[2022] KEHC 12516 (KLR)

Republic v Malava (Criminal Case 10 of 2017) [2022] KEHC 12516 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12516 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Case 10 of 2017

RK Limo, J

May 19, 2022

Between

Republic

Prosecution

and

Justus Musango Malava

Accused

Ruling

1. Justus Musango Malava the accused herein is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars as per the information presented to this court is on the 7th December, 2016 at Musosya village in Muvitha Kathemboni, Nthungoni location within Kitui County, he murdered Solo Suala, the deceased in this case.

3. The accused herein pleaded not guilty and the prosecution has called a total of seven witnesses and the prosecution’s case is purely hinged on circumstantial evidence.

4. The first prosecution witness Sarah Mangiu James (PW1) in a brief testimony informed this court that on 7th December, 2016, she saw the accused driving two bulls he believed belonged to the deceased and that that the knowledge was due to the fact that he was a neighbour to both the accused and the deceased.

5. Katunge Mutila (PW2) on his part testified that on 7th December, 2016 he saw someone driving away a bull that had strayed into her compound at around 6am. He was not able to recognize the person but only noted that he was in a white T-shirt with brownish trouser.

6. Sabeth Kitonyo (PW3) stated that she saw the deceased on 6th December 2016 as he took his two bulls to the cattle dip. The witness then told the court that she learnt about the death of the deceased on 11th December 2016 after she received a call from her area chief who asked her to go to the home of the deceased. That upon reaching the home, the witness stated that she saw the body of the deceased which had started decomposing. She also stated that she was informed by PW4 that the accused had been seen driving two animals on 12. 12. 2016 which fitted the description of the two bulls belonging to the deceased.

7. Monica Mutisya (PW4) informed the court that she saw the accused handling her deceased uncle’s bulls on 7th December 2016 and driving them towards Kisivuni market. The witness also informed the court that she was familiar with the accused and his family. She also stated that she knew that the accused also owned some bulls.

8. Kamuti Muinde (PW5) on his part testified that on 7. 12. 2016 he saw the accused whom he referred to as Musengo Malane with two bulls at Kavisuni market. He testified that the accused was selling the bulls and that the prospective buyers asked him if he knew the accused and that he answered in the affirmative because he knew him well since his childhood. He further testified that one of the bulls was brown like ‘’Chapati’’ and that the accused sold the bulls at the market.The witness further testified he later received information that Solo Syalo (deceased) died on 10th December, 2016.

9. Festus Syala (PW6) informed the court that he was a brother to the deceased. He stated that he learnt about the death of his brother on 7th December 2016. He did so after being informed by a village elder and the local area chief. He stated that he went to his brother’s home where he found his body in a bush within the compound. His observation was that the body had already started decomposing. He stated that the police came and carried the body to Kitui General Hospital. He also stated that he was informed by his sister Sabeth Kitonyo (PW3) who had been informed by another person, Monica Mutisya, (PW4) that the deceased had been seen with the accused a few days prior to the discovery of the deceased. He stated that the deceased was driving his two cows in the direction of a cattle market. He added that he informed the police of the new information and that the police started looking for the accused who was missing from his home before he was arrested by members of the community on 11th January 2017.

10. PC Eric Onyangi (PW7) an officer from Kivisyani police testified on behalf of his colleague, (Peter Nguthu whom he indicated was on transfer and stated that he was on patrol on 11th December 2016 when he received information from the area chief Nthongoni location that a body had been sighted in the area. He stated that he proceeded to the scene and found a body lying in a bush. He stated that he observed maggots on the body indicating that it was decomposing but he did not observe any injuries. The statement further stated that the officer was informed that the deceased had two bulls and that the accused had been seen selling the two bulls in Kavisuni animal market on 7th December 2016. The statement further indicated that a post mortem was conducted on the body of deceased on 21st December 2016 and that it indicated that the deceased sustained severe head injuries.

11. The prosecution closed its case without tendering medical evidence in terms of post mortem report to indicate the death of the deceased and its cause.

12. This court is now being called upon to determine whether on the basis of the evidence tendered, the evidence is sufficient enough to place the accused person on his defence.

