[2020] KEHC 1168 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

(Coram: Odunga, J)

CRIMINAL CASE 37 OF 2011

REPUBLIC.........................................................................................PROSECUTOR

-VERSUS-

ROLEX WAITA MUKUNZU....................................................................ACCUSED

JUDGEMENT

Introduction

1. The accused herein is charged with the offence of murder contrary to section 203 as read section 204 of the Penal Code. It is alleged that the accused on the 25th day of May 2011 at Serena Building, Machakos Township within Machakos County murdered Joyce Loko Philip.

2. The accused pleaded not guilty and in support of the prosecution’s case the prosecution called 9 witnesses.

The Prosecution’s Case

3. On 25th May, 2011 at about 7. 00 p.m. in the evening, PW1, Stephanie Katave Wambua, together with the deceased and a child, L, who was PW2’s daughter, were watching TV in the former’s single roomed 10 x 10 feet house in Serena area of Machakos Town. It was her evidence that the accused who was her neighbour stated that he wanted to talk to the deceased and after that the accused and the deceased, who were previous girlfriend and boyfriend but had separated one month before the incident, left briefly before returning back after five minutes. By then PW1’s sister, Esther Kaluki, PW2 had just arrived hence PW1 was with PW2 and the said L. When the accused and the deceased returned, the accused said that he wanted to talk to the deceased at which point PW1 told PW2 and the said L to go outside. The accused then informed the deceased that he loved her but the deceased said she did not want anything to do with the accused. The accused then got up and closed the door, took a stool and sat near the door. When the deceased said she did not want the accused, the accused jumped up and held the deceased by the neck and threw the deceased down on the floor then stepped at the back of the neck. PW1 then noticed a knife in the accused’s hand. She got up from where she was seated on the bed and tried to separate the two but the accused stabbed her on the hand and started stabbing the deceased and it was then that PW1 noticed that the deceased had other stab wounds. PW1 then climbed on her bed and covered herself with the curtain but moved the window curtain a bit so standing she could see what was happening. She saw the accused stabbing the deceased severally at the back and when the accused ran towards her, she jumped and opened the door. The accused then pushed her and ran out through the same door leaving her screaming.

4. Her sister, PW2 then came back into the room and later she went to the hospital for treatment leaving the deceased in the house. Later she learnt that the deceased passed away. She identified two of her kitchen knives that the accused used to stab the deceased and herself with which were bent though prior to that date they were not bent the smaller one which was also broken and which was left in the deceased’s back. According to PW1, she had no grudge with the accused and had known the accused for one month as a neighbour.

5. She denied that there was a man in the said house when the accused went and it was not true that the accused was attacked by a man with a knife. She however admitted that the deceased used to be visited by the accused in her house. While PW1 occupied room 17 upstairs, the deceased lived in room No. 2 downstairs at the building in Serena. Joyce lived downstairs and I lived upstairs. She denied that vegetable was being prepared for cooking in her house that evening but admitted that she was frightened and scared when she ran to the window after being stabbed twice on her left hand. She however denied that she hid under the bed or sofa set and insisted that she had some open space in the curtain so she could see what was happening.

6. According to PW1, it was not true that the small knife was collected after the incident near the deceased’s door and while her knives are not marked, she just knew them as his since she had used the small knife for about two years and the big knife for about three months. While she admitted that her sister, PW2, was married, she denied that a male friend visited her house. It was her evidence that she saw the deceased been stabbed severally and on the back but did not count the number of times.

7. PW2, Esther Kaluki Wambua,was on 25th May, 2011 at about 8. 00 pm called by her sister, PW1 to the latter’s house and when she went there, she found PW1 with the deceased and the accused whom she knew as Waita and whom she used to see in the plot where PW1 lived. At that time the electricity lights were on in the house. She was then told by PW1 to leave and wait because there was something they wanted to discuss first. At the time she was also living in the said plot. After five minutes she heard PW1 screaming and upon rushing to her house, she met the accused upstairs on the first floor where PW1 lived while PW1 was a few metres away from her door not far from the accused. Though PW2 ran after the accused screaming for help, the accused managed to run away but was arrested by members of the public when he came to a dead end at a wall. PW2 then proceeded to PW1’s house where many people had gathered and found the dead body of the deceased on the floor soaked in blood and it was later removed by police officers when they arrived while PW1 was taken to hospital. According to her, the police officers also collected from the scene one bent knife which was blood stained and a pair of boots from the scene.

8. PW2 denied that she met any other man running except the accused whom she met just near the staircase. According to her, the accused was not chasing anybody when she saw him. She found the body of the deceased on the floor but did not look at it closely. She confirmed that her daughter, L, was in PW1’s room but she left with her when PW1 said they had something to discuss.

