[2017] KEHC 1157 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL CASE NO. (MURDER) 49 OF 2015

(Formerly Nakuru HCCRC No. 11 of 2014)

REPUBLIC …………………………………………………………PROSECUTOR

-VERSUS-

ISAAC MBUGUA HARRISON..….….………………….…………..1ST ACCUSED

GRACE WANJIKU MBUGUA…….……………………..…….……2ND ACCUSED

JAMES KAMAU NGIGE…….…..……….……………….….………3RD ACCUSED

HARRISON NGIGI MBUGUA……...………….…………..…………4TH ACCUSED

JOSEPH MUCHATHA alias JESSE …….………………………..5TH ACCUSED–

Acquitted under Section 306 (1) of the Criminal Procedure Code.

J U D G M E N T

1. The 1st, 2nd, 3rd and 4th Accused persons are members of one family. The 2nd and 4th Accused are a couple and the parents of the 1st and 3rd Accused persons. They were jointly charged with a fifth person (acquitted under Section 306 (1) of the Criminal Procedure Code) with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. In that between 13th and 15th January, 2014 at Kayole Estate in Naivasha Sub-county within Nakuru County, they jointly, with others not before court murdered Samuel Imbuga Mahiva. They were represented by Mr. Kimani.

2. The prosecution called six witnesses who presented the following case. The Accused family were residents of Kayole, Naivasha in the material period. They resided in their own separate and enclosed compound which could be accessed through a metal gate. The family home constructed out of the stone and corrugated iron roof consisted of the main house which had at least 2 bedrooms. One bedroom was occupied by the 2nd and 4th Accused and the second by a younger son, aged 17 at the time, D K N(PW5) which he shared with the 3rd Accused. Two external rooms under the same roof with own separate external doors comprised the annexe to the main house. The 1st Accused resided in one of those rooms.

3. On the night of 14th January, 2014, PW5was asleep in his room when he was roused by the 1st Accused’s tapping on the window. He asked PW5 to open the door to the main house, but PW5 said the door was locked. The 1st Accused instructedPW5 to get the keys and open for him. PW5 complied and on coming in, while both men were in the kitchen, the 1st Accused produced a cooked chicken which he invitedPW5to share with him. PW5 sensed a bad odor and declined to eat the chicken proceeding to bed. Presently, PW5 was joined in bed by the 1st Accused who left early the next day.

4. On the same morning, the decomposing and partly charred body of Samuel Imbuga MahivaakaSammy (the deceased) was spotted lying in a trench some 50 metres from the compound of the Accused family. Members of public notified the area chief Josephine Wangari Ndungu(PW1). She in turn informed police, before proceeding to the scene. PC Julius Nyamu(PW2), Corporal Kogo(PW6) and the Officer In-charge of Naivasha Police Station (OCS) Naivasha were some of those who visited the scene, and in the company of PW1 conducted the initial inquiries.

5. Noting dragging marks on the ground, the officers decided to follow the trail which at some point appeared to have blood stains. The trail led them to the home of the Accused family where, more blood marks were noted on the gate and at the door of the 1st Accused’s room which was locked. The OCS had the door broken. In the room were found assorted pieces of clothing which were soaked in blood while there were more blood stains on the floor and mattress. Meanwhile the 2nd Accused who had been summoned to the scene arrived. She told the police that she did not know the deceased man.

6. The body was photographed and removed to the mortuary where it was identified, at post mortem by PW6 and later, by the mother of the deceased Mary Adema (PW4). The body had multiple injuries on the head, chest, abdomen and limbs in addition to charring of the skin. The immediate cause of death was blood loss. The Accused were placed in custody and subsequently charged as present.

7. When they were placed on their defence, all the Accused gave sworn statements. The 1st Accused said he resides at Kayole with his mother (2nd Accused) and assists her at her market business. That in the material period, the deceased lived with him in his room at his parents’ home. That on 13th January, 2014 he and the deceased returned home from a casual job. On the next morning, the 1st Accused went out to assist his mother but upon returning home at 8. 00pm he did not findSammy(deceased).

