[2022] KEHC 1517 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CRIMINAL CASE NUMBER 5 OF 2019

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

VERSUS

JOSIAH MUSYOKA MWANZIA.....ACCUSED

JUDGEMENT

1. Josiah Musyoka Mwanzia the accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63) Laws of Kenya.

The particulars of the offence are that Josiah Musyoka Mwanzia on the 3rd day of May 2019 in Madogo Area within Tana River County murdered Margaret Munani Mutheke.

2. The accused denied the charge and the matter proceeded to full hearing. The prosecution called six (6) witnesses in support of their case while the defence called one (1) witness.

3. The prosecution’s case in brief is that the deceased and the accused were in an acrimonious lover’s relationship.The deceased lived with her sister and would from time to time stay with the accused. The two had an altercation around the time the deceased met her death. At the time she had found a place of her own where with the help of PW4 she moved in on the 3rd of May 2019. Later that evening the accused went to the deceased house and murdered her, while struggling with the attacker, the deceased managed to call her sister PW1. The deceased’s screams prompted PW1, PW2 & PW4to rush to the place just to find her already dead and her phone missing. Later that night a telling message was sent to PW1 using the said phone and explaining why the deceased was murdered. This roused the suspicion that the accused was involved.

4. PW1 Nancy Mueni Mutheka, sister to the deceased testified that the deceased and the accused were in a relationship from the year 2016. That the aforesaid relationship was on and off as the two had numerously disagreed. The deceased stayed with the witness, occasionally visiting the accused. On 3rd May 2019 the deceased got her own accommodation and decided to shift to her own place. At the time, the deceased had disagreed with the accused.

On the said night of 3rd May 2019 she received a call from the deceased on a strange number. The deceased initially asked if they were asleep, immediately thereafter, she screamed “mum, mum, mum”. Worried due to the aforesaid screams she alerted her husband, PW2, and together with PW4, they proceeded to where the deceased had moved to.

Upon arrival they met a woman who was carrying a big stick who informed them that the “The lady who had just moved to this place has been stabbed”.They rushed to her sister’s house and found her lying on the ground. already dead. She fainted and was rushed to the hospital.

5. In cross-examination she told the court that she thought it was the accused who attacked the deceased as the two had disagreed on 2nd May 2019 which prompted the deceased to move out from the accused place.

6. PW2 Justus Nzioka Mutisya, husband to PW1, corroborated PW1’s testimony. He told the court that on the material day the deceased called PW1from a strange number and on being alarmed by the deceased screams they went to where the deceased had moved to. It was his further testimony that on arrival at the deceased house, he observed that the she had injuries on the head, breasts, and several other areas. That whilst at the scene, PW1 received a message from Telephone Number 075777843 at 23:35 hrs stating as follows;

“Pole kwa yote nliyotenda. Nlimpenda sana maggy lakini ju ya utapeli na kunipora kimatharau nmeona heri nimmalizie na pia nijimalize sasa mto tana najitupa ata name nife aina aja nikae uhai bila yeye. Salimia ao marafki wetu wote na uwabie nawapda xana tuonanie ahera.”

Loosely translated to mean;

“Sorry for all that I have done. I loved Maggy but because of fraud and unwarranted stealing, I have decided it is better to kill her, and I also kill myself. I will now throw myself in River Tana so that I can die, there is no need for me to be alive without her. greet all our friends and tell them I love them, let’s meet in the next world.”

7. PW3 Dr. Ahmed Ali a doctor testified that he examined the deceased and found;

-two stab wounds on the head

-two stab wounds on the chest which punctured a blood vessel and the heart

-wound on the elbow which showed that the deceased was defending herself.

He formed the opinion that the cause of death was due to severe hemorrhage occasioned by multiple stab wounds. On cross examination he stated that the body had been preserved for 8-9 days before the post mortem.

8. PW4 Rahab Williams testified that on the material day between 7-9 p.m. she assisted the deceased to move to her new house. On the first two trips, the deceased used a motorcycle while the third she walked. In the process of assisting the deceased she saw the accused at about 8 p.m. watching them, as he stood near a salon. There was security light illuminating the place and she was able to see him. The place the accused stood was close to where the deceased had shifted to. She, later on, left the deceased and went back to her house. She was later, however woken up by PW1 & PW2. They went to the said house where they found the deceased had died.

9. PW5 Chief Inspector George Aringo from forensic Unit DCIO Headquarters testified that he received a request to analyze telephone numbers 075777845 & 0710649544. They analyzed the phone but were unable to bypass the security features.

10. PW6 PC Malik Munaro on his part testified that on the material day while conducting patrol within Madogo area, he was summoned by Inspector Kibet, then DCIO, with instructions that there was an incident behind Madogo Catholic Church. He proceeded to the scene and found around fifty (50) people outside the house. Inside he found the lifeless body of the deceased with two cut wounds on the chest. They took the body to Garissa General Hospital Morgue.

On the same night he interviewed the deceased relatives who informed him that the deceased had quarreled with the accused. He learnt that PW1 had received a call from the deceased on the fateful night while the deceased was screaming.

The deceased phone was missing from the scene. They tracked the same and found that the person who was using the phone was roaming around Madogo. The following day, they tracked the phone to Bangale. And on 4th May 2019 they received communication that the accused had been arrested at a place called Kabati by members of the public who had gotten wind of the deceased murder and they took him to Nguni Police station. At the time of his arrest, the accused person was charging a phone. The Accused person was thereafter taken to Ukasi Police Station.

They went to Ukasi Police Station where the accused was being held, while in possession of a phone (Pexh 3. ). They made an application to hold the accused as they conducted further investigations with the cybercrime’s unit and Safaricom. Safaricom confirmed that there was communication at Bangale, and the phone belonged to the deceased.

On interrogated the accused he admitted to having quarreled with the deceased. He had injuries to his hand which he said were as a result of a struggle with the deceased and not from the general public. Further the accused confirmed that he was the one who had the phone and was charging it at Kabati Centre before his arrest.

11. At the close of the prosecution case the Court found the accused had a case to answer and therefore placed him on his defence.

DW1 Josiah Musyoka Mwanzia, the accused herein testified that he is a student from Chuka University. He was in a relationship with the deceased since 2016, they did not stay together with the deceased as the she stayed with PW1 & PW2. In March 2018 PW1& PW2 came to his house and after they left a sum of Kshs. 46,000/= was found missing, they later resolved the issue with PW1 and PW2 who paid him the amount. On 2nd May 2019 there was an issue between him and the deceased, PW1 & PW2concerning the sale of a television set. The said television had been stolen by a one Nzuko but PW2had alleged that he sold the same to pay him the amount he owed him.

He confirmed that on 2nd May 2019 the deceased stayed at his place and stated further that the following day, the 3rd May 2019 in the morning, he went to the house of PW1 to resolve the ongoing dispute. Thereafter at 8:00 a.m. he boarded a bus from Madogo to Kanyonyo, as he proceeded to Chuka University to pay his fees and to collect his 3rd-year transcript. While on his way he realized that he had left his key, he returned to get the same. He met PW4, she did not talk to him, he left and stood at a Salon as he waited for PW1 and the deceased.

On Friday there was a blackout in Chuka and he could not charge his phone. On Saturday, he noticed that PW1and the deceased mother had tried to call him. He returned the deceased mother’s call when she informed him that, Margaret had been murdered and PW2 had suggested that he was the one who had killed her.

Taken aback by the allegations, he decided to go to the deceased home in Kabati. He arrived at the home on 5th May 2019 and made his contributions towards the funeral arrangements. He learnt that PW2 and Nzuko claimed that he was the one who murdered the deceased. And while at the deceased home he was beaten badly only to be saved by the deceased sister. He was later arrested and taken to Ngumi Police station then, Ukasi Police Station when Police officers from Madogo came for him. While at Madogo, he was taken to a room by the Investigating Officer where he found PW1 & PW2. He asked them why they had framed him to which they responded that they were exerting their revenge. On 9th May 2019 he was tortured by the officers, and was thereafter charged with the offence of murder.

