[2022] KEHC 3265 (KLR)

Mwita v Republic (Criminal Case 10 of 2020) [2022] KEHC 3265 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3265 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case 10 of 2020

RPV Wendoh, J

May 19, 2022

Between

Francis Matiko Mwita

Accused

and

Republic

Republic

Judgment

1. By the information dated September 2, 2020, the accused Francis Matiko Mwita was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the charge are that on 4/6/2020 at Kobinto Trading Centre, Kuria West, Sub County in Migori County, murdered Thomas Marwa Mang’o.

3. The accused denied the charge and the case proceeded to full trial with the prosecution calling a total of seven (7) witnesses in support of their case. The prosecution case is as follows.

4. PW1 Rose Boke Marwa a resident of Kobinto, sells chang’aa at her house and on 4/6/2020, about 4:00 p.m she was selling chang’aa when the deceased arrived at the said home. The accused also arrived there. Also present were Rioba and Nyamohanga that accused asked deceased how he had preceded him and that the deceased asked if accused could bar him from going wherever he wished; that the accused then alleged that the deceased was in the habit of abusing him whenever he was drunk even Infront of his children yet the accused had bought land from the deceased; that a disagreement ensued and Richard Nyamohanga intervened; that the deceased finished his alcohol and left; that accused also left after about 2 – 3 minutes; that accused had come riding on a motor cycle. PW1 further stated that on 5/6/2020 about 8:00 p.m., she learnt that Thomas Marwa (the deceased) had been killed and she was later summoned by the police to record her statement.

5. PW2 Lucas Muniko Mang’u a younger brother to the deceased said that he knew the accused as he had bought land from his uncle and was his neighbour with a fence separating them. PW2 recalled that on 4/6/2020 about 8:00 p.m , he received a call from a brother of the accused, Chacha Gesabo informing him that his brother had been killed at Kobinto Centre one Beatrice Rioba also went to inform him that the Assistant Chief had called to inform that his brother had been killed. Together with his brother Joseph Mong’ora they went to Kobinto on a motor cycle; that he met the accused riding his motor cycle in the opposite direction. He found the deceased in a trench and a lot of blood had spilled at the site. Using a torch, he noticed that the deceased had an injury near the right ear. He informed the Chief, Sammy who in turn called the police. At the scene, they also found a bucket with avocadoes which the deceased used to harvest and sell. The body was removed to the mortuary. Later he got information that Francis Matiko killed the brother because the deceased used to abuse his children. He later learned that things were being moved from the accused’s’ shop to Daniel Marwa’s house and he went to the said house and confirmed it and that is when he called the police. He denied that anybody claimed to have seen who killed the deceased.

6. Daniel Mwita (PW3) recalled that on 4/6/2020, at about 6:00p.m he was at Kobinto Centre and went to take chang’aa at the home of Rose Boke (PW1) where he found Francis Rioba, Mwita Chacha and other people he did not know. He saw accused, and deceased there and Accused and deceased quarreled, with accused abusing the other over land and that Accused told deceased that he would leave the land by force; that accused had an axe at the time and deceased had a bag full of avocadoes. He later left and so did accused and deceased but he could not tell who left first. On his way he heard a voice of a person talking. He could not tell whose voice it was but it sounded like the deceased. A motor cycle came and stopped where the person who talked was and, then it came and passed him but the person did not have any passenger; that the cyclist came back again and stopped where deceased’s body was. He went home and after about 30 minutes, he heard noises and heard people say that a person had died. He went to the scene and found the deceased lying in a ditch and had an injury to the head near the right ear. He used a torch to see the scene and that by then there were many people at the scene.

7. PW4 Marwa Thomas Nyamohanga recalled that on 4/6/2020, he went to meet a land broker at Kobinto and was called by his friend Joseph Wangwe. He was also looking for Thomas Nyamohanga Mwita whom he found at Rose’s (PW1) place where she was selling chang’aa. He denied seeing accused and deceased at PW1’s home. He talked to the person he wanted to and went back to the bar in town where he stayed till 8:30 p.m. On his way home, while aboard a motor cycle, he found people along the road looking at a trench. He stopped and ongoing to find out what was wrong, found the deceased had been killed and the body was in the trench. Police came for the body which had an injury to the neck.

8. PW5 Dr. David Kemboi of Migori County Referral Hospital performed post mortem on the body of Thomas Marwa on 7/6/2020. He found a star shaped wound that penetrated the skull, posterior to the left ear, that penetrated deep upto the brain. He formed the opinion that the cause of death was head injury secondary to being hit by a blunt object which was round and sharp.

