[2017] KEHC 1829 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE NO. 38 OF 2015

Lesiit, J.

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

VERSUS

BERNARD KAUWIRIA MIRITI.........................1ST ACCUSED

PAUL MWANGI WANJIRU …..…….………….2ND ACCUSED

BILLY WAWERU WACHIRA………….………. 3RD ACCUSED

JUDGEMENT

1. The accused persons BERNARD KAUWIRIA MIRITIhereinafter the 1st accused,PAUL MWANGI WANJIRUthe 2nd accused and BILLY WAWERU WACHIRAthe 3rd accused are jointly charged with Murder contrary to section 203 as read with section 204of thePenal Code.The particulars of the offence are that:

“BERNARD KAUWIRIA MIRITI, PAUL MWANGI WANJIRUand BILLY WAWERU WACHIRAaliasKICHWA KUBWAaliasPIERREon the night of 19th and 20th day of March 2015 at Kibera Line Saba in Langata sub-county within Nairobi County jointly murdered D M F.”

2. The prosecution called a total of six witnesses. The first two witnesses were heard by Ombija, J before he left the service. The rest of the case was heard and finalised by me under section 201 (1) and section 200 of the Criminal Procedure Code.

3. The brief facts of the prosecution case was that the deceased was found dead on a foot path within Kibera. The key witness in this case was PW1 who lived and worked in Kibera Laini Saba.

4. It was his evidence that on the material night at about midnight he was at Rose’s Bar within Kibera where he saw one Makena who is the accused wife, one Rose the owner of the Bar, one Jackeline and one Gakii seated having mugacha drink before the accused joined them in the company of the deceased.

5. PW1 stated that he saw the 1st accused order mogacha drink for the deceased which she sat drinking alone. PW1 said that he later saw the 1st accused calling the deceased so that he could escort her to his bar where she worked as a bar maid. PW1 said that he followed them because he was going to buy miraa at Kennedy’s which was next to 1st accused bar cum home.

6. It was the evidence of PW1 that on his way back from buying miraa, he met the 1st and 3rd accused in the company of the deceased walking towards the mosque. He stated that the 1st accused informed him that they were escorting the deceased. PW1 further testified that before he got to Roses’ bar, he heard the deceased screaming. Upon approaching where the screams were coming from, PW1 said that he saw the 1st accused strangling the deceased who was standing against the wall as the 3rd accused stood by watching. PW1 testified that he heard the deceased scream a second time after which she broke free and ran towards the 1st accused house.

7. PW1 testified that he noted that the deceased was bleeding from the neck and that he followed her to the bar of the 1st accused but stood outside. PW1 further testified that he later saw the 1st and 3rd accused and a woman who had covered herself carry someone towards the public toilet where the 2nd accused, who is a street urchin usually slept. He testified that as the three returned they no longer had the body they were carrying.

8. PW1 testified that after leaving Kennedy’s place where he had bought miraa, he returned to 1st accused bar where he heard the 1st accused telling his wife that he did not want PW1, one Abdi, one Eden and one KJ to know. PW1 said that he confronted 1st accused and told him that he knew his secret upon which the 1st accused offered him KShs. 5000/= to buy his silence which he declined. PW1 testified that the 1st accused offered him one roll of bhang and told him to go and smoke it near the public toilet which he did.

9. PW1 stated that when he went to the public toilet he found the 2nd accused having sex with a woman and he realised that the woman was the deceased in this case. PW1 testified that the deceased appeared dead. He said that when he asked the 2nd accused what he was doing, he told him that the 1st and the 3rd accused had had their turn and that it was his turn.

10. PW1 testified that he reported back to the 1st accused what the 2nd accused had said and that the 1st accused told him that he would report to the police that the 2nd and the 3rd accused had murdered the deceased. PW1 stated that he waited until the next morning to report the matter at the Golf Course Administration Police Camp.

11. The other prosecution witnesses were formal. PW2 identified the body of the deceased to the Doctor for post-mortem on 26th March, 2015. PW3 was the initial Investigating Officer from Capital Hill Police Station. He said that he visited the scene where the body of the deceased was lying. He described the scene as a footpath. He said that he found two Administration Police officers and a huge crowd of members of the public. PW3 removed the body from the scene and also re-arrested the 1st accused. Later on he received the 2nd and 3rd accused persons at the AP Camp at Golf Course. Even though PW3 said that he caused the body of the deceased to be photographed while at the City Mortuary, those photos were not produced in evidence.

