[1996] KECA 196 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: TUNOI,SHAH & LAKHA JJ.A)

CRIMINAL APPEAL NO. 86 OF 1994

ABEL MONARI NYANAMBA

SAMWEL NYAKUDI MAENA

FREDRICK NDEGE NYANAMBA

JOSEPH MAKORI MANYARA

EVANS MOMANYI MOREKA………………............APPELLANTS

AND

REPUBLIC………………………………………...RESPONDENT

(Appeal from a conviction and judgment of the High Court of Kenya at Kisii (Mr. Justice T.Mbaluto) dated 22nd July, 1994

IN

H.C.CR.C.NO. 27 OF 1993)

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JUDGMENT OF THE COURT

The five appellants were after trial jointly convicted of the murder of Pascalia Mogere Nyanamba on the night of 25th and 26th March, 1992 at Igare Sub-location, Bassi-Boitengare Location of Kisii District and were each sentenced to death. They have now all appealed to this court against their convictions.

At the hearing of the appeal Mr. Ombija appeared for the 1st and 4th appellants while Mr. Nyamori appeared for the 2nd, 3rd and 5th appellants.

Before we deal with the various grounds of appeal raised by the learned advocates we consider it pertinent at this stage to recapitulate only briefly the evidence which was before the learned trial judge (Mbaluto, J.), who in our view, had dealt with all the testimony very thoroughly; and, consequently, there is no necessity to repeat it.

The facts of the case as presented by the prosecution and which appear to elicit some controversy from the appellants reveal that the deceased was a step-mother to the 1st, 2nd and 4th appellants and a grandmother to the 3rd appellant. The deceased was also married to Josephine Kemuma (PW1) under the Abagusii customary woman to woman marriage. On 21st March, 1992 Kemunto, the step-mother of PW1, who also lived within the same homestead as the deceased, lost a daughter whose name PW1 did not remember. The appellants and other relatives met at the house of Kemuto for funeral ceremonies. What emerged from the evidence of James Mwegi Manyara (PW4), and is indeed crucial to the prosecution’s case as possible motive for the crime is that plans to kill the deceased were hatched at the funeral for it was apparently though that the deceased and one Petro Musa had bewitched the child.

On the fateful night at about 3 a.m. the deceased was asleep in her house at igare. In the same room was PW1. In the adjoining room were PW1’s children, Fred (PW2) aged 14 years and in standard four, and Charles aged 10 and in standard two. PW1 testified that they heard a loud bang at the door upon which the deceased screamed. She woke up and opened the door to the bedroom to find out what had happened. She noticed that the outer door had been broken. Immediately a group of people entered the house. The first person to enter and whom PW1 identified as Ndege, the 3rd appellant in the appeal, violently his the deceased on the neck with an iron bar killing her instantly. PW1 testified that in the house she saw all the six persons all of whom were previously well known to her and did identify them as their attackers during that fateful night. She added that all of them were armed, however, but the only weapon she managed to see clearly was an iron bar and a spear. As to who was in possession of the appear, she was unable to say, as she explained, she was in a state of deep shock,. From the moonlight and flashes from torches which appellant each had, she was able to identify the appellants. She tried to escape through the window but was assured that nothing harmful would happen to her since they had accomplished their mission. The appellants took half an hour in the house and after they had killed the deceased they pulled her body outside the house. A post-mortem showed that the head had been deeply pierced by 4 inch nails fracturing the skull into several pieces all over. There were broken ribs on both sides of the chest wall concentrated on the mid sessions. The cause of death was severe internal haemorrhage in the brain due to sharp and blunt injuries to the head. PW1 in her evidence-in-chief added that it was only one kick that caused the deceased to fall down and die instantly. It therefore transpired that the deceased could have been killed by an iron bar striking on her neck, or by one kick, or by nails being driven into her head.

Fred gave unsworn evidence because the learned judged was not satisfied that the child was possessed of sufficient intelligence and understood the duty of speaking the truth to justify the reception of his evidence on oath.

The only other witness for the prosecution whose testimony relates to the events of the material night was PW4. This witness turned hostile and the learned judge acceded to the request by the prosecution to cross-examine him. PW4 told the trial court that he was threatened by the 1st appellant who proceeded to assault him. The learned judge observed that during the trial PW4 was scared stiff and was most reluctant to tell all he knew about the murder. He still felt threatened a the time of giving evidence and was sweating most profusely despite the court’s assurance that he was safe and should testify truthfully and freely.

