[2012] KEHC 295 (KLR)

REPUBLIC OF KENYA

High Court at Machakos

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REPUBLIC ……………..................………..………………. PROSECUTOR

VERSUS

1. DORCAS NDUKU

2. JOSEPH MUTUKU WILLY

3. ANDREW MUTHIMBOaliasDRO ……………………..… ACCUSED

J U D G M E N T

The three accused Dorcas Nduku, Joseph Mutuku Willy and Andrew Muthimbo alias Dro stand charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on 1st May 2006 at Mutitunivillage, Mutituni location in Machakos District within Eastern Province murdered Onesmus Kiilu. The accused, who were charged in 2008 after previous proceedings against them were terminated, pleaded not guilty.

The prosecution called a number of witnesses. PW1 was Benedict Wambua Kaloki a driver with Machakos Municipal Council. It was his evidence that he was a brother of the deceased. On 30/4/2006 he and the deceased and the 1st accused Dorcas were taking drinks at Kavandani pub. The 1st accused was a wife of the deceased. While the witness and the deceased drank Montana beer, the 1st accused took soda.

By 4 p.m. the deceased got very drunk and was persuaded to carry one bottle of “Montana”, home though he wanted to drink more in the bar. He left with his wife the 1st accused, but both returned to the bar at 5. 30 p.m., and they wanted to continue drinking. However, the deceased’s wife 1st accused left immediately. At 6. 30 p.m., the witness who was also very drunk, left the bar and went home.

At about 1. 30 a.m. that night, a cousin Mutie Makali informed the witness that there were robbers at the deceased’s house which was situated about 500 – 600 meters away. He rushed there with Makuthuand a watchman from a nearby school. On arrival, the wife of the deceased (1st accused) was screaming. The door was locked from outside. A neighbour brought a hammer which they used to break the door. They entered the house and found the 1st accused seated on a chair, where she was tied using strings. The 1st accused told them that the deceased was in the bedroom. When he entered the bedroom, he saw the naked body of his brother (the deceased) on the bed with a wound in the stomach. He did not wish to observe the body further. He was not present when the ropes on the 1st accused were untied.

The witness testified that the police were informed in the morning. At about 8 a.m. the police took the body away. He did not know whether anything was stolen from the deceased’s house. He did not know the other two accused persons.

In cross-examination, he stated that the deceased had another wife Jackline Nduku with whom they had two sons. The deceased also had a daughter with the 1st accused. The deceased had a concubine at Eastleigh Machakos called Wavinya. He did not know whether there was bad blood between the 1st accused and the deceased.

PW2 was Jennifer Syemenze, the mother of the deceased. It was her evidence that she did not know the 2nd accused 3rd accused persons.

On the night of the incident at 3 – 4 a.m., she was informed by WambuaPW1 that the deceased had been killed. She ran to the house of the deceased and found the 1st accused screaming. The deceased was lying on the bed in a pool of blood, with the intestines projecting out. She asked the 1st accused what had happened and when she explained, she asked her why she did not scream. She left and went back home before the police arrived.

It was her evidence that the deceased and the 1st accused had one child, but did not have a good relationship. As a result the 1st accused often slept away from home. It was also her evidence that after the deceased’s death, the clan took away the personal belongings of the 1st accused and returned the same to her parents.

In cross examination, she stated that the deceased had only two wives. She did not know anything about a 3rd wife. She stated that Jackline Nduku had left the deceased 6 – 7 years earlier, but later returned. She admitted that the deceased was a heavy drinker. She insisted that though she found the 1st accused screaming, it was her position that she did not scream during the incident. She stated that no meeting was held before the deceased died to reconcile him with 1st accused. She stated that she was present when the belongings of the 1st accused were sorted out for return to her parents’ home.

PW3 was John Muai Mbingu. It was his evidence that he had been employed by the deceased at Kyamuli Engineering School as a cook in 1988. The 1st accused was the deceased’s wife. The deceased had another wife and a concubine.

On 30/4/2006 at about 4 p.m, the 1st accused called him when her husband had gone out of Mutituni bar. She told him to tell her husband that she had gone for a women’s meeting and then gave her Kshs.10/=. He then joined the 1st accused’s husband, who is the deceased in the bar. The deceased ordered a beer which they shared and the deceased left at 5. 30 p.m.

