[2022] KEHC 1325 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

HIGH COURT CRIMINAL CASE NO. 16 OF 2021 (MURDER)

CORAM: OUGO J

REPUBLIC ………………..………………..……….PROSECUTOR

VERSUS

RONALD NYAKUNDI JOHN……….…………………..ACCUSED

JUDGMENT

1. On the 25th May 2021 Ronald Nyakundi John 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 16th day of May 2021 at Kirwanda village Bonyando Sub-location in Kisii South- County within Kisii county murdered Rose Kemunto John.

2. The accused person pleaded not guilty and the case was heard. The Prosecution called 4 witnesses. Pw1 Hellen Osebe John is the accused’s mother and mother in law to the deceased. Pw2 EK a minor aged 13 years is the daughter of the deceased and the accused. Pw3 Doctor Naomi Ariaga performed a post mortem on the body of the deceased and Pw4 Cpl Detective Isaiah Wekesa was the investigating officer.

PROSECUTION EVIDENCE

3. The prosecution adduced the following evidence. On the 15/5/2021 the accused and his wife were in their home. They had some disagreement. Pw1 and Pw2 saw the 2 quarrelling. According to Pw1 the accused and his wife would often disagree. The deceased would at times end up in her homestead. Pw1 testified that on the 16/5/2021 at 8. 00am she was in her house and Ronald was in his house. Rose had gone to Suneka. At about 10. 00am she heard people screaming she was told that Rose had died. The deceased’s body had no injuries. Pw1 did not see the accused beat the deceased on the 16th May 2021 nor did she see him kill the deceased. Pw2 testified that on the 15th May 2021 the accused beat up the deceased with stick. Their disagreement was over money. Her mother ran away and returned at 7pm.They later slept. On the 16th May 2021 she was home. Her father went to work. He returned at 10. 00am. Her father and mother quarrelled again. This time he did not beat her. Her mother left for Suneka. Later they were told that her mother was lying down. They went to place where she was. She left her there to go get money to take her to hospital. On returning she found her mother still there but she was not talking. She did not see her father kill her mother. Pw3 testified that she conducted a post mortem on the deceased on the 21/05/2021. Her examination revealed that the deceased had an abrasion on the left arm upper quadrant of the abdomen 6x4cm.She also had a haemorrhage in the liver. Hematoma in the pancreas and tear. She had hematoma of the right kidney. After the examination she formed the opinion that the cause of death was abdominal injury due to blunt force trauma. Pw4 Cpl Wekesa the investigation officer testified that on the 16th May 2021 at 12. 50pm whilst in the office he received a report of murder and that members of public wanted to lynch a suspect. Together with other officers they proceeded to the scene and found the deceased’s body lying on a footpath. Her home from the scene was 500 meters away. They processed the scene and took the body to the mortuary at Kisii level six. The suspect was her husband the accused. He had been arrested and was taken to Gesonso. He recorded the statements of Pw1 and Pw2 who informed him that the accused and the deceased were fighting and that there was a third person called Benwell Kagiri who had mobilised nyumba kumi to save the life of the accused. The deceased had a visible injury on the left side of the abdomen. The accused was later on charged in court.

4. When put on his defence the accused elected to give an unsworn statement. This is his defence. The deceased was his wife. On the 15/5/2021 he was home. He had a problem with his wife. He had a problem with his wife. He canned her and she went to their neighbours. He used a kiboko, a cane. He caned her once. She returned that evening. She prepared supper and they ate and slept. On the 16th May 2021 they woke up and she was okay. She prepared breakfast and he decided to talk to his mother. He returned and asked her to put his tea in a flask. Before he left he gave her 1250/- to go buy food. He left but returned to warn her not to go towards Bonchari as there were campaigns going on there. He left for work. At about 10. 00am he was called and asked why his phone was off. He told them that his phone had no charge. He was called aside. He was beaten and he found himself at Biage hospital. He lost consciousness. He discovered on 16th May 2021that his wife had died. He was told that he was beaten because he had gone to work to hide and that he had killed his wife. He did not kill his wife. He does not know who killed his wife. He seeks to be released to go home to look after his children.

5. At the close of the defence case Miss Gogi for the accused filed written submissions. It was submitted that the prosecution has failed to establish that the accused committed the offence as alleged as none of the prosecution witnesses saw the accused commit the murder. That the post mortem report shows that the deceased died from liver haemorrhage and that during cross-examination the doctor confirmed that the kind of stick that the accused used to beat the deceased on the 15th May 2021 could not have caused the injuries that the deceased had in her internal organs.

6. The prosecution submitted the evidence adduced was not evidence of mere suspicion. That they were able to prove their case beyond reasonable doubt.

7. To establish the offence of murder under the provisions of section 203 and 204 of the Penal Code, the prosecution must prove beyond reasonable doubt the following ingredients;

a. Proof of the fact and the cause of death of the deceased.

b. That the cause of the deceased’s death was a result of the direct consequence of the accused’s unlawful act or omission.

c. Proof that the unlawful act or omission was committed with malice aforethought as defined by section 206 of the Penal Code.

8. The fact and cause of death is not in dispute. The deceased body was found lying along a path near her home. Pw1, Pw2 and Pw4 saw her body. Pw3 did a post-mortem on the deceased’s body and found that the cause of death was an abdominal injury due to blunt force trauma.

9. The next issue is whether the cause of deceased’s death was a result of the direct consequences of the accused’s unlawful act or omission. Pw1 and Pw2 testified that the accused and the deceased had a disagreement on the 15/5/2021 and that the accused beat the deceased with a stick. On the 16/5/2021 she woke up and left and was later found dead along a path near her home. Both witnessed denied seeing the accused kill the deceased. According to Pw2 the stick used to beat her mother was a small branch. The deceased’s injuries were in her abdominal area. The doctor when shown the kind of stick that is alleged to have been used to beat the deceased on the 15/5/2021 stated that the kind of stick pointed out could not have caused the injuries sustained. There was no evidence adduced that the accused followed the deceased after she left their home and that he killed her. The accused was picked as a suspect and Pw4 found him arrested as a suspect. He was suspected of killing. In the case of Dedan Kimathi & another vs. Republic Criminal Appeal no. 53 of 2013 the Court of Appeal stated as follows;

“..Mere suspicion cannot justify the conviction of the appellant. In Mary Wanjiku Gichira –vs - Republic- Criminal Appeal No. 17 of 1998, this Court held that suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence”.

10. It was incumbent upon the prosecution to prove that the beating meted on the deceased the previous day by the accused led to the death of the deceased. As stated by the Court Appeal in the case of Mary Wanjiku Gichira –vs – Republic (supra),suspicion however strong cannot provide a basis of inferring guilt which must be proved by evidence. I need not make a finding on the 3rd limp on malice aforethought as the prosecution has failed to prove beyond reasonable doubt that the accused murdered the deceased RoseKemunto John. He is acquitted and he is free to go unless lawfully held.

Dated, SignedandDeliveredatKISIIthis4thday ofMarch 2022.

R. E. OUGO

JUDGE

In the presence of:

Ronald Nyakundi John Accused

Miss Gogi For the Accused

Mr. Kaino State Counsel ODPP

Kevin Court Assistant