[2017] KEHC 903 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NUMBER 24 OF 2013

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

VERSUS

SIMON KIILU KIOKO...................................ACCUSED

JUDGMENT

Simon Kiilu Kioko, hereinafter “the accused”, is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the night of 21st and 22nd June 2013 at unknown time at Munyu Village within Kiambu County the accused murdered Elizabeth Munyiva Muteti, hereinafter “the deceased.” The accused denied committing this offence. He is represented by Mr. Amutallah, advocate.

Eight witnesses testified for the prosecution. Their evidence, in summary, is that on 21st January 2013 at about 9. 00pm, George Muigai Mbugua, PW1, (Mbugua) a farmer at Munyu, was cycling along a footpath going home from Munyu shopping centre when he met the accused and the deceased. Both were known to him. The accused was sited while the deceased was lying down. According to Mbugua the accused was talking to himself but the deceased was not talking. Mbugua asked the accused what the matter was. The accused told him that the deceased was drunk and could not walk. Mbugua said the deceased had no clothes on the upper part of her body. Mbugua told the accused to dress the deceased and wait for her to get sober then Mbugua left.

On the following day, Mbugua learned that a body of a woman had been found at the area near where he had seen the accused and the deceased the previous evening. In company of Kimani Mwati, the area Village Elder, PW2, Mbugua went to Munyu Police Post and reported the matter. They were accompanied by the police to the scene. They found the body of the deceased about 50 metres from where Mbugua had seen the accused and deceased the previous evening. There were blood stains at the scene. Mbugua recognized the body as that of the deceased. The body was removed and taken to the Mortuary and investigations began. The accused was at large since the police did not find him at the place where he resided.

The accused was arrested on 2nd February 2013 in Makongeni, Thika, by motor cyclists commonly referred to as “bodaboda riders”. They took him to Munyu Police Post. He was transferred to Makongeni Police Station. After the completion of investigations he was charged with this offence.

In his defense, the accused testified without taking oath. He narrated how he spent the day on 21st January 2013 picking vegetables from his garden to take to the market. He testified that on that day the deceased asked for casual work from him and he told her to assist him to pick the vegetables; that after they finished he went to the market accompanied by the deceased; that on the way they met Mbugua (PW1) riding his bicycle and that Mbugua picked the deceased on his bicycle and left with her to go to drink at a Club. The accused testified that he went to hospital and then returned to the Club where he found the accused and the deceased; that he bought them alcoholic drinks and he took a meal and left to go to Juja. He said that he passed by the Club around 6. 30pm and learned that Mbugua and the deceased had left; that he took beer, bought food and left to go home; that he found Mbugua and the deceased on the way talking beside the road at Kabaki farm. At that time Mbugua’s bicycle was on the ground. The accused testified that Mbugua informed him that the deceased was drunk and could not walk. The accused left Mbugua and the deceased and went home.

The accused further testified that he spent the following day, 22nd January 2013, as usual, going to the market to sell his vegetables and returned home; that on 23rd January 2013 he went to Matuu to see a sick cousin and returned home; that on 24th January 2013 he met Mbugua who told him that the deceased had gone to Kilimambogo. He told the court that he was being framed for an offence he did not commit and that Mbugua had a grudge with him because he owed him money. He produced treatment notes as Defense Exhibit 1.

The law places the onus of proving a criminal case on the prosecution. In a murder trial the prosecution must prove that unlawful death of a human being has occurred; that the death in issue was caused by an act or omission by the accused person before the court and that in causing that death the accused person possessed malice aforethought as defined under Section 206 of the Penal Code. These facts must be proved beyond reasonable doubt.

Out of the eight prosecution witnesses, the only witness who mentions seeing the accused with the deceased is PW1 George Muigai Mbugua. Even then, Mbugua did not adduce evidence that he saw the accused commit this offence. All of the evidence of Mbugua points to the accused as the last person to be seen with the deceased when she was alive. The rest of the witnesses came into the picture after the event of the death of the deceased.

Kimani Mwati, PW2, received information about the death from Mbugua. He visited the scene the following day 22nd January 2013 and saw the body of the deceased. He observed that “the scene was disturbed as though there had been a fight”. He also observed injuries on the face of the deceased and blood at the scene. David Ngige, PW3, had employed the accused at a farm owned by the local AIC Church to manage a chicken project belonging to the church. When the project collapsed the accused asked to be allowed to live at the farm and he was allowed. The only evidence PW3 gave to this court that is relevant to the case is that police went to him to find out the whereabouts of the accused.

