A Kitui man has lost his appeal against a murder conviction and a 25-year prison sentence after the Court of Appeal upheld the High Court's finding that circumstantial evidence sufficiently proved his guilt.
Kiteng'u Mukiti and his co-accused, Jonathan Mwangangi Mwinzi, were found guilty of murdering charcoal burner Kazungu Nzenge in Madongoi forest in October 2015. The victim's partly mauled body was discovered with a rope tightly knotted around his neck and waist, his hands bound with a sweater.
Mwendwa Nzenge, the deceased's brother, testified that in September 2015, the deceased, Mukiti and Mwinzi were burning charcoal together in a hyena-inhabited forest.
He later received a call from a relative enquiring about the deceased, who had not been seen for two days.
The witness informed the relative that he had left the deceased in the company of the appellant and his co-accused, where they were burning charcoal while spending nights under trees.
While nothing serious had occurred during their time together, Nzenge recalled a disagreement over scarce water, with the deceased denying the other two access to the commodity.
Though described by the witness as minor, the prosecution cited the feud as a possible motive. The court noted there was evidence of disagreements, although the witness termed them as "minor quarrels over water".
The prosecution's case rested entirely on circumstantial evidence, with Mukiti and Mwinzi being the last known persons seen with Nzenge alive. The three-judge bench found the evidence pointed unerringly to the appellant's guilt.
When questioned about the deceased's whereabouts, Mukiti first claimed Nzenge had gone home, then suggested he had been killed by Somalis, and finally implicated his co-accused.
According to Samuel Nzelu Ngema (PW3), the local Nyumba Kumi chairman, the appellant was found intoxicated during the search and alleged that Somali attackers had speared the victim. PW3 testified that the appellant was "reluctant to participate in the search and was intent at misleading them in the direction of the search until they were alerted by a foul smell".
He observed scuff marks on the ground leading to where the body lay between trees, appearing to have been dragged by hyenas.
There was also evidence of a failed attempt to set the place ablaze. Acting on information about Mwinzi's whereabouts, he was later arrested at Boka.
The respondent maintained that the deceased's death was unequivocally proven through medical evidence showing the cause was "asphyxia due to strangulation", ruling out attacks by wild animals or Somali herders because his clothing lacked bloodstains and his limbs were bound.
The state argued that malice aforethought could be inferred from the appellant's suspicious actions, asserting that his conduct was "inconsistent with that of innocent people".
In its ruling, the Court of Appeal noted that the appellant's defence was a mere denial that "only dealt with how he was arrested without explaining how he parted company with the deceased". The court observed that "the statement by the appellant in his defence did not touch on the events that happened after PW1 left the forest" and that "he did not explain the point at which he departed ways with the deceased".
Applying the doctrine of "last seen with", the court stated that "where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death".
The court also addressed the appellant's contention that Somali herdsmen may have been responsible, stating that "the manner in which the body was found ruled out any possibility of the deceased having been killed by animals".
On malice aforethought, the court found that the evidence showed the deceased's death was caused by strangulation, establishing the necessary intent to kill.
The court granted one relief, directing that the period Mukiti spent in custody from his arrest on October 25, 2015 until his conviction on February 28, 2019 be taken into account in computing his sentence pursuant to section 333(2) of the Criminal Procedure Code. The appeal was otherwise dismissed.
