[2017] KEHC 493 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT LODWAR

CRIMINAL CASE NO. 9 OF 2015

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

VERSUS

JOSEPH EKAI LOMONGIN..............................ACCUSED

JUDGMENT

The accused Joseph was charged with offence of murder contrary to section 203 as read together with section 204 of the penal code. The particulars of the offence are that on the 15th day of September, 2015 at Nabute village, in Turkana Central District of Turkana County murdered Hellen Ekaale Nyasike a child aged 9 years old.

The case for the prosecution is that on 14/9/2015, PW1 Teresa Nasamuki the mother of the deceased Hellen Ekaale Ngasike was at her home when the accused who was her neighbor came to her home and found her seated outside. The deceased was playing with other children at a neighbours home

The accused asked the Deceased to bring him some books but the child ignored and continued playing. The witness then sent deceased to the river. The accused stayed on until sunset when he left for his home.

The witness waited and by 8pm the deceased had not come home. They started searching for her. At about 11pm the body of the deceased was found at the river with injuries on the neck and private parts. The accused went to the police station stating that members of public wanted to beat him on allegations that he is the one who had killed the deceased. The accused was re-arrested and on searching his house recovered a blood stained long trouser, open black shoes and T-shirt which the accused had been seen wearing. The accused was then charged with the present offence.

PW2 John Nasike the father of the deceased testified that on material day he came home at 6pm and found accused at his home with children. The deceased was playing with other children. The accused left at 7pm. The deceased did not come back and they started searching for her. He went to the police station to make a report when accused came. He went with police officers and were informed that the body had been seen. He observed the body and saw it had injures on the neck and private parts. PW3 Rita Ekuwum was at her home when the mother of the deceased P1 went to her and asked if she had seen the deceased. She said she had not. They started searching for the deceased. While searching she saw the deceased lying down among a shrub. She observed and saw deceased had injuries. PW5 Dr. Wanyaa Jonathan produced a post mortem report on the body of the deceased performed by his colleague Dr. Mwewa. Dr. Mwewa found that the deceased had a swelling on the back of head; minor bruises on the back, vaginal bleeding and broken hymen, swelling in the head congested lungs and brain was swollen. As a result of the examination he formed that the cause of death was swelling on the head and congested lung tissue.

PW6 F No.90923 P.C Patrick Nyaoke the investigating officer testified on receipt of the report he visited the scene with Corporal Wafula at Kawalase river bank. They found the body of the deceased lying on her back and appearing to have been defiled. They received a report that accused had gone to the police station to seek protection as people wanted to lynch him on suspicion of killing the deceased. He received a long trouser which was blood stained which was alleged to belong to the accused. He forwarded the long trouser with blood stains to Government Chemist for DNA analysis. PW4 Ann Wangeci Nderitu received the exhibits for DNA analysis and presented her report.

The accused gave sworn evidence. He testified that on the material day he went to work at Chomazone hotel where he worked until the next day then he came home and found his wife and mother had left to receive the old person’s stipend. He took a mat outside and lay down. He slept. At 9. 30pm he was woken up by noise of people saying “ndio huyu”. They wanted to lynch him. A man came with Kenya Police Reservist and youth who arrested him and took him to the police station. He denied that the long trouser and sandals produced belonged to him.

The accused is charged with the offence of murder contrary to section 203 as

read with section 204 of the penal code. Section 203 penal code provides.

203: Any person who of malice afore thought causes death of another person by unlawful act or omission is guilty of murder.

204 Any person convicted of murder shall be sentenced to death.

In an offence of murder the prosecution must establish the three

ingredients of the offence 1) The killing or fact of death of the deceased 2

existence of malice aforethought or mens rea and 3) the unlawful act or omission on the part of the accused the actus rheus. Section 206 of the penal code defines what amounts to malice aforethought which is an intention to cause death or grievous harm with knowledge that the act may probably cause death or an intent to commit afelony or an act to facilitate flight or escape from custody. In other wards the prosecution must prove that the accused had the intention to cause death of or to do grievous harm to any person; that he had knowledge that the act or omission causing death would probably cause death either to the person intended or some other person that he had the intent to commit a felony or that he had the intention by the act or omission to facilitate the escape from custody of any person who has convicted or attempted to commit a felony (see Republic – vs – Albert Tirimba Ogato Kisii H.C CR. 27/2010).

The first ingredient the prosecution has to establish by evidence is the fact of death of the deceased. This form the evidence is not in dispute. PW1the mother, PW2 the father and PW3 the relative all testified that upon effecting the search they found the deceased body in a shrub near a river dead and apparently having visible injuries on the head and private parts. PW5 Dr. Wayaa Jonathan who produced a post-mortem report prepared his colleague confirmed the death and the cause of death. I am therefore satisfied that the fact of death was proved.

The second issue for determination is whether the unlawful act or omission which caused the death was committed by the accused person. In other words were the injuries causing death of the deceased inflicted by the accused?

