[2017] KEHC 8498 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL DIVISION

CRIMINAL CASE NO. 40 OF 2009

REPUBLIC..........................................................PROSECUTOR

VERSUS

ANTHONY SHIKHANDI INDONGOLE......................ACCUSED

J U D G M E N T

Introduction

1. The accused Antony Shikandi Indongole is charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 21st day of August, 2009, at Emasera Village, East Butsotso Location in Kakamega Central District within Western Province he murdered Sammy Hassan Were.

The accused pleaded not guilty to the charge. M/s Nandwa was appointed to act on his behalf. It is important to note that this case was heard by several judges and this court was only tasked with the duty of writing the judgment after the accused and his counsel agreed to the proposition.

Prosecution Case

3. The prosecution called four (4) witnesses. PW1 Herbert Adala a brother to the deceased told the court that his brother the deceased herein told him that he was called by the accused’s father as he walked home from work. The accused father told him (deceased) that his son the accused had climbed a tree and wanted to hang himself. This was on 21. 08. 2009. The next day the rope the accused wanted to use to hang himself was cut and this angered the accused who started attacking everybody in the vicinity. People ran away but the deceased was unable to run as he was old. The accused then attacked him and injured him. PW1 claimed that his brother sustained injuries all over his body including his private parts.

4. PW1 also testified that the deceased told him the father of the accused sent money to his brother to assist in taking him to hospital but they did not take the said money. Though they took the deceased to hospital. The matter was reported at the Kakamega police station. His brother was treated at the Kakamega General Hospital but on the 28. 8.2009 his health deteriorated and was taken back to hospital. He died the following day. PW1 identified the body of the deceased to the doctor for post mortem examination. He also recorded his statement.

5. PW1 was cross –examined by M/S Nandwa for the accused. He confirmed that he recorded a statement with the police. He explained that his brother was not feeling well enoughto climb the tree to untie the accused. He added that his late brother had not been admitted to any hospital before the attack. He did not know whether his brother was on medication at the time of the attack. He further explained that he was not the one who took his brother to hospital. He also did not know the driver who took the brother to hospital the second time. He also did not know if the brother fell off from the motorcycle. All he knew was that his brother was being taken care by his son Humphrey and that he did not fall from a motor cycle as alleged.

6. PW2 Grace Anyona Were wife to the deceased told the court that her husband arrived home with torn clothes on the 20. 8.2009. His head was swollen. He told her that he had been beaten by the accused. Her husband told her that the accused had tried to hang himself and when he was rescued he attacked him as the others scampered for safety. The following day she reported the incident to the assistant chief and took her husband to hospital. She stated that the father of the accused contributed kshs.1,000/= for the deceased’s treatment. She added that her husband was treated twice and X-rays taken before his condition deteriorated. They took him back to hospital but unfortunately he passed away.

7. PW2 claimed that the accused was arrested while trying to escape and added that she had known the accused since the time she was married in the area. The accused is a neighbour and her in law.

8. She told the court on cross examination that her husband was not weak but he was undergoing treatment for hypertension before he was attacked. She confirmed that he was taken to hospital on a motor cycle but he did not fall off from the motor cycle as alleged. PW2 said she did not witness the actual attack on her husband

9. The area assistant chief testified as PW3. He told the court that he received a report from PW2 on 22. 08. 2009 that her husband had been assaulted by the deceased. PW2 told him of the events that led to the assault; how accused had attempted to commit suicide and how deceased assisted in cutting the rope that was tied on the tree. He was told how the accused went down the tree and started assaulting the deceased with kicks and blows.

10. PW3 said he visited the deceased at his home where he found him and observed that he had difficulties in breathing and could barely talk or walk. PW3 also testified that he wrote a note for the deceased to take to hospital on 29. 08. 2009. He later received a report that the deceased had died while undergoing treatment at Kakamega General Hospital.

11. Upon being cross examined by Mr. Nandwa, PW3 explained that PW2 and the village elder were not at the scene at the time of the incident. He testified that it is the father of the accused who told him that he had witnessed the incident. He further testified that he did not know whether the deceased was suffering from any ailment or whether (deceased) fell from the bodaboda that was taking him to hospital.

12. Dr. Dickson Mchana PW4 produced the post mortem report on behalf of Dr. Nyikuli Duncan. He took the court through the contents of the report in which Dr. Nyikuli opined that the cause of death was cardiopulmonary arrest secondary to massive internal haemorrhage secondary to raptured spleen. The post mortem report was marked as PEX1.

13. On cross examination PW4 explained that he had no knowledge of any treatment records produced. He explained that rapture of spleen is caused by trauma and the deceased died approximately two(2) days prior to the post mortem. After these four(4) witnesses the prosecution closed its case. The court was satisfied that the prosecution had established a prima facie case against the accused person to require him to defend himself.

14. Section 306 of the Criminal Procedure Code was complied with and accused opted to give sworn evidence. He did not call any witness.

Defence Case.

