Republic v Mulwa & another [2022] KEHC 11828 (KLR) | Murder | Esheria

Republic v Mulwa & another [2022] KEHC 11828 (KLR)

Full Case Text

Republic v Mulwa & another (Criminal Case 39 of 2016) [2022] KEHC 11828 (KLR) (12 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11828 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 39 of 2016

MW Muigai, J

July 12, 2022

Between

Republic

State

and

Nelson Mulwa

1st Accused

Vincent Mutiso

2nd Accused

Judgment

1. The accused persons herein Nelson Mulwa and Vincent Mutiso were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. In the Information, the particulars of the offence are that on the October 19, 2016 at Ivovoani village, Mitaboni sub-location in Mitaboni Location of Kathiani Sub-county within Machakos County, murdered Peter Musyoka Muli.

2. On November 8, 2016, both accused persons appeared in Court for plea. The information was read out and every ingredient thereof to the accused persons in the presence of Mr Kisini Advocate on record for the both accused and they pleaded Not Guilty for the offence of murder. Both Accused persons were released on bond on July 25, 2015.

3. The hearing started on October 1, 2018 and the Prosecution called a total of eight (8) witnesses in support of their case. The 1st accused was represented by Mrs Mutua while 2nd accused was represented by Mr Kisini.

Evidence 4. PW1, Zacharia Musyimi Nzioka testified that on October 19, 2018 that he operated a bodaboda (motorcycle taxi business) and on the said evening at 9pm he ferried Peter, the deceased, who was well known to him, to his home. They agreed on the charges.

5. While on the way another motor cyclist blocked them and that the two accused persons therein alighted (pointing to the Accused persons in the dock in Court). The 1st Accused person was the rider and the 2nd Accused the passenger. PW1 said he knew the Accused persons before this incident he saw them as the headlights were on and he recognized them. He knew the 1st Accused person as a bodaboda operator while the 2nd Accused worked with his mother at a certain Bar.

6. The 1st & 2nd Accused persons descended and attacked the deceased by raining blows and kicks on him and then taking him to the 2nd accused’s bar. The deceased paid him Kshs 50/- .The accused persons took the deceased away towards the bar where 2nd accused worked. He did not have any grudge/differences with both accused persons.

7. On cross-examination by Mrs Mutua for the 1st Accused admitted he knew the two accused persons and he gave out their names to the police. He admitted he recorded Witness Statement. He admitted witnessing the attack on the deceased by the two accused persons who violently kicked the deceased on the stomach then ferried him away on their bike.

8. On further cross-examination by the Mr Kisini for the 2nd Accused person he stated that he did not know whether the deceased was drunk. That he knew the motor bike registration number of the 1st accused person and that the 2nd accused person used to work at the counter of the Bar which is owned by his mother. That the accused persons took the said Peter (deceased) to the 2nd accused’s bar and he left for his home, that the 2nd accused claimed that his passenger (Peter) had left without clearing a bill incurred at the bar.

9. On re-examination, he stated that he recorded his statement on October 18, 2016at 9pm.

10. Pw2 Nicholas Kilonzo testified that on the material day, October 18, 2016at 10. 00pm he was at a bus stage in the company of a friend, Lucas Wambua, when the 2nd accused informed him that there was a customer who was at a certain bar and who needed to be ferried. He proceeded to the said bar and the 2nd accused person (Vincent Mutiso) brought the customer and placed him on the motorbike and took him to the police station. The customer was one Peter whom he managed to recognize the following day. All four of them proceeded to Kenol Police Station being led there by the 2nd accused herein. He further testified that the said Peter looked drunk and further added that he didn’t know what had happened to the said Peter. He later recorded his statement with the police. The 2nd accused claimed that Peter (deceased) herein had not paid his bills.

11. On cross-examination by Mrs Mutua for the 1st Accused, he stated that he was arrested and spent two days in custody. That the four of them (Kilonzo, Lucas, Vincent & Peter) proceeded to the Police station and he saw Peter who appeared drunk. He stated that Peter was also placed in the cells.

12. On further cross-examination by Mr. Kisini for the 2nd Accused he stated that he did not see one Zacharia Musyimi at the scene; that he saw Peter who looked drunk as he could not walk and that they went home after Peter had been placed in the cells.

13. PW3 Lucas Wambua testified that on October 18, 2016 at 10 pm he was at the bus stage in the company of one Kilonzo waiting for passengers when one Vincent Mutiso came and requested them to go to a certain bar and fetch a customer. They picked up the customer and all four of them proceeded to the Kenol Police station. The passenger, he came to know as Peter was placed in the cells. He learnt of the death of Peter the following day. He was arrested but later released.

14. On cross-examination by Mrs Mutua for Accused (1) he said that he did not see the 1st Accused on that day. On further cross –examination by Mr Kisini for the 2nd accused he stated that he did not know Zacharia Musyimi and that he did not witness any assault on Peter.

15. On re-examination, he told the Court that Peter appeared drunk and could not even walk.

16. Pw4 Robert Mutua testified that on October 19, 2016 he was informed that his brother, the deceased, had been apprehended by authorities from a bar. That on the following day he went to check on him at the police station and was informed that the deceased had been rushed to Mitaboni Hospital. He proceeded to the hospital but did not get him. Later he found the deceased body at the mortuary. On October 25, 2016 he was at the mortuary to witness the postmortem on the deceased.

17. On cross-examination by Mrs Muia for the 1st Accused he stated he did not witness the incident. On further cross-examination by Mr Kisini he stated that one Nelson Mulwa (1st Accused herein) is the one who alerted him that the deceased had been arrested due to drunkenness. He came to learn later that the deceased was assaulted. He cannot tell when the deceased was taken to the hospital

18. PW5 PC Christine Mwiti testified that on October 18, 2016 at 2200hrs she was on duty at the report office, Kenol Police Post within Kathiani Police Division when four members of the public, including the two accused persons turned up with the deceased claiming that he had drunk alcohol at the bar and refused to pay, and attempted to run away. She placed the deceased in the cells as she booked the report from the accused persons. She further testified that the deceased could not talk as he only nodded when spoken to. The condition of the deceased worsened and she contacted her colleagues who drove him to hospital at Mitamboni where he was referred to Kathiani District Hospital.

