[2015] KEHC 2172 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASENO.41 OF 2010.

LESIIT, J.

REPUBLIC……………………………………………PROSECUTOR

-VERSUS -

SAMMY MWANGI MBUTHIA………………….…...1ST ACCUSED

PETER NGUGI MBURU……………………………..2ND ACCUSED

FRANCIS NGANGA GATHINA………………….….3RD ACCUSED

RULING.

1. The accused personsSAMMY MWANGI MBUTHIA,PETER NGUGI MBURU and FRANCIS NGANGA GATHINAwere jointly charged with two counts of the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code.

2. The particulars of the offence in count I are that:

“On the 9th to 10th days of June, 2010 at Kibicho Trading Center in Kiambu District within Central Province jointly with others not before court they murdered Jeremiah NyoikeWanjiru.”

3. The particulars of the offence in count 2 are that:

“On the 9th to 10th days of June, 2010 at Kibicho Trading Center in Kiambu District within Central Province jointly with others not before court they murdered Benson ThuoNganga.”

4. The prosecution called six (6) witnesses. The factsof the prosecution case were that the Area Chief of Kibichoi, Daniel who was PW4 i the case received a call from a watchman at the Kibichoi Shopping Centre. The man reported that there was a body at the Shopping Centre, 2 kilometres from PW4’s house. This was on 9th June, 2010 at around 8am. Indeed PW4 found the body at the place described to him and he called in the Police. The OCS, Kibichoi Police Station went to the scene and eventually collected the body. PW4 testified that he knew the deceased as one Jeremiah, who came from the same area and therefore his subject. He is the deceased in the first count.

5. The other deceased was a worker employed by PW5 in this case. Fredrick, PW5 testified that the deceased in count 2 was his shamba man. He worked on 9th June, 2010 until 4pm when he borrowed 1000/- for use to buy supplies at the local Centre. He did not see him again until 8am the following day when by a stranger who reported that Benson’s body was lying at the Shopping Centre. PW5 stated that on proceeding there he found the deceased Benson still alive but having cuts all over the body. He did not pull through treatment at Kiambu Hospital.

6. The prosecution called three doctors. PW1 was Dr.Paul Mbaluwho performed the postmortem on the body of Benson ThuoNgangathe deceased in count 2. PW1 found that the deceased had multiple cuts on the head and upper limbs,deep cuts and severed carotid vessels of neck, fracture of nasal bridge, fractured left mandible, fractures on left mastoid bone and hyoid bone. After the examination PW1 formed the opinion that the cause of death was acute haemorrhagewith multiple fractures caused by a sharp object. PW1’s Report was exhibit 1.

7. The other doctor called was PW2 Dr. Ann Wangechi Nderitu, the Government chemist. She produced the report prepared by her colleague Dr. Paul Waweru who had since retired. According to the ReportDr.Waweru generated DNA profiles from the Jackets of the 1st accused, the 3rd accused and a jumper of the deceased Jeremiah. He found that the DNA generated from all these documents all matched the DNA profile generated from the blood sample of the 3rd accused.PW2’s Report was exhibit 2.

8. The third doctor called was PW3 Dr. Peter MuriukiNdegwa performed a post-mortem on the body of Jeremiah NyoikeWanjiru on 16th June 2010 at Kigumo Health Centre. The doctor’s findings were that the neck of the deceased was halfway decapitated from the front, his throat was slit and the blood vessels on both sides of the neck were severed. He formed the opinion that the cause of death was extrangulation due to severe neck injuries due to sharp force trauma. PW3’s Report was produced as exhibit 3.

9. PW6 PC Koshoman was the investigating officer called to testify in this case. PW6 stated that he took over the Police file in this case from Corporal Mathias, who in turn had taken over the case from Corporal Japheth Mwendwa. CPL Mathias was the officer who investigated the case but unfortunately he passed on before he could testify in the case.

10. PW6 testified that exhibit 4, which was a blue jacket belonging to the 1st accused, which had bloodstains on the front and back side, exhibit 5 which was a jacket belonging to the 2ndaccused that had blood stains, and a black jacket, exhibit 6 belonging to the deceased Jeremiah which was stained with blood were all handed over to him when he took over the case. PW5 said that the CPL Mwendwa had already taken the exhibits and blood samples to the Government Chemist for analyses. In cross examination, PW6 testified that going by the statement recorded by CPL Mwendwa, he did not recover anything from the 3rd accused in this case.

11. No other witnesses were called to testify in this case. I noted that this case was started by Hon. Muchemi, J. who took the evidence of one witness named TeresiahWambuiWairimu. That witness recanted her evidence. An application to treat her as a hostile witness was rejected by the judge. Instead she was stepped down. When I took over the case I started de novo by consent of all the parties. The witness was however not called as a witness.

12. Mr. Nyangayo represented the accused persons in this case. After the prosecution evidence, he opted not to make any submissions in the case. Ms.Maari learned Prosecution Counsel also made no submissions.

13. The accused face a charge of murder under section 203 as read with section 204 of the Penal Code. The burden of proof lies with the prosecution to prove its case against each of the accused beyond any reasonable doubt. The prosecution had to call evidence to prove that the accused person had formed a common intention to omit or do acts which could cause either death or grievous harm to the deceased persons in this case. It was the evidential duty of the prosecution to call evidence to show that the accused persons, acting in concert caused the deceased deaths.

