Skip to content
JudgmentVS RASHID SALIM SALIM AND JONES MWAMBINGU MUNGEREZA AND 2 Others18 min read

VS RASHID SALIM SALIM AND JONES MWAMBINGU MUNGEREZA AND 2 Others

High Court at Voi High Court · · Asenath Ongeri

  1. The four accused persons in this case, HENRY NGINGO MWACHALA, MATHEW MAGENDA MWACHALA, JONES MWABINGU MUNGEREZA and RASHID SALIM SALIM are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.
  2. The particulars of the charge were that on 10th March 2021 at Ngilinyi village, Wundanyi Sub County within Taita Taveta County, the four Accused Persons murdered FRANCIS MWAKIO MWAKITOI.
  3. The Accused Persons pleaded not guilty to the charge and they were represented by Mosioma Advocate for (Accused 1, Accused 2 and Accused 3) and Orina Advocate (for Accused 4) at the trial.
  4. The prosecution evidence was that PW1, JACKSON WACHENJE NYALI was asleep in his house on 10th March 2021 at around 2:30a.m when he heard some noise outside.  He said he woke up and heard a voice speaking with a high voice saying he had caught a witch and he will burn him.
  5. PW1 said he recognized the voice as that of the 1st Accused Person HENRY NGINGO MWACHALA.  He went to the scene where he saw Accused 1, Accused 2, Accused 3 and Accused 4.
  6. PW1 said Accused 1 was collecting firewood and putting it on a person lying down.  He used his phone to torch the person and saw it was the deceased FRANCIS MWAKIO MWAKITOI.
  7. PW1 said he asked why they wanted to burn the deceased and they said he was a witch.  PW1 said he saw Accused 2 stepping on the deceased.
  8. PW1 said he asked Accused 2 for the phone number of the Chairlady and he called her and told her that some people wanted to burn the deceased.  The Chairlady said she would call the Sub-Chief.  The Sub-Chief called PW1 and told him to tell the people not to burn the deceased but they did not listen.
  9. PW1 said the deceased was quiet.  He said the deceased tried to escape but the Accused Persons set him on fire.  PW1 said he went away.  One Jackson Mwakitoi went to his house and told him the deceased had been burnt to death.
  10. In cross-examination PW1 said he is related to Accused 1, Accused 2, Accused 3 and Accused 4.  He said he knew all the Accused Persons well.  He said during the incident one person called Hassan Mwawasi went to the scene and he again left.  He said when he arrived at the scene, he greeted at the accused Persons who are his cousins.  He said Accused 1 and Accused 2 stepped on the deceased.
  11. PW1 said further in cross-examination that by the time he left the fire had not been lit but  he did not see who lit the fire.
  12. PW2 GRACE MKAKODI TANGANYIKA who is the village Chairperson said PW1 called her on the material day at 2:40a.m and told her that Accused 1 wanted to burn the deceased.  She called the Assistant Chief and told him to call the police.  PW2 said she could not go out since it was at night.
  13. She said in the morning when she went to the scene she found the body of the deceased at the scene with burns on the upper body.  She said she was present when police collected the body.
  14. PW3 NEVILLE MWAKESI MWANGALA who is the area Assistant Chief said he knew the deceased as his village mate.  He said Accused 1, Accused 2 and Accused 3 were his cousins and Accused 4 a son to his cousin.
  15. PW3 said on the material day at 2:30a.m he was called by the Chairlady who told him Accused 1, Accused 2, Accused 3 and Accused 4 wanted to lynch the deceased.  He asked her how she knew and she told him PW1 had told her.  PW3 called PW1 and told him to tell the Accused Persons that the law did not permit them to kill anyone but they did not listen.
  16. PW3 said he managed to go to the scene at 6a.m. and found the deceased dead.  He called the OCS and OCPD and the body was collected from the scene and the Accused Persons were arrested.
  17. PW4 DR SHEM JEREMIAH, the Medical Superintendent at Moi Referral Hospital did the post morterm on the body of the deceased on 13th October 2021.  He said the cause of death was right sided collapse of the lung due to severe dehydration, carbon monoxide following burning causing trauma.
  18. PW5 No. 80022 SERGENT BENSON INGOSI who is the Scenes of Crime Officer said on 11th March 2021, he received instructions from the Regional Commander Coast Region to proceed to the scene where he met the DCIO Wundanyi.
  19. PW5 proceeded to the scene where he took photographs which processed and produced as exhibits in this case.  He also produced a certificate dated 10th May 2021.
  20. PW6, No. 70798 SERGENT GREGORY SININO KATOLA who investigated this case took the statements of the witnesses and charged the four Accused Persons with this offence.
  21. The Judge made a ruling that all the four Accused Persons have a case to answer.  This court took over this case at this stage and having complied with Section 200, all the Accused Persons opted to have the case proceed from the stage the previous court had reached.
