The high court in Malindi has sentenced three men each to 45 years in jail for murdering an old man in Kitengwani, Kilifi County whom they accused of practising witchcraft.
Kilifi County is one of the areas in the Coast region where rampant cases of elderly people being killed on allegations of practicing witchcraft have been reported.
According to the Daily Nation, Justice Reuben Nyakundi, found Ndokolani Malau, Kitsao Kahindi and Dama Nyambu Mzungu guilty of the charges leveled against them.
The accused, who had denied the charge, jointly murdered Mr Charo Ndala on January 17, 2017 at Kitengwani Market in Magogoni Sub-Location, Ganze.
“Looking at the facts and in light of the evidence and particulars of the charge, I am satisfied that the prosecution has discharged the burden of proof beyond reasonable doubt for the offence of murder against the accused persons,” said Justice Nyakundi.
The judge further said that imposing a death sentence would have been proper in the circumstances but he was constrained to exercise discretion in favour of a long-term incarceration which satisfies one of the criterion on retribution and deterrence.
The court noted that the victim was attacked by a gang of people in spite of the fact that only the three accused were arrested and charged with the offence.
Justice Nyakundi said the level of participation by a number of people in the commission of the murder was another aggravating feature which goes to demonstrate the planning and malice aforethought by the accused.
The judge said that the taking of the old man’s life on accusation of practicing witchcraft was done in the most heinous way and that the accused subjected him to a protracted punishment which ended with his death.
The court noted that the victim was physically assaulted before his body was burnt.
“Having been burnt alive, the deceased died a very painful death. No human being deserves to go through such torture and degrading treatment,” said Justice Nyakundi.
The judge further said that the accused never acted on provocation or self-defence and the allegation that the old man was a wizard could not be substantiated.
“The accused usurped and derogated the duties of the traditional leaders, prosecution, judge and the executioner as well as violation the deceased’s fundamental rights and freedoms,” said Justice Nyakundi.
He added that the accused had no right to take the law into their own hands because they were not competent to handle the situation that they attempted to resolve.
The court noted that the case once again brought to the fore the adverse effects of the deep-rooted belief in witchcraft by several communities in the country.
Justice Nyakundi said that the belief is extremely controversial and the court cannot claim to have a solution to the impact of the system which dates back to the creation of mankind.
“I am obliged as a court to accentuate the sanctity of human life wherever the life of an individual is snatched by an evil hand of another human being. The life that we live demands that it be guaranteed and respected by law abiding citizens. That was never the case in the circumstances affecting the accused persons,” said Justice Nyakundi.
In his evidence, the victim’s son, James Ndala, told the court that on January 17, 2017 they were within their homestead when about 10 people emerged and that he could recognise the accused persons and others not in court.
According to the witness, the nature of the conversation between them was about the need for his father to attend a meeting at the chief’s office.
The witness told the court that together with his father, he accompanied the 10 people ostensibly to attend a formal meeting at the chief’s office.
On the way to the alleged meeting, the witness told the court that they met a large group of people numbering about 30 armed with clubs and stones.
The witness said that he started hearing shouts to the effect that his father was a wizard and, fearing for his life, the old man started to run away but was restrained by the three accused persons.
The court was told that the three accused men were joined by another group of men whom they met on the way before the witness sought assistance from Ganze Police Station.
On arrival at the scene, the court heard that the victim’s body was already burning after being set ablaze by the attackers.
The victim’s wife and a police officer also testified during the trial.