[2004] KEHC 78 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Criminal Case 65 of 2002

CATHERINE NGINA KISULE............................... ACCUSED

-versus-

REPUBLIC....................................................... PROSECUTOR

JUDGMENT

The accused Catherine Ngina Kisule is charged with an offenceof murder contrary to Section 203 as read with Section 204 of thePenal Code. As per the particulars of the charge it is alleged that onthe night of 13th and 14th April 2002, she murdered one LawrenceKaranja Ndegwa Ndura, also known as Denis Karanja Ndegwa atWhispering Inn Bar in Ziwani within Nairobi area.

The accused was working as a Bar maid with Whispering Baras well Wangui (PW 10) and one Jane who was not called as awitness. On that night they joined their three customers, i.e. thedeceased, Amos (PW 11) and Peter (PW5) as well as John Ndungu(PW 17). The accused was the last to join them as she came around midnight after she had gone to Embakasi with other customers.Administrative police officers were in that group, She was thenescorted back to the bar by officers of Chiefs Camp of the area. Shewas invited and on insistence she joined the group. But according tothe evidence she drank only soda. However the deceased was saidto have carried two bottles of beer with him when they went to sleep.As the story progressed, due to late night the customers decided tohire rooms to sleep. There is ample evidence in the prosecution caseand that the accused and deceased went in together to room No. 1,Amos (PW11) and Wangui (PW10) went to room No. 6 and Peter(PW 5) and Jane went in room No. 4. The manager of the Bar(PW2) confirmed the hiring of the rooms. She further testified thatafter locking the door leading to the floor where they were drinkingshe gave the keys to Wangui (PW10).

Then comes (PW1) Jennifer Mwende who is a cleaner of thebar. She reported on duty at 6. 30 a.m on 14th April 2002. She wasopened by Njoki (PVV2), the manager. She while starting her dutyshe then noticed some blood stains on the floor as well as a TIshirtwallet and man's underwear lying when she went to collect hercleaning things. She alerted the manager (PW2). Thereafter shealong with others saw a person in a room not responding to the calls.She continued with her work and later was informed that all theworkers at the bar were arrested by the police. She said the T-shirtbelonged to the accused as she had seen her wearing it previously,when the other witnesses have testified that it belonged to thedeceased. She confirmed that she found the T-shirt and other itemsat the entrance of the door of the 1st floor. It is not in dispute that theroom at the bar are on 3rd floor.

The facts which emerge from the evidence thereafter are a sunder.

When PW1 the cleaner gave the items found by her to themanager PW2 (Ann Njoki Wagunyu, she called PW5 (Peter) whotook them to the room where deceased was sleeping but found himnot responding to his call. So Peter alerted PW2 and went to wakeup his other friend Amos (PW11) who was found in room No.6 withJane who was still asleep. all the witnesses around the bar statedthat they found two empty bottles of beer and used condoms in theroom No. 1 where the deceased was found lying on the bed exceptA. P inspector Joseph Saramoi (PW12) who was the first official tohave visited the room and instructed the deceased to be taken to thehospital. Peter and Amos (PW5) and PW11) had stated that they found the deceased naked covered in a sheet with blood stains andthat they, thereafter dressed him with trousers. PW2 (Njoki) hadtestified that the sheet was washed by the accused as it was her dutyon that day to clean rooms. PW1 had also confirmed that she onlycleans the bar and not the rooms. All relevant witnesses had testifiedthat they found the deceased with an injury on his head and that hewas breathing heavily. It is also not in dispute that was pronounceddead while under treatment at the hospital. The photographs takenby Scenes of Crime officer (ex. 2) confirm that injury, so does the postmortem report (Ex. 4).

Coming back to (PW 12) who is the first officer to have visitedthe scene, he had testified that he was testified that he was shownsome stains like blood between stairs cases of 1st and 2nd floor, thathe was shown items received by PVV1 and that it was the accusedwho told him that the deceased fell from the stairs and it was she whobrought him back to the room, i may note here that the defencepersistently indicated to the possibility of a fall by the deceasedduring its cross-examination of all concerned witnesses. Dr. Maunduwho performed the post report also conceded during his crossexamination that the injury could result from a fall. On the other sketch plan prepared by P. C. Samuel Kariuki (PW20) with theconsent of both the counsel did indicate that the distance betweenthe gents' toilets and the first step of the floor stairs was 8 feet. Allthe witnesses who slept at the bar testified that they did not hear anynoise during the night. I may note that except for Njoki (PW2), her friend Kenneth Njoroge (PW8), and the accused were the only oneswho were the only ones who were on record not to have consumedalcohol during the night. All others were consuming alcohol up toearly hours of the morning. In any event (PW 12) after visiting thescene formed an opinion that it was an accident, and he did not make any arrest. That could be the reason why blood stains on the floorand blood stained sheet were cleansed.

