Republic v Peter Wafula Makokha, Daniel Wangila Masinde & Kizito Sifuna Makokha [2021] KEHC 2318 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL CASE NO. 8 OF 2018

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

VERSUS

1. PETER  WAFULA MAKOKHA

2. DANIEL WANGILA MASINDE

3. KIZITO  SIFUNA  MAKOKHA.................................ACCUSEDS

J U D G M E N T

The accused PETER WAFULA MAKOKHA (Accused 1) DANIEL WANGILA MASINDE (Accused 2) and KIZITO  SIFUNA  MAKOKHA (Accused 3) are charged  on two  counts of murder contrary to  Section 203 as read with Section 204  of the Penal Code.

The particulars of the offence in count 1 are that on the 12th day of March, 2018 in Nangwe Location of Bungoma Central sub-County within Bungoma County murdered  JESSE KHAOYA KITELE.

The particulars of the offence in count 2 are that on the 12th day of March, 2018 in Nangwe location of Bungoma Central Sub County within Bungoma County murdered FIDELIS BAHATI.

PW 1 Henry  Twitere Wasike   was the father to Jessy Khaoya Kitele the deceased in count I.  On 12. 3.2018 at 5. 30 a.m. he received a telephone  call from Reuben  Wanjala  alias Ngombe   who informed  him that he (Reuben) had  sent  the deceased to collect a cow from Nangwe to bring  it  to the slaughter house but had been apprehended  by people  who wanted to kill him.  He went   and reported to police who advised them to report to the police at Nalondo police station.  While on the way to Nalondo police station, he received information  that his son had been killed at Nangwe.  He went there. He  found his son dead with injuries  having severe cut  wounds.  Police were called and took the body  to the mortuary.

PW 9  Reuben  Wafula  Wanjala  who runs a butchery business and had employed  the  deceased in  count 1 testified  that on 12. 3.2018  at 5 a.m.  He received a telephone call from the  phone  of deceased but the person who  spoke was not deceased. The caller informed  him that  they had apprehended deceased in count 1 with a stolen cow and  that they were going to kill him.  They went and reported to police together with the father  of deceased in  count 1.  He was later informed that deceased in count 1 had been killed.  In cross-examination, he confirmed that he had not sent the deceased anywhere that night.

PW 5  Dennis Wekesa Wafula the Assistant Chief of West  Nalondo came at  6. 40  am and   the caller  informed him that a mob  had  apprehended  people who had stolen a cow and  wanted to kill him.  He called  the AP  camp and informed them  He  proceeded to the scene where  he found bodies of 2 people  who had been killed. Police had  arrived and commenced investigations. At the scene  was   the cow  which had been alleged to have been stolen. On cross-examination, he stated that there were many people  at the scene.

PW 8  NO.235509  IP Alex Odugu the OCS  Nalondo police station  was at the station on 12. 3.2018. He received a telephone call from the chief Nangwe location who informed him that 2 people suspected to be cattle  thieves had been killed by a mob at Nangwe area.  He proceeded to the scene with other officers.  On arrival he found 2 bodies Jesse Khaoya (deceased in count 1) and Fidelis Bahati (deceased in count 2). There  were in a pool of blood.  On inquiries he was informed the alleged stolen  cow belonged to accused 1 Peter  Khaemba. Accused 1 mentioned accused 2 Daniel  Wangila  and accused 3 Kizito  Sifuna.  Accused 1 explained that  the 2 deceased had stolen  his cow and they had followed the foot marks which led them to Bungoma where they found  the 2 deceased with the cow.  He arrested accused1, 2, 3 and took the bodies  to the mortuary. He stated that it is 5 people who had apprehended the deceased but he managed to get the 3 accused only. All the 3 accused were at the scene.    On being cross-examined he stated that he as the investigating  officer did not record a statement from any eye witness.

PW 3 DR. HARUN OMIBAGI  produced  Post-mortem      report prepared by Dr. Wafula  who performed  the post mortem of the bodies of deceased.  On the body of Jesse Khaoya he  found  he had  a cut wound on the skull measuring 5 CM, laceration  on back of  head and  stab wound on right  chest.  Upon  opening  he found deceased had fracture on rib, ruptured  spleen and fracture of skull.  He formed opinion that the cause  of death was due to severe head injury.

On  examining the body of Fidelis Bahati  the deceased in count 2  he found he had 3 cut wounds on the  skull. Multiple rib fractures, cut wound on left hand.  Upon opening he found he had a  skull fracture, ruptured spleen, rib  fracture leading to lung collapse. From the examination he formed opinion  that cause of death was due to  cardio-vascular arrest secondary to fracture  of the head.

