The Accused Zachary Gati Marwa is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code
The particulars are that Zachary Gati Marwa on 16th day of January 2024, at Nyabakarange village in Kuria West Sub-County in Migori County murdered Samson Boke Boke.
The prosecution tendered evidence of 9 witnesses and PW1 Mutogori Daniel Bungote testified that he 36 years old and Assistant Chief of Ikerege Sub-Location. He said he had been Assistant Chief for 3 years. He said his duties include resolving small disputes within the sub location at barazas. He said he keeps law and order in the Sub-Location.
PW1 recalled that on 16th January 2024 he reported on duty at 8.00am and started working. At around 3.00pm he received a reportee Zachary Gati Marwa a resident to his Sub-Location. He is the accused herein. He had a letter from Children’s Office directed to Assistant Chief. He handed over the letter to him. That in the letter he learnt that Zachary’s daughter Mitchele Boke Gati had eloped to go and marry. That he interrogated Zachary who told him there was a young man known a Musa Sagirani who was involved with the daughter. Zachary had reported the matter at Getonganya police post in Kuria West. PW1 told Zachary that he would talk to the officers at Getonganya to assist in arresting Musa Sagurai who was said to have eloped with the girl. The girl was a school pupil. Musa was a resident of Nyabokorange. That he talked to the post and PC Matara and PC Mwamba went to him at 8.00pm. That he called Zachary to lead them to the home he suspected his daughter was being kept and he came with his son Joel. We accompanied the officers to Musa Sagurai’s home. Sagurai is Musa’s father. Musa was staying in his father’s homestead.
On arrival they didn’t find Musa but they found Musa’s mother and another son Magera. The mother told them that her husband was at the centre. Magera led them to a boda boda stage to find out where Sagurai was suspected to be but they didn’t find him. PW1 then instructed Magera to go back home and they then told Zakaria to continue with investigations and if he finds any clue, he should tell them. PW1 also agreed with the officers to go back to the home at 2.00am and lay ambush at Sagurai’s home. The officers went back to the post and they went back home as Zakaria and Joel went home. PW1 said he stays 50m from the road. That while he was at home, he heard noise. People were making noise and saying Boke had been stabbed. Boke was known to him. He proceeded to scene and heard that it was alleged that Zakaria had stabbed Boke and members of public wanted to go and set Zakaria’s home on fire. He made phone call to Zakaria who told him he had gone to seek help from Getonganya police post. That he made phone call to Deputy County Commissioner and OCS Kehancha and told them what was going on. Police officers came and calm returned. PW1 said that he didn’t see the deceased and Zachary didn’t tell him if he had differences with Boke. The name he gave me was in the name of Musa Sagurai.
On 18th January 2024 PW1 went to Kehancha DCI and recorded a statement. He said they were not able to trace Zachary’s daughter. The search was scuttled by the murder.
When cross-examined by Mr. Mwita Advocate PW1 said that he didn’t meet with Boke when they went to search for Zachary’s daughter. He said that when they didn’t find Musa, his father and Zachary’s daughter he went back to his house. When they parted ways, everyone went to their respective homes. That he had hardly taken 30 minutes from the time he parted ways with Zakaria when he heard the noise. He said he called Zakaria and he told him he had gone to seek for help from police post. The following day he learnt the deceased was found lying on the way to his home. It is not true that he witnessed Boke being murdered.
PW2 Benson Sagirai Boke said he was 19 years old and a student at Nyabokorange secondary school in Kuria in form II. He said he was a day scholar.
That on 16th January 2024 he recalled he was at home at about 8.00pm with his mother – step mother Veronica Nyangi and her 3 children aged 5, 3 and 1 years old. That they were eating when Assistant Chief, Mzee Zachary and his son Joel together with 2 officers went to their home. He said that Mzee Zachary was known to him and he is in the dock. He hails from their village. Mzee Zachary asked “Mrisha” what it your name and he told him he was Benson. He asked him who is Musa and he told him Musa is his brother. Zachary then asked “Huyu kijana anaitwa Musa ako na kilo ngapi?” PW2 told him he didn’t know. He said that Musa was his younger brother and was 17 years old. They started searching for Musa and didn’t get him. They told him to accompany them. They wanted him to take them to his uncle’s place. They went to his grandmother’s home which is approximately 90m and when they entered the house Zachary told his grandmother “Mmeanza kuchezea familia yangu? Mtaona”. MPW2’s grandmother was told they were looking for Musa.
That from his grandmother’s house he was instructed to take them to his uncle’s place about 150m. That they got to a bar at Nyabokarange centre and they stopped. They were still with Assistant Chief, Zakari, Joel and 2 officers. The police officers stopped and talked. He said he was with Mzee Zakari aside. When police officers left Mzee Zachary and the Assistant Chief remained standing. Mzee Zachary told Assistant Chief and his son Joel to go to his uncle’s place and check if Musa was there as he remained with Mzee Zachary outside the bar. When he remained with Mzee Zachary he told him to go home.
On the way home he met his uncle Samson Boke at the junction to their home. He told PW2 he was feeling hungry and PW2 bought ground nuts for Kshs. 20 and they ate. After eating groundnuts at boda boda stage they started telling stories. At 8.30pm they decided to go home. PW2 said that he accompanied his uncle back to the junction where they had met. He then told him they go to the bar and borrow a phone to make a call to a certain girl. When they were about 30 meters from the bar, he slowed down to allow his uncle get into the bar and borrow a phone and make his calls. That his uncle arrived at the bar as he was 30 meters away. There was security lights and he saw Zachary walking up and down outside the bar. That he then heard his uncle ask Mzee Zachary about his knife. Mzee Zachary retorted “Yaani mmeniolea mtoto wangu alafu mnakuja hapa kunisumbua” Mzee Zachary raised a stick to beat Boke but Boke held it but he staggered and fell as he was drunk. The stick was about one meter long. When Boke fell Mzee Zachary stabbed him on the back with a knife. That he was shocked on seeing Zachary stab Boke. When Boke was stabbed he stood and started running. Due to shock PW2 also started running on the opposite direction as Mzee Zacahary was pursuing Boke towards where we had come from and he went round and found some two young men Kevin and another had gone to inform people at home. That he met his father Saguria Boke and Sammy Boke going to scene and he joined them to where Boke had fallen. That they found he was not breathing. That he and Chacha took Boke to the hospital using a motor bike to Getontira hospital where Boke was admitted. The doctor told him to call people from home as the patient needed to be transferred to Migori. As he wanted to make phone call the doctor called him inside the ward and he was told that Boke had died. Members of their family came to the hospital. Police came the following day and recorded his statement. PW2 said he didn’t understand Zachary’s remarks that “mmeniolea mtoto wangu alafu mnakuja hapa kunisumbua”. He didn’t see accused stab Boke again.
