[2020] KEHC 1076 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CRIMINAL CASE NO. 32 OF 2017

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

VERSUS

GEREVASIO MWENDA............................................................................ 1ST ACCUSED

DANIEL MUGAMBI ALIAS KIRU.........................................................2ND ACCUSED

GEOFFREY MWITI................................................................................. 3RD ACCUSED

J U D G M E N T

1. GEREVASIO MWENDA(1st accused), DANIEL MUGAMBI alias KIRU(2nd accused) andGEOFFREY MWITI(3rd accused) were charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code cap 63 Laws of Kenya.

2. The particulars of the offence were that on 10/3/2017 along Meru-Maua Road in Tigania East Sub County within Meru County, jointly with others not before court, the accused murdered STANLEY KIOGORA MUGAA.

3. They pleaded not guilty and the prosecution called 6 witnesses to prove its case.

4. On 10/3/2017, PW1 ALBERT MULIRA MUGAA, a brother to the deceased was with the deceased from 4 pm to about 8. 15pm when they parted on the road near Sayen Supermarket, formerly Nakumatt. Pw1entered the supermarket for shopping. When he came out at about 8. 55 pm, he called the deceased and found that he had boarded a vehicle to go home and the vehicle had reached Kaaga.

5. He went home only to receive a call from the wife of the deceased the following morning inquiring whether he had gone with the deceased to his home. The deceased’s phone was not going through. A report was made at the Meru Central Police Station and the search for the deceased began.

6. On 12/3/2017 at about mid-day, Pw1and his relatives were called to Meru Central Police Station and informed that an area chief along Muriri-Isiolo road had recovered a body which had the deceased’s ID on it. He was accompanied by others and visited the Isiolo district hospital morgue where they confirmed the body to be that of the deceased. He recalled that he was amongst the last people to see the deceased alive.

7. WASHINGTON MURIUKI (Pw2) recalled that on the material day, he had borrowed the deceased’s vehicle to ferry materials from Meru town. Although he and the deceased were supposed to return together to Tigania, the deceased called him at about 4 pm and asked him to go home as the deceased would seek own means to go home. The deceased called him at about 8pm and informed him that he had boarded a vehicle and would be at his home shortly. The deceased did not reach and several calls to him were not answered. The next day the phone was off and they started to search for him.

8. The wife of the deceasedJUDY NJERI (PW3), recalled that on the material day, the deceased left home to meet Pw1in Meru town. Ordinarily, the deceased would not return home on Fridays as he would instead go to his parent’s home at Nkubu. The following day, she called him but his phone was off, she then inquired from Pw1, as to his whereabouts only to find that he had not gone home to his parents home. She was later to identify his body at Isiolo District Hospital Mortuary. The neck was swollen with blood stains at the back and his arm was twisted.

9. DR. KEPHA CHUI MUNYOROKI (Pw4), a medical doctor working with the Meru County Government told the court that on 16/3/2017, he received the body of the deceased at the mortuary and conducted the post mortem. On examination, there was a large circumferential bruise marks around the neck which was about 3cm. There was a fracture of the skull on the occipital without displacement of the bone. There were other bruises on the right side of the forehead; left anterior wall around the 5th rib. He opined that the cause of death was due to asphyxia secondary to strangulation.

10. The Chief of Buuri, MAMIRA K. JOHN (PW5) told the court that on 11/3/2017 at about 6. 00am, he was at home when he received a call from David Kaiberia who informed him that there was a body lying along the Muriri-Isiolo road. He visited the scene and saw the body. He thereafter called the OCS for Muthaara Police Station who came and recovered the deceased’s Id card. The body was the taken to Isiolo level 5 hospital mortuary.

11. PW6 CPL KIPKIRUI SEREM investigated the case. On 11/3/2017, he received a call from the sub-county DCI Tigania East, Mr Omondi who informed him of the incident. He went to the scene but on arrival, he found that the body had been moved to Isiolo mortuary. He proceeded there and identified the body of the deceased.

12. He commenced investigations and requested the mobile phone details of the deceased. He managed to get safaricom mobile data for the period 7/3/2017 to 14/3/2017. From the deceased’s handset of IMEI No. [….]. The data revealed that the cell phone was switched off on the night of 10/3/2017 at 22. 41 hours. It was again switched on for use on 14/3/2017 at 16. 58 hours at Meru Ntutitu area by the 3rd accused.

