[2016] KEHC 2450 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CRIMINAL (MURDER) CASE NO. 51 OF 2011

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

VERSUS

FREDRICK WAKALA.....................................................ACCUSED

JUDGMENT

Introduction

1. The accused person herein, Fredrick Wakala is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the information being that on the 6th day of June, 2011 at Emalokha Village, Mabole Sub-Location Shianda Location in Butere district within Kakamega County unlawfully murdered GABRIEL STALLON. He denied the charge. The prosecution called 6 witnesses. The accused person was the only defence witness.

The Prosecution Case.

2. Aggrey Maina, the Assistant Chief of Shirembe Sub-Location testified as PW1. His testimony was to the effect that on 14. 06. 2011 at about 1. 00pm, one Christine Nyarotso, the mother of the deceased went to his office and reported that her husband, the accused herein wanted her to return to her matrimonial home, but she was reluctant to do so because the accused herein used to beat her 1 ½ year old son, who is the deceased. PW1 accompanied the reportee (who was never called as a witness) together with a village elder to the home of the accused. PW1 stated that on finding the accused at home, he took the accused with him and sought to know from him why he was assaulting the deceased who had a swelling and burns on the right thigh. PW1 then took the accused to Butere Police Station together with the child and mother. About a month later on 05. 07. 2011 PW1 met Christine Nyarosto carrying the deceased who was already dead. The matter was reported to Butere Police Station for investigations. While the body of the deceased was taken to the Butere Hospital Mortuary the accused was arrested and charged with the offence.

3. During cross examination, PW1 stated that according to the report he received from Christine Nyarosto , the deceased sustained injuries while she (Christine) and the accused were living together as man and wife during the month of June, 2011

4. PW2 was Joseph Kahukwa, father to Christine Nyarotso and grandfather to the deceased. He testified that on 14. 06. 2011, while he was in Butere the accused herein was arrested in connection with the injuries sustained by the deceased. He reported the matter to Butere Police Station. The deceased was taken to hospital. On 05. 07. 2011, the deceased died. On 06. 07. 2011, PW2 reported the matter to Butere Police Station after which the accused was arrested and charged with the offence of murder. During cross examination, PW2 testified that his daughter, Christine got married to the accused when she already had her child, the deceased, herein. He also testified that it was his daughter Christine who was taking care of her child. PW2 stated further that at no time had Christine told him that the accused used to assault the deceased.

5. The postmortem examination on the body of the deceased was conducted by Dr. Kipsang on 13. 07. 2011 but the report was produced by Dr. Bonface Nyumbile Ndalu, PW3. From the post mortem report, the deceased’s body had bruises on the face and arm. Internally, the head had scapula haematoma and sub-dural haematoma on the left side. There was also collection of blood on the occipital area. In the opinion of Dr. Kipsang, the cause of death was head injury due to blunt trauma on the head.

6. PW3 also testified that according to the medical treatment book from Butere Hospital the deceased had been seen at the said hospital on 14. 06. 2011 with a history of molestation by a step father, and it was found that the deceased had difficulty passing urine. To relieve the problem with passing of urine the child was circumcised. Dr. Ndalu produced the post mortem report as PExhibit1, the patient Health record as PExhibit 2, the treatment –Declaration form as PExhibit 3 while the P3 form dated 14. 06. 2011 was produced as PExhibit 4.

7. During Cross –examination, PW3 testified that from the history, the deceased was assaulted on 06. 06. 2011 and further that the deceased had other injuries such as bruises on the buttocks.

8. Selpher Lubanga testified as PW4and told the court that on 13. 06. 2011 at about 5. 00pm, Christine arrived home carrying the deceased and informed her that accused had assaulted the deceased and also stopped her from returning to her matrimonial home. The matter was reported to the Assistant Chief, PW1 and after PW1 interrogated the accused, the matter was reported to Butere Police Station. A month later, on 05. 07. 0211, the deceased who had pus on the ears and bruised testicles died while undergoing treatment at Butere District Hospital. Subsequently, the accused was arrested and charged with the present offence.

9. Number 217951 Chief Inspector Paul Kipkorir testified as PW5. He was the OCS Butere Police Station at the time of the incident and he is the one who received the report from PW1 on 14. 06. 2011. He ordered PC Violet to investigate the case. The accused was arrested, put in cells and charged with the offence of assault. The accused escaped from custody, but when the deceased died on 05. 07. 2011, the accused was arrested and charged with murder.

10. The last witness to testify for the prosecution was Esther Auma Oniang’o, mother to the accused. She testified that the accused and Christine got married on 26. 04. 2011 when the accused took her home to his mother. The two stayed together from then until 13. 06. 2011 when Christine told her she was taking the child to the hospital at Butere. Christine did not return home and soon thereafter she learnt the accused had been arrested on allegations that he had murdered the deceased. She also stated that the deceased used to look sickly during his stay with his mother in the accused person’s home. This witness could not say whether the accused and Christine quarreled while they were in their home, but her testimony about the deceased was that the deceased appeared weak from the moment she set eyes upon him on or about 15. 04. 2011. She also stated that the deceased was not a biological child of the accused.

