[2013] KEHC 4399 (KLR)

REPUBLIC OF KENYA

High Court at Mombasa

Criminal Case 53 of 2009 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]

REPUBLIC …………….……………………..…..……………………. PROSECUTION

VERSUS

ERICK ODHIAMBO AKUMU …………….…….….………………........…….ACCUSED

JUDGMENT

The accused ERICK ODHIAMBO AKUMU (hereinafter referred to as the 1st accused) and JUDITH AKINYI MWAI (hereinafter referred to as the 2nd accused) were jointly charged with the offence of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE. The particulars of the charge were that:

“On or about 15th day of December 2009 at Majengo Estate in Mombasa District within Coast Province, jointly with others not before court murdered DOREEN AOKO ACHACHA”

Both accuseds entered a plea of ‘Not Guilty’ to the charge and their trial commenced on 20th May 2010. The prosecution led by learned State Counsel MR. ONSERIO called a total of fourteen (14) witnesses in support of their case. MR. WAMEYO learned counsel acted for both accused persons. The brief facts of the case are given here below.

PW1 WILLIAM ACHACHA OWITI who was the husband to the deceased told court that his wife DOREEN AOKOcarried out a trading business at Mwembe Tayari Market. On 15th December 2009 she left to go out to her business in the morning as usual. However the deceased failed to return home at 7. 00 p.m. as was usual. PW1 sent his children to go and search for her at the market. The children went out to search but failed to trace their mother and returned home. PW1 told the court that he waited until midnight but the deceased failed to return home. The next morning PW1 went to the market to search for his wife. He met PW2 FLORENCE ADHIAMBO also a trader who confirmed to him that she had seen the deceased the previous day and that deceased had left her luggages with PW2 to keep for her. Later according to the evidence of PW2 a young man whom she identified as the 1st accused came and told her that he had been sent by the deceased to collect the parcel she had left with PW2. Since PW2 did not know the 1st accused she was understandably reluctant to release the said parcel to him. They then called the 2nd accused whom they refer to as ‘Nyar-Seme’ and the 2nd accused did confirm to PW2 that the 1st accused was known to her and it was on this basis that PW2released the parcel. It was not until 17th December 2009 two days after she had gone missing that the dead and decomposing body of the deceased was found in a room No. 101 at Kenya Bar and Restaurant in Majengo. Police were called to the scene and removed the body to the mortuary at Coast General Hospital. The two accuseds were later traced and arrested. Upon completion of police investigations both were arraigned in court and charged with the murder of the deceased.

With respect to the 2nd accused this court found that she had no case to answer as no prima facie case had been made out against her. I will now proceed to give my reasons for that decision. The only evidence which was tendered as against the 2nd accused was the fact that she told PW2 that she knew the 1st accused as a boy who helped carry luggages in the market. There was absolutely nothing wrong or suspicious in this. There was no evidence that the 2nd accused met or was seen in the company of the deceased from the time she disappeared upto the time when her dead body was recovered. Similarly there was no direct and/or tangible evidence linking the 2nd accused to this dead body. On the contrary both PW1 the deceased’s husband and PW4 CAROLINE AKINYI who was a daughter to the deceased testify that the 2nd accused appeared saddened by the disappearance of the deceased and she kept company with the family throughout the whole ordeal until the body of the deceased was recovered. In her evidence PW3 stated:

“Accused - 2 came voluntarily to the police station. The 2nd accused was talking like one who was in shock. We left the police station together with 2nd accused. We boarded one vehicle …. Then Accused -2 suggested that we make an announcement [of a missing person] at Baraka F.M. We all prayed together”.

PW1and PW3 both told the court that the 2nd accused led the prayers for the safe return of the deceased to her family. The actions of the 2nd accused were not those of a person who had a guilty mind. She stood in solidarity with the family. It was she who suggested that a missing person advertisement be made in the local radio station. She accompanied the family to the police station to report the matter and back to their home where she conducted prayers. It is clear that the 2nd accused was as disturbed as the rest of the family by the disappearance of the deceased who was also her friend. The fact that the 2nd accused confirmed that she knew the 1st accused did not mean she was party to anything he may or may not have done. A suggestion was made that the 2nd accused was owed money by the deceased. However this appeared to be mere conjecture. PW14 CHIEF INSPECTOR OBWOCHA told court that he received information that the deceased owed the 2nd accused Kshs.10,000/-. He has not told the court how he came by this information or from whom. There was no evidence that the 2nd accused had ever made a demand for payment of this ‘debt’. Neither PW1 or PW3 who were both related to the deceased made any mention of this debt and I do dismiss the same as an unproven allegation. On the whole I found no evidence to link the 2nd accused with the disappearance and/or death of the deceased and that is why I did acquit her under Section 306(1) of the Criminal Procedure Code.

