[2019] KEHC 3433 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

(Coram: Odunga, J)

CRIMINAL CASE NO. 40 OF 2012

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

VERSUS

DOMINIC WAMBUA VAITA....................................ACCUSED

JUDGEMENT

1. The accused, Dominic Wambua Vaita, is charged with the offence of murder contrary to section 203 as read section 204 of the Penal Code. It is alleged that on 1st December, 2012 at Kamuthuo Village, Ikalaasa Location in Mwala District within Machakos County, the accused murdered Francis Nguta Ndambuki.

2. In order to prove its case, the prosecution called 9 witnesses.

3. PW1, Dickson Mulei Mutunga, was on 1st December, 2012 at 7. 30 pm at market to buy maize and beans at a shop, when the cashier of Green Bar whose name he did not know entered the shop and informed him that the deceased, in whose house PW1 used to work, wanted to see PW1 in his house. PW1 took his purchases to his house then proceeded to the bar where he found the deceased in the company of the deceased’s friends between 6-8 people. The deceased then asked the counter person to serve PW1 some alcohol. At 11 pm, PW1 left the bar together with the deceased who explained to PW1 that PW1 would start work on Monday – 3rd December, 2012. They had walked for about 100 meters when the accused, also known as Kasimba, appeared from behind a Eucalyptus tree, stood in front of the deceased and informed the deceased that he wanted him. The deceased then responded to the accused in a derogatory manner asking him why he wanted him. According to PW1, the accused then took a rungu and hit the deceased who struck back at the accused twice with a rungu and the accused fell down after which the deceased left the rungu on the ground, ran for 10 metres and then fell down. When PW1 went where the deceased was lying he called him 5 times but the deceased did not respond. PW1 then turned to go to report to the chief and met PW2, the accused’s grandmother with a girl he did not know. He then relayed the information to PW2 and asked her to call the chief. When the Chief went, PW1 accompanied him to his office and explained to the chief what had happened. The next day he recorded his statement at Masii Police Station.

4. In cross-examination, PW1 disclosed that after he recorded his statement, he was arrested as a suspect at 5 p.m. in the evening but was released at 9. 00 a.m. in the morning. According to him, he recorded one statement at the chief’s office and two statements at Masii police station. He however denied that he was protecting himself.

5. Naomi Kivia Mwaita, PW2 who was declared a hostile witness, testified that on 1st December 2012, she was asleep when she heard someone screaming and upon getting out she found the accused, her grandchild, having fallen down and was being beaten by the deceased. She then dragged the accused up to the home while the deceased left. In her evidence she was in the company of her grandchild, Kavinya, and though there were many people at the scene, she did not know who they were and did not talk to them.

6. PW3, Joseph Kilero Kisavi, was on 2nd December, 2012 at about midnight, called by an uncle called Musembi Kilonzo that her father in-law, Boniface, had a problem. He then went to collect Boniface from his home to take him to Musembi’s house using a motor cycle. However, before he reached the house at a junction they found someone lying next to the road, about 100 metres from the place they were going. According to him, they saw the person using the headlight. On their way back at 1. 30am, they found the body still lying where it was and Boniface, a head man asked him to stop. Upon looking at the person, Boniface found that the body was the deceased’s. PW3 then called the deceased’s brother called Mutinda Nguta who owned a butchery and upon the said Mutinda Nguta’srequest, PW3 went for him and left him with Bonifaceand proceeded to the administration police post and returned with two officers.

7. PW.4, Michael Munyalo Ndivo, the acting chief for the area received a call from one Benjamin Wambua Mutisya, the area sub-chief, on 2nd December, 2012, at about 2 am that the later had received a report that the deceased had been seen lying on the road looking injured. According to PW4 since it was at night and it was raining he called a motor cyclist operator, Musembi Kilonzo, and he went to the scene, reaching there at 2. 45 a.m. He found the deceased’s wife, PW5 and his brother, Mutinda Ndambuki. Upon checking, he found that the deceased was dead. He then called the OCS of Masii Police station and relayed to him the information. Upon inquiring from Eunice and Mutinda what had happened they both said that they did not know what happened but that they had been told by PW2 there were shouts from the place in the night. When the police arrived, they proceeded to PW2’s house where they found the accused whom they had been informed by PW1 was involved in the fight. According to him, the accused had blood stained clothes which he identified in court. They then proceeded to the police station where he recorded his statement and was told to return home.