12. PW5 took over the investigations from PW3. This officer recorded statements from witnesses and caused post-mortem to be carried out on the body of the deceased. He also caused the accused persons medical examinations and mental assessments to be carried out by a Police Surgeon. He produced those P3 Forms as exhibits 2, 3 and 4 in respect of the three accused persons respectively. It was the evidence of PW5 that he charged the 1st and 3rd accused persons because they were last seen with the deceased before her death. As for the 2nd accused person, PW5 stated that he charged him because he was found having sex with the body of the deceased.

13. The evidence of the findings of the post-mortem was produced by PW4, Dr. Oduor who produced the report P.Exhibit 1 on behalf of Dr. Njau who carried out the post-mortem. From the report PW4 stated that the deceased had multiple abrasions on her face, on the chin and on both knees which were of varying sizes. The deceased had also multiple bruises on the scalp and bleeding on the brain and a tear on her vagina. Dr Njau made the conclusion that the cause of death was a head injury due to blunt trauma. The Doctor took vagina swabs for DNA testing as there were signs of sexual assault. He also took nail clippings for DNA Profiling.

14. PW6 was the Government Chemist who carried out DNA profiling on the blood sample, nail clippings and vagina swabs removed from the deceased; and, the blood and buccal swabs of the 1st 2nd and 3rd accused and a jungle green underwear belonging to the 3rd accused. PW6 stated that she was required to examine the items alluded to earlier and determine the presence and sources of semen, spermatozoa and blood stains. The Government Chemist found no spermatozoa or semen in the vagina swabs and underwear of the 3rd accused. The findings also revealed no DNA of the deceased in the 3rd accused underwear. PW6 produced her report and the DNA profiles as P. Exhibit 5.

15. The 1st accused opted to give a sworn defence. He explained in detail his whereabouts on the night of 19th March, 2015 and the morning of 20th March, 2015. It was his evidence that he left his pool business at around 9. 00pm and proceeded to his house where he normally sold muratina. The 1st accused stated that on arrival he found his wife Makena, one Alice, one Ben Maina who was Alices’ boyfriend and the 3rd accused. The 1st accused stated that he slept soon thereafter and was awoken by the wife around midnight so that he could release Alice after taking accounts. The 1st accused further testified that the deceased came into his house requesting for muratina but was informed there was none. It was at that juncture that she asked for someone to escort her and the 3rd accused volunteered to do so. After which the 1st accused said he went back to sleep till the morning hours when he was awoken by one Wangari informing him of the death of the deceased.

16. The 1st accused denied ever meeting PW1 on the night of 19th March 2015. He explained that the two had a grudge and that was the reason PW1 was implicating him with the death of the deceased. The 1st accused denied that PW1 informed him about the deceased death and stated that it was one Wangari who informed him of the death on the morning of 20th March 2017. He further stated that he reported the incident at Golf Course AP camp. The 1st accused also stated that he helped in ferrying the deceased to the mortuary and was only arrested thereafter.

The 2nd accused on his part opted to keep mum in his defence.

17. The 3rd accused on the other hand gave an alibi defence. He testified that he spent the evening of the 19th of March 2017 at Kawangware where he resides. He stated that on 20th March 2017 he woke up at 6. 30am and proceeded to Kibera where he worked at a scrap metal yard. He said that on his way to his workplace, he met a crowd of people who enquired from him about the whereabouts of one Frank. The 3rd accused stated that he informed the crowd that they had parted ways with Frank the previous night but the crowd forcefully marched him to the A.P camp. The 3rd accused denied ever knowing the 1st accused nor the deceased before the commencement of this case.

18. This case was prosecuted by Ms Onunga Learned Prosecution Counsel. The 1st accused was defended by Mr. Wakaba who held brief for Mr. Mutitu throughout the trial. The 2nd and 3rd accused persons were represented by Mr. Oduor. The Counsel for the 1st accused Mr. Wakaba urged that it was not possible for his client the 1st accused and the wife to have alcohol at the so called Roses’ bar who was a competitor yet they were equally selling alcohol. Counsel urged the court to find that PW1 who was the main prosecution witness was lying. Counsel further urged the court to consider that PW1 had admitted having drunk alcohol, and chewed Miraa before he saw the 1st accused strangling the deceased. Counsel urged that it was necessary for the prosecution to adduce reasonable evidence to prove that PW1 was sober enough to comprehend what was happening on the night in question.

