BY SAM ALFAN.
Two Embu men will suffer death sentence for killing a neighbor claiming he stole a sheep.
Daniel Nzioka Mbuthi and Simon Maina lost an appeal, seeking to quash the sentence after three judges dismissed their case.
Justice Daniel Musinga, Jamilla Mohamed and Sankale Ole Kantai dismissed the appeal saying it lacked merit.
“Having reviewed the whole record, we are satisfied that the trial Judge reached the correct conclusion that the appellants were guilty of the offence of murder. They were properly convicted,” ruled the Judges.
The bench said that there was no reasonable excuse for the way the appellants acted when they set out with a common intention to go to the deceased’s home and attack him the way they did. They committed murder and there was malice aforethought, the judges observed.
Two were charged with the murder of Bernard Kimathi Kiara, their neighbor. According to the charge sheet, they committed the act on December 27, 2011 at Machang’a Shopping Centre in Mbeere South District of Embu County.
The appellants were convicted and sentenced to death but they appealed through lawyer Irungu Kangata claiming that the Judge erred in law and fact in finding that there was sufficient evidence to support the charge of murder.
They argued that the Judge should have found the evidence of the first, third and six to be inconsistent on the encounter between the appellant and the deceased.
“That the evidence on weapons used was inconsistent; that there were no independent witnesses called by the prosecution; that no report of theft of a sheep had been made to police, when such a report had been made; that the evidence of the defence witness, a local chief, should have been given more weight, ” they argued.
According to the two convict the Judge should have found that no proper investigation had been conducted; that the Judge should have found that the prosecution had not established its case beyond reasonable doubt, and finally, that the Judge erred in law and fact in failing to consider testimonies of the appellant in arriving at the conclusion that the appellant was guilty.
Kang’ata submitted that Mbuthi’s sheep had been stolen and he had made a theft report to the police, who took no action and the deceased was killed by the mob as the suspect in the theft of livestock. In his final submissions.
Kang’ata further stated that there was a variance in evidence on which weapons were used to kill the deceased and for all that, we should allow the appeal.
While opposing the appeal, Senior Assistant Director of Public Prosecution Duncan Ondimu told the appellate court judges that the on the facts of the case that there was a full narration of the facts through the witnesses called on how the deceased was picked by the appellants, dragged on the ground by using a rope, beaten and finally left for dead at the market centre. According to learned State Counsel, the appellants did not dispute in their defence that they had met the deceased. Counsel submitted that all elements of murder had been proved as there was malice aforethought.
Ondimu added that there had been an attempted cover up and that is why it took long for the two to be arrested and be initially charged at a Magistrates’ Court instead of the high Court.
Ondimu dismissed allegations by the appellants that Prosecution only called relatives and no independent witnesses were called.
He told the judges that Ondimu that there was hostility by that locality and witnesses refused to come forward to record statements and there was, thirdly, attempted cover up by the police.
He urged the court to dismiss the appeal and uphold the decision to sentence the two to death sentence for the murder of Kiara.
Kiara died after he was attacked by men who were armed with rungus and sticks who unleashed terror on him using the said weapons in full glare of his family.
Court was told that screams from the deceased did not help as they continued to beat him, saying that he had stolen Mbuthi’s sheep.
When the said witnesses tried to intervene, they were threatened with a beating. The three men tied the deceased with a rope which they used to drag him through a fence at which point Mbandi asked the men where they were taking the deceased.
Mbuthi informed her that they were going to kill him. Mbandi and Wairera followed the men up to Machang’a market where they abandoned the deceased. Mbandi and Wairera observed that the deceased was unconscious; he was bleeding from the head, mouth and nose.
The deceased was dead the next morning. According to the three witnesses – Kihara, Mbandi and Wairera