In cross-examined by Mr. Mwita Advocate PW2 said that he took the deceased to hospital and he was admitted for treatment. That he was asked the name of the patient and also his name. He said he was not given the records of the hospital. He said he was ushered out of the ward when the patient was being examined and he did not know what happened. That when they found his uncle lying on the ground besides the road, he and Chacha and a boda boda rider also known as Chacha took him to the hospital. At scene his father David Sigurai, Sammy Gimase his uncle, Chacha, Chacha Musenda and others were present. According to PW2 Boke was not breathing and according to him he was dead. He said he had no expertise to confirm when one is dead. He said he felt the deceased had no pulse and was not breathing. They took Boke to hospital as he may just have been unconscious. The doctor confirmed Boke was dead. It is doctor who declared Boke was dead. It is after the doctor had declared that Boke had died that he started mourning. The body was taken to Kehancha where post mortem was done and thereafter released for burial. The deceased was stabbed on the back spinal cord. He said he didn’t read the post mortem report and he didn’t ask the cause of death. He said he saw the deceased being stabbed on the back. He said he did not know use of spinal cord. He said he didn’t see people where Zacharia and the deceased were exchanging. Zacharia was armed with knife and stick. When Boke held the stick and fell, Zachary stabbed him with a knife. The distance from boda boda stage to bar is about 80m. The bar is besides the road. He said he can’t tell if anyone else saw Zacharia stab deceased as he concentrated on the deceased and Zakaria. Boke asked Zacharia for his knife. He didn’t see Zacharia take Boke’s knife. He told police Zacahary was armed with a stick when he came to our home. He said he had not seen the stick Zacharia was armed with and he had not seen the knife used to stab the deceased. That when he saw Zacharia stab the deceased he ran towards the opposite direction and went round to where he had met his uncle. He said he met his uncle and father. It took about 7 minutes to go round back to the junction from his home. The people from home went directly to scene after they got report his uncle had been stabbed. PW2 said he did not know what Boke was using the knife for. Zakaria was a respectable elder in the village as at 16th January 2024.
In re-examination by Ms. Ikol PW2 said he witnessed Zakary stab the deceased. He said he didn’t count people at scene as he concentrated on Zachary and Boke. He said he was with Chacha Mosenda and another Chacha when they took Boke to hospital. The doctor attended to Boke. He said he saw the accused stab the deceased on the spinal cord. The accused was armed with a stick when they came home. He said he was not the one who told his father about the incident and he did not know how they got the information
PW3 Sammy Nyamohanga Boke testified that he was 32 years old and a boda boda rider. He said he was ward chairman Bukira central Bokirege Ward boda boda riders. He said his duties include resolving disputes among boda riders and customers. He said that on 16th January 2024 he had come from Ikerege stage and went to Nyabokarange stage where he was taking coffee with colleagues. He said he was with Chacha, Sando, Chamugosi, William Musenda and the coffee vendor. That they were also with Moses Morenge among others. He said they were about 10 people and they were just taking coffee with groundnuts and catching up with each other. While there they saw 2 officers, Zachary Marwa the accused herein, Joel, Zacharia’s son and Assistant Chief. They passed near the stage going on the upper part from where they were and turned right. That Samson Boke was standing at the junction. That he saw Zacharia search Samson Boke and removed a knife that Samson had. Samson wanted to resist but police officers calmed him down. The police officers then proceeded and left Samson at the junction. That he called Samson and asked what was the problem and Samson told him that Zachary searched him and took his knife. Boke is his step brother and was a boda boda rider. He used to carry the knife for security as there was rampant attacks on riders and they could use knife to protect each other. Boke didn’t know why he was being searched. Zachary came after about 15 to 20 minutes. Zachary started shining torch on each of us. When he got to PW3 he said “ hii ndio sehemu tumefikishana ns nyinyi?” That PW3 asked him what the problem was but he didn’t respond. That he called him again but he just walked away with Segera his younger brother’s son. Zachary and Segera left and walked for about 20 meters then Segera left Zachary and went where they were. That he inquired what the problem was and he told him that his younger brother had an affair with Zachary’s daughter. The boy is Musa. Musa was in same school with Zachary’s daughter. Segera told PW3 that Zachary went to their home and warned that his brother should leave his daughter alone. PW3 told Segera they ought to have reported so we deal with the matter.
Magera then left to go home. After a while Samson Boke came to the stage and told him Zachary had returned the knife but when I insisted he confirmed he had just remained with the sheath. He told him to leave Zachary alone. Boke then urged them to go home as it was late. That he then went home. After about 20 to 30 minutes, he received phone call from William Chacha Musendo who told him his brother had been stabbed and that Getentuo had refused to admit him. He urged PW3 to go and take him to another hospital. That he used his motor bike to go to Getontira dispensary where he found his brother had died and members of the family were crying/wailing. When he saw that Boke had died he made phone call to police officers at Ikerege police post. He also made calls to his father and he came.
