[2014] KEHC 6719 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL CASE NO.27 OF 2010

REPUBLIC ……………………………………………………PROSECUTOR

VERSUS

KAITANO EKISA ……………………………………………..RESPONDENT

J U D G M E N T

Kaitano Ekisa (the accused) is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. It being alleged that between the 15th and 16th day of November 2006 at Ochude village, Kotur sub location, Kotur location in Teso District he murdered Clement Otato Ochuku (the Deceased).

Initially, the accused had been charged with the same offence together with his wife Pamellah Lukhafwa. During the pendency of this case, Pamellah met her death on 9th of March 2008. Subsequently a fresh information dated 25th of November 2008 was presented to Court and plea taken again by the accused on 26th of November 2008. Thereafter the Prosecution case commenced and comprised of seven (7) witnesses.

Patrick Otato (PW 1) is the son of the Deceased. On 17th of November 2006 at about 1. 00 p.m his mother Elizabeth Okweru Otato requested him to look for his father who had not returned home since the 15th of November 2006. His mother asked him to check with the accused whom the Deceased had allegedly visited on the 15th of November 2006. PW1 visited the accused on the same day. It was his testimony that the accused confirmed that the Deceased had visited him on Wednesday 15th November 2006 but the accused refused PW1 into his compound.

PW1 then went to the home of his cousin brother Quinto Emaase Etyang (PW 2). He informed him about his missing father. Together they again returned to the home of the accused. This was at about 4. 00 p.m. It was the testimony of PW1 that even on this second visit the accused refused to allow them into the compound. However PW2’s testimony was that the accused was not at home when they visited him. PW1 and PW2 were later to report the incident to the Assistant Chief Dennis Erono Ipet (PW 4). He advised them to see him the following day. It was the testimony of PW1 that on the very same day he saw the son of the accused called Alloys Ekasibe with Deceased’s bicycle. When asked about where the Deceased was, he could not explain. He was taken by PW1 to the Assistant Chief. Alloys was on the same day detained at Kotur Police Station. On conducting a search for the Deceased they found his body lying in a swampy place with his clothes torn. He had a shirt and trouser. There was some burnt grass and a piece of blanket near the body.

PW2 says how after failing to find the accused at home he went to a local changaa den where he found many people who included the accused, his wife and their three sons Tumbo, Oita and Bena. The wife of Bena, presumably Phylis Naliaka (PW 5), told him that the Deceased was last seen with the accused on 15th of November 2006. Upon inquiring from the accused about this, the accused denied. Later on 18th of November 2006 PW2 received information that the body of the Deceased had been found. He visited the location where the body was and saw it in a bushy swampy area. That was between the house of the Deceased and of the accused. The body lay on its back and there were teeth missing. There was a piece of blanket next to the body. Nearby was dry grass which had been burnt.

Phylis Naliaka (PW 5) is the daughter-in-law of the Deceased. She brews and sells traditional brew. On 15th Of November 2006 she played host to two patrons. The accused and the Deceased. This was at about noon. Later, the wife of the accused by the name Pamellah came by and left with the Deceased and the accused for lunch. With them was also Oita a son of the accused. They never returned. Two days later on 17th of November 2006 at about 4. 00 p.m. the son of the Deceased (PW 1) visited her house inquiring about the whereabouts of the Deceased. On the following day, the body of Deceased was found and she saw it whilst it lay in a thicket near a swamp. The body was covered with a red and yellow striped blanket.

PW3 Lawrence Injono (PW 3) who had earlier received information about the missing person from PW1 and PW2 was later to receive information that the person had been found dead in a bush. PW3 passed on the information to the Police and together with some Police officers visited the scene where they found the Deceased lying in a water trench. There was a grass thatch next to his body. PW3 observed that the Deceased had an injury on his mouth and some teeth were missing. On his side was a piece of blanket. The body of the Deceased was later taken away by the Police from Kotur Police Station with the help of their colleagues from Malaba police station.

Later on that day PW3 together with Corporal Mulongo Nyongesa (PW 6) visited the home of the accused. They found no one there. The house was deserted but the door was open. They noticed that the floor of the house had been freshly smeared with cow-dung. In the house was also a piece of blanket similar to the one found next to the Deceased. Neither the accused nor members of his family were at home.

At about 8. 00 p.m. on the same day the accused and his two sons Oita and Eseu came to the house of PW3 and requested that he takes them to the Police. He did so and handed over the Accused to the Police at Kotur.

Denis Erono Ipet (PW 4) is the Chief of Kotur location. He too had received some information from PW1 about his missing father. That on 18th of November 2006 at 8. 00 a.m. PW1 and PW2 accompanied by the two wives of the Deceased namely Regina and Elizabeth brought a person by the name Alloys Ekasiba to his house. Ekasiba is the son of the accused. He had been found in possession of the Deceased’s bicycle. PW4 questioned Alloys about how he came to possess the bicycle of the Deceased. Alloys told him that the Deceased and his in-law the accused were drinking in his house and he had borrowed the bicycle to use for a journey. On returning home he found both the Deceased and the accused had left and so he retained possession of the bicycle. PW 3 referred the matter to Kotur Patrol Base.