He denied that he had the deceased phone and stated that his phone is Techno S1 make. He also denied writing the alleged message to PW1and having been at the alleged scene on the material day.

SUBMISSIONS

12. The prosecution submitted that all the ingredients for the offence of murder had been satisfied. They urged the court to find the accused guilty as charged.

13. On the part the accused it was submitted that the bus ticket in his possession proved that he was not within the vicinity of the scene of crime at the time the offence was committed. Further the prosecution did not rebut this evidence. The prosecution’s failure to analyze the deceased phone and/or call Safaricom representatives who was a crucial witness created doubt in their evidence as it did not link the deceased phone to the accused. The prosecution also failed to call crucial witnesses such as the shopkeeper who charged the phone, the parents of the deceased, the landlord who rented the house to the deceased, and the boda boda rider who ferried the deceased belongings.

ANALYSIS AND DETERMINATION

14. For the offence of murder to be proved three ingredients must be established; the fact of death, an unlawful act or omission on the part of the accused resulting in the death of the deceasedand thirdly malice aforethought on the part of the accused.

15. PW3 confirmed the death of the deceased. In his testimony he opined that the cause of death was due to severe internal hemorrhage secondary to multiple stab wounds.

16. The evidence of the prosecution is based on circumstantial evidence. Before such evidence forms the basis of a conviction, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Accused person, and no other as the perpetrator of the offence

In Abanga alias Onyango v R Cr. App. No 32 of 1990, the court of appeal set out the conditions as follows:

“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 the 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. In this case”

In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR, the Court of Appeal had this to say on this point:

“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -

“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

17. Though there was no eye witness to the murder of the deceased, the circumstantial evidence before court points at the accused. He had a quarrel with the deceased the night before she moved from, she to a new house. Secondly, he had been seen from a distance watching as the deceased and PW4 were moving things to the new house. He was also ostensibly missing out until he was arrested at Kabati. More telling is that he was found charging the phone belonging to the deceased. Though the accused denied having been in possession of the deceased phone and alleged that PW1 & PW2framed him, this claim and the allegation the phone was planted on him when he was arrested and tortured so as to support the prosecution case do not in any way dislodge the evidence of PW6on the tracking of the phone and arrest of the accused with the same. The court finds no motive on the part of the police or PW1 & PW2 to frame the accused. And since the burden of proof shifted to the , once there was evidence of him possessing the phone that belonged to the deceased, the accused failed to explain how he came to be in possession of the said phone.

18. In the case of Republic v Tubere S/O Ochen [1945] 12 EACA 63the court held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.

This case fits the circumstances of this case.

19. The accused was in the vicinity of the crime scene a few hours before the deceased was mercilessly murdered, he went missing thereafter, and the deceased phone found on him, which phone sent a telling message to PW1’s phone after the deceased death. The stab wounds were so severe that they were meant to maim or kill the deceased.

20. The accused equally raised an alibi. InErick Otieno Meda v Republic [2019] eKLRthe Court of Appeal addressed itself on alibi evidence as follows;

(a) An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.

(b) An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.

(c) The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.

(d) The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail. (See Mhlungu - v - S (AR 300/13) [2014] ZAKZPHC 27 (16 May 2014)

21. The accused alibi was not corroborated by any credible evidence to show that he was indeed at Chuka University, where he allegedly slept on the material day. He did not produce the aforesaid receipts and/or transcripts he allegedly went to collect in order to corroborate the alibi. The accused alibi evidence cannot stand against the credible evidence of the prosecution.

22. Based on the above the court finds that all the pieces ofevidence analyzed separately are so strong that when pierced together they unerringly point to the accused as the perpetrator of the offence; the one who mercilessly murdered the deceased herein, took her phone and thereafter sent a message to PW1 on the reason he murdered the deceased. To this end, the court finds that the prosecution proved its case beyond any reasonable doubt and accordingly convicts the accused of the offence of murder as charged.

DATED SIGNED AND DELIVERED IN GARISSA THIS 10TH DAY OF MARCH, 2022

ALI-ARONI

JUDGE