[2017] KEHC 9681 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CRIMINAL DIVISION

CRIMINAL CASE NO.51 OF 2014

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

VERSUS

SHIRE ALI ADAN ALIAS AWALE................................................ACCUSED

RULING

1. The accused SHIRE ALI ADAN alias AWALE was charged with two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were:-

COUNT ONE on the 15th day of June 2014 at 7th Street Eastleigh Estate Starehe district within Nairobi County jointly with others not before the court murdered MOHAMED SUFI.

COUNT TWO on the 15th day of June 2014 at 7th street Eastleigh Estate Starehe District within Nairobi County jointly with others not before the court murdered ABDI KADIR ALI.

2. He pleaded not guilty to the said charges and to prove its case the prosecution called a total of eight (8) witnesses and at the close of the prosecution case when called upon to submit, the parties opted to leave it to court to make a determination based on evidence on record.

3. At the end of the prosecution case under the provision of Section 306(1) Criminal Procedure Code the court is expected to make a determination if it considers that there is no evidence that the accused committed the offence to record a finding of not guilty while Section 306(2) if the court considers that there is evidence that the accused committed the offence the court shall then put the accused on his/her defence and advise the same of the options of either giving evidence on his behalf or to make unsworn statement and call witness or not to give any evidence commonly known as the right to remain silent and not testify as stipulated under Article 50(1) (i) of the Constitution of Kenya, 2010.

4. The court is called upon to establish whether the prosecution has established a prima facie case as was stated in the case of RAMANLAL TRAMBAKLAL BHATT v REPUBLIC (1957) EA 332 at pg 335 as follows:-

“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot argue that a prima facie case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court could not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case, nor can we argue that the question whether there is a case to answer depends only on whether there is “some evidence irrespective of its credibility or weight sufficient to put the accused on his defence.”

A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence… It may not be easy to define what is meant by prima facie case but at least it must mean one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” (Emphasis added)

5. It follows that the court will only call upon an accused person to defend himself if there is sufficient evidence tendered by the prosecution that would enable the court to convict the accused should he opt to exercise his Constitutional right under Article 50(1) (i) (supra).

6. The starting point therefore is to analyze the evidence of the prosecution but with the caution as stated by Justice J.B Ojwang (as he then was) in REPUBLIC v SAMUEL KARANJA KURIA CRIMINAL CASE NO. 130 OF 2004 NAIROBIreported in(2009) eKLR that a detailed analysis of evidence at no case to answer stage is undesirable if the court is going to put the accused onto his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.

7. The following evidence was tendered against the accused person; PW1 ABDI KIMADIR NOOR MOHAMED stated that on the material day he had come from a wedding with the deceased and proceeded to watch a football match up to 4. 00 a.m. and on their way home at 7th Street they saw a group of youth at a distance armed with rungus and pangas about twenty in number who chased them up to 8th street where they took refuge at Durgun house owned by one ABDUL SHEEN.

8. It was his evidence that after thirty minutes against the advice of the owner of the said house they thought it was safe to leave and that when they got out they met a group of the youth who chased them into the 9th street where they attacked him on the hand and the right leg. He stated that he was able to identify the accused with his three sons. He further stated that the accused was armed with a rungu and that though it was night he was able to see since there was light from Meru shops. He was clear in his evidence that he was attacked by one HAMED MUNSAR and that he did not know where the deceased person had ran to only to learn that they had died from cuts on their bodies. It was his further evidence that he knew almost all the youth who were in the group that attacked them.

9. Under cross examination he stated that the accused was not at the wedding where there was an earlier fight involving the youth. He further stated that the accused was not in the group that first attacked them and that he only saw him in the second attack. He admitted that they belonged to different groups of youth. PW2 MOHAMED ADOW IMAN corroborated PW1’s evidence and stated that one of the sons of the accused called TIRMAYE had taken a phone from one of the ladies at the wedding and this lead to a fight. On their way from watching the match he stated that they met a group of youth whom he knew with the accused who was allegedly holding a club and that it is the accused who asked that they be killed. Upon the attack he ran towards the 7th street and when he came back to the scene he found the deceased had been killed with knife and panga injuries.

10. PW3 DR. PETER NDEGWA performed post mortem examinations on the bodies of the deceased and that ABDIKADIR ALI had a penetrating stab wound on the right precocordian (rib cage) right chest and left chest and as a result thereof formed an opinion that the cause of death was chest injuries due to multiple stab wounds for MOHAMED SUFI the same also had penetrating stab wounds on the chest and formed an opinion that the cause of death was due to multiple stab wounds consistent with assault.

11. PW4 ABDI RASHID MUNASAR confirmed that the group of youth had entered his house for safety and when he went outside he did not see anybody. He stated that he advised the youth to stay in until morning but they decided to go out and when they reached 9th street the other group of youth reappeared and a fight ensued. He decided to go back to his house only to learn of their deaths in the morning. He thereafter learnt that one of the youth who had attacked the deceased and his group was in Garissa and proceeded there only to find out that he was not the youth they were looking for. Later on PW2 told them that one of the suspects was at 10th street and with the aid of AP officers from the chief camp they arrested the accused. It was his evidence that he did not witness the killing.

12. Under cross examination he confirmed that he knew the name of the sons of the accused which name he got from one of the victims and that when he saw the accused at the chief’s camp he was surprised as he did not suspect him, to be involved in the killing. He stated that he only saw youths fighting on the 9th street and gave the name of some youth he saw and stated that if the accused was in the group he would have seen him. He stated that there were gangs in the area and that the accused did not have any gang.