19. It was Mr. Wakaba’s submission that with the prosecution case mainly depending on identification by PW1, and the fact that he was a single identifying witness then caution was necessary before convicting the accused persons based on that evidence. Counsel urged that the offence having been committed at night, the conditions enabling identification were critical. Mr. Wakaba urged that the prosecution had failed to adduce evidence to establish the condition of lighting at the scene, how long PW1 had observed the 1st and 3rd accused and from what distance from the light alluded to.

20. Mr. Wakaba submitted that the 1st accused controverted PW1’s testimony that there was electric light in the area on the day in question. Counsel urged that the prosecution failed to controvert the accused defence and as such the court could not tell the nature of the light, its strength, size and position relative to the 1st and 3rd accused persons and PW1. Counsel relied on the case of Wanjohi & 2 Others v Republic Criminal Appeal No. 194 of 1985 to buttress the lighting contention.

21 Mr. Wakaba further urged that there were inconsistencies between the injuries alluded to by PW1 who testified that the deceased was bleeding from the neck, and those of the post mortem which showed that the deceased died of heavy blunt trauma to the head. Counsel urged that the post mortem had made findings of sexual assault on the deceased but no evidence was availed to link the 1st accused to the same.

22. Finally Mr. Wakaba Learned Defence Counsel urged that there lacked evidence to establish a common intention between the three accused persons. Counsel cited Dickson Mwangi Munene & Another v Republic (2014) eKLR and Abdi Alli v Republic 23 (1956) EACA in support of that submission.

23. Learned counsel for the 2nd and 3rd accused Mr. Oduor submitted that from the evidence adduced by the prosecution, it was evident that the 2nd accused had no hand in the death of the deceased. Counsel urged that the only reason the 2nd accused was charged was because he was found having sex with the deceased, a fact he submitted had been watered down by PW1 and PW5 who confirmed that the deceased was already dead by the time the 2nd accused was found. Further counsel urged that the DNA analysis results by PW6 found no culpability on the 2nd accused.

24. Mr. Oduor urged that the evidence of PW1 who was the alleged eye witness, did not mention the 2nd and 3rd accused persons as having had a hand in the murder of the deceased. Counsel further urged that the DNA results adduced in evidence exonerated the 3rd accused from any wrong doing.

25. Mr. Oduor urged that the 3rd accused alibi was not challenged by the prosecution and that the 3rd accused had made it clear that he neither knew the 1st accused nor the deceased before he was charged in court. Counsel urged that the defence of the 1st accused in which he implicated the 3rd accused was not a confession as it was a self-serving statement and that it needed corroboration from other independent evidence. Finally counsel urged that the circumstantial evidence adduced by the prosecution against the 2nd and 3rd accused fell short of meeting the legal standard.

26. The Prosecution did not make any submissions. Having carefully considered all the evidence adduced before court and the submissions by the defence counsels, I find that the issues for determination in this case are:

a)Whether there was positive identification of the accused persons.

b)Whether PW1 was a credible witness.

c)Whether the prosecution adduced evidence of common intention.

d)Whether failure to prove motive is fatal to prosecution case.

e)Whether circumstantial evidence adduced by the prosecution can sustain a conviction

f)Whether the evidence of an accused implicating a co-accused has any weight.

g)Whether accused defence is plausible and reasonable.

27. The accused persons face a charge of murder contrary to section 203 as read with section 204 of the Penal Code which stipulates as follows:

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

28. Section 206 of the Penal Code sets out the circumstances which constitute malice aforethought in the following terms.

“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:

1. An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not,

2. Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

3. An intent to commit a felony;

4. An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

29. The onus and evidential burden lies with the prosecution to prove its case against the accused persons beyond any reasonable doubt. The prosecution must prove that it was the accused persons who by an unlawful act or omission caused the death of the deceased. The prosecution must also equally prove that at the time the accused committed the unlawful act or omission that led to the deceased death, the three accused persons had formed a common intention to either cause death or grievous harm to the deceased.

30. As to whether there was positive identification of the accused persons.The prosecution’s key witness was PW1. His evidence was taken by my predecessor Ombija J as he then was. I therefore did not have the opportunity of gauging PW1’s demeanour. I have however set out in great detail the evidence of this witness. Going by the record PW1 stated that he had known the 1st accused since 1985 when he, PW1 was 11 years old. He therefore knew him very well. PW1 did not however say for how long he had known the 3rd accused. He said he had known the deceased as a worker for the 1st accused for 2 or 3 years. PW1 said that he saw the 1st accused strangling the deceased as the 3rd accused watched and questioned the 1st accused as to what he was doing. More importantly PW1 said that there was light where the 1st and 3rd accused were standing with the deceased.