9. That same day, 25th May, 2011 at about 7. 00pm, PW5, James Muthiani Musyoka,a security officer at Serena House, a residential rented premises, saw the accused, a frequent visitor to the premises, who was known to him go to the premises. The accused entered the ground floor of the building and he could see the corridor of the ground floor of the building from the gate. The building consisted only the ground floor and the first floor. The accused shortly thereafter came out and he saw him going to the first floor. Since he was going to collect his clothes which he was using in the corridor of the 1st floor where he used to keep them, he followed the accused and saw the accused standing at door No. 17 on the same floor. The accused knocked at the door and entered. A few minutes later, he saw the accused come out of the said room with the deceased and they went down the staircase to the corridor of the ground floor where they sat on the sofa seats which were on that corridor for about 30 minutes. By this time, he was still upstairs. The accused and the deceased then went upstairs though they were not talking and re-entered. At that point, PW3 went downstairs to the gate. While at the gate he heard screams coming from the first floor which screams started just soon after he reached the gate. He then heard steps like somebody was being chased and saw PW2 chasing the accused shouting “thief! Thief!” PW2 then said the accused had killed somebody and he should not let him go. He chased the accused shouting “thief!, arrest him!” but the accused took a corner while he members of the public joined in the chase. The accused then tried to jump over a fence made of iron sheets but fell down and was then arrested by members of public and they returned to the scene at Serena House where they tied up the accused. Police Officers on patrol then arrived at the scene and the accused was taken to the police station by the police officers.

10. According to PW5, these events took place between 7. 00 p.m. and 8. 00 p.m. and that there were security lights at the Serena house and street lights at the road between Peter Mulei Supermarket and Machakos Level 5 Hospital. According to him, Serena House is situated on the front line of the plot next to the road. Though he did not enter the house where the dead body was he saw the police officers carrying the body out of the premises.

11. It was PW5’s testimony that he had worked at Serena house for six years but could cannot remember the year he started working there. While he admitted that there was a Serena bar which is located in Serena House, he denied that there were lodgings thereat and stated that there was no movement register for those entering or leaving the Serena House and that there was nothing at the entrance to stop strangers from entering the premises. It was his evidence that he stayed at the corridor of the first floor for about 30 minutes where he had gone to collect his uniforms and also stayed on to monitor why the accused had gone upstairs and his friend the deceased lived on the ground floor. He admitted that the accused used to visit the deceased but he did not know if the deceased was married. He however denied that he was treating the accused with any suspicion. While PW2 was shouting thief! Thief! she did not mention the name of the accused. It was his evidence that the reason he gave chase at the accused because he was running. According to him, he had known the accused whose name he knew as Rolex, for about two months and explained that the accused was not visiting every day. On that day, the accused was wearing a jacket red hat and trousers. The jacket was dark bluish in colour with some sports logo but he could not recall the colour of the trousers.

12. According to PW5, it was PW1 who lived in room No. 17 while the deceased lived in room No. 2 on the ground floor. He however, did not see the accused enter room No. 2 on the material date and nobody else ran out of the building at the material time. He was however unaware if the accused was attacked while he was in room No. 17 and he did not know if there was a man in that room who attacked the accused with a knife. According to his evidence, the accused entered the premises at about 7. 00 p.m. and left at about 8. 00 p.m. He reiterated that there were street lights outside Serena house and the street lights were on and that there were also security lights inside Serena House and there was an electricity bulb at the corridor at the first floor where he went to pick his clothes which bulb was on. He however disclosed that the said bulb is switched on from the corridor and anybody can switch on or off the said bulb though it was his responsibility to switch the lights on or off. According to him, the front of the Serena house has two electricity bulbs and at the sofa set where the accused and the deceased sat there was another electricity bulb and another one on corridor at the top of the staircase on the first floor where he had gone to collect his clothes.

13. Asked about one Felicitus Nziza Kavila, he disclosed that he was a student who lived at Serena House at the material time. He also admitted that one L and PW2 were people who used to live at Serena House but he did not see them at the material time.

14. On 27th May, 2011, Betty Munyiva Philip, PW3,the deceased’s sister, in the company of her uncle Charles Nzau Daudi,PW4, identified the body of the deceased at the Machakos Funeral home for the purposes of post mortem examination. This was confirmed by PW4.

15. In his evidence, PW6,Lawrence Kinyua Muthuri, a Government Analyst in Nairobi as a Government Analyst on 3rd June 2011 received items from Zachary Gitonga of Machakos Police Station the items were as follows:

A1 - A red long-sleeved blouse in a white polythene bag.

A2 - A black shaped skirt in a white polythene bag.

A3 - A whitish trouser in a white polythene bag.

A4 - A white underpants indicated as belonging to the deceased in a white polythene bag.

B1 - A blue jeans trouser in a khaki envelope.

B2 - A black and white short sleeved T-shirt in a khaki envelope.

