[2015] KEHC 2574 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 21 OF 2007

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

VERSUS

SAMUEL KARIUKI GACHARA........................................ACCUSED

JUDGEMENT

The accused SAMUEL KARIUKI GACHARA has been charged with the offence of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE. The particulars of the charge were given as follows:-

“On the night of 15th, 16th February 2007 at Bondent Village in Mau Narok in Nakuru District of the Rift Valley Province murdered LYDIA WANJIRU.”

The accused entered a plea of ‘Not Guilty’ to the charge and his trial commenced before Hon. Lady Justice Koome (as she then was). The prosecution led by the learned State Counsel called a total of ten (10) witnesses in support of their case. MS NDEDA Advocate appeared for the accused.

The brief facts of the prosecution case are given below:

PW1 FRANCIS NDUNGU MUREU and his wife PW3 MARGARET NYAMBURA GITHEGItold the court that on 20/1/2007 their house in Bondeni was broken into. Various household goods including 16 cushions, clothes, shoes, gumboots were stolen. The couple reported the burglary at Mau Narok police station. Yet again on 2/2/2007 their home was robbed again. This time the thieves made off with a sofa set, a table, a bed, mattress, 3 sufurias, 3 jiko’s and a mobile phone make Nokia belonging to PW1. Again the couple reported the matter to Mau Narok police station. On 16/2/2007 PW2 spotted the deceased whom she did not know wearing one of her skirts which had been stolen from her home. PW2 stopped the deceased and asked her where she had obtained the skirt from. The deceased told her that the skirt together with other household items had been brought to their home by her husband. PW2took the deceased to the police station where she recorded her statement and led police to her house.

The husband of the deceased identified as ‘Samuel’ (accused) was inside the house but when the police who were in civilian clothes identified themselves, the accused jumped out of the window and escaped. The deceased then expressed fear for her safety if she remained in the accused’s home since it was she who had identified the accused as the one who brought the stolen items to their home. PW1 and PW2decided to accommodate the deceased in their home. Sometime during that night of 15th/16th February, 2007, the accused and his parents came to the home of PW1 to call the deceased claiming that they wanted her to go to the police station with the accused in order to record a statement. They all left together.PW1 followed them to Mau Narok police station but did not find them there.

The following day the parents of the accused came to call PW1 and PW2to accompany them to the police station. The couple asked where the deceased was as they wished her to accompany them to the police station. The mother of accused claimed that the deceased was ‘too drunk’ to walk to the police station. PW1 and PW2 went to the home of accused. They found the deceased lying dead in a house. There was foam coming out of her mouth and she had been badly beaten and the clothes she was wearing were blood-soaked. Police were called and they came and removed the body to the mortuary. The accused who had run away was eventually arrested in Kisumu. Upon completion of police investigations, the accused was arraigned in court and charged with the offence of murder.

At the close of the prosecution case the accused was found to have a case to answer and was placed onto his defence. The accused opted to make a sworn defence in which he categorically denied having murdered the accused. The defence having closed their case and having filed their submissions on 23/3/2015 the matter is now before this court for Judgment.

Before I proceed to analyze the evidence and render a decision in this matter I deem it important to set out the history of this case. This is a very old matter which first came to the High Court in Nakuru in March 2007. Since then the file has had a long and rather unfortunate lifespan in our courts. The matter as I stated earlier commenced on 19/3/2007 when plea was taken before Hon. Justice Koome (as she then was). The Honorable heard the first four (4) prosecution witnesses and upon her transfer to Nairobi Hon. Justice W. Ouko (as he then was) took over the hearing of the case. The Honorable Judge heard the remaining six (6) witnesses and the prosecution eventually closed their case on 12/6/2012. Justice Ouko delivered a ruling on 18/1/2013 by which he directed that the accused person be called upon to give his defence to the charge. Thereafter the Judge was elevated to the Court of Appeal. The matter was then taken over by Hon. Lady Justice Hellen Omondi who heard and recorded the defence of the accused and reserved the matter for Judgment. However in a direction made on 10/10/2014 the Judge noted that since the hearing was all along conducted in the presence of assessors, the accused would have to give his defence in the presence of these assessors.

