[2022] KEHC 791 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL CASE NO. 4 OF 2020

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

VERSUS

FANUEL SIMIYU SITATI.........................................................................1ST ACCUSED

JOHN MASIKA MUKUVU.....................................................................2ND ACCUSED

EVANS WANYONYI WAKHUNGU alias FESTO................................3RD ACCUSED

NDEGE MAKOKHA GABRIEL............................................................4TH ACCUSED

J U D G M E N T

The accused FANUEL SIMIYU SITATI (accused 1), JOHN MASIKA MUKUYU (accused 2), EVANS WANYONYI WAKHUNGU alias FESTO (accused 3) and NDEGE MAKOKHA GABRIEL (accused 4) are charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the offence are that FANUEL SIMIYU SITATI (accused 1), JOHN MASIKA MUKUYU (accused 2), EVANS WANYONYI WAKHUNGU alias FESTO (accused 3) and NDEGE MAKOKHA GABRIEL (accused 4) between the nights of the 3rd and 4th January, 2020 at Marufu village, Mahanga sub location within Bungoma county jointly and unlawfully murdered EMMANUEL SHIKUKU KASAYA.

The case for the prosecution is that the deceased Emmanuel Shikuku Kasaya was the son of PW2 Richard Munanga Masai. PW2 testified that on 3. 1.2020 at 10 a.m. the deceased went to weed his sugarcane at Maroko. He did not come back. At 7. 30 p.m. Richard went to check on him at his posho mill. On arrival he saw motor cycle Reg.No, KMCE make KG black in colour at the posho mill. He however did not find the deceased. They found his shoes in the posho mill. He reported to the village elder who also said he had not seen him. The mother of deceased received a ‘please call me’ message on her phone. They called the phone number which was received by Fanuel (accused 1) accused 1 then asked where deceased was. They did not respond. He reported the matter to police. While at the police station he received information that deceased’s Jacket had been found at the home of accused 1. Later he received information that the body had been found in a farm.

On cross examination, he stated that accused 1 was his son-in law as he had married his daughter Lilian Lupisi. Accused 1 and his mother had visited his home the previous day.

PW2 Alice Nabula Basachala the mother of the deceased testified that on 3. 1.2020 he saw the deceased and he was wearing jeans, blue T shirt and jacket. He went to the posho mill with 4 tins of maize to grind. He did not come back by 7. 30 p.m and the father PW2 went to check. She also accompanied him. She then saw ‘3 please call me’ messages on her phone. She called the number and accused 1 answered. Accused 1 informed them that he had been with the deceased and had said he was going to Kitale where he will stay for 3 days. She received information from the posho mill worker that he had seen deceased with Kevin wanjala. She got Kevin Wanjala who confirmed that the deceased had gone with accused 1 to his home. She decided to go with her daughter the wife of accused 1 to accused 1’s home. On the way she was informed by a lady that they had seen a blood stained jacket at a sugarcane farm. She went there and confirmed it belonged to the deceased. They searched the area and found body of deceased in a farm naked with cut wounds on back of neck and head. Later other items of clothing of deceased were recovered from a pit latrine.

PW4 Lilian Bulutisi Khasaya the sister of deceased and wife of accused 1 from September 2018 to December 2019 testified that on 3. 1.2020 she was with the deceased when he went to their farm at Murika. The accused and his mother came to their home to plead with her to return to the home of accused 1. She did not agree. Accused 1 told her he had been with the deceased who had given him (accused) his (deceased’s) phone. The next day deceased was found murdered in a sugarcane farm belonging to accsued1’s family.

PW6 Beatrice Lutomia Mulati the mother of accused 1 testified that on 4. 1.2020 she heard Lilian, the sister of deceased and wife of the accused 1 crying at a neighbours farm. She went there and was informed deceased’s body had been found. Later police came and took the body. At 4 p.m. the accused’s mother in law brought accsued1’s child and left him in her house. The day after she saw people at a neighbour’s pit latrine where clothes were removed.