With respect to the 1st accused this court rule that he did have a case to answer and he was placed on his defence. The 1st accused elected to make a sworn defence in which he denied any and all involvement in the death of the deceased. This court now must make a determination on whether this charge of murder has been proved to the standard required in law.

The offence of murder is defined thus by Section 203 of the Penal Code:

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

From this definition derives the three ingredients of the offence of murder:

1)That a death has occurred and the cause of that death

2)That the accused by an unlawful act or omission caused the death of the deceased and

3)That said unlawful act or omission was committed with malice aforethought.

There can be no doubt whatsoever about the fact of the death of the deceased. Both PW1 and PW3 the widower and daughter of the deceased respectively told the court that they saw her dead body first at the lodging room in Majengo and later identified the same body at the mortuary at Coast General Hospital. PW6 SERGEANT MICHAEL ODUOR is the Scenes of Crime officer who went to the Kenya Bar and Restaurant in Majengo and took several photographs of the body all of which were produced as exhibits Pexb1. The court had an opportunity to view the photographs. They depicted the bloated and decomposing body of a female African adult with blood around the head area.

Similarly evidence regarding the cause of death is quite clear. PW11 DR. K.N. MANDALYA was the consultant pathologist who conducted the autopsy on the body of the deceased. He noted that the body was badly decomposed. He also noted a fracture of the upper cervical spine and haemorage around the larynx. His opinion was that the cause of death was “cardio respiratory failure due to cervical spine fracture possibly due to pressure on the neck”. PW11 filled and signed the postmortem report which he produces as an exhibit Pexb2. It is clear that the deceased met her untimely death due to strangulation. This is expert medical evidence which has not been challenged nor controverted by the defence. Further the presence of blood-stains in the room where the body was recovered suggests that some violent confrontation may have occurred before the deceased met her death.

The final question is whether sufficient evidence exists to prove that it was the accused who caused the unlawful death of the deceased person. In this case PW2 told the court that on 15th December 2009 his wife (the deceased) left their home to go and carry out her fish mongering business as usual. She failed to return home that evening. PW2 testified that she knew the deceased well as a fellow market trader. On that day i.e. 15th December 2009 PW2 confirms that she saw the deceased who left with her some parcel for safekeeping. Thus by 7. 00 p.m. on 15th December 2009 the deceased was seen alive – later that same evening at about 9. 00 p.m. the 1st accused came to PW2 and requested to be given the deceased’s parcel. He said the deceased had sent him to collect the parcel. It is obvious that 1st accused must have met and spoken to the deceased that evening as there is no other way he could have known about the parcel she had left with PW2. PW2 after initially resisting did hand over the parcel to the 1st accused who went away with it. PW2 positively identifies the 1st accused as the young man to whom she gave the deceased’s parcel. They spent much time in each others company – enough time to enable a phone-call to be made to the 2nd accused who confirmed that the parcel should be released to the 1st accused as she knew him. Further, PW2 spoke to the 1st accused and therefore had ample time and opportunity to see him well.

In his defence the 1st accused denies having received any parcel from PW2 or from any other person. I find this statement to be a bold-faced lie. Why would PW2 who did not even know the accused fabricate evidence against him? She had absolutely nothing to gain by doing this. Further, PW2 identified the 1st accused by his names ‘Erick Odhiambo’ which she said she read on his identity card which he showed her. The fact that his names are Erick Odhiambo is not denied by the 1st accused. PW7 PC GEOFFREY MATHENGE who was the arresting officer told the court that when the 1st accused was brought to the police station he questioned him. The 1st accused told him that he did indeed collect the parcel on behalf of the deceased but insists that he handed it over to the deceased at the Lebanon roundabout then they parted ways. Why has the accused now changed his story? He originally admitted having met the deceased on the night in question yet in his defence he makes a blanket denial. This inconsistency in his statements shows that accused had something to hide. Once again I reiterate that it is only though the deceased herself that 1st accused could have known of the parcel which had been left with PW2 for safe-keeping. I find this denial by the 1st accused to be a desperate attempt to put as much distance as possible between himself and the deceased. I was able to observe the demeanour of PW2 as she gave her evidence. She was a simple but mature woman and struck me as a truthful witness. As I have stated earlier PW2 had absolutely nothing to gain by fabricating evidence to implicate the 1st accused. I believe her evidence that on the night the deceased went missing the 1st accused did go to PW2 and did collect from her the parcel which the deceased had earlier left with PW2.

