Republic v Ndoro Mbega & Gabriel Mbega Shehi [2015] KEHC 2275 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL CASE NO. 42 OF 2012

REPUBLIC  ….................................. PROSECUTOR

VERSUS

NDORO MBEGA  ……….…….....…1ST ACCUSED

GABRIEL MBEGA SHEHI .............. 2ND ACCUSED

JUDGMENT

The two Accused persons are jointly charged with murder contrary to section 203 as read with section 204 of the Penal Code.

The particulars are that:-

“On the 18th day of July, 2012 at about 19:30 hours (7:30 pm) at Egu village, Taru Location Kwale County, they  murdered Tsuma Mbega”.

In support of their case the prosecution called nine Wittinesses and the defence called three(3).

The Deceased and the  Accused  persons are relatives. The first Accused is a younger brother of the Deceased and 2nd Accused a nephew. A child  of the first  Accused was ailing and so  was  the wife of the second Accused. They  blamed the Deceased for bewitching their dear ones.

Meetings had been called to discuss this issue whereby  the Deceased insisted that he was not a Wizard but he had acquired charms to defend his family  and property. He had agreed  to seek the services of a witch Doctor to remove the said charms.

The wife of the Deceased (PW 1) testified in Court to the effect that on the 18th day of July,  2012 at  about 7:00 p.m. She was in  the company of her husband and a relative taking supper when they suddenly saw flash lights emerge from  the darkness. She saw the two Accused persons who were armed with pangas. Upon seeing them her husband stood and started running towards a cattle shed but the two followed him and  proceeded to cut him on the back and head severally  and he fell down.  She screamed  for help while in  the company  of her co-wife. Neighbours arrived at the scene and one Ibrahim Ndoro proceeded to report the  matter  to the village elder who in turn called  the police. When police arrived she informed  them  of what  had taken place.  She further  told the Court  that after killing the Deceased the two Accused persons went away but returned later. Police found them in the homestead as they  stay in the same compound as the Deceased. She further told the Court that when her husband was attacker she was in the company  of her co-wife who also  saw what  had  transpired. The co-wife testified as PW 2 and told the Court that  the Deceased had arrived home at about 7:00 pm and found her with  her co-wife. After  supper she asked for  a torch from the Deceased so as to take the children to sleep in the main house. Upon returning she heard the barking of dogs. She  did not find her husband where she had left him but she  saw his shoes and lesso.  She  went and reported the disappearance of her husband  to his mother. They  went  searching  for him  and found his body lying near a cattle boma.  He   had cut  wounds   on the back, the head and the  stomach. After finding the body they screamed for  help.

Her co-wife was at  the time hiding in the nearby forest.  Police were later called at the scene. The Accused persons were present when police arrived.

The body  of the Deceased was taken  to the  mortuary and post mortem examination was carried by Dr. Gabriel Mngola who formed  the opnion  that the cause of death was hemorrhagic shock.

In this case the offence of murder is said  to have been committed  on 18th  July, 2012.  The two Accused persons were arrested on 8th day of August, 2012 and were arraigned in Court on 9th August, 2012.

PW 1  testified  to have seen the two  Accused persons attack  her husband  that night  while armed with pangas and further  that she was  in the company of her co-wife PW 2 who also saw the attackers.  She is  the prosecution star Witness as she is the only eye Witness.

Her evidence was contradicted by PW 2  who told the Court that at the  time of the attack  on the husband  she was not present as she had  taken her children to sleep in the main house. She further  told the Court that upon return  to where she had left  her husband and co-wife she did not find  them and decided to report the matter to their mother in law and a search commenced only to  find the Deceased lying dead near the cattle boma.  At the time  of the recovery of the body PW 1 was nowhere to be seen as she had gone into hiding in nearby bushes.

Identification It is noted that the incident took place  at night. PW 2 had to seek the services of a torch to take her  children to the main house. The source of light  was not positively authenticated and it was said that there was a lantern lamp and fire from the kitchen.  I find  the circumstances obtaining at the time did not  afford  a proper scenario for identification. PW 2 did testify   that she did not see  the attackers that  night.

PW 1  testified  to have seen the two Accused persons attack the deceased that night. That she saw them go away but later returned before the police officers arrived.

If the two Accused  persons were the attackers would they have stayed  at the scene awaiting the arrival  of the police?  Hardly.

PW 1  a alleges  to have seen the two Accused persons  attack and kill her husband, yet she  did not tell the police that night  the alleged killers nor did she tell  this  to any of the other Witnesses who testified in this case. The Accused persons participated in the burial of the  Deceased  and were arrested two  weeks later.  Its highly unlikely that PW 1 had identified the killers that night, had she done so, the Accused persons would have been arrested the same night.  The reason for their arrest appears to be the allegations of Witchcraft   which they  made against  the  Deceased.  Those allegations  by themselves are not sufficient proof   that they  are the ones that murdered the Deceased. This case has not been proved beyond reasonable doubt.

The two accused  persons are acquitted  of the  offence of murder contrary to section 203 as  read with section 204 of the Penal Code under Section 322 of the Criminal Procedure Code. They  are set at liberty unless otherwise lawfully held.

Judgment delivered, dated and signed this 6th day  of October, 2015.

…...................

M.  MUYA

JUDGE

6TH OCTOBER, 2015

In the presence of:-

Learned Counsel for the prosecution Miss Nandi

Learned Counsel  for the defence Mr. Masila absent

Court Assistant Mr. Musundi

M. MUYA - JUDGE