[2022] KEHC 1936 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL CASE NO. 34 OF 2018

REPUBLIC.........................................................................................PROSECUTION

VERSUS

DERRICK WAKHUNGU.....................................................................1ST ACCUSED

LEVI MULONGO................................................................................2ND ACCUSED

J U D G M E N T

The accused DERRICK WAKHUNGU WEPUKHULU(accused1)and LEVI MULONGO MARANI (accused 2) are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the offence are that DERRICK WAKHUNGU WEPUKHULU(accused1)and LEVI MULONGO MARANI (accused 2) on the 19th day of October 2018 at Matili village in Kimilili sub-county within Bungoma County murdered KEITH ADAMS ASHIKA.

The case for prosecution is that PW2 Godfrey Ashika Ekaya was the brother of the deceased Keith Adams Ashika. He was then a student at Matili Technical Institute. On 19. 10. 2018 there was entertainment at the Institute compound. He was with the deceased, Naomi, Biliah and Isaac. After the entertainment they were going home when at the gate a person came and held him by the tie and said everyone can pass the gate except him (witness). He saw the person was accused 1 who was joined by accused 2. The deceased came and held accused 1 and witness freed himself and left. He left accused 1, 2 deceased and Naomi behind. After a short time Naomi and deceased passed him and went to the house. On reaching the house he saw deceased was bleeding. Deceased told him accused 1 had hit him. He collapsed after about 10 minutes. With the assistance of school nurse he was taken to Kori hospital and next day transferred to Eldoret where he was admitted in ICU and later died while undergoing treatment.

On being cross-examined by Isiye for the accused he testified that he knew accused 1 well and he had a grudge with him over a girl called Isabella. He confirmed he did not see when accused 1 and 2 were assaulting the deceased. He said it was at night but there was moon light and had known accused 1 since 2018.

PW1 Naomi Nekoye Malaba was with the deceased who was his boyfriend on the material night….she was with deceased, Brian, Isaac and Godfrey. They met accused 1 and 2, whom she had not known before. Accused 1 wanted to fight Geoffrey. Deceased went and asked accused 1 to leave Geoffrey which he did and Geoffrey left leaving her with Deceased and Isaac. They continued going and on reaching the gate accused 1 came and hit deceased with a rungu on the back of the head. Accused 1 was with accused 2. She ran to inform Isaac. The deceased then came and she saw he was bleeding. He was taken to hospital and alter transferred to Eldoret hospital where he died.

On being cross-examined by Isiye she stated it was at 11 p.m. dark and there was no moonlight.

PW4 Isaac Wafula Soita also a student at Matili Training Institutes was on the material night with Geoffrey, Naomi, Brian and Deceased. They were walking to where they stay when a person held Geoffrey. He saw the person was accused 1. Deceased went and held him. Accused 2 then came and joined him. Godfrey then released himself and went away. He, Brian, Naomi and deceased remained behind. He was ahead of them 30 meters away when Naomi came and told him deceased had been hit by accused 1. He saw deceased had injury on the head and was saying he was hit by accused 1. Deceased was taken for treatment but he died. On being cross examined by Isiye for accused he said he did not see accused hit the deceased.

PW5 Brian Wafula Wamalwa who was with Godfrey, Isaac Naomi and the deceased were going to the hostels when accused 1 and 2 came and accused 1 wanted to beat Geoffrey, whom he held his tie. Godfrey released himself and left. The witness then left others behind and on reaching near the hostel gate Naomi cam and informed him deceased had been hit. Shortly later deceased came and they saw he had injury. He was taken to hospital. Deceased told them he had been hit by accused 1. He was taken to hospital and later died. On cross-examination he stated it was at midnight but there some light.

PW6 Agnes Namalwa Juma a staff nurse at Matili Technical Institute saw the deceased who had been brought to the dispensary. She administered first aid by dressing the wound and he was taken to Kori hospital Kimilili and later transferred to Moi Teaching and Referral hospital Eldoret where he died while undergoing treatment.

PW8 Collins Simiyu the driver of the Institute bus only testified as how he took the deceased to hospital. PW9 Kennedy Muliro Wekesa facilitated the deceased to be taken to the Instituted dispensary and visited deceased in Eldoret where he found him unconscious. He knew accused who came from around the Institute but were not student.

PW10 Fredrick Situma Wanjala a teacher at Matili Technical training Institute and who was the acting Deputy Principal testified that there was entertainment by way of disco at the Institute on the material night. On 20. 16. 2018 he received information a student had been injured and was admitted at Kimili and his parents transferred him to Moi Teaching where he died. The other students then arrested accused 1 and 2.

