1. The accused persons herein Shukrani Hassan and Said Hamisi are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) Laws of Kenya that on 18/3/2020 at Mkomani Mkwajuni area in Mtwapa within Kilifi County, murdered Paul Tia Makange Maasai.
2. The accused persons pleaded not guilty to the charge and the case was set down for hearing.
3. Before they took plea, a psychiatrist examination report prepared by Dr. C.M. Mwangome M.Med consultant psychiatrist/DDMS dated 18/5/2020 in respect of each accused person declared that each of the accused persons had no mental illness and therefore was fit to plead to the charges.
4. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when the court had made a ruling that the accused persons had a case to answer.
5. The accused persons opted to have the case to proceed from where Hon. Lady Justice Anne Ong’ijo had left it. I took the accused persons’ defences. Each gave sworn evidence in defence and did not call witnesses.
6. The prosecution called eleven witnesses to support the charge. The prosecution’s case summary of the events leading to the death of the deceased are that he was a security guard at Mombasa Cement company premises in Kadzinuni area. He met his death while on duty in confrontation with the 1st accused person who had trespassed upon the deceased’s employer’s premises to steal scrap metal.
7. PW 8, Emmanuel Laiputa, was a security guard at the same premises of Mombasa Cement company and was deployed to guard the scrap metal section. He was on duty with the deceased at the time and he witnessed the incident. He was the main prosecution witness to the incident.
8. It is the prosecution’s case that the accused persons went to the premises on the evening of 18/3/2024 at around 4.00 p.m. to steal scrap metal. PW 8 gave evidence that the deceased went after the 1st accused person Shukrani Hassan who had sneaked into the premises using a hole made in the wall and gone to the scrap metal yard, picked some scrap metals and went out through the same hole. The deceased pursued him outside the perimeter wall of the premises through the same hole and when he found him they engaged in a fight. The deceased beat the 1st accused person with a stick he had. The accused person defended himself using the piece of iron rod he had removed from the scrap yard. The deceased’s stick broke and the 1st accused person hit him back on the head with the piece of metal and the deceased fell to the ground. He did not survive the blow. He succumbed to the injury at the scene.
9. The evidence of PW 8 is that he only saw one thief, the 1st accused person but not the 2nd accused person in the fight with the deceased.
10. PW 7, Dr. Ruth Nyangi Walumbe, the pathologist who conducted a post mortem examination on the body of the deceased on 19/3/2020 at the Kilifi County Hospital mortuary. She found that the deceased had sustained external injuries of lacerations to the right ear, right temporal area, behind the right ear and right parietal region formed the opinion that the death was a result of head injury due to blunt force trauma. Internally in the head he had right-sided subgaleal hematoma and depressed skull fracture involving right temporal/frontal bone and in the nervous system there was parietal brain laceration.
11. PW 2 Omar Mohammed the officer in charge of security at Mombasa Cement company said the deceased was one of the company’s employees as a security guard. On the material day, he was alerted of a security issue by Abdul Hassan, the one in charge of cattle that there were thieves there. PW 2’s driver Sharif Shakil also called him and confirmed the information.
12. On his way to the scene, he received more information from Jackson Kazungu, a supervisor that Maasai, the deceased had been badly beaten and was in a bad state. When PW 8 arrived at the scene, the deceased had died. He had injuries on the head and the right ear was cut. There was blood and a metal rod at the scene. He called police officers from Kijipwa police station who came to the scene and collected the body of the deceased and took it to the mortuary.
13. The following day, he received some leads from an informer that Shukri, the 1st accused person was involved in the murder of the deceased. He passed the information to the OCS Kijipwa and during the night they went with police officers and a relative of the deceased who is also a police officer to the residence of the 1st accused person and he was arrested. He had a fresh wound on the face. Red shorts trousers and a white T-shirt were recovered. On interrogation, Shukri said that he had been called by Said, the 2nd accused person to carry metals. The 2nd accused person was known to PW 2 before. They later went to his home in Kanyanga village, Kakauni from where he was arrested.
14. In cross-examination, PW 2 said that Shukri is the short form of the name Shukrani. That there had been a hole made in the perimeter wall fence recently during another break-in incident into the premises and the hole had not been covered. He said that police officers took the metal rod that was at the scene and that it was about one metre long and heavy. The scrap metals that had been stolen were abandoned, he said. He also clarified that the relative of the deceased who accompanied them to the home of Said, the 2nd accused person was not a police officer but a guard at Mombasa Cement who worked on night duty. He said that Shukri had an injury on the cheek.
