[2023] KEHC 25095 (KLR)

Republic v Ouma (Criminal Case 35 of 2012) [2023] KEHC 25095 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25095 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 35 of 2012

PJO Otieno, J

November 9, 2023

Between

Republic

Prosecution

and

Josephat Otieno Ouma

Accused

Judgment

1. The accused person, Josephat Otieno Ouma, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the nights of 13th and 14th day of July, 2012 at Nyapora Village, Indangalasia Sub location in Matungu District within Kakamega County with others not before court, the accused murdered Desterio Omwanda Chitayi. He denied the charge, pleaded not guilty to the charge and in order to discharge its burden of proof under section 107(1) of the Evidence Act, the prosecution tendered evidence from five (5) witnesses.

The Evidence 2. PW1, George Mutobela, testified that he was a resident of Indangalasia and that on July 13, 2012 at about noon he was at his home when one Oraro visited him and asked him to escort him to Masindivale Village to source for land to buy. The visit was not successful and they returned home at 8PM. The following day at about 5:30AM other two people came to his home and informed him that Oraro had been killed. He went to the scene and saw the body body, which was bleeding from the nostrils. The phone, a Nokia that the deceased was using the previous day was missing at the scene. In Court, he was shown a phone which he identified as that of the deceased and was marked for identification.

3. On cross examination he stated that the deceased was his neighbor and he only knew him by the name Oraro. He denied having known the Accused.

4. On being questioned by the Court, the witness stated that he saw the deceased’s phone at the police station when he went to record his statement.

5. PW2, Emily Adhiambo Omwanda, testified that she was the deceased’s wife having been married to him for 14 years and that on July 13, 2012 she was at home with her children when at about 6AM she heard the deceased’s son by the name of Stephen Muga shouting that his father had been killed. She rushed to the scene where she found the body of the deceased which had cuts on the eyes and the ears and the neck was injured. She claimed that the deceased had left home the previous day in the company of PW1 to source for piece of land to buy but never returned home. She later heard that the deceased’s phone had been recovered and she went to Mumias Police Station where she identified the phone on which the deceased had engraved his initials, “doc”, on the side.

6. On cross examination she stated that the deceased bought the phone in the year 2002 at Kogalo market along Mumias road and that she did not have his phone number off head.

7. PW3, Basiliano Adundo Chitai testified that he was a brother to the deceased and that on 13/7/2012 he was at the deceased’s home when the deceased left in the company of PW1 to go look for land to buy. On 14/7/2012 he heard wailing and news that the deceased had been found dead on the road about 300 meters from his home. He went to scene where he saw the body of the deceased and informed the assistant chief who in turn called the police. On 18/7/2012 he attended the deceased’s post mortem examination and the doctor informed him that the deceased had suffered a cracked skull leading to bleeding into the brain. On 14//9/2012 he was called to the station together with PW2 where four people were called from the cells and they were told they were culprits having been arrested in Butere and he identified the deceased’s phone which was a Nokia 1110 and which had initials “doc” on the side. He said that the phone was recovered from a lady who informed the police that she had bought the phone from the accused. He stated that he knew the accused whose home was 1. 6 Km from their home and that the deceased was an aid to the assistant chief.

8. On cross examination he stated that he identified the deceased’s phone by the marking on it though he did not have the receipt for purchase.

9. PW4, No. 60666 CP Francis Taiget testified that he picked up the file from one PC David who had also picked up the matter from PC John Munyao who was the initial Investigating Officer. His evidence was based on notes and witness statement of that office was that on 14/7/2012 PC Munyao received a call from Chief Indangala Location to the effect that a body was lying along marram road within his area. A team of police officers then went and recovered the body of the deceased which had blood oozing from the back of his head. The deceased’s phone, Nokia 1110 Serial No. 3555110xxxxx250, with a telephone number 0710xxx036 was later recovered with the assistance of the Telcom service providers which phone he produced as PEXH 1. An autopsy was also conducted on the deceased which established the deceased’s cause of death as intracranial pressure secondary to epidural hecmatoma due to head injury.

10. By consent of the parties, the autopsy report was produced as PEXH 2. The witness added that the telephone was recovered from the accused and that is why he was arrested and charged.

11. On cross examination he stated that the arrest of the accused followed a report to the police by an informer and that though the police file had no inventory of items recovered from the accused, the accused had not denied the recovery of the phone.

12. After he was placed on his defence, the Accused elected to give sworn testimony and stated that before his arrest he was a brick maker and that he did not know the deceased. He stated that he was arrested by the police and taken to the station where he found a man and a woman who had been in police cells for one week and who alleged that he sold them a phone belonging to the deceased.

13. On cross examination he stated that he had never used a phone in his life and that he did not sell a phone handset to any of the witnesses as alleged.

