[2022] KEHC 10021 (KLR)

Republic v M’Kiunga & 3 others (Criminal Case 45 of 2016) [2022] KEHC 10021 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10021 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 45 of 2016

EM Muriithi, J

May 12, 2022

Between

Republic

Prosecution

and

Patrick Baariu M’Kiunga

1st Accused

Moses Mwika Kinge

2nd Accused

John Kiili M’Erimba

3rd Accused

Rueben Kaberia M’Kiunga

4th Accused

Judgment

1. The 4 accused persons were jointly charged with the offence of murder C/s 203 as read with 204 of the Penal Code. The particulars of the offence were that the accused “on the 18th day of July, 2016 at Kiolo Kiamuitu Sub-Location in Igembe Central. Within Meru County murdered Robert Munene Kimbura.”

2. At this stage of ruling on case to answer, the court is required to by section 306 (1) of the Criminal Procedure Code to acquit the accused upon a finding of not guilty, if at the close of the evidence from the prosecution it concludes that there is no evidence but the accused or any of them committed the offence:“306 (1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.”

3. The prosecution called 3 witnesses. PW3, Dr. Sheth Mwenda was the examining doctor during the post mortem examination of the body of the deceased who testified that the deceased died from traumatic head injury with a depressed skull fracture and epidural heamatoma.

4. PW 2, Cpl. Sammy Kanali the Investigating officer testified as to what the only identifying witness said the deceased had said in his dying declaration, and as to interrogating one of the accused Patrick Baariu and Moses Mwika who told him that Murithi Baariu had also been involved in the attack on the deceased. No confessions in this regard were recorded by the Police.

5. PW1, Stephen Kembira is the father of the deceased upon whom the whole prosecution case rest and he testified as to the dying statement of his son in his testimony which is set out in full as follows:-“I am Stephen Kembira. I reside at Kangeta. I work as a farmer.On 18/7/2016 at 5. 45am in the morning, I was at home. I received a call from a person named Meme Peter. He told me to go to his home. I went and he told me that he had received from a person at Kiamuguta, Kangeta area information that my son Robert Munene had been cut up. I left to the area where the boy was and I found the body lying on the road with cuts on one leg and on the palm. His leg had been cut below the knee and on the head.We had a vehicle. We were with Meme and others and we took the body and went to the police at Kangeta Police station. At this time, Robert could talk but was incoherent because he had been severely injured. After making report at the police we went to Kangeta Hospital and we were given an ambulance to bring him to Meru Hospital. He was hospitalized. I used to go and visit him at the Hospital.After about 2-3 days when he was getting better he started speaking and when I asked him what happened and where he had been cut he told me that he was at his girlfriend’s place. The girl child of Kiiri. Kiiri is the father. He told me that he had had gone to the home of Kiiri to see the girl and in the night he heard someone calling him. He said it was the voice of one Mwika. The voice told him to get out as his motor bike had gone. My son said he refused to go out saying that he knew where his bike was. When he refused to go out, he said he heard someone asking who was in the house of his daughter. My son was afraid and he refused to go out. He heard the noises from outside. At about 2. 00pm, he said he went out of the house. When he went to get his bike he found people waiting for him at the place. He said that when he went out he found 2 people waiting at the place where he had left his boda boda. It was a red coloured boda boda. He was employed as a rider on casual basis.When he tried to start the bike to leave he was attacked. He was cut up at the scene. He did not tell who cut him but he recognized the voice that called him when he was in the house as belonging to Mwika. He said there were five people and he only identified four of them. He pleaded with them not to kill him calling Mwika who he recognized asking them not to kill him. They did not stop.Munene said that they even pressed his private parts and injured him severely. They then tied him up with a sheet on his head and placed him on the road.Later when we went to hospital I was aked to go and buy tetanous medicine. I did not get it. When I went the following day, I found that Munene had died. It was a date in July 2016. It was after 5 days. It could be two weeks after the incident.On 4/8/2016, I went to hospital to pick the body. We attended post mortem with Jacob Iwetan. I later recorded my statement at Kangeta Police station.Of the people that my son spoke about I only knew Kiiri who is the 3rd accused (pointing to the 3rd accused). I knew him on the day we went to arrest him after the death of my son.Cross-examination By Mr. Kaimenyi for the accusedMy son told me that they had gone to see Kiiri’s daughter. He told me he slept in the girl’s house. He was not at Kiiri’s house but at the girl’s house. It was the girl who showed my son where to sleep. I do not know whether the parents of the girl knew that their girl had a visitor. In the night, my son said he heard the voice of Mwika. It was at night. It was dark. He only said he heard voice and he recognized it as Mwika voices may be similar but if he knew him, he could identify him. My son said he got to the place at 7:00pm in the evening. He left the girl’s house later. When he heard noises he was afraid and he did not get out immediately. He went out at about 1. 00am in the night and he was attacked when he went out.My son said he did not know who attacked him but he said he recognized the voice when he was in the house. My son said he did not know who attacked him. But he was attacked just outside the house in the same compound of Mzee Kiiri. He was then taken to the road. He told me he was attacked at the home.From the place where he had gone to Kiiri’s home and our home is about 5 kilometres. It was in 2016. I am not aware that there was a lot of thuggery during that time. Munene said he got there at 7. 00pm. He left his motor bike outside. He then went out at 1. 00am in the night.The owner of the home should have known who attacked him in his home. When Munene came he did not tell he parents that he had come to the home. It was not the first time to visit the home.When I got a call to go and pick him, I found that he was not fully conscious. He was not able to explain what had happened at this time.It was in July 2016. I cannot remember the date. We got an ambulance at Kangeta because he had serious injury so as to bring him to Meru General Hospital. At General Hospital, he stayed for about 2. 3 days before we started talking to him. I do not recall when he died. It was about the 5th day when I was sent to bring the tetanous medicine.Could it be that he did not recall events as he had severe injury?He told me about the events after he had recovered after sometime in the hospital.Re-examinationNIL.”

