[2017] KEHC 71 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL CASE NO 51 OF 2012

REPUBLIC.....................................................PROSECUTOR

VERSUS

JOHN AMANI KATANA.....................................ACCUSED

RULING

The accused persons, JOHN AMANI KATANA is charged with the offence of MURDER contrary to section 203 as read with section 204 of the Penal Code, Cap 63 of the Laws of Kenya

The particulars of the offence are;

“On the night of 28th and 29th March, 2012 at 2. 00am. Dungicha village, Dungicha location in Ganze District within Kilifi County, the accused person jointly with another already before court murdered KAHINDI KITSAO.

The accused was first arraigned in court on the 18th day of September, 2012. And on 28th day of September, 2012, when the information was read out to him, the accused took a plea of NOT GUILTY. The hearing of this case commenced on the 1st day of August, 2013. The prosecution called a total of three (3) witnesses and closed their case.

Pw1, was Dr. Ngazi Nduko, a pathologist and medical doctor by training, who testified that on 3rd day of March, 2012, he was requested to perform an autopsy on the body of the deceased, who, he noted had a sutured wound on the head and a seven cm long sutured wound on the right wrist with signs of needle marks signifying fluid to have been inserted . Pw1 proceeded to open the deceased’s head where there was bleeding in the brain cavity and 27 centimeter long fracture of the skull and the brain was swollen. He formed an opinion that the cause of deceased’s death was as a result of increased pressure in the head due to bleeding in the brain cavity.

Pw2, RAPHAEL CHARO NGULE, a brother to the deceased, testified that on the material day at about 11. 000am, he and his brother went to the scene where they found the deceased having been beaten by use of sticks . They saw blood stained pieces of wood at the scene. He told court that the deceased and one Tabu Kahindi had gone to attend a funeral ceremony on this day.

In cross examination, Pw2 said that he did not witness the incident and neither did he find the accused persons at the scene where they found the deceased before he died.

Pw3, EZELIEL CHARO NGULE, a village elder, told court that he received information from the area chief, Margaret Fumula that one John Amani Katana of his village was a murder suspect and he was required to search for him together with the area community police. Pw3 knew who the accused was and his place of abode. They found him on his way to his house after three (3) days, and informed him of the reason for his arrest. He was then handed over to Bamba police.

The prosecution closed their case on 14. 7.2017 after failing to avail any more witnesses, despite several adjournments by the court at their instance.

Mr Oduor, counsel for the accused person submitted that at the close of their case, the prosecution had not tendered any evidence to warrant the accused person being placed on defence. He prayed that the accused person be discharged without being put on his defence. The prosecution opted to rely on the evidence that had so far been adduced by their witness.

The burden of proof in a criminal trial is upon the prosecution party, which is the state.

The accused is charged with an offence under section 203 of the Penal code, which stipulates that;

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

Therefore, the state is legally duty bound to prove three ingredients for the offence of murder to be said to have occurred; That

1. death occurred and cause of it;

2. the said death was occasioned by the accused’s unlawful act or omission;

3. in committing the said act, the accused had malice aforethought.

With regard to the first ingredient the fact that the deceased died in this instant case is not in dispute. Pw2, brother to the deceased told court that he found his brother beaten, took him to hospital where he died and he witnessed the post mortem examination Pw1, being conducted. Pw1 DR NGALI MDUKO who performed the said post mortem examination, produced a report (exhibit P1) he prepared and told court that the deceased’s cause of death was increased pressure in the head due to bleeding on the brain cavity.

The next issue for consideration is whether the prosecution adduced sufficient evidence to prove that the accused person caused the deceased’s death. I have analyzed the evidence of the three (3) witnesses and found that there was no eye witness among them. Pw1, Dr. Ngazi gave evidence of how he conducted a post mortem examination on the body of the deceased and how he confirmed his death and what its cause was.

Pw2, RAPHAEL CHARO NGULE told court that he found his deceased brother having been beaten by use of sticks and together with another brother took him to hospital. In cross examination, Pw2 said that he did not witness the incident of the deceased’s death and neither did he find the accused at the scene.

Pw3, EZEKIEL CHARO, as confirmed during cross examination, only played the role of arresting the accused person.

And so, from the evidence of the three (3) witnesses, none of them linked the accused with the offence hence there is no direct or circumstantial evidence that he committed the offence. The state failed to call the rest of the witnesses, despite the several chances they rose accorded by the court.

Section 206 of the Penal Code defines “malice aforethought” as:

“Malice aforethought shall be deemed to be established by evidence proving any or more of the following circumstances;

(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) knowing 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) and intent to commit a felony;

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

In this instant case, the ingredient of the charge of murder not having been proved, the issue of malice aforethought does not arise. I hence find that, the evidence adduced at the close of the case for the prosecution is inadequate to sustain a conviction.

The accused person is therefore found not guilty under Section 306 of the Criminal Procedure Code. The accused person is hence, set free unless lawfully held.

Orders accordingly.

Ruling read, signed and dated this 7th day of December, 2017.

LADY JUSTICE D. O. CHEPKWONY

JUDGE

In the presence of ;

M/s Ocholla for the state

Mr Odour for the accused person

C/clerk- Beja Nduke