[2010] KEHC 3349 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

Criminal Case 53 of 2005

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

~VRS~

SHEM MUNIALO MAMULI .................................................1ST ACCUSED

ROBERT WANYAMA TENYA............................................2ND ACCUSED

JUDGMENT

The accused persons Shem Munialo Mamuli and Robert Wanyama Tenya face a charge of murder contrary to section 203 as read with 204 of the Penal Code. It is alleged that on the 8th and 9th October, 2005 at Namirembe Village in Bukembe Location of Bungoma District, jointly with others not before the court, he murdered Eliakim Kilaoli Wandeba. The two accused pleaded not guilty to the charge.

Six prosecution witnesses testified in this case with the first three being heard by my sister Justice Wanjiru Karanja. I took over the case under section 200 (3) of the Criminal Procedure Code and heard the rest of the prosecution’s case and that of the defence.

PW1 said that on 18/10/2005 he was at his home at Namirembe Village. The deceased and his wife had come to stay with them as they attended mourning and prayer meetings for PW1’s late wife Judith. On the material evening there were mourners some inside the house and others outside in a shelter. The two accused persons were among the mourners. The deceased remained in the house while his wife went to the shelter. Around midnight a fracas arose involving the deceased and other mourners who included the two accused persons. The deceased confronted the 1st accused on allegation that he (1st accused) was dancing with his wife. He was armed with a knife and started stabbing people including the accused persons. The victims fought back and the deceased was also injured. He sustained several injuries. The matter was later reported to the police. The deceased was to die later of the injuries.

PW2 was in the same prayer and burial meeting on the material day. He was in the main house. He heard noise from the shelter outside the house. He went there and on the way he met the 1st accused fighting with a man he (PW2) did not know. The 2nd accused was also there. The first accused continued fighting with the man who was the deceased in this case. PW2 – ran away from the home through the sugar plantation to the road and only returned when the village elder came. PW2 assisted to tie the deceased who was violent with a rope. He was taken to the chief’s camp together with the two accused.

PW3 was at the burial meeting with the deceased and his wife earlier in the evening. She then left and went to her home to sleep. She was woken up at 12. 30 p.m and went to the scene just to find the deceased, PW2 and the two accused persons with fresh bleeding wounds on various parts of their bodies. She saw one mourner George Simon come and hit the deceased with a rungu. One Patrick Namusore also hit the deceased with a stick. PW3 was threatened with a beating for protecting the deceased.

PW4 was stood down before he testified when the State discovered that he had been wrongly summoned. PW5 Dr. Vilembwa produced the post mortem form on behalf of his former colleague Dr. Jacinta Takuo. The doctor formed the opinion that the deceased died of cardio-pulmonary arrest due to shock due to loss of blood in the chest and head. The deceased had cut wounds on the head, face, bruises on the chest wall and thigh, haematoma and on the ribs.

PW6 was the investigating officer who received the report of the assault from the wife of the deceased. He later conducted investigations and arrested the two accused persons. Both were charged with the offence.

The two accused persons gave unsworn statements of defence. Both said they were at the burial meetings on the material night. The first accused said he went outside the house and saw someone flash a torch at him. He was hit and fell unconscious. He found himself in hospital. Later police arrested him from his home. He denies committing the offence. The second accused went to the scene after hearing screams. On arrival, he found two people lying on the ground with serious injuries. These were Barasa and another. Both were taken to hospital. He was arrested on 18/10/2005 around 11. 00 a.m. He denies committing the offence.

Mr. Omukunda for the defence submitted that the prosecution have not proved the case beyond any reasonable doubt against the accused persons. Some of the prosecution witnesses did not witness the incident. PW1 said he was an eye witness just to admit later in cross-examination that he was not. PW2 failed to disclose to the court that he was also stabbed during the fight but it later came out during cross-examination. PW3 went to the scene after the incident. He urged the court to find the accused persons not guilty and acquit them accordingly.

The evidence of PW1 was that he heard noise outside and went there. He found the deceased armed with a knife and stabbing the two accused and one Barasa. Other people started beating the deceased with rungus. Later in cross-examination, PW1 said he did not witness the incident. He said he went to the scene after the fact. He said:

“I was just told. By the time I went outside, they had already fought. I just took the deceased inside the house after I disarmed him.”

When re-examined by the state counsel PW1 said:

“I did not see the accused being attacked ………. I did not see the two (meaning the two accused) attack the deceased.”

These statements are evident of the fact that PW1 did not witness the fight or the attack on the deceased. His evidence in chief was therefore not true when he said he witnessed the deceased attack on the two accused by the deceased and vice versa.

PW2 said he found accused 1 fighting with the deceased. When he asked what was happening, the deceased became hostile and PW2 went away. In cross-examination, the witness admitted that he was a part of the fracas because he was stabbed by the deceased. In his evidence in chief, PW2 did not disclose that he was injured. This renders PW2’s evidence unworthy of credit.

PW3 did not witness the incident. This leaves only PW1 and PW2 as the prosecutions eyewitnesses. The credibility of the two witnesses was put in question by their subsequent admissions during cross- examinations. PW1 said he was only told of what happened and did not witness the fight contrary to what he said in his evidence in chief. PW2 was trying to cover up that he was part and parcel of the fight as a result of which the deceased died. The evidence from these two witnesses and from the investigating officer reveals what the cause of the fight was. The deceased found the first accused dancing with his wife which annoyed him. He then armed himself with a knife and attacked the two accused persons. Others joined in and started beating the deceased who was a stranger in the area. PW3 mentioned that one George Simon and Patrick Namusore also assaulted the deceased with George using a rungu. George sang circumcision songs which attracted many people. PW3 was also threatened and had to leave the scene. When she left, PW3 mentioned the names of one Shem, Robert Wanyama Baraza and Eliakim whom she left at the scene. Robert Wanyama is the 2nd accused person. The other three were not called as witnesses.

The Investigation Officer, PW6 received the report of the assault of deceased from his wife Catherine. She went into hiding after that and could not be traced to come to give evidence in court. PW6 said he found out later that the report given to him by Catherine that her husband was killed by strangers was not true. The question which arises is why there was all that cover-up by witnesses and even by the wife of deceased. There is only one plausible conclusion, that most of those people had a part to play in the fight which they did not want to disclose in order to remain safe from the enforcement of the law.

The prosecution’s witnesses, especially PW1 and PW2 were incredible and told deliberate lies. The investigating officer did not conduct thorough investigations in this matter in order to establish who caused the death of deceased. The evidence on record is insufficient to prove that the two accused killed the deceased. It has not been established what part each of them played or what injury one inflicted on the deceased.

The prosecution has therefore failed to prove the case beyond reasonable doubt as required by the law. I give the accused persons the benefit of the doubt and acquit them accordingly. They shall be set at liberty unless otherwise lawfully held.

F. N. MUCHEMI

JUDGE

Dated, Delivered and Signed at Bungoma this 24th day of March 2010.

In the presence of the two accused persons, Mr. Kakoi for Omukunda for the two accused and the state counsel Mr. Onderi.