[2017] KEHC 1946 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL CASE NO.36 OF 2010

REPUBLIC………..………………………..PROSECUTOR

VERSUS

CLEMENT WAFULA KISAKA………………….ACCUSED

JUDGEMENT

1. The accused herein Clement Wafula Kisaka is faced with a charge of murder contrary to Section 203 as read with 204 of the Penal Code. The particulars of the offence are that on the night of 30th September and 1st October 2010 at Miyenga village within Bungoma County he murdered Fred Kundu.

2. The Prosecution case in brief is that the accused and two others had been summoned by the assistant Chief over a complaint of assault that had been made by the deceased on 30th September 2010. The Parties held discussions where the 3 agreed to compensate the deceased, however the following day the deceased was found murdered near a church along a path between his house and that of the accused. On the morning of the murder the Accused was indifferent to the incident but later in the evening he surrendered to his area village elder who handed him to the police the following day. On his arrest the accused took the police to where he had hidden the murder weapon and bloody clothes after which he made a confession leading to his being charged with the offence.

3. A total of 10 witnesses were called by the Prosecution and their evidence is summarized as follows;

PW1 Fedilus Nekesa Kundu recalled that on 30th September, 2010, her husband left home at about 8 a.m. for the Chief’s Office to report an assault by Tobias, Erick and the accused as he had a broken hand, however he did not return home. The following morning her neighbour Alice Nanjala went to her house and relayed to her the news of her husband’s death. She went to the scene and found him dead. His neck had been severed and he also had two injuries. She suspected her husband’s assailants mentioned earlier to have been behind the murder.

4. PW2 Protus Juma Wafulaan assistant Chief recalled receiving a complaint from the deceased over an assault on 25/9/2010 where the deceased wanted reconciliation with those who had assaulted him. He summoned the Parties on 30th September, 2010 where an agreement was arrived at. The assailants were to compensate the deceased. The following day at 6a.m. he received a call from a lady who informed him of a death near Syombe church, he inturn informed the Chief of the incident. At about 10a.m. he received a call from the village elder who informed him that the dead person was Fred Kundu. He went to the scene, he found the Police already at the scene. He accompanied the Police to the accused house where they came across wet clothes. Later that night he received a call from the village elder that the accused had surrendered and wanted to talk with him as the accused feared for his life. He assured the accused of his safety, he did not meet the accused until the following day when he and the village elder escorted him to the Kimwanga AP Camp.

5. PW3 Ignatius Wekesaconfirmed PW2’s evidence as regards the assault and the discovery of the deceased body.

6. PW5 Irene Wafulatestified that on 30/9/2010 deceased visited her house from 4p.m. to 8p.m. and found others who were drinking chang’aa. She sold chang’aa. That the deceased was drunk, asked for a walking stick and left by 8p.m. She did not see the accused on that day as he did not drink at her place.

7. PW6 Fredrick Kisakais the accused father. He recalled seeing his son on the 1st of October 2010 at 7. 30a.m. carrying a jembe coming from the shamba. Later at about 8. 30 a.m. he learnt of a death he accompanied his neighbours to the scene where he found his neighbour Fredrick Kundu Sudani’s body. On returning home he found his son washing clothes and enquired why his son was indifferent to their neighbours death but his son was quiet. Later the Police went looking for his son and on missing the son they arrested him. After the son was arrested he questioned the son over the neighbour’s death and his son admitted to him that he had killed the deceased. The witness denied being a witness as his son wrote his statement.

8. PW8 C.I. Stanley Wanyoikeformerly Deputy O.C.S. Malakisi and the investigating Officer in the case recalled receiving a call from the Chief of Syombe regarding a dead body by the road side. He arrived at the scene but the body had been moved to Bungoma hospital mortuary. He visited the area and noticed a freshly dug area near the deceased shamba and signs of struggle, and there were signs of fresh blood. They went to the accused house but did not find him at home. At the house they found a wet trouser blood stained and another dry one also with blood stains. The accused father who was present gave them a jembe which had just been used. The jembe and the trousers were given to the DCIO for tests. He then left to the mortuary to view the body of the deceased; the deceased neck had been chopped off and had disengaged with only the skin left holding onto the rest of the body. Later they arrested 3 people who were said to have disagreed with the deceased, they were Tobias Wekesa, Eric Nyongesa and the accused. They interrogated the three and the accused admitted to having killed the deceased. The accused took the witness and others. He also took across their home where he had kept a polythene bag, a pair of wet blood stained shorts, he told them that he had used the polythene bag to cover the head of the deceased to avoid blood dripping, from the scene of murder to where he had moved the body to. He also took the Officers to his house and on the door he removed a blood stained hacksaw with pieces of bones on it and told them that he had used the same to slaughter the deceased. They took the items as exhibits. Further on returning to Malakisi Police station the accused agreed to record a confession which was taken by Chief Inspector Julius Mbali. The witness further informed the Court that after the deceased post mortem samples of blood were taken to assist with investigations.

