The Republic VS MZUNGU SHUME MWANGEMI alias SAID CHOTE AND ONESMUS GAMBO KARISA alias ONESMUS KARISA

INTRODUCTION

This case presents the tragic death of three (3) individuals over a piece of property in what was described as the “volatile squatter situation”. Sadly, it also highlights the immensely disappointing performance displayed by the investigators and the prosecution. This has effectively hindered the pursuit of justice for these three souls.

THE CHARGES

1. The accused persons MZUNGU SHUME MWANGEMI alias SAIDI CHOTE, ONESMUS GAMBO KARISA, ROBERT MGANGA MWAGOSHA, KENNEDY MWANGEMI SHUME, VICTOR KOLE CHINYEZI alias NGATE, DANIEL KARISA alias MBOSO, ANTONY WANJE MBOGO alias MGANGA, LABAN MWATATA RIMBA and CLIFF NGOMBO NGARI face 3 charges of murder contrary to Section 203 as read with Section 204 of the Penal Code cap 63 of the Laws of Kenya.
2. The particulars on Count 1 are that MZUNGU SHUME MWANGEMI alias SAIDI CHOTE, ONESMUS GAMBO KARISA, ROBERT MGANGA MWAGOSHA, KENNEDY MWANGEMI SHUME, VICTOR KOLE CHINYEZI alias NGATE, DANIEL KARISA alias MBOSO, ANTONY WANJE MBOGO alias MGANGA, LABAN MWATATA RIMBA and CLIFF NGOMBO NGARI on the 7^th day of July 2021 at Junju Village of Kilifi South Sub County within Kilifi County jointly with others in court murdered SIDIKI ANVERALI SUMRA.
3. The particulars on Count 2 are that MZUNGU SHUME MWANGEMI alias SAIDI CHOTE, ONESMUS GAMBO KARISA, ROBERT MGANGA MWAGOSHA, KENNEDY MWANGEMI SHUME, VICTOR KOLE CHINYEZI alias NGATE, DANIEL KARISA alias MBOSO, ANTONY WANJE MBOGO alias MGANGA, LABAN MWATATA RIMBA and CLIFF NGOMBO NGARI on the 7^th day of July 2021 at Junju Village of Kilifi South Sub County within Kilifi County jointly with others in court murdered RAHIL KASMANI MOHAMED.
4. The particulars on Count 3 are that MZUNGU SHUME MWANGEMI alias SAIDI CHOTE, ONESMUS GAMBO KARISA, ROBERT MGANGA MWAGOSHA, KENNEDY MWANGEMI SHUME, VICTOR KOLE CHINYEZI alias NGATE, DANIEL KARISA alias MBOSO, ANTONY WANJE MBOGO alias MGANGA, LABAN MWATATA RIMBA and CLIFF NGOMBO NGARI on the 7^th day of July, 2021 at Junju Village of Kilifi South Sub County within Kilifi County jointly with others in court murdered JAMES KAFANA MZUNGU.
5. After the close of the prosecution case, A1, A4, A5, A6, A7 A8 and A9 were all acquitted for lack of evidence. Only A2 and A3 were placed on their defence. So, this Judgment relates to just the two of them. (Accused 2 and Accused 3).

THE EVIDENCE

1. The state called a total of twelve witnesses even though PW6 and pw11 were stood down and they did not come back to testify. The 12 witnesses were;
2. Peter Kahindi
3. Rev. Ruphis Mzungu
4. Jacob Akwayo kanango
5. Rophe Katenga Mwangate
6. Evans Mwangola
7. Nicholas Mrima
8. Fridal malidzo Mwama
9. Ndunya Mwanzu Ndoro
10. Kennet Mbungu Ziro
11. Emily Mungai Mwaki Tili
12. Dr. Gabriel Mugola
13. PC Denne Isemek.

Each of the two accused persons testified.