6. Critically, as regard the identification of the accused as the attackers PW1 on cross-examination said:-“My son told me that they had gone to see Kiiri’s daughter. He told me he slept in the girl’s house. He was not at Kiiri’s house but at the girl’s house. It was the girl who showed my son where to sleep. I do not know whether the parents of the girl knew that their girl had a visitor. In the night, my son said he heard the voice of Mwika. It was at night. It was dark. He only said he heard voice and he recognized it as Mwika voices may be similar but if he knew him, he could identify him.”

7. There was no evidence as to how long and well the deceased had known Mwika whom he purported to identify by his voice and told his father about before he died. Indeed, the father PW1 said he did not know the people the deceased spoke about, save the 3rd accused whom he got to know when they went to arrest him. Moreover, in cases of identification by a single witness, caution is counseled even when the evidence is one of identification by recognition which is generally more reliable than where physical identification. See Abdullah Bin Wendo v R [1953) 20 EACA 166 and Roria v R (1967) EA 583. There is need for corroboration of evidence of a single identifying witness.

8. The deceased did not say that he was able to identify any of his attackers after he left the girl’s house. He only said that he could identify the persons who had earlier called him out while in the house. PW1 said in examination in Chief that:-“When the [deceased] tried to start the bike to leave he was attacked. He was cut up at the scene. He did not tell who cut him but he recognized the voice that called him when he was in the house as belonging to Murika. He said there were 5 people.”

9. On the evidence, the deceased was leaving his girl friends’ house at about 2:00 am (according to PW1) and he was attacked by 2 people who were later joined by 2 others. This being between 3-330am in the night. The circumstances of the purported identification must be taken to be difficult. Indeed, on cross-examination, PW1 confirmed that-“My son said he did not know who attacked him but he said he recognized the voice when he was in the house. My son said he did not know who attacked him.”

