[2014] KEHC 7697 (KLR)

REPUBLIC OFKENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL CASE NO.24 OF 2009

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

VERSUS

NASERA OLINGIT MOLLEL………………………......………………………………1ST ACCUSED

MIMUTYE SARUNI MOLLEL……………………........………………………………2ND ACCUSED

JUDGMENT

Nasera Olingit Mollel, the 1st Accused and Mimutye Saruni Mollel, 2nd Accused were charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 1st March 2009 at Kawangware in Nairobi, the accused persons, jointly with others not before court murdered Ithuku Mbithi (the deceased). When the accused persons were arraigned before this court, they pleaded not guilty to the charge. The prosecution called ten (10) witnesses in a bid to establish the case against the accused persons. After the close of the prosecution’s case, the court put the accused persons to their defence. They gave unsworn statements in their defence. Counsel for the accused persons made closing submission urging the court to reach a finding that the prosecution had not proved its case against the accused persons on the charge of murder to the required standard of proof. On its part, the prosecution submitted that it had established all the ingredients of the charge to enable the court convict the accused persons.

The hearing of the case commenced before Mwilu J (as she then was). She heard four (4) prosecution witnesses. This court took over the proceedings and heard the remaining six (6) prosecution witnesses. The court also took the evidence adduced by the accused persons in their defence. This judgment is therefore written on the basis of the evidence adduced before Mwilu J (as she then was) and before this court. The facts of this case are as follows:

The accused persons were employed as security guards by a construction company known as Devshibhai & Sons. At the material time, they had been employed to guard a construction site at Lavington area in Nairobi. The 1st Accused was employed as a day watchman while the 2nd Accused worked as a night watchman. The accused persons are Tanzanian nationals. Both resided within the construction site with the deceased who had been employed as a storekeeper. On 1st March 2009, at about 7. 15 p.m. PW2 Venicas Ndalo Wanyama and PW4 Charles Nyagara Momanyi were at their place of duty at the offices of Lutheran World Federation off Gitanga Road next to the construction site where the accused persons were working. PW2 and PW4 were security guards employed by KK Security Guards. PW4 was a dog handler. The two witnesses testified that between the offices that they were guarding and the construction site where the accused persons worked was a fence. They testified that they heard noises emanating from the construction site. They described the noise similar to that of a person being strangled. They went to the fence to investigate. They took turns to peep into the compound of the construction site. Next to the fence was constructed a temporary structure where the deceased lived. The structure was constructed of iron sheets.

According to PW2 and PW4, while peeping through the fence, they saw three people looking inside the house where the deceased lived. The two witnesses testified that they were positive that it was the accused persons that they saw. The third person was described as a Maasai who had torn ear lobes. The two witnesses however conceded that it was their first time to see the accused persons. No identification parade was later conducted by the police to enable the said witnesses confirm their identification of the accused persons as the persons that they saw on the material night. PW4 recalled that he decided to press the alarm. After a short while, PW7 David Kizito Makokha, an employee of G4S Security Guards responded to the alarm. He was accompanied by three of his colleagues. The time that he was notified by the alarm was 7. 50 p.m. He rushed into the compound where PW2 and PW4 were guarding. They informed him that there was robbery taking place in the next compound where there was a construction site. PW7 notified his employers. He was instructed to report the incident to the police. PW7 rushed to Muthangari Police Station where he made a report. After making the report, he was accompanied by several police officers including PW9 Sgt Charles Suter to the construction site.

It was the testimony of PW9 that when they reached the construction site they were able to access the site through a pedestrian opening next to the main gate. The pedestrian opening was not locked. They entered the compound and on commencing a search, they realized that there were many people in the compound. A colleague of PW9 called PC Ambasa shot in the air. They managed to apprehend eight men in the compound. Some of the men were apprehended as they were attempting to jump over the fence into neighbouring compounds. Among the eight suspects arrested were the accused persons. PW9 testified that some of the suspects who were in the compound managed to make good their escape. After arresting the suspects, they carried a search of the compound. They realized that the temporary structure where the deceased used to live had been broken into. They saw several mattresses strewn on the ground. They lifted the mattresses and saw the body of the deceased. The deceased was lying on his stomach. His mouth had been gagged with a piece of cloth (the piece of cloth was produced as Prosecution’s Exhibit No.4). A big rope had been used to tie both his legs and hand. The rope was tied in such a manner that it had gone round the neck of the deceased. The legs were also bound using a binding wire (produced as Prosecution’s Exhibit No.8). A manila rope and a black telephone wire was also used to tie up the deceased (produced as Prosecution’s Exhibit No.9(a),(b) and (c)). There was a hammer resting on top of his legs.

PW9 testified that on realizing that the deceased had been killed, he notified the OCS Muthangari Police Station. The OCS came to the scene together with Scenes of Crime Officers. PW6 Cpl. Stephen Nyamai was one of the Scenes of Crime Officers who visited the scene. He recalled that on 1st March 2009 at about 9. 50 p.m. he was instructed to visit the crime scene. He met with PW9. He was shown the body of the deceased. He took seven (7) photographs showing the body of the deceased at different angels. He also prepared a report certifying that he had supervised the processing of the photographs. The bundle of photographs together with the report were produced as Prosecution’s Exhibit No.7(a) and (b).

