REPUBLIC SIMEON MRAMBA MWENI, SAMSON SHAURI MJAPE, WILLIAM KADENGE MJAPE, STEPHEN KAHINDI MWADZANI, ROBERT LUGO MJAPE & THOMAS KAZUNGU KALUME [1999] KEHC 56 (KLR)

REPUBLIC OF KENYA

INTHE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL CASE 3 OF 1996

REPUBLIC ..........................................................  PROSECUTOR

- Versus -

1.  SIMEON MRAMBA MWENI

2.  SAMSON SHAURI MJAPE

3.  WILLIAM KADENGE MJAPE

4.  STEPHEN KAHINDI MWADZANI

5.  ROBERT LUGO MJAPE

6.  THOMAS KAZUNGU KALUME..............................ACCUSEDS

RULING

The prosecution in this case closed its case after summoningfifteen (15) witnesses to testify. Submissions on both sides wererecorded thereafter. Pursuant to Section 306(1) Criminal ProcedureCode the court is enjoined to consider at that stage whether thereis evidence that the accused persons or any one of them committedthe offence.  I now proceed to do so.

The statement of offence that the prosecution set out toprove, and prove beyond reasonable doubt, was murder contrary toSection 203 as read with Section 204 of the Penal Code. It wasalleged that the six accused persons had jointly murdered oneSWALEH MAHDI SWALEH on 3rd of December 1994 at Msabaha sublocatdon,Ganda Location in Kilifi District, Coast Province.2

In order to discharge the onerous burden of proof placed on itby law, the prosecution must not only prove beyond reasonable doubtthe fact of death of another person, but also the cause of deathand that there was the intention by the accused person or personsto cause such death. There are elaborate provisions in Section 206and 213 of the Penal Code relating to "Malice aforethought" (whichis the intent) and "Causing death" respectively.

To prove the fact of death, the prosecution called ATIYA ABDALLA (ATIYA) (P.W.2) who was the second wife of the deceased.On the 3rd December 1994 at about 4 p.m. she accompanied herhusband from their residence in Malindi Town and were driven totheir Farm at Msabaha, by their driver. There they have a Farm andFarm workers. They also have a small shop or kiosk where they sellFarm produce and other provisions to the workers and other membersof the public. They arrived at about 4. 30 p.m. Her husband wentto open the shop while she proceeded to a store at the back of theshop to keep her "buibui". The driver was left outside. Just then gun shots rang out twice. Atiya ran to the shop, checked and foundno one. But her husband was lying down inside the shop in a badstate bleeding from the chest. He could still speak and quicklytold her to close the door of the shop, but as she was about to doso, two people pushed her from the back and hit her on the head.She lost consciousness. She was informed about the death of herhusband when she came to in hospital later that evening.

The deceased's nephew who is a trader in Malindi Town received information about his uncle's death at 5 p.m. that day. Hetestified as (P.W.9) BARAK BAKHSWEIN (BARAK). He went to hospitaland found the body there. He saw a shot wound on the chest and acut on the head. He identified it as the deceased's body before apost mortem was carried out.

The Post Mortem was performed on the deceased's body by DR.MATHEWS ANDERSON EZEKIEL KAI (DR KAI) (P.W.I). However, althoughDr. Kai testified that he performed the Post Mortem and took somenotes, he did not complete the Post Mortem report or produce theNotes he took down. The Post Mortem Report Form P23A was completedby one DR. ATEYA, who was said to be stationed at Malindi DistrictHospital.  It was only marked for identification awaiting the evidence of DR. ATEYA. However, he was not called as a witness andthe Post Mortem report was therefore not produced in evidence. Bethat as it may, Dr. Kai remembered having seen the body of thedeceased which was identified by Police Officers and relatives. Hesaw a bullet wound on the left of the chest. The bullet had gonethrough and exited through the back touching the heart. He alsosaw a cut on the left side of the head which was caused by a sharpobject. It was 4 cm long, 4 cm deep and 1 cm wide. Death was dueto haemorrhage shock as a result of the wounds. In hisrecollection however, Dr. Kai saw the body at 3. 30 p.m. which wouldput the timing behind the hour of shooting as narrated by Atiya.Atiya in her testimony however stated that she was only estimatingthe time as she had not looked at her watch.