Accused gave  their sworn defence when placed on their defence, DW 1  Peter  Wafula  Makokha testified  that on 12. 3.2018  at 12 a.m. he was  in his house when he heard the  cow’s calf  making noise  outside.  He went to check and found the calf alone and  the cow missing.  He called  accused 2,  and 3 and  informed them. They  together started tracking the missing cow. On  reaching Bamusi they found 2 people driving the cow. The  asked them about the cow, and  the 2 people  driving the cow said  they  had bought it from Nangwe market.  They said that their boss was Reuben. They volunteered to lead the accused’s group to where they had got it from.  Many  people joined them. The deceased called Reuben who told  him he was coming with police. Reuben  later switched off his phone and deceased refused to proceed with the journey to where they had got it. Their refusal to move made the people angry who then started assaulting them. He tried to stop them but they refused. Though he was present  neither  he nor  accused  2, 3 assaulted  deceased. At 7 a.m.  police came  and he told  them he was the owner of the cow.  Police then  arrested  him and accused 2 and 3.

Accused 2 Daniel  Wangila   testified that  on material night he was woken up by Accused 1 Peter Wafula  who informed him that his cow  had been stolen. He joined him in tracking the cow with a crowd of about  20 people. They found 2 men  driving the cow.    Many more people joined them. The deceased agreed to lead the group to where they had got the cow from. On the way they sat down and  refused to move. The mob got angry and started beating them until they died.  Police  came at 7 a.m  and found  them at the scene. He was then arrested.

Accused 3  Kizito  Sifuna  Makokha testified that he joined accused 1 and 2  and other people  in tracking the accused’s cow which had  been stolen. He was in another group but were informed they had apprehended the cow and the thieves. He joined their group. The deceased  volunteered to show them where they had  recovered the cow but  on the way refused to move. He tried to restrain them but they refused. Police came and they arrested accused 1, 2, and 3  and were later charged  with present offence.

M/S. Wakoli for the accused filed written submissions. She  submitted that none of the witness testified having seen any of the accused person assault any of the deceased.  All the prosecution witnesses  testified  that they arrived at the scene and found deceased having been killed. Counsel submitted that the prosecution failed to establish that the  3 accused  are the ones who killed the deceased. She submitted that the deceased were killed by a mob despite accused’s effort  to stop them. The accused are charged with the offence  of murder Contrary to Section  203  of the Penal Code.

The Section Reads;

“Any  person who of malice aforethought  causes the death of another person by an unlawful act or omission is guilty  of the offence of murder’’

Section 203 which defines the offence of murder requires  proof of the following if the offence of murder is to be established.

-    malice  aforethought on the part of the accused.

-    death of the  deceased.

-    the  cause of  the death.

-    an unlawful  act or  omission on the part of the accused resulting in the death of the deceased.

Section 206 of the Penal Code on the other hand defines malice aforethought in the following terms;-

206. Malice aforethought  shall be deemed to be established by evidence proving anyone  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.’’

That the two deceased persons died  from injuries sustained on the material day is not  in dispute.  Indeed  all the witnesses  confirmed that  they died at the scene.  The fact and cause of death was confirmed by PW3  Dr. Harum Ombingi who produced  the post-mortem  report in both  cases the deceased died  as a result of  fractures and injuries sustained.

The other issue for determination is whether the accused jointly or severally inflicted the injuries that led to the death of the deceased.      None of the 10  prosecutions  witnesses called testified as to who assaulted  the deceased.  Indeed none of the witnesses testified that  he saw accused 1, 2, or 3   inflict the injuries on the deceased.

The only evidence tendered against accused 1 is that he was the owner of the stolen cow. The evidence  against accused 2, 3  is that they had  joined  the accused in tracking his stolen cow.

The prosecution only ought to show that since the stolen cow belonged to accused who had called accused 2 and  3 to assist  him in tracking  it, and  the deceased were found  with it and were killed, that  is enough  evidence that it is accused who  killed them. That in my view  it pedestrian way to prove a charge of murder.

For  the prosecution to succeed on a charge of murder it must prove;

i.  that  the deceased died, and  the cause  of death.

ii. The unlawful act that caused the death.

iii.  That it is  accused  who committed  the unlawful act.

iv. That the accused committed the offence with malice aforethought.

None of the above element has been  proved against the accused except for  the fact   and cause of death.

In the premises  therefore l am  not satisfied that the prosecution has proved its case beyond reasonable  doubt.  I therefore find Peter Wafula Makokha, (accused 1) Daniel  Wangila  Masinde (accused 2)  and Kizito  Sifuna  Makokha (accused 2) not  guilty of the offence  of murder contrary to Section 203 as read   204  of the Penal Code and acquit  each of them  under section 215 of  the Penal Code on Count 1 and Count 2.

I direct that Peter Wafula Makokha (accused 1) Daniel  Wangila Masinde (Accused 2)  Kizito  Sifuna Accused 3) be set at liberty  unless otherwise lawfully detained.

DATED, DELIVERED AND SIGNED AT BUNGOMA THIS 3RD DAY NOVEMBER, 2021.

S N RIECHI

JUDGE