19. On cross-examination by Mrs Muia for 1st accused she stated that she did not see any injuries on the deceased as he did not complain of anything and that his clothes were clean though he was drunk. That she heard the deceased groaning and alerted her colleagues. On further cross-examination by Mr Kisini for 2nd accused she stated that the deceased was brought at the Police Post at around 10 pm and it was claimed that he had drunk beer and failed to pay for it. She booked the deceased with an offence of creating disturbance. She did not establish any injury on the deceased. The deceased was drunk and could not talk and that the deceased did not complain of anything.

20. PW6 PC Josephat Kageche Njomo testified that on October 18, 2016 PW5 briefed him of a suspect who had been brought on allegation of creating disturbance and failing to pay for alcohol consumed. He found the deceased in the company of four others including the two accused persons herein. That the deceased was seated on the ground and looked drunk. The deceased had no signs of injuries as his clothes had no blood stains. The deceased was placed in the cells alone. The following day at around 5. 00 am his colleague alerted him that the suspect (deceased herein) had been rushed to Mitaboni and Kathiani Hospital respectively where he passed on at the hospital and they took the body to the mortuary.

21. On cross-examination by Mrs Muia for the 1st accused, he stated that when the deceased was brought to the police post he searched him but did not notice any visible injuries. That the deceased appeared too drunk. On further cross- examination by Mr Kisini, he stated that the deceased could not support himself, he was too drunk and could not even talk, that he had some foam on the mouth that he died while being rushed to the hospital.

22. On re-examination, he testified that the deceased could not talk.

23. PW7 CIP Osman Mohamed Adan testified that on October 19, 2016 at 6. 00 am he was alerted by one of the officers, PW6, that a suspect in the cells was seriously sick and on rushing there he saw the deceased who was foaming in the mouth. He decided to rush him to Mitamboni Health Center in the company of Pw6 and the driver. The deceased was referred to Kathiani District Hospital and on arrival the doctors confirmed that the patient was already dead. They took the body to the mortuary.

24. Later on members of public brought four (4) men namely Nicholas Kilonzo, Nelson Mulwa, Vincent Mutiso and Luka Wambua. He re-arrested them and escorted them to Machakos Police Station. Upon investigations he established that the deceased had gone to Backyard Bar in company of one Rasta and ordered for keg beer worth 300/- drunk it and left without paying. The deceased was pursued and assaulted and later escorted to Kenol police patrol base for the offence of creating disturbance. He then proceeded to one of the key witnesses and recorded statement.

25. On cross-examination by Mrs Muia for the 1st accused he stated that he was the investigating officer and recorded the statement from the key witness one Nzioka Zacharia Musyimi PW1. He noted that there was whitish foam with no blood and that the deceased’s body was swollen but that there were no bruises. He stated that the members of public who came to the station were in excess of a hundred people in number. That two of the four who were brought to the station are witnesses in this case but he is not the one who recorded their statements. He stated that deceased did not die while in police cells. He further stated that the deceased clothes had no bloodstains but they were dirty. On further cross-examination by Mr Kisini he stated that he did not go for routine checks. That he was called at around 6. 05 am He denied that they failed to help the deceased in getting medical aid in time. He stated that the rider who ferried the deceased from the bar gave a statement on how the deceased was attacked by the accused persons.

26. On re-examination, he testified that the part of the body of the deceased around the neck was swollen and that his clothes were dirty.

27. PW8 DR. Gatua Daniel testified that a post mortem was conducted on the deceased on October 25, 2016 by Dr. Kalekye Ndeto who was/is currently pursuing post graduate studies. He proceeded to produce the report on behalf of Dr. Kalekye. The post mortem was conducted at 3. 30 pm and external appearance revealed a bruise on lower back. The body was that of an adult African male of good nutrition. The body was severely pale. The respiratory system had in both lungs hematoma (blood accumulation 600ml). The digestive system had same blood on the lateral side of the liver and spleen had a small tear. There was accumulation of blood in the peritorium (50ml) The other systems were unremarkable. The cause of death was opined as severe haemorrhage due to chest injuries from blunt trauma. The Post Mortem Report was produced as exhibit in Court.

28. On cross-examination by Mr Kisini, he stated that he has not availed documents to show that he is a doctor and that the deceased had a bruise on lower back that had been made forcefully. He confirmed the spleen had a tear and liver had blood clots. Drinking can cause injury to the liver but not blood clot or bleeding. He added that loss of blood caused the death of the deceased.

29. The Prosecution closed their case on December 10, 2021.

30. The Ruling on a case to answer was delivered in Court on September 21, 2021 by the Trial Judge Hon DK Kemei J. who found on summarizing the evidence on record that the Prosecution established a prima facie case to warrant both Accused persons to be placed on their Defense. The accused persons opted to give sworn evidence with no witnesses to call.

31. This Court took over the matter on October 5, 2021 and proceedings were typed and availed to Accused persons through their Advocates on record and the ODPP.

32. DW1 Nelson Mulwa testified that on the material date the October 19, 2016at around 9 pm he was at Kenol market operating bodaboda business. While there a customer by the name Vincent (2nd accused herein) called and told him to go and find someone who had left with his bill. He took him and after riding for about 100 metres they reached where Peter Muli (deceased) was – the customer who had his bill. Vincent asked Peter something but he did not hear what Peter Muli said and Vincent then called his mother who owns a business and informed her that he had caught someone who had their money. The mother told the 2nd accused person to take the person (deceased herein) to the Police Station. Both 2nd accused and the deceased boarded the motor cycle and he took them to Kenol Police Post and dropped them there. He could not alight from the motor bike and beat the deceased as he did not owe him anything. There were many people with motorbikes at the time. He stated that he had not carried nor met Vincent (2nd accused) prior to this date. He also stated that he knew Peter Musyoka Mulli from the area he lived in.

