JUDGMENT OF THE COURT
On 21st December 2011, four days shy of the Christmas Day festivities, David Chipolu (PW3) was seated outside a shop at Kasidi market, Rabai District of Kilifi County between 6.30 pm and 7.00 pm. The appellant, Philip Nzaka Watu, who was known to PW3 and lived in the same neighbourhood, came along and greeted him. The deceased, Mwambu Chiruu Mwambui, who was also their neighbour, shortly joined them. The deceased was dumb and used to communicate in sign language. He was married to Betty Chivizi Mwambui (PW2) for some 40 years and they had six children. It was PW2’s evidence that after living with the deceased for so long, she easily communicated with and understood him very well.
Back at Kasidi Market, PW3 saw the appellant hold the deceased by the hand and the two walked away, a distance of about 15 to 20 feet from PW3, as though they were conferring privately. The next thing that PW3 saw was the deceased lying down, with his intestines protruding from the gut. Th…