[2017] KEHC 1762 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA, AT NAIROBI

CRIMINAL CASE NO. 86 OF 2017

REPUBLIC ………………………...….PROSECUTOR

VERSUS

ANDREW MIKUBO ……………....……1ST ACCUSED

PETER NYAKUNDI ONDICHO ………..2ND ACCUSED

JUDGMENT

1. Andrew Mikubo and Peter Nyakundi Ondicho hereinafter referred to as 1st accused and 2nd accused respectively stand charged with the offence of Murder contrary to Section 203 as read with Section 204 of the penal code. The particulars are that 1st accused and 2nd accused on the night of 9th August, 2013 at Uthiru in Dagoretti district within Nairobi County jointly murdered Josephat Obutu Okerosi.

2. They both pleaded not guilty and the case proceeded to full hearing. The case of the prosecution is premised on the evidence of nine witnesses. PW1 George Marenye Nguru a bar man at Gacha Tsunami Bar testified that on 9th August, 2013 9 pm he was on duty. While there, Mogaka (PW5) arrived with two boda boda riders. The boda boda riders who he identified as the 1st accused and A2 sat at a different table while PW5 sat with his friends Mujumbe and Josephatthe deceased. He said the 1st accused was popularly known as “Bob”.

3. PW5 brought hot drinks for the 1st accused and 2nd accused who also wanted soda but he refused to buy that for them. They were paid fare by PW5 and they left. After drinking for a while, PW11 called for a different motorbike rider to take PW5 home. The rider came but apparently PW5 did not have fare. Mujumbe and the deceased offered to bail PW5 out by paying the fare and the three (3) left the bar together.

4. PW1 thereafter heard screams from outside and he rushed to see what was happening. There was security light and he saw Mujumbe rushing back bleeding and screaming. He was being hit with a rungu (club) by the 2nd accused. The 1st accused stabbed the deceased when he went to assist Mujumbe. He saw a 3rd person on the motor bike waiting.

5. The deceased fell down after being stabbed. PW1 called the motorbike man who rushed Mujumbe and the deceased to hospital. Mujumbe was treated and discharged while the deceased was referred to Kikuyu Hospital. He was pronounced dead on arrival. The 1st accused was arrested by the police that same night. He told the court that the 1st accused and deceased had first disagreed over the soda issue.

6. He identified the knife (Exhibit 1) and rungu (Exhibit 2 (a) and (b)) which he had collected. In cross examination, he described 1st accused as wearing a black khaki trouser and a black jacket with yellow reflectors and a while marvin, when he arrived with PW5. He also explained that he saw the 2nd accused chasing Mujumbe as the 1st accused was hitting the deceased who was then bending over the wire mesh. He was stabbing him with a knife on the right back. He confirmed that he had not known the accused 2nd accused prior to this date.

7. PW2 Wilfred Mokaya was a boda boda rider in Uthiru town. On 9th August, 2013 at 11 pm he was called by PW1 and requested to go pick a customer at Tsunami Bar. The customer was PW5 whom he picked from the bar and they went out. While outside, PW5 started talking on phone. PW2 went back inside the bar and came out with Mujumbe one of those who had offered to pay fare on behalf of PW5.

8. While outside, he saw a motorbike with 3 people who alighted and came near him. He didn’t know their names but he recognized them as the 1st accused and 2nd accused. He heard 1st accused telling Mujumbe “sasa leta ile mdomo ulikuwa nayo”. The two started quarrelling. PW2 moved his motorbike aside, and heard the older of the three (3) people shout to the rest saying “wee maliza mtu twende”.

9. He then saw the 1st accused stabbing the deceased, while the 2nd accused was holding a rungu he was hitting. There was security light which enabled him to see what was happening

PW1 rushed out and they took the deceased to Jamii Hospital and then to Kikuyu Hospital. The deceased died as a result of the injuries suffered.