Later on the same day at 10. 30 PW1 and PW2 reported that the body of the Deceased had been found in Ochude village in a plot of the late Chief Samwel Okisai. The witness accompanied the Police to the scene. There he was able to identify the body of the Deceased who wore a tattered shirt and a grey trouser. The witness noticed that the accused legs were bruised and swollen. About 30 metres from the body was a stripe of a grey blanket. The witness also noticed some dry burnt grass. Again, in the company of Police officers they visited home with the accused. They did not find the accused nor any other person in the home. The house was wet with a fresh smear of cow-dung. Also found in the house was a similar piece of blanket as that found next to the body of the Deceased.

PW6 was a Police officer attached to Malaba Police Station. He received a report of a found body from his colleague Joseph Chesma who was a Police officer in charge of Kotur Police station. PW6 visited the scene where the body was found. He found the Sergeant at the scene and the body still lying there. It was fully clothed with a white shirt and grey trouser. The shirt was torn around the hands and the back. Around the scene was a bundle of grass which was burnt at its tip. About 20 feet from the body was a piece of blanket. The blanket was grey in colour with red stripes. He recovered this piece of blanket.

He later visited the house of the accused in the company of PW3 and PW4. The house was unlocked and inside they observed that it had been freshly smeared with cow-dung. Here, he also recovered a piece of blanket similar to the one recovered at the scene and he took possession of it. In the house was a bed which appeared disturbed.

The investigating officer upon recovering the two pieces of blanket submitted them for analysis to the Government Analyst. The report of the Stephen Matinde Joel Wiede, the Government Analyst dated 8th March 2007 was produced as Exhibit 1. The Analyst had received and examined two pieces of blankets. Each one of them was coloured grey/green/red. He found no blood stains on the pieces of blankets. PW6 was however unable to produce the two pieces of blankets as exhibits because they had been misplaced at Malaba Police Station.

The body of the Deceased was taken by Police officers to Bungoma District Mortuary where on 20th of November 2006 a postmortem was conducted on it by Dr Habel Alwanga. The body was identified to the Doctor by PW1 and PW2. On the external appearance of the body the Doctor observed multiple bruises on the left fore-arm and a bruise on the right auterocerteral neck. Internally, within the Respiratory system, there was a fracture to the Hyoid Bone and a bilateral collapse of the lungs. In his opinion the cause of death was cardio respiratory failure due to strangulation evidenced by multiple bruises suggesting a struggle.

The Accused made an unsworn statement in which he denied being with the Deceased on 15th November 2006. On that day he left home at about 6. 00a.m for Malaba and returned at 7. 00p.m. On 18th November 2006, at about 4. 00p.m he received a report that the Assistant chief was looking for him. He went to the home of the said Assistant chief who in turn told him that it was the Police who were looking for him. Together they went to Kotur Police Post. He was detained overnight. The next day the Officer in charge asked him whether he was with the Deceased, he denied. Later at 9. 00 a.m. he was taken to Malaba Police Station where he remained detained for 25 days before being arraigned in Court.

The above is the evidence that calls for this Courts evaluation. There was no direct evidence of the participation of the Accused in the killing or death of the Deceased. All the evidence is circumstantial. This Court will consider whether that evidence sufficiently connects the Accused to the death of the Deceased. The Court bears in mind that for the charge to succeed upon circumstantial evidence then the evidence must be such that “the inculpatory facts against an accused must be incompatible with the innocence and incapable of explanation upon any other reasonable hypothesis than that of guilt.” (Kantilal Jivray and Another –vs-Republic [1961] EA 6 at page 7).

There is firm evidence by PW5 that the Accused and the Deceased visited her house on 15th November 2006 where she hosted them for a traditional drink. At about noon, the Deceased and the Accused left together with the wife of the Deceased. This was the last time any of the prosecution witnesses saw the Deceased alive.

The Deceased did not return home and this worried his family. On 17th November 2006, PW1 started to search for his missing father. He sought the assistance of PW2, PW4 and PW5. The search had an unhappy ending. PW1 found his father dead and his body lying in a thicket at a swamp. PW2, PW3, PW4, PW5 and PW6 all saw the body of the Deceased as it lay in the swamp.

The witnesses gave similar evidence about the condition of the body and the scene. PW1 said that the body lay on its back. Next to it was burnt grass and a piece of blanket. PW2 also gave evidence that the body lay on its back and had missing teeth. The body was clothed with a white shirt and trousers. There was also burnt grass. On cross-examination he said,

“A piece of blanket was found next to the body of the Deceased.”

PW3’s evidence was that the body was clothed and had an injury on the mouth with missing teeth. There was grass next to the body. He said this about their visit later to the house of the Accused.