My father and one brother used his motor bike to Kehancha where they made report. Police came and they went to scene. That his brother Robert and his father went to Getonganya police post. After 20 minutes he called his brother Boke Robert and he told him they had gone back to Kehancha. They told him they got Zachary at the police post and went with him to Kehancha. Later his brother and Zachary went to where they were. The body was taken to Kehancha hospital mortuary. They then went back home. When he went to scene where the body was, he saw blood at his back. PW3 said they were using light from their phones when Zachary came to where we were. The deceased wanted to resist when Zachary snatched knife from him but police officers told him not to resist. That he was across the stage when he saw Zachary snatch knife from deceased. The accused, Assistant Chief and Joel to stood outside the bar with police officers outside the bar for sometime before police left. Assistant chief, Zachary and Joel then entered the bar. Musa is his brother’s son. Musa’s father and the deceased are brothers from same father and same mother. He said he didn’t see Musa on the material day. Musa’s father’s home is near the dispensary where his home is on the lower part near another of Zachary’s home. That they went to DCIO’s office and recorded statements and gave names of suspects. PW3 said that he is the second son to his father after Musa’s father. As a family they sat down and agreed to let the law take its course. There was no attempt to set Zachary’s home on fire.
When cross-examined by Mr. Mwita Advocate PW3 said that It is Musenda who told him his brother had been stabbed. He made a phone call. PW3 said he was with the deceased when he urged them to go home as it was late. When the accused and police officers as well as Assistant Chief and Joel were across the road the other boda boda riders who were at the stage saw what had happened. What he recorded in his statement is what he saw. It is Zachary who shone torch on them. My statement to police indicates Assistant Chief started lighting his torch checking on each of them when Zachary shone torch on him and asked “hii ndio tumefikishana” That he spoke in Kiswahili and the police officers recorded for him his statement. The statement was read to him by police after it was recorded and he signed. He said he did record the statement one day after his brother died and he was confused and that may be the reason why he said it was Chief instead of Zachary who shone torch on him. PW3 said he can’t lie in court. It is not the Assistant Chief who shone light on them. It is not Assistant Chief who shone light on them. It is Zachary who shone light on him and other riders. The rest of the statement and what he had said is the truth. He said he spoke to Musenda and he told him what happened. That he accompanied police to scene. Zachary was not at scene. He said he knew other witnesses in this matter. 3 of the witnesses are not related to the deceased. He said he did not witness the deceased being stabbed. It is only him and Benson who are related.
In re-examination by Ms. Ikol PW3 said that it is the accused who shone torch on them and spoke to him. He said they operate from same stage with Mosenda.
PW4 Robert Menganyi testified that he was a businessman at Ikerege and lived in Naora in Kuria West Sub County. He recalled that on 16th January 2024 he had come from work and on arrival at home at about 9.00pm he received phone call from his brother Sammy Boke Nyamohanga who reported to him that his brother Samson Boke had been stabbed with a knife and he had died. That he took his motor bike and together with their father they proceeded to Getonkera hospital where their brother had been taken for first aid. On arrival he saw the body of his brother lying on a blood-soaked bed. That in company of his brother Nyamohanga and their father they went to Kehancha Police Station where they made a report. Police officers accompanied them to the scene of the incident and they conducted their investigations after which they went to Getonganya Police Post where the suspect was removed from the cells. He identified the Accused person as the suspect. PW4 said he did not know how the suspect was arrested and where he was arrested from. He later recorded his statement.
In cross-examination by Mr. Mwita Advocate PW4 said that he recorded his statement the following day after the incident. That he did inform the police about what is in the statement. He said he was not present during the incident but he was told the accused is the one who stabbed his brother and thereafter surrendered to the police. He said he did not have evidence that the accused met at the home of the deceased. He said that what he had said is what he was told. He said he found the accused at the police station and he was not present when he surrendered at the police post and he could not tell how he got to the police post. He said the deceased was his brother and he was interested in getting justice for him.
PW5 Lucia Juma testified that she was a farmer and she came from Nyabokarage.
On 16th January 2024 she recalled at about 9.00pm she had differed with her husband who was drunk and he chased her out of the house. She said her house is next to the road. That she got out of the house and went to the back of the house and stood at the veranda wondering where to go and sleep. After a short while she heard someone scream once and then it was quiet. The person who screamed appeared to have been running. That she feared and didn’t go to see who it was. She said she could not tell if the scream was made by a man or woman. Because of fear she went to the back of the house. The scream was of a person in distress. It appeared like people were fighting. After some time when calm returned, she went back to where she was initially. She said she did not follow to know what the scream was about. After sometime she heard someone breathing heavily but she didn’t go to where the person breathing was. Later she heard 2 young men talk on the road as they were going towards the lower part. The 2 young men were Kevin and another. That she called Kevin and told him that her husband had chased her from the house. She also told him of the person she heard breathing heavily on the road. Kevin and his companion had a torch which they used to shine upon the person she heard breathing and identified him as Boke. She said she didn’t go to where Boke was. Kevin and his companion rushed to go and call Boke’s relatives to help. The relatives of Boke came and took him to hospital.
When cross-examined by Mr. Mwita Advocate PW5 said that Kevin and his companion called out the name of the deceased loudly but she was not close enough to know if he responded. She said she didn’t know if there was anyone else chasing Boke. Kevin and his companion came from different directions from the one that the deceased came and she didn’t see anyone else along the road. PW5 said she was not aware of any difference between the accused and the deceased and she did not know what killed the deceased.
PW6 No. 235801 PC Sebastian Matara from Getonganya Police Post recalled that on 16.1.2024 he was on patrol with his colleague PC Lucas Mwamba when he received phone call from Assistant Chief Ekerega Sub-Location that there was a school girl who was missing and the father had obtained a court order. They proceeded to Nyabokarange shopping centre where they met the Sub-Chief who made phone call to the father of the girl and he came in company of his son after 20 minutes. That they proceeded to the home of the young man who was suspected to be in custody of the girl. The young man was Musa Sigeri. That they identified themselves at the home and conducted search but they did not get him.
The Assistant Chief requested one young man to lead them to his grandmother’s home where they conducted search but did not get Moses. That they then started walking back to the center where they were to look for Musa’s father to help them locate the suspect but they didn’t find him. The Sub-Chief instructed the young man to go back home as they stood besides the road. That they told the Assistant Chief and the father of the missing girl to continue with search and give them information in case they find her. That they then left to go back to the camp.
