[2018] KEHC 2604 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL CASE NO. 63 OF 2015

KALELU KAVUSUKI.............................1ST ACCUSED

KYAMBI KALELU..................................2ND ACCUSED

MUNEENI MUTHENGI.........................3RD ACCUSED

MWANGANGI MUTEMI.......................4TH ACCUSED

VERSUS

REPUBLIC...............................................RESPONDENT

J U D G M E N T

1. Kalelu Kavusuki, Kyambi Kalelu, Muneeni Muthengiand Mwangangi Mutemi,the 1st, 2nd,3rd and 4th Accused respectively, are charged with the offence of Murdercontrary to Section 203as read with Section 204of the Penal Code (Cap 63) Laws of Kenya.Particulars of the offence were that between the 31stday of October, 2006and 1stday of November, 2006at Kimangao Locationin Mwingi Districtwithin Kitui Countymurdered Julius Kilonzo Muthengi(Deceased).

2. Facts of the case are that on the 31stday of October, 2006the Deceased passed by his parent’s home on his way to his home. Later in the evening, PW1 Rosalia Kalundu Muthengihis mother saw him in company of the 4th Accused going towards the home of the 1st Accused person a husband to the 2nd Accused. It rained heavily throughout the night. The following morning his body was found on the banks of Mugoo Seasonal Riverwithin Kyuso.The police were notified. They visited the scene and took away the body which was subsequently taken to the mortuary. Investigations were carried out that culminated into an inquest being held. A recommendation was made for the arrest and charging of the Accused persons, hence this case.

3. To prove the case the Prosecution called eleven (11) Witnesses. PW1 the mother of the Deceased saw him going towards the home of the 1st and 2nd Accused persons. It rained heavily that evening until the following day at10. 00 a.m.In the course of the day she got information about a body that was found on the banks of Mugoo Seasonal River.

4. PW2 Benedict Muthengi Ngurothe father of the Deceased was approached by two (2) individuals Kitheka Mutemiand Mulandiwho asked him to go to River Sugoo.He went there only to find mortal remains of his son.

5. PW3 Jemima Kasyoka Kilonzothe wife of the Deceased stated that the Deceased went home on the 31stday of October, 2006. Between 4. 00 – 6. 00 p.m.he went home and left with a panga saying that he was going to cut timber for construction at his father’s homestead. To reach his father’s homestead he had to cross a seasonal river. Prior to leaving he called her and she found him with the 4th Accused and Mutisya Syanda.However, he left with the 4th Accused his close friend. The following day his body was found at the banks of Mugoo River.A year later he saw the 1st Accused’s son wearing a Muslim white hat that she identified as for the Deceased. She notified the D.C.I.O. who investigated the matter. In the course of investigations, a panga was recovered from the home of the 1st Accused.

6. PW4 Christopher Mutembi Muthekiparted ways with the Deceased on the 31st October, 2006after they left school. The following day he heard of his demise.

7. PW5 Robert Mutemi Muthekisaw the body of the Deceased at the banks of River Mugoo.

8. PW6 Marietta Tamakaidentified the body of the Deceased to the Doctor who performed the postmortem.

9. PW7 Christine Mbulistated that a year after the demise of the Deceased the 2nd Accused requested her to say that they were at some meeting when the Deceased died, if summoned by the police. She went and told the family of the Deceased.

10. PW8 Samson Iyatovathe then D.C.I.O. Mwingi who had since retired stated that in October, 2009,he got a report from relatives of the Deceased that a phone, a Nokia 110that belonged to the Deceased had been recovered. He wrote to Safaricom seeking data but they failed to get any information since it had not been in use for a very long time. He failed to connect the recovery of the cellphone to any user. Thereafter the wife of the Deceased went and reported that they had seen the son of the 1st Accused wearing a Muslim hat that they suspected belonged to the Deceased. He went to his home to find the son of the 1st Accused wearing the same hat. He took possession of it as Musyokithe son of the 1st Accused did not give him any explanation. Later on a panga stated to belong to the Deceased was taken to the station by Chief Mangau.On cross examination he stated that he took no action against Musyokiwho ought to have been charged.

11. PW9 John Musyoki Kalelustated that on the 31st October, 2006the Deceased his teacher was at their home with his parents the 1st and 2nd Accused, a mason and the 3rd Accused. When it stopped raining he heard people leaving the house. The following day he heard the Deceased had passed on.

