[2022] KEHC 1636 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL CASE NO. 58 OF 2018

REPUBLIC...................................................................................................................(ODDP)

VERSUS

NYUNDO MWAMUYE NYUNDO...................................................ACCUSED PERSON

J U D G M E N T

1. The accused Nyundo Mwamuye Nyundo is charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code.

2. Particulars are that the accused Nyundo Mwamuye Nyundo on the night of 8th and 9th September 2018 at Mtsengo Village, Mwanamwinga Location of Kilifi County murdered Sidi Gowe Iha.

Prosecution case

3. PW1 testified that the deceased was their neighbor and she lived near the well which they used to fetch water. She said the accused was also their neighbor and lived one hour away from them. She testified that on the morning of 9th September 2018 she woke up and saw the accused and Kazungu taking alcohol and dancing to Giriama songs in the homestead as there was a memorial service for her husband’s late uncle.

4. That PW1 went to fetch water near the deceased person’s home and she learnt that the deceased had died. When she returned home and informed the accused and Kazungu about the death, the accused told her to give him her hand. That when the accused stretched his hand to greet her, she saw blood stains on his shirt and he claimed that he bled on his nose. That the accused borrowed a shirt from her husband to wear so that he could go to the deceased person’s home but when he was given the shirt to wear, he did not go to the funeral. PW1 kept the accused person’s shirt in a bucket and the next day the accused person’s mother collected the blood stained shirt.

5. In cross examination, PW1 said that several goats were slaughtered at the memorial ceremony by their sons. That Nyundo was not at the place where goats were being slaughtered and she did not know if he was one of those who were slaughtering but he claimed that he had bled from the nose. She said that when she woke up she found Kazungu Charo and the Accused dancing while drunk at her door but she did not know when they got drunk as she did not keep vigil. She said that she did not go to where the goats were slaughtered. She also said she was not aware the deceased was accused of witchcraft and that the child who died in the village was supposed to be buried on the day that the deceased was killed. PW1 said that she kept the accused person’s shirt in a bucket and that she did not hide it, and that the accused person’s came and found the shirt and took it away.

6. PW2, Assistant Chief of Kitengwani Sub Location testified that on 9th September 2018, Daniel Changawa, a Village Elder called and reported that an old man was found murdered in her house. The Assistant Chief reported to his seniors and the OCS Kaloleni Police Station and proceeded to the scene where he found a crowd of people had gathered. PW2 observed multiple cuts on the deceased’s head and on inquiry there was no positive response as to what had happened. That the OCS arrived at the scene and after recording statements collected the body of the deceased for preservation and postmortem.

7. The Assistant Chief held several meetings in the village where he met one Mzee Samuel Kazungu who told him that he had information that could help in the murder of the deceased. Samuel Kazungu informed him that the accused had been seen wearing a blood stained shirt which he removed and borrowed a clean shirt from Kitsau, and Kitsau’s wife kept the blood stained shirt in a bucked that was later collected by the Accused Person’s mother. The Assistant Chief collected the shirt Exhibit 1 from the mother of the accused and the mother of the accused told him she had washed it but she handed over the shirt and the vest which were handed over to Kaloleni Police Station.

8. The Assistant Chief in cross examination said the deceased was suspected to be a witch and that it was claimed that she had bewitched a child who had died in the village. He said that there was an opening on the roof of the deceased person’s house which would have been used to gain entry.

9. PW3 identified the shirt that he saw the accused person wearing on the morning of 9th September 2018 and which he said had blood stains on the sleeves. That when he asked that accused about the blood stains on his shirt, the accused told him that he was also not aware. PW3 said that the arrived in the morning at the ceremony and found that the accused was already drunk and that he was not aware whether the accused had left the homestead on the material night and he could not tell he was the one who killed the deceased.

10. PW4 the Investigating Officer, Inspector Ibrahim Bonaya testified that the OCS Kaloleni Police Station received a report from the Assistant Chief Sammy Baya that a lady had been murdered in Musengu Village. They visited the scene and found the body of the deceased in a house that was locked from the inside and they collected the body and took it to the mortuary for preservation and postmortem of which it was released for burial. That after some time, the Assistant Chief and informers told him that there was a suspect for murder and they visited the homestead and arrested the Accused Person. PW4 testified that the accused was suspected of having committed the murder because he was seen wearing a shirt with blood stains on the morning in question and the said shirt was retrieved from the Accused Person’s mother and taken as an exhibit. According to PW4, the Accused alleged that the blood stains came from an animal that he had slaughtered that morning and at the same time that his nose had bled.

