any statement.  We can not be sure he was present.  Hearsay evidence of a dying declaration is the worst kind of evidence.
26. Analysis and Determination
27. The issue which arises for determination is whether at the close of the prosecution’s case under Section 306 of the Criminal Procedure Code, the prosecution has adduced sufficient evidence to establish a prima facie case against the 4  accused persons. At this stage the court is called upon to consider the evidence tendered by the prosecution to determine whether they  have a case to answer.
28. The burden was on the prosecution to establish that the accused person had a case to answer the charge. The burden is placed on the prosecution based on the presumption of innocence of the accused person which is a constitutional right to a fair trial. Article 50(2) (a) of the Constitution provides that:-

“Every accused person has the right to a fair trial which included the right-

To be presumed innocent until the contrary is proved.”

1. The burden placed on the prosecution to prove the guilt of the accused never shifts and it has been stated that it lies in the prosecution’s backyard and never shifts. The prima facie obligation is vested with the prosecution. The success or failure of it depends wholly on the evidence presented to prove existence or non-existence of a fact or facts in issue as derived in Section 107(1), 108 and 109 of the Evidence Act.
2. The term Prima facie is note defined under Section 306 of the Criminal Procedure Code but the concept appears both in criminal and civil law. It is therefore a concept used in the law both as an adjective and as an adverb.
3. In the case of Woolmington – Versus - The D.P.P (1935) AL 462 which a is a landmark in the case of the House of Lords, the presumption of innocence was discussed and it was held that the burden of proof in criminal cases lies with the prosecution who must prove the guilt of the defendant beyond any reasonable doubt. The case clarifies the role of the prosecution and the defense in criminal cases and upholds the principle of the presumption of innocence.
4. As to what constitutes the burden of proof it was held in Miller – Versus - Minister of Pensions (1947 2 All E.R 372-373 it was stated that:-

“The degree is well settled but must carry a high degree of probability –proof beyond reasonable doubts does not mean proof beyond a shadow of doubts. The law would fail to protest the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.”

1. Better still, the learned authors Blackstone’s Criminal Practice 2002 at Section D14, 27 advanced and strongly urged upon the trier of the case to keep and check over the following in respect.
2. If there is no evidence to prove an essential element of the offence a submission must obviously succeed.
3. If there is some evidence which taken at face value – establishes each essential element, the case should normally be left to the jury or in our case the trial judge.
4. The judge does however, have a residual duty to consider whether the evidence is inherently weak or tenuous. If it is so weak that no reasonable tribunal or jury properly directed could convict on it, then a submission should be upheld. Weakness may arise from the sheer improbability of what the witness saying from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the courts has shown to be of doubtful value.
5. The question of whether a witness is lying is nearly always one for the jury as this case for the judge.
6. At this stage, the court is not concerned with the test of beyond reasonable doubt, but whether there exists some prima facie evidence capable of calling the accused persons to state their defense.
7. The Criminal Procedure Code under Section 306 provides as follows:

“ (1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit recording a finding of not guilty.

(2) When the evidence of the witnesses for the prosecution has been concluded the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court on his own behalf or make unsworn statement and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether is intended to call any witness as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.”

1. In this case the burden was on the prosecution to prove the ingredients of the charge under Section 203 of the Penal Code. This includes to prove of death of the deceased was caused by the unlawful acts or omission of the accused persons and the role they each played or common intent. Further  that the accused persons had malice aforethought.
2. Section 203 of the Penal Code provides:

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

1. The prosecution adduced sufficient  evidence to prove the death of the deceased. This, according to the post mortem report, was said to be septic burns with fluid and electrolyte imbalance with shock. The injuries noted were burn wounds on the face , neck, head, anterior chest and back and part of the fore arm.
2. The relatives and friends who took the deceased to hospital  said he had other injuries.  The deceased never left the hospital and it would have been prudent to produce the records as well.  His nutrition status is also recorded as wasted. 
3. The late Juma suffered immeasurable and excruciating pain  and had an agonizing death.  He remained in hospital from19th July 2019, up to 5^th January when he eventually passed on . He was unfortunate to be caught up in the doctors’ strike and had to be shifted between Voi hospital and The Coast Referral Hospital.
4. On whether the accused persons caused the injuries that led to the death of the deceased Juma ,out of the 9  witnesses none adduced direct evidence on how the deceased met his death. We have analyzed the dying declaration and found it to be wanting.  There was no other forensic or circumstantial  evidence .
5. The motive was somehow present.  Especially in respect to A1.    His role in the death was however not proved.
6. It is trite that suspicion no matter how strong is not sufficient to prove a fact.
7. The test for a prima facie case was laid down in the celebrated case of R.T Bhatt – Versus - Republic (1957) E.A 332-225.
8. Remembering that the legal onus is always on the prosecution to prove the case beyond reasonable doubt, I cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one, which on full consideration might possibly be sufficient to sustain a conviction. This is perilously near suggesting that the court will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends on whether there is some evidence irrespective of its credibility or weight, sufficient to put the accused on the defence.
9. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence, it may not be easy to define what is meant by a prima facie case, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.
10. The unlawful act by a person charged with murder is proved when it is caused on another person in circumstances which are not permitted or authorized by the law. Every act which causes the death of another is therefore unlawful except where circumstances make it excusable or where it has been authorized by the law.
11. Section 306 of the Criminal Procedure Code provides:-

(1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.

(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.

(3) If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against the accused person; but if the accused person says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon him to enter upon his defence.”

1. In this case, the prosecution failed to call sufficient evidence to prove that the accused persons caused the death of the deceased. In the case of Republic – Versus -  Bargoiyet & 3 others (Criminal Case E038 of 2019) [2024] KEHC 9090 (KLR) (22 July 2024) (Ruling) it was held that:-
2. The question is whether the prosecution has adduced sufficient evidence to warrant the court to put the accused on his defence. The test is whether if he is put on his defence and opts to keep quiet the court can convict the accused based on the evidence so far tendered by the prosecution. I find that the evidence of the witnesses fails to meet the threshold required to establish a prima facie case. Calling the accused to give their defence would be to invite them to fill the gaps in the prosecution’s case.

Conclusion and Disposition

1. In the end,  and taking the above matters into consideration, it is imperative at this point for the court to dismiss the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code as constituting a charge not proven within the provisions of Section 306 of the Criminal procedure code to warrant the accused persons to place on their defence.
2. As pointed out above the investigations were half hearted. I pray that the investigators  did not act on the premise that the deceased courted his own death by drinking from a forbidden well which even his relatives had warned him to desist.  That would have been most unfortunate for no one should take another’s .
3. I say this because the most probable motive for this grisly murder was the alleged love triangle .  Unfortunately, we did not get sufficient evidence and in a criminal cases, we do not act on possibilities.  We rely on evidence and in this case, what we had did not meet the threshold.    We can only hope the deceased rests in peace and finds affordable love  in the thereafter as  on this side, it ended up in the disaster that costs him his life. 
4. As for the perpetrators we leave them to that other tribunal whose investigative arms faulted not.
5. Each accused person be and is hereby set free unless otherwise lawfully held.
6. The securities deposited to  herein be released to the the  depositors.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……30th.…………DAY OF ……………January…………..…….., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

1. M/S BEBORA COURT ASSISTANT
2.  MR.NGIRI FOR THE STATE
3. THE 3 ACCUSED PERSONS
4. MR. MAGOLO FOR A1 AND A2
5. MR. BWIKA FOR A3