[2020] KEHC 1364 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CRIMINAL CASE NO. 23 OF 2019

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

VERSUS

DENNIS OUMA ABWIRE.......................................................................1ST ACCUSED

KENNEDY BARASA...............................................................................2ND ACCUSED

JUDGMENT

1. Dennis Ouma Abwire and Kennedy Barasa are charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on the 20th day of August 2019, at Mundika area, Matayos sub-county within Busia County,they murdered Peter Njuguna Gitau.

3. On 20th August at about 11 p.m. the deceased was beaten by a mob of about forty people. It was alleged that he was in the habit of failing to remit proceeds of sale after he had been given some goods to sell. The prosecution contended that the accused persons were part of the mob.

4. Each accused pleaded an alibi and denied any involvement in the offence.

5. The issues for determination are:

a) Whether any of the accused or both were part of the mob that fatally beat the deceased;

b) Whether the alibi defence of the accused is plausible; and

c) Whether the offence of murder was proved against any one of them.

6. At about 11 p.m. Peter Maina Wagura (PW1) reached Mundika area. He was driving from Kisumu to Busia. He found a stationary lorry off the road and there was a crowd of between thirty and forty people who were beating a man. On checking he realized it was the deceased, a man he knew. When he enquired what the matter was, he was told he had failed to remit proceeds of some goods he had been given to sell. When he pleaded with them for the deceased, he was told that they were only disciplining him. He was ordered to drive on. He complied. He did not recognize anyone from the crowd.

7. Samuel Kimani Gitau (PW2) is the brother of the deceased. After Peter Maina Wagura (PW1) had informed him via telephone what had befell the deceased, he went to the scene. He only found pieces of broken sticks. His brother had been taken to hospital. He proceeded to Tanaka hospital where he was informed that the deceased had been taken. He found him at the consultation room. The deceased told him that he had been attacked by thugs and did not mention anybody.

8. From the evidence of these two witnesses, it is clear that nobody placed the two accused persons at the scene. The prosecution contention that the deceased and the accused persons knew each other and had differed on some business was not supported by any evidence. If the deceased knew the accused persons, he could have mentioned their names to his brother. I therefore find that the prosecution did not adduce any evidence to place either of the accused at the scene of the murder at the time the deceased was being beaten.

9. The evidence of PC Jackson Mbithi (PW4) who was the investigating officer in this case tended to link the accused persons to the offence through what he alleged Lucy Syokau told him. According to Lucy, the accused persons assisted her to ferry bhang from Busia. The deceased who was assisting her to get a vehicle to ferry the consignment of bhang to Nairobi, differed with the accused persons over some earlier proceeds of sale which the deceased had failed to remit. This is inadmissible hearsay.

10. Lucy Syokau was not called as a witness and yet what she purportedly told the investigating officer that she was present during the scuffle. We were not told why she was not called. The Court of Appeal in the case of Bukenya vs. Uganda [1972] EA 549,(Lutta Ag. Vice President) held:

The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.

Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.

In the instant case the only inference to make is that had this witness been called, her evidence would have not supported the prosecution case. This is the only logical conclusion to make. Indeed this finding is bolstered by the evidence of the investigating officer during cross examination. He conceded that his statement did not talk of Lucy telling him about a fight; it only talked of an argument.

11. It is trite law that whenever an accused person has pleaded an alibi, the burden of disproving the same is on the prosecution. The Court of Appeal in the In the case of Kiarie vs. Republic [1984] KLR held:

An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.

12. I find that in this case, the prosecution has not discharged its burden. The alibi defence was not challenged.

13. The investigating officer proceeded to charge the accused persons on the basis of suspicion. The Court of Appeal in the case of Sawe vs. Republic [2003] KLR 354 said:

Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.

14. From the foregoing analysis of the evidence on record, I find that the prosecution has not proved the offence of murder contrary to section 204 of the Penal Code against any of the accused persons. I accordingly acquit each one of them and set them at liberty unless if otherwise lawfully held.

DELIVERED and SIGNED at BUSIA this 2nd day of December, 2020

KIARIE WAWERU KIARIE

JUDGE