[2022] KEHC 17136 (KLR)

Republic v Kwanaga alias Tinda (Criminal Case 9 of 2020) [2022] KEHC 17136 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17136 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Case 9 of 2020

AC Mrima, J

December 15, 2022

Between

Republic

State

and

Ian Tabitha Kwanaga alias Tinda

Accused

Judgment

1. The accused herein, Ian Tabitha Kwanaga alias Tinda, was charged with an information of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on February 24, 2020 at Maili Saba market, Kiminini sub-county within Trans Nzoia county, the accused murdered Joseph Waweru Njuguna (hereinafter referred to as ‘the deceased’).

2. The accused pleaded not guilty to the information. The case was, hence, heard.

The Prosecution’s Case: 3. The prosecution called a total of 9 witnesses in its bid to establish the culpability of the accused.

4. The prosecution’s case can be summed up as under.

5. At the heart of Maili Saba market, Kiminini sub-county, stood the Mchizi pub establishment. Operationalized and owned by PW3, one Washington Omondi, the Mchizi pub remained a popular joint attended to by, among others, the area residents.

6. That was the case on February 24, 2020 when several people showed up. They included the accused and the deceased who were masters of ceremonies, PW4 one Silas Masika Msambaki who was a vendor selling miraa/khat and PW5 one Abubakar Jibendi Mudiri who was in the company of one Young and one Sules. Young and Sules did not testify. PW5 and his friends were taking some drinks. PW3 was also at the Mchizi pub on that fateful night running his business. There was also PW8 one Paul Omuka, a boda-boda rider within the area.

7. As the night grew dark, the accused and deceased left the pub in a drunken stupor. At around 11:00 pm, PW3 began closing his pub whilst some customers were still indulging in alcohol. PW4 then decided to leave the establishment. PW5 and his friends also left the pub heading home.

8. Suddenly, there were some screams which pierced the would-have-been peaceful night. They were then told by one Augustine (did not testify) that the accused was beating the deceased.

9. PW4, PW5 and his friends (Young and Sules) rushed to the scene where the screams came from. They saw PW2 one John Ngugi who was the deceased’s uncle and one Paul D (did not testify) beating the accused. They explained that the accused was caught hitting the deceased and as a result they pounced on him. Meanwhile, the deceased was lying on a pool of blood. He had an injury on his face and was bleeding from his mouth and nose.

10. PW4, PW5 and his friends were able to identify the accused, deceased and PW2 courtesy of the security lights at the scene.

11. It wasPW4, PW5 and his friends who then informed the deceased’s mother about what had transpired. PW4 left for the home of the mother of the deceased. PW5 also informed the deceased’s wife one Rose Nakhumicha who testified as PW6.

12. PW6 rushed to the scene and found the deceased lying and groaning on the ground. She then went and briefed PW3 who was still at his establishment. PW6 sought his assistance to take the deceased person to hospital.PW6 returned to the scene with PW3. All the while, PW4 also returned to the scene with the deceased’s mother and one Mama Chebet.

13. In a fit of rage, PW3 hit the accused with a club. By then, an angry crowd had gathered. The crowd began hitting the accused while attempting to arrest him. However, the accused managed to escape and vanished.

14. PW2, PW3, PW6 andPW8 then organized for transport and rushed the deceased to Kitale district hospital. On arrival, the deceased was pronounced dead. The body was taken to the mortuary.

15. The death of the deceased morphed into an incident report. The matter was reported at Maili Saba police post by PW6 at around 2:40 am.

16. The report was received by PW7 No 227777 Sgt Moses Simiyu who immediately visited the scene. PW7 observed that there were signs of struggle on the scene. He also went to the hospital and viewed the body of the deceased. It was PW7 who thereafter went to the house of and arrested the accused that very night.

17. PW9 No 92911 Cpl Eda Naliaka was the investigating officer in the case. She recorded statements from potential witnesses and also gathered other evidence.

18. She gathered that a scuffle had ensued between the accused and deceased. The accused overpowered the deceased and severely injured him and as a result, members of the public occasioned injuries on the accused.

19. It was PW1, Dr Alex Wanyonyi, who conducted the autopsy on the deceased. That was February 27, 2020 at Kitale district hospital. The deceased’s body was identified by PW2, who remained present during the post mortem exercise.

