[2020] KEHC 1396 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CRIMINAL CASE NO. 1 OF 2020

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

VERSUS

DONALD OCHIENG JACOB ALIAS OCHIBO...............................................ACCUSED

JUDGMENT

1. Donald Ochieng Jacob Alias Ochibo is 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 12th day of July 2019, at Airstrip area, in Matayos Sub-County of Busia County, murdered Stephen Onyango Okello.

3. The prosecution case is that the deceased arrived home at about 8. 30 p.m. and proceeded to the door of the accused. When he knocked at the door, the accused told him “wewe umenizoea” and pushed him. He sustained a penetrating wound on the chest. This resulted to hypovolemic shock; he died from the same.

4. Donald Ochieng Jacob Alias Ochibo in his defence, contended that deceased knocked at his door. When he opened for him, the latter started to struggle with him. In the course of the struggle, the deceased started to pull him outside. He however held at the door frame and the deceased fell outside from where he did not stand. Together with other people, they took him to hospital.

5. The issues for determination are:

a. How did the deceased meet his death;

b. Whether the accused was involved in the death or not; and

c. Whether the offence of murder was proved against him.

6. Nancy Majuma Achieng (PW1) is the widow of the deceased herein. She gave two different versions as to how the incident occurred. The first was that after the deceased returned home at about 8. 30 p.m., he did not enter into their house but proceeded to the house of the accused where he knocked at the door. This contradicted her evidence during cross examination where she testified that she heard the deceased banging at the door of the accused. At the time she was outside their house lighting a brazier. The door was opened and she saw him being pushed. He fell down at the door. It was from here that he was taken to the hospital. She saw a cut wound on him at the hospital when the doctor was examining him.

7. Her second version was from her recorded statement with the police. She recorded that when her husband arrived home that evening, he first entered into their house. According to the statement, her husband told her that he wanted to see the man who always bothered them. Her husband went to the house of the accused. She went and stood at their door. This contradicted her evidence during cross examination where she had testified that he did not talk to her but only to their children. It also contradicted her earlier evidence that she was outside their house lighting a brazier.

8. During cross examination she testified that the deceased was in the house of the accused for about 15 minutes before she saw him fall out. This contradicted her earlier evidence that gave an impression that when the door of the house of the accused was opened, he was immediately pushed out.

9. The Court of Appeal in the case of Ndungu Kimanyi vs. Republic [1979] KLR 283, (Madan, Miller and Potter JJA) held:

The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates makes it unsafe to accept his evidence.

In the instant case, I find this witness very unreliable such that I cannot be able to rely on her evidence to make a finding as to what transpired.

10. Having dismissed the evidence of Nancy Majuma Achieng (PW1) as unreliable, the only evidence that is available is circumstantial. What is circumstantial evidence? In the case of Mohamed & 3 Others vs. Republic [2005]1 KLR 722Judge Osiemo restated as follows:

Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue.The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

11. John Collins Okoth (PW3) went to the scene after the incident. His evidence is that the deceased was lying near the door of the accused. He only noted the injury on the deceased upon arrival at the hospital when he was being examined. This witness testified that earlier that evening the deceased had ferried him to Tanaka and he realized he was drunk. On return leg, he (PW3) decided to ride the motor cycle due to the condition of the deceased.

12. The accused testified that the deceased went and knocked at his door. Presumably he also called him for he said he recognized his (deceased’s) voice. When he opened the door, the deceased started to struggle with him while pulling him out. He resisted and held the door on both sides. This is when the deceased fell down. In the case ofSawe vs. Republic [2003] KLR 354,the Court of Appeal held as follows:

1. In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.

2. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.

3. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.

13. The prosecution did not adduce evidence that would show how the deceased sustained the injury. The evidence on record did not amount to anything more than mere suspicion. In the case of Sawe vs. Republic [2003] KLR 354,the Court of Appeal held:

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

14. In this case, the deceased was the aggressor. He went to confront the accused in his own house. He was drunk and we may not tell what caused his injury. The burden of adducing this evidence was on the prosecution. Unfortunately it was not discharged.

15. I therefore find that the prosecution has not proved its case against the accused person. I accordingly acquit him of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He is set him free unless if otherwise lawfully held.

DELIVEREDandSIGNEDatBUSIAthis2ndday of December, 2020

KIARIE WAWERU KIARIE

JUDGE