[2022] KEHC 11647 (KLR)

Republic v Sule (Criminal Case 16 of 2016) [2022] KEHC 11647 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11647 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 16 of 2016

SN Riechi, J

May 6, 2022

Between

Republic

Prosecutor

and

Dennis Odhiambo Sule

Accused

Judgment

1. The accused Dennis Odhiambo Suleis charged with offence of murder contrary tosection 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on the 20th day of January, 2015 at Ndengelwa village within Bungoma County assaulted Emilly Naliaka which resulted to her death on 20th day of January, 2015 at her home in Ndengelwa village, Bungoma County.

3. The prosecution case is that the accused was a police officer attached to Bungoma Police Station. PW1 Elizabeth Wekea Walumbuka was the sister of Emilly Naliaka the deceased. She testified that the deceased usually brews illicit brews. On 20. 1.2015, she was at their home when police came raiding the illicit brew. Upon seeing them she ran away to a neighbours home. She then was called by one Lucy who informed her they had been arrested and police wanted Kshs 4000 bribe to release them. While going to look for money Gentrix Machuma informed her deceased had been injured by police. They went to the sugar farm where they found the deceased. Deceased said she had been injured and arrangements were made for her and she was taken to hospital. She followed the police vehicle where those arrested had been taken to and found the vehicle at Tessia Supermarket area in Kanduyi. She gave the officers Kshs 4000 and the people who had been arrested were released. She went to Bungoma Hospital where they found the deceased. The doctor told them she had not been injured but suffered shock. She was given pain killers and they went home at 11 p.m. At 12 p.m. she died. The matter was then reported to the police.

4. On being cross-examined by Anyul for accused she stated that she was outside when she saw 2 people dressed as police officers and ran away. She stated she went to Tessia supermarket area and gave Kshs 4000 to a police officer but does not know him. She confirmed she did not see the deceased being beaten.

5. PW2 Caren Nanjala Wamalwa the daughter of the deceased was at their home when deceased shouted that the police had come. She and Elizabeth (PW1) ran to a neighbours home. While there they received information that deceased had been injured and was at the sugar farm. She went there and found deceased. Deceased said she had been injured but did not see any visible injuries. They took her to the house and later took her to Bungoma hospital. At the hospital the doctor told deceased that she was not injured and gave her pain killers and an injection. They took her home where she later died.

6. On cross-examination by Anyul she testified that she was the first to reach where deceased was and while she said she had been injured by a police officer she did not give the name. She stated the deceased was making changaa. She stated she received a message from Mobile No. 0702859051 but does not know the owner. She confirmed she did not see who beat the deceased.

7. PW3 Lucy Nafula the sister of the deceased was at their home selling changaa when police came. They arrested the witness and others. While still under arrest she called Elizabeth (PW1) and informed her to come to Khetia’s Supermarket area and give police money for them to be released. Elizabeth brought the money and they were released. She went to hospital where she found deceased who said she had been injured by police.

8. On cross-examination she states she was not called to any identification parade to identify the police officers.

9. PW4 Titum Wabwire Wasike was drinking changaa when a girl called Leila shouted ‘Police’. He then saw 2 people come to where he was. They were the deceased and 2 police officers. He did not recognize the police officers. The police then hit the deceased who fell down. He escaped and went home. In cross examination he stated he recorded 2 statements one to police and another to IPOA. He testified the police were dressed in Black Jacket and cannot differentiate between AP and police. He testified that he did not identify the police officers who beat the deceased.

10. PW5 Cleopas Simiyu was conducting tuition to children when police came to the house. He escaped to the maize farm. He and Elizabeth (PW1) went to where police were at Tessia Supermarket where Elizabeth gave Kshs 4500 to police and those arrested were released. The deceased who had been injured was taken to hospital where she was treated and discharged. In cross-examination he stated he saw a police officer who was brown and slender and wide ears and that that police officer was not the accused. He also testified that deceased did not give the name of the police officer who assaulted her.

11. PW6 Job Wafula Wabuka a pupil was arrested by police and released and so was PW7 Esther Wanjala. PW8 Jentrix Machuma Barasa was in her house when she heard a person call from the sugar cane farm. She went there and found it was deceased. Deceased told her to call deceased’s children as she had been injured by police. She went and called deceased children Caren and Nekesa. PW9 Lela Nanjala testified she was at the home where deceased was selling changaa when police came and she escaped to the farm. She stayed there up to 10 p.m. when she came out and was informed deceased had been injured and taken to hospital. She confirmed that the deceased did not have visible injuries. She also confirmed deceased used to sell changaa and police had conducted several raids and deceased would bribe them.

12. PW18 No. 53690 Copl Ibrahim Yusuf then attached to Bungoma police station was on 20. 1.2015 instructed by the OCS Chief Inspector Kimeli to go on operation to arrest brewers of illicit alcohol. He together with P.C Aboi (Driver) P.C Mutio, PC Jesso, PC Too and PC Odhiambo (accused) proceeded to the armoury and were issued by Copl Kipyegon (PW10) with fire-arms and ammunition. Copl Yusuf was issued with Cesica pistol with 15 rounds of ammunition, Pc Dennis Odhiambo (accused) A.K 47 rifle with 30 rounds of ammunition, PC Too A.K 47 rifle with 30 rounds of ammunition. PC Jesson and Mutiso were not armed. They had information that there was a homestead selling changaa. They parked the vehicle on the road and went on foot. On the way they noticed the people at the homestead had been notified of their approach and the occupants ran into a sugar cane and maize farm. They went to the home and found only children but not the brewer and drinkers. As they did not find them and went back to the vehicle. They went to another place called California in Kanduyi where they arrested 2 drunkards and brought them to the station and placed them in custody. At 8 a.m. he was informed by OCs to call the officers he was with the previous night as there was allegation by a person that she was beaten.

