[2022] KEHC 1810 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL CASE NO. 27 OF 2018

REPUBLIC………………………………………........………..PROSECUTION

VERSUS

DAVIS WANYONYI JUMA……………………..……..……..…1ST ACCUSED

DANIEL WANJALA JUMA………………………..…………..2ND ACCUSED

J U D G M E N T

The accused DAVIS WANYONYI JUMA (accused 1) and DANIEL WANJALA JUMA (accused 2)are jointly charged with the offence of murder.

The particulars of the offence are that DAVIS WANYONYI JUMA (accused 1) and DANIEL WANJALA JUMA (accused 2)on the 1st day of September, 2018 at Luucho shopping centre, Sibanga village, Kisiwa sub location of Bungoma Central Sub-county within Bungoma County murdered BONIFACE WABWILE WAFULA.

The prosecution case is that PW2 Tom Wanjala Wangila and the deceased Boniface Wabwile Wafula were cousins. Tom Wanjala the witness had a girlfriend called Esnas. On 1. 9.2018 Tom asked the deceased to accompany him to the home of Esnas ½ km away to see her. They both went and met Esnas who asked the witness to go back and collect her at 9 p.m. At 9 p.m. he and deceased went to the house of Esnas where Tom knocked the window as agreed to indicate his presence.

While still outside waiting for Esnas, 2 people came and started assaulting them. They got hold of deceased. The deceased pleaded with the attackers to spare him. They beat him using sticks and fists. He recognized one of the attacker to be Davis (accused 1). He ran away and informed the mother of the deceased, his sister and one Amos. They came back and found deceased unable to speak. Amos made arrangements for deceased who was taken to hospital where he died while undergoing treatment.

On being cross examined by M/s Natwati for accused he stated that he was 15 years then. He stated that he knew accused 1 to whom they had spoken on phone but had never met him face to face. He stated that they were attacked suddenly as they did not see where the attackers came from.

PW3 Amos Barasa Wanyonyi a boda boda rider was called at 11. 40 p. to go and take the deceased to hospital. He went to the scene where he found deceased lying down on the road. He took him with his relatives to Bungoma County Hospital where he died while in the process of being admitted.

PW4 No. 62187 Senior Segt Bishat Mohamed the Investigating Officer took over the Investigation from a Mr. Maroa who had visited the scene, arrested the two accused and drew sketch plan of the scene. He later visited the scene on 2. 9.2018 but the scene was already interfered with.

PW5 NO. 76856 Copl Joseph Maroa was at Nalondo police station when he received information that Boniface the deceased had been attacked. He visited the scene. Tom (Pw2) gave them the name of the suspect, accused 1. They went to his home and found him present and arrested him. On being interrogated he led them to the house of accused 2 who was also arrested.

On being cross-examined by M/s Natwati, he confirmed that when he visited the scene at 3 a.m. he did not find anybody. He was armed with torches and were shown the body was recovered and appears that he had tried to run away.

PW1 Dr. Nyongesa Kere who performed the post-moterm found that the deceased had bruises on anterior abdominal wall, bleeding under the skull, and that there was massive bleeding in the brain. From the examination, he formed opinion that cause of death was due to critical head injury due to blunt trauma.

The accused were put on their defence and gave sworn evidence in their defence. Accused 2 Davis Wanyonyi Juma testified that he stays with the grandmother, Merceline Masinde. On 1. 9.2018 in the evening he went to the home of his uncle Albert to watch TV at 8 p.m. He was with Daniel and Dorcas Juma and watched football on T.V up to 11 p.m. He then left with accused 2 who also went to his house. He went to sleep and at 5 a.m. he was woken by police officers on allegation of killing the deceased. He was arrested and taken to Bungoma police station. He stated he knew Esna who is the sister of Accused 1 and at material time was at a boarding school.

Accused 2 Daniel Wanjala Juma testified that on the material day at 9 -10 p.m he was at his parent’s house with the father Albert, Mother Dorcas and Davis accused 1. His other sisters Morine and Callen were studying in another room. At 11 p.m. he left with Davis (accused 1) who went to sleep in his home and he (Daniel went to sleep. He slept up to 5 a.m. when police officers came and arrested him. He testified he knows Tom (PW2) but did not know Esnas his sister was Toms girlfriend.

On being cross-examined by M/s Makungu for state, he confirmed on the material day he was with accused 1 until 11 p.m.

