REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO E036 OF 2022
REPUBLIC…………..………………………..…………..PROSECUTOR
VERSUS
MICHAEL AYEKHA MANGA…………….….……...…1 ST ACCUSED
HAMPHREY SICHANGI WANYAMA………………….2 ND ACCUSED
ELIAS WEKESA WAFULA…………………………..…..3 RD ACCUSED
HENRY MANYASA OPICHA……………………..………4 TH ACCUSED
JUDGMENT
Michael Ayekha Manga, hereinafter referred to as the 1 st accused, Humphrey Sichangi Wanyama, hereinafter referred to as the 2 nd accused, Elias Wekesa Wafula hereinafter referred to as the 3 rd accused person and Henry Manyasa Opicha hereinafter referred to as the 4 th accused person are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that; on the 30 th day of November 2022 at the Soysambu location in Tongaren Sub-County within Bungoma County jointly with others before the court murdered Alfred Wanyonyi Namusasi.
Each accused person pleaded not guilty to the charge. The prosecution called nine (9) witnesses to prove their case.
PROSECUTION CASE
Roseline Nafula Wanyonyi (Pw1) the wife of the deceased testified as follows; she knows the accused persons, the 1 st accused is Manga is from Namatole, the 2 nd accused is Humphrey Sichangi is a neighbour, the 3 rd accused is Elias Wekesa is a neighbour from across and the 4 th accused is Henry Opicha, she bought a shamba ( land ) from his grandmother. On the night of 29 th November 2022, whilst at home with the accused, they heard people singing loudly, “ we are finishing him, we are finishing him ”. On the 30 th of November 2022, the deceased went to report the incident of the 29 th night. She was Pw2 pastor John inside the house. The deceased returned home at 5.00 pm. Whilst in the house they heard someone ask, “ who is selling, who is selling ”. They have a shop within their home. The deceased told her he would go to the shop. She saw Elias (3 rd accused) glancing around and shortly thereafter she heard the deceased screaming. She saw Elias hold one of the deceased’s legs and Manga the other leg. She heard Henry say they had the permit of the medicines the deceased uses and Humphrey said they were fed up with the deceased and that he would die. They pulled the deceased on the ground and went towards the market. They were joined by others but he recognised the 4. She heard Henry say they would take him to the river Nzoia. She heard the deceased say that they had planted something on him which he had not done. She decided to stay at home. She saw them return again, they were singing circumcision songs saying, “ we have finished him”. She went out and saw the 4 again. She was pulled by her children to a shamba with maize stocks. Whilst at the maize plantation, she saw the four accused persons telling people not to cry. Manga poured petrol on the maize, clothes and wimbi. This was about 9.00 pm. They burnt down everything. The people had lights and there was light from the car. The body was later removed from the river. During cross-examination, Pw1 told court that the person who came calling the deceased came at 5.00 pm. She went outside with the deceased to see who was calling the deceased through the window. She heard the deceased scream and went out immediately. She did not follow them as she did not have the strength to do so. She does not know what happened at the river. They left at 6 pm and returned at 8 pm. There were approximately 500 people. She did not see Hudson there. She stood behind a tree and watched what was happening. There were enough lights. She admitted that they have had land disputes with the 4 th accused’s family and that in 2016 the 4 th accused cut the deceased with a panga. John who was in the house was afraid of going out.
Peter Namusasi Mukui ( Pw2) testified that the deceased is his father. He was not there when he died. He witnessed when his body was removed from the river and they took him to the mortuary. On 2.11.2022 he attended the post-mortem at Kitale District.
John Wafula Wanyonyi (Pw3) testified that he is a pastor with the Salvation Army. He knows the deceased. He knows the accused persons too. The 1 st accused is Michael Ayekha Manga, the 2 nd accused is Humphrey Sichangi, the 3 rd accused is Elias Wafula and the 4 th accused is Henry Manyasa. He has known the accused persons for a long time. On the 30.11. In 2022, he went to visit the deceased at his home at 5:00 p.m. While inside the house he heard Elias say that there was a customer who wanted to buy something. The deceased went to the shop, then he heard the deceased screaming saying he was being killed. He went out and saw Mike and Elias holding Mzee, who was holding the deceased together with Humphrey and Henry. They were with Job Matii Hudson Otika Maajimbo who are not before the court. They held the deceased and ran away with him. They hit the deceased with a panga and rungu. Job had a knife, Mike had a knife and rungu, Elias had a rungu, and Humphrey had a panga and rungu. They used the weapons to hit and cut the deceased. He was with Pw1 only then. They pulled the deceased towards the river. He did not follow them. They came from the river singing a song that they had finished their work. He remained in the compound, Pw1 was in bad shape. They were later joined by Eric Pw1s son, Edward a church elder, and Boaz Mokolongolo. At about 8 pm, while still in Pw1’s home, he saw Michael, Humphrey, Elias, Hudson, Job, and Henry. The accused persons were the first to arrive. They had lights and the place he was in had solar lights. They entered the shop and took out everything and burnt them. They looted the items in the house and started a fire. They burnt the store and Peter’s house. They also burnt his motorbike KMCE 891E. Pw1 was in the shamba then. They spent the night inside the shamba. The next day, the four accused persons returned at 8:00 a.m. Hudson told them that no burial would take place. The police later went to the home. By then the accused persons were talking carelessly. They proceeded to the river and saw some blood. The body was retrieved from the body at 3.00 pm. They informed the chief. At about 7.00 pm. They heard them singing again. They wanted the body to burn it. They hid the body and called the police. During cross-examination, Pw3 told the court that he saw Elias when he called out for someone to come out. The main door was open. He saw the accused persons armed and they pulled the accused towards the river. The police came the first day but not the next day.
