[2022] KEHC 1908 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CRIMINAL CASE NO. 11 OF 2019

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

VERSUS

SIMON MUYEKHO......................................................................1ST ACCUSED

BONFACE MUSEE MANDILA..................................................2ND ACCUSED

DICKSON CHIVAKALI ROMAN.............................................3RD ACCUSED

J U D G M E N T

The accused SIMON MUNYEKHO (accused 1) BONIFACE MUSEE MULARI (accused 2) and DICKSON CHIVAKALI ROMAN (accused 3) are jointly charged with the offence of murder.

The particulars of the offence are that on the night of the 29th day of December, 2018 at Webuye township sub-location in Webuye Location, Webuye West sub- County within Bungoma county murdered EVERLYNE NAMACHANJA WABWOBA.

The case for the prosecution is that the deceased Everline Namachanja Wabwoba was working as a waitress at Break Point Bar at Webuye. PW1 Peter Wafula Wekesa was a Watchman at the bar on the night of 29th December, 2018. She worked at the bar up to 3. 00 a.m. when she left for her house. At about 3. 30 a.m. neighbours came and informed PW1 Peter Wafula that the deceased had been attacked and she was lying down. Peter informed an Administration police officer who was on patrol and they went to the scene which was about 500 meters from the bar. They found deceased lying down outside her door with injuries on the head which was bleeding. She was taken to Lombuka hospital and later transferred to Moi teaching and Referral hospital where she died while undergoing treatment.

On being cross-examined by counsel for accused, he stated she was bleeding at the mouth and private parts.

PW2 Geofrey Mukwana Wanjala the manager of Break Point bar received information that deceased who was his worker had been attacked. He together with others went and found her outside her door lying down. She had injuries on the head. They noticed she did not have her mobile phone. They took her to Lumboka hospital and was transferred to Moi Teaching and Referral Hospital where she died.

PW7 Beatrice Sikolia the mother of the deceased testified that at time before she died the deceased possessed a mobile telephone. She recognized it as the Exht. 1. She produced a receipt for its purchased Exh. 4 which she handed to police.

PW4 No. 221297 Copl James Nyambarora testified that he lost his mobile phone on 28. 1.2019. On 29. 1.2019 he found accused 3 Dickson Barasa who told him he (Barasa) had a mobile phone he wanted to sell. On 31. 12. 2018 Jacob called accused 3 to bring the phone so he could buy but accused 3 told him he had sold it. Accused 3 informed him he had sold it. Accused 3 informed him he had a friend who had a phone to sell. Peter went and meet accused 3 with another person who had an infinite phone but he did not like it. Accused 3 then offered to sell a Neon Kiki mobile phone. He paid accused 3 Kshs 2500. He took the phone. On 18. 1.2019 he was summoned by DCI in connection with the phone. He led the DCI officers to Accused 3 who had sold him the phone. Accused 3 led them to accused 2 Boniface Musee who he said he had bought from. Accused 2 on interrogation mentioned accused 1 Simon Munyekho.

PW10 PNO 23107 PC Edwin Onyango the investigating officer recorded statements of the witnesses. He received information that the deceased possessed a mobile phone which she bought on 3. 12. 2018 at Kshs 3499. He received the purchase receipt which showed the IMEI NO. of the phone to be IMEI 358590091430544. He forwarded the No. to Safaricom who traced the phone to Manda AP Post. They traced it to PW4 Copl James. On interrogation Copl James led them to Accused 3 Dickson who led them to accused 2 Boniface who led them to accused 1 Simon. He arrested them and later caused accused to be charged with present offence. The basis of their involvement is that they were connected or involved in the sale of the mobile phone of the deceased, which the deceased had at time she was killed.

On being cross examined by Mr. Wekesa for accused the investigating officer stated that he did not establish from his investigating whether accused knew deceased nor did he adduce any evidence to place them at the scene of the murder. He also confirmed that he did not have evidence of any eye witnesses.

The accused 1, 2 on being put on their defence elected to give unsworn evidence.

Accused 1 SIMON MUNYEKHO testified that on a date he could not remember he was at his home when police officers from Manda police station came to the home. They asked him to accompany them to Manda Police station. He went with them to Manda police station and later taken to Webuye police station where he was informed he was under investigation for offence of murder. He was taken to the OCS where he recorded a statement.

Accused 2 Boniface Musee Mulari testified that he was at his home on a date he cannot remember when at 12. 52 a.m 4 people hit the door and entered his house. They said they were police officers form Manda police station. They took him to Manda police station and later taken to Webuye police station. He was interrogated on allegation of seeing a mobile phone of a person who had been murdered. He testified that a lady police officer pressed his testicles with pliers and he was forced to sign a statement. He and 2 others were later charged with present offence.