THE EVIDENCE

1. PW1 was a protected witness who gave evidence under the pseudo name Peter Kalaa. He was from Bondeni in Junju. His evidence was that on 7/7/2021, he was going to Tsuma’s shop at Junju around 5:30 p.m.
2. That a black vehicle passed him when he was near the junction to Junju Secondary School and it went towards Junju Primary School. He later passed it at Langola Shuja where it was parked. He proceeded to the shop. On the way back, he found the vehicle’s occupants surrounded by 4 to 5 people. That the passengers were two Asians and an African and they were being interrogated.
3. PW1 identified one person whom he came to know as Mganga, A3, who was holding the African Man and telling the man that he had told him not to return with the Asians again. That Mganga said “nitamalizana na wewe kwanza ndio nipambane na hawa wengine.”. That Mganga attacked the African man with a panga and the man fell down while bleeding.
4. That pastor Silas Kole arrived at the scene and intervened by telling Mwasike and Mawanzo that the Asians are not the people who gore out people’s eyes as it was being alleged, they were “wachokoraji macho”. That the Pastor decided to take the victims to his home which was nearby. (about 5 meters away). That however Mganga ordered a lady who was there to to scream and raise an alarm that the Asians and the African were “wachokoraji macho” and the woman did scream. That Mwasiko, Mganga and Mwawazo were the ones who were present initially, but other people arrived after the lady raised the alarm.
5. That Silas was hit on the hand with a rungu, and he took off on his motor bike towards Bondeni.
6. That one of the Asians saw his life was in danger as he was surrounded, and he asked that he be allowed to pray before he is killed. That Mganga urged the Asian to pray faster before he could be killed. That when the Asian Finished praying, he was killed with pangas and stones. That Mganga had a panga with which he cut the Asian and he was helped by Mwanzo, Accused 3. He could not recall the other assailants. That the vehicle was set ablaze as well.
7. That he alerted the area chief and the local MCA. He was later contacted, interrogated severally and he then recorded his statement.
8. PW2 Rev. Rhopus Mzungu was a brother to the late James Katani. He identified the body of his late brother at the Coast General Hospital on 8/7/2018. He testified that no postmortem was conducted since the brother had converted to the Islamic faith.
9. He produced an Affidavit, Burial permit and death certificate NO. 4458700- P Exhibit 1.
10. PW3 was Jacob Akwango Kinanga, a land broker. He said he runs errands in the firm of AA Said and Company Advocates. That he met the late James Katani – Mzungu on or around 20/3/2014 through one Engineer Dennis Otiene. That they were talking and looking for a buyer for Junju farm and also talking to the squatters on the said farm. This farm was owned by Apple Valley Ltd whose proprietor was Manji Shah.
11. That he visited the land around 2015 and 2016, and he saw houses scattered all over. That he advised the seller to negotiate with the squatters as such land is volatile. That the land was 79 acres and Manji told them (PW3 and James) to negotiate with the squatters to take 29 acres.
12. That James took the other Directors to the land and initiated talks which eventually led them to Gambo, Accused 2, who was a former counsellor and  who had a voice amongst the squatters. That they talked with Accused 2 and even connected him to a surveyor called Brian who was to establish the number of squatters on the land.
13. That the survey exercise was not successful as some squatters said they were left out. Later on, he got a suggestion which he passed to the owner that it was best to sell the land to the government so that the squatters can be settled. Later he heard that James was killed while taking some potential buyers to the land.
14. Under cross examination he said the land is LR No. 355 and 356. He said he did not know of Leila Mohamed.
15. PW4 was Rophus Kdeya Mwangoda. He said he lives in Jungu plot No. 73 which is next to No. 72. That between October and November 2020, the late James and PW3 had visited him. He established that James was a distant cousin to his wife. The 2 (James and PW3) wanted to be shown the beacons between plots 73 and 72.
