[2024] KEHC 2176 (KLR)

Republic v Kimanzi & 2 others (Criminal Case 19 of 2019) [2024] KEHC 2176 (KLR) (5 March 2024) (Judgment)

Neutral citation: [2024] KEHC 2176 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Case 19 of 2019

KW Kiarie, J

March 5, 2024

Between

Republic

Prosecution

and

Fredrick Makau Kimanzi

1st Accused

Lawi Mutalii Gitari

2nd Accused

Alex Onyango Arot

3rd Accused

Judgment

1. Fredrick Makau Kimanzi, Lawi Mutalii Gitari and Alex Onyango Arot are charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on the 27th /28th day of April 2019 [sic], at Status Lodge, in Ndhiwa Sub County of Homa Bay County, jointly with another, murdered Abdinasir Abdulahi Ahmed.

3. When the deceased went to Status Lodge in Ndhiwa, he probably wanted to have fun before retiring for the night. That was not to be. An incident that was triggered by a spotlight snuffed his life.

4. According to the prosecution, the deceased was accused of stealing the spotlight of the first accused. The three accused persons fatally beat him.

5. Fredrick Makau Kimanzi, the 1st accused, in his defence, contended that when he was dancing at the Lodge, he realized his spotlight was missing. He went out and saw the deceased with a spotlight. When he asked him to allow him to check it, the deceased became violent and accused him of calling him a thief. A struggle over the spotlight ensued. The deceased climbed on a table and attempted to kick him. This was when he fell and injured his head at the back.

6. On his part, Lawi Mutahi Gitari, the second accused, testified that when some commotion attracted him, he went and found the first accused. He saw the deceased being restrained by members of the public. Accused 1 alleged that the deceased had stolen his spotlight. Since the first accused was drunk, he summoned other officers who were around and took the first accused away.

7. The 3rd accused contended that he went and found the deceased on top of a table and was being restrained by members of the public. The 1st accused was asked by his colleagues to leave the scene, which he did. Like his co-accused, he denied to have been involved in beating the deceased.

8. The issues for determination are:a.How did the incident that led to the death of the deceased occur;b.Whether any of the accused beat the deceased; andc.Whether the offence of murder was proved against any or all the accused.

9. Wilfred Omondi Omolo (PW2) testified that he was at the Status Lodge at about midnight on the material day. Before going to the Lodge, he was in another bar. The deceased was beaten inside the bar by the accused persons. He said the three were police officers. He intervened, and the trio told him to keep off their affairs.

10. The evidence of Abdallah Odhiambo Owiti (PW4) was that the deceased was beaten by the first and the third accused persons. He further said that the two officers were throwing bottles in the Lodge.

11. Calvince Obuya Okech (PW5) was declared a hostile witness after he had given two versions of the incident. The first version was that the deceased, whom he referred to as Oria, was beaten by a single man. However, during cross-examination by the prosecutor, he changed and testified that two AP officers beat the deceased. He did not testify who these two officers were.

12. Another witness who was declared hostile was Olome Ambani Bernard (PW6). He testified that the deceased was fighting with a man. He, the deceased, threw a kick and fell. This is when he was injured on the head. During cross-examination by the prosecutor, he changed and said that three AP officers beat the deceased.

13. The evidence of a hostile witness has very little, if any, evidential value. The Court of Appeal in Batala v Uganda [1974] EA. 402 at page 405 said:The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable. It enables the party calling the witness to cross-examine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile, and it can be given little, if any, weight.This is the unfortunate situation in which PW5 and PW6 find themselves.

14. Apart from their evidence being self-contradictory, they contradicted each other during cross-examination. PW5 said that two AP officers beat the deceased, while PW6 said three AP officers beat him.

15. The other evidence adduced against the accused persons was that of PW2. According to this witness, the deceased was beaten by the three accused persons, whom he said were AP officers. He claimed to have known them before the incident. It, however, turned out that the third accused was not a police officer but a driver with the County Government of Homa Bay. He produced his appointment letter as an exhibit (defence exhibit 4). His evidence that he knew the three accused for slightly over a year was discredited by the production of a redeployment letter as an exhibit (defence exhibit 1). It showed that the first accused was redeployed to the headquarters from the Kamata AP post through a letter dated February 18, 2019. On the same date, the accused two were redeployed to the headquarters from the Ombo AP post. The Court of Appeal in the case of Ndungu Kimanyi v Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.

16. Given the many contradictions, the prosecution has failed to prove its case to the required standards against the accused persons. Each is, therefore, acquitted of the offence of murder and set at liberty unless otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 5THDAY OF MARCH 2024KIARIE WAWERU KIARIEJUDGE