[2022] KEHC 14041 (KLR)

Republic v Musulitsa (Criminal Case 19 of 2020) [2022] KEHC 14041 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14041 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 19 of 2020

SN Riechi, J

October 3, 2022

Between

Republic

Prosecutor

and

Wycliffe Vusaala Musulitsa

Accused

Judgment

1. The accused Wycliffe Vusaala Musulitsa is charged with offence of murder contrary to section 203 as read with Section 204 of the Penal Code.

2. The particulars of the offence are that on the 17th day of March 2020 at Murram village, Misikhu location, Webuye West Sub County within Bungoma County murdered Emmanuel Misiko Vusaala.

3. The prosecution case is that the deceased then aged 3 years old at time of death was the biological son of accused Wycliffe and PW1 Prudence Mideva. The deceased was born on April 4, 2017.

4. The accused who was employed at the home of Mwaria invited his wife Prudence to go there with the child. PW1 Prudence the mother went there with the deceased and stayed for 2 weeks.

5. On March 14, 2020 the deceased urinated on the bed they were sleeping on and accused was angered by that act and beat him. On March 17, 2020the accused said he will take the child to his (accused’s) parents in Kakamega. He then took the child while the mother went to her parents home at Kachpora. She left the child with accused.

6. The accused then called Prudence and told her to go back. She went the next day and on inquiring about whereabouts of the child the accused told her that the child got lost and that he had reported the matter to police. On March 18, 2020she was informed by one Kuka that there was a body of a child on the road. She went there and found the deceased whom she identified as her child. The body had been covered by soil and had strip marks on the back. There was a bag with a pipe next. Police were informed and took the body away.

7. PW2 Edward Mukanda Namukaka the village elder testified that on March 18, 2020 accused went to his home with a plate and cup and told him his child had got lost and he advised him to report to police. Later accused informed him that he had reported the matter to police. He then saw the accused then started crying saying people had killed his child and thrown him at the tarmac. The next day he received information that the body of a child had been recovered on the road. He went there and found the deceased covered by debris pushed by rain water. He removed him and saw deceased had injuries on the back. The accused and his wife were present. Police came and removed the body.

8. PW3 Zenard Mukhanda who in his house when he heard loud music being played from accused’s house. He then heard accused say “go back to the house”. He then heard noise of a person being beaten which lasted for about 30 minutes. The next day at 7 a.m. accused went to him and asked if he had seen deceased. The day after he received information that body of deceased had been recovered. He confirmed in cross-examination that he did not see accused beating the deceased.

9. PW5 Peter Mukuna Ngungi the Investigating officer attached to DCI Bungoma received report of murder. He went to the scene where he found the body of a child on a trench. The body had bruises at the back. The scene was processed and photographs taken. At the scene they found the mother Prudence (PW1) and father the accused and interrogated them. After investigations he caused accused be charged with the present offence. He confirmed in cross-examination that the accused had reported the issue of the deceased missing to police at Misikhu police post and the village elder.

10. PW4 Letisa Mbalwe a clinical officer at Webuye hospital produced a post mortem form prepared by Dr. Milembwa who performed post mortem on body of deceased. The deceased had bleeding under the skin on forehead and maxillary area, extending to thoracic part of the body and abdominal wall. Internally there was presence of water in abdomen. He formed opinion that cause of death was due to cardiogenic shock. He ruled our any sign of strangulation.

11. The accused upon being put on his defence gave sworn evidence. He testified that the deceased was his son and Prudence is his wife and mother of the deceased. On March 17, 2020his wife Prudence left him with the child and went to her parents home. On March 18, 2020 he left the child at home and went to the shops to buy milk. When he came back he did not find the child. He started looking for him in the neighbourhood. He did not find him. He reported the matter to the village elder and police. Police advised him to continue searching for deceased. On March 19, 2020he received information that there was a child on the road. They went there and found the deceased who was already dead. Police came and arrested him. He denied killing the child as alleged.