10. In cross examination, he said 1st accused was wearing a yellow reflector with nothing on the head. On being shown his statement to the police, he admitted that it did not show that 1st accused stabbed the deceased. He further stated that the deceased was stabbed in the process of separating 1st accused, 2nd accused and Mujumbe.

11. PW3 Ondimu Lameck was at Tsunami Bar on 9th August, 2013 9. 30 pm when PW5 arrived with 1st accused and 2nd accused who are boda boda riders. He stated that PW5 ordered for them ¼ meakin while they ordered for soda. An argument arose when 1st accused and 2nd accused expected PW5 to pay for the soda for them, and he refused. 1st accused paid for it.

12. Pw1 called for a boda boda rider who came for PW5. Mujumbe offered to pay the fare and he walked out, and was followed by the deceased. He saw Mujumbe rushing back. Pw1 and Pw3 also rushed out. While outside, he saw the deceased lying on the side while 1st accused and 2nd accused got onto a waiting motorbike and left. The deceased was then rushed to hospital. He confirmed being present when 1st accused was arrested.

13. In cross examination, he said there was light inside the bar and from the next bar. He confirmed that Mujumbe was injured on the head though he did not witness the deceased or Mujumbe being assaulted.

14. PW4 Dr. Joseph Kagunda Kimani a government Analyst with 17 years’ experience testified that on 14th August, 2013 the office received a knife and a blood sample of the deceased. On examination, he found the knife to be moderately stained with blood of human origin. He generated DNA profiles for the blood stains on the knife and the one from the blood sample. He stated that the stains and the blood sample matched. He produced his report as Exhibit 3 and the Exhibit Memo Form as Exhibit 4. He confirmed that the knife had been very well preserved.

15. PW5 Hosborne Kimani Nyang’au a businessman used to stay in Uthiru. He testified that on 9th August, 2013 he left town for Kangemi. At Kangemi he took a boda boda and left for Uthiru, Tsunami Bar. He knew the motorbike rider as Bob who he identified as 1st accused. Four of them left Kangemi i.e. 1st accused, himself, Mathenge and 1st accused’s friend. Mathenge alighted on the way. He identified 1st accused’s friend as 2nd accused. At the bar, he met his friend Mujumbe who was with his friend, the deceased.

16. While at the bar, he asked PW1 to give 1st accused shs.100/= which he did. He bought 1st accused and 2nd accused who sat at a different table an alcoholic drink. 1st accused asked Mujumbe and the deceased to buy them soda, but they were put off by the two. They left after taking their drinks.

At 10. 45 pm PW1 called for a motorbike for him and it came. He was seen off by Mujumbe and his friend. When they left, Mujumbe was leading followed by his friend (deceased) and then PW5.

17. He testified that when Mujumbe opened the door he was immediately hit on the head and he started screaming. He heard somebody ask “where is Mogaka?”. Mujumbe’s friend (now the deceased), went outside to assist Mujumbe. Pw5 also went outside, and he saw 1st accused with a rungu while 2nd had a knife. He saw 1st accused and 2nd accused attack the deceased, but it was 2nd accused who stabbed the deceased.

18. He testified that when all this was happening, the motor bike rider remained on the bike. After stabbing the deceased, 1st accused and 2nd accused jumped onto the bike and left. He confirmed that Mujumbe and the deceased were injured, and were rushed to the hospital. The deceased was bleeding from the back. He stated that there was sufficient light from electricity at the scene. It was his evidence that this attack took one hour after 1st accused and 2nd accused had left the bar the first time.

19. When they learnt of the deceased’s death, they reported the matter to Kabete police station and together with police officers, they went to look for 1st accused and 2nd accused and the latter was arrested the same night. He suspected two things to have caused this fracas, namely;

i. Refusal by them to buy 1st accused and 2nd accused soda.

ii. Getting another rider to take them back, home

20. In cross examination, he said Mujumbe, deceased and himself were taking alcohol. That A1 wore a black trouser and had no marvin. He added that their rider came 15 minutes after 1st accused and 2nd accused had left. Further, that PW1 came to the scene after them. He admitted telling the police that 1st accused knocked the deceased with a rungu.

