[2022] KEHC 1639 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION

CRIMINAL CASE NO 58 OF 2012

REPUBLIC..............................PROSECUTION

VERSUS

ANGELICA MWUA WANZA........ ACCUSED

JUDGEMENT

1. The accused was charge with the offence of Murder contrary to Section 203 as read with 204 of the Panel Code, the particulars of which were that on 22nd day of July 2012 at new Turbanacle Church in Dandora Phase 4 Njiru District within Nairobi County, Murdered SAMUEL CHEGE.

2. On the 30th day of July 2012, the same appeared before Muchemi J, when her plea taking was deferred to the 6th of August 2012 when it was adjourned to 11th February 2013 at which date she pleaded not guilty and a plea thereof recorded.

3. After several adjournments on 23rd March 2013, the matter was placed before R. Korir J for purposes of determining an application for bond and by a ruling dated 17th July 2013, the same was released on bond pending trial. The file thereafter was taken over by Muchemi J and after several adjournments as can be seen from the court file, on 1st day of July 2014, the Judge reviewed the bond terms granted by Korir J.

4. On 27th October 2014, the file was placed before Lesiit J as she then was, who fixed the matter fir hearing for 9th of march 2015 when on an application by the Prosecution, it was adjourned to the 22nd June 2015 before Ombija J and for reasons stated in the court record, the matter could not proceed.

5. On 30th day of September 2015, the file was placed before Lesiit J once more when the state indicated that they were willing to enter into a plea bargain which offer was rejected by the accused after several adjournments and false start at hearing on 12th July 2016.

6. On 30th January 2017, the matter was listed before me for the first time for hearing, on which date the prosecution once again applied for adjournment and whereas I was then ready to hear the cause, the same was adjourned and after several other adjournments as can be seen from the court record, on 18th December 2017 the hearing commenced before me and on 25th February 2020, the prosecution concluded their case with the seven witnesses having been examined and cross examined. Having been put on her defence, the accused on 15th December 2020 tendered her defence and on 14th February 2021, the court received the final submissions herein.

7. I have deliberately set out the history of this case so that anybody reading this judgement in future will appreciate what it takes to conduct and conclude a criminal trial in the Kenyan court. For the accused person herein, she was lucky to had been released on bond and therefore went through the trial while out of custody. Not all accused persons are that lucky if it can be called luck and as they say in Kenya “the earth is hard “for an average accused person.

PROSECUTION CASE

8. The prosecution case against the accused, was that the same was in a romantic relationship with the deceased and that they were living together which was disputed by the accused in her evidence in defence. It was the prosecution theory that the accused on the material day stabbed the deceased with a knife causing him fatal injuries an act which the accused denied and put up a theory that the deceased was romantically involved with her and he later on joined the Mungiki Sect who did not approve of the said relationship , since she was not circumcised as was advocated by the sect, it was her further theory that the deceased who had been married to a lady from his tribe , did not approve of his new relationship and since he declined to end the relationship, his death must have been caused by either.

9. To prove the case PW1 MW, who was nine years at the time of the death and fourteen years when she testified before me, was affirmed as she did not understand the meaning and the need of taking oath. it was her evidence that the deceased who was her uncle was too closed to her, and she would from time to time go to his Shop, mostly on Sundays. she testified that on 15th July 2012, she visited the deceased and found him with the accused and that at some stage they started to fight over a key and she heard the accused tell the deceased that she will someday kill him.

10. It was her evidence that she thereafter left with the deceased to where he used to sell CDs before proceeding back to her home, where she reported to her mother that the accused had threatened to kill her favourite uncle but the mother did not take it serious and considered it just a joke, only for her mother to call her after a week with the sad news of the death and when she went to the place where the deceased used to sell thing, one of his friends told her that he had been stabbed with a knife by the accused person.

