[2022] KEHC 12975 (KLR)

Republic v Kaithama & another (Criminal Case 22 of 2017) [2022] KEHC 12975 (KLR) (20 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12975 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Case 22 of 2017

EKO Ogola, J

September 20, 2022

Between

Republic

Prosecution

and

David Gituma Kaithama

1st Accused

James Ekaran Lonyaman

2nd Accused

Ruling

1. The accused persons herein are charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code, Chapter 63, Laws of Kenya. The particulars of the offence are that on 7/3/2017 at Maili Nne Market Eldoret West District, Uasin Gishu County jointly murdered Ali Kimoi Salim hereinafter referred to as ‘the deceased’.

2. The accused persons pleaded not guilty to the charge. The 1st accused was represented at the trial by Mr. Miyienda advocate and the prosecution was conducted by Ms. Emma Okok. The prosecution called a total of nine (9) witnesses to prove the ingredients of the offence constituting the following:(1)The death of the deceased.(2)The death of the deceased was unlawful.(3)That in causing death there was malice aforethought on the part of the accused.(4)That the accused was positively identified as the one who caused or participated in the killing of the deceased.

3. At the close of the prosecution’s case the defence counsel Mr. Miyienda in compliance with section 306 (1) of the Criminal Procedure Code made a submission of a no case to answer in favour of the accused.

4. The evidence adduced by the prosecution witnesses can be summarized as follows: On the material date, the deceased was stabbed to death outside his gate at around 12. 30am. PW1 testified to hearing the commotion leading up to the death of the deceased and seeing the accused persons shutting the gate. The second accused was arrested in the compound of the deceased by the crowd that had gathered outside and he informed PW4 of the whereabouts of the murder weapon and the 1st accused person. A polythene bag with blood stained clothes and a black knife were recovered from the house and compound respectively. PW7, Mr. Richard Langat - the government chemist analyst confirmed that the blood stains from the first accused’s jacket (prosecution exhibit 3), knife (prosecution exhibit 1) and shoes (prosecution exhibit 6) matched the profile of the blood of deceased. At the police post the accused persons told PW8 that they thought the deceased was a thief and attacked him. Notably, none of the witnesses witnessed the accused persons stabbing the deceased.

5. It is against this background Mr. Miyienda learned counsel for the defence submitted that there was no case to answer pursuant to section 306 (1) of the Criminal Procedure Code. Mr. Miyienda in his submissions invited the court to appraise the evidence of the nine (9) witnesses relied upon to prove the charge against the accused.

6. Counsel submitted that the incident took place at 12. 30am. PW1 said there was commotion outside the gate and that the deceased was lying outside the gate. PW2, PW3, PW5 and PW8 confirmed the murder took place outside the gate. He further submitted that PW1 merely said ‘’There was light’’ but in cross - examination said ‘’I used a regular torch to light outside to see ". PW5 said when cross -examined that "There was lighting outside the gate but there was darkness inside the gate. Near the gate there are lighting bulbs and street lights about 15 metres from the gate". Pw6 told the court "it was dark" in his examination-in-chief but in cross -examination he said, ‘’there was no light outside the gate.’’ This evidence confirmed that indeed there was no light outside the gate where the attack took place thus showing that identification was difficult under the circumstance shown above.

7. It is the 1st accused person’s case that none of the witnesses identified the 1st accused David Gituma attack the deceased. The evidence of PW6 discloses that he was the first person to come to the scene and he says he confirmed that he saw James Lonyaman, the 2nd accused person stab the deceased. That he, together with his friend Abdi, recognized the voice of the second accused and they saw him walk out of the compound through the gate and he was restrained by the crowd.

8. The question here is whether the 1st accused, David Gituma Kaithama was properly and positively identified by any of the prosecution witnesses at the close of the prosecutions’ case. Citing Turnbull vs Republic (1977) QB224 where the guidelines for identification were set out, counsel submitted that the court must examine the circumstances in which the identification by each witness can be made which circumstances include; Length of time accused was observed by the witness.

The distance at which the witness was from the accused.

Nature and state of the light.

Length of time elapsed between the original observation and the subsequent identification to the police.

9. He maintained that the 2nd accused directed PW5 to the 1st accused persons’ house where the blood stained clothes which he alleges got stained as the 1st accused had run out to assist the deceased as per the testimony of PW6 where he stated that 23 people ran out of the compound to assist the deceased.

10. The 2nd accused person (A2) entered into a plea deal, pleading guilty to the lesser charge of manslaughter. He made the statement that;‘’A2 was under the mistaken impression fearing the deceased who was with other people were about to attack him (A2) and A1 as they were entering the house of A1 in the compound of the deceased.’’

