[2017] KEHC 2838 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

HCCRC NO. 3 OF 2015

(MURDER)

(CORAM: J.A. MAKAU – J.)

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

VS

NICHOLAS OUMA MAYUMBA..............................ACCUSED

J U D G E M E N T

1. NICHOLAS OUMA MAYUMBAis charged with two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code (Chapter 63), Laws of Kenya.Under Count I; the particulars of the charge are that on the night of 18th day of March 2012 at Lundha Sub-location, Gem Sub-county within Nyanza Province, murdered GODFREY OCHIENG OGONJI whereas under Count II; the particulars are that on the same date, same place, same province, murdered MILLICENT ACHIENG.

2. The Prosecution was led by M/S Maurine Odumba, Learned Prosecution Counsel while Mr. Ariho, Learned Defence Counsel appeared for the accused. The Prosecution called a total of 8 witnesses; whereas the accused testified on oath but called no other witness.

3. The deceased were husband and wife. PW1, Rose Anyango Osare, a resident of Lundha sub-location and business lady at Bondo, testified that on 17th March 2012 at 8:30pm, that she was at her home when she heard a voice of someone and also a knock to her door saying, “Osare Osare”, and she asked who it was and he responded, “I am Ouma Mayumba”. PW1 did not open the door as the person asked her whether she had cigarettes of Superman and she told him she doesn’t sell cigarettes and he left. PW1 stated she had known him since 1993. She identified the accused (by pointing) at him in the dock. PW1 stated that on the material night, it was dark and there was no light outside, and that she did see the person. She stated in March 2012, she was not operating the shop as she stopped doing so on16th March 2012.

4. PW2, Fredrick Ouma Oduor, a Carpenter and resident of Lundha sub-location in Siaya County testified that on 17th March 2012 at 7:30pm on his way home from Asip Trading Centre, he saw a spotlight being flashed from behind, he decided then to stop to give way to the person behind him as he seemed to be moving fast, as he was running. That on reaching where PW2was standing, the person also stopped and asked PW2 who was smoking to lend him some cigarettes. He asked him, his name and he told him he was ODUOL GOMBE to which PW2 told him he was not ODUOL GOMBE and he knew ODUOL GOMBE, to which the person insisted he was ODUOL GOMBE. They talked for some time and the person enquired from PW2 whether he knew Jaguol also known as Ochieng Jaguol, to which PW2 confirmed he knew the person. The person told PW2 that person had wronged him because he had snatched his wife from him and told PW2 one day he would do something to that person. PW2 got shocked by what the person told him and he asked the person for his mobile number. He flashed his number to PW2’s mobile phone. PW2 then rang the number near the face of the person so as to see his face. PW2 saw the person was familiar to him. The person then picked his big bag, which he had put down, a panga wrapped in paper and iron bar. They then proceeded on the same way. PW2 stated he smelt petrol from the bag which the person was carrying on his back. PW2 got scared and took a different route but before they parted, the person asked him for a name of Rose Osare (PW1) and PW2 left him on the road that led to her direction. The following day, PW2 testified that at around 7:30am, he found a missed call from Michael Ndenda and on calling him, he told him Ochieng Ogonji and his wife were burnt while in their house. That PW2 then tried to call the number the person had given him, it went through but was not answered. He later got a message from another number stating as follows: “I am Ouma at Nairobi doing my normal duties. What do you said?”That PW2 met Michael Ndenda at his home and asked him to go the home of Ochieng Ogonji, but before they proceeded to the said home, one Odhiambo Osawa asked for the number, then used the phone of Michael Ndenda and called Ouma Mayumba through the number which had send the message and lied to him he was Bob Mumba and the two talked. PW2 did not hear what they talked about. He confirmed the person was Ouma Mayumba; that they proceeded to the home of Ochieng Ogonji, found APs and told them what he had witnessed. PW2 was directed to go to the police vehicle within the scene and he went. He was taken to Yala Police Station whereby he gave the 1st mobile number given to him by the person he had met the previous night and the 2nd number that had send the message to him. PW2 testified the person who he met switched off his torch when he reached him and that they were talking in darkness; he however, stated that he saw the person when PW2 switched his mobile light on. PW2 did not ask the person his name. He identified the person he saw that night as the accused in the dock (pointing at the accused).

5. During cross-examination, PW2, stated he met the person at 7:30pm and they were 5metres from each other. That there was no light at the material night and that he had not seen the person before. PW2 similarly was not familiar with the person’s voice. He stated the person gave him his name as Oduol Gombe. PW2 stated he cannot remember the mobile number off-head unless he checks from his phone. That the number given by the person was not picked but he received messages from a different number. PW2 said that he had saved the said person by the letter “P”. PW2 stated he was not called to identify the person in an identification parade.

