1. Silas Kamongwe was charged with murder Contrary to Section 203 as read with Section 204 of the Penal Code.
2. It was alleged that on 2/10/2018 at Boma Village Iuani Location, within Makueni County he murdered Cosmas Mutua Kivili.
3. The accused person took plea on 21/12018 and pleaded not guilty.
4. The prosecution called 13 witnesses to prove their case ; PW1, 2 , 3, & 5 - father , mother , sister in law and sister of the deceased respectively; PW4 and 11 the persons who took the deceased to hospital at various times; PW6 and 12 who were drinking Kaluvu (traditional Akamba beer) with the deceased and the accused, PW8, 9 and 13 the police officer s including the investigating officer and PW7 and 10 the nursing officer who treated him at some point and medical officer who conducted the postmortem respectively.
5. The case for the prosecution was that on 29/9/2018, Cosmas Mutua Kivili, the accused, Slyvester Mutungi PW6 and Philiph Katunga Kimuyu PW12 and others were drinking Kaluvu at the home of the accused Silas Kimongwe’s brother’s home. Some other revelers were playing cards.
6. A disagreement arose between the accused and Cosmas - and they chased each other into some bush away from where everyone else was.
7. About 10.00am while PW3 Rhoda Kathuma Mokua was at her home Cosmas arrived. He had some injuries on his head and hand and told her that Silas Kamongwe had injured him.
8. PW3 called the parents of Cosmas, PW2 David Paul Kivili Kinyumu, PW2 Beth Mueni Kithili. PW1 called PW4 Sammy Ndambuki who assisted them to take Cosmas to hospital. He had an injury on the head and the hand. PW2, called the sister to Cosmas PW5 Agnes Ndungwa Kithili who also came.
9. The father, the mother and the sister also told the court that Cosmas told them that the injuries he had had been inflicted by Silas Kimongwe. He told them that Silas hit him with a stone on the head and broke his hand with a stick.
10. They took him to Makueni Referral Hospital where he was treated. They also reported to the police No. 112209 PC Denis Kigen whom they found at Makueni Police Station. The report was made at 14:32 were Cosmas reported that he had sustained injuries on the head. He was bleeding on the head and complaining of a headache. The officer recorded the report and issued OB No. 27/29/9/2018 and referred them to hospital, where he was treated and discharged.
11. The next day he was not feeling better. He got worse. The family members called PW11 a boda boda rider who took them to Itithini Dispensary where PW7 a nursing officer, Justus Muoki, attended to him. PW7 noted the injuries - on the head and the hand. He was also aware that he was taken to hospital on 1/10/2028 where he died the following day while undergoing treatment.
12. PW8 No. 83773 CPL Winnie Kabera is the one who was assigned the assault case to investigate. She said she saw him on 1/10/2018, he came with his wife and sister (PW6). He was weak looking and she did not record his statement but filled his P3 and escorted him to hospital together with the two . When they reached the hospital the Doctor gave them an appointment for 3/10/2018 . On 3/10/2018 CPL Winnie learnt that Cosmas had been taken to hospital on 1/10/2018 and died on 2/10/2018 while undergoing treatment. She visited the Makueni Referral Hospital mortuary hospital in the company of other officers and confirmed that Cosmas had died on 2/10/2018. She testified that on 1/10/2018 Cosmas told her that he was assaulted by one Silas Kimongwe but that he died before the P3 was filled.
13. The Postmortem report was produced by Dr. Steven Muli Musembi on behalf of Dr. Alex Makau. The body was of a male 26 years old - had a sutured wound on the left forehead with nylon sutures fractured left radial bone. Internally there was a cyanosed right lung with clotted blood; fat emboli noted in the pulmonary trunk and blood clot.
14. The cause of death was pulmonary thromboembolism secondary to fat embolism from the fractured bone.
15. No. 63867 CPL Paul Oguta investigated the case. Upon receiving instructions from his immediate seniors he and his team visited the scene at Kwa Nziu Village; Iuani village.
16. He confirmed that on 29/9/2018 the accused and the deceased were taking alcohol at the home of the accused where accused’s brother was selling alcohol.
17. They sat behind the house and one Sylvester Nthoki bought alcohol to celebrate. Trouble started when the deceased poured some of the alcohol into his cup - the accused demanded that the deceased pay Kshs. 20/= for which accused refused to pay. He testified that the accused was aware that the deceased had money and demanded that they play cards - and the loser would pay for the alcohol. The deceased refused - and that is when the card game was broken up and the accused and the deceased ran off into some bush - It is only later that the deceased ended up at PW3.
18. The accused disappeared and was later arrested in Mombasa.
19. The accused was found to have a case to answer and I heard his defence.
20. He made a sworn statement of defence. He told the court that he was from Mombasa – where he was doing casual jobs and mkokoteni suppling water to hotels. He told the court that he was in Mombasa on 2/10/2018.
21. On 21/11/2018 after a few phone calls from someone who told him he was calling him to ask for a workman, he met up with with that person. It is then that the police officers arrested him and asked him where he was on 29/9/2018. He confirmed that he was at home (in the village) as he had gone home on 27/9/2018. He said he was going home to deal with ID card issues. He said he went to the Assistant Chief on 28/9/2018 one Assistant Chief Francis Kyalo Kimaiyo. He said he had a wife, who also did not have an ID Card. That they went to the office of the Assistant Chief together hoping that she too would be able to get an ID Card. That the Assistant Chief told them it was not possible – that they went back home and they went to the home of his wife where they stayed until evening.