9. PW9 Dr. Raymond Dambaof Bungoma referral hospital produced the post mortem report on behalf of a colleague Dr. Olanga. Findings were on the report were;

External observation

Severe generalized palor

Multiple bruises on the left limp.

Deep cut wound on the neck

Blood stains on the nostrils

Sublaxation of the Right shoulder

Cut on the right ear lob

Fracture of the skull

Brain matter oozing out

Internally

Trachea transacted as well as blood vessels

Haemorrage on head

Opinion formed

Cardiopulmonary arrest secondary to bleeding due to cut in the main blood vessels

10. PW10 Inspector David Kamau previously of Kimaiti Police patrol base recalled receiving a call from Deputy OCS Inspector Wanyoike on 1/10/2010 regarding a dead body at Syombe village near the railway. He proceeded to the scene with one P.C. Shadrack Amani. On arrival they found a crowd next to the body of a half-naked male of about 50 years. He checked the body closely and noted the body was lying on its stomach, had cuts on both right and left side, the neck was completely severed, and no signs of struggle or blood stains at the scene. He noticed footsteps leading East of the scene. They followed the footsteps to Munyenga village, the passed the home of the deceased upto a path between the deceased and the accused house to a place that had been cultivated. He enquired and the accused father who was present told them that the accused had cultivated the area. A lady present also confirmed the same. He also noted that the dug area was end of the footsteps and there were blood stains around. Notable also was that other than the area dug the rest of the shamba was not cultivated.

The witness suspected the accused and investigated his last steps and learnt that he had been with the deceased and 2 others at the Chief’s due to an assault incident. He also learnt that after the Chief’s visit the deceased went to a drinking place, left at 7. 30p.m. and did he reach his home. The witness then went to the accused home and did not find him. He saw wet clothes that had been washed 3 trousers and a jumper, and a jembe. He arrested 3 people including the accused father.

Later he received a call from the area sub-chief that the accused had surrendered. On the 2nd of October, 2010 he went to the sub-chief’s, arrested the accused and took him to Malakisi Police Station. On 4th October 2010, together Inspector Wanyoike and other Officers from Kimaiti, they accompanied the accused to his house. The Accused took them to a bush where he had hidden a paper bag. He then led them to his house where he produced a hacksaw from a grass thatched roof. The accused told them that he had used the paper bag to cover the head of the deceased to avoid bleeding. A short was recovered with the paper bag.

11. PW11 Superintendent of Police Julius Mbati previously D.C.I.O. Bungoma, then a Chief Inspector recalled taking down a confession from a murder suspect on 4th of October, 2010 who had been referred to him by Inspector Wanyoike. It was his testimony It was his testimony that he informed the suspect of his rights including the right to confess in the presence of Counsel or a person of his choice and the suspect chose to make a confession in the presence of his father Edwin Kisaka Khaemba, who joined them to the end of the confession. The witness made a confession as follows;

He gave his name and age as being 20 years. 8th child of his father. He was a cyclist (boda boda). That on 14th September, 2010 the deceased had torched his house arising from an altercation between the deceased and his wife which had angered the villagers who beat up the deceased. That he was among those who beat up the deceased alongside Tobias and Eric. That later the accused who was arrested due to the incident was released to allow an out of Court settlement. The deceased was issued with a P3 form and reported to the area Chief who summoned them, negotiations were entered into and the three were to pay the deceased damages. The accused was to pay Kshs.4,000/-; Eric Kshs.4,500/- and Tobias Kshs.5,000/-.

Later in the evening the accused met the deceased at a shopping centre and the deceased teased him telling him that the deceased is a tough man who will ensure the accused works and pays him until he gets poor. That this angered the accused and later the same day at around 8. 30p.m. he heard the deceased walking near his house singing and appeared drunk, he went out confirmed that it was the deceased he then picked a jembe and a hacksaw and left his house ready to kill the deceased. He walked behind the deceased who noticed him, he asked the deceased to have his last prayer; hit him with the jembe; the deceased fell unconscious and he then used the hacksaw to cut the deceased neck. He then left the deceased to bleed and returned after an hour with a blue nylon bag and tied the deceased head to stop bleeding. He then took the body across the river and dumped it near the church. Later he went to the scene with the jembe and dug so that blood would not be visible. In the morning he went to Mianga village to watch a football match and on returning home in the evening he learnt that the Police and members of the public had looked for him and he opted to surrender to the village elder where he spent the night. The following day the area sub-chief escorted him to the AP post where he was collected and taken to Malakisi Police station.