6. PW3, Joel Michael Ndeda alias Mike, testified that on 17th March 2012, he was with one Godfrey Ochieng Ogonji at a funeral and they parted after the funeral, each leaving for his respective home. That the following day at 6:00am, his sister in-law Doreen Aoko informed him of the death of Godfrey Ochieng Ogonji and his wife, who he knew as Nyako Juoko following their house being burnt. He rushed to the deceased’s home, found people weeping, noted Godfrey Ochieng Ogonji completely burnt and the house still smoulding. PW3 and others assisted the Police load the deceased’s bodies in the police vehicle. PW3 then went to seek repayment of his money from Rose Osare (PW1) and in the process talked of the burning incident at the deceased’s home. She then mentioned to him that Nicholas Ouma Mayumba had gone to her place asking her to sell to him bhang and she told him she had stopped selling bhang. PW3 then called Fredrick Ouma asking him whether he was aware of what had happened to Godfrey Ochieng Ogonji and his wife to which he replied he was not aware. They agreed to meet at PW3’s home. PW2 told PW3 that the previous night he met with someone who introduced himself as Ouma Mayumba and asked him if one Godfrey Ochieng Ogonji was around and he confirmed to him he was, then Nicholas Ouma Mayumba told him Godfrey Ochieng Ogonji was having an affair with Ouma Mayumba’s wife and told him he would hear some news. He told PW3 that they exchanged mobile numbers and shared a cigarette. The two then proceeded to the scene of incident and found CID Officers from Siaya, found Deputy DCIO Jacob Wafula and Richard Ongari to whom they gave the information. PW2 and PW3 then boarded the police vehicle and proceeded to Yala Police Station where PW2 gave the police the mobile number of Ouma Mayumba; which PW3 stated he cannot recall it. That Mr. Wafula made some calls and told them that the owner of the number was by then at Londiani moving towards Nairobi direction; cautioning PW2 and PW3 not to call that number. They recorded their statements and went home. That on 22nd March 2012, PW3 was asked to go to Nairobi to meet some police officers and assist in the arrest of Nicholas Ouma Mayumba. The police officers picked PW3 from Ambassador Hotel, proceeded to Kabete Police Station, where he was left at the Canteen as police came back at 4:00pm, told PW3 they had some people in their custody and wanted him to identify one Nicholas Ouma Mayumba in the Report Room at the Police Station. He went there and found six people seated at the floor, he then proceeded and greeted Nicholas Ouma Mayumba, who stated he did not know PW3. PW3 was shown his identity card, some other cards and job card of Nicholas Ouma Mayumba and after that he was told mission accomplished. He stated Nicholas Ouma Mayumba is a person well-known to him as they come from the same village and he is a neighbour. PW3 identified Nicholas Ouma Mayumba (by pointing) at him at the dock, stating he is the same person he identified at Kabete Police Station.

7. On being cross-examined, PW3 said he had seen the accused before identification, the last time being in 2006. That on the night of the alleged incident, PW3 stated he was at his home sleeping. He denied that his father had a land dispute with anyone he is aware of. PW3 stated at the home of Walter Otieno, he saw burnt bodies and was unable to identify any of them.

8. PW4, George Otieno Ogonji, brother to the deceased, testified that on 23rd March 2012 with another were at Yala Level IV Sub-County Hospital to identify the body of the deceased namely; Godfrey Ochieng Ogonji, his brother and Millicent Achieng his sister in-law for postmortem purposes. PW4 identified the body of his brother and that of his sister in-law which were burnt beyond recognition and reduced to a size of about 2½ feet. That after postmortem, the bodies were released to them for burial.

9. On cross-examination, PW4 testified that the bodies were reduced in size but he could recognize the bodies by their sex. He stated no DNA tests were carried out to determine the bodies belonged to the deceased. He confirmed no other family claimed the bodies save PW4’s family. PW4 testified that the postmortem was carried out on 23rd March 2012 at 11:00am.

10. PW5, David Shivisi Laiti, a Security Supervisor at First Moments Security Services Ltd, an employee of the said company since 2nd May 2007 upto 17th March 2012, he stated that he was on duty at the company. That he stated his duties involved allocating and assigning duties to the employees and giving them off-duties and keeping records of the staff. He identified records for the period between 14th March 2012 to 21st March 2012, as records of employees under him were 14 in number. That the accused Nicholas Ouma was under him, and his name appears as No. 3. That he was off-duty from 15th March 2012 upto 22nd March 2012. PW5 stated the accused would be assigned duty or be deployed to Riara 2, Nairobi. On one being off duty, PW5 would make entry on the field OB, which is usually kept at the Assignment. He identified the OB, Original Record, in respect of entry of 14th March 2012, where PW5 recorded off-duty and signed it, adding the officer on duty do not sign. He stated the accused was not on duty from 15th March 2012 to 22nd March 2012, which PW5 signed as the person who was to do so and assigned one Wilson Adagala who worked upto 22nd March 2012. That Nicholas Ouma was supposed to report back on duty on 23rd March 2012 but did not. That PW5 received a telephone call from the caretaker one Cyrus of Dunhill Construction at around 3:10pm asking him to send another guard as Nicholas Ouma had been arrested. He made arrangements and sent another guard to the site. He made the entry in the original OB in respect of entry dated 23rd March 2012 and he signed the entry. On 19th April 2012, CID from Kabete Police Station went to his place of work enquiring whether Nicholas Ouma was working with their company. He confirmed and he was asked to go to Kabete to record his statement. He then did so and booked the scene in the company OB. PW5 stated that he had worked with Nicholas Ouma for 3 months and had come to know him; stating that he used to see him at least 8 times at his place of work each month and that he knows him by appearance and by his name. He identified the accused (by pointing) at him at the dock. PW5 identified the following intended exhibits which the Prosecution offered to produce certified copies but failed to do so upto date as the entries were photocopies of necessary documents and return but did not do so: -

a)Checklists: -

i)dated 14/3/2012 as MFI 1(a),

ii)dated 15/3/2012 as MFI 1(b)

iii)dated 16/3/2012 as MFI 1(c)

iv)dated 17/3/2012 as MFI 1(d)

v)dated 21/3/2012 as MFI 1(e)

b)Field OB of 14th March 2012 at 1800hours as MFI 2.