B3 - A blue jacket wrapped in a khaki paper

C1 - A broken knife in a khaki envelope

C2 - A bent knife in a khaki envelope

D - A blood sample indicated to be from the deceased

S - A blood sample indicated as the suspect’s – Rolex Waita Mukunzu

16. Upon examination he found as follows:

(1) The blouse Item A1, Item A2, Item A3, Item B1, Item C2 were all heavily stained with human blood.

(2) Item A4 & Item B2 were moderately stained human blood.

17. Upon DNA profiling of the blood stains on the items and blood samples he concluded as follows:

(1) The DNA profile generated from the blood stain on the skirt Item A2, Item A4, Item C1, Item C2 all matched the DNA profile generated from the blood sample Item D of the deceased Joyce Loko.

(2) The DNA profile generated from Item B1, Item B2 and Item B3 all matched the DNA profile generated from the blood sample item S of the suspect.

(3) The blood stain on Items A1 and A3 did not generate a DNA profile after several attempts.

18. He produced his report dated 14 September 2012 which he signed.

19. According to him, in instances where they have heavy staining there may be wetness and they are not able to generate a profile because the DNA is degraded as a result of biological, chemical a physical condition. The item A1 and A3 were in a polythene bag which generates moisture and can degrade the DNA. It was his evidence that the blood stains on the clothes were dry stains and were not good quality.

20. PW.7 – C.I. Mwangi Jillon Gitau, testified that he knew an officer called Gerald Wasike whom he worked with till the latter’s demise and was conversant with his signature. According to him, they received negatives from one PC. Gitonga formerly of Machakos police station and the same was received by the late Gerald Wasike who appended his signature to the exhibit memo. In accordance with the request in the exhibit memo, the photos were produced and a report dated 9th June, 2011 produced by Gerald Wasike, a gazetted scene of crime officer by Gazette Notice No. 4562 of 7th July, 2003. He produced the bundles of photographs and certificate as exhibits.

21. Dr Fredrick Okinyi, PW9, the pathologist, examined the body of the deceased on 27th May, 2011 at Machakos Funeral Home. According to him, the deceased had blood stained red top with multiple stabs wounds about 12 blood stains, white bra and a stripped black skirt. The body was fresh and well preserved. There were two stab wound anteriority 2x1 Cm extended to depth of 6cm. Secondly were 2 below the right clavicle tracking downward causing clot of blood. 2 stab wounds on the abdomen 2 cm deep and the back hand 13 stabs wounds of which measured 2x1 cm over thoracic spine and one was penetrating up to 12 cm through the aorta to the head and causing haematoma. Another one penetrated the lower and upper lobes of the lung entering 12 cm deep. There were 2 others penetrating the upper and lower lobes of the lung and to the chest. In summary the cause of death was multiple stab wounds to the back caused by knife measuring 2x1cm and can penetrate upto12 cm into the body. According to him, they were clear penetrations and this was a vicious attack. He signed the report and produced the same as Exhibit.

22. PW.8 PC. Zachary Gitonga, was on 25th May, 2012 at about 8 p.m. while on duty at Machakos police station when he received a call from someone he knew as Patrick who informed him that someone had been arrested by members of the public for killing another person at Mushomo Building opposite Machakos Hospital. Accompanied by his colleague PC. Lukonto they went to the scene and found the suspect at the building having been tied on the hands and legs. They received him from the angry crowd and upon going into the building upstairs where it was said the suspect had murdered a person in Room 17, they found, at the scene, a middle aged lady who he later established was called Joyce Loko, the deceased lying on the floor inside Room 17. She was covered with blood and upon looking keenly he saw multiple stab wounds on her body – on the back – there were 12 stab wounds on the back and a stab wound on chest. He saw another stab wound on the lower abdomen during the post mortem. The deceased was lying on her stomach on the floor.

23. He called the OCS to bring reinforcement to control the crowd and to come later with other officers. he took photographs at the scene and later forwarded the negatives to the scene of crime officer in Nairobi and prepared an exhibit memo which he sent with the negatives. He produced the exhibit memo and this was received by Cpl Wasike deceased. It was his evidence that they took the body of the deceased to Machakos Hospital Mortuary and it was later transferred to Machakos Funeral Home. He later established that there were differences between the deceased and accused and they had an argument and that they called a third party PW1 to settle their difference and that they went to room 17 which belonged to PW1 to listen to them as they settled their difference. The accused then closed the door from the inside and when he was asked why he was doing so he said hakuna. He got hold of the deceased person by her neck and when PW1 tried to release the deceased person, the accused person took a kitchen knife that was in the house and stabbed PW1 on her left arm and palm. PW1 retreated and the accused started stabbing the deceased person while PW1 was there watching and screaming. The screams attracted the members of the public and the accused person then opened the door and as he was going downstairs he met PW2 who was coming to respond to the screams and when she saw the accused running downstairs, she started shouting thief. She was joined by a watchman of the building and ran after the accused shouting thief and members of the public joined them. He was arrested as he tried to jump over a fence that was nearby. They then tied the accused.