SERGENT PATRICK MWANGI (SGT. MWANGI) (P.W.ll) was on duty atMalindi Police Station when he received a report at 5. 30 p.m. thatsomeone had been killed at Msabaha. He proceeded to the scene withother officers arriving at 6. 30 p.m. They only found a lot ofblood on the shop floor. The deceased had been taken to STATHOSPITAL Malindi where he died soon after arrival.

Finally IP ABDALLA WAFULA KERE (P.W.12) (KERE) was the DeputyOCS Malindi Police Station who took possession of the body of thedeceased and supervised the Post Mortem process. When it wascompleted he released the body to the relatives to bury inaccordance with Muslim rites. Despite the discrepancies on thetimes referred to by Dr. Kai and Atiya therefore, I am satisfiedthat the fact that one Swaleh Mahdi Swaleh died on 3. 12. 94 wasproved beyond doubt. It was also proved that he died fromhaemorrhage shock as a result of a bullet wound on the chest and acut wound on his head.

Who caused those wounds?(H) No direct evidence was offered by the prosecution. Atiya(P.W.I) never saw the person or people who fired the two gun shotsshe stated to have heard. She saw no one in the vicinity of theshop. Their driver Kateteh whom she said was present when theywere attacked was not called as a witness and there is no knowing what he witnessed or did, if anything. Atiya said they had fourworkers in the house and 13 - 14. in the shamba. They were going topay their wages.  It is not clear where all the workers were at that moment in time, but two of them were called to testify. TheWatchman in the shamba was NGUMBAO KATANA MBAE (P.W.3) (MBAE). 'He came from the shamba at about 4. 30 p.m. and found his employer hadarrived with his wife and driver. As he went into the store, tokeep his tools he heard gun shots from behind the shop. He tookone terrified look and started running away in the oppositedirection towards the bush. As he did so he saw fleetingly sometwo black figures, one short the other tall. He could neither tell their  features nor describe them in any way. When he returnedlater they were gone but the deceased was lying down in a coma.

The other worker who testified was MOHAMED SHULE GOLISHA(P.W.4) (GOLISHA). He was employed to sell water to the publicfrom a water point which was about 30 yards from the shop. He wason his own at the time. He said he saw some two people standing atthe window of the shop and he thought they were waiting to buyprovisions. The shop is near the Malindi/Mombasa main road. Allhe could say however was that one was short and one was tall. He did not see their colour or whether they were fat or thin. Henever noticed their clothing. When he heard two gun shots ring outhe took off towards the bush in the opposite direction to save hislife. He was unable to recognise or identify anyone in connectionwith the offence.

The probative value of those two witnesses is thus virtuallyworthless. They made no mention of any description of clothing orphysical features of the assailants and on their own candid confessions, they did not witness the killing or see the personswho did it.

It was therefore left for the prosecution to build up anunassailable case based on circumstantial evidence. That isevidence in which the inculpatory facts are incompatible with theinnocence of the accused and incapable of explanation upon anyother reasonable hypothesis than that of guilt. I will now examinethe evidence in that regard.

