[2017] KEHC 2553 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CRIMINAL CASE NO. 9 OF 2013

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

VS

HILLOW ABDULLAHI KORIYOW...............ACCUSED

JUDGEMENT

This criminal case was initially heard in Nairobi and then transferred to Garissa. It was a 2010 case and has a history of being handled by various judges. That background explains the reason why it has taken long to deliver this judgment.

The accused stands charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on 7th November 2010 at Ifo refugee camp at Lagdera District within Northern Province murdered Hussein Badle Mohamed. He was first brought to court in Nairobi on 10th December 2010 wherein he pleaded not guilty. Thereafter 6 witnesses testified in Nairobi before the case was ultimately transferred to Garissa when the prosecution had stated that they had only three additional witnesses to call. The evidence is as follows:-

PW1 who testified before Mwilu J. as she then was, was Abdi Ibrahim Kadid, who stated on oath that he was aged 15years and was an Islamic teacher. His evidence was that on 7th December 2010 at 4am, he was in a mosque assisting the Muadhin with Abdullahi Hashim and Muhsin Hussein Badal, when he heard shouts and someone said that a person had been killed.

He went out of the mosque and found a man lying on the ground with a stab wound in the stomach who he recognized as Hussein Badle. He said that he saw the accused stabbing the deceased in bright moonlight. It was his evidence also that the accused turned towards them violently and he ran away. He stated also that there was bright moonlight and he had a torch.

In cross-examination, he said that he heard an argument before the incident but did not know what it was all about. He confirmed that he knew the deceased before.

PW2 testified before the same judge. He was Abdullahi Hashim Abdi also aged 15years. It was his evidence that he was in the mosque on the 7th of December 2010 with Muhsin Hussein and Abdi Ibrahim when someone walked in carrying a knife shouting that the Muhadim was making noise with his microphone. He then stabbed the Muhadim with a knife who fell down outside the mosque. The attacker then turned violently on them and they ran away. He later learnt that the Muhadim had died. He stated also that he clearly saw the stabbing as he was just 3meters away and there was light in the mosque and he had a torch. He stated further that he knew the accused previously for about 4 years.

In cross-examination, he stated that the Muhadim was in the mosque calling people for prayers and that the accused just walked into the mosque through the door shouting and stabbed the deceased with a knife. According to him, though the knife was recovered he could not see it in court. In re-examination, he said that the accused left with the knife after the stabbing.

PW3 was Osman Abdi Mohamed aged 40years. It was his evidence that at 5am on that day he was told that somebody had been killed. He learnt that the person who had been killed was his uncle Hussein. He proceeded to the GTZ (now GIZ) hospital and found that the deceased had already died. He noticed a stab wound on his chest. They took the body to the mortuary for post-mortem.

PW4 was Sgt. Peter Alindi whose evidence was that he was stationed at the DC's office Dadaab and that on 7th December 2010 at 6am, while at the Ifo refugee camp, one Mohamed Elmi reported that somebody has been stabbed. He proceeded to the scene and they took that person to the hospital. That person was in critical condition and at 7am he was informed that the person had died. He mobilized officers from his camp to look for the suspect and at 10am the suspect came to the camp himself wearing blood stained clothes with a huge crowd following him. He arrested him and informed the OCS of Ifo Police Station who collected the suspect. He stated that he did not know what came of the blood stained clothes.

On the 8th of February 2012, the case came before Kimaru J. and two witnesses testified. On this date, the defence counsel stated that he had no objection to the proceedings continuing from where they had reached and the prosecutor did not object and thus the court proceeded therefrom.

PW5 was Hamza Sheikh Abdi Omar. It was his evidence that he was a doctor at the GIZ previously GTZ hospital at Ifo refugee camp. He held an MBBS Degree from Sudan. It was his evidence that on the 6th December 2010 at 11. 15am a body was brought to the hospital. He examined the body and found a big cut wound on the left side of the chest 4cm long penetrating the ribs and reaching the heart. According to him, the cause of death was penetrating sharp object which damaged the heart and lungs. He filled a post-mortem form which he produced in court as an exhibit.

PW6 was Abdiwade Hussein Muhamed. He was a 40year old man from Ifo refugee camp. He was a refugee from Ethiopia and neighbour of the deceased at block N7 Ifo refugee camp. It was his evidence that on 7th December 2010 at 4. 30am while at his house,he heard loud noise from the nearby mosque. On rushing to the scene, he found a person lying at the entrance of the mosque who was the Imam of the mosque called Hussein Badle Mohamed the deceased. He saw an injury on the left side of the chest and blood oozing from the wound.

He called for assistance from people and together rushed the injured person to hospital but he died at the hospital. It was his evidence that he saw the accused running away from the scene. He however recognized him only when he came to the police.