PW5 ALI NASSIR ATHUMANtold the court that he is the proprietor of Kenya Bar and Restaurant where the body of the deceased was recovered two (2) days after she disappeared. He told court that his cashier named ‘Pauline Mbithi’ phoned him on 17th December 2009 at 8. 00 p.m. to inform him of the recovery of a dead body in one of the hotel rooms. PW5 told her to inform the police. The said Pauline absconded from that day and stole Kshs.80,000/= from the hotel. She has not been traced to date. Similarly the room attendant ‘Phillip Kisio’ also absconded on that same day and he too has not been traced to date. There is a possibility that the two may have been involved in the death of the deceased but on the other hand they may have just taken advantage of the situation to steal from the hotel and escape. PW5 told the court that he did call police from Makupa Police Station who came and removed the body which was by then emitting a bad oduor. PW5 also retrieved the hotel register which simply showed that room No. 101 in which the body had been recovered had been let out and paid for. However the name of the client was not recorded in the register.

The only witness who places the 1st accused at the scene of the crime was PW8 DIDA KAILU who was a cleaner at Kenya Bar. This witness had a speech impediment and therefore could only talk very slowly. However I did note that he had no problem comprehending the questions which were put to him and he did give clear answers thereto. His speech impediment does not in any way affect his veracity as a witness. In addition PW8 did identify his statement as well as his signature thereon. The statement (which had also been supplied to the defence) was produced as an exhibit to buttress his testimony Pexb4.

PW8told the court that on 15th December 2009 he cleaned room No. 101 at about 9. 00 a.m. He later returned from the mosque at 5. 00 p.m. but was unable to enter the room to sweep as it was locked. This witness identifies the 1st accused as the man whom he saw enter the room in question with a lady. He explained that he saw two men and one woman go to the room. He states that the lady was carrying a bag containing vegetables [probably the parcel which had been left with PW2]. Later at 9. 00 p.m. PW8 says he saw one man leave the room lock it and go away. He identifies the 1st accused as that man. The next day 16th December 2009 PW8 attempted to gain access to the room to clean it but it was still locked. He did not bother again until 17th December 2009 when a client reported a bad oduor. Police came and broke open the door and the body of deceased was found therein. All this activity was taking place within the confines of the hotel. PW8 had ample time and opportunity to see and recognize the 1st accused. Indeed in his statement to police PW8 stated that he would be able to recognize those he saw by their facial features. The first time this witness saw 1st accused go up to the room with the deceased it was 5. 00 p.m. It was broad daylight and visibility was good. About four (4) hours later at 9. 00 p.m. he saw 1st accused lock up the room and go away. 1st accused did not return the key to the hotel reception as was the normal practice. That is why police had to break the door in order to gain access. I found PW8 to be an honest witness. As a court I am mindful of the danger of relying on the evidence of a single witness on identification. I am satisfied that PW8 gave clear and concise evidence and he remained unshaken under cross-examination. Again I find that PW8 did not know the deceased or 1st accused before this incident. He had no motive to render false evidence in court. His words to court were:

“The dead lady went upstairs to the room with 1st accused”

Nothing could be clearer than this. I find as a fact that the 1st accused was seen in the company of the deceased on 15th December 2009 the day when she went missing.

The facts show that 1st accused entered a hotel room No. 101 with the deceased. A few hours later 1st accused emerges from that very room alone, locks the door and leaves with the key. The dead body of the deceased is recovered in the same room 101 two (2) days later badly decomposed (an indication that death had occurred some days earlier). There can only be one logical conclusion from this set of facts. The circumstantial evidence points squarely at the 1st accused as having had a direct involvement in the death of the deceased. In the case of MWANGI –VS- REPUBLIC [1983] KLR 522 the Court of Appeal in discussing circumstantial evidence held as follows:

“In a case depending exclusively on circumstantial evidence, the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt. It is also necessary before drawing the inference of the accused’s guilt from the circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference ….”

