[2015] KEHC 2610 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL CASE NO. 20 OF 2012

ABDI SHEIKH MOHAMED ................................................ ACCUSED

V E R S U S

REPUBLIC ...................................................................... PROSECUTION

JUDGMENT

The accused Abdi Sheikh Mohamed stands charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on 8th May 2012 at Ifo Refugee camp, Lagdera District within Garissa County murdered Othon Ubang Alwal. He has denied the charge.

The prosecution has called seven witnesses in support of their case. PWI is Dr. Victor Nyange a health team leader working at Ifo hospital. It is his evidence that he has been a doctor for 9 years. He identified the post mortem for prepared by Dr. Moses Langat who worked with him in 2012. He was able to recognize the signature and handwriting of Dr. Langat. In the absence of Dr. Langat he referred to the post mortem form and stated that the record shows that the body in question was that of a male adult who was naked at the time of post mortem on 9th May 2012 at 9. 00 am at

Ifo hospital. He stated that the body was covered in a blanket which was blood stained. The body was of a male African person aged around 35 years well-nourished and well built. The time of postmortem was more than 5 hours after death and therefore changes had started occurring in the body. There were injuries in the groin with an entry and exit in the same place but a few centimeters apart. The femur bone had been fractured and damaged. The cause of death was cardio vascular failure due to excessive bleeding. He produced the post mortem form as an exhibit. He was not cross examined.

PW2 is Acting Inspector Felix Nkonge. His evidence is that he had been in the Police service for about 24 years and that on 8th May 2012 he was stationed at Ifo Police Station as Deputy OCS. It was his responsibility to plan patrols in the area and had 4 vehicles at his disposal. On that day at around 7. 00 Pm he put together Administration Police Officers and Kenya Police Reservists and they did the patrols to a place called Bosnia and Block F. At around 9. 25 Pm he got a call from a Block Leader that gunshots had been heard in Block A5. He proceeded to the place which was a journey of about 15 minutes and found a woman who had been shot. Together with others they took her to the GTZ Hospital. According to this witness there was no lighting at the scene and they used torches. While still at the hospital he was called again and informed of another shooting on Block G which was about 3 Kms from the first scene. He thus called Corporal Indeche to proceed to the scene. Corpral Indeche informed him that he had gone to the scene with 3 Kenya Police Reservists. According to this witness also they had a total of 6 Kenya Police Reservist at the station and 4 of them were on duty that day while 2 others were not on duty. He testified that the accused person was one of the police reserve on duty that day. He later found that a young man had been shot in the groin and had died. At the scene there was lighting but one could only see 2 metres ahead. He collected two cartridges of 7. 62mm used in A.K 47 rifles. According to him the cartridges were found about 40 meters from the body. He collected the body to the GTZ Hospital and the cartridges were handed over to the in charge and the Investigating Officer who handed them over to the Government chemist. He produced the Exhibit Memo as exhibit. He stated that when he went to the police station he called all the Kenya Police Reservists. Before releasing the accused he was told to examine his G3 gun. He took possession of his gun. He produced the gun as an exhibit. He also produced the spent cartridges used in AK 47 as exhibits.

He testified that the firearm of the accused had 80 rounds of ammunitions. These were issued together with the gun and marked for analysis. He produced the 80 bullets as exhibits. He also produced the 4 magazines which had a capacity of 20

bullets each as exhibit. He stated that he had worked with the accused for about 5 months.

In cross examination he stated that he had worked with an AP Officer called Abduweli. He stated that he knew a Kenya Police Reserve officer called Mohammed Bare and another Adan, all of whom were armed. He stated that each officer accounted for the gun and ammunitions at the end of patrol. He stated that nothing was missing from the ammunitaions issued to the accused. He stated also that the spent cartridges were not used in G3 rifles and that he had not known the accused as being issued with bullets of that caliber. He stated that during the time the second shooting occurred the accused had gone to visit his wife and had taken 15 minutes before he was called in respect of that shooting. He stated that the OCPD instructed him to disarm the accused and came to the station about 5 minutes after the accused had arrived. He also stated that at the time he was instructed to disarm the accused, he had no issue with him. Though he stated that some officers were issued with AK guns he maintained that none of them was carrying an AK 47 gun. He stated that he was the Commander of the Kenya Police Reserve and that the OCS could not assign duties without instructing him to do so. He stated that neighbours said that the person who shot the man wore uniform resembling police uniform.

PW3 is Alo Kimo Opiyo. His evidence is that he lived at Ifo Refugee Camp Block G3. That on 8th May 2012 at 9. 30 Pm he was watching a movie in his compound with some women. The sky was clear with moonlight and there was also light emanating from the TV screen. He saw a man wearing police uniform come un locked the gate and enter. The man said sit down in Kiswahili which he understood. The man had a gun which he pointed at him but he could not describe the type of gun. That person was stout and wore a piece of cloth round his neck. He asked him whether he was from the Gabella Community or a Sudanese. He responded that he was Gabella. When he asked him why he was pointing a gun at him, he walked to the women and instructed his wife to stand up and asked where her husband was and she said that he was not around. He then threated to take her to Somalia and she resisted, and the women who numbered about 10 then screamed and he left. Ten minutes later they heard a gunshot in the same block of houses.

He testified that the police arrived he went to the scene and discovered that it was a corner of his compound near the main gate which was a distance of about 3 minutes walk from his compound. He narrated what had happened to the police and recorded a statement. Later, at Dadaab Police Station he found people standing and was asked to check if he could recognize the person who came to his compound. He recognized the appellant from the line of 9 people. He stated that the incident at his compound lasted about 9 minutes.

In cross examination he stated that he was not able to estimate the distant between his home and the police station which was a walk of about 15 minutes. He stated that he had never dealt with the accused before. He stated also that he did not see the police on patrol but that it was normal for police patrols to be conducted in the area. He stated that the man with the gun did not wear a hat but had a piece of white and black cloth around his neck. He learnt in the morning that a woman had also been shot. He stated that he knew that his wife did not record a statement with the police. He did not know why the police did not record a statement from her. He stated that he picked the accused because he was the person he had seen, not because he resemble him.

PW 4 is Opiti Met Ochora. He stated that on the 8th of May 2012 at 9. 00 Pm while seated at his compound listening to the radio with his wife and children he heard movements like people coming through the gate. According to him there was moonlight and the sky was bright. When he opened the gate with his left hand he saw a man carrying a gun wearing police uniform leaving the gate on the left.

According to him it was not the normal police uniform. The gun was an AK 47 riffle. He asked him what the matter was and he did not answer but pointed the gun at him and made a rude remark. He thus closed the gate went and picked the phone and called Section Leader Okach Agidi and informed him about the incident. They agreed that Agidi would call the police. He stated that the person he saw wore a cloth around his neck which was red in colour. He was also stout. After of about 20 minutes he heard gun shots followed by screams. He went to the scene which was 15 minute’s walk and saw the body of Obang Alwal who had been shot in the lower back. He later learnt that the assailants shot the wife of the deceased but missed her.

It was also his evidence that on the night of 9th May 2012 police came, took them to the station and recorded statements. At about 5. 00 Pm he was taken to Dadaab Police Station and saw 9 people in a line. He was told to identify the person he had seen the previous evening. He identified the accused.

In cross examination he denied that he was lying. He stated that he signed the police statements and denied doctoring his statement. (Defence counsel asked the statement be marked for identification which was done.) He insisted that the person he saw had a cloth which was red round his neck. He also stated that the person was wearing a hat like the army round hats of faded green. He agreed that moonlight produces shadows. He stated also that he had seen the accused before when he came with colleagues to make an order for jericans. He stated that he did not record this detail in his witness statements.

PW5 is Meer Chach Akway an Ethiopian Refugee. She stated that he lived at Ifo Refugee Camp Block G3. On 8th May 2012 at 9. 30 Pm a man entered his house after opening the gates which was made of mats. He called and then pulled her outside after kicking the door open. She had a portable solar lamp, and he threatened to take her to the bush and she pleaded to let her inform her female cousin by the name Amala. They went together to the cousin’s place and she told Amala that the man wanted to take her to the bush. According to her that man wore police uniform and a cloth round his neck which was black and white in colour. He wore open shoes and was carrying a gun which was medium short. Though he told them to keep quiet Ambala raised the alarm. The man then stepped aside and picked the phone of the husband of Amala and left. A few minutes later they heard a gunshot in the same compound but at a corner. She stated that though she was carrying the solar lamp, she had switched it off when going to Amala’s house. She stated that Ambala’s house had electric power with bulbs. She did not know the assailant before but stated in court that the accused was the assailant.

In cross examination she stated that no identification parade was held. She admitted that the incident occurred at night. She stated that the G3 rifle which was shown to her in court was a long gun not the type she was describing. She stated that the man did not wear a hat but maintained that the accused was the person she saw.

PW6 was Ambala Onjuku Awal who lived at Ifo Block 3. She was an Ethiopian female. On the 8th of May 2012 she was at home at night when her cousin Meer came with someone who was carrying a gun after supper. There was moonlight and she called and she opened the door. According to this witness the accused grabbed her hand. She observed that he wore police uniform and a white cloth around his neck with a T-shirt round his shoulders. He was carrying a gun which looked like a (klash). She stated that though there was electricity on that day, she did not put the light on. The man asked where her husband was and she said he was not around. The man then asked for money and she said she did not have money. He then grabbed her hand and threatened to kill her. She knelt down and raised the alarm. He then moved back took her husband’s phone and left. After a short while she heard a shot at the corner of the same block and later learnt that a man had been killed. She stated that she had not seen the assailant before but she identified the accused in the dock as that person.

In cross examination she stated that the gun was short not like the ones police ordinarily carried. She maintained that she did not put on the electricity light on that day. She also did not attend an identification parade.

At this stage the trial Judge was transferred. I took over the case and the accused elected to proceed with the trial from where it had reached.

PW7 was Chief Inspector Alex Chirchir of the Directorate of Criminal Investigations. He was firearms examiner. He identified the Exhibit Memo report and the items sent to the Firearms Examiner as Chief Inspector Immanuel Langat who made the report had left the service. He stated that he was familiar with the handwriting and signature of Chief Inspector Immanuel Langat. He stated that there was a G3 rifle, 80 rounds of ammunitions, one mis fired round of ammunition, one spent cartridges case, 4 rifle magazines. The exhibits were accompanied by an exhibit memo. Inspector Immanuel Langat carried out the examination and found that the gun was 7. 62 German G3 rifle it was in fair mechanical condition. Exhibit B1-B80 were 7. 62 mm x 51mm caliber bullets. They were designed to be fired in exhibit A the G3 rifle. The cartridges were for the said ammunition. Exhibit C was 7. 62mm x 39mm misfired round of ammunition. The examiner did a sensitivity test which revealed that it was defective. On exhibit D it was a fire cartridges case 7. 62mm x 39mm fired from an AK 47 assault rifle. Exhibit C and D were fired from the same rifle. The report confirmed that exhibit D was not fired from the G3 rifle. The findings on the magazines E1-E4 is that they were G3 magazines with a capacity

of 20 rounds of ammunitions each. Each was in perfect condition. Conclusion is that there was no connection between the fired cartridges and the G3 rifle. He produced the report of the ballistic examiner as an exhibit.

In cross examination he stated that a gun which takes 7. 62 x 51mm bullets cannot take or fire bullets of 7. 62 x 39mm bullets. That was the close of the prosecution case. Submissions were made on a plea of no case to answer. However the court put the accused on his defence. The accused elected to make a sworn defence.

In his own defence the accused stated that he worked at Ifo Refugee Camp as a Kenya Police Reservist in charge under the control of the OCS Ifo Police Station by the name Phillip. He was a married man. As a Kenya Police Reservist they were under the control of the in charge of the police who gave them briefings and instructions. They were given uniforms i.e. Jackets, Trousers, Boots and a Hat. They were also issued with G3 guns and bullets. He stated that he was not issued with any other type of a gun. They signed for the guns and ammunitions both before and after duty. On the 8th of May 2012 he was at Ifo Police Station under the instructions of a commandant. There were Kenya Police Reservist as well as the Kenya Police. The commandant called them at 7. 00 pm and asked them to go for work in vehicles at the

refugee camps. He stated that Inspector Felix was then the OCS and they went out together at 8. 00 Pm for one hour and 30 minutes and came back with no incident. When they arrived back at camp and they were booking out they heard gun shots. The OCS asked him to go with them near the market and they met an injured woman took her to a vehicle to hospital. While there they heard other gun shots. They were instructed to go to where the gun shots sound had come from. They found nothing unusual and came back at the camp the OCS came and found them booking out. In the meantime he asked for permission to go and eat at home as his wife had come that day and was given that permission. As he was being served with food the OCS called him on phone and instructed him to go back to the station. When he arrived he met the OCS and Deputy OCPD. The OCS asked him whether he had assaulted somebody while they were together he denied. He stated that his gun had all the 8 round of ammunitions and the OCS took his gun and bullets and the deputy OCPD ordered that he be put into the cells. He denied firing any bullet from the gun. He stated that he did not know why he was put in the cells. He stated that he did not know how to handle an AK 47 gun. He denied killing the deceased.

In Cross Examination he stated that they were trained at the Police College Garissa to use only G3 guns. He stated that he had asked for permission to go and

eat at his house which was 20 metres away. He was not given the name of the person he had assaulted. According to him the allegations came from the OCPD and not from the OCS. He stated that they had a problem with the OCPD because of his stands regarding smuggling.

This is a case of murder. The accused faces a charge of murder. In a trial for murder the prosecution is required to prove beyond reasonable doubt 3 elements. Firstly that the deceased died. Secondly that the accused is the person who caused the unlawful death of the deceased. Thirdly that the accused caused the said death with malice aforethought- see the case of REPUBLIC –VS- GACHANJA (2001) KLR 428.

The accused is not required to prove his innocence. He can raise a reasonable doubt in the case of the prosecution. He can even keep quiet if it so suits him.

Did the prosecution prove that the deceased died? Having considered the evidence on record, in my view the prosecution proved beyond any reasonable doubt that the deceased died. Neighbours heard gun shots at night. They proceeded to the direction where the sound of gunshots came from. They found the deceased lying down with serious gun wounds in the groin. The police were called and they came to the scene. They also confirmed the injuries. They took the body to the hospital mortuary. Later the doctor conducted a post mortem and found that the deceased

died due to excessive hemorrhage. In my view therefore the prosecution has proved beyond any reasonable doubt that the deceased died of excessive bleeding from a gunshot.

Did the accused kill the deceased? The evidence of the prosecution against the accused is that some people or two witnesses identified him at a parade after the incident. He also was called from his home when he was eating and it is said that the OCPD ordered that he be arrested. The accused has put a strong sworn defence against the prosecution allegations.

In deed the accused was in the security operation that night with other armed police officers and Kenya Police Reserves. He was armed with a G3 rifle and 80 rounds of ammunitions. He stated that he didn’t use that gun or any of the bullets. The evidence on record is the that gun and all the 80 rounds of ammunition were returned to armory and were later taken to the Government Analyst for Examination. It was confirmed that the cartridges that was found near the deceased body were fired from an AK 47 rifle. Such bullets cannot be used in a G3 model gun. It was evident therefore that the gun and ammunition used by the accused on that night were not connected to the killing of the deceased. The accused also stated, and which was supported by the police, that they as Kenya Police Reserves were not trained in the use of any gun other than a G3 rifle, nor were they issued with AK 47 rifles.

The evidence of the identifying witnesses was contradictory. Some said he wore a hat others said he did not wear a hat. Some said his scarf on the neck was red others said that his scarf was black and white. However the totality of the evidence is that none of them said they saw the face of the appellant and identified it. The accused was also not arrested because of the identity or description given by any of the witnesses. He was not arrested in their presence and they did not participate in the arrest.

The OCPD who is said to have ordered his arrest was not called to testify which creates a fatal gap in the prosecution case. In addition to this the identification parade conducted in my view was a sham none of the witnesses said before that they were able to identify or recognise the accused. Since they did not say so it was futile to take them for that identification parade. In addition no identification parade form was produced.

The witness who said she talked to the accused at length who was the wife of PW2 was also not called to testify in court. There is no evidence that the people who were taken to the parade were told to dress exactly the same way described of the accused that night. The identification of the accused was therefore dock identification which cannot be relied upon to found a conviction in a criminal case. In my view the prosecution failed to prove beyond reasonable doubt that the people who claimed to have identified the accused correctly and positively identified him. The accused is thus entitled to an acquittal as he was not proved to have caused the death of the deceased.

In addition to the above, no one witnessed the shooting incident. Everybody just heard the guns shots and went there and saw the deceased. Even if there would be positive identification of the accused by the witnesses who said that he went to their homes, it would be difficult to say that he was the one who went and shot the deceased elsewhere. None of the witnesses testified as to which direction the person took when he left their premises. None said that he walked or ran towards the direction where the fatal shot occurred shortly thereafter. The circumstantial evidence would therefore not point irresistible to the accused herein and therefore he could not be connected to the death.

Having found that the prosecution has failed to connect the accused with the death of the deceased, I find it not necessary to deal into the issue of malice aforethought. It merely follows that the accused had no malice aforethought as he was not involved in the death of the deceased.

Consequently and for the above reasons I find that the prosecution has failed to prove their case against the accused beyond reasonable doubt. The accused is thus entitled to acquittal. I acquit the accused of the charge of murder accordingly.

Dated and Delivered at Garissa this 23rd September 2015.

GEORGE DULU

JUDGE