The accused persons Rodgers David Mwamodeny and Kedogo Evans Kalo were jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
Particulars are that on the night of 16th and 17th August 2022 at Kwa Punda area in Jomvu Sub County within Mombasa County jointly with others not before court murdered Rose Akinyi Osumba.
The prosecution called 8 witnesses to support its case that accused persons committed the murder.
The accused persons on their sworn defence denied having committed the murder.
PW1 the Government Analyst Omar Muidadi testified that on 17.8.2022 a total of 9 exhibits were forwarded to Government Chemist Laboratory Mombasa. The analysis confirmed that the torn black panty generate DNA profile that matched DNA profile generated from exhibit marked K & L of Kedogo Evans Kalo.
That the sneaker trouser exhibit T – generated DNA profile that matched the DNA profile that matched DNA profile of Rodgers David Mwamodenyi. It was established that the Cap did not generate DNA profile. The report was produced as ExP 1 (a).
PW2 testified that she was traditional brew vendor and that on 16.8.2022 at 3:00 p.m Jane her tenant went to her place with the deceased herein and there were also some 3 men at her place Mwachange, Chibule and Matano who were drinking they bought for Jane and her friend drinks for analysis. These included:-
1. Blood sample from the deceased marked A1 & A2;
2. High virginal swab of the deceased marked B1 & B2;
3. Torn black panty from the deceased – H 1;
4. A cap from scene;
5. Buccal swab of Kedogo Evans marked K;
6. Penis swab of Kedogo Evans Kalo – marked L
7. Buccal swab of Rodgers David Mwamodenyi marked Q1
8. Sneaker trouser light green in colour from Rodgers David Mwamodenyi
PW1 carried DNA analysis and results confirmed that the black torn panty marked H & HVS tested positive for spermatozoa by prostate specific analysis – PSD. The analysis also confirmed that the cap tested positive for human blood. That Jane got drunk and at 4:00p.m left her friend at PW2’s place. That at about 7:00 p.m Evans and Rodgers arrived . That by then Chibule, Matamo and Mwachange had left between 5:30 to 6:00 p.m while Rama, Kamisi, Jumah and Kaviu remained. That at 8:30p.m.
PW2 said she entered the house to attend to her child who was sick. That she left Evans Kalo, Rodgers, Rama, Ida, Kaviu and Jumah outside the house with Janes friend. That at about 10:30 p,m Evans knocked and asked to buy more brew and she sold to him. PW2 said she didn’t see anyone else outside by that rime.
That at 3:00a.m PW2 went out with the child who was still crying and she found the cup that Evans A2 had used to carry liquor at the door step. That when she went round the house, she saw something, black at the corridor and when she shorn torch on it she saw it was someone lying facing up. She called Jane who came and identified the person as her friend and that she was not alive. They found a cap besides the body. They identified the cap as belonging to Evans A2 herein.
She said the deceased person under pant was cut on one side and it was worn in only one leg and her skirt was raised up. They went and reported to the village elder who accompanied them back to the scene and confirmed the human they saw was dead and that the cap belonged to Evans. That when members of public went and arrested Evans and asked what he had done he started mentioning names of Rodgers, Rama, Hamisi, Kaviu and Jumah. That they proceeded and arrested Rodgers from his house. The 2 were led to scene and PW2’s husband was instructed to go and report to the village elder and he was referred to Mikindani Police Station and Police visited the scene. And took the body of the deceased to the mortuary.
PW2 said when A2 went for more brew she served him through the window. She said it was quiet outside and she assumed those she left drinking had left. She said she did not know if the deceased left with the 5 men. She said that Evans – A2 stayed in the same village. She said A2 Evans was wearing the cap that was found besides the deceased when he went to drink at PW2’s place but she could not tell if it was stolen from him. PW2 said when Evans was questioned, he gave names of other suspects.
PW3 Joseph Kamau Owenga testified that the deceased was his sister and he learnt of her death on 17/8/2022 in the morning. He said he didn’t know what happened or how his sister died.
PW4 Evaline Taka Lusimba testified that the deceased was his daughter and used to stay in Kwa Punda with one Mamboja, she said the deceased used to stitch deras on Mombasa town. That on 24.8.2022 she went to Coast General Teaching and Referral Hospital Mortuary where she identified the body for post mortem. She said her daughter was strangled.