15. The accused (DW1) testified that he was a taxi driver within Kakamega town before being arrested. He denied the charge and testified that on that day he never met the deceased as he had taken a customer to Turbo. He also refuted the allegations that he had attempted to commit suicide. He told the court that he knew the deceased who was part of their family. He claimed that the deceased suffered from HIV/AIDs and had kidney problems. He also testified that none of the witnesses told the court that they saw him assaulting the deceased.

16. Counsel for the state cross-examined the accused who reiterated that he was in in Turbo on the alleged day but that the persons who saw him in Turbo were not available. He claimed to have told the police at the time of his arrest that he was in Turbo but the police did not listen to him. He also claimed that the deceased told him of his HIV status. He also refuted the allegations that he attempted suicide, his version of the story being that he was attacked by many people before being taken to the police station. He closed his case at this point.

The Law

17. Section 203 of the Penal Code defines murder as follows;

`“203 Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder” Section 204 prescribes the punishment to be meted upon a person convicted of murder.

18. To prove murder the prosecution has to prove the following

a. That the deceased died

b. Whether it is the act and/or omission by the accused that caused deceased’s death (actus reus.)

c. That the said act or omission was actuated by malice aforethought (a guilty mind) as provided under Section 206 of the Penal Code.

Analysis and Determination

19. The prosecution called four witnesses. PW1 identified the body of the deceased to the doctor who performed the post mortem examination. PW4 Dr. Dickson Mchana produced the post mortem report which confirmed that the deceased died. The cause of death was clearly stated. All the prosecution witnesses confirmed in their testimonies that the deceased died.

20. The prosecution has therefore proved that the deceased died and this is not in doubt. The more troublesome element the prosecution has to prove is whether the deceased died in the hands of the accused person. In other words, that it is an act of the accused person that caused injury to the deceased as a result of which the deceased died. Is there evidence to that effect? I think not.

21. PW1 claimed to have been told by the deceased that it was the accused who assaulted him. This is the same testimony given by PW2 and PW3. None of the prosecution witnesses has placed the accused squarely at the scene of crime on the day the deceased was allegedly attacked. Though the ather of the accused is alleged to have sent money for the deceased’s treatment, there was no corroboration of the said evidence. PW3 told the court that the father of the accused was the only one who witnessed the assault but he was not called to testify. In Kinyatti vrs – R CA No. 60 of 1983[1984] KLR regarding Kneller J.A Chesoni and Nyarangi Ag JJA stated as follows on hearsay evidence: “Hearsay evidence or indirect evidence is the assertion of a person other than the witness who is testifying, offered as evidence of the truth of that asserted rather than as evidence of the fact that the assertion was made. It is not original evidence. The rule against hearsay is that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a stated fact. Hearsay evidence may be admitted if the statement containing it is made in conditions of involvement or pressure and within proximity but not exact contemporaneity as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused. The evidence of a statement made to a witness by a person who is not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is not admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made”

22. That is the position in this case. First and foremost the allegations herein were not investigated. PW1 and PW2 claim to have given their statements to the police but the prosecution failed to call the investigating officer whose input was crucial. He would have confirmed whether the incident herein happened and whether it was reported, what he did as an investigating officer and what led him to arrest and charge the accused herein. Absence of such evidence necessarily creates a lacuna in the case of the prosecution because it gives the erroneous impression that the police had nothing to do with the case and had taken no part whatsoever in investigating and deciding on the charge that was preferred against the accused. However, the position in law is that mere failure of to call investigating officers cannot automatically result in acquittal as each case would have to be considered on its own circumstances in order to determine the effect of such a failure on the entire case for the prosecution. See the decision in the Ugandan Case of Bwaneka – vs – Uganda [1967] E.A 768.

23. The upshot of the above findings is that there is glaring gap on whether the deceased was assaulted by the accused as alleged. The prosecution witnesses did not see the accused assaulting the deceased. The people who were allegedly at the compound of the accused when he (accused) allegedly attempted to commit suicide before he was rescued by the deceased were not called as witnesses.

24. The incident herein occurred in the evening at about 6. 00pm, which raises eyebrows as to why the witnesses could not be availed. The suicide theory was also not substantiated. I therefore hold that the prosecution has failed in proving that it is the accused’s act which inflicted the injuries that led to the deceased’s death.

25. I also find that the prosecution has failed to prove mens rea on the part of the accused because no one saw his actions or testified of seeing him assaulting the deceased. Nor has the prosecution proved any intention on the part of the accused to cause the death of the deceased.

26. The prosecution has therefore failed to prove the charge of murder as defined under Section 203 as read with Section 204 of the Penal Code. The accused is therefore acquitted of the charge of murder aforesaid under Section 322(1) of the Criminal Procedure Code. He shall be set free forthwith unless otherwise lawfully held.

Orders accordingly.

Judgment delivered read and signed in open court at Kakamega this 7th day of February, 2017

RUTH N. SITATI

JUDGE

In the presence of ;-

………M/S Andia for Nandwa (present)…………………..for the Accused

……Mr. Jamsumba (present)………………………………….for the State

……Polycap…………………………………………………Court Assistant