[2022] KEHC 13216 (KLR)

Republic v Makokha (Criminal Case E001 of 2020) [2022] KEHC 13216 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 13216 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E001 of 2020

SN Riechi, J

July 21, 2022

Between

Republic

Prosecutor

and

Gilbert Makokha

Accused

Judgment

1. The accused Gilbert Makokha is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence are that Gilbert Makokha on diverse dates between November 15, 2020 and November 17, 2020 at Marofu village in Kimilili Sub-County within Bungoma County jointly with another not before Court murdered Sylvester Wekesa Juma.

2. The case for Prosecution is that the deceased was a boda boda rider. PW6 James Juma Chwala the father of the deceased testified that on November 15, 2020 he met the deceased in the morning and he went to his boda boda business. He did not come back that day. They tried to call his mobile phone but it was switched off. They slept. The following day he did not come too. Witness went to the boda boda stage to make inquiries but nobody said he had seen him. On November 17, 2020 he reported the matter to police. Later one Rogers Madogo informed him that people were alleging that it is him Rogers who had killed him. In the evening he received information that a body had been recovered in a well and taken by Police to the mortuary. He saw the body which he would see had been sprayed with acid.

3. PW7 Edwin Barasa was checking his crops at his farm on November 17, 2020 when at 4 pm he went to where there was a well and noticed one of the offcuts covering the well had been removed. He asked for a torch and flashed inside the well. He saw a body of a person. He informed the village elder who called the police. The Police removed the body the next day.

4. PW1 PWW a student at [particulars withheld] Secondary School in Form 3 was at her home when at 6-7 pm accused Gilbert Makokha came with another boy she did not know; while riding on a motor cycle. They asked for chang’aa and she told them it was not there but was available in a next home. Accused left the motor cycle and they went with the other person to drink. They did not come back. On November 17, 2020 the accused and his friend came and took the motor cycle. She only knew the accused and did not know the other person.

5. PW2 David Barasa Murunga met the deceased on November 15, 2020 at 2 pm while riding a motor cycle and deceased told him he was going on his duties. He did not see him again. After 2 days he received information that deceased had been found in a well. When he met the deceased he was carrying 2 passengers; whom he did not know.

6. PW3 Agnes Nekesa Barasa was selling chang’aa at her home when accused went there with 3 other people. She sold them chang’aa for Sh 80. They drank the chang’aa and boarded the motor cycle and left. Later she received information that a body had been recovered in a well 500 metres away from her home. When the body was retrieved she recognized it as of one of the people who were with the accused on that night.

7. PW5 Ruth Nanyama Barasa was at her home with her mother on the night of 15-November 16, 2020 when 3 people went to their home to buy chang’aa. She recognized one of them as Gilbert the accused. They bought chang’aa for Ksh 80 and they went away using the motor cycle. The next day she received information that a person had been found in a well. She recognized the person whose body was removed as among those who were with accused.

8. On cross-examination she stated she only saw the person whose body was removed that night for the first time.

9. PW8 No 237384 PC Evans Chesebe the Investigating Officer who was assigned by the DCIO to investigate the incident of murder where a suspect was already in custody. He interrogated the accused who was a suspect and recorded statement. A post-mortem was done and upon the evidence of the witness Ruth and Agnes it was evident that accused was the last person seen with the deceased. He caused him to be charged with present offence.

10PW5 Dr Nyongesa Reuben produced a post-mortem report prepared by Dr Achenzo who found deceased had injury on right eye, bleeding from right ear, bruises on scalp, fracture of the skull leading to bleeding into the brain. He formed opinion that the cause of death was due to severe head injury.

11. The accused gave sworn evidence in his deefence. He stated his real name is Amos Makokha Wangila but in this file he responded to the names of Gilbert Makokha. He is the accused in this case. He testified that he was at his home when Police Officers went and arrested him for possession of chang’aa and took him to Kimilili Police Station where they demanded Sh 50,000 which he did not have. While at the Police Station he was informed of the charge. He testified that on November 16, 2020 he was making bricks until November 17, 2020 at 1 a.m. when he went to sleep.

12. In cross examination he stated he knew the Prosecution witness PW1 P, PW3 Agnes and PW4 Ruth as they are neighbours and they call him Gilbert.

13. The accused called PW2 Silvia Makokha Nasimiyu who testified that she was present in November 18, 2020 when accused who is her father was arrested for possession of chang’aa. The next day she heard he was taken to Bungoma and charged with present offence.

14. Mr Kundu for accused filed written submissions. Counsel submitted that it is clear the body of the deceased was recovered from the well. He submitted that none of the Prosecution witnesses actually saw or witnessed the accused or any other person kill the deceased. There was no direct evidence linking the accused to the death of deceased. He submitted that Prosecution relied on circumstantial evidence, which in this case is insufficient.

