[2017] KEHC 3566 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

CRIMINAL CASE NO. 21 OF 2016

BETWEEN

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

AND

CHARLES OBONYO ATINGA ………………..………………............................. ACCUSED

JUDGMENT

1. CHARLES OBONYO ATINGA (“the accused”) was charged with the offence of murder contrary to section 203 as read together with section 204of the Penal Code (Chapter 63 of the Laws of Kenya).The particulars of the offence are that on 13th May 2016 at East Reru Sub-location, Seme District within Kisumu County he murdered JOSEPHINE ACHIENG OBONYO(“the deceased”). After the accused denied the charge, the prosecution marshalled 7 witnesses while the accused made an unsworn statement and called one witness.

2. On the evening of 13th May 2016 both David Ochieng’ Obonyo (PW 1) and Nicholas Otieno Adiemo (PW 2) had just returned home from their respective places of work when they heard screams coming from the accused’s home. They rushed there and found people gathered. When they went into the accused’s house, they found the deceased lying on the floor in the accused’s bedroom.

3. PW 1 told the court that the deceased head was under the accused’s bed. He also noted injuries at the back of the head. PW 2 recalled that he saw a cut wound on the deceased’s head. The accused, who was present, told them to accompany him to the police station. In cross-examination, PW 2 stated that the accused told him that he had left the deceased cleaning utensils as he went to the shamba and when he returned he found the deceased had died.

4. PC Joseph Kitur (PW 3) of Kombewa Police Station recalled that on 13th May 2016 at about 11. 35pm, he was called by his Commanding Officer and told to proceed to Reru Patrol Base where a murder had been reported. He proceeded there with Corporal Piorencio Nyagah (PW 4) where they found PW 1, PW 2 and the accused in the company of other people who had come to report the incident. They all then proceeded to the accused’s home.

5. PW 4 testified that he found the deceased’s body lying in a pool of blood. Her neck had been cut with a blunt object on the left side. The officer carried out a search in the house and recovered a blood stained panga which he produced in evidence. PW 4, who was also the investigating officer, arranged for the deceased’s body to be taken to Kisumu East District Hospital for a post mortem examination. PW 4 also recovered a pair of blood stained trousers and underpants which he forwarded to the Government Chemist for examination.

6. A Government Analyst from the Government Chemist, Richard Kimutai Langat (PW 6) confirmed that he received the Exhibit Memo Form from PW 4 forwarding the following items to determine the genetic relations;

1. Blood stained panga (A)

2. Accused blood stained trouser (B)

3. Deceased blood (C)

4. Vaginal Swab from the deceased (D)

5. Accused’s blood sample (E)

6. Accused’s underpant (‘pyjama’) (G)

PW 6 generated DNA profiles from the items and prepared a report dated 20th June 2016 which recorded the following findings. The DNA profile generated from the panga (A), the vaginal swab (D) matched that of the deceased while the blood stained on the underpant matched the accused profile while the trouser and had both the accused’s and deceased’s DNA profile.

7. The autopsy of the deceased’s body was conducted by Dr Omondi. The post mortem form he prepared was produced by Dr Kevin Omondi Ochieng (PW 7) under the provisions of section 77 of the Evidence Act (Chapter 80 of the Laws of Kenya). Dr Omondi noted that the deceased had a deep cut wound on the left shoulder region approximately 8 X 5 cm deep resulting in a fracture on the left scapula region. There was a deep cut on the left neck region which, upon internal examination, revealed that the major blood vessels of the neck had been severed and the spinal cord cut. He concluded that the cause of death with cardio-respiratory failure secondary to severed spinal cord.

8. In his unsworn statement, the accused denied that he murdered the deceased. He told the court that on the material day, as he was leaving home at about 5. 00pm, the deceased, who was his step daughter came to wash utensils. When he returned at about 6. 30pm, he found the deceased lying under the bed. He initially thought that she was sick but when he touched her he found that she had a cut on the neck. He raised alarm whereupon his cousins came and they went to report the matter to the police.

