In 2018, Thomas Kingi fell sick and rumours started going round that he had been bewitched by his grandmother.
A few months later, he was accused of beating her to death.
He was arrested and taken to court and charged with the murder of Kache Mzomba Kimenje.
The High Court believed the prosecution and convicted him in a judgment delivered in March 2022. He was sent to jail to serve 30 years.
However, the appeals court has now freed Kingi, finding that his conviction was largely based on circumstantial evidence and hearsay.
The three-judge bench hearing the appeal, found that the testimonies by the prosecution witnesses were tenuous and did not directly link him to the killing.
A postmortem done on June 21, 2018, showed a deep cut on parietal region, a skull fracture and a cut on the anterior aspect of the skull.
The police officer investigating the case entered the speculation about witchcraft on the court record but no other witness gave evidence to corroborate it.
“...the background information [is about] conflict with family. It was all about witchcraft. The deceased had bewitched him. I feel that this was malice. There was circumstantial evidence that the accused person killed the grandmother. He is the one who killed the deceased ...” the investigating officer told the court.
Put on his defence, Kingi denied killing his grandmother. He said on that day, he was in Tezo, Kilifi, attending a funeral of a relative.
“On returning home, he was let in by [a relative and prosecution witness] Luvuno and they went to visit the deceased, who complained of pain in the chest and, when he massaged her to ease the pain, she complained that the massage was painful. He left her house and left her with Luvuno.”
“When he went outside for fresh air, he met Kiti [another relative and prosecution witness], who entered the deceased’s house. Kiti re-emerged to claim that he had found her dead.”
He also argued that “the postmortem report did not link him with the murder; that no murder weapon was produced; that malice aforethought was not proved and that his defence was not considered.”
Kingi also argued that the arresting officer and the officers who received the first report were not called to clarify that information.
It was submitted that, apart from the investigation’s officer who alleged witchcraft, none of the other witnesses had testified to the existence of witchcraft, or any conflict in the family of the deceased.
The judges said after analysis of the evidence afresh, they found “there were many unanswered questions in the case and it seems to us that the investigating officer decided to charge the appellant with the offence on mere suspicion that he could have murdered the deceased.”
They said the evidence was not cogent enough to keep the man behind bars for the period he was sentenced because his guilt had not been proven beyond reasonable doubt.
“The conviction of the appellant was not safe in those circumstances and we therefore find that there is merit in this appeal. We hereby quash the conviction and set aside the sentence. The appellant shall be set free forthwith unless otherwise lawfully held,” the judges said in a decision dated March 8, 2024.
