1. The accused persons herein Raul Abdul Noor (1st accused person) and Fikirini Juma Hassan (2nd accused person) are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) Laws of Kenya that that on the 28th July 2019 at Denyenye village, Ngombeni location in Matuga Sub-County within Kwale County, jointly murdered Ali Noor Ali.
2. The 1st accused person who was reported to have been a minor at the time of the alleged offence was remanded at Likoni Children’s Home from which he was subsequently reported to have escaped. The 2nd accused person initially took plea alone. The 1st accused person was afterwards apprehended and on 20/6/2022, the two accused persons took plea on the joint charge. Each pleaded not guilty and the case was set down for hearing.
3. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when parties had been directed to file submissions on case to answer. The accused persons opted to have the case to proceed from where Hon. Lady Justice Ong’ijo had left it.
4. The prosecution called eleven (11) witnesses to support the charge. The accused persons were found to have a case to answer and were called upon to offer a defence. Each of them opted to and gave sworn evidence in defence and denied that he committed the offence. They did not call witnesses.
5. PW 1, Dr. Gabriel Mwangola was the one who conducted a post mortem on the body of the deceased at the Coast General Teaching and Referral Hospital (CGT & RH). He prepared a post mortem report on the dated 31st July 2019. His findings were that the face was swollen with multiple bruises all over the face as well as injuries to the legs and hands. The report indicates that the cause of death was severe traumatic head injury.
6. PW 2, Cornelius Machege, is a senior Clinical Officer at Kwale Sub County Hospital. He testified that he examined and prepared a report on 5/8/2019. He filled the P3 form for Juma Mwakijora (PW 4) who was referred to the hospital by the OCS Kwale police station having been injured on 28/7/2019. The injuries were 8 days old and already healing. Juma had a wound on the left side of the head. He had injuries on both elbows and knees. The injuries were assessed as non-fatal.
7. PW 3, Ali Masudi testified that the deceased, Ali Noor, was his cousin. He visited him in hospital upon being informed that the deceased had been injured on 28/7/2019. He found the deceased in a very bad condition. He was given Alfan Juma Mwakijora’s account of what had happened to the them.
8. PW 4 Alfan Juma Mwakijora was the main prosecution witness. He said that on the night of 27th/28th July 2019 at around 2.00 a.m. the deceased was carrying him on a motorcycle. They were from ceremony at a club. They encountered robbers along the way. The robbers pelted them with stones. A stone hit the deceased Ali on the head which injured him on the head near the left eye and he lost control of the motor cycle and they fell to the ground. He also lost consciousness. PW 4 fell in some bushes and hid there. He then heard Ali cry saying “wananiuwa! wananiuwa! (they are killing me, twice). PW 4 left his hiding place and approached the assailants who had torches with them. He was able to identify among them Fikirini, the 2nd accused person, Raul, the 1st accused person, Salmin and Fadhili. Fikirini, the 2nd accused person was armed with a panga and shotgun. He saw the 2nd accused person use the shotgun on the deceased. Salmin shone his torch at PW 4 and identified him and asked if he was the one. PW 4 in turn asked them why they were doing. He held the 2nd accused person and asked him why they had attacked them. None of them responded. He asked them to help him take Ali the deceased to hospital. They responded by telling him that if he ever disclosed what had happened with anybody his life would be in danger. They left without assisting him as per his request. He said that the assailants come from Denyenye village, which neighbours theirs.
9. A person known as Hassan alias Chachu who stays nearby showed up. PW 4 asked him to look over the injured as he went to inform his relatives. He informed Ali’s grandmother who then instructed Hassan to accompany PW 4 to rescue the deceased. He informed them what had happened and then left to seek treatment as he was badly injured from the fall. He said he lost a phone and money in the attack and that the deceased’s phone was also stolen.
10. In cross-examination, PW 4 said that the attackers did not assault him.
11. PW 5 Hassan Abdallah is the one whom PW 4 found and he led him to the scene. However, along the way, PW 4 was overwhelmed by the injuries he had sustained and he had to go to hospital. PW 5 mobilized other people and proceeded with the to the scene. They found the deceased and stopped a matatu which took them to Likoni hospital from where they were referred to Coast General hospital. The deceased was admitted there but died afterwards while under treatment.
12. PW 6, Masudi Ali Mwakileo also went to the scene.
13. PW 7, Mebakari Ali Mwakileo is the deceased’s mother. She said the deceased was her first born son aged 20 years old.
14. PW 8, Cpl Samwel Epara Opeto was among police officers who arrested the 1st accused person at Ngombeni area.
15. PW 9, Cpl Isaack Nyamweya was also among the police officers who arrested the 1st accused person on 12/8/2019.
16. PW 10, CIP Peter Mukaya conducted identification parades for the two accused persons and a third suspect. PW 4 identified the two accused persons and not a third suspect.
17. PW 11, Cpl Muli Mulai was the investigating officer in the case. He took witness statements, organized for the identification parades to be conducted and compiled the police file and had the accused persons charged with the offence of murder.
18. The 1st accused person said in defence that the deceased was not known to him. He said that on the material night, he was at home as usual and he had never been out at night. He said that PW 4 identified him at the parade but he did not know why. He said that he had never seen PW 4 before and he did not know why he chose upon him.