14. Section 21 of the Penal Code provides:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

15. By the close of the prosecution case no evidence was adduced to show how both deceased in this case met their death. There was no evidence to show whether any one witness how the deaths were caused or who was last seen in the company of either or both deceased before they died. The prosecution chose to call formal witnesses only to produce technical Reports of findings of analysis or examinations and evidence of persons called to see the deceased persons severely injured or dead as aforementioned. The question begs, where is the rest of the evidence? Not to mention that no adjournment by the prosecution was sought and declined with a view to adduce further evidence. The prosecution in their free will just closed its case without calling any further evidence in the case3 and without much ado.

16. The prosecution did not call important witnesses in this case. It is unfortunate the Investigating Officer died before he was called to testify. The arresting officer was not called. From the evidence of PW6, the deceased Officer may have been the arresting officer as well. It is however unlikely that he effected the arrest of the accused persons alone. Where are the other witnesses who participated in the accused arrest? As it were we do not know where or why the accused persons were arrested and how the police connected them to this case.

17. PW4 the Area Assistant Chief received the news from the watchman at Kibicho shopping centre whose name he had forgotten. This watchman was never named by PW4, nor called as a witness. We cannot tell whether the said watchman saw anything or knew how the deceased Jeremiah met his death. That again leaves many unanswered questions.

18. There was some evidence adduced regarding exhibits and DNA profiling. There was however controversy in regard to the exhibits in terms of ownership and where they were found. From the evidence of PW2 the Government Chemist,the Report shows that DNA profiles were generated from blood stains found in the Jackets sent to them indicated to belong to the 1st accused, 3rd accused and a jumper from the deceased Jeremiah; and that the results established that the generated DNA all matched the blood sample from the 3rd accused.

19. PW6 in his evidence stated that by the time he took over the case, CPL Mwendwa had taken the exhibits to the Government Chemist for analysis. PW6 did not therefore know from where the exhibits were recovered. He however read in court the statement of CPL Mwendwaand confirmed from it that nothing was stated to have beenrecovered from the 3rd accused person.Without the evidence of recovery, the controversy in the evidence in regard to an alleged recovery of a jacket from the 3rd accused remains unresolved.

20. There was no eye evidence account of how the deceased persons met there death. It is on record that a proposed witness retracted her evidence but by the time they did it was clear she had some knowledge of the case. This witness was not called as a witness after the case started de novo before my court.

21. PW6 did not take over the case from the late I.O Corporal Japheth Mwendwa. He took over from CPL Mathias. PW6 stated that from the statement of CPL Mwendwa and the records he had of the case, there were some people that had been arrested in connection to this crime who were later on released under unclear circumstance. PW6 said that some of the released people were to be treated as witnesses in this case. None of them were called as witnesses as none of those who testified said that they had been arrested in connection to this case. Why these persons were eventually not called as witnesses is a mystery.

22. Section 143 of the Evidence Actprovides:

“No particular number of witnesses shall, in the absence of any provisions of lawto the contrary be required for the proof of any fact.”

23. Even though the law does not set the limit of the number of witnesses who should be called to prove a case those called should satisfy a certain criteria which is apparent in a number of cases. In the celebrated case of BUKENYA AND OTHERS VERSUS UGANDA [1872] EA 549 the court held:

“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.

Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”

24. The duty of the prosecution in calling witnesses is to call such witnesses as will be able to establish not just its case on the required standard of proof beyond any reasonable doubt but the truth. This is so because the prosecution has a duty to call even those witnesses whose evidence may be inconsistent and who may not necessarily support its case.

25. In MWANGI VERSUS R. [1984] KLR 595 the court of appeal held:

“Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.”

26. The court of appeal in the cited case of MWANGI, supra observed that as long as the prosecution called witnesses who gave an account of what happened and corroborated eachother the court was could not interfere with the prosecution’s exercise of discretion of which witnesses to call for its case. The situation in this case is different. The prosecution called no witnesses who gave an account of what happened. There was no evidence of arrest. There was no evidence on the recovery of exhibits sent to the Government Chemist for analysis. In fact there was no evidence at all connecting any one of the accused persons to the death of the deceased persons.

27. In BUKENYA case, supra the court held that “where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”I am guided by the case and find that this case is fitting for an adverse inference being made against the prosecution that the reason inadequate evidence was adduced in this case was because all these witnesses who were vital witnesses in the case would have tended to be adverse to the prosecution case.

28. PW5 testified that he knew the accused persons as they came from the same village with him. He remembered the 1st accused’s name but said he had forgotten the names of the other two accused persons. He also stated that although the deceased Benson used to tell him whenever he had difficulties or issues, he did not tell him of any differences he had with the three accused persons.

29. The question that arises therefore is whether the Prosecution has sufficiently established a case to answer against the accused persons. I find that the prosecution has not established any prima facie evidence against any of the accused persons to warrant this court to require them to answerthe charge.

30. I therefore give the accused persons the benefit of doubt and acquiteach of them of the two counts of murder they face contrary to section 203 of the Penal Code under section 306 of the Criminal Procedure Code.

DATED AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2015

LESIIT, J.

JUDGE.