13. PW5 AP SAID DIER ADAN stated that he arrested the accused having been shown to him by Abdi Rashid (PW4) from where he was playing pool and handed him to the officers from Pangani. PW6 KHATRA FARAH MOHAMEDconfirmed the death of her son from a knife wound on the stomach and a blunt injury on the neck but stated that she did not know how they met their death while PW7 CORP. SAMUEL KIREMI stated that he received the information of the death of the deceased herein without clear indication on who had attacked them.

14. PW8 PC DISMUS SIRIA confirmed having recorded statements from the witnesses herein and stated further that on 26th June, 2014 one Abdi Rashid (PW4) informed him that a suspect had been arrested whom they re-arrested and that from his investigations he established that the accused together with his sons and other people attacked the deceased persons but did not establish why they were attacked and that the accused upon being interviewed stated that he was not in the area while other suspects disappeared including the sons of the accused named Guled Awale, Ali Said Awale and Jamal Awale. He stated that it is only PW1 and PW2 who mentioned the accused.

15. At the close of the prosecution case as stated herein, both the prosecution and the defence opted not to make any submissions and left it to the court for determination based on the evidence on record and therefore the only issue for determination is whether the prosecution has established a prima facie case based on the evidence tendered herein.

16. The prosecution is required in law to prove beyond reasonable doubt the following ingredients of the offence of murder to sustain a conviction

a) the fact and the cause of death

b) that the said death was caused by unlawful act or omission or commission on the part of the accused person.

c) That the said unlawful act or omission was caused with malice aforethought which is defined in Section 206 of Criminal Procedure Code.

17. The fact and the cause of death of the deceased is not in dispute. The same was confirmed by both PW1 and PW2 who were with them at the time of attack and PW6 the mother of one of the deceased while PW3 DR. PETER NDEGWA performed post mortem examination on their bodies and confirmed that the cause of death was multiple stabbed wounds consistent with assault. It is therefore clear that the fact and cause of death has been established.

18. On whether the said deaths were caused by unlawful act of omission or commission on the part of the accused, the only evidence tendered by the prosecution linking the accused with the offence herein is the evidence of PW1 and PW2 both who were victim of the attack from which the two deceased died. It was the evidence of PW1 that he was chased and attacked by one MUNASSUR and that he had left the two deceased persons on the 9th street and save for the fact that he saw the accused carrying a club “rungu” he did not see him attach any of the deceased whom he knew. This evidence was corroborated by PW2 who testified that they met the accused and his children together with other youth causing them to run into Drugun house. He was able to name most of the youth who were in the group that attacked them.

19. There was however contradiction between PW1 and PW2 as to what time they saw the accused person. According to PW1 he saw the accused with his three children after they had earlier been chased and sought refuge in the house of PW4 while according to PW2 he saw the accused and his three sons during the first attack. PW4 who was the only independent eye witness stated that after the deceased and his group defied his advice and got out of his house and upon hearing noise he got out of his house and with the aid of street lights was able to see a group of youth fighting. He therefore decided to go back to his house. He did not see the accused person in the group. He was clear in his evidence that if the accused was with the group he would have positively identified him as he was well known to him.

20. Both PW1 and PW2 were very clear in their testimony that when they had attended a wedding earlier in the day, there arose a dispute between their group and the group that the sons of the accused belonged to over some mobile phone and that the accused was not present at the said wedding. PW4 was very clear in his evidence that he only saw about nine (9) to ten (10) youths who attacked the deceased persons together with PW1 and PW2 who had earlier sought refuge in his house and he gave the names of the said youths. He further stated that he did not see any of the children of the accused among the said group.

21. It was his evidence that there were many gang groups in the area and that the youths he had recognized belonged to a gang group known as super power.

22. From the evidence before the court there is doubt raised as to whether the accused was present at the time of the attack and whether the same was positively identified. Both PW1 and PW2 stated that they were suddenly attacked and chased into different directions and therefore find that being at night or in the early hours of the morning the condition prevailing was not suitable for positive identification of the accused. The witnesses did not tender any evidence as to what made them identify the accused and neither did they mention his name to PW4 in whose house they sought refuge. It is also clear that the dispute which lead to the attack of the deceased and their group had arisen between the youth at a wedding in the absence of the accused person and find that no evidence was tendered by the prosecution to link the accused to the offence herein and either did the prosecution though not required to do so establish any motive that would have led to the accused being part of the gang that attacked the deceased persons.

23. It is clear to my mind that the accused herein was only mentioned since his sons who were allegedly in the group that attacked the deceased together with PW1 and PW2 could not be traced and therefore to put the accused on his defence would be akin to asking the same to fill in the gap in the prosecution case and to give an account for the alleged action of his sons who were well known to PW1 and PW2.

24. At the end of the day, I find and hold that the prosecution has failed to prove prima facie case against the accused persons and hereby acquit the same under the provision of Section 306(2) of the Criminal Procedure Code. The accused shall be set free forthwith unless otherwise lawfully held.

DATED, SIGNED and DELIVERED at Nairobi this 15th day of November, 2017

........................

J. WAKIAGA

JUDGE

In the presence of:

Mr. Meroka for the State

Miss Nyang for the accused

Accused person present

Court clerk Tabitha