8. Thus, the 1st Accused elected to spend the night inPW5’s room in the main house, leaving early on the next day to look for a job at Keroche breweries but was unsuccessful. He returned home at 9. 00am to find a large crowd gathered, and the door to his room removed. He said he could not tell who killed Sammy even though he had heard him claim that his life was in danger from persons he named as Jesse and Nyoike. He admitted that in the room he shared with Sammy there were blood stains which he had not seen earlier but he said he saw no trails to his home. He denied the offence.

9. For her part, the 2nd Accused testified that she resides at Kayole and trades at the market in Naivasha. On 13th January, 2014 she went to her business and returned home at 8. 00pm, had supper and on the next day (14th) left at 4. 00am for work. Returning home later, she had supper and slept, her husband the 4th Accused having gone away to attend to his mother. On the next day while at her business, a neighbour called her to go back home where she met a large crowd assembled. At that point it was said that the 3rd Accused had died. The 2nd Accused viewed the body at the scene.

10. Police who were present also ordered her into the room occupied by the 1st Accused. Therein, she saw blood on the floor and presently when the 3rd Accused came, he too was arrested. Soon her husband the 4th Accused also arrived. She said she did not know the deceased, participate in killing him or know the circumstances of his death.

11. The 3rd Accused testified that he resided at Kayole, Naivasha with his Accused family and spent the night of 13th January, 2014 at home having been expelled from school. He did not knowSammy or how he died. On 14th January 2014, he did not return home after being out with friends all day. He went to visit his aunt’s home at Kabati only returning the next day because news came in that he had died. The aunt escorted him home. He denied having killed the deceased and said that he ordinarily shared a room in the main house with PW5.

12. The 4th Accused testified that he did not know the deceased. That he lived at Kayole Naivasha with his wife (Accused 2) and children. He was in the transport business. He travelled to Nairobi on business on 13th January 2014, returning later to spend the night at Kayole. He left again on 14th to follow up some unfinished business in Nairobi, and when done with his errand, returned to Naivasha. He however left home in the afternoon for Kasambara area to attend to his ailing mother.

13. At the request of his mother, he spent the night there returning to Naivasha on the morning of 15th January, 2014 upon receiving information from the 2nd Accused that the 3rd Accused was dead. He went to the mortuary but on observing body realized that was not correct. He went to inquire at the police station as his family was in custody. He was questioned and also placed in police custody. He denied knowing the deceased or having seen him, or murdering him.

14. At the close of the trial, the defence filed written submissions. To the effect that there was no evidence to link any of the Accused persons with Sammy’s murder let alone the cause of his death. The defence downplayed evidence that Sammy’sbody was recovered close to the home of the Accused persons, asserting that there were many other homes in the vicinity, and that besides, some attendants 9had been killed during a recent robbery at a petrol station. That the prosecution did not connect the alleged blood or blood stained beddings/clothing found in the home with the deceased or scene of body recovery, as no DNA evidence was produced.

15. The court having considered the evidence on record and submissions finds that several issues are not disputed. First, that the decomposed and partly charred body found close to the home of the Accused family belonged to one Samuel Imbuga Mahiva, an admitted friend of the 1st Accused. Secondly, that the body bore multiple injuries in addition to charring. Also not disputed is the fact that 1st Accused was in the company of the deceased on the night of 13th January, 2014, that on the night of 14th January 2014, the 1st Accused spent the night in PW5’s room as his room was locked. It is not in dispute that on the morning of 15th January, 2014 the 1st Accused’s room was broken into by police, and therein were found blood stained clothes and blood on the floor.

16. The key issues in dispute are whether the deceased was murdered, the cause of his death; and whether the Accused herein jointly murdered the deceased. The prosecution evidence against the Accused is essentially circumstantial, a good portion of which is not contested. This includes the relationship between the 1st Accused and the deceased; the finding of his decomposed and partly charred body close to the home occupied the Accused family and the finding of blood stained clothes in the room occupied by the 1st Accused in the material period.

17. The Court of Appeal in Erick Odhiambo Okumu –Vs- Republic [2015] eKLR observed regarding circumstantial evidence that:-

“The prosecution case against the appellant was purely circumstantial to the extent that none of the witnesses who testified witnessed how or by whose act the deceased died. The trial court appreciated that the evidence against the appellant was circumstantial.……

It has long been accepted that the guilt of an accused person does not have to be proved by direct evidence alone. Circumstantial evidence, namely evidence that enables a court to deduce a particular fact from circumstances or facts that have been proved, can form as strong a basis for establishing the guilt of an accused person as direct evidence. Indeed, as this Court stated in MUSILI TULO -Vs- REPUBLIC (supra),:

“[C]ircumstantial evidence is as good as any evidence if it is properly evaluated and, as is usually put, it can prove a case with the accuracy of mathematics.”

But for circumstantial evidence to form the basis of a conviction, it must satisfy several conditions, which are intended to ensure that the circumstantial evidence unerringly points to the accused person, and to no other person, as the perpetrator of the offence. In ABANGA ALIAS ONYANGO V. REPUBLIC, CR. APP. NO 32 OF 1990 this Court tabulated the conditions as follows:

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:

(i) the circumstances from which an inference of guilt;

(ii) is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form

(iii) a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

(See also SAWE -Vs- REPUBLIC[2003] KLR 364and GMI -Vs- REPUBLIC, CR. APP. NO. 308 OF 2011 (NYERI)).

Before a court can draw from circumstantial evidence the inference that the accused is guilty, it must also satisfy itself that there are no other co-existing circumstances, which would weaken or destroy the inference of guilt. (See TEPER -Vs- REPUBLIC[1952] All ER 480and MUSOKE -Vs- REPUBLIC[1958] EA 715). In DHALAY SINGH -Vs- REPUBLIC, CR. APP. NO. 10 of 1997 this Court reiterated this principle as follows:

For our part, we think that if there be other co-existing circumstances which would weaken or destroy the inference of guilt, then the case has not been proved beyond any reasonable doubt and an accused is entitled to an acquittal.”

18. Of the witnesses who testified, none of them had seen the deceased recently before his death. The 1st Accused however admits that he spent the night of 13th and 14th January, 2014 with the deceased and was with him at least on the morning of 14th January, 2014. The question that has exercised the mind of the court is how then the deceased’s decomposing and partly charred body came to be in a trench close to the home of the Accused’s family on 15th January, 2014.

19. The injuries on the body of the deceased are well documented in the post mortem from completed by Dr. Ngulungu and the rather gory images in the photographs produced as Exhibit 3 and 1 (a to i) respectively. The body was examined on 24th January, 2014. Dr. Ngulungu observed that the body was decomposed and he assessed interval between death and post mortem between 10 days and 2 weeks.

20. Regarding the external appearance of the body, Dr. Ngulungu documented large lacerations to the limbs, extensive laceration to the chest (through blunt object), head and scalp lacerations, skin charring by dry heat, but airways devoid of soot. A portion of intestines on left side had eviscerated or protruded with evidence of laceration. His conclusion was that the cause of death was “multiple body injuries involving the head, chest, abdomen and limbs: loss of blood favour immediate cause of death. This is due to bodily trauma.”In light of the state of decomposition, the doctor noted that no blood samples could be extracted from the body.

21. Thus, assertions by the defence in submissions that the cause of death was not established cannot be accurate. And while the body bore evidence of skin charring by application of dry heat, this was not one of the given causes of death, itself consistent with the finding that the respiratory system had no soot. This finding suggests that the charring occurred after death and not before. That the deceased died a violent death is therefore cannot be disputed.

22. The injuries on the body consisted of lacerations or rugged tears, one of which ripped open his abdomen exposing the intestines on the left hand side. Other lacerations were aimed at other key parts of the body such as the head. Although it is not possible to tell the exact weapon used, clearly the extensive blows were aimed at and caught vital body organs, causing grievous injuries and blood loss, resulting in death. In my view, whoever inflicted these injuries clearly intended to cause grievous harm if not death to the deceased.

