[2022] KEHC 11898 (KLR)

Republic v Nakola & another (Criminal Case 15 of 2017) [2022] KEHC 11898 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11898 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Case 15 of 2017

K Kimondo, J

June 9, 2022

Between

Republic

Prosecution

and

Ezekiel Saitabu Nakola

1st Accused

Monica Muthoni Mwangi

2nd Accused

Ruling

1. The accused persons are charged with murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars are that on 20th March 2017 at Karega Sub-Location, Kigumo Location, Kigumo Sub-County within Murang’a County, they jointly murdered Grace Wangari Mwangi.

3. They pleaded not guilty. The prosecution lined up twelve witnesses.

4. I am now called upon to determine whether the evidence is sufficient to call for a rebuttal from each of the accused persons.

5. Learned Prosecution Counsel and the two defence counsel opted not to make submissions.

6. The 1st accused was employed as a guard at the deceased’s homestead and resided in the same compound. His wages were however paid by one of the deceased’s sons, Bishop Muiru. The 2nd accused is a wife of the deceased’s son, Mathew Waweru Mwangi (PW1). Their residence was roughly 10 metres from that of the deceased.

7. The deceased went missing on 20th March 2017. Efforts to trace her by her close family members proved futile. A report of a missing person was hence made to Kigumo Police Station on 22nd March 2017.

8. The remains were discovered on 26th March 2017 interred in a shallow grave behind the cowshed next to a cow’s carcass that had been buried there two weeks earlier. The body was exhumed and preserved at Lee Funeral Home in Nairobi.

9. From the autopsy report by Dr. Oduor Johansen produced by PC Kosgey (PW12) under section 77 of the Evidence Act, the death resulted from “asyphysia due to ligature strangulation”.

10. According to Felista Wambui (PW3), an Mpesa agent, the 1st accused, who was well known to her, withdrew some money from the deceased’s cell-phone on 21st March 2017. Another witness (PW1) testified that the cellphone was later recovered hidden under a mattress in the house of the 1st accused. The 1st accused had earlier told some witnesses including PW1 and Nicholas Njuguna (PW5) that the deceased left the compound on 20th March 2017.

11. The 1st accused was arrested by Chief Inspector Stephen Wainaina (PW8) and Corporals Makau and Kaburi (PW6 and PW7). According to PW8, the 1st accused opened up about the matter and recorded a statement under inquiry before Chief Inspector Festus Okoth. He implicated the 2nd accused who was also arrested.

12. There is then the evidence of a girlfriend of the 1st accused, Elizabeth Nyambura (PW9). In March 2017, the 1st accused gave her several household items including a TV decoder, remote, two mattresses, plastic seats and stools. According to PW8, the items were stolen from the deceased’s homestead.

13. Applying the precedents in Bhatt v Republic [1957] E.A. 332 and R v Kipkering arap Koske & another 16 EACA 135 (1949); and, upon the digest of the evidence of all the twelve witnesses, I find that the Republic has established a prima facie case against the 1st accused.

14. Accordingly, under the provisions of section 306 (2) of the Criminal Procedure Code, I place the 1st accused (Ezekiel Saitabu Nakola) on his defence.

15. I will now turn to the evidence against the 2nd accused. Like I stated earlier, she was implicated by the 1st accused. PW8 testified that the latter claimed to have been given Kshs 3000 by the 2nd accused. Chief Inspector Stephen Wainaina (PW8) discredited that version. He said that by the time he handed over the investigations to the Criminal Investigation Division, he had “no evidence to charge the 2nd accused”.

16. I should add that the deceased’s son, Felix Mwangi (PW4) claimed that the deceased and the 2nd accused had a poor relationship because the latter used to take the deceased’s things without permission. He also testified that the deceased suspected that the 1st and 2nd accused had an illicit affair.

17. In a criminal trial, the standard of proof is beyond any reasonable doubt. As things now stand, the family of the deceased had serious suspicions on the complicity of the 2nd accused in the murder. However, there is no reliable evidence proving that the 2nd accused killed the deceased or pointing to malice aforethought. Paraphrased, there is no sufficient evidence to convict if the 2nd accused opts to keep silent.

18. The law on that subject was succinctly captured in Bhatt v Republic [1957] E.A. 332 at 334-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. [underlining added]

19. From my analysis of the evidence and the legal authorities, I am not persuaded that the Republic has proved a prima facie case against the 2nd accused sufficient to place her on her defence.

20. Accordingly, under the provisions of section 306 (1) of the Criminal Procedure Code, I enter a finding of not guilty against the 2nd accused (Monicah Muthoni Mwangi) and she is hereby acquitted.It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 9TH DAY OF JUNE 2022. KANYI KIMONDOJUDGERuling read in open court in the presence of-1st and 2nd accused persons.Mr. Mbuthia for the 1st accused instructed by J. N. Mbuthia & Company Advocates.Mr. Kamata for the 2nd accused instructed by Kamata & Company Advocates.Mr. Kiirui for the Republic instructed by the Office of the Director of Public Prosecutions.Ms. Susan Waiganjo, Court Assistant.