That night as he slept, Wambua(PW1)came and informed him that the deceased had been killed. This was about 4 a.m. He went to the deceased’s house and found the 1st accused sitting outside while the deceased was lying inside the house dead. He did not know why the 1st accused gave him Kshs.10/=. He knew that the 1st accused belonged to a women group, but the group was not meeting that day. He was aware that the relationship between the deceased and the 1st accused was not cordial.

In cross-examination, he stated that the deceased had two children with his other wife Jackline Nduku. He had one child with the 1st accused. Though the deceased had a concubine called Jennifer, they did not have a child. He stated that the 1st accused ran the engineering school for the deceased. A number of times, the deceased and the 1st accused used to quarrel and the 1st accused ran away to her parents’ home.

In re-examination, he reiterated that the 1st accused gave him Kshs.10/= and told him not to tell the deceased where she was going to. He stated that the deceased had a nickname – ‘too hot to handle’ – and his vehicle was inscribed with those words.

PW4 was Francis Mutie Makali. It was his evidence that he used to live at Mutituni and worked as a machine operator at Kapa Oil Refinery. He was a cousin of the deceased and knew the 1st accused. He did not know whether the 1st accused was the wife of the deceased.

On 1/5/2006, as he was sleeping, he was called by neighbours Muia Makau and his brother who told him that they heard screams indicating that there were robbers at the deceased’s home. They went and woke up Bernard Wambua (PW1) a younger brother of the deceased and proceeded to the deceased’s home. There they found 4 watchmen from St. James Secondary School, who had also responded to screams.

The 1st accused informed PW1 to break the door using a jembe. He tried to do so but was not successful. A lady brought a hammer and they managed to open the door. Inside the house, they found the 1st accused tied to a wooden chair facing the door. The 1st accused informed them that the deceased was in the bedroom. The witness used a torch, and in the bedroom found the deceased naked on the bed with his legs hanging with a cut would in the abdomen.

He got shocked and called the deceased’s mother and relatives and made a report of the death to the chief who came to the scene with Administration Police officers. When they came back to the house, the 1st accused had been untied. The police came in the morning, carried out investigations and took the body to the mortuary.

In cross-examination, he stated that he did not know that the 1st accused was married to the deceased. He only knew Jackline Ndulu as the wife of the deceased. He did not know that the deceased had a wife at Eastleigh. He stated that the 1st accused was tied using telephone wires on the hands and the waist.

PW5 was Regina Nduku. It was her evidence that the deceased was her husband’s nephew. She stated that the 1st accused was the wife of the deceased. On 1/5/06 at 5. 00 a.m. she was at home when she heard noise from the deceased’s home which was 600 meters away. She proceeded to the scene and found the 1st accused seated on an armchair with her hands tightly tied to the chair. Her waist was also tied. When she asked the 1st accused what had happened, she told her that thieves had struck at their house. She untied the 1st accused alone as other people were outside the house. This was before the police came. She was not present in the clan meeting which was held after the burial of the deceased.

In cross-examination, she stated that the deceased had another wife Jackline Nduku with whom they had 2 sons. The deceased had 1 daughter with the 1st accused. She did not know the person who had tied the 1st accused.

In re-examination, she stated that she could not say whether the 1st accused tied herself, though in her opinion that was possible.

PW6 was Jackline Nduku Kiilu. It was her evidence that she lived at Mumbuniwhile the deceased lived at Mutituni. She testified that she was married to the deceased in 1989 and they had two male children. The deceased was running JamhuriEngineering Driving School which they started together. She was aware that the deceased died in 2006. She did not know any of the accused persons.

In cross-examination, she stated that she was living with her parents. She did not know how her husband died.

PW7 was Daudi Maingi Mbuvi. It was his evidence that he was working at St. James Secondary School as a watchman and a neighbour of the deceased. The school where he lived was near the home of the deceased. On the fateful day at 4 a.m., he heard screams and went to the home of the deceased.

