[2022] KEHC 2475 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CRIMINAL CASE NO 26 OF 2016

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

VERSUS

SAMUEL MURIITHI WAHOME.............................................ACCUSED

J U D G M E N T

1. The Accused herein, SAMUEL MURIITHI WAHOME, is charged with two counts of murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged in the information dated 07/09/2016 that on 11/09/2015 at [Particulars Withheld] Village in Naromoru, Nyeri County within the Republic of Kenya, he murdered, respectively, GK and EM. He pleaded not guilty to the charges and was tried. Kasango, J took the testimonies of 12 prosecution witnesses before the Judge was transferred to another station. I took the testimonies of the remaining two prosecution witnesses, and also the sworn evidence of the Accused in his own defence.

2. Learned counsels appearing put in written submissions, which I have read and considered, together with the authorities citied.

3. The 1st Deceased, GK, was the daughter and second child of EW (PW1). She was six (6) years old at the time of her death. The 2nd Deceased, EM, who was four (4) years old at the time of his death, was the son of ANM (PW2).

4. The Accused and PW1 had lived together as husband and wife for about a year at [Particulars Withheld] Village in Naromoru, Nyeri County. They had one child together, a son (the third child of PW1). However, their marriage was not a happy or peaceful one; the Accused was said to frequently assault PW1, suspecting her of having affairs with other men (including PW2).

5. It was the testimony of PW1 and FREDRICK MUTHAURA M’MAGIRI (PW3), a village elder at [Particulars Withheld] Village, that about a month before the events that gave rise to this case, the Accused had badly assaulted PW1, prompting PW3 to order him to go away and get his identity card (which he had said was at his own home elsewhere). The Accused had thus left [Particulars Withheld] Village and gone away, leaving PW1 and her 3 childrren.

6. The prosecution case was as follows. PW1 testified that on the evening of 08/09/2015 the Accused came to her home in [Particulars Withheld] Village. He did not eat anything and he slept alone in PW1’s bed. PW1 sat on a chair all night next to where the children slept. She and the Accused did not talk at all.

7. PW1 further testified that at about 6. 00 a.m. the following morning the Accused woke up and left the house. She did not know where he went. She prepared the 1st Deceased for school (she was attending nursery school). The older child, who was in primary school, was not going to school that day as teachers were on strike.

8. At about 7. 30 a.m. PW1 escorted the 1st Deceased for a bit of the way towards her school. The school was about 10 minutes walk away. The 1st Deceased was in the company of the 2nd Deceased, a child of next-door neighbours. PW1 then returned home, leaving the two children as they walked towards their school.

9. PW1 expected the children to come back home from school at 1. 00 p.m. When they did not, she and the mother of the 2nd Deceased proceeded to the school and made enquiries. The class teachers of the two children informed them that the two children had not attended school that day. Those teachers, FAITH MWENDWA (PW9) and ROSALINE NGANATHA (PW8) in their own testimonies stated that the children had not attended school that day (09/09/2015). They produced in evidence the class registers for that day which corroborated their testimonies of the two children not attending school that day.

10. PW1 further testified that as she and the 2nd Deceased’s mother were going to the school to make enquiries they had met PATRICK MAINA GATHOGO (PW6) who told them that he had met the Accused that morning standing with the two children near the school. PW6’s testimony in this regard was rather different. He testified that he had met the children going in the direction away from the school. He asked them where they were going and they said they were told to go to their mothers. He did not ask them who had told them that. PW6 further testified that a while later he met up with the Accused who was going towards where the children were going. He said he and the Accused greeted each other and continued to go their respective ways. He added that the Accused was very near where the children were as they went. It is to be noted that he did not state that he saw the Accused standing with the children anywhere.

11. PW1 and the 2nd Deceased’s mother, along with fellow villagers, looked for the children in the surrounding areas in vain. Likewise on the following day. They then reported the children’s disappearance to PW3 (the village elder) who told them to report the matter to the Chief’s office. Eventually they reported the matter to Naromoru Police Station.