The accused called DW3 Albert Juma Masinde the father of accused 2 Daniel and uncle to accused 1 Davis. He testified that on 1. 9.2018 before 9-10 p.m he was with accused 1 and accused 2 watching football on his TV up to 11 p.m when they left. He testified that Esnas is his daughter and was not at home then as she was in Chebukodi boarding school. DW4 Aron Ndengwa Wasike a neighbor of the accused 1 and accused 2 testified that on the material night he did not hear any noise from the home of Albert. He testified that at 5 a.m. he heard noise from the home of Albert when accused were being arrested.

M/s Natwati for the accused 1 and 2 filed written submissions. Counsel submitted that the prosecution is relying on PW2 Tom Wangila Wanjala who stated that he was with the deceased on the material day to establish that it is accused who assaulted the deceased. Counsel submitted that this witness had never met the accused before and that the voice identification he relied on was not credible as a form of identification of the accused. M/s Natwati further submits that the incident occurred at night and there was no evidence of light from which this witness would have seen the accused. Counsel finally submitted that the said Esnas who was alleged to have been a girlfriend of accused 1 and who had invited the accused 1 to go for her was never called as a witness and that the accused were only arrested because the incident occurred near their home.

The accused 1 and 2 are charged with the offence of murder contrary to Section 203 of the Penal Code.

This Section provides:

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

The ingredient of the offence of murder which the prosecution must prove beyond reasonable doubt are:

(a) The fact and cause of death

(b) The unlawful act or omission that caused the injuries that led to the death

(c) That it is accused who caused the unlawful act or omission or inflicted the injuries causing the death

(d) That the accused possessed the requisite intention or malice aforethought

PW1 Dr. Nyongesa Kere who performed the post moterm on the body of deceased found he had bruises on anterior abdominal wall, bleeding under the skull leading to massive bleeding in the brain. He formed opinion that cause of death was due to critical head injury caused by blunt force trauma. He issued Death Certificate NO. 1038983. This witness therefore confirmed the fact of death and cause of death of the deceased Boniface Wabwile Juma.

Who inflicted the blunt force injuries on the deceased from which he died?

The prosecution called five (5) witnesses in this case. PW1 Dr. Nyongesa Kere performed the post-mortem on body of deceased. PW3 Amos Barasa Wanyonyi a boda boda rider was called by Amos Ndombi who asked him to go and take the decased to hospital. He went to the scene at Muchu- Musoko road where he found many people and deceased lying down. He, Amos and Tom took the deceased to hospital where he died while undergoing treatment. He confirmed that when he arrived he found the deceased with injuries. He found the deceased’s mother and sister and neighbours at the scene.

PW5 Copl Joseph Maroawho visited the scene and found deceased had been taken to hospital. They found Tom (PW2) at the scene who informed them that it was accused 1 and accused 2 who had assaulted the deceased. He led them to the home of accused 1 and accused 2 where he arrested them. PW4 Senior Segt Bishat Mohamed took over the Investigation from Copl Maroa and visited the scene on 2. 9.2018 at 3 p.m. but the scene had been disturbed. Witnesses PW1, Dr. Kere, PW3 Amos, PW4 Mohamed and PW5 Maroa did not testify as seeing the person who assaulted the deceased.

PW2 Tom Wanjala Wangila who was with the deceased in his evidence testified:

“I and deceased went to see Esnas who was my girlfriend. We went to her home at Kugucho. It was ½ km away. We reached their gate. She saw us and came. He spoke to us. We agreed I go back at 9 p.m. to get her. At 9 p.m I and deceased went to the Esnas house as we had agreed. I knocked the window as agreed. I heard a person cough and I knew she had heard our presence.

Suddenly 2 people came and started beating us. I and deceased escaped. I entered into a bush and hid. They were able to apprehend the deceased who was following me. I saw accused beat him. Deceased pleaded saying we were not thieves but had come looking for the girl. I knew one of them to be Davis accused 1 who was a cousin of Esnas. He beat him using a stick and fists. I ran home and informed the mother of deceased. Amos, and deceased’s sister. We came to the scene and found deceased unable to speak. Amos called a boda boda rider and we took him to hospital. We took him to Bungoma hospital where he died while undergoing treatment. It is accused 1 and 2 who assaulted the deceased.