9. The accused’s cousin, Silvance Okumu Atinga (DW 2) testified that on the material evening as he was coming home from work, he passed the accused, who was in his shamba at about 6. 00pm. While in his house, he heard some noise and commotion coming from the accused’s house but he did not go there. He only went to the accused’s home after people had left.

10. To prove murder, the prosecution must establish three key ingredients beyond reasonable doubt: first, the prosecution must prove the death of the deceased and the cause of that death; second, that the accused committed the unlawful act that led to the death; and third, that the accused committed the unlawful act with malice aforethought.

11. There is no dispute that the deceased was killed and that she died as a result of a vicious cut wound injury inflicted on her neck resulting is severing of the major blood vessels of the neck and the cervical spine leading to her death. The key issue in this matter is whether the accused killed the deceased. The prosecution did not lead any direct evidence implicating the accused hence the only evidence against him is circumstantial. Counsel for the accused, Mr Mwesigwa, cited the case of Abanga alias Onyango v RepublicCA CR. A NO.32 of 1990 (UR), where the Court of Appeal set out the principles which should be applied in order to test circumstantial evidence as follows:

It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) 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 and none else.

12. In order to establish the accused’s culpability, the prosecution relied on several strands of evidence. First, that the accused was at the locus in quo at the time the felonious act was committed. Second, that the deceased and the murder weapon were found in the accused’s house. Third, the accused’s clothing which contained the deceased’s blood stains as confirmed by the DNA report were found in his house. I must therefore, examine this evidence in light on the principles I have set out above.

13. The key evidence that puts the accused in the house with the deceased, is the blood on his clothes; the underpants and pair of trousers found in his house. The accused did not deny or disclaim these items as his and since they are personal items of clothing, he shouldered the evidential burden to provide a reasonable explanation how the deceased’s blood was found on his clothing. Section 111(1) of the Evidence Act (Chapter 80 of the Laws of Kenya) which casts the evidential burden on the accused, in certain instances, provides as follows:-

111. (1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:

Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:

Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.

14. Where the accused fails to offer any reasonable explanation as to how the deceased’s blood came to be found on his clothes, the court is entitled to presume certain facts under section 119 of the Evidence Act which states as follows: -

The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

15. Counsel for the accused, in his submissions, suggested that the deceased could have come into contact with the blood while grieving for the deceased. In his unsworn statement the accused told the court that he came into the house and touched the deceased and when he discovered she was dead, he continued crying until his nephews arrived. It is worth noting that the clothes that the accused was arrested in were not the ones on which had the deceased’s blood stains. He could not explain why his blood stained clothes were in his house.

16. The only explanation or inference for this state of affairs is that the accused assaulted the accused with the panga, which was also found in his house, and in the course of the assault, the deceased’s blood spilled on his clothes. In order to cover up the incident, he removed his clothes, wore fresh clothes and waited for his nephews to come and take him to the police to report that his step daughter had been murdered.

17. In determining the question of malice aforethought, the court is entitled to consider factors such as the part of the body that was targeted, the type of weapon used, if any, and the type of injuries inflicted upon the deceased (see Rex v Tubere s/o Ochen [1945] 12 EACA 63). The accused assaulted the deceased with a panga on the head. The blow was so vicious that it severed her jagular vein, cut the spinal cord and fractured the base of the skull. This assault and the injury are consistent with the unlawful killing of the deceased actuated by malice aforethought within the meaning of section 206(a) of the Penal Code as they were clearly intended to cause grievous harm or death.

18. I therefore find CHARLES OBONYO ATINGAguilty of the murder of JOSEPHINE ACHIENG OBONYOand I convict him accordingly.

DATED and DELIVERED at KISUMU this 18th day of September 2017.

D.S. MAJANJA

JUDGE

Mr Mwesigwa, Advocate for the accused.

Ms Osoro, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions, for the State.