Americas Wanjala Wanyonyi ( Pw4) testified as follows; the deceased is his father. He was in school with the 1 st accused, the 2 nd accused is a neighbour, the 3 rd accused is also a neighbour, and the 4 th accused is also known to him, his grandfather sold land to his father. On the 30 th of November 2022 at 8.00 am, his father called him and told him to go home quickly. He went home and found his father at the shop. His father told him that they had not slept the whole night as people were singing traditional songs and that he was a witch. He advised his father to go to the police. He left their home at 10.00 am. At 1.pm he returned home. He saw Sichangi (2 nd accused) pass. He heard the 2 nd accused say, “ Huyo Mzee saa yake imefika ”. They left with the father as he went to Soysambu. Later Margaret called him and told him his father was going to be killed and that they were taking him to the river Nzoia. He decided to report, but the police chased him to the Soysambu police station. He did not find any officer at the said police station. This was about 7.00 pm. He decided to go to their home. He met with the boys, singing, “ we have finished our work ”. He met with a group of people, the 4 accused persons were among the people in the group. There was moonlight and he was able to see them. His motorbike lights were also on. His mother told him that they had taken the deceased to the river. He left Pw1 with the pastor in their home. He took a torch and went to the river and he saw a blood trail towards the river. He went back home his father was not home. He rang people and told them that his father had been killed. Mukasa called him and told him that the people who had gone to Soysambu were heading towards their home to burn their houses. He heard them singing approaching their home. He pulled his mother away and led her to the shamba. He observed them as they removed things from their home and burn the items. He was able to move around. He saw Michael Manga, Humphrey Sichangi , Elias Wafula and Henry Munyasa, Hudson Majimba, Dennis Wekesa, Job Matii and Yuana. He saw them burn the houses. At one time he hit Elias and they went for him and he ran away to a neighbour’s place and hid there. His mother hid in the shamba. At 7:00 a.m., the crowd returned, saying it was time to celebrate. Police came and they went to the river but they did not find the body. They went back the next day and found the body at 3.00 pm. The body had injuries on the head, neck, and back and cuts on his hands. His eyes had been pressed. They called the chief and police. They did not go to pick the body. At 7.00 pm they heard the people sing again they wanted to burn the body. They hid the body and later took it to Kitale District Hospital. During cross-examination, Pw4 told the court that he was not home when his father was killed. He did not see the 4 kill the deceased. Humphrey had been threatening the deceased for two weeks before the said incident. A group of 100 people went to their home.
Edward Wafula Wabwire ( Pw5 ) recalled that he knew the deceased. On the 30 th November 2022 at 7.30 pm he was called by Americus who was crying “they have killed my father” then he hang up. He decided to go to the home of the deceased. On his way, he met with a crowd from the deceased’s home. He met with Americus and his mother and they were crying bitterly. The two told him that the deceased had been killed and the body taken to the river. After 20 minutes, the pastor told them that there was a crowd heading towards the home to burn the houses. They decided to stand aside and see what would happen. The crowd went to the home of the deceased. They had stones. They lit fire in the houses and the shop. They stayed outside in the cold with Pw1 till the next day. They later retrieved the body from the river. He saw the 1 st accused at the home. During cross-examination, he told the court that he did not witness the murder. He saw Michael throw stones into the house. He knows Michael, who is from his area. He does not know the other accused persons. There was light from the fire, the motorbikes, and the store light too. He did not see the 2 nd , 3rdcand 4 th accused persons at the home. The deceased was killed because of witchcraft. He was aware of a land dispute between the deceased and the person from whom he had bought the land.
Doctor Dennis Mayingi ( Pw6) recalled that on 6.12.2022 he performed a post-mortem on the body of Alfred Wanyonyi Namusasi. The body had multiple bruises on the face chest abdomen upper and lower limbs. There was also an anterior fracture of the mandible, a fracture of the left arm and his fingernails were blue and purple. There was skin peeling on the chest area, and a wound on the torso of the head measuring 3cm and 0.5 cm. On internal appearance he had bilateral rib fractures involving the 2 nd to 8 th ribs, bilateral lung contusion and collapse, and bilateral; hemithorax of more than 2.5.litresa of blood. The heart was floppy and devoid of blood. The stomach had semi-digested food and the nervous system had multiple areas of intracerebral hematoma covering the temporal parental area bilaterally. His opinion was that the cause of death was cardio-respiratory failure haemothorax secondary assault.
Boaz Mukolongolo Chetambe (Pw7) recalled that on the 30 th of November 2022, he went to Silvester’s home. People were singing circumcision songs. He knows the accused persons. He saw Job Matii and Michael Manga enter. They had daylight lights in their hands. They had pagans and fimbo. He saw them hit the shop of Silvester with stones and his house too and then burn it. He did not know that the deceased had been killed. Later he saw the body being removed from the water. During cross-examination, he recalled that he saw a crowd of over eight people; he did not see the 2nd, 3 rd and 4 th accused persons that night. He did not stay for long.
Epaphras Simiyu Barasa ( Pw8 ) testified that on 6.12.2022 he went to Kitale District and attended the post-mortem of the deceased Alfred Wanyonyi Mausasi also known as Silvester Wanyonyi. He witnessed the post-mortem. The deceased’s body had a deep cut on the head, eye area, and nose, the jaw was depressed, his right hand was broken at the hand, the ribs too were broken and he had about blood inside the body about 3 litres. He did not witness the murder.
No. 88038 P.C. Shadrack Marangu (Pw9) testified that on 3.12.2022 this case was assigned to him by the DCI to investigate. He went to Soysambu to the home of the deceased. He found houses burnt. A murder had occurred. He found the wife of the deceased and their children. He was told what happened on the 30 th November 2022 by Pw1 and she took him to the river which was 500 meters away. He took witness statements. The 1 st accused had been arrested and taken to Kimilili police station. On 6.12.2022 a post-mortem was done. The 2 nd , 3 rd , 4 th and 4 th accused persons were arrested later and charged. During cross-examination, he told the court that he relied on the statements of the witnesses and he began his investigation on the 3 rd December 2022. He did not recover any weapons at the scene.
DEFENCE CASE
Michael Ayekha Manga ( 1 st Accused) testified that he stays with his aunty at Binoko. He denies the murder charge. The deceased was his aunt’s neighbour. His aunty had sold a shamba to him. The fourth accused person, Humphrey, is the aunt’s son. He worships with the 3 rd accused and the 2 nd accused is the aunt’s neighbour. On 30.11.2022 he was at the aunt’s place at 5.30 pm. After work, he took water and went to bathe. Whilst there he heard shouts from the neighbour’s place and he went to check and he saw people running to the neighbour's, the deceased’s place. He went there after bathing and found many people some held jembes, panga and some buckets. They were shouting witch. He did not know he was a witch. They took him outside his compound and they went down with him singing circumcision songs. He did not see the deceased as people were around him. The people who caught were saying it would be his last day. He went back home because he had left his door open. At 8.00pm he heard the noise again at the neighbours. He learnt the house was burning. He went out and saw the houses had been torched. On the 2 nd he heard Mama Roseline crying that her husband had been killed. Pw4 was his schoolmate. He does not know about the petrol Pw4 said he had. He never had a rungu and a panga, as alleged by Pw3. Pw7 is his neighbour. He was not carrying a fimbo. He left his aunt’s home without a weapon to go see what was happening at the deceased’s home. Pw1, Pw4 and the deceased were members of the same church. He was arrested while checking on a church member.
