[2022] KEHC 10796 (KLR)

Republic v Rambanya & 6 others (Criminal Case 17 of 2020) [2022] KEHC 10796 (KLR) (11 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10796 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 17 of 2020

SN Riechi, J

May 11, 2022

Between

Republic

Prosecutor

and

Cyrus Kibulo Rambanya

1st Accused

John Rambanya

2nd Accused

Beatrice Nafula Wasike

3rd Accused

Ronald Wekesa Mukuyuni

4th Accused

Bernard Wanjala

5th Accused

Davis Silali Wanyonyi

6th Accused

Ian Wanyama Mulati alias Henry

7th Accused

Judgment

1The accused Cyrus Kibulo Rambanya (accused 1), John Rambanya(accused 2), Beatrice Nafula Wasike (accused 3), Ronald Wekesa Mukuyuni (accused 4), Bernard Wanjala (accused 5), Davis Silali Wanyonyi (accused 6) and Ian Wanyama Mulati alias Henry (accused 7) are charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2The particulars of the offence are that on the night of 18th and 19th day of February 2020 in Nandika village Sirende Sub-Location within Sirende Location of Webuye east Sub-county in Bungoma County unlawfully murdered Kelvin Simiyu Juma.

3The prosecution case is that on February 18, 2020 at 2 a.m. PW1 Charles Wafula Wanga was in his ho use when he received a telephone call from his younger brother Evans Wamalwa Tumbo who informed him to go to the house of Rambanya as there were people who had surrounded it and wanted to kill Kelvin the deceased. He went there and saw Silas (accused 1) John (accused 2), Beatrice (accused 3), Bernard (accused 5) and Mulati (accused 7) who was sleeping in the same house with deceased and Ronald (accused 4). He saw Beatrice (accused 3) was holding a one Acre fund lamp. He then saw the rest of the accused hit the deceased with stones. Accused 5 Bernard then pulled him from behind and he fell down and they continued beating the deceased for about 5 minutes until he became serious and they left. The uncle of the deceased came and he together with the witness took deceased outside the house. Police were called and they took the deceased to hospital where he died one day later while undergoing treatment.

4PW 3 Evans Wamalwa Tumbo testified that on February 19, 2020 at 2. 25 a.m. when Beatrice (accused 3) who is a village elder called him and asked him to inform Robert Juma that his grandson was being beaten. He called Robert (PW1) and informed him. He then went to the scene after about half an hour. He found the deceased was outside the house. He found Beatrice (accused 3). He observed deceased and saw he had injuries. He went to look for motor cycle but did not find him. He went home. Later he leant police came to the scene.

5PW4 Ronald Sichangi Juma the uncle of the deceased was in his house at 4 a.m. when Evans (PW3) went there and told the witness to go and take deceased to hospital. He went to the home of Benjamin Rambanya where he found deceased in a bed-room in the house. He and others removed deceased outside the house. He observed deceased had injury on the head and hand. At the scene he saw Accused 1 Cyrus. Accused 5 Bernard, accused 7 Ian Wanyama and one Brian. He saw Accused 5 Bernard armed with a club (rungu)

6In cross-examination he stated he saw accused 5 still hitting the deceased while accused 1 Cyrus is the one who led him into the house. The house had 3 rooms and deceased was in the bed-room. He confirmed that the deceased used to sleep in the same house with accused 7 Ian Wanyama Mulati.

7PW5 Robert Juma Tumbo was called and informed to go to the home of Rambanya. He went there and found Accused 1 Cyrus accused 2 John accused 3 Beatrice and accused 4 Ronald. He saw they were hitting the deceased on the head using sticks and stones. Accused 3 Beatrice was carrying a lamp. They were beating him while he was in the house. Accused 1 Cyrus and Accused 4 Ronald assisted him to remove deceased from the house. He denied that he had any information that deceased was a thief.

8PW6 No. xxxxx PC Ochieng Owino attached to Webuye police station testified that together with family members he went to Webuye hospital mortuary where he identified the body of deceased to the doctor for post-mortem.

9PW7 Inspector Patrick Wafula took over the investigations from Inspector Simiyu. He recorded statements of witnesses PW1 Charles Wafula PW2 Evans Wamalwa. He visited the scene in a house of Rambanya which was abandoned. He noticed blood stains on the flour and found a jacket of deceased and mosquito net. He also saw stones used to hit the deceased. He took the items as exhibits which he produced as Exh 1 and 2 A,B.

10In cross-examination by Mr. Khakula for accused he testified that he visited the scene 7 days after the incident.

11The accused upon being put on their defence gave sworn evidence.

12Accused 1 Cyrus Kibulo Rambanya testified that on the night of 18th-19th February 2020 he was asleep in his house when he heard his dogs barking. He went out and followed them to where they were. He flashed a torch and saw a person lying down. He called the village elder who came and they went closer and saw it was the deceased whom they knew. The village elder Beatrice (accused 3) had come with accused 4 Ronald Wekea. They called the Nyumba Kumi chairman Evans Wamalwa (PW2) John Rambanya (accused 3) also came to the scene. He stated that the deceased was outside his (witness) father’s house. He confirmed that the deceased was found in his compound.

