REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRC NO. 196 OF 2017
REPUBLIC ……………………………………………………..PROSECUTOR
VERSUS
MIKE MWANGANGI KINYALA …………………………..…1 ST ACCUSED
MICHAEL NZEKI WAMBUA ……………………………………2 ND ACCUSED
JUDGMENT
(1) The matter began as Machakos Criminal Case No. 27 of 2016.
(2) The accused persons MIKE MWANGANGI KINYALA and MICHAEL NZEKI WAMBUA were charged jointly with murder contrary to section 203 as read with section 204 of the Penal Code.
(3) The particulars were that on 2/7/2016, at Mtito Andei Township Kibwezi Sub-County within Makueni County jointly with another not before the court they murdered Charles Njogu Kirunyu .
(4) The record shows that on 4/10/2016 Hon. E. Ogola J took plea and the accused persons pleaded not guilty.
(5) The matter was transferred to Makueni on 14/3/2017.
(6) The matter was placed before Hon C. Kariuki J. He heard PW1, PW2, and PW3.
The case for the prosecution
(7) John Mutunga Mutuli was PW1. He testified that that on 2/7/2016 at 500pm , he was on duty as a cashier in a club ( I gathered from the record that the name of the club was K4)at Mtito Andei.
There were customers. That he heard noises of glasses and bottles breaking. He was behind the counter and could not see clearly what was going on. So, he closed the counter and went out to check. He testified that he saw two customers beating one customer. He said the two were Mike Mwangangi Kinyala and Michael Wambua. He said that they hit the other customer with bottles and that customer by the name Charles Njogu had head injuries. That Charles asked him for help and that he told him to go report to the police. That Charles left. That the other two customers went on back to their table and continued drinking their tusker beer. He said at the table there were two broken bottles and two broken glasses.
(8) He testified that he went back to the counter, closed the counter and went to order alcohol. He closed work at 11:00 pm and went to sleep at his house which was about 800m from the club.
(9) At around midnight or 11:45 pm he was called by the police from Mtito Andei who wanted to know about the fight that was at the club. He said he was told to go and record a statement.
(10) He said he was called at 1230pm to go and assist with investigations . That he recorded a statement. That he was told the victim of the fight had died. When he went to the police station he was locked up in custody from Friday to Monday. ( I found his testimony a bit confusing because of the timelines(am vs pm)
(11) He testified that an officer by name Charles Lenanda recorded his statement. He identified the two accused persons in court.
(12) He said he did not know what caused the fight because he was at the counter. That there were other witnesses including one Amina Mukungu. He said the club was busy. That during the incident there were 20 customers . That it was 500 a.m. That there were solar bulbs. That he saw Charles (the victim) with a bloody face and head and blood stained cloth that was white with red stripes with label Lauren which he identified in court as MFI 1.
(13) On cross-examination he said his nick name was Walai. That the club had 4 counters and one was open 24 hours – that there were four waiters, five cashiers, one watchman,- that the watchman was in charge of security if there was any trouble. He named three waiters including Amina Mukungu and Mutavi. He said from where he was he could not see where the accused were seated , he was attracted by the sound of many bottles hitting the concrete floor. He said the broken bottles were swept by the cleaner one Tito.
(14) He told the court he did not know anyone by the name Caren Mwende Nyamasyo – that he was not aware that she was drinking with Charles Njogu; he did not know that Charles Njogu was fighting with Caren because he was accusing her of having stolen Ksh. 9000/= from him. He said he did not see Caren hit the deceased. He said he did not see a 1 st Accused hold Charles so that he would stop beating Caren.
(15) He denied beating Charles and throwing him out of the club for breaking bottles, he denied killing Charles.
(16) He said he was arrested on Saturday and remained in custody till Monday.
(17) He said Michael Wambua was a police officer at Mtito Andei and he was brought in to the cells on Saturday at 6 p.m.
(18) He said his statement was recorded by the Deputy OCS; that he did not have any quarrel with the Deputy OCS or the father of the 1 st Accused who was the DCIO Malindi. He denied that he was not held in custody for giving false information/giving money to Deputy OCS.
(19) He said knew Bahati Christine as a prostitute and denied calling her to come to the customer, Charles Njogu. He was asked about Dorcas Mumbe, Paul Kamau & Daniel Mwathi. He told the court that he did not know them. He confirmed that Amina was a waitress at the club. He said he never drank alcohol; that the two accused, and Charles were drinking at the same table.
(20) On re-examination he testified that the owner of the club was one George Kisivo Mulei . That he entered his shift at 7:00pm that around 700 pm there were about 200 customers as it was end of the month. That the watchman was one Daniel Kiilu. He said Amina was washing glasses near his counter, and he could not see through the counter grill, that is why he shut the counter and went to see what was happening. He said when they had Discos, they would get police officers for security from Mtito Andei police station but that night they did not do that.
(21) He said he witnessed the two accused hit the deceased on the head. He said he asked them what they were doing and that they just stood there. That the deceased asked for help and he told him to go to the police – he said the accused and the victims, like other customers, were drunk. He said he left the broken bottles and glasses on the floor. He said he did not know Caren unless he saw her, and did not know whether she was present; he said no theft was reported to him. He denied knowing anyone by the name Dorcas .
(22) He said no one separated the fight. He said he never attacked the deceased and that he was with Amina when he spoke to him. He denied assaulting the victim and said the deceased walked out by himself.
(23) He said that when he was arrested from his home he was not told the reason for his arrest. That he was told he was going to assist with investigations. He said he saw Michael Wambua at the station but he had not been arrested. He said Michael Wambua used to come to the club as a security officer. That the 1 st accused worked with SGR. He did not know when the 2 nd accused was arrested.
(24) He stated that Dickson the Deputy OCS recorded his statement. He was not aware of any quarrel between the Deputy OCS and the 2 nd accused. He denied recording a false statement . He said that Bahati was a customer who was seated near his counter; that she was also a prostitute and he did not talk to her. That the accused persons came in at 2pm and passed by the counter.
(25) PW2 Dr. Dorcas Kavulu Musyoka conducted the postmortem on body of the Charles Njogu Kirunyu, male, 37 years old . She found a deep cut wound on the left face measuring 2X1 cm, extended to skull, fracture of the left temporal bone, bruises on left shoulder bleeding in both ears; old scars on left skull, right knee, right leg. He had signs of losing a lot of blood. She concluded that the cause of death was Cardio – pulmonary arrest due to severe head injury . Some blood samples were taken for further examination.
(26) On cross-examination she said the injuries were on the head – she said that the possible object used was not stated. That from time of injury to death she could not tell but from death to Post mortem examination was more than 6 hours, there were questions she would not answer because she was not a Pathologist but medical officer.
(27) PW3 Teresia Amina Mukungu testified she was on 2/7/2016, at 500 am working in the K4 club. She said that there were two tables with customers one table that had been allocated to Mutunga (PW1) had a fight between customers. She said she saw the two accused throw bottles at Charles Njogu Kirunyu while the customer was trying to block them. That Charles was blocking the bottles. She testified that PW1 separated them , then PW1 and the deceased went out of the building. That when he was being taken out he was bleeding from the mouth and the nose . He was walking without support.
(28) She said the other three left after finishing their alcohol – that the table she was serving had 3 men who left when the fight broke out. She said PW1 told her that Charles had poured alcohol on the table and the fight broke out.
(29) That around 7:30 a.m. she heard that there was an deceased person on the roadside. She later learnt that it was Charles whom she said she had seen twice at the bar and knew him as Charles. She said those who were throwing bottles were…not complete) that Michael had a t shirt a with stripes white and black and red …which she identified in court. She could not recall the colour of the clothes worn by 2 nd Accused. She said that the same day she went to the police station to record a statement. she also said that outside the club there were other sitting places. she said had known the two accused for a short period as customers. and had seen them at the club about three times.
(30) On cross-examination she told the court that the table occupied by the accused persons had four people, and the one she was serving had three people – and that at that time they were 2 workers making a total of 9 people in the bar.
(31) she said that on 3/5/2016 she recorded a statement. she identified her signature. She said that it was not read to her after recording but that she was questioned in Kiswahili. she said she used to Know Wambua as a police officer , and when the fight broke out she recognised the two accused persons . That Mwangangi wore the T shirt that was in court and blue jeans but she could not remember what the 2 nd accused was wearing that night.
(32) She told the court that PW1 left with the Charles to outside the building and that Charles was bleeding from mouth and nose.
(33) A statement dated 27 th August 2016 was put to her. It was marked DMF1. She confirmed that the identifying particulars: Home particulars, date of birth phone number and signature were hers. She said there was a statement she recorded at the club. She said she did not know the people who questioned her. She denied saying that the accused persons were seated at a table outside. That she recorded that she saw people gathered where the person(deceased) was but she did not go there.
(34) she said that on 3/5/2016 she was arrested and locked up. She did not see the 2 nd accused at OB desk at that time.
(35) .
(36) She said her statements was recorded by the Deputy OCS Dickson Herbert. That she recorded a subsequent statement where she said that the earlier statement for 3/7/2016 was false. She said she told the persons who recorder her latter statement that because she did not know them. she said she was never threatened. she said that “ the true statements were of 3/7/2016 but one of 27/7/2016…” She said she told the OCS about the subsequent statement. she said PW1 told her to record statements only with the police. She confirmed that PW1 had been arrested and locked up for some days/ a week.
(37) Asked about Dorcas Mumbe Kavali she said she knew her. She did not know Daniel Mwati Mburu or Caren Mwende. She said she did not see the deceased with lady and that deceased joined the accused person’s table where there were other men she did not know.
(38) she did not know how the fight started . she said accused persons threw bottles at deceased. she could not recall how he was dressed. She told the court that the deceased was removed from the club by PW1. She said he did not do so by force.
(39) She said she was not washing glasses but had called the cleaner to do so. She said the club was closed.
(40) She said that the OCS and the deputy OCS and other officers were also their clients.
(41) she said the bottles that were thrown were empties; she was not aware what the accused persons were taking.
(42) Cross examined further she said that she did not see the deceased walk in with Caren. That she only saw the bottles being thrown and the deceased was forcefully removed from the club.
(43) She stated further that at 6:00am there would be morning people: That Dorcas had a Kiosk outside there and that the watchman one Kiilu would report at 5:30pm and leave at 6:00am. she said she did not know Paul Kamau Ndung’u.
(44) After this the witness was stood down at the request of the Prosecution to enable them study her statement of 26/8/2016 .
(45) The application was allowed. Matter was adjourned.
(46) The matter was taken over by Ong’udi J on 23/4/19 but no witness proceeded before her.
(47) On 2/12/2020 it was taken over by Dulu J who
heard PW4, and PW5.
(48) PW4 Christine Bahati Muteti told the court she was a sex worker at Mtito Andei. She said on 2/7/2016 at 3:00 a.m. she was at K4 club when Walai (PW1) called her that there was a customer. She went. The customer bought her one Guinness. As they were discussing with the customer there was a fight that broke out at the next table where there were 2 men and 2 women. It was around 10 metres from where they were seated with her client. The waiter went to separate them. She took her client to her room. She said she saw them quarrelling and pushing one another.
(49) The following day about 9:00 a.m. she said she was woken up to record a statement. She said she did not know why the police wanted her to record a statement. She said was taken from the room to the Police station. That she told the police that she left the people quarrelling. She did not she did not know the people who were quarrelling, she did not see them properly, and she did not know the two accused persons.
(50) On cross-examination she said she was living in a room at the club and that there were other sex workers and that they paid Ksh 300 per day – and that Walai is the one who leased the rooms to them.
(51) On the fight, she said she saw 2 men and 2 women quarrelling – but she did not see them fight.
(52) That she was surprised to becalled to record a statement. That she left when Walai had gone to those who had the dispute. She later heard that someone died. She did not know the person who had died. She said she did not know the owner of the hotel, that Amina was a waiter there – she confirmed that one Ndavi son of the owner had told her to record a statement to protect Walai. She denied any statement that said that she did not take alcohol. She said she took 2 Guinness, one inside the club, the other in her room. She denied saying that there was a fight with bottles in the bar – she said she never saw any fight with bottles. She said she was forced to accept a statement to the effect that there was a fight with bottles in the club – she said she was threatened with eviction from the club. She denied the signature on the statement. She stated that the signature on the statement was not hers. She said she came to the place for 2 weeks every month from Mombasa.