19. The 2nd accused person said he was arrested on his way to Ukunda. He was with his friend who managed to escape. He said that he could not recall the date of 27th/28th July 2019 where he was or what he was doing. He could not recall anything on that night. He said he came to know PW 4 at the police station during the ID parade.
20. Learned counsel for the accused persons made submissions on various points on why he thought the prosecution had not proved its case against the accused persons beyond a reasonable doubt. These points are considered in the analysis following.
21. I have considered the evidence of the eleven (11) prosecution witnesses, the defences by the accused persons and the submissions by learned counsel for the accused persons. The point for determination is whether or not the prosecution has proved a case of murder against each of the accused persons beyond a reasonable doubt.
22. The offence of murder is provided for under section 203 of the Penal Code as follows:
“S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
23. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) the Court of Appeal said thus regarding the ingredients of the offence of murder:
“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”
24. In this case, there was one witness PW 4 who testified on what transpired while he was with the deceased before he passed away while receiving medical attention at the CPGT & RH. PW 4 testified that the two accused persons were in a group of about ten people who waylaid PW 4 and the deceased on their way on a motor cycle being ridden by the deceased as they were coming from a disco. PW 4 said that the motor cycle was at high speed when stones were pelted at them. The stones hit the deceased on the head and he lost control of the motor cycle and they fell down. After the fall the only other person whom PW 4 saw assault the deceased was Fikirini, the 2nd accused person.
25. Learned counsel for the accused persons submitted that the cause of death has not been established by the prosecution. That according to the evidence of PW 1 and the findings in the post mortem report, the deceased died as a result of severe traumatic head injury (blunt force trauma). That PW 1 the doctor who conducted the autopsy testified that there was no indication that the body of the deceased had cut wounds but only multiple bruises while PW 4, the only witness who was present during the alleged attack, testified that the assailants were armed with stones and pangas but the post mortem report provided by PW1 showed that no panga was used during the alleged attack and the injuries caused were blunt trauma on the head, knees and elbow.
26. I have considered the evidence by PW 4 and indeed, he never said that any of the assailants cut the deceased using a panga. He only said he saw the 2nd accused person with a panga and a teaser and that the 2nd accused person used the teaser only and not the panga to assault the deceased. In that case, the post mortem report is consistent with the evidence of PW 4 that the deceased was attacked using stones and the teaser.
27. Learned counsel submits further that the post mortem report showed that the deceased died as a result of severe traumatic head injury. That there is no certainty as to what blunt object could have caused the injury. That the prosecution alleges that a stone or stones from the assailants caused Ali Noor's death but no such stone has been provided as exhibit. According to learned counsel there is a likelihood that the severe traumatic head injury that caused the deceased to die was a result of crashing the motorcycle since PW 4 himself testified that they were riding at a little bit high speed and had indulged in miraa earlier.
28. In my assessment, the act of throwing stones at a person riding a motor cycle moving at high speed in itself leads to the conclusion that whoever threw the stones intended that the victim loses control and falls off the motorcycle, which was the case herein. Falling off a motor cycle moving at high speed would inevitably lead to serious injury of the victim. In that case, the assailant would be aware or be indifferent to the fact that the victim would die or suffer grievous harm as a result. If the victim died from the injuries sustained on the fall, the assault of the deceased by throwing stones at him would be the direct cause of the death.
29. Learned counsel submits further that the prosecution has failed to establish that the death of the deceased was caused by the unlawful act/omission by the accused persons as there is no eye witness who saw the accused persons commit the offence.
30. The submission that there was no eye witness to the incident is not correct because PW 4 said he was present and witnessed all that happened. The act of throwing stones at the deceased and PW 4 was in itself an assault, which is unlawful. There is also evidence that the 2nd accused person assaulted the deceased using the teaser that he had and that was unlawful.
31. Learned counsel submits further that the evidence tendered by the prosecution is wholly circumstantial. He has cited the Court of Appeal in the case of Neema Mwandoro Ndurya v Republic (2008) Eklr in which the threshold for reliance upon circumstantial evidence was considered as follows:
"But circumstantial evidence should be very closely examined before basing a conviction on it.
In Teper v R (1952) AC at p. 489 Lord Normand said: "Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another...It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the influence...In R v Kipkering Arap Koske & another 16 EACA 135 where it held, inter alia, that; In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt."
32. Leaned counsel submits that the circumstantial evidence against the accused persons in this case does not meet the legal threshold for reasons that the deceased could have died as a result of an accident rather than an attack. He points out that this is borne out of various facts.
33. First that even PW 4 suffered serious injuries after their motor cycle crashed. Learned counsel submits that the crash was possibly caused from speeding of the motor cycle after the deceased and PW 4 had indulged in “miraa” chewing earlier. That therefore, it is possible that the impact from the motorcycle crashing and the resultant injuries to deceased’s head are what caused his death, the rider having been speeding while intoxicated.
34. Secondly, that both PW 4 and the investigating officer testified that the deceased was attacked using weapons including stones, pangas and a teaser but no weapon was produced as an exhibit in court to prove this. That the prosecution has failed to even produce photographs of the alleged weapons used to murder the deceased from the crime scene.
