[2022] KEHC 666 (KLR)

Republic v Ochieng (Criminal Case E07 of 2020) [2022] KEHC 666 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 666 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case E07 of 2020

RPV Wendoh, J

May 5, 2022

Between

Republic

Prosecution

and

Caroline Atieno Ochieng

Respondent

Judgment

1. Caroline Atieno Ochieng, the accused, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the charge are that on 24/6/2020 at Dago Village in Kanyamkago Location, Migori County, murdered Lilian Achieng Odongo.

3. The accused denied the offence and the case proceeded to trial with the prosecution calling four witnesses.

4. PW1 Dr. Awinda Victor Omolo of Migori Referral Hospital performed post mortem on the body of Lilian Achieng Adongo who was aged about three (3) years. On external examination, the Doctor found a groove around the neck, about 2cm in width; periorbital and swelling of the cheeks indicating blunt force trauma to the face and bruises on the angle of the mandibles. The trachea was compressed; glotis was compressed and pushed out the tongue; bleeding on the covering of the heart, which happens when there is asphyxia; faecal matter in anus, and swollen face. The Doctor formed the opinion that the cause of death was asphyxia or lack of gaseous exchange in the lungs and the underlying cause of death was throttling or compressing of the neck which caused lack of gas which caused hence cardiovascular arrest. He further said that the marks on the mandible were evidence that the deceased was strangled using hands.

5. PW2 George Odhiambo Okoth, the Chief of Central Kanyamkango recalled that on 27/6/2020, at about 6:00 a.m he went to arrest the accused who was suspected to have murdered a child. He also recalled that earlier on 24/6/2020, about 7:00 p.m, he got information that the child he had rescued two (2) weeks earlier had been murdered. He went to the house, found it locked. He looked through the window and saw the body of the child on the floor and reported to the police. Earlier accused’s neighbours informed him that a lady wanted to kill a child in the maize plantation and that he went there and arrested the accused and the child and took her to Uriri police station together with the husband and left them there.

6. After finding the child dead in the house, he got a tip off that the accused had been seen in Nyaube Sub Location. He informed the Assistant Chief of the area Joseph Abuya and an elder to accompany him to the home where accused was arrested.

7. PW3 Millicent Atieno Otieno lived in the same plot with the accused. The houses were one roomed. She knew Accused and her husband, Dan and they had two children, one being the deceased who was handicaped. She could not walk or talk; that the accused used to care for the child as the mother had parted with her husband. She recalled one day in June 2020, she went to weed for somebody from 6:00 a.m and went back home at 10:00a.m. At about 3:00 p.m Accused’s husband enquired from her where his family had gone and she denied knowing. He claimed that he could not get accused on phone and asked for a harmer to break the padlock but she did not have and he then used a stone to hit the padlock open; that he entered the house and called her to their house and pointed at a corner where the deceased’s body lay, covered with a baby shawl and lying on a sack. Thereafter, people started to arrive at the house, police came and took the body away.

8. PW3 also recalled that on a date she could not recall, accused’s mother-in-law brought the child to accused one morning and thereafter, the accused left with the child. After a short while, motor cyclists gathered at accused’s door asking why accused had left the child in the maize plantation and that it is the cyclists who came back with the child. In cross examination, she admitted that on the date the deceased died she did not see or talk to accused and her husband on the morning that the deceased was found dead.

9. PW4 PC Julius Ngetich is the investigating officer in this matter. In company of other police officers, they visited the scene and found the body of the deceased, noted a swollen cheek and scratches on the upper part of the neck. He prepared a sketch plan. He also collected a stone that was used to break the door. Upon arrest, PW4 took the accused for mental assessment and was found to be fit to stand trial.

10. PW5 Calvince Onyango Otieno, a cousin to deceased’s father knew the deceased.

11. On 26/1/2020, he identified the deceased’s body to the Doctor before post mortem was done.

12. When placed on her defence, the accused made an unsworn statement. She told the court that she lived with Sheril Akinyi whose mother had left; that the deceased was sickly and a weakling; that she told the father of the child that she could not live with the child unless he took her to hospital; that the father took her to Uriri Hospital and they were referred to Migori but the father refused to take the child to hospital as directed. The accused left for her grandmothers’ house so that she talk to the husband. The grandmother told the husband to take the child to Migori Hospital but again he refused. She took the child to the grandmother and left her there and told her husband to take her to the hospital but he said he had to sell land that which he did. After selling land, the husband disappeared for three (3) days and she informed the grandmother that the husband disappeared and she took the child back and by then she was very weak. Her husband came back, they disagreed and she left for her home on 22/6/2020 and on 24th, it was alleged that she killed the child that it is her uncle who called the Assistant Chief who arrested her. She denied committing the offence.

