[2022] KEHC 1892 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL CASE NO. 16 OF 2019

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

VERSUS

JANET CHEMATIA KISACH.................................................................1ST ACCUSED

MOSES KELVIN CHEROP......................................................................2ND ACCUSED

VICTOR KIPSANG PSENJEN................................................................3RD ACCUSED

J U D G M E N T

The accused JANET CHEMATIA KISACH(accused1), MOSES KEVIN CHEROP(accused 2) and VICTOR KIPSANG PSENJEN (accused 3) are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the offence are that JANET CHEMATIA KISACH(accused1)and MOSES KEVIN CHEROP(accused 2) and VICTOR KIPSANG PSENJEN (accused 3) on unknown dated between 26th and 28th days of March, 2019 at Meeting Point Bar and Lodging in Cheptais market within Bungoma county jointly murdered MARTIN BRAMWEL OSUKUKU.

The case for the prosecution is that PW1 Eunice Tangar Chebet was a secret woman friend of the deceased Martin Bramwel Osukuku. They used to meet at a lodging at Meeting Point Bar and Lodging. Accused 1 Janet Chematia Kisach, accused 2 Moses Kelvin Cherop were employees and accused 3 Victor Kipsang Psenjen who was the manager. On 24. 3.2019, the deceased asked her to come to the Meeting Point Bar and Lodging. She went there but found he had not come there. As usual the accused 2 opened a room for her and she waited for deceased. At 2. 30 p.m. the deceased came. They stayed in the room up to 5 p.m. when the witness left leaving the deceased in the room. She went home. The next day on 25. 3.2019 she saw him at his home. On 26. 3.2019 he came to her home and spoke to her husband. She did not see him on 27th and 28th March. On 29. 3.2019 she heard screams from his home and upon inquiry she was informed deceased had been found dead in a room at Meeting Point and body taken to the mortuary.

On being cross-examined by Kituyi for accused she stated that she had been woman friend of the deceased since 2011, although she is married. She confirmed they used to sleep together at Meeting Pont Lodging and it is deceased who used to pay for the lodging. She confirmed she was arrested and taken to police and later released.

PW2 Flora Chemutai Osukuku testified that deceased was her husband and he had 4 wives. On the night of 25-26th march he slept in her house and left on 26th March 2019. She did not see him again until 26. 3.2019 when she heard information that he had died.

On being cross-examined by Kituyi she confirmed she knew PW1 Eunice had a romantic relation with her husband and he had other lovers too.

PW3 Tom Etyang Osukuku the son of the deceased was with the deceased on 25. 3.2019, he again met him on 26. 3.2019 and on 28. 3.2019 he received information that he was dead. He saw the body in a police vehicle at Cheptais police station. PW4 Patrick Mulanda the other son of the deceased saw him last on 26. 3.2019. on 27. 3.2019 he received information that deceased had been found dead in a lodging. He went there and found body in police vehicle. He confirmed in cross examination that he knew deceased had an affair with Eunice (PW1).

PW5 Beatrice Wekesa the 4th wife of the deceased saw him on 26. 3.2019 and did not get any report concerning him until 28. 3.2019 when she was told that he had died at a lodging. She went there and saw him lying down but had injuries on the back and was bleeding from the nose and back. She knew of the illicit relationship with Eunice (PW1). PW6 Peter Simatuthe husband of Eunice (PW1) testified that he was imprisoned for 4 months and then released. He did not know of any love relationship between deceased and his wife Eunice (PW1). On 24. 3.2019 the deceased engaged him in a job to work on the construction work at the church. On 26. 3.2019 he came to the church and gave him Kshs 250 to buy lunch for workers. He left and did not come back. On 28. 3.2019 he received information that he had died.

PW8 No. 93768 PC Johnson Wanjohi the investigating officer took over the investigation from Segt Patrick Lumumba. He was informed that a worker at Meeting Point bar and Lodging Victor Kipsang (accused 3) had made a report that a person had been found in a lodging. Segt Patrick Lumumba had arrested 3 suspects who were workers at the lodging. He went to the scene and found body had been removed by police to the mortuary. He interrogated the suspects and recorded statements of witnesses. He forwarded the file to ODPP who directed accused to be charged. From his investigations there was no break in into the room where deceased was found dead.

On being cross-examined by Kituyi for accused he confirmed that Segt Patrick Lumumba was the first to visit the scene, and that he is not a witness. From his investigation he found there were no eye witnesses to the murder but stated he established Eunice did not visit deceased on 25. 3.2019 and that the accused persons worked at the bar on those dates.

PW7 Dr. Wanambisi Caleb Watta who performed post-mortem found that deceased had a swollen neck and head peeling of skin of trunk and lower limps, the scrotum was swollen and blood oozing from the ear and nose. Upon opening the body, he found blood blot below skin on the head and blood in the brain. He formed opinion that the cause of death was due to head injury. On cross-examination he stated that there were no cut wounds.

Upon being placed on their defence accused gave sworn evidence. Accused 1 Janet Chematia Kisach testified that she was working at Meeting Point Bar and Lodging where she would serve customers. She knew PW1 Eunice and deceased as regular customers to that lodging. On 27. 3.2019 Eunice came and asked for a room. She gave her Room 2. She went to the room alone. The witness went away. Later accused 2 Moses told her he had seen a body of a person in the room she had given to Eunice. They went and reported to police. Police came the next day and removed the body and she was arrested and charged with present offence.