23. Several pieces of evidence were tendered through six prosecution witnesses to connect the Accused family with the murder of the deceased. The first piece is the proximity between location where the decomposing body was found early on the morning of 15th January, 2014 and the residence of the Accused persons. The scene photographs taken on the said date show that the body was in an open area and lay face down in the trench initially, before being turned over for photography purposes.

24. The body is shown in the photographs produced as lying in a shallow trench, surrounded by soot while the vegetation by the trench is also covered in soot. Evidently, the body was incinerated, albeit incompletely, at that location. From the extensive and ghastly burns on the body, a flammable substance had possibly been used to accelerate the burning. The remains of what witnesses described as a foam mattress are visible on top of the body in the first photograph thereof. To cause such extensive charring, the fire could not have been a small smoldering fire but a significant blaze while it burnt.

25. PW1, PW2, PW5 and PW6 stated that the body was in close proximity to the home of the Accused persons. PW1, the area chief testified as follows regarding her observation of the scene:

“We found the body of a man lying face down. Body was showing signs of burns. The body had no shoes and had blue jeans trouser. There were blood stains close to the body……… seemed to have been mauled, possibly by dogs. The place had other homes, the closest Mama Maina’s. We followed trail of blood stains. It was evident body had been dragged there (to scene). Body had been burnt with a mattress. There were traces of dragging. We followed these several metres and some blood to a home close by. There was nobody. It was locked at the gate. At the gate we saw some blood thereon. The owners of the house, she is Mama Mbugua (Accused 2). We went in by the side gate. All the rooms were locked.”(sic)

26. During cross-examination by Mr. Kimani, PW1stated inter alia that:-

“Body was burnt and had a bad odor………seemed to have been dragged some distance to the trench. The gate to the home we visited had blood. The home belongs to Mama Mbugua……..(she) lived there with her sons and husband……… Yes I knew the homestead belonged to Mama Mbugua and she resided there.”

While under cross-examination by Mr. Mburu, the witness stated:

“The body was smelling – mattress and body had a pungent odor. The blood stains were not fresh, they looked clotted.”

27. PW2was more precise about the location of the body and distance to the home of the Accused. He stated of the scene that:-

“There were traces of dragging and disturbed ground close to body……also some traces of blood. We followed the same and dragging marks to a nearby home about 10 metres away…….opposite where body lay. We went into the house and found nobody at home. We went in by jumping over gate………There was an annexed room (to main house). Dragging led to one of the rooms and also blood stains”

28. The witness said he knew the home to be where Accused 1, 2 and 4 resided. He stated that the body had started to decompose. According to the Accused’s kin PW5, the body was about 30 metres from the fence of the Accused persons’ home. The evidence by PW6 is that the police followed blood trails to the gate of the Accuseds’ home which he estimated to be at a distance of 50 metres from the scene. He reiterated this evidence during cross-examination by Mr. Kimani but also confirming the existence of other homes as the area is residential. He stated that:

“We followed blood trails from the trench to the room. There was clear trail of dragging from the trench to the room”

29. In his evidence, the 1st Accused said he did not see any blood trails leading to the home when he returned home at 9. 00am on the material date. However, on his account he did not visit the scene where the body was found. Equally the 2nd Accused did not go to the scene of the body and she admitted in cross-examination that she did not observe the door step to the room of the 1st Accused and could not tell if it had blood. Neither the 3rd and nor 4th Accused persons went to the scene where the body was found or said anything about the existence of blood stains in their evidence.

30. It is unfortunate that the photographer did not try to capture the trails of blood and dragging from the scene to the home or to photograph the blood stains at the gate of the compound. However, in my view the evidence by PW1,PW2and PW6 is consistent on this aspect and believable. More so, because of the next following pieces of evidence in the prosecution case.