31. In the case of ABDULLAH BIN WENDO VS. REX 20 EACA 166, the Judges of Appeal emphasized the need for careful scrutiny of the evidence of identification especially by a single witness, before basing any conviction on it. The Court held as follows:

“Subject to certain well known exceptions it is trite law that a fact may be proved by a testimony of a single witness but this rule does not lessen the need for testing with the greatest care; the evidence of a single witness respecting identification especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt from which a Judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can safely be accepted as free from the possibility of error.”

32. PW1 did not describe the nature of the light, its strength and the distance from the source of light to where the three i.e. the 1st and 3rd accused together with the deceased were and where he (PW1) was. That failure to give the distances between all the persons identified and the one identifying from the source of light, makes it difficult for the court to assess whether the light which enabled PW1 to see the assailant and the victim was good to enable a positive identification.

33. There was another issue of great importance. This was the issue of the credibility of the key witness PW1. It was the submission of Mr. Wakaba for the 1st accused that PW1 was not reliable for reason he had admitted that he had taken alcohol, chewed khat or miraa and crowned it all by smoking one roll of cannabis sativa or bhang on the night in question. PW1 in his own evidence gave details of having drunk ½ glass of a traditional brew called “mugacha” and of having chewed miraabefore he witnessed the alleged attack. He also concluded his evidence in chief by admitting that he even smoked a roll of bhang that same night.

34. Even though we have no expert evidence on the effect of taking a concoction of alcohol, miraa and bhang within the same night, each of which are capable of affecting the sobriety of the mind and therefore judgment of the user, I doubt such witness can be treated as one with full control of their senses to enable credible identification. It is my finding that it is doubtful that PW1 was in his correct frame of mind to make a good judgment of what he was seeing on the night in question especially taking into account the difficult circumstances relating to lighting. His evidence standing on its own was not credible and therefore was unreliable to sustain the prosecution case.

35. There was further problem with the evidence adduced by the prosecution. According to the key witness, PW1, he saw the 1st accused strangling the deceased as she bled from the neck. PW1 said that the deceased broke free and ran to 1st accused bar. He added that he followed them and that later he saw the 1st accused and 3rd accused and a covered woman carrying a baggage to a place near the Public Toilet. He said that he later found the 2nd accused having sex with the deceased, who he said was already dead.

36. From PW1’s testimony, the 1st accused strangled the deceased but she did not die. PW1 is clear he did not witness the deceased being murdered. He then formed a conclusion based on conjecture that the baggage he saw the 1st and 3rd accused and a woman carrying away from 1st accused house was the deceased. PW1 is however not clear of the time lapse between the time he saw the deceased dash to 1st accused house and the time he saw the 3 carrying away a baggage.

37. More importantly however is the fact that the cause of death of the deceased was not strangulation but a head injury due to a force trauma. The evidence of PW1 was thus not supported by the post-mortem findings of the deceased body by the pathologist.

38. In such circumstances what was required was other evidence to either corroborate PW1’s evidence and or implicate the accused persons with this offence. I doubt whether corroboration of PW1’s evidence would help at all as he did not say he witnessed the murder of the deceased.

39. There was other evidence that the prosecution adduced. That was the evidence of PW6 the Government Chemist. After carrying out the DNA profiling on the deceased, vaginal swabs and nail clippings from the deceased and the blood and buccal swabs of all three accused persons and the underwear of the 3rd accused. The findings were negative. No spermatozoa was found on vaginal swabs and the underpants of the 3rd accused. Further no DNA of the accused persons was found on the deceased and vice versa. The finding of the Government Chemist does not support PW1’s evidence to the effect the 2nd accused had sex with the deceased’s corpse, and the further allegation he made that the 2nd accused told him that the 1st and 3rd accused had also had sex with the deceased before him.

40. I noted that the Investigating Officer took the underwear of the 3rd accused instead of that of the 2nd accused who was allegedly caught red handed having sex with the deceased corpse. One wonders what that was meant to achieve.

41. I noted from the Pathologist’s findings that there was evidence of sexual assault based on the tear found on the vaginal wall. There was however no evidence to indicate how old the tear was. It is therefore difficult for the court to access whether the injury was caused at the time the deceased was murdered. However since DNA Profile did not aid the prosecution case I leave that line as is.