21. PW6 No. 51178 PC Bosco Mutua Mukoma testified that on 10th August, 2013 at 1. 58 hours he was called back to the station to attend to a murder report. They found PW5 who gave them the report. They proceeded to 1st accused’s house and arrested him and took him to the station.

22. PW7 No. 236178 IP Josephat Okello was stationed at Dagoretti and he is the investigating officer herein. On 10th August, 2013 he was instructed to take over the investigation of this case. PW1 gave him a knife and rungu which he had collected the next morning after the incident. There was a suspect in the cells. He then proceeded to the scene with scenes of crime personnel and PW1. He drew a sketch plan of the scene of murder (Exhibit 7). A post mortem was conducted and two days later a second suspect (2nd accused) was brought by the deceased’s relative. He was then re-arrested.

23. After reviewing the evidence, he charged both accused with this offence. He took them for mental assessment by the doctor. The reports confirmed that they were mentally fit to stand trial (Exhibit 5 and 6).

He received a blood stained knife and a broken rungu from PW1 and he produced them as Exhibit 1, 2a and 2b. He forwarded the knife and the deceased’s blood sample to the Government Analyst for examination. He charged 1st accused and 2nd accused with Murder because they had been seen injuring the deceased.

24. In cross examination, he said he visited the scene and even entered Tsunami Bar. From the counter to the door is 5 – 10 meters. That it is possible to see the outside from the counter since the windows are made of wire mesh. He said he visited the scene at 11 am and the lights were not on and he did not try to switch them on. He said he could not carry out ID parades as it was not necessary.

25. PW8 No. 83321 PC Joseph Gatecha is a scenes of crimes officer appointed vide Gazette Notice No. 217 of 28th December, 2012. On 14th August, 2013 9. 00 am he took photos of the body of the deceased herein at Chiromo Mortuary. He also took photos of the kitchen knife with blood stains and a stick and the scene. The photos were produced as Exhibit 8 (i) – (vxiii) together with the report Exhibit 9. In cross examination, he said he did not see any bulb or fluorescent bulb on the verandah exiting the bar.

26. PW9 Dr. Peter Ndegwa a pathologist attached to Kenyatta National Hospital carried out a post mortem on the deceased’s body on 14th August, 2013. His findings were as follows;

An incisive wound on the right occipital junction 4. 5.cm long.

Penetrating stab wound on right scapula area 20cm long.

Penetrating stab wound on left scapula area 2cm long.

Perforated left lung.

Left sided blood in cavity.

He found the cause of death to be hemorrhage due to a severe chest injury due to a penetrating stab wound.

27. Both accused persons were placed on their defence.

The 1st accused in his unsworn defence denied the charge. He stated that he is a boda boda rider and that on 9th August, 2013 8 pm he was at his place of work. He was with the 2nd accused a fellow rider. While there, a customer called Mogaka who has been identified as PW5 arrived with a male friend. They chatted and PW5 promised to buy them tea at a bar he was going to in Uthiru.

28. The four gentlemen then left for Uthiru on 1st accused’s motorbike. At the bar, PW5 asked him and 2nd accused to sit at one table and he ordered for them Meakin spirit which they took. He ordered for soda to take with the spirit. PW5 asked him to get shs.100/= transport from the counterman for transport. PW5 paid for the alcohol while he paid for the soda.

29. They then left for Kangemi leaving PW5 and others in the bar. He worked upto 9 pm when he closed his business and returned the motorbike to its owner and went to sleep. While in the house at 2. 00 am, police officers came and interrogated him in respect of the deceased’s death. He was arrested and taken to the police station.