8. Pw5, Eunice Nthenya Nguta, the deceased’s wife, was asleep in her house on 2nd December 2012 when at about 1 am at night, she got a call from her brother in law, a neighbour, who had a butchery at Ikalaasa market informing her to go with his sons to where he was at the market. PW5 woke up the said two sons, Mbithi and Musyoka, and started going to the market. About 1 km they found AP policemen from Ikalaasa and her brothers in law Mutinda and Boniface. She also saw someone who had fallen on the road face down and upon checking she realised that it was my husband, the deceased with whom she was at the market before she left him there to return home. When she inquired, Boniface said they met him on the road when he was going home on a motor cycle. Mutinda said he came and lifted his head and found that he had blood, his finger on the left hand had also had blood. Since it started raining, they covered the deceased body and called an assistant chief, Benjamin Mutisya who called the then acting chief PW.4 who in turn went to the scene called and called the police from Masii police station. The police came looked and examined the body and took photographs. According to PW5 when the accused was arrested by PW4, he had blood on his hand at the elbow and was making noise of pain. PW4 also discovered a stick which PW5 identified, and a yolk that had been used near the scene. According to PW5, on 3rd December, 2015, she identified the deceased’s body and the post mortem was done which revealed that the deceased had a head injury and the skull was cracked. He had also been strangled.

9. It was PW5’s evidence that prior to the incident, she knew the accused whose home was about 1½ km from her and on the way from the market they pass the accused’s home. It was her evidence that in one incident her worker (herdsboy), Mutuku Mwololo, was beaten by a person who was reported to be the accused though the reason why the accused beat him was not revealed though the deceased reported the incident to the chief, my husband told me of the report. PW5 was however unaware of the nature of the relationship between the accused and the deceased other than for the fact that they were neighbours. She identified the clothes which the deceased had on that day.

10. In cross examination PW5 said that when she saw the accused it was daylight. According to her she had never seen the accused with a walking stick.

11. PW6, Caroline Njoki Wamae, was in September, 2014 a Senior Principal Chemist II and Assistant Government Chemist. On 17th December, 2012 at the laboratory of the Government Chemist at Nairobi No. 54919 PC. David Mbugua of Masii police station submitted the following items:-

(1) Item D1 – Trouser wrapped in a khaki envelope and indicated to be of the deceased Francis Ndambuki.

(2) Item D2 – Brown shirt wrapped in a brown envelope also indicated of the deceased.

(3) Item D3 – blood sample indicted to be of the deceased.

(4) Item E1 – a short wrapped in a khaki envelope indicated to belong to accused Dominic Wambua.

(5) Item E2 - A checked shirt wrapped in a khaki envelope indicated to be of the accused.

(6) Item E3 – An overall trouser in a khaki envelope of the accused

(7) Item E4 – Blood sample of the accused.

(8) Item E5 – a walking stick wrapped in a khaki envelope

12. According to PW6, the said items were taken by a police memo and they were to examine the items and identify blood stains and their origin. Upon examination items D1, D2, and E5 were found not strained with blood. However, item E1 (accused short) was heavily stained with blood of human origin. Similarly, Item E2 (accused shirt) was lightly stained with blood of human origin. The overall trouser Item E3 was moderately stained with blood of human origin. It was PW5’s evidence that they generated a DNA profile from all items with blood stains being items E1, E2 & E3 to see if they had blood of the accused and deceased. It was her conclusion and opinion is that the DNA profiles generated from E1, E2 & E3 all indicated that they matched the blood profile generated from the accused – item E4.

13. In cross-examination, she confirmed that the blood stains in E1, E2 and E3 matched the blood sample E4 of the accused not the blood of the deceased.

14. PW7, PC. David Mbugua was on 2nd December, 2012 at around 6. 45 a.m. at my home when he was called by Corporal Mathenge to accompany him to Kalaria at a scene of crime of murder. On arrival at the scene they found the deceased covered by a plastic nylon bag lying facing downward and with the right hand little finger injured. He however did not see any other injuries. On further inquiries they were informed the deceased was attacked by the accused who was staying next to where the deceased was lying. They combed the area and found a walking stick with sand on the lower part and broken at the top & middle about 50 meters from where the deceased was lying. They proceeded to the accused home upon further inquiries from those present found the accused in his grandmother’s house. The name of the grandmother Naomi Kiviu Waita. When they called the accused they found that his left hand was tied with a bandage soaked with blood. This was at 7. 15 a.m. in the morning. They took the Accused’s person, the grandmother and the witnesses who were there and proceeded to Masii police station while the body of the deceased was taken to Machakos funeral home.

