The Republic VS MUASYA KIOKO KILAVI The Republic VS MUASYA KIOKO KILAVI

JUDGMENT

1. Muasya Kioko Kilavi was charged with murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars are that on the night of 4th and 5th January 2020 at Kima village Kwale location, Mukaa sub county within Makueni County the unlawfully murdered Jimmy Peter Kanu.

3. He took plea on 19/2/2020 before the Hon. Ong’udi J. and pleaded not guilty. He was represented by Ms. Ong’onga, and later Ms Kamau.

4. The matter proceeded before Hon. Dulu J. on 28/6/2021.

5. The prosecution called 8 witnesses, and the accused was put on his defence and did not call any witnesses.

- Serah Kamande Muindi the deceased’s mother was PW1. She testified that the accused was known to her as she had seen him at Kima many times. That on 05/01/2020 at 6:30am she was at home when she received a phone call and was informed that her son Jimmy had been assaulted at Kima and was lying down. She proceeded to the scene and found that he had been taken to hospital. She returned home. Jimmy was discharged the same day but he e was in bad shape and was not talking. There was blood in his mouth and the back of the head. He could not walk. She took him to a hospital in Wote where he had a head x-ray and was admitted for one week. Thereafter he was discharged home on drugs. She said that his penis had been pulled and he found it difficult to urinate. He died after one week at home. She reported to the police.

- She added that she was not aware of a relationship between her son and the accused.

- On cross examination, she said that she lived with Jimmy at her home. That he left home at 4am and went to Kima to harvest sand. She did not meet him when she rushed to Kima. He was x-rayed at Wote and they were given the results. He was admitted to hospital for a week and then they were told to take him home to take drugs there. He was not cured. He needed assistance from two people in order to move. The doctor did not tell them the reason they discharged him from hospital in that condition. They did not take him to another hospital before he died.

- The deceased’s uncle, Stephen Muteti Mola was PW2.He testified that he was the taxi driver. That on 05/01/2020 at 6:30 am, he was called on phone by deceased’s mother and informed that the deceased had been assaulted at Kima. He proceeded to the place in his car and found a crowd. Muasya was there tied with ropes. He tried to talk to Jimmy. Jimmy was injured at back of the head, and side of the face and also complained about pains in the lower abdomen near the navel.

- Jimmy could not walk. He put him in his vehicle to take him to hospital. Muasya was put in another m/v belonging to the brother in law of PW2. They went to the police station in Kilome Sub-County, Kasikeu Ward. The report was booked in the OB and they were directed to take the injured and the accused to Sultan Hamud Police Station. On arrival, the accused was arrested and they were told to record a report before taking Jimmy for treatment. They then took Jimmy to Sultan Hamud Dispensary where they were referred to Wote for a head scan. On their way they went by Makindu hospital where they were also advised to go to Wote for the same. They did so and returned to Makindu hospital where he was admitted for about 4 days. Jimmy was not able to talk and only stammered abit

- After about 4 weeks the mother called him and informed him that Jimmy was worse. Then he died.

- On cross examination, he said that he was phoned while at home near Kima town and took 10 minutes to go to the market. Jimmy was not able to talk. He could open his eyes and could move his arms. He knew Muasya because he saw him there surrounded by people. He used to see him before passing around and was a sand harvester. He took the deceased to Sultan Hamud, then Makindu on the same day. The next day they took him to Wote. They took 8 hours from Wote to Makindu. It took two (2) days between injury and admission to hospital. He was admitted for about 5 days. At discharge, the medical personnel said Jimmy was fine. He was not given a discharge summary as he was only the taxi driver. At discharge t

he deceased could not walk and had to be held to move. They did not have means to take him to another hospital as his mother is a charcoal burner. He did not see Muasya assaulting Jimmy and only met a crowd of people.