33. On cross – examination by Mr. Mwongera for the ODPP the 1st accused stated that Vincent (2nd accused) was only his customer on that day. That he rode the 2nd accused to where Peter Muli was. He denied beating up Peter Muli (deceased). That he took the 2nd accused together with the deceased to the Kenol Police Station.

34. DW2 Vincent Mutiso Daudi told the Court that he is a Juakali artisan. On the material date the October 19, 2016at around 9 pm he was at Kenol market. He was employed by his mother to work at the club Backyard. On October 19, 2016, Peter Muli (deceased) went to the club and drank the ‘keg’ drink worth Kshs 300/- and left without paying, took a motor cycle (boda boda) and ran/sped off. He then went looking for another bodaboda rider and found Nelson (1st accused) and they went looking for Peter Muli (deceased). They found him. He was too drunk he could not speak well. He then called his mother who told him to take Peter (deceased) to the police post. When they arrived at the police post the police officers asked them to carry him inside and immediately the police started beating him saying that the matter was then with the ‘serikali’. The following day they were arrested and later charged with the offence. He stated that when they took the deceased to the police post he was in good health but very drunk and he was alive.

35. On cross–examination by Mr Mwongera for the ODPP he reiterated that the deceased came to his mother’s club and took alcohol worth Kshs 300/- and left without paying hence he took the initiative of pursuing him. He denied beating the deceased together with the 1st accused insisting that the deceased was beaten up by the two one male and another female police officer and had a rungu who they found at the police post.

36. On February 24, 2022 this Court directed both parties to file their written submissions.

Submissions ODPP Submissions 37. The Prosecution availed eight witness to prove its case.The following issues are crucial for determination namely;- Was the accused involved in the murder of the deceased?

Did the accused have malice?

Was the accused identified appropriately?

Was the cause of death as a result of the injuries inflicted?

(A) Was the accused involved in the murder of the deceased? 38. The testimony of PW1 placed the accused persons at the scene of crime. Both accused attacked the deceased and rained blows on him all over the body and took him away towards the 2nd accused bar then to the police post. The testimony of PW5 and PW6 indicated that the deceased was held in custody overnight and was taken to the hospital in morning where he was pronounced dead on arrival.

(B) Did the Accused have Malice 39. Section 206 of the Penal Code states that 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.

40. It is evident that the accused person had malice aforethought due to the deceased’s unpaid bills, which necessitated them to inflicted injury to the deceased.

(C) Was the Accused identified appropriately? 41. The accused persons were properly identified by PW.1 who was present when the accused persons ambushed them on their way home.

(D) Cause of death 42. PW.8 filled the post mortem and stated that the deceased’s cause of death was severe hemorrhage due to chest injury from blunt force trauma.

43. In the case of Ronald Nyaga Kiura –vs- Republic [2018] eKLR in para.22 it is stated as follows:-“It is important to note that at the close of prosecution, what is required in law at stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebutted is offered by an accused person.”

44. Also in the case ofRamanlal Trambaklal Bhatt –v- Republic [1957] E.A 332 at 334 and 335 relied on by the state, the Court as follows:“It may not be easy to define what is meant by a ‘prima facie case’ but at least it must mean one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

45. Also the case of Republic –v- Jagjiwan M. Patel & Others (1) T.L.R. (R) 85 was cited.

46. It was further submitted that the defence testimony is an afterthought since PW.1 who was present at the scene witnessed both accused persons assaulting the deceased. The evidence of PW2 and PW3 showed that the deceased taken back to the bar. Pw8 attributed the cause of death to severe hemorrhage due to chest injury from blunt force trauma.

47. It was finally submitted that the Prosecution in addition to availing testimonies it produced documentary evidence as exhibits in this matter hence it has proved its case beyond reasonable doubt and the accused ought to be convicted under Section 203 as read with Section 204 of the Criminal procedure Code.

1St Accused Submissions filed March 23, 2022 48. The 1st accused based his submissions on the three ingredients outlined in the recent case of Republic v Dorothy Awour Juma which are as follows:-a.Proof of the fact and the cause of death of the deceased;b.Proof that the death of the deceased was the direct consequence of an unlawful act or omission on the part of the Accused which constitutes the ‘actus reus’ of the offence;c.Proof that the said unlawful act or omission was committed with malice afterthought which constitutes the ‘mens rea’ of the offence.

A. Proof of the fact and the cause of death of the deceased 49. On the proof of the fact and the cause of death of the deceased it was submitted that the prosecution witnesses accounts of how the death occurred differed from one witness to the other.

B. Proof that the death of the deceased was the direct consequence of an unlawful act or omission on the part of the Accused which constitutes the ‘actus reus’ of the offence; 50. It was submitted that the prosecution alleged that the 1st accused jointly with the 2nd accused committed the offence of murder but failed to prove the same through the testimonies of its witnesses since none of the eight witness actually saw the 1st accused person commit the offence. PW.1 an eye witness told the Court that he had carried the deceased person as a pillion passenger on his motor cycle and that the two accused persons blocked his motor cycle. PW.2 and PW.3 did not seem to know or even recall seeing him at the area. PW.5 and PW.6 (police officers) testified that the deceased’s clothes were clean and he had not injuries at the time he was locked.

51. In the case of Republic -v- Kipkering Arap Koske and Another 16 EACA 135 regarding circumstantial evidence the Court held 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 hypothesis than that of his guilt.”

52. Pw.7 the investigating officer admitted that he did not follow up on one Rasta who was mentioned to be in company of the deceased at the bar nor questioned or interviewed him on his recollection of the night’s events. Also PW.4 the deceased’s brother also had contradictory testimony where he stated that he was reliably informed that the deceased had been apprehended by authorities in a bar. PW.5 & PW.6 (police officers) confirmed that the deceased when brought at the police post did not have any physical injuries and his clothes were clean. That there is no record of the inquest or the findings thereof in the matter while it is very clear that the deceased died while in the custody of the police. That according to his defense he was engaged by the 2nd accused to ferry him and the deceased to the police post and upon dropping them he left them there. On this account in totality the deceased did not died of any cause necessitated by the 1st accused.