20. PW1 observed that the deceased had multiple bruises on the head ranging from 4 – 6 cm. His left mandible and base of skull suffered a fracture. He had a healed surgical scar of about 12 cm in length exhibited from his digestive system. He had increased intracranial pressure from his nervous system. In conclusion, PW1 found that the deceased died as a result of a base of skull fracture caused by severe head injury from assault. PW1 filled in the post mortem report which he produced in evidence.

21. On completion of the investigations, PW9 recommended that the accused be charged with the murder of the deceased. On concurrence by the prosecutor, the accused was so charged.

The Defence: 22. At the close of the prosecution’s case, the court found that the accused had a case to answer. He was placed on his defence. He opted to give sworn testimony.

23. When the matter came up for defence hearing, the judge who had recorded the prosecution’s evidence (Kimaru, J (as he then was) had been elevated to the Court of Appeal thereby left the station. On taking directions, the matter proceeded from where it had reached.

24. In his evidence, the accused stated that on February 23, 2020, after closing his business of selling samosas at around 8:00pm, he took his items home and then went to a nearby shop to purchase beans. He would use them to make samosas for his business. Unfortunately, he did not get the beans.

25. He, however, met his friend one Ketepa (did not testify). They decided to head to Mchizi pub for a drink.

26. The accused narrated how he had sustained injuries on January 19, 2020 following a motor cycle accident. He averred that by February 23, 2020 the accused still had visible stitches on his hand.

27. At one point in the course of drinking at the Mchizi pub, the accused used the injured hand to lift a bottle. That occasioned so much excruciating pain that he let go off the bottle. Resultantly, the bottle fell to the floor and broke. This angered the club owner, PW3. An altercation ensured between them. He was then beaten by PW3 and kicked out of the bar when he retreated to his home.

28. In the morning of February 24, 2020 at around 6:00 am, the accused stated that he was visited by a police officer at his home who was investigating what had transpired at the Mchizi pub the previous night. He accompanied the police officer to the station where he met PW3, the club owner. It later on transpired during the accused’s long wait at the station that PW3 had received a call that the deceased was injured and that PW3 had rushed to the hospital where the deceased had been taken during the very night. PW3 then learnt that the deceased had passed on.

29. While still at the police station, the mother of the deceased came to the station. She inquired from the accused as to who was at the Mchizi pub the previous night and what had transpired. She then left the police station crying. Thereafter, the accused was arrested and charged with the instant offence.

30. The accused discredited the evidence of PW3 stating that he couldn’t have been in two places at the same time. He observed that indeed PW3 hit him as he had testified, but clarified that it was at the bar where PW3 was ejecting him.

31. The accused maintained that he was being framed for the present charges. He knew the deceased very well as his neighbour. He maintained that he had never differed with the deceased and there was no reason for him to kill the deceased. The accused further denied ever seeing the deceased at the club on that fateful night.

32. The accused urged the court to scrutinize the evidence with care and find him not guilty as charged or at all.

33. The accused did not call any witness.

34. After the close of the defence case, parties indicated to the court that they would rely on the evidence on record thus ceded the filing of written submissions.

Analysis: 35. In criminal cases, for the prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against an accused person. The Court of Appeal at Nyeri in Criminal Appeal No 352 of 2012 Anthony Ndegwa Ngari v Republic [2014] eKLR, summed up the elements of the offence of murder as follows: -(a)the death of the deceased occurred;(b)that the accused committed the unlawful act which caused the death of the deceased; and(c)that the accused had malice aforethought.

36. This discussion shall now endeavor to interrogate the above ingredients against the evidence on record.The death of the deceased:

37. There are several ways in which the death of a person may be proved. In some instances, deaths may be presumed. (See section 118A of the Evidence Act, cap 80 of the Laws of Kenya).

38. In this case, the death of the deceased is not in doubt. It was proved in two ways. First, there are several witnesses who vouched that they saw the deceased wounded, bleeding and rushed to hospital where he was pronounced dead. Some witnessed a post mortem examination conducted on the lifeless body of the deceased. The body was later released to its relatives and was subsequently buried.

39. The second way in which the death of the deceased was proved was through the evidence of PW1, a medical doctor who conducted the autopsy on the body of the deceased.