He further confessed that on 2nd October, 2010 he was escorted to his house where a hacksaw and a trouser were picked. The confession was signed the 4th of October, 2010 by the accused and Edwin Kisaku Khaemba and a certificate signed by the witness.

In cross examination by the defence Counsel the witness denied that the accused was forced to make the confession and maintained that it was taken voluntarily.

12. PW12 Susan Ngugi an analyst from the Government Chemist produced a report dated 15th May, 2017. The report indicated that the Government Chemist received the following items from P.C. Aden Mohammed of Malakisi Police station;

A – blood sample of deceased Fred Kundu marked A

B – Black short trouser with stripes in a khaki envelope marked B said to be of accused Clement Wanjala.

C– A hacksaw (in a khaki envelope) marked C

D – A torn blue polythene paper marked D

The request was to examine the items to determine the presence of blood and their relationship.

The report indicated that;

1. The short trouser & Polythene paper items b & d were moderately stained with human blood.

2. Item C was not blood stained

3. Items B & A had been profiles generated.

Opinion given was;

1. DNA profile generated from item A matched the blood stains on the short said to belong to accused.

2. A mixed DNA profile was generated on blood stains on item D polythene paper. The mixed blood was from the deceased and the other unknown origin.

On cross examination as to whether the exhibits released to the chemist on 18th November 2010 and examined on 27th April 2017 had been contaminated the witness stated that they were well preserved.

13. The accused at the end of the Prosecution Case was found to have a case to answer and was placed on his defence. He gave a sworn statement and stated that he knew the deceased who had bought a farm from them. He recalled that he woke up on 1st October, 2010 and cultivated sugar cane before leaving for Bungoma. He returned at 7p.m. and learnt from an aunt that the sub-chief had looked for him, and from his house had taken a bicycle, 4 trousers and had his father arrested. The following morning he went to the Kimanga AP post to make enquiries where the sub-chief and the Police accused him of disturbing his father, as he did not want his father to sell land, he was arrested and taken to Malakisi Police Station where he was beaten and made to sign papers, that he only learnt of the charges, now facing him on 25th October, 2010; the charges are fabrication, he did not beat the deceased nor agree to compensate him. He had no disagreement with the deceased save an issue of boundary as the deceased kept extending his boundary.

It was his further testimony that he cultivated land with his father and had not seen any blood. That the jembe produced as exhibit was his father’s jembe.

Further that he last saw the deceased on 31/9/2010 as they met at the Chief’s to resolve a boundary issue. He denied being the owner of the shorts and polythene bag produced as exhibits he also denied taking the police to his house, or making a confession; he does not speak Kiswahili the language on the confession, the said confession is a lie. Further the case is a fabrication as he has had issues with his father who has been selling their land since his mother died. The accused on being questioned by the Court stated that he went to school up to class 8 level, and works for a white Missionary in Kanduyi.

14. At the close of the case both parties filed their submissions which may be summarized as follows;

Prosecution

The Prosecution proved its case.

A confession was produced through PW12 which gave an elaborate account of how the accused committed the offence.

All laid down rules regarding confessions were followed and the same is therefore admissible in evidence. The post-mortem did corroborate death and the cause of death is intendem with the confession. PW2, PW3 & PW7 were present when an issue arose between the deceased and the accused on 30th September, 2010 when an amicable solution was found, which did not go well with the accused prompting him to murder the deceased. That PW10 gave a report of the events which tally with the confession, and therefore the Prosecution proved that the accused intentionally and unlawfully caused the death of the deceased.

15. On its part the defence submitted that the Prosecution failed to prove its case; in that the Prosecution failed to place the accused at the scene of murder, there were no eye witnesses and the circumstantial evidence relied upon by the Prosecution was not water tight.

Further there were several inconsistencies in the prosecution case for instance the polythene bag produced as exhibit was given different colours by the witnesses and whether the accused was drinking with the deceased on 30/9/2010 or not.

As to the confession it was argued that the same was obtained through duress and in a language the accused did not understand as it was recorded in Kiswahili. Further the accused was not linked to the murder as the alleged killer weapon had no blood stains as alleged.

16. In a murder trial three ingredients must be established for the charge to be sustained. Firstly the fact of death must be established, secondly the act or omission leading to the death must be linked to the accused and thirdly there has to be established that the act or omission was committed with malice aforethought.

17. The evidence of PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW9 and PW10; as PW1 the wife to the deceased PW2 – PW7 neighbours of the deceased PW9 the Doctor and PW10 a Police Officer, confirmed the death of the deceased one Fred Kundu who died between the night of 30th September, 2010 and 1st October, 2010. The main injuries as stated by PW9 were severe parlor, severe cut on the neck and blood vessels, fracture of the skull and brain matter oozing. He gave cause of death as cardiopulmonary arrest secondary to bleeding due to cut in the main blood vessels.