B. Proof that the said unlawful act or omission was committed with malice afterthought which constitutes the ‘mens rea’ of the offence.Section 206 of the Penal Code on malice aforethought supra. 53. .It was submitted that the prosecution failed to prove that the 1st accused caused the death and it follows that it cannot be said that he had the malice aforethought to murder the deceased when the prosecution has not established that the 1st accused person caused the death.

2Nd Accused Submissions filed on 22/3/2022 54. The 2nd accused based his submissions on the following elements as cited in the case of Anthony Ndegwa Ngari –vs- Republic as follows;-a.The death of deceased occurred,b.That the accused committed the unlawful act which caused the death of the deceased; andc.That the accused had malice aforethought

(A)The death of the deceased: 55. From the evidence tabled by PW.1 – PW.8 there is no dispute that the decease died and a post mortem report produced and the cause of death was severe haemorrhage due to the chest injuries from blunt trauma.

B. Proof that the accused committed the unlawful act which caused the death of the deceased 56. According to the evidence adduced, the prosecution witnesses who testified did not link both accused persons to the death of the deceased. Even one of the eye witness who testified that he saw the 2nd accused kick the deceased evidence was not corroborated hence it will be unsafe for the Court to rely on his sole testimony therefore the actus reus has not been proved beyond reasonable doubt as required under the law.

57. In the case of Republic –vs- Samson Lotukei Loitasia [2017] eKLR the Court observed that;“A case annexed on circumstantial evidence as this one must satisfy the three test laid in the case of Abanga alias Onyango –v- Republic Cr. Appeal No. 32 of 1990 (UR) that is;1. the circumstances from which an interference of guilt is sought to be drawn, must be cogently and firmly established;2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;3. The circumstances taken circumstantively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

58. According to the Accused 2 testimony the Police Officers at Kenol Police Post assaulted the deceased hence the test No. 3 above has not been established.

C That the accused had malice aforethought 59. In the case of Nzuki –vs- Republic [1993] KLR 171 the Court of Appeal held that before an act can be murder, it must be aimed at someone and in addition it must be an act committed with the following intentions, the test of which is always subjective to the actual accused- Intention to cause death- Intention to cause grievous harm Where the accused knows that there is risk that death or grievous harm will ensue from his acts and commits them without lawful excuse.

60. It was finally submitted that the prosecution has not established any malice aforethought on the part of both accused persons and this court should forthwith discharge the accused persons.

Determination 61. The issue for determination is whether the Prosecution proved that the Accused persons committed the offence of murder contrary to Section 203 as read with Section and 204 of the Penal Code.203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.Malice Aforethought206. 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.Burden & Standard Of Proof(Section 107-109-111 Evidence Act)109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.111. Burden on accused in certain cases(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him…….

62. In Miller vs Minister for Pensions [1947] 2 All ER 372 (Kings Bench) referred to in Republic vs Jane Muthoni Mucheru & Isaack Nganga Wambui alias KikuyuHigh Court Criminal Case No 45 of 2018 (Nakuru High Court) Formerly (Kiambu High Court Crim case 89 of 2016) Hon J. Ngugi J; the standard of proof in criminal cases was stated as follows;“…..the evidence must reach the same degree of cogency as is required in a criminal case before an Accused person is found guilty. The degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence; ‘of course it is possible but not in the least probable’; the case is beyond reasonable doubt, but nothing short of that will suffice.”

63. To prove the elements of the offence of murder, in Republic vs Mohammed Dadi Kokane & 7 Others [2014] eKLR, Hon LJ M. Odero stated;a.The fact of death of the deceased [actus reus]b.The cause of deathc.Proof that the deceased met his death as a result of an unlawful act or omission on the part of the Accused person and lastly;d.Proof of unlawful act or omission was committed with malice aforethought. [mens rea]

Analysis of Evidence on record by different Courts 64. In Abdi Adan Mohammed vs Republic Criminal Appeal No 1 of 2017, the Court of Appeal considered an appeal from Criminal Appeal 271of 2012 where the Trial Court applied Section 200 CPC to have the hearing start denovo changed its mind upon application by the prosecution to invoke Section 34 of the Evidence Act after it failed to procure the attendance of the witnesses who had previously testified.

65. The Court referred to the case ofNdegwa vs Republic (1985) KLR 535 where Madan Kneller & Nyarangi JJA ( as he then was) stated;“It could also be argued that the statutory and time honored formula that the Trial magistrate being the best person to do so; he should himself see, hear, assess and gauge demeanor and credibility of witnesses. It has been and will be so in other cases that will follow. In this case , however, the 2nd Magistrate did not himself see and hear all prosecution witnesses even though he said that he carefully ‘observed’ the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanor of all witnesses in the cases. A fatal vacuum in this case in our opinion…..for these reasons we have stated in our view the trial was unsatisfactory.”

66. In Joseph Kamau Gichuki vs R Criminal appeal 523 of 2010 cited in Nyabutu & Another, the Court stressed that;““By dint of Section 200(1) (b) of the CPC a succeeding Judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstances, not only are likely, but will defeat the ends of justice if a succeeding judge does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete trial………. See Ndegwa vs R (1985) supra. In this case the Trial Judge passed on after having fully recorded evidence of 7 witnesses….in fact [he] had summed up to the Assessors. The trial, moreover, was not a short one but a protracted one which had taken 5 years to conclude. The passage of time militated against the Trial being started de novo…….”

67. The principles in the above case law cited applied to the instant case, the trial herein commenced in 2016 and Ruling was delivered by Trial Judge in 2021, the matter was heard over a span of almost 6 years. The Trial Judge due to explained logistical and personal challenges was unable to come back and complete partheards as per the letter written to the Presiding Judge.