9. CPL James Olago (PW6) of DCI Migori received four (4) coloured enlargement photograph is prints from PC Jackson Kyalo for certification; that the photos were of a scene of course, the deceased’s body and injuries sustained. He certified the photographs and produced them in evidence as EX 2 (A -D).

10. PW7 PC Jackson Kyalo of DCI Kuria West was the investigating officer in this matter. He visited the scene with other police officers on the same night, found people at the scene and interrogated them and confirmed the deceased’s identity to be Thomas Marwa Mang’o. He recorded witness statements which mentioned quarrel between Accused and deceased. He then arrested Accused on 2/9/2020 who was found to be fit to stand trial.

11. After the close of the prosecution case, the accused was called upon to defend himself. He made an unsworn statement and called three other witnesses. He told the court that he works as a mason and on 4/6/2020, he worked till 5:00 p.m in company of Daudi Sobe, Mangare Waisiku, Chacha Sanaona and Turuka. He paid the workers at Gareke and bought them for a cup of tea in a hotel and since it was curfew time, they left at 7:00p.m and he took a motor cycle till his home where he ate and later slept. He went to work next day when at about 5:00p.m he was informed on phone that people had surrounded his house and wanted to burn it, because he was connected to the murder. He did not go back home but went to his sister’s home. He learnt that his house had been burnt. His brother told him to report to the police station which he did and he was asked to be reporting to the DCIO till he was charged in September. He said that all the people who had bought land where he had bought land have been removed and that he was hated because he had built a permanent house.

12. DW2 Tobias Turuka Chacha testified that on 4/6/2020 he was marking with the accused till evening with Chacha Sarawa, Waisiku Mangare now deceased and Mwita Subi; that accused paid him at Gareke and bought them tea and they parted at 7:00p.m. He denied that accused takes alcohol.

13. DW3 Chacha Sanawa Mwita also testified that he was with the Accused at work on 4/6/2020 from 8:00a.m till 5:00p.m together with Mwita Subi, Waisuku Mongare (deceased) and DW2 (Turuka). That accused paid them at Gareke, they had tea and parted at 7:00p.m and accused left to get a motor cycle to take him home.

14. DW4 Esther Robi Matiko is the wife of the accused. She testified that on 4/6/2020, her husband left home for work at 7:00a.m and returned about 7:30p.m, ate and slept. He went to work next day with his tools and that he returned at 7:30p.m., and next day left. She denied that he drinks alcohol. she recalled on 5th when they heard screams and on going out found a big crowd who entered the compound, started to hit the house alleging that accused had killed their kin. They also looted from the house and set it a blaze. DW4 stated that on June 4, 2020, her husband came home at 7:30p.m and she had looked at the clock because it was curfew days. She admitted that accused owned a motor cycle.

15. Mr. Singei filed submissions on behalf of the accused in which he argued that the prosecution evidence was not sufficient to support a conviction; that no one witnessed the attack on the deceased; that the accused never threatened the deceased in the hearing of the prosecution witnesses; that there was no direct evidence linking the accused to the offence; that the deceased was a drunk and it cannot be ruled that he slipped, fell and injured himself; that the court cannot rely on the testimony of PW3 who was dunk.

16. Mr. Singei argued that the prosecution relies on circumstantial evidence and that the burden of proof remains on the prosecution to prove the guilt of the accused; that the charge has to be proved beyond reasonable doubt as per the test set in Woolmington vs. DPP 1935 AC 462. As to whether the court can base a conviction on circumstantial evidence, the counsel relied on the decision of Ahamad Abolfathi Mohammed andanother vs. Republic (2018)eKLR andSawe vs. Republic (2003) eKLR.

17. Counsel further argued that the accused raised an alibi defence but the accused does not assume the burden of proving the truth of the alibi as held in Ssentale vs. Uganda (1968) EA 36. He urged the court to find that the circumstantial evidence was not sufficient to base a conviction.

18. Mr. Kimanthi, the prosecution counsel filed his final submissions on 24/2/2022. He submitted that PW3 saw the accused who had a motor cycle hit the deceased; that PW3 was able to see the scene using light from accused’s motor cycle; that the accused and deceased had just been with PW3 at PW1’s house taking chang’aa; that PW2 also confirmed that the land issue had risen at the drinking place. Counsel further submitted that the Doctor found the cause of injury to be blunt objector and inflicting an injury to the head was evidence of malice afterthought as it was strategic and intended to cause grievous harm.

19. As to the alibi defence counsel urged that it was an afterthought and that PW1 confirmed that the accused was at her home on the said date and that he did not disclose at the earliest opportunity his intention to rely on alibi defence. Counsel relied on the case of Athuman Salim Athuman vs. Republic CRA (Mombasa) 44 of 2015and Karanja vs. RepublicCourt of Appeal Kisumu No. 65 of 1983. He urged the court to convict the accused.

20. I have now considered all the evidence on record and the rival submissions. To find a conviction under Section 203 of the Penal Code the prosecution has the duty to prove beyond reasonable doubt.1. Proof of the death;2. Proof that the accused caused the unlawful act or omission that led to the death;3. Proof that the accused possessed malice aforethought.

21. As respects the death of the deceased, there is no dispute that he died. PW2, PW3, PW4 and PW7 saw the deceased’s body while still at the scene. PW5 conducted the post mortem on the body after it was identified by PW2 deceased brother as that of Thomas Marwa Mang’o. PW5 found that the deceased had sustained a star shaped wound that penetrated the skull and into the brain. He concluded that the cause of death was injury to the head secondary to being hit by blunt object.

Whether Accused inflicted the injury that caused the death. 22. Both PW1 and PW3 were categorical that the accused and deceased were taking chang’aa at PW1’s home on the evening of PW1. PW1 knew both Accused and deceased as her clients and that they lived in the neighbourhood. PW3 confirmed that he was present and did see the two. Their testimonies as to the presence of the Accused and deceased at PW1’s home was not dislodged. PW1 and PW3 told the court that the accused and deceased quarreled with the accused accusing the deceased of abusing him and his children whenever he was drunk. The incident at PW1’s home allegedly occurred during the day about 6:00p.m. There was no issue of mistaken identity. The accused totally denied having been present at the said drinking den and raised an alibi defence.

23. The law is settled as respects an alibi defence. When an accused raises ab alibi in his defence, the burden to prove the truth of the alibi does not shift to the accused but the burden always remains on the prosecution to prove their case beyond reasonable doubt.In Ssentalle vs. Uganda (1968) EA 36 the Sir Udo Udona CJ said :-“A prisoner who puts forward an alibi as an answer to a charge does not thereby assume any burden of proving that answer. It is a misdirection to refer any burden as resting on the prisoner in such a case; for the burden of proving his guilt remains throughout on the prosecution”.

24. The above view remains the law in Kenya today. See Karanja vs. RepublicCRA 65 of 1983 (Kisumu). In Victor Mwendwa Mulinge vs. Republic . The court of Appeal of Kenya held as follows:“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs Republic, this court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilty is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought”

25. The Court of Appeal was of the same view in Athuman Salim Athuman CRA 44 of 2015 (Mombasa). The sum of these two decisions is that the alibi defence should be disclosed at the earliest opportunity so that the prosecution can have the same tested by those involved in investigation.

26. In this case, the prosecution called a total of seven (7) witness. It is after the accused was placed on his defence that counsel told the court that the accused will be raising an alibi defence but he did not disclose the nature of the alibi until he testified and his witness testified on the same day.

27. In my view, the alibi defence was an afterthought. This court has no reason to doubt PW1 and PW3’s evidence that the accused was present at PW1’s home on the fateful night and that he had a quarrel with the deceased. DW2 and DW3 claimed to have parted with the accused at 7:00p.m. but have no idea where he went or what he did after that. Besides, there is no evidence that each of them was keenly looking at his watch or phone to know the exact time that they parted if at all.

28. Nobody actually saw the accused attack and assault the deceased. the prosecution relies on circumstantial evidence. Circumstantial evidence is said to be the best evidence. This is what the court stated in Neema Mwandoro Ndunya vs. Republic CRA 466 of 2007 where the court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan(1928) 21 CRC 20 the court said:-“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics”.

29. Circumstantial evidence, though the best evidence, must be taken with utmost caution where the court relies on it entirely. In Teper vs. R (1952) AC at page 489 the Court said as follows:-“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 coexisting circumstances which could weaken or destroy the inference.”

30. For the court to rely on circumstantial evidence to found a conviction, the evidence must satisfy several conditions which have been articulated in several decisions. In Ahamad Abolfathi Mohammed andanother (supra) the court stated as follows:“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Accused person, and to no other person, as the perpetrator of the offence. In Abang’a alias Onyango v. R CR. App. No 32 of 1990, this court set out:-“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 the guilt of the Accused; (iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within al human probability the crime was committed by the Accused and none else.”

31. In Sawe v. Republic (2003) eKLR the court reiterated the above stated conditions and added that the prosecution must also establish that there are no other coexisting circumstances, which could Weaken or destroy the inference of guilt.