13. This being a murder charge, contrary to Section 203 of the Penal Code, it is required of the prosecution to prove beyond reasonable doubt the following ingredients.:-1)Proof of death of the deceased;2)That the accused caused the act or omission that led to the death ;3)That accused had malice afterthought.

14. The death of the deceased is not in doubt. PW2, PW3, PW4 saw the deceased’s body. PW1 performed post mortem on the deceased’s body and formed the opinion that the cause of death was throttling, compressing the neck which caused lack of gaseous exchange that led to cardiovascular arrest. PW4 who went to the scene of crime noted that the deceased’s cheek was swollen and there were scratches on the upper part of the neck which was corroborated by the Doctors findings. No doubt the deceased met her death from somebody. The question is whether it is the accused who caused the death.

15. Nobody witnessed the accused fatally assault the deceased. The prosecution evidence against accused is circumstantial. Circumstantial evidence is said to be the best evidence. In Neema Mwandaoro Ndurya v Republic(2008) eKLR, the Court of Appeal reiterated the probative value of circumstantial evidence when it said:-“It is true that circumstantial evidence is often the best evidence as it is evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics as was said in R v Taylor Weaver and Donovan (19280 21 Cr App R 20). But circumstantial evidence should be very closely examined before basis of a conviction on it.

16. In Ahmed Aboljathi Muhamed and another v Republic (2018) eKLR, the Court of Appeal stated this of circumstantial evidence:-“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr App R 21:“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

17. The courts have laid down the test to be applied in considering when circumstantial evidence will support a conviction. In Musili Tulu v RepublicCriminal Appeal 30 of 2013, the court said:-“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v RCr App No 32 of 1990, this court set out the conditions as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; (iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else.

18. The evidence against the accused is that she lived with her husband one Dan and that two children including the deceased in one roomed house in a plot where PW3 also lived. PW3 told the court that on the material day. she did not see the Accused or the deceased. She came to learn of the death when the accused’s husband (Dan) came back home, did not find accused in the house nor could she be found on phone; that the said Dan broke into the house and found the child dead. PW3 did not see when Accused and her husband left the house on that morning or who left first. It is unknown at what time the deceased met her death. In my view, the accused’s husband was a key witness who should have been called to explain who was last in the house with the child. Under Section 127 of the Evidence Act, a spouse is not a compellable witness but where a child of the couple or of either of them is concerned, then the spouse becomes a competent and compellable witness in accordance with Section 127 (3) (a) of the Evidence Act. Section 127 provides as follows:-“i)the person charged shall not be called as a witness except upon his own application;ii)save as provided in subsection (3), the wife or husband of the person charged shall not be called as a witness except upon the application of the person charged;iii)the failure of the person charged ( or of the wife or husband of that person) to give evidence sha;; not be made the subject of any comment by the prosecution.3)In criminal proceedings the wife or husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of such person, in any case where such person is charged-a)with the offence of bigamy; orb)with offences under the Sexual Offences Act; orc)in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them, and not otherwise.4)In this section ‘husband’ and ‘wife’ mean respectively the husband and wife of a marriage, whether or not monogamous, which is by law binding during the lifetime of both parties unless dissolved according to law, and includes a marriage under native or tribal custom.”

19. The deceased was Dan’s child from another wife. The court has no idea why the prosecution chose not to call the said Dan as a witness. In my view, without calling him to explain the events of that day, he was also a suspect. The other reason why the accused became a suspect in the murder is because PW2 and PW3 recalled that earlier on about two weeks earlier, it was alleged that accused had taken the child(deceased) to a maize plantation and left her there. The person who saw her take the child to the maize plantation was never called as a witness. Although PW2 claimed to have rescued the deceased two weeks before her death, he did not give a detailed account of where exactly the child was found and who saw accused take the child to the maize. It is alleged the accused who had taken the child to the maize plantation, but it all remains strong suspicion against accused. Although accused’s lengthy explanation that the child was sickly, did not explain the injuries on the deceased’s face and the strangulation marks on the deceased’s neck, the Accused is only a prime suspect. The failure to call accused’s husband as a witness leaves a gap in the prosecution case. For the above reasons, I find that the circumstantial evidence against accused does not unerringly point to accused’s guilt.

20. The evidence is too scanty and disjointed to result in a conviction. Suspicion alone, however strong cannot be a basis for a conviction.

21. In the end, I find that the prosecution has not proved the charge of murder against the accused to the required standard of beyond reasonable doubt. The Accused is therefore acquitted of the charge of murder and I hereby set her at liberty forthwith unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 5TH DAY OF MAY, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Omooria for the State.Mr. Agure holding brief for Ms. Apondi for Accused.Accused present.Nyauke Court Assistant