[2017] KEHC 2302 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 83 OF 2014

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

VERSUS

JOSEPH MWANZIA KINOTI……………………………………….…ACCUSED

RULING

Joseph Mwanzia Kinoti is facing a charge of murder contrary to section 203 as read with section 204 of the Penal Code. Particulars of the offence are that on the night of 31st August and 1st September 2014 at Mlango Kubwa area in Mathare within Starehe Constituency in Nairobi County with others not before the court murdered an unknown female. The accused has denied committing this offence.

The prosecution called eight (8) witnesses to support its case. The evidence of the eight witnesses is summarized below.

According to the evidence of Richard Maina Guchu, PW1, the accused went to ask for accommodation in a house PW1 claims was his but other evidence shows belonged to one Joe. This was on 31st August 2014. The accused was allowed to sleep there. He went away and returned at about 2. 00am with a girl. A quarrel ensued between the girl and the accused. The accused wanted to have sex with the girl identified as the deceased but she was refusing him. A fight broke out between them. The accused forced his way into having sex with the deceased. PW1 attempted to assist the girl but the accused resisted. PW1 slept. In the morning he left the house while the accused and the deceased were still sleeping. He said he returned to the house later to change his shoes. He said that the house was dark. He lit a match and saw the girl under the bed. He said he did not know what became of the girl until later when he learned that her body had been found and that the accused had been seen getting rid of the body.

PC Joseph Njoroge, PW6, investigated the case. At the time this case was assigned to him to investigate, the accused had been arrested and handed over to the police and the body of the deceased had been taken to the City Mortuary. He took fingerprints of the deceased to determine her identity. These were examined by Mr. Barack Nyadero, PW4, fingerprint expert. The results showed that the deceased was not registered with the National Registration Bureau and that her identity was unknown. The explanation given by PW4 is that the deceased had not registered with the Bureau for a national identity card.

The body of the deceased was recovered near a damp site in Mlango Kubwa by police officers who included PC Benson Mugure, PW2. The scene where the body was recovered was near the house where the accused had spent the night. SGT Phoebe, PW3, in company with other officers re-arrested the accused from members of the public who had detained him and called the police.

PC Martin Mwenda Njeru, PW7, took photographs of the body of the deceased at the City Mortuary. He described the body as having some bruises on the left leg and on the face. He also said the body was dressed in dark blue jeans and a dotted blouse. He did not photograph the scene where the body was recovered. He also prepared a report which he produced in court as Ex. 4. The photographs were produced as Ex. 5.

David Kimathi Wega, PW8, a member of Community Policing at Mlango Kubwa arrested the accused together with Richard Maina Guchu in connection to the death of the deceased. They were handed over to the police. David did not explain in detail the reasons behind his arresting the accused.

The body of the deceased was examined Dr. Peter Muriuki Ndegwa on 11th September 2014 at the City Mortuary. It was the body of an unidentified female. The doctor found several injuries. There were bruises on the left wrist; dislocated right shoulder joint; bruises on the frontal scalp and abrasion on the left elbow. There were subcutaneous contusions occipital frontal scalp with diffuse subdural haemorrhage and increased intracranial pressure. After examination the doctor formed the opinion that the deceased died due severe cranio-cerebral injuries due to blunt force trauma with signs of torture.

I have examined and analysed this evidence to determine whether it makes out a case against the accused so as to place him on his defense. Section 306(1) of the Criminal Procedure Code provides that where the court finds at the conclusion of the prosecution case that there is no evidence that the accused committed the offence, then the court shall record a finding of not guilty. The reverse is the case under Section 306 (2) of the same Code.

There is no direct evidence pointing to the accused as the person who caused the death of the unknown female whose body was found by the police near a damp site in Mlango Kubwa. The evidence confirming the recovered body as the body of the girl who was with the accused on the early hours of 1st September 2014 is scanty. When the accused arrived at the house belonging to one Joe, he found PW1, Joe and Njiru asleep. He asked to be accommodated and he was given a mattress to place on the floor to sleep on. The accused left and came back at 2. 00am with the unknown girl. He demanded for sex but the girl refused. This led to a fight and the accused sexually forcing himself to the girl. No one seems to know what happened thereafter. It was dark and according to PW1, the house had no electricity. PW1 described the clothes the girl was wearing as light blue jeans and white blouse dotted with pink. PW1 identified these clothes to court. According to my observation in court during this trial, the clothes were blue jeans and red, black and yellow striped top. These are the clothes marked MFI-1 and produced as Exhibits 1 and 2.

When PW1 returned to change his shoes the house was dark and he had to strike a match to see his way inside. He said he saw the girl under the bed. He did not seem to have observed the girl properly, either at night or in the morning to identify her. PW1 has also mentioned that he learned that the accused was found removing the body from the house. Who gave PW1 this information? Who had seen the accused removing the body? These questions are not answered.

PW1, the accused and the girl were not the only people in the house. There were also one Joe and one Njiru whose whereabouts this court was not told save for brief mention in evidence that Joe was not traced. This court was not told the efforts put in place to trace these other people. This has left this court with the evidence that the body of the deceased, an unknown female, was recovered near a damp site in Mlango Kubwa, Nairobi. It had severe body injuries including fatal head injuries. The doctor told the court that the deceased was tortured. This evidence confirms death of a female due to severe trauma to the head. The evidence on the identity of this unknown female as the girl who went to the house of Joe in company with the accused is shaky. The evidence does not point to the accused, to the exclusion of the other people in that house, as the person who caused the injuries on the deceased leading to her death.

At this stage of the trial, the prosecution has closed its case and therefore there is no other evidence expected. Law does not place the onus of proving a case on the accused person. The gaps left by the prosecution cannot be filled by the accused. My finding therefore is that the prosecution has failed to establish a prima facie case against the accused. The evidence adduced cannot be relied on to base a conviction on if the defense were to offer no explanation. Due to the serious doubts the evidence of the prosecution raises, I have no option but to find that the accused has no case to answer. I therefore enter a finding of not guilty and order that the accused be acquitted. Orders shall issue accordingly.

Delivered, signed and dated this 11th day of October 2017.

S. N. Mutuku

Judge