15. According to him, they took the clothes which were won by the accused, greenish overall green in colour and a black and white shirt which were all soaked in blood and a greenish belt all of which were kept as exhibits. They later took the accused to Machakos Level 5 Hospital where he was treated. According to him, they recorded the witness statements, prepared an exhibit memo for the clothes and he also attended a post mortem for the deceased together with the deceased’s wife, his brother and other relatives, identified the body to the doctor and took some blood samples and deceased clothes and the accused was later charged with the offence before court. He proceeded to produce the exhibits before the court.

16. It was his evidence that they did not arrest PW.1. According to him, the deceased had only the injury at the finger as physical injuries but after post mortem there were other injuries to the head. The accused’s leg was injured when they found him and his left hand was bandaged though it was not broken.

17. PW8, Dr. Fredrick Okinyi, carried out a post mortem examination on the body of the deceased on 3rd December, 2012 at Machakos Funeral Home. According to him, the deceased had injuries on the face, a bruise on the right per orbital region measuring 4X2 cm and another bruise on the left per – orbital region of 5X2 cm a laceration on the skull of about 1 cm. The face had oedema (swelling) with reddening of the eye. The internal examination showed the neck was swollen with the contusion (injuries) to the peri-larngeal muscles. The laryngeal mucosa was congested with haemorrhagic contusions of the neck muscles. The left lung had adhesion to the phura, the brain was oedematous with features of increased intracranial pressure. In summary he had injury to the head, neck muscle and the cause of death was as a result of head and neck injury which were caused by blunt trauma – maybe caused by strangulation and by being hit on the head. Though he could not tell the blunt object that caused the injury, it was his opinion that it was not very heavy as there was no fracture. In his opinion, the reddening of the eyes was also a key sign of strangulation as well as the injuries to the neck muscle. He proceeded to produce his report as an exhibit.

18. In cross-examination he was unable to tell if the injuries could be caused by a fall but the neck injuries he observed and identified could only be caused by strangulation. He however confirmed in re-examination that the head injuries were on the front and left and right side of the head and front of the skull and that the blunt injuries could be caused in many ways including being hit and falling.

19. PW9, Musyoka Duncan, a clinical officer in charge of Masii Health Centre was called to produce a P3 form filled by his colleague. According to the document, the accused was seen on 10th December, 2012 and at the Centre. He was a 27 year old male from Ikalaasa. He complained of pain on the left chest towards the back which had a septic wound and on his leg and hand. He received treatment and antibiotics and clinical dressing which was to be done after every other day. He returned to the clinic on 13th and 16th December, 2012. On 13th December, 2012 he still had complaints on the shoulder and he was given antibiotics & dressings, the dressing was of the septic wound and on the chest. On 16th December, 2012 his initial blood pressure was taken and was given medicine for 3 days. He was to be reviewed to see if he wound need a chest X-ray. The treatment card was signed by Wanza. Treatment card produced as P. exhibit 11A. A P 3 form was filled on 20th December, 2012 byMrs Nyabuto. The reference No. was 8647/12 – the P. 3 form was for Dominic Wambua Vaita, 27 years male from Ikalaasa. He was escorted to the Masii Health Centre by a police officer called Mathenge. He reported that he had been assaulted by someone known to him. On general examination his shirt was bloody, he had facial injuries on the mouth, left upper and lower limbs had lacerations, he had no physical injuries, and there were soft injuries on the neck, eye and mouth. There was no abnormality detected on the thorax and abdomen. The right upper limb has a wound and the lower limb a wound and soft injuries. The injuries were caused by a blunt object. He was given medication and was to be seen by a Physiotherapist. His injuries were classified as harm. The P. 3 was signed and stamped by Ms Nyabuto of Masii Health Centre and dated 20th December, 2012.

