[2022] KEHC 2036 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

HIGH COURT CRIMINAL CASE NO 46 OF 2015

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

VERSUS

ISAAC HASSAN MOHAMMED.................................................ACCUSED

JUDGMENT

1. The accused Isaac Hassan Mohammed was on 12/6/2015 charged with the offence of murder Contrary to Section 203 as read with 204 of the Penal Code. The particulars of the offence were that he had “on the 30th day of May 2015 at Kwangutu village, Ndumuru location in Igembe North-District within Meru murdered Ntonjira Mbaarua’. The trial proceeded on 12/11/2019 after a few false starts only to non-availability of witnesses and the police file culminating in the issue of warrants of arrest against the OCS in charge of Maua Police Station who processed the charge and the Police Constable who was the investigations officer in the matter.

2. The Prosecution’s case as set out at the opening statement by Mr. Namiti, Prosecution Counsel is as follows:-

“Our case is that on 30/5/2015 the deceased with others were looking after cattle at Kwangutu village, Igembe North when they were accosted by the accused and others while while armed with Rifles. They had the intention of stealing cattle. They agreed fire and shot the deceased dead and injured 2 others. We shall rely on direct evidence. We shall parade 7 witnesses.”

3. The case put up by the prosecution is simply that there was a murder of the deceased identified as Ntonjira Mbaarua by gunshot wounds to the leg, shoulder and head and the accused Hassan Mohammed was arrested within Isiolo by members of the public and taken to Isiolo police station and later to Maua Police Station where an identification parade conducted by Inspector Musau of Maua Police station identified the accused as the perpetrator.

4. The entire evidence of prosecution witnesses PW1 –PW8 is set out in full as follows:

PW 1 NO.64777 PC Silvester Kakemu

(Sworn states in English translated to Borana)

I am the above named attached to DCI Kayole. I 2015 I was in Maua station.

I recall on 30/5/2015 at around 10:00am our DCIO John Kiboi PC Maria our driver Nyaga with me went on Patrol on board Motor Vehicle GK G. 678 E.

We visited a scene of murder within Kwangundu area. We found a dead body with gun shots. It had gun shots on the leg, stomach, and head.

We collected I cartridge of 7. 62mm. I have it here Marked MF11 we also had the body identified as that of Ntonjira Mbaarua. We removed it to Meru Hospital Mortuary for post mortem.

I commenced investigation. Later one Isaac Hassan Mohamed was arrested within Isiolo by members of the public and taken to Isiolo Police Station. He was then transferred to Maua Police Station.

An identification parade was conducted by IP Musau of Maua Police Station. Post Mortem was done on 9/6/2015. The cause of death was confirmed to be out of gun shots.

I saw the person who was arrested and brought to Maua. It is the one over there (pointing at the accused).

Cross examination by Mr. Mutuma

I cannot recall when and who made the first report. It was one Japheth who was with the deceased who made the report. I commenced investigations after visiting the scene. The scene was in Igembe North. I do not know where the accused comes from. But I think he comes from Isiolo.

The body was identified to us by Japheth who had been the deceased. The incident occurred on 30/5/2015 and we visited the scene on the same day at about 10:00am.

The bullet shell I identified is serialized I cannot tell for which firearm it was. We did not recovered any fire arm from the scene.

I took finger points of the accused.

An Identification Parade was conducted. It is Japheth and other witnesses who identified the accused. M’Mucheke Mucheke M’ Anamba identified the accused.

I presented a people for identification parade. They were all from Maua. They were of the same level. They were not of the same tribe with the accused. Most of them were of Meru origin. The suspect was not represented at the time. The exhibit was taken to the ballistic experts.

I am the one who recorded the statements of witnesses. The postmortem was conducted on 9/6/2015

I see in my file I have 2 post mortem Report. The body was identified by Patrick Michubu and Genesio Kirume. The name of Japheth not in this post mortem Report.

Japheth did not tell me what clothes the accused was wearing. He also did nto tell me where the accused was shooting from. He never told me where he was standing when the shooting took place. He run away when shooting began.

Re Examination by Mr. Namiti

I was present when the Postmortem was being carried out. I was with the members of the public. Japhet was not at the mortuary. He identified the body at the scene.

There is another Investigating officer in this case.

The identification parade was conducted by IP Musau.

