[2022] KEHC 14974 (KLR)

Republic v Mose (Criminal Case E071 of 2021) [2022] KEHC 14974 (KLR) (Crim) (1 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14974 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Case E071 of 2021

JM Bwonwong'a, J

November 1, 2022

Between

Republic

Prosecution

and

James Nyakita Mose

Accused

Ruling

1. The issue for determination before me is whether or not a prima facie case has been made out by the prosecution to require the accused to be put on his defence in terms of section 306 (2) of the Criminal Procedure Code (cap 75) laws of Kenya. The answer to the issue lies in the analysis of the prosecution evidence in light of the applicable law. It should be borne in mind that the accused is charged with murder contrary to section 203 as read with 204 of the Penal Code (cap 63) laws of Kenya, in respect of the deceased, John Mutua Kilomo.

2. He pleaded not guilty to the charge.

3. Stephen Kyalo Musau (PW 1) testified that the deceased was his uncle. He told the court that on September 27, 2021 he went to Nairobi City Mortuary with Julius Musembi Kilomo and both of them identified the body of the deceased to the pathologist.

4. Julius Musembi Kilomo (PW 2) told the court that he is a farmer in Kangundo and the deceased was his youngest brother. Further, on September 27, 2021, he accompanied PW 1 to City Mortuary where they identified the body of the deceased to a pathologist. He also testified that he did not witness the killing of the deceased. His observation was that the deceased’s head was swollen and there were no visible physical injuries.

5. James Mbugua Ngugi (PW 3) told the court that on September 25, 2021, he was up by 6. 00 am and labourers arrived at his residence. He noticed that one jembe was missing and upon inquiry, he was informed that it had been taken by John Mutua, who was his immediate neighbour. He went to check on him where he found the gate opened. He called him around seven times but he never responded. In his house, the deceased was lying motionless on his bed with his shoes on. He told the court that he presumed that he was dead and called other neighbours who arrived at the scene where they confirmed that he was dead. It is then that they proceeded to Ruai police station and reported the incident. He testified that the police came and took photographs and recorded statements from those present. It was his testimony that he did not know the cause of death. In court, he identified the accused as someone who sold water to them and had known him for over two years. He also told the court that the accused was subjected to mob justice before his arrest on the material day.

6. Cpl Robinson Maina No 42691 (PW 4) testified September 25, 2021 he accompanied the investigating officer PC Michael Mbugua to the Manyatta area in Ruai where a death had been reported. Upon arrival, he noted that the body of the deceased lay on a wooden bed facing upwards and was covered in a blanket. The deceased had no visible injuries and he took photographs that were produced in court. He told the court that the deceased had no visible physical injuries and the room had no blood stains.

7. No 91847 PC Michael Mbugua No 91847 (PW 5) the investigating officer told the court that on September 25, 2021 he was on duty with his colleague CplGeorge Oswe when they received a report of sudden death from James Mbugua, which had happened in the Manyatta area in Ruai. He proceeded to the scene of crime in the company of other officers. At the scene, the structure was 10 feet by 10 feet, with two beds and found the deceased lying on one-bed face upwards.

8. Upon examination, the body had no physical injuries. He told the court that he found the accused who had been arrested by members of the public, who had subjected him to mob justice. Subsequently, the scene was processed and photographs were taken. The body of the deceased was moved to City Mortuary Nairobi and the accused was taken to Ruai Police Station. He also recorded statements from members of the public who were present. It was his evidence that one Joshua Kioko stated that on September 24, 2021 in the evening hours, the accused and the deceased were fighting. During the fight, the accused took a stone and hit the deceased on the head. He also told the court that on September 27, 2021, he accompanied relatives of the deceased namely Stephen Museum and Julius Musembe who identified the body of the deceased to the pathologist, Dr Ndegwa, who conducted a post-mortem was conducted. That upon completing his investigations, he decided to charge the accused with murder. On cross-examination, he told the court that he never visited the alleged scene of the crime. Further, that only Joshua Kioko told him about the alleged fight between the deceased and the accused. He further testified that he did not extract samples from the body of the deceased for toxicological examination.