c)Office OB of 23rd March 2012 at 1501hours as MFI 3(a).

d)Entry of 19th April 2012 at 1250hours as MFI 4.

11. On cross-examination, PW5 testified MFI 1(a) to 1(e) are checklists confirming who had reported on duty. On 14th March 2012, the checklist has the name of Nicholas Ouma signing the time-in and time-out. That on 15th March 2012 MFI 1(b) has the name of Nicholas Ouma showing he was off-duty, however, it shows time in and out. PW5 stated Nicholas Ouma did not report on duty as he had written that before they agreed he was going off duty. And that he changed the entry to off duty in respect of checklist of 17th March 2012. The same has the name of Nicholas Ouma and with the other entries for time-in and time-out. That on the checklist of 21st March 2012, it has the name of Nicholas Ouma and is countersigned by the Manager, which he checks when paying people. On MFI 2 of 14th March 2012, he stated he recorded 8 days off but the entry does not have the name of Nicholas Ouma. PW5 testified that they did not make note in the OB if someone does not report on duty. PW5 confirmed he is the person who gives off-duties but leaves are given by the manager. On being re-examined, PW5 stated in the checklist, there were two entries as he had recorded before the accused came to ask for off-duty. On MFI P2, Field OB, he stated the name of Nicholas Ouma did not appear because in the assignment he was alone.

12. PW6, Dr. Charles Okal, a Medical Doctor for over 35 years, produced postmortem report on one Godfrey Ochieng Ogonji and one Millicent Achieng, which he had performed on 23rd March 2012 at Yala Sub-District Hospital Mortuary. He stated on the one of Godfrey Ochieng Ogonji was of a male approximately aged 39 years. On external appearance of the body, the doctor noted : -

a)“A body of a male in pugilistic stage with the upper limbs flexed.

b)Multiple heat fractures of the skull, femora, left knee with amputated left ankle.

c)The right tibia is fractured and amputated

d)Partially amputated fingers from burns.

e)The Penile shaft and scrotal sac burnt but discernible.

f)Burnt vegetation over the body (grass).”

As a result of the examinations, the doctor opinioned the cause of death was: -

“cardiopulmonary arrest due to suffocation and total deep body burns.”

On the second postmortem of Millicent Achieng aged 30 years was carried out on the same day and same mortuary. On external appearance, the doctor noted: -

a)“A body of a female identified by examination of the perineal area.

b)Multiple heat fractures amputating both upper limbs with proximal fractures and amputation of both femora.

c)Partially roasted gut over the burst abdomen.

d)Partially burnt grass over the waist and perineum.

e)Muscle tissue over the body.

f)Essentially cooked up.

g)Skull crushed with heat fractures.”

On the cause of death, the doctor opinioned: -

“cardiopulmonary arrest due to suffocation and extensive body burns.”

13. On cross-examination, PW6 gave his experience as of 37 years and stated, he first saw the deceased’s bodies on 23rd March 2012 and the deceased’s bodies were like roasted meat and were preserved. He stated there was a police officer and two people who identified the bodies. He stated the cause of death was cardiopulmonary arrest, adding the bodies had extensive deep burns.

14. PW7, Jacob Wafula, a retired Chief Inspector of Police, testified that he had worked as a Deputy DCIO, Siaya County for 7 years, between 2005 to 2012 before he retired in July 2014. He stated he was the Investigating Officer in this case. That on 18th March 2012, he received a report of fire incident at Lundha Area, within Yala Area. PW7 was instructed to team up with the OCS Yala Police Station and investigate the matter. PW7 informed the Scene of Crime office based in Kisumu to take photographs before he in company of other police officers proceeded to the scene. On arrival at the scene, they found a grass thatched house which had been burned down by fire with walls of mud. He got information, the OCS Yala had been to the scene and removed the bodies to Yala District Hospital Mortuary. While there, the Scene of Crime personnel arrived, took photographs and left for Yala District Hospital Mortuary, while PW7 and his officers remained at the scene gathering information. He was informed there were some boys with some information, he approached them and asked them whether they could accompany him to Yala Police Station. At the scene of crime, PW7 was given the names of the occupants of the house as Godfrey Ochieng Ogonji and his wife Millicent Achieng. He got information that at 2:00am on 18th March 2012, there were screams coming from the house of the deceased and people used jembes to break the wall but were unable as the fire was fierce. That in the compound they found a kitchen 15metres away which was intact. The door and window to the house were wooden and were completely burned. That the compound had other houses as it was compound of the deceased’s family and his father’s family and one of the deceased’s brother. That there was no electricity within the compound nor was there a fence and there was an open entrance with a gate. PW7 got statements from PW2 and PW3. That PW7 got the phone numbers of PW2 and PW3, as PW3 Joel Michael Ndeda said he had flashed the number of Nicholas Mayumba. Fredrick (PW2) also alleged he had flashed Nicholas Mayumba’s number who responded by sending a text message. PW7 stated he could recall the number of the accused as No. 0723[…] which they got from the phone of Fredrick (PW2) and Joel (PW3). PW7 started tracing the number and got the user’s first location was at Londiani at 12:58pm on 18th March 2012. That the accused had two numbers. The other number was traced at 12:58pm at the same place. PW7 learned in the cause of investigation, the accused had a grudge with Godfrey Ochieng Ogonji in that in 2003, the accused happened to have stolen a cow from Lundha Area and went to pay dowry for his wife at East Dienya using the stolen cow and the deceased happened to be amongst the people in company of police who pursued the accused and arrested him. Godfrey Ochieng Ogonji gave evidence in a criminal case of stock theft in Yala Police Case No. 635/65/03 Siaya and SRMCR. No. 256/2003, in which Nicholas Ouma Mayumba was accused, he jumped bail and started tracing down the witnesses. He stated they continued tracking the accused who was later traced at Dagoreti Corner Area in Nairobi and was arrested by police officers from Dagoreti Corner and taken to Kabete Police Station.PW7 then send two police officers on 23rd March 2012to collect the accused, who was brought to Siaya CID Office on 24th March 2012. PW7 took his mobile phone, Make: Nokia, which had two SIM cards, his national Identity Card in the name Nicholas Ouma Mayumba. That one of the SIM cards was number 0723-002552. That the other number was the one he used to reply to PW2. PW7 stated before he could confirm with Safaricom Service Provider on the numbers, he was transferred and he handed the file over to PC Richard Ogori with who he had initially visited the scene of crime. PW7 stated he does not know what transpired thereafter. He left the exhibit with the police, adding he was told the officer to whom he left the exhibit with died, and the office stated they did not know where he had kept the two items. PW7 stated he interrogated the suspect and recorded he be charged with the offence of murder. PW7 stated in the course of his interrogation, he found that the accused was employed by Fast Monitoring Security Company and during the week of murder, he was off-duty for 1 week. PW7 arranged the postmortem of the deceased bodies.

15. During cross-examination, PW7 stated that he does not have a copy of the charge sheet in which Nicholas Ouma Mayumba was charged but he has a copy of the Bond, that he does not have a copy from Safaricom Service Provider to show the owner of the alleged numbers. He stated he did not take the sketch of the scene nor record anything at the scene.

16. PW8, No. 73528 PC Quinto Odeke, a member of Directorate of Criminal Investigation, currently on attachment duties at Safaricom Law Enforcement Liaison Officer, Nairobi testified that he has an authority letter allowing him to testify which is usually issued on a receipt of a letter from Court for one to proceed to testify. The letter, he stated is dated 20th March 2017 addressed to the Court which he produced as exhibit P5. He testified his duties include data extraction referred to (CDR); MPESA statement extraction and that he is authorized to give evidence on the data that he has extracted from the document. He stated he received an order given in SRM Misc. CRC Appl.15 of 2013 ordering Safaricom Ltd to produce the following information in respect to the following mobile numbers: -

(i)0723[…]

(ii)0706[…]

He stated there was a request for the Kenya National Identity number. The order was to the effect that SAFARICOM do give the information required. The application was dated 6th May 2013 and the order issued on the same day. PW8 produced and pulled the information as sought. No. 0722[…] was registered in the name of Nicholas Ouma Mayumba, ID. No. […]. PW8 produced the referral document giving details as exhibit P6. On the 2nd mobile number 0706921490, there was no record found because at that time it was not a requirement for Kenyans to register their numbers. On the request by Richard for SAFARICOM to produce the call data records in respect of the following numbers:-

(i)0723[…]

(ii)0706[…]

PW8 stated as regards No. 0723[…] for the period between 5th February 2012 to 18th February 2012, he produced the request letter dated 9th March 2013 exhibit P7(a) and call data received from 0706[…] exhibit P7(b) and call data record in respect of 0723[…] as exhibit P7(c) and Certificate prepared by PW8 under Section 65(8) as read with Part IV, Section 106(A) an 106(B) of the Evidence Act (Cap 80) Laws of Kenyain respect of the certificate prepared by PW8 dated 28th March 2017 which was prepared after generating the information and which PW8 signed and which was approved by PW8’s Senior Manager, Law Enforcement Liaison, Safaricom Ltd; one Weldon Siongok, certificate produced as exhibit P8.

17. During cross-examination, PW8 stated that exhibit 7(b) does not show when the call was made out. On re-examination, PW8 stated there was no communication between the two numbers given to him and added, if the unregistered number communicated with 0723[…] that would be reflected as per exhibit 7(c). He urged no request for retrieval of SMS information was made.