30. 2nd accused gave an unsworn defence and denied the charges. He stated that him, 1st accused, PW5 and another left Kangemi on 1st accused’s motor bike. One passenger alighted on the way and left them with PW5 whom they took to Tsunami bar. PW5 bought them alcohol while A1 bought soda. When they were through with the drinks they left for Kangemi and he was dropped at the stage. He later went home after having supper.

31. The next day, he went to the stage and worked upto 4 pm and returned the motor bike to the owner at 5 pm, but remained at the stage upto 9 pm when he left. He returned the next day to the stage from where he was arrested by police officers at 2 pm and taken to the police station, and he found 1st accused in the cells. It is 1st accused who told him about the fight in Uthiru.

32. Mr. Farah for 1st accused and Mr. Saeni for 2nd accused submitted that the two main ingredients for the offence of murder had not been proved. They raised an issue on conditions for a favourable identification or recognition. Mr. Saeni asked the court to look at the surroundings at the scene and determine whether they were conducive for a positive identification. He said the events had been triggered by the purchase of soda. They submitted that PW1, PW2, PW3 and PW5 gave contradictory evidence on the happenings. Further that, as a result of these contradictions, it was not clear as to who stabbed the deceased.

33. Mr. Saeni pointed out these contradictions in the evidence of the witnesses e.g. what PW2 and PW5 said about the rider who had been called. He submitted that the witnesses may have been too drunk to witness anything.

34. In defining malice, counsel relied on the case ofJoseph Kimani Njau –vs- RepublicCr. Appeal No. 375 of 2011which affirmed the decision in Isaak Kimathi Kanu Achoki –vs- Republic Criminal Appeal No. 96 of 2007 (Nyeri, UR)where the court held;

“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused person killed in furtherance of a felony (for example, rape, or robbery) or when resisting or preventing lawful arrest, even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought…”

35. Mr. Saeni submitted that it was never explained how 2nd accused had been arrested and no identification parade was conducted in respect of him.

Mr. Farah raised issue with the prosecution’s failure to call Mujumbe as a witness. On identification, he referred to the case of Maitanyi –vs- Republic [1986] KLR 198 as referred to in the case of Republic –vs- Domoritia Lodir[2016] eKLR. The Court of Appeal held this;

“… Of course, if there was no light at all, identification would have been impossible. As the strength of the light improves to great brightness, so the chances of a true impression being received improve. That may sound too obvious to be said, but the strange fact is that many witnesses do not properly identify another person even in daylight. It is at least essential to ascertain the nature of the light available. What sort of light, its size, and its position relative to the suspect, are all important matters helping to test the evidence with the greatest care. It is not a careful test if none of these matters are known because they were not inquired into...”

36. M/s Mwaniki for the State submitted that the prosecution had proved its case as the accused in their defence had placed themselves at Tsunami bar where they went with PW5. She argued that there is no contradiction in the prosecution and defence case, as the prosecution has been truthful. That it had been shown that the accused fled after the incident. She therefore submitted that there was no doubt about the identification of the accused persons.

37. She stated that the accused had been seen stabbing the deceased as stated by the witnesses. She distinguished this case from the Kimani case where the culprit had kicked and boxed the deceased while in this case, the deceased had two (2) stab wounds inflicted by a knife and rungu.

38. This is now the case before court for determination.

39. 1st accused and 2nd accused are jointly charged with the offence of Murder which is defined under Section 203 of the Penal Code as follows;

“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”

40. From the above definition, it is clear that for a charge of murder to be proved, the following must be proved, namely;

i. The fact of death;

ii. The act of killing… the actus reus

iii. The intention to kill … malice aforethought/mens rea

i. The fact of death

41. PW1, PW2 and PW5 have confirmed being at the scene when the deceased was injured. They rushed him to hospital but he never made it. He died and a report was made.

PW9 a pathologist who carried out the post mortem on the deceased’s body found the body to have two stab wounds, with a perforated lung. In his opinion, the cause of death was hemorrhage due to a severe chest injury due to a penetrating stab wound (Exhibit 10).

