[2016] KEHC 1932 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT MACHAKOS

CRIMINAL CASE NO. 83 OF 2010

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

VERSUS

JOSEPH MUSEMBI MUTUKU...................................1st ACCUSED

WILLIAM KYALO KISUNA.......................................2nd ACCUSED

RULING

Joseph Musembi Mutuku, the 1st Accused person; and William Kyalo Kisuna, the 2nd Accused person (hereinafter the 1st and 2nd Accused persons), are charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code. The particulars of the charge as stated in the information from the Director of Public Prosecutions dated 7th December 2010 are that on 22nd November 2010 at Katulani village, Mweini sub-location, Mweini Location, Nguu Division in Nzaui District within Eastern Province, the said accused persons jointly with others not before the Court murdered Mbeke Kiamba (hereinafter referred to as “the deceased”).

Both the 1st and 2nd Accused person pleaded not guilty to the offence on 24th May March 2011, and the trial commenced before Makhandia Asike J. (as he then was) on 7th February 2012, and the learned Judge heard three (3) prosecution witnesses. The learned judge was subsequently elevated to the Court of Appeal, and the trial then proceeded before Jaden J. on 23rd April 2013, who took over its conduct after complying with the provisions of section 200 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), and heard the remaining two prosecution witnesses. The learned Judge subsequently ordered that the prosecution case be closed and parties file submissions on case to answer.

I took over the conduct of the trial on 21st June 2016, and after complying with the provisions of section 200 of the Criminal Procedure Code, the Accused persons submitted that they wanted the case to proceed from where it had stopped. The counsel for the Accused persons had already filed submissions, and the prosecution submitted that it would rely on the record, and I accordingly reserved ruling on a case to answer.

After perusing the original and typed proceedings and submissions made by the defence counsel, I am called upon to make a ruling pursuant to section 306 of the Criminal Procedure Code as to whether to find the Accused persons not guilty or to put them on their defence. The issue before the Court therefore is whether the evidence brought by the prosecution establishes a prima facie case to warrant putting the accused persons on their defence.

The threshold for a finding of a prima facie case has been set out in several cases among them Ramanlal Trambaklal Bhatt v R [1957] EA 332, Wibiro alias Musa v R [1960] EA 184and Anthony Njue Njeru v Republic [2006] eKLR. The law in this regard is that although a court is not required at this stage to establish that the prosecution has proved its case beyond reasonable doubt, it must nonetheless be satisfied that a reasonable tribunal directing its mind to the law and the evidence could convict if no explanation is offered by the defence.

In my analysis of the evidence brought by the prosecution, I am mindful that section 203 of the Penal Code defines the offence of murder as follows

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

Therefore in order to establish the offence of murder the prosecution is required to tender evidence sufficient to prove the following three ingredients:

1. Evidence of the fact and cause of the death of the deceased.

2. Evidence that the deceased met his death as the result of an unlawful act or omission on the part of the accused.

3. Evidence that the said unlawful act or omission was committed with malice aforethought.

Malice aforethought is established, under section 206 of the Penal Code, when there is evidence of:

a. Intention to cause death of or grievous harm to any person whether that person is the one who actually died on 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.

c. Intent to commit a felony.

d. 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.

John M. Mwangangi Advocate, the learned counsel for the Accused Persons, argued in submissions dated 15th December 2015 that PW1 who was the deceased’s husband, recorded two statement after the arrest of the accused persons, and only named the Accused persons in his second statement. Further, that the evidence by PW1 was uncorroborated, and the manner of the recording of his statements made his testimony not credible. Lastly, it was contended that PW5 who was the investigating officer, testified that the names of the accused persons were mentioned during a meeting called by the chief to discuss the murder, and therefore that the prosecution had failed to establish a prima facie case.

I have analysed the evidence brought by the prosecution and arguments by the parties in light of the threshold that needs to be met to establish a prima facie case of murder. Three of the witnesses who gave evidence, namely Paul Muthama Ngula (PW2) who was a neighbor of the deceased; James Mulumba Mumina (PW3) the area chief; Julius Kivuva Mutie (PW4) a cousin of the deceased; and PC Benjamin Makau (PW5), who was the investigating officer, testified as to finding and/or seeing the dead body of the deceased on the morning of 23rd November 2010 and/or during the postmortem.

However, no evidence was called by the prosecution to establish the cause of death of the deceased, and despite PW4 testifying that he attended the postmortem conducted on the deceased, no postmortem report was produced during the trial. The cause of death has therefore not been established. This Court will therefore be handicapped in coming to a decision as to whether the acts or omissions of the Accused persons could have caused the deceased’s death. This Court will nevertheless proceed to examine the evidence that links the 1st and 2nd Accused persons to the death of the deceased.

Kiamba Ivulo (PW1) who was the deceased’s husband, was the only eyewitness to the deceased’s death. He testified that on 21st November 2010 he was at home sleeping, and two people forced open his door and sat on him and held his throat. He then heard the deceased scream from the kitchen and heard her say “Musembi what are you doing to me”. He was hit on the head and lost consciousness, and that when he came to he was in hospital.

PW1 also testified that he recognized the voices of the two persons who he identified as the 1st and 2nd Accused persons, when they ordered him to open the door, as he knew them very well being his neighbours. Further, that when they forced open the door, he had a small torch with which he was able to see the 2nd Accused and recognized him.

PW5 who was the investigating officer on his part testified that he arrested the 1st and 2nd Accused persons after they were arrested by the area Assistant chief by the name of Fredrick Wambua Mumina, after a meeting called by the said Assistant chief on the murder, and were brought to the police station. PW3 stated that the arrests were made after members of the public wrote the names of the 1st and 2nd Accused persons names on pieces of paper during the said meeting. However, this Court notes that the said evidence is hearsay and inadmissible, as neither the said Fredrick Wambua Mumina, nor the persons who wrote the names of the 1st and 2nd Accused persons were not called to testify.

PW3 further stated that he recorded the statements made by PW1, and that PW1 stated that he knew the assailants by appearance but not by name, and that he did not give any of the accused persons’ names in his first statement, but gave the names in his second statement after the accused persons had been arrested.

I note that there are material inconsistencies in the evidence that puts the 1st and 2nd Accused at the scene of the crime. Firstly, PW1 testified that he recognized the voices of the assailants and that he heard the deceased call out one of the Accused’s name, but was however not able to give their names to the investigating officer when he recorded his first statement shortly after the unfortunate attack. PW1 also testified that the 1st and 2nd Accused’ s wanted to inherit his land and steal his cattle, which he alleged was the motive for the murder. This evidence was however not corroborated by any of the prosecution witnesses, and PW3 who was the investigating officer stated that he had no knowledge of such incidents.

It is also notable that the 1st and 2nd Accused persons were arrested on the strength of evidence of persons who were not at the scene of crime and who were not called to give evidence. Lastly, no other evidence was brought of any acts on the part of the 1st and 2nd Accused persons, or contact they had with the deceased that led to her death.

I therefore find that the evidence brought by the prosecution is insufficient to put the 1st and 2nd Accused persons on their defence, and I hereby enter a verdict of not guilty under section 306(1) of the Criminal Procedure Code against Joseph Musembi Mutuku, the 1st Accused person, and William Kyalo Kisuna the 2nd Accused person. The said 1st and 2nd Accused persons are accordingly acquitted and are set free unless otherwise lawfully held. The sureties for the 2nd Accused person are also accordingly discharged.

Orders accordingly.

DATED AND SIGNED AT MACHAKOS THIS 27th DAY OF OCTOBER 2016.

P. NYAMWEYA

JUDGE