[2019] KEHC 3321 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

CRIMINAL CASE NO. 1 OF 2019

REPUBLIC......................................THE PROSECUTOR

=VRS

EVANS ONDIEKI MONYENYE..........THE ACCUSED

JUDGEMENT

The accused is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the charge are that on the night of 24th December 2018 at Ikobe Sub-location, Bosamaro Chache Location in Nyamira County the accused murdered Nyarechi Nyabuti Monyenye.

The accused pleaded not guilty to the charge. To prove its case, the prosecution called seven witnesses. Briefly the prosecution’s case is that at about 6. 15am Kevin Ombati (Pw1) stumbled on the deceased, who was his uncle, groaning in a hole near some banana crop. He was still breathing but he had a big wound on his head. Pw1 called his mother who went and confirmed it was his uncle and then alerted his wife. A crowd then gathered at the scene and according to Pw1, the accused went and said it was him who had beaten the deceased and he had money to take him to hospital. Pw1 stated that the accused told those at the scene that at first he hit the deceased with a club but when he saw he was not running away he went for a panga and hit him with it then went back to his house. The accused’s wife one Esther is said to have said at the scene that the accused had frightened the deceased away as he was uttering expletives and he wanted him to go to sleep. The accused is said to have produced Kshs. 1,400/= to take the deceased to hospital but he succumbed to the injuries before arrival at the hospital. The court heard that when the crowd that had gathered at the scene questioned the accused he admitted to have assaulted the deceased. The crowd threatened to beat him but two members of “Nyumba Kumi” who were present saved him and took him to the house of the Assistant Chief. It was alleged that even there he admitted he had hit the deceased with a panga and gave directions to the place he had kept the panga in his house. Word was sent to the area Chief who was still at the scene and who allegedly went and recovered the panga. The panga is said to have been stained with blood. It was alleged that the accused had disputed with the deceased over some trees planted by the latter along their boundary but according to David Ongera (Pw3), the dispute had been taken before the Assistant Chief and resolved.

A post mortem conducted on the body of the deceased revealed the cause of death was a penetrating deep cut wound on the frontal bone of the head leading to intracranial haemorrhage. On 4th January 2019 the accused purportedly made a confession which was recorded by Chief Inspector of Police David K. Mursoy in the presence of two members of the accused’s family. He was subsequently charged with this offence.

In his defence (unsworn statement) the accused stated that he was arrested at his home in the early hours of 24th December 2018 and told he had killed Nyariki Monyenye. He denied that he committed the offence and contended that he did not know anything about the murder. He also disputed that he had a panga.

In summing up, Mr. Bwonwong’a, Advocate for the accused submitted that the prosecution had not proved its case. That there was no eye witness to the crime and the case against the accused was based on suspicion because he was the last one to have been seen drinking with the deceased. He contended that there were contradictions regarding the recovery of the panga and submitted that the same was not produced as an exhibit as it had no blood. Counsel doubted that the deceased had been assaulted at night stating that were that the case he would not have been conscious in the morning. He contended that the scene was close to some houses yet nobody claimed to have heard what transpired. He submitted that the case against the accused is based on circumstantial evidence and invited this court to acquit him.

Counsel for the State intimated that he wished to rely on the evidence on record.

In this case there is no direct eye witness account that the accused killed the deceased and the case against him rests purely on circumstantial evidence. In the case of Mwangi v Republic [1983] KLR 522 the Court of Appeal stated: -

“1. An offence of murder can be established by evidence tendered directly proving it or by evidence of facts from which a reasonable person can draw the inference that murder had been committed…..”

In Kihungu v Republic [1984] KLR 648, O’kubasu J ruling on circumstantial evidence held: -

“1. Circumstantial evidence is very often the best evidence and it cannot be impugned merely on the ground that it is circumstantial.”

The principles to be applied in considering such evidence is now well settled. In Mwangi v Republic (supra) the Judges of Appeal reiterated those principles and held: -

“2. 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……..”

The issue for determination therefore is whether the inculpatory facts in this case prove beyond reasonable doubt that the accused person killed the deceased by an unlawful act and of malice aforethought. Those inculpatory facts are: -

(i) That the accused person was the last to be seen with the deceased.

(ii) That the accused admitted at the scene and in a written confession recorded by a Chief Inspector of Police that he hit the deceased with a panga.

(iii) That he provided the money that was used to take the deceased to hospital.

(iv) That the cause of death was penetrating deep cut wound on the frontal bone of the head leading to intracranial haemorrhage and

(v) That he led to the recovery of the panga (murder weapon) in his house.