12. PW10 Damaris Kalunda Kalelusaid that on the material date the 4th Accused was the mason constructing for them a kitchen.

13. PW11 Doctor Macharia Bensondid an autopsy on the body of the Deceased on the 15th November, 2006after the first postmortem was done seven (7) days before. On examination the body was slightly decomposed. The body had a 5cm abdominal incision that he believed was as a result of the previous postmortem. There were bruises on the left side of the head and at the back of the head towards the left side. There was a lot of blood clot around the spinal cord at the level of thoracic spine No. 12 and lumbar spine No. 4 with clots around the spinal cord and the neck bones C7 and T1. There were bruises on the chest cavity at the backside. However there were no fractures. The liver and brain had decomposed. There was bleeding around T12 and L4. He concluded that the cause of death was haemorrhage due to multiple injuries sustained from blunt trauma. Drowning could not be ruled out due to decomposition. Further, he stated that he had to do the second postmortem because the previous autopsy done was not satisfactory to the relatives of the Deceased. On cross examination he stated initially the Investigating Officer had indicated that it was a case of drowning but later on changed to a case of assault. That the decomposition did not enable them to establish drowning which could however not be ruled out.

14. When put on their defence all the Accused opted to give sworn evidence. The 1st Accused stated that on the 31st November, 2006the Deceased went to his home to shield from the rain which started between 5. 00 – 6. 00 p.m.He found him with his co-accused. The rain subsided at 9. 00 p.m.and he insisted on leaving. Thereafter the 3rd and 4th Accused left. They slept. The following day in the evening his cousin Mutemi Muthekipassed by his home and told him that the body of the Deceased had been found at Mugoo River.Further, he stated that the Deceased had gone to his place with a panga and since he was drunk he advised him to leave it and collect it the following day. Regarding the Muslim hat he stated that it belonged to his last born son.

15. The 2nd Accused stated that the Deceased was his neighbor and also uncle. That when he shielded himself from rain at their home he had a coat and panga. He took the coat and left the panga. She denied knowing the witness who alleged that she told her not to reveal that she had not seen her.

16. The 3rd Accused stated that when he went to the home of the 1st and 2nd Accused he found them sitting outside their house with the 4th Accused. When it started raining they entered the kitchen. That the Deceased arrived covering a coat on his head. It rained until 9. 00 p.m.When the rain subsided the Deceased left. Thereafter he (3rd Accused) left with the 4th Accused. The following day he heard of his demise.

17. The 4th Accused stated that the 3rd Accused found him at the home of the 1st Accused. It started raining and the Deceased arrived covering a coat and carrying a panga. After the rain subsided at 9. 00 p.m.the Deceased decided to leave saying he was going to sleep at his father’s home. They advised him to leave the panga since the ground was slippery and he complied. Soon thereafter he (4th Accused) also left with the 3rd Accused. The following day he returned to the home of the 1st and 2nd Accused where he was constructing a kitchen. At 5. 00 p.m.they got information from Mutemithe cousin of the 1st Accused that the Deceased had passed on. That he participated in funeral arrangements and even constructed his grave. On cross examination he denied the allegation that he was the one who asked the Deceased to go to the home of 1st Accused to partake alcohol.

18. At the close of the case, it was the submission of Mr. Ngala Mulonzya,learned Counsel for the Accused persons that the Deceased was not murdered but drowned at a seasonal river that was swollen within the locality as he attempted to cross on the way to his home as he came from the home of the 1st and 2nd Accused persons where he sheltered from rain that poured from 6. 00 p.m. to 9. 00 p.m.That although PW9 saw the Deceased and Accused person at 6. 00 p.m.he never presented any circumstances surrounding the death of the Deceased and evidence of other witnesses was hearsay.

19. That the first postmortem report was deliberately hidden from the case by the Prosecution with a view to confuse and frame the cause of death of the Deceased.

20. Regarding exhibits produced, it was urged that none was relevant to support the case and sustain the charge. Only the panga that he left behind upon advice was relevant. That the defence put up, it had varied and was unsafe for the Deceased to cross the river so as to reach his home. That no grudge was demonstrated or established that could lead to the Accused person murdering the Deceased.

21. It was urged on behalf of the State that circumstantial evidence adduced pointed at the guilty of the Accused persons who possessed malice aforethought. That evidence adduced showed that the Deceased had injuries inconsistent with drowning. That the behavior of the Accused after they got the information of the Deceased’s demise did not show innocence on their part as they did not condole with the family of the Deceased and they failed to help the police and family to know the last known moments of the Deceased.