That at about 10.30pm on the material night Zakaria the father of the missing girl came and reported that there were people from Sigurais home who wanted to burn his house. That he booked the report and informed their in charge. The in charge called OCS Kehancha Police Station asking for help. That the in charge told them that the person who had reported should be placed in the cells as he was suspect in murder that occurred in Nyabokerange. They arrested the suspect and upon conducting search they recovered 2 knives one long and one short. OCS Kehancha Police Station sent a vehicle to collect the suspect. The old man they were assisting to search his missing daughter was identified as the suspect in the dock. PW6 said he did not establish the relationship between the accused and Boke. It was at about 7.45pm to 8pm. He said that they parted with the accused at the centre about 10 metres from the bar. He said he was on duty and he was armed. The accused had 2 knives which they recovered from his body.
When cross-examined by Mr. Mwita Advocate PW6 said that the young man who led them to his grandmother’s place and to the centre was not known to him by name. The Assistant Chief told him to go back home and he left. He said they did not meet with the deceased and he was not known to him. That they went to the home of Sigirai who is the father of Musa. The home of the deceased did not feature in their search for Musa and the missing girl. He said he did not see the deceased at the centre and he did not see him enter the Nyamokerange bar. It was not the first time he was going to the centre. The bar is within an enclosure with a gate. He said he had never seen a security guard at the gate of the bar. He said he was the one at the office when the accused went and reported there were people who wanted to burn his home. He didn’t say he was coming to surrender. That they got order from OCS to detain the accused. His complaint was not investigated by PW6. DCI people conducted investigations. The accused was armed with a long knife and a short knife. It was usual to find one armed in Kuria land.
In re-examination by Mr. Oimbo PW6 said that he did not meet the deceased as he did not know him.
PW7 No. 74570 Corporal John Njogu of DCI Kuria West Kehancha office testified that he was the one who nvestigated the offence herein. He recalled that on 16th January 2024 at about 10.30pm he received phone call from CID Makana who informed him there was murder incident in Nyabokerange. That in company of Sergent Loreen, Corporal Longet and PC Buya they proceeded to Nyabokerange village and at the centre they found a crowd gathered on the road. They were informed and shown the area where the deceased had fallen but he had already been taken to hospital. That they started gathering information and they learnt that the deceased was stabbed by one old man known as Zachary. While at the scene the DCIO called and informed them that the suspect had surrendered at Getonganya Police Post. That they rushed to the Police Post where they learnt the suspect had gone to report that there were people who wanted to attack his home. The officers at the post learnt he had stabbed someone and he was detained. The officers handed to them 2 masai swords and one which was long and the other small. The members of public were enraged and after collecting the suspect they took a different route to Kehancha Police Station where they put the suspect in cells. They thereafter went back to the hospital where they found the body of the deceased. They took the body to Kuria West Sub-County Hospital Mortuary for preservation. That he was assigned the duty to investigate the murder and he looked for witnesses and recorded their statements.
PW7 said that he learnt that on the material day the accused had taken a letter to the police to assist him look for his missing daughter. In the evening in company of Assistant Chief and the police from Ikerege they went to the home of Sagurai where the girl was suspected to be cohabiting with Sagurai’s son. They searched for the 13 years old girl but did not find her. When they didn’t get the boy and the girl, they proceeded to the centre in company of the son of Sagurai. The officers, Assistant Chief and Zachary parted ways at the centre. The accused and his son entered Nyabokerange bar in the centre and it is said that is where commotion started when the deceased also entered the bar. It was said the deceased person was armed with a stick and when he was overwhelmed, he started running away but he slipped and fell and when the accused caught up with him, he stabbed him on the back. The deceased was a brother to Musa’s father. That Musa is the one who was said to have eloped with Zachary’s daughter. That when the deceased was stabbed, he stood and started running again but he fell. He was rushed to hospital where he died. When post mortem was done it was established, he died due to massive bleeding. IPW7 witnessed the post mortem. There is one witness who was an eye witness William Chacha. He was at the scene. There was also another woman who witnessed the incident. PW7 did forward the file to ODPP for recommendation to charge.
When cross-examined by Mr. Mwita Advocate PW7 said that William Chacha Mosenda and Lucia were eye witnesses to the murder and he did record statements of the 2 witnesses. Lucia was outside of her house which is near the road when the incident happened. Lucia told them she was a witness unless she has changed her mind. William Mosenda also witnessed the incident at the bar. PW7 said that he did not know the watchman called Nyangoko. The watchman’s statement was not recorded. He declined to record a statement and they could not force him. It is true that the security guard’s evidence would have been crucial. The incident didn’t take place within the bar. According to his covering report the accused, Assistant Chief and the police officers met the deceased and the accused snatched a knife from the deceased. He said he did not know where the knife which was used to stab the deceased came from. The said knife was not recovered. If the knife had been recovered, they would have forwarded it to Government chemist laboratory. The witnesses explained that the knife the accused snatched from the deceased is the one that was used to stab him. PW7 said that it was his duty to establish the murder weapon but he did not recover any. At the police post 2 swords were handed over to him but he had not produced them as they were not used to commit murder. The murder weapon was not recovered either from the accused or anywhere else. Most of the prosecution witnesses are related to the deceased. The accused person had been issued with a letter to assist in tracing his daughter. He said he did no establish if the accused person and the family of the deceased had any differences. The accused person did not meet with the deceased when they went to the home of Sagirai. The Assistant Chief said the accused person snatched a knife from the deceased. The accused person is coordinator of council of elders. He said he knew the accused person prior to this incident and he had not received any complaint against him. The accused had been given a letter from the children’s office. He said he did not establish evidence trail of the deceased for the entire day up to the time that he was stabbed. It is William Chacha Mosenda who witnessed the accused stab the deceased at the back.
In re-examination by Mr. Oimbo the Investigating Officer said that the accused was known to him as coordinator of council of elders. He was an outstanding citizen and he had no reason to fabricate him. He was charged after investigations. William Chacha is not related to the deceased. On arrival at the scene at night they did not find the
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The particulars are that Zachary Gati Marwa on 16th day of January 2024, at Nyabakarange village in Kuria West Sub-County in Migori County murdered Samson Boke Boke.