PW2 Boniface Mbaabu

(Sworn states in Kiswahili)

I am the above named. I hail from Laare. I am a teacher and a cattle keeper in Ndumutu.

I recall that on 30/5/2015 I was with Genesio Gitonga. We were going to transfer cattle from where they were to another place approximately 2 km.

Genesio received a call and was informed that his herder had been killed. We met some young men who informed us that Ntonjira had been killed.

We went to the scene where the body was. There were saone Borana herders of camels nearby. We had been told that Ntonjiri had been killed by a camel herders. We asked the Borana camel herders whose camels were there. They told us the camels belonged to a man by the name Kulea. They had a mark on their bodies 1. We went to Police Station and reported. The Police went and collected the body.

By the time we arrived at the scene, Ntonjiri had been killed. At the scene we found our herders Japheth Kanari and M’ Mucheke there.

Cross examination by Mr. Mutuma

I keep cattle in Ndumuru. It is 6 km from my home. I wanted to move the cattle from Ndumurru to Manyatta.

When we reached at the scene we found KPR Meru. These were looking after cattle.

I do not know who never sought to know who was looking after Kulea’s carmel. I do not know the accused. I do not know who was herding Kulea’s Carmels. The accused was not at the scene. Kulea’s carmel’s were there. The borane mem whom we found at the scene told us that the Carmel’s with the mark 1 belonged to Kulea.

Rexamined by Mr. Namiti

Nil

PW3 Japheth Kanari

(Sworn states in Kiswahili)

I am the above named I hail from Ndumuru. I am a cattle herder.

I recall well on 30/5/2015 I was looking after cattle at Ndumuru. I was with Ntonjira (deceased) Kabakaba, Antungua, Mbithi and M’Mucheke.

While looking after the cattle which we were transferring to another area. We then met Carmels. There were two people looking after the carmels. One of those looking after the carmels shot the deceased. He did so after we had passed him.

This was about 7:00 am. I saw the person who shot the deceased. We did not speak to the two carmel herders before Ntonjira was Ntonjira was shot. Only one of them had a rifle. I saw him very well. I can identify him. He is the one sited in court (points at the accused)

I identified at the Police Station. When I met him on the material day. I saw him well.

At the police station I identified him alone. He was chased by the public and arrested and taken to police. He was placed amongst many people then I was told to identify the person who killed the deceased. I identified him then I was left to leave.

At the scene, the accused shot many times. About 10 shots. We run away. Five cows were wounded.

I don’t know why the accused shot at us. I had never met the accused before the material day.

Cross Examination by Mr. Mutuma

On that day, I was with others. The people I was with were Merian, fellow herders.

I cannot recall the day I wnt to identify the accused at the Police Station,

The parade consisted of Merians and Boranas. Before the identification parade, no one had shown me the accused’s photo.

Genesio is my brother. The deceased was my neighbor. Genesio was not with us. He was at Laare at the time of the incident. I know that the accused was arrested in Isiolo. He was arrested by Genesio and other Somalia. We called Genesio and told him that Ntonjira had been killed. Genesio did not show me any photo of the accused.

We met with the accused in the forest at Meru side. After the accused killed the deceased, he run away and left the Carmels in the wild. Genesio know the accused because of the Somali’s with whom we heard together.

I do not know the person with whom the accused was on that day.

A total of about 8 shots were made. I do not know if there was any bullet lodged in the deceased’s body. I never wet to identify the body at Meru Mortuary. I was looking where I was going to when the accused shot at us. I know that it was the accused who shot because I had seen him with the riffle when we were passing them. I did not see him shoot. We were four of us at the time, I Mbirithi, M’Mucheke (Kabakaba) Nto bua and the deceased .

It is me who reported to the Police. I cannot recall when I went to make my statement.

I had never seen the accused before that day. I only saw him on that day. He was wearing a Police Uniform. His colleague was not wearing any uniform. I do not know where he comes form.

Re-examined by Mr. Namiti

It is the accused who shot at us. I know he is the one because he was the one we saw with a rifle.

PW 4 Genesio Gitonga

(Sworn states in Kiswahili translated)

I am the above named. I live in Laare. I am a businessman.

I recall 30/5/2015 I left home very early to go and see where the cattle was. When we reached near the forest we heard gun shots about 8:00am//

I then received a call. From the herders who informed me that Ntonjira had been killed. He was my herder.