This is precisely the situation which pertains in this case. The inculpatory facts point directly to the guilt of the 1st accused. No other explanation is reasonably possible. If the deceased had met some misfortune or accident whilst in the room then 1st accused ought to have alerted the hotel management, the police or any other authority of this. The fact that having entered the room together with the deceased the 1st accused calmly walks out four hours later leaving her battered and bloodied body inside the room is clear proof that it was 1st accused who committed this murder. PW8 said he saw two men enter the room with deceased. He did not see the second man leave. The fact that a second suspect may have been involved does not absolve the 1st accused of guilt. The two must have acted in concert. The medical evidence is that the deceased’s neck was broken. Any person who attacks another and breaks their neck clearly intended to kill the victim. I am satisfied that malice aforethought is proven to have existed. From the evidence adduced I find that the prosecution have proved beyond reasonable doubt that the 1st accused had a direct hand in the death of the deceased. I therefore convict him of the offence of murder as charged.

Dated and delivered in Mombasa this 2nd day of November, 2012.

M. ODERO

JUDGE

In the presence of:

Mr. Onserio for State

Mr. Wameyo for Accused

Court:

Mention 23rd November, 2012 for mitigation.

M. ODERO

JUDGE

2ND NOVEMBER, 2012

23rd November, 2012

Before Hon. Justice M. Muya

Court Clerk Phillip

Mr. Onserio for the State

Mr. Wameyo for the Accused

Court:

Mention 27th November, 2012 before Odero J.

M. MUYA

JUDGE

23RD NOVEMBER, 2012

27th November, 2012

Before Hon. Lady Justice M. Odero

Court Clerk Mutisya

Mr. Onserio for State

Mr. Wameyio for Accused

Court:

Hearing 28th November, 2012.

M. ODERO

JUDGE

27TH NOVEMBER, 2012

28th November, 2012

Before Hon. Lady Justice M. Odero

Court Clerk Mutisya

Mr. Onserio for State

Mr. Wameyo for Accused

Accused:

I do not wish to be represented by this lawyer. He did not do my case well. I do not want him to continue with my case.

Mr. Wameyo:

My conscious is clear. I did my best in representing accused. In view of accused’s sentiments I beg to be excused from this case.

Court:

I do agree that counsel put up a robust and spirited defence for his client. However, the accused’s wishes must be upheld. If he no longer wishes Mr. Wameyo to act for him then court will uphold this wish. Mr. Wameyo is excused from acting. Deputy Registrar to assign a new counsel for accused for purposes of mitigation. Mention 20th February, 2013.

M. ODERO

JUDGE

28TH NOVEMBER, 2012

20th February, 2013

Before Hon. Lady Justice M. Odero

Court Clerk Mutisya

Mr. Jami for State

Counsel absent for Accused

Mention on 28th February, 2013.

Mention notice to Mr. Mushelle.

M. ODERO

JUDGE

20TH FEBRAURY, 2013

5th March, 2013

Before Hon. Lady Justice M. Odero

Court Clerk Mutisya

Mr. Jami for State

In person Accused

Court:

Mention on 12th March, 2013. Mention notice to Mr. Mushelle.

M. ODERO

JUDGE

5TH MARCH, 2013

12th March, 2013

Before Hon. Lady Justice M. Odero

Court Clerk Mutisya

Mr. Jami for State

Mr. Mushelle for Accused

Mr. Mushelle:

I have now been appointed to act for accused. My client instructs me that he is not satisfied with the way in which his lawyer made submissions. He is not happy with the manner in which the court conducted his case. My client wants the matter to start afresh.

Court:

The matter has been heard and concluded. It will not be re-opened. The accused has a right to appeal if he so wishes. The counsel to give mitigation. Hearing 15th March, 2013 for mitigation.

M. ODERO

JUDGE

12TH MARCH, 2013

15th March, 2013

Before Hon. Lady Justice M. Odero

Court Clerk Mutisya

Mr. Jami for State

Mrs. Mushelle for Accused

Mr. Mushelle in Mitigation:

The accused is a first offender. He has been in custody for over 4 years. He is very remorseful. We seek a lenient sentence. We pray for a non-custodial sentence.

Court:

Mitigation noted. Accused actions led to loss of human life and left a family without a mother. The offence is serious and a deterrent sentence is called for. The accused is sentenced toforty (40) years imprisonment. He has a right to appeal.

Dated and Delivered in Mombasa this 15th day of March, 2013.

M. ODERO

JUDGE

In the presence of:

Mr. Onserio for State

Mr. Wameyo for Accused

Court Clerk Mutisya

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