12. PW1 then testified that on the third day following the children’s disappearance, a Friday, she was in the company of Mama Ema (who operated a shop in their residential plot). This Mama Ema testified as MERCY KANANA (PW7). PW1 stated that the Accused called PW7 on her mobile and said that he wanted to talk to PW3. PW3 was called and he came. PW7 then called back the Accused and gave her phone to PW3. PW1 said the phone was on loudspeaker and she could hear the conversation between PW3 and the Accused. She said she identified the voice of the Accused on the other end, and that she heard the accused tell PW3 that he had killed the children and directed them where to find their bodies.

13. PW1 stated that there were other people around and that they heard the conversation. These people went to the place as allegedly directed by the Accused on the phone, but they did not find the bodies. Another search was carried out and the children’s bodies found.

14. PW7’s testimony regarding the alleged telephone conversation was as follows. On 11/09/2015 she was at her shop when she got a phone call from PW1. She did not state what the call was about, but said that at 8. 30 a.m. PW1 brought her phone and told her that the Accused had called and asked that she (PW7) call him. She called him and he said he wanted to speak to PW3 (the village elder). PW7 then asked her husband to call PW3 and tell him that the Accused wanted to talk to him. When PW3 came he began to talk to the Accused on the phone. In her turn PW7 went back to serving her customers in the shop. She stated that she had recognized the Accused’s voice on the phone.

15. On his part PW3’s testimony on this telephone conversation with the Accused was as follows. He was called by PW7 at about 11. 00 a.m. She said that the Accused wanted to talk to him. He went to PW7’s shop and found other villagers there. This was on the third day after the children disappeared. PW3 then asked PW7 to call the Accused. She did so and he (Accused) asked for his wife (PW1), whom he told,

“You reported me to Muthaura; give Muthaura the phone so that I can tell him where the children are.”

16. PW3 further stated that the phone was on speaker, full volume, and everybody present could hear what the Accused was saying. When the phone was given to him, PW3 testified, the Accused said he had killed the children and directed him where their bodies would be found. He and others proceeded as directed but they did not see the bodies and he called the Accused on PW7’s phone who gave fresh directions, which led to recovery of the children’s bodies. Both had their throats slit. He said the phone was still on speaker, full volume, and the telephone conversation was recorded on his own mobile phone by one Ndegwa (PETER NDEGWA WANYOIKE, PW5). PW3 identified his phone in court, an X-Tigi. The Accused spoke in Kikuyu language.

17. Both PW1 and PW3 testified that apart from the assaults on PW1, the Accused used to take good care of his children and cared for the family. In fact PW1 stated that when she and the Accused lived together he loved all the three children.

18. As already seen PW2 (Anthony Ngure Mwangi) was the father of the 2nd Deceased. He testified that on 09/09/2015 he escorted the child some way towards his school and then went to his work. In the evening at about 6 p.m. his wife, Florence Gathoni (who did not testify) telephoned him and told him about the disappearance of the two children. Later, when he met up with his wife and others searching for the children, she told him that the children were last seen in the company of the Accused. They looked for the children until 10 p.m. that day in vain. They continued the search on the following day, likewise in vain.

19. PW2 further testified that on the third day after the children’s disappearance, a Friday, he was present during a telephone conversation between the Accused and PW3. He said he heard the conversation as the phone PW3 was using was on speaker. He gave material details of the conversation he heard, which differed from the details of the conversation narrated by PW1 and PW3 (more of that later). He however said that the telephone conversation was recorded on PW3’s own phone by one Ndegwa (PW5). He was also present when the children’s bodies were recovered at the place allegedly directed by the Accused on the telephone conversation.

20. PW5’s testimony was, inter alia, that on 11/09/2015 he had accompanied PW3 when he went to the shop of PW7 and that he heard the telephone conversation between PW3 and the Accused. He stated further that he had used his knowledge to record the telephone conversation between PW3 and the Accused on PW3’s mobile phone; PW3 was however speaking on a different phone, the phone of PW7. PW5 also testified that he was present when the children’s bodies were recovered at a place allegedly directed by the Accused in his telephone conversation with PW3.

21. PW5 also stated in his testimony that on 09/09/2015 at 6. 10 a.m. he had met the Accused, whom he knew well, at a certain café in Soweto Village, and they had taken tea together. PW5 further stated that the Accused had said he was in a hurry and asked to eat the first mandazi that was ready. Nevertheless PW5 said he left the Accused at the café. The person serving the Accused and PW5 at the café was not named nor called to testify.

22. GMW (PW4) was the father of PW2 and the grandfather of the 2nd Deceased. He identified the body of the 2nd Deceased to PW11. He also helped trace the Accused and was present when he was arrested by the police.

23. PC KOBIA ITHILI (PW10), a police officer from Naromoru Police Station and other officers visited the scene where the children’s bodies were recovered. He and the others took the bodies to the mortuary at Nanyuki Teaching and Referral Hospital.

24. IP MICHAEL KAMAU NYARAGA (PW12) was a scenes of crime police officer. He took photographs of the scene where the children’s bodies were recovered and of the bodies themselves. He produced the photographs in evidence together with the necessary certificate under the Evidence Act, Cap 80.

25. DR VICTORIA WAIRIMU GITHENYA (PW11) conducted the post-mortem examination of the bodies of the two Deceased. She filled up and signed the post-mortem reports and produced them in evidence. The throats of the two children had been slit and their jugular veins and carotid arteries on both sides of the neck cut open. The cause of death for both children was severe bleeding consequent upon the injuries to the major blood vessels of the neck.

26. IP GEORGE ARINGO (PW13) was a police officer from the Cyber Crime Unit at CID Headquarters, Nairobi. He was an investigator and analyst in digital forensics. He examined PW3’s X-Tigi mobile phone and a memory card upon which the alleged telephone conversation between PW3 and the Accused had been recorded, allegedly by PW5. His brief was to try and retrieve any voice recording from the phone memory and/or the memory card. He did his forensic analysis of the phone and the memory card and prepared his report dated 17/06/2019 which he signed. He produced it in evidence together with the Exhibit Memo Form by which the two exhibits (the X-Tigi mobile phone and the memory card) had been forwarded to him.

27. PW13’s report was, (i) that the X-Tigi phone was not recognized by the forensic tool kit, and he was therefore not able to obtain any data from the phone; and (ii), that the forensic took kit was unable to read the memory card, and thus unable to retrieve any data from the memory card.

28. SGT MILICENT ATIENO OUKO (PW14) took over as investigating officer of the case from a previous officer who did not testify. She recorded some witness statements. She also took into her possession the X-Tigi phone of PW3 and listened to a recording on it through an interpreter (she said the recording was in Kikuyu language which she did not understand). She then formed the opinion that the Accused had committed the two murders and had him charged accordingly. She produced in evidence the X-Tigi phone and its memory card.

29. The Accused testified under oath in his own defence. He stated that PW1 was indeed his wife from December 2013 to 02/08/2015, though they were not formally married. They lived together as husband and wife. She already had 2 children and they got one child together named after his own father as per Kikuyu customs. The Accused said he left PW1 when he found her with a man in the house, and he went to live alone at Karatina.

30. The Accused denied that on 08/09/2015 he visited PW1 and the children. He said that after leaving her he next saw her in court. He last saw the children on 02/08/2015 when he left their mother. He never saw them again.

31. The Accused further testified that on 09/09/2015 he woke up at his house in Karatina. He denied that he communicated with PW1 or anyone else on 09/09/2015. He said that he had his mobile number on that day – 0703 647 113. He never called PW3, though he knew him as a village elder at [Particulars Withheld] Village. He did not know the mobile number of PW3. The Accused also testified that he knew PW7 who was their landlady at Soweto Village. He denied that he talked with her on the phone as alleged by her and other witnesses.