20. At the close of the prosecution’s case the accused was placed on his defence and he opted to give sworn testimony. According to him, the deceased was his neighbour and their homes were one kilometre apart. On 1st December, 2012 from 6. 00 pm he left his nursery bed, cleaned himself and proceeded to Ikalaasa market. Upon arrival he bought miraa entered a new club, ordered a drink and continued drinking till about 10. 00 pm when it was closed. He then left with the club proprietor called Simon who told asked to take him to his home which was about 30 meters away where they found his wife who was unknown to him. She prepared food for them and after eating he left at about 11 pm and went home. 50 meters from his home he saw people standing next to the road. Upon approaching them he was called by PW1 who requested for a cigarette from him which he had lit. When he approached them to see who were the others, he was asked what he was watching and was hit with a bottle and fell down. He was then attacked by more than two people and tried to protect my head while screaming. According to him, the said people were saying “even this one we should finish”. Upon my screams, PW2 and his cousins Kavinya and Mutinda went from home and the attackers ran away. They helped him up and carried him to the house where he was given first aid and he informed them to take him for treatment but because they were afraid they did not do so. He stayed there till 6. 00 am when PW2 appeared with two AP officers who removed him and he explained to them what had happened. They then carried him into a vehicle where he found one officer, PW1 and PW3 handcuffed with the body of the deceased. Shortly, they called his two cousins with PW2 and we were taken to Masii police station where PW1 and PW3 were placed in custody and he was taken to Machakos General Hospital for treatment. Upon his return to Masii police station he recorded his statement and though the OCS urged him to change his statement to say he was attacked with the deceased and that he went to Musembi Kilonso and heard the deceased screaming and went to assist him, he refused. When he refused to change my statement, he was placed in custody and PW1 and PW3 released. That is when he was informed he would be charged with offence of murder which he denied.

21. According to the accused, that night he did not see the deceased. He only saw PW1 with other people where he met them at night is a tree and they were standing in a shadow which was dark. He denied that he was involved in the death of the deceased.

22. It was submitted on behalf of the accused by his learned counsel, Mr Mutia, that the evidence adduced by the State cannot support the charge of murder levelled against the accused person. From the evidence tendered it is only PW1, Dickson Mulei Mutunga, who was allegedly at the scene of crime and alleges that there was a fight between the accused and the deceased. However, his evidence is unbelievable. While being cross-examined, he alleged that he did nothing when a fight broke out between the deceased and accused which is abnormal noting that he was working for the deceased. He confirmed that he was also arrested as a suspect and later released. Therefore, it was submitted that his evidence is more about covering his tracks than telling the truth. Since PW2, Naumi Kithia Vaita, was declared a hostile witness, it was submitted that her evidence is of no value to the prosecution case. However, it is in support of the accused person’s defence. She testified that she heard screams and when she went out she found that the accused was being beaten by one Masing’u Nguta. She is the one who dragged the accused to the house. Even after being declared a hostile witness, on cross-examination, she remained firm that she found the accused being beaten.

23. PW3, PW4, PW5 found the deceased when he had already died. They do not have any account of how he died. They did not find the accused or any other person at the scene.

24. According to PW6, the blood group belonging to the accused was not found on the clothing belonging to the deceased and vice-versa. She indeed confirmed, while under cross-examination, that the blood stains that were found on the clothing of the deceased did not match the blood group of the accused. However, the clothes belonging to accused had blood stains that matched his own blood group only.

25. PW7 is the police officer who did investigation and recorded the witness statements. He confirmed that when he went to the scene he found the body already covered with a nylon paper. It was submitted that this confirms that the scene had already been interfered with.

26. PW8 is the doctor who did the post mortem. His opinion was that the death had been caused by head and neck injury caused by blunt trauma. On cross-examination he confirmed that the blunt trauma can be caused by falling down.

27. PW9 confirmed that the accused was treated for injuries at Masii Health Centre. The State did not lead any evidence to explain how the accused suffered the injuries. It is instructive that although the accused was bleeding, the blood stains that were found on the clothes of the deceased did not match the blood group of the deceased. This is according to the report of PW6.

28. In his defence, the accused gave an account of what transpired on the material day as from 6pm. He went to Ikalaasa market where he stayed in a newly opened bar until 10. 00pm. He escorted one Simon to his house where he took supper and left for his home at around 11. 00pm. On his way home, he found some people who included Dickson Mutunga Mulei (PW1). He asked for his cigarette then demanded to know what he was looking at. He was then hit and fell down. When some people, including PW2, approached the scene his assailants fled. The accused remained in pain until the following morning when he was arrested. He was treated and later recorded his statement.

29. It was submitted that the evidence of the accused was consistent and a candid account of what transpired. The accused did not have a grudge with the deceased which would lead to him harming him. If indeed he came into contact with the deceased, then the accused blood would have also come into conduct with the clothes of the deceased and it would have been found there.