18. When the accused was called upon to defend himself, he stated under oath, that before his arrest and being charged with this offence, he was employed by First Monitoring Security Limited where he had worked with the company for 4 years. He gave a defence of alibi. He stated that on 17th March 2012 and 18th March 2012, he was on duty at Nairobi and that he was not at Siaya County. He stated that on 17th March 2012 at 7:30pm, he did not meet Fredrick Ouma Oduor (PW2) and denied exchanging phone numbers with the said Fredrick Ouma Oduor. He denied having known PW2 and stated that he saw him for the first time in Court giving evidence against him. He said he saw PW3, Joel Michael Ndeda give evidence against him; and who is known to him, being the son of a Chief who he saw him with when he was a small boy in 1978 before he left for Nairobi. He stated at the time of his arrest and being taken to Kabete Police Station, he did not see PW2 and PW3. He denied having been identified at Kabete Police Station by PW3 or anyone and stated there was no identification parade at Kabete Police Station. That on arrival at Siaya Police Station, he was detained for 3 days, that identification parade was organized but witnesses never turned up and the accused was put in cells. The accused denied knowing David Shivisi Laiti (PW5) stating his immediate Supervisor was James Onyango. He denied having sought 8 days leave form his employer between 15th March 2012 and 23rd March 2012. He stated he did not file any form seeking leave nor sign any leave form and stated he was arrested on 23rd March 2012 while still on duty by Police Officers from Kabete, who did not tell him the reasons for his arrest and he learned of the charge at the time of the plea taking. He stated that he did not know any of the deceased persons nor Rose Osare Anyango nor did he meet her. He said he knows Joel Michael Ndeda whose father has entered into the accused family land. He concluded by saying he does not know anything concerning this case saying the last time he went home was in 2008 though his family stays at West Gem, Nyogodo.

19. During cross-examination, the accused testified that before his arrest he was staying at Nairobi alone and it was his wife who was visiting him at Nairobi saying the last time his wife visited him at Nairobi was in September 2011. He denied knowing PW5, PW1 and PW2 but admitted he knows PW3. He also denied knowing PW4. He stated he had a grudge with the father of PW3. He stated that on the night of 17th and 18th March 2012, he was on duty. He said PW7, who said the accused’s phone was tracked at Londiani to Nairobi and PW4 who said the accused was on leave, lied. He stated that he comes from the area where the incident alleged took place and that he was not a stranger hence he could not have asked anyone for directions. The accused reiterated he did not know Godfrey Ochieng Ogonji and he did not have any grudge with him. He denied that he had a criminal case at the Lower Court. He denied that Millicent Achieng was his wife, repeating that he did not know her and denied having been refunded dowry over Milicent Achieng.

20. Upon closure of the defence case, both Mr. Ariho, Learned Advocate for the accused and M/S M. Odumba, Learned Prosecution Counsel, made their respective rival submissions. Mr. Ariho, Learned Advocate submitted the Prosecution had not proved their case beyond any reasonable doubt. He urged in this case there was no eye witnesses and that the ingredients of murder were not proved beyond any reasonable doubt. He pointed out the malice aforethought on part of the accused was not established. That evidence of PW7 and PW8 failed to establish the communication alleged by PW2. That the accused gave a defence of alibi stating he was not at the scene of the crime and that he was at Nairobi at the time of the incident. He urged the charge against the accused person must fail and urged the Court to acquit the accused.

21. M/S M. Odumba, Learned Prosecution Counsel submitted that the Prosecution proved the case beyond any reasonable doubt as the Prosecution proved all the necessary ingredients of an offence of murder. That they proved death of the deceased persons and cause of death. That Prosecution proved that death was caused by the accused through PW1, PW2 and PW3. She urged PW7 established the source of the number that led to the arrest of the accused. That the accused was identified by PW3 at Kabete Police Station. That PW8 proved the mobile number belonged to the accused. That PW5 proved the accused was not off-duty at the time of the commission of the offence. On malice aforethought, the State Counsel submitted PW2 saw the accused with a bag and he smelt petrol. PW7 stated the counsel’s submission established a grudge. On the defence of alibi, the State submitted, PW1, PW2, PW3, PW6 and PW8 confirmed the accused was not at Nairobi.

22. The accused is facing a charge of murder. In proving a charge of murder, the Prosecution has to adduce evidence to prove that the accused caused the death of the deceased with malice aforethought. The Prosecution must establish that the accused had formed the necessary malice aforethought to either cause death or do grievous harm to the deceased. Malice aforethought is also proved if it is shown that the accused knew that his actions causing death would probably cause death or do grievous harm.

23. To prove a charge of murder, the Prosecution has a duty to establish the following ingredients: -

(i)Death of the deceased and its cause.

(ii)That the accused caused the death of the deceased through unlawful act or omission.

(iii)That the accused possessed an intention to cause harm/kill or had malice aforethought.

