[2017] KEHC 901 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 58 OF 2015

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

VERSUS

EDWIN ZEDEKIAH WAMBUSI.................ACCUSED

RULING

Edwin Zedekiah Wambusi, whom I will call “the accused” in this ruling, is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that Edwin Zedekiah Wambusi on the night of 22nd and 23rd May 2015 at Lunga Lunga Slums in Industrial Area in Nairobi County murdered Anne Njeri. The accused has denied committing this offence necessitating this trial. The State being the prosecuting body called seven (7) witnesses in total to support its case against the accused. The case for the prosecution has concluded and now the onus shifts to the court to determine whether the evidence by the prosecution establishes a prima facie case against the accused. If it does establish a case against the accused at this stage, then he will be put to his defense. If not then this court must acquit him. The two scenarios are in line with the provisions of section 306 of the Criminal Procedure Code.

The evidence against the accused is straightforward. On the night of 22nd and 23rd May 2015 Patrick Njuguna Wangui, PW3, a neighbour of the deceased Anne Njeri and her boyfriend identified in evidence as Edu, heard a quarrel in the deceased’s house. Patrick told the court that the voices he heard were that of the deceased and Edu her boyfriend. Patrick clarified to the court that Edu is short for Edward. Patrick said he heard Edu saying in Kiswahili: “Pesa nzangu ndizo unatumia kulala na wanaume?” This loosely translates as “You are spending my money to entertain other men?” The deceased was said to have denied this accusation. The following day, Patrick noted that the door to deceased’s house was locked from outside and the lights were still on inside. He further noted that the shoes of the deceased and her baby were still outside their house. Patrick alerted his mother Monica Wangui, PW2. Monica peeped into the deceased’s house and saw the deceased lying on her bed. Assisted by other neighbours, Monica and Patrick broke open the door and found the body of the deceased lying on the bed and her baby in the house. The baby was rescued and handed over to the relatives who included Stephen Wachira Gituanja, PW1. The matter was reported to the police who removed the body of the deceased and took it to the City Mortuary. Investigations were completed and the accused was arrested and charged with this offence.

In his submissions the defense counsel Mr. Ruiru raised issue with the evidence of the prosecution. He submitted that the evidence is weak and does not establish a prima facie case against the accused. He submitted that the prosecution evidence is circumstantial since there is no direct evidence that the accused committed this offence. He submitted that for this court to find that the accused has a case to answer, the evidence must meet the legal standards of circumstantial evidence. Mr. Ruiru referred this court to the case of R. v. Nicholas Ngugi Bangwa [2015] eKLR in which the court cited with approval Criminal Appeal No. 32 of 1990 Abanga alias Onyango v. R (UR) where the Court of Appeal set out three tests to be satisfied where circumstantial evidence is relied on. The tests are that (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; and that (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.

Mr. Ruiru submitted that the evidence adduced by the seven prosecution witnesses does not meet the above threshold. He further submitted that the evidence of Patrick is in respect of recognition by voice and that too does not meet the threshold laid down by legal principles. He referred this court to the case of Karanja v. Republic (1985) KLR 290where the court discussed the issue of voice recognition. He urged this court to find that the evidence does not establish a prima facie case against the accused. He asked the court to find so and acquit the accused at this stage of the trial for no case to answer.

Ms Ikol for the prosecution submitted that the prosecution has adduced sufficient evidence to prove a prima facie case against the accused through the evidence of Monica and Patrick and that Dr. Dorothy Njeru who performed the post mortem on the body of the deceased confirmed the death of the deceased.

I have considered the evidence of the prosecution witnesses. The evidence of Stephen Wachira Gituanya (PW1) who is uncle to the deceased relates to the information he received regarding the death of the deceased and the role he played in travelling to Nairobi to confirm the information and attend to the post mortem examination. Joseph Mburu Gituanya (PW4) father of the deceased also received information regarding the death of the deceased and travelled to Nairobi to confirm the same and also to attend to the post mortem examination. CPL Stephen Kiogora (PW6) was the duty officer on 23rd May 2015 who visited the scene. His evidence is that he found the body of a woman lying on a bed in a house that was in disarray. According to him the body had marks on the neck. CPL Kiogora further told the court that neighbours mentioned Edwin the deceased’s boyfriend as a possible suspect. He also said that neighbours told him that the boyfriend had been seen during the day and that there had been a commotion during the night. The evidence of PC Daniel Kieni is in respect of the photographs he took at the scene.