11. In cross examination, she stated that sometimes she would go to the deceased placed in the company of her brother who was much older and that on the day of the alleged fight between the deceased and the accused, she was sitting at the door step and could not hear what they were saying. It was her evidence that she did not hear what the deceased had to told the accused and she only heard the accused say that she would kill him, though the fight was over a key. She stated that his uncles friend called ROBA is the one who told her that the accused had killed him.

12. PW2 NW stated that on 15th July 2012, the deceased who was her brother came for PW1 from her house and went with her to Dandora Phase 4 and when she came back home, she reported that there had been a dispute between the accused and the deceased while she was with them, and that the accused told the deceased not to play with her since she was capable of killing him, which report she did not take serious and therefore did not ask the deceased about it.

She then remembered that there was a time her children had reported to her from their visit to the deceased that there was a time the accused had moved out of the deceased house and they were asked to go help her move back.

13. It was on22nd July 2012 when she received a cell phone call from her husband to proceed to where the deceased used to live only to find out that he had died. On her way back home she met someone who told her that her brother had been stabbed with a knife by his wife and that she was being assaulted by a mob, he proceeded to the scene and found her being assaulted, she lost consciousness only to come to life in her house. It was her evidence that she had only met the accused once and that the deceased had another wife and did not know when he married the accused.

14. In cross examination, she stated that the accused and the deceased used to live together until they differed and the accused went to back to her house though within the same block. She stated that it was at 7 pm when she went to the place where the accused was being beaten and that she did not know ROBA or NJORO since she was not living in the area. She confirmed that there was a time when the accused welcomed her in her brother’s house and that the decease had introduced her to her as his wife. She stated that she did not see anybody stab the deceased and that the accused allegedly came out of the house and said that she had stabbed the deceased.

15. PW3 PAUL MASINA GICHAHI stated that on 17th July 2012 while selling shoes along Ronald Ngala Primary School a friend of the deceased went for him and told him that the same had been stabbed and was being attended to at Provide Hospital and when he got there, he was informed that the same had died, he took the body to the mortuary and went back home. He was later on informed that the lady who had stabbed the deceased had been assaulted by a mob and after five days the police informed him that she had been arrested. He witnessed the post mortem examination on the body of the deceased and later on recorded his statement with the police.

16. In cross examination he stated that he was not at the scene of offence and was only told by the friends of the deceased that he had been stabbed.

17. PW4 CHARITY WAIRIMU testified that she received a call informing her that the deceased had been stabbed with a knife and died and when he asked who had stabbed him, she was told that it was the lady he was living with who had been assaulted by a mob before being rescued by police. The next day she visited the police station to see the accused whom she did not know and found her with swollen face and injuries to the eye.

18. In cross examination, she stated that she saw the accused at the police station who she knew was living with the accused, though he had another wife and child. In answer to the question by the court, she stated that the deceased had separated with his wife though she did not know where she was living at.

19. PW5 DR ZEHANIA KAMAU produce the P3 Form on the mental status of the accused who was 23 years at the time a victim of mob injustice who at the time of examination had a swollen face, red eyes, bruises on the forehead, dark skin below the eye lid and swollen back of the hand and that the injuries were caused by a blunt object. He confirmed that she was of sound mind.

20. PW6 CORP. MOSES KIRIMA testified on behalf of CORP FRANCIS WARUNGE the investigating Officer who proceeded to the scene and confirmed that the accused and the deceased were living together in the same plot ad that they were fighting together during which the accused stabbed the deceased with a knife, he stated that there was no indication that the knife was recovered and that the clothes of the accused which were recovered at the scene were never handed over to him. He produced the statement by the investigating officer as an exhibit.

21. PW7 DR. PETER NDEGWA examined the body of the deceased which had a penetrating stabbed wound on the left anterior neck and as a result of the examination formed the opinion that the cause of death was exsanguination due to single penetrating stabbed wound to the neck.

DEFENCE CASE

22. The accused in her defence gave a sworn statement and stated that on 22nd July 2012, she woke up and prepared breakfast to the deceased at his place of work where he was selling electronic goods and went back to her house.

At 11. 00 Am, she called him and informed him that she was bored and being a Sunday, she had been invited by a friend of hers to go to her church, she decided to go to church, where she was until 3. 00 pm before going back home, getting there at 4. 30pm.

23. It was her evidence that the decease had told her not to go to his place of work, since they were no officially married, she then called him inquiring whether he had taken lunch, to which he answered in the negative and requested her to cook, whereas she had wanted to eat only chips. She decided to go and buy vegetables and on the way they passed each other and he informed her that he had left someone whom he did not trust at the shop called Njoro and he took his sweater and told her to call him when the food was ready.

24. As she was still cooking, she heard a bang at the gate and when she went to check, she saw three men pushing the gate and pointing to her calling he a prostitute, they then came in and picked her up and she knew them as Njoroge Githine and Gichire, they then started to beat her up , saying that kikuyu men were not allowed to live with prostitutes and one of them said that they had put the deceased in the fridge and they were also going to put her in one, they then took her to where the deceased was working and said that she is the one who had made the deceased to die and stated to assault her. She then heard the voice of the sister of the deceased saying that she had made her brother to die and that she was also going to die and that Kikuyus could not live with a Mukamba and at that stage she lost consciousness and when she came back she found herself with the police who informed her that she was at the Hospital.

25. She was later on taken to the police station where she met youth wingers who told her that they were the ones who had rescued her from the mob.

On Wednesday she was called to a room where she found PW1 and PW2 and a man whom she did not know and confirmed that he knew the two, she was later on taken to the Doctor for mental assessment before being charged with the present offence.

26. She denied ever taking the key of the deceased since they each had their respective houses and that there was no time he ever threatened the deceased, neither had they fought since their relationship had only lasted for six months, she denied being married to the deceased and stated that they were only lovers and that when they visited PW1 the deceased only introduced her as the mother of PW2 and she only gave her, her name, and was not introduced as a wife.

27. It was her evidence that there was a time when the friends of the deceased asked him why he did not want her to go to his place and he confirmed that he had joined Mungiki and when she went to prison she was told that a Mungiki could not live with un circumcised woman and it was possible that his members killed him and were also going to kill her. She denied killing the deceased.

28. In cross examination, she stated that when the deceased came to the plot, she was the last person who spoke to him and that she did not see him talk to anybody else. she confirmed that his place of work was between 200 -300 meters from the plot where they were living. she confirmed that PW1 was her best friend and used to hang out together every Sunday and it was only her mother PW2 who did not like her and had abused her and it was possible for her to coach PW1.

29. She stated further that there was no day that she fought with the deceased on the issue of infidelity and that the men who assaulted her were friends of the deceased who alleged that she had killed the deceased and were not celebrating his death, she stated that the deceased left the house and between 30-40 munities his friends came to the house and that Njoro who he had left at his place of work was one of those who went to her house, it was her further evidence that throughout the period of time she was in a relationship with the deceased none of his friends threatened her until the day the same died and that they did not tell her why they were beating her but they said that they had taken the deceased to the mortuary and that is where they were they were taking her to.

SUBMISSIONS

30. At the close of the defence case , it was submitted by Mr. Opolo that the accused religiously took meals to the deceased until he suddenly stopped her and when she inquired from friends, she was informed that the same had become a member of Mungiki who would not allow him to be in a relationship with un- circumcised woman and she tied the information to what PW2 had earlier told her that there was nowhere kikuyu and a Mkamba would be in a relationship and that this element of mungikihood was not interrogated by the prosecution. It was therefore submitted that the mungiki had a motive for killing the deceased who had embarrassed them by having an affair with un circumcised woman.

31. It was submitted further that none of the people who took part in the mob injustice were not called to testify including the four the accused had mentioned, including ROBA who was mentioned by the Prosecution star witness as the person who informed her that the accused had killed the deceased.

32. It was contended that the prosecution case based on circumstantial evidence was not proved beyond reasonable doubt. It was contended that the same was based on contradictory and inconsistent evidence and that mere suspicion however strong was not a basis for conviction and reliance was placed on the authorities which were submitted sat no case to answer stage. The court was therefore urged to return a verdict of not guilty and acquit the accused person.

33. On behalf of the state Mr Okeyo relied on the evidence on record and the submissions made at no case to answer.

DETERMINATION

34. To sustain a conviction, the prosecution is required to prove the following elements of the offence beyond any reasonable doubt:

a. The fact and cause of death of the deceased

b. That the said death was caused by unlawful act of omission and or commission on the part of the accused person

c. That it was caused with malice aforethought

35. The fact and the cause the death was not in dispute throughout this trial, all the prosecution witnesses and the accused in her defence, confirmed the said death, with that cause thereof being proved through the evidence of PW7 Dr Ndegwa to be exsanguination due to a single penetrating wound on the neck. At the time of this judgment these facts stood proved beyond any reasonable doubt and I so find and hold.

36. The only issues in dispute was whether the said death was caused by un lawful act on the part of the accused person. As submitted by her Advocate on record, the prosecution did not call any eye witness who saw the same stab the deceased and therefore, the case was solely based upon circumstantial evidence.

37. For a court to convict on circumstantial evidence, the said evidence must meet the threshold established in the following cases;

R vs MICAEL MURIUKI MUNYUR [ 2014] e KLR where the court had this to say: 10. InSAWE –V- REP[2003] KLR 364 the Court of Appeal held.

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

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

3. 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.

4. ...

5. ...

6. ..

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

11. InABANGA alias ONYANGO V. REP CR. A NO.32 of 1990(UR) the Court of Appeal set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction. These are:

“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 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.”

In R.vs EVANS KARARI MWNGI [2021] e KLRthe court stated thus: 22. There is no direct evidence pointing to the accused causing the death of the deceased. Is there any circumstantial evidence proving the same? It is important to note that for a conviction to be made on circumstantial evidence the inculpatory facts must be incompatible with innocence of the accused. Further this Court needs to be sure that there are no co-existing circumstances or factors which would weaken or destroy that inference. What the court should bear in mind when confronted with circumstantial evidence was considered by the Court of Appeal in the case PON VS. REPUBLIC (2019) eKLR thus:-

“Though not direct, circumstantial evidence, as this Court stated in MUSILI TULO V. REPUBLICCriminal Appeal No. 30 of 2013:-

“... is as good as any evidence if it is properly evaluated and, as is usually put, it can prove a case with the accuracy of mathematics.”

To base a conviction entirely or substantially upon circumstantial evidence, it is necessary that guilt of the suspect should not only be rational inference but also it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the suspect not guilty. This principle has been applied for years in this jurisdiction and the two leading judicial authorities that have stood the test of time are REX V KIPKERRING ARAP KOSKE & 2 OTHERS[1949] EACA 135 andSIMONI MUSOKE V R[1958] EA 71. InREX V KIPKERRING(supra) the court explained that:-

“In order to justify a conviction 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 hypothesis than that of his guilt and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.”

SIMONI MUSOKE V R (supra) introduced an additional factor to the foregoing, to the effect that before drawing the inference of the accused’s guilt from circumstantial evidence the court must be sure that there are no co-existing circumstances or factors which would weaken or destroy that inference. Over the years these strictures have been developed further by way of explanation. For example, in the case of OMAR MZUNGU CHIMERA V. RCriminal Appeal No. 56 of 1998, the Court stated that;

It is settled law that when a case rests on entirely circumstantial evidence, such evidence must satisfy three tests:-

(i) the circumstances from which an inference of guilty is to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of a 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””

38. In this matter, the circumstantial evidence tendered by the prosecution, was the evidence of PW1, that she visited the deceased and the accused as was her custom and on that particular day, there was an altercation between them and that the accused stated that she was capable of killing him. It was her evidence that the altercation was in respect of some key which the accused denied. When the said witness told her mother PW2, she did not take it serious and therefore did not see the need to talk to the deceased about it.