When he arrived, a woman told him to get into the house and untie her. However, the house was padlocked from outside. The woman then told her to go and call family members. He went and woke up Mukuthu and went back to the scene and found that same people, who had heard the screams, had started arriving. The door was forced open and he went into the house with others. He saw a woman tied with ropes, who was untied by members of her family. He saw the deceased lying dead on his bed. He identified the woman (1st accused) in court. He did not know the two other accused persons.

In cross-examination, he stated that he had known the deceased for 4 years. He stated that the person who was screaming was saying that they had been attacked by robbers; though he did not inform the police so. He stated that the 1st accused’s arms were tied with sisal ropes to the armchair’s rest. He however did not observe the 1st accused properly. Though he saw the deceased in the bedroom, he did not observe the body closely to see injuries. He did not know whether the 1st accused had problems with her husband (the deceased).

PW8 was Regina Nzilani Kaloki. It was her evidence that she was a sister of the deceased. The 1st accused was one of the two wives of the deceased.

It was her evidence that on 30/6/2006 at 10 a.m., members of her clan, many of whom she did not know, told her that they wanted to take away what belonged to the 1st accused. Her mother was present. The 1st accused was in custody and the clan wanted to take the things to her ancestral home. She went into the house of the deceased with only one person called Katwaa. From the wardrobe they pulled a green trouser of the 1st accused which had a lot of blood stains. There was also a knife with blood stains. She gave these items to Katwaa. It was her evidence that the beddings and the floor under the bed had a lot of blood stains. She identified a green pajama trousers which was torn. She stated that the trousers they recovered did not appear like the one she saw in court. The one she saw in the wardrobe had blood stains on the straps and bottom and back. Though she handed over a pillow case to the police, she did not see it in court.

In cross-examination she stated that she had not been to the deceased’s house after burial until 30/6/2006. She stated that Katwaa got the key to the deceased’s house from her mother, but she was not there then. She maintained that the pajamas trouser belonged to the 1st accused because she saw her wearing it in October 2005. She stated that the 1st accused and Jackline Nduku were wives of the deceased. The last time the 1st accused was at the deceased’s house was the day the deceased’s body was taken away.

PW9 was Joyce Kiloko Kaloki a sister of the deceased. It was her evidence that one month before the death of the deceased, the 1st accused went and informed her that the deceased had a disagreement with her and told her to go back to her ancestral home. She advised her to go and sort out the issues and to involve the mother of the deceased. The 1st accused did not do so.

After the deceased died, a mobile phone belonging to him was recovered. It was a Samsung X480 model and she knew it. She stated that it was bought in her presence and she retained its box. She retained the phone and the box after recovery of the phone, and handed it over to PC Wanyonyi who was investigating the case. She identified the phone, the box and charger in court. She also identified another phone make “Sendo” which she said belonged to the deceased. It was her evidence that the deceased complained to her that the 1st accused never used to cook for him and also used to come home late, forcing him to go and take meals at his mother’s house.

In cross-examination, she stated that the deceased had two wives. The first was Jackline Nduku with whom they had two children and had separated. However, Jackline came back after being called back by the family and was running the deceased’s school. She stated that the mobile phone of the deceased was recovered by the police. She did not know anything about the charger which she identified in court. She stated that the 1st accused was arrested one day after the deceased’s death, but she was not the one who caused her arrest.

In re-examination, she stated that the serial number on the telephone box was the same number on the phone.

PW10 was Joseph Mutuma a pathologist doctor. In 2006, he was a pathologist at Kemri. Previously between 1993 – 1996, he worked at Machakos General Hospital with Dr SMO Mutunga and knew his signature and handwriting. He produced the postmortem report signed by Dr Mutunga with the consent of the defence. The body was identified by PC Wanyonyi. There was a deep wound across the loins and a gaping wound on the right loin. The abdomen was cut and intestines were perforated. The cause of death was cardiopulmonary arrest due to bleeding. Some organs were taken to the Government Analyst for analysis.

In cross-examination, he stated that no family member came during postmortem which was unusual.

PW11 was Rose Muthoki Philip. It was her evidence that 1st accused was married to her cousin the deceased. On 30/4/2006 at 6. 30 p.m. at Mutituni Kangundo-Machakos road, she saw the 1st accused stop and board a motor vehicle. The vehicle was heading to Machakos. The next day, when she went to church, she was informed that the deceased had been murdered. She went to the home of the deceased. She informed the sisters of the deceased that she had seen the 1st accused the previous evening.