We entered the forest to go to the scene where we found Carmesl and a young Somali boy. The Somali man was with the person who killed Ntonjira.

We asked him whose Carmesl those were. They were with a KPR Officer. The Somali boy told us the Carmels belonged to one Ngulai.

There were some Borana and Somali elders. They took over the effort to know who was with the camels.

We reported Ndumuru Police Station and the officers came.

I went to the scene. I saw some cattle wounded. I saw the body of the deceased it had injuries.

Those who were with him told me that they met 2 Somalis with Camels. That they saw a man with a rifle who shot at them.

The said eldest were able to arrest the suspect who took him to Isiolo Police Station. I was called and I went with Police Officers and collected him from Isiolo Police Station. We brought him to Maua. It is the man in Court (points at the accused).

Before that day I had seen him within that area herding Carmels.

Cross examination by Mr. Mutuma

I keep cattle. I have nothing in Court to show that I keep cattle. I am the complainant for the reason that my herder was killed.

The KPR officer duly helped us to identify whose Carmels they are. The Somali boy who was with the accused run away he did not make any statement.

I do not know whether Ngulei made any statement, He only helped to arrest the accused. The accused was arrested in Isiolo. I do not recall when he was arrested. We were only called and informed he was in custody.

The DCIO called me and informed me that the accused had been arrested in Isiolo.

I did not photograph the accused at Isiolo Police Station.

Those who informed me about the incident told me that they had met the accused and passed him. That on passing him, they saw him hide on a bush and aim to shoot them/ on being shot at they took off. I do not know how many cartridges were collected/recovered from the scene.

I have ever seen the accused before at a drinking point. He had Carmels.

On that day he pushed his Carmels. I do not know its markings. He went with his Carmels. The boy who told us the Carmels belong to Ngulei is still around. I have ever seen him in that area. I know Ngulei I have met him severally.

Re-examined by Mr. Namiti

Nil

PW5 Isaac M’Mucheke M’Kanamba

(Sworn states in Kimeru translated)

I am the above named I hail from Antuambui and I am a herder.

I recall on 30/5/2015 I was herding cattle. It was about 7:30am. We were moving our cattle from one area to the other. We met some Carmesl. They were with the accused who was with another young boy.

When we had passed them, I heard shooting.

I was with Gatumbua, Ntonjira, and PW3 whom we call Karabi.

When we met the accused (pointing at accused) and the Somali boy, we greeted each other and passed on. When they had gone short distance, I heard sounds of shouting. I saw Ntonjira fall down. I lied down. I saw the accused with the Rifle. He shot us with it. I do not know why he shot at us. Probably he wanted to take our cattle.

I had not seen him before that day.

I was later called to the police station and identified him. He was bearded and he had sported shirt. He was amongst 8 others.

Cross examination Mr. Mutuma

I saw the accused in the forest on that day. He had a rifle. It was an AK 47. I saw it as he passed near me. He was wearing a shirt and trouser. He was not in Police uniform.

It is after he had passed us that he hid in a thicket and took aim at us. He was with a young boy.

The boy run away but the other Borana’s held him so that he could not be harmed by the Merus.

I do not know where the accused was arrested. There were cows that were shot and some died.

The Carmels belonging to the accused were taken by the other Borana’s who were present. I did not know whose Carmel’s the accused was herding.

I did not see the markings in the accused’s Carmels.

At the parade I saw only Boranas. Names of those in the parade read to the witness he said, they are Merian.

Re-examination by Mr. Namiti

Nil

PW 6 NO 231845 SP Florence Karimi

(Sworn states in English translated to Kiswahili by Kinyua)

I am the above named. I am currently attached to the DCI Hq Ballisties Section as a fire arm examiner.

My duties are examination of firearms, ammunitions their component parts imitation pf firearms and homemade firearms.

On 20/9/2019 an exhibit was submitted to the Ballistic laboratory bu No. 59942 CLP Henry Njuguna from DC1 Igembe South The exhibit was one Firearm Cartridge case and marked exhibit A’ it had an exhibit memo for me to examine if the firearm which fired exhibit “A” had been used in commission of any other offence.

I examined it and my findings were:-

a) Exhibit “A” is a firearm cartridge case in caliber 7. 62X51MM. Comparative microscopic examination of Exhibit A in conjunction with other similar caliber crime. Fired cartridge cases submitted in the laboratory revealed that the firearm which fired exhibit “A” was also involved in a Robbery with violence incident which the exhibit were submitted by DCI Igembe by OB No. 16/16/9/2019 under our Report Ref No. 650 of 2019.