Each of the appellants made a separate cautionary statement recorded by Inspector Abdi Ahmed. The statements which were monotonously identical in all aspects read as follows:-

“Yes, that is true. We killed the deceased because she was a wizard and she killed the child of my (relative)…. And later came to dig the grave of this child so that she could take. We gave chase, caught her and then killed her.”

The appellants repudiated the statements so recorded and the learned judge, meticulously, held a trial within a trial to determine the admissibility of each statement. At the end of the day the learned judge held that the statements were made voluntarily and without any threats or inducements. When the prosecution rested its case all the appellants elected to make unsworn statements and called no witnesses. They denied the commission of the offence. However, the learned judge found the case against them proved beyond all reasonable doubt and jointly convicted them.

This being a first appeal this court has to consider the entire evidence and make its own conclusion. In summary, from the recorded evidence the case against the appellants consisted of:-

(a) Identification by PW1;

(b) Identification of 1st and 3rd appellants by PW2;

(c) Charge and cautionary statements which were subsequently repudiated

(d) The adverse testimony of PW4 who was declared a hostile witness during the trial;

(e) The cause of death, that is, three different alleged methods causing the death of the deceased.

The main ground of appeal is that the appellants were not properly identified by PW1 and PW2 who were not credible witnesses and therefore it was an error of law to hold their testimony against the appellants. The learned judge appreciated that the identification of the appellants by the witnesses occurred at night when conditions are normally not favourable for positive identification. We observe that though PW1 was related to most of the appellants and claims to have seen all of them with the aid of torches, and through moonlight, and was with them for over half an hour and even talked with them, she gave three different versions of what transpired within her house. For instance, she stated in examination-in-chief that she remained inside the house throughout the incident whilst under cross-examination she varied her testimony by stating that she fled through the window so soon as the assaillants entered the house. She was absolutely sure it was only one kick that caused the deceased to fall down and die instantly. She was equally sure that one hit by an iron bar, on the neck, caused the death of the deceased. Though she observed protruding nails on the head of the deceased she did not mention them in her statement. She remembered seeing a panga and a spear but she forgot to mention them, also.

We would agree with the learned judge that this was actually not a case of identification but recognition because PW1 knew the appellants before the incident. But the learned judge who saw and heard this less sophisticated witness found inconsistencies in her evidence which he termed “minor”, but nevertheless proceeded to hold that PW1 was a credible witness. In our view, these inconsistencies are not minor and in fact do not strengthen the affirmative value of her evidence. With the greatest respect to the learned judge our own independent assessment of the evidence of this witness, upon which the trial judge placed much reliance, leads us to find that it is full of contradictions and cannot be said to be satisfactory beyond any shadow of doubt. To our minds there existed serious discrepancies and different versions and either she was guessing or she made a mistake. Perhaps she was guessing about the identification of the appellants.

This court has repeatedly stressed that it is unsafe to uphold a conviction based on improper identification. The law in this regard is well set out in the cases of Abdallah bin Wendoh v R (1953) 20 EACA 166 and Roria v R [1967] E.A 583. The holding in the case of R v Eira Sebwata [1960] EA 174 is:-

“Where the evidence alleged to implicate an accused is entirely of identification, that evidence must be absolutely watertight to justify a conviction.”

Though the learned judge warned himself of the dangers of convicting on the evidence of one witness, did he correctly apply his warning to the evidence? Yes, he did so, but, the identification or recognition by PW1 of the appellants was not foolproof or cogent. This witness, we conclude, did not beyond reasonable doubt identify or recognise any of the appellants as the assailants of the deceased.

Mr. Ombija argued that the evidence of PW4 who was declared a hostile witness should not have been of any consequence to the case in that PW4 was narrating episodes that had taken place at other times not relevant to the case before the Court and long before the deceased was killed. It could be, Mr. Ombija submitted, PW4’s fear arose out of the fact that he was suspected of murder and could be arraigned on the same charge. Further, he added, the evidence of PW4 was not corroborated. The learned trial judge while accepting the testimony of PW4 said:-

‘Despite the perceived threat to his the witness nevertheless attempted, as best as he could, to explain what had happened on the fateful night and the role he played. I do not consider him to have been an accomplice, although at one stage he appeared to have been treated as a suspect. I find his evidence regarding the involvement of A1, A2, A4, A5 and A6 to be reliable and truthful.”