16.   He could only show them the beacons to plots No. 474, 475 and 476. He said that the others had been removed by the squatters with whom they had lots of conflicts. That the squatters had disputes with James and Ali Kibwana. That all the accused persons were squatters on the disputed land except Onesmus Gambo (Accused 2). That later James told him the Asian owner wanted the land surveyed and he also introduced him to one Joseph Panda who was to survey parcel 73. Later he heard James was killed. He added that there are about 100 squatters on parcel No. 72.
17. PW5 was Evans Mwanyala. He said he was approached by Boniface and Mgaya who wanted to include him in following up the ownership of the land pot No. 72 Jungu, since some people were claiming to have bought it.
18. They added Robert Accused 3, Silas Pole, Dupline Mwai and Charles Mganga and others. The entire group was made up of about 15 people. He gave the history of how they   moved to the lands office, to the MCA and they handed over the documents to the area MP. He then relocated to Tana River and while there he heard that 3 people had been killed.
19. PW6 was Nicholas Mrina. He started to give evidence then he was stood down to   refresh his mind. He never came back.
20. PW7 was Fridah Malidzo, a sister to the late James. She used to live in Junju. Her evidence was that on 7/7/2021, James’ wife had called her and told her that James had not returned home from Junju. She also tried to call James in the night but could not get through.
21. On the morning of 8/7/2021, Ibrahim, a village elder alerted her that James had been killed. She went to Kijipwa Police and confirmed that her brother was dead. She said she knew that James used to visit Junju and was working with various people like Onesmus Gambo, James Kalega and Ropes Mwayatia.
22. PW9 was Kenneth Bei Zoo, a resident of Junju. He said that on the evening of 7/7/2021, he heard some screams, but he was not alarmed as there are clubs around, and he was also busy in a meeting organizing the burial of his late brother.
23. That he heard the screams later but it was raining. Later some boys told him some people had been killed. The next day they were summoned by the DC about the deaths.
24. PW10 was Emily Mgoi Mwakilili. Her evidence was recorded after a lot of protests.  Initially she was under the Protection Program. She testified that in the year 2021 she was working at Signature Club for one Mganga, and her colleagues were Caroline Mwikali and Abigael Mwikali.
25. That on 7/7/2021 between 6:00 pm and 7:00pm she was outside the Club Signature butchery with the said Mganga preparing vegetables.
26. That Mganga received a call, and he crossed the road towards the mango tree. That after a few minutes they started hearing screams from the direction where Mganga had gone. Then one young man came running and asked them to close the club. That Mganga also returned and helped them close the club. That they saw motorbikes honking while heading towards the area where the screams were.
27. That when Mganga had returned he had told them that there were some 2 Asians and a Chonyi man called Kafani whom he had asked what they had gone to do at that time of the day. That one of the Asians had responded arrogantly and asked Mganga if he knew who he was. That Mganga had decided to leave when he saw the crowd was big. That she went to the house and started cooking while in the company of Mganga’s daughter whilst Mganga remained in the club. That while inside he heard Mganga shout. “Kuna nini Mnanileletea Miili hapa. Nitoleeni hii miili hapa kwa sahabu sitaki kesi.
28. She did not know who Mganga was addressing. That she had heard about the land dispute   from Mganga who had told her about some invitation to attend some survey.
29. That he had attended the survey meeting but declined to participate in the absence of the village elder. That in the morning they did not see the bodies which had been brought and Mganga told them he had paid Kshs. 300 for the bodies to be moved.
30. PW11 was Dr. Gabriel Mngola. He was stood down.
31. PW12 was PC Dennis Isemek, the arresting officer. His evidence was that on the said date, they visited the scene where they saw 2 bodies of Asian men which had been razed. That 300 meters away was a 3rd body which was identified as that of James Kafani and the entire village was deserted. They moved the bodies to the mortuary.
32. That on 8/7/21, several raids were conducted in Junju, and they arrested groups of women only and in total they arrested 17 people. After they took them to Kijipwa Police Station, the people were profiled.
33. That he went to Coast General Hospital where postmortems were conducted on the bodies of the two Asians. That there was no postmortem in regard to James on account of his Islam religion. That on 11/7/2021 they arrested Onesmus Awambo and Raphael.

RULING

1. The court considered the evidence and was satisfied that the state had established a case against the 3 accused persons, and each was placed on his defense.

DEFENCE CASE

1. When placed on his defense, accused 3 said he was in his club on the material date. That he received a call and went outside. Upon his return he found his employees closing up. He inquired and they told him some young man had advised them to close the shop and club. That he assisted them to close. That he heard screams, but he did not   go out as he was with his young daughter.
2. That the next day he heard that some people had been killed. He did not know why he was arrested.
3. Accused 2 testified that on 7/7/2021 he was indoors as he was suffering from smallpox. That he did not go outside due to his ailment, and he was in isolation. He was the area MCA   from 2002 – 2017. Under the cross examination he said he did not know that smallpox was eradicated. He knows he was suffering from Tetemaji in Kiswahili.
4. That was the evidence upon which the court had to determine whether or not Accused 2 and Accused 3 murdered the 3 victims to wit Sidik Anerarali Sumra, Rahil Kasman Mohamed and James Kafana Mzungu.

THE LAW

1. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law.
2. Section 203 of the Penal Code gives the elements of the offence  of murder as follows: -

“203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

1. In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:

“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) the intention

1. Therefore, on the first part, the state had to prove the deaths, and that the accused persons committed the acts or omissions which caused the death of the deceased thereof.
2. On the first element, on the deaths and their causes thereof, this court is faced with the first hurdle. The post-mortem reports were not produced on record.  The investigating officer testified that they collected the 3 bodies and took them to Coast General Hospital where postmortems were conducted in respect to the two Asians.  These would be SIDIK ANVERALI SUMRA and RAHIL KASMAN MOHAMMED the victims in count 1 and 2.  The tragic twist in this tale is that the 2 reports were not produced.  Dr Gabriel Mugola started to give evidence and then he was stood down.  He intimated that he had the wrong report, and he never returned. No other document was produced in respect to the deaths of these two.
3. The death certificate, burial permit and an affidavit were produced in respect to JAMES KAFANI. His brother said the deceased’s Muslim faith forbid the conduct of postmortems
4. In REPUBLIC VS FRANKLINE MUGENDI MIRITI and CHARLES MWAI NYAMBURA my brother Justice N’gaa was faced with a situation similar to the instant herein and, this is what he said;

“Against this background, the question that arises is, in the absence of the medical officer’s evidence, can this court conclude that a person was murdered and was so murdered by the unlawful act or omission of the accused persons, in which case they can therefore be said to have committed an offence under section 203 of the Penal Code? Is the trial court entitled to disregard the absence of expert medical evidence and rely on raw facts to conclude that the deceased died and died as a result of the injuries he sustained from the attack?

1.  A few previous decisions on this issue provide some clue on what the appropriate answers to these questions may be. It is apt to consider them at this point but before I do that let me first lay out what I would regard as ‘raw facts.’  Republic versus Cheya (1973) EA 500, the learned judge relied on the evidence of eyewitnesses who saw the deceased when he was assaulted and while in hospital and subsequently saw his body after he died to find that the deceased had died and that he had died as a result of the injuries he sustained. Based on the same eyewitnesses’ account he held the two accused liable.
2. The learned judge then examined the holding in Nairobi Criminal Appeal No. 171 of 1984, reported as Ndungu versus Republic (1985) eKLR. In that case, the Court of Appeal held that Justice Mfalila’s decision was not of any help but that it ought to be restricted to what the Court described as “an exceptional situation” the particulars of which, so the court found, were not given in the judgment. In this regard the Court held that the judgment was misleading and that it would be lacking in candor if it were to conceal its unhappiness about the decision.
3. On the pertinent question of the link between the injuries and death, the Court had this to say:

The judgment in Cheya gives no report of what injuries were sustained although there is reference to vicious assault, bleeding in several places and that the deceased was assaulted by a group of people. That decision does not illustrate the proper application of the principle that in some cases death can be established without medical evidence. Of course, there are cases for example where the deceased person was stabbed through the heart or where the head is crushed, where the cause of death would be so obvious that the absence of a post-mortem report would not necessarily be fatal. But even in such cases, medical evidence of the effect of such obvious and grave injuries should be adduced as opinion expert evidence and as supporting evidence of the case of the death in the circumstances relied on by the prosecution. Where a post-mortem report is performed and a report prepared, signed and kept in safe custody, but the doctor is not available some other medical expert could give general evidence as an expert, on the basis of the report as to whether the findings of the report are consistent with the case for the prosecution.

Even where the doctor is available it is necessary for him to correlate his opinion with the case for the prosecution. Another class of case where there is no medical evidence is the exceptional case where the body has never been found; but we are not dealing with that class.    