35. First, there was no evidence that the deceased was intoxicated from any substance before he took up riding the motor cycle. The fact that they had been chewing miraa is no evidence that he was intoxicated. Secondly, as testified by PW 4, which evidence was not challenged, the fact of the deceased and PW 4 falling off the motor cycle was due to being pelted with stones and not from the deceased being intoxicated in any way. Finally, there is evidence by PW 4 that the assailants left the scene with their weapons and therefore none could have been recovered there. The incident happened on the road with bushes on the sides. It was therefore not practical to isolate and recover the stones used to pelt the victims.
36. Learned counsel submits further that the prosecution has failed to establish that the accused persons were positively identified. That PW 4, the only witness who was present during the incident, testified that he was hiding in a bush in fear for his life when the assailants started attacking the deceased. The incident happened at around 3.00 a.m. in the cover of darkness. That PW 4 testified that when he came out of the bush to help the deceased, a torch was shone on his eyes by one, Salmini enabling him to identify Raul Abdul, the 1st accused person, Fikirini, the 2nd accused person, Salmini and Fadhili. Learned counsel submits that it is hard to identify someone in darkness when there is a torch being shone into your eyes especially under such stressful circumstances when PW4 was in fear of his life.
37. Further on the issue of identification, learned counsel submits that at all times, care should be taken to ensure that the accused persons are identified as the perpetrators. He has cited the case of Wamungu Republic (1989) eKLR 424 at 426 where the court said:
"… where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility or error before it can safely make it the basis of a conviction."
38. Learned counsel submits further that according to the Turnbull Guidelines on identification as held in R v Turnbull and others (1976) 3 All ER 549:
“Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the court should warn itself of the special need for caution before convicting the accused in reliance on the correctness of the identifications."
39. Learned counsel cites the Turnbull Guidelines which provide that the judge should tell the jury that:
a. Caution is required to avoid the risk of injustice.
b. A witness who is honest may be wrong even ifthey are convinced they are right.
c. A witness who is convincing may still be wrong.
d. More than one witness may be wrong.
e. A witness who recognizes the defendant, even when the witness knows the defendant very well, may be wrong.
40. Learned counsel submits that the identification parades conducted where PW 4 identified the two accused persons do not meet the threshold set by the National Police Service Standing Orders (Chapter 42 paragraph 7) and case law. He has cited the case of Charles Maitanyi v Republic (1986) eKLR, where it was held that the evidence of a single witness with respect to identification, in the absence of corroboration, should be treated with great care.
41. On the issue of identification, it is true as submitted by learned counsel that the evidence herein is from one person. In the case of Cleophas Otieno Wamunga v. Republic [1989] eKLR it was held:
“What we have to decide now is whether that evidence was reliable and free from possibility of error so as to find a secure basis for the conviction of the appellant. Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger.
Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.”
42. I am aware of the need to treat with the greatest caution the evidence of a single witness of identification especially where the circumstances were difficult as was the case herein. The incident in this case happened at night, there is only one identifying witness, the witness had been pelted with a stone and fell off a motor cycle that was in high speed and for a moment, he hid in the bushes from the assailants until he had the deceased screaming that he was being killed and there were not less than ten people at the scene. The only form of light he said was available and enabled him to identify the two accused persons and two others was light from a torch.
43. It is also the evidence of PW 4 that the identification in this case was not of strangers but by way of recognition of persons well known to him.. PW 4 explained how he was able to identify four of the assailants, among them the two accused persons. He said the four, among them the two accused persons were well known to him. He said that, he was able to identify them from the light of a torch shone at him by Salmini who was the first to identify PW 4 at the scene. PW 4 having identified the assailants, spoke to them asking them why they were assaulting the deceased. The 2nd accused person spoke back to him. I am satisfied that the torch light and the time he took with the people was sufficient for a proper identification. He identified not one but several of the people, two of them, the accused persons herein. I am satisfied that the identification of the accused persons herein as being part of the group of people that waylaid them on the road is free from error and therefore reliable.
44. On the same evidence, I find that the denials by the accused persons that they did not know PW 4 is not honest and I dismiss it as only unworthy of belief and only meant to extricate themselves from the charge. I am satisfied that both of them knew PW 4 and he knew each of them well.
45. Learned counsel also submits that there are inconsistencies in the testimonies of the prosecution's key witnesses being PW 4 the only witness who was present during the incident and PW 11 Corporal Muli, the investigating. That the two witnesses gave contradictory testimony on who was riding the motor cycle when they were pelted with stones with PW 4 stating that the deceased was the rider of the motor cycle and was hit on the head by with a stone from the attackers resulting in the accident while PW 11 testified that Alfan, PW 4, was the rider of the motor cycle and was the one who was hit with a stone from the attackers.
46. Learned counsel submits that it is settled law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. According to learned counsel, the contradictions above point to deliberate untruthfulness, affect the main substance of the prosecution's case and have not been satisfactorily explained. Therefore, evidence tendered by the above witnesses, ought to be rejected. He cites the case of Twehangane Alfred vs Uganda Crim. App. No 139 of 2001, [2003] UGCA, 6 where it was held that it is not every contradiction that warrants rejection of evidence. As the court put it:-
“With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case.”