Humphrey Sichangi Wanyama ( 2 nd Accused) testified as follows; he did not kill the deceased. On the 30 th he was home he had a swollen shoulder. At 5.00 pm he heard screams. He did not go there. People were singing he did not know where they were going. On 1.12.2022 he heard that the deceased had been killed. The deceased was his neighbour. His wife is his aunty. Their homes are 200 meters apart. It is a lie that Roseline saw him at her home.Pw4 too lied. He had no grudge against the cousin. The case is in court because he is their neighbour. He does not know the other witnesses. There is no bad blood between them.
Elias Wafula Wekesa ( 3 rd Accused) testified that; he used to bakery work, he makes bread. He denies the charge. He knows the deceased. He used to work for the deceased in his shamba. He was not working for him at the time the incident occurred. On the 30 th November 2022, he was making dough. He heard noises and people were singing that they had caught a witch. He went to the place and found the people had held the deceased. They beat him calling him a witch. They left the home with him going to River Nzoia. The people had rungus and pangas which they used to beat him. It was 5. 00 pm. He did not see the other accused persons as there were many people at the place. He works in the village. He had not heard that the deceased was a witch whilst working for him. Pw1 lied that he was at the forefront amongst the people who beat the deceased. He did not burn houses at the deceased’s home. He does not know Pw2. He had no reason or grudge to go and beat the deceased. He could not identify the people who were at the deceased’s home.
Henry Mayasa Opicha ( 4 th Accused) testified that he is a fundi, he repairs bikes and is also a builder. He was a security person, a nyumba kumi person. On the 30 th November 2022 he was home burning bricks. He received a call from Chief Mama Christine Ndarya at 5:00 p.m. She asked him where he was, and he told her. Then, she asked him if he knew what was happening. He told her he had not heard. She requested that they meet to go to the place. People were along the road. They directed them to the River where the deceased had been taken. They went there but found nothing. They left when it was dark. They passed they the deceased’s home. There were no people there. The place was dark. One could not see outside or what was inside the home. They parted ways with Madam Christine. He did not go back there the next day because he was tired. Madam called him and told him the deceased had died. He did not meet the other accused persons that day. He was arrested at 3.00 am at night. He does not know why he was arrested. It is a lie that Pw1 saw him at her home at 5.00 p.m. He had no reason to be involved in the deceased’s death. He schooled with the deceased’s sons. He had not heard about allegations of witchcraft.
Written submissions were filed at the close of the defence case. The prosecution submitted as follows; all the elements of murder were proved sufficiently to convict the accused persons. Roseline, and John Americus positively identified the accused persons by recognition, as they were well known and familiar to them. Boaz placed the accused persons at the scene. The deceased succumbed to cardiorespiratory failure secondary to assault. The deceased’s body had multiple injuries all over the body consistent with the account given by the prosecution witnesses of a mob attack. The elements of mens rea on the part of the accused persons were established beyond reasonable doubt. The evidence of Pw1, Pw2, Pw3, Pw5, and Pw8 testified that the accused persons were part of a group that set out to kill the deceased because he was a witch. The prosecution witnesses' testimonies remained cogent, even during cross-examination. On malice aforethought, it was submitted that accused persons set out their minds to kill the deceased and actualised their intention. On the 1 st accused submissions, the prosecution pointed out that the highlighted contradictions are not material contradictions and do not shake the watertight evidence of all the prosecution witnesses as each prosecution witness gave a specific account of the event he or she witnessed at the different scenes at the deceases’ home, shop and the road. It was further submitted that, although the defence has attempted to downplay the credible prosecution evidence, the prosecution has submitted sufficient evidence to sustain a conviction.
The 1 st accused’s counsel submitted as follows; there are 3 issues for determination, whether the prosecution has established the major ingredients of murder against the 1 st accused person, whether the 1 st accused person assaulted the deceased, and whether the prosecution has proved its case beyond reasonable doubt as required by the law. It was submitted that there was no direct evidence linking the 1 st accused to the commission of the offence. The key witnesses were Pw1 and Pw3. Pw1 never mentioned that she saw the 1 st accused entering the house of the deceased neither did she say she saw the 1 st accused assault the deceased. Pw3 gave contradictory evidence on what he saw. Yet, he claims to have been together with Pw1, that he when out he saw the 4 accused persons assaulting the deceased, Job Martin had a knife, Hudson Majimbo had an axe and 1 st accused had a rungu and knife all were beating the deceased as they pulled him towards the river, Denno Wekesa was not there. Pw1, Pw3, Pw4, Pw5, Pw7, and Pw9 all gave contradictory evidence. The rest of the witnesses went to the compound after the deceased had been removed from the compound. The 1 st accused was only charged based on circumstantial evidence. Reference was made to the case of Mutilo Tulo vs Republic (2014) in which the court considered the test to be applied when the case is one based on circumstantial evidence that is:
The circumstances in which inference of guilt is sought to be drawn, must be urgently and firmly established.
Those circumstances should be of a definite tendency unerring pointing towards the guilty of the accused.
The circumstances taken accumulatively should form a chain so complete that there is no escape from the conclusion that within all humans probably the crime was committed by the accused and no one else.
It was further submitted that the deceased was a victim of mob justice due to the allegation that he was practising witchcraft a vice that is recognized by our Kenyan laws through the enactment of the Witchcraft Act.
After analysing the prosecution evidence, Mr Wanjala, for the 2nd, 3rd, and 4th accused persons, submitted that the prosecution failed to prove its case against the accused persons beyond reasonable doubt. The doctrine of mens rea was not established, nobody witnessed the accused persons beat/ kill the deceased. There was no other material evidence to corroborate the evidence adduced. Reliance was made on the case of Kipkering Arap Kaske and Kamure Arap Matata (1949) 16 EACA which gives the standard required to prove a case on circumstantial evidence. The prosecution failed to prove malice aforethought as there was no evidence to show that, indeed, the accused persons had any intention to cause the death of the deceased or to do grievous harm to the deceased.