Accused 3 Dickson Chivakali Roman gave sworn evidence. He testified that he knew accused 1 and accused 2 as they play football together. On 30. 12. 2018 APC Corporal James Nyambarora PW4 told him he wanted to by mobile phone. Accused 2 Boniface Musee Mulari told accused 3 that he (accused2) had a mobile phone to sell. The next day he went to home of accused 2 where he showed him 2 mobile phones. He informed PW4 who came and accused 2 showed him the mobile phones. PW4 elected to buy the Neon mobile phone and took it. On 18. 1.2019 DCI officer contracted this and asked him about the phone. He led them to the home of accused 2 Boniface who had sold the phone to PW4 corporal James Nyambarora.Accused 2 on being cross examined by M/s Makungu for state, he testified that PW4 bought the phone from accused 2 Boniface at Kshs 2400 on 30. 12. 2018.

PW4 Brivian Makokha the wife of accused 1 Simon Munyekho who testified that accused 1 has never been involved in sale of mobile phones. PW5 Ketrea Nanzala the wife of accused 2 Boniface who testified that on night of 29. 12. 2018 accused her husband was in the house and that he has never been involved in business of selling mobile p hones.

The accused are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Section 203 provides:

“Any person who of malice aforethought causes death of another person by any unlawful act or omission is guilty of murder.”

For the provisions to succeed on a murder charge it must prove beyond reasonable doubt

a. The fact and cause of death

b. The unlawful act or omission that caused the injuries that led to the death

c. That it is accused who caused the unlawful act or omission or inflicted the injuries causing the death

d. That the accused possessed the requisite intention or malice aforethought

PW1 Dr. Kibet Keitany who performed the post mortem on body of the deceased found she had 6 cut wounds on the chest, multiple fractures on the skull leading to internal bleeding in the brain. From his examination he formed opinion that the cause of death was due to blunt force trauma to the head. He therefore confirmed the cause of death and that the unlawful act causing the death was blunt force trauma on the head.

Who occasioned the blunt force trauma on the head causing her death?

PW2 Peter Wafula a security guard at Break point bar was informed that deceased had been attacked. He went to the scene and found her with injuries on the head and bleeding. They took her to hospital. PW3 Geoffrey Mukwanawho was with PW2 Peter testified on similar terms. PW5 David Munialo Saboni the brother of deceased saw her when she was in hospital.

PW7 Beatrice Sikolia the mother of deceased went to see her in hospital and was on oxygen. PW8 Johnstone Wamalwa arrived at the scene and found the deceased with injuries but unable to speak. PW10 PC Edwin Onyangothe investigating officer on being Re-examined by Mr. Thuo for the prosecution stated:

“There was no eye witness. There is circumstantial evidence. The reason for arrest is that the owner of the phone had been murdered. The incident occurred in Webuye and phone recovered in Kakamega.”

It is therefore evidence from the prosecution witnesses who testified that none of them saw any of the accused 1,2 or 3 inflict the injuries on the deceased from which she died.

The prosecution called witnesses who testified that the deceased at time she left her place of work had a mobile phone. PW7 Beatrice Sikolia the mother of the deceased testified that the deceased had bought a p hone on 3. 12. 2018 and produced a receipt of the same Exh. 4 which indicated the IMEI No. of the p hone. This is the information which was analyzed by PW6 PC. Quinto Odeke to locate the mobile phone to the person who as using it PW4. Acting on this information PW11 & PC Samwel Kahari Kiberenge testified:

“On 18. 1.2019 police officers from Webuye DCI who came and said they had traced a mobile phone to that area. It was with my boss Nyambarora. It was NEION KIKA. He said he had brought from Dickson Roman. We tried to call him but did not find him. On 19. 1.2019 we called Dickson Roman who came to the station. We interrogated him. He led us to one Boniface from whom he had bought at Kshs 1800. We went and arrested Boniface. He told as he bought it at Kimatuni. On 20. 1.2019 Boniface told us he bought from Simon Minyekho. He led us to the house of Simon Minyekho. We arrested him and informed the DCI officers from Webuye who collected them. This is the phone Exht. 4. The persons I arrested and handed over are accused in the dock. Dickson is a peasant farmer. I did not know the others before.”

The only link adduced by the prosecution against the accused 1,2,3 is that they at various times handled the mobile phone of the deceased, which the deceased had at the time she was murdered. The prosecution is therefore not relying on direct evidence but on circumstantial evidence to prove the charge against the accused.

23. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR,the Court of Appeal had this to say onthis point:

“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence inR v Taylor, Weaver and Donovan [1928] Cr.

App. R 21: -

“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.” See also Musili Tulo v Republic Cr. App. No. 30 of 2013.

24. The Court of Appeal proceeded to lay down the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction. The court stated:-

“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions as follows:

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:

i. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

ii. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused;

iii. the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else. (see also Sawe v Republic (2003) e KLR and GMI v R Cr. App. No. 38 of 2011).

In addition, the prosecution must establish that there are no other co-existing circumstances, which could weaken on destroy the inference of guilt.(see Teper v R [1952] ALLER 480 and Musoke V R [1958] E.A 715).In Dhalay Singh v Republic, Cr. App. No. 10 of 1997, this court reiterated this principle as follows:

“For our part, we think that if there be other co-existing circumstances which would weaken or destroy the inference of guilt, then the case has not been proved beyond any reasonable doubt and an Accused is entitled to an acquittal.

