[2022] KEHC 1849 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL CASE NO. 8 OF 2019

REPUBLIC...............................................................................................PROSECUTION

VERSUS

ISAAC SIMIYU WANYONYI..................................................................1ST ACCUSED

DAVID JUMA WAFULA..........................................................................2ND ACCUSED

LAWRENCE SITTI MUNIALO...............................................................3RD ACCUSED

SIMON SAINA WAFULA..........................................................................4TH ACCUSED

GABRIEL BARASA WEPHUKHULU ALIAS MULWANDA..............5TH ACCUSED

MOSES KISIANGANI BIFWOLI...........................................................6TH ACCUSED

J U D G M E N T

The accused ISAAC SIMIYU WANYONYI (accused1), DAVID JUMA WAFULA(accused 2), LAWRENCE SITATI MUNIALO (accused 3), SIMON SAINA WAFULA(accused 4),GABRIEL BARASA WEPHUKHULU (alias) MULWANDA(accused 5)and MOSES KISIANGANI BIFWOLI(accused 6) are jointly charged with the offence of murder.

The particulars of the offence in Count I are that ISAAC SIMIYU WANYONYI, DAVID JUMA WAFULA,LAWRENCE SITATI MUNIALO, SIMON SAINA WAFULA,GABRIEL BARASA WEPHUKHULU (alias) MULWANDA and MOSES KISIANGANI BIFWOLI on the 6th day of December, 2018 in Mitua Sub-location, Mitua location of Bungoma North Sub-county within Bungoma County murdered JACK WAFULA.

The particulars of offence in Count II are that ISAAC SIMIYU WANYONYI, DAVID JUMA WAFULA,LAWRENCE SITATI MUNIALO, SIMON SAINA WAFULA,GABRIEL BARASA WEPHUKHULU (alias) MULWANDA and MOSES KISIANGANI BIFWOLIon the 6th day of December, 2018 in Mitua Sub-location, Mitua location of Bungoma North Sub-county within Bungoma County murdered JACOB MUKHWANA.

The case for prosecution is that on 5. 12. 2018 PW10 Peter Wanjala Bifwoli at 8-9 p.m. was at his parents’ house having supper. He then went to his house and found it broken into and a mattress, 2 chairs stolen. He went and reported to the village elder Juilus Munialo (PW5). The village elder advised him to continue with investigation. On 6. 12. 2018 he received information from one M/s John that Jacob and Jack had taken the items to her to keep for them but she had declined and they went away with them. He went to the village elder in deceased’s village and informed him. He accompanied them to the home of Jacob where they recovered 2 plastic chairs which he identified as his. Later Jacob came and they questioned him about the recovered items. He told them he was given by Jack to sell. The village elder sent Nyumba Kumi officials to look for Jack. They brought him. He was questioned but denied. The village elder decided that they be taken to the A.P Camp. He was with Moses (accused 6) and village elder Mulwanda (accused 5)

On reaching the market he went and informed the Administration police who directed them to take the Jacob and Jack to Kenya police. In the mean time boys who had been watching football came and started beating the Jacob and Jack. They then took them to the police station. Police noticed they were injured and police directed them to be taken to hospital where they died. He was then arrested. He confirmed that on that night he was with Isaac (accused 1) Simon, (accused 4) Moses (accused 6) and Mulwanda (accused 5)

On 6. 12. 2018 at about 8 p.m, PW2 Naomi Mukwhana the sister of deceased in Count 2 Jacob Mukhwana was at their home with her mother Elizabeth when she saw Gabriel Barasa (accused 4) David (accused 2) Solomon (accused 4) and Moses (accused 6) come to their home, with other people she did not know. Accused 5 Gabriel told them they were looking for Jacob (deceased in Count2) in connection with chairs that had been stolen. Elizabeth offered and opened Jacob’s house where they searched and recovered 2 chairs. They asked about the whereabouts of a mattress but did not find it. They then left with the 2 chairs.

At 10 p.m. they came back and George whose chairs had been stolen woke up Jacob’s mother who went and woke up Jacob in his house. He opened and was asked about the stolen chairs. He denied being a thief. Accused 4 Simon Saina and accused 5 Gabriel then took Jacob away. Later she received information from one Joseph that Jacob deceased in Count 2 had been beaten and taken to hospital, where he later died.

PW3 Saul Omondi Mukhwana testified that on material day he was called by his m other and going there saw accused 5 Gabriel Barasa who is a village elder who told them Jacob had stolen plastic chairs which they recovered. In the group was accused 2 David Juma and accused 6 Moses Kisiangani. They then left and he went to sleep. He did not come over until next day when he was informed deceased had died. He was not present where the group came back the second time and took Jacob.

PW4 Elizabeth Ashioya the mother of the deceased was at her house when people came to her home looking for Jacob. He recognized them as accused 5 Gabriel Barasa the village elder. Accused 5 told her there were stolen items in Jacob’s house. She opened for them and they recovered 2 plastic chairs. In the group was accused 1,2,3,4,5,6. They took away the chairs and left. Later that night Jacob came. At 10 p.m. then all the accused came again. She went and work up Jacob. They asked the m about a stolen mattress and he died knowledge. They tied his hands and said they were taking him to Brigadier AP camp. She followed them. At the AP camp the police refused to open. Accused then untied both Jacob and Jack who now had injuries. They were taken to hospital where they both died while undergoing treatment.

PW5 Julius Munialo the village elder of Makhange village where George resides was informed by George that his items had been stolen and he had information that they were in another village. He advised him to report to the village elder of that village.

PW8 Joseph Bukhalala Titya on 6. 12. 2018 at 9 p.m. was going home where he saw people at home of Jacob. (deceased in count 2). He went there and found Luka (accused 1) Kisiangani (accused 6) a nyumba kumi Gabriel (accused 5) the village elder and Sitati (accused 3). He saw accused 2 and 4 but did not know their names. He asked accused 5 the village elder who informed him of the stolen chairs alleged to have been stolen by Jacob and Jack. They deliberated on the issue and it was decided the suspect Jacob and Jack be taken to police. He and the mother of Jacob followed them. Jacob and Jack were tied together and were taken to the AP post who did not open. The decided to take them to Brigadier police station but deceased were unable to walk. They were then untied. When they reached Brigadier police George the complainant reported the matter. Both Jacob and Jack condition deteriorated and were taken to Ndalu health centre where they died.

On being cross examined by Mr. Wamalwa, he said he did not see when the deceased were being beaten.

PW7 No. 50613 Copl Joab Etyang the incharge of Brigadier police base received information that there were members of the public who had left 2 people outside the gate. He went there and found the deceased in Count 1 and deceased in Count 2 with injuries. He sought for a vehicle from OCS to take them to hospital. One died at the gate and another died while in hospital.

PW1 Dr. Patrick Masika performed a post moterm on the 2 deceased persons. He observed that Jack (deceased in count 1) had severe bleeding under the skull, bruises on the 4 limbs, had a fracture at cervical spine. He formed opinion that cause of death was due to neck and head injury due to assault. He produced the post moterm report Exh.1 on the body of Jacob (deceased in Count 2) he had a welling on the legs, bruises on hand and legs, fracture of cervical spine and blunt injury on back of head. He formed opinion that the cause of death was due to cervical injury. He produced the post moterm report Exh.2.

The accused when placed on their defence all gave sworn evidence. Accused 1 Isaac Simiyu Wanyonyi testified that on 6. 12. 2018 at 8 p.m. he heard screams from the home of Jack (deceased in count 1). He went there and found many people who were asking Jack to show them the other stolen items. They went across the river but he did not produce the items. They were with village elder who advised they take him to police. On the way other people joined and started assaulting the suspects. When they arrived at the market more people joined them and he left.

Accused 2 David Juma Wafula testified that he was from Bondeni Market at 7 p.m. when he met Peter Bifwoli (10), Michael Bifwoli and Julius Munialo (PW5) who asked him to accompany them to the village elder to report a theft of his items. He accompanied them to the house of Gabriel (accused 5) where Peter made the report. Together with accused 5 they went to the house of Jacob (deceased) and found the m other who opened Jacobs house where chairs were recovered. He did not see Jacob present and he left.

Accused 3 Lawrence Sitati Munialo testified that he was at his home on 6. 12. 2018 when police officers came and arrested him on allegation of selling changaa. He did not know deceased nor anything about his death. He stated that when the offence occurred he was already under arrest but stated in cross examination that he was released on 5. 4.2018.

Accused 4 Simon Saina Wafula testified that he was in his house when he heard screams from home of Jack Wafula (deceased in Count 1) People including Gabriel (accused 5). They went to the house of Jacob. Upon arrival his mother screamed and they decided to take the suspect to police. On the way other people joined them and started beating them with stones as they were thieves. He left the suspects at the police station while they were still alive.

Accused 5 Gabriel Barasa Wepukhulu testified that he was a village elder. On 6. 12. 2018 at 7. 30 p.m. he was informed by Moses (accused 6) who is a nyumba kumi official that there was theft of chairs and we at the house of Jacob. He accompanied them to the home and the mother of Jacob opened the house. On conducting a search, they recovered 2 chairs. He advised them to report to police. At 8. 30 p.m. they came with Jack and he accompanied them to Brigadier police. On the way other people joined and started assaulting the suspects and him. He then went away.

Accused 6 Lawrence Kisiangani Bifwoli testified that he was at his home on 6. 12. 2018 when at 7 p.m. Peter (PW10) and Nicholas Bifwoli came to him. He is a nyumba kumi official. They informed him that they wanted him to accompany them to the home of Muholi (deceased in Count 2) where their stolen items were. They were joined by Wepukhulu (accused 5). On arrival at home of Jacob they found the mother who opened the house and they recovered the chairs. On the way form there they met Jack (deceased in Count 1) who told them the mattress were with Jacob. They went to home of Jacob and found him. They decided to take both of them to police. On arriving at the Administration police camp, the AP closed the gate. The people who were with suspects started assaulting the suspects and accused. The suspects Jack and Jacob were injured and later died.

Mr. Wamalwa for the accused filed written submissions. Counsel submitted that the death of the deceased is not in dispute as the evidence of the doctor (PW1) confirmed the same. Counsel submits that none of the witnesses who testified for the prosecution said they saw any of the accused inflict injuries on the deceased. While the evidence of the presence of the accused at the scene is not contested, counsel submits that the evidence against them was based on hearsay and suspicion because they were last seen with the deceased. Counsel submits that the evidence tendered by the accused is credible and the accused should be acquitted.

The accused are charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 provides

“Any person who of malice aforethought causes death of another person by any unlawful act or omission is guilty of murder.”

For the charge of murder to be sustained against the accused persons the following ingredients of the offence have to be proved.

In Anthony Ndegwa Ngauri –vs- Republic (2014) eKLR the Court of Appeal sitting in Nyeri held:

For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:

(a) The death of the deceased and the cause of that death

(b) That the accused committed the unlawful act which caused the death of the deceased.

(c) The accused had malice aforethought

1. On whether there was proof of death and the cause of the said death.

It is not in dispute that the deceased herein died. On what was the cause of the death of the deceased, besides proof of death of the deceased, the prosecution is expected to establish the cause of death of the deceased.

Generally, and ordinarily, a pathologist or medical doctor should be called to testify as to the cause of death of the deceased after conducting a post mortem on the deceased body. The pathologist made a report and testified and opined that the deceased’s cause of death as for the first deceased person died due to severe cervical spine injury with head injury due to physical trauma/assault caused by the suspects and their accomplices as per the documents.

The prosecution in murder must prove the unlawful act or omission causing death. The aspect as to when an act causing death can be said to be lawful has been recognized from the time in memorial. In Gusambizi Wesonga Republic (1948)15 EACA6, the court stated “ Every homicide is presumed to be unlawful except where circumstances make it excusable or homicide to be excusable it must have been caused under unjustifiable circumstances, for example self or in defence of property”.

The evidence before court irritably points to an unlawful act that led to the death of the deceased. As stated above, there is no doubt that the death of the deceased was caused by the injuries he sustained according to the said testimonies of prosecution witnesses.

This was collaborated by testimonies of PW3 who testified that the deceased was pelted at with stones whereof he became overwhelmed and fell down to death.

Did the accused or any of them inflict the injuries on the deceased?

PW2 Naomi Kukhwana the sister of Jacob deceased in count 1 on being cross-examined by Imende for accused stated that she did not know if all of the accused beat Jacob. However, she knows that they took him away. PW4 Elizabeth Ashioya the mother of Jacob on being cross-examined specifically who beat Jacob said.

“ George was the owner of the chairs. We were following them about 60 meters behind them. They were beating them as they were taking them to the AP. The AP refused to open. There were many other people who joined them as they shouted “thief, theif”. Accused 5 is a village elder.”

PW8 Joseph Bukhalala Titya on being cross-examined by Imende as to who beat the deceased stated.

“ I did not see the deceased being beaten. There were a group of many people. I did not count them. I knew all accused. While in Jacobs house, he had not been beaten. I saw 2 AP officers at the gate. They advised the deceased to be taken to hospital. At the post none of the accused continued to beat the deceased. The deceased and accused are people known.”

From the evidence tendered before the court it is clear that none of the prosecution witness saw the accused persons or any other person assault the deceased. The prosecution had to identify the accused persons and bring them to the scene of crime as well show their participation in the killing. The evidence of the prosecution was majorly direct evidence with his witnesses being those who were at the scene when the deceased was being killed. However, no one of them directly pointed out to any of the accused persons as being involved in the killing of the deceased.

Having considered the whole evidence in totality I find that the prosecution has not proved a charge of murder against accused 1 -6 beyond reasonable doubt. I therefore find accused ISAAC SIMIYU WANYONYI (accused1), DAVID JUMA WAFULA(accused 2), LAWRENCE SITATI MUNIALO (accused 3), SIMON SAINA WAFULA(accused 4),GABRIEL BARASA WEPHUKHULU (alias) MULWANDA(accused 5)and MOSES KISIANGANI BIFWOLI(accused 6) not guilty of the offence of murder contrary to Section 203 of the Penal Code and acquit accused 1 – 6 under Section 215 of the Penal Code.

I therefore direct accused ISAAC SIMIYU WANYONYI (accused1), DAVID JUMA WAFULA(accused 2), LAWRENCE SITATI MUNIALO (accused 3), SIMON SAINA WAFULA(accused 4),GABRIEL BARASA WEPHUKHULU (alias) MULWANDA(accused 5)and MOSES KISIANGANI BIFWOLI(accused 6) be released unless otherwise lawfully detained.

DATED, SIGNED AND DELIVERED AT BUNGOMA ON THIS 2ND DAY OF FEBRUARY, 2022.

S.N RIECHI

JUDGE