PW12 was PC Laban Wanyonyi. It was his evidence that on 1/5/2006 at 5 a.m. he was called by the OCS Machakos Police Station who informed him that there was a murder report from Mutituni. He booked the report and proceeded to the scene with Chief InspectorCheres and arrived there at 5. 30 a.m. They found two houses and a crowd which had gathered. They found the deceased lying on a bed. He had 3 stab wounds on the abdomen. The body was naked and there was no evidence of a struggle. Blood was on the blanket and pillow. There was a long trouser in a polythene paper and a pillow case. He testified that he took possession of the green trouser and old clothes found under the bed. He did not have the pillow case which was eaten by rats in the police store. He took possession of the items as exhibits.

In the nearby house, they found chewed miraa twigs and chewing gum. They also recovered empty bottle of alcoholic spirit. They called the deceased’s wife and interrogated her at the police station.

One window of the main house was broken. The main door was not broken. They took the deceased to Machakos Hospital Mortuary. When they went back to collect the exhibits, the public were very tense and animosity against the deceased’s wife (1st accused) had increased. The mother of the deceased and the third wife had recorded statements that the 1st accused had threatened to eliminate the deceased and the other wives.

He later learnt that the phone of the deceased and his wife had been stolen. He tried to trace the phones through SafaricomLtd. He tracked the sim card and traced the phone of the deceased to the 3rd accused who was arrested in a kiosk at Kileleshwa Nairobi where he sold miraa. It was his evidence that the 3rd accused told him that a witchdoctor had given him the phone in exchange for miraa. The 3rd accused took him to Machakos then to Malindi to trace the witchdoctor, but they did not get him.

On the second phone, it was his evidence that he traced it to one Maingi who sold milk at Machakos. Maingitook him to the 2nd accused, who said that he had picked the phone, but later changed and said that he had been given the same by his wife. It was his evidence that another witness called Kimeu was not brought to testify in court.

It was his evidence also that the 1st accused was initially arrested and released because there was no evidence against her. She was only arrested after incriminating evidence was given by the wife of the deceased that she had given someone Kshs.10,000/= to participate in the murder.

He took blood samples of the 1st accused and the deceased and sent the same to the Government Chemist. He produced the Government Chemist’s report by consent of the defence. The witness also produced the Samsung phone, charger, the phone box and the Sendo phone as exhibits. He produced a pajamas/trouser and blanket as exhibits.

In cross-examination, he stated that he did not have handwritten witness statements. He stated that the statement dated 18/9/2006 neither bore his signature nor was it certified. He did not have a statement of Chief Inspector Cheres. The 1st accused was initially released but was re-arrested on instructions of the OCS. He reiterated that the second house was occupied because there was miraa and other items found therein. He admitted that he did not include recovery of the green trouser and blanket in his statement. He admitted that he recovered them later after a sister of the deceased called him on 30/6/2006. That was also the time he recovered the pillow case. He took possession of the items from Regina Nzilani Kaloki. Regina brought the items to the Machakos Police Station on 30/6/2006 and said they were hidden under the bed. He stated that according to the Government Analyst’s report, bloodstains of the deceased’s group were found on the green trousers.

He insisted that the 2nd and 3rd accused were in the group of murderers. Though he was told that the 1st accused was found tied to a chair, he did not believe her.

Though the 3rd accused told him how he acquired the mobile phone, he did not believe his story. He also recovered a Nokia phone from the 3rd accused, which was not produced as an exhibit. He did not get the name of the witchdoctor referred to by the 3rd accused. He stated that the original police file was lost.

He stated that he went to Safaricom Ltd alone. He stated that he was given the telephone box at the house of the deceased by the 1st accused after arrest between 30/6/2006 and 5/7/2006. The 1st accused also identified the Sendo phone before arrest. However, Daniel Maingi, was the one who had the Sendo phone. The 2nd accused said that he had sold the phone after picking it on the ground, but did not say where he found the phone. The witness also arrested Kimeu and Maingi who led him to the 3rd accused. These two were released by the OCS. He admitted that there was tension between the family and the 1st accused, and that she was not present during his 10 or so visits to the scene.