The circumstantial evidence relied on is that of recent possession of the deceased’s phone. The doctrine of recent possession permits the court to make the inference that the possessor of the property had knowledge that the property was obtained in the commission of an offence and in certain circumstances was also party of the commission of the initial offence. The court of Appeal in David Mugo Kimunge –VS- Republic (2015) eKLRtraced the history of this doctrine and stated:

“16. The doctrine of recent possession has been applied in numerous decisions of this court and the High court properly cited the Kahiga case (supra) as one for the elements necessary for proof. We may reproduce the elements from that case:

“It is trite that before a court of law can rely on the doctrine of recent possession as a basis forconviction in a criminal case, the possession must be positively proved.

In other words, there must be positive proof:

i). that the property was found with the suspect;

ii). that the property is positively the property of the complainant;

iii). that the property was stolen from the complainant;

iv). that the property was recently stolen from the complainant.

The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.”

17. Has the doctrine been properly summarized in that case, or to ask a more fundamental question, is it a doctrine at all" That question was explored at length in the case of Kowlyk (supra), which involved the offence of ‘break, enter and theft’ under Canadian law, and the only issue was possession of recently stolen items. The items were found in a house the appellant shared with his brother, some in his bedroom. On entering the house with the police, his brother shouted “They got us”and the appellant tried to leave through the window but was restrained. Delivering the judgment for the majority, McIntyre J. explored at length the history of the doctrine in various decisions from its roots in the nineteenth century in England and Canada and said in part:

“Before going further, it will be worthwhile to recognize what is involved in the so called doctrine of recent possession. It is difficult, indeed, to call it a doctrine for nothing is taught, nor can it properly be said to refer to a presumption arising from the unexplained possession of stolen property, since no necessary conclusion arises from it. Laskin J. (as he then was) (Hall J. concurring) in a concurring judgment in R. v. Graham, supra, said at p. 215:

“The use of the term 'presumption', which has been associated with the doctrine, is too broad, and the word which properly ought to be substituted is 'inference'. In brief, where unexplained recent possession and that the goods were stolen are established by the Crown in a prosecution for possessing stolen goods, it is proper to instruct the jury or, if none, it is proper for the trial judge to proceed on the footing that an inference of guilty knowledge, upon which, failing other evidence to the contrary, a conviction can rest, may (but, not must) be drawn against the accused.”

He went on to point out that two questions, that of recency of possession and that of the contemporaneity of any explanation, must be disposed of before the inference may properly be drawn. He made it clear that no adverse inference could be drawn against an accused from the fact of possession alone unless it were recent, and that if a pre-trial explanation of such.

In this case there is evidence tendered to confirms that the mobile phone belonged to the deceased and she had it with her at the time she was murdered. Prosecution evidence is that the mobile phone was tracked and found in possession of PW4 Copl James Nyambarora. PW4 on being asked about the phone said he had bought it from accused 3 Dickson Chaukali Roman. When accused 3 Dickson was traced he said he bought it from accused 2 Bonface Musee who on being asked said he bought it from Accused 1 Simon Munyekho. The offence of murder occurred on 29. 12. 2018 and the mobile phone as recovered from PW4 James on 18. 1.2019 about 21 days after the offence.

The mobile was recovered from PW4. Who upon being asked named the accused 3, who named accused 2, who named accused 1 as the person they had got it from. The evidence of the movement of the mobile phone among accused 1,2,3 is that of the co-accused. This is evidence which need corroboration. The evidence of PW6 Quinto Odeke who analyzed and tracked the mobile phone testified that the same was only shown to have been used to call by PW4 James. None of the accused was shown to have used the same to confirm possession. The evidence of a co-accused in a criminal trial against an accused is of itself is evidence of the weakest kind against that other accused person. It is evidence that needs corroboration.

In Waringa –Vs- R (1984) KLR 617 the Court of Appeal in dealing with a similar issue stated:

1. when considering the evidence of an accomplice, the first duty of the court is to decide whether the accomplice is a credible witness.

2. The corroboration which should be looked for when considering the evidence of an accomplice is some additional evidence rendering it probable that the story of the accomplice is free and that it is reasonably safe to act upon it.

3. The corroboration must be independent evidence which affects the accused by connecting him or tending to connect him with the crime.

In this case the independent of corroboration would have come from PW6 Quinto Odekewho analyzed the telephone calls data after the death of deceased. He confirmed that none of the accused 1,2,3 to have made nay calls using the phone.

Upon considering all the evidence I do not find that the prosecution submissions for this court to make an inference of guilt premised on recent possession of the phone is suffice. I therefore find no evidence to drew an adverse inference against the accused from the fact of recent possession. I therefore find the prosecution has not established a charge of murder against accused 1,2 and 3 beyond reasonable doubt. I find accused 1 Simon Munyekho, 2 Boniface Musee Mandila, 3 Dickson Chavakali Romano NOT guilty of the offence of murder and acquit Accused 1, 2,3 under Section 215 C.P.C.

Accused 1 Simon Munyekho, 2 Boniface Musee, 3 Dickson Chavakali be set at liberty unless otherwise lawfully detained.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 1ST DAY OF FEBRUARY, 2022

S.N RIECHI

JUDGE