- Diana Kameni Kimuyu, was PW3. She testified that she was a resident of Kima area and a businesswoman and on 04/01/2020 at 10 pm she was at selling alcohol at F2 bar at Kima. Muasya was seated in the bar among other customers. Jimmy came in around 2am and stood at the counter. She sold him drinks. Soon thereafter he and Muasya disagreed. They started quarreling. Jimmy was saying that the accused should leave the bar as he had no money to buy drinks. They did not fight in the bar.

Then the accused asked her why Jimmy was provoking him. She told accused to ignore him as he was drunk.

- The accused told her to caution Jimmy from provoking him. She then advised the accused to leave the bar as he had stopped taking alcohol. The accused left. After one hour, Jimmy told her he was going home. The accused left at 2:30 am and Jimmy left at 3am. She later closed the bar and went to sleep. At 2:30 pm, she woke up and was informed that the accused had been arrested for assaulting Jimmy.

- On cross examination, she said that the accused entered the bar at 9:30 pm and started taking drinks. Jimmy entered at 2am and was already drunk. Jimmy started the quarrel between the two. Though the accused complained to her, she did not tell Jimmy to leave. Jimmy had a spade which he used to point at the accused. She took the spade and put it in the counter. When she told the accused to leave, he agreed and said that Jimmy could continue drinking if he had money. When Jimmy left, she remained with the spade. After they left, she did not see them again and did not witness any struggle. She did not see them fight. She closed the bar at 5 and had not seen the two again.

- Jackson Makau Peter, the deceased’s younger brother was PW4.He testified that he is from Kima and an artisan – mason. He could not remember the date Jimmy died but he identified the body for the Post mortem examination.

- On cross examination, he confirmed that his brother died at home and then they carried the body to the police station. The body was taken to the mortuary by him and his aunt Kanini.

- Josephat Mwongela Matheka was PW5. He was from Kima in Makueni and a farmer and also worked with the deceased as sand lorry loaders. On 05/01/2020 at 4:30 am, he was from Kima river and was heading home. As he was going to a shop to buy bread he passed by a bar by the name Kwa Kamene Club. That is when he saw the accused pulling Jimmy. There was moonlight and he identified them from the door of the bar. He saw him pulling him the train rail track. They were arguing and saying that they should go and fight at the rail track. He took the bread and followed the two. He took a stick from other people who were sleeping outside. He ran and saw the accused who in turn ran away after spotting him.

- The people who were sleeping rose and followed him and upon reaching the rail track, the accused jumped on the rail track and disappeared. He then arrived at the place where there was a person lying down and found that other people had also arrived. They observed him closely and noted that he was injured on the head. He however thought that the person was drunk and not seriously injured. He left him there and proceeded home. After day break, he heard that the accused had been arrested by the public and taken to the police. Later, he heard that Jimmy had been taken to hospital and that his speech was not coherent. Later, he learnt that Jimmy had died.

- On cross examination, he said that the incident happened on 5th May at Kima. That it happened not far from the bar and both were outside the bar. That there were lights only from outside the houses; that he entered the hotel to buy bread and did not see the person who started the fight. He knew the deceased for many years and the accused for 5 years. He said he was outside the hotel and heard the two arguing as they walked to the railway line which was about 5 paces away. He witnessed the fight. He did not scream.

- He woke up the people who were sleeping near the fire before the fight. He could not remember what the deceased was wearing. He could not remember when he recorded his witness statement. He saw Jimmy who was bleeding from the head and left him with other people. He saw the accused hit the deceased with fists. Both were drunk. After day break he learnt that that accused was taken to the police.

- PW6 was Samuel Mulandi Paul, a resident of Kima, Kajiado and a sand loader. His testimony was that he knew both the deceased and accused as they worked together loading sand. On 05/01/2020 4:30 am, he was at Kima and had been sleeping near a fire. Mwongela PW5 arrived running, took a stick shouted saying that the accused was beating Jimmy. He (PW6) ran towards the railway line and on his return, he saw Jimmy lying on the ground. There was moonlight. He then went back to the river. At about 10:00 am, he was told that the accused had been arrested by the public. At that time, he did not see Jimmy again.