All this evidence does not point to the accused as the person who murdered the deceased. Although CPL Kiogora mentioned information given to him by neighbours, he did not identify any of the neighbours who may have given him the information especially on the identification of the accused as the culpable one.

This leaves the evidence of Monica and her son Patrick as well as that of Dr. Dorothy Njeru (PW5). Dr. Njeru told the court that externally, the body had bruises on the outer aspect of the left limb; bruises in the region of the neck; bruises in the region of the collar bone and around the mouth. She further testified that the body had internal injuries on the frontal area of scalp. The opinion of the doctor was that the deceased died due to asphyxia due to mechanical strangulation with multiple soft tissue injuries. This evidence confirms that death of the deceased occurred due to unlawful means. It however does not identify the person who caused the injuries leading to the death of the deceased.

Monica did not mention the accused by name. Her testimony relates to the information given to her by Patrick her son that Patrick had heard the deceased and the boyfriend arguing at night. Monica did not identify the accused either before he was charged or in court as the boyfriend of the deceased. Her evidence is hearsay. Patrick on the other hand mentioned a person known as Edu as the boyfriend of the deceased whose voice he had heard at night asking the deceased about spending his money while entertaining other men. Patrick further told the court that after the commotion inside the deceased’s house was over, he went outside his house and heard the deceased’s baby crying and Edu telling the child “Nyamaza Mum”. Patrick told the court that Edu is short for Edward. He did not identify the accused in court as the Edu or Edward he was referring to.

My careful consideration of the evidence so far leads me to the conclusion that it is weak and it does not satisfy the tests above as submitted by the defense counsel. The only two witnesses, Monica and Patrick, who were near the scene did not identify the accused in court as the boyfriend of the deceased they were referring to. Patrick referred to that boyfriend as Edu and clarified that this is short for Edward. This is not the name the accused is known by. The name appearing on the charge sheet is Edwin. The evidence is purely circumstantial and hinges more on voice recognition. In Karani v Republic (1985) 290the Court held that recognition by voice nearly always amounts to identification by recognition. Yet here as in any other case care has to be taken to ensure that the voice is that of the appellant, that the complainant was familiar with the voice and that he recognized it and that there were conditions in existence favouring safe identification. And in Choge v R (1985) KLR 1the Court of Appeal held that voice identification is receivable and admissible and it can, depending on the circumstances, carry as much weight as visual identification. In receiving such evidence, however, care and caution should be exercised to ensure that the witness was familiar with the appellant’s voice and recognized it and that the conditions obtaining at the time the recognition [was] made were such that there was no mistake in testifying to that which was said and who had said it.

When I subject the evidence of Patrick to these standards I find that it falls short of the threshold. Patrick and Monica have confirmed that the deceased and her boyfriend had not lived in that neighbourhood for long, probably for about two months. Patrick said he recognized the voice of the deceased’s boyfriend because it was unique. He did not tell the court what unique meant and besides as stated above in this ruling neither Patrick nor Monica identified the accused as the boyfriend they were referring to either in court or outside the court. As the evidence stands now, there is none connecting the accused to the boyfriend of the deceased who argued with her on the night she died.

The defense is not expected to fill the gaps left by the prosecution case. The prosecution has closed its case and there is no further evidence expected. The question I pose here is: Does the evidence of the prosecution at the close of its case make out a case on which this court, properly directing it mind to the law and the evidence, could convict the accused person if no explanation is offered by the defense? My answer to the question is in the negative. At this stage of the trail therefore it is my considered view that the evidence so far adduced by the prosecution does not meet the threshold of a prima facie case. It is not persuasive enough to make me make a ruling that the accused has a case to answer. To do so would be tantamount to speculating that the defense will do something, like admitting the offence, which would lead this court to find the accused guilty of this offence. This to me would amount to shifting the burden of proof from where it lies with the prosecution to the accused person. The result would be acting contrary to the laid down legal principles and the law and would amount to miscarriage of justice.

It is my finding therefore that the evidence does not establish a prima facie case against the accused to warrant his being placed on his defense. The only option open to this court is to find the accused, Edwin Zedekiah Wambusi, not guilty. I so find and proceed to order his immediate release from custody unless for any other lawful cause he is so held. He is free to enjoy his freedom. Orders shall issue accordingly.

Delivered, dated and signed this 9th day of November 2017.

S. N. Mutuku

Judge