39. The other circumstantial evidence was the evidence of PW2 that she found the accused being subjected to mob injustice when she went to the place where she was living at with the deceased. She did not find the deceased at the scene and was only told by un named person that it is the accused who had stabbed the deceased.

40. This evidence in the absence of the said person remains hearsay evidence with very little probative value as was the evidence of the brother of the deceased PW3. The prosecution did not call the investigating office and therefore the evidence of PW6 CORP MOSES KARIMA remains hearsay too.

41. When put on her defence the accused denied having stabbed the deceased, though she admitted having been with him on the date of his death, whereas she put herself at the house with the deceased, at the close of the prosecution case, there remained a doubt in the mind of the court as to the scene of the offence, was it in the house of the deceased or somewhere else.

42. I have taken into account the accused defence and whereas there is suspension of her having caused the death of the deceased, mere suspension however great cannot be a ground for conviction.

43. In cases involving circumstantial evidence, motive for the offence becomes very important in joining the chain linking the accused to the offence, in this case the prosecution did not prove any motive on the part of the accused person leading to the irresistible conclusion that the prosecution failed to prove the case against the accused person beyond reasonable doubt.

44. In the of R vs ELIZABETH ANYANGA OJWANG [2018] eKLRthe court had this to say22. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances get snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubt.

The court must be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions, see NAVANEETHA KRISHNAN v THE STATE BY INSPECTOR OF POLICE – SUPREME COURT OF INDIA, CRIMINAL APPEAL NO. 434 OF 2013. …………. 9. In cases like this where the prosecution case is solely based on circumstantial evidence it is very important for the prosecution to establish motive as one of the chains linking the accused to the crime. Where the prosecution is not able to establish a motive behind the alleged crime it assumes importance as the proof of motive on the part of the accused person to commit the offence satisfies the judicial mind about the authorship of the crime. In the absence of motive, the court is then required to have a deeper search into the circumstantial evidence tendered so as to link the accused to the crime. “

45. From her defence the same raised the possibility of the deceased having been killed by members of the mungiki sect for having involved himself with un circumcised woman, which though farfetched was probable and the prosecution at the end of the defence case did not dislodge her account.

46. The prosecution at the end of its case failed to prove motive on the part of the accused person which would have led to her killing the deceased. The only evidence tendered was the uncorroborated evidence of the minor to the extent that the accused had threatened to kill the deceased over some issue involving a key which evidence stands limping taking into account the accused defence that though they were living in the same plot, each kept their respective houses.

47. It is also clear that the prosecution failed to call very vital witnesses including the arresting officer to shade light on how the accused was arrested, the people who allegedly rescued the accused from the mob, Roba who informed PW1 of the death of the deceased and the person who showed the accused to PW2 and the only logical conclusion in view of the circumstantial evidence herein is that the prosecution failed to join the chain linking the accused to the death of the deceased.

48. Whereas there is a strong suspicion of the involvement of the deceased to the death of the deceased, that suspicion however strong cannot be a basis of conviction in a criminal matter as the accused was not expected to file in the gap in the prosecution case by way of cross examination.

49. Whereas the deceased lost his life, I have come to the irresistible conclusion that there was a doubt raised in the prosecution case the benefit of which the accused person is entitled to and therefore find and hold that the prosecution failed to prove its case against the accused person beyond reasonable doubt and therefore find the same not guilty of murder.

50. The accused is hereby discharged of the charge and is set free forthwith unless otherwise lawfully held and it is ordered.

SIGNED DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF MARCH, 2022

J. WAKIAGA

JUDGE