  22. In their defence, the Accused Persons testified as follows.  Accused 1 who testified as DW1 said he is a farmer and he also burns charcoal.  He said he lives at Wundanyi in Taita Taveta with his wife and two children.
  23. Accused 1 said he knew the deceased who used to hawk cooking sticks.  Accused 1 said on 10th March 2021 he was working with Accused 4 RASHID SALIM at RASHID SALIM’s brother’s place burning charcoal.  They finished at 2p.m.
  24. Accused 1 said at 5p.m, Accused 4 called him and told him that they had been paid for the work they had done.  They bought miraa and went to the house of Accused 1 where they chewed miraa upto 1p.m.
  25. At 1p.m, they decided to go to the place they had burnt charcoal.  He said on the way about 100meters away, he saw Jackson Mwakitoi, albert Mwawasi, Jackson Washenge and Mwalumbu and Mwabwenge.
  26. Accused 1 said he saw a man seated down.  He asked what the man had done and he was told the man was a witch.  He told them to call the Chairlady.
  27. Accused 1 said he told PW1 to go to his brother’s house to ask for the number of the Chairlady.  PW1 rang the Chairlady and she said she could not come out as it was late.
  28. Accused 1 said he was hit on the head and he realized that the people would hurt him and he went to his house.  His wife wiped the blood on him and he slept until the following day when he went to charge his phone.
  29. He said he met the Assistant Chief while he was going to charge his phone.  He talked with the Assistant Chief and later he was told to go back to the scene where he found a lot of people.  He was tied with ropes together with his brother and Mungereza.
  30. Accused 1 said he had land disputes with PW1.  He said had bruises on his hands from burning charcoal.  He also said he had a lighter in his pocket because he smokes.
  31. He said Albert Mwawasi was at the scene and he was not called to testify.  He also said there were many neighbours where he was arrested and they were also not called as witnesses.  He said he was involved in this case and that he was framed because of the land disputes.
  32. Accused 2 testified as DW2.  He said he stays at Choke sub Location.  He said he stays alone since his family left.  He said he farms and also keeps chicken.
  33. Accused 2 said he knew the deceased whom he used to meet at funerals.  He said PW1 is his cousin whom he has stayed with since he was born.
  34. Accused 2 said he had land disputes with PW1 and that PW1 had gone 3 times to his house to ask to be given a portion of land to cultivate but accused 2 refused to give him.
  35. Accused 2 said when he gave PW1’s brother a piece of land.  PW1 started having a grudge.
  36. He said the dispute started in the  year 2000.  When Accused 2 removed the brother he said PW1 came back in 2017. 
  37. Accused 2 said on 10th March 2021, he went to the shamba where he worked and he returned home, cooked, ate and slept.  He said his friend called Claudy Mwachawi called him and asked him what was happening near his home.
  38. Accused 2 said PW1 went to his house and asked for the number of the chairlady.  He told him that there was  a witch near his home.  Accused 2 said he went to the scene where he saw Henry Ngingo (Accused 1) Jackson Mwakitoi and Justice Mwalumbo.  He said there were other people but those were the ones he could identify.
  39. Accused 2 said all the people he saw at the scene were drunk.  He gave PW1 the number of the Chairlady and he called her.  She said she would not come since it was late.  He went back to his house and slept.
  40. He was arrested the following morning after he had milked his cow and cut grass for the cow.  He was arrested with Mwabingu and Henry Ngingo.
  41. Accused 2 said there were other people at the scene who were not arrested.  He said he was arrested because he had a land dispute with PW1.
  42. Accused 3 testified as DW3.  He said stays at Kinyesha Mvua.  He said he retired in 2015.  Accused 3 said he does not know anything about this case.  He said he had gone to take miraa from Accused 2 when he was arrested.
  43. Accused 4 testified as DW4.  He said he stays at Mbale.  Accused 4 said on the material day he was with Accused 1 working for his brother.
  44. When the construction work was stopped, Accused 4 said he went with Accused 1 to burn charcoal and they parted at 2p.m.
  45. Accused 4 said later he received payment for the work they did for his brother and he called Accused 1 and they went to the shopping centre.  They went to watch games and stayed at a club from 5 to 7p.m.
  46. He said they stayed at a club up to 10p.m when they went to the home of Accused 1 where they stayed chewing miraa upto midnight.
  47. Accused 4 said he left the home of Accused 1 at 2a.m.  He was tired and he wanted to go home.  The Accused 1 was escorting him when they met someone on the way.  Accused 4 said he did not know the person.
