[2022] KEHC 433 (KLR)

Murui v Republic (Criminal Case E021 of 2021) [2022] KEHC 433 (KLR) (17 March 2022) (Ruling)

Neutral citation: [2022] KEHC 433 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case E021 of 2021

LW Gitari, J

March 17, 2022

Between

John Gitonga Murui Alias Kayoka

Applicant

and

Republic

Respondent

Ruling

1. The accused person is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on 28th September 2020, at Karunduni village, Thiiti location in Tharaka North sub-county within Tharaka-Nithi County, the accused person murdered Bernard Kimathi.

2. He pleaded not guilty and the trial commenced. The prosecution called one AK as its PW2. She gave a sworn testimony that she was married to the accused and lived together for 10(ten) years before they separated. It was also her testimony that she knew the deceased as he became her boyfriend after she separated with the accused. PW2 was then stood down to allow this court to determine whether the said AK should be allowed to testify against her husband.

3. Ms. Maari, the State Counsel and Ms. Kijaru, counsel for the accused person, made their respective submission on the issue.

4. It was submitted for the DPP that the subject incident took place at night in an isolated house that the deceased and PW2 had fled to on suspecting that they could be attacked. The State Counsel further submitted that the deceased had been attacked before the present incident and had been admitted in hospital. She further explained that she called PW2 as a prosecution witness as PW2 had voluntarily come to court to testify.

5. On the other side, Ms. Kijaru conceded that the accused and PW2 had separated for ten (10) years. She submitted that there will be issues which may arise as the wife of the deceased is a witness and there are other witnesses who will be asked questions.

6. In response, Ms. Maari maintained that PW2 had also been assaulted by the accused and was therefore not at peace. She stated that PW2 had not been forced to testify and was intending to willingly give her testimony.

Issue for determination 7. The only issue to be determined in this ruling is whether PW2 is a competent and compellable witness to testify for the prosecution given that she was the wife of the accused.

Analysis 8. The relevant provision here is Section 127 of the Evidence Act. It makes provisions for competency of parties and spouses. The most applicable provisions in this case is Section 127(3)(c) & (4) of the Evidence Act which state as follows:“In criminal proceedings the wife or husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of such person, in any case where such person is charged –(c)In respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them, and not otherwise.” (emphasis added).

9. The provisions of Section 127(4) of the Evidence Act state that:-“Under this Section “husband” and “wife” mean respectively the husband and wife of a marriage, whether or not monogamous, which is by law binding during the lifetime of both parties unless dissolved according to law, and includes a marriage under native or tribal custom.”

10. As noted in evidence for Magistrates, (1969) by Philip P. Durand (KIA) at page 105, the husband –wife exception is founded on the marriage relationship:“Owing to the nature of the marriage relationship, a group of special rule of evidence have endured where one spouse is accused of an offence and the other is a potential witness, either for the prosecution or the defence. These rules involve both competency and compellability as well as the privilege relatively to the non-disclosure of communication during marriage. The relevant section is Section 127 Kenya Evidence Act”.

11. The privilege of a spouse not to testify against a spouse can only stand when there is proof of a marriage relationship. The marriage must be subsistent at the time of the alleged offence to which the spouse seeks to give her testimony. In this case, PW2 testified that she was married to the accused. She however did not disclose when and under what system the marriage came to be or how long their marriage subsisted. In my view, since there is no evidence of marriage between PW2 and the accused under any law or a tribal custom, the doubts abound as to whether there was a marriage as envisaged under Section 127 of the Evidence Act. A come we stay relation as is commonly known is not recognized under Section 127 which supposes a binding marriage.

12. As it is, while there is no evidence of dissolution of the marriage between the accused and PW2, both the prosecution counsel and the counsel for the accused submitted that the two had been married but have been separated for about 10 (ten) years and PW2 had moved on into another relationship with the deceased. In my view, 10 years apart is indeed a long time and is indicative that the parties had decided to go their separate ways and that the marriage had broken irretrievably.

13. Section 66(6)(d) of the Marriage Act No. 4 of 2014 provides the time qualification of an irretrievably broken-down marriage by stating as follows:“(6)a marriage has irretrievably broken down if –(d)the spouses have been separated for at least two years, whether voluntary or by decree of the court, where it has”.

14. Guided by the foregoing provision, I opine that the marriage between the accused and PW2 was not subsistent at the time of the alleged offence to which PW2 seeks to give her testimony.

Conclusion 15. The upshot of the foregoing, in my opinion, is that the application by the State to call Alice Kagendo as its PW2 is merited as she is a competent and compellable witness in line with the provisions of Section 127 of the Evidence Act. I therefore opine that she should be allowed to testify against the accused person herein on behalf of the State.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 17THDAY OF MARCH 2022. L.W. GITARIJUDGE