The prosecution tendered evidence of 9 witnesses and PW1 Mutogori Daniel Bungote testified that he 36 years old and Assistant Chief of Ikerege Sub-Location. He said he had been Assistant Chief for 3 years. He said his duties include resolving small disputes within the sub location at barazas. He said he keeps law and order in the Sub-Location.
PW1 recalled that on 16th January 2024 he reported on duty at 8.00am and started working. At around 3.00pm he received a reportee Zachary Gati Marwa a resident to his Sub-Location. He is the accused herein. He had a letter from Children’s Office directed to Assistant Chief. He handed over the letter to him. That in the letter he learnt that Zachary’s daughter Mitchele Boke Gati had eloped to go and marry. That he interrogated Zachary who told him there was a young man known a Musa Sagirani who was involved with the daughter. Zachary had reported the matter at Getonganya police post in Kuria West. PW1 told Zachary that he would talk to the officers at Getonganya to assist in arresting Musa Sagurai who was said to have eloped with the girl. The girl was a school pupil. Musa was a resident of Nyabokorange. That he talked to the post and PC Matara and PC Mwamba went to him at 8.00pm. That he called Zachary to lead them to the home he suspected his daughter was being kept and he came with his son Joel. We accompanied the officers to Musa Sagurai’s home. Sagurai is Musa’s father. Musa was staying in his father’s homestead.
On arrival they didn’t find Musa but they found Musa’s mother and another son Magera. The mother told them that her husband was at the centre. Magera led them to a boda boda stage to find out where Sagurai was suspected to be but they didn’t find him. PW1 then instructed Magera to go back home and they then told Zakaria to continue with investigations and if he finds any clue, he should tell them. PW1 also agreed with the officers to go back to the home at 2.00am and lay ambush at Sagurai’s home. The officers went back to the post and they went back home as Zakaria and Joel went home. PW1 said he stays 50m from the road. That while he was at home, he heard noise. People were making noise and saying Boke had been stabbed. Boke was known to him. He proceeded to scene and heard that it was alleged that Zakaria had stabbed Boke and members of public wanted to go and set Zakaria’s home on fire. He made phone call to Zakaria who told him he had gone to seek help from Getonganya police post. That he made phone call to Deputy County Commissioner and OCS Kehancha and told them what was going on. Police officers came and calm returned. PW1 said that he didn’t see the deceased and Zachary didn’t tell him if he had differences with Boke. The name he gave me was in the name of Musa Sagurai.
On 18th January 2024 PW1 went to Kehancha DCI and recorded a statement. He said they were not able to trace Zachary’s daughter. The search was scuttled by the murder.
When cross-examined by Mr. Mwita Advocate PW1 said that he didn’t meet with Boke when they went to search for Zachary’s daughter. He said that when they didn’t find Musa, his father and Zachary’s daughter he went back to his house. When they parted ways, everyone went to their respective homes. That he had hardly taken 30 minutes from the time he parted ways with Zakaria when he heard the noise. He said he called Zakaria and he told him he had gone to seek for help from police post. The following day he learnt the deceased was found lying on the way to his home. It is not true that he witnessed Boke being murdered.
PW2 Benson Sagirai Boke said he was 19 years old and a student at Nyabokorange secondary school in Kuria in form II. He said he was a day scholar.
That on 16th January 2024 he recalled he was at home at about 8.00pm with his mother – step mother Veronica Nyangi and her 3 children aged 5, 3 and 1 years old. That they were eating when Assistant Chief, Mzee Zachary and his son Joel together with 2 officers went to their home. He said that Mzee Zachary was known to him and he is in the dock. He hails from their village. Mzee Zachary asked “Mrisha” what it your name and he told him he was Benson. He asked him who is Musa and he told him Musa is his brother. Zachary then asked “Huyu kijana anaitwa Musa ako na kilo ngapi?” PW2 told him he didn’t know. He said that Musa was his younger brother and was 17 years old. They started searching for Musa and didn’t get him. They told him to accompany them. They wanted him to take them to his uncle’s place. They went to his grandmother’s home which is approximately 90m and when they entered the house Zachary told his grandmother “Mmeanza kuchezea familia yangu? Mtaona”. MPW2’s grandmother was told they were looking for Musa.
That from his grandmother’s house he was instructed to take them to his uncle’s place about 150m. That they got to a bar at Nyabokarange centre and they stopped. They were still with Assistant Chief, Zakari, Joel and 2 officers. The police officers stopped and talked. He said he was with Mzee Zakari aside. When police officers left Mzee Zachary and the Assistant Chief remained standing. Mzee Zachary told Assistant Chief and his son Joel to go to his uncle’s place and check if Musa was there as he remained with Mzee Zachary outside the bar. When he remained with Mzee Zachary he told him to go home.
On the way home he met his uncle Samson Boke at the junction to their home. He told PW2 he was feeling hungry and PW2 bought ground nuts for Kshs. 20 and they ate. After eating groundnuts at boda boda stage they started telling stories. At 8.30pm they decided to go home. PW2 said that he accompanied his uncle back to the junction where they had met. He then told him they go to the bar and borrow a phone to make a call to a certain girl. When they were about 30 meters from the bar, he slowed down to allow his uncle get into the bar and borrow a phone and make his calls. That his uncle arrived at the bar as he was 30 meters away. There was security lights and he saw Zachary walking up and down outside the bar. That he then heard his uncle ask Mzee Zachary about his knife. Mzee Zachary retorted “Yaani mmeniolea mtoto wangu alafu mnakuja hapa kunisumbua” Mzee Zachary raised a stick to beat Boke but Boke held it but he staggered and fell as he was drunk. The stick was about one meter long. When Boke fell Mzee Zachary stabbed him on the back with a knife. That he was shocked on seeing Zachary stab Boke. When Boke was stabbed he stood and started running. Due to shock PW2 also started running on the opposite direction as Mzee Zacahary was pursuing Boke towards where we had come from and he went round and found some two young men Kevin and another had gone to inform people at home. That he met his father Saguria Boke and Sammy Boke going to scene and he joined them to where Boke had fallen. That they found he was not breathing. That he and Chacha took Boke to the hospital using a motor bike to Getontira hospital where Boke was admitted. The doctor told him to call people from home as the patient needed to be transferred to Migori. As he wanted to make phone call the doctor called him inside the ward and he was told that Boke had died. Members of their family came to the hospital. Police came the following day and recorded his statement. PW2 said he didn’t understand Zachary’s remarks that “mmeniolea mtoto wangu alafu mnakuja hapa kunisumbua”. He didn’t see accused stab Boke again.
