[2017] KEHC 9647 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

HIGH COURT CRIMINAL CASE NO. 48 OF 2012

REPUBLIC...................................................PROSECUTION

VERSUS

MUTETI SAMMY NDUNDA...........................1ST ACCUSED

JOHN WAFULA NYUKURI...........................2ND ACCUSED

RULING

1. The accused persons SAMMY MUTETI NDUNDAand JOHN NYUKURI WAFULA were charged with the offence of murder contrary to Section 203 as Read with Section 204 of the Penal Code the particulars of which were that on the 10th June, 2012 at about 8. 30 p.m. at Mathare Gateway Area within Huruma Area Starehe Division in Nairobi Area murdered AN UNKNOWN AFRICAN MALE ADULT.

2. They pleaded not guilty to the charges and to prove its case against them the prosecution called a total of five (5) witnesses whose testimony were as follows:- PW1 LAWRENCE KINYUA MUCHIRI an analyst at the Government Chemist stated that on 6/7/2015 and 12/7/2015 respectively received items from PC AYUB LUMBWA of Huruma police station which he examined and made conclusion that the blood on the panga did not match that of the deceased and that he was unable to generate DNA profile on the T-shirt which was stained with human blood.

3. PW2 DR. DOROTHY NJERU conducted post mortem examination on the body of the deceased who had multiple chopped wounds on the neck, right ear, fracture of the skull, multiple brain incisions and fracture of the cervical spine and as a result of the said examination formed an opinion that the cause of death was head and spinal injuries due to sharp force trauma or chopped wounds. She stated that in cross examination that the deceased was found dead by members of the public.

4. PW3 PC JOHN MWITI testified that on 10/6/2012 together with Corp Kurgat who received a call from the Deputy OCS Mr. Kimani who informed him that there were two male adults sighted pulling a dead body at Mathare Gateway, they moved to the area where they met PC Omondi and PC Gitonga with two adults whom they had rearrested from members of the public. It was his evidence that they took the two to Muthaiga police station before they went back to the scene and saw the body of the deceased. It was his further evidence that they followed blood stains trail up to one flat 3rd floor room 16 where they saw a pool of blood in the sitting room and new panga on the floor. He stated that he did not know the owner of the house.

5. PW4 DR. ZEPHANIA KAMAUexamined the accused persons whom he found fit to stand trial while PW4 PC AYUB LWAMBA the investigating officer testified that on 10/6/2012 the OCS told him that there were people arrested while in the process of dumping a body and that when they went to the scene they found many people who wanted to burn the body claiming that he was a thief. While at the scene they found that the body had been dragged there and they followed the trail up to house No. 402 3rd floor Room No. 16 where they found a pool of blood and a panga and that the caretaker said that the house belonged to the 1st accused.

6. Under cross examination he stated that the members of the public told him that the panga belonged to the deceased and that the register of persons was not able to establish the identity of the deceased and that people said the house belonged to Muteti.

7. On 25/5/2017 the court declined to grant the prosecution further adjournment and Mrs. Kinoti the learned prosecutor opted to close the prosecution case and made submissions thereafter.

SUBMISSIONS

8. On behalf of the prosecution it was submitted that the injuries inflicted on the deceased were consistent with the murder weapon recovered in the house of the 1st accused and that the accused persons were arrested by PC Omondi and PC Gitonga who were on spiv duties. It was the prosecution’s submissions that despite all efforts the investigating officer was unable to trace the caretaker of the house wherein the body was found and the civilian witnesses who had arrested the accused persons.

9. On behalf of the defence it was submitted that the prosecution has failed to establish a prima facie case. It was submitted that there was no eye witness to corroborate the occurrence of the offence which occurred in a house whose tenancy had not been established neither was it established that the accused were in the said house when the attack occurred. It was submitted that the person who pointed the accused persons out leading to their arrest was never called to prove that they were at the scene. It was submitted that the circumstantial evidence tendered was very weak.

ANALYSIS AND DETERMINATION

10. For the prosecution to sustain a conviction on a murder charge the following ingredients must be established beyond any reasonable doubt:-

1)Fact and cause of death.

2)That the said death was caused by unlawful act or omission on the part of the accused.

3)That the said death was caused by malice aforethought.

11. The fact and the cause of death of the deceased is not in dispute. PW3 PC JOHN MWITI and PW 5 AYUB LWAMBA testified that they went to the scene where the body of the deceased had been dumped and according to PW5 the two accused persons allegedly wanted to burn the body of the deceased whom they alleged was a thief. PW3 DR. DOROTHY NJERI confirmed that the cause of death was head and spinal injuries due to sharp force trauma (chop wounds) I therefore find and hold that the prosecution proved beyond reasonable doubt the fact and cause of death of the deceased.

12. On whether the said death was caused by unlawful act or omission on the part of the accused persons, the prosecution evidence against the same is purely circumstantial. There was no eye witness who witnessed the accused persons inflict the injuries on the deceased. The police officers who arrested the accused persons were never called to testify and neither were the civilian witnesses and therefore the same were not placed at the scene of the offence. The prosecution failed to tender in any evidence to link the accused persons with the offence herein.

13. The only circumstantial evidence that was tendered to link the 1st accused person with the offence herein was the hearsay evidence of PW5 the investigating officer who testified that he was told by the caretaker of the building wherein the panga and the pool of blood was found belonged to the 1st accused person, but neither the said caretaker was called to corroborate the said evidence and to confirm that the 1st accused was a tenant nor any record produced to confirm the tenancy of the 1st accused person thereat.

14. For a court to convict an accused person on circumstantial evidence as was stated in the case of JOAN CHEBICHII SAWE v REPUBLIC Court of Appeal at Nairobi Criminal Appeal No. 2 of 2002.

“Inorder 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 thatof his guilt.”

15. At the end of the prosecution case the following gaps stands wide and uncovered:- How were the accused persons arrested, were they at the scene alone or with other persons, was any of the accused person in exclusive occupation of room No. 16 on 3rd floor of House No. 404 wherein the murder weapon and pool of blood was found. What happened to vital prosecution witnesses who were never called? The only inference the court can make at this stage is that if called their evidence would have been adverse to the prosecution.

16. I therefore find and hold that the circumstantial evidence tendered against the accused persons is very weak and mere suspicion however strong has been held is not enough to convict an accused person and as submitted by the defence to put the accused persons on their defence at this stage would be akin to asking them to fill in the gaps on the prosecution case stated herein and should the accused person opt to remain silent it will be safe to convict them on the evidence on record. I therefore find and hold that the prosecution has failed to prove a prima facie case against the accused persons and accordingly find the accused persons not guilty and acquit them under the provisions of Section 306 (1) of the Criminal Procedure Code.

17. I have noted that the prosecution had challenges in securing witnesses in this matter for reasons which were never disclosed and wish to advise the office of the DPP to take charge of all the cases being prosecuted and have full control of the witnesses to be called and where they have noted challenged, the constitution and the laws gives the ODPP a wider discretion on what to do rather than waiting for the cases to fall by the way side as in this case due to non-availability of witnesses noting that Article 50(1) (e) requires that any trial begin and conclude without unreasonable delay and the constitution must be taken as a vehicle to achieve social good and just end and therefore the court will not shy away from acquitting accused persons where there are no evidence tendered to support the charges the challenge in securing witnesses notwithstanding.

18. The accused persons shall be set free forthwith unless otherwise lawfully held.

DATED, DELIVERED and SIGNED at Nairobi this 1st day of November, 2017

………………

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Meroka for the State

Mr. Gakara for Swaka for the accused persons

Accused person present

Tabitha court clerk