30. It was submitted that though the State is required to prove beyond reasonable doubt that the accused committed the offence in order to secure conviction, this threshold has not been met. According to learned counsel, there is no evidence brought before the court to show the motive of the killing hence the State did nothing to prove that the accused had the motive to execute the crime. Further, the link between the accused and the killing is missing. The person who was in a position to explain what transpired was PW1. His evidence remains unbelievable. He did not bother to intervene when a fight broke out as per his evidence. He was the one who was left with the deceased after the accused was dragged to the house by PW2. He remains cagey on what happened thereafter. It is clear that there was some information that he hid before the court which would have solved the puzzle. He did not report to the police until he was arrested and then discharged in unexplained circumstances. It was accordingly submitted that the evidence of PW1 is not credible and that the court should not believe it. In addition, it was submitted that the accused was just a victim of circumstances. He came to scene and found the PW1, who called him by his name. PW1 did not want him to see what was happening which led to him hitting him. The injuries of the accused were confirmed by PW9.

31. It was therefore submitted that looked at the evidence, in its totality, the State has failed to prove beyond reasonable doubt that the accused is the one who unlawfully killed the deceased. The Court was therefore urged to so find and acquit the accused under Section 322 of the Criminal Procedure Code, Cap 75 Laws of Kenya.

32. On behalf of the State, reliance was placed on the submissions made after the close of the prosecution case in answer to submissions on no case to answer. In the same, after summarising the prosecution’s evidence, it was submitted that the accused was well placed at the scene of the murder and was seen committing the offence. As regards malice aforethought, it was submitted that the same can be inferred from the conduct of waiting for the deceased, hitting the deceased with a walking stick knowing that it would cause injuries that resulted in the death of the deceased. According to the State, the nature of the attack pointed towards assailants who intended to either kill or cause grievous harm.

Determination

33. The prosecution’s case in summary is that on 1st December, 2012, the deceased was drinking with PW1 at Ikalaasa market up to about 11pm when they left for home. Along the way, about 100 metres from the bar, they were confronted by the accused and a fight ensued between the accused and the deceased. According to PW1, the accused hit the deceased with the walking stick which the deceased snatched from him and hit the accused twice. As a result, the accused fell on the ground and the deceased started running away. Along the way, the accused fell down 10 metres away and by the time PW1 reached where he was the deceased was not responding. On his way to report the incident to the Chief, he met PW2, the accused’s grandmother with another grandchild of hers and relayed the information to her telling her to inform the chief about the fight between the accused and the deceased. According to PW1, by the time PW2 arrived, it was the deceased who was lying on the ground and not the accused. In other words, PW2 arrived when the fight was over.

34. On her part, PW2 testified that when she arrived, she found the accused who had fallen down being beaten by the deceased. The deceased then left and she took the accused home.

35. It is the evidence of these two witnesses that attempted to explain the circumstances under which the deceased passed away. However, PW2 who was a prosecution witness was in the course of her testimony declare a hostile witness. Section 161 of the Evidence Act, Cap 80 Laws of Kenya provides that:

The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

36. It is such a witness who is being sought to be cross-examined by the party calling him that is termed in legal parlance as a hostile witness. In other words, he is hostile to the positon favourable to the person calling him contrary to the position which he had made the party calling him to believe. A hostile witness is therefore not just a person whose evidence is merely unfavourable to the party calling him, but a witness who appears to be biased or unwilling to tell the truth. In such cases the Court has the discretion to permit the party calling the witness to put any questions to him which might be put in cross-examination by the adverse party. See Evidence in East Africa by H. F Morris page 206.

37. As was held by Sir J.P. Wilde in Coles vs. Coles, (1866) L.R. 1P. &D. 70, 71:

“A hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court.”

38. InAlowo vs. Republic [1972] EA at page 324 the East African Court of Appeal said:-

“The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible.”

39. Similarly, inBatala vs. Uganda [1974] E.A. 402 the said court at page 405 said:

“The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable. It enables the party calling the witness to cross-examine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile, and it can be given little, if any, weight.”

40. I take it that what the Court meant was that such evidence cannot be relied upon by the party calling that witness since as stated in Abel Monari Nyanamba & 4 Others vs. Republic [1996] eKLR and Maghanda vs. Republic [1986] KLR 255, it may well be relied upon by the other party though its weight is minimal. It is however my view that a prosecution witness’s evidence who has been declared hostile cannot be used as a basis for convicting the accused though it may well be used to exonerate the accused.