The Defence Case

11. At the close of the prosecution case, the accused person was put on his defence. He gave sworn evidence and had no witnesses to call. He testified that the deceased was his child, though he was born before he and Christine started living together from 24. 04. 2011. He also testified that when Christine came with the child, the child looked weak and when he enquired about it, Christine told him that the child had been weak from birth and that he did not have enough blood. Thereafter he made arrangements for the child to be treated and they took him first to Mabole Health Centre and later to Butere District Hospital for further treatment.

12. He denied assaulting the child on 06. 06. 2011 because he said he left the child with Christine early in the morning as he went to work. He also testified that Christine left for her maternal home on 13. 06. 2011 together with the child and did not come back. He went to look for her when she did not return, but when he arrived there, Christine called the police and reported that he had assaulted the child. He was arrested and taken first to the chief of Butere Township Location. Later he was taken to the police station and locked up before being arraigned before the Butere PMC Court on a charge of assault. He denied the charge. Upon death of the deceased, the accused was charged with the present offence. The accused testified that he did not know when or how the deceased died. He also denied having circumcised the deceased. The accused also denied the prosecution’s suggestion that he killed the deceased without intending to do so. He urged the court to acquit him.

Final Submissions

13. The defence filed final written submissions and pointed out that no proper investigations were carried out into the death of the deceased, and that in the circumstances, the accused person should be given the benefit of doubt of the poor investigations. Counsel also submitted that the prosecution’s failure to call the mother of the deceased dealt a big blow to the prosecution’s case; that the said witness was a competent and compellable witness as provided under Section 127(3) of the Evidence Act. Further, that the murder weapon was never produced in evidence, an omission which casts more doubt on the prosecution’s case.

14. Finally, counsel submitted that in the absence of the testimony of Christine Nyarosto the mother of the deceased, the only evidence placed before the court was hearsay evidence, and that such evidence cannot be the basis of a conviction.

15. Counsel for the prosecution relied on the evidence on record in urguing the court to find that there was sufficient evidence to convict the accused person.

Issues for Determination

16. After carefully considering all the evidence on record, the relevant provisions of the law and the submissions, the issues that arise for determination revolve around the provisions of Section 203 and 206 of the Penal Code and these are whether the prosecution has proved;-

a. The death of the deceased and the cause thereof

b. That it is the accused person who willfully and intentionally caused the death of the deceased and that

c. That the accused had the necessary mens rea to cause the deceased’s death.

Analysis and Determination

17. It is clear from the record that none of the witnesses who testified saw the deceased being killed. What can be discerned from the evidence is that the accused is said to have assaulted the deceased. There is evidence to show that the last person to be seen with the deceased before the deceased died was Christine Nyarotso, the mother.

18. Regarding the death and cause of death of deceased, the medical evidence shows that the deceased had injuries on the penile shaft (prefuse), the foreskin was fibrosed and could be retracted. The deceased also had lacerations and bruises on the body, the face. On further examination of the body, there was sub-scalpular haematoma on the left occipital area and a subdural haematoma on the same area. In the doctor’s opinion, the cause of death was head injury secondary to blunt trauma.

19. In summary, the evidence shows that the deceased indeed died and that he died as a result of head injury secondary to blunt trauma.

Whether it was the accused who cause the death

20. Apart from the hearsay evidence given by both PW1(Aggrey Maina) and PW2 (Joseph Kahukwa) that Christine Nyarotso had told them that it was the accused person who had assaulted the deceased, the evidence was not corroborated because Christine Nyarotso was not availed as a witness the evidence of this witness was critical as it is the same that would have penned down the accused as the one who assaulted the deceased and that it was the assault injuries that led to the death of the deceased. To make matters worse, the investigating officer for the case was also not called to testify, PW5 number 217951 Chief Inspector Paul Kipkorir testified that upon receipt of the report of the incident in which it was reported by PW1 that the accused had assaulted his step son, he summoned Police Constable Violent to investigate the case, but the said PC Violet was not called as a witness, although it is the duty of the prosecution to avail witnesses, for any particular case, it is important that crucial witnesses are called whether to give premed or corroborative evidence. This court can therefore only refer that the prosecution did not call Christine Nyarotso and the investigating office because their evidence was not going to support the prosecution case. It is thus my considered view that there being no sufficient evidence to connect the accused person to the death of the deceased, I have reached the conclusion that the prosecution has not proved the fact of actus reus on the part of the accused person. No one said they saw him inflict the injuries on the deceased person. What there is are allegations that are not corroborated.

Whether the accused person has the necessary men’s rea to cause the deceased’s death.

21. It is my considered view that there can be no mens rea without the actus reus; and for this reason, I have reached the conclusion that the prosecution has not established that the accused had the necessary mens rea to cause the death of the deceased.

Conclusion.

22. All the foregoing leads to only one conclusion that the prosecution has not proved the case against the accused person beyond any reasonable doubt. Accordingly I find him not guilty of the murder of Gabriel Stallon and acquit him under provisions of Section 322(1) of the Criminal Procedure Code.

23. Unless the accused person is otherwise lawfully held, he is to be released from prison custody forthwith.

It is so ordered

Judgment delivered dated and signed in open court this 26th day of October, 2016

RUTH N. SITATI

JUDGE

In the presence of

………Mr. Oroni (present)…………………………….for the state

………Miss Mukhwana for Getanda……………..….for Accused

………Mr. Polycarp……………………………….....….Court Assistant