24. At the scene PW8 found the PW2 who was still terrified and was bleeding from her left hand palm. He helped her outside the building and referred her to hospital and was able to recover several things from the room – two kitchen knives were bloodstained – one was broken and the other bent – they were inside the house behind the body of the deceased. He was also able to recover a driving licence on the home bearing the accused’s names on the building – Rolex Waita Mukunzu – it had a photo with the licence of the accused. The driving licence was on the floor next to the bed. He produced the licence, the skirt which the deceased wore, a bra she was wearing which had bloodstains and an inner wear. It was his evidence that on he also recovered the accused’s trouser, shirt and jacket. The trouser a blue jeans trouser also had bloodstains. He had a green and white shirt which had blood stains and a jacket with bloodstains. The accused also had shoes he had removed before entering the house. The shoes were found outside the house and at the time he was arrested he was not wearing any shoes.

25. He took the exhibits to the Government Chemist for DNA analysis to establish if the bloodstains matched that of the deceased’s while he placed the accused in custody as he undertook investigations. He recorded witness statements and issued a P.3 form to PW1 which he similarly produced. He thereafter attended a post mortem at Machakos Funeral home conducted by PW9.

26. According to PW8, the deceased and PW1 were staying in the same building in Room 22 and Room 17 respectively. However, the accused person was not staying in the building and he did not know where he was staying. The accused and deceased were initially friends but had differences and were not in good terms. By the time he arrived at the building, he got the accused outside the building – his condition was normal but the members of the public were roughing and beating him up though he never saw him with injuries. Though he did not arrest him, he rescued him. At the time of his arrest he had his clothing but without the shoes.

27. PW8 testified that when he arrived at the scene he controlled the crowd and went upstairs immediately after hearing the accused with his colleague that Room 17 was not locked where he found PW1. The blood stains were on the floor and on the bed – which were scattered. The bed sheet was blood stained – though he did not take them for analysis. There were no blood stains on the driving licence found in the room. Some parts of the room had blood stains there were some without blood stains. He took the accused to the Machakos police station and collected the shoes recovered from outside the room. According to him one of the witnesses told him to remove the shoes when he was entering the room and confirmed that they belonged to the accused, and when he was arrested he had no shoes. The shoes had no bloodstains because they were outside the room. According to the witness, he knew PW1 physically prior to this date though he had not seen the deceased before. According to him, there was no fight between PW1 and the deceased as I connected the accused person to the scene.

The Defence Case

28. Upon being placed on his defence, the accused testified that the deceased was my wife and that they got married in 2005 though they were from the same village. It was his evidence that the said marriage was approved by the deceased’s family when he in the company of his mother Dorcus, his uncle Ndili, his auntie Kavete Kangeni visited the deceased’s where they met with her mother and her elder brother, Philip and an elder.

29. According to him, they were staying together since 2007 when they came to Machakos. It was his evidence that the deceased was working at Eastern Flour Mills Limited doing sales and that they had one child called M who was born in 2008 but passed away after 5 months. According to him, their relationship was not bad and they were staying opposite at a building called Serena Mushono Building, a one storeyed building on ground floor House No. 2. It was his evidence that he had no other residence.

30. On 25th May, 2011, he left work at 6. 30 p.m. after leaving the vehicle with the owner, Kennedy Mutelu, at the place of work and handing him the key. When he arrived home, he opened the house but did not get the deceased. After 20 minutes he called her and asked where she was and the deceased told him she was on the first floor at her friend’s, PW1, but did not disclose to him what she was doing but simply informed him that she was coming. He continued watching 7 p.m. O’clock and after 20 – 30 minutes, he heard noise from upstairs as if people were quarrelling since someone was wailing. He went upstairs to house No.7 and when I knocked twice a tall man, whom he had seen before, and whom he knew as Asman, opened the door. According to him, he used to be at Makutano Chumvi Mosque along Mombasa Road. When the said man opened, he had a knife which he directed towards the accused. The accused held it and he pulled it and in the process, the accused got cut me in his two hands and started bleeding. The said man then threw the knife down and left running. When the accused entered the house, he saw the deceased lying down bleeding. He left and pursued Asman who was ahead of him going towards the road with people shouting thief but the said Asman went towards the supermarket and disappeared.

31. When the accused returned back to the house he found a mob which apprehended him and started beating me and he was saved by Patrol Police officers who took him to Machakos police station where he learnt that he was accused of killing the deceased. Though he explained what happened Asman was not arrested and he did not know if the police searched for him.

32. It was his evidence that the clothes exhibited were removed from him while in police station and he was left with the underwear and later his clothes were brought from his house by his mother and Auntie Kaveke. He denied that the clothes and the shoes were removed from the scene. The accused denied that there was any disagreement between him and the deceased and stated that PW1 was just a fellow tenant. He did not know the relationship between Asman, PW1 and the deceased. In his evidence, the driving licence and the ID were found on him and the driving licence was never returned to him. He therefore urged the court to acquit him and direct that his properties be returned to him.

