[2022] KEHC 2508 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(Coram: Odunga, J)

CRIMINAL (MURDER) CASE NO. 70 OF 2015

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

VERSUS

JOSEPH KIOKO MUTHOKA........................ACCUSED

JUDGEMENT

1. The accused herein, Joseph Kioko Muthoka, was charged with the Offence of Murder contrary to Sections 203 as read with Section and 204 of the Penal Code, Cap 63. It is alleged that the accused person, Joseph Kioko Muthoka on the 12th and 13th day of August 2015 in Kuwait Village, Milaani Sub-Location, Ndithini Location in Masinga Sub-county within Machakos County murdered Robert Maweu Mutwanthei(the Deceased). The Accused person denied having committed this Offence and as such, a plea of not guilty was entered.

2. In support of its case, the prosecution called 11 witnesses.

3. After voir dire examination, the Court concluded that PW1 would give unsworn testimony. According to PW1, BM,a Form 1 student at [Particulars Withheld] School and a son of the accused herein, at the material time he was staying with his father while their mother was staying with their maternal grandmother.

4. According to him, on 12th August, 2015, he was at home together with his younger siblings, MA, MS and DMwhen at 6 pm, Robert Maweu, the deceased, went home and inquired where their father, the accused, was. Upon being informed that the accused’s whereabouts were unknown the deceased, who opted to wait for the accused, asked for a cup in which he poured the traditional beer he had carried with him called Karubu in the cup, though PW1 disclosed that the accused used to drink and prepare the said beer. At one point the deceased left and returned before the accused returned home and continued waiting for the accused outside the house. When the accused returned, sometimes after the deceased had finished his drink, PW1 left the accused with the deceased. It was his evidence that the duo was joined by PW5 and PW6 to whom he gave cups before proceedings to go and sleep.

5. According to PW1, at some point in the night, the accused woke him up and told him to escort his sister, Mary, DW2, to their grandmother’s house which he did but left DW2 along the way and returned home to sleep.

6. In the morning at 7 am, when he woke up, the deceased was sitting on the floor next to the door of the kitchen but he did not talk to him though he noticed that the deceased had injuries on the side of head and blood had flowed to his clothes on the shoulder. Together with his brother PW2, AM, PW1 went to the kitchen and started preparing tea at which point the accused, in the company of some people including PW8, told them that the deceased, who had been injured was being taken to hospital. Prior to this, the deceased had asked for water from PW1 which PW1 gave him and he drank on his own though PW1 was unable to tell if the deceased could walk.

7. After that PW1, in the company of his brother, PW2 went to garden to pick peas after tying the goats. Later he saw his father, the accused, being picked by police officers in the company of other people. According to PW1, the deceased was not related to them but was living about 3 km away did not used to visit their home often hence he could not tell if the deceased were friends with the deceased. Later, he heard that Robert, the deceased, passed away.

8. PW1 denied that he was the one who sold the traditional beer but admitted that the accused used to drink and even prepare the brew. In cross-examination, he stated that the accused informed him that he had injured the deceased and he was going to look for people to assist him but he never saw the accused assaulting the deceased. In his evidence, he did not know what PW5 and PW6 intended to do with the cups which he gave them. According to PDW, they escorted DW1 to their grandmother’s house because they were informed by the accused that there was someone who was to sleep in DW1’s room but they did not know who the person was. After the deceased was taken to the Hospital, the accused remained at home.

9. The evidence of PW1 was corroborated by PW2, his younger brother, AMK, save that according to him, the deceased asked for the traditional beer which was inside the house. It was his evidence that he did not know whose beer it was and whether it was free or for sale but that it was PW1 who gave the deceased the beer in a cup. By the time the deceased was given the beer, PW2 was in the sitting room after which the deceased left the house and sat outside. The accused who had gone to sell sand returned at around 9. 30 pm and he left the deceased and the accused outside and went to sleep with PW1. He corroborated the evidence of PW1 that in the night they escorted DW2 to their grandmother’s place and that in the morning they found the deceased seated outside injured though they never heard anything during the night. According to him, though the deceased asked PW1 for water, it was that accused who actually gave the deceased water. It was his testimony that it was only that day that he saw the beer being consumed in their house.

10. In cross-examination he admitted that the deceased went to buy beer from their house but maintained that the accused was not selling beer. The deceased, according to him, bought four cups of beer though he never saw him give money 80/=. He stated that PW5 and PW6 only took water and left without taking any beer and that the accused and the deceased were left alone outside as they went to sleep at 9. 30 pm. By then the duo were not drinking according to PW2. When they woke up at 6. 30am, the deceased was sleeping near the door.

11. According to PW5, Peter Kituny Mulwa,on 12th August, 2015 at 7. 00 pm, when he went to pick his jembe from the deceased, his brother in law, with whom he was working, he met Nicholas Mutinda, PW6, and together they proceeded to the accused’s home where they found him with the deceased taking the traditional beer outside the house. PW5 also partook in the drinking but left with PW6 after taking six cups. They left the accused and the deceased alone at around 7. 30 pm and went home. According to him, by then everybody had finished drinking and the deceased was also bidding the deceased goodbye and the deceased was alright. The next day at about 2. 00 pm he heard from his son that the deceased had passed away and was taken to the hospital. In his evidence no one quarrelled with the accused and that the deceased was a he had known for a long time.

12. PW6, Nicholas Mutinda Mutuku, testified that having been informed by the accused that he had prepared a drink, in the company of PW5 they found the deceased at the accused’s home drinking. After taking about four cups he left with PW5 leaving the accused and the deceased with the accused’s children some of whom were asleep. The next day he got the information of the death of the deceased. It was his evidence that there was no disagreement while they were there and that he knew both the accused and the deceased and that the deceased was just relaxing and drinking at the accused’s place.

13. According to PW8, Daniel Maweu Kamandile,a nephew to the deceased, 0n 13th August, 2015 at about 10. 00 am his wife informed him that the accused’s wife wanted to speak to him. According to the information relayed to PW8 by the accused’s wife, she found the deceased at home and it was like he was injured. When PW8 proceeded there, he found the deceased lying on the ground within the accused’s home next to the kitchen, badly injured and could not talk. He testified that the deceased’s head was swollen, with cut wounds on the face and on the head and could not see. Where he was lying was blood. The deceased informed him that he had been beaten by the accused after which the deceased lost consciousness after asking for drinking water. The deceased had, however, informed him that he had Kshs 7,000/- in his pocket which, upon checking, he did not find. The deceased’s phone was however in the house which was confirmed by the accused’s children. On their way to the Hospital through the police station, the deceased passed away. It was his evidence that when he went to the accused’s home, the accused was not present and that he only found the accused’s his wife and his children with the neighbours including the accused’s mother in law. It was his evidence that there was a quarrel between the accused and the deceased but that was a long time before.

14. PW7, Onesmus Muema Maweu,the deceased’s elder brother witnessed the post mortem examination of the deceased’s body on 26th August, 2015 According to him the body had knife cut wounds on the head and face and the doctor said he had been hit with a rungu. His belief that it was the accused who killed the deceased was based on the information he received from PW8.

15. On 13th August, 2015, PW3APCKipkosgei Benjamin, then attached to Mulaani police post, received a distress call at 16. 30 hrs from the area Assistant Chief that someone was about to be lynched by a mob. Accompanied by APC David Mwangi, he proceeded to the scene where he found a large crowd outside the homestead of the accused baying for the accused’s blood on allegation that he had killed his neighbour. They rescued the accused, who was not injured, and took him to Mulaani AP post and on 14th August, 2015 to Ndithini police station for further action. By the time they went to the scene the deceased had been taken away. His evidence was corroborated by the evidence of PW4, APC Daniel Mwangi.

16. The post mortem examination on the body of the deceased was conducted by PW9, Dr. Muli Simon Kioko, on 26th August, 2015, according to whom the body had peripheral cyanosis, bruise on the chest 2x3 cm, a very deep right elbow wounds 2x4 cm. a cut wound on the right ear 2x0. 5 cm. bilateral congestion on right chest, blood collection. fluid of 0. 5 litres. Within abdomen he had slight enlarged liver, dilated gall bladder. Other findings were within normal physical pathological limits. In his opinion, the deceased’s death was as a result of blood and air in right chest secondary to blood chest trauma. According to him, Trauma can be caused by a fall or by being beaten by blunt object such as fist or piece of wood.

17. PW11, PC Daniel Kiragu, an officer from the department of scenes of crime, on 25th August, 2015 received three developed photographs from PC Joseph Nganga who was stationed at Masinga police station to certify the scene photos which he did certify, though he was not informed where the said photos came from as they were already developed.

18. PW10, CIP Fredrick Alata, testified that on 13th August, 2015, he received information from one of the officers from Ndiithina police post that there was a murder that took place there following an assault on the night of 12/13th. The victim was taken to the station badly injured. He was unconscious and was bleeding from the head and the back but was not speaking. They advised that he be taken to Ndiithini Mission Hospital one hour later he got information that he had passed away.

19. They therefore commenced investigations by visiting the scene where he saw saw bloodstains and signs of struggle outside the homestead. At the scene they also took statements and later called crime scene officer, PC Daniel Kiragu who processed scene of crime and took photos. From the scene they went to the mortuary where they viewed the body and photos were taken and arrangements for post-mortem examination were made which revealed his death was caused by loss of blood. They then arrested the accused and charged him. Upon interrogation, the accused informed him that they were drinking together and a fight ensued and in the course of defending himself he hit the deceased on the head twice.

