[2022] KEHC 11225 (KLR)

Republic v Baraza (Criminal Case 22 of 2018) [2022] KEHC 11225 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11225 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Case 22 of 2018

LK Kimaru, J

June 16, 2022

Between

Republic

Prosecutor

and

Simon Wafula Baraza

Accused

Judgment

1. The accused, Simon Wafula Baraza was charged with Murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on November 27, 2018 at Milimani village, Machewa location, Trans Nzoia County, the accused, jointly with others not before court murdered Sammy Wekesa. When the accused was arraigned before this court, he pleaded not guilty to the charge. The prosecution called a total of seven (7) witnesses in its bid to establish the charge against the accused. The evidence adduced by the prosecution witnesses was taken before Chemitei J. The learned Judge after considering the evidence adduced by the prosecution witnesses, placed the accused on his defence. The defence case was heard by the present court after the parties expressed no objection to the court proceeding with the case from where it had reached. After the close of both the prosecution’s and the defence’s respective cases, learned Counsels filed written closing submissions.

2. The evidence adduced by the prosecution witnesses in support of the charge was as follows:

3. The deceased Sammy Wekesa was born with mental challenges. Due to that incapacity, he did not complete primary school. He lived with his grandmother PW2 Josephine Nelima Ndungu at Machewa farm. PW2 recalled that on the November 27, 2018 at about 10. 00 pm, while she was in her house, she heard some noises. Some people had come to her home and gone to the store where the deceased used to sleep baying for his blood. They accused the deceased of having stolen chicken from the accused. PW2 opened her door and went to investigate. She saw the accused and his sons assault the deceased using sticks that are used to shell maize. The two sticks that were used to beat the deceased were produced as prosecution’s Exhibit No. 1(a) and 1(b). PW2 testified that the deceased was beaten to the extent that those who were beating him asked themselves if he had died. She was emphatic that those who assaulted the deceased came to her home with the intention of killing him. She recalled that despite being told to stop assaulting the deceased, the accused and his children did not heed the plea. The accused and his children then took the deceased to the village elder but returned him and left him at their home. The deceased was bleeding from all parts of his body. The blood stained T-shirts that he had worn on the material day were produced as Prosecution Exhibit No. 2(a) & (b). While taking him to the village elder’s home, they tied the deceased’s hands using an old cloth (produced as Prosecution’s Exhibit No. 3). PW2 testified that the deceased died during the night before he could be taken to the hospital.

4. PW1 John Wanjala Kirapa, the deceased’s uncle testified that on November 28, 2018 at about 9. 00 am he was informed that the deceased had been assaulted and killed by the accused, their neighbour, on allegation that he had stolen chicken. He went home to investigate. When he reached home, he saw the body of the deceased. It had injuries on the head. It was oozing blood. He informed the village elder who in turn called the chief. The police were informed. They came to the scene and took away the body of the deceased. The accused was arrested and taken to the police. He reiterated that the deceased was born with mental retardation and the people in the village knew about it.

5. PW3 Ndiema Nasioyi Kimei, a resident of Machewa testified that he was a village elder. He recalled that on November 27, 2018 at 11. 00 pm while at home, the accused came with a group of people and woke him up. They had brought the deceased. The deceased hands were tied behind his back. He was half dressed. He only wore trousers. When the PW3 inquired what the deceased had done, the accused told him that the deceased had stolen his chicken. One Stephen was holding the chicken. The accused told PW3 that he had sought help from the Administration Police and was taking the deceased to the said Administration police post. On the following day, he was called and informed that the deceased was found at his home. He was dead. PW3 informed the chief. He paid a visit to the deceased’s home. He saw the deceased had sustained injuries all over his body. There was a big stick at the scene. There was also a big stone. The deceased’s hands were tied on his back. He was only wearing a black trouser. He reiterated that the last time he saw the deceased while he was alive, it was when he was with the accused the night before. He further testified that the deceased had on one occasion been accused of stealing sugar and unga. He was not aware if the deceased had any complaint regarding theft.

6. PW4 Anthony Ekalam Wekesa, the deceased’s uncle testified that on November 27, 2018 at about 8. 00 pm he took supper with PW2 and the deceased. After dinner, he went to sleep. At 10. 30 pm he was woken up by noises. He went to investigate. He saw the accused remove the deceased from the place that he used to sleep. He then assaulted him. He tried to stop him but he was overpowered by the accused and his sons. They then tied the deceased’s hands with a rope and took him to the home of the village elder. He followed them from a distance. After about half an hour, they brought the deceased back home and continued beating him. They then left him when they realized that he was unconscious. PW4 denied the allegation made by the accused that the deceased had stolen chicken from him. He did not see any chicken that was allegedly stolen on that night. After the accused and his sons had left the scene, the deceased regained consciousness and went to sleep. In the morning PW4 woke up and went to look for a motor bike to take the deceased to hospital. When he went to check on the deceased, he realized that he had died. PW4 reiterated that it was the accused and his three sons who assaulted the deceased and thus caused him to sustain the fatal injuries. He was puzzled why the accused had assaulted the deceased yet he did not have any differences with him before the material day. He denied the allegation made to the effect that the deceased was a thief.

7. PW5 Dr. Alex Barasa, based at Mt. Elgon County Hospital conducted a post mortem on the body of the deceased on December 4, 2018. He observed bruises on the face, neck, chest and upper and lower limbs of the deceased. There was a deep scalp wound and cut on the left leg. There was a deep wound on the head with a depressed skull fracture. He formed the opinion that the cause of death of the deceased was severe head injury secondary to assault. The post moterm report was produced as prosecution’s Exhibit No. 4. PW6 IP Fredrick Sirengo, a scenes of crime officer took photographs of the scene of crime including photographs of where the body of the deceased was found. In total, he took ten (10) photographs which he produced into evidence as Exhibit No. 5(a). He also prepared a certificate which was produced as Exhibit No. 5(b).

