[2015] KEHC 2620 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA KISUMU

CRIMINAL CASE (MURDER ) NO.24 OF 2009

REPUBLIC ….......................................................PROSECUTOR

VERSUS

1. JAPHETH MANGERA NYAINDA...................1ST ACCUSED

2. WILFRED NYAMBATI NYAKUNDI.................2ND ACCUSED

J U D G M E N T

1. The accused persons herein are charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that between the 16th of January 2009 in Kodera Forest within Rachuonyo District Nyanza Province, jointly with others not before court murdered oneFRANCIS KAINDA NYARURI.

2. In establishing or proving their case the prosecution called 10 witnesses. The deceased herein was a newspaper reporter for a newspaper called “Weekly Citizen.” The prosecution's evidence can be summarised thus:

3. PW1 JOSEPHINE KWAMBOKA NYANGAU was the deceased's wife whom they had been married for 10 years. She testified that on the material day, 16. 1.2009, the deceased left home for duty. Later at around 10 a.m. they spoke together in respect to some building construction which was going on. The deceased was inquiring whether the “fundi” had come. The deceased apparently did not come back as expected that evening. The witness attempted to call him but the phone was off. This was around 9 p.m. She inquired from his colleagues who included Evans and others but they too returned a negative answer.

4. On 18. 1.2009 a taxi was sent by Evans who required her to go to Kisii and identify the body at the mortuary. To her shock the mutilated body was that of her husband.

5. When cross examined by the defence counsel PW1 told the court that she knew that the deceased had been threatened by the OCPD Nyamira in respect to some report he had written concerning the construction of the police headquarters.

6. PW2 PETER NYARURI TARIis the deceased's father. They did not stay together with the deceased though they spoke frequently. He said that he was aware of the threats by the OCPD against the deceased in respect to the corruption allegation. He received the information concerning the deceased's disappearance from PW1. He reported the incident at Nyamira Police Station but they failed to take any action. After 2 weeks, the deceased's body was traced and he went to the mortuary to identify.

7. PW3 HARRISON ADIKA OGIGO is the Assistant Chief Kadel Kamidgo Sub-Location. He testified that on 27. 1.1009 he was called by one Gabriel Otieno a member of community policing regarding a body spotted at Kodera forest. He informed the police who collected it the following day. He saw the body whose head had been severed and the hands tied by a rope from behind. The same had decomposed.

8. PW4 P.C. W. BRENDA AKINYI ONYANGO was at the station on 28. 1.2009 when she and others were summoned by the OCS regarding the incident after he had received information from PW3. They went to the scene and collected the body which they took to Kisii District Mortuary.

9. PW5 GABRIEL OTIENO OWUYA is a member of community policing who received information at around 10 a.m. on 27. 1.09 through one Akwala who had seen a body in the forest. He told the Assistant chief and later proceeded to the scene.

10. PW6 ORATWA NYANYUMBAa retired Ministry of Agriculture driver told the court that he met the deceased whom he knew on 16. 1.09 at Moriboro stage. He told him that he had an urgent safari. He later heard that he had died.

11. PW7 C.P. RICHARD LANGAT told the court that on 21. 1.10 he accompanied one C.P. WAMBUA in arresting one suspect within Kisii town, who however slipped away, and disappeared upon reaching the station. He chased and apprehended him. The said suspect turned out to be accused 2 herein.

12. PW8 CPL. NICHOLAS MUTISYA a CID officer told the court that on 6. 2.09 he was at Provincial Criminal Investigation office at Nyanza when deputy PCIO MR. MARTIM gave him the assignment of investigating a murder case at Nyamira. He wrote a letter to safaricom to get details regarding telephone numbers 0725-410-907 and 0722-375-541. He said that he received a feedback from safaricom after one week which showed that phone number 0722-117-763 was from a common caller. He also found that phone No.0725-410-907 belonged to the deceased. He continued to carry out his investigation regarding the other phone numbers including 0722-347-112 and 0722-313-882 and how they had been operated. He discovered that one Mokaya Mokeita and Janet Mokaya had telephone numbers 0728-925-989 and 0711-340-424 respectively. They arrested the two users at Keroka area in Kisii as well as one Teresia. They also arrested Evans Mose the boyfriend of Teresia who was a taxi driver at Kisii town.