PW8 Patrick Omesa Mogowa testified that he was an employee of the construction company at the time of the incident. He was employed as a foreman. He testified that the accused persons were at the material time employed as security guards at the construction site at Lavington: one was a day security guard while the other guarded the premises at night. Both accused persons lived within the construction site. The deceased was employed as a Storekeeper. He also resided within the site. He recalled that on the morning of 2nd March 2009, he reported on duty as usual at 7. 00 a.m. He was surprised when he was prevented from entering the compound by G4S security guards. They informed him that a robbery attempt had taken place the previous night as a result of which the deceased had been killed. PW8 immediately called his employer one Jadu Nanji. He was requested to record a statement at Muthangari Police Station. He checked the premises and discovered that nothing had actually been stolen from the construction site even though the house where the deceased used to reside had been broken into. He also noted that some of the items from the construction site had been packed inside gunny bags. The gunny bags were however not removed from the store. He testified that in the period that the accused persons had worked at the construction site, he had not had any problem with them. He confirmed that the accused persons were legitimately within the compound at the construction site at the time of their arrest.

PW9 testified that after the arrest of the eight (8) suspects, they were taken to Muthangari Police Station where they were interrogated. The police officer who was assigned to investigate the case was PW10 Cpl Joseph Nyasimi. He testified that after concluding his investigations, he reached the determination that the persons ought to be charged with causing the death of the deceased were the accused persons. On being asked why he had released the other six (6) suspects, yet they had been found within the construction site at the material time that the accused persons were arrested, he explained that upon interrogating the said suspects, they told him that they had been hired to ferry some things from the construction site. PW10 did not however elaborate who had given instructions to the six (6) suspects to ferry things from the construction site at the time of the night. He did not explain why the suspects were not even charged with the lesser but cognate offence of attempted robbery with violence in the sense that the deceased was killed at the same time that they were arrested at the construction site. PW10 explained that he was instructed by the Attorney General to proceed and release the six suspects on condition that the said suspects would be made prosecution witnesses. He however lamented that he was unable to get into contact with them to testify in the case. He was not able to trace them in the addresses that they had provided him.

Upon their arrest, the accused persons were taken to the Nairobi Police Surgery where they were examined by PW1 Dr. Zephania Kamau. This was on 10th March 2009. He formed the opinion that both accused persons were mentally fit to stand trial. He did not see any bodily injuries on the 1st Accused. The P3 form was produced as Prosecution’s Exhibit No.1. In respect of the 2nd Accused, he noted the following injuries: he had bruises on the left forehead which had healed. There was another injury on the left orbit (beside the ear). The 2nd Accused told PW1 that he was assaulted on 1st March 2009. In the doctor’s opinion, the injury may have been caused by a blunt object. PW5 Dr. Johansen Oduor performed the post mortem on the body of the deceased. Before the post mortem, the body of the deceased was identified by PW3 Robert Mbiti Mukola, the father of the deceased. The doctors noted the following injuries on the body of the deceased: multiple bruises on the face, head and on the chest. There were also multiple bruises on the shoulder and the neck. On internal examination, there was extensive haematoma. There was also fracture of the right side of scalp. There was extradural haematoma. He was of the opinion that the cause of death was due to head injury caused by a blunt object. The post mortem report was produced as Prosecution’s Exhibit No.6.

When the accused persons were put to their defence, they gave unsworn statements in their defence. Both accused persons testified that on the material night they were attacked by a gang of robbers while they were at the construction site. The gang of robbers subdued them before restraining them. The 1st Accused managed to escape and hide within the compound while the 2nd Accused was beaten before managing to run away. It was their testimony that while the robbery was taking place, they heard a gunshot before the police rounded up the gang who were in the process of robbing them. They were surprised that they were included as suspects in the attempted robbery and the killing of the deceased despite of their plea that they were infact victims of the robbery. They further claimed that they were legitimately in the compound at the material time. The accused persons attributed their arrest and subsequent charge to the fact that they were unable to pay the bribe demanded by the police and by the fact that they were Tanzanians while the rest of the suspects were Kenyans. They pleaded their innocent to the charge. They testified that the deceased was their colleague at their place of work. They had no reason to harm him.

This being a criminal case, the burden of establishing the guilt of the accused persons on the charge of Murder contrary to Section 203 of the Penal Code to the required standard of proof beyond any reasonable doubt is on the prosecution. This burden does not at any time shift to the accused persons. The accused persons are under no obligation to prove their innocence. If any doubt shall be raised in the evidence adduced by the prosecution, the same shall be resolved in favour of the accused persons. The prosecution relied on direct evidence and circumstantial evidence in its bid to establish the guilt of the accused persons. As stated earlier in this judgment, this court took over these proceedings after four (4) witnesses had testified before Mwilu J (as she then was). Two of the witnesses who testified before the Learned Judge were PW2 and PW4. These were security guards who were at the material time working in the neighbouring compound to the construction site where the accused persons worked. According to the two witnesses, at about 7. 15 p.m. they were alerted to noises which were emanating from the neighbouring compound. They walked next to the fence to investigate.

According to the said two witnesses, they peeped over the fence and were able to see the two accused persons in company of another inside a room where the deceased was later found. Despite the two witnesses conceding to the fact that they had not met with the accused persons prior to the material evening, they testified that it was the accused persons whom they had seen inside the particular room. They were not able to give descriptions of the clothes that the accused persons wore at the material time. They did not tell the court how they were able to be certain that it was the accused persons and no one else whom they had seen in the particular room on the material night. They did not give the description of the persons they had seen to enable the court to be certain that indeed it was the accused persons they had seen. PW2 in his testimony testified that he was able to identify the accused persons because the security lights had been switched on. On his part, PW4 testified that he saw “three Masais one with a torn ear lobe. That one is not in court. The other two are in court -there at the dock – points at the accused. They looked worried and shaking their hands. He suspected they had done something wrong. We pressed the alarm. I did not see anything else.” After the arrest of the accused persons, no identification parade was conducted by the police to enable the two witnesses confirm their identification of the accused persons. They did not give the physical description of the accused persons when they recorded their statements with the police. It was clear to this court that the evidence of identification by the two witnesses did not meet the legal standard. This court is not persuaded that the two witnesses indeed identified the accused persons as the persons who assaulted and caused the death of the deceased. That evidence of identification is neither watertight nor persuasive to make this court reach a finding that it was indeed the accused persons who had been positively identified by the two witnesses.

No prosecution witness testified that he actually saw the accused persons assault the deceased and thereby caused him to sustain the fatal injuries. The prosecution essentially relied on circumstantial evidence to support the charge against the accused persons. As was held by the Court of Appeal in the case of Sawe –Vs- Republic [2003] KLR 364 at page 372:

“In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution and always remains with the prosecution. It is a burden, which never shifts to the party accused.”

In the present case, the accused persons were charged on the basis that they were security guards at the construction site at the material time. Both accused persons were residing at the construction site. It was the prosecution’s case that since the accused persons were at the construction site at the time the deceased was killed, then the inference that can be drawn is that they were involved in the death of the deceased. PW8, the Foreman at the construction site testified that when he reported to work on the following morning after the deceased had been killed, he informed by PW2 and PW4 that a robbery attempt had been made at the site as a result of which the deceased had been killed. PW8 checked the site and realized that an attempt had been made to pack some of the construction materials in gunny bags presumably so that they could be carted away from the construction site. However, nothing was stolen. PW9 and PW10, the police officers who visited the scene and also investigated the case told the court that they arrested more than eight suspects at the scene. It was PW9’s testimony that some of the suspects made good their escape by jumping over the fence. All the suspects who were arrested at the site save for the two accused persons were released.

Now, if the prosecution was relying on circumstantial evidence to prove that it was the accused persons and no one else that killed the deceased, that reliance was debunked by the fact that there more than six (6) other men who were at the construction site at the time the deceased was found having been killed. This court did not buy the story put forward by PW10 as to why the six suspects were released. PW10 testified that the six suspects were released because the police were satisfied with their explanation which was to the effect that they had been hired by someone to assist in the ferrying of certain goods from the construction site. That story does not wash because the six suspects were clearly at the construction site without the authority on permission of the owners. Then again, who would have hired them to ferry goods at that time of the night? The only plausible explanation is that whoever hired them, if that story is to be believed, was a criminal who had planned to commit robbery at the construction site. The explanation given by the accused persons in their defence to the effect that they had been attacked by a gang of robbers who incapacitated them before attempting to commit robbery at the said construction site is more plausible.

In the premises therefore, this court is not persuaded that the prosecution adduced sufficient evidence to establish the guilt of the accused persons on circumstantial evidence to the required standard of proof beyond any reasonable doubt. It was apparent to this court that persons who may have committed the crime were left to go free when the police bungled the investigation. They failed to follow other plausible leads including the obvious lead that the six suspects that they had arrested at the site were unlawfully in the said site. The only inference that could be drawn by their presence in the said construction site at the particular time of the night is that they were there to commit a felony, specifically robbery, and in the course that robbery killed the deceased in order to subdue him. The only reason that the accused persons were charged with the offence was because they were employed as security guards at the construction site at the material time. PW8, the Foreman at the site testified that the accused persons were exemplary employees who had not shown any acts of indiscipline in the period that they had been employed. The prosecution therefore failed to establish their case on the charge of Murder as against the accused persons to the required standard of proof beyond any reasonable doubt.

The accused persons are acquitted of the charge of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The charge was not proved. They are ordered set at liberty forthwith and released from lawful custody unless otherwise lawfully held. It is so ordered.

DATED AT NAIROBI THIS 25TH DAY OF FEBRUARY, 2014.

L. KIMARU

JUDGE