20. Upon being placed on his defence, the accused who testified as DW1 stated that he had gone to the market to buy drugs and the ropes for his goats and returned home at about 8pm. Upon his return, he was informed by his children that the deceased, a friend had been there looking for him and was carrying a bottle of alcohol and a cup. They then slept. At about 9pm, the deceased, a friend aged about 40 years old and whom he saw growing up, but who was drunk and had a club in his hand, returned claiming that the accused’s daughter, DW2, then aged 10 years, was his wife. The accused told him that he ought not to have gone to the accused’s home at night drunk and he told the deceased to return the following day with his parents after which the accused escorted him outside and returned to the house after the deceased had reached PW1’s house. He then told PW1 to take DW2 to the grandmother’s house for fear that the deceased might return which PW1 did and they slept.

21. According to the accused, at about 11pm, he heard a commotion on the path outside his home and when he came out he heard the deceased who had returned and requested from water which was given to him by PW2. Upon checking the deceased’s head, he saw blood and the deceased requested him to take him to the Hospital. While I the course of preparing himself to do so, people arrived and inquired what had happened and despite his explanation that he was not aware of how the deceased sustained the injuries, the crown insisted that he was the one who injured the deceased and they then took the deceased to the Hospital at about 6am. Later the same crown returned with a jerrican of petrol and threatened to lynch him but he was saved by police officers from Milaani Police Post who took him to the Post then to Ndithini Police Station before being arraigned in Court.

22. According to the accused, the deceased informed him that he was injured but before the deceased could explain to him how he got injured, the crowd arrived and removed him. According to the accused, he did not drink and there was no alcohol in his house that day. He however denied that PW5 and PW6, whom he knew, were present that day. He explained that the bloodstains in his hand were due to the fact that the crowd came when he was cleaning the deceased’s head.

23. In support of his case, the accused called his daughter, MSK, who testified as DW2, as his witness. The gist of her evidence was that she did not witness the incident as she never saw the deceased in their house.

24. On behalf of the accused, it was submitted that it is imperative for the prosecution to prove and establish the two elements to uphold a safe conviction: mens rea and actus reus. This, according to the defence, was highlighted by the court in the case of Joseph Kimani Njau vs. Republic [2014] eKLR.

25. In this case, it was submitted that the prosecution’s evidence is based on the allegation that it was the accused person who was last seen with the deceased based on the evidence of PW 5 & PW 6 who however testified that by the time they were leaving, there was no disagreement by any of the parties thereon. According to the defence, no one witnessed the circumstances upon which the deceased sustained the injuries leading to his death. After setting out the evidence, the defence relied on the case of Miller vs. Minister of Pensions [1947] ALL E.R 373 as considered by the court in the case of OKK vs. Republic [2021] eKLR which dealt with the burden and standard of proof and contended that the evidence adduced is not that strong that this court can indeed make a safe conviction upon the accused. While appreciating that the deceased was last seen with the accused person, it was submitted that this does not in effect have the consequence that it is indeed the accused who inflicted the injuries upon the deceased. Based on the case of Republic vs. Andrew Omwenga (2009) eKLR as considered by the court in the case of Republic vs. DWK (2020) eKLR it was submitted that there is no direct evidence linking the accused person as the person who caused the death of the deceased. Following the evidence adduced, the deceased came to the accused’s homestead holding a club and bleeding.

26. Regarding the doctrine of “last seen with” the defence relied on the Indian case of Anjan Kumar Sarma vs. State of Assam, Criminal Appeal No. 560 of 2014as considered by the court in the case ofREPUBLIC vs. Elizabeth Anyango Ojwang [2018] eKLR.

27. Acccording to the defence, the evidence presented in this case based on the doctrine of last seen does not by itself form the basis of holding the accused person guilty. Further to the foregoing, there is absolutely no connectivity between the accused person and the alleged crime committed. The Court was urged to find that, in the absence of a satisfactory explanation on what really happened to the deceased even though the accused was last seen with the deceased, there is no basis for convicting the accused.

28. Regarding mens rea, the Court was urged to be guided by the decision in the case of R vs. Sharmpal Sigh S/O Pritam Singh (1962) EA 13 at page 17 as considered byin the case of Joseph Kimani Njau vs. Republic (supra).

29. In the defence view, the status and facts as presented by the accused person raise clear doubts on the culpability of the accused person committing the offence of murder and indicate that there was no motive demonstrated that the accused had any malice aforethought to assault the deceased culminating to his death. Accordingly,the prosecution has failed to discharge the required evidential burden which is beyond reasonable doubt and that the accused was arraigned in court, subjected to the trial process only on the mere suspicion of having committed the alleged offence. Accordingly, the Court was urged to acquit the accused under Section 215 of the Criminal Procedure Code.

30. On behalf of the prosecution it was submitted that to prove the offence Section 203 of the Penal Code, the prosecution must prove beyond reasonable doubt that the death of the deceased and the cause of the death and that the accused person committed the unlawful act which caused the death of the deceased persons and the accused had malice aforethought.

31. In this case, it was submitted, the death of the deceased person and the cause of the death was proved by the evidence of Charles Nzau and Dr Muli by the post-mortem conducted on 27th May 2011 and concluded that the cause of death was as a result of blood and air in the right chest secondary to blunt force trauma injuries to the chest. Accordingly, it was submitted, the prosecution’s evidence properly established death and the cause of deaths required by the threshold.

32. As to who caused the death of the deceased, the prosecution cited sections 203 and 206 of the Penal Code, and relied on the doctrine of “last seen with deceased”, the accused having been the person last seen with the deceased when he was alive hence the burden of prove shifts to the accused person. Based on Rex v Kipkerring it was submitted that the accused person did not give an explanation or even adequate evidence to dispute that he was the last person to be seen with deceased alive. Prosecution’s evidence places upon the accused a statutory burden to discharge a rebuttable presumption that having been the last person with the deceased before he died, he should explain how he died. In this regard, the prosecution relied on Sections 111(1) and 119 of the Evidence Act.

33. According to the prosecution, a critical evaluation of the evidence on record it places the accused person at the scene of crime. He was well known and recognized by PW2, PW3, PW5 and PW6. Pw2 and Pw3 knew him very well as their father, while PW5 and PW6 had known him for many years as their neighbour, therefore the issue of recognition is not in dispute. As to who caused the death of the deceased there are no eyewitness, reliance was placed on the circumstantial evidence and the last seen doctrine.

34. On the second limb whether the accused person had malice aforethought when he committed the unlawful act that caused the death of the deceased, it was submitted that the perpetrator (accused) assaulted the deceased badly, causing chest trauma, that raptured the lungs which resulted in accumulation of fluid in the chest. He took advantage of the deceased who was drunk. According to the prosecution, the injury on the body of the deceased were at the vital body part (chest) that it can only be deduced that the person who inflicted them (accused person) had intention of inflicting injuries or grievous harm on him which he did leading to his death. To the prosecution, the accused person had unlawful intention, acted on his intention with malice aforethought thus ingredient for murder has been proved beyond reasonable doubt

35. In light of the foregoing, it was submitted that the prosecution discharged its burden of proving their case beyond any reasonable doubt against the accused person. The Court was urged to find the accused person guilty of the offence of murder and proceed to convict him accordingly.

Determination

36. The prosecution’s case in summary is that on the 12th August, 2015, the deceased went to the accused’s home and found the accused’s children including PW1 and PW2. According to the said witnesses the deceased inquired about the whereabouts of the accused and upon being informed that no one knew the same, he decided to sit outside the house and wait. While waiting for the accused, he in the meantime decided to have merry by drinking traditional beer. The said two witness differed as to where the beer came from. Whether the deceased came with it or it was in the accused’s house. At one point however, the deceased left briefly and returned.

37. When the accused arrived, he found the deceased waiting for him and the two sat outside chatting. PW1 and PW2 in the meantime went to sleep and left the two outside. At one point the two were joined by PW5 and PW6, who also partook in the drink before leaving the accused and the deceased. According to PW6, by the time they left, the accused and the deceased were in the process of parting company. By then there was no disagreement.

38. In the course of the night, the accused woke up the children and told them to escort their sister, DW1 to their grandmother’s place as DW1’s room was to be used by someone. When they woke up the following morning, PW1 and PW2 found the deceased seated next to the kitchen bleeding and he sought for some water which he was given. After that the accused in the company of PW8, a nephew to the deceased who had received information of the deceased’s injuries from the accused’s wife, arranged to have the deceased taken for medication. PW8 however testified that when he went to the accused’s home the accused was not present and that the deceased informed him that he had been assaulted by the accused. The deceased passed away on the way to the Hospital. According to PW9, Dr. Muli Simon Kioko, the deceased’s death was as a result of blood and air in right chest secondary to blood chest trauma. According to him, Trauma can be caused by a fall or by being beaten by blunt object such as fist or piece of wood.