12. Mr. Wamalwa Simiyu for accused filed written submissions. Counsel submitted that there was no eye witness to the murder of the deceased as none of the witnesses who gave evidence saw the accused kill the deceased. He submitted that no tangible evidence was tendered to link the accused with the offence.

13. The accused is charged with the offence of murder contrary to section 203 of thePenal 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.”

14. The prosecution in order to prove the charge of murder against accused must tender evidence proving all the ingredients of the offence. The ingredients of the offence of murder are: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.

15. On the fact of death, both the mother of the deceased child PW1 Prudence and the father the accused admit in their evidence that the child died. There is therefore no dispute over that issue. On the cause of death PW4 Letisia Mbalwe who produced the Post-mortem report prepared by Dr. Milembwa who performed the post mortem testified that the cause of death was due to cardiogenic shock due to assault.

16. The next issue for determination is who assaulted the deceased. PW1 Prudence Mideva testified that she left the child with the deceased and later accused informed her the child had gone missing. Later the child was found on the road dead. PW2 Edward Mukanja the village elder testified that on March 18, 2020 at 8 a.m. accused went and reported to him that his child had gone missing from home.

17. PW2 Edward Mukanda the village elder only testified as to how the accused reported to him that his child had gone missing and asked whether the witness had seen him. He advised accused to report the matter to police. He made the report to him on March 18, 2020 at 8. a.m Later that day they found the body of the child; in a trench covered with soil pushed by rain.

18. PW3 Zenard Mukanda was in his house when he heard the accused saying “Go back to the house” and the volume of the radio was increased. He heard as if it was a person being beaten. The next day accused went to him at 7 a.m. and asked if he (witness) had seen the deceased. He confirmed in cross examination that he did not see the accused beating the deceased.

19. PW5 Peter Mukuna Ngugi the Investigating officer receipt a report of murder and visited the scene. He saw the body of the child in a trench and appeared to have been pushed by rain water as it had rained the previous day. He confirmed that the accused had reported to police at Misikhu that the child was missing. He testified that when he visited the compound where accused was staying he formed opinion that the child wound not have opened the gate to pass but would do so if it was open.

20. These are the witnesses who testified for the prosecution. None of the witnesses saw accused inflicting any injury on the deceased. Indeed the evidence of PW1 Prudence is that she left the child with accused on March 17, 2022. This fact is admitted by the accused in his defence. As none of the prosecution witnesses saw the accused beating the deceased, it is clear that there is no direct evidence linking the accused to the death of the deceased. The prosecution would only therefor prove the charge against accused by tendering circumstantial evidence of facts from which a court would make an inference of guilt on the part of the accused. The fact proved by the prosecution is that the accused was the last person seen with the deceased. That the deceased was found the next day dead and that deceased had brises considered to have been due to.

21. In Joan Chebichi Sawe v R the court of appeal Kwachi, Lakha O’kbasu JJA stated….If that be the case, then the evidence does to irresistibly point to the appellant to the exclusion of all others within the meaning of R v Kipkering Arap Koskei & another 16 EACA 135 where it held, inter alia, that:-“In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

22. In our judgment, the evidence does not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant on the basis of the evidence on the record. We are therefore, unable to uphold the conviction entered by the learned trial judge. We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and steeled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. We disagree with the learned judge’s view that the prosecution had proved its cause against the appellant beyond any reasonable doubt.

23. In this case the accused has explained the disappearance of the child, efforts made to look for him, even making report to both neighbours, village elder and police. These efforts in my view are not consistent with a parent whose child had gone missing. I do not find that the circumstances established would lead this court to find that it is accused and no other who killed the deceased. Indeed they are consistent with innocence of the accused as a father of the deceased.

24. I therefore find that the prosecution has not proved the offence of murder contrary to section 203 of the Penal Code. I find accused not guilty of offence of murder contrary to section 203 as read with section 204 of the Penal Code and acquit him accordingly. The accused Wycliffe Vusaala Musulitsa be set at liberty unless otherwise lawfully detained.

DATED AT BUNGOMA THIS 3RDDAY OF OCTOBER, 2022S.N RIECHIJUDGE