13Accused 2 John Rambanya testified that on the material night he was at his house when he heard people passing through a path. He heard that a person had been killed. He went there and saw deceased. He found the village elder (accused 3) Bernard, and Evans Tumbo present. In cross-examination by M/s Mukhangu for state, he stated that the deceased was taken to hospital 20 minutes after he arrived. He confirmed that Cyrus (accused 1) was his brother.

14Accused 3 Beatrice Nafula Wasike testified that she is a village elder of Nandika village on the material night she received a telephone call from Cyrus (accused 1) who asked her to go to his home. She went with her husband Ronald (accused 4). They went to the scene and found deceased lying down. She called the chief and Evans (PW3) who is the chairman of Nyumba kumi. She also called Bernard Wanjala (accused 5) who is also a village elder. She advised Evans (PW3) to go and look for a motor cycle to take deceased to hospital. Shortly after police came and she directed them to the scene. The deceased who had injuries was taken to hospital.

15Accused 4 Ronald Wekesa Mukuyuni the husband of Beatrice (accused 3) the village elder. She informed him that she had received a call from accused 1 Cyrus to go to his home. He accompanied her to the scene. On arrival he saw a person lying down outside the house. Accused 3 then called the assistant chief who informed police who came and took the deceased away.

16Accused 5 Benard Wanjala testified that he is a village elder of Muteho village. On material night he received a telephone call from accused 3 Beatrice who is a fellow village elder, who informed her that there was a problem in her area; at home of Rambanya. He went there and found Beatrice (accused 3) Cyrus (accused 1) Ronald (accused 4) Evans (PW3) the chairman of nyumba kumi. He saw the deceased lying down with injuries on the head. Beatrice (accused 3) called the assistant chief who informed the police. Police came at about 5 a.m.

17Accused 6 Davis Silali Wanyonyi testified that he was in his house on that night when he heard people making noise and dogs barking outside. It was from the home of Cyrus (accused 1). He went there. On arrival he found Beatrice (accused 3) Ronald (accused 2). Beatrice (accused 3) informed him that she had informed police. Police came and found the body outside the house.

18On being cross examined by M/s Mukhangu for state he stated he found deceased bleeding from the head and knew he had been assaulted.

19Accused 7 Ian Wanyama Mulati testified that he was asleep when he was woken up by barking dogs. He came out and saw lights form the house of Cyrus (accused 1). He went there and saw many people. He saw the deceased lying down bleeding. He did not recognize the person and he went to his house and slept.

20Mr. Wamalwa Robert for accused 5 Benard Wanjala filed submissions. Counsel submitted that there was inconsistences and lack of credibility on the evidence by the prosecution. He submits PW1 was not at the scene and that there were inconsistencies on where the deceased was assaulted and that other witnesses did not witness the assault. He submitted that the accused 5 alluded to existence of a grudge between accused and the prosecution did not challenge.

21Mr. Khakula for the accused 1, 2,3,4 6,7 submitted that the prosecution evidence linking the accused with the commission of the offence is weak and that PW1, Charles PW4 Ronald and PW5 Robert are not reliable witnesses as their written statement to police and oral testimony are at variance. He submitted that the action of accused 3 Beatrice were not actions of an offensive person as she reported the incident to police.

22The 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 any unlawful act or omission is guilty of murder.”

23The prosecution is under a duty to prove the ingredient of the offence of murder against the accused beyond reasonable doubt. In a charge of murder the prosecution must prove:a.The fact and cause of deathb.The unlawful act or omission that caused the deathc.That it is accused who occasion the unlawful act or omission or inflicted the injuries that caused the deathd.That the accused had the intention of causing death or malice aforethought.

24PW2 Dr. Edward Bulembwa who produced the post mortem report prepared by Dr. Munyewa who performed the post mortem testified that on examination he found the deceased had defence injury to right hand, bruises on knee and stitched cut wound on the sculp. Upon opening the body he found a fracture of the skull lading to bleeding into the brain. He formed opinion that the cause of death was due to brain injury caused by blunt object. He issued death certificate No 0xxxxx. This witness therefore confirmed not only the fact of death but also the cause of death as being head injury caused by blunt object. Who inflicted the blunt head injuries on deceased?

25PW1 Charles Wafula Wanga testified that he was informed by Evans Wamalwa Tumbo to go to the home of Rambanya where deceased was being assaulted. He went there and found people already at the scene. He recognized them as Cyrus (accused 1) John (accused 2) Beatrice (accused 3) Henry (accused 7). He saw Beatrice (accused 3) was holding a one acre lamp. He then saw them hitting the deceased with stones until he became unconscious. Police officers came and took the deceased to hospital.