Sufficient matching firing markings and breach phase face marking farmed the basis of my opinion.

Exhibit “A” was fired in a firearm designed to chamber and fire rounds of ammunitions in Caliker 7. 62X51MM like the L1A1 Rifle among other.

I did prepare a report dated 30/10/2019 and I signed it I wish to produce it as an exhibit.

a) Catridge –Pexh 1

b) Report – Pexh 2

c) Exhibit Memo –MF1 3

Cross examination Mr. Mutuma

I see PExh 2.

The rounds ammunitions do not have a serial number. They are only head stamped by the manufacturer. It is only the firearm which is sterilized. I cannot say the specific firearm that fired PExh 2.

The caliber of the cartridge is head stamped 7. 62 X 51 MM.

PExh 1 was presented by Igembe officer. It is not me who collected it from the scene.

My work is only to examine the exhibit. This exhibit could have been fired by fire arm make L1A1 or like fire arms that can fire 7. 62X 51 MM Calibre.

I did not have any firearm when examining this cartridge. I only examine the markings of the firearm.

The time give was 7:00 hrs 30/5/2015 at Kwangutu village Igembe North that is when the Cartridge was used.

We have a database in which we take photographs of

i. ejector markings

ii. Bridge Phase 11

iii. Firing pin 11

Every time a cartridge is submitted to our laboratory, we compare with those in our database.

It is possible for a firearm to be in use for so many years so long as it has not been recovered.

Exhibit “A” was submitted in 2019 and not 2015. It was brought after the O.B No. 16/16/9/19 was made to us.

Re-examined by Namiti

Nil

PW7 DR. Marra Muthoni Mwangi

(Sworn states in English translated by Mr. Kinyua)

I am the above named the medical officer in charge at Meru Teaching and Referral Hospital.

I graduated with MBCHB Degree in 2012 from Kampala International University. I have been at Meru Referal since July, 2016.

I have a postmortem concerning Ntonjira Mbaarua conducted on 9/6/2015 by Dr. Bett. He is currently undertaking post graduate studies. I have known him for over 10 years. I know his signature and handwriting. I wish to testify on his report.

Mr. Mutuna

No objection.

PW7 Continues

The body was of a male adult approximate AOS of good nutrition. The body was decomposing and the skin was peeling off the body.

Externally

There were 2 exit wounds one to the left knee approx. 5X4 CM. The second was to the Right cheek approximately 4X2 CM.

Internally

The jaw was shattered and the conclusion was that the cause of death was severe Hemorrhage secondary to bullet wounds. A death certificate No. 547343. Signed and stamped with Hospital Stamp. I wish to produce the same as PExh.4.

Cross examination by Mutuma

The bullet wounds were 2 on the knee and Right cheek.

The postmortem was on 9/6/2015.

The death was on 30/5/2015. The postmortem was at Meru Referral.

Re-xamined by Mr. Namiti

Nil.

PW 8 ADULT MALE CHIRISTIAN SWORN AND STATES IN ENGLISH

I am No 234920 Chief Inspector Boniface Musau. I am currently stationed at Kiringa Police Station as officer in charge in Lamu County Previously I was the Deputy OCS of Maua Police station in the year 2015.

I remember that on 4/6/2015 I conducted an identification parade at Maua Police Station. It was started 3:27pm and ended at 3. 49 pm. The identification parade consisted of 8 Meru among murder suspect by name Isaak Hassan Mohamed. I informed the suspect the purpose and reason of conducting the Identification parade and the arrangements I had made to conduct the parade. He agreed and was satisfied with the arrangement and he chose to place himself amongst the others in position between Nos 4 and 6 as No 5.

I called for a witness by the name Joseph Kanani who had been placed at a different building and he was escorted in the identification parade room.

When he was brought in, I informed him there was a group of men and the suspect might be in the group or not. So he was free to check on him and if he could identify any of them to do the same.

He then went around and checked all of them and positively identified the suspect Isaak Hassan by actually touching him with no difficulty. By checking, I mean he went around the group checking the man physically and finally identified the suspect by touching.