13. The phone was registered against sim card no 0725xxxx. He requested the registration details for the said identity card for the said number from the National Registration Bureau on 20/3/2017 and the details were that of the 3rd accused. The 3rd accused was the first person to use the phone after its loss and he was arrested on 28/3/2017 at makutano junction.

14. On interrogation, the 3rd accused disclosed that he had bought the phone from the 2nd accused who was also arrested at makutano. On further investigations, Pw6 discovered that the deceased’s mpesa statement was questionable. His investigations concluded that the deceased met his death as a result of revenge. A hitman by the name John Muthinja came to Meru and was assisted by the 1st and 2nd accused to finish the deceased.

15. In his defence, the 1st accused stated that at the material time, he was employed at a hotel in Makutano. That sometimes in March, 2017 at about 21. 30hrs, the police came and arrested him and his wife. At the station, he was beaten and told by the police that the 2nd accused had claimed that he had given him a phone to sell. He denied knowing neither the deceased nor the 2nd accused.

16. In his defence, the 2nd accused stated that he used to be a tout at Makutano. That he left that work after he had quarreled with the 3rd accused. That on the material day, he was at his house but his wife had gone home. He did not go out that night. On 17/3/2017, he was arrested at Makutano and taken to the DCI at Meru Police Station. He denied knowing the 1st accused but admitted knowing the 3rd accused. He also denied having been given the phone by the 1st accused.

17. A3w1 RAYMOND MUGIRA KAIMENYI told the court that he knew the 2nd accused since 2009 as he used to be a tout. He recalled that on 17th March 2017 at about 10 o’clock, the 2nd accused came around looking for a customer to buy a phone which he had. That since the 3rd accused had not come with a phone that day, offered to buy the same. The 2nd accused then sold the phone to the 3rd accused for Kshs. 1500.

18. GEOFFREY MWITI, the 3rd accused told the court that he was a tout. He did not know the 1st accused. However, he knew the 2nd accused as they worked together. He recalled that on 19/3/2017, while he was at his work place, police officers came and arrested him. He was informed that a certain phone had been tracked within Makutano area and was found in the possession of his wife.

19. He recalled that earlier, on 17/3/2017, the 2nd accused had sold him a phone in the presence of his friends whom he identified as Fredrick Kimathi, Malik, Wilson Gikundi and A3w1. He bought it for Kshs.1,500/-. During their interaction, the 2nd accused had told him that the phone was given to him by the 1st accused who had told him to look for a market for it. He only used the phone for that day and later handed it over to his wife to use.

20. I should point out that this case took too long because the 1st accused absconded for a long time. He was only apprehended when he appeared to take plea in another murder case. Further, the 4th accused absconded and was never apprehended. The case proceeded against the 3 accuseds.

21. I have carefully considered the evidence on record. The accused are facing a charge of murder. Section 203 of the Penal Code gives the definition of the offence of murder. That definition gives rise to four ingredients that must be proved by the prosecution beyond any reasonable doubt. These are the fact of the death of the deceased, the cause of such death, proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused, and lastly, proof that the said unlawful act or omission was committed with malice aforethought.

22. On fact of death, it was the testimony of PW1, PW2 and PW3 that they knew the deceased. Together with PW6,they identified his body at the Isiolo Hospital Mortuary.

23. On the cause of death, Dr Kepha Chui Munyoroki (Pw4) testified that the deceased died due to asphyxia, secondary to strangulation. Accordingly, the 1st two ingredients of the offence of murder were proved to the required standard.

24. None of the witnesses saw the deceased being killed. Therefore, the evidence relied on by prosecution was wholly circumstantial.

25. In Republic vs Kipkering Arap Koskei [1949] 16 EACA 135, it was held: -

“In order to justify on circumstantial evidence the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt, and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.”

26. In Simoni Musoke vs Uganda (1958) EA 715, the court cited with approval the decision of the Privy Council in Teper -Vs- Regina [1952] 2 ALLER 447 added that: -

“It is also necessary before drawing the inference of the Accused’s guilt from circumstantial evidence to be sure that there are no co-existing circumstances which could weaken or destroy the inference.”

27. The evidence of Pw1, Pw2 and PW3was that on the material day, the deceased had his phone with which they communicated with him until after 9. 00 pm. Pw6 testified that the deceased’s handset had IMEI No. [….]. He retrieved safaricom data for the said phone which indicated that the phone was switched off on 10/3/2017 at 22:41hrs.

28. The phone was thereafter switched on, on 14/3/2017 at 10. 00hrs at Meru Ntutitu Area and at that time it was being used by the 3rd accused Geoffrey Mwiti. It is that phone that links the accused to the murder of the deceased.