ANALYSIS AND DETERMINATION
I have considered all the evidence on record and the rival submissions. In case of murder, the prosecution has to prove the following: the death of the deceased, that the death was caused by the unlawful act or commission by the accused, and that the accused had malice aforethought ( see Antony Ndegwa Ngari vs Republic [2014] ).
The death of the deceased is undisputed. Pw1, Pw2, Pw3 and P4 saw the body of the deceased after it was retrieved from the river two days after his murder. Pw6 performed a post-mortem on the body of the deceased after Pw2 identified the body. Pw6’s opinion was that the cause of death was cardiorespiratory failure haemothorax secondary to assault.
On whether the death was caused by the unlawful acts or commissions of the accused persons. Pw1 and Pw3 were at home with the deceased. Pw1 and Pw3 testified that Elias went to the home of the deceased and asked who was selling at the shop. The deceased left to go to the shop to attend to the customer. Shortly thereafter, Pw1 and Pw3 heard the deceased scream, and on going out, they saw the four accused persons holding the deceased, dragging him away from his home. Pw1 told the court that the 3 rd accused and 1 st accused held the deceased’s legs. She heard Henry, the 4 th accused, say that they had the permit of the medicines the deceased uses and she also heard Humphrey say they were fed up with the deceased. They were joined by others on their way to the river. The four accused persons returned later with a crowd of people singing circumcision songs, saying, " we have finished’’. Pw3 recalled that he was at the deceased’s home when the accused persons took the deceased from the shop where he had gone to attend to a customer. Elias, 3 rd accused had a rungu, Humphrey 2 nd accused, had a panga and rungu, Mike, 1 st accused had a knife. Job Matii Hudson Otika Majimbo was with them too. Henry was holding the deceased. They ran away with him. He saw them beat the deceased with the weapons they had. They pulled the deceased towards the river. The deceased did not return home on the material day. He was found dead in the river. Pw1, Pw3 and Pw4 narrated how the four accused persons and other persons returned to the deceased’s home the same evening after 8pm and burnt the houses in the deceased’s home. The accused persons, in their defence, denied being involved in the murder of the deceased. They saw the events that happened in the deceased home but denied involved in the death of the deceased. Pw1 and Pw3 are the only eyewitnesses to the events of 5.00 pm when the deceased was taken away from his home. Pw1 and Pw3 testified that the accused persons were persons known to them. The incident happened at 5.00 pm during the day whilst they were within the homestead of the deceased. They saw the accused persons return the saw evening and identified them as the persons who had been in the home earlier. Identification, in this case, was by way of recognition. I am persuaded that Pw1 and Pw3 saw the four accused persons gab the deceased from his home. The 4 accused persons carried away the deceased, beating him up. They led the deceased towards the river. The deceased’s body was found in the river. The sequence of events, as narrated by Pw1 and Pw3, clearly shows that the accused persons and other persons not in court inflicted injuries on the deceased using the weapon they had, and the deceased died as a result of the said injuries. Pw1 and pw3 told the court that the accused persons accused the deceased of being a witch. From the evidence adduced, the accused persons choose to take the law into their own hands.
I am not persuaded by the defence raised by the accused persons that they were not involved. The defense raised by each accused person does not displace the prosecution evidence. Despite their denials, they were placed at the scene by Pw1 and Pw3. In addition, Pw4 told the court that he met the accused persons at 7.00 pm the same day, singing that they had finished their work. The accused persons were with a group of people. He told the court that there was moonlight and lights from his bike. He went to the river and saw blood. The deceased’s body was retrieved from the river after 2 days. Pw5, too, informed the court that he saw the 1 st accused in the home of the deceased the same night. Pw6 noted that the deceased’s body had multiple bruises on the face, chest abdomen, and upper and lower limbs. The body had fractures on the ribs, and mandible left arm and there was skin peeling on the chest area. His opinion was that the cause of death was cardio-respiratory failure haemothorax secondary to assault.
The defence has alleged that there was a contradiction in the prosecution evidence and that the prosecution case was based on circumstantial evidence. Pw1 and Pw3 witnessed the accused persons gab the deceased, and take him towards the river. The deceased did not return home again. Pw2, Pw4, and Pw5’s evidence corroborate the evidence of Pw1 and Pw3 on what happened on the material day later in the evening. It was not the prosecution's evidence that all these witnesses were standing together in one place. Each one of the witnesses narrated what they saw the accused persons do, the accused persons whom they knew and lived within the same area. In the case of Musoke vs R [1958] citing with approval Teper vs R [1952] the court held that, “ It necessary before drawing the inference of accused’s guilt from the circumstantial evidence to be sure that there are no other co-existing circumstance which would weaken or destroy the inference’ . The events and circumstances as narrated by the prosecution witnesses unerring point towards the guilt of the accused persons. The witnesses were consistent in their evidence that the deceased was dragged away, beaten and taken to the river, where he was killed. There was further evidence from Pw3 that the accused persons went to the river after they retrieved the body, and they had to hide the body. The circumstances taken accumulatively as narrated by Pw1, Pw3, Pw4, Pw5 and Pw7 form a chain that is complete, and the conclusion I make is that the accused persons were jointly involved in the murder of the deceased on 30/11/2022.
Regarding malice aforethought, I find that the accused individuals acted with malice aforethought. They collaborated with others, not present before the court, to drag, and assault the deceased. The deceased succumbed to the injuries sustained. Their animosity towards the deceased and his family persisted into the night. I conclude that the prosecution has established its case beyond reasonable doubt. The 1st, 2nd, 3rd, and 4th accused persons are each guilty of the offence of murder as charged and are convicted accordingly.
Dated, signed and delivered at Bungoma on this 14 th day of May 2025.
