A man who was sent to death row for allegedly hitting his elder brother with hammer on the face, killing him on spot, is now all smiles, after the sentence was quashed.
Salim Khamisi was convicted in 2017 of killing his brother in 2012 after a brief quarrel over a matter that was not clear.
But the Court of Appeal found last month that besides weak circumstantial evidence used against him, Khamisi was also not given time to offer mitigation before sentencing.
His mother and uncles, among other relatives, testified against him, with the common thread of the testimonies being that he had a brief quarrel with the brother at their Bungoma home, and after a short while the brother was found lying dead in his house.
Court papers show that it was Khamisi who called his mother to see the body of his brother lying on the sofa. When the mother arrived and started wailing, he took off.
The relatives them reported the matter to the police. The villagers responded to the shocking death by searching for Khamisi before later arresting him.
Police statements showed that the arresting mob had found Khamisi with a hammer, which they believed was the murder weapon.
From the postmortem report on of the deceased, his body had blisters on the abdomen, thigh and trunk; and there was bleeding from an abrasion on the left ear pinna.
The deceased’s left temporal area had laceration approximately 60mm and the left temporal area was swollen. He also had a crushed left temporal fracture with epidural haematoma extending to the occipital area.
He had brain contusion with massive oedema and intercranial pressure. According to Dr Ramzan, the cause of death of the deceased was cardio pulmonary arrest resulting from massive intracranial pressure as a result of intracranial bleeding following blunt head trauma.
On his defense, Khamisi testified that “he found his brother dead on the 17th of March, 2012 when he went to wake him up in his house, as they lived in separate houses, so that they could go to work together.”
He denied the contents of his statement to the police. It was his testimony that he was not arrested by members of the public with a hammer.
In a bid to establish a motive for the murder, the police officer investigating the incident told court that he had “recorded an inquiry statement in which [Khamisi] stated that the deceased had quarrelled with their mother on March 16, 2012, and their mother had complained to him about it.”
“That the appellant went to the house he shared with the deceased and asked him about it, and they quarrelled. The deceased took a panga and threatened to cut the appellant and the appellant took it away from him and gave it to their mother,” the papers read.
The High Court found Khamisi guilty using circumstantial evidence, conceding that there was no direct evidence linking him to the killing.
He was sentenced to death.
But three Court of Appeal judges had other thoughts. They said in a judgement given on November 24, 2023, that the circumstantial evidence used to nail the man was lose and flimsy, hence not safe.
Besides the peril of circumstantial evidence, the appeals court also found that records did not show the convict giving his mitigation before being sentenced, hence the trial court did not afford him due fairness.
“… no mitigation was recorded from him. Its view, therefore, is that this court should remit the matter to the High Court for re-sentencing,” the decision said.
“Having found, however, that the appellant’s conviction was not safe, we need not enter into a consideration of this ground. We hereby quash the appellant’s conviction and set aside the sentence. The appellant shall be set at liberty forthwith unless otherwise lawfully held.”