31. It is the evidence by PW1, PW2 and PW6 that having entered the home, they noted blood stains on the door step to one of the locked rooms in the homestead. PW6 stated concerning that room that:

“Window had no window panes. Inside we saw bloody clothes and noted a bad putrefying smell. We suspected body had been there. We found a boy there (PW5) who gave us the phone number of the mother………Accused 1 lived in the room with bloody clothes. We broke the door because Accused 1 had locked. We entered and there was a lot of blood on the floor……..”

32. The witnesses identified photographs of the scene, including those in respect of the particular room he referred to Exhibit 1 (G, H, I). Under cross-examination by Mr. Kimani, PW6 said:

“We broke door to room in presence of D (PW5) and mother (Accused 2) OCS, area chief (PW1) and Sergeant Macharia present……we recorded the scene by photographs.”

33. PW1and PW2 also gave similar evidence concerning the said room and identified the relevant photographs. The photographs of the room, particularly Exhibit 1h show what appears to be blood on the inner wall near the door frame of the room, while Exhibit 1i represents a blood splattered floor and an assortment of blood soaked clothes. The witnesses spoke of the bad odor around the room. This room is the one the 1st Accused claimed to have shared in the material period with the deceased, although all his family members denied the he hosted the deceased therein.

34. The 1st Accused however confirmed seeing blood in his room when he returned home on the morning of 15th January 2014 but denied having seen it earlier, and that police broke the door to his room. The 2nd Accused also stated in her testimony that upon coming home after being summoned there by police, she noted blood on the floor of the 1st Accused’s room and the clothes in the room.

35. It is true as submitted by the Accused’s counsel that police did not extract any samples from the body of the deceased for purposes of comparison with samples from the blood stained items in the room of the 1st Accused. There can be no doubt however that the prosecution and defence witnesses actually saw blood and blood stained items in the room of the 1st Accused. It does not require DNA analysis for an ordinary person to distinguish blood from other liquids. What then was the source of this blood?

36. The deceased’s body, recovered several metres from the home, and had multiple lacerations which, according to the post mortem led to loss of blood and death. That was before the body was deliberately charred in the trench. The 1st Accused admits being in the company of the deceased on the night of 13th January, 2014 and sharing the night in his room. That on the next day (14) the 1st Accused left to go to his mother’s stall returning in the evening to discover Sammy had not come home.

37. Apart from the fact that all other members of the 1st Accused’s family denied knowing Sammyor that he lived with the 1st Accused, the 1st Accused’s mother did not in her testimony indicate that the 1st Accused spent the day of 14th at her stall, which is interesting, because, from his account, the 1st Accused and the deceased went out together on casual jobs on 13th, and on 15th the 1st Accused allegedly went out to Keroche in search of work. Not finding a job, he did not go to the mother’s stall but home. The time was 9. 00am. There is evidence by PW5that the 1st Accused who had his own room had persuaded PW5on the night of the 14th to open the main house to enable him spend the night with him in his room within the main house.

38. Initially when PW5 appeared reluctant to open the main house informing the 1st Accused that the main door was locked, but the 1st Accused directed the younger brother to get the keys and to open up. Going by the account given by PW5 the 1st Accused did not explain toPW5why he could not sleep in his own room instead forcing himself into the bed of his younger brother. Nor did he mention anything about his alleged roommate taking off with his room keys. These matters were not put to PW5 by the defence during cross-examination. Offered a chicken by the 1st Accused, PW5had refused to eat having detected a bad odor about it, or was it the odor brought in by the 1st Accused from the incineration? The answer to this question presents itself in the following consideration of other evidence.

39. The evidence of patently strange behavior by the 1st Accused did not only emanate from prosecution witnesses, particularlyPW5. The 1st Accused was hard pressed during his testimony to explain why he spent the night inPW5’sbed on the night preceding the discovery of Sammy’sbody. He offered that:

“On 14th January, 2014 I slept in my brother’s room. I could not sleep in the room I shared with deceased as he was out………. I got up at 8. 00am (on 15th January 2014) our room was locked (14th) and Sammy had keys. The room had one key which Sammy took on 13th January when I left him in the house. On 14th the door was still locked. Sorry it is on 14th that Sammy did not come home. I returned home at 9. 00pm (14th). I found the door locked with a padlock. I did not try to look for the deceased. I was tired so I slept in my brother’s room. Door had padlock make “Solex”…………yes I went to check on door of my room before retiring for the night. Door still locked…… The deceased usually came home early and did not spend night away. So I did not look for him when I woke up on 15th; at about 7. 00am door to my room still locked. I knocked on door thinking Sammy was asleep. I could not even access my clothes. I decided to go to work. No I did not look for him that morning.”