I therefore find that the fact of death was proved.

ii. The act of killing – the actus reus

42. It is not disputed that 1st accused, 2nd accused, PW5 and another left Kangemi on 9th August, 2013 night while driven by A1 on his motorbike. The three (1st accused, 2nd accused and PW5) arrived safely at Tsunami Bar Uthiru within a short time. Mujumbe and the deceased who were already taking alcohol were joined by PW5. The three continued drinking.

43. In the meantime, PW5 bought some alcohol for 1st and 2nd accused besides paying the former shs.100/= for fare. The accused had wanted PW5 to also buy them soda to take with the alcohol, a thing that did not go down well with Mujumbe, the deceased and PW5. 1st accused eventually paid for the soda and the two left after finishing the drink.

44. The drinking went on until the time when the barman (PW1) wanted to lock up the place. PW5 informed the barman (PW1) of his intentions to leave and the latter called for him a motorbike rider who came and testified as PW2. The incident occurred after PW2’s arrival.

45. According to PW1, after PW5, Mujumbe, deceased and the motorbike rider left, he heard screams from outside and rushed to see what was happening. He said there was security light and he was able to see;

i. Mujumbe rushing, bleeding and screaming while being beaten by 2nd accused with a rungu.

ii. 1st accused stab the deceased who had rushed to defend Mujumbe.

46. PW2 who is the rider that had been called by PW1 to pick PW5, explained that;

i. He went inside the bar and came out with PW5.

ii. As PW5 was talking on phone, he went back to the bar and came out with Mujumbe.

iii. Outside, he found a motorbike with 3 people. They alighted and came near him and he recognized them though he did not know their names. That 1st accused started quarreling with Mujumbe and he saw the former stab the deceased, while 2nd accused held a rungu which he was hitting.

47. PW3 was also in the bar. He confirmed that after PW2 who was to take PW5 came, Mujumbe was the first to walk out. The deceased walked out shortly thereafter. He rushed out with PW1 when Mujumbe rushed back to the bar. He found the deceased lying on the side. Thereafter, he saw 1st accused and 2nd accused getting onto a motorbike and leave, driven by a 3rd person.

48. According to PW5, after the PW2 called by PW1 came, he was escorted outside by Mujumbe and the deceased with Mujumbe leading, followed by the deceased then PW5.

Mujumbe was hit on the head just as he opened the door. The deceased rushed out to assist Mujumbe. PW5 saw 1st accused who had a rungu while his friend (2nd accused) had a knife. Both of them attacked the deceased whom 2nd accused stabbed. After stabbing the deceased, both accused jumped on the bike whose rider was waiting.

49. This incident took place late in the night outside a bar where a number of the witnesses had been taking alcohol. I have noted a number of inconsistences in the evidence of these witnesses, namely;

i. PW1 and PW2 stated that the deceased was stabbed by 1st accused. On the other hand, PW5 stated that the deceased was stabbed by 2nd accused.

ii. PW1, PW3 and PW5 stated that PW5, Mujumbe and the deceased left the bar together but Mujumbe was in the lead. PW2 on the other hand said he went with PW5 outside and left him talking on phone as he returned to the bar. That in fact, it was him who came out with Mujumbe. This would then mean that when all this was taking place, PW5 was squarely outside and should have witnessed everything. The evidence of PW5 states otherwise.

iii. PW3’s testimony is that when Mujumbe came inside the bar rushing, the witness and George (PW1) rushed outside. What did they see?

a. PW3 said he found the deceased lying on the side. This means the deceased had already been injured.

b. On the other hand, PW1 stated that he saw Mujumbe being hit by 2nd accused with a rungu and he rushed, bleeding and screaming. He then again saw 1st accused stab the deceased.

Though they left the bar together, it is clear they saw different things.