9. Dr Peter Ndegwa (PW 6), the pathologist tesified that he conducted a post-mortem examination on the body of the deceased. It was his evidence that there were no external injuries. He testified that the death of the deceased was caused by blunt force trauma as a result of internal injuries known as subgalea hematoma, subdural hematoma, and epidural hematoma. He also told the court that he did not conduct any toxicology on the blood of the deceased.

The Written Submissions of the Accused 10. Mr Farrah, learned counsel for the accused submitted that the prosecution evidence was characterized by mere suspicion that it was the accused who committed the offence. Further, that suspicion alone cannot sustain a charge before court.

11. In addition, none of the six prosecution witnesses placed the accused at the scene of the crime which was allegedly at Manyatta Trading Centre. He argued that the whole prosecution case was based on a hunch with no legal foundation to sustain the charge and there were no witnesses to support the hunch with evidence.

12. Learned counsel further submitted that at the time of the arrest, nothing was found on the accused to connect him to the crime. Further, there was no malice aforethought towards the deceased by the accused. It was his case that the evidence of the prosecution amounted to nothing more than what the judges in Bhatt v Republic [1957] EA 332 described as” amere scintillia of evidence” which is not sufficient to put the accused person on his defence. He urged the court to acquit the accused under section 210 (sic) of the Criminal Procedure Code(cap 75) laws of Kenya.

The Submissions of the Republic 13. Counsel for the prosecution did not file any submissions.

Issue for Determination 14. I have considered the totality of the prosecution evidence in the light of the applicable law. I find the following to be the issues for determination.

15. Whether the prosecution has made out a case to warrant the accused to be put on his defence in terms of section 306 (1) and (2) of theCriminal Procedure Code (cap 75) laws of Kenya.

Analysis and Determination 16. I find from the totality of the prosecution evidence that the entire evidence of the prosecution against the accused is purely circumstantial. Stated differently, no eyewitness saw the accused inflicting the blunt force injuries on the head of the deceased, which caused his death.

17. The evidence of (PW 3), is that the deceased was discovered dead. the object which caused the death of the deceased was not discovered or recovered. It was alleged by the investigating officer that there was a fight between the accused and the deceased and the accused hit the deceased with a stone which ultimately caused his death. The only witness who purportedly witnessed this fight was never called to testify.

18. The accused was arrested after he had been subjected to mob justice.

19. The question that the court has to ask itself is whether it can convict on the evidence produced by the prosecution if the accused does not offer any explanation.

20. The applicable law in this regard is that a case to answer is made out so as to require the accused to be put on his defence, if a tribunal properly directing itself on the law and the evidence can convict the accused if the accused does not offer any explanation. I find as persuasive the decision of the decision the court in Ramanlal T Bhatt v R (1957) EA 332 in which that court in part pronounced itself in that regard as follows:"…It may not be easy to define what is meant by a prima facie case, 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.”

21. The answer to the foregoing question is in the negative. The reason is that the evidence does not point to the accused as the only person, who had the exclusive opportunity to inflict the fatal head trauma on the deceased.

22. Furthermore, the evidence of all prosecution witnesses does not even place the accused at the scene of the crime which is said to be Manyatta Shopping Centre. No evidence was also adduced linking the accused to the death of the deceased. The witness who witnessed the alleged fight Joshua Kioko was never called as a witness which was fatal to the prosecution's case.

23. I have borne in mind that there is strong suspicion against the accused. I find that the lacuna created by the potential evidence of Joshua is in favour of the accused.

24. Furthermore, the evidence of PW 5 that only Joshua Kioko told him that he witnessed the accused fight between the deceased and the accused. No other witness had that evidence.

25. The foregoing evidence raises the following questions. Why would the accused fight with the deceased with the intention to kill him? The prosecution evidence has not provided answers to this question.

26. The foregoing evidence indicates that there is a basis for strong suspicion against the accused but such suspicion alone is not sufficient to warrant the accused being put on his defence.

27. In the premises, I find that the prosecution has not made out a case to warrant the accused to be placed on his defence in terms of section 306 (1) of the Criminal Procedure Code (cap 75) laws of Kenya, with the result that the accused is hereby acquitted and set free unless held on other lawful warrants.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 1ST DAY OF NOVEMBER 2022J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMs. Peris Maina for the RepublicMr. Farrah for the accused