Submissions by the State 14. Ms. Chala, the prosecutor, submitted that the death of the deceased has not been denied and that the cause of the death has been noted in the autopsy report as intracranial pressure secondary to epidural hematoma due to head injury implying that it was not natural death and that circumstantial evidence reasonably points to the accused since the phone was recovered from a person to whom he sold it two months after the death of the deceased and that the Accused offered no explanation how he came by the mobile phone. On the element of malice aforethought, she argued that the nature of the injury sustained by the deceased show that the intention of the accused was to cause grievous harm on the deceased.

Accused Person’s Submissions 15. It is his submission that no evidence was tendered on how the accused was arrested since none of the witnesses was an eye witness to the assault leading to the death of the deceased. He argues that it was the testimony of PW3 that when he got to the station he found four people in custody and they all admitted to have been in possession of the subject phone and it is not clear how they chose to charge him. He claims that PW4 testified that the other suspects were to be state witnesses yet none of them testified. No evidence was led on how the phone was obtained from the accused as there was no inventory and that no telecommunication expert was called to relate the phone to the deceased.

16. For the prosecution to earn a conviction, all the ingredients contained in section 203 of the penal code ought to be proved beyond reasonable doubt. The onus is upon the prosecution to prove the death of he deceased; that his death was caused by the unlawful acts of the Accused and that in causing the death the Accused was actuated by malice aforethought.

Whether Desterio Omwanda Chitayi is deceased 17. All the prosecution witnesses, except the Investigating Officer confirmed the death of the deceased a fact reinforced by the autopsy report. The death is thus not in doubt. The first ingredient was then sufficiently proved.

18. On whether the death was caused by unlawful acts is equally not in doubt. The evidence by all witnesses supported by the post mortem report converge on the fact that the deceased died due to injuries inflicted by an assault on him. An assault on any person is by itself unlawful unless explained to have been justified or justifiable in law. On the evidence that the deceased was assaulted on the head leading to bleeding into the brain, it is determined that the commission leading to that injury was unlawful and thus unjustifiable.

19. The question that must be determined is whether the Accused was identified to have been the attacker of the deceased who inflicted to fatal injuries. Here the prosecution hinges his case on the recovery of the phone and urges the Court to invite the application of the doctrine of recent possession.

20. The benefit a prosecutor derives from inviting the doctrine of recent possession is that it shifts the evidential burden of proof from the prosecution to the Accused and requiring him to explain his possession of the item complained about. That however only happens after the prosecution have proved certain basic facts being that the item he had in his possession has been recently stolen and that there are no co-existing circumstances which point to any other person as having been in possession of the item. Being a presumption of fact, the doctrine is a rebuttable presumption hence the Accused is called upon to offer an explanation in rebuttal, and when he fails to do so, an inference is drawn that he either stole it or was a guilty receiver. See Malingi v Republic [1989] KLR 225

21. The Court of Appeal in Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga v R [2006] eKLR stressed that for the doctrine of recent possession to stand, the possession must be positively proved. It held;“It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first that the property was found with the suspect, secondly, that the property is positively the property of the complainant; thirdly that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one to the other.”

22. The person who gave evidence on investigation was not the Investigating officer but relied on statement of the person who did so. He asserted that the phone was recovered from the Accused but no inventory of recovered items was compiled. On the other hand, PW3 gave evidence that he was told by the police that the phone had been recovered from a lady and a man who alleged to have brought it from the Accused. The two people who were indeed in custody of the police before the Accused was arrested, were never called to give evidence. The two were very critical witnesses. Failure to call them dents the evidence in prosecution’s case and leave the link between the Accused and recovery of the phone shattered. The failure entitles the Court to draw the adverse inference that, had they been called, their evidence would have been adverse.

23. As observed by the Court of Appeal in Donald Majiwa Achilwa & 2 others v Republic [2009] eKLR;“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. …Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case.”

24. The Court finds this to be a case where the police were not keen and intentional in investigating in order to help the Court establish the truth. That said, I find that the prosecution has failed to prove beyond reasonable doubt the offence of murder against the accused. In addition the case having been grounded on circumstantial evidence, it was important to establish the recovered phone indeed belonged to the deceased. That could have been done by production of evidence on whose sim card was used by he Accused. That was easily available from the Telcom which helped trace the phone. No evidence was led in that regard. In fact, not even the relatives of the deceased were helpful in disclosing the number the deceased used. It gives the impression that the matter was conceived, investigated and presented with no much regard whether critical evidence was availed. It lives gaps that present the Court with grave doubt on critical aspects. The Court resolves the doubts in favour of the Accused. It is therefore the conclusion that the prosecution failed to prove the case against the Accused beyond reasonable with the consequence that he is hereby acquitted.

25. Let him be released forthwith unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 9TH DAY OF NOVEMBER 2023. PATRICK J. O. OTIENOJUDGEIn the presence of: -Mr. Otsyeno for the AccusedMs. Chala for the Prosecution