11. In cross examination by the Accused Person’s advocate, PW4 said that he did not indicate in PW1’s statement that she saw the Accused Person come from the deceased’s house. He said he preferred charge against the Accused because he did not deny that the blood stained shirt was his and he did not explain the source of the blood. PW4 said he arrested 8 suspects in relation to the murder herein but only charged the Accused Person with the offence. He said that there was a hole on the deceased person’s wall and that there was space between the iron sheets and the wall which could have been used to access the house. He also testified that a shirt was handed over to him and the same was taken to Government Chemist for analysis but he did not complete investigations as he went on transfer and handed the matter to his colleagues.

12. According to the evidence of Dr. Mansur who conducted postmortem on the body of the deceased Sidi Gowe Iha and prepared Postmortem Report produced by Dr. Sheila PW5, the deceased died due to massive hemorrhage secondary to severe head injury. On examination of the deceased’s body, Dr. Mansur observed right frontal parietal wound measuring approximately 10 centimeters on the head which had exposed the skull. He also observed another wound measuring 8 centimeters in length on the left side which exposed brain tissue with injury to the brain.

Defence case

13. When placed on his defence, the accused person denied having committed the offence. He admitted that he was at PW1’s home which is also his uncle’s home for a memorial ceremony where 6 goats and 2 cows were slaughtered and because he was taking alcohol during the night, he fell on the ground where the animals had been slaughtered where his shirt got blood stains. That when he woke up in the morning, he continued drinking and he could not remember having had any conversation about the state of his shirt. The accused person said he did not know the deceased, neither did he kill her or gain entry into her house as he was totally drunk on the material night. That his mother did not hide the blood stained shirt and they did not call her as a witness neither was a report produced confirming the blood stains on his shirt matched the deceased person’s shirt.

Analysis and Determination

14. The prosecution is required to prove the ingredients of murder beyond reasonable doubt against the accused person for it to secure a conviction. Section 107 (1) of the Evidence Act states as follows: -

‘Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’

15. On the ingredients of the offence of murder contrary to Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused was charged, the court held as follows in the case of Republic v Andrew Omwenga [2009] eKLR: -

“It is clear from this definition that for an accused person to be convicted of murder, it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or omission – there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:

(a) The death of the deceased and the cause of the death;

(b)That the accused committed the unlawful act which caused the death of the deceased; and

(c)That the accused had the malice aforethought”.

16. From evidence adduced by the prosecution, it is not in dispute that the deceased died and that the death was caused by an unlawful act actuated by malice aforethought but the issue in dispute is whether the accused is the one who committed the murder. PW1 testified that she saw the accused wearing a white shirt which sleeves and chest had blood stains and she gave the accused her husband’s shirt to change so that he could go to the deceased person’s home and she kept the blood stained shirt in a bucket and the mother of the accused picked it the following day.

17. PW2 recovered the shirt, a vest and bedsheet from the mother of the accused when Samuel Kazungu informed him that the accused was a suspect but from the evidence of the investigating officer, PW4, he went on transfer before forwarding the said shirt for Government Chemist for analysis to establish the nexus between the blood on the accused person’s shirt and the deceased.

18. Considering that this was the only evidence that could have connected the accused person to the offence and considering that the accused person has denied having committed the offence, lack of evidence connecting the blood stains on his shirt to the deceased makes this court find that the prosecution has failed to prove their case beyond all reasonable doubt. The Accused Person is found not guilty and is acquitted accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 10TH DAY OF MARCH, 2022

HON. LADY JUSTICE A. ONG’INJO

JUDGE

In the presence of: -

Ogwel- Court Assistant

Ms. Ngiri for the State

Mr. Muthuri Advocate for the Accused Person – No appearance

Accused present in person

HON. LADY JUSTICE A. ONG’INJO

JUDGE