PW11 Edgar Amwima Nyanyuka was staying in the same house with the deceased and Godfrey outside the Institute where they were all students. On the night of 19-20th October, 2018 there was a disco at the Institute but he did not attend. While in the house, the deceased came in with his girlfriend Naomi and told the witness he wanted to sleep. He observed him and saw that he was bleeding from back of the head. The deceased then told him he was hit by Derrick (caused 1) as he was defending Geoffrey. He administered first aid and made arrangements and they took him to Kori hospital. He was later transferred to Eldoret but when he went to visit him he found he was unconscious. Accused 1 and 2 were later arrested. On being cross-examined by Natwati for accused he testified that the deceased was talking when telling him who assaulted him but had injury on the back of the head which was bleeding. He confirmed that the deceased did not mention accused 2.

PW12 No. 61443 Copl James Wanjao the Investigating officer testified that a report of assault where upon accused 1 and 2 were charged with the offence of assault in Kimilili PMCR 940/2018 where the deceased was the complainant when the deceased died, the accused were charged with present offence.

PW7 Dr. Dickson Macharia produced a post-mortem from prepared by Dr. Githnji Kango who performed the post moterm on body of deceased. He found deceased had a stitched wound on the back of scalp measuring 3 cm by 2cm, fracture of the back of skull 5 cm long operation site on skull, bleeding in the skull. The operation had been done to stop the bleeding. From the examination he formed opinion that cause of death was severe head injury caused by a blunt object leading to bleeding in the brain.

The accused on being placed on their defence gave sworn evidence. Accused 1 Derrick Wakhungu Wepukhulu testified that he was a student at Matili Technical Institute on 19. 10. 2018 he was at the Institute from 8-5 p.m. when he left school and went home. The next day on 20. 10. 2018 he went to school and found students on strike on allegations that a student was assaulted the previous night. He joined in the strike. At 11 a.m. police came and dispersed them. He testified that he was with accused 2 on 19. 10. 2018 and he had only seen deceased in the institute at 3-4 p.m. and did not see him again.

On being cross-examined he stated he knew deceased as schoolmate and had no grudge with but had a quarrel with PW3 Godfrey on 17. 10. 2018.

Levi Mukhongo Maratin testified that on 19. 10. 2018 there was entertainment at the school. He attended up to 11 p.m. when he left. At the gate he met accused 1 with other people. He only recognized accused 1 and they left together and accused 1 went to his house while he (accused 2) went to his house. The next day he met 2 people who informed him that there was a fight and a student as killed. They asked him if he knew anything about it. He denied knowledge. They asked him to lead them to house of accused 1. He led them but met him on the road. They arrested accused 1 and took him to the Institute security house. Police were called and he and accused 1 were taken away. He testified that he did not see deceased, Nomi or Geoffrey.

On being cross-examined by M/s Omondi for state, he confirmed that his alias name is Felishan and is known so by fellow students. He also confirmed he left the entertainment at 11-12 p.m and met accused 1 with other people but he was not armed, nor did he see him assault anybody.

Mr. Nabibia for accused 1 and M/s Natwati for accused 2 filed written submissions. Mr. Nabibia submitted that the prosecution witnesses has contradictions, that some of the witnesses said did not know accused 1 and that an identification parade which was necessary was never conducted. Finally, he submitted that the prosecution failed to prove the charge beyond reasonable doubt.

M/s Natwati for accused 2 submitted that of the 12 prosecution witnesses who testified none of them testified as to having seen accused 2 assaulting the deceased. Counsel therefore submitted that there is no direct evidence linking accused 2 with the commission of the offence. Counsel submitted that accused 2 in his defence explained the events of the day and the fact that he met accused 1 on the material night does not mean he participated in assaulting the deceased. Counsel submitted that the prosecution relied on circumstantial evidence in respect of accused 2 but that evidence did not meet the threshold set by the Court of Appeal in Musilo Tulo –vs- Republic (2014) ELR.

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

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

The prosecution therefore must prove the following ingredients of the offence of murder;

a) The fact and cause of death

b) The unlawful act or omission that caused the death

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

d) That the accused had the intention of causing death or malice aforethought.

PW7 Dr. Dickson Mcharia produced the post-mortem report prepared by Dr. Githinji Kongo who performed the post-mortem. He testified that the deceased had a stitched wound and operational site on the skull. He found that there as a fracture at the back of the skull 5 cm long with bleeding. He stated that an operation had been done to stop the bleeding but there was a fracture on back of skull. From the examination he formed opinion that the cause of death was due to severe head injury caused by one blow by blunt object. He issued death Certificate NO. 734528. This witness therefore confirmed the fact of death and the cause of death. The accused in their defence also admit that they know deceased died.