15. PW 3 CIP Victoria Mutuku was the OCS Kijipwa police station at the time. She went to the scene with PW 6, PC Phillip Manji. They both testified that when they arrived at the scene upon PW 3 being notified of the incident by PW 2, they found the body of the deceased lying in a pool of blood. The body had injuries on the right side of the head and on the ear. Near the body, some 5m away there was scrap metal, a round hollow rod with blood stains (Exh. 4) and a stick some 20m away. They also noticed a hole in the perimeter wall of the Mombasa Cement premises. They also recovered the national identification card for the deceased in the name Paul Tia Makange. Later, they were together with PW 2 when they arrested the two accused persons from their respective homes.
16. PW 1 Dancun Mzungu Msonga, a security guard at the same premises of Mombasa Cement, PW 4, Evans Makali Kituyi and PW 5, PC Japheth Njagi both of Kijipwa police station accompanied the OCS, PW 2 and the other people when they went to arrest the two accused persons from their respective homes. Their evidence is in line with what PW 2 and PW 3 said happened during the arrest of the two accused persons.
17. PW 1 added that although he was not present on the day the incident happened, on 19/3/2020 evening hours, his boss, PW 2 asked him to accompany the team going to arrest the 1st accused person after PW 1 received information that the 1st accused person was involved in the murder of the deceased. PW 1 said that the 1st accused person was well known to him and they resided in the same area.
18. They found the 1st accused person in his house. He had a fresh wound below his left eye. Asked how he had sustained it, he said he was involved in an accident with a motorbike. When he was questioned by police officers on who killed the deceased, the 1st accused person said that Said, the 2nd accused person did. He also added that he had only gone to the scene to offer transport to carry luggage. He led the team to Said’s home in Kayanda area and Said was arrested.
19. PW 1 said that Said, the 2nd accused person was also known to him. They had worked as security guards together at Mombasa Cement company some two years before the incident herein. PW 1 described the 2nd accused person as a known thief who used to disturb them with stealing scrap metal at the company premises. He reiterated the same in cross-examination and said that several reports of the incidents were made at Kijipwa police station.
20. PW 9, Daniel Kaimerela was a security guard at the same Mombasa Cement premises. However, he was not around on the date of the incident. He had been injured earlier in another incident of break-into the premises in the last week of February, 2020. He said that the two accused persons were well known to him as they had made several attempts to break into the premises to steal scrap metal. On the day he was injured, he spotted the 2nd accused person within the premises and he wanted to steal scrap metal that PW 9 was guarding. When PW 9 questioned him, the 2nd accused person retorted asking PW 9 why he was concerned with the scrap metal and yet it was not his property. The 2nd accused person dropped the scrap metal he had and approached PW 9 for a fight. They fought but the 2nd accused person took off towards the perimeter wall where there was a hole. While pursuing the 2nd accused person, the 1st accused person, who unknown to PW 9 was around threw a piece of metal and it hit PW 9 on the head and he fell to the ground. The 1st accused person then beat him while he was on the ground. PW 9 used his club to fend off the beatings until the 1st accused person took off as well. He made a phone call of the situation and he was taken to hospital. He was still recuperating after discharge when the incident involving the deceased happened.
21. PW 6, PC Kevin Wafula was the investigating officer in the case. He was at the time based at DCI office Mtwapa. He went to the scene after the incident and saw the body of the deceased. He collected evidence and recorded statements from witnesses. Afterwards the accused persons were handed over to him after arrest. He had them charged with the offences.
22. The exhibits produced in the case were the metal rod (Exh. 1) recovered at the scene being the alleged murder weapon, a red shirt (Exh. 2) and a whitish T-shirt (Exh. 3) recovered from the 1st accused person’s house and being the clothes he allegedly wore during the incident, post-mortem report (Exh. 4) and identification parade form (Exh. 5).
23. When placed on their defence, each of the accused persons gave sworn evidence and did not call a witness in defence.
24. Each of the accused persons denied that he committed the offence.
25. DW 1, Shukrani Hassan Nyale, the 1st accused person said that he could not recall anything about the date of 18/3/2020. He could only recall the events starting on 20/3/2020 when he was arrested from his residence by security officers led by the OCS Kijipwa police station who was well known to him.
