[2022] KEHC 11215 (KLR)

Republic v Juma (Criminal Case 45 of 2012) [2022] KEHC 11215 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11215 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Case 45 of 2012

LK Kimaru, J

June 16, 2022

Between

Republic

Prosecutor

and

Godwin Nyukuri Juma

Accused

Judgment

1. The accused, Godwin Nyukuri Juma was charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 18th May 2012 within Trans-Nzoia County he murdered EBL. When the accused was arraigned before this court, he pleaded not guilty to the charge. He was released on bond pending the trial. In the course of the trial, the accused absconded from court. His uncle who had stood him surety was ordered to forfeit the sum that he had offered as surety. Meanwhile, this court ordered the trial to proceed from where it had reached before Chemitei J before he ceased having jurisdiction in this court, the absence of the accused notwithstanding. The accused has all along been represented by Ms Arunga advocate. She participated in the proceedings until the conclusion of the case.

2. The prosecution called a total of five (5) witnesses in its bid to establish the charge against the accused. PW2 LJW, the mother of the deceased testified that the deceased, a girl then aged 16 years was in a romantic relationship with PW1 NWS. The deceased informed her mother that she loved PW1 and not the accused. The accused was not happy with this relationship because he wanted to have such a relationship with the deceased. On 18th May 20212 at about 9. 00 pm, PW2 was called from her home at [Particulars Withheld] and informed that the deceased had sustained burn injuries when their grass thatched house was set on fire by the accused. The deceased was rushed to hospital where she was admitted for about a month before she succumbed to her injuries. During this period, the deceased spoke with PW2 and told her that the accused had gone to their home and inquired from her why she was having an affair with PW1 instead of himself. When the deceased told the accused that she was in love with PW1, the accused was enraged, went and got petrol which he poured on her and the house before setting them on fire. The deceased was locked inside the house at the time. The neighbours managed to remove her from the house but after she has sustained serious burn injuries.

3. PW1 testified that on 18th May 2012 at about 7. 00 pm, when he was at his home, the accused came and inquired if the deceased was at his place. He responded in the negative. He recalled that the deceased had prior to the material day informed him that the accused had threatened to cut her with a panga. After the visit, he decided to go to the local shop to buy some provisions. As he was returning home, he heard screams emanating from the direction of the deceased’s home. He saw their house burning. He rushed to the scene. When he arrived at the scene, he found that the deceased had already been rescued by neighbours. She was rushed to the hospital. He reported the incident at Chepchoina police post. He reiterated that it was the accused who burnt the house while the deceased was inside. He got this information from the deceased during that day to the effect that the accused had threatened to harm her.

4. PW3 DKW, a brother of the deceased testified that on the material day of 18th May 2012 at about 9. 00 pm, he was at his place of business near their home. He ran a food kiosk. The accused went to his premises and asked to see the deceased. PW3 responded that he did not know the whereabouts of the deceased. The accused had a panga and was wearing a white jacket. The accused left. After about fifteen minutes, their house was burnt. He was called by a neighbour and informed that the deceased had been injured in the house fire. He rushed to the scene only to find that the deceased had been taken to Kitale County hospital for treatment. He testified that although he did not see the accused set the house on fire, he had no doubt that it was the accused who had set the house on fire. The accused fled from the jurisdiction of the court upon being released on bond.

5. PW4 Dr. Benson Macharia, a pathologist based at Moi Teaching and Referral hospital told the court that on 17th July 2012, he was requested by the investigating officer to conduct a postmortem on the body of the deceased. The deceased died on 17th June 2012. According to PW4, the deceased had sustained burns on her face, upper and lower limbs, there was evidence of medical intervention. She had sustained 2nd degree burns on both the upper and lower limbs, the face and the neck. The degree of burns on the face was 1st. On internal examination he noted that the deceased had pneumonia which was caused by the septic burns. He produced the postmortem report as prosecution’s exhibit No. 1.

6. PW5 IP Stanley Chepkwony was the investigating officer in the matter. He recalled that on 10th August 2012 at about 10. 00 am, he was at the crime office at Endebess police station when the accused was brought by members of public accusing him of having killed the deceased. He conducted investigations. After concluding the investigations, he reached the decision to charge the accused after being satisfied that the accused had set on fire the house that the deceased was in after his romantic advances to the deceased were repulsed. He testified that the accused killed the deceased because she had rejected him.The defence closed its case without calling any evidence.

7. This being a criminal case, its the duty of the prosecution to establish the guilt of the accused to the required standard of proof beyond any reasonable doubt. The burden of establishing the facts that will establish the elements of the charge of Murder is on the prosecution. The accused has no obligation to establish his innocence. It is therefore incumbent upon the prosecution to establish that the accused killed the deceased with malice aforethought.

8. As stated earlier in this judgment, the accused absconded court during the pendency of the trial. Section 206 (1) of the Criminal Procedure Code grants this court powers to proceed with a trial in the absence of an accused if the accused was present when hearing date was fixed and the accused chose not to present himself before the court. This case was adjourned for a period of more than eight (8) years with the hope that the accused will be arrested by the police in execution of the warrant of arrest after he absconded from the jurisdiction of the court upon his released on bond pending trial. This court formed the opinion that it would not serve the interest of justice if this case remained pending before court yet the court has jurisdiction to proceed with the case, the absence of the accused notwithstanding.

9. From the evidence adduced, it was clear to the court that indeed the prosecution had established to the required standard of proof beyond any reasonable doubt that it was the accused who set on fire the house in which he had locked the deceased. From the evidence of PW1 and PW2, it was evident that the accused made the decision to harm the deceased when she rejected his overtures for a romantic relationship. The deceased told PW2 (her mother) that she had no interest in having a relationship with the accused because she was in love with PW1. When the deceased rejected the accused’s approach, the accused told the deceased that he would harm her. On the material day of 18th May 2012, the accused went looking for the deceased. He inquired from PW1 and PW3 the whereabouts of the deceased. He was armed with a panga. PW3 testified that 15 minutes after the accused had left his business premises, he was informed that their house had been set on fire. He was further informed that the deceased had sustained burn injuries that required her hospitalization. The deceased was admitted at the hospital for about a month before she succumbed to her injuries.

10. During her admission at the hospital, the deceased told PW2 that it was the accused that had poured petrol on her, locked her inside their house and then set it on fire. PW2’s testimony in regard to what the deceased told her is a dying declaration which falls under Section 33 (a) of the Evidence Act which provides that:“When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

11. The Court of Appeal in Philip Nzaka Watu v Republic [2016] eKLR held thus:“… while it is not the rule of law that a dying declaration must be corroborated to found a conviction, nevertheless, the trial court must proceed with caution and (sic) to get the necessary assurance that a conviction founded on a death declaration is indeed safe."

12. In the present case, it was clear to this court that the statement made by the deceased on her deathbed coupled with the direct evidence of PW1, PW2 and PW3 connected the accused to the scene of crime. He was seen within the vicinity of the scene of crime 15 minutes before the deceased’s home was set on fire. He had on the same day threatened to harm the deceased for refusing his quest for a romantic relationship. The accused’s conduct on the material day clearly pointed to someone who had formed the intention to harm the deceased for revenge for rejecting his approach for a romantic relationship with her. After the fire incident, the accused became a fugitive from justice and was only arrested three months after the incident. Clearly, if he had nothing to do with the fire, he would have remained at his residence after the incident.

13. The totality of the evidence adduced by the prosecution witnesses leads this court to the irresistible verdict that the prosecution established the charge of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The accused killed the deceased with malice aforethought. He put in place a plan to harm the deceased, bought petrol, poured it on the deceased and their house, before locking the deceased in the house and setting it on fire. The accused is accordingly convicted of murder. Since the accused is absent from court, and there is a warrant pending for his arrest, he is sentenced to death in a manner prescribed by the law. It is so ordered.

DATED AT KITALE THIS 16TH DAY OF JUNE 2022. L. KIMARUJUDGE