[2022] KEHC 16200 (KLR)

Republic v Emisiko & 2 others (Criminal Case 43 of 2020) [2022] KEHC 16200 (KLR) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16200 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 43 of 2020

PJO Otieno, J

December 9, 2022

Between

Republic

Prosecutor

and

Kennedy Emisiko

1st Accused

Fredrick Malenya Owotsi

2nd Accused

Joshua Mang’ula Inguzi

3rd Accused

Ruling

1. Kennedy Emisiko (‘1st accused person’), Fredrick Malenya Owotsi (‘2nd accused person) and Joshua Mang’ula Inguzi (‘3rd accused person’) are charged with the offence of murder contrary to section 203 as read with section 204 of thePenal Code. The particulars of the offence are that on the August 16, 2020 at Muyenga village, Mulwanda Sub-location, Mulwanda location in Khwisero Sub-County within Kakamega County, the 1st, 2nd and 3rd accused persons murdered Alexander Nasebo Katolwa.

2. The accused person pleaded not guilty to the charge and to prove its case, the prosecution called a total of four witnesses. The evidence of the prosecution witnesses can be summarized as below.

3. PW1, Vincent Ashioya Ndolo testified that on August 16, 2020 at about 8PM he was in the house when he heard the sound of a motorbike coming to their homestead. The motorbike had three people that is the rider, the deceased and 2nd accused person who appeared to be drunk. A fight the ensued between them over the caps which the deceased had on his head. The 3rd accused person then intervened to stop the fight and that is when the deceased left for his house only to come back with a panga and hit the 2nd Accused twice on the blunt face. A crowd had formed, the deceased tried to escape and in doing so he cut the 1st accused person’s father by the name of Japheth on the leg. Later that night the 1st accused person in the company of one Nandwa and Malenya (not the 2nd accused person) accosted the deceased with a panga and rungus and left him for dead. Him and his brother Fredrick were then picked by the 1st accused person and led to the home of that accused where one Melissa (1st accused’s mother) informed him not to speak about what he had witnessed.

4. PW2, Dr Mbeki Mavis of Siaya county referral hospital testified that on August 21, 2020, she conducted an autopsy on the body of the deceased who had bruises on the chest and right brow, cut wounds on the occipital region, clavicle bone, right lumbur region, the spine and the right lower limb. She stated that the deceased’s fibula was broken and the right lung had collapsed. It was her finding that the deceased had died due to severe hemorrhage due to multiple cut wounds and hypoxia due to collapsed right lung.

5. PW3, Ezekiel Shisia Kutswa testified that he was a bodaboda rider and that on August 16,2020 he had carried the 2nd accused person as a passenger and on their way they picked the deceased. On dropping the accused and deceased, the deceased took the 2nd accused person’s hat and hit him with a fist and that is when a fight ensued. Neighbors came to quell the fight and the deceased left for his home only to come with a panga which he used to slap accused 2 and in the cause of struggle he heard an old man say that he had been cut with a panga. He left and learnt of the deceased’s death the next day.

6. PW4, No 59986 CIP Thomas Bii the investigating officer testified that he visited the scene of the crime on August 17, 2020 and questioned members of the public and further reiterated the testimony of PW1. He stated that upon concluding his investigations he found the 1st, 2nd and 3rd accused persons were together with Japheth and were culpable for the death of the deceased and he recommended that they be charged with murdering the deceased.

7. From the evidence of those four witnesses, the only evidence capable of connecting the accused persons to the offence is that by PW1. I consider that as the only evidence which connects the accused persons to the offence because PW2’s evidence was that he left the scene for his home after Japeth had been taken to hospital and did not see any of the accused persons kill the deceased. Even the evidence of PW4 can only be viewed as admissible hearsay because he said his conclusions upon investigation was based on the statements he received from the only eye witnesses; PW1 & 2.

8. In considering how the evidence of PW1 connects the accused with the offence, one takes note that the witness told the court that while in the house he heard somebody shout, “it is him”, and opened the door, looked out and saw the deceased running while being chased by three people; Kennedy, Nandwa and Malenya. He said the deceased was unable to run properly because he had only one show. He fell down and was grabbed by the three who started beating him with weapons. He said that Kennedy had a panga while Nandwa and Malenya had a rungu each. He later heard Nandwa say that they had finished.

9. Later 1st accused knocked on the door to the house the witness was in, having been sent by Melisa, mother to 1st accused, to collect Fredrick, brother to the witness, the witness accompanied Fredrick to the home of Kennedy where the mother to Kennedy asked them not to say what they had seen happen to the deceased. He confirmed having gone to sleep and the next day saw a body of the deceased lying on the ground not far from where he had been beaten. When asked to identity the people he had seen beat the deceased, he could only identify Kennedy, the 1st accused. He said that 2nd accused only took Japeth, the injured, to hospital but not the Malenya he saw beat the deceased and that the 3rd accused was only present when the deceased was fighting PW2 and not later in the night when the deceased was assaulted by the three identified people.

10. The court notes that the account of the witnesses commences at 8 pm in the night and goes up to about 10 pm. No evidence was led on the conditions of the night and what aided him see people running and beating the deceased in the night. He did not allude to any source of light.

11. There is greater doubt as to the ability of the PW2 to have identified the assailants when note is taken that the investigating officer PW4 approximated the distance between the house of the deceased where the body was found to have been about 80 meters apart. The court finds it not very credible that the witness was able to identify the assailants and observe what they were doing that far without the aid of any disclosed source of light. To this court, that evidence is not only unsafe against the 1st accused but also of no help to the prosecution as against the 2nd and 3rd accused persons who the witness said were not part of the gang of the three who assaulted the accused.

12. For this court to put the accused persons to their defence, the available evidence must be the kind the court could be able to convict upon if no rebuttal is offered1. 1Republic v Abdi Ibrahim Owl[2013] eKLR and Ronald Nyaga Kiura v Republic[2018] eKLR

13. The court finds that no prima facie case has been established against any of the accused persons and therefore all are acquitted under section 306(1) CPC. For that reason the court records a verdict of not guilty.

14. Let the accused persons be released forthwith unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF DECEMBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Ms. Amasakhwe for the AccusedMs. Chala for the ProsecutionCourt Assistant: Polycap