Accused 2 Moses Kevin Cherop was working at Meeting Point Bar which had lodgings and accused 1 was in charge of the lodgings. He testified that on 24th, 25th and 26th March 2019 he was not at the bar as he was training at the Cheptais D.C’s office. On 27. 3.2019 he went back to Meeting Point Bar at 6 p.m. At 7 p.m. he went to where accused 1 sleeps to ask her make supper. When he checked room No. 2 which was not locked he saw a person lying on the floor. On closer observation he saw he had foam from the mouth and blood oozing from the nose. He did not have a shirt on. He recognized the person as the deceased whom he knew as he had come to the lodging before, where he would use the lodging. He reported the matter to police who came the next day on 28. 3.2019 and took away the body. Police arrested them and Eunice and were in custody for one month and later charged with present offence.

Accused 3 Victor Kipsang Psenjen testified that he works with Community Development and Sustainability organization as the Project Accountant. At Meeting Point Bar and Lodging he was the manager to accused 2 as he would monitor the counter sales transaction. The Lodging was managed by Janet (accused 1).

On 27. 3.2019 he went to Meeting Point where accused 2 informed him that there was a person dead in the room. They decided to report the matter to police. Accused 1 informed him that deceased had a woman fired Eunice (PW1) whom she had given the room. Police came the next day and recovered the body. They were then arrested and charged with present offence. The accused called DW4 Salome Nanjuro, DW5 Nancy Chepterence and DW6 Wesley Kipkemboi who gave evidence that accused 2 and 3 were not at the scene on 25. 3.2019.

Mt. Kituyi for accused filed written submissions. He submitted that there was no eye witness called by the prosecution. He submitted that none of the prosecution witnesses testified as to who murdered the deceased. Counsel submitted that the prosecution did not call even the officer who visited the scene and removed the body. He submitted that prosecution sought to rely on circumstantial evidence which require a high bar to prove that it is indeed accused who committed the offence.

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

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

The ingredients of the offence of murder which the prosecution must prove beyond reasonable doubt are:

(a) The fact and the cause of death

(b) The unlawful act or omission that caused the death.

(c) That it is the accused who committed the unlawful act or inflicted the injuries that led to the death of the deceased.

(d) That the accused had the necessary malice aforethought or mens rea.

That the deceased died is not in dispute. Infact it is accused who reported that he was dead and reported the matter to police.

PW7 Dr. Wanambisi Caleb Watta who performed the post-moterm found deceased had swollen neck and head with blood covering in the brain. He formed opinion that the cause of death was blunt head injury. He however admitted that at time of post moterm the body had post-moterm changes.

The prosecution called 8 witnesses including the doctor. None of these witnesses testified as to how the deceased met his death. Infact they all were only informed that deceased was dead after accused had reported the matter to police. The police officer Segt Patrick Lumumba who was the first to visit the scene did not give evidence of the scene and even how or where he found the deceased in the room.

The prosecution only tendered evidence to show that the deceased was found in a lodging room, that the accused were workers in that lodging and that therefore they were the one responsible for his death.

The prosecution can prove a charge against an accused person by tendering direct evidence where witnesses testify that they saw accused commit an offence. Prosecution can also prove a charge by proving a set of facts from which cumulatively the court will make an inference that it is accused and no other who committed the offence. This circumstantial evidence.

In this case there is evidence that deceased was found in a room at Meeting Point Bar and Lodging. He had injury on head and swollen neck which the doctor stated caused his death. There was no direct evidence linking any of the accused to the injuries. The prosecution in this case therefore sought to rely on circumstantial evidence, which is as good as any evidence and can prove a fact or charge. In PON –vs- Republic 2019 eKLR the court of appeal on circumstantial evidence observed

“to base a conviction entirely or substantially upon circumstantial evidence, it is necessary that guilt of the suspect would not only be rational inference but also it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the suspect not guilty. This principle has been applied for years in this jurisdiction and the two leading judicial authorities that have stood the test of item are Rex V Kipkerring Arap Koske & 2 Others (1949) EACA 135 and Simoni Musoke V Republic (1958) EA 71. In Rex –V Kipkerring (supra) the court explained that;

“in order to justice a conviction on circumstantial evidence the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt and the burdens of proving facts which justify the drawing of this inference form the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts the accused.”

Simoni Musoke V R(supra) introduced an additional factor to the foregoing, to the effect before drawing the inference of the accused’s guilt from circumstantial evidence the court must be sure that there are no co-existing circumstances or factors which would weaken or destroy that inference. Over the years these strictures have been developed further byway of explanation. For example, in the case of Omar Mzungu Chimera V. R Criminal Appeal No. 56 of 1998, the court stated hat;

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

(i) the circumstances from which an inference of guilty is to be drawn, must be cogently and firmly established;

Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

The circumstances taken cumulatively should form 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.”

In this case he only circumstances proved by the prosecution was that the deceased was found in a lodging where the accused worked. Eunice (PW1) testified that indeed she took the room and deceased joined her and slept together. She left the deceased behind and went home. The deceased was later found in that room lying on the floor dead. Those proved and admitted facts do not show how deceased died, he or that it is accused and no other who murdered the deceased. To persuade the court to make an inference of guilt the inculpatory fact must be in-comparable with the innocence of the accused and incapable of explanation upon any other hypothesis than guilt of accused. I do not find that to be the position in this case.

After considering all the prosecution evidences I do not find that prosecution has proved the charge against accused beyond reasonable doubt. I find the accusedJANET CHEMATIA KISACH(accused1)and MOSES KEVIN CHEROP(accused 2) and VICTOR KIPSANG PSENJEN (accused 3) Not guilty of offence of murder and acquit accused 1,2,3 under Section 215 C.P.C. I order that accusedJANET CHEMATIA KISACH,MOSES KEVIN CHEROPand VICTOR KIPSANG PSENJEN be set at liberty unless otherwise lawfully detained.

DATED, SIGNED AND DELIVERED AT BUNGOMA ON THIS 8TH DAY OF FEBRUARY, 2022.

S.N RIECHI

JUDGE