In Coles v. Coles, (1866) L.R. 1P. &D. 70, 71, Sir J.P. Wilde said:-

“A hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court.’

In Alowo v. Republic [1972] EA at page 324 the predecessor of the Court said:-

“The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible.’

Again in Batala v Uganda [1974] E.A. 402 the said court at page 405 said:

“The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable. It enables the party calling the witness to cross-examine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile, and it can be given little, if any, weight.”

The evidence of a hostile witness is indeed evidence in the case although generally of little value. Obviously, no court could found a conviction solely on the evidence of a hostile witness because his unreliability must itself introduce an element of reasonable doubt.

The inevitable conclusion after PW4 had been declared a hostile witness was that he became an unreliable witness, whose evidence would be rejected as untrustworthy. He was discredited completely. In our view, PW4 was substantially an unreliable witness and all parts of his evidence should have been rejected. It must follow, therefore, that nothing PW4 said in Court could be accepted against any of the appellants.

As we have said earlier, the other material evidence against the appellants was their own caution statements, which they repudiated at the trial and which led, before their acceptance, to six trials within a trial at which the learned trial judge painstakingly endured and wrote, as is required, separate rulings on each trial-within-a-trial. We note in relation to this at his summing up to the assessors he quite properly directed them that it is dangerous to rely upon a retracted or repudiated confession in the absence of corroboration. But that they might do so is fully satisfied that the appellants’ confession must be true. Both Mr. Ombija and Mr. Nyamori argued that these were grave misdirections and that it was an error on the part of the learned judge to find that there was corroboration of the repudiated confessions and in convicting on them.

It must be observed that after admitting the repudiated confessions, which confessions did not even refer to killing inside a hut or huts but refer to killing after a chase in day time, the assessors were not given the benefit of the evidence of trial-within-a-trial by recalling of the witnesses who gave such evidence. Whilst the advocates for the appellants did not in the superior court take issue on this factor we think it falls to the learned judge in a murder trial to see to it that the assessors have full benefit of such evidence.

We think the learned judge’s direction to the assessors regarding appellants’ repudiated confessions was correct but he was wrong when he further directed them that they might properly treat the evidence of Patrice Nyanamba (PW5), who was declared a hostile witness, as corroboration of those statements. There was indeed substantial conflicts between the evidence of PW1 and the appellants’ caution statements. Moreover, her evidence was unreliable and carried little weight, if any. It is trite that as a general rule evidence which itself required corroboration cannot provide corroboration for other evidence also requiring corroboration.

We are also concerned about the manner in which the cause of death was proved. The author of the post-mortem form was not called to give evidence. It remained unclear as to whether the death was caused by one iron-bar hit on the neck, or by one kick, or by nails being driven into the deceased’s head or by a combination of these alleged attacks. This factor becomes more relevant as the main witness herself, PW1, gave three different versions as to how the death occurred. There was no evidence to show that the author of the post-mortem form was not available to give evidence and although the evidence of opinion as to cause of death was not challenged (it is not for defence to prove the case for the prosecution) it does put the court on an inquiry as to precise cause of death if possible to ascertain, when three versions of cause of death are offered by the only alleged ‘reliable’ witness. It must be remembered that the nails were the cause of death and that PW1 did not say anything about the nails causing death.

If the differences in the differing versions were minor we would have attributed the same to the state of shock PW1 could have been in but as pointed out there were startlingly different versions of the events leading to the death of the deceased at 3:00 a.m. on that fateful night and also the factors that could have caused the death.

For these reasons we are of opinion that the convictions of all the five appellants cannot be supported. We allow their appeals, quash their convictions and set aside the sentences of death passed on them. Unless otherwise lawfully detained, they are to be set at liberty forthwith.

Dated and delivered at Kisumu this 27th day of September,1996.

P. K. TUNOI

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JUDGE OF APPEAL

A.B. SHAH

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JUDGE OF APPEAL

NB.

This judgement has not been signed by Lakha, J.A.

I Certify that this is a true copy of the original.

DEPUTY REGISTRAR