[2022] KEHC 16198 (KLR)

Republic v GA (Criminal Case 41 of 2016) [2022] KEHC 16198 (KLR) (5 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16198 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 41 of 2016

PJO Otieno, J

December 5, 2022

Between

Republic

Prosecutor

and

GA

Accused

Ruling

1. The prosecution’s case was closed by the time four witnesses had testified. Of the four witnesses, PW1’s evidence was limited to the fact that he found body lying besides the road and reported the fact to the assistant chief, PW3.

2. PW2 was the doctor who performed autopsy upon the body of the deceased. The body was identified to her by two police officers as unknown. Because he needed consent of the relatives before he could open it up, he carried out only external examination which revealed swelling under the skin involving both hands and on the back and deep laceration above the right eye. He concluded that the death was due to blunt injury secondary to trauma following assault. On cross-examination he said the body turned blue due to lack of oxygen.

3. PW4, NO xxxxx CLP Thomas Bii, told the court that he was the current investigating office in the matter which was initially handled by CLP David Langat who had been transferred to Athi River. His evidence was grounded on the perusal he had of the file he took over. Even to him the body recovered was unknown. He produced some 15 photographs taken and developed by the Scenes of Crime personnel but without any certification. In his assessment only the evidence of PW3 connected the accused with the crime. He added that the accused had visited the hospital with a complaint of having been beaten by a person known to him. The treatment notes were never produced by the witness after the defence raised an objection. He concluded that even though the body was dusted for finger prints no matches were found and it remained unknown.

4. In cross examination he denied knowing the deceased and could not confirm if the body was ever claimed. He added that as at the date the offence was committed, the accused was a medical patient and that reports dated June 23, 2016 and June 28, 2016, confirmed that the accused was a mental patient. However, a report dated August 18, 2016 from Mathare Mental Hospital certified him fit to stand trial.

5. The court views the evidence by these three witnesses to do little towards connecting the accused with the commission of the offence.

6. That leaves the court with the evidence of PW3, the area assistant chief, then. He said that that night, while in his house, he heard wailing from a lady and soon thereafter heard a voice he recognized to be that of accused state that he had killed the lady who had been bewitching Emago ACK church. He also heard the accused say that the witch had bitten him in the mouth/lip. He confirmed being conversant with the accused voice because he suffered mental health and who would make noise as he passed by the road and that his home was just 1 km away from the witnesses’ home. He was however only able to recall what he heard in the night after PW1 reported to him about the death.

7. He then made a report to police, the body was taken to the mortuary and accused arrested during which arrest, the accused had an injury on his lower lip.

8. In cross examination, the witness confirmed knowing the accused as GA reported as a mental patient for the whole of 2016. He recalled that the accused had been living in Nairobi and only came home at the beginning of 2016 and that after arrest, he underwent treatment at Mathare Mental Hospital. He reiterated being conversant with the accused voice and that he also saw an injury on his lips.

9. In totality the only evidence that seems to connect the accused to the crime charged is that of PW3 to the effect that he heard the accused’s voice say he had killed the lady who had been bewitching the church.

10. For that evidence to be admitted as credible, the court must satisfy itself whether it fits the description of a voice identification, whether it being a self-incriminating statement, if admissible, it qualifies as a confession and lastly, therefore, if by itself it exhibits a prima facie case as defined in criminal law1. 1As defined in Bhat –vs- Republic, a prima facie case must mean one which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.

11. The law on voice identification is trite that it nearly always amount to identification by recognition. When the court sets to rely on the evidence on voice identification, the court must take care and ensure that the witness is not mistaken as to his recognition of the voice and that favourable conditions exist for safe identification.22Karani –vs- Rep [1985] eKLR 290

12. In this matter, PW3, an administrator and resident of the area whose house is by the road, asserted that he knew the accused as a resident of his location and as one with mental illness. He even knew that the accused had been away and only came back at the aging of the year 2016. He added that the accused would be seen on the road walking with a dog and while shouting. The words he attributed to the accused were consistent in his evidence in chief and again on cross-examination. He reported having heard the accused utter complete and communicative sentences.

13. The court finds that the evidence by PW3 on identification of the accused by voice was credible and that the circumstances were favourable from that identification. The court take notice that usually at 2:00 am in the night, the atmosphere is generally calm and quiet and that it is very possible to hear and recognize the voice of a familiar person

14. Where the court satisfies itself as to the accuracy and reliability of voice identification, the evidence is then receivable and admissible, and may carry as much weight as that of visual identification3. The court finds and holds that the evidence of PW3 on voice recognition leave no doubt that it was the accused who uttered the words to the effect that he had killed a witch who was bewitching the church and the said witch was the body later found lying dead by the road side by PW1. 3In Choge –vs- Republic [1985] eKLR, the court said “In receiving such evidence, care would be necessary to ensure that it was the accused person’s voice

15. The next question is whether the statement whose tenure and effect is self-incrimination is admissible against the accused. A self-incriminating statement takes the face and character of confession. When PW3 says that the accused said he had killed the unknown person, PW3 must only be understood to say that the accused confessed to the crime. There is a constitutional Right vested upon the accused under article 50 (2) to refuse to self-incriminate. That right is only sidestepped where the accused voluntarily opts and elects to offer a confession and the same is recorded in terms of the Rules Promulgated under section 25 A of the Evidence Act.

16. Indeed section 25 A and 26 of the Evidence Act make confessions generally and inadmissible unless recorded before a judge, magistrate, or an officer not below the rank of an inspector of police and such an officer must not be the investigating officer. Even such confession when so made, the same is still inadmissible if procured by inducement, threat or promise of a benefit to the accused. In this case the evidence of PW3 to be admitted must pass the threshold set by section 25 A.

17. I find that PW3 being not a Judge, Magistrate nor a police officer, not below the rank of an Inspector, could not be the conveyor of a confession. In any event a confession needs to be owned by the accused by my signing a written document.

18. I coming to this conclusion that the evidence of PW3 as it suggest that the accused admitted to killing the deceased is not admissible on the basis that defeats the right of the accused under article 50(2) (l) and is otherwise not a confession under section 25 A of the Evidence Act. It is therefore determined that to the extent that that evidence implies self-incrimination by the accused, the same is not receivable nor admissible. It is to that extent expunged and excluded from the record.

19. When so expunged, there is no benefit to be derived by the court addressing whether the evidence by PW3 on its own would establish a prima facie case. Being excluded from the record, leaves the entire evidence by the prosecution bereft of any thread connecting the accused and the offence. Without such thread there is no case that stands established against the accused to merit him being called to defend himself in rebuttal.

20. From the foregoing reasons the court finds that there is no evidence against the accused and determines that he is not guilty under section 30 (6)(1) of the Criminal Procedure Code. He is therefore acquitted.

21. The doctor in charge shall by end of May 2023 file a report in court on the status of his mental health. This matter will be mentioned in court on June 19, 2023.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 5TH DAY OF DECEMBER, 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Ms. Chala for the ProsecutionMr. Ondieki for the AccusedCourt Assistant: Polycap Mukabwa