40. Regarding the events that occurred after he came home at 9. 00am on 15th January, 2014 the 1st Accused stated:-

“I checked the room we shared on 15th (after door broken). My clothes were scattered and there was a rotten smell. Yes when I spent night with D I explained that Sammy had not come.”

41. The 1st Accused’s explanation is incredible for several reasons. Firstly in his own account, he was hosting Sammy, not the other way round. Forced to share a bed with his younger brother, he made no effort to contact the evidently ungrateful guest who had allegedly gone away with his host’s keys, and stayed away without notice. Not on the night of 14th or morning of 15th. The 1st Accused could not even change clothes before leaving for work that morning. Thus his door had been locked since the 14th until police broke it down on the 15th.

42. Moreover he did not bother to find out the whereabouts of Sammy despite claiming that Sammy had confided in him that his life was under threat from by Wanyoike and Jessee. Nor did he report to police concerning this disappearance. Even more surprisingly, he said he had tried the door to his room twice on the night of 14th and one once on the morning of 15th. However having left after the last check on 15th morning at about 7. 00am, he returned at 9. 00am not having found any work. This time he observed blood therein and observed the rotten smell emanating from his room. What had changed within 2 hours in the room to cause it to raise a rotten smell that was earlier imperceptible?

43. It is instructive that, on the night of the 14th January, 2014, PW5did not eat the piece chicken offered by the 1st Accused because of the bad odor around it. Every person who viewed the 1st Accused room on the morning of 15th spoke of the bad rotten odor coming from the room. Evidence by PW6 that the said room’s windows infact had missing window panes is supported by the photograph Exhibit 1f.

44. This is what PW6 stated in that regard:

“(The) window (to Accused’s 1 room) had no window panes. [Peeping] inside, we saw bloody clothes and noted a bad putrefying smell. We suspected body had been there……… we broke the door……there was a lot of blood on the floor…….”

45. The question arising from this evidence is how the 1st Accused could have missed the putrefying smell on the 14th and 15th, and having been locked out by an apparently rude guest, did into even attempt to peep into his room to check, even when he alleged that he thought deceased was asleep inside the room. That for two days he did not even think to force open the padlock on the door is incredulous.

46. The 1st Accused’s stated conduct is more than suspicious, if true. It is strange and makes no sense for an adult man who before me appeared fairly intelligent and confident. By his own admission, he spent the night of 13th/14th January, 2014 in his room with the deceased, thus the last man to see the deceased alive. At post mortem, Dr. Ngulungu assessed that death occurred at least 10 to 14 days prior to the 24th January, 2014.

47. If putrefaction and odor had already started by the night of 14th, the deceased died earlier than 14th. Examining all the circumstances, it is evident to me that the 1st Accused had since the 14th January 2014 avoided to enter his own room, and his alleged lock out bySammy must be an invention. Why so? Because, Sammydid not die on the night of 14th January as the 1st Accused purported to suggest. He died on the night of 13th in the 1st Accused’s room, and the putrefying blood therein was from his multiple injuries. The 1st Accused’s studious avoidance of his room and inexplicable indifference to his alleged friend’s disappearance, to my mind suggests guilty knowledge that Sammy was murdered in his room on 13th, hence the advanced stage of decomposition and rotten odor by the evening of 14th and on 15th January 2014.