This was in order to comply with the ruling of the Court of Appeal in the case of BERNARD KINOTI M. ARACHI –VS- REPUBLIC Criminal Appeal No. 114 of 2008. As such Justice Omondi did not prepare a Judgment until she was transferred to Bungoma. On 28/11/2014 the case came up before Hon. Justice J. Mulwa where the defence requested time to file its final submissions. This was done on 23/3/2015 and the matter is now pending for Judgment before me as the Judge presiding over the Criminal Division of the High Court in Nakuru.

I have carefully perused this file. This trial has passed through the hands of not less than four (4) Judges and has been alive in the court system from 2007 to date – a period of eight (8) years. I note that indeed all the prosecution witnesses did testify in the presence of assessors. I also note that Justice Omondi did direct that the defence be re-heard in the presence of assessors. Being a court of concurrent jurisdiction I have no authority to revise these directions. However the Hon. Judge was transferred to Bungoma and thereafter has proceeded on a study leave. It is not possible to pass on the file to her for conclusion. The assessors were last in court in July 2012 – three (3) years ago. It is unlikely that they could be traced to return to hear the defence. I note that the accused already gave his defence to the charge which is already on record. I am mindful that under the Constitution the accused has a right to an expeditious trial.

The decision of the assessors which would in any event not bind the court would not make a difference one way or another therefore to stop the trial at this point in order to launch a search for the assessors would in my view greatly prejudice the accused as his trial would only be extended.

The accused has at all times been represented by counsel. At no time has his lawyer applied to have the assessors re-called to hear his defence. It may be taken that the defence have waived the right to have assessors present during the trial. The aim of any court is the just, transparent and expeditious delivery of Justice. In the circumstances I have outlined I am of the mind that Justice would best be served by delivering a Judgment and bringing this trial to an end. For the reasons given above I will proceed to analyze the evidence on record and deliver my verdict.

The charge which the accused faces is that of murder. The offence of murder is defined by Section 203 of the Penal Code as follows:

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

The prosecution is therefore required to prove four (4) crucial ingredients in order to establish the offence of murder.

These four are:

Evidence of the fact of death

Evidence of the cause of that death

Evidence that it was the accused who by an unlawful act or omission caused the death of the deceased.

Evidence that the said unlawful act or omission was committed with malice aforethought.

Regarding the fact of death of the deceased there exists no controversy, PW1 and PW2 both narrate how they found the battered and bloodied body of the deceased lying on the floor. PW6 PENINA WACHEKE who was the mother of the deceased told the court that she identified the body of the deceased at the mortuary. She identified the deceased as ‘Lydia Wanjiru’.

Similarly regarding the cause of death of the deceased there is equally no controversy. The witnesses all state that they saw foam flowing out of the deceased’s mouth. They all state that the body was badly bruised and was bleeding and the clothes the deceased wore were blood-stained. Concrete evidence on the cause of death was tendered by PW8. DR.TITUS NGULUNYI produced in court the Post Mortem report prepared and signed by his colleague DR KAMAU. This report confirms that upon autopsy examination multiple bruises were seen on the body and a fracture of the left side of the skull was noted. The cause of death was opined to be “increased intracranial pressure due to hemorrhage in the brain secondary to a fatal head injury”. This was expert medical evidence and was neither challenged nor controverted by the defence. I therefore find as a fact that the deceased met her untimely and unfortunate death as the result of a fatal blow to her head.

Having proved the fact as well as the cause of death the prosecution is under an obligation to tender evidence sufficient to prove that it was the accused who inflicted the fatal blow to the head of the deceased.

There was no eye witness to the events leading to the death of the deceased. PW1 and PW2 who had offered to accommodate the deceased in their home could only tell the court that on the material night the accused (who was the deceased’s lover/husband) and his parents came and called the deceased claiming that they were all going to the police station to record statements over the theft of items from the house of PW1. The accused and his parents left with the deceased and she was never seen alive again. The prosecution therefore seeks to rely on ‘circumstantial evidences’ to prove that the accused had a hand in the murder of the deceased. The theory being advanced is that since the accused and his parents were the last persons seen with the deceased and since her dead body was recovered in his home, the accused must be guilty. Circumstantial evidence is not direct or primary evidence. It is secondary evidence to be deduced from a set of facts. In the case of KARIUKI KARANJA –VS- REPUBLIC [1986] LKR the court held that:

“In order for circumstantial evidence to support a conviction, it must point irresistably to the accused and in order to justify the inference of guilt on such evidence the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The burden of proving facts justifying the drawing of that inference is on the prosecution”

Therefore the circumstantial evidence adduced must point at the accused and at no other person as the culprit. All other possible explanations of how the deceased could have met her death must be satisfactorily excluded by the prosecution.