26. DW 2, Said Hamisi Ali, the 2nd accused person said that he was working at Mombasa Cement at the material time. He identified PW 2, Omar Abdulaziz as his boss at work and one of the people who was present when police officers went to arrest him. He said PW 2 told him that he had killed. He denied having anything to do with the killing.
27. After close of the defence case, neither the learned prosecution counsel nor the learned counsel for the accused persons filed submissions.
28. I have considered the evidence by the prosecution and the respective defences by the accused persons. The point for determination is whether or not the prosecution has proved its case against the accused persons beyond a reasonable doubt.
29. The offence of murder is provided for under section 203 of the Penal Code as follows:
“S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
30. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) the Court of Appeal said thus regarding the ingredients of the offence of murder:
“For the offence of murder, 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) that the Accused had the malice aforethought. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”
31. In this case, there was one witness PW 8 who testified that the 1st accused person hit the deceased on the head with a metal rod upon which he collapsed and died.
32. This is evidence of identification by one person. In the case of Cleophas Otieno Wamunga v. Republic [1989] eKLR it was held:
“What we have to decide now is whether that evidence was reliable and free from possibility of error so as to find a secure basis for the conviction of the appellant. Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger.
Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.”
33. The incident in this case happened in broad daylight and there was nothing to block the view of PW 8 from seeing what was happening. He was able to identify the assailant as the 1st accused person. He was candid that his colleague the deceased pursued the 1st accused person outside the perimeter wall using the hole the intruders had made and were using to come inside to steal scrap metal and that they engaged in a fight and that the deceased hit the 1st accused person with a stick. There is evidence from several prosecution witnesses who went to arrest the 1st accused person a day after the incident of the death of the deceased that he had a fresh wound around the face region. At the scene, he explained that he had sustained it through a motor bike accident. However, he never took up that defence in his testimony. The fact of his being injured is material to the case because, PW 8 said that the deceased had hit him with the stick he had before the 1st accused person responded by hitting him with the metal rod on the head.
34. I find that the injury that the 1st accused person had on his face the following day after the death of the deceased was as a result of the deceased having hit him with his stick. It supports the evidence by PW 8 that he saw the 1st accused person at the scene and that he engaged in a fight with the deceased, with the deceased using a stick and the 1st accused person using the metal rod that he had removed from the scrap metal yard.
35. The evidence of the 1st accused person that he could not recall anything about what happened on 18/3/2020 but he could vividly recall how he was arrested a day after shows that he was not being candid. What could have happened to him that caused him to suddenly forget what had happened the day before? If he had chosen to remain silent in defence, that would have been a different case because he has a right to do so. But having offered to explain himself and being able to explain what happened a day after the incident, it is totally inconceivable that he could not recall anything about that date.
36. The prosecution evidence that in fact, what happened was that he hit the deceased with an iron rod thereby leading to his death is unchallenged and I find so.
37. On the first ingredient of murder, that of actus reus, I am satisfied that it was indeed the act of the 1st accused person that led to the death of the deceased. I accept the evidence of PW 8 that the 1st accused person hit the deceased with a metal rod after the deceased had hit him with the stick he had.
38. The next issue for determination is whether the accused person had malice aforethought when he hit the deceased with the metal rod. Section 206 of the Penal Code provides for the instances under which malice aforethought is deemed established thus:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstance:-
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.”
39. From the evidence on record, it is apparent that the circumstances of the offence fall under section 206(c) of the Penal Code where malice aforethought is deemed to be established where the evidence adduced establishes that there was an intent to commit a felony and in the execution of that intent death is caused. The issue then is whether the evidence establishes the requisite mens rea on the part of the accused person.
40. In this case, I find that the evidence adduced by the prosecution clearly proved that the 1st accused person was in the process of committing a theft, and that in the execution of the theft, that is, taking away the stolen items, the scrap metal, he was accosted by the deceased who no doubt was trying to prevent him from taking the metal away.
41. In the case of Omar v Republic, [2010]2 KLR, 19 at page 29, the Court of Appeal considering the issue of malice aforethought in a case where one blow upon the deceased had caused the death expressed itself as follows:
“So, by the appellant hitting the deceased on the neck with a bottle, he must have intended to cause her at least grievous harm. Indeed, the blow using a bottle caused a fatal wound on the deceased. The evidence clearly shows the appellant had the necessary malice aforethought”.