68. The evidence adduced by all Prosecution witnesses was heard by the Trial Judge Hon. D.K. Kemei J culminating with the Ruling delivered on 21/9/2021 on a case to answer, which read in part on evaluation and finding on the evidence as follows;The analysis of the evidence adduced herein is clear that the deceased was arrested while in good health and that he had no complaints to make about his health up until PW5 went to check up on him to notice that he was not doing well. It is also clear that from the evidence of those who testified did not speak about any visible injuries or ill health with the exception of PEX.8 who from the Post mortem report noted the deceased had a lower back injury and experienced severe hemorrhage.

69. With regard to the fact that the proceedings were partly conducted by the Trial Judge Hon. D.K Kemei and partly before this Court particularly only with regard to the Defense Hearing; the provisions of Section 200 (3) CPC were not applicable in that the provision provides;(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.

70. In the instant case this Court took over the matter after the Prosecution case was closed before the Trial Judge, parties’ through their respective Counsel were granted opportunity to file written submissions and thereafter, the Trial Judge after considering the evidence adduced, the law and submissions filed rendered the Ruling of 21/9/2021and set down the matter for Defense Hearing under Section 306 (2) CPC.

71. The Ruling of 21/9/2021 is and remains a valid, regular and legal order of the Trial Court with similar, concurrent, competent and equal jurisdiction to/with this Court and this Court cannot reopen the Prosecution case in light of Section 200(3) CPC by recall of witnesses and /or hearing of the matter de novo because it would amount to rehearing a matter already heard and possibly setting aside Ruling delivered by the Trial Court. It is the Trial Court that heard the witnesses and thereafter evaluated the evidence. To reopen the case would amount to sitting on appeal of its own decision and this Court lacks appellate jurisdiction over its own decisions.

72. Therefore, this Court applied Section 200 1 CPC that provides;(1. Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—(a)………….(b)where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial.Section 201 CPC also provides;(1)…………(2)The provisions of Section 200 of this Act shall apply mutatis mutandis to trials held in the High Court.Fact of death of deceaseda)Proof that the deceased met his death as a result of an unlawful act or omission on the part of the Accused person and lastly;b)Proof of unlawful act or omission was committed with malice aforethought. [mens rea]

73. The Prosecution proved the fact of death of the deceased through identification of the deceased’s body by his brother Pw4 Robert Mutua, conduct of post mortem on the deceased’s body by Dr Kalekye Ndeto and production of the Post Mortem Report. Medical evidence was adduced by Pw8 DR. Gatua Daniel who testified and produced the Post Mortem Report on behalf of Dr. Kalekye Ndeto who was/is currently pursuing post graduate studies. He testified that post mortem was conducted on the deceased at 3. 30 pm on 25th October, 2016 by Dr. Kalekye Ndeto on the deceased.

74. The external appearance revealed a bruise on lower back. The body of the deceased was that of an adult African male of good nutrition. The body was severely pale. The respiratory system had contusion and, in both lungs, had haemothorax (blood accumulation 600ml).

75. The digestive system the deceased had hematoma on the lateral side of the liver and spleen had a small tear- 3cm. There was accumulation of blood in the peritorium (50ml). The other systems were non- remarkable. The cause of death was opined as severe hemorrhage due to chest injuries from blunt force trauma. The Post Mortem Report was produced as exhibit in Court by Pw8. The expert medical evidence by PW8 confirmed the deceased herein died from excessive bleeding from chest injuries from force that was applied on/to the deceased.

The cause of death 76. PW1, Zacharia Musyimi Nzioka testified that on 19th October, 2018 at 9pm he took Peter, the deceased, on his motorbike home. While on the way, the 1st Accused person was the rider of the motorbike and the 2nd Accused the passenger blocked them. PW1 saw the 1st & 2 and Accused persons at the scene as the motor bike’s headlights were on. The 1st & 2nd Accused persons descended and attacked the deceased by raining blows and kicks on him and then taking him to the 2nd accused’s bar. Pw1 recognized the Accused persons and confirmed he knew them before this incident. The 1st Accused was a bodaboda rider and 2nd Accused worked at his mother’s bar.

77. In the case of PON vs Republic [2019] eKLR; the CoA described direct evidence thus;In its ordinary meaning, direct evidence would be that which directly links a person to a crime; that which is based on an eye witness account, on personal knowledge or observation. The direct evidence sought in the matter subject of the appeal is who saw the deceased meet her death? [if] there is no such evidence hence the recourse to circumstantial evidence….

78. In the instant case, PW1 established that he saw the 2 Accused persons block him and the deceased as he took him home, on 19/10/2016 at 9pm, the Accused persons stopped them, talked to them and then they beat and kicked the deceased and took him to the Bar where he was alleged to have drank keg beer and failed to pay and left.

79. Pw2 Nicholas Kilonzo & Pw 3 Lucas Wambua testified that on the same night at 10pm they were approached by 2nd Accused person Vincent Mutiso who requested them to help take a customer to Kenol Petrol Station. The 2nd Accused person brought out from the Bar the deceased Peter Musyoka who they stated seemed drunk. They took him to the Police Station 3 of them.

80. Pw 5 PC Christine Mwiti & Pw 6 PC Josphat Kageche Njomo received from 2nd Accused person, Pw2 & Pw3 the deceased Peter who was alleged to have drank alcohol and refused to pay. They booked the deceased and placed him in cell. Pw7 CIP Osman Mohammed Adan was alerted of the Deceased’s sick condition and he rushed him to hospital where he later died.

81. The prosecution relied on the evidence of PW1 who gave direct evidence that he saw the Accused persons who intercepted him as he carried the deceased on his motor bike and they both beat the deceased and took him to the Bar. The Prosecution took the view that it proved its case beyond reasonable doubt and relied on the evidence of PW1 who was present at the scene and witnessed both Accused persons assault the deceased. The evidence of Pw2 & Pw3 as it clearly corroborated evidence of Pw.1 that the deceased was taken to the Bar, showed that the deceased was taken back to the Bar as stated by Pw1 and the 2nd Accused person asked them to help him take the deceased to the Kenol Police Station from the Bar which they did. Pw8 attributed the deceased’s death as caused by severe hemorrhage due to chest injury from blunt force trauma.

