[2022] KEHC 16133 (KLR)

Republic v Kamau (Criminal Case 37 of 2018) [2022] KEHC 16133 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16133 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 37 of 2018

TM Matheka, J

December 7, 2022

Between

Republic

Prosecution

and

Daniel Mugo Kamau

Accused

Ruling

1. The accused herein was charged with the offence of murder contrary to section 203 as read section 204 of the Penal Code. It is alleged that on July 22, 2018 at Banita Farm Solai in Rongai Sub-County within Nakuru County he murdered Musa Kiprop Chirchir.

2. On August 8, 2018, the charge was read to him and he pleaded not guilty. Thereafter, trial proceeded with prosecution calling five (5) witnesses in support of their case.

3. PW1 Simon Kiprotich, was a brother to the deceased. He testified that on 2July 2, 2018 at around 10. 30 pm he received a call from his herdsman one Samuel that the Musa had been cut on his head and was lying on the roadside. He went with him to scene and confirmed the same. He noted the Musa had been cut on the head and legs. He told the herdsman to stay there as he went to report. He went home and called two of his brothers and many people who accompanied him to the scene. As they waited for the arrival of the OCS he saw five (5) men including the accused on a motor bike. He knew these men by appearance only. They were armed with pangas and knives. That they alighted from the motor bike, and threw the pangas at them. That the panga the accused threw caught him, PW1 on the neck and cut him. He showed the scar. The young men then abandoned their motor bike and ran away. When the OCS came he took away the body of Musa and the motor bike.

4. On cross examination he told the court that the herdsman was with Musa that night, and he disappeared the same night. He identified the clothes his deceased brother wearing but denied that the panga in court was the one the accused had. He insisted that the herdsman told him that it was members of the family of the accused and the accused who had cut Musa. That Musa’s body was lying not far from the home of the accused.

5. PW2 was a government analyst, Dalmas Kibet confirmed that the DNA of the accused person was not found on any of the items that were presented to him for examination. All of the following.1. Body tissue & nails from the deceased- exhibit A2. Checked shirt –exhibit B3. Jumper – exhibit C4. Stripped t- shirt – exhibit D.5. Long trouser dark green in colour- exhibit E6. Inner wear grey/orange in colour -exhibit F7. Panga- exhibit G.

6. He said exhibits B, C, D, G and F had blood stains which on examination contained DNA of the deceased Musa Kiprop. He stated that the blood of the accused had no relationship with all the above exhibits and produced the report as exhibit No 7.

7. PW3, No 88793, PC Jackson Mutula attached to Molo Police Station testified how he was on July 22, 2018 at around 11. 00 p.m. while at Solai police station, rang by the OCS CI Abdi Noor Hussein who told him that one Evalyne Akinyi from Banita Gichagi had made a phone report that one of her brothers was causing disturbance in the family. It while they were responding to this call, visiting the scene that the received a call from one Cpl Richard Mwangi from Banita Police Patrol Base (PPB) reporting that he had received a report from one Benson Kamau a brother to the accused that the accused had told him that their mother Felistas Wanjiru who was living alone in the home had been attacked by one Musa who had also attempted to rape her.

8. Upon receiving this call, they proceeded to Banita PPB. There they found two rival groups of youth, a Kikuyu one among whom was Benson Kamau, a brother to the accused. He told the police that when he received the call from the accused about the attack and attempted rape on their mother he organized a few youth and they boarded a boda boda owned by one Chege to the home. While headed there they were confronted by a group of Kalenjin youth who restrained them from reaching the home. It is then that his group ran away abandoning the motorbike.

9. PW3 and his colleagues left them at Banita PPB and proceeded to the scene where they found the Kalenjin youth group on the road side near where the body of Musa lay. It had multiple cut injuries over the body. Some of the youth said they were brothers of the deceased. The motor bike was also lying on the ground near there about 50 meters from the accused person’s home in a bush by the road side.

10. PW3 testified that they went into the home of Felistas Wanjiru. There was blood from the gate, on the path through the maize plantation into the home and the small gate leading into the home. They recovered a checked blood stained shirt in the homestead which was identified by PW1 as belonging to the deceased. They collected the body and motorbike. Thereafter, they moved the deceased body to Nakuru County Mortuary.

11. That on July 23, 2018 at about 10. 00am while at Solai Police Station, the accused in company of his mother Felistas Wanjiru, brother Benson Kamau, motor bike owner Jacob Chege and members of the Public came. The clothes accused was wearing had blood stains. He told him what had happened. He took over the clothes accused wore and sent for clean clothes. He also went to recover the panga as per the accused’s directions.

12. He confirmed he filed the exhibit memo and presented the exhibits to Kisumu Government Chemist for analysis. He produced the said MEMO as P Exhibit No 8.