13. This court has considered the evidence tendered by the prosecution. There is no doubt that the prosecution’s case is based on circumstantial evidence. There is also no dispute that there was no medical evidence tendered to show what caused the demise of the deceased. That fact has dented the prosecution case against the accused in a significant way because it is now well settled that for a murder case to be sustained the following elements must be established and proved;a.The death of the deceased and the cause of that death.b.That the accused committed the unlawful act which caused the death of the deceased (Actus reus).c.That the accused had the malice aforethought (Mens rea).

14. I will now look at each and every element on its own and evaluate the evidence to determine if there is a case for the accused to answer.

15. (a)The death of the accused and the causeAs observed above, there was no evidence tendered by the prosecution that indicated the cause of death of the deceased. The deceased was found dead in his compound. A brother of the deceased Festus Syala (PW6) stated that he received news regarding the demise of the deceased and when he went to check out;‘‘On reaching the compound of my brother in a bush, I saw my brother (deceased) lying in a corner. The body had started rotting and maggots had started feasting on the body. The maggots had covered the neck and the whole face. He had clothes. The clothes appeared torn and appeared he had been pulled from somewhere……………’’

16. This court in the face of the evidence tendered has been left in the dark as to what could have caused the death of the deceased. Counsel for the accused submitted that the prosecution did not proof the first two ingredients being the fact of death and its cause as the state failed to produce a post mortem report. It is correct that the prosecution did not produce a post mortem report despite a statement from a police officer indicating that a post mortem was conducted on the body of the deceased. There was also no explanation given to the court for non-production of the same. The Court in Republic versus Hillary Koech Maiyo[2022] eKLR when handling a similar situation to the present case cited the Court of Appeal as follows;‘‘As to the cause of the deceased’s death, it is now settled that, save for instances where the cause of death is obvious, the best evidence in this connection is the evidence of the pathologist who examined the body for purposes of ascertaining the cause of death in terms of the post-mortem report. This was emphasized by the Court of Appeal in Ndungu vs. Republic [1985] eKLR thus:“…Where the body is available and the body has been examined a post-mortem report must be produced, the trial court having informed the prosecution that the normal and straightforward means or seeking to prove the cause of death is by regularly producing the post-mortem examination report as a result of which the medical officer who performs the post-mortem examination is cross-examined…”In the instant case, it was alleged that post-mortem examination was conducted on the body of the deceased; and that it was witnessed by PW3 and PW4. The post-mortem report was however not produced before the Court as was expected. This was because the pathologist who conducted the post-mortem examination was never availed to testify, in spite of numerous adjournments for that purpose. The question to pose, therefore, is whether this omission is fatal to the Prosecution case.’’

17. Similarly, in this present case the prosecution failed to avail the medical evidence despite numerous chances granted to it. In the end, the prosecution chose to close its case without post mortem report or any other medical evidence to prove the fact of death and its cause. The Court of Appeal has rendered itself on situations where trial courts find themselves in a similar situation. In Bernard Reuta Masake versus Republic [2019] eKLR the Court of Appeal took the following view: -“We note that it is not necessary in all cases for medical evidence to be called to support a conviction for causing death. Comparatively, in the Tanzania case of Republic v Cheya & another (1973) EA 500, it was stated:“The absence of medical evidence as to death and the cause of it is not fatal because a post mortem report primarily is evidence of two things; the fact of death and the cause of it. However, the fact of death and the cause of it could be established otherwise than by medical evidence.”(See also Chengo Nickson Kalama v Republic [2015] eKLR, Ndungu v Republic [1985] eKLR and Republic v Frankline Mugendi Miriti & another [2019] eKLR).”The Court of Appeal proceeded to add, at paragraphs 39 and 40 of its Judgment, that:“Except in borderline cases, laymen are quite capable of giving evidence that a person has died. Where there is evidence of assault followed by a death without the opportunity for a novus actus interveniens, a court is entitled to accept such evidence as an indication that the assault caused the death. (See Kashenda Njunga, Francis Kandonga Kangeya, George Musenga Chikatu, Chimunga Kangol Shamuzala and Oscar Maseke Makuwa v The People (1988-1989) Z.R. 1 (S.C.). It is not the requirement of the law that the cause of death must be established in every murder case. It is now established law that homicide can be satisfactorily proved without first establishing the cause of death. (See Seif Selemani versus The Republic in the Court of Appeal of Tanzania at Tanga Criminal Appeal No. 130 of 2005). In a recent decision by the Tanzania Court of Appeal in the case of Mathias Bundala v Republic, Criminal Appeal No 62 of 2004 (unreported) the court stated: -“…….it is not the requirement of the law that the cause of death must be established in every murder case. We are aware of the practice that death may be proved by circumstantial evidence even without the production of the body of the alleged dead person: (See for instance, Leonard Mpoma v Republic (1978) T L R 58).Persuaded by the merits of the above cited comparative decisions, we find that the absence of a post mortem report in this matter did not dent the prosecution case.”Clearly therefore, failure by the Prosecution to avail the pathologist to produce the post-mortem form is not necessarily fatal. It is now trite that where the cause of death is obvious, such as where the deceased was stabbed through the heart or where the head is crushed, a conclusion as to the cause of death can be drawn accordingly.’’

18. The above position taken by the Court of Appeal shows that failure to produce a post mortem report where the ‘‘cause of death is obvious’’ is not necessarily fatal because a trial court can rely on other evidence tendered. The question posed is whether in the circumstances obtaining in this case, one can safely conclude that the cause of death was obvious.

19. In this case, the brother of the deceased identified the body and confirmed that it was indeed his brother. On the cause however, it is difficult to establish the same without medical evidence as it is not obvious. The Police Officer (PW7), he indicated that he did not observe any injuries on the body of the deceased. He however indicated that a post mortem was done but the same was to verify if the deceased died from severe head injuries. This was rather odd as these injuries could have been identified by PW6 who stated that he even assisted the police in carrying his brother’s body to the police vehicle which was parked at a distance from the scene. He did not see the said injuries. It is evident that the cause of death in this case was certainly not obvious, medical evidence was necessary to assist the court and the prosecution establish the same.

20. The prosecution’s failure to tender medical evidence to establish the cause of death or even give an indication on to when the deceased died weakened its case against the accused.

21. (b)Actus reus and Malice aforethoughtThe evidence presented by the prosecution in regard to the above crucial elements are scanty and far too remote to even seek for refuge on the doctrine of circumstantial evidence. The evidence of PW4 shows that she saw the accused handling two bulls she believed belonged to the deceased on 7th December 2016 PW2 stated that she saw a man she could not identify driving a bull which had strayed into her compound.On the other hand, PW5 stated that he saw the accused person selling two bulls at Kavisuni Market. He was uncertain however whether the bulls belonged to him or the deceased. The only thing was certain about was that ‘‘one was brownish with spots like chapati’’. That is all. The only other information he received was that the deceased was found dead on 10. 12. 2016 and that his bulls were missing. It is not clear whether the deceased bulls disappeared before or after the death of the deceased because the deceased was staying alone with no one at the time.

22. This court at this stage is required to evaluate the evidence and determine on a prima facie basis whether the case is sufficient to place the accused person on his defence. The onus of proof is always on the prosecution. In Ramanlal Bhat versus Republic [1957] EA 332 the Court of Appeal rendered itself on this question and stated;“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 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 may not be easy to define what is meant by a prima facie, 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.”In Ronald Nyaga Kiura vs. Republic [2018] eKLR it is stated as follows:“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of Ramanlal Bhat -vs- Republic[1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”

23. It is important to note that pursuant to Section 203 of the Penal Code the prosecution had a duty to prove that the deceased died or must have died as a result of the unlawful omission or commission of the accused. From the evidence here highlighted above, I am afraid that if the accused were to opt quiet for example in his defence if I was to place him there, there is insufficient evidence on record to sustain a conviction.The long and short of this is that this court finds no sufficient evidence indicating that the accused caused the death of Solo Syala (the deceased herein). He has no case to answer and is hereby acquitted accordingly. He shall be set free unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT KITUI THIS 19TH DAY OF MAY, 2022. HON. JUSTICE R.K. LIMOJUDGE