40. PW1 observed a litany of injuries on the head of the deceased. He concluded that the cause of death of the deceased was a fracture at the base of the skull caused by severe head injury from assault.

41. This court, therefore, finds and hold that the death of the deceased in this case was proved to the required standard.Whether the accused committed the unlawful act which caused the death of the deceased:

42. In this matter, there was no eye-witness account on what exactly happened until the deceased died. That is so because the person one Augustine who came up with the report that the accused was assaulting the deceased never testified. No reason was tendered or at all for the failure by Augustne to tender such crucial evidence.

43. Be that as it may, the case, therefore, revolves around circumstantial evidence. In such a scenario, this court is called upon to closely examine the evidence on record, not only as its normal calling as the trial court, but also to ascertain whether the evidence satisfies the following requirements: -(i)The circumstances from which an inference of guilt is sought to be drawn, must be congently and firmly established;(ii)The 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.

44. The foregone principles were set out in the locus classicus case of R v Kipkering arap Koske & Another [1949] 16 EACA 135 and have repeatedly been used in subsequent cases including the Court of Appeal cases of GMI v Republic [2013] eKLR, Musii Tulo v Republic [2014] eKLR among many others.

45. The Court of Appeal in Musii Tulo (supra) in expounding the above principles expressed itself as follows:-4. In order to ascertain whether or not the inculpatory facts put forward by the prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilty, we must also consider a further principle set out in the case of Musoke v R (1958) EA 715 citing with approval Teper v R [1952] AL 480 thus: -It is also necessary before drawing the inference of accused's guilty from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.'

46. Further, the Court of Appeal in Sawe v Republic [2003] KLR 364 at page 372 had this to say regarding circumstantial evidence: -…. 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 hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution and always remains with the prosecution. It is a burden, which never shifts to the party accused…...

47. In this case, the totality of the prosecution’s evidence does not point to the guilt of the accused. First, whereas PW4 and PW5 testified that they found PW2 and Paul D beating the accused for injuring the deceased, interestingly, PW2 did not state as much in his testimony. He only spoke to the fact that he was present when the post mortem was conducted.

48. Second, the said Augustine did not testify and no reason for such was tendered. Third, the accused gave a very strong defence which the prosecution did not impugn. The events as narrated by the accused remained consistent and reasonably true. For instance, the averment that the accused was picked by the police from his home in the morning after the incident for interrogation and that PW3 and the mother of the deceased also came to the police station were not controverted. That state of affairs runs contrary to what PW7 stated as having arrested the accused in the night of the incident. It cannot be possible that the accused was arrested by PW7 in the night of the incident and he was again picked by the police from his house in the following morning for interrogation. The issue was, hence, not properly settled.

49. Fourth, the accused showed the court the injuries he had sustained during the accident when riding a boda-boda thereby corroborating the fact that indeed he was still nursing injuries when he went to PW3’s Mchizi pub with his friend. Surprisingly, none of the witnesses talked about the fracas between the accused and PW3 in the bar.

50. It seems that the accused may have been truly framed in this case. The deliberate failure to record the statement of an eye-witness, one Augustine, and the failure to give any plausible reason for such goes a long way to create the impression that either no meaningful investigations were conducted or the accused was used to shield the real culprits. This court so finds since there is no iota of evidence or at all connecting the accused with the death of the deceased. The accused was, therefore, forced to stand an unfair trial.

51. Whereas circumstantial evidence remains admissible and can be a basis for finding an accused culpable, the instant case raises other hypothesis that creates doubts. This court now finds and hold that the prosecution failed to prove that it was the accused who caused the injuries that led to the death of the deceased.

52. Having found that this element was not proved beyond reasonable doubt, the discussion cannot go further. Any attempt by this court to enter a conviction based on the state of evidence will be unsafe. As such, a consideration of the third limb on malice aforethought only remains academic. This court opts to end this discussion here.

53. In the end, this court finds that the accused is found not guilty of murdering Joseph Waweru Njuguna and he is hereby acquitted accordingly. He is hereby set at liberty forthwith unless otherwise lawfully held.It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 15TH DAY OF DECEMBER, 2022. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of:Mr. Bisonga, Learned Counsel for the Accused.Miss. Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the State.Kirong/Regina – Court Assistants.Judgment – Kitale High Court Criminal Case No. 9 of 2020 Page 8 of 8