The strongest evidence was tendered through ANDERSON SHULELEWA (P.W.5) (LEWA). He was a KANU Youth Winger aged 47 years andcame from Msabaha area. He was a neighbour to the second accused(SAMSON SHAURI MJAPE) (SHAURI). He found Shauri at a "Mnazi" (Palmwine) - drinking area with two strangers and he was invited for adrink. That was at about 2 p.m. on 3. 12. 94. The shamba of thedeceased was two kilometres away between Msabaha and Malindi.Shauri, according to him, had told him he was taking the strangersto some place up the road and they would return by 5 p.m. But theydid not. At about that time however, Lewa happened to be near theMalindi/Mombasa road when he saw two people running fast towardsMombasa direction. He tried to talk to them but they did notrespond. They stopped a bus which they entered and went towardsMombasa. He recognised them as the two strangers he had seenearlier at 2 p.m. He also noticed what they were wearing. One,whom he pointed out in the Dock as 1st Accused (SIMEON MRAMBAMWENI) (MRAMBA) had black trousers and a black T-shirt. The other, whom he pointed out in the Dock as the 6th Accused (THOMAS KAZUNGUKALUME) (KALUME), had greenish trousers and also a greenish shirt.He also had a "Box" - style haircut.

On seeing those two strangers Lewa said he went straight toreport to the Chief of the area. Shortly thereafter some peopletold him Swaleh had been killed.

Unfortunately for this witness, when the statement he gave tothe Police when his mind was still fresh on 12. 12. 94 was put to himin crossexamination, he denied several material portions of itwhich were contradictory to the version narrated in court. Hisexplanation was that the Police did not write down what he had toldthem or forgot to do so.

More importantly there was no identification parade held forthis witness to test the description, if any, that he may havegiven to the Police about the two strangers when he recorded hisstatement. Dock identification carries no weight. He mentionedsome items of clothing worn by the two strangers but none wereshown to him for identification in court. The only items ofclothing produced as exhibits in court were:

4(a) Blue Trousers

4(b)  Green T-shirt

4 (c) Black Cap

4(d)  White pair of leather shoes

5(a)  A green Jacket

5(b)  A dark brown balaclava.

These items bear no relation to those seen by Lewa and werenot recovered from Mramba or Kalume.

An attempt by the prosecution to support the evidence of Lewathat the two strangers were seen in the neighbourhood of Msabahawas frustrated when three other witnesses called went off on atangent and denied having witnessed such fact. One was LUGO MJAPEKISI (P.W.6) (LUGO). He was a "Mnazi" seller and was presumablytendered to support Lewa's evidence that the two strangers were athis Msabaha Mnazi drinking club with Shauri, his brother.

Lugo said he knew Mramba (1st accused) in August/September1994 when he was introduced to him by his son who is married toMramba's sister. But at 2 p.m. on 3. 12. 94 he did not see Mrambacome to his Mnazi-selling club with Shauri. Shauri was there atthe time drinking but so were many other people. He was busyselling but he never saw Mramba that day.

The Prosecution hit a similar blank with (P.W.7) KATANA MJAPEand (P.W.8) ALFRED KENGA LUGO both of whose evidence had no^probative value in this case.

That leaves the solitary evidence of Lewa, which as observedabove was discredited.

Other circumstantial evidence that could have been developedin aid of other evidence but was sadly left in limbo by theinvestigators was the report on the live cartridge and blood-stained panga collected from the scene of crime by SERGEANT PATRICKMWANGI (SGT MWANGI) (P.W.ll) and handed over to the scenes of crime Officer.  No report was produced about them.  Apart from photographs having been taken at the scene, which were also not produced, there was no evidence of any other kind of investigation having been done at the scene, including dusting for fingerprints or collection of any incriminating material. There was evidence of some incriminating letter having been recovered which was allegedly written by Mramba (accused 1) but no evidence from a handwriting expert was tendered to prove that it was so written.

The prosecution then fell back on extra-judicial statements made by some of the accused persons which allegedly amounted to confessions. They called three Police Officers in that endeavour.