Did the accused inflict the blunt injury on the head that led to the death of the deceased?

PW1 Nomi Nekoye Maloba testified that on material day at 11. 00 p.m. while in the company of the deceased Brian, Isaac and Godfrey while coming from entertainment, they met Derick and Phelicious, Derrick wanted to fight Godfrey but the deceased stopped them, the rest left and she only remained with the deceased and Isaac, then Derrick came and hit the deceased with a rungu the deceased was bleeding at the back of the head.

On cross examination, she said that it was dark and that the deceased was her boyfriend and that she used her torch light. In re-examination she stated that she didn’t know Derrick and Levy.

PW3 Godfrey Ashika Ekaya stated in his evidence that while in accompany of the deceased, Brian, Naomi and Isaac, that he met Derrick who confronted him but the deceased came and separated them. That Phelicious came and inquired what was happening and he told him that Derrick wanted to hit him, he too separated them, he left with Brian and left behind Isaac the deceased and Naomi. The deceased came in the house and that he told him that he was hit by Derrick (accused 1).

On cross examination he stated that it was so dark and that he did not see the 2nd accused hitting the deceased.

PW4 Isaac Wafula Soita stated in evidence in chief that he was in accompany of Brain, deceased, Ashika and Naomi at about mid night, at the gate he saw a man who crossed the road and came to where they were, that he saw 1st accused who came and started hitting Godfrey, after separation Brian left with Godfrey. That the deceased tried to talk to the 1st accused and that he left leaving behind the deceased, Derrick (1st accused) and Naomi.

On cross-examination, he stated that it was mid night and that the school had no security light and he stated that he did not witness the 2nd accused assault the deceased, and that he was only told by the deceased that he was hit by the 1st accused.

PW5 Brian Wafula in his evidence in chief stated that on 19. 10. 2018 he was in accompany of Isaac, Naomi, Godfrey and the deceased, that they met Derrick and Phelicious. Derrick wanted to assault Godfrey, but separated Godfrey and accused 1 and they left leaving behind Naomi, Isaac and the deceased. That later the deceased and Naomi came and Naomi told him that the deceased had been assaulted by Derrick (1st accused)

PW11 Edgar Amuoma Wanyuki in the examination in chief stated that on 19. 10. 2018 the deceased came with his girlfriend and that he was just in the house since he did not attend the entertainment, the deceased informed him to give him space with his girlfriend, blood was oozing form the deceased’s head, he asked the deceased what happened and he informed him that the 1st accused wanted to beat Ashika, he tried to defend him but accused 1 hit him and that he took the deceased to the hospital.

On cross examination, he stated that the deceased came in a company of his girlfriend Naomi, Ashika was not present and he confirmed not to have known the person who assaulted the deceased since he was not there, and he confirmed that the deceased never mentioned the name of the 2nd accused person.

The accused 2 Levy Mulongo Marani in his defence testified that while he was at the scene and met accused 1 he was not involved in the assault of the deceased. Indeed, even the deceased did not mention to any of the witness that accused 2 assaulted him.

In respect to accused 1 Derick Wakhungu Wepukhulu PW1 Naomi stated in her evidence that she saw accused 1 hit the deceased with a rungu on the back of the head. Though she had not known him before she saw him when deceased intervened in the fight between accused 1 and Geoffrey. This is the only prosecution witness who was present and testified she saw accused 1 hit the deceased.

PW3 Geoffrey Ashika testified that the accused 1 had held his neck and deceased came to his aid and he Geoffrey ran away. He was later informed by deceased that accused 1 had injured him. PW4 Isaac Wafula testified that he was present when he saw accused 1 held Godfrey and deceased intervened. Geoffrey set himself free and ran away. He was then informed that accused 1 had hit the deceased. PW5 testified that he saw accused 1 and Geoffrey struggling and deceased intervened and Geoffrey ran away. Shortly later deceased came and told him he had been hit by accused 1 and he was bleeding. PW11 Edgar Amwoma who was the deceased’s roommate testified as to how deceased came with Nomi and informed him he has been injured by the accused 1. He was bleeding from the head and arrangements were made to take him for treatment after administering first aid.

The accused 1’s defence is that he was not at the scene and that at the time the offence was being committed he was at his home asleep. The accused 1 therefore raised an alibi defence. In Kiarie –vs- Republic 1984 KLRthe Court of Appeal stated.