33. In cross-examination he reiterated that he knew Serena Building where he was staying. He also knew PW1 for about 2 – 3 years and that they knew each other well since PW1 was staying in the said building room No.7 upstairs. He admitted that when the deceased died he was in the building and insisted that he used to see Asman in the building with PW1. According to him, both himself and the deceased were paying rent and he never disagreed with either the said Asman or PW1.

The Prosecution’s Submissions

34. On behalf of the prosecution, it was submitted that the death of the deceased persons and the cause of the death was proved by the evidence of PW3, PW4 and PW9. It was submitted that from the evidence of PW9, the prosecution evidence properly established death and the cause of deaths required by the threshold.

35. Based on Section 203 of the Penal Code and the evidence on record, it was submitted that the attack on the deceased person was not random or spontaneous. The evidence on record indicates that the deceased had multiple stabs on her body shows that the accused had every intention to inflict injuries on her or grievous harm which led to her death. The fact that the deceased was not armed in any way and that the accused stepped on her neck and back, continuously stabbed her shows that he had malice and intention to inflict injuries on the deceased. According to the evidence of an eye witness PW1 the accused even stabbed her on the left palm as she tried to rescue the deceased. It was the evidence of PW1 and PW2 that the accused and the deceased had a rough patch and PW1 was trying to help them patch things up. The accused further testified that he had a relationship with the deceased and even had a child with her. PW1 testified that the deceased had informed her (PW1) that she did not want to be with the accused. The accused did not take it well hence attacked the deceased and ended up killing her once the deceased refused his advances. This shows that the accused had a motive to kill the deceased for not agreeing to his advances since he had informed PW1 that he loved the deceased.

36. It was submitted that these injuries could only have been intended to cause the death or grievous harm to the deceased persons. The Court was therefore invited to find that there was malice aforethought on the part of the accused persons within the meaning of section 206(a) of the Penal Code. The accused person was armed with a dangerous and offensive weapon and the same were brought in court as exhibit 5 and 6, which upon examination by PW6 matched the DNA sample of the deceased. The accused stabbed the deceased while she laid down, defenceless and unarmed such attack had a clear outcome that it would cause harm, injuries and even death to the deceased and that is exactly what happened in this case. The accused persons had an unlawful intention, acted on the said intention with malice aforethought, thus the ingredients of the offence of murder have been proved beyond reasonable doubt. The Court was therefore urged to find the accused person guilty of the offence of murder and proceed to sentence him accordingly.

The Defence Submissions.

37. According to the defence PW1 was the only alleged eye witness that the Prosecution called in support of its case. While PW1 states that she saw the Accused stabbing the Deceased, she does not state whether the Accused came to her house with the knife or the Accused took a knife from her house. It was submitted that while the Accused was stabbing the Deceased, PW1 was hiding behind the curtain at the window but quickly shifted goal posts and stated after stabbing the Deceased, the Accused ran towards her then she opened the door and ran away. It begs the question as to where exactly PW1 was standing while the alleged offence was being committed. According to the defence, PW1’s evidence is marred with a lot of inconsistencies to be believed. It was submitted that if PW1 saw the Accused stabbing the Deceased in her own house, why didn’t she raise any alarm to alert neighbours about what was happening and seek their help? Why did PW1 continue to stay in the house watching a serious crime of the nature of a murder take place? Why was PW1 not arrested and charged for the offence as the offender or even an accomplice? Further, PW1 did not state whether the Deceased screamed when the Accused allegedly stabbed her. The evidence put forward by PW1 does not match that of an eye witness.

38. As for PW2 who was not an eyewitness, it was submitted that it was submitted that she alleges that she went to PW1’s house after PW1 asked her to go to her house and according to her, it was at 8:00 pm when she got there. This contradicts the evidence of PW1 who stated that it was 7:00 pm. It was noted that PW1 did not scream while PW2 alleges that she heard PW1 screaming which also prompted her to start screaming. PW2 states that the police collected one bent knife from the scene while PW1 stated that there were two knives collected at the scene.

39. The evidence of PW3 and PW4 was faulted for allegedly identifying the body of the Deceased to the doctor who performed the post-mortem without disclosing the mode they used to identify the Deceased but opting to merely mention that they identified the Deceased to the doctor. According to the defence, it is public knowledge that upon death, the morphological features of a human being start to change immediately because of the deoxygenation of the blood. Yet these witnesses did not mention how they identified the Deceased. It is trite in law that a botched mode of identification is the genesis of the failure of a Prosecution’s case.

