The High Court in Kitale has acquitted a guard accused of
murdering a teenager who drowned in a flooded river.
Lazarus Khaoya Mukhanya, a sugarcane plantation guard, was
charged with murder following the death of 13-year-old Elijah Jabez Ekweny on
April 30, 2023, at River Sabwani in Trans Nzoia county.
The prosecution alleged that Mukhanya chased Ekweny into the
fast-flowing river and watched him drown without attempting a rescue.
"Lazarus Khaoya Mukhanya, the accused herein, is charged
with the offence of murder contrary to Section 203 as read with Section 204 of
the Penal Code. The particulars as per the information filed are that on 30-4-2023 at Sabwani River, Simatwet Village Sirende Location in Kiminini
subcounty within Trans Nzoia county murdered Elijah Jabez Ekweny (hereinafter
to be referred to as the deceased)," court records document.
The court heard that Ekweny and three friends—Peter Juma
Musumba, Moses Wafula and Sammy Chabeda Kibendi—went to graze livestock at the
‘40 Million farm’.
Three of the boys entered a nearby plantation to steal
sugarcane, leaving Ekweny by the roadside.
Mukhanya, who guarded the farm, confronted the teenagers
while armed with a machete.
The boys ran towards the swollen River Sabwani.
Musumba (PW2) testified that the accused pulled him from the
river and that Wafula also came out, but the deceased did not.
“He testified that he told Mukhanya that someone was still
in the river but he told him he will get him later.”
Dr Dennis Nanyigi (PW5) conducted the postmortem and
concluded the cause of death was asphyxia secondary to drowning. The body was
recovered about 500 metres away.
PC Robert Ngeno (PW8) testified: “The accused chased the
boys into the river and saw the boys plunge into the river and made no efforts
to rescue the deceased, or raise any alarm for the deceased to be rescued. The
accused failed to report the incident at the police station.”
During the trial, the deceased’s father, Rev Joseph Ekwen
Jakait, detailed the petitioner’s stance on the accused’s actions and the
ultimate remedies sought from the court: "It is his testimony that Mukhanya
chased the deceased into the river hence causing his death."
Denying the allegations, Mukhanya maintained that he was
merely executing his duties and did not force the deceased into the water.
"He stated that he went and saw two boys inside the
river and rescued Musumba (PW2) whereas Wafula escaped by crossing the river.
It is his testimony that River Sabwani was swollen and he did not see the
deceased."
Delivering the judgment, Justice Robert Limo ruled that the
prosecution failed to prove either guilty conduct or criminal intent beyond
reasonable doubt.
The judge highlighted that the accused had actually warned one of the boys against jumping into the dangerous current and had no duty or physical capability to risk his own life.
"This court finds that from the evidence placed before court, there is nothing that shows that the accused was responsible for the decision of the boys including the deceased to take the risk of jumping into a swollen river rather than being caught. It is also doubtful whether there was anything the accused could do to save the life of the deceased or to save him from drowning,” the judge stated.
The court observed that the prosecution failed to prove its case.
“There is no evidence to show that he was a good swimmer
because the only person who could plunge into that river safely is a good or
expert swimmer otherwise the life of the accused could as well have been
endangered if he had attempted to rescue the deceased...He is hereby found not
guilty of murder as charged and he is hereby acquitted and shall be set free
unless lawfully held."