39. On his part the accused stated that when he went home at 9pm he was informed that the deceased had been looking for him. While asleep, the deceased returned and alleged that the accused’s daughter, DW2, was his wife and the accused told him that since he was drunk, he should go home and return the following morning. The accused then escorted him away and returned to sleep. However, at 6am he heard commotion and when he went out, he found the deceased bleeding. He cleaned the wound and was in the process of taking him for medication wen a crowd arrived and sought to know what happened. His explanation fell on deaf ears. After the crowd left with the deceased they returned baying for his blood and he was only rescued by the police.

40. I have considered the evidence on record. Section 203 of the Penal Code under which the accused is charged provides that:-

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

41. Arising from the foregoing the ingredients of murder were explained in the case of Roba Galma Wario vs. Republic [2015] eKLRwhere the court held that:

“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”

42. In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR the elements of the offence of murder were listed by M. Odero, Jas follows:-

1) The fact of the death of the deceased.

2) The cause of such death.

3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly

4) Proof that said unlawful act or omission was committed with malice aforethought.

43. In Mombasa High Court Case Number 42 of 2009 betweenRepublic vs. Daniel Musyoka Muasya, Paul Mutua Musya and Walter Otieno Ojwang the court expressed itself as hereunder:

“The prosecution therefore is required to tender sufficient proof of the following three crucial ingredients in order to establish a charge of murder:

a)Proof of the fact as well as the cause of the death of the deceased persons.

b)Proof that the death of the deceased’s resulted from an unlawful act or omission on the part of the accused persons.

c)Proof that such unlawful act or omission was committed with malice aforethought.”

44. In this case, there was no doubt as to the fact of death of the deceased. From the evidence of PW9 to whom the deceased was identified by PW7. Accordingly, there is no doubt at all that the deceased died.

45. As regards the cause of death, according to PW9, Dr. Muli Simon Kioko, the deceased’s death was as a result of blood and air in right chest secondary to blood chest trauma. According to him, Trauma can be caused by a fall or by being beaten by blunt object such as fist or piece of wood.

46. As to whether the deceased met their death as a result of an unlawful act or omission on the part of the accused person, it is clear that there was no direct evidence that the accused caused the death of the deceased. In criminal cases, it is old hat that the burden of proof lies with the prosecution and the standard of such proof is beyond reasonable doubt. Viscount Sankey L.C in the case of H.L. (E)* Woolmington vs. DPP [1935] A.C 462 pp 481 in what has been described as a subtle and masterly fashion stated the law on legal burden of proof in criminal matters, that;

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’

47. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:

“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”

48. What then is the standard of proof required in such cases? Brennan, J in the United States Supreme Court decision in Re Winship397 US 358 {1970}, at pages 361-64 stated that:-

“The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”

49. In 1997, the Supreme Court of Canada in R vs. Lifchus {1997}3 SCR 320 suggested the following explanation:-

“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.”

50. In JOO vs. Republic [2015] eKLR,Mrima, Jheld that:

“It is not lost to this Court that the offence which the Appellant faced was such a serious one and ought to be denounced in the strongest terms possible. However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled; proof beyond any reasonable doubt hence this case cannot be an exception. This Court holds the view that it is better to acquit ten guilty persons than to convict one innocent person.”

51. Mativo, J in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR expressed himself as hereunder:

“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

52. What then amounts to reasonable doubt? This issue was addressed by Lord Denning in Miller vs. Ministry of Pensions,[1947] 2 ALL ER 372 where he stated: -

“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

53. Proof in criminal cases can either be by direct evidence or circumstantial evidence. When a witness, such as an eyewitness, asserts actual knowledge of a fact, that witness' testimony is direct evidence. On the other hand, evidence of facts and circumstances from which reasonable inferences may be drawn is circumstantial evidence. Therefore, where circumstantial evidence meets the legal threshold, it may well be a basis for finding the accused person culpable of the offence charged. In fact, in Neema Mwandoro Ndurya v. R [2008] eKLR, the Court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan (1928) 21 Cr. App. R 20 where the court stated that:

“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics.It is no derogation of evidence to say that it is circumstantial.”

54. In this case, as stated above, in the absence of any direct evidence linking the accused with the death of the deceased, this court must rely on the circumstantial evidence if the case against the accused is to be proved. Whereas it is appreciated that a charge may be sustained based on circumstantial evidence the courts have established certain threshold to be met if a conviction is to be based thereon. InSawe –vs- Rep[2003] KLR 364 the Court of Appeal held.

“In order to justify 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 hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.”

55. In R. vs. Kipkering Arap Koske & Another [1949] 16 EACA 135,in the Court of Appeal for Eastern Africa had this to say:

“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 burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”

56. InAbanga Alias Onyango vs. Rep CR. A No.32 of 1990 (UR) the Court of Appeal set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction. These are:

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) 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.”

