1. Mgandi Mambo Mgandi is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya.
2. The particulars being that on the 4th day of February ,2023, at Mwashanga village in Mwatate Location , Mavirivirini Area in Samburu Sub county . within Kwale county, he murdered Ngandu chiboke.
3. He pleaded not guilty and the state called a total of ELEVEN (11) witness. These were:
i. Onesmus Chiboko Mgandi
ii. Hamisi Galuka Chiboki
iii. Mambo Mbanju Mugala
iv. Josephine Mwendwa
v.Dr. Hemedi Omar
vi. Patrick Nzembe mambo
vii. Mjeni Tsuma
Viii. Ndute Kiboko Mgadili
Ix. Saidi Mwamali Onesmus
x. CP Bosire Abuba
Xi Mwidali Omar
The investigating officer (Pw10) No. 85533 Bosire Abuba, received the report, visited the scene on the material date and the next with the DCI. He recovered the various exhibits which he produced as number 1 to 7. He also recorded the statements.
The Government Analyst (PW II) Mwidadi Omar produced his report dated 07/10/2023 and exhibit memo as EXMS 10 A and B.
4. The Postmortem report was prepared and produced by Dr. Hemedi Omar and he produced it as PEXT 9.
5. After analyzing the prosecution case, the court was satisfied that the state had produced adequate evidence and the accused person was placed on his defence.
6. In an interesting turn of events, the accused person who was represented by learned counsel Ms. Munyari admitted to causing the death of the deceased. Ngandu Chiboko in his sworn statement stated and he repeated thrice that “nilimchinja hapa kwa shingo”. Translated to I slaughtered him here on the neck. He was even demonstrating with his hand how he did it. This however was not an unequivocal admission of the offence of murder as he then raised the defences of intoxication, provocation and self defence.
7. He mentioned that they had been drinking with the deceased Ngande Chiboko and Nzembe Mambo (PW 6) from 2.00pm up to 9.30pm or thereabouts. That it is the deceased who provoked the dispute ‘ugomvi’ by questioning why he had spent 3 years working in Garisa yet he had not even constructed a house and was disturbing the parents. That they held each other by the shirts and PW 6 tried to separate them. That the deceased had a knife which touched him on the right side of the head. He then removed his shirt to show the court a scar on the back but it was not visible. That when he felt blood and saw he had been stabbed he lost his temper and he took the hand which the knife and that is when he slaughtered the deceased on the neck.
8. He maintained that it is the deceased who had the knife and he only took it to defend himself. It is against this background that we have to test the prosecution case, bearing in mind that the legal burden rests on the prosecution to prove all aspects.
The Law ,Analysis and Determination
9. 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.
10. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. The accused person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased.
11. 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.”
12. In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:
“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”
THE DEATH
13.The death is not disputed. Nevertheless, the post mortem form P EXT 23 A confirmed the same. We had witnesses who attended the post mortem to identify the body. These were Onesmus and Mwamali PW7 and 8. The death was proved.
The Cause of Death
14. The postmortem shows the cause of death as “severe hemorrhage secondary stab wounds using a sharp object”. Externally, Dr. Hemed – noted the following injuries:
Multiple stab wounds on the 4 chest,
_ upper and middle 1/3 of the sternum – Right below the nipple.
- Deep cut wound at the left of the neck, left ear.
- Defensive cut wounds on the right wrist and lower fore arm.
15.Internally the pathologist noted that there was a left stub wound penetrating the ribs left contusion of the lungs,
hemothax, stabs area at the base of the heart.
Liver – linear cut on the lower lobe.
15. From the evidence on record, the accused person was with the deceased and Patrick Nzembe Mambo (PW 6) that evening. They had earlier on attended the burial of the brother to PW 6 before proceedings to buy palm wine at the home of Mzee Mashaka. They drank some palm wine then they went to the home of PW 6 with some take away palm wine. This was around 6.30pm.
16. PW 6 said they sat at his father’s Munga Mambos homestead (PW 3). This was confirmed by PW 3 who said he left the 3 taking alcohol outside his son’s house. PW 3 added another twist to the story as he said when the 3 had arrived home, the accused had gone up to him and told him that “Leo utalia wewe” translated to “Today You will cry.” That he had asked the accused why he would cry and the accused had hit the ground with his hand 3 times as he licked the soil on his hand whilst telling him – “utalia baba” That is to mean You will cry father That after a while the accused had said he was going to buy a quarter alcohol and keep vigil at his door and he (PW 3) had respondent “no problem”.
17. THAT PW 6 then escorted the accused and the deceased and after a short while he (PW 3) heard screams. His wife said the voice was that of PW 6 and he went to the scene and he found PW 6 bleeding from the left side buttock.
18. PW 6 narrated that as he was escorting the accused and the deceased, they reached outside the compound, the accused hit him on the chest with a stone and when he fell down, the accused person stabbed him on left buttock. He was however able to crawl back home where he raised an alarm and others like his wife and father (PW 3) responded and he was taken to hospital. PW 3 testified that when he called the village elder to report that PW 6 had been stabbed, the village elder told him that the deceased had been killed.