PW8 JM a minor aged 12 years and in std 5 at [Particulars Withheld] Primary school testified that he knew accused 1 as he was his friend. On 4. 1.2020 in the evening he was sent to the market when accused 1 called him. Accused 1 told him he (accused) wanted to go and kill Manu (deceased). Accused 1 showed him a panga, knife and axe. He told the witness to go and knock the door at Manu. He instructed him to go back at night but the witness did not go.

PW9 Copl Winstone Bunyasiattached to Kimilili DCI office on 4. 1.2020 accompanied the DCIO C.I Maikia to a scene where a body had been found. At the scene they found the body of the deceased naked and with a cut on the neck. About 10 meters away they found a Jacket. They took the body to the mortuary. On 5. 1.2021 the assistant chief informed police that some clothes had been seen in a pit latrine which was about 20 meters from the house of accused 1. They went there and recovered, a black rain court (Exh.5) blue T-shirt (exh. 4) Navy blue jeans (Exh.3) which were identified by the parents of the deceased as belonging to the deceased. They also recovered a T-shirt with inscription Jubilee Exh.8. shoes and orange T-shirt Exh.9 which were identified as belonging to the accused 1.

PW10 C.I Francis Milia the DCIO Kimilili and investigating officer received report on 4. 1.2020 of a murder incident at Mahonge location. He together with OCS CI Maithia and other officers went to the scene. At the scene they found body of deceased in a sugar cane farm. The body was removed to the mortuary. On 5. 1.2020 he received information that some clothes had been seen in a pit latrine. He and other officers went there and recovered the clothes. Some which were identified as belonging to the deceased and some belonging to accused 1 Fanuel. Those belonging to the deceased were the ones the deceased wore on that day.

On 6. 1.2021 he received information that accused had been arrested in Kitale. He sent officers who brought him. He took a statement under inquiry in which the accused informed him that he had known deceased as he had married his sister Lilian. He informed him that on the material day at 4 a.m. accused 2, 3 went to him and told accused 1 that deceased had been killed. They went to the posho mill where accused 2 and 3 advised him to carry the body and throw it in a sugar cane farm. He did so. Accused 2, 3 then advised him to take off the clothes he was wearing and threw them in a pit latrine and he was given other clothes to wear. He then escaped from the area.

During investigations he found that accused 1 had married the sister of the deceased. He also received information that accused 1 had gone to where deceased was and they left together and that Isaac Nabutola had seen accused 4 Ndege Nabutola in the area.

On being cross-examined by M/s Wakoli for accused 1, 3,4 he stated that accused 2, 3 were arrested following information given by accused 1. He confirmed there was no eye witnesses to the murder. In respect to accused 2 he stated that he did not find any connection between accused 2 and the deceased.

The accused upon being placed on defence gave sworn evidence except Accused 2 John Masika Mukuyu. Accused 1 Fanuel Simiyu Sitati testified that the deceased was his brother in-law, as accused was married to his sister Lilian Kasaya. He stated that on 3. 1.2020 he did not meet the deceased and that he had never been to their home since 2019. He stated that his wife was staying with him and that the clothes recovered from the pit latrine did not belong to him.

Accused 2 John Masika Mukuyu gave a short unsworn evidence stating that on 3. 4.2020 he was at his home and slept up to the next day. He stated he did not know accused 1. Accused 3 Evans Wanyonyi Wakhungu testified that he used to run a hotel. He stated that he knew accused 1 as they come from the same village but are not related. He also knows accused 2 John and accused 4 Ndege as village mates. On the night of 3-4 January 2020 he did not see accused 1, accused 2 John or accused 4.

Accused 4 Ndenge Makokha Gabriel testified that he knew accused 1 who is his children’s age mate. He also knows accused 2 and 3. On the night of 3-4th January 2020 he was at home alone as his wife had left him. On that night he did not see deceased.

Accused 3 John Masigi called Christabel Wangila his wife as a witness. She testified that on 3. 1.2020 she was with him the whole day and night. She did not know that accused 1 was a friend of her husband.