PW2 is the rider who was called to pick PW5. According to his evidence, he witnessed the whole incident upto the stabbing of the deceased. When PW5 was cross examined on the issue of the motor rider (PW2), he states at page 105 (of typed proceedings) as follows;

“The motorbike which was there was the one 1st accused and 2nd accused came with. Our rider came 15 minutes after 1st accused and 2nd accused had left.”

Who then is this that testified as PW2 and who came 15 minutes later?

50. In view of the contradictions and inconsistences cited above, this court would wish to examine the conditions under which the witnesses identified the accused persons. It is clear from the evidence on record that this incident occurred late at night and outside the Tsunami Bar Uthiru. What comes into issue is not just the accused persons being at the scene but whether they did what they are alleged to have done. I will therefore move to examine what the conditions for identification were in light of the defence raised. Both accused have denied returning to the scene after dropping PW5 on that night.

51. In the case of Wamunga –vs- Republic [1989] KLR 424 the Court stated this on identification;

“1. Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”

2. Recognition may be more reliable than identification of a stranger but mistakes in recognition of close relatives and friends are sometimes made.

5. The identification evidence upon which the appellant’s conviction on counts 1 and 2 was based had not been shown to have been free from the possibility of error. There was therefore no evidence upon which that conviction could be supervised.”

52. Further in Osiwa –vs- Republic [1989] KLR 469, the Court held thus:

“1. Where the only evidence against an accused is, as here, evidence of identification or recognition, a trial court must examine such evidence carefully to be satisfied that the circumstances of the identification are favourable and free from possibility of error before it can safely make it the basis of a conviction.”

The Court of Appeal in Wanjohi & 2 Others –vs- Republic [1989] KLR 415 held thus;

“1. Recognition is stronger than identification but an honest recognition may yet may be mistaken.

2. The vital question upon which there is special need for caution is the correctness of identification.

3. The High Court had erred. It is not that a reference to mistaken identification is desirable, it is the vital question which has to be answered beyond reasonable doubt, namely, was the appellant recognized beyond reasonable doubt? Whether the error caused failure of justice is the next step.

4. There is no doubt that star light per se affords no scientific means of illuminating at all sufficient for observing the features or shape of a person to such a degree that proof can be had beyond reasonable doubt.”

53. Finally, in the case of Mutiso –vs- Republic [1993] KLR 344 Mbogholi Msagha & Oguk JJ, held as follows;

“1. Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it a basis of a conviction.

2. In accepting the evidence of the complainant, the learned trial magistrate erred in failing to exclude altogether the possibility of mistake on his part. Mistakes often occur and a witness may be honest yet mistaken.”

54. PW1, PW2, PW3 and PW5 all mentioned the presence of white/yellow lighting at the Tsunami bar which enabled them identify the perpetrators of this offence.

PW7 is the investigating officer. He took a sketch plan of the scene (Exhibit 7) and surroundings. He told the court that there was a security light (florescent) on the verandah of Tsunami Bar. To him, there was sufficient light to light the place. He however confirmed through cross examination that he had nottested the lights on the date he visited the scene to assure himself that the lights were working. He also visited the scene during day time at 11 am.

55. PW8 is the Scenes of Crime officer who visited the scene on 14th August, 2013. He went to Tsunami bar but did not see any bulb/florescent on the verandah exiting the bar. He did not check whether the adjacent bar had any bulb or florescent lights. He confirmed that he visited the scene at 9 am and not at night as he was not asked to do so.

In the case of Maitanyi –vs- Republic [1986] KLR 198 already referred to at paragraph 35 of this Judgment, the Court of Appeal outlines the considerations to be made in respect of visual identification and lighting conditions.

56. The witnesses have alluded to there being light in the bar and the verandah of Tsunami Bar. Each gave his own description of the kind of light that they saw. There are those who said there was light from the bar, while others said, there was florescent or bulb light on the said verandah. The independent witnesses who should have confirmed this were PW7 and PW8 who are police officers and officially visited the scene. Both of them visited the scene during the day.

