Appellate court upholds 35 year jail term for trio over uncle’s murder
Three relatives who murdered their uncle over a land dispute in Kilifi county will continue with their 35-year jail term after the Court of Appeal (CoA) dismissed their appeal.
The appellate court ruled that the case against Moses Juma Kitsao, Safari Kitsao Kadenge and Charo Swaleh Kitsao was proved to the required standard and that their appeal against conviction had no merit.
Appellate judges Gatembu Kairu, Jessie Lessit and George Odunga said that they had considered the entire evidence and subjected it to a fresh analysis and evaluation and had no doubt that the appellants formed a joint enterprise to attack Mr Karis Charo Hare, the deceased.
This, the court noted was first by destroying his house through an arson attack and then within hours attacked him inflicting fatal wounds which caused his death two days later.
The court noted that the appellants did not hide their actions which they carried out in full glare of their relatives.
“They did not deny the facts constituting the offence of murder, the role they played and the eventual result of fatality on the part of the deceased,” said the judges.
The judges further noted that apart from the evidence of the prosecution, the appellants in their defence made on oath admitted that they were not only at the scene of incident but also had an altercation with their uncle which degenerated, according to them, to a fight resulting in him (uncle) receiving serious injuries.
“We consider their defence as confessions of guilt as the appellants directly acknowledged that between the three of them they caused injury to the deceased which eventually resulted in his death,” the said the CoA judges.
The CoA further ruled that it was in agreement with the High Court that the prosecution was able to adduce evidence to establish that the appellants used a chair and stone to attack the deceased, causing him serious injuries that his relatives who saw him on the night of attack reported him dead.
“The trial judge was satisfied that the weapons used to cause fatal injuries were known and one of them the chair, was as an exhibit. In addition, he was of the view that the injuries suffered by the deceased as per the post mortem were consistent with an eye-witness account. Nothing turns on this point,” ruled the CoA.
According to the prosecution, the appellants committed the offence on October 4 2018 at Mikamui village, in Bamba division, Ganze sub-county within Kilifi.
In their appeal, the appellants argued that the trial judge erred in law by failing to consider that they were denied their right of information disclosure prior to taking of plea, in breach of the constitution.
They also argued that the trial judge erred in law by failing to consider that there was no proper identification at the scene of crime and also by not considering that there was massive contradictions and invariances from witnesses.
Through their lawyer, in supporting their submissions that the death was not intended, they argued that the existence of the land dispute between them and the deceased negated the presence of malice aforethought on their part and ought to have been charged with the lesser charge of manslaughter.
However, the prosecution did not agree with them and urged that the totality of the evidence adduced in the case was a clear demonstration that they (appellants) were acting in concert as defined under Section 21 of the Penal Code and set out to commit the offence charged.