29. In Odhiambo -Vs- Republic [2002]) KLR 241, the Court of Appeal held: -

“Evidence of recent possession is circumstantial evidence which depending on the facts of each case may support any charge.”

30. And, in Eric Otieno Arum vs. R [2016] Eklr, the Court of Appeal held: -

“Our view is, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession, there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses. In case the evidence as to search and discovery of the stolen property from the suspect is conflicting, then the court can only rely on the adduced evidence after analyzing it and after it accepts that which it considers is the correct and honest version. That duty as has been said is wholly on the trial court and on the first appellate court”.

31. Once the above facts have been established, then the accused bears the evidential burden to give a reasonable explanation on how he came into possession of the said goods in terms of section 111 of the Evidence Act.

32. In Malingi v. Republic [1989] KLR 225, the court held: -

“By the application of the doctrine, the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts. That the item he has in his possession has been stolen; it has been stolen a short period prior to their possession; that the lapse of time from the time of its loss to the time the accused was found with it was (from the nature of the item and the circumstances of the case) recent; that there are no co-existing circumstances which point to any other person as having been in possession of the items.”

33. This doctrine is a rebuttable presumption of fact. In this regard, the accused is called upon to offer an explanation in rebuttal. In the event he does not offer a rebuttal, then an inference is drawn that he either stole or was a guilty receiver.

34. In this case, it was proved that the subject phone belonged to the deceased. It was switched off on the fateful night at about 22hrs. The first time it was switched on, it was by the 3rd accused on 17/3/2017 at 10am. He told the Court that he bought it on that day from the 2nd accused for Kshs. 1,500. This was corroborated by A3w1 who witnessed the transaction.

35. I warn myself on the testimony of the 3rd accused. InOdongo v Republic [1983] KLR 307,it was held: -

“In fact, even where one accused gives evidence on oath such evidence must be regarded with extreme caution when it is to be used against a co-accused.”

36. I saw the witnesses testify. The 3rd accused appeared to me to be truthful. He told the court that the 2nd accused had confided to him that it was the 1st accused who gave him the phone to look for a buyer. The 1st and 2nd accused denied this evidence. The 3rd accused’s witnesses who were present when the sale of the phone took place came to court but were threatened outside court. This prompted the court, on the application by counsel for the 3rd accused to hear the testimony of A3w1before the 3rd accused because it was alleged that he would also disappear because of the threats.

37. In this regard, I find that the 3rd accused had explained himself on how he had come into possession of the phone and I find him not guilty. I acquit him of the charges.

38. As regards the other accused the evidence on record shows that the deceased disappeared around the same time his phone was switched off. The 3rd accused placed the phone in the possession of the 2nd accused. The 2nd accused confided in him that it was the 1st accused who gave it to him to find a buyer. Although both accused denied that fact, the testimony of the 3rd accused was truthful and was corroborated in material particular.

39. The 1st and 2nd accused denied knowing the deceased nor being with him at the time of his death. They however did not explain where they were on the material night. I did not believe the 2nd accused when he stated that he was in his house but his wife was away. His neighbours must have seen him. None was called to confirm that fact. They also failed to explain how they had come into possession of the deceased’s phone. Their defences were mere denials and afterthought. The defence could not displace the firm and constistent evidence of the prosecution. I did not believe their denials or accusation of the 3rd accused. That was an attempt at self-preservation.

40. Accordingly, I hold that the circumstantial evidence against the 1st and 2nd accused is so strong overwhelmingly points towards them as the one who must have participated and/or caused the death of the deceased.

41. The final issue for determination is whether malice aforethought was established. In Daniel Muthee v R. CA No. 218 of 2005 (UR), while considering what constitutes malice aforethought, the Court of Appeal observed: -

“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in a similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206 (b) of the Penal Code”.

42. It was established that the death of the deceased was caused by asphyxiation secondary to strangulation. By strangling the deceased and deny him oxygen, the 1st and 2nd accused must have known and actually intended that the strangulation perishes the deceased.

43. Accordingly, I find that the prosecution has proved its case against the 1st and 2nd accused beyond any reasonable doubt. I therefore find the 1st and 2nd accused guilty of murder contrary to Section 203 as read with Section 204 of the Penal Code CAP 63 Laws of Kenya.The 3rd accused is acquitted.

SIGNEDat Nairobi.

A. MABEYA, FCI Arb

JUDGE

DATED and DELIVERED at Meru this 10th day of December, 2020.

JUDGE