He did not pick the miraa or alcoholic spirit drink from the other house, as he thought that it was not important evidence.

In re-examination, he stated that the green trouser was brought to him by Reginaat the Machakos Police Station on 30/6/2006. He searched the house when he first went to the scene, but did not find the green trouser.

Though the State indicated that they wanted to call the Government Analyst, and recall PC Wanyonyi to produce the medical report on the mental status of the accused persons, they later changed their mind and closed their case.

The 1st accused Dorcas Nduku gave a sworn defence. It was her evidence that she was married to the deceased under Kamba customary law in 1992. She stated that the deceased had married a total of four (4) wives including Jackline Nduku who was the 2nd wife. The first wife was Eunice Kalondu who had re-married. The fourth wife was Jennifer Wavinya. However, all these women were not living with the deceased at the time of death. The 1st accused and the deceased had a daughter aged 16 years.

It was her evidence that they were at home with the deceased on 1st May 2006 at night, when assailants came and called him by the nickname “too hot to handle”. The deceased wrapped himself with a towel, came out of bed and went and opened the door. She wrapped herself with a leso and followed. She observed the intruders push the door with a lot of force and the deceased, who was drunk, was pushed backwards. Though she had put alight a hurricane lamp, they took it away and started flashing two torches.

When the deceased went to the bedroom to take a sword, one of the intruders followed him. Another hit the witness and tied her with electric wires on the hands and the waist. The hands were tied at the back. She tried to scream but was ordered to keep quiet. In less than 5 minutes, the deceased screamed saying he was being killed. The intruders then left. They took her cellphone, TV, radio, the deceased’s cell phone, speakers, cooking pots and pans. They also took mattresses. They also took things from the other main house which was under construction. She then screamed and many people came.

When people came, they found the door locked from outside. She was tied to a chair and Musyoki Makau untied her. After she was untied, she was prevented from seeing her husband. She learnt later that he had died. She was taken by the police to Machakos Police Station on 1st May 2006 and detained for 1 month and 24 days, but was not taken to court. She was then released on 24/6/2006. After release, she went to her parents’ home.

After 6 months, she was re-arrested. She saw the 2nd accused for the first time in February 2007. She had already been brought to court before then. She also did not see the 3rd accused on the day of the incident. She denied agreeing with anybody to kill the deceased.

It was her evidence that on 30/4/2004, they went for a funeral with her husband (the deceased). After the funeral, they went to a nearby bar with a cousin of the deceased called Kasyoka. They left the bar at 7. 30 p.m., went home and she cooked supper. They ate and went to bed. Her husband, who was a very strong man, was very drunk that night. She denied hiring anybody to kill her husband. It was her evidence that there was a grudge between her husband’s family and her. According to her, when he married her he was living at his mother’s house and she was staying at their school at Kathiani. The deceased’s family was not happy with the arrangement. It was her evidence that a month before the death, a brother of the deceased called Wambua came armed with a knife and provoked a fight with the deceased.

In cross-examination, she stated that she did not give Muya Kshs.10/= that day. She only told him to go and carry grass, since he was their worker. She denied seeing Rose (PW11) that day. She went home with her husband between 4 – 5 p.m. She denied that she boarded a vehicle at 6. 30 p.m. to Machakos. She stated that the people who attacked her husband had overalls and masks on the faces. She stated that when her husband entered the bedroom, she screamed for about 1 minute. She heard as if there was a struggle in the bedroom. She maintained that even if PC Laban Wanyonyi (PW12) stated that there was no evidence of a fight, her position was that there was banging of the door in the room, which was a very small room. She denied that blood was only on the bed. Though she was assaulted, she neither had a P3 form nor was she treated by a doctor. She was however, given medication by the police. She denied that she had fights with the deceased and used to sleep out.

In re-examination, she stated that she was not involved in the recovery of the items that were alleged to have been blood stained. She stated that her relationship with her mother in law was not cordial.

The 2nd accused Joseph Mutuku Willy also gave sworn defence testimony. It was his defence that he used to work at Machakos. He was arrested in Machakos on 29th July at 3 p.m. at the market where he worked selling water using a handcart.