81. The Defense raised the following issues against the evidence on record. The 1st Accused through Counsel submitted that as at 19/10/2016 as per the evidence of all other witnesses the deceased had already passed on. This is because all other witnesses save for PW1 referred to the date of 18/10/2016 as the date when events leading to the death of the deceased took place whereas the charge sheet/Information reads 19/10/2016.

82. The 1st Accused’s Counsel further submitted that one Rasta who was drinking with Peter the Deceased was not investigated, or called as a witness. The evidence by Pw2 & Pw3 that it was only the 2nd Accused who came to them to the bus stage and he requested them to ferry the deceased to the Police Station. They said the deceased was drunk and could not walk and the 2nd Accused person was the one who physically supported him and put him on the motor cycle to be taken to the Police Station. The 1st Accused person was not at the scene when the deceased was taken to the Police Station.

83. Pw5 & Pw6 confirmed that on receipt of the report they found the deceased drunk but had no bruises and his clothes were clean. There was huge disconnect of events and accounts leading to death of the deceased.

84. The 2nd Accused through his advocate submitted that the Prosecution did not prove malice aforethought on both Accused persons on intention to kill the deceased. There was no evidence to link the Accused persons to the death of the deceased.

85. The Accused persons stated that the evidence of Pw1 that Accused persons beat up the deceased was not corroborated by any other prosecution witness and it would be unsafe to rely on the evidence of a single witness and the case will not be proved beyond reasonable doubt. The Accused persons submitted that the Deceased was beaten up by the Police Officers at the Police Station.

86. In the case of Republic vs Juma Kituko Mwambegu [2020]eKLR referred to the law on this part of a single identifying witness as it stands today was/is well articulated in the case of Abdalla Bin Wendo {1953} 20 EACA 166;“Subject to certain well known exceptions, it is trite law that a fact maybe proved by testimony of a single witness but this rule does not lessen the need for testing with greatest care the evidence of a single identifying witness respecting identification when it is known that the condition favoring correct identification were difficult.”

87. In Charles O. Maitanyi vs Republic [1986] KLR 198, the Court held;“Although it is trite law that a fact maybe proved by the testimony of a single witness, this does not lessen the need for testing with greatest care the evidence of a single witness respecting identification…..The Court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the Court to warn itself after making the decision, it must do so when the evidence is being considered and before the decision is made.”

88. Applying the test of identification of a single witness as outlined above to the instant case; the evidence of PW1 was that on 19/10/2016, he carried the deceased Peter Musyoki on the motorbike (bodaboda) and on the way they were intercepted by the 1st Accused and 2ndAccused person who were on a motorbike. He had headlights of the motorbike on and the Accused persons spoke to them and thereafter rained blows and kicks and they took him back to the Bar. On record, PW1’s examination in chief and cross examination he admitted that he knew both Accused persons;1st Accused person was a bodaboda operator and knew registration number of his motorbike and the 2nd Accused person worked at the Counter at the Bar owned by his mother. PW1 admitted to giving out the Accused persons names to the Police and he recorded his statement.

89. From the evidence on record and Ruling by the Trial Judge Hon. D.K. Kemei of September 21, 2021, the evidence by the single witness PW1 who adduced direct evidence that on 19/10/2016, he saw the 1st & 2nd Accused persons kick and rain blows to the deceased and although it was at night the bodaboda headlights were on, they talked and then rained kicks and blows to/on the deceased and then took him to the Bar. He knew the Accused persons before this incident as described above and he reported them to the Police.

90. The evidence of PW1 is not of identification of the Accused persons but of recognition of Accused persons as was stated in the case of Anjonini & 4 Others vs. Republic [1980] KLR 59 the CoA held as follows:““……recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”

91. In Peter Musau Mwanzia vs Republic[2008] eKLR the CoA stated as follows;“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question…………..”

92. The evidence of PW1 recorded on 1/10/2018 by the Trial Judge when PW1 Zacharia Musyimi Nzoka testified that he knew the 1st Accused and 2nd Accused before, the 1st Accused was a bodaboda operator while the 2nd Accused worked at a certain Bar with his mother. He had headlights of the bodaboda/motorcycle on that night and he recognized the Accused persons. He saw the Accused persons rain blows on the passenger and after that they took him away towards the Bar the 2nd Accused worked.

93. This Court is satisfied that the headlights provided sufficient light to see the Accused persons, there was close proximity between PW1 and the Deceased and the 1st & 2nd Accused persons as they talked to each other, then Accused person rained blows on the deceased and thereafter took him away towards the Bar. The time it took to talk, beat the deceased and carry him away was sufficient in the light by the headlights of Pw1 motorcycle/bodaboda and presumably the 1st Accused’s Motorcycle bodaboda and the close proximity to facilitate proper recognition of the Accused persons by PW1. In fact he reported the incident to the Police and gave them the Accused persons names. PW1 stated the Accused persons took the deceased to the bar where the 2nd Accused person worked with/for his mother.

94. This fact is confirmed by independent evidence of PW2 & PW3 that on the same night, the 2nd Accused person approached them at the bus stop to help ferry the customer ie deceased from the Bar to the Kenol Police Station.

95. The 1st Accused person Nelson Mulwa testified in a sworn statement that on 19/10/2016 he was at Kenol village where he worked as a bodaboda motorcycle business. He got a customer, 2nd Accused Vincent who asked to be taken to collect his bill from Peter Mulli, the deceased. He took the 2nd Accused upto there where the deceased was. The 2nd Accused asked the deceased and he did not hear what the deceased replied. The 2nd Accused called his mother and told her he caught the person who had their money. He took the deceased and 2nd Accused person to Kenol Police Station. He denied that he beat the deceased he was doing his work and the deceased did not owe him anything. He denied that they took the deceased to the Bar.

96. The 2nd Accused person, Vincent Mutiso David testified in a sworn statement that on 19/10/2016 he was at Kenol market in Mitaboni/Kathiani. He worked in Backyard Bar for his mother. Peter Musyoka Mulli came and drank and left without paying for the drink keg and left without paying Ksh 300/-. He looked for a bodaboda operator who took him to look for the deceased. He found the deceased and called his mother and told her he found the Deceased, his mother told him to take him to Kenol Police Station. He took him to the Kenol Police Post and reported the matter to the Police. The deceased was drunk and he fell off. The Police told them to carry him/hold him and put him inside. He carried the deceased and the Police Officers began to beat the deceased with a rungu. He denied that he and 1st Accused person beat the deceased. The 2nd Accused person stated that they took the deceased in good health and alive and he was very drunk.

97. Section 143 of Evidence Act provides;No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.The Defense position that the Prosecution failed to call Rasta as witness vitiated the Prosecution case; this Court finds that the Prosecution is entitled to prepare and present its case as best they can conversely the Defense is also entitled to prepare and present the Defense as best as can be in the circumstances. Section 143 Evidence Act does not prescribe a particular number of witnesses to prove a fact or case.

97. On the discrepancies and inconsistencies raised with regard to the evidence adduced by Pw2 & Pw3 vis a vis Pw5 & PW6; the evidence by PW 4 that the deceased was arrested by authorities at the Bar yet the Deceased was taken to the Kenol Police Post by Pw 2 & Pw3 and the 2nd Accused person; and most importantly the date of the events that culminated to the deceased’s death whereas the charge sheet prescribes 19/10/2016 and PW1 ‘s testimony and Witness Statement that was produced as Exhibit as per the Court record; whereas Pw2 & Pw3 referred to 18/10/2016 the Defense found that the discrepancy adversely affected the Prosecution case.

98. In the case of Willis Ochieng Odero vs Republic [2006] eKLR the CoA held;“As for the contradictions in the prosecution evidence it may be true that such contradictions, particularly with regard to the date indicated in the P3 form as the date of the offence, is different. But that perse is not a ground for quashing the conviction in view of the provisions of Section 382 of CPC…”

99. In the instant case; the Chargesheet /information refers to the date of alleged offence as 19/10/2016. Pw1 testified on 1/10/2018 and the record confirms the incident of the deceased being accosted by the Accused persons was on the night of 19/10/2016 at 9 pm. In cross examination Pw1 produced his Witness Statement dated 19/10/2016. Pw2 & Pw3 referred to 18/10/2016 in their testimony before the Trial Judge.Pw4 referred to 19/10/2016 as the date he was woken up and informed that his brother had been apprehended by authorities at a Bar. Pw 5 & Pw 6 referred to report being made on 18/10/2016 at 10 pm and Pw 7 referred to 19/10/2016 at 6 a.m. when he was alerted of the deceased in cells who was foaming in the mouth and rushed him to hospital whereupon he died. The Court finds that the contradiction and/or discrepancy of the date of when events that occurred and culminated with the deceased’s death does not vitiate the fact of the actions /omissions taking place and that those actions subsequently caused the death of the deceased.

100. In fact depending on each witness testimony reference is made to the date and time when they witness(es) was/were involved in the matter. For example, the charge sheet/information correctly reads 19/10/2016 as the date the deceased died on 19/10/2016 although events started on 18/10/2016. Consequently, PW1 referred to 19/10/2016 as at the time he reported and recorded his statement Pw2 & Pw3 referred to 18/10/2016 at 10 pm as at the time the 2nd Accused person approached them at the bus stage and they took the deceased on the bodaboda from the Bar to Kenol Police Station.

101. Pw5 & Pw6 received the report and booked the complaint from the 2nd Accused person, Pw2 & Pw3 on 18/10/2016 at 10 pm before midnight and therefore the date and time of event was correct as per the specific witness. From the above events that commenced on 18/10/2016 and culminated with the deceased’s death on 19/10/2016; the following morning actually reflects the true sequence of events as per evidence adduced in Court and on record. Therefore, the alleged seeming discrepancy /contradiction does not vitiate the Prosecution’s case but fortifies it in terms of sequence of events before midnight of 18/10/2016 and morning of 19/10/2016.

102. Pw1 gave direct evidence that the Accused persons whom he recognized obstructed him and the deceased, his passenger and they accosted him and took him back to the Bar. Despite the Accused persons claiming in their Defense that they did not rain blows and kicks on the deceased but took him to the Police Station, the testimonies by Pw2 & Pw3 confirm that the 2nd Accused person approached them on the same night at 10 pm and sought help to ferry a customer from the Bar to the Police Post. They assisted and went with the deceased and 2nd Accused person and reported the matter to the Police Pw5 & Pw6.

103. This Court finds the evidence of Pw1 Pw2 & Pw3 tangible and cogent evidence that particularly the 2nd Accused person had intention /motive in causing grievous harm to the deceased because he pre-meditated and pursued the deceased in the company of 1st Accused whose bodaboda he boarded and on reaching the deceased who was carried by Pw1 rained kicks and blows and took him back to the Bar that he took /drank keg beer worth Ksh 300/- and did not pay but fled. The 1st Accused person left the scene after he took the 2nd Accused person to the deceased.

104. The 2nd Accused person claimed in his Defense that he took the deceased straight to the Kenol Police Post, but Pw2 & Pw3 testified that the 2nd Accused approached them to take /ferry a customer from the Bar to the Police Post. They went to the Bar and the 2nd Accused brought the deceased who was placed on the motorbike and they took him to Kenol Police Post. On reaching the Police Post, the 2nd Accused placed the deceased on the ground and then went to call a Police Officer and later Peter, the deceased was placed in cells.

105. The evidence by Pw1 Pw2 & Pw3 is consistent and chronological as to the events that led to the death of the deceased and it is not consistent with the Defense advanced cause (s) of the deceased’s death, that the deceased was drunk and/or that the deceased was beaten up by the Police.

106. There is no evidence on record that suggests that Pw1 Pw2 or Pw3 had a grudge, malice or vendetta with/against the Accused persons. The Accused persons Defenses are mere denials and do not cast doubt to the Prosecution case.