(53) On re-examination she told the court that she was woken up from her room to go record a statement. That while going down the stairs from her room she met Ndavi who told her that they must help Walai otherwise she would be evicted from her room. She said she did not know what had happened or how she could help, she was told she would know at the police station. By then, she did not know that Walai had been arrested.
(54) PW5 Jonathan Mwangi Kamau said he was he and Charles Njogu not only were colleagues, but came from the same place, Nanyuki. That on 1/7/2016 he was at 7:00 pm, with Charles at his house and they had intended to travel home together to Timau, Nanyuki but by morning the Charles had not called him. He went by his house. His landlord told him that Charles had been killed on the road. He proceeded to the mortuary where he learnt the body had been taken to the hospital mortuary. He recorded a statement, and informed the family.
(55) I took over the matter on 3/3/2023. I heard PW6 and PW7, and the Defence case.
(56) PW6 was the Government analyst – Ruth Wangari Kahiu . She said the Exhibit Memo was received from PC Charles Lengandu No. 89362. The report she had was prepared by one Lawrence Kinyua Muthuri who at the material time was in Hungary pursuing his doctorate.
(57) She testified that they received the exhibits on 6/7/2016; Blood sample of Charles Njogu, blood sample of Mike Mwangangi Kinyala, white T-shirt of Mike Mwangangi Kinyala, lightly stained with blood of human origin. The blood stain on the T-shirt, blood and samples were extracted, analyzed for DNA profiles of deceased and Mike Mwangangi Kinyala. DNA profile on T-shirt matched that of Charles Njogu deceased.
(58) Cross-examined by Counsel for accused he was referred to the Exhibits – 3(a) Report, 3(b) – the Exhibit Memo. She said the Exhibit Memo said that the deceased and accused had disagreed, and he was hit by the accused with a beer bottle, and died while undergoing treatment . She said they did not ask how the T-shirt was obtained – she said she could not tell exactly where the stain was on the T-shirt, but that there were photos in the office file. She held up the T-shirt and showed a cut on the top right shoulder – she said she assumed that was where the blood stain was because there was a hole cut with a scalpel.
(59) The record will show that getting the Investigating Officer to testify was really hard – it took summons, and a warrant of arrest – and a personal bond.
(60) He testified as PW7 – No. 89362 PC Charles Lengandu . He testified that at the material time he was at Mtito Andei. On 2/7/2016 around 6:00 am he was rang by the OCS C.I Benjamin Lwande who informed him that there was a middle aged man lying on the ground near KWFT Office at Mtito Andei. He instructed him to accompany him to the scene – where they found a middle aged man with head injuries, bleeding. They took him to Mtito Andei Health Centre where he was pronounced dead. He escorted the body to Makindu Hospital mortuary. On interrogating the people at the scene, he learnt that the deceased had been in K4 club prior to his death. He visited the scene, there were traces of blood which he was unable to retrieve.
(61) He interrogated John Mutunga (Pw1) who confirmed to him that both accused were present – that they were served beers (Tusker) they differed with the deceased. He said that he told him Accused 1 was in stripped T-shirt that the 2 accused were with a 3 rd person whom he did not know – all of whom, threw beer bottles which injured the deceased on the head – he began to bleed and that he John Mutunga and one Amina advised him to report to the police, Mtito Andei station.
(62) That he walked 200 metres, then collapsed and succumbed to the injury.
(63) That day he later visited the house of Mike Mwangangi and recovered the blood-stained T-shirt, he suspected the blood was that of the deceased. He later obtained blood samples from the 1 st Accused and the deceased, and together with the T-shirt and the exhibit memo escorted them to Government Chemist for analysis.
(64) He said when he interrogated Accused 1 he told him that he, Accused 1 was assisting the deceased, but he did not find the explanation to be satisfactory as to why there was blood on his T-shirt.
(65) He said he gathered from Amina and John Mutunga that the accused persons after throwing bottles at the deceased, did not assist him and that the two advised him to report to the police.
(66) He attended the postmortem and the cause of death was head injury.
(67) He arrested Accused 1 on 2/7/2016 and Accused 2 was arrested on 5/7/16 by the OCS C.I Benjamin Lwande, CPL Adir, Sergeant Waweru and PC Ngare.
(68) He said Accused 2 was his colleague police officer.
(69) He said the lady at the counter confirmed that Accused persons threw beer bottles at the deceased, he said he did not recover any beer bottles as the place had been cleared.
(70) He stated that the deceased was dancing, hit the accused persons table pouring their beer then argument arose and they threw beer bottles at him.
(71) Other than Amina, he said he interviewed the deceased’s girlfriend by the name Caren Mwende. That he relied on the testimony of the waiter and counter person as it proved beyond reasonable doubt that the accused persons committed the offence.
(72) The witness was cross-examined by counsel for accused. He told the court that his theory as the Investigating Officer was that the accused persons committed murder by throwing beer bottles at the deceased. He said they were thrown at close range, around 1 metre, that he did not draw a sketch plan. He said he ruled out the Accused 1’s explanation of assisting the deceased because the blood stains on the Accused 1’s T-shirt were on the front and not on the shoulder; he said he was not aware that the government analyst said the blood stains was picked from the front part of the shoulder of the T-shirt.
(73) He testified he found the T-shirt on the Accused 1’s bed – that Accused 1 had not tried to conceal it. He testified that it was not true what John Mutunga told the court that it was busy at the club or that Amina was busy serving customers. He said that it was dawn, that she knew the customers by name.
He also told the court that deceased was with his girlfriend Caren, and that she sat with him at the same table. He said she recorded a statement.
(74) Questioned about PW1 he said his statement was recorded by the Deputy OCS Dickson Herbert on 3/7/2016 at 11:00 a.m. That he, Investigating Officer had arrested him on 2/7/2016 and he was released on 4/7/2016.He said that Pw1 did not record a statement under inquiry – but the statement he recorded while in custody was the one the Investigating Officer was using to prosecute the accused persons. He denied any knowledge of a statement by Amina that it is Mutunga who had beaten/killed the deceased.
(75) Regarding Bahati Christine Pw4 he said her statement was recorded by PC Adukoli – that she was not arrested with respect to the murder herein – he denied that she was compelled to record a statement on 3/7/2016 to implicate the accused person. He denied that she was threatened with forceful eviction to Kilifi – he said she did not have mobile phone but gave that of her colleague, when asked whether she had vanished he said “sex workers migrate ”. He denied any knowledge that confirmed that Pw1 injured deceased, and the owner of the club threatened her to lie or be removed from Mtito Andei.
(76) He said he was not aware that Amina recorded a statement on 27/8/2016. Asked why accused 2 was arrested he said after Pw1 recorded statement – that Pw1 was afraid of Accused 2. He would not explain why he had kept Pw1 in the cells from 2/7/2016 to 4/7/2016.
(77) He said he visited the club scene on 2/7/2017 as it is around 700 metres from the police station. He said he found blood stains but did not lift them.
(78) About Accused 2 – he said he was arrested because he was in the club – that Accused 2 could not explain what had transpired.; that Accused 2’s statement was recorded by C.I Herbert, that C.I Herbert did not record a statement nor did PC Adukoli.
(79) Cross-examined about the deceased, he said he collapsed around 200 metres from the club near KWFT. He said he collapsed around 400 a.m .; and that he as the Investigating Officer was there at 600 a.m . He said no one saw him collapse – that he revisited the scene with IP Kiplimo the base commander.
(80) Asked about who made the report, he made reference to OB 9/2/7/2016 at 720 a.m. He said there was no first report as the OCS had received a call about a person lying on the road side. That the said report was received at 600 a.m., the incident report at 400 a.m. yet the witnesses were speaking about a 500 a.m. incident.
(81) He denied that Pw1 forcefully removed deceased from the club. He said he did not interview anyone outside the club; he denied any knowledge of 2 witnesses by the names Dorcas and Daniel. He denied that he had been threatened to testify in a certain way. He denied that Amina told him that Pw1 assaulted the deceased.
(82) The prosecution closed its case.
THE DEFENCE
(83) The 1 st accused testified as DW1. He testified that on the night of 2/7/2016, he was with DW2, Michael Nzeki Wambua who was a police officer at Mtito Andei police station . That his co accused was on duty at the police station between 300 pm at 1100 pm . That his co accused ‘s 1 st born child had gone on a school trip, and would be arriving at Mtito Andei about midnight. That his co accused had requested, as he had a motor vehicle to assist him to pick his child. That they picked the child, took the child home. Thereafter they went to K4 club at around 200 a.m.
(84) DW1 testified that he saw the deceased when he already had the cut on the face – he said he saw him fighting with a certain lady. He said the deceased fell on him, staining his T-shirt with blood. He said he got up – to avoid a fight. He said his co accused being called by the person at the counter Pw1 John Mutunga whose alias he knew to be Kawalai. He said he knew him, and also knew him to sometimes act as the bouncer at the club. He denied that he and the accused 2 beat the deceased. He denied that Accused 2 went out with the deceased. He said after deceased left – they continued drinking, and that he even fell asleep on the table and woke up between 5 – 630 a.m. He heard that a person had died near that road he did not go there but went to his house.
(85) Between 200 pm and 400 pm the police went to his house, they told him he had killed someone. They searched his two rooms and found the blood stained T-shirt on his bed. He said the officer demanded Ksh.100000/= from him to hide the T-shirt. He told them he had not killed anyone, he said he did not assault the deceased. He said when he was arrested he was still a bit drunk.
(86) This accused told the court that his father was one Jacob Ngao, Chief Inspector who at the material time was the DCIO Malindi. He told the court that upon his arrest one Dickson Herbert, the OCS - at one time his sister was involved in a theft case, and had requested his father, C.I Ngao to make the case to go away – but his father had insisted that the case proceeds. He believed that Mr. Herbert had grudge against his father. He testified that it was Kawalai and others who had assaulted the deceased while demanding from him payment for the breakages he had caused. He said he did not recall seeing Amina in the bar that night – but she recorded two witness statements.
(87) On cross-examination he told the court he did not see the fight begin – but the deceased reached suddenly their table – he saw a struggle between the deceased and the woman he was with. That he was already bleeding . He did not see Kawalai beat the deceased. That after the commotion there was a bill . He said that he and other were about 4 or 5 at their table; and Charles just landed on him staining him with his blood.
(88) He said Herbert was the senior officer who was handling the case but he never came to testify. recorded his statement. Herbert did not testify but that he was the one who was pushing the case against him. He said he had never disagreed with Kawalai/Amina – He said because of the blood stain on his T-shirt they planted the case on him. That Dickson Herbert also recorded Kawalai’s statement.
(89) The 2 nd Accused testified as DW2 and confirmed that he and the 1 st Accused were in the club that night and at their table – they were joined by a friend by the name Kamau and a lady. They ordered their drinks – and an hour later towards 4:00am a vurugu broke out at the next table between a man and a woman – both of whom he did not know. He said he saw the deceased hit with bottle by the lady then he staggered towards their table. He said from where he was seated, he sat against the wall facing the other table – and Accused 1 was seated facing him. This deceased came to their table and fell on Accused 1. Accused 2 stood up to find out what was up – it was then PW1 came to the table with the Soja ( watchman) one Keli.
(90) Kawalai told him that the deceased was quarrelling with the lady who he was accusing of stealing his Ksh.9000/=. He said he was intoxicated and handed over the number for the Patrol/ Report officer personnel to Kawalai so he would call – report the matter – so Kawalai, Keli, and the deceased left and walked out of the bar.
(91) However, Kawalai was demanding that the deceased pay Ksh.230 for breakages. He said he returned to his table and continued to drink. He said Accused 1 was completely drunk and even blacked out at some point– in fact one of the ladies pointed out the blood stain on his T-shirt. That he left 1 st accused sleeping his blackout , taking with him his wallet and keys. He left because he was on duty at 300 p.m. went to his house.
(92) At 300 pm he went to work and took over report office duties. He noted the OB that at 600 a.m. a good Samaritan had called PC Lengandu that there was a man walking from KWFT towards the station who slipped and fell. He read the report – OB entry 9/2//2016 at 0720 hours.
“Sudden Death Report
…reported that one Charles Njogu aged 37 years was walking whereby he slipped and fell down on his head. He bled profusely on the head and ear. Was rushed to hospital …pronoun
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IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRC NO. 196 OF 2017
REPUBLIC ……………………………………………………..PROSECUTOR
VERSUS
MIKE MWANGANGI KINYALA …………………………..…1 ST ACCUSED
MICHAEL NZEKI WAMBUA ……………………………………2 ND ACCUSED
JUDGMENT
(1) The matter began as Machakos Criminal Case No. 27 of 2016.
(2) The accused persons MIKE MWANGANGI KINYALA and MICHAEL NZEKI WAMBUA were charged jointly with murder contrary to section 203 as read with section 204 of the Penal Code.
(3) The particulars were that on 2/7/2016, at Mtito Andei Township Kibwezi Sub-County within Makueni County jointly with another not before the court they murdered Charles Njogu Kirunyu .
(4) The record shows that on 4/10/2016 Hon. E. Ogola J took plea and the accused persons pleaded not guilty.
(5) The matter was transferred to Makueni on 14/3/2017.
(6) The matter was placed before Hon C. Kariuki J. He heard PW1, PW2, and PW3.
The case for the prosecution
(7) John Mutunga Mutuli was PW1. He testified that that on 2/7/2016 at 500pm , he was on duty as a cashier in a club ( I gathered from the record that the name of the club was K4)at Mtito Andei.
There were customers. That he heard noises of glasses and bottles breaking. He was behind the counter and could not see clearly what was going on. So, he closed the counter and went out to check. He testified that he saw two customers beating one customer. He said the two were Mike Mwangangi Kinyala and Michael Wambua. He said that they hit the other customer with bottles and that customer by the name Charles Njogu had head injuries. That Charles asked him for help and that he told him to go report to the police. That Charles left. That the other two customers went on back to their table and continued drinking their tusker beer. He said at the table there were two broken bottles and two broken glasses.
(8) He testified that he went back to the counter, closed the counter and went to order alcohol. He closed work at 11:00 pm and went to sleep at his house which was about 800m from the club.
(9) At around midnight or 11:45 pm he was called by the police from Mtito Andei who wanted to know about the fight that was at the club. He said he was told to go and record a statement.
(10) He said he was called at 1230pm to go and assist with investigations . That he recorded a statement. That he was told the victim of the fight had died. When he went to the police station he was locked up in custody from Friday to Monday. ( I found his testimony a bit confusing because of the timelines(am vs pm)
(11) He testified that an officer by name Charles Lenanda recorded his statement. He identified the two accused persons in court.
(12) He said he did not know what caused the fight because he was at the counter. That there were other witnesses including one Amina Mukungu. He said the club was busy. That during the incident there were 20 customers . That it was 500 a.m. That there were solar bulbs. That he saw Charles (the victim) with a bloody face and head and blood stained cloth that was white with red stripes with label Lauren which he identified in court as MFI 1.
(13) On cross-examination he said his nick name was Walai. That the club had 4 counters and one was open 24 hours – that there were four waiters, five cashiers, one watchman,- that the watchman was in charge of security if there was any trouble. He named three waiters including Amina Mukungu and Mutavi. He said from where he was he could not see where the accused were seated , he was attracted by the sound of many bottles hitting the concrete floor. He said the broken bottles were swept by the cleaner one Tito.
(14) He told the court he did not know anyone by the name Caren Mwende Nyamasyo – that he was not aware that she was drinking with Charles Njogu; he did not know that Charles Njogu was fighting with Caren because he was accusing her of having stolen Ksh. 9000/= from him. He said he did not see Caren hit the deceased. He said he did not see a 1 st Accused hold Charles so that he would stop beating Caren.
(15) He denied beating Charles and throwing him out of the club for breaking bottles, he denied killing Charles.
(16) He said he was arrested on Saturday and remained in custody till Monday.
(17) He said Michael Wambua was a police officer at Mtito Andei and he was brought in to the cells on Saturday at 6 p.m.
(18) He said his statement was recorded by the Deputy OCS; that he did not have any quarrel with the Deputy OCS or the father of the 1 st Accused who was the DCIO Malindi. He denied that he was not held in custody for giving false information/giving money to Deputy OCS.
(19) He said knew Bahati Christine as a prostitute and denied calling her to come to the customer, Charles Njogu. He was asked about Dorcas Mumbe, Paul Kamau & Daniel Mwathi. He told the court that he did not know them. He confirmed that Amina was a waitress at the club. He said he never drank alcohol; that the two accused, and Charles were drinking at the same table.
(20) On re-examination he testified that the owner of the club was one George Kisivo Mulei . That he entered his shift at 7:00pm that around 700 pm there were about 200 customers as it was end of the month. That the watchman was one Daniel Kiilu. He said Amina was washing glasses near his counter, and he could not see through the counter grill, that is why he shut the counter and went to see what was happening. He said when they had Discos, they would get police officers for security from Mtito Andei police station but that night they did not do that.
(21) He said he witnessed the two accused hit the deceased on the head. He said he asked them what they were doing and that they just stood there. That the deceased asked for help and he told him to go to the police – he said the accused and the victims, like other customers, were drunk. He said he left the broken bottles and glasses on the floor. He said he did not know Caren unless he saw her, and did not know whether she was present; he said no theft was reported to him. He denied knowing anyone by the name Dorcas .
(22) He said no one separated the fight. He said he never attacked the deceased and that he was with Amina when he spoke to him. He denied assaulting the victim and said the deceased walked out by himself.
(23) He said that when he was arrested from his home he was not told the reason for his arrest. That he was told he was going to assist with investigations. He said he saw Michael Wambua at the station but he had not been arrested. He said Michael Wambua used to come to the club as a security officer. That the 1 st accused worked with SGR. He did not know when the 2 nd accused was arrested.
(24) He stated that Dickson the Deputy OCS recorded his statement. He was not aware of any quarrel between the Deputy OCS and the 2 nd accused. He denied recording a false statement . He said that Bahati was a customer who was seated near his counter; that she was also a prostitute and he did not talk to her. That the accused persons came in at 2pm and passed by the counter.
(25) PW2 Dr. Dorcas Kavulu Musyoka conducted the postmortem on body of the Charles Njogu Kirunyu, male, 37 years old . She found a deep cut wound on the left face measuring 2X1 cm, extended to skull, fracture of the left temporal bone, bruises on left shoulder bleeding in both ears; old scars on left skull, right knee, right leg. He had signs of losing a lot of blood. She concluded that the cause of death was Cardio – pulmonary arrest due to severe head injury . Some blood samples were taken for further examination.
(26) On cross-examination she said the injuries were on the head – she said that the possible object used was not stated. That from time of injury to death she could not tell but from death to Post mortem examination was more than 6 hours, there were questions she would not answer because she was not a Pathologist but medical officer.
(27) PW3 Teresia Amina Mukungu testified she was on 2/7/2016, at 500 am working in the K4 club. She said that there were two tables with customers one table that had been allocated to Mutunga (PW1) had a fight between customers. She said she saw the two accused throw bottles at Charles Njogu Kirunyu while the customer was trying to block them. That Charles was blocking the bottles. She testified that PW1 separated them , then PW1 and the deceased went out of the building. That when he was being taken out he was bleeding from the mouth and the nose . He was walking without support.
(28) She said the other three left after finishing their alcohol – that the table she was serving had 3 men who left when the fight broke out. She said PW1 told her that Charles had poured alcohol on the table and the fight broke out.
(29) That around 7:30 a.m. she heard that there was an deceased person on the roadside. She later learnt that it was Charles whom she said she had seen twice at the bar and knew him as Charles. She said those who were throwing bottles were…not complete) that Michael had a t shirt a with stripes white and black and red …which she identified in court. She could not recall the colour of the clothes worn by 2 nd Accused. She said that the same day she went to the police station to record a statement. she also said that outside the club there were other sitting places. she said had known the two accused for a short period as customers. and had seen them at the club about three times.
(30) On cross-examination she told the court that the table occupied by the accused persons had four people, and the one she was serving had three people – and that at that time they were 2 workers making a total of 9 people in the bar.
(31) she said that on 3/5/2016 she recorded a statement. she identified her signature. She said that it was not read to her after recording but that she was questioned in Kiswahili. she said she used to Know Wambua as a police officer , and when the fight broke out she recognised the two accused persons . That Mwangangi wore the T shirt that was in court and blue jeans but she could not remember what the 2 nd accused was wearing that night.
(32) She told the court that PW1 left with the Charles to outside the building and that Charles was bleeding from mouth and nose.
(33) A statement dated 27 th August 2016 was put to her. It was marked DMF1. She confirmed that the identifying particulars: Home particulars, date of birth phone number and signature were hers. She said there was a statement she recorded at the club. She said she did not know the people who questioned her. She denied saying that the accused persons were seated at a table outside. That she recorded that she saw people gathered where the person(deceased) was but she did not go there.
(34) she said that on 3/5/2016 she was arrested and locked up. She did not see the 2 nd accused at OB desk at that time.
(35) .
(36) She said her statements was recorded by the Deputy OCS Dickson Herbert. That she recorded a subsequent statement where she said that the earlier statement for 3/7/2016 was false. She said she told the persons who recorder her latter statement that because she did not know them. she said she was never threatened. she said that “ the true statements were of 3/7/2016 but one of 27/7/2016…” She said she told the OCS about the subsequent statement. she said PW1 told her to record statements only with the police. She confirmed that PW1 had been arrested and locked up for some days/ a week.
(37) Asked about Dorcas Mumbe Kavali she said she knew her. She did not know Daniel Mwati Mburu or Caren Mwende. She said she did not see the deceased with lady and that deceased joined the accused person’s table where there were other men she did not know.
(38) she did not know how the fight started . she said accused persons threw bottles at deceased. she could not recall how he was dressed. She told the court that the deceased was removed from the club by PW1. She said he did not do so by force.
(39) She said she was not washing glasses but had called the cleaner to do so. She said the club was closed.
(40) She said that the OCS and the deputy OCS and other officers were also their clients.
(41) she said the bottles that were thrown were empties; she was not aware what the accused persons were taking.
(42) Cross examined further she said that she did not see the deceased walk in with Caren. That she only saw the bottles being thrown and the deceased was forcefully removed from the club.
(43) She stated further that at 6:00am there would be morning people: That Dorcas had a Kiosk outside there and that the watchman one Kiilu would report at 5:30pm and leave at 6:00am. she said she did not know Paul Kamau Ndung’u.
(44) After this the witness was stood down at the request of the Prosecution to enable them study her statement of 26/8/2016 .
(45) The application was allowed. Matter was adjourned.
(46) The matter was taken over by Ong’udi J on 23/4/19 but no witness proceeded before her.
(47) On 2/12/2020 it was taken over by Dulu J who
heard PW4, and PW5.
(48) PW4 Christine Bahati Muteti told the court she was a sex worker at Mtito Andei. She said on 2/7/2016 at 3:00 a.m. she was at K4 club when Walai (PW1) called her that there was a customer. She went. The customer bought her one Guinness. As they were discussing with the customer there was a fight that broke out at the next table where there were 2 men and 2 women. It was around 10 metres from where they were seated with her client. The waiter went to separate them. She took her client to her room. She said she saw them quarrelling and pushing one another.
(49) The following day about 9:00 a.m. she said she was woken up to record a statement. She said she did not know why the police wanted her to record a statement. She said was taken from the room to the Police station. That she told the police that she left the people quarrelling. She did not she did not know the people who were quarrelling, she did not see them properly, and she did not know the two accused persons.
(50) On cross-examination she said she was living in a room at the club and that there were other sex workers and that they paid Ksh 300 per day – and that Walai is the one who leased the rooms to them.
(51) On the fight, she said she saw 2 men and 2 women quarrelling – but she did not see them fight.
(52) That she was surprised to becalled to record a statement. That she left when Walai had gone to those who had the dispute. She later heard that someone died. She did not know the person who had died. She said she did not know the owner of the hotel, that Amina was a waiter there – she confirmed that one Ndavi son of the owner had told her to record a statement to protect Walai. She denied any statement that said that she did not take alcohol. She said she took 2 Guinness, one inside the club, the other in her room. She denied saying that there was a fight with bottles in the bar – she said she never saw any fight with bottles. She said she was forced to accept a statement to the effect that there was a fight with bottles in the club – she said she was threatened with eviction from the club. She denied the signature on the statement. She stated that the signature on the statement was not hers. She said she came to the place for 2 weeks every month from Mombasa.