“There was a blanket (half) similar to the one which was next to the body of the Deceased. The blanket was dark brown.”

PW4’s evidence was not dissimilar. The body he saw was clothed with a tattered shirt and grey trouser. The neck was bruised and mouth swollen. On its side was a stripe of grey blanket and then he testified.

“there was also dry burnt grass”

As for PW6 he observed a fully clothed body in a white shirt and grey trouser. Around the scene was a bundle of dry grass burnt at its tip. About 20 feet from the body was a piece of blanket which was grey in colour with red stripes.

PW5’s observation differed slightly. She saw the body as she stood about 10 meters away. Although she also saw a red and yellow striped blanket, it was her testimony that the blanket had covered the body. This Court shall return to this apparent inconsistency later.

When PW3, PW4 and PW6 moved from the place where the body was found to the house of the Accused, they did not find the owners of the house. They infact did not find anybody. The door, though shut, was not locked. On entering the house, they found that the floor was wet with a fresh smear of cow-dung. And crucially, in the house was a piece of blanket similar to that found next to the Deceased’s body.

The pieces of blanket were recovered by PW6, who through P.C Richard Mutua submitted them to the Government analyst for examination. Although Mr Weibe, the Government Analyst found no blood stains on the pieces of blanket, he made what turns out to be a significant observation about the colours of the Exhibits he received. They were both grey/green/red.

The downside of the Prosecution case is that the pieces of blanket were not available for identification by the witnesses and for production as evidence. This was because, according to PW6, the exhibits had been misplaced at Malaba Police Station and could not be traced. On its part this Court accepts that PW1, PW2, PW3, PW4 and PW6 all saw a piece of blanket next to the body of the Deceased. Whatever the distance it was at the place where the body was found. The only witness whose evidence was at variance was PW5 who said that the blanket had covered the Deceased body. But that variation may not be significant in the circumstances. Because unlike the other witnesses, she stood some distance from the body. In her own explanation,

“The Deceased is my father-in-law. Traditionally I was not required to go near his dead body.”

In addition she told Court that she was in a state of shock and confusion. For this reason this Court is swayed towards believing the version of the other five witnesses.

Something about the colour of the piece of blanket found at the scene. PW3 said it was dark brown. PW4 thought it was grey. For PW5 it had red and yellow stripes while for PW6 it was grey with red stripes. Sadly the blanket was not available for the witnesses to identify. But what PW3, PW4 and PW5 told Court about the similarity of that piece of blanket with that found in the house must be striking. The witnesses were unequivocal that they were similar. The witnesses may have given different colours to what they saw but of importance is the evidence of the three witnesses that the pieces of blanket were similar. Then the Report of the Government Analyst was more definitive. The colour of the two pieces of blanket were the same and described as grey/green/red.

At the close of the Prosecution case, the Defence had asked Court to disregard this aspect of the evidence because the pieces of blanket were not produced in Court. The explanation for their non-production, it bears repeating, is that they had been misplaced at Malaba Police Station. Should this therefore deal a death-knell to the corroborative evidence of the 5 witnesses? I think not because, the pieces of blanket were submitted for examination to the Government Analyst and the Report was produced as an exhibit (Exhibit 1). In the report, the two pieces of blanket are of the same colour. This strongly suggests as observed by PW3, PW4 and PW6 that they were two pieces of the same blanket.

There is then the unshaken evidence by PW3, PW4 and PW6 that they found the floor of the house of the accused freshly smeared with cow-dung. This was merely three (3) days after the Deceased was last seen with accused. Was this fresh smear intended to conceal some evidence?

The Deceased died because of strangulation. He was last seen with the accused on 15th November 2006 at about 12. 00 noon. After that he was found dead in a swamp near the home of the Accused. Next to him was a piece of blanket which was part of the blanket found in the house of the Accused. When PW3, PW4 and PW6 visited the house they did not find the owners but found that the floor of the house had a fresh coat of cow-dung. These are facts that strongly suggest that the accused is culpable for the death of the Accused. How else can it be explained that a piece of blanket belonging to the person who was last seen with the Deceased was found next to the body of the Deceased? How else can it be explained that the body of the Deceased was found near the house of the Accused? How else can it be explained that the suspect applied a fresh coat of cow-dung to the floor of his house? The mere denial by the Defence did not explain away what is a striking set of coincidence.

This Court is persuaded that on the evidence the Prosecution has proved, beyond any reasonable doubt, that the Accused killed the Deceased. Accordingly I find him guilty of the offence and convict him of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.

F. TUIYOTT

J U D G E

DATED, SIGNED AND DELIVERED THIS 24TH DAY OF FEBRUARY 2014.

IN THE PRESENCE OF:

KADENYI ………………………………………………………COURT CLERK

………………………………………………………………FOR PROSECUTOR

………………………………………………………………FOR RESPONDENT