In cross-examined by Mr. Mwita Advocate PW2 said that he took the deceased to hospital and he was admitted for treatment. That he was asked the name of the patient and also his name. He said he was not given the records of the hospital. He said he was ushered out of the ward when the patient was being examined and he did not know what happened. That when they found his uncle lying on the ground besides the road, he and Chacha and a boda boda rider also known as Chacha took him to the hospital. At scene his father David Sigurai, Sammy Gimase his uncle, Chacha, Chacha Musenda and others were present. According to PW2 Boke was not breathing and according to him he was dead. He said he had no expertise to confirm when one is dead. He said he felt the deceased had no pulse and was not breathing. They took Boke to hospital as he may just have been unconscious. The doctor confirmed Boke was dead. It is doctor who declared Boke was dead. It is after the doctor had declared that Boke had died that he started mourning. The body was taken to Kehancha where post mortem was done and thereafter released for burial. The deceased was stabbed on the back spinal cord. He said he didn’t read the post mortem report and he didn’t ask the cause of death. He said he saw the deceased being stabbed on the back. He said he did not know use of spinal cord. He said he didn’t see people where Zacharia and the deceased were exchanging. Zacharia was armed with knife and stick. When Boke held the stick and fell, Zachary stabbed him with a knife. The distance from boda boda stage to bar is about 80m. The bar is besides the road. He said he can’t tell if anyone else saw Zacharia stab deceased as he concentrated on the deceased and Zakaria. Boke asked Zacharia for his knife. He didn’t see Zacharia take Boke’s knife. He told police Zacahary was armed with a stick when he came to our home. He said he had not seen the stick Zacharia was armed with and he had not seen the knife used to stab the deceased. That when he saw Zacharia stab the deceased he ran towards the opposite direction and went round to where he had met his uncle. He said he met his uncle and father. It took about 7 minutes to go round back to the junction from his home. The people from home went directly to scene after they got report his uncle had been stabbed. PW2 said he did not know what Boke was using the knife for. Zakaria was a respectable elder in the village as at 16th January 2024.
In re-examination by Ms. Ikol PW2 said he witnessed Zakary stab the deceased. He said he didn’t count people at scene as he concentrated on Zachary and Boke. He said he was with Chacha Mosenda and another Chacha when they took Boke to hospital. The doctor attended to Boke. He said he saw the accused stab the deceased on the spinal cord. The accused was armed with a stick when they came home. He said he was not the one who told his father about the incident and he did not know how they got the information
PW3 Sammy Nyamohanga Boke testified that he was 32 years old and a boda boda rider. He said he was ward chairman Bukira central Bokirege Ward boda boda riders. He said his duties include resolving disputes among boda riders and customers. He said that on 16th January 2024 he had come from Ikerege stage and went to Nyabokarange stage where he was taking coffee with colleagues. He said he was with Chacha, Sando, Chamugosi, William Musenda and the coffee vendor. That they were also with Moses Morenge among others. He said they were about 10 people and they were just taking coffee with groundnuts and catching up with each other. While there they saw 2 officers, Zachary Marwa the accused herein, Joel, Zacharia’s son and Assistant Chief. They passed near the stage going on the upper part from where they were and turned right. That Samson Boke was standing at the junction. That he saw Zacharia search Samson Boke and removed a knife that Samson had. Samson wanted to resist but police officers calmed him down. The police officers then proceeded and left Samson at the junction. That he called Samson and asked what was the problem and Samson told him that Zachary searched him and took his knife. Boke is his step brother and was a boda boda rider. He used to carry the knife for security as there was rampant attacks on riders and they could use knife to protect each other. Boke didn’t know why he was being searched. Zachary came after about 15 to 20 minutes. Zachary started shining torch on each of us. When he got to PW3 he said “ hii ndio sehemu tumefikishana ns nyinyi?” That PW3 asked him what the problem was but he didn’t respond. That he called him again but he just walked away with Segera his younger brother’s son. Zachary and Segera left and walked for about 20 meters then Segera left Zachary and went where they were. That he inquired what the problem was and he told him that his younger brother had an affair with Zachary’s daughter. The boy is Musa. Musa was in same school with Zachary’s daughter. Segera told PW3 that Zachary went to their home and warned that his brother should leave his daughter alone. PW3 told Segera they ought to have reported so we deal with the matter.
Magera then left to go home. After a while Samson Boke came to the stage and told him Zachary had returned the knife but when I insisted he confirmed he had just remained with the sheath. He told him to leave Zachary alone. Boke then urged them to go home as it was late. That he then went home. After about 20 to 30 minutes, he received phone call from William Chacha Musendo who told him his brother had been stabbed and that Getentuo had refused to admit him. He urged PW3 to go and take him to another hospital. That he used his motor bike to go to Getontira dispensary where he found his brother had died and members of the family were crying/wailing. When he saw that Boke had died he made phone call to police officers at Ikerege police post. He also made calls to his father and he came.
