[2017] KEHC 9493 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

HIGH COURT CRIMINAL CASE NO. 63 OF 2015

REPUBLIC …………………………………………………………..…PROSECUTOR

VERSUS

CORNELIUS MUTEMI alias DAVID MUTIEMI…..……………...….………..ACCUSED

JUDGMENT

1. The accused CORNELIUS MUTEMI alias DAVID MUTIEMI was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on 7th day of June, 2015 at Mathare area in Starehe Sub County within Nairobi County murdered NEWTON KIMEU NGUTHU.

2. He pleaded not guilty to the said charges and at his trial thereafter the prosecution case was that the deceased who was an AP officer and coming from the same rural area with the accused used to visit and stay with the same in Nairobi from his place of work at Dol Dol in Laikipia County. It was alleged that during one of those visits the accused assaulted the deceased causing him grievous harm from which he died.

3. PW1 LYDIA S KIMEU the deceased wife testified that on 31/5/2015 she received a phone call from the accused who informed her that the deceased wanted to talk to her and upon talking to the deceased he confirmed staying with the accused while on his way to his place of work. On 7th June, 2015 she called the accused who informed her that he had chased away the accused from his place the same having sold his jacket for Kshs.2,500/- and that on 8th June she received a cell phone call from a person who introduced himself as a police officer who informed her that the deceased who had been assaulted wanted money to enable him go back to his rural area. She was thereafter called by the said person and informed that the deceased had been taken to hospital at Mama Lucy where she found him undergoing treatment. Upon inquiry the deceased informed her that he had been assaulted by the accused.

4. PW2 TERESIA NDUKU MAKENDA confirmed that the accused was staying with the deceased and that there was a day she found the deceased at 6. 30 p.m. sleeping on the corridor where they were staying and he told her that he had lost his key. The deceased thereafter left the plot and that she had seen the accused at the plot on the 7th in the morning and that the next time she met the accused was on 8th. PW3 BENJAMIN NGUTHU MUSEE corroborated the evidence of PW1 and stated that when the deceased was taken back home on 9th he told him that the accused had assaulted him using the chain-link of a motor cycle. It was his evidence that the deceased had gone to the accused place to demand for his money which the same owed him and that when he demanded for his money the deceased beat him up and called two people – Mutemi Mwanzia and Wakava to get the deceased out of his house which they declined.

5. PW4 DR PATRICK MUTUKU conducted post mortem examination on the body of the deceased on 24/6/2015 and formed an opinion that the cause of death was severe head injury secondary to a blunt trauma. It was his evidence on cross examination that the deceased liver was enlarged which had nothing to do with the beating but could be caused by excess use of alcohol.

6. PW5 MUTEMI MWANZIA contradicted the evidence of PW3 and denied having met with the deceased. PW6 WINFRED VILITA NGICHU testified that on 12/6/2015, she went to see the deceased and that the same told her that on his way from his leave he had passed through the house of the accused who owed him Kshs.5,000/- and when he demanded his money the accused asked him to give him back his jacket and when he said he did not have the jacket the accused started to beat him up. It was her evidence that he deceased requested her to give him her phone to use to call his brother and when she went for the phone which had been left at home she came back and found the deceased had died.

7. PW7 ONESMUS MAKAUtestified that on 16/6/2015 he received a report that the accused was in his area of jurisdiction and that when he went to his house he found that he was away. He left information that he goes to the station which he did the following day. PW8 SGT. STEVEN KIMELI KAWAMBAItestified that on 8/6/2016 the deceased made a report at AP Camp Mathare that he had been assaulted and needed an assistance since he was an AP Officer. It was his evidence that the deceased informed him that he had been assaulted by his uncle, he took him to the local clinic and on 9th when he went to check on the same was told that he had been transferred to Mama Lucy. It was his evidence that the deceased told him that he had a quarrel with his uncle on some issue at home and that the assault must have occurred between 4-5p.m.

8. It was his evidence that the deceased did not give him the name of his uncle. Under cross examination he stated that he did not record this information in the OB. PW9 INSPECTOR DAVID WAMBUA testified that on 20/6/2015 he received a report from PW3 on the assault on the deceased and subsequent arrest of the accused. He thereafter commenced investigations and recorded statements from the witnesses and that he was unable to establish that the injuries to the de ceased was caused by the accused. In cross examination he stated that he did not recommend that the accused be charged with murder but the ODPP overruled him. He stated that he confirmed that the accused was on duty.

9. When put on his defence the accused stated that he met the deceased in March 2015 having left home while unwell on his way to his place of work and since he was not getting well he decided to take him back home to Kitui. He took him to the bus station and informed his wife since PW1 the deceased wife had left him. He was at home up to 1st of May 2015 when he came back again to Nairobi and stayed with the accused for a further period of two weeks during which he gave him a set of keys to the house. It was his evidence that during this period of time the accused used to be drunk and that on 7th June, the accused went back to his house at 8. 30 a.m. and found the deceased who requested for money and he gave him Kshs.100 and he left the house.

