[2022] KEHC 1473 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NUMBER 28 OF 2017

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

VERSUS

EDNA CHEPNG’ENO NG’ETICH................................................................1ST ACCUSED

WELDON KIBET NG’ETICH.......................................................................2ND ACCUSED

R U L I N G

1. This ruling was to be delivered on 15th July 2021. The accused persons were both on bond and for some reason the communication between them and their counsel broke down.

2. On 28th February 2022 we called out the Assistant Chief and Nyumba Kumi whose recommendations on the release of the accused persons on bond were on file. The accused persons showed up today, as directed, an indication that those networks do work.

3. The accused persons Edna Chepng’enoh Ng’etich and Weldon Kibet Ng’etich were charged with Murder contrary to section 203 as read with section 204 of the Penal Code.

4. It was alleged that on 25th May, 2017 at Mosop Village in Kuresoi Sub-County within Nakuru County they murdered Simeon Ng’etich.

5. They took plea on 20th June, 2017 and each pleaded not guilty.

6. The trial did not take off until 10th February 2021. The Prosecution called two witnesses.

7. PW1, George Biketi, Assistant Director Medical Services Nakuru County and the Medical Superintendent in Charge Elburgon Sub County hospital, Licence No. AA7703 testified that he conducted the post mortem on the body of the deceased on 2nd June 2017 at Molo Sub County Hospital at 12. 00 noon.

8. He testified that found defence wounds on the hands, bleeding below the skin in the scalp skin, fracture of the left temporal bone, and a hematoma on the left brain. He determined that the cause of death was as a result of severe head injury caused by a massive blunt trauma. He produced the post mortem report as prosecutionExhibit 1.

9. On cross examination he told the court that he had written in the the post mortem form that the deceased was hit by the wife. He said that he had inferred the cause of death from the history. Pressed for the source of this information he told the court that he had learnt this from the history given by those who attended the postmortem. Referred to the report it turned out that he could not place the source of the information to any specific person. To that extent he told the court that the words ‘hit by wife’ in the report were misplaced and could be expunged.

10. PW2, Prisca Chepkemoi, testified that on 25th May, 2017 at about 10:00 p.m. the 1st accused person went to their home and told her and her mother that they needed to go and check on a person that was at her house. They rushed there and found that it was 1st accused’s husband who was lying down half covered with a blanket. He had an injury on the forehead. She touched him and confirmed that he was dead. It was then she raised an alarm and the neighbors came. She told them to ask the 1st accused and her son the 2nd accused as to what happened as they were the ones who were there. She said that the police came the following day and took the body and both accused persons after asking questions.

11. On cross examination she confirmed that she recorded her statement on 27th May, 2017 and that the accused persons are her neighbors. She confirmed she did not know who killed the deceased.

12. After the testimony of PW2, the prosecution closed its case on 8th June 2021.

13. The parties did not file submissions.

Analysis and Determination

14. The issue for determination is whether the prosecution has presented sufficient evidence to warrant the accused persons to be put on their defence pursuant to the provisions of Section 306 (2) of the Criminal Procedure Code.

15. Section306(1) & (2)of the Criminal Procedure Codeprovides;

(1)When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.

(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.”

16. The offence of Murder is defined by Section 203 of the Penal Codeas follows;

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

17. There are three essential ingredients of the offence of murder which the prosecution must establish namely;

(a) Death of a person;

(b) That the accused caused the death through an unlawful act or omission; and

(c) That the accused had malice aforethought.

18. Malice aforethought is defined at Section 206 of the Penal Code thus:

“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—

(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;

(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;

(c) an intent to commit a felony;

(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

19. A prima facie case or a case to answer was explained inRamanlal Trambaklal Bhatt vs R [1957] E.A 332 at 334and335,where the court stated as follows:

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence…It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

20. Certainly, at the close of the case for the prosecution there must be something tangible to which an accused person can be asked to respond. The court is not expected to seek an explanation from an accused for the sake of it. He must be responding to concrete evidence placed before the court, which if he was to keep quiet the court could still proceed to convicted him.

21. In this case there is the evidence of only two witnesses. PW1 established the cause of death. In his report he had indicated that deceased was hit by the wife, meaning the 1st accused. However, when he could not establish the source of that information he had it expunged from the record. That made it appear as though he had determined the cause of death from what he was told by an unknown person(s). PW2’s testimony was to how she found the the body of the deceased after being called by the 1st accused. She had no idea what happened to him.

22. Apparently no investigations were conducted. If they were the investigating officer was not called.

23. So what is the nexus between the death of the deceased and the wife and son? It was upon the prosecution to lay that basis for the charge against the two accused persons by providing that nexus, and not to bring the charges and to expect the accused persons to provide the connection,

24. Even if the court was to try to consider circumstantial evidence would there be a nexus? Without an eye witness the question then becomes whether the circumstances of the case present sufficient evidence to warrant the accused persons being put on the defence. This is in light of the words of oft cited words of the case Republic vs Taylor Weaver and Donovan (1928) 21 CR APP R 20, where the court stated

“Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”

25. The Court of Appeal in Omar Mzungu Chimera vs Repubic, Criminal Appeal No. 56 of 1998, at P. 5 through P. 6 stated that:

“It is settled law that when a case rests on entirely circumstantial evidence, such evidence must satisfy three tests:

(i) the circumstances from which an inference of guilty is to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else”

“…. circumstantial evidence in order to sustain a conviction (must be complete and incapable of) explanation on any other hypothesis than that of the guilt of the accused. Circumstantial evidence which falls short of the required standard on all material particulars cannot in law form a basis for a conviction.”

26. While at this stage the issue is only whether there is a case to answer on the part of the accused persons, by way of inference, the case applies. It is evident that the circumstantial evidence does not cover the requirements of a prima facie case.

27. The prosecution has not discharged its burden to establish a prima facie case to require the accused persons to be placed on their defence.

28. Having found as per Section 306(1) of the Criminal Procedure Codethat there is no evidence that the accused persons committed the offence, I enter a finding of not guiltyand acquit the each accused person accordingly.

29. Each accused’s surety is discharged.

DELIVERED AT NAKURU VIRTUALLY THIS 16TH DAY OF MARCH 2021.

Mumbua T. Matheka

Judge

In the presence of;-

Court Assistant Edna

1st Accused Person present in open court

2nd Accused Person present in open court

Ms. Moenga for accused

Ms. Murunga for ODPP