57. In Mwangi vs. Republic [1983] KLR 327 Madan, Potter JJAandChesoni Ag. J. A. held:-

“In order to draw the inference of the accused’s guilt from circumstantial evidence, there must be no other co -existing circumstances which would weaken or destroy the inference. The circumstantial evidence in this case was unreliable. It was not of a conclusive nature or tendency and should not have been acted on to sustain the conviction and sentence of the accused.”

58. Therefore, for this court to find the accused guilty the inculpatory facts must be incompatible with innocence and incapable of explanation upon any other hypothesis than that of guilt. This proposition was well stated in the case of Simon Musoke vs. Republic [1958] EA 715 as follows:

“It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

59. In Teper v. R [1952] AC at p. 489 the Court had this to say:

“Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no co-existing circumstances which could weaken or destroy the inference.”

60. In this case, the prosecution’s case is hinged on the fact that the deceased were last seen with the accused before the deceased was found injured the following morning as a result of which he passed away. Regarding the doctrine of “last seen with deceased” I will quote from a Nigerian Court case of Moses Jua vs. The State (2007) LPELR-CA/IL/42/2006. That court, while considering the ‘last seen alive with’ doctrine held:

"Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.”

61. In yet another Nigerian case the court considering the same doctrine, in the case of Stephen Haruna vs. The Attorney-General of the Federation (2010) 1 iLAW/CA/A/86/C/2009 opined thus:

"The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”

62. It was however held in the case of Ramreddy Rajeshkhanna Reddy & Anr. vs. State of Andhra Pradesh, JT2006 (4) SC 16 that:

“that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.”

63. Lesiit, J in Republic vs. E K K [2018] eKLR held that:

“The prosecution has adduced evidence which establishes that the deceased was last seen alive in the company of the deceased. That was in the evidence of PW5. Time was 9. 30 a.m. Her evidence was not corroborated by any other witness. The accused has denied that and has countered the evidence of PW5 by stating that in fact, it was PW5 he saw with the deceased last. Given that the evidence is the word of the accused against that of PW5, the court has to look for corroboration or other evidence implicating the accused. I am persuaded by the Indian case that even where evidence establishes that an accused was last seen with the deceased before she met her death, it is advisable to exercise caution and look for some other corroboration. I will get back to this later.”

64. In the Indian case of Anjan Kumar Sarma vs. State of Assam, Criminal Appeal No. 560 of 2014a case that was considered by the court in the case ofRepublic vs. Elizabeth Anyango Ojwang [2018] eKLR, the court stated as follows:

“18. The circumstances of last seen cannot by itself form the basis of holding the accused guilty of the offence…There must be something more establishing connectivity between the accused and the crime…It is clear from the above that in a case where the other links have been satisfactorily made out and circumstances point to the guilt of the accused, the circumstances of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstances of last seen together and absence of satisfactory explanation cannot be made the basis of conviction.”

65. What I understand by these authorities is that even when the doctrine applies, it is advisable to seek some corroborative evidence instead of solely relying on the doctrine. In this case, was there any corroboration? The meaning of corroboration as defined or stated in the Nigerian case of Igbine v. The State {1997} 9 NWLR (Pt.519) 101 (a), 108 is thus:-

"Corroboration means confirmation, ratification, verification or validation of existing evidence coming from another independent witness or witnesses."

66. In Mukungu vs. Republic [2002] 2 EA 482, the Court of Appeal citing Mutonyi vs. Republic [1982] KLR 2003, held that:

“An important element in the definition of corroboration is that it affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it: See Republic vs. Manilal Ishwerlal Purohit [1942] 9 EACA 58, 61. ”

67. However, as was held in Khalif Haret vs. The Republic [1979] KLR 308:

“What then, is corroboration? As was put succinctly in R vs. Kilbourne (at page 263) it means “no more than evidence tending to confirm other evidence”. It is not, as the judge-advocate correctly stated, confirmation of everything, so that it amounts to a duplication of the evidence needing corroboration.”

68. It is therefore important for there to be corroboration that the material corroborating the evidence be such that it confirms in some material particular not only the evidence that the crime has been committed but also that the accused committed it. It need not duplicate the evidence requiring corroboration but it must confirm that other evidence in material aspects.

69. In this case there was clearly no corroboration. The prosecution’s evidence was that the accused was with the deceased the day prior to the day when the deceased died. According to the evidence of PW9, Dr. Muli Simon Kioko, the deceased’s death was as a result of blood and air in right chest secondary to blood chest trauma, a trauma that can be caused by a fall or by being beaten by blunt object such as fist or piece of wood. In this case, there was some reference to a piece of wood or rungu but this was not produced as an exhibit. Therefore, the alleged murder weapon was never produced. Again there was evidence that DW2 was sent away to give space to someone, presumably the deceased but there was no evidence that the said room was used by the deceased at all.

