[2022] KEHC 13671 (KLR)

Republic v Lumonye & 2 others (Criminal Case 25 of 2019) [2022] KEHC 13671 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13671 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 25 of 2019

WM Musyoka, J

October 7, 2022

Between

Republic

Prosecution

and

Jeneva Lumonye

1st Accused

Sabestian Mutanyi

2nd Accused

Stanslous Chumba

3rd Accused

Ruling

1. Jeneva Lumonye, Sabestian Mutanyi and Stanslous Chumba are charged with murder contrary to section 203 of the Penal Code, cap 63, laws of Kenya, as read with section 204 of the Penal Code. The particulars of the offence allege that on April 20, 2019, at Shilachi Village, Shiseso Sub-Location, Shisele Location of Kakamega South Sub-County, within Kakamega County, jointly murdered Florence Khamati, hereinafter referred to as the deceased. They pleaded not guilty to the charge on May 3, 2019. The hearing of the prosecution’s case commenced on January 23, 2020, seven witnesses testified.

2. The first on the stand was Shem Okubayi Itaya who testified as PW1. He stated that he heard commotion at the home of the deceased, on April 20, 2019, he rushed there, and found her dead already. Her children were fighting with the children of a neighbour he identified as Imbenzi. He did not see any injury on her body.

3. Hannyloveh Khakai Shamalandi testified as PW2. She was a daughter of the deceased. She described how the accused persons were beating her on a pathway just outside her parents’ home, over a dispute over a man. The deceased came to her rescue. The deceased was pushed by accused I, and fell down. She emphasised that accused I only pushed her, not beat her . The deceased picked herself up, and held the witness by her hand and escorted her home. The accused persons followed them home, and continued to beat her. The deceased intervened once again, and was hit by accused III on the abdomen, and she fell down, and died. She described the deceased as asthmatic.

4. Herman Ambokohayo testified as PW3. He said that by the time he got to the home of the deceased, the deceased was already dead. He did not note any injuries on her body. He said that he was not aware whether she had any aliments.

5. Josephine Ayuma Omusotsi followed as PW4. She was at the scene when the quarrel and beating of PW2 was at its peak. The deceased came to the scene at the pathway to assist PW2. She was pushed by accused III, and she fell down. She rose up and went back to her house. The accused followed her. The deceased fell down along the way, according to PW4, on her own, as nobody had touched her, or beat her, before she fell.

6. Isaya Akonya Itayo testified as PW5. He was among those who went to the home of the deceased, and found that she had died.

7. Dr Dixon Mchana testified as PW6. He was the pathologist who did the autopsy on the body of the deceased. Externally, the body had non-extensive bruises on the right forearm. There were no fractures. No defence injuries. Internally, there was no evidence of chronic ill-health, nor evidence of recent medical intervention prior to death, and no evidence of poisoning. The only things noted were small patches on the lungs and heart, patches on the heart, extensive frothing in the lungs, and a mild swelling of the brain. Everything else was normal. The pathologist opined that the cause of death was sudden cardiac arrest or heart attack. He stated that the sudden death suggested a natural cause. He said that the single injury, the bruising on the right forearm, was attributable to the fall following sudden death. He ruled out foul play, saying that it was difficult to say or conclude that the deceased was assaulted.

8. Police Constable Sila Kipruto Cheruiyot, PW7, was the last witness. He was in the police party that went to the scene after the death was reported. They arrested the accused persons, and removed the body from the scene and took it to the mortuary. He said that the body had no visible injuries.

9. At this stage I am required in law to decide whether to put the accused persons on their defence or not. I should determine whether a prima facie case has been made out to warrant putting on them on their defence. What amounts to a prima facie case was stated in Ramanlal Trambaklal Bhatt v R [1957] EA 332 (Sir Newnham Worley P, Sir Ronald Sinclair VP & Bacon JA), as one in which a reasonable court, properly directing its mind to the law and the evidence, could convict, if no explanation was offered by the defence.

10. The elements of the offence of murder, as set out in section 203 of the Penal Code, are the fact of death, the cause of the death, the role of the accused person in the cause of the death, and the fact that the death is caused by the accused with malice aforethought.

11. From the material before me there is prima facie proof that the deceased in fact died. Her lifeless remains were seen by all the prosecution witnesses who testified, that is to say PW1, PW2, PW3, PW4, PW5, PW6 and PW7. On cause of the death, PW6 conducted the post-mortem and concluded that she died of natural cause, which he opined was a heart attack. As death was attributed to natural causes, where foul play, including assault, were ruled out, it can safely be concluded that the accused persons played no role in the cause of death, and the issue of malice aforethought should not arise.

12. The standard of proof in criminal cases is put at beyond reasonable doubt. The prosecution, in this case, was required to establish that the death of the deceased herein arose directly from an act or omission on the part of the accused persons. It would only be after that was established that the accused could be called upon to give an account. PW2 and PW4 were the eyewitnesses. Both stated that the deceased was pushed and fell on the land belonging to accused I. PW2 said it was accused I who pushed her, while PW4 said it was accused III. They also differed on the events that followed thereafter. PW2 stated that the terminal fall happened after the deceased was hit by accused II and III, while PW4 said she fell on her own, without anyone touching her. So, there are two conflicting narratives there. But the two agree that she initially fell after a push by either accused I or accused III.

13. The question is whether her death was occasioned by the first fall or not. That can only be answered by the medical evidence from the pathologist. The pathologist ruled out assault as the cause of death, for there were no injuries consistent with assault. None of the other witnesses noted any external injuries on the body of the deceased. That could suggest that the testimony of PW4 is more reliable or believable than that of PW2. The pathologist attributed the only injury noted to the fall itself, rather than it being the cause of the fall. The question would be, which fall? The first or the second? The pathologist stated that the injury was from the terminal fall, meaning the second one. The question still remains, as to whether the first fall could have triggered the heart attack, which caused the sudden death, leading to the second fall. It was not suggested nor proved that the deceased had underlying medical conditions which, combined with the sudden push, could have triggered the heart attack. That was not addressed in the medical evidence. That was critical, for if the heart attack had something to do with the first fall, then the accused persons responsible for the first fall would have been culpable of some offence. The frothing and the patches on the heart and lungs were not explained. However, PW6 was the expert. He returned an opinion that the cause of death had nothing to do with assault, but something to do with a heart attack, whose trigger he did not express an opinion on. More should, perhaps, have been done, with respect to the medical evidence. As it is, the evidence falls short of the required standard.

14. As the prosecution has not established a sufficient connection between the accused persons and the death of the deceased, I hereby find and hold that I do not have before me material upon which I can convict them, were they not to offer any explanation. I am not satisfied that a prima facie case exists to warrant their being be put on their defence.

15. That being the case, I shall accordingly find the accused, Jeneva Lumonye, Sabestian Mutanyi and Stanslous Chumba, not guilty and acquit them, under section 306(1) of the Criminal Procedure Code, cap 175, laws of Kenya, of the charge of the murder of Florence Khamati contrary to section 203 of the Penal Code. They shall be set free, if they be in remand custody, unless they are otherwise lawfully held.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 7TH DAY OF OCTOBER 2022. W MUSYOKAJUDGEMr Erick Zalo, Court Assistant.Ms Kagai, instructed by the Director of Public Prosecutions, for the Republic.Mr Mbaka, Advocate for the accused persons.