Although the prosecution witnesses gave evidence that the accused was the last to be seen with the deceased, none of them alleged to have seen them together and as the person who told them they were together was not called as a witness, that impression was based on hearsay. That inculpatory fact was not therefore proved let alone beyond reasonable doubt.

As for the alleged admission by the accused that he had assaulted the deceased, only Kevin Ombati (Pw1) stated that he heard the accused brag that it was him who had assaulted the deceased and that he could afford money to take him to hospital. All the other witnesses testified that they only heard the accused had made that admission. It is curious that although all the other witnesses (Pw2 and Pw3) were also present at the scene, they did not hear accused make that statement. It is even more curious that even then, Zablon Mayaka (Pw5) the person who was driving the vehicle that was to take the deceased to hospital, alleged to have been given the money by the complainant’s wife but not the accused himself. However, nobody claims to have seen the accused’s wife giving the money to him and he himself said he was told it was she who had given out the money. In the absence of the evidence of the person to who she gave that money, that piece of evidence was nothing but hearsay. If that piece of evidence was hearsay, Pw1’s evidence that the accused admitted assaulting the deceased cannot also be trusted. Pw2 and Pw3 also alleged that the accused admitted to the Assistant Chief that he killed the deceased. However, they told this court that he did that in the face of an angry crowd which was threatening to kill him and in the words of Pw3 “the crowd had threatened him and he had to save himself.” The purported admission would in any event not be a basis to convict him as the same is not a “confession.” It is perhaps recognizing this fact that the investigating officer set out to obtain a confession from the accused. He conceded that his first attempt failed because the confession was recorded by an Inspector of Police who under the law is not competent to do so. He therefore requested Chief Inspector David Mursoy to record it. A closer perusal of the statement taken by Chief Inspector Mursoy, who by law is a competent recording officer, however also reveals that it does not qualify as a confession. This is because the Chief Inspector did not comply with the EVIDENCE (OUT OF COURT CONFESSIONS) RULES, 2009. Other than the caution, the officer did not indicate that he complied with the rights of the accused person set out in Rule 4 of the Rules. Evidence was adduced that rather than asking the accused to nominate a third party to be present during the duration of the recording session as stipulated in the rules, it is Chief Inspector Mursoy who himself invited Zablon Mayaka (Pw5) and one Samwel to attend the session. Rule 5 (3) requires the recording officer to record the date of the confession and also the time of commencement of the confession and the place where it was recorded. In breach of this rule, the latter two were not recorded, Chief Inspector Mursoy only preferring to indicate the time when he finished recording the statement. It is also not clear from the statement whether at the conclusion of the statement Chief Inspector Mursoy offered the accused an opportunity to clarify anything he had said and to add anything he may have wished (Rule 8).Even more fatal is the omission of the certificate of confession required by Rule 9in the original words of the accused as follows: -

“I have read the above statement and I have been told that I can correct, alter or add anything I wish. The statement is true. I have made it of my own free will.”

In the circumstances I find that the statement recorded by Chief Inspector Mursoy (Pw7) is not a confession at all. That being the case, there is no evidence that the accused admitted to the crime.

The other inculpatory factwas that the murder weapon, a panga, was recovered in the accused’s house. The evidence surrounding this fact was full of contradictions and inconsistencies and in the end there was no evidence at all that the panga referred to was the murder weapon or that it was found in the accused’s house. To begin with, none of the witnesses saw the panga being taken out of the house of the accused. Pw2 and Pw3 testified that when the accused “confessed” to the Assistant Chief that he had used a panga, the Assistant Chief called the Chief one Fred and told him to get the panga from the accused’s house. However, it turned out that the person who was called by the Assistant Chief was not Chief Fred but Zablon Mayaka (Pw5). It also transpired that it was not (Pw5) who recovered the panga. Pw5 told the court that he sent Samwel (not a witness) to go for it as he himself was prevented by custom from entering the accused’s house. From that evidence even Pw5’s evidence that the panga was found in the accused’s bedroom was hearsay as Samwel did not come to give evidence. It is also not clear how the conclusion that the panga was the murder weapon was reached yet according to Pw5 it did not have any blood. The fact that the prosecution did not tender it in evidence in any case confirms that it was not the murder weapon.

In the upshot I find that other than proving that the deceased died as a result of deep cut wound on the frontal bone of his head, there is no proof that the injuries were inflicted by the accused person and that therefore he killed him. That being the case, there is no necessity to determine whether there was any malice aforethought. I agree with defence Counsel’s submission that the charge against the accused was not proved beyond reasonable doubt.

Accordingly, this court finds him not guilty of murder and has acquitted him and unless he is otherwise lawfully held, he shall be set at liberty. It is so ordered.

Signed, dated and delivered in Nyamira this 17th day of October 2019.

E. N. MAINA

JUDGE