41. In this case if the inculpatory evidence of PW2 is discounted, the only other evidence that connects the accused with the death of the deceased is that of PW1. However, PW1 himself admitted that at one point he was treated as a suspect in the murder. According to him, he joined the deceased after the deceased sent the cashier of Green Bar to call him. He did not however disclose the name of the said cashier who was never called as a witness. Neither was any of the people who were allegedly with the deceased in the bar named or called as witnesses. Had these people been called they would have supported PW1’s case that during that evening the relationship between PW1 and the deceased was cordial hence would have discounted the possibility that PW1 had anything to do with the deceased’s death. That would have therefore lent some doubt on the accused’s evidence that he found PW1 where the deceased’s body was in the company of other people.

42. From the evidence of PW9, the accused seems to have bled a lot. The accused stated that he was beaten by the people who were in the company of PW1. PW1’s evidence was however that the fight was between the accused and the deceased. Unlike the accused, the deceased’s visible injury was only on the right little finger. There were however internal injuries to the skull and he was strangled. Since the accused seems to have lost a lot of blood one would have expected that during the course of the deceased’s strangulation, some of the blood would have splashed onto the deceased’s clothing and vice versa. However, there were no blood stains on the deceased’s clothing and the blood that was on the accused’s clothing were only his. Even the alleged weapon, the walking stick, did not have any blood. In those circumstances, PW8’s evidence that the cause of death was head and neck injury which were caused by blunt trauma – maybe caused by strangulation and by being hit on the head is more in consonance with a person whose death was mainly as a result of strangulation. PW1 however never noticed the accused strangling the deceased.

43. The accused, in his evidence testified that he was accosted by some people along the road including PW1 who beat him up and that he was only rescued by PW2 and his cousins. He denied that there was any confrontation with the deceased.

44. From the totality of the evidence, it cannot be said that there was proof beyond reasonable doubt that there was contact between the accused and the deceased. To the contrary, PW9’s evidence seems to discount such contact. However, there is evidence that the accused was seriously injured and bled. That would be consonant with a person who was beaten by several people as his evidence showed. If the deceased was strangled, there is no evidence that the accused is the one who did it. That raises the question of who was responsible for the deceased’s strangulation? Without an answer to that question, the accused’s evidence that he found PW1 with other people and he was beaten to prevent him from witnessing what had taken place cannot be ruled out. Further, his evidence that PW1’s evidence was meant to nail him and direct suspicion away from PW1 himself cannot also be ruled out.

45. In criminal cases, it is old hat that the burden of proof lies with the prosecution and the standard of such proof is beyond reasonable doubt. Viscount Sankey L.C in the case of H.L. (E)* Woolmington vs. DPP [1935] A.C 462 pp 481 in what has been described as a subtle and masterly fashion stated the law on legal burden of proof in criminal matters, that;

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’

46. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:

“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”

47. What then is the standard of proof required in such cases? Brennan, J in the United States Supreme Court decision in Re Winship397 US 358 {1970}, at pages 361-64 stated that:-

“The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”

48. In 1997, the Supreme Court of Canada in R vs. Lifchus {1997}3 SCR 320 suggested the following explanation:-

“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.”

49. In JOO vs. Republic [2015] eKLR,Mrima, Jheld that:

“It is not lost to this Court that the offence which the Appellant faced was such a serious one and ought to be denounced in the strongest terms possible. However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled; proof beyond any reasonable doubt hence this case cannot be an exception. This Court holds the view that it is better to acquit ten guilty persons than to convict one innocent person.”

50. Mativo, J in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR expressed himself as hereunder:

“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

51. What then amounts to reasonable doubt? This issue was addressed by Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372where he stated:-

“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

52. I agree with the submissions of defence that from the evidence adduced by the prosecution, it cannot be said that the case against the accused was proved beyond reasonable doubt. The only evidence linking him to the death of the deceased, that of PW1, did not seem to tie up with the evidence of PW8 and PW9. The evidence of the accused seemed to be more in synch with that of PW9 in so far as lack of contact between the accused and the deceased was concerned.

53. In the premises, I find that the prosecution has failed to prove that the accused murdered the deceased. In the premises, I find the charge against the accused not proved and I proceed to acquit him. He is at liberty unless otherwise lawfully held.

54. It is so ordered.

Judgement read, signed and delivered in open Court at Machakos this 17th day of October, 2019.

G V ODUNGA

JUDGE

Delivered in the presence of:

The accused in person

Miss Mogoi for the State

CA Geoffrey