48. The case against the Accused inMilton Kabulit & 4 others -Vs- Republic [2015] eKLR was based primarily on circumstantial evidence. The Court of Appeal quoted a passage from Abanga Alias Onyango versus Republic CRA. No. 32 of 1990 (UR) to the effect that:

“In Mohamed & 3 Others -Vs- Republic [2005] 1KLR 722the court went further to define what is meant by circumstantial evidence thus:-

Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.”While inMwendwa versus Republic [2006] 1KLR 133 the court added that

To prove a case based on circumstantial evidence only, every element making up the unbroken chain of evidence that would go to prove the case must be adduced by the prosecution. And that the said chain must never be broken at any stage” And lastly in Ndurya versus Republic [2008] KLR 135 it was held inter alia that:-

circumstantial evidence was often the best evidence as it was evidence of surrounding circumstances which by intensified examination was capable of accurately proving a proposition. However, circumstantial evidence has always to be narrowly examined. It was necessary before drawing the inference of the accused person’s guilt from circumstantial evidence, to be sure that there were no other co-existing circumstances which would weaken or destroy the inference....”

49. The 1st Accused is obligated under Section 111 of the Evidence Act to explain what happened to the man last alive in his company and in his room on 13th January, 2014. These are matters within his knowledge. Section 111 of the Evidence Act states:-

“(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:

Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:

Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence.

(2) Nothing in this section shall—

(a) prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged; or

(b) impose on the prosecution the burden of proving that thecircumstances or facts described in subsection (1) of this section do not exist; or

(c) affect the burden placed upon an accused person to prove a defence of intoxication or insanity.”

50. The above Section and Section 119 of the Evidence Act underpin some of the principles that have been developed by the courts to guide the consideration of circumstantial evidence. As stated in Republic -Vs- Kipkering Arap Koskei [1949] 16EACA 135 by the Court of Appeal for Eastern Africa:

“……..In order to justify on circumstantial evidence the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and in capable 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.”

And in Simon Musoke –Vs- Uganda (1958) EA 715 where the court citing the decision in Teper -Vs- Republic [1952] 2 ALLER 447 stated 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.”

51. The finding of the deceased’s decomposing and charred body, only a few metres to the 1st Accused’s home on 15th January, 2014, cannot in my view, be isolated in the circumstances of this case, from the 1st Accused’s odd and inexplicable behavior on the night of 14th January, 2014 and the rotten odor he brought with him into PW5’s room on that date, and the putrefying smell and blood soaked clothes in the 1st Accused’s room on the morning of 15th January, 2014. The 1st Accused’s explanations for his conduct in this period cannot stand scrutiny. They are incredulous.

52. It is my view, based on a consideration of the available evidence that Sammy met his death in the 1st Accused’ room on the night of 13th and 14th January 2014. It is my further reasonable finding that on the night of 14th January 2014, the 1st Accused possibly by himself or with the help of others, family members included, dragged the body of the deceased to the trench where they set it ablaze, hoping the fire would consume all evidence ofSammy or at least render the body unidentifiable. Unfortunately, much of the body survived the fire. There can be no doubt that the early departure of the 1st Accused from home on 15th January had something to do with guilty knowledge on his part.

53. As earlier observed, 1st Accused’s claims thatSammy had complained about threats to his life are inconsistent with the said Accused’s admitted indifference when he allegedly went missing. It would seem that on his arrest the 1st Accused made these claims to police who arrested one Joseph Muchatha alias Jesse (5th Accused herein) but no evidence whatsoever linked him to the murder and he was acquitted under Section 306 (1) of the Criminal Procedure Code. Moreover claims regarding third parties are no answer for the fact that Sammy evidently died in the 1st Accused’s room having last been alive in the apparent and sole company of the 1st Accused in the same room.

54. Repeated but oblique suggestions to witnesses during cross-examination by the defence counsel thatSammy may have been one of the victims of the robbery that allegedly occurred at a petrol station one kilometre away on 13th January, 2014 do not stand, because from his testimony the 1st Accused went to work with deceased on 13th January and returned home with him after work before retiring for the night. The 1st Accused in his testimony did not at all make any reference to the alleged robbery at the petrol station.