22. That in the morning of hours of 29/9/2018 one Mutuku Mutunga and Kioko Kimanthi requested him go and “wake them up” i.e “Niwaamushe” meaning buy the alcohol - his brother was selling Kaluvu. He went and bought them the alcohol - paid 120/= then left with his wife for her parent’s home where he stayed till evening. He left for Mombasa on 1/10/2018.
23. On cross-examination he told the court that Cosmas was his neighbour - 200m away. He said he did not have issues with him. He conceded that he was drinking Kaluvu at his brother on 29/9/2018, and he would not say whether or not Cosmas was there because there were many people. He said he did not see any card game, he was not playing any card game.
24. He denied any confrontation with Cosmas. He said if he had run away he would not have picked the phone call that led to his arrest. He said police forced him to sign a statement he knew nothing about.
25. When shown the statement and it was read back to him he told the court that he told the police that he was at home on 29/9/2018 , he went to drink Kaluvu, that there were more than 14 people. He denied that he told the police that he was with the deceased and that they disagreed and fought. He denied that he told them that as they fought the deceased fell and injured his head on a stone. When it was put to him the witnesses in court told the court he injured the deceased he told the court that no witness saw him fight with the deceased.
26. I have carefully considered the evidence by the prosecution and the defence. The issue is whether the prosecution has proved the charge against the accused person.
27. The defence counsel - Mr. Hassan had proposed to put his written submissions - but none were filed, nor were uploaded on the CTS.
28. The ingredients of murder were set out in Antony Ndegwa Ngari vs Republic [2014] viz:
a) Death of the deceased and the cause of death
b) That the accused committed the unlawful act which caused the death of the deceased.
c) That the accused had the malice afore thought.
29. The fact of death is not in dispute - the deceased died on 2/10/2018. A postmortem report was conducted and witnessed by relatives and the police - death was secondary to an assault that caused blunt injuries to head, fracture to hand – leading to an embolism that caused the death of the deceased.
30. Who caused the death of the deceased?
31. Several witnesses told the court that the deceased told them that he was injured by the accused. He told his father, he told his mother, he told his sister, he told the police officer CPL Winnie when she interviewed him, he told the other persons, and other persons heard him say this to others - evidently there are a number of people who heard first hand from the deceased that the accused is the one who assaulted him and caused him the injuries.
32. The accused himself told the court on the material date he was at the same place where the deceased was though he denied seeing the deceased there. The accused person was seen by PW6 and PW12 where the alcohol was being drunk, they witnessed the disagreement, they saw accused follow the deceased. They did not witness any fight between the accused and the deceased - but the deceased told people who attended to him - that it is Silas Kimongwe who caused him that injury.
33. The evidence is therefore circumstantial - In John Mwangi V R [1983] eKLR - it was held that;
“In a case dependent on circumstantial evidence in order to justify the inference of guilt the incriminating facts must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of guilt and … to draw the inference of the accused’s guilt from circumstantial evidence there must be no other coexisting circumstances which would weaken/destroy the inference.”
34. The disagreement between the accused and the deceased was witnessed by at least 2 people who testified – and who saw accused follow the deceased. This was during the day. Soon after the incident the deceased reported a case of assault at Makueni Police Station. The investigating officer assigned to the case told the court when she interviewed him he told her one Silas Kimongwe had assaulted him.
35. The accused denied being at the same place with the deceased but his denial is incredible because there is sufficient evidence that he was there with the deceased – and only denied being with the deceased because their disagreement led to a death.
36. There appears to be no intervening circumstances between the quarrel with accused – the being chased into a bush and ending up at the home with injuries.
37. There are no reasons at all arising from the case for the prosecution or the defence that there were any grudges between the accused and the deceased or their families to warrant them or all the other persons who said deceased told them the accused assaulted him, to lie against the accused.
38. The burden of proof lies with the prosecution and never shifts but where the accused - as in this case states that the facts were different from what the prosecution has established, and mentions witness it would be supportive of his case if he called them. I say this alive to the fact that the burden does not shift – but the credibility of the accused’s defence lies at stake for lack of support in light of the strong circumstantial evidence against him.
39. When the deceased told others that the accused had assaulted him, no one expected that the accused would die- he had a fractured hand and a wound that was stitched on the head, and it is the clot resulting from the fracture that killed him.
40. Hence he fact of death and who caused the injuries that led to his death were clearly established by the prosecution. The accused assaulted the deceased. The injuries resulted in a condition that killed the deceased.
41. Was there malice aforethought? I found no motive to cause the death of the deceased and hence - the only conclusion is that this death resulted from an unlawful assault
42. In my view the kind of injury inflicted was not the kind of injury that would have been considered fatal, save for the complication of the blood clot.
43. Without a motive established, I found no malice aforethought. The charge of murder is unsustainable and I find the accused guilty of the offence of manslaughter contrary to Section 202 as read with 206 of the Penal Code and convict him accordingly
Dated signed and delivered, virtually on 23rd August 2024
Mumbua T. Matheka
Judge
Ms Mwanatumu Court Assistant
Accused present
Mr. Hassan for accused
Ms Nyakibia for State