The evidence of both PW1the mother and PW2 the father was that the accused was their neighbor, his house being a few meters from theirs. It is their evidence that on this material day 14/9/2015 the accused went to their house and sat outside with PW1 the deceased’s mother while the deceased was playing with other children nearby. PW2 the father of the deceased confirmed finding the accused at his home and he stayed until sunset when he left. In the meantime PW1 had sent the deceased to the river and by sunset had not come back. That is when they got concerned and search commenced at 8pm. At 11pm the body was discovered. The accused who had been in his house during the search then ran to the police station. The people searched accused house and recovered a long trouser, which PW1 stated accused was wearing during the day. At the time of the recovery of the items, the accused was not present, but they were led to his house as they followed shoe marks from the scene where the body was found to the house of the accused. The recovered blood stained trouser was handed over to P.C Patrick Nyaoke who forwarded it to government analyst for DNA profiling.

From the evidence of these prosecution witnesses, there was no person who testified that he saw the accused assaulting the deceased or indeed being with her at the river where her body was discovered. The arrest of the accused and subsequent charging for this offence was premised on three factors. Firstly he was at the home of the parents of the deceased upto 7pm when he left; secondly that on following shoe marks from the scene they led to the house of the accused and thirdly that the long trouser accused was wearing during the day was found with blood stains when it was recovered from his house. The evidence therefore relied on in this case by the prosecution is circumstantial evidence.

For the prosecution to succeed when relying on circumstantial evidence they must demonstrate firstly the circumstances relied on are firmly established, secondly that they point to the guilt of the accused and thirdly that taken together the circumstances are so complete that they only point to the guilt of the accused.

In Republic –VS- Kipkering Arap Koske & Another 16 EACA 135. The then court of appeal for Eastern Africa on circumstantial evidence stated.

“In order to justify 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”

The same principles were enunciated in by the Kenya Court of appeal in Sawe – vs – Republic 2003 KLR 364 where it stated;

“There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving those facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis is on the prosecution and always remains with the prosecution. It is a burden which never shifts to the party accused”.

The prosecution sought to rely on the circumstantial evidence that the accused was at the home of the parents of the deceased, during the day and left at around 7pm. That was to show that he was at the area when the offence was committed. From the evidence the offence was committed at the Kawalase river. This evidence does not show that the accused was at the river or near where the offence was committed, at the time it was committed. There is no evidence adduced that when the accused left the home he went to the river and not to his house.

The second circumstance relied on is that the search party, having found the deceased at 11pm observed that there were signs of shoe marks on the sand showing that a person who had committed the offence walked away and they followed the shoe marks which led to the house of the accused. This cannot be a serious circumstance because firstly it is not possible to identify that the shoe marks belongs to the accused, secondly there was evidence that where the accused was staying was a plot inhabited by many people including PW1, PW2 and PW3 and thirdly the search partly consisted of many people who came to the scene and lastly it was at night and visibility to error free following of shoe marks was severely compromised.

The prosecution relied on the circumstance that the trouser the accused was wearing on that day was recovered in his house with blood stains. The long trouser was forwarded to Government Analyst for DNA profiling. PW4 Ann Wangeci Nderitu a Government Analyst received the specimen and analysed them and produced the report Exhibit.1. The report Exhibit 1 was as hereunder

ITEMS RECEIVED & INSTRUCTIONS

On the 7th day of December, 2015 and 13th day of April, 2016 at the laboratory of the Government Chemists Department, Nairobi the following items were received from No.93873 PC Salistus Leseiya of Lodwar Police Station

Item 1: A khaki trouser in a khaki envelope marked ‘H1’ indicated as of

accused Joseph Ekai Lomongin.

Item 2: Blood sample in a bottle marked H2 indicated as of deceased Hellen

Ekaale Ngasike

Item 3: Nail clippings in a khaki envelope indicated as of accused Joseph

Lomongin.

It was desired to examine the items listed above and determine the presence and source of semen, spermatozoa and bloodstains.

REPORT

1. The trouser (item 1) was lightly stained with human blood

2. The trouser (Item 1) was not stained with semen or spermatozoa

3. The blood sample (item 2) indicated as of complainant did not generate a DNA profile

4. The bloodstain obtained from the trouser (item 1) generated a mixed DNA profile

5. The nail clippings (item 3) did not generate a DNA profile

6. The DNA profile generated from trouser (item 1) is tabulated and produced at the end of this report.

On being asked whether the report conclusively found that the blood stains on trouser matched those of the deceased she replied;

The tabulation at end of the report shows the DNA. We did not receive any clothing of a female. The blood sample of complainant did not generate any DNA.

Re-examination – the report is not conclusive.

In this report, the blood sample taken from the deceased did not generate a DNA profile in other words no DNA would be extracted from it due to contamination due to facility collection and storage. It therefore meant that the blood found on the stained trouser would not be matched with that of the deceased. This meant therefore that it was not established that the blood on this trouser came from the deceased. The report was therefore not conclusive on whether the blood stains originated from the blood of the deceased.

As I had stated earlier this case is based purely on circumstantial evidence as there was no eye witness who saw the accused kill the deceased. The prosecution relied on a services of circumstances to establish the guilt of the accused. However upon evaluation those circumstances relied on did not form a chain of inculpatory facts which are incompatible with the innocence of the accused and only lead to the irresistible conclusion that the accused committed the offence. This is a burden the prosecution did not discharge in this case.

After considering all the evidence, I find that the accused Joseph Ekai Lomogin is not guilty of the offence of murder contrary to section 203 as read with section 204 penal code and acquit him accordingly under section 215 criminal procedure code. Accused to be set at liberty unless otherwise lawfully held.

Dated and signed at Lodwar this 15th day of November, 2017.

S N RIECHI

JUDGE