R.E.OUGO
JUDGE
In the presence of:
Michael Ayekha Manga/ 1 st Accused
Hamphrey Sichangi Wanyama/ 2 nd Accused
Elias Wekesa Wafula/ 3 rd Accused
Henry Manyasa Opicha/ 4 th Accused
Miss Matere - For ODDP
Miss Natwati -For the 1 st Accused
Miss Natwati h/b for Mr. Wanjala For the 2 nd 3 rd & 4 th Accused
Wilkister - C/A
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO E036 OF 2022
REPUBLIC…………..………………………..…………..PROSECUTOR
VERSUS
MICHAEL AYEKHA MANGA…………….….……...…1 ST ACCUSED
HAMPHREY SICHANGI WANYAMA………………….2 ND ACCUSED
ELIAS WEKESA WAFULA…………………………..…..3 RD ACCUSED
HENRY MANYASA OPICHA……………………..………4 TH ACCUSED
JUDGMENT
Michael Ayekha Manga, hereinafter referred to as the 1 st accused, Humphrey Sichangi Wanyama, hereinafter referred to as the 2 nd accused, Elias Wekesa Wafula hereinafter referred to as the 3 rd accused person and Henry Manyasa Opicha hereinafter referred to as the 4 th accused person are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that; on the 30 th day of November 2022 at the Soysambu location in Tongaren Sub-County within Bungoma County jointly with others before the court murdered Alfred Wanyonyi Namusasi.
Each accused person pleaded not guilty to the charge. The prosecution called nine (9) witnesses to prove their case.
PROSECUTION CASE
Roseline Nafula Wanyonyi (Pw1) the wife of the deceased testified as follows; she knows the accused persons, the 1 st accused is Manga is from Namatole, the 2 nd accused is Humphrey Sichangi is a neighbour, the 3 rd accused is Elias Wekesa is a neighbour from across and the 4 th accused is Henry Opicha, she bought a shamba ( land ) from his grandmother. On the night of 29 th November 2022, whilst at home with the accused, they heard people singing loudly, “ we are finishing him, we are finishing him ”. On the 30 th of November 2022, the deceased went to report the incident of the 29 th night. She was Pw2 pastor John inside the house. The deceased returned home at 5.00 pm. Whilst in the house they heard someone ask, “ who is selling, who is selling ”. They have a shop within their home. The deceased told her he would go to the shop. She saw Elias (3 rd accused) glancing around and shortly thereafter she heard the deceased screaming. She saw Elias hold one of the deceased’s legs and Manga the other leg. She heard Henry say they had the permit of the medicines the deceased uses and Humphrey said they were fed up with the deceased and that he would die. They pulled the deceased on the ground and went towards the market. They were joined by others but he recognised the 4. She heard Henry say they would take him to the river Nzoia. She heard the deceased say that they had planted something on him which he had not done. She decided to stay at home. She saw them return again, they were singing circumcision songs saying, “ we have finished him”. She went out and saw the 4 again. She was pulled by her children to a shamba with maize stocks. Whilst at the maize plantation, she saw the four accused persons telling people not to cry. Manga poured petrol on the maize, clothes and wimbi. This was about 9.00 pm. They burnt down everything. The people had lights and there was light from the car. The body was later removed from the river. During cross-examination, Pw1 told court that the person who came calling the deceased came at 5.00 pm. She went outside with the deceased to see who was calling the deceased through the window. She heard the deceased scream and went out immediately. She did not follow them as she did not have the strength to do so. She does not know what happened at the river. They left at 6 pm and returned at 8 pm. There were approximately 500 people. She did not see Hudson there. She stood behind a tree and watched what was happening. There were enough lights. She admitted that they have had land disputes with the 4 th accused’s family and that in 2016 the 4 th accused cut the deceased with a panga. John who was in the house was afraid of going out.
Peter Namusasi Mukui ( Pw2) testified that the deceased is his father. He was not there when he died. He witnessed when his body was removed from the river and they took him to the mortuary. On 2.11.2022 he attended the post-mortem at Kitale District.
John Wafula Wanyonyi (Pw3) testified that he is a pastor with the Salvation Army. He knows the deceased. He knows the accused persons too. The 1 st accused is Michael Ayekha Manga, the 2 nd accused is Humphrey Sichangi, the 3 rd accused is Elias Wafula and the 4 th accused is Henry Manyasa. He has known the accused persons for a long time. On the 30.11. In 2022, he went to visit the deceased at his home at 5:00 p.m. While inside the house he heard Elias say that there was a customer who wanted to buy something. The deceased went to the shop, then he heard the deceased screaming saying he was being killed. He went out and saw Mike and Elias holding Mzee, who was holding the deceased together with Humphrey and Henry. They were with Job Matii Hudson Otika Maajimbo who are not before the court. They held the deceased and ran away with him. They hit the deceased with a panga and rungu. Job had a knife, Mike had a knife and rungu, Elias had a rungu, and Humphrey had a panga and rungu. They used the weapons to hit and cut the deceased. He was with Pw1 only then. They pulled the deceased towards the river. He did not follow them. They came from the river singing a song that they had finished their work. He remained in the compound, Pw1 was in bad shape. They were later joined by Eric Pw1s son, Edward a church elder, and Boaz Mokolongolo. At about 8 pm, while still in Pw1’s home, he saw Michael, Humphrey, Elias, Hudson, Job, and Henry. The accused persons were the first to arrive. They had lights and the place he was in had solar lights. They entered the shop and took out everything and burnt them. They looted the items in the house and started a fire. They burnt the store and Peter’s house. They also burnt his motorbike KMCE 891E. Pw1 was in the shamba then. They spent the night inside the shamba. The next day, the four accused persons returned at 8:00 a.m. Hudson told them that no burial would take place. The police later went to the home. By then the accused persons were talking carelessly. They proceeded to the river and saw some blood. The body was retrieved from the body at 3.00 pm. They informed the chief. At about 7.00 pm. They heard them singing again. They wanted the body to burn it. They hid the body and called the police. During cross-examination, Pw3 told the court that he saw Elias when he called out for someone to come out. The main door was open. He saw the accused persons armed and they pulled the accused towards the river. The police came the first day but not the next day.