24. Whether the Prosecution has proved the death of the deceased and its cause of death? A postmortem was carried out on the two bodies of the deceased by PW6, Dr. Charles Okal, on 23rd March 2012 at 12. 00 noon and 12:30pm respectively in the presence of George Otieno Ogonji, PW4 who stated he was accompanied by Charles Oduor and both identified the deceased persons to the doctor for postmortem examination. The doctor produced postmortem examination report as exhibit 5(a) in respect of Godfrey Ochieng Ogonji and exhibit 5(b) of Millicent Achieng. PW7 stated the deceased bodies were taken to Yala Sub-District Hospital Mortuary by OCS from Yala Police Station. PW2, PW3, PW4 and PW7 confirmed the house in which the deceased had spent the previous night was burned completely and that the two were burnt beyond recognition. The death of the deceased is not in dispute. Dr. Charles Okal, PW6, opinioned the cause of death for both the deceased persons was due to cardiopulmonary arrest due to suffocation and extensive body burns. I find therefore, the Prosecution proved the death of the deceased persons herein and the cause of death.

25. I now turn to the next issue of who caused the deceased’s death? The accused gave a defence of alibi and denied having committed the offence. There was no eye witness in this case. The Prosecution is relying on circumstantial evidence. In Josiah Mwai Muya V Republic CRA No. 303 of 2007 [2011]eKLR, the Court of Appeal sitting at Nairobi considered when Court can rely on circumstantial evidence to convict and held: -

(1)For a court to rely on circumstantial evidence to convict, must be such evidence which irresistibly points at the person accused as the exclusive perpetrator of the crime charged and with no other co-existing circumstances which would weaken such a conclusion.

(2)The circumstantial evidence pointed exclusively at the appellant as the killer of his wife and there were no co-existing circumstances which would remotely weaken the circumstantial evidence adduced by the Republic in support of the charge of murder brought against him.

26. In Sawe V Republic (2003) KLR 354, the Court of Appeal considered when circumstantial evidence can form basis of conviction and held as follows: -

1)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 upon any other reasonable hypothesis than that of his guilt.

2)Circumstantial evidence can be a basis of a conviction only if there no other existing circumstances weakening the chain of circumstances relied on.

3)The burden of proof of facts which justifying the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence always remains with the Prosecution and never shifts to the accused.

4)……………………………………………………………………………

5)……………………………………………………………………………

6)……………………………………………………………………………

7)Suspicion, however strong, cannot provide the basis of inference of guilt which must be proved by evidence beyond reasonable doubt.

27. The Prosecution is relying on the fact that PW1, Rose Osare Anyango stated, on the material night at around 8:00 pm, she heard the accused Nicholas Mayumba, asking her whether she had cigarettes. The Prosecution is also relying on the evidence of PW2 who met someone at night at around 7:30pm, talked to him, and exchanged their mobile numbers. The Prosecution further relied on evidence of PW7 who stated he traced the accused’s number the following day at Londiani Area as the accused was moving towards Nairobi direction. The evidence of PW1 on identification of the accused should be treated with a lot of caution as she did not see the accused person on the material night but heard the voice which she claimed was that of the accused. PW1 heard the person calling her “Osare Osare”, and asked the person who he was and he said “I am Ouma Mayumba”. PW1 in her evidence stated she knew Ouma Mayumba as she had been married to the family where the accused’s mother came from since 1993. She did not see the person who she was talking to and who identified himself as “Ouma Mayumba”. PW1 did not in her evidence state that she was familiar with the accused’s voice and if she was, I find she would not have asked the person who he was and would in her evidence have stated she recognized the accused by his voice. I have further examined PW1’s evidence and what PW3 and PW7 stated, PW1 told them the person who she said identified himself as Ouma Mayumba; asked her whether she had cigarettes. She told the Court, the person asked for cigarettes whereas PW3 and PW7 stated PW1 told them that the person asked for bhang. I find that the evidence of PW1 is contradicted by PW3 and PW7 as regards what the person said to her on the other hand. PW2 met a person who he had never met before at 7:30pm in a dark area, had conversation with the stranger, who told him his name was Oduol Gombe and who asked him whether he knew Jaguol also known as Ochieng Jaguol and went on to tell him that person has wronged him because he snatched his wife from him and that the wife he was staying with is his wife. He told PW2 before they parted he would do big things to Ochieng Jaguol. The person gave PW2 his mobile number. That he saw the face of the stranger with the end of his mobile light when he was ringing the number given to him by the stranger. PW2 met the stranger for the first time at 7:30pm in a dark night and he purported he was able to see his face with the end of the mobile light. The intensity of the mobile light and the closeness between PW2 and the stranger has not been established. PW2 did not give description of the stranger to anyone but relied on the number purportedly given to him by the stranger. PW2 did not in his evidence disclose the number which he got from the stranger and subsequently gave it to PW7. PW2 did not even state the number he used to call the stranger and failed to get the response in his evidence in Chief. PW2 said he got a reply from a different number stating as follows: -

“I am Ouma at Nairobi doing my normal duties.

What do you said?”

Similarly PW2 did not in his evidence; disclose the number which sent the alleged message. PW2 met PW3 who asked for the number saying he knew it is Ouma Mayumba’s. PW3 called the number but PW1 did not know what the two said.

28. I have evaluated the evidence of PW1 and PW2 and I find that PW1 and PW2 did not identify the person they met as the conditions at the material time were not conducive to a favourable identification of anyone nor did PW1 recognize the person by his voice.