The star witness among them was (P.W.15) CHIEF INSPECTOR JOHN BENJAMiN KADZAA (KADZAA) whose evidence I shall revert to presently. As some of the statements were retracted or repudiated, I shall restate the law relating to such confessions. It has been restated in many treatises on law and in decided cases, some of which were cited to me in submissions by learned Counsel for the accused persons Mr. Ngombo. But the common thread running through them was summarised in TUWAMOI -vs- UGANDA (1967) EA 84 which was followed by the Court of Appeal in Bakari Omari & John Martha Komora -vs- Republic (1982-88) 1 KAR 349; thus:

"We would summarise the position thus - atrial court should accept any confession whichhas been retracted or repudiated or bothretracted and repudiated with caution, andmust before founding a conviction on such a confession be fully satisfied in all thecircumstances of the case that the confessionis true. The same standard of proof isrequired in all cases and usually a court willonly act on the confession if corroborated insome material particular by independentevidence   accepted by the court.  But corroboration is not necessary in law and thecourt may act on a confession alone if it isfully satisfied after considering all thematerial points and surrounding circumstancesthat  the confession cannot but be true".

The court stated that it was dangerous to act upon suchstatement in the absence of corroboration in material particularsor unless the court after full consideration of the circumstancesis satisfied of its truth.

The first extra-judicial statement was recorded by P.W.13 IPCHRISTOPHER MSHIMBA (IP MSHIMBA) from the fourth accused StephenKahindi Mwadzani. It was retracted and a trial within trial washeld. I held, for reasons stated in my Ruling, that the statementwas admissible. But IP Mshimba was never recalled to produce thestatement in evidence.  It is not part of the record.

P.W.14, IP ISAAC QNYANGO (IP ONYANGO) was summoned to produce the charge and caution statement of the 2nd accused, Shauri.Although it was at first retracted and a trial within trialfollowed resulting in its admission as Exhibit 6, it turned outthat the accused merely denied having been connected with theoffence and pleading that he only helped Police to arrest one who was involved. There was also Exhibit 7 which was a Statement UnderInquiry recorded from the 3rd Accused, William Kadenge Mjape(William) by CI Kadzaa.  It contains no inculpatory material andtherefore amounts to no confession for the offence charged.

The most extensive of the extra-judicial statements recordedwas from Shauri. Two of them were recorded on 31. 12. 94 and 4. 1.95. Both by CI Kadzaa.

It is in those statements Under Inquiry that Shauri implicatedthe 5th accused, Robert Lugo Mjape (Robert), in the conspiracy tocommit the offence charged. He also implicated the 4th accusedStephen Kahindi Mwadani (Stephen) and the 1st accused, Mramba inthe commission of the offence.

The law on accused persons implicating co-accused persons in their extra-judicial statements has been stated in various cases. In Karava s/o Nionyi & Others (1953) 20 E.A.C.A. 324. the court held:

"It is incorrect to regard a confession madeby the accused in an extra-judicial statementas a basis for a case against his co-accusedand to hold that with some corroboration it issafe to convict. What is needed isindependent evidence which when linked withand supported by the confession of the co-accused removes beyond any reasonable doubtthe question of innocence".

There must therefore be other independent evidence against the co-accused implicated in the offence if the extra-judicial statement of Shauri should merit any serious consideration. I find no such evidence on record. The statements under Inquiry made by Shauri who it will be recalled, subsequently denied his involvement in the crime in his charge and caution statement, should be taken with utmost circumspection.  It was submitted by Counsel for the accused that the statements should not have been recorded by CI Kadzaa. That is because CI Kadzaa was the investigating Officer in the case despite his denials that he was not. And on authority, an "investigating Officer should not record extra judicial statements. The Court of Appeal stated in Karura -vs- Republic (1982-88) 1 KAR1165.

"We  see  the  danger  of  the  statement  beingrecorded  by  investigating  officers. The practice has always been that the statement isrecorded by another officer who latter wouldproduce it in his evidence, but not theinvestigating officer in order to avoid (theallegation that the investigating officercould have tailored the appellants statement   so as to suit the guilt of the appellant)".