8. The case was investigated by PC Daniel Polo. He visited the scene of crime, interviewed the witnesses, and collected the exhibits from the scene of crime and after concluding the investigations, made the decision to charge the accused.

9. When he was put on his defence, the accused denied assaulting the deceased or instigating the assault of the deceased after it had been claimed that the deceased had stolen his chicken. Whereas he admitted that he was at the scene when the deceased was attacked by a mob of young men, he told the court that he acted as a peace maker and indeed pleaded with the young men to desist from beating the deceased because there was a solution to the issue of the alleged criminality of the deceased. He proposed to them to take the deceased to the village elder which they readily agreed. He accompanied them to the village elder’s house where the deceased admitted that he had stolen his chicken. He was advised to take the deceased to the Administration Police camp. On the way, the deceased ran away. He later learned that the deceased had died when the police went to his home on the following day and arrested him. He was of the view that the only reason why he was charged was because the stolen chicken was his property. He denied that he had anything to do with the death of the deceased.

10. In all criminal cases, it is the duty of the prosecution to adduce evidence to establish the guilt of an accused to the required standard of proof beyond any reasonable doubt. The burden of adducing evidence to establish the guilt of an accused is on the prosecution. This burden never shifts to the accused. The accused is under no legal obligation to establish his innocence.

11. In the present case, the prosecution relied on direct evidence to establish the charge of murder facing the accused. PW2 and PW4 gave eye witness account on how on the material night of November 27, 2018, they were woken up by noises emanating from a store within their compound where the deceased used to sleep. When they went to investigate, they saw the accused, their neighbour, with his three (3) sons assaulting the deceased on allegations that he had stolen chicken from the accused’s home. According to the two witnesses, the accused and his sons assaulted the deceased using heavy sticks that are used to shell dried maize. The beating continued despite PW3 pleading with the accused and his sons to leave the deceased alone. Infact, PW4 testified that he was threatened with harm if he intervened. During the beating, PW2 and PW4 testified that the deceased’s hands were tied.

12. The deceased was then frogmatched to the house of PW3, the village elder where the deceased was reported to have stolen chicken from the accused. PW3 observed the deceased. He was in a bad state. He was half naked. He was wearing trousers only. He had injuries. PW3 advised the accused to take the deceased to the Administration Police camp. However, it was apparent that the accused and his sons did not heed this advice. Instead they took the deceased back to his home where they continued assaulting him until he became unconscious. PW4 who had discreetly followed the accused and his sons when they were taking the deceased to PW3’s house, and followed them back, testified that the accused and his sons assaulted the deceased until they thought that he had died. That is when they left him lying unconscious on the ground. PW4 testified that the deceased regained his consciousness and went to his bed and slept. On the following day, PW2 and PW4 found the deceased dead as they were preparing to take him to hospital.

13. The postmortem conducted on the body of the deceased revealed that he had suffered multiple injuries on his body. These injuries were consistent with the evidence adduced by PW2 and PW4 to the effect that the accused and his sons had assaulted the deceased using sticks which inflicted bodily injuries on the deceased. The deceased was hit on the head with a blunt object which caused his skull to fracture thereby causing his death. Again, the injury that the deceased sustained on his head was consistent with the beating that he was subjected to by the accused and his sons.

14. From the evidence adduced by both the prosecution and the accused in his defence, the cause of the beating was the allegation that the deceased had stolen chicken from the accused. Although PW3 claimed that one Stephen had shown him a chicken which he alleged the deceased had stolen, PW4 denied that such chicken was seen during the entire beating incident. Indeed, during the investigations by PW6, no such chicken was presented to him to support the assertion by the accused that the deceased had stolen chicken from him. PW4 was emphatic that the deceased had not stolen any chicken from the accused. On his part, PW3 the village elder testified that the deceased had once stolen sugar and unga. PW3 did not however indicate from whom the sugar and unga were stolen from and what action was taken to remedy the theft. This court’s evaluation of this evidence leads it to the conclusion that the accused and his sons made the decision the assault the deceased on suspicion that he had stolen chicken from him without any concrete evidence that that was indeed the case.

15. The assessment of this court of the evidence adduced by the prosecution leads it to the conclusion that indeed the prosecution had established to the required standard of proof beyond any reasonable doubt that it was the accused who caused the death of the deceased by assaulting him, while in company of his sons, thereby causing the deceased to sustain the injuries that led to his death. The assault, and the manner in which the injuries were inflicted, are consistent to the injuries seen by the doctor who conducted the post mortem on the body of the deceased.

16. The accused’s defence consisted of mere denials. Whereas he admitted that he was at the scene when the deceased was being beaten by what he termed as a mob, he absolved himself of culpability of the assault of the deceased. This evidence by the accused was however displaced by the direct eye witness account by PW2, PW3 and PW4.

17. Instead of the accused presenting the deceased to the police (if indeed he had evidence that the deceased had stolen chicken from him) he took the law in his own hands and decided to assault the deceased using crude weapons. The death of the deceased was a direct result of his action. The accused is culpable for the death of the deceased.

18. This court therefore holds that the prosecution established to the required standard of proof beyond any reasonable doubt that the accused caused the death of the deceased with malice aforethought. The accused assaulted the deceased in a manner that suggested that he intended to cause him grievous harm. The deceased’s death was therefore a natural consequence of the accused’s assault. The prosecution established the charge of Murder contrary to section 203 as read with section 204 of the Penal Code to the required standard of proof beyond any reasonable doubt. It is so ordered.

DATED AT KITALE THIS 16TH DAY OF JUNE 2022. L. KIMARUJUDGE