He was arrested by police officers in civilian clothes and locked up in the cells. The police did not recover a phone from him. He was later charged with an offence of killing someone. It was his evidence that he did not know the other two accused persons before. He met the 1st accused for the first time in court on 31/1/2007. As for the 3rd accused, he met him for the first time at Kamiti Prison.

He denied killing the deceased. He stated that he was not arrested in possession of any property of the deceased.

In cross-examination he stated that he was arrested on 29/7/2006. He denied having been found with a mobile phone then. He was initially charged with three other people. On 30/4/2006, he was working at BurmaHotel Katangi. He however, did not wish to call any other co-workers as witnesses.

In re-examination he stated that he did not know the deceased nor the date he was killed. He stated that he was not given back his identity card which was taken by the police, nor was it produced in court as an exhibit.

The 3rd accused Andrew Muthimboalso gave sworn testimony. He stated that he was married. At the time he was arrested he was a miraa businessman having a shop at Nairobi, Machakos and Samburu. He was arrested on 9/8/2006 at noon at Majengo in Nairobi at a shop where he sold miraaand other retail products. He knew one of the people who arrested him as a policeman who was his miraa customer. He was arrested and taken to Machakos Police Station. He gave the police his Nokia mobile phone 6611 worth Kshs.17,499/=. His Nokia mobile phone was produced as an exhibit.

On 15/8/2006, he was brought to court. It was then that he was informed the reason for his arrest. He was charged with robbery and murder. He was brought to court alone but charged with 3 other people. One of those people was the 2nd accused. The 1st accused was not present in court then.

On 20/12/06, they were brought to court and the two other people were released. That was in Magistrate’s Criminal Case No. 50 of 2006. On 31/1/2007, himself and the 2nd accused with whom they were in the magistrate’s case, were brought to the High Court. That was the first time he saw the 1st accused.

He denied killing the deceased or knowing him. He could not remember where he was on the date of the incident or offence. He was however not with the two accused persons.

He stated that he sent for one of his workers to bring a mobile phone Samsung X48. PC Wanyonyi called that worker on the phone. The said phone was not his. It belonged to James Kaindi who pledged it for miraa worth Kshs.500/=. The police asked for that phone because they said his sim card was used therein. He stated that the said phone did not have a sim card when it was left with him. He put his sim card in that phone for testing and the card remained therein for some time. It was his evidence that there were a number of people present when the phone was left with him. One of the people was present and he proposed to call him as a witness. He denied killing the deceased.

In cross-examination, he stated that in the magistrate’s court they were four accused. In the High court they are 3 accused. The police showed him the print card from Safaricom indicating that the phone was used. He was aware that the police looked for James Kaindi but did not find him. That is why they charged him. He was aware that people who were present when he was given the phone recorded statements. He knew at least one of them who recorded a statement with the police. He insisted that he could not remember where he was on 30/4/2006. Since he was brought to the High Court, he had not been taken back to the Chief Magistrate’s Court.

In re-examination, he stated that the victim in the case in the Chief Magistrate’s Case was the deceased in this case. When questioned by court, he stated that he did not know where the other two accused in the case before the Chief Magistrate had gone to.

This accused person called one defence witness DW4 Jeremia Kailemia Karuti. It was his evidence that he had come to give evidence on behalf of the 3rd accused. One day in June 2006, at 4 p.m., the 3rd accused was selling miraa at his shop in Machakos. A customer by the name James Kaindi came and was sold miraa worth Kshs.500/=. He chewed the miraa but did not have the money to pay. He requested to be allowed to pay later. The 3rd accused was not happy and there were screams and people, including the witness, went there. Ultimately, the customer left his Samsung mobile phone and promised to bring the money the next day.

When the 3rd accused was arrested, PC Wanyonyi and the witness and other police officers, tried to trace the customer in vain. Later, the 3rd accused was charged in court. He did not know whether the 3rd accused killed the deceased. Did not know where he was arrested.

(The State Counsel did not cross-examine the witness.)

After the close of the prosecution and the defence case the counsel for the accused and the State Counsel filed written submissions. I have perused the submissions.

