[2022] KEHC 16328 (KLR)

Agutu v Republic (Criminal Case E007 of 2021) [2022] KEHC 16328 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16328 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case E007 of 2021

RPV Wendoh, J

December 15, 2022

Between

Magdalene Awino Agutu

Accused

and

Republic

State

Judgment

1. Magdalene Awino Agutu, faces a charge of murder contrary to Section 203 as read with Section 204 as read with Section 204 of the Penal Code.

2. The particulars of the charge are that on 20/4/2021, at Nyandago Sub Location Central Nyatike Sub County, Migori County, murdered Jackton Agutu.

3. The prosecution called a total of five witnesses and at the close of the prosecution case, the accused was called upon to defend herself she gave unsworn evidence in her defence.

4. PW1 is Dr. David Mwita Keboye of Migori Referral Hospital performed post mortem on the deceased, Jackton Agutu on 3/4/2021 after the body had been identified to him. He noted that the deceased had sustained multiple cut wounds on the head, one from the right ear to the root of the mouth, another from the angle of the mouth to the right side of the neck, 8cm both wounds, 7cm and multiple cut wounds on both legs. The Doctor formed the opinion that the cause of death was excessive bleeding secondary to multiple cut wounds. He produced the post mortem report as PEXNO. 1

5. PW2, Grace Achieng Opole a step daughter to the accused, testified that the accused was the first wife of the deceased. She recalled that on 20/4/2021 about 10:00a.m, she was in the farm with her brother’s wife when she heard a man crying asking a person why the person was killing him. She went to check who was crying and found the father bleeding and the accused was there and had a panga; that she observed the panga that accused had, but did not see anything in it.. She observed the deceased and he had injuries on the mouth, hands and was unable to move. She screamed, people came and the deceased was taken to hospital. She identified the panga that accused had.

6. PW3 John Odoyo Agutu the son of the accused and deceased recalled that on 3/4/2021 he took his injured father to hospital but he died and he identified the body for purposes of post mortem. He said that he does not live near the accused.

7. PW4 Okoth Kongo Calvins, the Assistant Chief of Nyandago Sub Location identified accused as one of his subjects. He also knew the deceased, who was the accused’s husband. He testified that on 20/4/2021 about 11:00a.m he received a call from the village elder informing him of an incidence that accused had assaulted Jackton with a panga. He went to the scene and found the deceased lying on the ground with injuries to the right side of the face, arm, wrist. He called the OCS. A vehicle took the deceased’s body to hospital while accused was arrested at the scene. PW4 stated that on that day accused was wild, armed with a walking stick and did not want anybody to go near her. PW4 also denied that he had ever settled any dispute between accused and her deceased husband.

8. PW5 PC Benedict Mwendwa was the investigating officer in this case. He recalled 20/4/2021 when he went to the scene with other officers where he learnt that the accused was in her house when she heard somebody chasing cows, outside; that the cows entered her land and she came out, found that it was deceased who had come with the cows. They quarreled and accused who had a panga started to fight the deceased. People came to the scene and found accused with the panga threatening to kill deceased; that the deceased’s son came and disarmed accused; that the deceased was taken to hospital but died on the way. He later charged the accused with this offence.

9. After the close of the prosecution case, the accused was called upon to defend herself. She gave unsworn statement in which she denied knowing why she is in court. She denied knowing what happened on 20/4/2021; that she parted with Jackton Agutu (deceased) long time ago and did not know why she was in court.

10. Ms. Apondi counsel for the accused, filed closing submissions in which she submitted that under Section 107 of the Evidence Act, the burden of proof lies on the prosecution to prove their case against the accused beyond any reasonable doubt. She relied on the decision of Republic v Ismail Hussein Ibrahim (2018). Counsel also submitted that in a charge of murder the prosecution has to prove two key ingredients namely:-1)Malice aforethought;2)Unlawful act or omission on the part of the accused.As was held in Republic v Albert Tirimba Ogata (2014) eKLR.