PW8 was clear that he could not tell if there was any such light on the verandah of Tsunami bar. He did not even switch on those lights that were in the bar itself.

57. PW7 who was the Investigation officer and who should have been more keen, went to the scene at 11 am. He then told the court how the place had sufficient light and was well lit during the night. It is not known how he came to that conclusion. He was so casual about this.

It was the submission of the defence that there wasn’t sufficient lighting at the scene for proper identification.

58. The witnesses PW1, PW2, PW3 and PW5 appeared to have known 1st accused prior to this incident. Police led by PW5 went to 1st accused house and arrested him the same night at around 2. 00 am. On the other hand, 2nd accused was unknown to these witnesses. They said they were seeing him for the first time that night. How then was he arrested?

PW7 the Investigating Officer testified that two days after the death, the deceased’s relative brought 2nd accused to the police station and he re-arrested him. The said relative’s identity was not given and neither was he or she a witness in this case.

59. In a case like this where the witnesses had not known a suspect prior to the incident complained of and the incident occurred at night, there was need for an identification parade to be conducted. Any identification not preceded by an identification parade amounts to dock identification which is the poorest form of identification. In the case of Murage –vs- Republic[2006] 1KLR 63 the court said this of dock identification:

2. “A dock identification is worthless without an earlier identification parade. In the circumstances, the conviction of the 1st appellant in the absence of any other evidence was unsafe.”

The identification of 2nd accused by the witnesses here in court amounts to dock identification.

60. There is a person called Mujumbe who was drinking with PW5 and the deceased in Tsunami bar on the fateful night. He has been mentioned by PW1, PW2 PW3 and PW5. According to the witnesses, Mujumbe was the first person to be assaulted by the attackers. They had a confrontation with him, according to PW1. PW5 on the other hand stated that Mujumbe was hit the moment he opened the bar door to go outside and he rushed back.

This was therefore a crucial witness for the prosecution.

61. This Court is alive to the fact that there is no legal requirement in law on the number of witnesses to prove a fact.

Section 143 of Evidence Act (Cap 80) Laws of Kenya, provide;

143. “No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

In the case of Keter –vs- Republic [2007] EA 135, the court held thus;

“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”

62. In the case of Bukenya & Others –vs- Uganda [1972] EA 549, it was held thus

ii. The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent;

iii. The court has the right and the duty, to call witnesses whose evidence appears essential to the just decision of the case;

From the above authorities, it is clear that there is no set number of witnesses to be called by the prosecution. However, key witnesses with essential evidence must testify to assist the Court arrive at a just determination. In the case before me, I find Mujumbe to be such an essential witness who should have been called to testify.

63. The witnesses PW2, PW3, PW5, Mujumbe and the deceased had been drinking spirits at Tsunami bar. It’s not clear for how long the drinking had been going on. It cannot be ruled out that they were drunk. This is confirmed by the numerous contradictions and inconsistencies by the witnesses outlined in the above analysis. It was not enough just to place the accused persons at the scene. The prosecution had a duty to prove the role each accused played in the fatal assault against the deceased.

64. The post mortem report shows that the deceased died as a result of severe chest injury due to a penetrating stab wound.

Who caused this injury? From the contradicting evidence of the prosecution witnesses, it is not clear who did it. Some witnesses say it’s the 1st accused while others say it is the 2nd accused. This has created a doubt in the mind of the Court, as to the guilt of the accused persons. The accused will benefit from that doubt.

65. For my part, I find the accused persons not guilty and I acquit both of them under Section 322 (1) Criminal Procedure Code.

They shall be set free unless otherwise lawfully held under a separate warrant.

Orders accordingly.

Delivered, signedanddatedthis 5th day ofDecember2017 at NAIROBI

……………………………

HEDWIG I. ONG’UDI

HIGH COURT JUDGE