10. Again there was time difference between the time when the deceased was called out allegedly by Mwika and when the deceased eventually went out and was attacked. PW1 said the deceased had been afraid to go out when he was called and he refused to go out until about 1:00 am:“My son said he got to the place at 7:00pm in the evening. He left the girl’s house later. When he heard noises he was afraid and he did not get out immediately. He went out at about 1. 00am in the night and he was attacked when he went out.”It is not safe to assume that the same people who were calling him out were the very people who attacked him when he left the house later that night.

11. Neither can it be assumed that the owner of the home Kiiri who it may be assumed that the person the deceased heard asking who was at his daughter’s house, was one of the attackers. It would only to be a suspicion, which is never sufficient no matter how strong, (see Sawe v. R [2003] KLR 364) that he must have been involved because he was the father of the deceased’s girlfriend and the deceased was attacked at his home, and he should have known who attacked the deceased. PW1 said:“My son said he did not know who attacked him. But he was attacked just outside the house in the same compound of Mzee Kiiri. He was the taken to the road. He told me he was attacked at the home…..The owner of the home should have known who attacked him in his home.”

12. The circumstances of identification being at 2-3:30 am in the night when it was dark and in view of the sudden attack were difficult. The time difference between the alleged recognition of the voice of one Mwika when he called the deceased out of the house and the subsequent attack when the deceased went out of the house creates room for doubt whether the person who called the deceased and whom he allegedly recognized were the attackers, The court does not accept this single witness evidence of identification even on the basis of recognition [ see Anjanoni & Others v R (1976-80) KLR 1566] because the alleged recognition was done on the persons at the attack but rather on earlier incident when same people called the deceased out to attend to his motor bike.

13. Significantly, judicial authority caution against casual acceptance of a dying declaration. In Tuwamoi v Uganda [1967] EA 84, the Court of Appeal for East Africa held that dying declarations should carefully be tested as to identification. See also Okathi Olale v R [1965] EA 555.

14. There were also glaring inconsistences in the evidence of the Prosecution witnesses PW1, the father of the deceased and PW3, the Investigating Officer, as regards the attackers on the deceased. While PW 1 said that deceased had told him of 5 persons who attacked him, PW3 testified that upon this investigation and interrogation of four suspects, he had concluded that John Kiili (3rd Accused) and Rueben Kaberia M’Kiunga (4th Accused) were not connected with the assault on the deceased. The statement of the Investigating Officer which was put in evidence on application by the defence counsel confirmed this conclusion.

15. The court finds that the evidence presented for the prosecution by PW1, PW2 and PW 3 cannot prove the doubt. While the element of fact of death is proved by the evidence of PW 2, the remaining elements that the death was caused by an unlawful act by person or persons herein, identified as the accused persons herein. See there is no evidence that the accused persons were involved in the attack on the deceased established to the required degree of beyond reasonable doubt, and indeed two accused, nos. 3 and 4, are expressly exempted by the testimony of the Investigating Officer. It is not safe to rely on the identification evidence contained in the dying declaration of the deceased to PW1.

Orders 16. Accordingly, for the reasons set out above, the court findings that prosecution has not established a prima facie within the meaning of Ramanlal Trambaklal Bhatt v. R (1957) EA 332 and pursuant to section 306(1) of the Criminal Procedure Code enter a finding of not guilty against each of the four accused persons who are consequently acquitted of the offence of murder c/s 203 as read with 204 of the Penal Code.

17. There shall, therefore, be an order for the release from custody of the 3rd accused person who is in custody unless they are otherwise lawfully held.

18. The Bail Bonds for the 1st, 2nd and 4th Accused persons are discharged and the security shall be returned to the depositors.

DATED AND DELIVERED THIS 12TH DAY OF MAY 2022. EDWARD M. MURIITHIJUDGEAppearances:Mr. Kaimenyi, Advocate for the Accused persons.Ms. Nandwa and Ms. Kitoto, Prosecution Counsel for the DPP.