[2022] KEHC 13882 (KLR)

Republic v Mutinda (Criminal Case 27 of 2019) [2022] KEHC 13882 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13882 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 27 of 2019

GV Odunga & MW Muigai, JJ

October 6, 2022

Between

Republic

Prosecution

and

Patrick Mutisya Mutinda Alias Kyieni

Accused

Judgment

1. The accused person herein, Patrick Mutisya Mutinda alias Kyieni, was charged with the offence of Murder contrary to section 203 as read with section 204 of the Penal Code. The particulars were that on the 4th day of August 2017 at Mamiloki village, Kavumbu Sub-Location, Masii location in Mwala Sub-County within Machakos County, murdered Vincent Kyalo (hereinafter referred to as the deceased)

2. The summary of the prosecution’s case was that 3rd August, 2019, the accused and the deceased, together with other revellers were drinking in a Bar known as Serena Bar in Masii when a quarrel ensued between the two. According to some witnesses, the disagreement started where the duo was seated outside the bar ending up in a fight. They then entered the bar and some of the witnesses stated that the accused pushed the deceased who fell on a table and lost consciousness. Other witnesses stated that the accused and the deceased went out of the bar and the deceased was then found lying outside the door. He was picked up in the morning and taken to the Hospital but passed away while awaiting treatment.

3. One of the witnesses was Brian Vaati Nzilani, PW1, who on 3/08/2019 at about 9. 00 p.m. drinking with the deceased in the Serena Bar when the accused entered the bar and for no apparent reason picked a quarrel with the deceased. An altercation ensued between the deceased and the accused leading to a physical confrontation between them during which time the deceased was pushed down by the accused. The deceased must have been injured since, according to PW1, the deceased did not get up from where he had fallen. By the time PW1 left the bar, the accused had pulled the deceased and left him at the entrance of the bar. The next day on 4/08/2019 PW1 received information that the deceased had been taken to Machakos level 5 and he died. It was his evidence that when he entered the bar he found the deceased already there taking spirits.

4. PW2, Denis Kavoo Mbundi, arrived at the same bar at 7. 30pm having passed by another bar called Auckland Bar. At the Serena Bar, he found the accused and many other people and ordered his drink. According to him, they were seated outside the bar with the accused, the deceased and Mutunga on the table. However, at about 9. 00 p.m. a quarrel, whose genesis he did not know, developed between the accused and the deceased and a scuffle ensued between them. However, after the fight, they all entered the Bar but the deceased who was drunk started making a noise prompting the accused to push him outside. It was then decided that the bar be closed and PW2 left together with the bartender, one Susan, his girlfriend, who testified as PW7, whom he escorted home. They proceeded to the accused’s home and reported the incident to the accused’s mother. Upon their return to the Bar, they found the deceased lying down groaning. On the suggestion of the accused’s mother they all departed to go and sleep. The following day, he heard that the deceased was taken to Masii Hospital then Machakos where he died. It was his evidence that the bar was lit by candles. In his evidence, he never saw anyone fall down but just saw the deceased fall down. While he disclosed that he was related to him, the deceased was not It was his evidence that by the tie he arrived at the bar both the deceased and the accused who were taking spirits were already drunk.

5. PW3, Josephine Ndule Mutiso, the accused’s mother confirmed having been called by the PW2 and PW7 as stated by PW3. They proceeded to the Bar where they found the young man lying outside. He told them to go and sleep since he was drunk and in the morning he would be sober. It was her evidence that the deceased did not respond when she called him. The following morning when she was on her way to the Hotel, she found the deceased still lying there, though he had changed his sleeping position overnight. She then called the administrators the deceased who was injured was taken to the hospital. It was her evidence that the Bar belonged to her daughter’s girlfriend.

6. PW4, Jackson Muthoka Maundu, the deceased’s father received information on the morning of 4th August, 2019 that the deceased was lying outside a bar. When he proceeded there, he found the deceased who was unresponsive lying sideways with a swollen face. At the scene he was with PW3. He made arrangements to take the deceased to Masii where the deceased was transferred to Machakos Hospital but the deceased died on arrival before admission. He confirmed that the deceased used to drink alcohol.