42. Even though evidence by PW 8 shows that the deceased pursued the 1st accused person outside the perimeter wall and that he was the first to hit him with the stick he had, that was done in the process of trying to prevent the theft from being completed by the 1st accused person. The 1st accused person had put up a fight to retain the stolen item, the scrap metal, which the deceased wanted to retrieve from him. Consequently, I find that the deceased was hit by the 1st accused person in order to complete execution of the theft, a felony and therefore malice aforethought is proved.
43. Secondly, the 1st accused person used a metal rod as a weapon against the deceased with knowledge that it would cause grievous harm or death. He intended to cause grievous harm to the deceased and this led to his death. His denial that he caused the death of the deceased is discounted by the evidence of PW 8 that he was at the scene and he hit the deceased with the metal rod causing him an injury to which he succumbed immediately. I am satisfied from that action that intent to commit murder has been proved against the 1st accused person beyond any reasonable doubt.
44. The 2nd accused person was arrested on the information given by the 1st accused person as testified by the several prosecution witnesses who went to arrest him. PW 8 who saw the 1st accused person on the material day said that he never saw the 2nd accused person. I have accepted the evidence of PW 8 as candid and honest and I find that there is no other evidence to link the 2nd accused person to the murder of the deceased. The fact that he was described as a habitual thief of scrap metal from the company premises and that he had been in company of the 1st accused person on the occasion in late February when PW 9 was injured by such thieves cannot mean that they were together on this day. Finally, the 1st accused person did not testify in evidence that he was with the 2nd accused person on the material date. His word at the time of arrest, given to police officers, is not evidence to be relied upon to found a conviction for the 2nd accused person.
45. Consequently, I find that the prosecution has not proved its case against the 2nd accused person beyond a reasonable doubt. I find the 2nd accused person not guilty of murder contrary to section 203 as read with section 204 of the Penal Code (Cap. 63) Laws of Kenya as charged. He is accordingly acquitted thereof. He is to be released from custody forthwith unless otherwise lawfully held.
46. I am however satisfied that the prosecution has discharged its onus to prove beyond a reasonable doubt that the 1st accused person murdered the deceased and I find the 1st accused person guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He is hereby convicted accordingly.
47. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 17th day of December 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused in persons from Shimo La Tewa prison.
Ms Nzamba for the accused persons.
Mr. Ngiri for the State.
Etropia - Court Assistant
2. The accused persons pleaded not guilty to the charge and the case was set down for hearing.
3. Before they took plea, a psychiatrist examination report prepared by Dr. C.M. Mwangome M.Med consultant psychiatrist/DDMS dated 18/5/2020 in respect of each accused person declared that each of the accused persons had no mental illness and therefore was fit to plead to the charges.
4. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when the court had made a ruling that the accused persons had a case to answer.
5. The accused persons opted to have the case to proceed from where Hon. Lady Justice Anne Ong’ijo had left it. I took the accused persons’ defences. Each gave sworn evidence in defence and did not call witnesses.
6. The prosecution called eleven witnesses to support the charge. The prosecution’s case summary of the events leading to the death of the deceased are that he was a security guard at Mombasa Cement company premises in Kadzinuni area. He met his death while on duty in confrontation with the 1st accused person who had trespassed upon the deceased’s employer’s premises to steal scrap metal.
7. PW 8, Emmanuel Laiputa, was a security guard at the same premises of Mombasa Cement company and was deployed to guard the scrap metal section. He was on duty with the deceased at the time and he witnessed the incident. He was the main prosecution witness to the incident.
8. It is the prosecution’s case that the accused persons went to the premises on the evening of 18/3/2024 at around 4.00 p.m. to steal scrap metal. PW 8 gave evidence that the deceased went after the 1st accused person Shukrani Hassan who had sneaked into the premises using a hole made in the wall and gone to the scrap metal yard, picked some scrap metals and went out through the same hole. The deceased pursued him outside the perimeter wall of the premises through the same hole and when he found him they engaged in a fight. The deceased beat the 1st accused person with a stick he had. The accused person defended himself using the piece of iron rod he had removed from the scrap yard. The deceased’s stick broke and the 1st accused person hit him back on the head with the piece of metal and the deceased fell to the ground. He did not survive the blow. He succumbed to the injury at the scene.
9. The evidence of PW 8 is that he only saw one thief, the 1st accused person but not the 2nd accused person in the fight with the deceased.