29. PW3 did not meet the accused at the material night of the incident. PW2 in his evidence he stated the person he met told him he was one Oduol Gombe. PW2 never told PW3 that he met Ouma Mayumba. PW2 stated in his evidence when he gave PW3 the number, PW3 said he had to talk to Ouma Mayumba. PW2 did not know the number that PW3 rang as he did not did he hear the conversation. PW3 in his evidence stated on 18th March 2012, he met with PW2 who told him he met someone on 17th March 2012 at night who introduced himself to PW2 as Ouma Mayumba and asked him if one Godfrey Ochieng Ogonji was around and he told him Godfrey Ochieng had an affair with Nicholas Ouma Mayumba’s wife and that he would never hear some bad news. I have considered the evidence of PW1 and PW2 and I find PW3’s evidence contradicts the evidence of PW2 as PW2 never gave PW3 the accused’s name of Ouma Mayumba as the person he met never introduced himself as Ouma Mayumba but as Oduol Gombe nor did the said person give the name of Godfrey Ochieng Ogonji nor did he claim Godfrey Ochieng Ogonji had an affair with his wife. PW3 contrary to the assertion by PW2 did not state he got any number from PW2 and called Ouma Mayumba. PW3 said after PW2 gave the number to PW7, it was PW7 who made a call. I have evaluated the evidence of PW3 and I find that the evidence contradicts the evidence of PW2, who admitted that he did not know the person he met at the material night. I therefore find that he could not have given PW3 the name of the person as that of Nicholas Ouma Mayumba because the person gave his name which was different from that of the accused and PW2 did not know the person. I therefore do not believe the evidence of PW3.

30. PW5, David Shivisi Laiti, a Supervisor with First Monitoring Security Services Ltd, Supervisor to the accused stated that he had given the accused off-duty for 8 days from 15th March 2012 to 22nd March 2012, he offered to produce a checklist dated 14th March 2012 to 21st March 2012 as MFI P1(a), (b), (c), (d) and Field OB of 14th March 2012 – P2, Office OB of 23rd March 2012 – P3(a) and Office OB entry of 19th March 2012 – P4. The accused denied that PW5 was his Supervisor. I have considered the evidence and I find PW5 was Supervisor with the company even if he was not the Immediate Supervisor of the accused. The accused was categorical that he did not ask for off duty for 8 days between 15th March 2012 and 22nd March 2012. I have very carefully considered the evidence of PW5 and also considered the checklist MFI P1(a), (b), (c), (d). The checklist MFI P1(a) to (e) confirm the accused was on duty. MFI P1(a) confirms the accused was on duty; MFI P1(b) of 15th March 2012 though said the accused was off-duty, it confirms he was on duty as PW5 claimed he had written that the accused was on duty before he gave him off-duty. That PW5 changed the entry to show off-duty. The entry of 17th March 2012, has the name of the accused as on duty and so is 21st March 2012. In this case, there is no letter of the accused having asked for off-duty nor letter authorizing him to go off-duty. The evidence of PW5 is in direct conflict with the checklist which shows the accused as having been on duty on the dates PW5 stated he was off-duty. In view of the above and the fact that Prosecution failed to produce the identified intended exhibits, I find the Prosecution failed to prove beyond reasonable doubt that the accused was off-duty between 15th March 2012 to 22nd March 2012. I have considered the accused’s evidence that he was on duty on 17th/18th March 2012 and find the Prosecution failed to prove he was off-duty, I give him the benefit of doubt.

31. PW7, Jacob Wafula Khaemba, did not establish the source and/or cause of fire which gutted down the deceased’s grassed thatched house. No evidence was adduced whether the fire started first from inside the house or from outside. He did not get the evidence from the father and brother of the deceased who were sleeping within the same compound at the time the fire occurred at 2:00am. No evidence was adduced as to whether there were some arsonists or not. No evidence that some exhibits were taken to find out the cause of fire and what might have caused the fire remains a mystery to date. PW7 stated PW2 told him he met Nicholas Ouma Mayumba at 7:30pm at Lundha Area carrying a big bag with a panga and that he told him Ogonji had taken his wife and he would see. That PW2 asked Nicholas Ouma Mayumba for his mobile number which he did. I have compared what PW7 stated he was told by PW2 with PW2’s evidence and I find that if then PW2 told PW7 he met Nicholas Ouma Mayumba and he told him he was wronged by Ogonji then PW2’s evidence is unbelievable as he told the Court he did not know the person he met; then if that is true, how come he gave PW7 the name of Nicholas Ouma Mayumba as the person he met.

32. PW7 stated he got the phone numbers of PW2 and PW3. PW7 stated he could recall the number of the accused as No. 0723-002552 when he got from the phone of PW2 and PW3. He claimed he traced the number and located the owner at Londiani on 18th March 2012 at 12:58pm. That the accused was later traced at Dagoretti Corner and arrested and taken to Kabete from where PW3 identified the accused. PW7 stated he got the accused’s phone and found these numbers. PW7 on being transferred he handed the file and exhibits to PC Richard Ogiri who subsequently died and as a result the Prosecution did not produce the two items, so what is the Court expected to make of the alleged untraced exhibits?