Dr. Mbuuko examined the body of the deceased on 24.8.2022 and established cause of death as asphyxia PW5 Dr. Gabriel Mongola produced the post mortem Report as ExP2. Dr. Mongola in cross examination said that alcohol is a central nervous system depressant and could not have caused asphyxia. He said that eth scalp haematoma was suggestive of a fact. That the swelling on the right shin was also consistent with a fall on the right side. He said there was no indication of injury on the neck and there is no documentation the deceased died as a result of strangle. He said that it is possible asphyxia was caused internally. He said alcohol makes one lose gut reflex and can in voluntarily vomit and the vomit can go into the lungs and block air wave.
PW6 Inspector Vincent Onkoba of Tudoi police station testified that on 16.8.2022 at around 06:30 hours he was at Mukindani Police Station when Salim Gideon reported that there was a dead body recovered at Kwa Punda. PW6 accompanied DCI Officer’s to Jomvu, where they found the life less’s body of an African female lying naked on the ground. That at scene 2 suspects had been arrested and upon interrogation they identified themselves as Evans Kalo and Rodgers Mwamodenyi. That he arrested the 2 suspects and secured the scene. He called scenes of crime officers who processed the scene and body moved to Coast General Hospital Mortuary for preservation.
In cross examination he said he did not investigate the murder and did not know how the suspects he found had been arrested were involved in the murder. He said the lifeless body of the deceased was naked.
PW7 Salim Gideon Mwarabu testified that on 17.8.2022 at 6:00 am his son Jonathan was send to go and wake him up. When he went out he found people standing while carrying sicks. That ahead of the crowd was a dead body and there were 2 people made to sit. He said the 2 people were known to him. That he went to Mikindani to report.
PW7 said that he does not concern himself with the wife’s business and he did not know the person who knocked at his door at 10:00p.m PW7 said he deceased was not known to him.
In cross examination by A2’s Counsel PW7 said his wife sells palm wine and that when he returned home in the evening on 16.8.2022 there were people who were drinking behind the house. He said Jane Charo stays in a house behind their house. He said he didn’t hear any other noise at night a part from the cries of the child who was sick. He said he did not see A2 on 16.8.22.
PW8 Jane Charo testified that the deceased was her friend and that on 16.8.22 they met at 2: 00p.m when she was coming from the shop. That after she kept her shopping in the house they proceeded to her landlady’s place. That while telling stories at her landlady’s place Chibule, Matano and Mwachange came and started buying drinks. That at 4;00 p.m PW8 decided to go and sleep as she had enough drinks. She said she left her fiend Rose with the 3 men who were buying them drinks. That it is her landlady PW2 who woke her up and asked why she left the deceased outside and she said she thought she had gone. PW8 said that Rose was staying with them in the same plot. That when she was woken up at 4:00 a.m she found Rose lying facing upwards with the legs open, the skirt raised up and pant torn on one side while one side remained in one leg. PW8 said besides Rose was a cap that she identified belonged to Evans A2 … she said she had seen A2 wearing the cap on 16.8.2022. That the matter was reported to Nyumba Kumi elder after which they went to Evans houses as they suspected he was involved in the murder. That when A2 was found and told to accompany the members of public to the scene he mentioned they were with Rodgers and both were arrested.
PW9 Chrispin Agrey Ojiambo testified that on 17.8.2022 at 4: 00a.m Julius who is his neighbour went to wake him up and told him there was a woman who had been killed after being raped near mama Kadzos place, that a cap belonging to Evans A2 was also recovered at the scene. PW9 said he knew A2 since 2010 as he used to hear him and Erick at the National Cereals and Produce Board were House where he was supervisor. That when he proceeded to the scene, he confirmed there was a dead body and also found Evans cap besides the body. He said Evans was wearing that particular cap the previous day. That when he went to scene and found that some members of public had gone for Evans A2, he followed them. That when he found Evans and asked him where his cap was, he said he did not know. He was asked to accompany PW9 and other members of public. On inquiry as to who was with him the previous serving, we mentioned A1. That they proceeded to A1’s place and arrested him and thereafter they went to the scene of murder. PW9 said that A2 had once raped a woman in 2018 after they had been drinking the whole night. PW9 said the deceased appeared to have been killed before being raped. PW9 said by the time they found A2 at his home in the morning he was still drinking. That A1 was also drinking on the morning.
PW9 said that A2 mentioned Rodgers and Kabonzo as having been involved in the murder and rape. He said Kabonzo was arrested but he escaped. He said that A2 did not mention Rama.
PW10 Inspector Nicholas Njoroge testified that on 18.8.2022 he was at Jomvu DCI when Sargent requested him top escort 2 male persons to Port Reitz Hospital for treatment. He said the 2 male persons were the accused persons herein. That at Port Reitz they were referred to Coast General Teaching and Referral Hospital; Gender Based Violence Centre where samples were taken for DNA and they were also treated.
PW10 said that buccal swabs, penile swabs and blood samples were taken from the 1st suspect together with light green sneaker trouser and from A2 buccal swab, penile swab and blood samples were also taken. That PW10 handed the well packaged samples to Sergent Mwaro for onward transmission to Government Chemist Mombasa for forensic analysis.
PW11 Chief, Inspector Klein Kulicha in charge of Scenes, Investigations Coast Region testified that on 17.8. 2022 at 07;00hours Sergent Mwaro of DCIO Jomvu called him to Kwa Punda area where he was shown the body of African female adult lying on the ground while facing upwards with legs wide open. That the deceased had her inner wear removed from the right leg. That the body had bruises on the face. That on the left side was a used female pad near the head and a male cap on the right side of the head. The cap was packed and sealed for forensic analysis.
PW11 took photographs at the scene and processed them. The photographs were produced as EXP6 (a) (bundle). Report and certificate EXP 5 (b).
PW12 Sergeant Nyamvula Mwaro of DCI Jomvu investigated the murder as shown in the prosecution witnesses’ evidence on record preferred charge against the accused persons.
In cross examination PW12 said there was no DNA match between A1 and the deceased. She said that A1 said he saw A2 and another person carry the deceased to scene where she was found dead. That A1 said it is PW2 who instructed A2 and another to carry the deceased.
PW12 said the deceased had injuries on her face. PW12 said that A2was raping the deceased when she died. She said the deceased died following gang rape by 4 men. She said A2 and the deceased stayed in one village but she did not know if they knew each other. PW12 said she did not know if A1 and the deceased had any differences. She said she did not know if the deceased chocked on vomit but there was no vomity at scene. PW12 said that the accused persons were the last to be seen with the deceased together with Ramadhan.
When placed on defence A1 in sworn statement said that the previous evening he had passed by a changaa den on his way from work and while drinking Evans A2 herein called him. That on arrival A2 started talking to the woman who was selling change and the woman asked if A2 was going to do the work. She had given him. That the work was to remove a person who was drunk and was lying on the ground. That A2 called another person to help him remove the drunkard from sight of other patrons. That after he had taken his 2nd drink, he left when the daughter of the vendor was going to bring water to be given to the drink andA1 said the deceased was not known to her. He said that he was implicated because he was at the den and the person who mentioned him wanted to exonerate himself. A1 said he went to the drinking place at about 7:30 p.m to 8:00 p.m. he said A2 accompanied Kabonzo and Jumah to go and remove the drunk woman who was lying on the path. A2 said he left the drinking den at 10:00p.m and left around 6 people at the den. He said he did not see A2, when he was leaving as he did not bid him bye. He said he stays far from A2.
A1 said he was with A2 at the drinking den when he heard A2 being asked if he would do the work, he had work he had been given. He said he didn’t know if the drunk lady that A2 was to remove was creating disturbance.
A2 testified that on 16.8.2018 at 1:00p.m after he had prepared lunch and ate he lay for a nap and that the deceased went to his house and woke him up. A2 said the deceased was his girlfriend. That they hurriedly had sex before the deceased left to go and look for change for her boss. That A2 then went to Banda where he stayed upto 9:00p.m watching news and had his supper. That he then walked back to Kwa Punda. That before he got home, he met his friend Rama who told him there was vey good changaa at Murums place and they proceeded to Muruams place arriving at 10;00p.m he said he did not find A1 at the den. He said he found Chapa; Ilal, Kaviu, Jumaa and Erick at the change place. That Muruam PW2 and her daughter Kadzo were also at the den selling change.
A2 said he found the deceased lying facing down. On the ground and Muruam told him to help remove her where she was lying as drunkards could fall on her. That A2 told Jumaa to help carry the deceased away from where the drunkards were and Muruam led them to where they placed her.
A2 said he left the den at around midnight. He said when he left, he was totally drunk and did not return to buy any drink. That in the morning at 5:00a.m he was lying on bed when he heard Aggrey call him. That when he responded and dressed up to go and brush his teeth his door was broken into and he was thrown out of the house. That the people who broke the door started beating him and asking who he was without. He said PW2 was in company of Aggrey, Kokondo Dula and Raphael and Jane Chao. He said that the 4 men who were in company of PW2 were armed with rungus.
That he was led to A1’s house and he was also removed and beaten and others led to scene where they found deceased lying dead. That PW2’s husband called police who came and secured the scene and they were taken to the station.