32. Coming back to the evidence tendered before this court, it is only the testimony of PW3 that tended to place the accused at the scene of crime. The offence occurred at night. PW3 did told the court that he left PW1’s home about 8:00p.m. Evidence of a single identifying witness under unfavourable conditions has to be taken with a lot of caution to avoid mistakes in identity. In the case of Abdalla Bin Wendoh vs. Republic 20 EACA 166, the East Africa Court of Appeal stated as follows:“Subject to certain well known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respectively identification especially when it is known that the conditions for owing a correct identification were difficult. In such circumstances what is needed is other evidences, whether it be circumstantial or direct, pointing to the guilty, from which a judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness, can safely be accepted as free from possibility of error.”

33. In Wamunga vs. Republic (1989) KLR 424, the Court of Appeal states that:-“It is trite law that a fact can be proved by the evidence of a single witness although there is need to test with the greatest care the identification evidence of such a witness especially when it is shown that conditions favouring identification were difficult. Further, the Court has to bear in mind that it is possible for a witness to be honest but to be mistaken.In Roria vs. Republic (1967) EA 583“A conviction resting entirely on identity invariably causes a degree of uneasiness… That danger is, of course, greater when the only evidence against an accused person is identification by one witness and though no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification”.

34. All the, above case draw guidance from the case of R vs. Turnbull (1971)QB 277 that provides useful guidelines in so far as identification is concerned. The court said“... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?.... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

35. PW3 stated that the accused and deceased left PW1’s house one after the other and that he too left. He then added that he left before two. If indeed PW3 left PW1’s house before accused and deceased, then he could not have been in a position to tell who between Accused and deceased left before the other.

36. PW3 then went on to state that while on his way, he heard a person who sounded like a drunkard talking behind him but he could not tell whose voice it was. He later claimed to have recognized the voice as that of deceased. He did not say what words the person uttered. He then heard a motor cycle come and it stopped at the place where the person was; then he heard a thud and the cyclist passed him and he recognized the rider as the accused. He said that he identified Accused from the head. Although PW3 said he had a torch on the phone, he did not tell the court from what distance he saw the accused and which side of the face he saw.

37. PW3 went on to say that the accused passed him and came back again and went where the deceased lay and that it then he went to the direction of Accused’s home. The accused denied owing a motor cycle. However, his wife DW3, told the court that he owns a motor cycle. In this case however, apart from PW3 telling the court that the motor cycle was red, he did not know the registration number of the motor cycle nor did the police recover the motor cycle from the accused. Even if accused owned a motor cycle, the court cannot confirm that it is the same one that PW3 saw on the said night of the murder.

38. Going back to the allegation that PW3 heard the deceased’s voice, the law on voice recognition was aptly captured in the Turnbull case(supra) and in Karani vs. Republic (1985) KLR 290 where the court said:-“Identification by voice nearly always amounts to identification by recognition. Yet here, as in any other case, care has to be taken to ensure that the voice was that of the appellant (accused); that the complainant was familiar with the voice and that he recognized it and that there were conditions in existence favouring safe identification”.

39. In this case, PW3 did not tell the court what words the deceased uttered that enabled him know that it is the accused whom he heard that it is him who was talking behind him. He did not even allude to the kind of noise that the deceased may have made for him recognition the voice as that of the deceased.

40. From the analysis of the circumstantial evidence available and the testimony of PW3, the court is left in doubt as to whether PW3 was able to identify and or recognize the accused as the assailant under the prevailing circumstances, on the road that night. All that this court is sure of is that accused and the deceased disagreed at a drinking den at PW1’s home and soon after, the deceased was found murdered. Accused is a prime suspect in the said murder. In fact, if he is the murderer, he calculated and timed the attack so well and ensured that the deceased was alone in a dark place before he made his leap. There is strong suspicion, against the Accused but as has been stated by courts, before, suspicion alone, however strong, cannot be a basis for a conviction. The prosecution has to prove its case against the accused beyond any reasonable doubt. I should conclude this judgment by citing the holding of the Court of Appeal in Erickson Chengoli Wanyonyi v Republic(2018) eKLR, where the court said:-“We find that there was 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..”(emphasis ours).

41. The end is that the prosecution has failed to prove its case against accused beyond reasonable doubt and the doubt is resolved in favour of the accused and he is hereby acquitted of the charge of murder under Section 322 (1) of the Criminal Procedure Code. He is set at liberty forthwith unless otherwise lawfully held.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 19TH DAY OF MAY, 2022R. WENDOHJUDGEDelivered in the presence of:Mr. Omooria for StatePresent AccusedMr. Singei for AccusedMs. Nyauke Court Assistant