47. The issue of contradictory evidence on who between PW 4 and the deceased was riding the motor cycle and was therefore hit with a stone on the head is minor and cannot lead to the rejection of the evidence of the two witnesses. The important fact and which is not challenged is that the two were riding a motor cycle at night at high speed, one carrying the other when they were pelted with stones that caused the rider to lose control of the motor cycle and fall. My own assessment of the evidence is that I would consider as more reliable what PW 4 said because he was the one at the scene. How the investigating officer came to say the other way round is not clear. PW 4 gave very cogent evidence of how the incident occurred and I have no reason to doubt him.
48. In conclusion on the first ingredient of murder, that of actus reus, I have found that the deceased’s fall from the motor cycle was as a direct result of being pelted with stones and also that while he was on the ground, the 2nd accused person assaulted him with the teaser. That was why he screamed saying they were killing him. It means that the pain inflicted upon him by the teaser was unbearable. Indeed, the deceased never survived it. I am satisfied that it was indeed the act of being assaulted with stones and the teaser that caused severe injuries to the deceased thereby leading to his death.
49. The next issue for determination is whether the prosecution has proved malice aforethought against the accused persons.
50. Section 206 of the Penal Code provides for the instances under which malice aforethought is deemed established thus:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: -
a) An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
c) An intent to commit a felony;
d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
51. From the evidence on record, it is apparent that the circumstances of the offence fall under section 206(b) of the Penal Code where malice aforethought is deemed to be established where the evidence adduced establishes that there was knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused. The issue then is whether the evidence establishes the requisite mens rea on the part of the accused persons.
52. On the ingredient of malice aforethought, learned counsel for the accused persons has cited the case of in the case of Bonaya Tutu Ipu & Another v Republic (2015) Eklr where the Court of Appeal held that:
"Earlier in Rex v Tubere S/O Ochen (1945) 12 ЕAСA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:
"It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick..."
“… There was nothing remiss about the conduct of the appellants after the incident; they did not attempt to flee. Instead, they continued staying in their village from where they were arrested by the police."
53. In the present case, this court has found that the action of pelting the motor cycle riders who were at high speed with stones was meant to cause them to fall and thereby cause their death or grievous bodily harm. The further assault upon the deceased by the 2nd accused person with a teaser causing him to scream that he was being killed meant that he was being subjected to extremely unbearable pain from which he succumbed afterwards.
54. In the case of Omar v Republic, [2010]2 KLR, 19 at page 29, the Court of Appeal considering the issue of malice aforethought in a case where one blow upon the deceased had caused the death expressed itself as follows:
“So, by the appellant hitting the deceased on the neck with a bottle, he must have intended to cause her at least grievous harm. Indeed, the blow using a bottle caused a fatal wound on the deceased. The evidence clearly shows the appellant had the necessary malice aforethought”.
55. In this case, the deceased and PW 4 were pelted with stones while riding a motor cycle at high speed. No doubt, whoever did that had knowledge and intended that they fall from the motor cycle which would cause grievous bodily harm, one of the important ingredients of murder. After the deceased had fallen down and even lost consciousness, the 2nd accused person went on to assault him with the teaser knowing very well that he was badly injured. He therefore had malice aforethought as his intention was to cause more grievous harm to the deceased.
56. The 2nd accused person used a teaser as a weapon against the deceased with knowledge that it would cause grievous harm or death. He intended to cause grievous harm to the deceased and this led to his death. His denial that he caused the death of the deceased is discounted by the evidence of PW 4 that he was at the scene and he hit the deceased with the teaser causing him injuries to which he succumbed while on treatment at the CPGR&TH. I am satisfied from that action that intent to commit murder has been proved beyond any reasonable doubt.
57. Learned counsel submits that no motive or intention to kill the deceased has been established by the prosecution. That no reason was provided as to why the accused persons would attack the deceased. That there is no evidence adduced by the prosecution on the subsequent conduct of the accused persons to infer any malice aforethought on their part. That the accused persons did not attempt to flee and continued to reside in their area until their arrest.
58. Although providing evidence for the commission of murder may be a pointer and will bolster the prosecution’s case that the accused person committed the offence with malice aforethought, there is no requirement under the Penal Code that one must have motive for murder. What is required under Section 203 of the Penal Code of the prosecution is to prove the unlawful killing of another with malice aforethought. I have found above that the acts of throwing stones at the persons riding the motor cycle at high speed and assaulting the deceased with a teaser even when he was injured and on the ground is proof of intention to cause grievous bodily harm and even death. I am therefore satisfied that malice aforethought has been established in terms of Section 206 (a) and (b) of the Penal Code.
59. Learned counsel submits that PW4 testified that before they got to Ngombeni, they were attacked by robbers and further that his and the deceased's phones were stolen and he also lost money. According to learned counsel, this begs the question whether the reason for the alleged attack was to rob the deceased or due to warring factions within the area as the PW 11 testified.