Peter Mukio Kilonzo, PW4, is the father of the deceased who confirmed to the court that he did not know that his daughter was married to the accused and that he did not know the accused. He told the court that the deceased was married to David Muteti Kitonyi, PW5, and that they had two children together. Both learned of the death of the deceased and travelled to Munyu Police Post to confirm this. Muteti confirmed that he was married to the deceased and that prior to the death of the deceased they had separated due to deceased’s drinking. At Munyu Police Post both PW4 and PW5 were referred to Makongeni Police Station where police took them to Thika Hospital Mortuary. They identified the body of the deceased. CPL John Nganga, PW6, investigated the case. PW6 collected evidence from witnesses and made up his mind to charge the accused with this offence.

From the recorded evidence it seems to me that PW6 decided to charge the accused with this offence because the evidence pointed to the accused as the last person to be seen with the deceased before the deceased died. Witnesses seemed to think that the accused and the deceased were married perhaps because they had been seen living together. Charles Mwaura, PW7, was friends with the accused and used to transport the accused and the deceased to various destinations on his motor cycle. He is one of the people who arrested the accused on 2nd February 2013.

The last witness for the prosecution is Dr. Eunice Mugweru, PW8, of Thika Level Five Hospital. She examined the body of the deceased on 31st January 2013. She observed bruises on the right side of the face; swelling around the eyes; ligature marks around the neck; massive subdural haematoma on the right temporal and parietal regions of the head and intra-cerebral haemorrhage on the same side of the head. Her opinion is that the deceased died due to severe head injury caused by blunt force trauma consistent with assault.

The case for the prosecution is based on circumstantial evidence. The accused was arrested and charged with the death of the deceased because he was the last person to be seen with the deceased before her body was found in the morning of 22nd January 2013. There is no evidence to show how they lived and whether their relationship, whatever nature of that relationship, was without problems. I have no doubt that the deceased and the accused were not married and if they lived as man and wife, the accused may have known or not known that the deceased was estranged from her husband. Whatever the case, the issue before me is in respect of the charge of murder and not marital relationships.

Circumstantial evidence has been discussed in numerous decisions in this country. Tracing its history to the English Law, circumstantial evidence is said to be the best evidence as it is evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics (see Neema Mwandoro Ndurya v. Republic where the Court of Appeal cited with approval the English case of R. v. Taylor Weaver & Donovan (1928) 21 Cr. App. R. 20). In relying on circumstantial evidence, care must be taken to avoid miscarriage of justice as it was observed in Teper v. R [1952] AC 489.

I have carefully analysed the evidence from both the prosecution and the defense sides. The accused person has turned the evidence against Mbugua (PW1). He turned his defense around to state that it is not him who was with the deceased on that footpath in Kabaki farm Munyu that turned into a crime scene. He said it was Mbugua who had picked the deceased and gone drinking with her and later were found at the scene with the deceased unable to walk due to being drunk on the evening of 21st January 2013. It is my view that the defense of the accused is not truthful. He lied to the court. I take this view because the defense did not cross examine prosecution witnesses on the issues the accused has raised in his defense. I recall that Mbugua was cross-examined on whether he had a grudge with the accused and whether he owed the accused some money. Mbugua denied both allegations. Mbugua was however not cross-examined as to whether it was him and not the accused that was with the deceased and the last person to see deceased alive. Despite the shortcomings in the defense case, it is not the accused that must prove his innocence. It is the prosecution that must prove that the accused, with malice aforethought, caused the death of the deceased by unlawful act or omission.

For the prosecution to reach the threshold of proving this case against the accused person beyond reasonable doubt, the circumstantial evidence the prosecution is relying on must meet certain legal parameters. The circumstantial evidence must irresistibly point to the accused as culpable to the exclusion of all others. This is what is required as it was stated by the Court of Appeal for Eastern Africa in R. v. Kipkering Arap Koske & Another [1949] 16 EACA 135, where it was held that:

“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”

Further, in Simoni Musoke V. R.[1958] EA 715, which cited with approval the following passage from the Privy Council decision in Teper V. R.[1952] AC 480 at P.489, the court added that:

“It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference”.