Cross examined by Natwati:

At first we met Esnas at 6 p.m. and I then went to deceased’s home. We left at 9 p.m. for Esnas home. At time of incident I was 15 years. I went with deceased to the window where I knocked. In the statement to police I stated the deceased waited as I went to the window. It took less then 2 minutes for the pole to attack us after knocking the window. I did not know where they came from they started assaulting us before we started running away. They came from the front part of the house. We were at the back of the house. I saw them by use of electric light. I know accused 1 and we had spoken on phone. I had not spoken to him face to face but Esnas showed me to him. We can towards same direction but they apprehended him. The homestead had not electric lights. I did not see any group of people come. I heard Esna’s voice outside.”

From the evidence of these witnesses, the incident occurred at night and PW2 Tom confirmed in cross-examination that the homestead where the incident occurred had no electricity lights. He also confirmed that the attack was sudden stating.

Cross examined by Natwati:

At first we met Esnas at 6 p.m. and I then went to deceased’s home. We left at 9 p.m. for Esnas home. At time of incident I was 15 years. I went with deceased to the window where I knocked. In the statement to police I stated the deceased waited as I went to the window. It took less then 2 minutes for the people to attack us after knocking the window. I did not know where they came from they started assaulting us before we started running away. They came from the front part of the house. We were at the back of the house. I saw them by use of electric light. I know accused 1 and we had spoken on phone. I had not spoken to him face to face but Esnas showed me to him. We ran towards same direction but they apprehended him. The homestead had not electric lights. I did not see any group of people come. I heard Esna’s voice outside.”

This witness confirmed that he knew accused 1 as they had spoken on phone but had not met him face to face but had been shown by Esnas. The issue is how did the witness identify accused 1?

He states that he saw him, but it was a person he had not met before and therefore visual recognition was not possible as there was no source of lighting indicated by this witness.

PW2 Tom Wanjala Wangila in his evidence stated that he ran and informed the mother of deceased about the incident. He also informed the deceased’s sister and one Amos who went to the scene. Indeed PW3 Amos Barasa the boda boda rider testified that at the scene he found the deceased mother and sister and neighbours. He together with Tom (PW2) and Amos took the deceased to hospital. The prosecution did not call the mother of the deceased, the sister of the deceased, and even Amos, who was at the scene and called PW3 and accompanied him to hospital. These were all deceased’s relatives who went to the scene and even one accompanying him to hospital. They were all not called as witnesses nor any explanation adduced for their non attendance and in my view their evidence of what transpired at the time they arrived at the scene was crucial.

The only evidence relied on by the prosecution in identifying the accused as the person who inflicted injuries on the deceased is that of PW2 Tom Wangila Wanjala. This is therefore evidence of a single identifying witness. While the testimony of a single witness can be enough to prove a fact, courts urge that evidence of identification must be scrutinized and only accepted and acted upon if the court is satisfied that the identification is positive and free from possibility of error (See Kariuki & 7 others – vs- Republic)

This requires the trial court to consider identification testimony with great care especially when the only evidence identifying the accused as the perpetrator of the offence is from a single witness.

The court in evaluating the credibility of the identification evidence must consider such factors as, the conditions of lighting, the distance before the witness and accused whether he had known the accused before and for how long, the duration of the interaction or observation, whether the accused had any distinctive features and the physical mental and emotional state of the witness at time of observation.

All these requirements are to enable the court to find whether the identification evidence is free of error.

In this case PW2 did not testify that he saw accused 2 Daniel Wanjala Juma at the scene. In his evidence he states that there were 2 people and one of the them was accused 1 Davis. He confirmed in his evidence that he had not met accused 1, and had only spoken to him on phone. He admits that there was no electric light at the homestead and finally that the attack was sudden and he and deceased tried to run away. This evidence taken cumulatively show that the conditions of identification were not conducive for positive and error free identification. I therefore find that PW2 Tom did not positively identify the accused 1 and 2 as the persons who inflicted the injuries on the deceased.

After considering all the evidence, I find the prosecution had not proved he charge of murder against the accused 1 Davis Wanyonyi Juma and accused 2 Daniel Wanjala Juma. Therefore, I find accused 1 Davis Wanyonyi Juma and accused 2 Daniel Wanjala Juma NOT guilty of the offence of murder and acquit accused 1 and 2 accordingly under Section 215 C.P.C. Accused 1 Davis Wanyonyi Juma and accused 2 Daniel Wanjala Juma be set at liberty unless otherwise lawfully detained.

Dated at Bungoma this 2nd day of February, 2022.

S.N RIECHI

JUDGE