60. Indeed, PW 4 said that they lost phones and he lost money. However, he never said that he saw any of the members of the group of which the accused were take the phone and money from either him or the deceased. When he emerged from the bushes where he had fallen, none of the assailants charged at him. None of them touched him. Salmini spoke to him and they also responded. It is apparent from
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2. The 1st accused person who was reported to have been a minor at the time of the alleged offence was remanded at Likoni Children’s Home from which he was subsequently reported to have escaped. The 2nd accused person initially took plea alone. The 1st accused person was afterwards apprehended and on 20/6/2022, the two accused persons took plea on the joint charge. Each pleaded not guilty and the case was set down for hearing.
3. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when parties had been directed to file submissions on case to answer. The accused persons opted to have the case to proceed from where Hon. Lady Justice Ong’ijo had left it.
4. The prosecution called eleven (11) witnesses to support the charge. The accused persons were found to have a case to answer and were called upon to offer a defence. Each of them opted to and gave sworn evidence in defence and denied that he committed the offence. They did not call witnesses.
5. PW 1, Dr. Gabriel Mwangola was the one who conducted a post mortem on the body of the deceased at the Coast General Teaching and Referral Hospital (CGT & RH). He prepared a post mortem report on the dated 31st July 2019. His findings were that the face was swollen with multiple bruises all over the face as well as injuries to the legs and hands. The report indicates that the cause of death was severe traumatic head injury.
6. PW 2, Cornelius Machege, is a senior Clinical Officer at Kwale Sub County Hospital. He testified that he examined and prepared a report on 5/8/2019. He filled the P3 form for Juma Mwakijora (PW 4) who was referred to the hospital by the OCS Kwale police station having been injured on 28/7/2019. The injuries were 8 days old and already healing. Juma had a wound on the left side of the head. He had injuries on both elbows and knees. The injuries were assessed as non-fatal.
7. PW 3, Ali Masudi testified that the deceased, Ali Noor, was his cousin. He visited him in hospital upon being informed that the deceased had been injured on 28/7/2019. He found the deceased in a very bad condition. He was given Alfan Juma Mwakijora’s account of what had happened to the them.
8. PW 4 Alfan Juma Mwakijora was the main prosecution witness. He said that on the night of 27th/28th July 2019 at around 2.00 a.m. the deceased was carrying him on a motorcycle. They were from ceremony at a club. They encountered robbers along the way. The robbers pelted them with stones. A stone hit the deceased Ali on the head which injured him on the head near the left eye and he lost control of the motor cycle and they fell to the ground. He also lost consciousness. PW 4 fell in some bushes and hid there. He then heard Ali cry saying “wananiuwa! wananiuwa! (they are killing me, twice). PW 4 left his hiding place and approached the assailants who had torches with them. He was able to identify among them Fikirini, the 2nd accused person, Raul, the 1st accused person, Salmin and Fadhili. Fikirini, the 2nd accused person was armed with a panga and shotgun. He saw the 2nd accused person use the shotgun on the deceased. Salmin shone his torch at PW 4 and identified him and asked if he was the one. PW 4 in turn asked them why they were doing. He held the 2nd accused person and asked him why they had attacked them. None of them responded. He asked them to help him take Ali the deceased to hospital. They responded by telling him that if he ever disclosed what had happened with anybody his life would be in danger. They left without assisting him as per his request. He said that the assailants come from Denyenye village, which neighbours theirs.
9. A person known as Hassan alias Chachu who stays nearby showed up. PW 4 asked him to look over the injured as he went to inform his relatives. He informed Ali’s grandmother who then instructed Hassan to accompany PW 4 to rescue the deceased. He informed them what had happened and then left to seek treatment as he was badly injured from the fall. He said he lost a phone and money in the attack and that the deceased’s phone was also stolen.
10. In cross-examination, PW 4 said that the attackers did not assault him.
11. PW 5 Hassan Abdallah is the one whom PW 4 found and he led him to the scene. However, along the way, PW 4 was overwhelmed by the injuries he had sustained and he had to go to hospital. PW 5 mobilized other people and proceeded with the to the scene. They found the deceased and stopped a matatu which took them to Likoni hospital from where they were referred to Coast General hospital. The deceased was admitted there but died afterwards while under treatment.
12. PW 6, Masudi Ali Mwakileo also went to the scene.
13. PW 7, Mebakari Ali Mwakileo is the deceased’s mother. She said the deceased was her first born son aged 20 years old.
14. PW 8, Cpl Samwel Epara Opeto was among police officers who arrested the 1st accused person at Ngombeni area.
15. PW 9, Cpl Isaack Nyamweya was also among the police officers who arrested the 1st accused person on 12/8/2019.
16. PW 10, CIP Peter Mukaya conducted identification parades for the two accused persons and a third suspect. PW 4 identified the two accused persons and not a third suspect.
17. PW 11, Cpl Muli Mulai was the investigating officer in the case. He took witness statements, organized for the identification parades to be conducted and compiled the police file and had the accused persons charged with the offence of murder.
18. The 1st accused person said in defence that the deceased was not known to him. He said that on the material night, he was at home as usual and he had never been out at night. He said that PW 4 identified him at the parade but he did not know why. He said that he had never seen PW 4 before and he did not know why he chose upon him.