7. PW5, David Mutia Mule, the village elder confirmed having been called by PW3 to go to Serena Centre on 4/08/2019 at around 8. 00 a.m. When he arrived there, he found a crowd there including PW3. At Serena Bar where he was directed by PW3, he found the deceased, his neighbour, lying facing downwards. He then called another elder and PW4, the deceased’s father. By then, the deceased was still breathing though blood oozing from the lips. They then made arrangements s for the deceased to be taken to the Masii Health Centre where he was given first Aid and was then transferred to Machakos Hospital where the deceased passed away.

8. PW6, Mutindi Mutisya, confirmed that on 8/08/2019, the accused who was her nephew went to visit her in Muthini sub-location Mbooni ward, Makueni County and that the accused stayed with her for 2 days. PW6 then received a call from the accused’s mother, who was her sister that she would go and collect the accused because there was a young man who had passed away. The accused’s mother then went to see PW6 and informed PW6 to stay with the accused till she collects him. On 14/08/2019 the accused’s sister in the company of the police officers went back and picked up the accused. According to PW6, the accused did not disclose to her what had taken place.

9. Susan Mbaika Mutua, PW7 was the bartender at Serena Bar on 3/08/2019. She confirmed that on that evening there was a scuffle between the accused and the deceased in the said bar but the two were separated by the other customers and they went outside after the customers told them that they did not want the commotion. n. Since she was busy with her work, she only heard that them saying that the deceased was lying down. By the time she closed the bar, the deceased was still lying down and she left in the company of PW2 and they proceeded to report the incident to PW3. In the company of PW3, they returned to the Bar but PW3 informed them to go and sleep since the deceased was just drunk. The following morning when she was taking breakfast at mama PW3’s Hotel she heard people saying that that the deceased was picked up in the morning and taken to Masii Hospital then transferred to Level 5 Hospital. Later she heard from the deceased’s father that the deceased had passed away and she disclosed to him that the deceased was fighting with the accused.

10. PW8, Musyimi Wambua, the deceased’s grandfather confirmed that on receipt of the information about the assault, he proceeded to the Bar where he saw blood at the scene. PW9. Corporal Anton Musembi, the Investigation Officer was assigned the case on 4/08/2019 by the OCS, Masii. He visited the Bar and recorded the statements from the witnesses where he learnt that the previous night the deceased was drinking at the bar when a disagreement arose between the deceased and the accused during which the deceased was injured. He also visited the mortuary where he saw the deceased’s body ad saw that blood was oozing from his nose while his head was swollen. According to him, the information he received was that the deceased was pushed by the accused and he hit the back of his head on the ground and lost consciousness. After that the search for the accuse commenced and he was eventually apprehended in Mbooni in Makueni where he had gone to hide at his Aunt’s home.

11. PW10, Dr. Felix Akonde, the pathologist examined the body of the deceased on 13/08/2019after being identified for him. After examination, he formed the opinion that the cause of death was head injury from a blunt force trauma.

12. At the close of the prosecution’s case, the accused was placed on his defence and chose to give sworn evidence. According to him, the deceased was his friend and his neighbour and he had no dispute with him. According to him, on 4/08/2019 after closing his business, he went behind Serena Bar where he found the deceased and one Maurice Mutunga who were both drunk, fighting. He proceeded to the bar and ordered his drink and sat with 2 other customers including PW3. The said Maurice Mutunga then entered the Bar and sat with other customers and ordered his drink. Shortly thereafter, the deceased also entered the bar and also ordered for his drink.

13. The deceased who was drunk then left his table and went to the table where the accused and his friends were and started quarrelling the accused over the accused’s relationship with Susan, PW7. When the deceased attempted to assault him with a bottle, he pushed the deceased and they were both pushed outside by the other customers. According to him the deceased did not fall when in the Bar but fell downwards outside after they had been pushed by the other customers. After that the accused re-entered the Bar, paid his bill and left after finishing his drink. The following day, after he was done with his home chores he went to open his business at Serena. He never found the deceased where he had left him the previous night. However, he heard that the deceased passed away at 3pm.

14. The accused however denied that he ran away to Mbooni to hide at his Aunt’s place but went there to assisted his aunt with farm work since he used to visit her regularly. He therefore denied that he caused the death of the deceased. While denying that he used excessive force, he admitted that he was drunk.