A2 said the cap recovered at scene was not his. A1 said that PW2 and her daughter Kadzo were still attending to customers by the time he left and the deceased was still lying down. A2 said when he was told to carry the deceased, he did not know she was dead.
Defence counsel were granted leave to file submissions and A1’s counsel filed submissions dated 24.6.2024.
Analysis and Determination
In consideration of the evidence of the 12 Prosecution witnesses and the 2 Accused persons sworn statements this court is to determine whether the prosecution has proved beyond reasonable doubt the ingredients of the offence of murder under Section 203 of the Penal Code.
Section 203 of the Penal Code under which the Accused person was charged provides as follows
“Any Person who of malice aforethought causes the death of another person, by an unlawful act or omission is guilty of murder”
In the case of Anthony Ndegwa Ngare Vs Republic 2014 Eklr, the elements of the offence of murder were stated to include;
- That the deceased died
- The death was caused by an unlawful act or omission
- That the Accused person directly or indirectly participated in the commission of the alleged offence
- That there was malice aforethought
There is no dispute that Rose Akinyi Osumba died.
On the issue whether the said death was caused by an unlawful act or omission. Doctor Gabriel Mungola (PW5) produced a post mortem report that was conducted by Doctor Mbuuko where it was observed that the deceased had right supra obital bruise with subcutaneous hematoma, she also had right infra obital bruise, swelling in the right shin with lacerations, peripherals cyanosis as well as focal matter ground on the oval region. It was also found that both lungs were congested, there was scalp hematoma and brain dusky. Dr. Mbuuko was of the opinion that the cause was death was consistent with the respiratory compromise.
The prosecution witnesses who testified said they found the body of the deceased facing upwards with her legs apart, the skirt raised up the pant torn on one side and the other side remained in one leg. The prosecutions witnesses suspected that the deceased had been raped and killed.
From the injuries observed on the body of the deceased and the circumstances under which the body was found it is obvious that the death was caused by unlawful act.
On whether the Accused persons participated directly or indirectly in the commission of the unlawful act, evidence of PW2 and PW8 is that the accused persons were at PW2 drinking den the previous evening together with deceased and the accused person confirmed that in fact PW2 told the second accused to help carry the deceased from where she was lying due to drunkardness and place her at a place where other drunkardness could not fall on her. Besides the body of the deceased PW2 and PW8 together with other members of public found a cap that belonged to 2 Accused person and when he was arrested he started mentioning other people including the name of 1A and when forensic investigations were conducted by PW1 the Government analysist as per ExbP 1 it was established that the black pant from the deceased generated a DNA profile that Matched the DNA profile that was generated from the buccal swab of Evans Kalo the A2 and the penile swab of A2. It was also found that the high vaginal swab of the deceased tested positive for spermatozoa and a cap from the scene tested positive for a human blood.
The 2nd accused person explained that she had heard a quick sex with deceased during the day and it was possible his spermatozoa could be have been dictated from her high vaginal swab but this is a defence that she only came up with during the defence the same note having nit been raised with the investigating officer or nay of the prosecution witnesses. The prosecution witnesses also said that the cap that was recovered beside the body of the deceased belonged to the A2 and further that it was the A2 person who remained at the scene and even went to buy more brew from PW2 who served him from the window. A2 confirmed that he left the scene at midnight when he was too drunk.
From the evidence of PW1 the Government analysist coupled with evidence of the prosecution witnesses and the evidence of the accused persons this court finds that the inferenced that can made from the surrounding circumstances of this death is that the 2 accused person was directly involved in committing the unlawful act that led to the death of the deceased.
Although the A1 person was also at the drinking den where the deceased was found dead there is no direct or circumstantial evidence that can be used by this court to link him to the offence.
Whether the Accused person was actuated with malice aforethought, Section 206 of the Penal Code defines malice aforethought as follows:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances
- An intention to cause the death of or do grievous harm to any person, whether that person is the person killed or not
- Knowledge that the act or omission, causing death will probably cause the death or grievous harm to some person, whether that parson 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 wish that it may not be caused
- An intent to commit a felony
- An intention by act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
In consideration of the fact that the accused person together with others were on a drinking den it can safely be concluded that he committed the offence under the influence of the alcohol and therefore the element of actus reus (intention) cannot be said to have been present.
In conclusion, this court finds that the Prosecution has not proved the elements of the offence of murder but rather the offence of manslaughter for which the A2 is hereby convicted. A1 and A2 are acquitted of the offence of murder.