I asked the suspect Isaak whether he had any comment and whether he was satisfied. He said he had none and he was satisfied in the way it was conducted. So I gave him his identification parade form P156 which he signed by placing it right thumb print and I countersigned. It is dated 4/6/2015.

Again on the 7/6/2015, at 17:45 hours. I again conducted another identification parade comprising the same suspect and other 8 totaling of 9 men. I again informed him the purpose of the identification and he was satisfied and agreed.

I held the identification parade at the same office at the Deputy OCS office at Maua. The accused this time placed himself between 3 and 5 so he was now No 4. The 2nd witness by name Mucheke Kanamba was escorted to the room of the CID office where he was held. I also informed him that there was a group of men where a suspect in the case may be or not. The witness checked all of them and identified the suspect Isaack Hassan Mohammed by touching him on his shoulder without any difficulty.

I then asked the suspect if he was satisfied with the parade. He agreed that he was satisfied and he signed the P156 by placing his right thumb print which I countersigned. I wish to produce ID Parade form dated 7/6/2015.

Court:

The person who was identified on the identification parade Isaack Hassan Mohammed is the accused before the court. He was identified by the two witnesses. That is all.

Cross examined by Mr. Kirimi for accused

I was not the Investigating Officer in this case. I conducted the Identification Parade. When the accused was being identified he was in custody after he was arrested. Accused was satisfied. I communicated to him the process of the identification parade. I was explaining and he was accompanied by an interpreter.

Do you understand Borana language? No.

I communicated through an interpreter. I do not recall the name of the interpreter.

[It is put to witness that the accused did not understand Borana]

It was a sham because there was an interpreter. I can’t recall the name of the interpreter. The reports so not have provision to indicate whether there was interpreter.

Did suspect wear the same clothes at the different parades? I can’t remember.

[It is put to witness that the accused who was in custody was in the same clothes] I can’t remember the clothes he wore.

There were 9 persons in the parade.

[That a few of the other members of the parade were Meru with similar characteristics?]

There is nothing to show that they had similar characteristics.

Is there a possibility that the witnesses had discussed? I do not know. I did not know him. I cannot rule out that they had discussed as they came on different dates.

Re examination

Nil

Miss Nandwa

That is the close of the prosecution case.

Identification of the accused

5. It is clear from the prosecution evidence that its case hearing on the purported outcome of the identification parade in which the witnesses PW3 and PW5 claim to have identified the accused as the person who shot the deceased. The correct procedure in Identification Parades was set out in R v. Mwango s/o Manaa [1936] 3 EACA 29] following the Police Force Standing Orders. The Identification Parades herein were faulty in that:-

i. It is not demonstrated that the suspect was informed of the purpose of the parade and that he had opted to proceed with the parade without a friend or solicitor (Advocate) being present. On cross-examination, the Inspector of police who conducted in the Identification Parade could not demonstrate that he had efficiently communicated with the suspect as no Borana language interpreter was shown to have been provided.

ii. As concluded by the Investigation office PW1, the majority of members of Identification Parade were from the Meru Community while the suspect is from the Borana Community with distinctive characteristic facial feature. Indeed on the identification parade of 7/6/2015 only the suspect was from outside the Meru Community as shown by the names of the members of the parade as follows:-

(1) Peter Gikundi

(2) Godfrey Kimathi

(3) Isaac Mugambi

(4) Isaac Hassan Mohammed

(5) Joseph Muchiri

(6) Leonard Gitonga

(7) Sabari Kobia

(8) Martin Ngugi

(9) Paul Kobia”

6. It was held by the Court of Appeal in Mburu & Anor v. R (2008) KLR 283,“the value of an Identification Parade as evidence would depreciate considerably unless it was held with scrupulous fairness and in accordance with instructions contained in the Police Force Standing Orders. See also Mwango s/o Manaa v. R[1936] 3 EACA 29.

7. PW3 one of the cattle herders who was with the deceased Ntojira when he was shot said that it was at 7:00am and that he had seen the person who shot the deceased and could identify him and had in fact identified the accused at the police station because he had on the material day of the attack seen him very well. His description of the features at the Identification Parade indicates that the parade was wrongly conducted by police Inspector by indicating that the person who had shot and killed the deceased was at the parade and the witnesses were required to identify him. He said.

“At the police station I identified him alone. He was chased by the public and arrested and taken to the police. He was placed amongst many people then I was told to identify the person who killed the deceased. I identified him I was left to leave.”