1. Judge Ng’aa’s conclusion was as follows; “What I gather from these decisions is that there are circumstances where death of a person may be proved without expert evidence. This is the hint I read from the Court of Appeal’s pronouncement that the Cheya decision “does not illustrate the proper application of the principle that in some cases death can be established without medical evidence.” What this statement suggests is that there exists a principle to the effect that in certain instances one does not need medical evidence to prove death except that the Cheya judgment was not the appropriate decision in which this principle was illustrated. The point was made even clearer when court proceeded to cite cases such as cardio injuries arising from stab wounds, shattered skulls or disappearance of a person as instances where the cause of death is so obvious that the absence of medical evidence or, to be specific, the post-mortem report, may not necessarily be fatal to the prosecution.
2. It is important to remember that the specific instances cited by the Court are not exhaustive; in other words that list does not purport to exclude other circumstances that merit consideration in determination of the question whether medical evidence is necessary in offences of murder. And the Court could not possibly restrict the list to specific cases because they are bound to be the sort of scenarios that, in all likelihood, would be unpredictable or unforeseen and therefore the most reasonable cause would be to determine each case based on its peculiar circumstances.
3. The approach taken by the Court of Appeal is what one would refer to as a common-sense approach; it is an approach  which to a greater degree acknowledges the basic understanding that as much as expert opinion is necessary in certain instances, a trial judge is not so detached from reality that he cannot see the consequences that would naturally arise from a set of uncontroverted facts or make a rational decision from such facts without the help of an expert. I suppose it is for the same reason that in law, a court is not bound by expert opinion if in its view, the criteria employed to test the accuracy of his conclusions is inapplicable to the facts before it or inconsistent, in some way, with those facts. (See Mutonyi versus Republic (1982) KLR 204).
4. Considering the case against the accused from this perspective, I am inclined to conclude that murder of the deceased is one of those cases that fall into the category of ‘exceptional cases. It is one of those cases where, despite the absence of the postmortem report, the deceased’s death can be said, and conclusively so, to have been a natural consequence of the inexplicable attack by the accused and their cahoots on the 14^th day of July 2009.
5. In the present case the 3 victims died at the scene.  They were healthy and PWI saw them arrive in their car. A short while later they were dead.  It is not in doubt that they died from the encounter that they had that evening. There were no intervening circumstances such as medical negligence.
6. Unfortunately, and for no good reasons, the 2 postmortem reports in respect to counts 1 and 2 were not produced. The investigating officer said the two bodies had been set on fire.  The only evidence we have against the accused persons was that MGANGA- A3 allowed one of them to pray and then he was attacked with pangas, stones and sticks. PW1 said MGANGA attacked the Asian. The second Asian was also attacked. He was hit on the head with an axe, stones and sticks.
7. PW1 added that he did not identify the assailants by name apart from Mwanzo and Mganga. Mwanzo was helping Mganga.
8. From this we find that there was an attack on the two Asians, by various people with multiple weapons and subsequently the bodies were set on fire. We are therefore not able to say exactly what each accused person’s role was.  This is more so in respect to A2.  He is only said to have assisted.
9. There is, of course, the doctrine of common intention when people set out to execute a common purpose.  One must, however, bear in mind that this is a capital offence and in as much as all criminal cases must be proved beyond reasonable doubt, the court must be extremely cautious.
10. In respect to Gambo, A2, his role is not clear and as relates to A3, Mganga does not know which of the two (2) Asians sustained which specific injury and his particular role. He was present and he allowed one to pray, but we do not know which one. Sadly, none of their relatives gave evidence and we did not even get to know the nature of injuries.
11. I therefore acquit the two accused persons in respect to both counts 1 and 2 for among other reasons, lack of proper the proof of the cause of death and identification and also the role of each accused person was not clear.
12. When we go to the 3^rd victim, James, in respect to count 3, the affidavit, the burial permit as well as the death certificate were produced. The death certificate records the cause of death as murder and the affidavit records the injuries. PW1 testified that Mganga is the one who addressed the said victim telling him that he had warned him not to return and that ‘atamalizana na yeye kwanza’’ That, Mganga  after this address, cut the said African man on the head, with a panga and he fell down bleeding and he died. True to his word, Mganga then went to The Asians after ‘kumalizana na’ James. FINISHING HIM OFF.
13. A3’s defence  was  that he was not at the scene.  He said that  he went to answer a call and upon his return, he found his staff, among them. Emily, PW10, was LOCKING UP his club. He sought to rely on Emily’s evidence to show that he was in the club when the incident occurred.
14. When we look at EMILY’S evidence, we however get a different picture. She said that A3 RECEIVED A CALL and went towards a mango tree. That after a while they heard screams from the direction where he had gone and that is when some young man came and told them to lock up the club.  When A3 RETURNED HE TOLD THEM THAT HE HAD EVEN ENGAGED THE PEOPLE whom he described as 2 Asians and an AFRICAN.  Asian had He also told them that one of the Asians had been rude and had asked him ‘if he knew who he was’. Pw10 also testified that she later on overheard her boss asking some people why they had taken the bodies to his premises as he did not want any cases, and further that, the next morning he  had said he had paid someone Kshs 300 to take the bodies away.
15. This evidence by PW10 places A3 right in the middle of this saga and supports PW1’S evidence that A3 MGANGA was the lead person in this attack.  He was seen cutting the late James on the head and James fell down bleeding.  James was the first one to be attacked. James was properly identified and he was the only African deceased at the scene.  His body was picked from the scene that very day and there were no other intervening circumstances.  I am I am satisfied that the injuries that the deceased sustained are the ones which led to his death.  The 3rd accused struck him on the head with a panga and in fact, we are not told of anyone else attacking James. One can safely conclude that James died from the injuries inflicted by Mganga A3.
16. The final question is whether malice was established. It is settled that malice aforethought is one of the ingredients of an offence of murder and it must be proved to exist before one can be convicted of this offence. It is either express or implied. (See Woolmington v DPP [1935] AC 462). It is express when it is proved that there was an intention to kill unlawfully (see Beckford v R [1988] AC 130), and it is implied whenever it is proved that there was an intention unlawfully to cause grievous bodily harm (see DPP v Smith [1961] AC 290). It has been given statutory meaning in Section 206 of the Penal Code which prescribes circumstances under which malice aforethought may be deemed to have been established; that provision of the law states as follows:

Malice aforethought

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

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

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

(c) an intent to commit a felony.

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

1. The motive in this case was the lingering land dispute that was described by many of the witnesses.  The 89-acre piece of land that was occupied by squatters.  The second accused person was deeply involved in the land issue as pointed out by many of the witnesses.  His particular role in the murder was, however, not proved.  A3 was also involved in this saga and as PW1 testified he is the one who confronted James and told him that he had warned him not to return to that place with Asians again. This was shortly before he hacked him on the head with a panga after which he died.
2. Having found that the deceased James died out of the injuries sustained from the attack by A3 ROBERT MGANGA MWAGOSHA,   I am inclined to conclude that that by attacking the deceased in the manner he did, the  3^rd accused had an intention to cause the death of or to do grievous harm to the deceased or he was simply reckless that his  acts would probably cause the death of or grievous harm to the deceased. Whichever way one looks at his actions, his intent was established and to that extent I am convinced that the prosecution proved the offence of murder as defined in section 203 of the Penal Code beyond all reasonable doubt. I therefore find the 3^rd accused guilty as charged and convict them accordingly in count 3.
3. AS I conclude I must point out that this case goes down as one of the most poorly handled investigations and prosecution despite the government having spent a lot of resources on it. I am sure that even with the acquittal of 8 out of the 9 accused persons, the residents of Junga village will forever remember the grisly murders and the subsequent events will forever be etched in their memory.
4. To start with, they knew they had done something wrong, and the law enforcers would be coming for them. It is deducible that they deserted the village as a result, as by the time the investigators arrived, they found a ghost village.  Only a few women and children had been left behind.
5. The investigators formed, what the Investigating Officer- PW12, described as a multi-agency team comprising the famed GSU, Regular police, and the Administrative Police.  The local police sought reinforcement from the other stations like Kijipwa and Mtwapa.
6. Evidently the might of the government was seen and felt in Junja for the next few months. At the end of the exercise ,17 women and children were rounded up. PW12 testified that these witnesses were then profiled, and some placed under the Witness Protection Program. At the end of it all 9 people were charged in court.
7. Unfortunately, like happens in many such cases, having assuaged the public that an action has been taken, the enthusiasm died out. The evidence was not forth coming. Most of those who came to court talked about the land dispute. We find that even the doctor did not testify. We do not know what became of those who were doing the profiling and their output.  Some like PW10 who were on witness protection dropped out.
8. Therefore, apart from the brutal force of rounding up hapless women and children and instilling the fear of the gods and the mighty hand of the law, it appears the multi-agency team achieved little or nothing.
9. I will not tire in my clarion call for professional investigations as hurried and brutish arrests end up in gross injustice.  How do we bring closure for the families of the victims who have waited so long? As a matter of concern, I note that none of the relatives of the two Asians gave evidence.  They set out on a business venture to improve their lot, and we cannot answer what happened to them.
10. It is such negligent acts which give the justice sector a bad name and often the judiciary is left to blame. I propose a fresh look into how investigations are handled especially high-profile cases. The stakeholders should consider prosecution-led investigations otherwise justice will remain an illusion in some of these cases.
11. For now, A2 IS AQUITED IN THE 3 COUNTS AND A3 IS ACQUITED IN COUTS 1 AND 2 and CONVICTED in COUNT 3.

May the souls of the departed rest in peace.

A copy of the judgment be served upon the REGIONAL INVESTIGATIONS AND PROSECUTION TEAMS AND THE SECRETARY NACJ.

DATED, SIGNED AND DELIVERED IN OPEN COURT at MOMBASA on this 30th……. day of January 2025.

WENDY KAGENDO MICHENI

JUDGE

In the presence of:

The two accused persons

MR LIJODI FOR A3

MR MUTWIRI FOR A2

MR NGIRI FOR THE STATE

BEBORA COURT ASSISTANT