19. The 2nd accused person said he was arrested on his way to Ukunda. He was with his friend who managed to escape. He said that he could not recall the date of 27th/28th July 2019 where he was or what he was doing. He could not recall anything on that night. He said he came to know PW 4 at the police station during the ID parade.
20. Learned counsel for the accused persons made submissions on various points on why he thought the prosecution had not proved its case against the accused persons beyond a reasonable doubt. These points are considered in the analysis following.
21. I have considered the evidence of the eleven (11) prosecution witnesses, the defences by the accused persons and the submissions by learned counsel for the accused persons. The point for determination is whether or not the prosecution has proved a case of murder against each of the accused persons beyond a reasonable doubt.
22. The offence of murder is provided for under section 203 of the Penal Code as follows:
“S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
23. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) the Court of Appeal said thus regarding the ingredients of the offence of murder:
“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”
24. In this case, there was one witness PW 4 who testified on what transpired while he was with the deceased before he passed away while receiving medical attention at the CPGT & RH. PW 4 testified that the two accused persons were in a group of about ten people who waylaid PW 4 and the deceased on their way on a motor cycle being ridden by the deceased as they were coming from a disco. PW 4 said that the motor cycle was at high speed when stones were pelted at them. The stones hit the deceased on the head and he lost control of the motor cycle and they fell down. After the fall the only other person whom PW 4 saw assault the deceased was Fikirini, the 2nd accused person.
25. Learned counsel for the accused persons submitted that the cause of death has not been established by the prosecution. That according to the evidence of PW 1 and the findings in the post mortem report, the deceased died as a result of severe traumatic head injury (blunt force trauma). That PW 1 the doctor who conducted the autopsy testified that there was no indication that the body of the deceased had cut wounds but only multiple bruises while PW 4, the only witness who was present during the alleged attack, testified that the assailants were armed with stones and pangas but the post mortem report provided by PW1 showed that no panga was used during the alleged attack and the injuries caused were blunt trauma on the head, knees and elbow.
26. I have considered the evidence by PW 4 and indeed, he never said that any of the assailants cut the deceased using a panga. He only said he saw the 2nd accused person with a panga and a teaser and that the 2nd accused person used the teaser only and not the panga to assault the deceased. In that case, the post mortem report is consistent with the evidence of PW 4 that the deceased was attacked using stones and the teaser.
27. Learned counsel submits further that the post mortem report showed that the deceased died as a result of severe traumatic head injury. That there is no certainty as to what blunt object could have caused the injury. That the prosecution alleges that a stone or stones from the assailants caused Ali Noor's death but no such stone has been provided as exhibit. According to learned counsel there is a likelihood that the severe traumatic head injury that caused the deceased to die was a result of crashing the motorcycle since PW 4 himself testified that they were riding at a little bit high speed and had indulged in miraa earlier.
28. In my assessment, the act of throwing stones at a person riding a motor cycle moving at high speed in itself leads to the conclusion that whoever threw the stones intended that the victim loses control and falls off the motorcycle, which was the case herein. Falling off a motor cycle moving at high speed would inevitably lead to serious injury of the victim. In that case, the assailant would be aware or be indifferent to the fact that the victim would die or suffer grievous harm as a result. If the victim died from the injuries sustained on the fall, the assault of the deceased by throwing stones at him would be the direct cause of the death.
29. Learned counsel submits further that the prosecution has failed to establish that the death of the deceased was caused by the unlawful act/omission by the accused persons as there is no eye witness who saw the accused persons commit the offence.
30. The submission that there was no eye witness to the incident is not correct because PW 4 said he was present and witnessed all that happened. The act of throwing stones at the deceased and PW 4 was in itself an assault, which is unlawful. There is also evidence that the 2nd accused person assaulted the deceased using the teaser that he had and that was unlawful.
31. Learned counsel submits further that the evidence tendered by the prosecution is wholly circumstantial. He has cited the Court of Appeal in the case of Neema Mwandoro Ndurya v Republic (2008) Eklr in which the threshold for reliance upon circumstantial evidence was considered as follows:
"But circumstantial evidence should be very closely examined before basing a conviction on it.
In Teper v R (1952) AC at p. 489 Lord Normand said: "Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another...It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the influence...In R v Kipkering Arap Koske & another 16 EACA 135 where it held, inter alia, that; In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt."
32. Leaned counsel submits that the circumstantial evidence against the accused persons in this case does not meet the legal threshold for reasons that the deceased could have died as a result of an accident rather than an attack. He points out that this is borne out of various facts.
33. First that even PW 4 suffered serious injuries after their motor cycle crashed. Learned counsel submits that the crash was possibly caused from speeding of the motor cycle after the deceased and PW 4 had indulged in “miraa” chewing earlier. That therefore, it is possible that the impact from the motorcycle crashing and the resultant injuries to deceased’s head are what caused his death, the rider having been speeding while intoxicated.
34. Secondly, that both PW 4 and the investigating officer testified that the deceased was attacked using weapons including stones, pangas and a teaser but no weapon was produced as an exhibit in court to prove this. That the prosecution has failed to even produce photographs of the alleged weapons used to murder the deceased from the crime scene.