It is also an undisputed fact which was accepted by theaccused that emerged to the effect that the accused and thedeceased were friends and also having close physical relation.However, a strain had emerged in their relationship as the deceasedwas not very happy with accused's relationship with other males.Any way, according to the accused, she went to sleep in her roomand heard everyone went to their respective rooms.

On the other hand, it is also not in doubt that the deceasedwas found lying with head injury and breathing heavily. The defencehas suggested a theory of fall by him while visiting toilet which is at a distance of 8 feet from the staircase. Except PW12 who statedduring his cross examination that it was the accused who gave thatexplanation no other witness has suggested that theory. However,there is nothing from the prosecution to rebut the suggestion or togive evidence that the theory is impossible in reality. I have a deadperson who has died as a result of the head injury consistent withblunt weapon and a fall as testified by the medical expert Dr.Maundu. In my view of the criminal justice, it is not the accused whohas to prove that it was as a result of a fall, but it is up to theprosecution to negate that by leading cogent evidence.

Anyway this, in short is the evidence before me. There is nowitness who had seen the committal of crime and that makes theevidence before me, circumstantial evidence.

Ail witnesses who were with the deceased during night havestated that the accused and the deceased went to sleep in room No.1. Accused has denied that averment. The accused and otherwitnesses who slept there do not give any evidence of any noiseduring the night. Amongst them PW17 accepted he was totally drunk. Other accepted drinking over a long time. They all, except PW17, slept in pairs. With these facts, the prosecution had failed to oust or rebut the theory of a fall from the staircase. Once again, out of three items alleged to have been found i.e. T-shirt, wallet and man's underwear, only T-shirt is produced, and its ownership is not appropriately proved. Two beer bottles and used condoms mentioned by all when the deceased was found in serious condition are not produced before the court . Absent of murder weapon also is aglaring commission and a glaring example of the inefficient and haphazard and manner of investigating a serious crime like murder.The police had arrested almost all the prosecution witnesses whowere present in the morning along with the accused. I can say thatthe prosecution is simply relying on their evidence only, without substantive corroboration of their verbal testimony. The proof inmurder cases deserves to be above any suspicion which is not thecase before this court. While saying so, I am not ignoring the factthat as per the prosecution case it was the accused who was seenlast with the deceased.

The prosecution thus, in any humble opinion has not met the accused burden of proof required when its case is based on circumstantial evidence.

I shall only quote from Kariuki Karanja -vs- Republic (1986) KLR 190 at 193 wherein the Judges of Court of Appeal while relying on the case of Rex -vs- Kipkering Arap Koske 16 EACA 135, stated as follows:

"Secondly circumstantial evidence, to sustain in convictionmust point irresistibly to the accused, in order to justify,on circumstantial evidencef the inference of guilt f theinculpatory facts must be incorruptible with the innocenceof the accused and incapable of any explanation upon anyother hypothesis than that of a guilt. The burden ofproving facts which justify the drawing of that inferencethat the exclusion of any other reasonable hypothesis ofinnocence is always on the prosecution and never shifts.Rex. -vs- Kipkering Arap Koske 16 EACA 135. becausethey are as consistent with innocence as with Anaggregation of separate facts and inconclusive guilt and isnot good enough evidence "

The prosecution has simply neglected to collate and co-ordinate the piece of evidence as per legal requirement and this court has no option but to find as per law.

I find accordingly, that the prosecution has failed to prove beyond reasonable doubt that it was the accused who murdered Lawrence KaranjaNdura on that fateful night. I therefore acquit the accused of the charge of murder and direct that she be releasedforthwith unless otherwise held in custody as per law. Right of appealwithin 14 days.

I may also note that the assessors also gave opinion that theaccused was not guilty of offence of murder.

Dated and delivered this 9th day of February 2004

J. RAWAL

JUDGE