Americas Wanjala Wanyonyi ( Pw4) testified as follows; the deceased is his father. He was in school with the 1 st accused, the 2 nd accused is a neighbour, the 3 rd accused is also a neighbour, and the 4 th accused is also known to him, his grandfather sold land to his father. On the 30 th of November 2022 at 8.00 am, his father called him and told him to go home quickly. He went home and found his father at the shop. His father told him that they had not slept the whole night as people were singing traditional songs and that he was a witch. He advised his father to go to the police. He left their home at 10.00 am. At 1.pm he returned home. He saw Sichangi (2 nd accused) pass. He heard the 2 nd accused say, “ Huyo Mzee saa yake imefika ”. They left with the father as he went to Soysambu. Later Margaret called him and told him his father was going to be killed and that they were taking him to the river Nzoia. He decided to report, but the police chased him to the Soysambu police station. He did not find any officer at the said police station. This was about 7.00 pm. He decided to go to their home. He met with the boys, singing, “ we have finished our work ”. He met with a group of people, the 4 accused persons were among the people in the group. There was moonlight and he was able to see them. His motorbike lights were also on. His mother told him that they had taken the deceased to the river. He left Pw1 with the pastor in their home. He took a torch and went to the river and he saw a blood trail towards the river. He went back home his father was not home. He rang people and told them that his father had been killed. Mukasa called him and told him that the people who had gone to Soysambu were heading towards their home to burn their houses. He heard them singing approaching their home. He pulled his mother away and led her to the shamba. He observed them as they removed things from their home and burn the items. He was able to move around. He saw Michael Manga, Humphrey Sichangi , Elias Wafula and Henry Munyasa, Hudson Majimba, Dennis Wekesa, Job Matii and Yuana. He saw them burn the houses. At one time he hit Elias and they went for him and he ran away to a neighbour’s place and hid there. His mother hid in the shamba. At 7:00 a.m., the crowd returned, saying it was time to celebrate. Police came and they went to the river but they did not find the body. They went back the next day and found the body at 3.00 pm. The body had injuries on the head, neck, and back and cuts on his hands. His eyes had been pressed. They called the chief and police. They did not go to pick the body. At 7.00 pm they heard the people sing again they wanted to burn the body. They hid the body and later took it to Kitale District Hospital. During cross-examination, Pw4 told the court that he was not home when his father was killed. He did not see the 4 kill the deceased. Humphrey had been threatening the deceased for two weeks before the said incident. A group of 100 people went to their home.
Edward Wafula Wabwire ( Pw5 ) recalled that he knew the deceased. On the 30 th November 2022 at 7.30 pm he was called by Americus who was crying “they have killed my father” then he hang up. He decided to go to the home of the deceased. On his way, he met with a crowd from the deceased’s home. He met with Americus and his mother and they were crying bitterly. The two told him that the deceased had been killed and the body taken to the river. After 20 minutes, the pastor told them that there was a crowd heading towards the home to burn the houses. They decided to stand aside and see what would happen. The crowd went to the home of the deceased. They had stones. They lit fire in the houses and the shop. They stayed outside in the cold with Pw1 till the next day. They later retrieved the body from the river. He saw the 1 st accused at the home. During cross-examination, he told the court that he did not witness the murder. He saw Michael throw stones into the house. He knows Michael, who is from his area. He does not know the other accused persons. There was light from the fire, the motorbikes, and the store light too. He did not see the 2 nd , 3rdcand 4 th accused persons at the home. The deceased was killed because of witchcraft. He was aware of a land dispute between the deceased and the person from whom he had bought the land.
Doctor Dennis Mayingi ( Pw6) recalled that on 6.12.2022 he performed a post-mortem on the body of Alfred Wanyonyi Namusasi. The body had multiple bruises on the face chest abdomen upper and lower limbs. There was also an anterior fracture of the mandible, a fracture of the left arm and his fingernails were blue and purple. There was skin peeling on the chest area, and a wound on the torso of the head measuring 3cm and 0.5 cm. On internal appearance he had bilateral rib fractures involving the 2 nd to 8 th ribs, bilateral lung contusion and collapse, and bilateral; hemithorax of more than 2.5.litresa of blood. The heart was floppy and devoid of blood. The stomach had semi-digested food and the nervous system had multiple areas of intracerebral hematoma covering the temporal parental area bilaterally. His opinion was that the cause of death was cardio-respiratory failure haemothorax secondary assault.
Boaz Mukolongolo Chetambe (Pw7) recalled that on the 30 th of November 2022, he went to Silvester’s home. People were singing circumcision songs. He knows the accused persons. He saw Job Matii and Michael Manga enter. They had daylight lights in their hands. They had pagans and fimbo. He saw them hit the shop of Silvester with stones and his house too and then burn it. He did not know that the deceased had been killed. Later he saw the body being removed from the water. During cross-examination, he recalled that he saw a crowd of over eight people; he did not see the 2nd, 3 rd and 4 th accused persons that night. He did not stay for long.
Epaphras Simiyu Barasa ( Pw8 ) testified that on 6.12.2022 he went to Kitale District and attended the post-mortem of the deceased Alfred Wanyonyi Mausasi also known as Silvester Wanyonyi. He witnessed the post-mortem. The deceased’s body had a deep cut on the head, eye area, and nose, the jaw was depressed, his right hand was broken at the hand, the ribs too were broken and he had about blood inside the body about 3 litres. He did not witness the murder.
No. 88038 P.C. Shadrack Marangu (Pw9) testified that on 3.12.2022 this case was assigned to him by the DCI to investigate. He went to Soysambu to the home of the deceased. He found houses burnt. A murder had occurred. He found the wife of the deceased and their children. He was told what happened on the 30 th November 2022 by Pw1 and she took him to the river which was 500 meters away. He took witness statements. The 1 st accused had been arrested and taken to Kimilili police station. On 6.12.2022 a post-mortem was done. The 2 nd , 3 rd , 4 th and 4 th accused persons were arrested later and charged. During cross-examination, he told the court that he relied on the statements of the witnesses and he began his investigation on the 3 rd December 2022. He did not recover any weapons at the scene.
DEFENCE CASE
Michael Ayekha Manga ( 1 st Accused) testified that he stays with his aunty at Binoko. He denies the murder charge. The deceased was his aunt’s neighbour. His aunty had sold a shamba to him. The fourth accused person, Humphrey, is the aunt’s son. He worships with the 3 rd accused and the 2 nd accused is the aunt’s neighbour. On 30.11.2022 he was at the aunt’s place at 5.30 pm. After work, he took water and went to bathe. Whilst there he heard shouts from the neighbour’s place and he went to check and he saw people running to the neighbour's, the deceased’s place. He went there after bathing and found many people some held jembes, panga and some buckets. They were shouting witch. He did not know he was a witch. They took him outside his compound and they went down with him singing circumcision songs. He did not see the deceased as people were around him. The people who caught were saying it would be his last day. He went back home because he had left his door open. At 8.00pm he heard the noise again at the neighbours. He learnt the house was burning. He went out and saw the houses had been torched. On the 2 nd he heard Mama Roseline crying that her husband had been killed. Pw4 was his schoolmate. He does not know about the petrol Pw4 said he had. He never had a rungu and a panga, as alleged by Pw3. Pw7 is his neighbour. He was not carrying a fimbo. He left his aunt’s home without a weapon to go see what was happening at the deceased’s home. Pw1, Pw4 and the deceased were members of the same church. He was arrested while checking on a church member.