In this case there was mention of an Investigating Officer named as IP CHERUIYOT KIRUI.  At no stage of the case however was that officer produced or testified before the court.  On the other hand CI Kadzaa who gave evidence at length and was cross examined in depth, appears to have delved into every aspect of the case with considerable zeal and did a starling job of it.  He was only one day old at Malindi Police Station after being transferred there from Tana River when he was instructed by his senior, the DCIO, Mr.Waigwa, to assist in the investigation of the murder. That was on11. 12. 94. No one had been arrested. He took the file and wentthrough it then started interrogating suspects. He travelled withother officers to the scene of crime and to various other placeswhere such suspects were said to have been. He made arrests ofseveral people. Some were released without being charged. Hehimself recorded five statements from those he arrested. He deniedthat in that process he gathered enough material and information toconcoct the statement he eventually attributed to Shauri on31. 12. 94.

In the absence of any investigating Officer having beenproduced by the prosecution, the complaint would not be unfoundedthat CI Kadzaa held himself out as the Investigating Officer andought not therefore to have been involved in taking down extra-judicial statements from Shauri.

Shown a Passport of Robert (accused 5) confirming that Robertwas out of the country between 23. 10. 94 and 11. 1.95 and could nottherefore have been in any meetings as alleged by Shauri, or at thescene of the murder on 3. 12. 94, and being asked to explain why thatinformation was not crosschecked during investigations, CI Kadzaareplied that he arrested Robert on 6. 2.95 but the following day7. 2.95 he was transferred to Machakos and would not know why theinformation was not crosschecked.

It must be clear by now, that I am not satisfied that there was any independent, consistent and credible evidence to establishthe burning question posed above, who killed the deceased?

The extra-judicial statement of Shauri stands alone and findsno corroboration in the rest of the evidence. Even items ofclothing recovered from him bear no relevance to other independentevidence on record. Having so found, it would be unjust to callupon the accused persons to fill in the yearning gaps in theprosecution case. The court should be in a position to convict the accused if they exercised their constitutional right to silence.The evidence on record is incapable of sustaining the verdict thatthe case is proved beyond reasonable doubt.

Consequently it would be futile to proceed further andconsider the issue of malice aforethought or intent which theprosecution sought to establish. Even if I was to consider it, Ifind on the evidence on record that it was not established beyondreasonable doubt. The motive that was touted by the prosecution toestablish the intent was again stated in the extra-judicial statement of Shauri. It was that the deceased should be killed inorder to resolve a land dispute between him and some of the accusedpersons. Although mention was made of some Civil Case pendinghearing in the High Court, no effort was made to go beyond themention to establish the nature of the dispute and those involved.Atiya (P.w.2) believed that the people who were squatting on herhusband's land carried out the killing. She mentioned somediscussions about buying land having been held 10 years earlier between her husband Shauri and William. She had nodetails of such discussions. She said some squatters left afterbeing sued but only the six accused persons remained. She believedthat there was a meeting held in a village at Msabaha whichresolved that the deceased should be harmed. But it was only arumour and she could not tell whether any of the six accused werepresent. Apparently all this information was not passed on to thePolice.

Neither (P.W.3) MBAE, the Watchman, P.W.4 GOLISHA who hadworked on the Farm for 7 years testified about the land dispute.Nor did any of the other prosecution witnesses give any details onthe alleged land dispute that was the motive for the killing.Incisive investigation does not appear to have been directed atthat direction although it was a vital part of the prosecutioncase. Indeed CI Kadzaa stated that he did not follow the report ofthe land dispute between the deceased's family and squatters. Andapparently no one else did.

The upshot is that the accused persons must be discharged asI find no evidence establishing beyond reasonable doubt that they,and they alone, jointly murdered the deceased. I record a findingof NOT guilty under Section 306(1) of the Criminal Procedure Code.The accuseds shall be set at liberty forthwith unless they areotherwise lawfully held.

Dated at Mombasa this 29th day of January, 1999

P.N WAKI

JUDGE