[2022] KEHC 11676 (KLR)

Republic v Masavu (Criminal Case 59 of 2020) [2022] KEHC 11676 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11676 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 59 of 2020

SN Riechi, J

June 8, 2022

Between

Republic

Prosecutor

and

Walter Mulianga Masavu

Accused

Judgment

1The accused Walter Mulianga Masavu is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2The particulars of the offence are that Walter Mulianga Masavu on the 2nd day of November, 2020 at Chebukwabi Sub-location, Chebukwabi location of Kimilili Sub-County within Bungoma County with others not before court murdered EMmanuel Wanjala Wambulwa.

3The case for the prosecution is that on 2. 11. 2020 PW2 Atilait Naliaka Wekesa was in her house when she found Brian Masafu in her sitting room with the deceased Emmanuel Wanjala Wambulwa. She then saw Brian hold deceased on the throat intending to suffocate him. While there the mother of Brian called Jackline came into the house and attacked her on the eyes with a fist. The witness fell down. She saw Jackline hold the deceased’s private parts. The daughter of Jackline also came and her son called Emmanuel also came hit her. She screamed and Walter Masafu (accused) came to her rescue. He also went to where the deceased was and helped him to stand up and took him outside. While outside other people came and started beating the deceased. She called her daughter Sharon and they locked themselves in the house. The next day she sent one Lamek to go and check on deceased. Lamek did not find him. She went and reported to the village elder. On 4. 2.2020 she received information that deceased had died.

4On being cross-examined by M/s Lunani for accused she stated that she has a daughter called Sharon and she did not know that she had a love affair with Brian and the deceased. She also stated that she did not see accused hit the deceased but only left with the deceased from the house.

5PW2 Robert Mukwana Masengeji was in the house of Mercy Wambulwa when he heard screams from the house of Atilait Naliaka. He came out and saw accused holding the deceased and walking with him. He also saw accused’s wife, Jackline, son Brian and Cynthia. They were walking towards accused’s home. He then heard Cynthia crying saying they have killed him. He went in his home and slept. On being cross examined he stated he only saw accused walking with deceased and did not see accused assault the deceased.

6PW4 Samwel Wasike Masafu was in his house when he heard screams from the lower part of his farm. He came out and noticed that the screams were from the house of Atilait (PW1) to whom he had sold land. He then heard a person say he is going to kill a person. He recognized the voice as that of Brian. He then saw accused and another person walking on the road. Later the body of deceased was found in the farm of Leonard Wafula Masafu.

7PW6 7703 PC Patrick Naserema Disoso attached to DCI Kimilili accompanied the OCPD to the scene of murder 3 km from the station. They found the body of the deceased at a farm which had decomposed. He had injuries on the neck and head. They received information that accused was a suspect who was called and came. He recorded statement of witnesses. On cross examination by M/s Lunani he stated he was the investigating officer and from the statements, nobody saw accused kill deceased nor did he have any motive to do so. He confirmed that in his covering report he stated that deceased was killed by unknown people. In his report he stated accused and his wife only went to separate Brian and deceased.

8PW5 Dr. Reuben Nyangusa who performed the post mortem on body of deceased on 7. 11. 2020 testified that the deceased had bruises on nose, chest, discharge from ears and nostrils, fracture of 5-6th rib, fracture of skull and bleeding in the brain. He formed opinion that the cause of death was due to brain injury due to assault using a blunt object.

9The accused gave sworn evidence in his defence. He testified that he is a village elder. On 2. 11. 2020 he heard screams from the house of Atilait (PW2). He and his wife Jackline went there. On arrival he found deceased and his son Brian Masafu fighting. Deceased was a son of Moses Wambulwa who is his nephew and therefore his grandson. He found Emmanuel (Deceased) Brian and Sharon fighting. He ordered them to stop fighting. He told Emmanuel (deceased) to go home and he took his son Brian home. Brian told him that the fight was over the girl called Sharon.

10The 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.”

11For the prosecution to prove a charge of murder, it must prove beyond the reasonable doubt the following elements of the offence: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.

12On the fact and cause of death PW5 Dr. Reuben Nyangosi who performed the post mortem on body of deceased testified that the deceased had bruises on nose and chest, had discharge from nostrils and ears, fracture on the 5th-6th rib, fracture of the skull and bleeding on the brain matter. He formed opinion that cause of death was due to brain injury inflicted by blunt object. This witness confirmed the death of deceased and that the death was caused by injuries inflicted on deceased using a blunt object. Who inflicted these injuries?

13PW1 Kennedy Wafula Natembeya only identified the body of the deceased at Dreamland Mortuary for post mortem. PW2 Atilait Naliaka testified how she was attacked on that night by the family of the accused who included accused’s wife Jackline, Son Emmanuel. She testified that accused responded other screams and when he came he assisted deceased to stand up and that other people came and started beating the deceased. Accused then took the deceased away.

14PW3 Robert Mukhwana Musengeji heard screams from the house of Atilait Naliaka. He went there and on the road he saw accused and his wife and children walking away with the deceased. He confirmed in cross examination that he only saw accused walking with deceased and did not see accused assaulting the deceased.

15PW4 Samwel Wasike Masafu testified that upon responding to screams from the house of Atilait (PW2) he went outside the house and saw accused walking on the road with another person.

16PW6 P.C Naserema Patrick Disoso the Investigating officer visited the scene where they found the deceased in a farm with injuries on the neck and head. The body had started decomposing. He recorded statements of witnesses. He stated that from his investigations no one saw accused kill the deceased nor did he have a motive to do so. He established that accsued and his wife had gone to separate Brian and deceased who were fighting. In his covering report he indicated that deceased was killed by unknown people.

17From the evidence of these prosecution witnesses, none testified that he saw accused beating the deceased. They all agree that the deceased and one Brian were fighting over Atelait (PW2’s) daughter called Sharon and that accused came in and separated them.

18The accused in his defence testified in almost similar terms. Analyzing the evidence, it is clear that none of the prosecution witnesses saw accused inflict injuries on the deceased and his presence was to arbitrate and stop the fight between his son Brian and the deceased. This he succeeded and had the deceased walk away from the scene.

19There being no direct evidence, the prosecution was at liberty to prove facts from which the court can make an inference that it is accused and no other who inflicted the injuries. The prosecution had therefore to tender circumstantial evidence. I have considered the evidence of the witnesses and I am unable to discern any circumstantial evidence from which this court can make such inference. There being no such direct or circumstantial evidence against the accused, I find that the prosecution has not proved a charge of murder against the accused person. I therefore find the accused Walter Mulianga Masavu 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 Walter Mulianga Masavu be set at liberty unless otherwise lawfully detained.

DATED AT BUNGOMA THIS 8THDAY OF JUNE, 2022S.N RIECHIJUDGE