35. First, there was no evidence that the deceased was intoxicated from any substance before he took up riding the motor cycle. The fact that they had been chewing miraa is no evidence that he was intoxicated. Secondly, as testified by PW 4, which evidence was not challenged, the fact of the deceased and PW 4 falling off the motor cycle was due to being pelted with stones and not from the deceased being intoxicated in any way. Finally, there is evidence by PW 4 that the assailants left the scene with their weapons and therefore none could have been recovered there. The incident happened on the road with bushes on the sides. It was therefore not practical to isolate and recover the stones used to pelt the victims.
36. Learned counsel submits further that the prosecution has failed to establish that the accused persons were positively identified. That PW 4, the only witness who was present during the incident, testified that he was hiding in a bush in fear for his life when the assailants started attacking the deceased. The incident happened at around 3.00 a.m. in the cover of darkness. That PW 4 testified that when he came out of the bush to help the deceased, a torch was shone on his eyes by one, Salmini enabling him to identify Raul Abdul, the 1st accused person, Fikirini, the 2nd accused person, Salmini and Fadhili. Learned counsel submits that it is hard to identify someone in darkness when there is a torch being shone into your eyes especially under such stressful circumstances when PW4 was in fear of his life.
37. Further on the issue of identification, learned counsel submits that at all times, care should be taken to ensure that the accused persons are identified as the perpetrators. He has cited the case of Wamungu Republic (1989) eKLR 424 at 426 where the court said:
"… where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility or error before it can safely make it the basis of a conviction."
38. Learned counsel submits further that according to the Turnbull Guidelines on identification as held in R v Turnbull and others (1976) 3 All ER 549:
“Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the court should warn itself of the special need for caution before convicting the accused in reliance on the correctness of the identifications."
39. Learned counsel cites the Turnbull Guidelines which provide that the judge should tell the jury that:
a. Caution is required to avoid the risk of injustice.
b. A witness who is honest may be wrong even ifthey are convinced they are right.
c. A witness who is convincing may still be wrong.
d. More than one witness may be wrong.
e. A witness who recognizes the defendant, even when the witness knows the defendant very well, may be wrong.
40. Learned counsel submits that the identification parades conducted where PW 4 identified the two accused persons do not meet the threshold set by the National Police Service Standing Orders (Chapter 42 paragraph 7) and case law. He has cited the case of Charles Maitanyi v Republic (1986) eKLR, where it was held that the evidence of a single witness with respect to identification, in the absence of corroboration, should be treated with great care.
41. On the issue of identification, it is true as submitted by learned counsel that the evidence herein is from one person. In the case of Cleophas Otieno Wamunga v. Republic [1989] eKLR it was held:
“What we have to decide now is whether that evidence was reliable and free from possibility of error so as to find a secure basis for the conviction of the appellant. Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger.
Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.”
42. I am aware of the need to treat with the greatest caution the evidence of a single witness of identification especially where the circumstances were difficult as was the case herein. The incident in this case happened at night, there is only one identifying witness, the witness had been pelted with a stone and fell off a motor cycle that was in high speed and for a moment, he hid in the bushes from the assailants until he had the deceased screaming that he was being killed and there were not less than ten people at the scene. The only form of light he said was available and enabled him to identify the two accused persons and two others was light from a torch.
43. It is also the evidence of PW 4 that the identification in this case was not of strangers but by way of recognition of persons well known to him.. PW 4 explained how he was able to identify four of the assailants, among them the two accused persons. He said the four, among them the two accused persons were well known to him. He said that, he was able to identify them from the light of a torch shone at him by Salmini who was the first to identify PW 4 at the scene. PW 4 having identified the assailants, spoke to them asking them why they were assaulting the deceased. The 2nd accused person spoke back to him. I am satisfied that the torch light and the time he took with the people was sufficient for a proper identification. He identified not one but several of the people, two of them, the accused persons herein. I am satisfied that the identification of the accused persons herein as being part of the group of people that waylaid them on the road is free from error and therefore reliable.
44. On the same evidence, I find that the denials by the accused persons that they did not know PW 4 is not honest and I dismiss it as only unworthy of belief and only meant to extricate themselves from the charge. I am satisfied that both of them knew PW 4 and he knew each of them well.
45. Learned counsel also submits that there are inconsistencies in the testimonies of the prosecution's key witnesses being PW 4 the only witness who was present during the incident and PW 11 Corporal Muli, the investigating. That the two witnesses gave contradictory testimony on who was riding the motor cycle when they were pelted with stones with PW 4 stating that the deceased was the rider of the motor cycle and was hit on the head by with a stone from the attackers resulting in the accident while PW 11 testified that Alfan, PW 4, was the rider of the motor cycle and was the one who was hit with a stone from the attackers.
46. Learned counsel submits that it is settled law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. According to learned counsel, the contradictions above point to deliberate untruthfulness, affect the main substance of the prosecution's case and have not been satisfactorily explained. Therefore, evidence tendered by the above witnesses, ought to be rejected. He cites the case of Twehangane Alfred vs Uganda Crim. App. No 139 of 2001, [2003] UGCA, 6 where it was held that it is not every contradiction that warrants rejection of evidence. As the court put it:-
“With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case.”
