[2023] KEHC 27383 (KLR)

Republic v Okilo (Criminal Case E025 of 2021) [2023] KEHC 27383 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27383 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case E025 of 2021

HI Ong'udi, J

December 13, 2023

Between

Republic

Prosecution

and

Patrick Okilo

Accused

Ruling

1. Patrick Okilo stands charged with the offence of the murder contrary to section 203 as read with section 204 of the penal code. A total of eight (8) witnesses testified before the prosecution closed its case. The doctor who conducted the post mortem on the deceased’s body testified as Dr. George Biketi (PW1). He found the cause of death to be “severe head injury due to blunt trauma” (EXB1).

2. Two witnesses Oliver Kipchumba Rono (PW4) and Dennis Kipkemoi (PW7) who are employees at Gulf Petrol Station testified that on 30th May, 2021 around 3. 00 – 3. 30pm the accused who they know came to fuel his motorbike at their station. He had a passenger who was not known to both of them. The accused and his passenger were drunk and were shouting at each other.

3. The deceased’s wife who testified as PW6 (Christine Moraa) stated that the deceased left home on 30th May, 2021 morning and returned in the evening at 5pm, while drunk. He was walking but never talked to her. He then started vomiting and was later taken to hospital by his mother (PW2).

4. No. 79684 Cpl Edwin Koech of DCI Molo investigated the case. He stated that while carrying out their investigations they went to Gulf Petrol Station but found the CCTV not working. He learnt that it had stopped working a week before the incident. Upon being cross examined he stated that PW4 and PW7 did not state anywhere in their statements that the accused assaulted the deceased.

5. No. 61974 P. C Jeffer Mwathi attached to Mau Summit Police Station stated that he visited the scene which was at a petrol station. He was with other officers and they asked the manager to open the CCTV footage and there was no sign of any fight at the scene. The CCTV wasn’t working and so no information was disclosed. He could not recall which attendant told them that the deceased had been assaulted.

6. Patricia Nyakerario (PW2) the deceased’s mother came to his house when he was not talking so she never talked to him. Same to his wife PW2 Christine Moraa and PW3.

7. In the written submissions dated 7/11/2023 learned counsel for the accused person M/s Githae submitted that the prosecution had failed to prove a prima facie case against the accused. That the elements of Mensrea & Actus reus had not been proved.

8. She further submitted that the investigations by PW8 were biased as they only focused on the accused a boda boda rider who was merely carrying out his duties. She urged that there were contradictions in the prosecution evidence especially that touching on the CCTV footage. Reference was made to the cases of:i.Criminal Appeal No. 21 of 2018 – M W Vs Republicii.Philip Nzaka Watu V Republic (2016) Cr. Appeal No. 29 of 2015

9. It is her final submission that the prosecution had failed to establish a prima facie case against the accused person. On this she relied on the case of:Silas Magongo Onzere alias Fredrick Namema [2017] eKLR

10. Learned counsel for the prosecution Mr. Kihara filed submissions dated 22nd November, 2023 in which he argued that the prosecution had established a prima facie face against the accused. He submitted that malice aforethought was not established as information was not sufficient since the commotion was only between the two. He noted that both were inebriated and in some disagreement.

11. He submitted that the remaining evidence was circumstantial but which pointed to the accused as the aggressor. Reliance was placed on the cases of:i.DPP Kiborne 1973 A C 729ii.Misho Trilo V Republic Cr. Appeal No. 30 of 2013,iii.Sande V Republic [2003] 2 KLRiv.Abanga Alias Onyango V Cr. Appeal No. 32 of 1990.

12. Counsel further submitted that the deceased was struck once and that was the fatal blow according to the doctor’s finding. The blow was on the head which is a very sensitive part of the body. He thus asked the court to place the accused on his defence.

13. I have considered the evidence of the eight (8) witnesses plus the submissions by both counsel. At the close of the prosecution case and before the accused person is placed on his/her defence the following must be proved.i.The fact and cause of deathii.That the accused’s act of commission or omission caused the deceased’s deathiii.Proof of the intention to cause harm or kill (malice aforethought)

14. In the present case the fact and cause of death are not disputed. PW2, PW5, PW6 and PW8 have confirmed that indeed the deceased died on 31st May 2021. The cause of death as stated by Dr. Biketi (PW1) was severe head injury due to blunt trauma.

15. The next issue is whether the evidence by the prosecution witnesses show that it is the accused person who inflicted the fatal injury on the deceased person. The key witnesses as far as this issue is concerned are PW4 and PW7. They were attendants at the Gulf Petrol Station and are said to have been present when the accused (motorbike rider) came there carrying his passenger (deceased). It was broad daylight.

16. Both witnesses told the court that when the accused and deceased arrived at the station they were both drunk and were shouting at each other but not quarrelling. Infact PW4 stated that after fueling he told the accused to leave. At page 18 of the proceedings he stated this:“The deceased wasn’t assaulted at the petrol station. CCTV can show everything”.

17. Coming to PW7 he testified that the accused and deceased were quarrelling when they came to the petrol station. He further states at page 24-25 of the proceedings.“Patrick hit his passenger on the head. He knocked him using the hand (fist). He boxed him once. They went away to town Jogoo”.

18. In cross examination he said this at page 25:“I recorded my statement at the police station. I didn’t write that I witnessed the fight. I indicated they were abusing each other. He pushed him not hit not”.Even upon re-examination he repeated“Patrick pushed him. He didn’t hit him. They moved after the fueling and I heard the talk”.

19. The above narrative is the evidence of the supposed to be key eye witnesses whom the prosecution has relied on to establish a prima facie case“Prima facie case: is defined by the Black’s Law Dictionary 10th edition as”.1. The establishment of a legally required rebuttable presumption.2. A party’s production of enough evidence to allow the fact – trier to infer the fact at issue and rule in the party’s favour”.

20. In the case of Ramanlal Trambaklal Bhatt V R [1957] E.A 332 at 334 and 335. The court stated thus:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be though sufficient to sustain a conviction”. This is perilously near suggesting that the court would not be prepared to convict if no defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence, irrespective of its credibility or weight sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of witness discredited evidence ……… It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly addressing its mind to the law and the evidence could convict if no explanation is offered by the defence”. Also see the case of Ronald Nyaga Kiura V Republic [2018] eKLR.

21. There are many other decisions that speak to this issue. In the present case I have found the witnesses (PW4 and PW7) to be unreliable witnesses who blew hot and cold whenever it suited them. The CCTV evidence would have been the best placed to be relied on to support their evidence. The same was never produced for reasons best known to the investigators.

22. Assuming that I placed the accused on his defence and he elected to remain silent and not call any witness would this court convict him on the evidence before the Court? My answer would be a big NO.

23. In the circumstances I find no prima facie case established against the accused who I hereby acquit under section 306 (1) Criminal Procedure Code. He shall henceforth be released unless otherwise lawfully held under a separate warrant.

24. Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 13TH DAY OF DECEMBER, 2023 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE