The Charge
1. The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars are on the 10th day of January 2022 at Kashani Area in Kisauni Sub county within Mombasa County, jointly with another not before court murdered DALMAS ADWET WINYO.
2. He pleaded not guilty to the offence.
3. . The Prosecution pleaded its case and called witnesses and closed its case and the court found that he had a case to answer.
4. The accused person gave sworn testimony and called 4 witnesses .
5. . ISSUES FOR DETERMINATION
6. : a) Whether the prosecution has proved its case beyond reasonable doubt?
7. b) Whether there was circumstantial evidence linking the accused person to the offence
8. a) Whether the prosecution has proved its case beyond reasonable doubt.
9. . Under section 203 of the Penal Code, CAP 63 Laws of Kenya, for an offence of murder to suffice, the prosecution has to prove the following ingredients:
10. i. The death of the deceased.
11. ii. That the death of the deceased was unlawful and that it was the caused by some unlawful act or omission on the part of the accused person.
12. ii. That in the causing death of the deceased the accused had malice aforethought.
13. . The case of ;. REPUBLIC V ANDREW MUECHE OMWENGA (2009) eKLR elaborately explains the three ingredients of murder of the offence of murder.
The Death
14. This was confirmed by several witnesses including the post-mortem form dated 12/1/2022 that was prepared by Dr. Abdul Aziz Mohammed (PW 1) as PEXT 1 confirms the same. The body was identified by Kimberly Margret Akinyi, PW 6, his sister and Susan Ayuma Otunga PW 7. The pathologist examined a body that had been preserved by refrigeration from the 10th to the 12th of January 2020. So there’s no doubt as to the death.
Cause of Death
15. The post-mortem report shows that the deceased Dalmas Adwet sustained the following injuries
EXTERNALLY
The body was covered with mud and blood stains.
The face had multiple bruises.
Deep sharp cut wound on the neck left side 8cm by 4.5cm – 2.5cm depth with severed common carotid artery.
Multiple penetrating cut wounds on the face and neck.
Multiple linear sharp bruises on the hands and chest.
Internally the main finding was severed common carotid artery on the left side of the neck.
16. The doctor opined that the cause of death was Hemorrhagic shook due to severed left common carotid artery secondary to sharp trauma to the neck.
Whether the Death was caused by an unlawful act
or omission by the accused.
17. The late Dalmas Advent was alive and enjoying his drink with Danson Mwawuganga Mbarinee, PW 3 on 09/1/2022 at J’s Pub which was operated by Martha Ndariro Mwanisha PW 9. PW 9 testified that the deceased went into the pub at around 5.00pm and sat at the balcony. That he was later on joined by Liz and Dan (PW 3) at around 7.00pm.
18. PW 9 also placed the accused person in this pub and she said he was with Chizi and 2 other friends at the counter. PW 9 added that she served the group with the deceased some Napoleon drink. She testified that the late Rambo left the pub first with PW3, then the accused person and chizi left while carrying the Napoleon bottle with some drink as well as a wine glass. She was later on called by the DCI and she confirmed that Yeri had carried a Napoleon bottle and a wine glass and the deceased person had carried a chrome gin bottle. She identified the broken wine glass -PEXT 8(a). Broken Napoleon glass as PEXT 5 empty chrome gin bottle – PEXT 5.
19. PW 3 was the only witness who was present at the exact place where the body of the deceased was found when the incident happened. He admitted that they were with the deceased and they had communicated earlier on during the day. He said he left the pub with the deceased and after walking around 50 meters or so from the pub, he saw the deceased was walking while looking behind. He also looked behind and he saw 2 people following them. That the deceased told him to stop and when the 2 approached them the deceased asked why they were following them and what they wanted.
20. That there was no response but he heard the sand of breaking glass. He added that he saw 2 people confront the deceased saying –
‘Tutakuuwa leo”, “Tutakuua leo”
That there was no one else at the scene and he raised an alarm but there was no response. That he ran home and called an old man called Charo Chengo Thoya (PW 4) who advised that they should report to the village elder; One Kazungu Chengo Thoya (PW 5). The trio – PW 3, PW 4 and PW 5 returned to the scene where they found the deceased lying on the road.
21. Later the police collected the body and the following day CPL Aisha Maneno (PW 2) visited the scene with PW 5. She drew the rough sketch plan which she later reduced to a fair one-PEXT 2(a) and (b). She also collected an empty bottle of chrome voda PEXT 4(a),I empty bottle of chrome given with blood stains PEXT 4(b). Broken bottle of Napoleon PEXT 5.
Black cap – PEXT 6
Open shoes – PEXT 7
Broken piece of wine glass and handle/stem PEXT – 8A and broken base of wine glass PEXT 8(b).
Broken piece of wine glass PEXT 8(c).
22. The evidence that places the accused person at the scene of crime is the oral evidence of PW 9 and his own defence. PW9 testified that the accused left after the deceased had left with PW 3 and that he carried a Napoleon bottle and a wine glass. Then there is the evidence of the accused person that he found two people fighting and he tried to separate them. That as a result, he sustained injuries as reflected on the outpatient cards DEXT 1 (a), b and c. There is noted some deep cuts on the head.
23. PW 7 PC Evans Kosgei confirmed that the accused person was taken to Kiembene Police Station by a motorcycle rider 10/1/2022 at around 3.00am. He advised them to go to hospital. That the accused person went back to the station and he was joined by the wife. That as he was interrogating them someone said –“ Yule jamaa ameumia…’.That when he asked ‘nani ameumia ‘. The accused asked to talk to the wife. That shortly thereafter the 2 fled from the station.
Circumstantial Evidence
24. PW 3 was not able to identify the persons who confronted them. He only heard the sound of breaking glass. We do not have any other eye witness or photographs. All we have are the broken pieces of the wine glass and the broken napoleon bottle.
25. The defence has correctly pointed out that even though the broken glass and broken bottle were said to have been broken and blood stained, there was no collection of the blood for DNA sampling so as to match the same with the blood of either the accused person or the deceased person.
26. Indeed that was a grave omission as any positive DNA finding, would have given some definitive nexus between the accused and the injuries and made our work easier. That was not done and so we only have the circumstantial evidence.
27. In REPUBLIC VS. DENIS KIPKOECH (2019) eKLR it was stated that; “In a case depending exclusively on circumstantial evidence, the court must before deciding upon a conviction find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt”
28. Further In the case of REPUBLIC VS. MICHAEL MURIUKI MUNYURI CRIMINAL CASE NO. 71 OF 2010 Lessit J. Judge cited the CASE of ABANGA ALIAS ONYANGO – VS- REPUBLIC CR. APPEAL NO. 32 OF 1990 (UR) in which the Court of Appeal rendered that; “It is settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
29. (i) The circumstances from which any inference of guilt is to be drawn, must be cogently and firmly established.
(ii) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and no one else.
30. ” In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, Court had this to say on circumstantial evidence:“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence.
31. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”
32 .In the case of Abdalla Wendo v Republic (1953) 20 EACA 166 it was held that: “Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or directly pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”
33. The accused person sustained some injuries that fateful night and he produced some cards by consent. We had summoned the maker one Paul kidata but we did not come to court. That absence is now explained by a careful perusal of the notes. Even without a forensic examination, one can tell they are suspect. The first note – DEXT 1 (a) is not signed. Though the card itself is a photocopy with the original handwritten notes, the stamp is a photocopy. The card dated 20/1/2022 at least has an original stamp and signature and the same applies the card dated 30/1/2022.
34. The interesting point is the photocopy of the card, appears to be the same one for the 2 or 3 days. The most obvious part being the entry next to the out/inpatient card – there is faint number like 712/ in the 3 cards. One also notes the right hand corner next to the Title Untange Memorial Centre has the same triangular margin and in the 3 cards as well as the folds lines in the upper center of the card.
35. The above discrepancies not withstanding, it is not in doubt that the accused person sustained some injuries that night, and of course, the court is minded to always to always bear in mind that the accused is under no obligation to prove their innocence and the burden of proof never shifts to him.
36. In this case there is proof that there was a physical confrontation between the accused person and the deceased. It ended with the fatal injuries on the part of the deceased and some injuries on the part of the accused person. The defence pointed an accusing finger at PW 3 when it was alleged that he had exchanged some the words or called the deceased bulukenge and there was talk of some previous attempt to murder the deceased.
37. PW 9 however ,did not mention any bad blood between these two , accused and the deceased who continued to drink together and who left together.
38. PW 4 and PW 5 also testified that PW 3 reported the incidence to them immediately it happened and they saw his clothes and they had no blood stains contrary to the insinuations by the defence.
UNLAWFUL DEATH
39. A death may occur but one is not liable for murder if he has a lawful defence such as self defence or a lawful homicide. In this case ,the accused person’s position is that he was trying to separate two people who were fighting but he got cut.
40. That narrative does not explain how the napoleon bottle he had and the wine glass he carried from the club ended up at the scene of crime. There was no other murder weapon and the sketch plan show how they were recovered.
41. The court believed the evidence of PW 9 was that it is the accused person who carried the Napoleon bottle with him. The court also believed the evidence by pw3 that two people confronted the deceased and attacked him.
42. The accused person’s treatment notes says he was attacked by people not well known to him and later on he reports says it was robbers. Its noted he did not get a P3. He was an aspiring MCA who knows the procedure. Further he abandoned his report to PW 8 when he heard that the other person had been injured.
43. The accused person also abandoned his motor cycle outside PW 4’s house and he fled from the area. The court does not believe his explanation of having been advised to rest and travelling to his rural home. This was a guilt flight.
44. Whether the Accused person had malice aforethought.
45. In the case of REPUBLIC VS. KYUNU MAMBO CRIMINAL CASE 8 OF 2018 C. Kariuki Judge relied in the case of JOHN MUTUMA GATOBU VS REPUBLIC [2015] KLR where the Court of Appeal stated that: “Malice aforethought in our law is used in a technical sense properly defined under Section 206 of the Penal…. There is nothing in that definition that denotes the popular meaning of malice as ill will or wishing harm and all the related negative feelings. Nor, for that matter, is it to be confused with motive as such. Our law does not require proof of motive, plan or desire to kill in order for the offence of murder to stand proved, though the existence of these may go to the proof of malice aforethought”
46. The state is also expected to prove that the accused person not only acted unlawfully but also had the mens rea.
47. In this case the accused person says he was separating two people but that cannot be true as it is his bottle and glass which were used as weapons. As to the mens rea, we did not get adequate evidence as we were not told of any previous grudge or one that developed that evening. There was the evidence that pw3 said the attackers said tutakuua leo, but he did not specify who said so.
48. It is also noted that the incidence occurred at 3.00 AM and both the accused person and the deceased had been drinking . Further even though there are multiple injuries there was evidence that two people confronted the deceased. The fact that he also sustained some injuries is also taken into account and accordingly I find that the intention was not proved and therefore the offence of murder contrary to section 203 as read with 204 0f the penal code fails. He is convicted for the lesser offence of manslaughter contrary to section 202 of the penal code as read with section 205 of the penal code.
.
49. It is so ordered
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 6th day of March 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
The accused person and his advocate Mr Chacha Mwita
Mr Ngiri Mr Sirima and Ms Cherop for the state
Ms Bebora Court Asssitant
HON. LADY JUSTICE W. K. MICHENI
JUDGE