Please Wait. Searching ...
|Case Number:||Criminal Case 19 of 2004|
|Parties:||REPUBLIC v LUCAS KAHINDI MWATSUMA & 5 others|
|Date Delivered:||19 Dec 2011|
|Court:||High Court at Mombasa|
|Judge(s):||Maureen Akinyi Odero|
|Citation:||REPUBLIC v LUCAS KAHINDI MWATSUMA & 5 others  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA AT MOMBASA
The brief facts of the prosecution case were that on 30th March 2003 at about 7.00 A.M. a gang of men invaded the home of the deceased MZEE KITI PEPO. These invaders set upon the deceased with rungus pangas and other crude weapons. They assaulted the deceased and killed him before all running away. The matter was reported to police who came and visited the scene. They later took away the body to the mortuary. After completion of police investigations all six (6) accused persons were arrested and charged with the offence of murder.
At the heart of any murder trial is a death. Without a death there would exist no charge. The prosecution must prove beyond a reasonable doubt firstly the fact that the deceased is actually dead and secondly the cause of that death. In this case the fact of the death of Mzee Pepo is not in any doubt. Several witnesses including his close relatives testify that they saw his dead body. The police confirm having collected that body and taking it to the mortuary. Aside from proving the death of the victim the prosecution is also required to satisfy the court as to the ‘cause’ of death of the deceased. Although it has been alleged that the deceased was assaulted by a gang of men the court cannot assume that it was this assault which led to his death. The prosecution must show the effect assault had on the deceased and how this assault directly led to his demise. The best evidence regarding cause of death is medical evidence of a post-mortem examination. In the case of NDUNGU –VS- REPUBLIC  KLR 487, the Court of Appeal in considering the question of cause of death held as follows:
Even if medical evidence of an autopsy had been availed my assessment of the prosecution case is that it is still wanting. PW1 KAHINDI KOSHOLO PEPO a nephew to the deceased who claims to have witnessed the attack told the court that he saw the attackers very well and that they were persons well known to him. However PW1 had problems identifying the accused persons in the dock. Though there were six (6) accused persons PW1 pointed out a 7th man (who was not involved in this case) as one of those who attacked the deceased. I am mindful of the fact that over time memories may fade but if as PW1 said he knew the attackers well, then he ought to have had no challenge in positively identifying them.
PW2 TABU KENGA was a daughter-in-law to the deceased who also allegedly witnessed the attack. In her evidence in chief PW2 impressively identifies each accused person by name. However under cross-examination by Mr. Kamoti PW2 admits that she did not give the names of the attackers to the police when she made her statement. If as she claims PW6 knew the deceased’s attackers, why did she not name them as she has done in court? As a court I cannot rule out the very real possibility that PW2 has only named the accuseds because she has heard their names being called out in court.
PW1 and PW2 suggest that the deceased was attacked and killed on the spot inside his homestead. However PW3 FLORENCE KATANA confuses matters when she states under cross-examination:
PW4 JUMWA KATANA KITI a son to the deceased also spoke of two attacks on the deceased. Whereas PW4 identifies the accuseds in court, he admits that in his first statement to the police he only named one ‘Malungu’. It is curious that in his testimony several years after the incident PW4 is suddenly able to recall that ‘Samuel’ the 6th accused was also one of the attackers.
On the whole I find the prosecution evidence to have been confused and contradictory. The evidence of identification is less than reliable. In my view the prosecution has not established a prima facie case. As such I enter a verdict of ‘not guilty’ and I hereby acquit all six (6) accused of the charge of murder in accordance with S. 306(1) of the Criminal Procedure Code. Each accused is to be set at liberty forthwith unless otherwise lawfully held.