(53) On re-examination she told the court that she was woken up from her room to go record a statement. That while going down the stairs from her room she met Ndavi who told her that they must help Walai otherwise she would be evicted from her room. She said she did not know what had happened or how she could help, she was told she would know at the police station. By then, she did not know that Walai had been arrested.
(54) PW5 Jonathan Mwangi Kamau said he was he and Charles Njogu not only were colleagues, but came from the same place, Nanyuki. That on 1/7/2016 he was at 7:00 pm, with Charles at his house and they had intended to travel home together to Timau, Nanyuki but by morning the Charles had not called him. He went by his house. His landlord told him that Charles had been killed on the road. He proceeded to the mortuary where he learnt the body had been taken to the hospital mortuary. He recorded a statement, and informed the family.
(55) I took over the matter on 3/3/2023. I heard PW6 and PW7, and the Defence case.
(56) PW6 was the Government analyst – Ruth Wangari Kahiu . She said the Exhibit Memo was received from PC Charles Lengandu No. 89362. The report she had was prepared by one Lawrence Kinyua Muthuri who at the material time was in Hungary pursuing his doctorate.
(57) She testified that they received the exhibits on 6/7/2016; Blood sample of Charles Njogu, blood sample of Mike Mwangangi Kinyala, white T-shirt of Mike Mwangangi Kinyala, lightly stained with blood of human origin. The blood stain on the T-shirt, blood and samples were extracted, analyzed for DNA profiles of deceased and Mike Mwangangi Kinyala. DNA profile on T-shirt matched that of Charles Njogu deceased.
(58) Cross-examined by Counsel for accused he was referred to the Exhibits – 3(a) Report, 3(b) – the Exhibit Memo. She said the Exhibit Memo said that the deceased and accused had disagreed, and he was hit by the accused with a beer bottle, and died while undergoing treatment . She said they did not ask how the T-shirt was obtained – she said she could not tell exactly where the stain was on the T-shirt, but that there were photos in the office file. She held up the T-shirt and showed a cut on the top right shoulder – she said she assumed that was where the blood stain was because there was a hole cut with a scalpel.
(59) The record will show that getting the Investigating Officer to testify was really hard – it took summons, and a warrant of arrest – and a personal bond.
(60) He testified as PW7 – No. 89362 PC Charles Lengandu . He testified that at the material time he was at Mtito Andei. On 2/7/2016 around 6:00 am he was rang by the OCS C.I Benjamin Lwande who informed him that there was a middle aged man lying on the ground near KWFT Office at Mtito Andei. He instructed him to accompany him to the scene – where they found a middle aged man with head injuries, bleeding. They took him to Mtito Andei Health Centre where he was pronounced dead. He escorted the body to Makindu Hospital mortuary. On interrogating the people at the scene, he learnt that the deceased had been in K4 club prior to his death. He visited the scene, there were traces of blood which he was unable to retrieve.
(61) He interrogated John Mutunga (Pw1) who confirmed to him that both accused were present – that they were served beers (Tusker) they differed with the deceased. He said that he told him Accused 1 was in stripped T-shirt that the 2 accused were with a 3 rd person whom he did not know – all of whom, threw beer bottles which injured the deceased on the head – he began to bleed and that he John Mutunga and one Amina advised him to report to the police, Mtito Andei station.
(62) That he walked 200 metres, then collapsed and succumbed to the injury.
(63) That day he later visited the house of Mike Mwangangi and recovered the blood-stained T-shirt, he suspected the blood was that of the deceased. He later obtained blood samples from the 1 st Accused and the deceased, and together with the T-shirt and the exhibit memo escorted them to Government Chemist for analysis.
(64) He said when he interrogated Accused 1 he told him that he, Accused 1 was assisting the deceased, but he did not find the explanation to be satisfactory as to why there was blood on his T-shirt.
(65) He said he gathered from Amina and John Mutunga that the accused persons after throwing bottles at the deceased, did not assist him and that the two advised him to report to the police.
(66) He attended the postmortem and the cause of death was head injury.
(67) He arrested Accused 1 on 2/7/2016 and Accused 2 was arrested on 5/7/16 by the OCS C.I Benjamin Lwande, CPL Adir, Sergeant Waweru and PC Ngare.
(68) He said Accused 2 was his colleague police officer.
(69) He said the lady at the counter confirmed that Accused persons threw beer bottles at the deceased, he said he did not recover any beer bottles as the place had been cleared.
(70) He stated that the deceased was dancing, hit the accused persons table pouring their beer then argument arose and they threw beer bottles at him.
(71) Other than Amina, he said he interviewed the deceased’s girlfriend by the name Caren Mwende. That he relied on the testimony of the waiter and counter person as it proved beyond reasonable doubt that the accused persons committed the offence.
(72) The witness was cross-examined by counsel for accused. He told the court that his theory as the Investigating Officer was that the accused persons committed murder by throwing beer bottles at the deceased. He said they were thrown at close range, around 1 metre, that he did not draw a sketch plan. He said he ruled out the Accused 1’s explanation of assisting the deceased because the blood stains on the Accused 1’s T-shirt were on the front and not on the shoulder; he said he was not aware that the government analyst said the blood stains was picked from the front part of the shoulder of the T-shirt.
(73) He testified he found the T-shirt on the Accused 1’s bed – that Accused 1 had not tried to conceal it. He testified that it was not true what John Mutunga told the court that it was busy at the club or that Amina was busy serving customers. He said that it was dawn, that she knew the customers by name.
He also told the court that deceased was with his girlfriend Caren, and that she sat with him at the same table. He said she recorded a statement.
(74) Questioned about PW1 he said his statement was recorded by the Deputy OCS Dickson Herbert on 3/7/2016 at 11:00 a.m. That he, Investigating Officer had arrested him on 2/7/2016 and he was released on 4/7/2016.He said that Pw1 did not record a statement under inquiry – but the statement he recorded while in custody was the one the Investigating Officer was using to prosecute the accused persons. He denied any knowledge of a statement by Amina that it is Mutunga who had beaten/killed the deceased.