70. In this case the first question is whether the circumstantial evidence was overwhelming. In these circumstances, can it be said that the circumstantial evidence against the accused was overwhelming? In other words, can these facts be said to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt? Or can it be said that there exist other existing circumstances either from the prosecution or the defence that weaken the chain of circumstances relied on?

71. In this case, it may well be had the rungu been examined the accused could have been linked to the death of the deceased. In my view an examination of this piece of evidence might have given a clue as to whether the accused was the perpetrator of the death of the deceased.

72. Having considered the evidence before me, both from the prosecution and the defence, I must say that the same cannot be said to amount to overwhelming circumstantial evidence. Whereas the evidence of the accused may not have been very satisfactory as regards his association with the deceased that evening considering the evidence of PW1, PW2, PW5 and PW6, the burden was clearly upon the prosecution to prove each and every ingredient of the offence. Even if his evidence is not convincing and may well rouse some suspicion, that suspicion alone cannot be the basis of a conviction. I rely on the decision of the Court of Appeal in PON vs. Republic [2019] eKLR where the Court expressed itself as hereunder:

“We are of the considered view that the instances of what was presented as circumstantial evidence were below the threshold enunciated in the leading cases we have cited in this judgment, namely Rex V Kipkerring (supra), Simoni Musoke V R. (supra) and Omar Mzungu Chimera V. R (supra). The evidence does not amount to a compelling rational inference of the appellant’s guilt. The facts do not lead to one irresistible conclusion that the appellant and no one else could have committed the crime, taking into consideration the natural course of human conduct. The evidence was not compelling, credible or cogent. There was no evidence of the appellant’s or the deceased’s movement prior to the incident. There was no proof that the appellant and the deceased spent the last hours of the deceased together. In conclusion, and to reiterate what the courts have stated time without end, no amount of evidence based on suspicion, no matter how strong may be a basis for a conviction. See: Sawe V. Republic [2003] KLR 364. Suspicion, even reasonable suspicion is a legal standard of proof not known in our criminal law. Either a fact is proved beyond reasonable doubt or it is not. The appellant may have acted strangely upon his return from Sierra Leone, for instance, walking with a metal bar and sleeping in the guest house yet he had a house. His warmth and attitude towards the deceased may have changed; he may have had little interest in the issue of the lost child; he may even have denied knowing J. But all these only amount to suspicion and not evidence upon which a conviction may be found.”

73. In Trikabi vs. Uganda [1975] EA 60, it was held that:

“[The appellant] left the village and his home very soon after the fatal attack, and could not be found until he returned several months later. The assessors and the Judge were satisfied that this conduct on the appellant’s part was indicative of his guilt and corroborative of the truth of the deceased’s dying declaration. They were satisfied that the appellant’s explanation for his sudden departure, and long absence, from his home, that he had gone to look after a sick sister, was a lie; and explanation first put forward in his own unsworn statement in his defence. This case has caused us much concern, but we are unable to say, after anxious consideration, that the judge was wrong in holding that the appellant’s conduct, in leaving his house and disappearing for several months, knowing of the attack on the deceased, was sufficient corroboration of the deceased’s dying declaration that he (the appellant) was the man who had attacked him, a declaration which the judge believed to be true. The attack took place in broad daylight and the appellant was well known to the deceased, so that the deceased’s identification of the appellant as his attacker is unlikely to have been mistaken.”

74. Similarly, in Malowa vs. The Republic [1980] KLR 110, Madan, Law and Potter, JJA held that:

“The judge held, on the authority of Terikabi vs. Uganda [1975] EA 60, that corroboration of the evidence of Paulina and of the dying declarations of Blazio was provided by the conduct of Malowa, in disappearing from his home immediately after the murder to avoid arrest, and in remaining absent for six months; and he was left with no reasonable doubt that Malowa was guilty of the murder of Blazio. Wesee no reason to differ.”

75. In Robert Achapa Okelo vs. Republic Kisumu Court of Appeal Criminal Appeal No. 3 of 1999 the Court of Appeal expressed itself as hereunder:

“In this appeal the superior court convicted the appellant of the murder of Margaret Atieno Ouma which was said to have occurred at Kondele Estate in Kisumu District on 14th June, 1993. The evidence relied on by the trial Judge (Wambilyanga, J) in convicting the appellant was all circumstantial. That evidence did not, however, irresistibly point to the appellant to the exclusion of any other hypothesis as the killer of the deceased. It was mostly guess work based on traditional values and principles like failure by the appellant to attend the deceased’s funeral, the appellant’s going away from and returning to the place where the other members of the family were seated and so on. We agree with Mr Karanja for the State that these activities did not constitute evidence from which an inference of guilt could be safely drawn. The State having conceded the appeal there was no need for Mr Menezes to argue his grounds of appeal. Consequently, the appeal is allowed, the conviction quashed and the sentence set aside. The appellant shall be set free forthwith unless he is otherwise lawfully held.”