13. On cross examination, he confirmed that none of the said Kikuyu youth recorded their statements and none mentioned whether the accused was among them. That he never saw the alleged herdsman; that the deceased had been arrested before for illegal grazing; that the Kalenjin youth they found were armed with rungus and crude weapons; that the shirt he recovered was the one before court; that all the clothes with blood stains were presented to the government analyst. He said when he arrested the accused he had no injuries and confirmed that the blood in the home, posts, gate and maize plantation were never presented for forensic examination.

14. PW4 was Dr Titus Ngulungu, a pathologist from Nakuru Provincial General Hospital. Confirmed that the deceased’s body had cuts on the head, trunk, legs, left arm and left Leg caused by a sharp object. He formed the opinion that the cause of death was as a result of blood loss due to injury to blood vessels, injury and trauma to the brain by use of a sharp object (machete/panga). He produced the post mortem report as exhibit No 9.

15. The testimony of PW5 No 107109, PC Silas Chelimo from Keringet Police Station was similar to that of PW4 except that he recorded the statement of the father of the accused. He confirmed that no inventor was prepared for the recoveries that were made.

Submissions 16. The accused through his counsel Ms Odande filed written submissions on October 28, 2022.

17. On what constitutes a prima facie case reliance was placed on Ramanlal Trambaklal Bhatt v Republic (1957) EA 332 which defined it as follows: -“a prima facie case is one on which a reasonable tribunal, properly directing its minds to the law and the evidence could convict if no evidence in rebuttal is called by the defence”.

18. Placing further reliance on R v Bernard Obunga Obunga [2015] eKLR counsel argued that in a murder trial the prosecution bears the onus of proving the case against the accused beyond reasonable doubt. The prosecution must prove that the deceased died; that the accused before the court is the person that caused that death and how that death was caused and that the accused intended to cause that death. Citing section 206 of the Penal Code on definition of malice aforethought, counsel submitted that it was crucial to ascertain whether the accused person was positively identified by the prosecution witnesses.

19. She submitted that none of the prosecution witnesses witnessed the incident and thus their evidence was circumstantial and relied on Abanga alias OnyangovRepublic CA CR A No 32 of 1990 (UR), where the Court of Appeal stated the principles which should be applied in order to test circumstantial evidence 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 guilt of the accusediii.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.”

20. Reference was also made to Sawe v Republic [2003] KLR 364 where the Court of Appeal in stated: -1. In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.2. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstance weakening the chain of circumstances relied on. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.7. Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.”

21. It was argued by the defence that that circumstantial evidence is one which tends to prove a fact by proving other events or circumstances which afford a basis for a reasonable inference of the occurrence of the fact in issue and as such it requires some reasoning to prove a fact. It was argued that circumstantial evidence could not hold against the accused person for the following grounds: -i.The evidence of PW1 is hearsay as he did not witness the incident. He testified that he was informed about it by herdsman and as such inadmissible.ii.The blood allegedly found at the homestead of the accused cannot be ascertained as that of the deceased as it was not analyzed.iii.The alleged shirt found at the homestead of the accused cannot link him to the offence herein as no inventory was carried out; no other witness apart from investigating officer witnessed it; and that the clothing the deceased wore at the time of death was not analyzed.iv.No relation between the weapon allegedly used to kill the deceased and the accused as it was not taken to government analyst for examination and PW1 had not seen the same before.v.The panga produced in court was not drenched in blood yet allegedly it was used to severally cut the accused.vi.The prosecution did not adduce any evidence to show the relation between the deceased’s death and the accused person.vii.The herdsman was the last person to be seen with the deceased and not accused herein.viii.The prosecution did not adduce any evidence to show that the accused had any malice aforethought.

22. The defence posited that the prosecution had failed to establish their case against the accused person to the required standards and urged that the accused person be acquitted under section 210 of the Criminal Procedure Code.

Analysis & Determination 23. The question that this court has to deal with and answer at this stage is whether based on the evidence now on record the Court after properly directing its mind to the law and the facts the accused ought to be put on his defence.

24. The court in Ronald Nyaga Kiura v Republic [2018] eKLR stated at paragraph 22 that:“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of Ramanlal Bhat v Republic [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”

25. Oxford Companion of Law at pg 907 defines “prima facie” in the following terms:“A case which is sufficient to all an answer while prima facie evidence which is sufficient to establish a fact in the absence of any evidence to the contrary is not conclusive.”

26. Section 306(1) and (2) of the Criminal Procedure Codeprovides the court with the options at this stage:(1)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, record 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, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.

27. Death is established and the prosecution has set out the circumstances providing a motive and in which a finger points at the accused person

28. No definitive findings can be made at this stage, wisdom of Trevelyan and Chesoni, JJ in Festo Wandera Mukando v The Republic [1980] KLR 103:“…we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgement. Where a submission of “no case” is rejected, the court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is the end to the case or the count or counts concerned.”

29. Hence I can only state that on the evidence on the record there is a prima facie case to warrant the accused person to be put on the defence in accordance with section 306 (2) of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED THIS 7TH DAY OF DECEMBER, 2022. MUMBUA T MATHEKA,JUDGE.CA EdnaMs Murunga for stateMs Odande for the accusedAccused present