In cross-examination, he stated that there was moonlight and light from the mosque as well as torchlight at the scene. He stated that it was the first time for him to have seen the accused and later he saw the accused at the police station on the following morning. He said that the accused came to the police station with a blood-stained knife, torch, t-shirt and his hands were blood stained.

At this point, the prosecutor a Mr. Kimanzi asked for an adjournment stating that 3 formal witnesses were yet to testify. The case was later placed before Ombija J. who mentioned the matter a number of times. It was also mentioned before Majanja J and Muchemi J. On the 26th February 2013 and 22nd April 2013, the case was mentioned before R. Korir J who directed that the case be transferred to Garissa, and also that the hearing starts denovo. That was how the case was transferred to Garissa where it was first mentioned on 15th January 2014 by S. N. Mutuku J. For various reasons, the case was not heard until Hon. Mutuku was transferred from Garissa to Nairobi in October 2014. The case was then mentioned before me for the first time on 7th October 2014.

The prosecution stated that they were not able to get the additional witnesses easily and asked that the file be referred back to Nairobi for the judge who made the order for the denovo trial to review those orders. This court declined to refer the matter back to Nairobi and instead reviewed the orders of denovo trial made by the judge in Nairobi in the interest of justice. Therefore the case was set to proceed from where it had stopped.

However inspite of fixing the case for mentions and hearings on a number of occasions, no additional witness for the prosecution was brought to court. Ultimately, on 30th May 2016 the prosecution closed their case.

In his defence, the accused gave a long sworn defence testimony and did not call any witness. He stated that he was an ordinary resident in Ifo area not a refugee. He said that he did not know the deceased or any of the witnesses who testified. According to him, he was mistakenly arrested when he went to the administration police camp to try and confirm the talk that somebody had been killed. He denied bringing himself to the police with a knife and blood stained clothes and a torch. He denied killing the deceased and said that all the witnesses who mentioned his name were liars.

In cross-examination, he maintained that he was not a refugee and that he was merely a good samaritan trying to assist the victim. That was the evidence both for the prosecution and the defence.

After the closure of the evidence for the prosecution and defence, though the court gave several opportunities for defence counsel Mr. Nyasani to make closing submissions, counsel did not do so and the court then decided that due to the delays being occasioned in concluding this matter it would deliver its judgment.

The accused faces a murder charge. This being a criminal case the prosecution is required to prove the allegations in the charge beyond any reasonable doubt. An accused person does not have the burden of proving his innocence. See the case of WOOLMINGTON-VS-DPP(1935) AC 462. The burden of proof on the prosecution does not shift to an accused person even where the accused raises the defence of alibi. See the case of LEORNARD ANISETH-VS-REPUBLIC(1963) EA 206.

I have considered the evidence on record. In my view, the prosecution has not proved beyond reasonable doubt that the accused is the culprit. Indeed, the deceased died. He died out of a stab wound as testified to by civilian witnesses and confirmed by the doctor PW4 Hamza Sheikh Abdi Omar who performed the post-mortem examination. The deceased died a painful death after having been stabbed once with a knife in the chest fatally injuring his internal organs, including the heart and the lungs.

It must have been a vicious attack by somebody who wanted to kill him.

Though one of the prosecution witnesses PW3 Osman Abdi Mohamed said that he saw and recognized the accused at the scene, there is no evidence on record that any of the people who were at or near the scene when the incident occurred described to anybody the name or appearance of the assailant. The police witnessPW4 Sgt. Peter Alindi said that the accused went to the administration police post on his own, accompanied by the members of the public. None of the members of the public was called in court by the prosecution to testify on the circumstances of taking him to the police. In addition, the evidence on record is that the accused went to the administration police camp carrying a blood stained knife, wearing blood stained clothes and having blood stained hands. Other than this bare evidence or allegations from prosecution witness, there is no evidence as to what happened to the blood stained clothes, the knife, and the blood stains on the hands of the accused, since the police officers did not explain what they did to the knife, or the clothes. They also did not state that they took any exhibits or samples of blood to the Government Chemist for analysis. Though I am aware that the Government Analyst did not come to testify in court, it is telling that none of the police officers said that any blood stained items were taken custody of by the police or that the same were forwarded to the Government Analyst (Chemist).

In my view therefore, the prosecution did not prove that the accused was positively identified by any of the witnesses at the scene of the incident as the culprit. They also did not prove through evidence that the accused went to the police station with a blood-stained knife and clothes, or that he was seen by members of the public having a blood-stained knife and clothes.

Therefore in my view, though the deceased was brutally stabbed to death, the prosecution did not connect the said death to the accused person. The accused not having been proved to be the killer or connected with the killing of the deceased cannot be convicted by this court for the offence charged.

I thus find that the prosecution did not prove its case against the accused, and I acquit him on the offence of murder of which he was charged.

Dated and delivered at Garissa on 5th October, 2017.

GEORGE DULU

JUDGE