10. PW 7, Dr. Ruth Nyangi Walumbe, the pathologist who conducted a post mortem examination on the body of the deceased on 19/3/2020 at the Kilifi County Hospital mortuary. She found that the deceased had sustained external injuries of lacerations to the right ear, right temporal area, behind the right ear and right parietal region formed the opinion that the death was a result of head injury due to blunt force trauma. Internally in the head he had right-sided subgaleal hematoma and depressed skull fracture involving right temporal/frontal bone and in the nervous system there was parietal brain laceration.
11. PW 2 Omar Mohammed the officer in charge of security at Mombasa Cement company said the deceased was one of the company’s employees as a security guard. On the material day, he was alerted of a security issue by Abdul Hassan, the one in charge of cattle that there were thieves there. PW 2’s driver Sharif Shakil also called him and confirmed the information.
12. On his way to the scene, he received more information from Jackson Kazungu, a supervisor that Maasai, the deceased had been badly beaten and was in a bad state. When PW 8 arrived at the scene, the deceased had died. He had injuries on the head and the right ear was cut. There was blood and a metal rod at the scene. He called police officers from Kijipwa police station who came to the scene and collected the body of the deceased and took it to the mortuary.
13. The following day, he received some leads from an informer that Shukri, the 1st accused person was involved in the murder of the deceased. He passed the information to the OCS Kijipwa and during the night they went with police officers and a relative of the deceased who is also a police officer to the residence of the 1st accused person and he was arrested. He had a fresh wound on the face. Red shorts trousers and a white T-shirt were recovered. On interrogation, Shukri said that he had been called by Said, the 2nd accused person to carry metals. The 2nd accused person was known to PW 2 before. They later went to his home in Kanyanga village, Kakauni from where he was arrested.
14. In cross-examination, PW 2 said that Shukri is the short form of the name Shukrani. That there had been a hole made in the perimeter wall fence recently during another break-in incident into the premises and the hole had not been covered. He said that police officers took the metal rod that was at the scene and that it was about one metre long and heavy. The scrap metals that had been stolen were abandoned, he said. He also clarified that the relative of the deceased who accompanied them to the home of Said, the 2nd accused person was not a police officer but a guard at Mombasa Cement who worked on night duty. He said that Shukri had an injury on the cheek.
15. PW 3 CIP Victoria Mutuku was the OCS Kijipwa police station at the time. She went to the scene with PW 6, PC Phillip Manji. They both testified that when they arrived at the scene upon PW 3 being notified of the incident by PW 2, they found the body of the deceased lying in a pool of blood. The body had injuries on the right side of the head and on the ear. Near the body, some 5m away there was scrap metal, a round hollow rod with blood stains (Exh. 4) and a stick some 20m away. They also noticed a hole in the perimeter wall of the Mombasa Cement premises. They also recovered the national identification card for the deceased in the name Paul Tia Makange. Later, they were together with PW 2 when they arrested the two accused persons from their respective homes.
16. PW 1 Dancun Mzungu Msonga, a security guard at the same premises of Mombasa Cement, PW 4, Evans Makali Kituyi and PW 5, PC Japheth Njagi both of Kijipwa police station accompanied the OCS, PW 2 and the other people when they went to arrest the two accused persons from their respective homes. Their evidence is in line with what PW 2 and PW 3 said happened during the arrest of the two accused persons.
17. PW 1 added that although he was not present on the day the incident happened, on 19/3/2020 evening hours, his boss, PW 2 asked him to accompany the team going to arrest the 1st accused person after PW 1 received information that the 1st accused person was involved in the murder of the deceased. PW 1 said that the 1st accused person was well known to him and they resided in the same area.
18. They found the 1st accused person in his house. He had a fresh wound below his left eye. Asked how he had sustained it, he said he was involved in an accident with a motorbike. When he was questioned by police officers on who killed the deceased, the 1st accused person said that Said, the 2nd accused person did. He also added that he had only gone to the scene to offer transport to carry luggage. He led the team to Said’s home in Kayanda area and Said was arrested.
19. PW 1 said that Said, the 2nd accused person was also known to him. They had worked as security guards together at Mombasa Cement company some two years before the incident herein. PW 1 described the 2nd accused person as a known thief who used to disturb them with stealing scrap metal at the company premises. He reiterated the same in cross-examination and said that several reports of the incidents were made at Kijipwa police station.