(75) Regarding Bahati Christine Pw4 he said her statement was recorded by PC Adukoli – that she was not arrested with respect to the murder herein – he denied that she was compelled to record a statement on 3/7/2016 to implicate the accused person. He denied that she was threatened with forceful eviction to Kilifi – he said she did not have mobile phone but gave that of her colleague, when asked whether she had vanished he said “sex workers migrate ”. He denied any knowledge that confirmed that Pw1 injured deceased, and the owner of the club threatened her to lie or be removed from Mtito Andei.
(76) He said he was not aware that Amina recorded a statement on 27/8/2016. Asked why accused 2 was arrested he said after Pw1 recorded statement – that Pw1 was afraid of Accused 2. He would not explain why he had kept Pw1 in the cells from 2/7/2016 to 4/7/2016.
(77) He said he visited the club scene on 2/7/2017 as it is around 700 metres from the police station. He said he found blood stains but did not lift them.
(78) About Accused 2 – he said he was arrested because he was in the club – that Accused 2 could not explain what had transpired.; that Accused 2’s statement was recorded by C.I Herbert, that C.I Herbert did not record a statement nor did PC Adukoli.
(79) Cross-examined about the deceased, he said he collapsed around 200 metres from the club near KWFT. He said he collapsed around 400 a.m .; and that he as the Investigating Officer was there at 600 a.m . He said no one saw him collapse – that he revisited the scene with IP Kiplimo the base commander.
(80) Asked about who made the report, he made reference to OB 9/2/7/2016 at 720 a.m. He said there was no first report as the OCS had received a call about a person lying on the road side. That the said report was received at 600 a.m., the incident report at 400 a.m. yet the witnesses were speaking about a 500 a.m. incident.
(81) He denied that Pw1 forcefully removed deceased from the club. He said he did not interview anyone outside the club; he denied any knowledge of 2 witnesses by the names Dorcas and Daniel. He denied that he had been threatened to testify in a certain way. He denied that Amina told him that Pw1 assaulted the deceased.
(82) The prosecution closed its case.
THE DEFENCE
(83) The 1 st accused testified as DW1. He testified that on the night of 2/7/2016, he was with DW2, Michael Nzeki Wambua who was a police officer at Mtito Andei police station . That his co accused was on duty at the police station between 300 pm at 1100 pm . That his co accused ‘s 1 st born child had gone on a school trip, and would be arriving at Mtito Andei about midnight. That his co accused had requested, as he had a motor vehicle to assist him to pick his child. That they picked the child, took the child home. Thereafter they went to K4 club at around 200 a.m.
(84) DW1 testified that he saw the deceased when he already had the cut on the face – he said he saw him fighting with a certain lady. He said the deceased fell on him, staining his T-shirt with blood. He said he got up – to avoid a fight. He said his co accused being called by the person at the counter Pw1 John Mutunga whose alias he knew to be Kawalai. He said he knew him, and also knew him to sometimes act as the bouncer at the club. He denied that he and the accused 2 beat the deceased. He denied that Accused 2 went out with the deceased. He said after deceased left – they continued drinking, and that he even fell asleep on the table and woke up between 5 – 630 a.m. He heard that a person had died near that road he did not go there but went to his house.
(85) Between 200 pm and 400 pm the police went to his house, they told him he had killed someone. They searched his two rooms and found the blood stained T-shirt on his bed. He said the officer demanded Ksh.100000/= from him to hide the T-shirt. He told them he had not killed anyone, he said he did not assault the deceased. He said when he was arrested he was still a bit drunk.
(86) This accused told the court that his father was one Jacob Ngao, Chief Inspector who at the material time was the DCIO Malindi. He told the court that upon his arrest one Dickson Herbert, the OCS - at one time his sister was involved in a theft case, and had requested his father, C.I Ngao to make the case to go away – but his father had insisted that the case proceeds. He believed that Mr. Herbert had grudge against his father. He testified that it was Kawalai and others who had assaulted the deceased while demanding from him payment for the breakages he had caused. He said he did not recall seeing Amina in the bar that night – but she recorded two witness statements.
(87) On cross-examination he told the court he did not see the fight begin – but the deceased reached suddenly their table – he saw a struggle between the deceased and the woman he was with. That he was already bleeding . He did not see Kawalai beat the deceased. That after the commotion there was a bill . He said that he and other were about 4 or 5 at their table; and Charles just landed on him staining him with his blood.
(88) He said Herbert was the senior officer who was handling the case but he never came to testify. recorded his statement. Herbert did not testify but that he was the one who was pushing the case against him. He said he had never disagreed with Kawalai/Amina – He said because of the blood stain on his T-shirt they planted the case on him. That Dickson Herbert also recorded Kawalai’s statement.
(89) The 2 nd Accused testified as DW2 and confirmed that he and the 1 st Accused were in the club that night and at their table – they were joined by a friend by the name Kamau and a lady. They ordered their drinks – and an hour later towards 4:00am a vurugu broke out at the next table between a man and a woman – both of whom he did not know. He said he saw the deceased hit with bottle by the lady then he staggered towards their table. He said from where he was seated, he sat against the wall facing the other table – and Accused 1 was seated facing him. This deceased came to their table and fell on Accused 1. Accused 2 stood up to find out what was up – it was then PW1 came to the table with the Soja ( watchman) one Keli.
(90) Kawalai told him that the deceased was quarrelling with the lady who he was accusing of stealing his Ksh.9000/=. He said he was intoxicated and handed over the number for the Patrol/ Report officer personnel to Kawalai so he would call – report the matter – so Kawalai, Keli, and the deceased left and walked out of the bar.
(91) However, Kawalai was demanding that the deceased pay Ksh.230 for breakages. He said he returned to his table and continued to drink. He said Accused 1 was completely drunk and even blacked out at some point– in fact one of the ladies pointed out the blood stain on his T-shirt. That he left 1 st accused sleeping his blackout , taking with him his wallet and keys. He left because he was on duty at 300 p.m. went to his house.
(92) At 300 pm he went to work and took over report office duties. He noted the OB that at 600 a.m. a good Samaritan had called PC Lengandu that there was a man walking from KWFT towards the station who slipped and fell. He read the report – OB entry 9/2//2016 at 0720 hours.
“Sudden Death Report
…reported that one Charles Njogu aged 37 years was walking whereby he slipped and fell down on his head. He bled profusely on the head and ear. Was rushed to hospital …pronoun
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