[2022] KEHC 11544 (KLR)

Republic v Masinde (Criminal Case 30 of 2019) [2022] KEHC 11544 (KLR) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11544 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Case 30 of 2019

LK Kimaru, J

May 17, 2022

Between

Republic

Prosecutor

and

Geoffrey Wekesa Masinde

Accused

Ruling

1. The accused Geoffrey Wekesa Masinde was charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 1st November 2019 in Trans Nzoia County, he murdered RNW. When the accused was arraigned before this court, he pleaded not guilty to the charge. The prosecution called six (6) witnesses in a bid to establish the accused’s guilt. After the close of the prosecution’s case, the prosecution and the defence filed their written submissions on whether the accused has a case to answer and therefore should be put on his defence.

2. It was conceded by both the prosecution and the defence that the nature of evidence adduced against the accused was circumstantial. There was no eye witness account on anyone seeing the accused commit the offence. The evidence that was however adduced was circumstantial. It was the prosecution’s case that the accused was the last person to be seen with the deceased prior to her dead body being discovered by members of the public. According to PW1, Benson Bakari and PW4 Caroline Nanjala on 31st October 2019, they saw the accused with the deceased. The accused and the deceased were in a drinking den at Birunda. PW1 last saw the deceased with the accused at 10. 00 pm, both were drunk. PW1 testified that he heard the deceased tell the accused that she wished to go home to rest for the night. The accused insist that he would accompany the deceased home. The two of them then left the drinking den.

3. The body of the deceased was discovered on the following day by the road side. She had been killed. According to PW6 P.C. Purity Longole, when she visited he scene of crime, she found the body of the deceased lying naked. The deceased was wearing a red pant while she faced the ground. She had multiple injuries. Her investigations established that there were two scenes of crime which were about 2 kilometres apart. In the first scene, there were bloodstains, there was also maize flour which had been poured on the ground. There was a hair comb, body oil and torn green carrier bag. These items were identified to belong to the deceased. The body of the deceased was found about 2 kilometres away. PW6 formed the opinion that the location where the body of deceased was found was where the body was dumped after the deceased had been killed at the first scene of crime.

4. A scenes of crime officer took photographs of the scene and of the body of the deceased. Post-mortem on the body of the deceased was performed by PW3 Dr. Dennis Nanyingi at Kitale County Hospital. Prior to the post-mortem, the body of the deceased was identified by PW2 MM, the deceased’s father. On external examination, PW2 saw a 3 cm wound on the left parietal region of the head. There were multiple bruises on the face and neck area. There were also multiple bruises on chest and abdomen areas. The deceased also had bruises on the left and right thighs. On internal examination, there was blood in the peritoneum. The left ventricle was empty. There was haematoma on the left parietal region of the head. PW3 formed the opinion that the deceased’s cause of death was head injury secondary to assault. He produced the post-mortem report as prosecution Exhibit No 1.

5. PW6 testified that on conducting investigation, she established that the deceased was last seen with the accused before her death. He arrested the accused with two other suspects who were, however, later released after investigations failed not connect them with the crime. In respect of the accused, she made the decision to charge him after he found blood stains in a green T-shirts that was positively identified to belong to the accused. The blood stained T-shirt was sent to the Government chemist for DNA analysis to be done. PW5 Polycarp Lutta Kweyu, a principal chemist working at the Kisumu Government Chemist department testified that when he conducted DNA analysis on the blood from the accused’s green T-shirt, he established that the blood did not belong to the deceased. In essence, the DNA analysis ruled out the accused as having been near the deceased when she met her death. PW6 conceded that in the absence of such evidence connecting the accused with the death of the deceased, the prosecution had no other direct evidence other than circumstantial evidence.

6. The Court of Appeal in PON vs Republic[2019] eKLR held thus in regard to the circumstances under which circumstantial evidence can form a basis for conviction:“To base a conviction entirely or substantially upon circumstantial evidence, it is necessary that guilt of the suspect should not only be rational inference but also it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistence with innocence, it is the duty of the court to find the suspect not guilty.”

7. The Court of Appeal in the above case cited with approval the case of Omar Mzungu Chimeravs Republic Criminal Appeal No. 56 of 1998 where the court held thus:“It is settled law that when a case rests on entirely circumstantial evidence, such evidence must satisfy three tests:(i)The circumstances from which an inference of guilty is to be drawn, must be cogently and firmly established:(ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)The circumstances taken cumulatively should form a chain so compete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

8. In the present case, it was clear that the circumstantial evidence that the prosecution seeks to connect the accused with the death of the deceased is not watertight as to exclude any other persons as the ones who could have caused the death of the deceased. From PW1’s and PW4’s testimony, it was evident that the accused and the deceased were in a romantic relationship. PW1 confirmed that the two were in a good mood when they left the drinking den. They were both drunk. There is no evidence adduced by any witness to suggest that the relationship between the accused and the deceased was anything but cordial.

9. The circumstances in which the deceased met her death suggests that she was sexually assaulted before she was fatally injured. Her body was taken about 2 kilometres from the scene of crime where she may have been killed. In the inebriated state that the accused was in at the time, it was unlikely that he would have killed the deceased then carried her body 2 kilometres away from the initial scene of crime. Furthermore, there was no reason discernable from the evidence why the accused would kill the deceased for sex if there was evidence that the deceased was in a romantic relationship with the accused.

10. The forensic evidence in form of blood samples that were taken from the deceased and the accused did not connect the accused to the crime. The investigator conceded that in the absence of such evidence, the evidence against the accused is tenuous. The evidence that remains is that of mere suspicion which cannot sustain a conviction in the circumstances of this case. In the premises therefore, this court holds that the prosecution has not established the charge of murder brought against the accused to the required standard of proof. The accused is consequently acquitted of the charge. He has no case to answer. He is ordered set at liberty forthwith and released from custody unless otherwise lawfully held. It is so ordered.

DATED AT KITALE ON THIS 17TH DAY OF MAY 2022. L. KIMARUJUDGE