20. PW 9, Daniel Kaimerela was a security guard at the same Mombasa Cement premises. However, he was not around on the date of the incident. He had been injured earlier in another incident of break-into the premises in the last week of February, 2020. He said that the two accused persons were well known to him as they had made several attempts to break into the premises to steal scrap metal. On the day he was injured, he spotted the 2nd accused person within the premises and he wanted to steal scrap metal that PW 9 was guarding. When PW 9 questioned him, the 2nd accused person retorted asking PW 9 why he was concerned with the scrap metal and yet it was not his property. The 2nd accused person dropped the scrap metal he had and approached PW 9 for a fight. They fought but the 2nd accused person took off towards the perimeter wall where there was a hole. While pursuing the 2nd accused person, the 1st accused person, who unknown to PW 9 was around threw a piece of metal and it hit PW 9 on the head and he fell to the ground. The 1st accused person then beat him while he was on the ground. PW 9 used his club to fend off the beatings until the 1st accused person took off as well. He made a phone call of the situation and he was taken to hospital. He was still recuperating after discharge when the incident involving the deceased happened.
21. PW 6, PC Kevin Wafula was the investigating officer in the case. He was at the time based at DCI office Mtwapa. He went to the scene after the incident and saw the body of the deceased. He collected evidence and recorded statements from witnesses. Afterwards the accused persons were handed over to him after arrest. He had them charged with the offences.
22. The exhibits produced in the case were the metal rod (Exh. 1) recovered at the scene being the alleged murder weapon, a red shirt (Exh. 2) and a whitish T-shirt (Exh. 3) recovered from the 1st accused person’s house and being the clothes he allegedly wore during the incident, post-mortem report (Exh. 4) and identification parade form (Exh. 5).
23. When placed on their defence, each of the accused persons gave sworn evidence and did not call a witness in defence.
24. Each of the accused persons denied that he committed the offence.
25. DW 1, Shukrani Hassan Nyale, the 1st accused person said that he could not recall anything about the date of 18/3/2020. He could only recall the events starting on 20/3/2020 when he was arrested from his residence by security officers led by the OCS Kijipwa police station who was well known to him.
26. DW 2, Said Hamisi Ali, the 2nd accused person said that he was working at Mombasa Cement at the material time. He identified PW 2, Omar Abdulaziz as his boss at work and one of the people who was present when police officers went to arrest him. He said PW 2 told him that he had killed. He denied having anything to do with the killing.
27. After close of the defence case, neither the learned prosecution counsel nor the learned counsel for the accused persons filed submissions.
28. I have considered the evidence by the prosecution and the respective defences by the accused persons. The point for determination is whether or not the prosecution has proved its case against the accused persons beyond a reasonable doubt.
29. The offence of murder is provided for under section 203 of the Penal Code as follows:
“S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
30. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) the Court of Appeal said thus regarding the ingredients of the offence of murder:
“For the offence of murder, 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) that the Accused had the malice aforethought. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”
31. In this case, there was one witness PW 8 who testified that the 1st accused person hit the deceased on the head with a metal rod upon which he collapsed and died.
32. This is evidence of identification by one person. In the case of Cleophas Otieno Wamunga v. Republic [1989] eKLR it was held:
“What we have to decide now is whether that evidence was reliable and free from possibility of error so as to find a secure basis for the conviction of the appellant. Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger.
Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.”
33. The incident in this case happened in broad daylight and there was nothing to block the view of PW 8 from seeing what was happening. He was able to identify the assailant as the 1st accused person. He was candid that his colleague the deceased pursued the 1st accused person outside the perimeter wall using the hole the intruders had made and were using to come inside to steal scrap metal and that they engaged in a fight and that the deceased hit the 1st accused person with a stick. There is evidence from several prosecution witnesses who went to arrest the 1st accused person a day after the incident of the death of the deceased that he had a fresh wound around the face region. At the scene, he explained that he had sustained it through a motor bike accident. However, he never took up that defence in his testimony. The fact of his being injured is material to the case because, PW 8 said that the deceased had hit him with the stick he had before the 1st accused person responded by hitting him with the metal rod on the head.
34. I find that the injury that the 1st accused person had on his face the following day after the death of the deceased was as a result of the deceased having hit him with his stick. It supports the evidence by PW 8 that he saw the 1st accused person at the scene and that he engaged in a fight with the deceased, with the deceased using a stick and the 1st accused person using the metal rod that he had removed from the scrap metal yard.
35. The evidence of the 1st accused person that he could not recall anything about what happened on 18/3/2020 but he could vividly recall how he was arrested a day after shows that he was not being candid. What could have happened to him that caused him to suddenly forget what had happened the day before? If he had chosen to remain silent in defence, that would have been a different case because he has a right to do so. But having offered to explain himself and being able to explain what happened a day after the incident, it is totally inconceivable that he could not recall anything about that date.
36. The prosecution evidence that in fact, what happened was that he hit the deceased with an iron rod thereby leading to his death is unchallenged and I find so.
37. On the first ingredient of murder, that of actus reus, I am satisfied that it was indeed the act of the 1st accused person that led to the death of the deceased. I accept the evidence of PW 8 that the 1st accused person hit the deceased with a metal rod after the deceased had hit him with the stick he had.
38. The next issue for determination is whether the accused person had malice aforethought when he hit the deceased with the metal rod. Section 206 of the Penal Code provides for the instances under which malice aforethought is deemed established thus:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstance:-
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.”
39. From the evidence on record, it is apparent that the circumstances of the offence fall under section 206(c) of the Penal Code where malice aforethought is deemed to be established where the evidence adduced establishes that there was an intent to commit a felony and in the execution of that intent death is caused. The issue then is whether the evidence establishes the requisite mens rea on the part of the accused person.
40. In this case, I find that the evidence adduced by the prosecution clearly proved that the 1st accused person was in the process of committing a theft, and that in the execution of the theft, that is, taking away the stolen items, the scrap metal, he was accosted by the deceased who no doubt was trying to prevent him from taking the metal away.
41. In the case of Omar v Republic, [2010]2 KLR, 19 at page 29, the Court of Appeal considering the issue of malice aforethought in a case where one blow upon the deceased had caused the death expressed itself as follows:
“So, by the appellant hitting the deceased on the neck with a bottle, he must have intended to cause her at least grievous harm. Indeed, the blow using a bottle caused a fatal wound on the deceased. The evidence clearly shows the appellant had the necessary malice aforethought”.
42. Even though evidence by PW 8 shows that the deceased pursued the 1st accused person outside the perimeter wall and that he was the first to hit him with the stick he had, that was done in the process of trying to prevent the theft from being completed by the 1st accused person. The 1st accused person had put up a fight to retain the stolen item, the scrap metal, which the deceased wanted to retrieve from him. Consequently, I find that the deceased was hit by the 1st accused person in order to complete execution of the theft, a felony and therefore malice aforethought is proved.
43. Secondly, the 1st accused person used a metal rod as a weapon against the deceased with knowledge that it would cause grievous harm or death. He intended to cause grievous harm to the deceased and this led to his death. His denial that he caused the death of the deceased is discounted by the evidence of PW 8 that he was at the scene and he hit the deceased with the metal rod causing him an injury to which he succumbed immediately. I am satisfied from that action that intent to commit murder has been proved against the 1st accused person beyond any reasonable doubt.
44. The 2nd accused person was arrested on the information given by the 1st accused person as testified by the several prosecution witnesses who went to arrest him. PW 8 who saw the 1st accused person on the material day said that he never saw the 2nd accused person. I have accepted the evidence of PW 8 as candid and honest and I find that there is no other evidence to link the 2nd accused person to the murder of the deceased. The fact that he was described as a habitual thief of scrap metal from the company premises and that he had been in company of the 1st accused person on the occasion in late February when PW 9 was injured by such thieves cannot mean that they were together on this day. Finally, the 1st accused person did not testify in evidence that he was with the 2nd accused person on the material date. His word at the time of arrest, given to police officers, is not evidence to be relied upon to found a conviction for the 2nd accused person.
45. Consequently, I find that the prosecution has not proved its case against the 2nd accused person beyond a reasonable doubt. I find the 2nd accused person not guilty of murder contrary to section 203 as read with section 204 of the Penal Code (Cap. 63) Laws of Kenya as charged. He is accordingly acquitted thereof. He is to be released from custody forthwith unless otherwise lawfully held.
46. I am however satisfied that the prosecution has discharged its onus to prove beyond a reasonable doubt that the 1st accused person murdered the deceased and I find the 1st accused person guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He is hereby convicted accordingly.
47. Orders accordingly.
Judgment delivered, dated and signed in Open Court and Virtual Platform, Teams this 17th day of December 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused in persons from Shimo La Tewa prison.
Ms Nzamba for the accused persons.
Mr. Ngiri for the State.
Etropia - Court Assistant