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

While the accused does not bear any burden to prove his alibi, the burden always remains with the prosecution to prove the faulty of the accused alibi defence. The prosecution can discharge this burden by tendering evidence of identifying witnesses whose evidence will place the accused at the scene of the crime and therefore demonstrate that his alibi defence is false.

The prosecution tendered the evidence of PW1 Naomi, PW3 Geoffrey, PW4 Isaac, PW5 Brian all who stated that they saw accused on material night at the scene when he was struggling with Geoffrey. Accused 2 Levy Mulongo also confirmed in his evidence that he saw the accused 1 on the material night with other people. The accused’s assertion in his defence that at the time the offence was committed he was at his house asleep cannot be true, as it is not humanly possible for a person to be at two places at the same time. The prosecution has tendered evidence placing the accused 1 at the scene of crime and therefore displaced the accused 1’s alibi defence. I therefore find that accused 1 was at the scene of the crime.

Did accused 1 inflict the injuries on the deceased?

PW1 Naomi testified that she saw accused 1 Derrick come and hit the deceased on the back of the head with a rungu and the deceased started bleeding. She testified that it was dark and were using alight form a mobile phone. She stated that when accused hit the deceased he called out accused by name.

PW3 Geoffrey did not see accused 1 hit deceased nor did PW4 Isaac, PW5 Brian who were at the scene as they had left the deceased and Naomi( PW1) behind.

The eye-witness evidence as to who hit the deceased is that of PW1 Naomi who was at the scene.

The deceased after being hit and was bleeding told PW3 Godfrey that it is accused 1 who had hit him. He also told PW4 Isaac that it is accused 1 who had hit him and also gave similar information to PW5 Brian. On reaching the house he explained to PW11 not only that it is accused 1 who hit him but also the circumstances leading to it. The deceased who was still bleeding was able to speak and PW11 administered first aid and arranged for him to be taken to hospital. These statements made by a person as to the cause of his death or circumstances which resulted in his injury or death are called dying declaration and are admissible under Section 35(a) of the evidence Act.

[25]Several witnesses testified that the deceased made a dying declaration in which he named the appellant as the person who had assaulted him. Undersection 33(a)of theEvidence Act, a statement made by a deceased person relating to his cause of death is admissible in evidence:

“When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

[26] In Philip Nzaka Watu vs Republic [2016] eKLR, this Court stated the following on admission and reliance on a dying declaration:

“Under section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements. ……….….. While it is not the rule of law that a dying declaration must be corroborated to found a conviction, nevertheless, the trial court must proceed with caution and (sic) to get the necessary assurance that a conviction founded on a death declaration is indeed safe.”

In this case there is evidence that accused 1 had a struggle with Geoffrey and the deceased intervened and Geoffrey ran away. There is also evidence that the deceased was hit on the head that night while in the company of PW1 Naomi. The deceased informed the 5 prosecution witnesses that it is accused 1 who had hit him. He explained to them separately and finally to PW11 to whom he explained the reason why accused 1 had assaulted him. All the witnesses knew accused 1 as he was a student in the Institute and he gave the name and the witnesses had earlier interacted with the accused 1. The deceased was not only clear to who had hit him but was also consistent as evidenced by the fact that he told the 5 witnesses. This dying declaration is corroborated by the evidence of PW1 Naomi who was at the scene. I am therefore satisfied that it is accused 1 Derrick Wakhungu Wepukhulu who inflicted the injury on the deceased.

The prosecution in a charge of murder must prove the element of malice aforethought beyond reasonable doubt.

“206. Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances –

(a) ………..

(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.”

From the evidence of the doctor who performed the post-mortem examination the deceased was hit on the back of the head that led to a fracture of the skull. From the nature of the injuries inflicted, the weapon used and part of the body targeted it can be inferred that the assault was intended to cause grievous harm or death as it did in this case. I therefore find that malice aforethought has been proved in accordance with Section 206(b) of the Penal Code.

Upon considering all the evidence I am satisfied that the prosecution has not proved the charge of murder against accused 2 Levi Mulongo Marani and acquit him under Section 215 C.P.C. Accused 2 Levi Mulongo Marani be released forthwith unless otherwise lawfully detained.

As for accused 1 Derrick Wakhungu Wephukhulu I am satisfied the prosecution has proved the offence of murder against him beyond reasonable doubt. I therefore find accused 1 Derrick Wakhungu Wepukhulu guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and convict him accordingly.

Dated, Signed and Delivered at Bungoma on this 8th day of February, 2022.

S.N RIECHI

JUDGE