In this case the deceased left with three (3) persons, the accused, his father and his mother. The parents of the accused were crucial witnesses as it is to be assumed that they know what happened in their home and could have shed much light on the issue. None of the two was called as a witness. None of them even recorded statements with the police. The prosecution is silent as to why such crucial witnesses were excluded. The parents of the accused were in my view equally suspects in this case as they were seen walking away from the home of PW1 with the deceased. The court is not told of any investigations done by police to establish what role if any they could have played in her death. If the police have excluded the two as suspects the court needed to be told how this was done and why.

The court is entitled to draw an adverse inference from the failure of the prosecution to call the two. Could it have been because their testimony would not have supported the prosecution case?

Suspicion fell heavily on the accused because the deceased who was his wife/lover had implicated him in the burglary and theft of items from the home of PW1. However it is trite law that suspicion however strong cannot form the basis for a conviction. In the case of JOAN CHEBICHII SAWE –VS- REPUBLIC Criminal Appeal No. 2 of 2002the court stated as follows:

“The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond reasonable doubt. As this court made clear in the case of MARY WANJIKU GICHIRA –VS- REPUBLIC (Criminal Appeal No. 17 of 1998 (unreported). Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence”

PW1 and PW2 told the court that on the following day when they insisted that the deceased accompany them all to the police station, the accused and his parents told them that she was drunk and could not walk. PW1 andPW2 both say they saw a foamy substance coming out of the mouth of the deceased. What had she ingested and who gave it to her? These questions remain unanswered.PW7 PC CHARLES OBANDA told the court that a sister of the accused whose name he initially gave as ‘WANGECHI’ but later corrected to be ‘NJOKI’ called him. He stated what this lady told him at Page 12 Line 8 thus

“I received a call from sister to the accused identified. I cannot recall the full names of the sister. I knew her as Wangechi [Njoki]. She told me there was a problem at their home at Bondeni – when I arrived there Wangechi [Njoki] told me that her sister in law arrived home early in the morning in a bad state of health. She was offered milk and thereafter she died…”

Again I find that this Wangechi [Njoki] was a crucial witness. Yet again the prosecution failed and/or neglected to call her to testify. This person claims that the deceased arrived to the home of accused at 5. 30am in great pain. The deceased according to PW1 and PW2 left their home in good health at about midnight. Where then was she between midnight at 5. 30am when she was seen in great pain. Where was deceased during this time and what could have befallen her? All these questions remain unanswered. PW10 P.C ELKANA KIBET the investigation officer told the court that the body of the deceased was found in a house in the accused’s home. PW10 goes on to state at Page 19 line 1.

“But the accused had rented accommodation a distance away where he lived with deceased”

The implication is that the house in which the body of the deceased was recovered was not the accused’s house. It was a house in his parents’ compound. The accused lived some distance away in a rented house. What is the connection between this house and the accused? The court is not told. Undoubtedly several people lived in that homestead. The more pertinent question would be who ordinarily resided or slept inside the house where the body was recovered. Again this question was not answered.

On the whole I find that the prosecution case was weak and lacked cogency. It raised more questions than answered. The circumstantial evidence does not point unequivocally at the accused as the perpetrator of this crime. Several crucial witnesses were not called to the stand. The prosecution failed to prove that it was the accused who dealt the fatal blow the deceased. The actus reas for the offence of murder has not been proved beyond a reasonable doubt.

I therefore enter a verdict of ‘Not Guilty’ and I acquit this accused of this change of murder. The accused is to be set at liberty forthwith unless he is otherwise lawfully held.

Dated in Nakuru this 2nd day of July 2015.

M/s Wambeyi holding brief Ms Ndeda

M/s Ngovi for State

M. A. ODERO

JUDGE

2/7/2015