[2022] KEHC 14151 (KLR)

Republic v Nyongesa & another (Criminal Case 8 of 2020) [2022] KEHC 14151 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14151 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 8 of 2020

SN Riechi, J

October 3, 2022

Between

Republic

Prosecutor

and

Josephine Machuma Nyongesa

1st Accused

Erick Juma Misiko alias Job

2nd Accused

Judgment

1. The accused Josephine Machuma Nyongesa accused 1 and Eric Juma Misikho alias Joba ccused 2 are charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the offence are that on the January 30, 2020 at Ngwelo village, Sitikho location in Webuyo West sub County within Bungoma County murdered Isaack Makokha Wafula.

3. The case for the prosecution is that Accused 1 Josephine Machuma Nyongesa is the wife of the deceased Isaac Makokha Wafula. PW1 GM a child aged 8 years old and in class 3 at [particulars withheld] Educational Centre was a child of the accused 1 Josephine and Deceased Isaac. PW1 testified that the deceased used to be engaged in cutting trees at the Nuclear estate, where he would go in the morning and come back. There was a day he went to work and did not come back. That is the last day she saw him. She knew accused 2 Job as a friend of her father the deceased.

4. PW2 Isaac Wasike testified that on February 10, 2022 at 11 a.m. he smelt a foul smell from a sugar cane farm. He went there to check and saw a body of a male person. He did not know the person. He reported to Nyumba kumi official who informed the ass-chief. Police were informed and came to the scene and took away the body. He observed that the right hand had been cut and body had started to decompose.

5. In cross examination by Mr. Olonyi for accused, he stated that the wife of the deceased was brought to the scene and also saw Job (accused 2) at the scene but he escaped. He confirmed that he knew accused 2 Job to be working together with the deceased.

6. PW3 Beatrice Namalwa Nangwendo a village elder of Luanda village testified that on February 10, 2020 she was at the shopping centre when Eric accused 2 told her that there was a body of a person at a sugar cane farm. She went with him to the scene where she saw the body of deceased which was decomposing and one leg missing. She informed the assist-chief who called police.

7. PW4 Amos Wanyonyi the assist chief Alumui sub-location received a report from Beatrice (PW3) the ass-chief that a body had been found in a sugar cane farm. He went there and found the wife of the deceased who is accused 1. He asked her if she had made a report of missing person and she told him she had not though he had gone missing for 2 weeks. At the scene members of public wanted to beat her but she was taken by police. He stated that he did not see accused 2 at the scene.

8. PW5 Christine Nanjala Wanyama testified that she is the sister of accused 1 Josephine and knew accused 2 Job as her husband. On February 11, 2020 she was at her home when 2 children BJ (14 years old) and F (3yrs old) who were her late sisters children and were staying with accused 1 and 2 came and informed her that (accused 1 and 2) were not at home. She allowed them to stay at her home. She went to where accused were staying and found the door open. She removed their belongings and took them to her house. At 10 a.m. police officers came. They went to her home and saw the items she had taken. The next day they went to the house of accused 2 and took other items. Police also took away a T-shirt and apron which she had removed from accused’s house. She also burnt other items she removed from accused’s house and was arrested and detained or 14 days and taken to court at Webuye but was never charged.

9. PW6 Mark Wafula Wephukhulu the brother of the deceased received information that his brother had been killed and his body was in a sugar farm. He went there and confirmed the same. He observed the body and saw a cut wound on left elbow and left hand and the body had decomposed. In cross examination he confirmed accused 1 Josephine was wife of deceased. They held a clan meeting and asked accused 1 how deceased had died. She told them he had disappeared but didn’t to report. She said that Job accused 2 had told her that deceased had assaulted him while riding his motor cycle.

10. PW7 Gilbert Bukelende a cousin of the deceased received information on 10. 2.2020 that deceased had been found murdered. He together with the mother of the deceased went to the scene where he identified the deceased. He noticed the arm had been cut, toes were missing. Police took away the body. Accused 1 Josephine was called to a meeting where she was asked about the death. She told them the deceased had gone missing but she had not reported the issue. Accused 2 Job who was called to the meeting did not attend. They were both arrested by police.

11. PW8 Leonard Manyasa Muilano a bodaboda rider and friend of the deceased went to check on deceased at his home on February 1, 2020. He found the wife accused 1 who told him deceased had not been seen for 2 days. He advised the wife accused 1 to report to police. Later he heard a body had been found and he went there and saw the body which had decomposed.

12. PW9 NO. 254XXX PC Police Afula attached to Bungwelo police post received information from the assistant chief that a body had been found in his sub-location. He and other police officers visited the scene where they found the body in a maize farm. The body had decomposed and was taken to the mortuary. He recorded statements of witnesses and once Gloria informed him that deceased had left with one Job (accused 2) and was not seen again until his body was recovered.

13. PW11 PC John Maru the Investigating officer visited the scene with IP Ruguru and found police officers from Ngwelo police post had arrived earlier and recoded statement of witnesses. From the statement he found that deceased had disagreed with his wife accused 1 and then disappeared until when the body was recovered. They visited the home of accused 1 the wife and found she had removed household items to her sister called Christine.