19. There was no eye witness to the actual stabbing of the deceased. He however (deceased) raised an alarm and people including his wife and his brother Hamisi Gachoka (PW 1) responded and they found him behind the house bleeding. It was established that the deceased had been drinking with the accused person and they went to his (accused) home and found his wife Joselyne Mwaka (PW 4). The deceased was called out and questioned and that is when they noted he had some bloodstains on his forehead, vest EXT 5B, jeans EXT 5 A and the sheet – PEXT 5C. He was then apprehended. In the meantime PW 2 had gone and brought the police officers who re-arrested the accused person and recovered one sandal – PEXT 1.
20. The next day the scene was re-visited and the other sandals, EXT. -2, Jerrycan recovered .
21. The scene was also visited by the Investigation and the photographs taken. The wife to the accused identified the sandal that was recovered at the scene that night as belonging to the accused person.It had blood stains. The other sandal was recovered the next day in his granary together with the jerrycan. They were taken for analysis. On the cause of death, the evidence and the admission of the accused person all point to him as the sole culprit.
22. As earlier said the accused person raised various defences and these will be considered as we analyze the evidence in the intention
23. Mens Rea
24. On the element of malice aforethought, the prosecution must prove beyond reasonable doubt that the accused intended to cause the death of the deceased. Malice aforethought is defined and well explained under section 206 of the Penal Code as follows
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c)an intent to commit a felony;
(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
25. This being a murder charge, the prosecution had the onus to prove mens rea and actus reus. The actus reus has been established. The mens rea of murder is traditionally called malice aforethought and it connotes existence of culpability or moral blameworthiness on the part of the accused person.
26. The Court of Appeal in Bonaya Tutu Ipu & Another Vs Republic [2015] eKLR stated as follows on the prove of malice aforethought; - “It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances.
27. Further in the persuasive decision of Chesakit Vs Uganda, CR. app. no. 95 OF 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex v Tubere s/o Ochen [1945] 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue: It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick.
28. AS earlier pointed out , the accused person more or less admitted that he caused the act which Led to the death of the deceased. The more critical issue to determine is whether he intended to murder the deceased. All the witnesses testified that the two, who were distant relatives had no known grudges. In fact they had spent the greater part of the day together.
29. PW 2 and the Investigating Officer thought that perhaps the accused person killed the deceased so as to eliminate the evidence that he had stabbed PW 6. This is possible though the accused person denied that he made the threats to PW 2. The court noted that PW 6 corroborated his father’s evidence that indeed the accused person had uttered words to the effect that they would cry that day. The accused person mentioned some property dispute but I note that this was not brought up during the cross examination of either PW 2 or PW 6.
30. The accused person also brought up the issue of self defence. Firstly, we note that he did not seek any medical attention and he . went to his home from where he was arrested. I also note the intensity of the injuries on the deceased. It was not just one cut but multiple deep penetrating wounds on multiple places. There was a stab wound penetrating the ribs , left lung contusion and stab at the base of the heart and a linear cut at the right to be of the lung.
31. There were also other cuts on the neck, left ear and defensive wounds on the right wrist and lower zone arm. These are very intense and multiple injuries which cannot be accidental. They were also inflicted with a sharp object which show that the accused had armed and prepared himself. The court does not believe that it’s the deceased who had the knife as the accused person also stabbed pw6 who was behind before he pursued the deceased.
32. The deceased died near his home and his wife Mgeni Tsuma (PW 7) who heard him call out stated that he was saying ‘mamake Kiboko nauwawa na baba mdogo”. That is I am being killed by ‘my small father”. This clearly was a cry for help by a victim and that the aggressive was cry of an attacker.
33. As regards the defence of intoxication, in as much as its availed in our law books it is not a full defence on its own. One has to place themselves within one of the 3 limbs. These are set one in section 13 of the CPC and the accused person did not fall in any of these 3 categories. Firstly, He was not intoxicated by anyone else. He consumed the palm wine voluntarily. Secondly, He was not temporarily insane so as not to know what he was doing and neither was he so intoxicated so as not to be able to form any mens rea. He admitted that he got angry when questioned about his lack of investments and that question ought not to cause one to lose their lives. He also said he got very upset when he was cut. So , he was fully in control of all his senses when he decided to slaughter the late Ngandu Chiboko. He not only slaughtered him but also viciously and most violently stabbed him causing injuries which penetrated to past the ribs to lungs ,and heart. This was clearly an intention to murder.
34. Further from an analysis of the entire evidence, the accused person had some evil intention from earlier in the day when he told PW 2 that he would cry. He not only injured PW 6 grievously, but he also continued to viciously attack the deceased and he proudly said in court – “Alimchinja”. That is a classic example of a deprived mind if at all one need to study. There cannot be any other conclusion than that he intended to kill the deceased as shown by the intensive of the attack.
35. Accordingly, both the act and the intension to murder have been proved. The court finds that the accused person is guilty of the charge of murder contrary to Section 202 and read with section 205 of the penal code. He is convicted accordingly.
DATED SIGNED AND DELIVERED THIS 28TH DAY OF NOVEMBER 2024.
LADY JUSTICE WENDY KAGENDO
IN THE PRESENCE OF
THE ACCUSED AND HIS ADVOCATE MS MUNYARI
MS MAINA FOR THE STATE
BEBORA COURT ASSISTANT