Humphrey Sichangi Wanyama ( 2 nd Accused) testified as follows; he did not kill the deceased. On the 30 th he was home he had a swollen shoulder. At 5.00 pm he heard screams. He did not go there. People were singing he did not know where they were going. On 1.12.2022 he heard that the deceased had been killed. The deceased was his neighbour. His wife is his aunty. Their homes are 200 meters apart. It is a lie that Roseline saw him at her home.Pw4 too lied. He had no grudge against the cousin. The case is in court because he is their neighbour. He does not know the other witnesses. There is no bad blood between them.
Elias Wafula Wekesa ( 3 rd Accused) testified that; he used to bakery work, he makes bread. He denies the charge. He knows the deceased. He used to work for the deceased in his shamba. He was not working for him at the time the incident occurred. On the 30 th November 2022, he was making dough. He heard noises and people were singing that they had caught a witch. He went to the place and found the people had held the deceased. They beat him calling him a witch. They left the home with him going to River Nzoia. The people had rungus and pangas which they used to beat him. It was 5. 00 pm. He did not see the other accused persons as there were many people at the place. He works in the village. He had not heard that the deceased was a witch whilst working for him. Pw1 lied that he was at the forefront amongst the people who beat the deceased. He did not burn houses at the deceased’s home. He does not know Pw2. He had no reason or grudge to go and beat the deceased. He could not identify the people who were at the deceased’s home.
Henry Mayasa Opicha ( 4 th Accused) testified that he is a fundi, he repairs bikes and is also a builder. He was a security person, a nyumba kumi person. On the 30 th November 2022 he was home burning bricks. He received a call from Chief Mama Christine Ndarya at 5:00 p.m. She asked him where he was, and he told her. Then, she asked him if he knew what was happening. He told her he had not heard. She requested that they meet to go to the place. People were along the road. They directed them to the River where the deceased had been taken. They went there but found nothing. They left when it was dark. They passed they the deceased’s home. There were no people there. The place was dark. One could not see outside or what was inside the home. They parted ways with Madam Christine. He did not go back there the next day because he was tired. Madam called him and told him the deceased had died. He did not meet the other accused persons that day. He was arrested at 3.00 am at night. He does not know why he was arrested. It is a lie that Pw1 saw him at her home at 5.00 p.m. He had no reason to be involved in the deceased’s death. He schooled with the deceased’s sons. He had not heard about allegations of witchcraft.
Written submissions were filed at the close of the defence case. The prosecution submitted as follows; all the elements of murder were proved sufficiently to convict the accused persons. Roseline, and John Americus positively identified the accused persons by recognition, as they were well known and familiar to them. Boaz placed the accused persons at the scene. The deceased succumbed to cardiorespiratory failure secondary to assault. The deceased’s body had multiple injuries all over the body consistent with the account given by the prosecution witnesses of a mob attack. The elements of mens rea on the part of the accused persons were established beyond reasonable doubt. The evidence of Pw1, Pw2, Pw3, Pw5, and Pw8 testified that the accused persons were part of a group that set out to kill the deceased because he was a witch. The prosecution witnesses' testimonies remained cogent, even during cross-examination. On malice aforethought, it was submitted that accused persons set out their minds to kill the deceased and actualised their intention. On the 1 st accused submissions, the prosecution pointed out that the highlighted contradictions are not material contradictions and do not shake the watertight evidence of all the prosecution witnesses as each prosecution witness gave a specific account of the event he or she witnessed at the different scenes at the deceases’ home, shop and the road. It was further submitted that, although the defence has attempted to downplay the credible prosecution evidence, the prosecution has submitted sufficient evidence to sustain a conviction.
The 1 st accused’s counsel submitted as follows; there are 3 issues for determination, whether the prosecution has established the major ingredients of murder against the 1 st accused person, whether the 1 st accused person assaulted the deceased, and whether the prosecution has proved its case beyond reasonable doubt as required by the law. It was submitted that there was no direct evidence linking the 1 st accused to the commission of the offence. The key witnesses were Pw1 and Pw3. Pw1 never mentioned that she saw the 1 st accused entering the house of the deceased neither did she say she saw the 1 st accused assault the deceased. Pw3 gave contradictory evidence on what he saw. Yet, he claims to have been together with Pw1, that he when out he saw the 4 accused persons assaulting the deceased, Job Martin had a knife, Hudson Majimbo had an axe and 1 st accused had a rungu and knife all were beating the deceased as they pulled him towards the river, Denno Wekesa was not there. Pw1, Pw3, Pw4, Pw5, Pw7, and Pw9 all gave contradictory evidence. The rest of the witnesses went to the compound after the deceased had been removed from the compound. The 1 st accused was only charged based on circumstantial evidence. Reference was made to the case of Mutilo Tulo vs Republic (2014) in which the court considered the test to be applied when the case is one based on circumstantial evidence that is:
The circumstances in which inference of guilt is sought to be drawn, must be urgently and firmly established.
Those circumstances should be of a definite tendency unerring pointing towards the guilty of the accused.
The circumstances taken accumulatively should form a chain so complete that there is no escape from the conclusion that within all humans probably the crime was committed by the accused and no one else.
It was further submitted that the deceased was a victim of mob justice due to the allegation that he was practising witchcraft a vice that is recognized by our Kenyan laws through the enactment of the Witchcraft Act.
After analysing the prosecution evidence, Mr Wanjala, for the 2nd, 3rd, and 4th accused persons, submitted that the prosecution failed to prove its case against the accused persons beyond reasonable doubt. The doctrine of mens rea was not established, nobody witnessed the accused persons beat/ kill the deceased. There was no other material evidence to corroborate the evidence adduced. Reliance was made on the case of Kipkering Arap Kaske and Kamure Arap Matata (1949) 16 EACA which gives the standard required to prove a case on circumstantial evidence. The prosecution failed to prove malice aforethought as there was no evidence to show that, indeed, the accused persons had any intention to cause the death of the deceased or to do grievous harm to the deceased.