M/s Wakoli for accused 1, 3, 4 filed written submissions. Counsel submitted that none of the witnesses who testified saw the accused person commit the offences. Counsel further submitted that prosecution did not adduce any evidence to connect accused 2, 3, 4 to the murder of the deceased. Counsel submitted that the evidence connecting. Accused 1 to the offence is weak circumstantial evidence and therefore there is no basis for the court to find accused guilty.

Mr. Khwatenge for accused 2 submitted none of the witnesses except PW10 mention accused 2; and that it was only after being mentioned by accused 1 that he was connected with the offence. However this witness stated upon cross examination that he did not establish any link between accused 2 and the deceased.

The accused are charged with the offence of murder contrary to Section 203 of the Penal Code.

Section 203 provides:

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

Malice aforethought is deemed to be established by evidence proving any one of the following circumstances:

Section 206

(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 happen.

(c) An intent to commit a felony

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

That the deceased died is not in contest. PW1 Dr. Wanambisi Caleb Watta confirmed that the deceased had a cut on the anterior part of the neck which occasioned bleeding leading to his death. Who caused the unlawful cut on the neck that lead to bleeding and eventual death of the deceased?

PW2 Richard Mananga Maasai the father of the deceased testified that his wife received a please call me message from the mobile number of accused 1 who when they called accused 1 received and asked him the whereabouts of deceased. Later he was informed that the jacket of deceased had been found and when he went to the scene found deceased already murdered.

PW3 Alice Nabala Basakhala was with her daughter going to check deceased at home of accused 1 to whom she had been informed was with deceased when he received information that a Jacket belonging to the deceased had been found. She went to the sugarcane farm where she found deceased already murdered. On that day she had not seen deceased with accused 1.

PW4 Lilian Balahusi Khasaya the wife of accused 1 testified that she saw accused with deceased’s phone but did not see them together that day. PW6 Beatrice Lutomia Mulati the mother of accused 1 saw Lilian (PW4) the accused’s wife crying. She went there and saw the deceased had been murdered.

PW8 JW a minor only testified to how accused 1 had confided in him that accused 1 wanted to kill the deceased. PW9 Copl Winstone Bunyasi and PW10 C.I Francis Milia visited the scene.

From all the 9 witnesses none of them testified that he was an eye witness to the murder. There is therefore no eye witness as to who inflicted injuries on the deceased. There being no direct evidence, the prosecution sought to establish circumstances from which this court will find that upon consideration of the facts proved it is the accused and no other persons who inflicted the injuries on the deceased.

in Joan Chebichi Sawe –vs - R. the court of appeal Kwachi, Kukha O’kbasu JJA stated….

“If that be the case, then the evidence does to irresistibly point to the appellant to the exclusion of all others within the meaning of R –vs- Kipkering Arap Koskei & Another 16 EACA 135where it held, inter alia, that:-

“In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

In our judgment, the evidence does not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant on the basis of the evidence on the record. We are therefore, unable to uphold the conviction entered by the learned trial judge. We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and steeled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira –vs- Republic (Criminal Appeal No. 17 of 1998)(unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. We disagree with the learned judge’s view that the prosecution had proved its cause against the appellant beyond any reasonable doubt.

From the provisions above, the prosecution is under legal duty to establish beyond reasonable doubt that it was indeed the accused persons who inflicted injury to the deceased, the deceased died from the said injuries and the accused had the necessary intention to cause death or grievous harm to the deceased at the time of inflicting the injury.

PW3 Alice Nabula Basakhula the mother of the deceased while looking for the deceased; received 3 please call me messages. He called the number and the person who answered said he was accused Fanuel. The Fanuel then asked the where about of deceased. They did not answer him. Earlier she had seen when deceased was leaving the house and was wearing Jeans trouser, blue T-shirt and had a Jacket on. He also had worn a black French court. She was later informed deceased had been found dead and naked. She was shown a jacket recovered near the scene which she identified as that worn by the deceased on the material day.