13. As a result of the investigation they discovered that there was a criminal gang involved which included Nyambati, Bosco, and Murefu. The said witness produced lengthy telephone prints of the afore-mentioned phones and their usage. The said witness didn't apparently complete the investigation. On cross-examination he confirmed that both Musoga and him received threatening messages concerning the case which led Musoga to withdraw from the investigation.

14. PW9 JULIUS MUSOGAconfirmed what PW8 said. He went ahead to produce the exhibits so far relied on by the prosecution. On cross-examination he said that there was an allegation that the security team at Nyamira was compromised and they singled out particularly the OCPD.

15. PW10 DR. ONCHERE SAMUEL produced the postmortem report on behalf of DR. MARGARET ODUORwho had performed post-mortem on the deceased's body. According to the analysis and conclusion the cause of death was head injury secondary to deep cut wounds with sharp object.

16. When put on their defence, both accused persons offered no evidence but choose to keep silent. This was in compliance with Section 49(1)(b) of the Constitution.

17. The state as well as the 2nd accused had filed written submissions in support and in opposition to the case. The 1st accused choose to rely on the evidence on record.

ANALYSIS AND DETERMINATION

18. For the offence of Murder to be established the prosecution must establish malice aforethought which has been defined under Section 206 of the Penal Code as:

“.............(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may not be caused;

(c) an intent to commit a felony;

(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

19. Having perused carefully the submissions by the parties herein as well as having the benefit of listening to all the prosecution witnesses, it is clear that non of them was able to directly connect the accused persons with the offence. The civilian witnesses specifically testified about how the deceased's body was found but non of them saw the accused persons either with the deceased before his death or at all. They generally participated in the recovery of the body.

20. Having said so it is incumbent upon the court to determine whether or not the circumstantial evidence available links the accused persons to the deceased's death. It is understood that circumstantial evidence can only form a basis for conviction if there is no other existing circumstances weakening the chain of circumstances relied on. This is what the learned state counsel choose to rely on in his submissions.

21. Looking at the facts on record, the closest circumstantial evidence available are the phones used by the accused persons and others. PW8 and PW9 who supposedly were star witnesses in the case gave narrations of how they pursued the use of phone numbers namely 0725-410-907, 0722-675-541, 0727-117-763, 0722-347-112 and 0725-313-882 belonging to different persons including the deceased.

22. As a result of their evidence one Evans Mose a taxi driver featured prominently. Apart from that some other names of vigilante groups were mentioned. Interestingly both PW8 and PW9 did not appear to have concluded their investigations. The telephone prints were then produced, or should I say, “dumped” to the court without any attempt to interpret its probative value.

23. Consequently I do not find that the evidence of PW8 and PW9 which ought to have shed some light on the movement of the deceased on the material period could sufficiently aid this case. Neither does it explain the connection between the accused persons and the deceased.

24. Even more intriguing is the role played by the OCPD Nyamira and Evans Mose the taxi driver and the boy friend of one Teresia. Did the OCP by any chance had anything to do with the deceased's death and the boyfriend of one Teresia. Did the OCPD by any chance had anything to do with the deceased's death especially now that he had been threatened when he was pursuing the corruption story? How about the other people mentioned including Mose? Why didn't he make any statement?

25. From the evidence therefore on record and just on the defence submitted it would be unjust to convict the accused persons on insufficient evidence. They don't have the right of filling in the lacuna left behind by the prosecution.

26. In summary this was an extremely cruel and terrible death of a young reporter with such a young family. The matter was poorly investigated. Unfortunately as earlier stated, the key leads perhaps would have been tying together the telephone conversation by the prosecution. Unfortunately what they presented did not place the accused persons at the scene of crime or in anyway connected to it. Perhaps the OCPD Nyamira then would have made his statement regarding the suspicion both by the deceased and his family.

27. In the premises I am left with no other option but to set free both accused persons under the provisions of Section 215 of the Criminal Procedure Code unless lawfully held. The sureties are similarly discharged. Orders accordingly.

Dated, signed and delivered this 30th September, 2015.

H. K. CHEMITEI

J U D G E