[2018] KECA 542 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: E. M. GITHINJI, HANNAH OKWENGU &

J. MOHAMMED, JJ. A.)

CRIMINAL APPEAL NO. 7 OF 2017 (R)

BETWEEN

ERICKSON CHENGOLI WANYONYI …............…..… APPELLANT

AND

REPUBLIC ……………………………………….….… RESPONDENT

(Appeal from the judgment of the High Court of Kenya at Kitale

(Kimondo, J.)delivered on 16th June, 2016

in

HCCRA NO. 52 OF 2012)

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JUDGMENT OF THE COURT

[1] Erickson Chengoli Wanyonyi(the appellant herein), was arraigned before the High Court in Eldoret for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He was alleged to have murdered Lilian Cheta Masinde (Deceased) on the 2nd day of December, 2012. The appellant and the deceased were at the material time cohabiting as husband and wife at Kibomet Estate within Trans-Nzoia County. The deceased who was operating a shop was at about 10. 00a.m. found by her neighbor, Elizabeth Anyango (Anyango) seated on a chair motionless with a deep cut wound on the neck.

[2] Just before Anyango raised the alarm, Dorothy Chelimo Kapcherim (Dorothy) a neighbor and a friend who was outside her house had seen the appellant standing at the gate to their shop. She greeted the appellant and thereafter the appellant left. It was a few minutes thereafter that Anyango raised the alarm. Earlier in the morning, Dorothy had been to the deceased’s house at 7. 00 a.m. and found her with the appellant. Dorothy did not notice anything unusual.Kepha Mutwetwe Omweno (Omweno) had also passed by the shop at about 10. 00a.m., and found both the appellant and the deceased. He greeted them but only the deceased responded.

[3] PC Bernard Ndiwa who visited the scene recovered a blood stained ‘panga’ (machete) which was just behind the body of the deceased. He removed the body and took it to the mortuary. Later the appellant surrendered himself at Kitale Police Station and was arrested.

[4]The deceased’s mother Catherine Masinde, identified the body to Dr. Edward Odhiambo who carried out a postmortem examination and established that the cause of death was severe bleeding from deep cut wounds on the neck.

[5] Both the deceased’s mother and Dorothy testified that the deceased had revealed to them that there was going to be no wedding between her and the appellant, because they were related and could not therefore formally marry. They stated that this caused a deterioration in the relationship between the appellant and the deceased. The investigation Officer PC Ndiwa concluded that this strain in the relationship could have provided the motivation for the murder.

[6]In his defence, the appellant gave unsworn statements and called no witnesses. He denied having committed the offence and explained that he left his house and went to Eldoret and later returned to Kitale at 5. 00p.m. He went to collect his phone where he had left it to charge, and it was then that he was informed about the murder of his wife and the fact that the police and the public were looking for him. He therefore, went to the Police Station where he was arrested.

[7] In his judgment, the trial judge found that the deceased was murdered and that although there was no direct evidence against the appellant, there was undisputed evidence that he was the last person to be seen with the deceased when she was alive, that the appellant had a motive to commit the murder because of his stressful relationship with the deceased arising from the realization that they could not marry; and that the disappearance of the appellant from the scene were all factors that provided circumstantial evidence leading to the inescapable conclusion that the appellant was the cold blooded killer who cut the deceased on the neck with a sharp weapon. He therefore convicted the appellant and sentenced him to death.

[8] Being aggrieved by that judgment, the appellant has come before us raising three grounds of appeal contending that the circumstantial evidence used by the High Court to convict the appellant was not watertight such as to justify a conviction; that the ‘panga’ recovered from the scene of crime was not dusted for fingerprints nor subjected to forensic examination; that the scene of the crime was disturbed; and finally that the court shifted the burden of proof to the appellant contrary to the law.

[9] During the hearing of the appeal, the appellant was represented by Mr. C. K. Okara while Mr. Job Mulati, Senior Prosecuting Counsel appeared for the respondent. Mr. Okara, focusing on the issue of circumstantial evidence submitted that the evidence that was adduced in the trial court did not lead to the guilt of the appellant. He pointed out that the evidence adduced was that the deceased and the appellant were happily living together and that there was no evidence of any disagreement. Counsel maintained that the evidence of the deceased’s mother regarding the alleged strain in the relationship ought not to have been relied on. He argued that there was no malice aforethought proved as no motive for the murder was established; that the conviction was based on suspicion and speculation; that the alleged murder weapon was not dusted to connect it to the appellant; and that the chain of events was not complete nor did it point to the appellant.

[10] On his part, Mr. Mulati, opposed the appeal arguing that although there was no eye witness, there was evidence that there was a problem in the marriage as the couple were alleged to have been related and that the appellant was the one who had the opportunity to commit the offence.

[11] We have carefully considered this appeal and the submissions adduced before us. Our duty as a first appellate court is as was stated in Okeno vs Republic [1972] EA 32, to subject the evidence adduced before the trial court to a fresh and exhaustive examination, make our own findings, and come to our own conclusions on the evidence.

[12] In Erick Odhiambo Okumu vs Republic [2015] eKLR, this Court referred to Abang’a Alias Onyango vs Republic, Criminal Appeal No. 32 of 1990, where the Court identified the following as the threshold which circumstantial evidence must meet to justify a conviction:

i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

ii) The circumstances should be of 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.

[13] In this case, the circumstances relied upon by the learned judge are captured in paragraph 18 and 19 of his judgment as follows:

“18 The accused being the one left behind by the deceased was thus a perfect suspect for the murder. However, nobody saw him killing the deceased. The suspicion cast upon him could have remained mere suspicion but for the undisputed evidence that he was the last person seen with the deceased when she was alive. This evidence was credible and cogent circumstantial evidence against the accused. It is evidence on which this case rests and it surely provides inculpatory facts which are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilty [see, Simon Musoke -vs- Republic [1958] EA 715].

19. The chain of evidence against the accused is strong enough to be incapable of explanation on any other hypothesis but the accused’s guilt (See, Republic vs Kipkering Arap Koskei & Another [1949] 16 EAC 135). The conduct of the accused of disappearing from the scene after the fact and later presenting himself to the police was a strong indication of his guilty feeling. His allegation that he went to Eldoret and that he presented himself to the police for fear of the members of public was not the truth. Why would he fear members of the public if he was innocent.”

[14] The above reveal that the learned judge made three conclusive findings upon which the circumstantial evidence was anchored. First, that the appellant was the last person who was seen with the deceased before the deceased was found murdered. Secondly, that the appellant disappeared from the scene and later presented himself to the police. Thirdly, that the appellant’s re-appearance at the police station was a clear indication of his guilty feelings.

[15] In our view, these factors do not meet the threshold for circumstantial evidence referred to above. First, the learned judge did not properly evaluate the evidence concerning who saw the appellant last. Omweno who claimed to have passed through the deceased’s shop shortly after 10. 00a.m., claimed to have found the appellant and the deceased. He claimed that he was called by a police officer around midday and informed that the deceased had died.

[16] The evidence of Omweno has to be examined together with that of Dorothy who also claimed to have seen the appellant outside the gate to the shop at about 10. 00a.m. and greeted him and that the accused left the scene thereafter. This then means that at around 10. 00a.m., when Dorothy saw the appellant, the deceased had just been seen alive by Omweno. The question is, could the appellant have killed the deceased between the time Omweno found them in the house and the time Dorothy saw him? Was the possibility that someone else could have gained access to the shop after the appellant left ruled out? These questions remain pertinent since the murder weapon which was found at the scene was not dusted for fingerprints nor was it subjected to forensic examination.

[17] The doubt regarding the appellant’s guilt is exacerbated by the fact that there was no clear motive for the murder. The trial judge relied on the evidence of the Investigation Officer, the deceased’s mother and Dorothy that there was an issue arising from the fact that the marriage between the appellant and the deceased was objected to as they were said to be related and that the truth of this realization could have been the motive for the murder. First and foremost, the fact that the appellant and the deceased were related or from the same clan was not established. Both the deceased’s mother and Dorothy claimed to have been informed of the relationship by the deceased. But no effort was made to get evidence to confirm this relationship.

[18] Secondly, the evidence before the court was that the appellant and the deceased, to quote the deceased’s sister Veronica Masinde, “were a nice and lovely couple”. Even their immediate neighbor, Elizabeth Anyango conceded that they appeared to “live peacefully”. Therefore, even accepting the possibility that there was a strain in the relationship because of the alleged connection, there was no evidence of any serious disagreement that could have motivated the appellant to kill the deceased, or established malice aforethought. The conclusion made by the learned judge that malice aforethought could be inferred from the manner in which the deceased was slashed with the panga, does not in any way prove malice aforethought on the part of the appellant without clear evidence that it was the appellant who committed the offence.

[19] Further, the conclusion that the appellant disappeared from the scene and reappeared because of guilt was not supported by any evidence. The appellant’s explanation that he decided to go to the police station when he learnt that the police and members of public were looking for him appears a plausible explanation. A conclusion had already been made by the neighbours that the appellant was the one who had committed the murder. If members of the public were baying for his blood, the appellant could only seek refuge at the police station if he believed that he was innocent.

[20] Having perused the record, we find that there was a medical report from Kitale District Hospital which was produced in evidence by the Investigation Officer which contained highly prejudicial information. In the report signed by Dr. Judy Kamau, a consultant psychiatric, the appellant is indicated as having admitted to the psychiatrist that he accidentally killed his wife. The admission of this evidence was highly irregular as under section 25A of the Evidence Act a confession or any admission of a fact tending to the proof of guilt, made by an accused person is not admissible unless it is made in court before a judge or a magistrate or before a police officer who is not below the rank of a Chief Inspector and who is not the officer investigating the case. Therefore the purported admission by the appellant could not be relied upon. Secondly, in the post mortem form a brief history is also given wherein it is stated that the deceased was brutally murdered by her boyfriend. We find that these two documents were not only irregularly admitted in evidence but also appear to have improperly influenced the mind of the trial judge in regard to the guilt of the appellant. The trial judge was only required to act on evidence that is properly admitted before him.

[21] In light of the above, we find that there was really no circumstantial evidence adduced against the appellant that could lead to the inescapable conclusion that he was guilty of the murder of the deceased. All there was, was suspicion, but a court of law cannot act on mere suspicion no matter how strong. The appellant’s conviction was therefore not safe. Accordingly, we allow this appeal, set aside the appellant’s conviction and sentence. The appellant shall be forthwith set free unless otherwise lawfully held.

Dated and delivered at Eldoret this 31st day of May, 2018.

E. M. GITHINJI

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JUDGE OF APPEAL

HANNAH OKWENGU

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JUDGE OF APPEAL

J. MOHAMMED

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JUDGE OF APPEAL

I certify that this is

a true copy of the original.

DEPUTY REGISTRAR.