[2018] KEHC 3890 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO. 78 OF 2013

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

VERSUS

AYUB MICHUBU.................................................................1ST ACCUSED

STEPHEN MUCHOKI.........................................................2ND ACCUSED

R U L I N G

1. AYUB MICHUBU and STEPHEN MUCHOKI (“the accused”) are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code CAP 63 of the Laws of Kenya.It was alleged that on 26th August, 2012 at Kathiranga Location, Imenti Central District within Meru County, the accused jointly murdered Lucy Kendi(“the deceased”). The prosecution paraded a total of 6 witnesses.

2. PW1 Lucy Kanamu, the deceased’s employer testified that, on Friday 23rd August, 2013, the deceased asked to leave her employment as PW1’shouse help. She was paid her dues and left the same day at 4pm. The following Monday while at her place of work, PW1 received information that the body of the deceased had been found in some forest within the land belonging to her father-in-law. The following day, police came and searched her premises but found nothing. However, the police recovered two pairs of shoes from outside the servant quarters occupied by the 1st accused.

3. PW2 James Kirimi M’Itunga told the court that on the morning of 26th August, 2018, while in Meru town, he received a call from his son Laban who informed him that the body of his other son’s house help had been found in his compound. He went back home and on arrival, he found that people had gathered at the scene. The police came and took the body to the mortuary.

4. PW3 Jediel Mburugu Kirimi,the husband to PW1,stated that he saw the deceased leave his home on 23rd August, 2013 at about 4pm. The following Monday, his brother Laban called and informed him that the deceased’s body had been found within their father’s land. He told the court that the 2nd accused had gone to his home on that Friday and returned on Sunday.

5. PW4 Dr. Michael Onyangoproduced the post mortem report on behalf of Dr. Kihumba. He testified that both externally and internally, the body had nothing remarkable. As such, the cause of death was undetermined. This prompted the doctor to take specimens from the lungs, stomach and its contents, liver, kidney and blood which were submitted to the Government Chemist for analysis.

6. PW5 No. 79806 CIP John Aengwa Taruswas the investigations officer. The case was assigned to him on 26th August, 2013. He went to the scene where he found a female body lying undisturbed in the forest. In his investigations, he established that the 2nd accused had communicated with the deceased at midnight of 25th August, 2013. He recovered from the 2nd accused his mobile phone. The 2nd accused’s red safari boots, t-shirt and black trouser which had blood stains were also recovered for analysis.

7. From the house occupied by the 1st accused, the police recovered items belonging to the deceased which included including slippers, an exercise book, an Identification waiting Card, brown bag, a black top a blue bag. He arrested the two accused on the basis of the said recoveries. He stated that the body of the deceased did not have any physical injuries except white mucus from the mouth and the nose. The police suspected poisoning. Therefore, he forwarded to the Government Chemist the black trouser, faded blue jacket, red safari boots together with the tissues collected form the body of the deceased for analysis.These items were to be collected by his successor, PC. Mwangi but were not produced in Court.

8. PW6 James Michael Welimo is a Government Chemist. He told the court that he received from PW5samples of tissues belonging to the deceased. These included; lungs, stomach and its contents, liver, kidney and blood. After analyzing the said tissues, he concluded that the samples had negative results of chemical poisoning.

9. The prosecution closed its case and Counsels made oral submissions on a case to answer. Ms. Nelima for the accused submitted that the prosecution had failed to prove its case to the required standard. That the reason the accused persons were arrested was that the items belonging to the deceased were found in their quarters. She noted that the alleged blood stained clothes recovered from the 2nd accused were not produced in evidence and that the cause of death was not established.

10. Mr. Kiarie for the State submitted that the prosecution had established a prima facie case against the accused. Counsel relied on the doctrine of recent possession and asked the court to be moved to call upon the accused for an explanation since the only logical conclusion was that they knew what happened to the deceased.

11. At the close of the prosecution case, a trial court must consider the evidence so far tendered by the prosecution to determine whether a prima facie case has been established to warrant the calling of an accused to defend himself. If no such case has been made out at that stage, then the trial court must acquit the accused as is provided for undersection 306 (1) of the Criminal Procedure Code.

12. What constitutes a prima facie case was considered in the case of Ramanlal Trambaklal Bhatt v. R [1957] E.A 332. At pages 334 and 335,the court held:-

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence……. It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by thedefence”.

13. The issue therefore is whether the evidence so far tendered meets this threshold. For one to be convicted of murder, the following must be proved beyond reasonable doubt:-

a) the fact of the death of the deceased,

b) the cause of such death,

c) proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused person, and

d) proof that the said unlawful act or omission was committed with malice aforethought.

14. The testimonies of PW1, PW3, PW4 and PW5proved the death of the deceased to the required standard. It was established that the deceased who was alive on the 23rd August, 2013 her body was found dumped in a forest within the land of PW2on 26th August, 2018.

15. The second ingredient that must be proved is the cause of death. PW4 and PW5told the court that the body did not have any visible injuries and that the cause of death could not be established. Specimens were sent to the government chemist to establish if the deceased died of poisoning. When PW6appeared, he produced the test results from the tissues sent to him as PExh.12. He told the court that after analyzing the specimens, he concluded that there was no chemical poisoning. The cause of death therefore remained unknown.

16. With the cause of death not established, two pertinent questions arise. These are; can the accused be called upon to defend themselves where it is unknown what caused the death of the deceased? Will they be required to explain to the court how the deceased met her death? That is the role of the prosecution which it has failed.

17. PW4stated that he recovered blood stained clothes from the 2nd accused. The post mortem report on the other hand indicates that there were no internal or external injuries on the deceased. Nevertheless, PW4 took the blood stained clothes to the government chemist for analysis. This was neither indicated in the exhibit memo (PExh.2)nor was any report of their analysis produced in court.

18. PW4told the court that he charged the accused because certain items belonging to the deceased were recovered from the premises occupied by them. He testified that, he recovered blood stained clothes from the 2nd accused and several items belonging to the deceased from the ceiling of the 1st accused house. The prosecution did not prove that those items were in the personal possession of the deceased when she left PW1’shome on 23rd August, 2013. There was no evidence to rule out the possibility that the said items may have found their way to the accused’s premises during the time the deceased was living with PW1. This displaces the prosecution’s reliance on the doctrine of recent possession.

19. In any event, PW1 told the court that the accused had been arrested by the time those items were allegedly being recovered from their premises.

20. In a murder trial, as in all other criminal trials, the prosecution bears the onus of proving the case against an accused beyond reasonable doubt. The prosecution must lay bare evidence capable of assisting the court to make a finding that the case for the prosecution warrants an accused being called upon to respond. Certainly, such is not the case in the present case. At this stage, there are many gaps in the prosecution case which I have already pointed out above. The accused persons cannot be called upon to fill up those gaps. In my view, the evidence so far tendered is so weak that no conviction can be based thereon if the accused decided to remain silent and offer no defence.

21. In the circumstances, I am satisfied that the prosecution has failed to establish a prima facie case on which this court while properly directing its mind to the law and the evidence, can convict the accused on.

22. Accordingly, I find the accused not guilty and I acquit them of the charge of murder pursuant to Section 306 (1) of the Criminal Procedure Code, CAP 75 of the Laws of Kenya.

SIGNED BY ME:

A. MABEYA

JUDGE

DATED AND DELIVERED AT MERU THIS DAY OF 4TH OCTOBER, 2018

F.K. GIKONYO

JUDGE