40. Regarding the evidence of PW5, it was submitted that he was not an eye witness at the alleged scene of crime. This witness, in cross-examination, confirmed that PW2 used to live at Serena Building but he did not see her at the material date and time at Serena Building. The evidence of this witness did not link the Accused to the alleged offence because he was not an eye witness. Regarding the evidence of PW6, the pathologist, it was submitted that he testified that the red long-sleeved blouse and the whitish trouser that were allegedly collected from the scene did not generate any DNA profiles. This witness confirmed that he could not give a time estimate on when the staining could have occurred. He was not bothered to do such analysis. The DNA analysis report produced by this witness confirmed that the samples taken from the Deceased matched with the sample taken from her clothing while those samples taken from the Accused matched with the samples taken from the clothes worn by the Accused. The DNA analysis report further showed that the DNA samples taken from items B1, B2 and B3 matched the DNA samples taken from the Accused. Your Lordship, the lapse here is that the witness did not state whether the items B1, B2 or B3 belonged to the Accused or the Deceased. If they matched the samples taken from the Accused, there is no doubt before this Court that they belonged to the Accused.

41. On the evidence of PW7, it was submitted that this witness was called to produce photographs taken at the scene in place of one Gerald Wanyama Wasike, under Section 33 of the Evidence Act because the latter had passed on. This witness confirmed that he neither prepared the documents and photographs he produced nor visit the alleged scene of the crime to conduct any investigations. This witness most importantly confirmed that the photographs were undated and hence impossible to ascertain the exact date when they were taken. This witness further confirmed that the photographs were taken at the Accused’s girlfriend’s house. This evidence contradicts the evidence of PW1 and PW2 who told this Court that the Deceased was allegedly killed by the Accused in PW1’s house. These inconsistencies go to the root of the Prosecution’s case, making it unsustainable.

42. Regarding the evidence of PW8, it was submitted that he was not an eye witness in this case. He was faulted for relying on a call by one Patrick who had his number but negligently decided not to call that Patrick as a witness to the case. He was accused of being biased for not collecting samples from PW1.

43. PW9’s evidence was challenged on the ground that whereas all the other witnesses stated that the Deceased had multiple stabs on the back, this witness stated that the Deceased died out of multiple stabs on the chest and drew a diagram of the stabs on the Deceased’s chest.

44. According to the defence the Accused rebutted the evidence of the Prosecution that all the clothes forwarded for DNA analysis were collected at the alleged scene of crime.

45. It was submitted that from the analysis of the evidence produced by the Prosecution, the defence offered by the Accused vis-a-viz the standard of proof beyond reasonable doubt, the Prosecution has not proved its case beyond reasonable doubt as required by the law in criminal cases. The Court was therefore urged to acquit the accused pursuant to Section 215 of the Criminal Procedure Code.

46. It was submitted that the Accused was grossly at the Machakos Police Station where he was forced to stay naked for 2 days after the clothes he was wearing were taken to the Government Chemist for DNA analysis. The police also beat him while they were interrogating him. These acts of torture committed by PW11 breached the Accused’s right to human dignity guaranteed under Article 28 of the Constitution of Kenya and other international conventions to which Kenya is a party.

47. In conclusion, it was submitted that the Prosecution’s evidence, in its entirety, did not prove beyond reasonable doubt the offence of murder that the Accused is charged with. The Accused stated on oath that he did not kill the Deceased. The Prosecution also failed to charge PW1 and the tall dark man who were very much connected with this offence. The Prosecution’s case must, therefore, fail.

Determination

48. I have considered the evidence presented before this court.

49. The prosecution’s case in summary is that on 25th day of May 2011, PW1 and the deceased together with PW1’s young niece were watching TV in PW1’s tiny one roomed house at Serena House Building when the accused went in and requested to speak to the deceased. The duo, who were former lovers but were separated, then left and went out for some minutes. Thereafter they returned back to PW1’s house finding PW1 with her sister, PW2 and the said niece. Since the duo wanted to discuss their issues, PW1 asked PW2 and the niece to step out after which the accused told the deceased that he loved her. The deceased however told the accused that she was no longer interested in him. This seems to have annoyed the accused who got hold of the deceased and pushed her down. When PW1 tried to intervene, the accused who had gotten hold of a kitchen knife stabbed PW1 on the hand and fearing for her life, PW1 climbed on the bed and hid behind the curtain though she was able to see what was going on. The accused then stabbed the deceased several times. When PW1 attempted to get out of the room, the accused took that opportunity to bolt out.

50. In the meantime, PW2 who was staying in the said building heard screams and when he returned to PW1’s house leaving her daughter behind, he saw the accused running away. Her attempts to pursue the accused did not bear fruits and when he returned to PW1’s house she found the deceased lying on the floor dead.

51. In the meantime, PW5 a security officer who had seen the accused enter PW1’s room when he went to look for his uniform had seen the accused and the deceased when they briefly left PW1’s room and the two went to sit on a sofa set downstairs before returning to PW1’s room. Shortly thereafter, he heard screams, heard PW2 shouting ‘thief’ and saw the accused running away. With the help of members of the public they apprehended the accused. The accused was later picked up by PW8 and taken to the police station.

52. When PW8 went to the scene he found the body of the deceased with several stab wounds. That the deceased died from several stab wounds was confirmed by PW9.