My father and one brother used his motor bike to Kehancha where they made report. Police came and they went to scene. That his brother Robert and his father went to Getonganya police post. After 20 minutes he called his brother Boke Robert and he told him they had gone back to Kehancha. They told him they got Zachary at the police post and went with him to Kehancha. Later his brother and Zachary went to where they were. The body was taken to Kehancha hospital mortuary. They then went back home. When he went to scene where the body was, he saw blood at his back. PW3 said they were using light from their phones when Zachary came to where we were. The deceased wanted to resist when Zachary snatched knife from him but police officers told him not to resist. That he was across the stage when he saw Zachary snatch knife from deceased. The accused, Assistant Chief and Joel to stood outside the bar with police officers outside the bar for sometime before police left. Assistant chief, Zachary and Joel then entered the bar. Musa is his brother’s son. Musa’s father and the deceased are brothers from same father and same mother. He said he didn’t see Musa on the material day. Musa’s father’s home is near the dispensary where his home is on the lower part near another of Zachary’s home. That they went to DCIO’s office and recorded statements and gave names of suspects. PW3 said that he is the second son to his father after Musa’s father. As a family they sat down and agreed to let the law take its course. There was no attempt to set Zachary’s home on fire.
When cross-examined by Mr. Mwita Advocate PW3 said that It is Musenda who told him his brother had been stabbed. He made a phone call. PW3 said he was with the deceased when he urged them to go home as it was late. When the accused and police officers as well as Assistant Chief and Joel were across the road the other boda boda riders who were at the stage saw what had happened. What he recorded in his statement is what he saw. It is Zachary who shone torch on them. My statement to police indicates Assistant Chief started lighting his torch checking on each of them when Zachary shone torch on him and asked “hii ndio tumefikishana” That he spoke in Kiswahili and the police officers recorded for him his statement. The statement was read to him by police after it was recorded and he signed. He said he did record the statement one day after his brother died and he was confused and that may be the reason why he said it was Chief instead of Zachary who shone torch on him. PW3 said he can’t lie in court. It is not the Assistant Chief who shone light on them. It is not Assistant Chief who shone light on them. It is Zachary who shone light on him and other riders. The rest of the statement and what he had said is the truth. He said he spoke to Musenda and he told him what happened. That he accompanied police to scene. Zachary was not at scene. He said he knew other witnesses in this matter. 3 of the witnesses are not related to the deceased. He said he did not witness the deceased being stabbed. It is only him and Benson who are related.
In re-examination by Ms. Ikol PW3 said that it is the accused who shone torch on them and spoke to him. He said they operate from same stage with Mosenda.
PW4 Robert Menganyi testified that he was a businessman at Ikerege and lived in Naora in Kuria West Sub County. He recalled that on 16th January 2024 he had come from work and on arrival at home at about 9.00pm he received phone call from his brother Sammy Boke Nyamohanga who reported to him that his brother Samson Boke had been stabbed with a knife and he had died. That he took his motor bike and together with their father they proceeded to Getonkera hospital where their brother had been taken for first aid. On arrival he saw the body of his brother lying on a blood-soaked bed. That in company of his brother Nyamohanga and their father they went to Kehancha Police Station where they made a report. Police officers accompanied them to the scene of the incident and they conducted their investigations after which they went to Getonganya Police Post where the suspect was removed from the cells. He identified the Accused person as the suspect. PW4 said he did not know how the suspect was arrested and where he was arrested from. He later recorded his statement.
In cross-examination by Mr. Mwita Advocate PW4 said that he recorded his statement the following day after the incident. That he did inform the police about what is in the statement. He said he was not present during the incident but he was told the accused is the one who stabbed his brother and thereafter surrendered to the police. He said he did not have evidence that the accused met at the home of the deceased. He said that what he had said is what he was told. He said he found the accused at the police station and he was not present when he surrendered at the police post and he could not tell how he got to the police post. He said the deceased was his brother and he was interested in getting justice for him.
PW5 Lucia Juma testified that she was a farmer and she came from Nyabokarage.
On 16th January 2024 she recalled at about 9.00pm she had differed with her husband who was drunk and he chased her out of the house. She said her house is next to the road. That she got out of the house and went to the back of the house and stood at the veranda wondering where to go and sleep. After a short while she heard someone scream once and then it was quiet. The person who screamed appeared to have been running. That she feared and didn’t go to see who it was. She said she could not tell if the scream was made by a man or woman. Because of fear she went to the back of the house. The scream was of a person in distress. It appeared like people were fighting. After some time when calm returned, she went back to where she was initially. She said she did not follow to know what the scream was about. After sometime she heard someone breathing heavily but she didn’t go to where the person breathing was. Later she heard 2 young men talk on the road as they were going towards the lower part. The 2 young men were Kevin and another. That she called Kevin and told him that her husband had chased her from the house. She also told him of the person she heard breathing heavily on the road. Kevin and his companion had a torch which they used to shine upon the person she heard breathing and identified him as Boke. She said she didn’t go to where Boke was. Kevin and his companion rushed to go and call Boke’s relatives to help. The relatives of Boke came and took him to hospital.
When cross-examined by Mr. Mwita Advocate PW5 said that Kevin and his companion called out the name of the deceased loudly but she was not close enough to know if he responded. She said she didn’t know if there was anyone else chasing Boke. Kevin and his companion came from different directions from the one that the deceased came and she didn’t see anyone else along the road. PW5 said she was not aware of any difference between the accused and the deceased and she did not know what killed the deceased.
PW6 No. 235801 PC Sebastian Matara from Getonganya Police Post recalled that on 16.1.2024 he was on patrol with his colleague PC Lucas Mwamba when he received phone call from Assistant Chief Ekerega Sub-Location that there was a school girl who was missing and the father had obtained a court order. They proceeded to Nyabokarange shopping centre where they met the Sub-Chief who made phone call to the father of the girl and he came in company of his son after 20 minutes. That they proceeded to the home of the young man who was suspected to be in custody of the girl. The young man was Musa Sigeri. That they identified themselves at the home and conducted search but they did not get him.
The Assistant Chief requested one young man to lead them to his grandmother’s home where they conducted search but did not get Moses. That they then started walking back to the center where they were to look for Musa’s father to help them locate the suspect but they didn’t find him. The Sub-Chief instructed the young man to go back home as they stood besides the road. That they told the Assistant Chief and the father of the missing girl to continue with search and give them information in case they find her. That they then left to go back to the camp.