  48. Accused 4 said he heard Accused 1 asking the person what he was doing there.  He said he heard Accused 1 shouting “a witch”.
  49. Accused 4 told Accused 1 to leave the person alone but Accused 4 continued shouting “a witch”.  Accused 4 said he saw PW1 coming to the scene and calling the police or the Government.
  50. He said he stood aside and he did not know what was happening.  He said he left the scene and went away and he was arrested the following day.  Accused 4 said he did not see the deceased being burnt.
  51. The parties filed written submissions as follows:-
  52. The prosecution submitted that the accused persons are guilty of murder beyond a reasonable doubt and further that the prosecution has fulfilled all the legal elements required under Section 203 of the Penal Code.
  53. That the prosecution presented six witnesses whose testimonies collectively establish the death of the deceased, Francis Mwakio Mwakitoi, through severe burns, chest trauma, and carbon monoxide poisoning, as confirmed by a post-mortem report and photographic evidence.
  54. Further, that the witnesses, including PW1, PW2, and PW3, identified the accused at the crime scene, with PW1 testifying that he saw the accused setting the deceased on fire after declaring their intent to kill him for allegedly being a witch.
  55. The prosecution relies on the doctrine of common intention, asserting that all accused participated in the unlawful act, whether directly or by failing to intervene, as supported by case law (Republic v J M & 2 others).
  56. Additionally, that the "last seen" doctrine applies, as the accused were the last individuals with the deceased before his death, and they failed to provide a plausible explanation for his demise (Musimbi v Republic).
  57. That malice aforethought is evident from the accused’s deliberate actions—piling firewood on the deceased, igniting it, and pursuing him as he tried to escape—demonstrating an intent to kill or cause grievous harm (Section 206, Penal Code).
  58. The prosecution further submitted that the accused’s attempts to shift blame to PW1 or cite land disputes should be dismissed as unsubstantiated afterthoughts, given their failure to raise these claims during cross-examination (Karanja v Republic).
  59. In conclusion, the prosecution urged the court to convict the accused, as the evidence overwhelmingly proves their guilt beyond a reasonable doubt.
  60. The written submissions on behalf of the 1st, 2nd, and 3rd accused persons argue that the prosecution has failed to prove the charge of murder beyond a reasonable doubt. The defense highlights several critical weaknesses in the prosecution's case. First, they contend that the identity of the deceased was not properly established, as none of the witnesses who identified the body during the post-mortem testified in court. The post-mortem report (PEX1) listed Jason Musurwa, Mwasi Benjamin, and Police Officer Benjamin Osman as identifiers, but none were called to confirm the body belonged to Francis Mwakio Mwakitoi. This omission creates doubt, as courts have emphasized the necessity of proper identification before autopsy (citing Republic v Samwel Mwita Kayanda [2020] eKLR and Fredrick Okarau Chesebe v Republic [2009] eKLR).
  61. Second, the Accused persons argued that the prosecution failed to link the accused to the death of the deceased. The sole eyewitness, PW1, provided inconsistent testimony—initially stating he did not witness the burning but later claiming he did. His account was uncorroborated, and key witnesses like Jackson Mwakitoi (who allegedly informed PW1 of the death) and Hurbert Mwawasi (present at the scene) were not called. PW1 also admitted he never saw the accused assault the deceased or light the fire. The defense asserts that PW1’s credibility is further undermined by his land dispute with the 1st and 2nd accused, suggesting a motive to implicate them.
  62. The Accused persons also challenged the forensic evidence. While PW4 conducted the autopsy, his findings (burn injuries to limbs) conflicted with PW3’s claim that only the upper body was burnt. The accused’s explanations for circumstantial evidence—such as the 1st accused’s burns (attributed to charcoal burning) and possession of a lighter (as a smoker)—were not rebutted. The 2nd accused’s cooperation (providing the village elder’s number to PW1) contradicts claims of malice, while the 3rd accused denied being at the scene altogether, with no evidence tying him to the crime.
  63. Ultimately, the 1st, 2nd and 3rd Accused persons submitted  that the prosecution’s case is riddled with gaps, inconsistencies, and a lack of corroborative evidence. Citing case law (e.g., Philip Nzaka Watu v Republic [2016] eKLR and Elizabeth Waithiegeni Gatimu v Republic [2015] eKLR), they stress that convictions cannot stand on contradictory or uncorroborated testimony.