The circumstances taken cumulatively show that the accused and the deceased were seen together on the evening of 21st January 2013. Both were drunk. The accused was found by Mbugua sitting beside the footpath talking to himself while the deceased was lying down making sound like someone asleep. Mbugua did not observe the deceased well that evening to see whether she had injuries but he recognized both the accused and the deceased since they were known to him prior to this day. Upon asking the accused what the matter was, the accused told him that the deceased was too drunk to walk. According to Mbugua, the deceased had no cloths on the upper part of her body. This prompted Mbugua to advise the accused to wait until the deceased was sober enough to walk and that he should cover her upper body. On the following day, the body of the deceased with injuries on the face and head was found some meters from where the two had been found by Mbugua. There was evidence of some commotion at the scene and according to witnesses it looked as though there had been a fight at the scene.

What happened after Mbugua left the accused and the deceased? This question does not have an answer. But the behaviour of the accused is suspicious. The least that was expected from the accused given that he was the last person with the deceased was to either stay with the deceased until she sobered up enough to walk or to look for help. The accused did not plead intoxication. He did not tell the court what happened after Mbugua left even though he is not required to prove his innocence. In fact he shifted the evidence against him to implicate Mbugua. While suspicion no matter how strong can never form a basis for conviction, it is common sense that anyone faced with such a serious offence would endeavour to adduce evidence that would discredit the prosecution case and raise the necessary doubts in the court’s mind. This would have been the natural thing to do for the accused but he did not do it.

The whereabouts of the accused after the death of the deceased were unknown until 2nd February 2013. According to his friend Charles Mwaura, PW7, before that day he had not seen the accused for some time. It is because of the information that the accused had killed his wife that Mwaura called other riders to assist him in arresting the accused on 2nd February 2013. In fact according to Mwaura the accused and the deceased whom he knew as Elizabeth were man and wife and he used to take them home on his motor cycle.

The natural thing for the accused to do upon finding out that the deceased had died was to report to the police. The accused did not do so yet from the date the deceased died to the date the accused was arrested about two weeks had elapsed. The accused could not exhibit ignorance about the matter when word had gone around that the deceased had died. Basing my findings on the circumstances of this case and specifically that the accused was the last person to be seen with the accused on 21st January 2013 it is my considered view that the evidence satisfies the legal requirements of circumstantial evidence to justify the involvement of the accused in the death of the accused.

I have considered the submissions of the defense counsel that was based on three main issues that the prosecution did not prove the case beyond reasonable doubt; that the accused was not properly identified and that investigations were poorly conducted. I have also considered the two statements recorded by Mbugua and which the defense marked for identification. I have noted that the defense did not produce these statements in evidence but even if they had produced them, there is nothing in the two statements to point to Mbugua as the person who killed the deceased.

I do not agree with the defense counsel on his submissions. In my considered view the accused is culpable according to circumstantial evidence. The circumstantial evidence points to the accused to the exclusion of all others as the person who caused the death of the deceased. I find the inculpatory facts incompatible with the innocence of the accused.

The death of the deceased was unlawful. The doctor was cross –examined as to whether a fall could have caused the fatal injuries. Her answer was:

“I would doubt that the injuries were due to a fall. Because of ligature marks I cannot rule out assault.”

This evidence proves the unlawful death of the deceased beyond reasonable doubt. The above finding, coupled with the evidence that the accused is the one who caused the death of the deceased, settles the two ingredients of murder: act of unlawful death and the identity of the accused as the person who caused that death. The only remaining ingredient to be proved is the intention to cause death. I have carefully analyzed the evidence and find that the prosecution has failed to prove malice aforethought on the part of the accused. In the circumstances therefore the offence of murder contrary to section 203 as read with section 204 of the Penal Code has not been proved beyond reasonable doubt. Instead I find a lesser charge of manslaughter proved beyond reasonable doubt.

In conclusion therefore, I hereby acquit the accused of the offence of murder and instead find him guilty of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. Simon Kiilu Kioko is hereby convicted for manslaughter. Orders shall issue accordingly.

Delivered, signed and dated this 2nd November 2017.

S. N. Mutuku

Judge