8. Parade procedure rule 6 (iv) (k) under Force Standing Orders requires that:-

“When explaining the procedure to a witness the officer conducting the parade will tell him that he will see a group of people which may or may not contain the person responsible. The witnesses should not be told "to pick out somebody” or be influenced in any way whatsoever.”

9. By reason of the foregoing the primary rules of procedure under Identification Parade were violated namely:-

“(6) (iv) Whenever it is necessary that a witness be asked to identify an accused/suspected person, the following procedure must be followed in detail:-

(a) the accused/suspected person will always be informed of the reason for the parade and that he may have a solicitor; or friend present when the parade takes place;

(b) …….;

(c) the witnesses will not see the accused before the parade;

(d) the accused/suspected person will be placed among at least eight persons, as far as possible of similar age height, general appearance and class of life as himself. Should the accused/suspected person be suffering from a disfigurement steps should be taken to ensure that it is not especially apparent.

(e) The accused/suspected person will be allowed to take any position he chooses and will be allowed to change his position after each identifying witness has left, if he so desires;

(f) Care will be exercised that witnesses do not communicate with each other.”

10. PW 4 the cattle business-man Genesio Gitonga who is a brother of PW3 was employer of the deceased said that Borana and Somali elders, who took over the effort of finding out who was with the Camels, “were able to arrest the suspect who took him to Isiolo Police Station. I was called and I went with the police officer and collected him from Isiolo police station. We brought him to Maua.”PW4 brother of the identifying witness PW3 had seen the suspect and ferried him to Maua and the likelihood that he may have shared the identification details of the accused with the brother PW3 and his Co-herder PW5 puts the question veracity of the identification parade. In addition, the two Identification Parades were held on different dates on 4/6/2015 and 7/6/2015 and for the suspect who was in custody with no opportunity to charge clothing, the possibility of the witnesses who were co-herders having spoken and pinpointed the suspect according to his dress could be ruled out. Nor that the witnesses may have seen the accused during his remand at Maua Police Station.

11. The two witnesses in the Identification Parade may have had opportunity to see the accused before the parade while he was held at Maua Police Station, and they may have discussed his identification the 4 days between the then Identification Parade on 4/6/2015 and 7/6/2015 being in mind the close relationship between PW2, PW3 (brother to PW4) and PW5, co-herder of PW3.

No corroboration of the identification evidence.

12. It is trite that evidence of identification should be tested with greatest care to avoid instances of mistaken identity. See Roria v. R. [1967] E.A 583, 584 D - H where the court of Appeal for East Africa counselled caution in matters relating to identification of accused persons as follows:-

“A conviction resting entirely on identity invariably causes a degree of uneasiness, and as Lord Gardner, L.C. said recently in the House of Lords in the course of debate on s. 4 of the Criminal Appeal Act 1966 of the United Kingdom which is designed to widen the power of the court to interfere with verdicts:

“There may be a case in which identity is in question, and if any innocent people are convicted today I should think that in nine out of ten – if there are as many as ten – it is a question of identity.”

That danger is, of course, greater when the only evidence against an accused person is identification by one witness and although no one would suggest that a conviction based on such identification should never be upheld it is the duty of this court to satisfy itself that in all circumstances it is safe to act on such identification.In Abdal Wendo and Another v. R (1953) 20 E.A.C.A. 166, this court reversed the finding of the trial judge on a question of identification and said this (20 E.A.C.A. at p. 168)

“Subject to certain well known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably concluded that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”

In the present case the learned judge thought Samaji an honest witness. We do not quarrel with his assessment of her honesty but a witness may be honest yet mistaken, and in excluding the possibility of a mistake on her part, the leaned judge, with respect, erred in our view.”

Inconsistency of identification

13. The description of the attackers by the two eye witnesses PW3 and PW5 vary as follows:-

PW 3 on cross-examination

“I had never seen the accused before that day. I only saw him on that day. He was wearing a police uniform. His colleague was not wearing any uniform. I do not know where he comes from.

PW5

“I saw the accused in the first on that day. He had a rifle. It was an AK 47. I saw it as he passed me. He was wearing a shirt and trouser. He was not in police uniform.”

If the two are witnesses of truth, then their description of the accused’s dressing is at variance and it makes it unsafe to convict the accused on what is clearly inconsistent evidence of identification.