55. There is no evidence that Sammy left home in the night and returned injured. Had that been the case, the 1st Accused would have observed his injuries on the last night he spent with him. There is no such evidence forthcoming from the 1st Accused. Nor were the allegations of the petrol station robbery sufficient to connect the robbery withSammy’sdeath, either as a victim or a suspect. PW6 denied any connection between the two incidents while admitting the occurrence of the robbery.

56. Whatever the case there was no evidence to suggest that Sammywas one of the victims who may have sustained injuries in the robbery and ended up in 1st Accused’s room where he died. These matters are discounted by the admitted fact thatSammywas alive on the night of 13th January, 2014 in the company of the 1st Accused. It is significant that the 1st Accused stated that on 13th, he went to perform ‘casual work’ with Sammy and returned home with him. His putrefying body was evidently removed from the 1st Accused’s room and attempts made to destroy it by fire, most likely on the night of 14th January, 2014.

57. From the evidence before me, the motive behind Sammy’s murder is not evident. As stated in Republic -Vs- Sharmpal Singh s/o Pritam Singh [1962] EA 13, the absence of motive may weaken the prosecution case as much as the presence thereof may strengthen it, but the prosecution is not obligated to prove motive. In Libambula -Vs- Republic [2003] KLR 683 the Court of Appeal stated regarding motive that:-

“We may pose, what is the relevance of motive here? Motive is that which makes a man do a particular act in a particular way. A motive exists for every voluntary act, and is often proved by the conduct of a person. See Section 8 of the Evidence Act Cap 80 Laws of Kenya.

Motive becomes an important element in the chain on presumptive proof and where the case rests on purely circumstantial evidence.Motive of course, may be drawn from the facts, though proof of it is not essential to prove a crime.”(Emphasis added)

58. From the circumstances of this case, the 1st Accused hosted the deceased on the night of 13th January, 2014 and he was murdered in the room. That was most likely by design. The reason may never be known but to my mind the 1st Accused may have lured the deceased into his room where he met his death possibly at the hands of several accomplices including the 1st Accused. It is likely that the 1st Accused and the deceased may have fallen out over a secret matter or even the hackneyed petrol station robbery but nobody can tell as dead men tell no tales. Suffice to say, that in this case, the absence of a clear motive for Sammy’s murder does not weaken the prosecution evidence against the 1st Accused.

59. It is my view that the 1st Accused’s defence is not plausible at all and is displaced by the overwhelming circumstantial evidence led by the prosecution. All the proven facts consistently point at the guilt of the 1st Accused and there are no intervening factors to displace this inference. The 1st Accused’s defence was unbelievable, having clearly been tailored purposely to distance him from his own room from the morning of 14th January, 2014. I find that the prosecution case against the 1st Accused though based primarily on circumstantial evidence, is overwhelming. I do find him guilty as charged and will convict him as charged.

60. Quite possibly, the co-accused to the 1st Accused particularly the 2nd, 3rd and 4th Accused know more about the death of Sammy than they cared to admit. Little wonder that the 3rd and 4th Accused had what appeared to be spurious excuses in the form of seemingly conjured trips away from home on the 14th and 15th of January, 2014.

61. The 1st Accused may have acted with others before or not before the court not only in the gruesome murder of the deceased, but also in the disposal of his body. The 2nd, 3rd, and 4th Accused could not have been totally unaware of a murder committed right under their roof, and besides, it is unbelievable they did not notice the rotten stench emanating from 1st Accused’s room in this period. That notwithstanding, I find that the evidence against them is insufficient to establish that they were accomplices to the murder in terms of Section 20 of the Penal Code.

62. The Section provides:-

“(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence; and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.

(2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(3) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission.”

Accordingly, I will give the 2nd, 3rd and 4th Accused the benefit of doubt and acquit them at this stage.

Delivered and signed in Naivasha this 10thday of November, 2017.

In the presence of:-

Mr. Koima holding brief for Mr. Mutinda for the DPP

Mr. Kimani for the 1st, 2nd 3rd and 4th Accused

1st, 2nd, 3rd and 4th Accused – present

C/C - Barasa

C. MEOLI

JUDGE