Determination 15. Based on the said evidence, this Court is being called upon to determine whether the accused is guilty of murder of the deceased. The prosecution’s case in summary is that on 3rd August, 2019, the deceased and the accused amongst others were drinking in Serena Bar when a brawl ensued between the accused and the deceased. As a result, the deceased was pushed by the deceased, fell down and injured himself. According to PW1, he saw the deceased being pushed by the accused and the deceased fell down. PW2, on the other hand, stated after the scuffle between the accused and the deceased, both of them were thrown outside the bar and he did not know what transpired outside but on their way out they found the deceased groaning outside the bar. These were the only witnesses who positively testified that they saw the scuffle between the deceased and the accused since PW7, the bartender was too busy serving the customers.

16. In his defence, the accused admitted that there was a scuffle between him and the deceased when he pushed the deceased after the deceased threatened to hit him with a bottle. However, the deceased did not fall but only fell when they were being pushed outside by the other customers.

17. I have considered the evidence on record. Section 203 of the Penal Code under which the accused is charged provides that:-Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

18. Arising from the foregoing the ingredients of murder were explained in the case of Roba Galma Wario v Republic [2015] eKLR where the court held that:“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”

19. In Republic v Mohammed Dadi Kokane & & 7 Others [2014] eKLR the elements of the offence of murder were listed by M. Odero, J as follows:-1)The fact of the death of the deceased.2)The cause of such death.3. )Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly4)Proof that said unlawful act or omission was committed with malice aforethought.

20. In this case, there was no doubt as to the fact of death of the deceased. Even the accused did not raise any doubt as regards the death of the deceased. PW10 who conducted the post mortem examination on the body of the deceased clearly testified as to the cause of the deceased’s death being head injury from a blunt force trauma. I therefore find that the fact of the death of the deceased was proved beyond reasonable doubt.

21. As to whether the deceased met his death as a result of an unlawful act or omission on the part of the accused person, it is clear that the only witness who testified that the deceased fell after the accused pushed him was PW1. From the evidence on record it is clear that all the witnesses were taking hard spirits and were drunk including the deceased. The evidence on record was that the deceased was at one point pushed. While PW1 stated that he was pushed by the accused, the accused while admitting that he pushed the deceased stated that the push that led to the fatal fall was that by the customers. There was evidence that both the accused and the deceased were pushed outside. It would seem that the injuries sustained by the deceased were occasioned outside the Bar since there was no evidence that any blood stains were found inside the Bar. However, apart from the evidence of the accused there is no evidence as to what transpired outside there. It is possible that the deceased who was drunk could have missed his steps as a result of being pushed and fell on the back of his head. The opinion of the pathologist as regards the cause of death was consistent with that of a person who sustained the injuries as a result of a fall.

22. In criminal cases, it is old hat that the burden of proof lies with the prosecution and the standard of such proof is beyond reasonable doubt. Viscount Sankey L.C in the case of H.L. (E)*Woolmington v DPP [1935] A.C 462 pp 481 in what has been described as a subtle and masterly fashion stated the law on legal burden of proof in criminal matters, that;“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’

23. According toHalsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”

24. What then is the standard of proof required in such cases? Brennan, J in the United States Supreme Court decision in Re Winship 397 US358 [1970], at pages 361-64 stated that:-“The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”

25. In 1997, the Supreme Court of Canada in R v Lifchus[1997]3 SCR 320 suggested the following explanation:-“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.”

26. InJOO v Republic [2015] eKLR, Mrima, J held that:“It is not lost to this Court that the offence which the Appellant faced was such a serious one and ought to be denounced in the strongest terms possible. However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled; proof beyond any reasonable doubt hence this case cannot be an exception. This Court holds the view that it is better to acquit ten guilty persons than to convict one innocent person.”