15. The accused is charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 provides:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”.

16. The elements of offence of murder which the Prosecution must prove beyond reasonable doubt are:a.The fact and cause of death.b.The unlawful act or omission causing the deathc.That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d.That the accused committed the unlawful act with malice aforethought.

17. There is no dispute that the deceased is dead. This was confirmed by the Prosecution witnesses including the father of the deceased. PW5 Dr Nyongesa Reuben produced a post-mortem which confirmed the death and that death certificate No 1245231 was issued to confirm the same. He also testified that the cause of death was due to blunt head injury.

18. The next issue for determination is whether the accused is the one who committed the unlawful act that led to the death of deceased.

19. PW1 PW testified that while at her home she saw accused go there with 2 other people on a motor cycle. They left the motor cycle there and came for it the next day. She knew accused well but did not know the other 2 people. PW2 David Barasa Murunga testified that he was the deceased Silvester Juma riding his motor cycle carrying 2 passengers he did not know. PW3 Agnes Wekesa sold chang’aa to accused who was with 2 other people she did not know. However when the body was retrieved she recognized it as that of one of the people who were with accused. PW4 Ruth testified on similar term as her mother PW3 PW8 PC Evans Chesebe the Investigating Officer testified that after recording the witness statement of Ruth (PW4) and Agnes (PW3) it was evident that accused was the last person seen with deceased. It is on this basis that the accused was charged.

20. As submitted by Mr Kundu for accused, none of the Prosecution witnesses was an eye witness to the killing of the deceased. There was therefore no direct evidence to link accused with the death. However the Prosecution can prove a charge by direct evidence or by circumstantial evidence.

21. In the case of Ahamad Abolifathi Mohammed & Another v Repubic 2018 KLR the Court held in regard to circumstantial evidence:“However, it is truism that the guilt of an Accused person can be proved by either direct circumstantial evidence, circumstantial evidence is evidence which enables a Court to deduce a particular fact from circumstances or facts that have been proved such evidence can form a strong basis for proving the guilt of an Accused Person just as direct evidence”

22. The conditions for the application of circumstantial evidence in order to sustain a conviction in any criminal trial were laid down in the case of Abanga Alias Onyango v Republic – Criminal Appeal No 32 OF 1990 (UR) the Court held 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 guilty is sought to be drawn, must be cogently and firmly established (ii) those circumstances should be of a definite tendency unendingly 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”

23. In this case PW8 PC Evans Chesebe testified that he caused accused to be charged with the murder premised on the fact that he was the one last seen with the deceased. The Prosecution therefore was relying on the doctrine of last seen. In addressing the doctrine of last seen the Court of appeal in David Munyui Chiragu & another v Republic [2017] KECA 342 KLR stated:Regarding the doctrine of “last seen with” we will revert to Nigerian case of Moses Jua v The State (2007) LPELR-CA/IL/42/2006. The Court, while considering the ‘last seen alive with’ doctrine held:“Even though the onus of proof in criminal cases always rests squarely on the Prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the Court is justified in drawing the inference that the accused killed the deceased”

24. In yet another Nigerian case considering the same doctrine, in Stephen Haruna v The Attorney General of the Federation (2010) 1 iLAW/CA/a/86/c/2009 the Court opined thus:“The doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death.Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial Court and an appellate Court will be justified in drawing the inference that the accused person killed the deceased.”

25. Quoting from another jurisdiction, to be specific India, the Courts there have developed the doctrine further. In the case of Ramreddy Rajeshkhanna Reddy & Another v State of Andbra Pradesh, JT 2006 (4) SC 16 for instance the Court held:“That even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the Courts should look for some corroboration.”

26. For the prosecution to successfully rely on the doctrine of last seen it must prove:1. That the accused was seen by witnesses in company of the deceased.2. That the deceased was found dead.3. That there was no possibility of the deceased to have left the company of the accused.

27. In this case while the Prosecution witnesses knew the accused well, they testified they did not know the deceased well. They only stated they saw the body and recognized it as that of the person with the accused. That being the case this Court needs to be cautious and more particularly in this case where there is no other corroborative evidence.

28. Considering all the evidence I find the evidence linking the accused with the death of deceased does not attain the standard of proof in criminal cases of beyond reasonable doubt. I therefore find the accused Gilbert Makokha not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and acquit him accordingly. The accused Gilbert Makokha be set at liberty unless otherwise lawfully detained.

Dated at Bungoma this 21st day of July, 2022. S N RIECHIJUDGE