10. On 8th June, 2015 when the accused came from night duty he did not find the deceased at home. At 1. 30 p.m. he went to Gikomba to sell shoes and he received a phone from the wife of the deceased (PW1) who wanted to know where he was since he was required at his place of work and he told her to come to Mathare and see the deceased who was unwell which she declined. On 9th June, 2015 while at his place of work he received another call from one Muteti who wanted to know the whereabouts of the deceased and when he told him that he was staying with him in Mathare, he was informed that he had been found along Juja Road and taken to hospital. On the 10th of June he got information that the deceased had been taken to Mama Lucy and was discharged and taken home. He was on 12th June, 2015 informed by his wife that the deceased had died and when he went home he was subsequently arrested and charged. He denied causing the death of the deceased.

11. DW2 WAMBUA ELAI testified that the accused was on duty with him on 8th June, 2015 from 5. 30 p.m. and left at 6. 00 a.m. he was on duty up to 15th June, when he went to the village and later on called him and told him that he had been arrested.

ANALYSIS AND DETERMINATION

12. To sustain a conviction on a charge of murder, the prosecution must prove beyond any reasonable doubt the following ingredients

a) Fact and cause of death.

b) That the said death was as a result of unlawful act or omission on the part of the accused person.

c) That the unlawful act was committed with malice aforethought.

13. The fact and the cause of death of the deceased is not in doubt. PW2 saw the deceased shortly before he died. PW3 confirmed that the deceased died on 12th June, 2015 on his way to hospital and PW4 DR PATRICK MUTUKU performed post mortem examination on the body of the de ceased and formed an opinion that the cause of death was severe head injury secondary to a blunt trauma.

14. On the issue as to whether the said death was caused by unlawful act or omission on the part of the accused, from the evidence tendered there is no direct evidence pointing out to the fact that the said action was caused by the accused. The only evidence tendered before the court is the hearsay evidence of PW1 the deceased person’s estranged wife who testified that on 7th June, 2015 she called the accused who told her that he had chased the deceased out of his house as a result of a disagreement over the sale of his jacket for Kshs.2,500/-. However this evidence is contradicted in material particular by the evidence of PW2 TERESIA NDUKU MAKENDA who was the accused neighbour whose evidence was that on the said date at 6. 30 p.m. she found the deceased sleeping on the corridor in their plot and upon inquiry he said he had lost his key thereafter he walked outside the gate of the plot never to be seen again.

15. The other evidence connecting the accused to the commission of the offence herein is that of PW3 the deceased father who stated that the deceased informed him that he had been assaulted by the accused with the assistance of PW5 MUTEMI MWANZA but this witness testified on oath and denied having been in Nairobi at the material time and was stood down never to be called by the prosecution to complete his evidence, neither did they call one Kava who was alleged to had been with him. It must further be noted that PW8 SGT. STEPHEN KIMELI KWAMBAIan AP officer who received the first report from the deceased at 22. 00 hrs stated that the same told him that he had been beaten by an uncle as a result of an alleged dispute at home but did not give the name of the said uncle and neither did he record the report on the OB thereby raising doubts on the credibility of this testimony.

16. The other evidence is that of PW6 WINFRED VILITA NGICHU whose evidence was that the deceased told her that the accused had beaten him when he demanded Kshs.5000 the accused owed him and that when she went to get her phone to enable the accused call his brothers he came back to find the same had died and as to whether this amounted to dying declaration, I would agree with the submissions by the accused person that the said evidence is uncorroborated and contradicted by that of PW1 the deceased wife and begs the question as to why if the deceased wanted to give PW6 information on who assaulted him, he would want to give this information to the witness alone while he had allegedly given the same to his father PW3. I therefore find and hold that the same did not meet the test for a dying declaration set out by the Court of Appeal at Mombasa Criminal Appeal No. 29/2015 PHILLIP NZAKA WATU v REPUBLIC [2016] eKLR.

17. I have taken into account the accused defence herein that the deceased who was his friend had stayed with him in March when he fell ill and had helped him go home for treatment which was confirmed by the evidence of PW3 and that the same came back on the 1st of May,2015 and stayed with him up to the 7th of June, 2015 when the same left the plot at 3. 00 p.m. which evidence was corroborated by PW2 and the evidence of DW2 who confirmed that at the time when it is alleged that the deceased was assaulted the accused was with him on duty and further the evidence of PW2 his neighbour who confirmed that she did not hear any quarreling from the house of the accused between 7th and 8th of June and further taken note of the conduct of the accused who when he went home and heard that the police were looking for him voluntarily took himself to the police station and find that the accused conduct was that of an innocent person.

18. The circumstantial evidence relied upon by the prosecution to prove its case against the accused person does not exclusively point to the culpability of the accused person herein to the exclusion of other people and shall accord the accused person the benefit of doubt raised herein.

19. From the analysis of the prosecution evidence I find and hold that the prosecution case against the accused was full of gaps and it is worth to note that the investigating officer in this matter PW9 was un able to establish any connection between the injuries which the deceased sustained and the accused and therefore recommended an inquest which was overruled by the office of the DPP and find and hold that the prosecution has failed to prove beyond reasonable doubt the charge of murder against the accused person and accordingly acquit the same. The accused shall be set free forthwith unless otherwise lawfully held and it is so ordered.

DATED, SIGNED and DELIVERED at Nairobi this 12thday of October, 2017.

…………………………

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Meroka for the State

Mr. Oloo for the Accused

Accused present

Tabitha court clerk