  64. They asked the court to acquit them, as the evidence fails to meet the standard of proof beyond reasonable doubt.
  65. The 4th accused, Rashid Salim, submitted that he has been wrongly charged with the murder of Francis Mwakio Mwakitoi under Section 203 of the Penal Code. The prosecution called six witnesses, while the 4th accused gave sworn testimony. The key issue for determination is whether the prosecution has proved its case against him beyond reasonable doubt.
  66. He further submitted that the prosecution must establish three elements for a murder conviction: the death and its cause, the accused's unlawful act leading to death, and malice aforethought. While the death and cause (deep burns) were proven, the evidence does not show the 4th accused participated in the unlawful act.
  67. He further submitted that PW1, the assistant chief, testified that while the 1st and 2nd accused actively assaulted and set the deceased ablaze, the 4th accused was merely standing by and did not participate. PW4, the investigating officer, confirmed that the 4th accused was present but did not take part in the assault and had no burns or weapons.
  68. Additionally,  the 4th accused stated that is from a different location, had no prior interaction with the deceased, and had no motive to harm him.
  69. Since the prosecution failed to prove the 4th accused’s involvement in the killing or establish malice aforethought,  he submitted that the court should acquit him. The evidence overwhelmingly shows he was a passive bystander, not a participant. Thus, the charges against him should be dismissed.
  70. I have carefully considered the evidence adduced by the prosecution in this case.  It is the duty of the prosecution to prove the guilt of the Accused Persons.
  71. The standard of proof required in criminal cases is beyond reasonable doubt.
  72. The issues for determination in this case are as follows:-
    1. Whether the prosecution proved the guilt of the Accused Persons to the required standard.
    2. Whether  the prosecution proved malice aforethought.
    3. Whether the Accused Persons have a defence against the charge of murder.
  73. The ingredients of the charge of murder are as follows:-
    1. The death of the deceased.
    2. That the death of the deceased was unlawful.
    3. That in causing death there was malice aforethought on the part of the accused persons.
    4. That the accused persons were positively identified as the ones who caused or participated in the killing of the deceased.
  74. I find that there is evidence that PW1 was awakened by shouts.  PW1 said he recognized the voice of Accused 1 who he knew as a cousin.
  75. PW1 went to the scene where he saw Accused 1, Accused 2, Accused 3 and Accused 4 at the scene.
  76. I have carefully considered the evidence adduced by the prosecution and the testimonies of the Accused persons, as well as the written submissions filed by both parties.
  77. On the issue as to whether the Prosecution Proved the Guilt of the Accused Persons Beyond Reasonable Doubt, I find that the prosecution bears the burden of proving the guilt of the accused persons beyond reasonable doubt, as established in Woolmington v DPP [1935] AC 462 and reaffirmed in Kenyan jurisprudence, including Republic v Oliech & Another [2017] eKLR.
  78. In this case, the prosecution called six witnesses testified is support of the case.
  79. On the issue eath of the deceased, the fact of death was confirmed by PW4, Dr. Shem Jeremiah, who conducted the post-mortem and determined the cause of death as severe burns, dehydration, and carbon monoxide poisoning. This was corroborated by PW5, the Scenes of Crime Officer, who documented the scene through photographs.
  80. On the dentification of the Accused Persons, I find that PW1, Jackson Wachenje Nyali, testified that he saw all four accused persons at the scene.
  81. He recognized Accused 1 and Accused 2 who actively participating in piling firewood on the deceased and later setting him ablaze. PW2 (the village chairperson) and PW3 (the assistant chief) corroborated PW1’s account through phone calls made that night, confirming that the accused were present and involved.
  82. The Assistant Chief called PW1 and told him to tell Accused 1 and his co-accused to stop lynching the deceased but they did not listen to him.
  83. The evidence of PW1 was explicit.  He saw Accused 1 and Accused 2 stepping on the deceased who was lying down and piling firewood on him.
  84. PW1 also said he heard Accused 1 shouting “I have caught a witch and I am going to burn him”.
  85. There is evidence that the deceased died as a result of severe dehydration and carbon monoxide following burning.
  86. I find that the testimony of PW1 placed the Accused Persons at the scene of the crime.  PW1 knew all the Accused Persons and he was able to recognize them at the scene.
