[2022] KEHC 1394 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

HIGH COURT CRIMINAL CASE NO. 87 OF 2015

REPUBLIC ................................ PROSECUTION

VERSUS

SILAS GICHUNGE ......................ACCUSED

JUDGMENT

Introduction

1. Upon conclusion of the case for the Prosecution, counsel for the Accused Mr. Mutuma made oral submissions on no case to answer. The DPP’s Ms. Mwaniki for the state indicated to rely on the evidence adduced. This is the finding of the Court.

The Charge

2. The Accused was charged with murder contrary to section 203 as read with 204 of the Penal Code. The particulars of the offence were that the accused had “on the 3rd day of December, 2015 at Kathera location in Imenti South District within Meru County murdered Francis Miriti Ichunge.”

The prosecution’s case

3. The case for the prosecution was outlined by Mrs Muriithi, Prosecution counsel in her opening speech on 4/6/2019, as follows:-

“Our case is that on 3/12/2015 the deceased was at his home ferrying offcuts from the farm to his home when he was confronted by the accused. The accused hit the deceased on the heard with an offcut. He fell down unconscious. He was rushed to Consolata Hospital where he was pronounced dead. We shall rely on both direct and circumstantial evidence. We shall parade six witnesses.”

4. As it turned out, the Prosecution called only 4 witnesses. The PW4 Inspector Richard Livai of Nkubu Police Station who testified on behalf of the initial Investigating Officer, one Henry Makhoha, gave the context of the killing as follows:-

“On 3/12/2015 at 6:10pm in the evening. I recall having taken over the file and perused through it. I came to confirm that on 3/12/2015 there was an incident that happened along Katheri- Marima road where one Francis Miriti who is deceased was attacked by one who is the accused is known as Silas Gichunge by hitting him on the head using some two off-cuts.

As an Investigating Officer, his findings were that the cause of the fight was as a result of some cash the accused tried to demand from the mother of the deceased. This amount is the amount given to elderly persons, so in the event of demanding the amount from the mother of the deceased, the deceased refused the mother to pay the amount demanded. So the accused saw that the deceased was being the stumbling block. So in the event he attacked him and the deceased fell while the accused escaped.”

5. On cross examination PW4 confirmed that the Investigating Officer was Henry Makhoha from whose statement, the mother was shown to have been reported by one Severina Nkoyai, the matter of the deceased who had not testified before the court. Not being an eye-witness himself, the Investigation Officer could only rely on the evidence of witnesses to piece up the case set out above against the accused.

6. PW1, M’Mbijiwe M’Ichunge, the deceased’s brother testified as to his encounter with his brother before and after his assault as follows:-

“I recall 3/12/2015 at about 5:00pm. I left Marimba farm where I was looking after cows. I came to my home. On the way, I found some offcuts had been put there by Francis Miriti. He was my brother. I found him with the off-cuts. He told me that he had brought them for Ksh 2,400/=. I left and went to my home which was about 200 meters away.

I had put water on for cows. I heard noises from the road. When I went from where the noise was coming, I found him lying on his right side. I saw my grandson approach coming towards where we were. I and Eric my grandson turned and raised the deceased up. And he sat up. I only saw an injury on his left hand. It was bleeding. I left and went home to deal with my cows. When I returned to the scene I found he had been removed.”

7. On cross examination PW1 confirmed that he had not seen the assault on his brother testifying:-

“I did not see the accused at the scene on that day. I do not know what injured the deceased. I left the deceased seated and went home. I found him alone at the scene.”

8. PW2, Earnest Muriuki, a casual worker from Kathera was not much wiser and had only seen the accused on the road going away, not assaulting the deceased. He testified:-

“I recall 3/12/2015 at about 4:00p.m I was at my place of work. On the way to Marimba at Kathera, I heard people saying that mzee will die. I went to where he was lying. Since I knew him, I started to look for his children. I found that mzee was lying on the ground. I got Eric and asked him to get help to take mzee to hospital. I and Eric put him in the vehicle to take him to hospital. When I saw him, he looked exhausted. He had an injury on his small finger. He died on the way to hospital. We went and reported at Nkubu Police Station. I saw people hovering around. No one was helping him. He was lying outside on the road near his homestead. I met the accused on the road going away.”

9. On cross-examination, PW2 confirmed he did not know how the deceased died and the accused was not at the scene, as follows:-

“I do not know what had injured the deceased. I just found the deceased lying on the grounds. He was not breathing. It is the wife who came and Eric with whom we put him on the vehicle. I did not find Eric there. I saw the accused near the market, it was about 500 meters from the scene. At the scene, there were offcuts, a panga and a club by his side. These belonged to the deceased.”

10. PW3, Dr, Betty Kanyua who testified on behalf of the doctor who performed the post mortem examination only confirmed the death of the deceased and the cause of death as Cardio-pulmonary arrest secondary to severe head injury due to blunt trauma noting that the deceased had “eviscerated left eye, the eye had been gorged out. Head left side subgaleal above scalp heamotoma –bleeding. There were multiple depressed skull fractures on the left parietal, side of the head. There was left sub-dural haemotoma.”

On cross examination, PW 3, ruled out a fall as cause of the injuries saying that “A fall could not sustain the injuries as one would have to fall and rise and fall severally.”

Determination

11. At this stage of the trial, the court is pursuant to Section 306 of the Criminal Procedure Code required to establish whether there is evidence that the accused(s) comitted the offence to justify placing him on his defence. In other words, whether the prosecution has established a Prima facie case within the meaning of Bhatt v. R [1957] EA. 332.

12. Having considered the evidence presented by the Prosecution’s 4 witnesses, it is clear to the court that only the 1st element of the offence of murder, namely, the death and cause of death has been established. The other 2 elements that the accused committed the unlawful act causing the death and that he did so with malice aforethought have not been proved. See R/v Nyambura & 4 others vs [2001] KLR 355 (Etyang, J)approved inAntony Ndegwa Ngari v .R [2014] (Court of Appeal.)

13. PW1 only found the deceased injured lying on the ground and did not see who or what caused the injury. PW2 only saw the accused 500 meters from the scene while there were many other people “hovering around,” and he did not see the accused near the deceased or assaulting him. I would agree with the counsel for the defence that the evidence of the prosecution witnesses who were called to testify did not place the accused at scene of crime.

14. The deceased’s wife Severia Nkonyayi who was lined up as a witness was on 18/11/2019 reported by DPP to have “relocated and disappeared to some unknown place.” Eric, the grandson of the deceased and PW1, and with whom PW2 had taken the deceased to hospital was also not called as a witness. There is simply no basis in evidence for the court to accept the opinion of the Investigating Officer’s tendered by PW4 above as regards the accused’s attack on the deceased for his being “a stumbling block” to the accused’s demands for the cash for elders amount as alleged in the prosecution’s theory.

ORDERS

15. According, pursuant to Section 306(1) of the Criminal Procedure Code, the court determines that “there is no evidence that the accused committed the offence as charged, and, consequently, enters a finding of not guilty for the offence of murder contrary to Section 203 as read with 204 of the Penal Code, and the accused is acquitted therefor.

16. As the Accused has been out on Bond, the bond is discharged, the surety released and the security shall be returned to the depositor.

Order accordingly.

EDWARD M. MURIITHI

JUDGE

DATED AND DELIVERED ON 17TH DAY OF MARCH 2022.

Appearances:

Ms. Nandwa for DPP.

Mr. Mutuma, Advocate for the Accused.