11. The 2nd accused’s admission that he committed the act of stabbing the deceased mistakenly absolves the 1st accused of any involvement. It was incumbent upon the prosecution to tender evidence to show that A1 was an accomplice to the actions of A2 who owned up to the killing of the deceased. The prosecution did not do so.

12. Citing Ramanlal Trambaklal Bhatt vs Republic EALR (1957) EA 332 counsel submitted that all the evidence given by prosecution does not link the 1st accused to the murder. If this Court is to put the 1st accused on his defence, it will be asking him to tell the court that the murder was committed by A2 who has already owned up to the act and has been convicted. Counsel submitted that the prosecution has not established motive as against the 1st accused and as such the accused person should be acquitted under section 306 of the Criminal Procedure Code.

13. The starting point will be to look at the applicable law and cases on a prima facie case. This is then followed by an evaluation of the prosecution evidence with the legal principles to make a finding on a prima facie case. The Criminal Procedure Code, at section 306 (1) provides as follows:“When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit recording a finding of not guilty.(2) When the evidence of the witnesses for the prosecution has been concluded the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court on his own behalf or make unsworn statement and to call witnesses in his defence….”

14. In Mozley and Whitley’s Law Dictionary11th Edition a prima facie case is defined as:“A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case then is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side.”

15. In determining whether there exists a prima facie case, one should bear in mind the cardinal principle on the burden of proof, that it is the duty of the prosecution to establish the guilt of the accused for the offence charged beyond reasonable doubt. See Woolmington vs DPP [1935] EA 462 at 481.

16. Section 107 (1) of the Evidence Act Cap 80 of the Laws of Kenya provides that:“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist.”

17. In discussing the issue further Lord Parder C.J in the case of Sanjil Chattai vs The State [1985] 39 WLR 925 stated thus:“A submission that there is no case to answer may properly be made and upheld:(a)When there has been no evidence adduced by the prosecution to prove an essential element in the alleged offence.(b)When the evidence adduced by the prosecution has been so discredited that no reasonable tribunal could safely convict on it.”

18. Kenyan courts have heavily relied on the legal principles in the celebrated case of R.T. Bhatt v Republic [1957] EA 332 – 334 & 335 to define what constitutes a prima facie case. The court of Appeal of Eastern Africa stated thus:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution case, the case is merely one which on fully consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence.”

19. The legal principles which run through the case cited revolves around sufficiency of evidence capable of establishing the ingredients of the offence the accused is charged with. Secondly, a mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence. Thirdly it is evidence adduced by the prosecution that a reasonable tribunal properly directing its mind would convict the accused in absence of any explanation when called upon to answer or put on his defence.

20. In the present case, the testimony of each of the nine (9) witnesses called by the prosecution has been evaluated against the charge of murder facing the accused. The standard of proof required at this stage is not that of beyond reasonable doubt as the court has not had the advantage of the defence.

21. One of the essential elements of the offence of murder is that one has mens rea to commit the offence. In so far as the evidence adduced is concerned, the element of malice aforethought has not been shown to exist. There is also no motive that can be derived from the evidence.

22. On the actus reus, it is evident that there were no witnesses who saw the 1st accused person commit the offence. The evidence before the court is circumstantial at best.

23. In the case of Ahamad Abolfathi Mohammed and Another vs Republic [2018] eKLR, 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.”

24. In its earlier decision in Mwangi and Another vs Republic (2004) 2 KLR 32, the Court of Appeal exhorted that:“In a case depending on circumstantial evidence, each link in the chain must be closely and separately examined to determine its strength before the whole chain can be put together and a conclusion drawn that the chain of evidence as proved is incapable of explanation on any other reasonable hypothesis except the hypothesis that the Accused is guilty of the charge”

25. In examining the chain of evidence linking the accused to the offence, I find that there is a weak link, that being that his co-accused was established to have committed the offence of manslaughter. From the medical report it is evident that the deceased died from a cut wound, not several cut wounds or stabs. The 2nd accused having confessed of committing the offence, it would be an injustice to try or to convict another accused person of the same offence, especially where the conviction rests on the shoulders of circumstantial evidence.

26. In my view for the prosecution to demonstrate existence of a prima facie case under Section 107 (1) and 108 of the Evidence Act as read with Section 306 (2) of theCriminal Procedure Code, it would require evidence of a much higher quality than there is on record as stipulated by PW1, PW2,PW3, PW5 and PW8

27. In light of the doubt entertained, I consider the facts and circumstances of the case to lean towards a motion of no case to answer in line with Section 306 (1) of the Criminal Procedure Code. In the result the charge discloses an offence committed contrary to Section 203 of the Penal Code but falls short of identifying the accused as the one who committed the offence. I therefore find that the accused has no case to answer and accordingly I acquit him of the offence under the law.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 20TH OF SEPTEMBER 2022. E. K. OGOLAJUDGE