[2022] KEHC 1393 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL CASE NUMBER 31 OF 2017

REPUBLIC.........................................PROSECUTION

VERSUS

KENNEDY MUGO MUREITHI..............ACCUSED

R U L I N G

1. The accused person Kennedy Mugo Mureithi is charged with Murder contrary to section 203 as read with section 204 of the Penal Code.

2. It was alleged that on 11th June 2017 at Kolen Area in Nakuru West Sub-County within Nakuru County, jointly with another not before court, he murdered Daniel Gatheru Waweru.

3. He took plea on 11th July 2017 and pleaded not guilty.

4. The trial proceeded on 16th December 2019 and the prosecution closed its case on 26th January 2022 having called five (5) witnesses.

5. PW1, Sammy Waweru Ayub, a father to the deceased, testified that on 11th June 2017 he received a call from his sister in law who informed him that his son Gatheru was missing. A search for him ended up at the Nakuru County Mortuary where his body was found. He said he met the accused at the police station when the accused went to record his statement. That he did not know the accused before but learnt that the accused worked together with the deceased.

6. PW2, Ayub Ikuthu, testified how he, the deceased Daniel Gatheru, who was he was his cousin and their two other friends, the accused and another by the name Ngang’a went on a drinking spree on the night of 10th June 2017. About 2: 30 am they returned to the house where he and the deceased lived at Njoro. He slept. When he woke up, he found the three (3) including the said Daniel Gatheru missing, and he was locked inside the house. He had a spare key. He opened the door and went looking for them. When he could not find Daniel he rang another cousin and told him that Dan was missing. On his way home, he met with the police officers who were looking for him to tell them what had happened to Dan. He confirmed that none of them had quarreled with the other that night. That they were all very good friends but that Nga’ng’a had disappeared since that time.

7. PW3, No. 73735 Cpl David Geseke, of Kaptembwo Police Station testified that he was the investigating officer. That on 11th June 2017 at about 0722 hours they received information that there was a dead body along Nakuru Eldoret Highway in Kolen area next to Shell Petrol Station. He booked the report then proceeded to the scene in company of Chief Inspector Jane Thuita the OCS Kaptembwo and PC Oduori proceeded to the scene. They found an unknown body which was later identified as that of Daniel Gatheru. They noted blood stains on the road. The body had bruises on the chest and private parts. They removed it to the County Mortuary where post mortem was conducted by Dr. Wainaina.

8. On his investigations he testified that the deceased, his brother Ayubu Ikuthu, the accused and another by the name Nganga went drinking then came back home and locked up the brother to the deceased Ayubu. That the accused was riding motor cycle which they were using to move from one bar to the other and ended up in Nakuru where they left at 4: 30 am. They decided to go back to Njoro and they separated. Gatheru was later found dead. He established that the accused person was the rider of the motor cycle registration Number KMDZ 806 Y Honda which they used to travel to Nakuru. Upon interrogating the accused he informed him that when they were at the Bar in Nakuru Gatheru left them to go buy food and did not rejoin them until when he was found dead. He said the motor cycle which was recovered from the accused house was inspected and it was noted it had dents meaning it fell down and that they were involved in an accident.

9. He also stated that he received information from an eye witness that he saw a person drop from a speeding motor cycle and the rider disappeared into a feeder road next to the crime scene.

10. Asked to explain what he took into consideration in charging the accused with the murder he told the court that it was because the accused was in the company of the deceased,, was the last person to be seen with the deceased at 4:30 am, and the body was discovered at 6:30 am, that the accused failed to report the whereabouts of the deceased.

11. On cross examination he stated that the incident was reported at their station by the members of the public. He could not confirm whether the injuries he noted on the body at the scene were as a result of a traffic accident or not, he could not tell whether the person died there or not only that an eye witness had told them he saw a motorcycle with three persons and one pillion passenger fell off. He drew the conclusion that these must have been the deceased, accused and Ng’ang’a. He said that the three had been at Lips Bar & Restaurant in Nakuru, where they were till 4:30 am when the deceased left them to go buy food and he never returned. He said he never visited the said Lips Bar. However, this eye witness did not capture the registration number of the motor cycle.