27. Mativo, J in Elizabeth Waithiegeni Gatimu v Republic[2015] eKLR expressed himself as hereunder:“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

28. What then amounts to reasonable doubt? This issue was addressed by Lord Denning in Miller v Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

29. As already noted above, the only evidence linking the accused with the murder of the deceased emanated from PW1 who was himself admittedly drunk. While his evidence was that after the accused pushed the deceased, the deceased fell down and never got up, the evidence of the other witnesses was that the duo were actually removed from the bar by the customers. I am unable in the circumstances to believe the evidence of PW1 that the fatal push was by the accused. There is a possibility that due to his drunkenness state, the deceased could have fallen while staggering from the push when they were being forcefully ejected from the bar by the unamused customers.

30. In my view the evidence linking the accused with the murder of the deceased in light of his own explanation as to how the deceased sustained the injuries in question leaves me in doubt as to whether the death of the deceased was caused by the accused.

31. That leads me to the last issue: whether it was proved that the said unlawful act was committed with malice aforethought.

32. Section 206 of the Penal Code on malice aforethought states:-Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—(a)an intention to cause the death of or to do grievous arm to any person, whether that person is the person actually killed or not;(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)an intent to commit a felony;(d)an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

33. The law is however clear that the burden is on the prosecution to prove that unlawful act was committed with malice aforethought. In this case none of the witnesses testified as to the existence of any bad blood between the deceased and the accused. According to the witnesses the accused and the deceased were drinking. While there was attempt to introduce evidence that the deceased and the accused were haggling over a lady, PW7, PW1 and PW7 admitted tat in fact they were the ones in a relationship. It would seem that the disagreement between the deceased and the accused was as a result of taking one too many. In those circumstances, I am unable to find that malice aforethought has been proved.

34. The prosecution seems to have based its case, partly o the conduct of the accused leaving his home to go and stay with his aunt. However, the accuse explained the circumstances under which he did so. While one might find his explanation unsatisfactory, as was held in Boniface Okeyo v Republic [2001] eKLR:“Before we conclude this judgment however, there are two other matters which, though not raised by the appellant’s counsel, have caused us considerable concern in this appeal. These arise from the judgment of the High Court on first appeal where it said as follows:"the appellant himself narrated how he was arrested. He did not raise any serious defence to the charge except to state that he was not guilty."In another part of the judgment the High Court further said as follows:“the appellant had full opportunity and did cross-examine the witnesses but no crucial evidence arose out of his cross-examination"We are satisfied that in the two passages, the High Court on first appeal seriously fell into error by appearing to shift the burden of proof to the appellant. It is trite law that in criminal cases the burden of proof rests throughout on the prosecution to establish the guilt of an accused person beyond reasonable doubt save in few exceptions of which this was not one. The appellant had no duty in law to raise a serious defence, nor did he have a duty to elicit crucial evidence by cross-examination of prosecution witnesses. We are satisfied that the burden of proof was, clearly, placed on the appellant and this is another reason to fortify the conclusion we have reached that the conviction was unsafe and cannot stand.”

35. In Robert Achapa Okelo v RepublicKisumu Court of Appeal Criminal Appeal No. 3 of 1999 the Court of Appeal expressed itself as hereunder:“In this appeal the superior court convicted the appellant of the murder of Margaret Atieno Ouma which was said to have occurred at Kondele Estate in Kisumu District on 14th June, 1993. The evidence relied on by the trial Judge (Wambilyanga, J) in convicting the appellant was all circumstantial. That evidence did not, however, irresistibly point to the appellant to the exclusion of any other hypothesis as the killer of the deceased. It was mostly guess work based on traditional values and principles like failure by the appellant to attend the deceased’s funeral, the appellant’s going away from and returning to the place where the other members of the family were seated and so on. We agree with Mr Karanja for the State that these activities did not constitute evidence from which an inference of guilt could be safely drawn. The State having conceded the appeal there was no need for Mr Menezes to argue his grounds of appeal. Consequently, the appeal is allowed, the conviction quashed and the sentence set aside. The appellant shall be set free forthwith unless he is otherwise lawfully held.”

36. Having considered the totality of the evidence adduced in this case, I find that the prosecution has failed to prove the case against the accused beyond reasonable doubt that the accused murdered the deceased. Accordingly, the benefit of doubt must go to the accused. In the premises, he is acquitted of the charge of murder and is set at liberty forthwith unless otherwise lawfully held.

37. It is so ordered.

G V ODUNGAJUDGEJUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 6TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: