[2017] KEHC 120 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 26 OF 2013

REPUBLIC..................................................................................STATE

VERSUS

JAMES GICHUKI MUCHIRI............................................ACCUSED

RULING

The accused JAMES GICHUKI MUCHIRI faces a charge of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE. The particulars of the charge were that

“On the 14th day of March 2013 at Mairo Inya township within Nyandarua County, murdered JANE WANDIA MAINA”

The accused pleaded ‘Not Guilty’ to the offence and his trial commenced on 29/7/2015. The prosecution called seven (7) witnesses in support of their case.

PW4 SAMSON NGOMBI KAVINYA told the court that the deceased was his cousin. Sometime in March 2013 the deceased came to Nakuru to search for work.PW4 secured her a job in the bar where he was employed.

On 13/3/2013 the deceased worked until 10. 30pm then she left for home. The following day PW4 heard that a lady had been killed and her body dumped by the roadside. He went to check and found that the body was that of his cousin.

Police were called in and later removed the body to the mortuary. The accused who was a boyfriend to the deceased was arrested and charged with her murder.

The prosecution having closed its case this court must now analyze the evidence and determine whether a prima facie case has been established.

The fact as well as the cause of death of the deceased have been readily established.PW4 told the court that he saw the body of his cousin lying dead on the road. PW2 CORPORAL PETER BARASA WAFULA stated that he was the first officer to arrive at the scene at the Nyahururu/Nyeri Junction where the body of a woman was lying on the road. PW4 and PW5 SIMON NJERU MUGO both told the court that they went to the mortuary where they identified the body of the deceased to the doctor. The two witnesses who both knew the deceased well identify her as ‘Jane Wandia Maina’.

Evidence regarding the cause of death was tendered by PW6 DR. JOSEPH KARIMI, the head of the medico-legal unit at Nyahururu County Hospital. PW6 produced the post mortem form P. exb 4. He told the court that upon examination the deceased was found to have a deep cut to her head as well as cuts to her side. Internally the autopsy revealed multiple fractures to the left skull bone. The cause of death was opined to be ‘severe head injury due to blunt trauma’. This was expert medical opinion evidence which was neither challenged nor controverted by the defence.

Having proved the fact as well as the cause of death the prosecution is required to go further and tender evidence to prove that it was the accused who by an unlawful act or omission killed the deceased.

No witness has testified to having seen the accused in the company of the deceased immediately prior to her death PW1 CHRISTOPHER WAWITA told the court that on the material day he saw the deceased in the bar where he was drinking. PW1 also told the court that he knew the deceased as a work colleague. However under cross-examination by defence counsel PW1 states categorically that

“I did not see the accused and deceased together. I was with accused until 8. 00pm …… I did not see accused sitting in the bar with the deceased. The two were not together. When the accused came to the bar he came alone”.

Thus PW1 had no evidence to offer regarding the identity of the person who killed the deceased. He had no idea who did it. Likewise no other prosecution witness has been able to identify the accused as the person who fatally assaulted the deceased.

All the court is told is that the accused was a boyfriend to the deceased and at times the two cohabited. This fact alone is not sufficient evidence to implicate the accused in the murder of the deceased.

PW7 CHIEF INSPECTOR PAUL OTIENO was the investigating officer. He told the court that on 14/13/2013 an informer told him that there was a man washing blood from his house. The police rushed to the scene. PW7 states that at that house they recovered a pair of female open sandals with blood stains, a purple blood stained jacket, red/white panties. It is pertinent to note that the accused was not arrested inside that house. The police arrested the accused from a building site near that house.

PW7 did not impress this court as a credible witness. Though he was the investigating officer he did not have any basis for charging the accused other than that accused was a boyfriend to the deceased. PW7 stated

“I established that accused and deceased were friends and the previous night they were seen drinking together until mid night……”

This directly contradicts the testimony of PW1 who clearly stated that he never saw the accused and deceased drinking together in the bar.

Further in his evidence in chief PW7 denied that he had recovered a blood stained axe in the house. However he later changes his mind under cross-examination and stated that he did recover an axe in the house. The said axe was not availed to court as an exhibit.

Again PW7 told the court that he saw no blood at the spot where the body was recovered. Yet later PW7 contradicts himself and states that the body lay in a pool of blood. It is clear with such contradictions that PW7 was not a truthful witness.

Finally PW7 stated that he charged the accused merely because he ‘suspected’ that the accused may have committed the murder. The courts do not base their decisions on the ‘suspicions’ of police officers. The law requires that tangible evidence be adduced to prove the link of the accused to the murder. In the case of SAWE Vs REPUBLIC [2003] KLR 364 the court held ‘suspicion alone however strong cannot provide the basis for a conviction’.

The items which the police recovered inside the house pointed out to them were taken to the Government Chemist for analysis. PW3 ELIZABETH WAITHERA OYIENGO who was the government analyst testified in this matter. She told the court that she did examine the recovered items. PW3 filled and signed her report dated 9/12/2014 which she produced as an exhibit P exb 1.

The analyst found that the jacket and the slippers were not stained with any blood. No DNA profile could be generated from the blood sample of the deceased. Therefore there was nothing in the recorded exhibits to link the accused to the murder of the deceased.

On the whole I find that there exists no evidence to implicate the accused in this murder. No prima facie case has been established and I therefore enter a verdict of ‘Not Guilty’ and acquit the accused of this charge of murder. The accused is to be set at liberty forthwith unless he is otherwise lawfully held.

Dated and delivered in Nakuru this 10th day of November, 2017.

Ms Wairimu holding brief for Mr. Chege

Mr. Motende for Accused

MAUREEN A. ODERO

JUDGE