- On cross examination, he said that Kima is at the border of Makueni and Kajiado. That he was at Kima Kajiado and what he witnessed was in Kajiado side. He crossed the rail line. The accused was chased. Josephat picked a stick running towards the rail line. He did not see the accused pass by.

- PW7 was Dr. David Kasanga who conducted a post mortem on the body of the deceased following a by Sultan Hamud police station. He found scars on the right side of the face around the right eye, a wound on the front of the face pressure sore on the right hip, wall of urinary bladder was swollen from trauma, there was bleeding inside the head at the back of the head and the whole brain was swollen. The cause of death was failure of both respiratory and cardiovascular system due to severe head injury. He produced the post mortem as P. Ex 1.

- On cross examination he told the court that the said injuries could not have been caused by alcohol but by trauma.

- PW8 was Richard Langat. He is currently in Meru County but was previously in Sultan Hamud. He testified that on 05/01/2020 at 9.30am, a report of assault was booked in the OB and the case was assigned to him for investigations. He recounted the events leading to the death and how the post mortem was conducted. He also visited the scene at Kima and club F2. He produced the P3 form as P.Ex 2.

6. The accused was put on his defence. He gave a sworn defence.

7. He told the court that at the material time he was working as a “turn boy” for a sand lorry. On the material night after work he went to F2 club around 8:00pm. He took alcohol until about 2:00am when the deceased showed up. He was armed with a spade. He demanded that the accused buy him alcohol. The accused refused to buy the alcohol. That is when the deceased began to threaten him with the spade. He attempted to hit him with it, but the accused blocked and the club owner came and disarmed him. He left the club, leaving the deceased there. He did not go back to the club but went home and slept. The following day between 8:00am – 9:00 – he saw members of the public who told him that he was one of the persons who were drinking with the deceased and he had quarreled with the deceased the previous night. He was taken to the club where he saw the deceased lying outside the club. He told them he had indeed quarreled with the deceased but he had not hit him. On cross examination he told the court he knew the deceased; that they did the same work of loading sand on lorries and had done so for three years by the date of this incident. He confirmed that Kimanthi – Kavilingi – were both his friends, Josphat Mungala and Samuel Mwendi, they all worked together. He confirmed that the deceased came to the club at 2:00 am by which time the accused was really drunk; he recalls the deceased threatening him, he never hit him, he left him in the club. He told the court that he had rented a room in town and upon the deceased being disarmed by the club owner; he left and went directly to his room. He confirmed that there were people outside the club sitting around a fire whom he did not identify. He confirmed that he was the only one who quarreled with the deceased, denied fighting with the deceased. He confirmed to have recorded a statement with the police but denied telling the police that he had fought with the deceased and that he too had sustained injuries. He told the court that he lied to the police so that they would not “finya” him. On re-examination, he said the last time he saw the deceased, he was alive. The defence closed its case.

8. Counsel for the accused told the court that she would file submissions – other than the submission on no case to answer – I did not find any other submissions earlier on the file or on CTS.

9. The issue for determination is whether the prosecution has established the charge of murder against the accused person.

10. The ingredients of murder are set out in section 203 of the Penal Code. There must be a person (the perpetrator) with malice afore thought (the motive) – death (of another person) by unlawful Act/omission.

11. Was there a death? Yes, the deceased Jimmy Peter Kanu died as a result of injuries sustained through an assault. He made a report at Sultan Hamud on 5/1/2020. The brief details of the offence reveal that he sustained head, abdominal and lower back injuries. When the report was made at 09.20 hrs on 5/1/2020 – he reported “ to have been assaulted on the night of 5/1/2020 at Kima market by known person Muasya Kioko …”.