This is a case of murder facing the 3 accused persons. In a criminal case, the burden is always on the prosecution to prove the case against an accused person beyond any reasonable doubt – SeeLeonard Aniseth –vs Republic (1963) EA 206 at page 208 where the Court of Appeal for East Africa stated:-

“Since the well known decision inWoolmington –vs DPP (2) (1935) AC 462, it is well settled that subject to the defence of insanity and to certain statutory exceptions which are not relevant to the present case no burden rests upon an accused person to establish any defence.”

In our present case, there is no dispute that the deceased was killed at his home at night on 30/4/2006. He was there in the house with his wife the 1st accused. Some assailants came from outside. They made him open the door. They stabbed him in the abdomen. They left him dead on the bed in the bedroom. They left after taking a number of items from the house including mobile phones. They locked the door from outside. The 1st accused was found tied to a chair in the house when the door was forced open. Nobody saw or identified the people who killed the deceased. After investigations, the 3 accused were charged.

This is a case based on circumstantial evidence. In Kariuki Karanja –vs- Republic (1986) KLR 190, at page 193, the Court of Appeal stated:-

“Secondly, circumstantial evidence, to sustain a conviction must point irresistibly to the accused. 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 hypothesis than that of guilt. The burden of proving facts which justify drawing of that inference to the exclusion of any other reasonable hypothesis of innocence is always on the prosecution and never shifts.R –vs- Kipkering Koske 16 EACA 135”

Having considered all the evidence on record, I find that the 1st accused was charged with this offence because there was animosity between her and the family of the deceased. The recovery of blood stained clothes from the house was highly suspect. There is a great variation in the testimony of PC Wanyonyi PW12 and Regina Kaloki PW8 on how, where and when these items were recovered. Her version of the events in the bar agrees with those of the brother of the deceased(PW1 Benedict Wambua) with whom they visited the bar. The deceased and the 1st accused left the bar at 4. 30 p.m. They however came back and were there until about 6. 30 p.m. The evidence of (PW11 Rose Muthoki) the witness who said that she saw her board a matatu to Machakos at 6. 30 p.m is highly suspicious. Even if it were true, it does not lead to the irresistible conclusion that the 1st accused killed or arranged the killing of the deceased. One has to appreciate that Mutituni is also in Machakos area, and there is nothing in the evidence that could lead to the irresistible inference that the 1st accused killed or arranged the killing of the deceased. According to PW1 infact, the discourse between the deceased and the 1st accused that day was quite cordial. The evidence of PW3 John Mbingu that he was given Kshs.10/= by the 1st accused does not add anything. Firstly, he was an employee in the family. Secondly, he does not give any indication that the money was given for a bad motive. There is no evidence that the money was given to facilitate the killing. This accused will have to be acquitted.

The 2nd accused was even more distant from the events. It is not clear how he was charged. The evidence does not connect him to the offence except for an allegation that he handled a mobile phone. That alone cannot be a basis for connecting someone to a criminal offence.

The 3rd accused was charged because of his connection with a mobile phone said to belong to the deceased. He stated that he was given the mobile phone by a person who pledged it as security for a miraa debt. The use of the mobile phone per se does not connect him to the crime, which had been committed earlier. Though one can talk of the doctrine of recent possession, this accused called a witness DW4 Jeremia Karuti who testified that the phone was pledged in his presence. The State Counsel did not even put a single question to this witness, which leaves the defence position unshaken. It is therefore clear that this accused also gave a reasonable explanation for the possession of the phone. That explanation removes the applicability of the doctrine of recent possession that can connect a possessor of recently stolen items with commission of the offence. The result is that the prosecution also failed to prove that the possession of the phone had anything to do with the commission of the crime.

The case of the prosecution is based on evidence of suspicion. Such evidence cannot be a basis for a conviction in a criminal case – See Sawe –vs Republic (2003) KLR 364 at pg. 375 where the Court of Appeal stated:-

“We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear settled rules of engagement. The prosecution must prove the case against the accused beyond reasonable doubt.”

In totality, I find the prosecution has failed to prove any of the three accused guilty as charged. I therefore, find each of the accused not guilty of the charge. I acquit each of the accused of the offence charged under section 215 of the Criminal Procedure Code.

Orders accordingly.

Dated and delivered at Machakos this 13thday of December2012.

George Dulu

Judge

In presence of:

N/A for the State

Mr Konya for all Accused

All three Accused present

Mutinda – Court clerk