33. PW8, No. 73528 PC Quinto Odeke, a member of Directorate of Criminal Investigation, produced authority letter - exhibit P5; Registration details for 0723002552 - exhibit P6, Call data records in respect of Mobile No. 0723002552 and 0706921490. He also produced the request letter dated 9th March 2013 as exhibit P7(a), Call Data period for 0706921490 - exhibit P7(b), Data record in respect of 0723002552 as exhibit 7(c) and Certificate as exhibit 8. PW8 concluded that there was no communication between the numbers nor did he give any evidence showing communication of the phone numbers of PW2 and PW3 who had alleged they had communicated with the accused through his mobile number.

34. I have very carefully considered the evidence of PW1, PW2, PW3, PW6, PW7 and PW8. It is clear from the evidence that no one saw the accused at the deceased’s home or near the said home. I find that the circumstances from which the inference of guilt was sought to be drawn was not cogently and firmly established. The circumstances relied upon established that the accused was not identified by the Prosecution witnesses as the person PW1 and PW2 met at the night of 17th March 2012. The mobile telephone numbers allegedly exchanged between PW2 and the person PW2 met at night has not been established as no evidence from PW8 established the said numbers as having communicated with the accused’s number. The circumstances relied upon were not definite and unerringly pointing towards the guilt of the accused.

35. I have considered the entire evidence and I find that there are co-existing circumstances which would destroy the inferences of guilt on the basis of the evidence before Court. I find therefore that the circumstances taken cumulatively do not form a complete chain. I find there is escape from the conclusion that within all human probability the crime was committed by someone else and not the accused.

36. The accused gave a defence of alibi. He stated that on the date of the commission of the offence, he was at his place of work. The Prosecution through the evidence of PW5 failed to produce the exhibits and failed to establish through the MFI P1(a), (b), (c), (d) and (e), that the accused was off-duty. That even if that was established the Prosecution had the burden of placing the accused at the scene of crime which PW1 and PW2 failed to establish that indeed the accused was at the scene of crime. An accused person who gives a defence of alibi do not have to establish his defence of alibi is true nor is he supposed to prove his innocence but all that is required is to create some doubt in the Court’s mind. I find the Prosecution did not show the accused defence was not sustainable nor did they dislodge the same. I therefore give the accused the benefit of doubt. I find and hold the Prosecution failed to connect the accused with the deceased death and further failed to prove that the accused was the person who caused the deceased death as it is possible the fire which gutted down the deceased house could have been caused by someone outside the house or could have occurred from inside the house. Furthermore, no one saw the accused at the deceased’s home nor was there circumstantial evidence connecting the accused with the occurrence of the fire that consumed the deceased’s house and caused their deaths.

37. I therefore find and hold that the Prosecution failed to prove that it was the accused who set up fire on the deceased’s house and caused their death.

38. Whether accused had malice aforethought? The accused denied knowing any of the deceased persons. He denied having been at the scene of crime. PW2 testified the person he met told him one Jaguol had wronged him because he snatched his wife from him; the wife he stays with; and that one day he would do bad things to Ochieng Jaguol. PW7, the Investigating Officer stated there was an existing grudge between the accused and Godfrey Ochieng Ogonji (deceased) arising out of an incident in 2003, after the accused stole cows from Lundha Area and used the same to pay dowry for his wife at East Dienya; and the deceased happened to be one of the people who accompanied police, who pursued and arrested the accused. That the deceased gave evidence as a witness in a Court case of stock theft being Police Case No. 633/65/03, and Siaya SRM CRC. No 256 of 2003 in which Nicholas Mayumba was the accused. That the case was not completed as the accused jumped bail and started tracking the witnesses. That due to the said case the accused was tracked to confirm whether he was involved with the murder of the deceased herein. In the instant case, the Prosecution did not bother to call any evidence even from the deceased’s father or brother to confirm that the deceased Milicent Achieng was ex-wife of the accused nor did the Prosecution bother to produce the police file in respect of the case or the Court record in respect of the criminal case mentioned by PW7. I find that the alleged grudge between the accused and the deceased was not proved nor was there an attempt to do so, I find that what PW7 relied upon was a mere suspicion as was held in Sawe V Republic (2013) (Supra), suspicion, however strong, cannot provide the basis of inference of guilt but every case must be proved by evidence beyond reasonable doubt. There is therefore no evidence that the accused had planned to commit the offence or committed this offence. I therefore find that malice aforethought is therefore not proved.

39. Having come to the conclusion, I have of this case, I find that the Prosecution has not proved the case against the accused beyond any reasonable doubt. I find the evidence adduced insufficient to convict the accused with this offence. Accordingly, I find the accused not guilty of murder of the deceased persons contrary to Section 203 as read with Section 204 of the Penal Code. I direct the accused be released forthwith unless otherwise lawfully held.

DATED AND SIGNED AT SIAYA THIS 6TH DAY OF OCTOBER 2017.

J.A. MAKAU

JUDGE

DELIVERED IN OPEN COURT.

In the presence of:

M/S M. Odumba:for State

Mr. Ariho: for Accused

Accused– Present

Court Assistants:

1. Laban Odhiambo

2. Atika Leonidah

J.A. MAKAU

JUDGE