12. Probed further he could not explain why he did not believe the accused when he told him that the deceased had left them to buy food but did not return. He said the fact that the three locked up the brother to the deceased was an indication of something fishy. He did not explain further.

13. PW4, Dr. Daniel Wanaina, the Chief Officer Public Health County Government of Nakuru, testified that on 14th June 2017 he examined the deceased’s body. That the deceased’s body had a large rugged cut at occipital region of the head, large bruising of the anterior neck and left jaw. Deformed chest bruising, large injury over groin area, scrotum, open fracture left leg, multiple rib fractures, massive bleeding to chest cavity & tibia vessels severed on left leg. On the head, cut had exposed skull, spine and the neck was broken. He formed an opinion that the cause of death was severe chest, neck and head injuries consisted with blunt trauma of a Road Traffic Accident. He produced a post mortem report as P. Exhibit 1.

14. On cross examination, he stated that the nature and extent of the injuries was not consistent with being hit by a person or from a fall. That the injuries were multiple, severe chest, neck, head, limbs, consistent with blunt force trauma most likely road traffic accident. That the injuries indicated that the body was hit and run over by a motor vehicle.

15. PW5, Paul Omondi Odongo, testified that he was a watchman at the place near the scene. That on 11th June 2017 in the evening he reported to work and at about 4. 20 am he saw two people in the middle of the road running towards the motor bike which had come from Koleni and stopped at the scene. He saw an oncoming lorry and he flagged it down so as avert it from running over the what was on the road. That there were other motor bikes carrying passengers and he and others placed branches on the road to warn motorists that there was something on the road. He stated that there were no lights on the road and he did not see the registration number of the motor cycle. He testified that the deceased person he saw could not have been in an accident. He saw the persons on the motorbike place him there. That there was no movement of motor vehicles. He said there was no blood at the scene because he had already bled. That he rang the police.

16. On cross examination he said he did not see how many people were on the motor bike as it came. He did not see any one placing the body on the road and that he could not describe the people he saw.

17. After the evidence of PW5, the prosecution case was closed.

18. The parties did not file submissions.

ANALYSIS AND DETERMINATION

19. At this stage in the proceedings, the court is supposed to make a determination whether the prosecution has presented sufficient evidence to warrant the accused person to be put on his defence pursuant to the provisions of Section 306 (2) of the Criminal Procedure Code.

20. The issue for determination is set out under Section 306(1) & (2) of theCriminal Procedure Code. The Section provides;

“(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.”

21. The offence of Murder is defined by Section 203 of the Penal Codeas follows;

“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

22. There are three essential ingredients of the offence of murder which the prosecution must prove beyond reasonable doubt namely;

(a) Death of a person;

(b) That the accused caused the death through an unlawful act or omission; and

(c) That the accused had malice aforethought.

23. Malice aforethought is defined at Section 206 of the Penal Code thus:

“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—

(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

(c) an intent to commit a felony;

(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

24. In Republic vs Abdi Ibrahim Owl[2013] eKLRa prima facie case was defined as follows: -

“Prima facie”is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”.“Prima facie case” is defined by the same dictionary as“The establishment of a legally required rebuttable presumption”.

25. This was explained inRamanlal Trambaklal Bhatt vs R [1957] E.A 332 at 334 and 335,where the court stated as follows:

“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, the case is merely one “which on full 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…It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

26. The prosecution has established that the deceased died. He did not die a natural death and this was confirmed by the postmortem report. The issue then is whether there is any evidence connecting the accused with the said death.