12. The P3 was issued on 7/1/2020 when he was referred to hospital by OCS Sultan Hamud. The P3 was completed on 25/1/2020. The Doctor found the following injuries:

- Right facial cut wound,

- Occipital scalp swelling

- Right zygomatic bone minimally depressed fracture

- Facial and scalp soft tissue edema

- lower back tenderness and unable to walk

- Left extensive wound of the iliac region measuring 10/8 cm

- Bicuteral knee lacerations and bruises

And formed the view that the patient had sustained grievous harm.

13. Upon his death the pathologist found that the deceased had scars on the right side of the face around the right eye and the right knee; he found a wound of the front of the face, pressure sore on the right hip; wall of the urinary bladder was swollen from trauma; there was an injury on the back of the head where there was bleeding inside the head and the whole brain was swollen. Cause of death was – failure of the respiratory and cardiovascular systems due to severe head injury. On cross examination he told the court that it was alleged that he was injured on 5th January 2020 and died on 28/1/2020. He said there was slow bleeding in the brain and a burr hole would have relieved the pressure on the swelling on the brain.

14. From this evidence – it is not in doubt that the deceased was assaulted, he sustained injuries, he was taken to hospital and treated – but succumbed to the injuries. The fact that the death could have been avoided through proper treatment notwithstanding - what is clear is that the death of the deceased was not caused by lawful means – it stated as an unlawful assault on the night of 4/5/2020 and ended up as death on 28/1/2020. Hence the three ingredients of murder were established.

15. Who caused the death? The accused person denies fighting with the deceased on the material night. It is not in doubt that the last time he saw the deceased he was alive. However it is evident from the P3 that on going to report the assault, he told the police the name of the assailant as Muasya Kioko this was on 5/1/2020.

16. It is evident from the evidence of PW4 that the accused quarreled with the deceased. Both of them were drunk – it was 2:00am – and the accused testified he has been drunk from 8:00pm.

17. They left the bar some minutes apart.

18. From the evidence of PW5 and PW6 it is evident that the disagreement continued and at some point a fight ensued. PW5 saw the two struggling with each other and even saw the accused that the deceased with fists. The deceased fell – and the accused ran away. PW6 saw the accused going after the deceased. So clearly there is eye witness evidence that a fight ensued between the accused and the deceased in their drunkenness. This is supported by the report on assault where the accused was named as the person who had assaulted the deceased. Members of the public had arrested him immediately – after assault incident. I have no doubt that it is the accused person who fought with the deceased – and out of the fight the deceased sustained the injuries that led to his death.

19. Did the accused have malice afore thought?

20. Malice aforethought is set out at section 206 of the Penal Code. It states:

Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—

(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

21. From the description of the circumstances by eye witness – the accused and deceased were drunk. One began drinking at 8:00pm, the other came into the bar at 2:00am while already drunk and found the other. A quarrel ensued and they later engaged in a fight. There is nothing to suggest that the accused had the mens rea to cause the death of the deceased and from his constant denial – he would not accept that what happened between him and the deceased caused his death, and that he could be responsible.

22. Unfortunately the incident of them going to fight led to the injuries that resulted in the death of the deceased.

23. I find from the evidence that the accused person did not harbor any malice afore thought and in the circumstances hold that he was responsible for the unlawful killing of the deceased.

24. Consequently, I substitute the charge of murder c/s 203 as read with s. 204 of the Penal Code with manslaughter c/s 202 as read with s. 205 of the same code and convict him accordingly under s. 322(2) of the CPC

Dated, Signed and Delivered, this 6th day of November 2024

Mumbua T Matheka

Judge

Accused: present

Ms Nelima/Ms Elizabeth Court Assistants

Ms Nyakibia/Mr Kazungu for State

Ms Kamau for the Accused

Mr. Kazungu, no previous records accused is a first offender

Ms Kamau, accused is remorseful for what happened. He seeks the leniency of this court.