42. The other issue is that of common intention. The accused are charged jointly of murdering the deceased. The prosecution was required to adduce evidence to show that the accused persons had formed a common intention to cause death or grievous harm to the deceased.

43. Section 21 of the Penal Code defines common intention as arising:-

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

44. The above provision has been on numerous occasions interpreted by the courts. In Solomon Mungai v. Republic [1965] E.A. 363, the court of appeal held that:

“In order for this section to apply, it must be shown that the accused had shared with the other perpetrators of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged.”

45. In Njoroge -Vs- Republic, [1983] KLR 197 at p. 204,the Court of Appeal stated that:-

“If several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder in all who are present whether they actually aided or abetted or not provided that the death was caused by the act of someone of the party in the course of his endeavours to effect the common object of the assembly. The common intention may be inferred from their presence, their actions and the omission of either of them to disassociate himself from the assault.”

46. I find that No evidence alluding to common intention was adduced by the prosecution. PW1 saw the 1st accused strangling the deceased as 3rd accused watched while questioning the 1st accused for his action. That alone negates any proof of common intention between them. The 2nd accused was nowhere near the 1st and 3rd accused and PW1 did not say at any time that he saw the three accused persons together.

47. The other issue was that of circumstantial evidence. The test for circumstantial evidence was correctly set out by Mr. Oduor Learned Counsel for the 2nd and 3rd accused in his submissions. That test was the one set out in the case of Abanga alias Onyango vs. Republic CR A NO.32 of 1990(UR) in the following terms:

a)The circumstances from which an inference of guilt is sought should be drawn and must be cogently and firmly established.

b)The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused person.

c)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.

48. From the evidence, I find that the prosecution has not cogently and firmly established any circumstantial evidence against the accused persons as to justify the drawing of a conclusion that the accused persons murdered the deceased. The inconsistencies and lack of credibility on the part of the main prosecution witness as I have concluded earlier in this judgement all fail to convince the court that an inference of guilt against the accused persons ought to be made. The evidence adduced does not show how the deceased met her death. Neither is it of a definite tendency pointing towards the guilt of any or all the accused persons. The evidence was so disjointed that it is difficult to conclude that the accused committed this offence.

49. The other issue is the weight the evidence of an accused against a co-accused can be given. The 1st accused’s defence was that he saw the 3rd accused leaving with the deceased from his bar. That has been denied by the 3rd accused in his defence who put forward an alibi as his defence. The law is that the statement of an accused person against a co-accused is the weakest form of evidence, especially where it is a self- serving statement exonerating the maker.

50. Regarding accomplice evidence, section 32(I)of theEvidence Actprovides;

“when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other such persons is proved, the Court may take the consideration as against such other person as well as against the person who made the confession”

51. In the case ofNGUKU VERSUS REPUBLIC [1985] KLR 413the Court of Appeal had this to say about accomplice evidence;

“In dealing with the evidence of an accomplice, the court should first of all establish whether the accomplice is a credible witness and thus look for some independent evidence as corroboration connecting the accused person with the offence.”

52. The defence statement by the 1st accused implicating his co-accused the 3rd accused has no evidential value as it was a self-serving statement. In it the 1st accused exonerated himself from the offence. Unless it is supported by other credible evidence, that statement has no evidential value as against the 3rd accused. There was no other evidence supporting the 1st accused defence that the deceased was last seen alive in the company of the 3rd accused.

53. Regarding motive, Section 9 of the Penal Code provides;

9. (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

54. No motive has been alluded to in this case. As the law clearly shows failure to prove motive is not fatal.

55. The burden of proof in this case lies with the prosecution to prove its case against the accused persons beyond any reasonable doubt. The evidence adduced by the prosecution fell short of proving that the accused persons or any of them unlawfully caused any injury to the deceased which resulted in her death. That being the case, the defence of the 1st and 3rd accused denying the offence remains uncontroverted. On the 2nd accused part, no evidence was adduced to implicate him with the deceased death. The evidence of the prosecution was not reliable or credible. It was disjointed and inconclusive.

56. Having I find that the prosecution failed to prove the charge of murder contrary to section 203 of Penal Code against all three accused. Accordingly I give the accused persons the benefit of doubt and acquit all three under section 322 of the Criminal Procedure Code.

DATED AT NAIROBI THIS 11TH DAY OF OCTOBER, 2017.

LESIIT, J

JUDGE