53. On his part the accused testified that on the material day, he was from work and finding the deceased, his wife not in the house, she called her and the deceased informed him that she was in the house of her friend, PW1. Shortly thereafter, he heard screams coming from upstairs where PW1 lived. Upon his approaching PW1’s room a tall man, whom he knew as Asman and who used to visit PW1, come from the room holding a knife and when the accused got hold of the knife, he sustained injuries to both his hand while he said Asman ran away. He tried to pursue him but failed to catch up with him. Upon his return, he was arrested.

54. It has been submitted that the accused’s rights under Article 50 of the Constitution were violated. Article 50 deals with the right to fair trial. In this case it is contended that by removing the accused’s clothes and leaving him naked for two days his rights were violated. First and foremost, assuming that those facts were true, I do not see how such actions have nexus to the right to fair trial. While such actions may, if proved, amount to a violation of a suspect’s rights, it is my view that since such actions have no connection with the trial, they cannot amount to a violation of Article 50 of the Constitution. Having considered the evidence placed before me I am not satisfied that the accused has proved those allegations on a balance of probabilities. Those were mere allegations which were not substantiated.

55. Section 203 of the Penal Code under which the accused is charged provides that:-

Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

56. Arising from the foregoing the ingredients of murder were explained in the case of Roba Galma Wario vs. Republic [2015] eKLRwhere the court held that:

“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”

57. In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR the elements of the offence of murder were listed by M. Odero, Jas follows:-

1) The fact of the death of the deceased.

2) The cause of such death.

3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly

4) Proof that said unlawful act or omission was committed with malice aforethought.

58. In this case, there was no doubt as to the fact of death of the deceased. There was ample evidence from PW2 who rushed to the scene that she found the deceased dead. PW8 who removed the body of the deceased confirmed that the deceased died. In fact, even the accused testified that when he entered PW1’s room, he saw the deceased lying down bleeding before he ran after the said Asman.

59. As regards the cause of death, the post mortem report showed that the deceased had blood stained red top with multiple stab wounds about 12 blood stains, white bra and a stripped black skirt. The body was fresh and well preserved. There were two stab wound anteriority 2x1 Cm extended to depth of 6cm. Secondly were 2 below the right clavicle tracking downward causing clot of blood. 2 stab wounds on the abdomen 2 cm deep and the back hand 13 stabs wounds of which measured 2x1 cm over thoracic spine and one was penetrating up to 12 cm through the aorta to the head and causing haematoma. Another one penetrated the lower and upper lobes of the lung entering 12 cm deep. There were 2 others penetrating the upper and lower lobes of the lung and to the chest. In summary the cause of death was multiple stab wounds to the back caused by knife measuring 2x1cm and can penetrate upto12 cm into the body. According to him, they were clear penetrations and this was a vicious attack.

60. As to whether the deceased met his death as a result of an unlawful act or omission on the part of the accused person, it is clear that the only eye witness as to how the deceased died was PW1. It is not in doubt that PW1 stayed in the same building as the deceased. In fact, according to the accused, the deceased informed him that she was in PW1’s room and the accused knew PW1 well. Whereas, the accused’s evidence was that he only went to PW1’s room when he heard screams, there was ample evidence from PW1, PW2 and PW5 that he entered PW1’s room and left with the deceased the first time. While PW1 and PW2 were related, PW5 was not related to them and there is no reason why PW5 would concoct a story that he saw the accused entering PW1’s room and leaving with the deceased shortly thereafter. I myself have no reason to believe PW5’s evidence on that score.

61. The accused alleged that he was staying with the deceased together in room 2 in the same building. This piece of evidence was not supported by any other witness. According to PW1 and PW5, the accused just used to visit the deceased. In fact, PW5 was unaware if the deceased was married. Surely if the deceased and the accused were staying together, no one would have been in a better position to know if that was position. Similarly, PW1 would have known if they were staying together since PW1 was a close friend of the deceased. Had the deceased and the accused been staying together, instead of going to sit on the sofa on the ground floor one would have expected that they would have gone to their room. Accordingly, I disbelieve the accused’s evidence that he was staying with the deceased in room 2 at Serena Building.

62. Having left with the deceased from PW1’s room, the accused’s case that he found the alleged Asman in PW1’s room is similarly unbelievable. From the evidence of PW1, PW2 and PW5 the accused entered PW1’s room and screams were heard while he was therein. Thereafter, the deceased was found lying dead with several stab wounds which PW9 described as vicious.

63. According to PW5 the accused was apprehended while running away. Contrary to the evidence of the accused, no one else was seen running away and even PW2 did not see any other man when she responded to PW1’s screams. That members of the public would apprehend him when he was staying in the same building defeats reason particularly when the victim was his wife.