14. PW10 Dr. Philiph Koskey who performed the post mortem on the body of the deceased testified that he found the body had decomposed, all body systems distorted, skull exposed and bones on legs exposed and toes missing. He could not therefore establish the cause of death but from history suspected it to be shocks due to bleeding. He issued death certificate No……..as exhibit. 1

15. The accused gave sworn statement in their defence. Accused 1 Josephine Machuma Nyongesa stated that the deceased was her husband. On January 30, 2020 she left the deceased at home with children and went to see food stuff. When she came back she did not find him. In the evening she called his phone but it was switched off. He did not come. On February 1, 2022 one Khamala came and she informed him deceased had not come home. She also informed deceased’s mother. On February 10, 2020 the village elder Beatrice came and informed her a body had been found in a maize farm, she went there and recognized the long trouser deceased was wearing and identified the body as that of the deceased. She started that she knew accused 2 Erick as the friend of deceased and asked him about deceased’s whereabouts.

16. In cross examination by M/s Omondi she stated that deceased left home on January 30, 2020 but she did not report to police as he used to go away to cut sugar cane without informing her and wound even sleep out 2-3 days.

17. Accused 2 Erick Juma Misikho testified that the deceased was his friend as they used to work together when cutting sugar cane. He last saw him on January 2, 2020 at Muelo when they were going home from work. On February 10, 2020 he heard that a body had been found in a sugar cane farm. He went there and observed the body which had decomposed. He admitted deceased had given him a motor bike on January 2, 2020 when they were going to work.

18. The accused are charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 provides:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”The ingredients of the offence of murder that the prosecution must prove beyond reasonable doubt are:a)The fact and cause of death.b)The unlawful act or omission causing the deathc)That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d)That the accused committed the unlawful act with malice aforethought.

19. On the fact of death, accused 1 the wife of the deceased confirmed to court in her defence that she identified the decomposed body of her husband the deceased from the long trouser he wore. PW10 Dr. Kosgei who performed the post mortem on the remains of the deceased confirmed the fact of death. On the cause of death, PW10 Dr. Kosgei was unable from the post mortem examination to determine the cause of death due to the fact that the body had decomposed. The cause of death therefore is not established or known. He was unable to establish whether the cause of death was natural or man made but from the history suspects shock due to bleeding. This evidence confirmed that the cause of death is not known.

20. On who caused the death of the deceased, PW1 Gloria Makokha testified that she saw the deceased last on the day he went to work. PW2 Isaac Wasike testified on how he went to his farm and saw a body of the deceased and informed Nyumba Kumi who informed ass-chief. PW3 Beatrice Namalwa only accompanied accused 2 Eric to the place where the body was recovered. PW4 Amos Wanyonyi the ass-chief testified that accused 1 informed him that deceased had gone missing but had not made a report to police. PW5 Christine Nanjala the sister of accused 1 Josephine received information that accused 1 was not at her house and went and removed her property to her house. PW6 Mark Wafula a boda boda rider received information of a body having been found and he went there and confirmed it was the deceased who was his brother and the body had decomposed.

21. In cross examination he stated that in a clan meeting they interrogated accused 1 who said deceased had disappeared but she had not reported to police. They also interrogated Gloria who said she saw accused 1 beating deceased.

22. PW7 Gilbert Bukulembe accompanied PW6 Mark Wafula to the scene where they identified the body of the deceased. they then called police who took the body to the mortuary. He also attended the clan meeting where accused 1 was interrogated. PW8 Leonard Wanyama a friend of the deceased went to look for him at his home on February 1, 2020 when accused 1 informed him deceased had not been home. He made calls to friends and workmates who wound know his whereabouts but all said they had not seen him.

23. None of these 8 witnesses who testified for the prosecution testified as to how the deceased died. All of them testify as to how his decomposed body was found on February 10, 2020.

24. The defence of accused 1 the wife of the deceased is that the accused disappeared from home and she reported to the mother of deceased but not to the authorities. Her explanation is that the deceased used to go to work in cutting cane for long period without telling her. Accused 2 while admitting to be a friend of the deceased testified that he did not know of his disappearance until the body was recovered.

25. The prosecution relied on the allegation that PW1 Gloria had said that accused 1 and deceased fought. PW1 Gloria testified in court and stated:“I went to school on that day. When I came back I did not find my father. He never used to go to work but was cutting trees at Nuclear. He would go in the morning. On that day he went to work. He did not come back. That was the last day I saw him. I know Job accused 2. I used to see him with my father. I have forgotten when I saw him last with my father.Cross examination by Olonyi for accused 1I have come to explain. Have never gone to police. We slept at 8 p.m. I sleep with my mother. My father used to drink changaa.”

26. This evidence does not in any way link the accused 1 and accused 2 with the death of the deceased.

27. Having considered the whole evidence in totality I find that the prosecution has not proved the charge of murder against accused 1 Josephine and accused 2 Eric beyond reasonable doubt. I therefore find accused 1 Josephine Machuma Nyongesa and accused 2 Eric Juma Misikho alias Job not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and acquit each one of them accordingly. I direct that the accused 1 Josephine Machuma Nyongesa and accused 2 Eric Juma Misikho be set at liberty unless otherwise lawfully detained.

DATED AT BUNGOMA THIS 3RD DAY OF OCTOBER, 2022S.N RIECHIJUDGE