1. The accused person Kennedy Mutune Kilika was charged with murder contrary to section 203 as read with section 204 of the Penal Code.
2. It was alleged that on 7/9/2019 at Songea market, Mangelete Sub Location, Nthongoni Location in Kibwezi Sub Location Makueni County he murdered Kitonyi Kimanzulwa.
3. On 2/10/2019, he took plea and pleaded not guilty before the Hon. H.I Ong’udi J.
4. The matter proceeded for hearing on 1/10/2020 before the same Judge who heard four of the prosecution witnesses. The other seven were heard by Hon. Dulu J. who found that at the close of the case for the prosecution, the accused had a case to answer.
5. I took over the matter at the defence hearing and heard the case for the defence.
6. The case for the prosecution was set out by PW 1, 7 and 8.
7. The scene was at Travellers Bar and at Royal Docks Hotel, Migingo, Songea at Mtito Andei.
8. On the material night PW1 Stanley Mutunga Daudi was enjoying drinks and muguka at Travellers bar with his friends Mwalimu, Landline and Ken. At some point about 9:00pm Ken went outside and when he came back he told them that he had collided with one Kitonyi. He later left. About 1:00am PW1 received a message from one Mwanzia that Kitonyi was found lying on the ground in a corridor. He said Ken had a pen knife he was using to open drinks – but it was not among the ones he was shown in court.
9. PW7 Francis Omar Ali was at Migingo bar on the material night and did go to Travellers. He took alcohol with his friend and that is where he heard a commotion. On checking he saw two people he knew – Ken and Kitonyi. They were holding each other. Kitonyi was very drunk. He among others, tried to pacify them – they were separated. Kennedy went back into the bar as the deceased was bargaining with a boda boda rider. The following day he learnt that Kitonyi had been killed and his body had been taken to the mortuary.
10. PW8 Robert Ngutu found Kennedy and Kitonyi in a scuffle outside Travellers bar. Kitonyi requested him to take him on his boda boda to Songea. He took him and another on the boda boda to Royal Docks Hotel and left them there. The next day he learnt that Kitonyi had been killed.
11. On his part PW5 Safari Nzangi told the court that he was an employee of the owner of Royal Docks, his job was to take stock in the four clubs belonging to the same proprietor– which included – Royal Docks Migingo, Songea, Kathekani and Landi market.
12. On the material night he went to Royal Docks Songea and found the employee – the waiter there – one Veronica Mwende. That day he saw Kitonyi there with others. He left for other clubs and came back at 10:30 pm for closing stock. He testified that he met Veronica walking around outside the gate – and asked her why she was not at work. She told him that Kitonyi had been attacked by Ken who had stabbed him. That Kennedy had warned her not to tell anyone otherwise he would kill her. PW5 told her to accompany him to the scene. They went. He saw Kitonyi was lying down. He was breathing but was not talking. He phoned his manager, who phoned the OCS.
13. The family of the deceased learnt about it from one Elizabeth. PW2 Christine Matheka, the sister to the deceased testified that her friend Elizabeth went to her house on 8/9/2019 at 11:00pm and told her she had seen her brother fallen at Royal club bleeding a lot. PW2 called her brother PW3 Muinga Kimanzula. Both went to the scene and found their brother lying in a pool of blood – with a deep stab wound on his left arm. The matter was reported at Mtito Andei police station and the body taken to the mortuary – by this time their other brother PW4 Mutuku Kimanzula had arrived.
14. They attended the postmortem on 11/9/2019.
15. PW3 testified that he led the police to the home of Kennedy and two knives, one with blood stains were recovered from his house. He identified both knives in court.
16. PW6 Dr. David Kasanga produced the postmortem report. He testified that the postmortem was performed by his colleague Dr. Masila. There was no objection. He testified that it was the body of a 43 year old African male in good nutrition. He had a penetrating wound on left arm – the main blood vessel was severed – cause of death was cardio-respiratory failure due to shock from bleeding. He said the injury was caused by a knife.
17. PW10 Mwidadi Omar, a Government Analyst testified that he received three exhibits – pen knife marked Y, blood of deceased marked A and finger nail marked C. Upon investigation, analysis he found that the pen knife ‘Y’ was positive for human blood, male blood. The finger nail did not produce any DNA. The blood from the knife matched the blood from the vacutainer.
18. PW11 the Investigating Officer No. 83192 Corporal Thomas Kikwai – he testified how he received a call from his OCS on 8/9/2019 and he went to the police station. There was a reportee that his brother had been killed. They proceeded to the market, Songea market – on arrival they found the deceased identified as Kitonyi Kimanzula who was lying at the gate to Songea bar. Blood was scattered, there was a bunch of keys and coins – which he took and produced in court. There were skid marks on the ground which appeared to him like human skid marks – showing dragging of a human person. He said they interrogated one Veronicah Kyalo a bar attendant at club where the deceased was found. The deceased was there and he was drunk. Kennedy appeared and a quarrel ensued – that a fight began and Veronicah ran to her house leaving them fighting. When the noise stopped she came out and saw the deceased lying on the ground – and the accused was not there. They took the body to the Kibwezi hospital. They were assisted by the brother of the deceased to find the house of the accused. They found accused and his wife. They conducted search and recovered a knife out of the pocket of his coat. There was a box with tiles where they recovered another knife – this one appeared to have blood stains. He prepared an inventory which was signed by the accused and his wife – the inventory was PEX 7. These knives were presented to the Government Analyst PW11 for examination.
19. The police also took photos of the scene – which were produced together with the certificate, as PEx 8(a), (b) and (c).
20. According to Investigating Officer the accused and deceased fought at the Travellers bar, the deceased escaped and left the accused. That the deceased followed the accused where the death occurred. He said they fought out of drunkenness. He said when they arrested the accused he had injuries on the neck and they took him to hospital for treatment. He did not explain how the accused sustained injuries.
21. The accused Kennedy Mutune Kilika gave a sworn statement of defence. He said he was at work on 8/9/2019 at 6:00pm – then he went to Migingo market. He met the deceased Kitonyi Kimanzulwa who had known for long. He was very drunk. It was outside Travellers club at Migingo. When he greeted the deceased, the deceased slapped him. He did not respond but ignored him. He said as he entered the club, the deceased took a boda boda and left. He stayed in the club until 7:30 pm then left, took a short cut and went home. He went home and slept. The following day while at home the police came and arrested him. He conceded that the knives were recovered, one from his coat in the bedroom, the other from a carton in the same bedroom. He said one of them had been used to slaughter a chicken and that explained the blood.
22. He denied killing the deceased and said that he was told he was arrested because he was the last one to be seen with the deceased. He denied going to Royal Docks. He stated that he only passed outside the Royal Docks while on a boda boda.
23. The parties had stated they would file written submissions but at the time of writing this judgment there were none.
24. At the close of both the prosecution and defence case the issue is whether the prosecution has proved its case against the accused beyond a reasonable doubt to sustain a conviction for murder.
25. Section 203 of the Penal Code states: -
Any person who of malice afore thought causes the death of another person by an unlawful act or omission is guilty of murder.
Section 204 provides for the punishment of murder – that any person convicted of murder shall be sentenced to death.
26. The ingredients of murder were set out in Antony Ndegwa Ngari –vs- Republic [2014] e KLR
…For the offence of murder, 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.
27. The court went on to set out what amounts to malice aforethought stating;
The issue for determination is whether the appellant had malice aforethought when he stabbed the deceased. Instances when malice aforethought is established is provided for in Section 206 of the Penal Code: - “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstance: -
(a) An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) An intent to commit a felony;
(d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
28. On whether or not the deceased died, there is no question about it. There was a postmortem report – and his family members, the police and other prosecution witnesses witnessed the deceased’s body.
29. Whether the death was unlawful is clear from the circumstances. The deceased went for a drink, he was found with a deep stab wound in his left arm – cutting through a major blood vessel. He died from massive loss of blood. That is not a lawful death.
30. Who caused his death? It is evident from the evidence that no one saw the deceased being stabbed. However, there is evidence that shortly before he was found stabbed and bleeding on the ground he had a quarrelsome exchange with the deceased. The accused was seen quarrelling, fighting with the deceased at Travllers bar. This was witnessed by among others his own friends PW1 who said accused told him he had collided with deceased – PW7, PW8 saw the scuffle, PW6 said she heard of the scuffle. There was no one else who disagreed/fought with deceased before he was killed.
31. PW5 a co-employee with the waitress at the Royal Docks Hotel where deceased was stabbed told the court that this waitress Veronica told him that the accused and the deceased fought. She saw them fighting. She left them fighting and when she came back – found the deceased on the ground and the accused threatened her if she told anyone what she had seen. She never testified in this case. PW5 testified that he found Veronica ‘roaming’ outside the pub. She was supposed to have waited for him in there for him to come and take the closing accounts. PW5 testified that he and Veronica went where the body was – and he confirmed that deceased had been stabbed and was lying on the ground. PW5 did not see accused that day but he told the court what Veronica told him. He saw the body, called his manager to report the incident, and his manager called the OCS. It is possible that Veronica feared for her life – that being the reason for not testifying. PW5 sounded (from the record) like he told the court what he heard, what he saw and I find no reason to doubt his testimony.
32. The murder weapon was found inside the house of the accused. He confirmed that the knife on which blood with DNA matching that of the deceased was found.
33. The injury on the body of the deceased was a stab wound caused by a knife.
34. The accused’s defence was that he met the deceased about 6:00 pm, his own friends say the collision happened at 9:00pm – and not 6:00pm. PW7 also confirmed the fight was at about 9:00pm and PW8, the boda boda guy who ferried the deceased to the Royal Docks from Travellers. The PW7 confirmed that as the deceased was bargaining with PW8, the accused was there. They had just been separated. The accused went back into the bar. The deceased left on PW8’s boda boda. Why would the accused lie about the time he was at the pub – Travellers bar – yet he was seen by witnesses. There was no evidence that these witnesses who place him at the Travellers at about 9:00pm had any reason to lie. These witnesses were not together. PW1 was there having drinks with the accused, PW7 was going to have drinks with his friends, PW8 was a boda boda rider passing by the Travellers pub- and each of them saw the accused outside the Travellers bar around 9:00pm.
35. The accused’s denial of being at Travellers bar at 9:00pm, and having met the deceased at about 6:00pm cannot be true because there is overwhelming evidence that that was not the case.
36. The accused was at the Travellers about 9:00pm. He fought with the deceased. He heard from the conversation between the accused and PW8 that he was going to Royal Docks. He followed him there – and a fight ensued.
37. The accused lies established malice afore thought. That even though both were drunk, the accused followed the deceased while armed with a knife stabbed him and left. He caused him grievous bodily harm when he stabbed the deceased’s left arm. There was a struggle and he left his colleague bleeding on the ground and disappeared.
38. From the foregoing the ingredients of murder have been established and the accused is guilty as charged. He is convicted accordingly.
Dated, signed and delivered virtually on 28th August 2024
Mumbua T Matheka
Judge
Ms. Mwanatumu CA
Ms. Nyakibia for state
Accused present
Mr. Kioko for the Accused