[2017] KEHC 1297 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CRIMINAL CASE NO. 23 OF 2010

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

VERSUS

CHARLES MUIA NDELEVA...................................................1ST ACCUSED

DANIEL MUSYOKA................................................................2ND ACCUSED

JUDGMENT

Charles Muia Ndeleva and Daniel Musyoka, the 1st and 2nd Accused persons herein, were jointly charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code. The particulars of the charge as stated in the information from the Director of Public Prosecutions dated 13th April 2010, are that the 1st and 2nd Accused Persons while at Manooni Sub- location, Kakutha Location of Makueni District within Eastern Province, jointly murdered Elijah Kioko Kimia (herein referred to as the Deceased).The 1st and 2nd Accused persons pleaded not guilty to the offence on 23rd November 2010.

The trial commenced before Asike-Makhinda J. (as he then was) on 5th November 2012, when the learned Judge heard one prosecution witness. The learned judge was subsequently elevated to the Court of Appeal, and the trial then proceeded before Jaden J. on 14th January 2013, who took over its conduct after complying with the provisions of Section 200 of the Criminal Procedure Code and heard four prosecution witnesses. I took over the conduct of trial on 24th February 2016, and after complying with the provisions of Section 200 of the Criminal Procedure Code, I heard one prosecution witness and ordered that the prosecution case be closed after they was not able to avail the remaining witnesses.

The 1st and 2nd Accused Persons were found to have a case to answer in a ruling delivered by this court on 29th March, 2017 and put on their defence. I have read the original record of the trial as well as the typed proceedings of the same and submissions that are on record. The learned counsel for the Accused Persons, B.M Mungata & Company Advocates in this respect filed final written submissions dated 3rd July 2017, while Ms. Rita Rono the learned Prosecution Counsel filed her final submissions dated 1st August 2017.

In my consideration and analysis of the evidence and submissions made, I am guided by the definition of the offence of murder in section 203 of the Penal Code which provides as follows:

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

Therefore in order to establish and to secure a conviction for the offence of murder, the prosecution must prove beyond reasonable doubt the following ingredients;

a) Evidence of the fact and cause of death of the deceased.

b) Evidence that the deceased met his death as the result of an unlawful act or omission on the part of the accused.

c) Evidence that the said unlawful act or omission was committed with malice aforethought.

In order to establish malice aforethought, section 206 of the Penal Code provides that there should be evidence of:

i. Intention to cause death of or grievous harm to any person whether that person is the one who actually died or not.

ii. 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.

iii. Intent to commit a felony.

iv. 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

On the Fact and Cause of Death:

Daniel Nyanzi Kimia (PW2) a brother to the Deceased, found the Deceased’s body on 31st March 2010 at 5. 30 am in the morning, as he went to investigate sounds being made by cows that were on his brother’s land. He then informed Jeaus Muthusi Kisingo (PW5), who was the Assistant Chief of the area, who went to the scene and saw the body. As PW5 was on leave, he informed Titus Mutungi Kaviu (PW3) who was the Assistant Chief on duty, who also came to the scene and saw the deceased’s body.

Joseph Mwaki Kimia (PW1), another brother of the Deceased, testified that he identified the deceased’s body at Makueni District Hospital Mortuary on the morning of 7th April 2010 during the post- mortem undertaken by a Doctor Macharia, a pathologist at Makueni Referral Hospital who had since left for further studies during the hearing of the case. Emmanuel Lopoisha (PW6), a doctor who was working with Dr. Macharia at Makueni Referral Hospital, and who was familiar with his signature and handwriting, produced the post-mortem report which noted that the deceased had internal bleeding on the right side of the brain and dislocation of his neck bone, and found that the cause of death was cardio-respiratory arrest due to spinal and a blunt head injury. The fact and cause of death of the deceased were therefore proved beyond reasonable doubt.

On the Unlawful Acts or Omissions on the part of the 1st and 2nd Accused Persons:

The evidence linking the 1st and 2nd Accused Persons to the deceased’s death is the evidence of Patrick Mwongela Somba (PW 4), who testified that on 30th March 2010 at about 5:30 pm after he came from school, his mother sent him to collect firewood and that is when he saw the Deceased leading his cows home. PW4 stated that the deceased was in a bushy area at a foot path going uphill towards his home, and that he then saw the 1st and 2nd Accused Persons come down the hill, and they held the Deceased who fell down.

PW4 testified that he knew the Deceased’s and the Accused Persons’ homes very well since they were his neighbors. He further testified that he saw the 1st Accused sit on the deceased’s chest and the 2nd Accused was hitting the Deceased, but he could not identify the weapon on the 2nd Accused hands but could see his hand going up and down. PW4 further testified that he was uphill and could see downhill, and that the Deceased did not scream, neither did he (PW4) scream. He said that the struggle went on for 30 minutes after which he saw the two Accused persons carry the Deceased body and throw it down the side of the hill. PW4 went home and did not tell anyone about the incident until the next day, when he told his mother and thereafter explained what had happened to PW3.

The 1st and 2nd Accused Persons in their submission urged that the evidence of PW4 was that of a single identifying witness and was not corroborated, and relied on the decision in R vs Joram Nafula Lutomia & Another (2014) eKLRfor the position that PW4’s evidence was therefore not reliable. It was contended that the Accused persons were also not properly identified as the offence took place at night, and PW4 did not know them by name and only identified them from the dock.

It was also argued that the evidence of the prosecution evidence had inconsistencies, as PW4 could not identify the Accused persons and PW3 stated that there was no signs of a struggle at the scene of the crime. In addition, that the prosecution failed to call the investigating officer as a witness which was fatal to their case, as no evidence was brought of investigations linking the Accused Persons to the offence.

Lastly, the Accused Persons argued that they had raised a concrete defence of alibi which has not been displaced by the prosecution evidence. The 1st Accused Person in this respect gave evidence that he spent the day at his shamba with his wife, went to a function with one Mwake Kimia and then went home. The 2nd Accused Person testified that on the material day he spent the day at his place of work before he went home.

The Prosecution on their part submitted that PW4 knew the Accused persons as neighbors, and relied on the decision in Republic vs Ngumbao Kahindi & Another, (2015) e KLR that evidence of recognition is more satisfactory and more reliable than identification of a stranger. Reliance was also placed on the decision in Karanja vs Republic (1983) KLR 501 for the position that the Accused Persons’ defence of alibi was an afterthought as it was raised during cross-examination of the prosecution witnesses and at an early stage for investigation. Further, that failure to call the investigating officer as a witness was not fatal to the prosecution case as the prosecution discharged its burden of proof under section 107 of the Evidence Act.

I have considered the arguments made by the Accused Persons and Prosecution. The requirements of the law as regards the evidence of a single identifying witness were laid out in in Kiilu & Another vs Republic[2005] 1 KLR 174 by the Court of Appeal as follows:

“Subject to certain well known exceptions, it is trite law that a fact may be proved by 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 probability of error.”

The evidence of a single identifying witness must be therefore be examined with the greatst care to ensure its veracity before a conviction is founded on it as also held in by the Court of Appeal in Maitanyi vs Republic [1986]KLR 198.

When it comes to the evidence of recognition by a single identifying witness, the applicable law is that that evidence of recognition is stronger and more reliable than the visual identification of a stranger because it depends upon some personal knowledge of the assailant in some form or other as stated in the case of Anjononi vS Republic [1980] KLR 59. In Wanjohi & 2 Others vs Republic[1989] KLR 415, the Court of Appeal held that while recognition is stronger than identification but an honest recognition may yet be mistaken, as explained in R vs Turnbull and Others[1976] 3 All ER. 549 as follows:

“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made...

All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of mistaken identification is lessened, but the poorer the quality, the greater the danger.”

In the instant case, the evidence by PW4 was that he saw the 1st and 2nd Accused persons, whom he knew as they were his neighbors, attack the Deceased who he also knew as a neighbor. This was thus a case of recognition, and his evidence is reliable. In addition, PW4 in his testimony stated that the time was 5. 30 pm and that he observed the attack on the Deceased for about thirty minutes from uphill and could see the Accused Persons clearly. There were thus no difficult circumstances to cloud PW4’s observation, as it was during the daytime, and he had sufficient time to see and recognize the Accused Persons.

He named the Accused Persons during his examination in chief, and the argument that he was not able to identify them as a result of a mistake as to the Accused person’s names during cross-examination is in my view not material or fatal, as he clearly recognized them during the attack on the Deceased and knew them as his neighbors before the attack on the deceased. I therefore find that the quality of PW4’s evidence as to his recognition of the Accused Persons was sufficient and reliable.

The evidence of PW4 was also corroborated by that of PW2 who stated that he found the body of the Deceased at their family land next to the Deceased’s homestead, and that his cows were next to the body, which corroborates the account by PW4 that he saw the Deceased walking his cows uphill to his home.

In addition the evidence by PW6 of the cause of death being cardio-respiratory arrest due to spinal and blunt head injury are consistent with the testimony by PW4 that the Accused Persons threw the Deceased on the side of the hill. Lastly, PW3 also testified that he was given an account of the Accused Persons attack of the Deceased by PW4 leading to their arrest, which corroborates the testimony of PW4 that he did explain the attack and point out the scene to PW3.

The Accused Persons raised a defence of alibi to discount the evidence of PW4. The Court of Appeal rendered itself thus on the issue of alibi case of Victor Mwendwa Mulinge vs R, [2014] eKLR

“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see KARANJA V R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for Investigation and thereby prevent any suggestion that the defence was an afterthought.”

In the present case, as the defence of alibi was raised quite late in the day, and the prosecution did not have the opportunity nor apply to test it, the question before this Court is whether the alibi defence raises a reasonable doubt in the prosecution case. The 1st Accused’s account of the day the Deceased was killed was that he first went to his farm to weed his crops, then went home and took two trips to the market to sell maize before he left for a meeting at one Kimilu’s house. He then left the meeting at 6:30 pm, went to a hotel where he had left his bicycle and left for his house. Other than leaving the meeting at Kimilu’s house at 6. 30pm, there are no times indicated for the other activities, and it not evident what he was doing between 5. 30pm and 6. 00pm when the attack on the deceased took place.

The 2nd Accused on his part stated that he left work as around 5. 30 pm and went home, which was the same locality as that of the attack on the Deceased. It is thus my finding that the evidence of alibi did not dislodge the prosecution evidence as to the 1st and 2nd Accused Persons being at the scene of the crime and their attack on the Deceased

On malice aforethought:

PW1, PW2, and PW3 in their testimony all stated that the Accused Persons were nephews of the Deceased, and that there was a land dispute between the family members over subdivision of the family land, and that the deceased was the one spearheading the sub-division. This was evidence of the Accused Persons’ motive, and the acts of the Accused Persons of throwing the Deceased down the hill was also sufficient evidence of their intention to kill the Deceased.

Consequently, I do find that that the prosecution has established its case against the 1st and 2nd Accused Persons beyond any reasonable doubt. I accordingly find the 1st and 2nd Accused persons guilty of the offence of murder and accordingly convict them of the offence under the provisions of Section 215 of the Criminal Procedure Code.

Orders accordingly.

DATED AND SIGNED AT MACHAKOS THIS 10TH DAY OF OCTOBER 2017.

P. NYAMWEYA

JUDGE