64. The accused testified that he sustained injuries when he held on to the knife which the said Asman had. However, according to the evidence of PW6, the DNA profile generated from the blood stain on the two knives, Item C1, Item C2 all matched the DNA profile generated from the blood sample Item D of the deceased Joyce Loko. There was no evidence that the accused’s blood sample was similarly, found on the said items.

65. That leads me to the last issue: whether it was proved that the said unlawful act was committed with malice aforethought.

66. Section 206 of the Penal Code on malice aforethought states:-

Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—

(a) an intention to cause the death of or to do grievous arm to any person, whether that person is the person actually killed or not;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

(c) an intent to commit a felony;

(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

67. The law is however clear that the burden is on the prosecution to prove that unlawful act was committed with malice aforethought. In this case there was evidence that the accused and the deceased had been in a relationship. According to PW1 the accused’s attempt to convince the deceased about his feelings towards her were rebuffed. It was the deceased’s reaction that set the accused into a fit leading to the stabbing to death of the deceased by the accused. The weapon used was a knife and according to PW9 the attack was vicious. Clearly, the action of the deceased was intended to cause the death of or to do grievous arm to the deceased. He ought to have known that by severally stabbing the deceased that act could probably cause the death of or grievous harm to the deceased. The element of intention in committing the offence was examined in the English case of Hyam vs. DPP [1974] 2 All ER 41 where Lord Diplock observed as follows:

“No distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequent, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act.”

68. In this case the weapons used were knives and the deceased was stabled severally. The Court of Appeal in Rex versus Tuper S/O Ocher [1945] 12 EACA 63 ruled thus:

“It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say of a spear or knife than from the use of a stick...”

69. In Robert Onchiri Ogeto vs. Republic Kisumu Criminal Appeal No. 1 of 2004(2004) KLR 19, the Court of Appeal held that:

“The prosecution does not have to prove the motive for commission of any crime, neither is evidence of motive sufficient by itself to prove the commission of a crime by the person who possess the motive – see Karukenya & 4 Others vs. Republic [1987] KLR 458. By section 206(a) of the Penal Code, malice aforethought is deemed to be established by evidence showing an intention to cause death or to do grievous harm. It can be reasonably inferred that when the appellant stabbed deceased with a knife on the chest he intended to cause death or grievous harm to the deceased. That being the case, we are satisfied that the appellant was properly convicted for the offence of murder.”

70. Similarly, inDida Ali Mohmmed vs. R Nakuru Court of Appeal Criminal Appeal No. 178 of 2000, the same Court expressed itself as hereunder:

“Mr Amingá for the appellant submitted before us that the learned trial Judge did not consider an important ingredient of motive for the killing. With due respect to him, and this he conceded when we pointed it out to him that motive is not a material element in establishing guilt. [See section 9(3) of the Penal Code]…But perhaps what Mr Amingá had in mind is the element of mens rea. Assuming that is so, we say this. The learned trial judge did not specifically advert to the issue. That indeed was an error. However, the evidence which he accepted clearly shows that the appellant killed the deceased with the necessary malice aforethought. Medical evidence shows that pressure was applied to the deceased’s neck which suffocated her. From that evidence, it is quite clear that by pressing against the deceased’s neck the appellant intended to cause the deceased grievous harm or death.”

71. Accordingly, I find that the prosecution proved the element of malice aforethought.

72. The defence submitted that the prosecution ought to have called the said L to testify in this case. However, Section 143 of the Evidence Actprovides that:

No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.

73. The law is that the prosecution is not duty bound to call all persons involved in the transaction and its failure to call them is not necessarily fatal unless the evidence adduced by him is barely sufficient to sustain the charge. In Keter vs. Republic [2007] 1EA 135 the court was categorical that:-

“The prosecution is not obligated to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”

74. The said L left PW1’s room before any incident. Therefore, her evidence, had she been called would have been a superfluity and would not have added any substance to the prosecution’s case.

75. As regards the alleged inconsistencies and discrepancies in the testimonies of the prosecution witnesses, I defer to the decision in John Nyaga Njuki & Others vs. Republic Nakuru Criminal Appeal No. 160 of 2000 [2002] eKLRwhere the Court of Appeal held that:

“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.”

76. The same Court in Philip Nzaka Watu vs. Republic [2016] eKLR held that:

“…it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

77. I have on my part considered the alleged discrepancies and I find the same are minor and trivial and do not warrant a finding that the prosecution’s case is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another.

78. In this case, I am satisfied that the prosecution has proved its case against the accused person beyond reasonable doubt. As was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR:

“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-

‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”

79. Accordingly, I find that the accused herein on the 25th day of May 2011 at Serena Building, Machakos Township within Machakos County murdered Joyce Loko Philip (the deceased). He is therefore convicted of the said offence.

80. Judgement accordingly.

Judgement read, signed and delivered in open Court at Machakos this 1st December, 2020.

G V ODUNGA

JUDGE

Mr Marwa for Mr Musau for the Accused

Mr Ngetich for the State

CA Geoffrey