[2019] KEHC 6105 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

CRIMINAL CASE NO. 08 OF 2016

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

=VRS=

1. CHARLES ONDUKO ALIAS BOSO..........................................1ST ACCUSED

2. ATHANAS OGORA ONDUKO ALIAS ANURI.......................2ND ACCUSED

RULING

The accused persons are charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on the night of 13th and 14th April 2014 at Rangenyo Village, Bonyaiguba Sub-location in Nyamaiya Division within Nyamira County in the Republic of Kenya they murdered Cynthia Moke Masaki.

The accused persons pleaded not guilty to the charge whereupon the prosecution proceeded to call five witnesses to prove its case. Throughout the trial the accused persons were represented by Mr. Machage Advocate.

The court heard that the deceased in this case was married to a brother of the accused persons. She however lived at home alone with her children. Her husband lived in Nairobi. The deceased’s sister (Pw1), niece (Pw4), neighbour (Pw6) and her father (Pw5) all testified that the accused persons did not get along with the deceased and they had tried to eject her from their home on several occasions. The deceased’s niece (Pw4) narrated an incident when the two accused persons pelted the deceased’s roof while she was there forcing her and the deceased to flee the house. The deceased’s sister (Pw1) testified that she heard her sister’s house being pelted as she lived nearby and when she went there she found it was the two accused persons that were throwing the stones. Pw6, the deceased’s neighbour and friend, testified that the deceased told her about that incident and that she had reported it. She also told her that the accused persons had set fire to her house. The incident where the deceased’s roof was pelted by the accused persons was reported to the village elder (Pw2). It was Pw2’s testimony that other than this incident the deceased’s relationship with her in-laws was cordial.

The deceased’s sister (Pw1) testified that on the morning of 14th April 2014 one of her nieces (deceased’s daughter) went to her house and informed her that she had tried to call her mother but she would not wake up. She rushed there and opened the door which was locked. She looked at the deceased who was lying on the bed motionless and concluded she was dead. At first she ran out screaming but gathered courage and went back inside this time looking at the body more closely. She noticed that the deceased had a red and white piece of cloth tied over her mouth and around her neck and that her hands and legs were tied at the back with a sisal string. She also had a cut on the head. She went and informed her parents. She recalled going back to the scene and finding a big crowd but could not remember seeing the accused persons. The village elder (Pw2) and the father of the accused persons (Pw3) while confirming that the deceased’s body was found in her house in the state narrated by her sister (Pw1), stated that the accused persons were not at home at the time as they had returned to Nairobi where they eked a living. The deceased’s father (Pw5) however stated that he saw them at the scene when he went there that morning upon learning of the murder.

According to the post mortem report the deceased died as a result of a severe head injury due to assault with a sharp object. The doctor who performed the post mortem noted that the deceased had a deep cut on the right temporal region with a fractured skull and exposed brain tissue.

The investigating officer did not come to testify despite this court granting several adjournments so that he could be called.

Be that as it may this court is satisfied that the deceased was murdered. The state she was in when she was discovered and the post mortem report confirm this was a homicide. The person(s) who did it clearly intended to kill her. They had gagged her and tied her hands and legs giving her no chance to escape. I am satisfied that her death was caused by an unlawful act and with malice aforethought. The only issue for determination is whether that unlawful act was committed by the accused persons because at this stage I am required to determine whether there is evidence that the accused persons committed the offence to warrant this court to put them on their defence – (see Section 306 (1) of the Criminal Procedure Code).

It is my finding that there is no evidence that the accused persons committed this offence. Firstly, there was a fatal contradiction in the evidence of the prosecution regarding the possibility that the accused persons were the perpetrators of this offence. The clan elder (Pw2) and the father of the accused persons (Pw3) were categorical that the accused persons were in Nairobi at the material time. Only the deceased’s father (Pw5) alleges to have seen them at the scene the next morning. The investigating officer’s evidence would have been crucial in determining which of these witnesses was telling the truth. It would have been important for this court to be told where they were arrested and when. The court would then have been in a position to determine whether to believe the clan elder and the father of the accused persons or to believe the father of the deceased.

Secondly, even where evidence against an accused person is circumstantial, as in this case it “must point irresistibly to the accused and in order to justify the inference of guilty on such evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.” – (see Kariuki Karanja Vs. the Republic [1986] KLR 190). That standard of proof is still beyond reasonable doubt and the onus of proof still lies with the prosecution. My finding is that the evidence in this case does not meet the threshold. There is a strong suspicion that the accused persons killed the deceased given their attitude towards her but suspicion no matter how strong cannot sustain a conviction. To put the accused persons on their defence would be tantamount to telling them to prove their innocence thereby shifting the burden of proof to them which is not acceptable. As no reasonable tribunal properly directing itself would convict on such evidence, I find that they have no case to answer and acquit them of the charge under Section 306 (1) of the Criminal Procedure Code. They shall be set at liberty forthwith unless otherwise lawfully held.

Dated, signed and delivered in Nyamira this 4th day of July 2019.

E. N. MAINA

JUDGE