27. The investigating officer was at pains to explain why he charged the accused with this offence. That he was the last one to be seen with the deceased? No such evidence was placed before court. PW2 could not say the three went after they locked him in the house or wherever they left together or each went his way. The Investigating Officer could not tell the court whether indeed the accused and the deceased were at Lips Bar & Restaurant in Nakuru as he alleged because he never visited the scene. His only evidence of the accused and deceased being at Lips Bar & Restaurant was the accused’s ‘confession’ to him. Even if that were to be true, the Investigating Officer presented nothing before the court to show that the accused had any reason to kill the deceased.

28. The Investigating Officer presented a theory which he sought to support with the evidence of PW5 that the deceased fell of the accused’s motor bike or that the accused’s motor bike was involved in a Road Traffic Accident when the deceased was a pillion passenger and he fell off the bike and sustained injuries which caused his death.

29. His so called eye witness was of a different view. That the deceased was killed elsewhere then his body placed on the road. This witness testimony is that two people came on a motor bike ( he did not see them coming) placed a body on the road (he did not see them do it) and ran to board their motor bike (this is when he saw them). He did not see the registration number of the motor bike neither could he describe the people he saw.

30. Clearly what the prosecution was trying to push before this court is circumstantial evidence. In Republic vs Taylor Weaver and Donovan (1928) 21 CR APP R 20, the principles regarding application of circumstantial evidence were laid as follows:

“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 of evidence to say that it is circumstantial.”

31. The Court of Appeal in Omar Mzungu Chimera vs Repubic, Cr. Appeal No. 56 of 1998, at P. 5 through P. 6 stated that :

“It is settled law that when a case rests on entirely circumstantial evidence, such evidence must satisfy three tests:

(i) the circumstances from which an inference of guilty is to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of a definite tendency unerringly pointing towards 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”

“…..circumstantial evidence in order to sustain a conviction (must be complete and incapable of) explanation on any other hypothesis than that of the guilt of the accused. Circumstantial evidence which falls short of the required standard on all material particulars cannot in law form a basis for a conviction.”

32. While at this point we are concerned not with the guilt of the accused but with whether there is evidence connecting him with the offence, the court is bound to consider whether that circumstantial evidence connects the accused with the offence. From the foregoing, it is evident that there is nothing cogent to attach the accused person to the death of the deceased herein. Based on the evidence on record the deceased prior to his death was in company of PW2, accused person and Nga’ng’a. The deceased, accused and Nga’ng’a left PW2 locked up in the house to go continue drinking alcohol. According to the Investigating Officer, the deceased went buy food and he never rejoined the others until when he was found dead. The alleged eye witness was no eye witness to anything in relation to this charge facing the accused person. He testified to have seen two persons dropping something on the road which turned out to be the body of the deceased. That he averted oncoming lorry from running over the thing on the road which he later saw to be the body of a person.

33. This testimony was inconsistent with the evidence of PW4 the pathologist who testified that the body was hit then run over by a motor vehicle.

34. The Investigating Officer’s theory that the motor cycle the accused was riding fell down with the three of them on it and that this is what caused the death of the deceased is countered by the evidence of the pathologist. In any event no evidence was placed before court to show that the accused rode a motorcycle which was involved in an accident at the material time.

35. The Investigating Officer and the prosecution did not preset any iota of evidence that the accused had issues with the deceased that could amount to malice aforethought. Going by the evidence of PW2 the deceased and the accused worked together and they were good friends and at no time that night or before did they have a disagreement. Clearly thereof Section 306(2) of the Criminal Procedure Code cannot kick in.

36. I find then that the prosecution has failed to establish a prima facie case as required by Section 306(2) of the Criminal Procedure Code. I proceed under Section 306(1) of the CPC, to find that there is no evidence that the accused committed the offence, and make a finding of not guilty.

37. The charge of murder is dismissed and the accused person is acquitted accordingly.

38. The surety is discharged cash bail be refunded to the depositor.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 17TH DAY OF MARCH 2022.

Mumbua T Matheka

Judge

In the presence of;

C/A Edna

For state: Ms. Murunga

For accused: Mr. Omenta

Accused: Present