14. However, evidence which itself requires corroboration cannot corroborate other evidence. In this case, the identification at the parade by the two witnesses PW3 and PW5 cannot counter corroborate each other, and it does not, in fact, corroborate each other as the testimony of the two witnesses is at variance.

Uncalled witnesses

15. There were gaps in the prosecution evidence as to how the accused was identified by the members of the public who arrested him at Isiolo away from the place of incident of killing at Igembe, North Kwangutu village on a subsequent date. None of the said members of the public who arrested the accused were called as a witness to testify on the reason for implicating the accused in the murder.

16. A Kenya Police Reserve (KPR) officer who according to the owner of the cattle and employer of the deceased, PW4, helped them in identifying the owner of his camels which were allegedly being herded by the accused together with a “small Somali boy” was not called as witness. The Somali boy was also not produced. The Somali and Borana elders who arrested the accused suggesting his involvement in the killing were not called as witnesses. The prosecution’s case was wholly deficient in this regard of accused’s alleged involvement and the failure to call the KPR officer, the Somali herds boy and any of the elders or members of the public, according to PW2, who arrested the accused must be taken within the meaning of Bukenya v. Uganda [1972] EA 549 to justify an adverse inference.

Glaring inconsistences

17. On Cross examination PW4 testified as to how the incident happened as follows:

“Those who informed me about the accident told me that they had met the accused and passed hi. That on passing, they saw him hide on a bush and aim to shoot them. On being shot at they took off”.

18. Those who must have informed PW4 where PW3 his brother and cattle herder and PW5. In its own words, PW4’s brother and herder, PW3, testified in examination in Chief that:-

“While looking after the cattle which we were transferring to another area, we then met camels. There were two people looking after the camels. One of those looking after the camels shot the deceased. He did so after we had passed him.”

19. PW5, the other cattle herder who testified:-

“I recall on 30/5/2015, I was herding cattle. It was about 7:30 am. We were moving our cattle from one area to the other. We met camels. They were with the accused who was with another young boy.

When we had passed them, I heard shooting. I was with Gatumbua, Ntonjira, and PW3 whom we call Karabi.

When we met the accused. (Pointing at accused) and the Somali boy, we greeted each other and passed on. When they had gone short distance, I heard sounds of shooting. I saw Ntonjira fall down. I lied down. I saw the accused with the Rifle. He shot us with it. I do not know why he shot at us. Probably he wanted to take our cattle. I had not seen him before that day.”

On cross-examination, PW5 said:-

“I saw the accused in the first on that day. He had a rifle. It was an AK 47. I saw it as he passed near me. He was wearing a shirt and trouser. He was not in police uniform. It is after he had passed us that he hid in a thicket and took aim at us. He was with a young boy. The boy run away but the other Boranas held him so that he could not be chased by the men.”

While PW5 says that the accused hid in a thicket and shot at them, PW3 only heard “sounds of shooting” and saw Ntonjira fall down, and he lay down. He did not see the accused “hide in a thicket” and shoot at them.

No recovery of exhibits

20. There were no recovery made on the alleged rifle that fired the gunshots. The recovered cartridge was on ballistic examination established to have been fired from the same gun that had been used in a previous robbery incident. However, there was no evidence to link the accused with the said rifle or with the spent cartridge other than the evidence of identification by the two witnesses at faulty Identification Parade and without corroboration.

Verdict

21. The court must find on the evidence presented by the prosecution that a prima facie case within the meaning of Bhatt v. R[1957] EA 332 has not been established to warrant the calling upon the accused to make his defence under Section 306 of the Criminal Procedure Code.

22. Accordingly, pursuant to Section 306(1) of the CPC and the authority of Murimi v. R [1967] EA 542, the court enters a finding of not guilty for the offence of murder contrary to Section 203 as read with 204 of the Penal Code.

ORDERS

13. The accused is, therefore, acquitted of the offence of murder contrary to section 203 as read with 204 of the Penal Code.

14. As the accused has been out on Bond, the Bond is discharged and the security shall be restored to the surety depositor.

DATED AND DELIVERED THIS 10TH DAY OF FEBRUARY 2022.

EDWARD M. MURIITHI

JUDGE

Appearances:

Ms. Nandwa, Prosecution Counsel for the DPP.

Mr. J. Mutuma, Advocate for the Accused.