  87. PW1 said Accused 1, Accused 2 and Accused 3 are his cousins while Accused 4 is the son of his cousin.
  88. It was Accused 1 who started accosting the deceased calling him a witch.  Accused 1 was escorting Accused 4 when they met the deceased.  Accused 4 said he heard Accused 1 shouting “a witch”.  Accused 4 said he went away from the scene and he did not see the deceased being burnt.
  89. I find that Accused 1 and Accused 2 were properly identified at the scene.  In their defence, they said they had land dispute with PW1.  However, the said issue was not raised during cross-examination of PW1 and the same is an afterthought.
  90. Accused 1 called the deceased a witch and he was heard by PW1 saying he was going to burn the deceased.
  91. I find that the prosecution has established that Accused 1 and Accused 2 with malice afterthought caused the death of the deceased.
  92. On the issue as to whether malice aforethought was established, under Section 206 of the Penal Code, malice aforethought is established if the prosecution proves an intention to kill, cause grievous harm, or knowledge that the act would probably cause death. The prosecution relied on the doctrine of common intention (Section 21 of the Penal Code), arguing that all accused participated in the unlawful act.
  93. There is evidence that  Accused 1 and Accused 2 were seen piling firewood on the deceased and stepping on him.
  94. PW1 heard Accused 1 declared that he was going to burn the deceased for being a "witch."
  95. The deceased suffered fatal burns, indicating deliberate and violent actions.
  96. This conduct demonstrates malice aforethought (see Republic v Tubere s/o Ochen [1945] 12 EACA 63).
  97. However, the prosecution’s case weakens concerning Accused 3 and Accused 4, as there was no direct evidence linking them to the actual burning.
  98. On the issue as to whether the Accused persons have a defence against the charge of murder, I have considered the evidence adduced by the Accused persons.
  99. The Accused 1 and Accused 2 denied any involvement in the commission of the offence.
  100. The Accused 3 raised an alibi. He said he was arrested the following day when he went to buy miraa from the Accused 2.
  101. The Accused 4 said that he was merely present and did not participate in the offence.
  102. I find that mere presence at a crime scene is insufficient for conviction unless participation is proven (Musimbi v Republic [2009] eKLR).
  103. Based on the evidence adduced, I find that the prosecution proved the involvement of Accused1 and Accused2 beyond reasonable doubt. Their actions in restraining and burning the deceased, coupled with PW1’s testimony, establish both actus reus and mens rea. They are guilty of murder under Section 203 of the Penal Code.
  104. The Accused 3 (Jones Mwabingu Mungereza) had no evidence linking him to the killing. The prosecution failed to place him at the scene with certainty and he accordingly is acquitted and he shall be released forthwith unless otherwise lawfully held for any other reason. 
  105. The Accused 4 (Rashid Salim Salim), although present at the scene, the prosecution had no evidence to proof that he participated in the burning. His role was passive and the doctrine of common intention does not apply without active involvement (Republic v J M & 2 Others [2018] eKLR).
  106. Accused 4 said he tried to tell Accused 1 to leave the deceased alone but accused 1 continued shouting “a witch” and Accused 4 said he left the scene and he did not see the deceased being burnt.
  107. The Accused 4 is also accordingly acquitted and his surety shall be released forthwith.
  108. Although there were other witnesses who were not called to testify, I find that there is no legal requirement on the number of witnesses the prosecution has to call to prove a fact.
  109. I find that the prosecution has proved the guilt of Accused 1 and Accused 2 to the required standard in criminal cases.
  110. The defences raised by Accused 1 and Accused 2 amount to mere denials.
  111. The Accused1 and Accused2  are convicted with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap. 63 Laws of Kenya.
  112. However, the Accused 3 and Accused 4 are acquitted under section 215 of the CPC and the are set free forthwith.
  113. The Accused 3 to be set free forthwith unless lawfully held for any other reason and the surety of Accused 4 to be released.

Dated, signed and delivered this 9th day of May 2025 virtually via MT at Voi High Court.

ASENATH ONGERI

JUDGE

In the presence of:-

Court Assistant: Maina/Millicent

Details

Delivered
Court rank
High Court
Station
Voi High Court (High Court at Voi High Court)
Division
High Court Div
Case type
Murder Case
Judge
Asenath Ongeri

Related decisions

Published for information only — not legal advice. Check the official record before relying on this text. Talk to an advocate