[2017] KEHC 2325 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL CASE NO. 49 OF 2014

REPUBLIC……………..............................………PROSECUTOR

VERSUS

1. MUSEMBI MUSYOKA ALIAS KASSANG’A

2. KYALO MUSYOKA ALIAS NGUU

3. BONIFACE MUENDO MUTUNGA ALIAS NZOKA…ACCUSED

JUDGMENT

1. The accused were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars therein were that on the nights between 7th and 8th of August, 2014 at Muaani market, Sakai sub-location, Waia location Mbooni East within Makueni District County murdered Obadiah Munyao Mavindu.

2. The prosecution brought 8 witnesses. The facts were that on 3rd August, 2014 Francis Mutua Mavindu (PW3) was at a club in Muaani trading centre at 8. 00 pm with the deceased and a friend of his called Musau Muema. The 3rd accused person then came to the club and demanded his KShs. 300/- from the deceased. He had a club. The deceased promised to pay him the money later but he insisted to be paid there and then. He then pounced on the deceased and started hitting him. PW3 intervened, separated them and ordered the 3rd accused person to go away which order he complied with. He later went to the deceased’s home where he was informed that he had retired. The deceased later visited him on 6th August, 2014 and parted ways the next day. He was later informed of his death the following day. On visiting the scene, he found the deceased’s body and near it there was a blood stained stone. He stated that the deceased was a drunkard but it was not possible that he fell on the stone. Muyua Wanjohi (PW4) who was the deceased’s wife stated that the 1st accused, the deceased and one, Kamau came home drunk on 4th August, 2014. The 1st accused demanded KShs. 300/- which he had given her to keep and a quarrel ensued amongst them. The deceased, demanded KShs. 200/-. He took a piece of wood started hitting the 1st accused and started asking for his money. She separated them. A week later she heard that the deceased had been injured. When she went to the trading center she found him already dead. Patrick Ngui Ndiku and John Mavindu Metto (PW1 and PW2) respectively were called to be informed of the deceased’s death. PW1 stated that at the trading center he found the Ngonyo Kissa, a person he claimed was of unsound mind, who mentioned the accused persons as the killers. He stated that Ngonyo had blood stains on his shoes. That upon interrogation by the police Ngonyo mentioned the names of the accused but no one could quite comprehend what he said. Paul Mutunga (PW5) who arrested the 1st accused stated that he received a report that a man had been killed at Muuani market. He in company of A.P. Gachoka went to the scene. There they found the body of the deceased. There was also Ngonyo who had blood stains on his shoes. On being interrogated he told them of people who had been fighting with the deceased. He said the 1st accused was one of them. He and Ngonyo were taken to the police station for investigations. He stated that he only arrested the 1st accused and that the others were arrested by Corporal Mohamed. Daniel Lang’at (PW6) who is the investigating officer stated that he received a call from the assistant chief Matheka Ndiku at 6. 30 am informing him of a person who had been killed at Muuani trading center. He instructed the chief to go ahead and ensure that the body was not interfered with. He later went to the scene with Corporal Koome and Police Constable Alex Chebii from CID and also Police driver Jackson Sangoli. They found the body lying and covered with a jacket and had a t-shirt on. The clothes were soaked in blood. And the body had injuries near the head. He stated that there was a stone that was soaked with blood nearby. He stated that the stone was used to kill the deceased. That the assistant chief stated that there was a man by the name Ngonyo who had seen four men beating up the deceased. He stated that when he interrogated Ngonyo he talked while pausing a bit but pointed out the 1st accused as one of the men. The 1st accused who was in the crowd is said to have been arrested immediately. They proceeded to the homes of the other suspects but they were not found. He stated that the 2nd accused person and 3rd were arrested on 13th and 14th August, 2014 respectively by Police officers Paul Mutunga and Victor Gachoka who handed them over to Corporal Koome and Police Constable Alex Chebii. Dr. Maundu Solomon (PW7) stated that he conducted the postmortem on the deceased on 14th August, 2014. He stated that the deceased had massive bleeding of the head and blood was oozing from his ears. His upper left and right ribs had evidence of defence marks. He had bruises on the limbs but that the lower limbs were normal. There was no evidence of haemothorax and his cardiovascular cavity had no abnormality. That the spine had an injury to the left. He drew an inference that he died of cardiopulmonary arrest caused by severe head injury resulting from blunt trauma of the head. PC. Samuel Mbati (PW8) who prepared the photographs of the scene of crime produced the said as P. Exhibit 1 A-L. the stone was produced as P. Exhibit 2.

3. The accused persons were put to their defence and they opted to remain silent and not to tender any evidence.

4. The 1st and 2nd accused persons submitted that the prosecution did not prove its case beyond reasonable doubt. Citing Kariuki Karanja v. Republic [1986] KLR it was submitted that the prosecution never tendered evidence to confirm that the blood that was on the 1st accused’s fly was that of the deceased. That there were no eye witnesses rather the prosecution relied on suspicion.

5. The 3rd accused person submitted that the case was not proved beyond reasonable doubt. That there was only suspicion that there had been a quarrel between him and the deceased. That the state had failed to link the quarrel to the death.

6. The prosecution on the other hand submitted that it emerged from PW3 and 4’s evidence that there was a dispute between the accused persons and the deceased and that the deceased had been assaulted. That the prosecution had proved malice aforethought.

7. I have given due consideration to the evidence on record. There is no doubt that the evidence herein is circumstantial. In determining this matter, I am guided by the Court of Appeal decision in Musili Tulo v. Republic (2014) e KLR where it was held:

“In order to ascertain whether or not the inculpatory facts put forward by the prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilt, we must also consider a further principle set out in the case of Musoke v. R [1958] EA 715 citing with approval Teper v. R [1952] AL 480, thus:

“it is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no other co- existing circumstances which would weaken or destroy the inference.”

8. In Mwangi & another v. R [2004] 2 KLR 32, the Court of Appeal stated that:

“In a case depending on circumstantial evidence, each link in the chain must be closely and separately examined to determine its strength before the whole chain can be put together and a conclusion drawn that the chain of evidence as proved is incapable of explanation on any other reasonable hypothesis except that the deceased is guilty of the charge.”

9. From the evidence on record, it is clear that there was bad blood between the appellant and the deceased. That was followed with a fight at the bar due to a disagreement concerning money. Shortly thereafter, the deceased was found outside the bar murdered. There was an eyewitness namely Ngonyo who claimed to have implicated the accused persons. However the said witness was reported to be of unsound mind and who later passed on before testifying herein. The investigating officer did not ensure the bloodstains on 1st Appellant’s trousers were taken for analysis so as to link the same with the blood of the deceased. Indeed the investigating officer did not even cause the trouser to be produced as an exhibit the only thing that links the accused persons to the crime is the alleged altercation over money between them and the deceased a few days before the deceased died. In the absence of the evidence of the eyewitness and failure by prosecution to link the bloodstains on 1st Accused’s trousers it would appear that the accused persons are only suspected to be behind the death of deceased. It is trite law that suspicion alone cannot be a basis of further concrete evidence. The duty to prove the guilt of the accused persons lay squarely upon the shoulders of the Prosecution to discharge. The failure by prosecution to call the eye witness one Mr. Ngonyo and failure to have the blood stains on one of the accused’s trouser were co-existing circumstances which had the effect of weakening or destroying the interference of guilt upon the accused persons.

10. In the result it is the finding of this court that the Prosecution has not proved its case against the three (3) accused persons beyond reasonable doubt. I find all three accused persons not guilty and are acquitted of the charge. They are ordered to be set at liberty forthwith unless otherwise lawfully held.

It is so ordered.

Dated, signed and delivered at Machakos this 6th day of November, 2017.

D. K. KEMEI

JUDGE

In the presence of:

Muema for accused persons

Machogu for state

C/A: Kituva