76. As was held by the Court of Appeal in Joan Chebichii Sawe vs Republic [2003] eKLR:

“The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt…Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.”

77. In that case the court relied on Mary Wanjiku Gichira vs. Republic, Criminal Appeal No 17 of 1998, where it was held that:

“suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life.”

78. The rationale for this position was explained in John Mutua Munyoki vs. Republic [2017] eKLR where the Court of Appeal opined that:

“…in all criminal cases, the prosecution has the task of proving its case against an accused person beyond reasonable doubt and it is a burden the prosecution must discharge in relation to each and every ingredient of the particular offence charged.”

79. As was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR:

“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-

‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”

80. It is however not enough to simply prove that the action of the accused caused the death of the deceased. In Joseph Kimani Njau vs. Republic [2014] eKLR the Court of Appeal stated that:-

“In all criminal trials, both the actus reus and the mens rea are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both the actus reus and mens rea have been proved to the required standard. In the instant case, the trial court erred in failing to evaluate the evidence on record and to determine if the specific mens rea required for murder had been proved by the prosecution…In the present case, the circumstances that led to the fight between the appellant and deceased remain unclear; the motive or reason for the fight remains uncertain; it is an error of law to invoke circumstantial evidence when malice aforethought for murder has not been established. We find that mens rea for murder was not proved. Failure to prove mens rea for murder means that an accused person may be convicted of manslaughter which is an unlawful act or omission that causes death of another.”

81. A charge of murder may therefore not be sustained unless the mens rea for murder is proved. The element of intention in committing the offence was examined in the English case of Hyam vs. DPP [1974] 2 ALL ER 41 where Lord Diplock observed as follows:

“No distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequent, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act.”

82. As to whether malice aforethought has been established, Section 206 of thePenal Codesets out the circumstances which constitute malice aforethought as follows:

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

(a) An intention to caused death or to do grievous harm to any person whether such 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 such person is the person actually killed or not, although such knowledge is accomplished by indifference whether death or grievous harm is caused or not, or by a wish that it may be caused or not, or by a wish that it may not be caused.

(c) An intention to commit a felony.

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

83. In the case of Nzuki v. Republic [1973] KLR 171 the Court of appeal stated that in the commission of the offence of murder it must be committed with the following intentions: -

“(i) The intention to cause death;

(ii) The intention to cause grievous bodily harm; (iii)Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those circumstances to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed. The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue form his conduct is not by itself enough to convert a homicide into a crime of murder.”

84. It is true that Section 9(3) of the Penal Codewhich stipulates that unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility. However, in offence of murder there is an express requirement that malice aforethought must be proved. In Nzuki vs. Republic (1993) KLR 171, the Court in substituting Nzuki’s charge of murder with manslaughter observed:

“there was a complete absence of motive and there was absolutely nothing on the record from which it can be implied that the appellant had any one of the intentions outlined for malice aforethought when he unlawfully assaulted the deceased with the fatal consequences. Other than observing that the appellant viciously stabbed the deceased and in so doing intended to kill or cause him grievous harm, the trial court did not direct itself that the onus of proof of that necessary intent was throughout on the prosecution and the same had been discharged to its satisfaction in view of the circumstances under which the offence was committed. Having not done so, we are uncertain whether malice aforethought was proved against the appellant beyond any reasonable doubt. In the absence of proof of malice aforethought to the required standard, the appellant’s conviction for the offence of murder is unsustainable. His killing of the deceased amounted only to manslaughter.”

85. In this case, the only evidence tending to prove malice aforethought was that there was a quarrel between the accused and the deceased but that was a long time before. There was no evidence that the accused still harboured ill feelings against the deceased. The fact that the deceased went to visit the accused and was even ready to wait for him as he partook in the drink taken together with the evidence of PW5 clearly negates any evidence of malice on the part of the accused.

86. In a criminal trial, the evidence presented in proof of a charge is critical. For the prosecution, the evidence, whether direct or circumstantial must show beyond reasonable doubt that the person charged was involved in the commission of the offence.

87. That is what section 111(1) of the Evidence Act demands:

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him

Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist.

Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”

88. Based on the holding in Nzuki vs. Republic (supra) I find that the ingredients of murder have not been proved and having considered the totality of the evidence placed before me, I find the accused person not guilty of the offence of murder.

89. Judgement accordingly.

90. This Judgement was delivered posthumously at the request of both counsel for the Accused and the State.

JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 9TH DAY OF FEBRUARY, 2022.

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Musya for the Accused

Mr Ngetich for the State

CA Susan