32. The Accused also said that he knew PW6, whom he had suspected of having an affair with his wife (PW1) as he had seen some messages on her phone that they had exchanged, leading to his fight with PW1 and his leaving her. He denied that PW6 had seen him in [Particulars Withheld] Village as he had testified following the two children. He denied that he killed the children.

33. In cross-examination he stated, when asked about the testimony of PW1, that on 08/09/2015 he never went to [Particulars Withheld] Village; that he was at his kiosk at Karatina stage where he sold sodas, biscuits, etc throughout. He also denied that he took tea with PW5 at [Particulars Withheld] Village on 09/09/2015. He stated that he was at Karatina on that date working at a building site.

34. That then is the totality of the evidence placed before the court. I have given due allowance for the fact that I did not see and hear PW1 to PW12 as they testified. As already seen I only recorded the testimonies of PW13, PW14 and the Accused person.

35. The Accused was charged with the murder of the two children primarily on account of his alleged confession to PW3 in an alleged mobile telephone conversation between him and PW3 that was allegedly recorded on a different mobile set, the X-Tigi mobile phone of PW3 (Exhibit P2(a)) and its memory card (Exhibit P2(b)) . Unfortunately a forensic examination and analysis of the phone and the memory card by PW13 did not yield any corroborating evidence as the tool kits available to him at his forensic laboratory could not recognize the phone or read the memory card.

36. The investigating officer (PW14) stated that she listened to the Accused’s confession on the mobile phone through an interpreter (who was her work colleague) as the recording was in Kikuyu language which she did not understand. This interpreter never testified, and no certificate of translation was prepared or produced in evidence.

37. Material details in the alleged telephone conversation between the Accused and PW3 as narrated by the various witnesses who claimed they clearly heard the conversation, differed. For instance, PW2 stated that he heard the Accused threaten PW3 that he would have his head for separating him from his wife. PW3 himself and the other witnesses never testified to such threats. The court cannot thus rely only on the memories of the witnesses of what they heard of the alleged conversation.

38. It is also surprising that the mobile numbers by which the Accused and PW3 (as well as PW7) allegedly communicated were not obtained by the police and forwarded to the mobile telephone service provider(s), at the very least to verify that indeed there were such conversations.

39. PW1 was the only witness to the allegation that the Accused visited her home at Soweto Village on the evening of 08/09/2015 and

spent the night there. PW5 was the only witness to the allegation that he was with the Accused at the café in [Particulars Withheld] Village in the morning of 09/09/2015 and that they had tea together. Why was the person who served them not mentioned or called to testify.

40. PW6 was the only witness to the allegation that he had seen the Accused following the children in the morning of 09/09/2015. His testimony was not that he had actually seen the Accused with the children, contrary to what he appeared to have told PW1 and the 2nd Deceased’s mother.

41. The Accused is charged with the heinous crimes of murdering two very young and innocent souls. These are as reprehensible crimes as possibly can be, and their innocent blood cries out for justice. The Accused, however, can be convicted only upon good and sound evidence that establishes each element of the charge beyond reasonable doubt.

42. No witness has testified to actually seeing the Accused with the children at any time between when they left their homes and escorts to go to school and when their bodies were recovered three days later. The alleged presence of the Accused in [Particulars Withheld] Village in the night of 08/09/2015 (testimony of PW1) and in the early morning of 09/09/2015 (testimonies of PW5 and PW6) is tenuous and not proved beyond reasonable doubt.

43. The alleged confession of the Accused to PW3 over a mobile telephone conversation allegedly recorded by PW5 on a different mobile phone, and also allegedly heard by many other persons, is even more tenuous and was not verified by forensic evidence, as it should have been.

44. Mere suspicion alone can never amount to evidence, and no one, let alone a person charged with a double murder, can ever be convicted on suspicion alone.

45. Upon evaluation of the available evidence, I find that none of the two counts of murder that the Accused stands charged with has been proved beyond reasonable doubt. He is hereby acquitted of the charges. It is so ordered.

DATED, SIGNED AND DELIVERED AT NANYUKI THIS 10TH DAY OF FEBRUARY 2022

H P G WAWERU

JUDGE