That at about 10.30pm on the material night Zakaria the father of the missing girl came and reported that there were people from Sigurais home who wanted to burn his house. That he booked the report and informed their in charge. The in charge called OCS Kehancha Police Station asking for help. That the in charge told them that the person who had reported should be placed in the cells as he was suspect in murder that occurred in Nyabokerange. They arrested the suspect and upon conducting search they recovered 2 knives one long and one short. OCS Kehancha Police Station sent a vehicle to collect the suspect. The old man they were assisting to search his missing daughter was identified as the suspect in the dock. PW6 said he did not establish the relationship between the accused and Boke. It was at about 7.45pm to 8pm. He said that they parted with the accused at the centre about 10 metres from the bar. He said he was on duty and he was armed. The accused had 2 knives which they recovered from his body.
When cross-examined by Mr. Mwita Advocate PW6 said that the young man who led them to his grandmother’s place and to the centre was not known to him by name. The Assistant Chief told him to go back home and he left. He said they did not meet with the deceased and he was not known to him. That they went to the home of Sigirai who is the father of Musa. The home of the deceased did not feature in their search for Musa and the missing girl. He said he did not see the deceased at the centre and he did not see him enter the Nyamokerange bar. It was not the first time he was going to the centre. The bar is within an enclosure with a gate. He said he had never seen a security guard at the gate of the bar. He said he was the one at the office when the accused went and reported there were people who wanted to burn his home. He didn’t say he was coming to surrender. That they got order from OCS to detain the accused. His complaint was not investigated by PW6. DCI people conducted investigations. The accused was armed with a long knife and a short knife. It was usual to find one armed in Kuria land.
In re-examination by Mr. Oimbo PW6 said that he did not meet the deceased as he did not know him.
PW7 No. 74570 Corporal John Njogu of DCI Kuria West Kehancha office testified that he was the one who nvestigated the offence herein. He recalled that on 16th January 2024 at about 10.30pm he received phone call from CID Makana who informed him there was murder incident in Nyabokerange. That in company of Sergent Loreen, Corporal Longet and PC Buya they proceeded to Nyabokerange village and at the centre they found a crowd gathered on the road. They were informed and shown the area where the deceased had fallen but he had already been taken to hospital. That they started gathering information and they learnt that the deceased was stabbed by one old man known as Zachary. While at the scene the DCIO called and informed them that the suspect had surrendered at Getonganya Police Post. That they rushed to the Police Post where they learnt the suspect had gone to report that there were people who wanted to attack his home. The officers at the post learnt he had stabbed someone and he was detained. The officers handed to them 2 masai swords and one which was long and the other small. The members of public were enraged and after collecting the suspect they took a different route to Kehancha Police Station where they put the suspect in cells. They thereafter went back to the hospital where they found the body of the deceased. They took the body to Kuria West Sub-County Hospital Mortuary for preservation. That he was assigned the duty to investigate the murder and he looked for witnesses and recorded their statements.
PW7 said that he learnt that on the material day the accused had taken a letter to the police to assist him look for his missing daughter. In the evening in company of Assistant Chief and the police from Ikerege they went to the home of Sagurai where the girl was suspected to be cohabiting with Sagurai’s son. They searched for the 13 years old girl but did not find her. When they didn’t get the boy and the girl, they proceeded to the centre in company of the son of Sagurai. The officers, Assistant Chief and Zachary parted ways at the centre. The accused and his son entered Nyabokerange bar in the centre and it is said that is where commotion started when the deceased also entered the bar. It was said the deceased person was armed with a stick and when he was overwhelmed, he started running away but he slipped and fell and when the accused caught up with him, he stabbed him on the back. The deceased was a brother to Musa’s father. That Musa is the one who was said to have eloped with Zachary’s daughter. That when the deceased was stabbed, he stood and started running again but he fell. He was rushed to hospital where he died. When post mortem was done it was established, he died due to massive bleeding. IPW7 witnessed the post mortem. There is one witness who was an eye witness William Chacha. He was at the scene. There was also another woman who witnessed the incident. PW7 did forward the file to ODPP for recommendation to charge.
When cross-examined by Mr. Mwita Advocate PW7 said that William Chacha Mosenda and Lucia were eye witnesses to the murder and he did record statements of the 2 witnesses. Lucia was outside of her house which is near the road when the incident happened. Lucia told them she was a witness unless she has changed her mind. William Mosenda also witnessed the incident at the bar. PW7 said that he did not know the watchman called Nyangoko. The watchman’s statement was not recorded. He declined to record a statement and they could not force him. It is true that the security guard’s evidence would have been crucial. The incident didn’t take place within the bar. According to his covering report the accused, Assistant Chief and the police officers met the deceased and the accused snatched a knife from the deceased. He said he did not know where the knife which was used to stab the deceased came from. The said knife was not recovered. If the knife had been recovered, they would have forwarded it to Government chemist laboratory. The witnesses explained that the knife the accused snatched from the deceased is the one that was used to stab him. PW7 said that it was his duty to establish the murder weapon but he did not recover any. At the police post 2 swords were handed over to him but he had not produced them as they were not used to commit murder. The murder weapon was not recovered either from the accused or anywhere else. Most of the prosecution witnesses are related to the deceased. The accused person had been issued with a letter to assist in tracing his daughter. He said he did no establish if the accused person and the family of the deceased had any differences. The accused person did not meet with the deceased when they went to the home of Sagirai. The Assistant Chief said the accused person snatched a knife from the deceased. The accused person is coordinator of council of elders. He said he knew the accused person prior to this incident and he had not received any complaint against him. The accused had been given a letter from the children’s office. He said he did not establish evidence trail of the deceased for the entire day up to the time that he was stabbed. It is William Chacha Mosenda who witnessed the accused stab the deceased at the back.
In re-examination by Mr. Oimbo the Investigating Officer said that the accused was known to him as coordinator of council of elders. He was an outstanding citizen and he had no reason to fabricate him. He was charged after investigations. William Chacha is not related to the deceased. On arrival at the scene at night they did not find the
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