Pw9 No. 49015 Copl Winstone Bunyasi on visiting the scene he found the body of deceased which was naked and had a cut on the neck.

About 10 metres away from the body they found a jacket (Exh 2) which he was informed belonged to the deceased. On 5. 1.2020 he received information that there were clothes seen in a pit latrine. He went there and together with the chef and member s of public recovered.

1. Black rain court (Exh. 5)

2. Blue T-shirt (Exh. 4)

3. Navy Blue jeans (Exh 3.

4. Black Jeans shirt (Exh. 6)

These were identified by the parents of the deceased to belong to the deceased. From the same pit latrine they recovered:

(a) Jubilee branded T-shirt (Exh. 8)

(b) Shoes

(c) Orange T-shirt (Exh.9)

Which was identified to belong to the accused 1. Fanuel Simiyu the person who said she identified the clothes as belonging to accused 1 is PW2 the mother of the deceased who stated:

“There were other clothes also recovered ¾ shorts (PMF 17) Red Jubilee T-shirt (PMF 1 8) long sleeve orange T-shirt with No. 18 (PMF1 9. They were blood stained. They belonged to accused 1. Accused 1 had come to my home at 1 p.m. with his mother. He was wearing checked shirt. I knew his clothes because I knew him before. Police removed the clothes from the latrine. Accused 1 had married my daughter Lilian and had quarreled with her. The deceased had earlier reported to me that accused 1 had threatened him. Fanuel is the one on the screen.”

The evidence connecting the other set of recovered clothes besides the one for the deceased to accused 1 is the identification of the mother of deceased.

PW4 Lilian the former wife of the accused was not asked to identify the 2nd set of clothes as belonging to accused 1. This was the person who would normally identify the clothes belonging to accsued1. PW6 Beatrice Lutumoi Mulati the mother of accused testified that she did not identify the clothes recovered from the latrine. The evidence of PW3 the mother in law of the accused as to identify of accused 1’s clothes does not appear to me to be credible as to the identity of the owner of the clothes alleged to belong to accused 1. In my finding it falls far short of the threshold of a fact that can be relied on in support of circumstancial evidence. This is more so when it is noted that although the clothes were blood-stained, they were not taken for DNA Analysis to confirm that the blood belonged to the accused 1 Fanuel.

PW10 NO. 231717 C.I Francis Milia testified that he recorded a statement under inquiry from the accused 1 in which he gave information implicating accused 2, John and accused 3 Evans Wanyonyi. He stated in cross examination by M/s Wakoli that he arrested accused 4 Ndege Makokha Gabriel stating….

“I arrested accused 4 because he was seen taking to accused 1 after deceased had earlier left with accused 1. There were no eye witnesses to the killing of the deceased.”

The statement under inquiry was not produced in court. He testified that he also relied on the statement of one Isaac Nabutola who saw accused 1 with the deceased. This was in my view a crucial witness for the prosecution. The said Isaac was however not called as a witness for the prosecution. The evidence relied on in respect of accused 2, John Simiyu, accused 3 Evans Wanyonyi and accused 4 Ndege Makokha Gabriel is that of accused 1. This is not sufficient evidence in my view to find that accused 2, 3, 4 were connected or participated in the murder.

From the evidence adduced there was no person who testified as an eye witness to the murder. All the prosecution relied on was circumstantial evidence and information from Isaac Nabutola who was not called as a witness. I therefore find that the prosecution evidence falls short of proving the charge beyond reasonable doubt.

I therefore find accused 1 Fanuel Simiyu Sitati, accused 2 John Masika Mukuyu accused 3 Evans Wanyonyi alias Festo and accused 4 Ndege Makokha Gabriel not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and acquit each one of them under Section 215 C.P.C.

The accused 1 John Simiyu Sitati, accused 2 John Masika Mukuyu, accused 3 Evans Wanyonyi Wakhungu alias Festo and accused 4 Ndege Makokha Gabriel be released forthwith unless lawfully detained.

Dated at Bungoma this 17th day of March, 2022

S.N RIECHI

JUDGE