18. As submitted by the defence there was no direct evidence and the Prosecution have relied on both circumstantial evidence and the confession produced by the Prosecution in proving its case.

19. For evidence based on circumstantial evidence to succeed 3 tests must be established.

In the case ofAbanga alias Onyango Vs R Criminal Appeal No.32 of 1990 (UR) the Court of Appeal stated;

“It is settled Law that when a case entirely rests 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 cogent 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”

In Musili Tulo Vs Republic CR.A. No.30 of 2013The Court of Appeal stated;

“Circumstantial evidence is as good as any evidence if it is properly evaluated and, as is usually put, it can prove a case with the accuracy of mathematics.”

20. As for the evidence in a confession Section 25A(1) of the Evidence Act as Amended by Act No.5 of 2003 and Act No.7 of 2007 and 19 of 2014 provides;

“(1) A confession or any admission of a fact tending to the proof of guilty made by an accused person is not admissible and shall not be proved as against such person unless it is made in Court before a Judge, a Magistrate or before a Police Officer (other than the investigating Officer), being an Officer not below the rank of Inspector of Police, and a third party of the person’s choice”.

21. Further, The Evidence Act (out of Court confession) Rules 2009 spells out the rights of an accused person where the accused chooses to make a confession; the accused ought to state his preferred language of communication, if he speaks neither Kiswahili or English he is given an interpreter, he is not to be subjected to any form of coercion, duress, threat, torture or any form of cruel, inhuman or degrading treatment, he is to be informed of his right to legal representation, ought not to be depresses of food or sleep, ought to have his medical complain adequately addressed and has to have had communication with the third party and the accused has to be cautioned as well.

22. I will start by analysing the circumstantial evidence relied upon. The Prosecution in their case have laid down evidence that the accused and two others assaulted the deceased and the three in a settlement out of Court were to compensate the deceased and this did not go down well with the accused who that night after the settlement accosted the deceased who was drunk, hit him and butchered him to death, tried to conceal blood, hid the blood stained clothes and the murder weapon, however his action after the act gave him away, foot-steps from the scene where body of the deceased was found led to the scene of Crime which was between the deceased and the accused house, where soil had been dug up to conceal fresh blood, blood stains were noted in the surrounding area, the Police in the presence of accused father and members of public traced blood stains to the accused house, found wet and blood stained clothes prompting the arrest of Tobias, Eric and the accused father The accused surrendered himself, led the Police to his house, and in a nearby bush pointed to a polythene bag with blood stained pair of shorts, on top of his thatched roof he produced a hacksaw which was blood stained and had bones on it. The accused mother PW4 and his father PW6 had seen their son dug his shamba the morning the deceased body was discovered.

The accused surrendered.

23. Although the defence argue that there are contradictions in the circumstantial evidence, I find the contradictions to be negligible and do not go to the cogent and consistent Evidence adduced by the Prosecution. The circumstantial Evidence in my view is so consistent, precise and if I may borrow the words of the Court of Appeal in Musili into case, when evaluated it flows with mathematic precision. The facts and circumstances as laid down by the Prosecution when pierced together are so complete as to draw no other inference but that the author of the deceased death is no one else but the accused.

24. In my view one circumstantial Evidence alone is adequate to lead to a conviction however the Evidence is fortified by the confession by the accused.

25. Before analyzing the evidence of PW10 I must take Judicial notice that all along the accused maintained that he did not speak either Kiswahili or English indeed the entire hearing was translated from English to Kiswahili, he played ignorant and uneducated. However after his defence on being interrogated by the Court he gave his level of Education as Class 8 he also indicated that he worked for a white missionary. His father and mother both spoke unspeakable Kiswahili while giving evidence.

26. The confession was written in Kiswahili in the presence of the accused father and the accused having been informed of all his rights although the defence Case is that the accused does not speak Kiswahili and he did make the confession the accused in my view gave the confession and in Kiswahili a language he understands. He faked to be ignorant, uneducated, not able to speak English or Kiswahili so as to defeat the confession he made.

27. In my considered opinion the Chief Inspector of Police PW10 had no reason to fabricate the confession, the same is detailed and in line with the Evidence adduced by other witnesses that it cannot by any stretch of imagination be a fabrication.

The confession fortifies and corroborates the already strong Prosecution case. It meets the requirements of the Law and is certainly admissible.

28. All in all I find that the Prosecution has proved beyond any shadow of doubt that the Accused is guilty of the offence of murder contrary to Section 203 as read with Section 204 both of the Penal Code and I consequently convict him of the offence of murder as charged.

DATED and DELIVERED at BUNGOMA this 2nd day of November, 2017

ALI ARONI

JUDGE