[2017] KEHC 285 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL CASE (MURDER) NO. 62 OF 2015

(Formerly Nakuru Hc.Cr.C. No. 72 Of 2013)

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

-VERSUS-

FLORENCE WANJIRU WACHIURI.........ACCUSED

R U L I N G

1. The Accused, Florence Wanjiru Wachiuri is charged with Murder contrary to Section 203 and read with Section 204 of the Penal Code. In that on the 24th day of February, 2009 at Naivasha Township, Naivasha District within Nakuru County, jointly with others not before court, she murdered Zipporah Muthoni Kairu. She denied the charge and was represented by Mr. Gichuki.

2. The prosecution called six witnesses. It is the defence submission that the evidence adduced does not support a prima facie case against the Accused to warrant calling upon the Accused to make a defence. The defence relied on the famous case of Ramanlal Trambaklal Bhatt -Vs- Republic [1957] EA 332 as cited by the Court of Appeal in Anthony Njue Njeru –Vs- Republic [[2006] eKLR.

3. In that case, the Court of Appeal stated:-

“It is a cardinal principle of our law that the onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of prosecution the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction”. The issue of what is aprima faciecase in criminal trials was clearly explained in RAMANLAL TRAMBAKLAL BHATT -VS- REPUBLIC [1957] E.A. 332 at p. 334-335 where it was said:-

Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one:-

“Which on full consideration might possibly be thought sufficient to sustain a conviction.”

This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case.

Nor can we agree that the question whether there is a case to answer depends only on whether there is:-

“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.”

A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “prima facie case,” but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

4. The duty of the court at this point therefore is to determine whether a prima facie case has been made. There can be no doubt that the deceased was bludgeoned to death on the night of 24th February, 2009. Evidence adduced through the deceased’s grandchildren, M W M(PW1) and Peter Kairu Kiai(PW3), both who were living with the deceased her home in the material period was critical.

5. PW1 and PW3 confirmed that they had supper with the deceased on the material night before retiring to their respective bedrooms. For PW1, that was a room in the main house of the deceased, while PW3 occupied a separate external room. The two witnesses told the court that as they retired, the deceased was left behind performing some domestic chores which involved washing dishes in a kitchen outside the main house. While in her room, PW1heard the deceased call out toPW1in a strangulated voice. PW1 however did not go out to inquire, which is understandable for a 12 year old, the witness’s age at the time. She then fell asleep.

6. PW3 an adult at the time, testified that he had barely slept when he heard his grandmother calling his name. Upon stepping out of the room, he was confronted by two men who forced him to the main gate of the compound and made to lie face down. From that position, he claims to have noted one man engaged in a struggle with the deceased who then fell at the door way to the main house. The witness was pinned firmly on the ground for a while. The intruders eventually left. PW3rushed to check on the deceased only to find her lying dead with a piece of cloth gagging her mouth, her hands trussed to the back.

7. PW1 was woken up by PW3’s voice calling the deceased. PW3 stated that on realizing his grandmother was dead, he ran to his home, about a kilometre away, to seek help from his father, Joseph Njogu Kimani(PW4). The latter called his brotherJames Njoroge(PW2) who was first to arrive at the scene. The commotion attracted many people, and it seems that someone directed them towards the house of the Accused. The said house stood separate from the house of the deceased who was a co-wife to the Accused. Each home had its own gate and separated by a wall even though it seems that the occupants shared a common main rear gate. The Accused was forcefully removed from her house by the mob but police arrived on time to rescue her. She was arrested.

8. It seemed to me that the prosecution case against the Accused was partly anchored on the fact of the Accused’s presence in her home on the material date. However, evenPW3 did not state that the Accused participated in any way in attacking the deceased. Secondly, there is evidence that the front part of the general homestead consisted of shops rented out to different people. These persons too had access to the homestead via the rear gate where the public toilets were located, a few metres from the deceased’s house.

9. It is not clear from the evidence whether or not and at what time the rear gate was locked on the material date, even though witnesses particularly PW3 agreed that ordinarily, the rear gate would be locked by the deceased at night, or after the shops closed down. According to PW2, on arrival at the scene on the material date, he found the night guards who spoke to him. These guards did not apparently record statements and were not called as witnesses.

10. Evidence led through a cousin of PW4, sergeant David Njenga(PW5) was to the effect that he visited the Accused in police custody on the 25th February, 2009. That he found the Accused having a meal in the report office and heard her tell some women who were with her that:

“Yes they called me and I told them to finish with the victim, after screaming.”

11. That on seeing PW5 the Accused went back into the cells. According to the witness, the Accused was speaking about the murder of the deceased. As his cross-examination revealed, PW5’s account is incredible. The mere suggestion that an Accused person was allowed free movement to and from the allegedly unmanned report office and the cells, is as unbelievable as the purported confession to murder by the Accused to persons who were involved in a conversation with her. None of them or the police officer whom PW5 allegedly reported the conversation testified as witnesses.

12. In the course of the hearing, details emerged in connection with a simmering succession dispute relating to the estate of the senior Peter Kairuwho was the husband of the deceased and the Accused and father to PW2and PW4 by the deceased. A will left by the said Peter Kairuapparently bequeathed some of his properties to the Accused. It would seem that at the time of the brutal murder of the deceased, a succession cause in respect of that will Nakuru High Court Succession Cause Number 581 of 2006 had not been determined as the beneficiaries, including the widows and children of the senior Kairu were feuding over the will.

13. It would appear however that despite this, the deceased maintained a good relationship with and provided for the upkeep of the Accused as a younger wife. What PW4 claimed to be a complaint from his mother prior to her death related to a request for financial help made by the Accused to the deceased. The Accused had reportedly been denied the request by the deceased and uttered words to the effect that she “would see what to do.” PW3 however confirmed in his evidence that the two widows had co-existed peacefully, and from his and PW1’saccount, the Accused and deceased did not interact on the material night.

14. Having carefully assessed the evidence before me, it is my view that it falls below the prima facie standard. In my view, the case was poorly investigated and the evidence tendered raises more questions than answers. In the circumstances, I must find that the Accused cannot be called upon to answer to such a hopelessly weak case. She is acquitted at this staged under Section 306 (1) of the Criminal Procedure Code.

Delivered and signed in Naivasha this 1st day of December, 2017.

In the presence of:-

Mr. Mutinda for the DPP

Mr. Gichuki for the Accused

Accused – present

Court Assistant – Barasa

C. MEOLI

JUDGE