ANALYSIS AND DETERMINATION
I have considered all the evidence on record and the rival submissions. In case of murder, the prosecution has to prove the following: the death of the deceased, that the death was caused by the unlawful act or commission by the accused, and that the accused had malice aforethought ( see Antony Ndegwa Ngari vs Republic [2014] ).
The death of the deceased is undisputed. Pw1, Pw2, Pw3 and P4 saw the body of the deceased after it was retrieved from the river two days after his murder. Pw6 performed a post-mortem on the body of the deceased after Pw2 identified the body. Pw6’s opinion was that the cause of death was cardiorespiratory failure haemothorax secondary to assault.
On whether the death was caused by the unlawful acts or commissions of the accused persons. Pw1 and Pw3 were at home with the deceased. Pw1 and Pw3 testified that Elias went to the home of the deceased and asked who was selling at the shop. The deceased left to go to the shop to attend to the customer. Shortly thereafter, Pw1 and Pw3 heard the deceased scream, and on going out, they saw the four accused persons holding the deceased, dragging him away from his home. Pw1 told the court that the 3 rd accused and 1 st accused held the deceased’s legs. She heard Henry, the 4 th accused, say that they had the permit of the medicines the deceased uses and she also heard Humphrey say they were fed up with the deceased. They were joined by others on their way to the river. The four accused persons returned later with a crowd of people singing circumcision songs, saying, " we have finished’’. Pw3 recalled that he was at the deceased’s home when the accused persons took the deceased from the shop where he had gone to attend to a customer. Elias, 3 rd accused had a rungu, Humphrey 2 nd accused, had a panga and rungu, Mike, 1 st accused had a knife. Job Matii Hudson Otika Majimbo was with them too. Henry was holding the deceased. They ran away with him. He saw them beat the deceased with the weapons they had. They pulled the deceased towards the river. The deceased did not return home on the material day. He was found dead in the river. Pw1, Pw3 and Pw4 narrated how the four accused persons and other persons returned to the deceased’s home the same evening after 8pm and burnt the houses in the deceased’s home. The accused persons, in their defence, denied being involved in the murder of the deceased. They saw the events that happened in the deceased home but denied involved in the death of the deceased. Pw1 and Pw3 are the only eyewitnesses to the events of 5.00 pm when the deceased was taken away from his home. Pw1 and Pw3 testified that the accused persons were persons known to them. The incident happened at 5.00 pm during the day whilst they were within the homestead of the deceased. They saw the accused persons return the saw evening and identified them as the persons who had been in the home earlier. Identification, in this case, was by way of recognition. I am persuaded that Pw1 and Pw3 saw the four accused persons gab the deceased from his home. The 4 accused persons carried away the deceased, beating him up. They led the deceased towards the river. The deceased’s body was found in the river. The sequence of events, as narrated by Pw1 and Pw3, clearly shows that the accused persons and other persons not in court inflicted injuries on the deceased using the weapon they had, and the deceased died as a result of the said injuries. Pw1 and pw3 told the court that the accused persons accused the deceased of being a witch. From the evidence adduced, the accused persons choose to take the law into their own hands.
I am not persuaded by the defence raised by the accused persons that they were not involved. The defense raised by each accused person does not displace the prosecution evidence. Despite their denials, they were placed at the scene by Pw1 and Pw3. In addition, Pw4 told the court that he met the accused persons at 7.00 pm the same day, singing that they had finished their work. The accused persons were with a group of people. He told the court that there was moonlight and lights from his bike. He went to the river and saw blood. The deceased’s body was retrieved from the river after 2 days. Pw5, too, informed the court that he saw the 1 st accused in the home of the deceased the same night. Pw6 noted that the deceased’s body had multiple bruises on the face, chest abdomen, and upper and lower limbs. The body had fractures on the ribs, and mandible left arm and there was skin peeling on the chest area. His opinion was that the cause of death was cardio-respiratory failure haemothorax secondary to assault.
The defence has alleged that there was a contradiction in the prosecution evidence and that the prosecution case was based on circumstantial evidence. Pw1 and Pw3 witnessed the accused persons gab the deceased, and take him towards the river. The deceased did not return home again. Pw2, Pw4, and Pw5’s evidence corroborate the evidence of Pw1 and Pw3 on what happened on the material day later in the evening. It was not the prosecution's evidence that all these witnesses were standing together in one place. Each one of the witnesses narrated what they saw the accused persons do, the accused persons whom they knew and lived within the same area. In the case of Musoke vs R [1958] citing with approval Teper vs R [1952] the court held that, “ It necessary before drawing the inference of accused’s guilt from the circumstantial evidence to be sure that there are no other co-existing circumstance which would weaken or destroy the inference’ . The events and circumstances as narrated by the prosecution witnesses unerring point towards the guilt of the accused persons. The witnesses were consistent in their evidence that the deceased was dragged away, beaten and taken to the river, where he was killed. There was further evidence from Pw3 that the accused persons went to the river after they retrieved the body, and they had to hide the body. The circumstances taken accumulatively as narrated by Pw1, Pw3, Pw4, Pw5 and Pw7 form a chain that is complete, and the conclusion I make is that the accused persons were jointly involved in the murder of the deceased on 30/11/2022.
Regarding malice aforethought, I find that the accused individuals acted with malice aforethought. They collaborated with others, not present before the court, to drag, and assault the deceased. The deceased succumbed to the injuries sustained. Their animosity towards the deceased and his family persisted into the night. I conclude that the prosecution has established its case beyond reasonable doubt. The 1st, 2nd, 3rd, and 4th accused persons are each guilty of the offence of murder as charged and are convicted accordingly.
Dated, signed and delivered at Bungoma on this 14 th day of May 2025.
R.E.OUGO
JUDGE
In the presence of:
Michael Ayekha Manga/ 1 st Accused
Hamphrey Sichangi Wanyama/ 2 nd Accused
Elias Wekesa Wafula/ 3 rd Accused
Henry Manyasa Opicha/ 4 th Accused
Miss Matere - For ODDP
Miss Natwati -For the 1 st Accused
Miss Natwati h/b for Mr. Wanjala For the 2 nd 3 rd & 4 th Accused
Wilkister - C/A