11. Counsel submitted that none of the witnesses saw the accused murder the deceased and therefore the prosecution relies on circumstantial evidence; that the circumstantial evidence adduced by the prosecution does not meet the criteria set out in the case of Abang’a alias Onyango v Republic Criminal Appeal 32/1990. Counsel also relied on the decision of Republic v Michael Muriuki Munyuri (2014) eKLR; Counsel also submitted that having not proved that the accused was the culprit, malice aforethought was not proved as required by Section 206 of the Penal Code.

12. I have duly considered all the evidence on record, the submissions of Ms. Apondi. The accused faces a charge of murder and this being a criminal case, the burden of proof squarely lies on the prosecution who are required to prove their case beyond reasonable doubt. The term ‘beyond reasonable doubt’ has been defined in the case of Stephen Ngulu Mulili v Republic (2014) eKLR where the court said:-“It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DDP v Woolminton (1935) UKHL1 where the court eloquently stated that the ‘golden thread’ in the web of English Common Law’ is that it is the duty of the prosecution to prove its case. The Kenyan courts have upheld this position in numerous cases. See Festus Mukati Murwa v Republic (2013) eKLR.

13. In Miller v Ministry of Pensions (1947) 2 ALLER 372, Lord Denning stated this as regards ‘proof beyond reasonable doubt’.“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the counsel of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

14. In a charge of murder, the prosecution must prove beyond reasonable doubt that the following ingredients exist:-1. Proof of death;2. Proof that the accused caused the unlawful act or omission that resulted in the death;3. Proof that accused had malice aforethought.

Death: 15. PW2, the deceased’s daughter found him seriously injured and he was taken to hospital where he died. PW3, the deceased’s son identified the deceased’s body to the doctor who performed post mortem. He observed that the deceased had injuries to the chest. PW1 Dr. Mwita performed post mortem on the deceased on 3/4/2021. He found that the deceased had sustained multiple cut wounds on the head, neck, hands and multiple cut wounds on the legs. He formed the opinion that the cause of death was haemorrhage secondary to multiple cut wounds.

16. PW5, the investigation officer was also present when post mortem was done. There is overwhelming evidence that the deceased died after he sustained some serious injuries.

Whether accused caused the death 17. As properly submitted by the accused’s counsel, nobody saw who assaulted the deceased. PW2, who was the first at the scene, heard her father screaming that he was being killed. She rushed to the scene. According to her, she found the deceased lying outside the house injured and that the accused was in the house. PW2 added that accused had a panga but there was nothing on it. The panga was produced in evidence as PEX2 but it was never taken to the Government analyst to confirm whether there was any blood on it that should have connected accused to the offence.

18. Although PW2 said that she found accused and deceased alone on the compound, it cannot be confirmed that nobody left the home before PW2 arrived from where she was. For the court to rely on circumstantial evidence it must meet the criteria that the Court of Appeal set out on the case of Abanga’s alias Onyango v republic (supra) where the court said :It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:-i)The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;ii)Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;iii)The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

19. I find that the evidence on record does not satisfy the above criteria. The accused is a prime suspect but the courts have held that suspicion alone however strong cannot found a conviction. In this case, without any other corroborative evidence to confirm that the accused was the one who fatally assaulted the deceased, the court cannot found a conviction on the circumstantial evidence alone. I find that the evidence on record is so weak that it does not connect accused to the offence. She is but a suspect. Suspicion alone however strong cannot form the basis of a conviction.

20. Having found that accused may not have been the perpetrator, this court cannot go ahead to make findings on the ingredient of malice aforethought and the said ground must fall on the way side.

21. In the end, I find that the prosecution failed to prove their case against the accused to the required standard of beyond reasonable matter. For that reason, I give accused the benefit of doubt and acquit her of the charge of murder under Section 203 of the Penal Code.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 15TH DAY OF DECEMBER, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Maatwa for the Respondent.Mr. Jura holding brief for Ms. ApondiAppellant present.Nyauke Court Assistant.