107. On the cause of death being that the Deceased was drunk, the evidence of PW8 Medical expert is that the cause of death was/is severe hemorrhage of the chest injury from blunt force trauma.PW8 in cross examination confirmed that the deceased had a tear on the spleen and the liver had blood clot and there was accumulation of blood in the stomach and the deceased died due to loss of blood.Pw8 confirmed that excessive alcohol drinking can cause injury to the liver but not a blood clot or bleeding. The severe bleeding could not be caused by the deceased being drunk.

108. On defense though 2nd Accused raised the issue that the deceased died from being beaten up by the Police Officers at the Police Station or Post. This Court gleaned through the Court record and the Defense did not raise the issue of Police brutality with /to Pw5 Pw6 or Pw7 all Police Officers at Kenol Police Post and who dealt with the matter at different stages. The issue of Police Brutality is raised in the Defense for the 1st Time and only by the 2nd Accused person only. Yet that night Pw2 and Pw3 accompanied 2nd Accused to the Bar helped take the deceased to the Kenol Police Post.

109. This Court finds that the issue of Police brutality was not raised during the hearing of the Prosecution case when as 2nd Accused person stated in his defense that it was a male and Female police officer who beat the deceased with a rungu and said the matter was now with ‘serikali’.PW5 in cross examination stated that the deceased was brought by 3 people at 10 pm and she booked the complaint/report that the deceased drunk and refused to pay for the drink. The Deceased was drunk and did not talk and she did not establish any injuries on the deceased at the time. If there were injuries she would have ordered that he was taken to hospital immediately. Pw6 was called by Pw5 he came to office and found the deceased seated on the ground and he looked drunk and he had no signs of injuries or blood stains on his clothes. Clearly, no issue was raised with any of the Police Officers who testified in Court during cross-examination on Police brutality on the deceased and therefore, the 2nd Accused’s allegation cannot be tested on its veracity and his credibility as a witness as the allegation was raised for the first time in the defense in the absence of Pw5, Pw6 & Pw7 and after the Prosecution closed its case. The Deceased was taken to the Kenol Police Post by Pw2, Pw3 & 2nd Accused person. The said witnesses did not adduce such evidence of the Police Officers beating the deceased except for the 2nd Accused person only.

110. Thirdly, there was/is no evidence that the Police Officers were involved in the matter of the arrest and booking of the deceased up until the witnesses Pw2 and Pw3 and 2nd Accused person brought the deceased to the Police Post from the Bar and the deceased was carried and he sat on the ground and was not talking at the time and seemed drunk. If the Police Officers beat the deceased then from the condition he was at the time he was brought to the Police Post; he would have been taken to hospital immediately and not the following morning. For the above reasons, the 2nd Accused’s allegation is not established by any evidence on record. The allegation was/is an afterthought.

111. The totality of the evidence on record cumulatively establishes that the 2nd Accused by planning and deliberate pursuit and accosting the deceased had intention and motive to attack and did rain blows and kicks on the deceased because he drank keg beer and left without paying Ksh 300/- at backyard Bar that he ran by his mother.

112. At first the 2nd Accused was with 1st Accused the bodaboda rider who took him to where the deceased and Pw1 were was also part of beating up the deceased but thereafter 1st Accused left the scene. The 1st Accused was not involved other than as a boda boda cyclist who took 2nd accused to the scene where the deceased was. He did not go to the Bar. He did not take deceased to Kenol Police Post. He informed Pw4 of his brother ordeal. I find no intention/motive or action on his part that caused deceased’s death. However, after accosting the deceased, the 2nd Accused person took the deceased to the Bar and when he called on Pw2 & Pw3 to help him take the deceased to Kenol Police Post the deceased could not walk or talk as confirmed by the evidence on record. These facts strongly suggest that the 2nd Accused visited violence on the deceased at the Bar as he took the law in his hands because the deceased drank beer and failed to pay and then took the deceased to Kenol Police Post with the help of Pw2 & Pw3.

113. In Republic vs Richard Itweka Wahiti supra considered the case of Libambula vs Republic 2003 KLR 683 which considered the place of motive in proving a crime as follows;“We may pose what is the relevance of motive here? Motive is that which makes a man do a particular act in a particular way. A motive exists for every voluntary act and is often proved by the conduct of a person (See Section 8 of the Evidence Act) Motive becomes an important element in the chain of presumptive proof and where the case rests on purely circumstantial evidence. Motive; of course, maybe drawn from the facts, though proof of it is not essential to prove a crime.”

114. The Accused’s intention is also exhibited by circumstances prescribed by Section 206 (a) & (b) of the Penal Code;(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.

Disposition 115. After careful examination of the evidence on record, this Court finds that the direct evidence of Pw1 Pw2 & Pw3 establishes the 2nd Accused person’s guilt and the 2nd Accused‘s defense and denial does not dispel the Prosecution case.

116. The 1st Accused was /is a bodaboda hired to ferry the 2nd Accused in pursuit of the deceased and although Pw1 stated that 1st Accused also beat up the deceased; he left the scene after the deceased was taken back to the Bar. He was not party to taking the deceased from the Bar to the Kenol Police Post. The Court finds no intention or motive on his part against the deceased save for offering bodaboda services to 2nd Accused person. For these reasons he is acquitted of the charge.

117. There are no other existing possible circumstances to weaken the inference of guilt of the Accused person. The issue of alleged police brutality raised by the 2nd Accused in his defense is not borne out by evidence on record and was not put to the Police officers on duty at the time and were brought and testified in Court.

118. For these reasons I find the 2nd Accused person guilty of the charge of murder and convict him of the said offence as prescribed under Section 203 of the Penal Code.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 12TH JULY 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGEIN THE PRESENCE OF*:NELSON MULWA – 1ST ACCUSED – PRESENT IN COURTVINCENT MUTISO – 2ND ACCUSED – PRESENT IN COURTMR. MUTUNE - FOR 1ST ACCUSED PERSONMR. LANGALANGA - FOR 2ND ACCUSED PERSONMWONGERA - FOR ODPPGEOFFREY MUTONGA - COURT ASSISTANT