26In cross examination he stated that there were 7 people and he saw Benard Juma (accused 5) assaulting the deceased on the head. This is the only person the witness mentioned he saw assault the deceased.

27PW3 Evans Wamalwa Tumbo testified that he was called by Beatrice (accused 3) who informed him Robert Juma that his son was being beaten. He called Charles (PW1) and informed him. He (witness) went there at about 4 a.m. and found less than 100 people. He confirmed in cross examination that he did not witness when deceased was being assaulted.

28PW4 Ronald Sichangi Juma an uncle to the deceased was in his house when Evans (PW3) came and informed him that deceased had been injured and he should go and take him to hospital, as he is a bodaboda rider. He went to the scene and found people including Beatrice (accused 3) who told them a police vehicle would come for him. Shortly after police came and took deceased to hospital. He found the deceased already with injuries on the head and right hand. He saw accused 1 Cyrus, accused 5 Benard and accused 7 Ian present at the scene. In cross-examination by Khakula for accused he stated that he arrived at 4 a.m. and saw Benard (accused 5) still beating deceased. Accused 1 is the one who led him to where deceased was and did not see him assault deceased. While Beatrice accused 3 was only holding a lamp. This witness testified only seeing accused 5 Benard assaulting the deceased.

30PW5 Robert Juma Tumbo the grandfather of the deceased was informed that his grandson the deceased had bene injured at the home of Rambanya. He went there and saw accused 1 Cyrus, accused 2 John, accused 4 Ronald and accused 3 Beatrice who were all hitting the deceased using stones and stick. He however did not see accused 3 Beatrice hit the deceased. He confirmed in cross-examination that in his statement to police he did not mention the people who were assaulting the deceased. He denied that he had information that the deceased was a thief.

31From the evidence of the prosecution witnesses, the incident occurred at night and involved many people including the village elders. The issue of positive identification of the accused as the person who inflicted injuries on deceased was crucial in this case.

32PW1 Charles Wafula in his evidence testified that he saw some of the accused assaulting deceased with stones. For identification he riled on the lantel which was held by accused 3 Beatrice. This is the evidence of the other prosecution witnesses.

33Was the identification by the prosecution witnesses positive and free from error?

34. In Kariuki Njiru & 7 others vs Republic, the court held inter alia that the “law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”

35. To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness's testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness's intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness's testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before. It is necessary to test the evidence of identification, and take great care and caution to ascertain whether the surrounding circumstances were favourable to facilitate proper identification. These in my view include light, time spent with the assailant, clothes or any item that the witness may positively identify and whether the accused was known to the complainant. Such evidence may be reinforced by sufficient collaboration and where there is no collaboration the court needs to treat it with caution. Thus, in evaluating the accuracy of identification testimony, the court should also consider such factors as:-a.What were the lighting conditions under which the witness made his/her observation"b.What was the distance between the witness and the perpetrator"c.Did the witness have an unobstructed view of the perpetrator" dd.Did the witness have an opportunity to see and remember the facial features, body size, hair, skin, color, and clothing of the perpetrator"e.For what period of time did the witness actually observe the perpetrator"f.During that time, in what direction were the witness and the perpetrator facing, and where was the witness's attention directed"g.Did the witness have a particular reason to look at and remember the perpetrator"h.Did the perpetrator have distinctive features that a witness would be likely to notice and remember"i.Did the witness have an opportunity to give a description of the perpetrator" If so, to what extent did it match or not match the accused, as the court finds the accused's appearance to have been on the day in question"j.What was the mental, physical, and emotional state of the witness before, during, and after the observation"k.To what extent, if any, did that condition affect the witness's ability to observe and accurately remember the perpetrator"

36In this case, the incident occurred at night, the lighting conditions not well stated and involved many people. These conditions in my view taken cumulatively do not show that the identification of the accused and what role each played was positive and free from error.

37I therefore find that the prosecution has not established beyond reasonable doubt that it is accused who inflicted the injuries on the deceased. I therefore find Cyrus Kibulo Rambanya (accused 1), John Rambanya (accused 2), Beatrice Nafula Wasike (accused 3), Ronald Wekesa Mukuyuni (accused 4), Bernard Wanjala (accused 5), Davis Silali Wanyonyi(accused 6) and Ian Wanyama Mulati alias Henry (accused 7) not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and acquit Accused 1,2,3,4,5,6,7 under Section 215 C.P.C.

38I order that Cyrus Kibulo Rambanya (accused 1), John Rambanya (accused 2), Beatrice Nafula Wasike (accused 3), Ronald Wekesa Mukuyuni (accused 4), Bernard Wanjala (accused 5), Davis Silali Wanyonyi (accused 6) and Ian Wanyama MulatI alias Henry (accused 7) be set at liberty unless otherwise lawfully detained.

DATED AT BUNGOMA THIS 11THDAY OF MAY, 2022S.N RIECHIJUDGE