22. I have considered rival submissions of the Defence and State.

23. Issues to be determined are:

Whether death occurred.

Whether the Accused persons committed the unlawful act which caused the death of the Deceased.

Whether the Accused persons had malice aforethought.

24. The body of the deceased was found at the banks of River Mugoo. A postmortem was conducted on the body by PW11 who confirmed the fact of death.

25. None of the witnesses who testified witnessed the act that resulted into the demise of the deceased. Therefore evidence adduced by the prosecution against the Accused persons is circumstantial in nature.

26. The principles of relying on circumstantial evidence has been enunciated in various judicial authorities. In the case of Sawe –vs. Republic (2003) KLR 364 the court of Appeal rendered itself thus:

“1. In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.

1. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.

2. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.

3. ……

4. ….

5. ….

6. Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt’’.

27. In the case of Teper VS. Republic (1952) AC 489 the court stated that;

‘’circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no co-existing circumstances which could weaken or destroy the inference”

28. It is admitted that the last persons who saw the deceased while alive were the Accused persons herein. PW1 saw the deceased in company of the 4th Accused. Ultimately they ended up at the home of the 1st and 2nd Accused. Both the prosecution witnesses and the Accused persons agree that on the fateful night there was a heavy downpour. Some prosecution witnesses stated that indeed it rained throughout the night. The accused persons on their part stated that the rain subsided at 9. 00 pm that is when the deceased insisted on leaving. According to them the deceased left on the fateful night and having been found on the bank of the seasonal River meant that he drowned as he attempted to cross the river in order to go to his home.

29. The prosecution on the other hand sought to establish that the Accused persons who were with the deceased must have done an unlawful act or omission that resulted into his death. A panga the deceased was in possession of as he left his home was found at the home of the 1st Accused which they readily agreed that the deceased had it but they (1st and 2nd Accused) prevailed upon him to leave it as it was not condusive for him to move around with it. The panga was handed over to the investigation officer by a chief who was not treated as a witness, therefore circumstances in which it was handed over remain unexplained.

30. The prosecution adduced in evidence a Muslim hat that PW3 said belonged to the deceased while the 1st and 2nd accused stated that it belonged to one of their sons who was found wearing it. The individual who was found in possession of the hat was neither treated as a witness or an accused in the matter. PW3 stated that she stitched a patch on it but did not allege that the deceased had it on the fateful evening. Without evidence of the person who was in possession of it the court is left in doubt as to what the individual would have stated regarding the hat.

31. It has been argued that the body of the deceased had injuries that were inconsistent with drowning. Indeed the repeat postmortem conducted on the body of the deceased established the presence of bruises on the head and massive hematoma on the back and the right side posteriorly. The Doctor was of the view that the multiple injuries were caused by blunt trauma and drowning could not be ruled out.

32. This was a repeat autopsy. PW11 stated that the family of the deceased disputed the initial report. The initial postmortem report was not adduced in evidence.

33. The obligation to adduce sufficient evidence to prove the case herein lay on the prosecution. Section 107 of the Evidence Act provides that;

“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.……’’

34. This is a case where the prosecution was duty bound to prove the initial findings of the Doctor who performed the postmortem. PW11 had no opportunity of seeing the initial postmortem report. On cross examination he stated that initially the deceased’s case was reported as of drowning then later on it was indicated as a case of assault. PW8 who took over the case in 2009 does not seem to have been privy to what actually transpired regarding the postmortem that was conducted. Therefore there is no explanation as to what happen and the findings that had to be concealed from the court.

35. Blunt trauma may be caused by an object hitting or striking but drowning was not ruled out, therefore it was important for the prosecution to produce evidence of the results from postmortem that was conducted. Without such evidence, it can only be suspected that the accused herein did the act or omission that caused the death of the deceased. The suspicion may be strong as the Accused persons were the last persons to be seen with the deceased but this was mere suspicion which cannot prove the case against the Accused persons.

36. The possibility of drowning in the swollen river that the deceased was required to cross prior to reaching his home is a circumstance that weakens the chain of circumstances that were relied on by the prosecution.

37. In the circumstances the prosecution has failed to prove the case against the accused beyond any reasonable doubt. In the result, the Accused persons stand acquitted of the offence of murder.

38. It is so ordered.

Dated, Signed and Deliveredat Kitui this 3rd day of October,2018.

L. N. MUTENDE

JUDGE