47. The issue of contradictory evidence on who between PW 4 and the deceased was riding the motor cycle and was therefore hit with a stone on the head is minor and cannot lead to the rejection of the evidence of the two witnesses. The important fact and which is not challenged is that the two were riding a motor cycle at night at high speed, one carrying the other when they were pelted with stones that caused the rider to lose control of the motor cycle and fall. My own assessment of the evidence is that I would consider as more reliable what PW 4 said because he was the one at the scene. How the investigating officer came to say the other way round is not clear. PW 4 gave very cogent evidence of how the incident occurred and I have no reason to doubt him.
48. In conclusion on the first ingredient of murder, that of actus reus, I have found that the deceased’s fall from the motor cycle was as a direct result of being pelted with stones and also that while he was on the ground, the 2nd accused person assaulted him with the teaser. That was why he screamed saying they were killing him. It means that the pain inflicted upon him by the teaser was unbearable. Indeed, the deceased never survived it. I am satisfied that it was indeed the act of being assaulted with stones and the teaser that caused severe injuries to the deceased thereby leading to his death.
49. The next issue for determination is whether the prosecution has proved malice aforethought against the accused persons.
50. Section 206 of the Penal Code provides for the instances under which malice aforethought is deemed established thus:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances: -
a) An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
c) An intent to commit a felony;
d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
51. From the evidence on record, it is apparent that the circumstances of the offence fall under section 206(b) of the Penal Code where malice aforethought is deemed to be established where the evidence adduced establishes that there was knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused. The issue then is whether the evidence establishes the requisite mens rea on the part of the accused persons.
52. On the ingredient of malice aforethought, learned counsel for the accused persons has cited the case of in the case of Bonaya Tutu Ipu & Another v Republic (2015) Eklr where the Court of Appeal held that:
"Earlier in Rex v Tubere S/O Ochen (1945) 12 ЕAСA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:
"It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick..."
“… There was nothing remiss about the conduct of the appellants after the incident; they did not attempt to flee. Instead, they continued staying in their village from where they were arrested by the police."
53. In the present case, this court has found that the action of pelting the motor cycle riders who were at high speed with stones was meant to cause them to fall and thereby cause their death or grievous bodily harm. The further assault upon the deceased by the 2nd accused person with a teaser causing him to scream that he was being killed meant that he was being subjected to extremely unbearable pain from which he succumbed afterwards.
54. In the case of Omar v Republic, [2010]2 KLR, 19 at page 29, the Court of Appeal considering the issue of malice aforethought in a case where one blow upon the deceased had caused the death expressed itself as follows:
“So, by the appellant hitting the deceased on the neck with a bottle, he must have intended to cause her at least grievous harm. Indeed, the blow using a bottle caused a fatal wound on the deceased. The evidence clearly shows the appellant had the necessary malice aforethought”.
55. In this case, the deceased and PW 4 were pelted with stones while riding a motor cycle at high speed. No doubt, whoever did that had knowledge and intended that they fall from the motor cycle which would cause grievous bodily harm, one of the important ingredients of murder. After the deceased had fallen down and even lost consciousness, the 2nd accused person went on to assault him with the teaser knowing very well that he was badly injured. He therefore had malice aforethought as his intention was to cause more grievous harm to the deceased.
56. The 2nd accused person used a teaser as a weapon against the deceased with knowledge that it would cause grievous harm or death. He intended to cause grievous harm to the deceased and this led to his death. His denial that he caused the death of the deceased is discounted by the evidence of PW 4 that he was at the scene and he hit the deceased with the teaser causing him injuries to which he succumbed while on treatment at the CPGR&TH. I am satisfied from that action that intent to commit murder has been proved beyond any reasonable doubt.
57. Learned counsel submits that no motive or intention to kill the deceased has been established by the prosecution. That no reason was provided as to why the accused persons would attack the deceased. That there is no evidence adduced by the prosecution on the subsequent conduct of the accused persons to infer any malice aforethought on their part. That the accused persons did not attempt to flee and continued to reside in their area until their arrest.
58. Although providing evidence for the commission of murder may be a pointer and will bolster the prosecution’s case that the accused person committed the offence with malice aforethought, there is no requirement under the Penal Code that one must have motive for murder. What is required under Section 203 of the Penal Code of the prosecution is to prove the unlawful killing of another with malice aforethought. I have found above that the acts of throwing stones at the persons riding the motor cycle at high speed and assaulting the deceased with a teaser even when he was injured and on the ground is proof of intention to cause grievous bodily harm and even death. I am therefore satisfied that malice aforethought has been established in terms of Section 206 (a) and (b) of the Penal Code.
59. Learned counsel submits that PW4 testified that before they got to Ngombeni, they were attacked by robbers and further that his and the deceased's phones were stolen and he also lost money. According to learned counsel, this begs the question whether the reason for the alleged attack was to rob the deceased or due to warring factions within the area as the PW 11 testified.
60. Indeed, PW 4 said that they lost phones and he lost money. However, he never said that he saw any of the members of the group of which the accused were take the phone and money from either him or the deceased. When he emerged from the bushes where he had fallen, none of the assailants charged at him. None of them touched him. Salmini spoke to him and they also responded. It is apparent from
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