13. On being cross examined by Makokha for accused, he stated he was the one in charge and did not arrest anyone at Ndengelwa and did not see anybody give them money for the release of suspects.

14. PW11 No. 51191 Copl Mutiso Makau, PW12 No. 7474446 PC Abdulahi Cheso who were in the same group testified how they went to the homestead and the adult drinkers and brewer fled and they found only children. They did not make any arrest at the homestead. They only arrested 2 drunkards at Kanduyi whom they took to the police station. They confirmed that accused was with them all through. The next day they received information that a lady had died.

15. PW13 PC Hesbon Kipleting Too testified that he and his party visited a homestead where they had information changaa was being brewed and sold. The occupants appear to have been made aware of their presence and escaped. He went to the main house where they found 2 children who wanted to run away but he restrained them. They arrested 2 people at Ndengelwa and a motor cyclist whom they released on the way. They went back to the station and next day were informed of the allegations of assault of deceased.

16. On being cross examined by counsel for accused he stated he was dressed in full uniform. He testified that form the 1st homestead PC Odhimabo (accused) and another officer arrested 2 suspects. He denied that he was given Kshs 4000 and stated that mobile NO. 0702859051 is his number. He gave his phone No.as 0726558470. He denied calling PW2 Caren Nanjala to ask for forgiveness. He stated that he did not see accused assault the deceased and he was with him that day. He confirmed that on that night they arrested 3 women and a man.

17. PW4 NO. 231102 Chief Inspector Abok Wako the Deputy DCIO Bungoma South was in his office when the OCS CI Kimemia came with 2 people who reported that police officers suspected to be Administration Police officers had gone to their home on Changaa raid the previous night and assaulted a lady who sustained injuries and taken to hospital treated and discharged. On going home she complained of pain and died.

18. The report was booked in OB and he and IP Malaba and PC Macharia visited the scene where photographs were taken. While at the scene one member of the public mentioned the name of ‘brownie’ and the crowd got charged. The body was removed from the scene and taken to the mortuary. On 26. 2.2016, he arranged for an identification parade on accused who was a suspect. On invitation to participate the accused declined on allegation that the witnesses had known him before, and therefore the parade was not conducted. In cross-examination he testified the death occurred on 21. 1.2015 and he attempted to conduct the ID parade one year later on 26. 2.2016. He produced the OB extract NO. 19/21/01/2015 headlined “Sudden Death”.

19. PW17 Superintended of police Shadrack Kyalo Kebeta who was the DCIO Bungoma received a report of an incident at Ndengelwa where a woman was killed. He visited the scene and commenced investigations. He opened an investigation file and recorded statements. He was given names of 2 suspects and 2 mobile numbers alleged to have been used by the suspect that night. He called the telephone number sand established they did not belong to police officers. He recommended that the matter be disposed of by way of public inquest. The file was later taken over by Independent Police Oversight Authority (IPOA).

20. PW15 Vincent Kirui the Investigating Officer recorded statement of the witnesses. From his investigations he established that it is accused who assaulted the deceased because the officer who assaulted her had a fire-arm with a string and that PC Too and Copl Yusuf testified they saw accused chase a person to the sugarcane farm.

21. On being cross-examined he confirmed there was a public inquest file opened in Chief Magistrate court Bungoma INQ 3/2015. From the OB the reportee Elizabeth (PW1) said the officers were from Administration Police Unit. He confirmed that a witness Titan Wasike recorded 3 statements and in each described different attire worn by officers.

22. PW16 Dr. Dickson Mchana Waludiwa who performed the post mortem on body of deceased on 28. 1.2015 found the deceased had lacerations on the liver, bleeding around the kidney, ruptured spleen. He formed opinion that cause of death was bleeding due to blunt abdominal trauma. In cross examination he stated that it can be caused by a person when running and falling, but it has to be a violent fall.

23. PW22 No. 232284 PC Caroline Miriam Osiya an AP officer attached to Kanduyi Division went on patrol with APC Reuben Timelin and Geoffrey Masoso. They patrolled along the Malaba Highway, Makutano and Kanduyi Market but did not go to Ndengelwa area. She later learned that a woman had been killed by police officers.

24. The accused on being placed on his defence gave sworn evidence. He testified that on 20. 1.2015 he was on duty when they were assigned to go on patrol together with Copl Yusuf, PC Jasson, PC Mutie PC (Driver) Abdi; and PC Too. They went to Ndengelwa area and left the vehicle on the road going to the place where they were informed a woman was brewing changaa. On arrival at the home they found 3 children in the house studying and 2 others in the kitchen house. They did not make any arrest. They went to California area where they arrested 2 suspects and came back to the station.

25. On January 21, 2015at 11 a.m. he was summoned by the OCS who informed him of the allegation that a lady had been assaulted by police. He perused the OB report which indicated that it was an AP police officers who assaulted the lady. He then recorded his statement. Later an Inquest file was opened but he did not testify. He was later arrested and charged. He attributes his being charged by IPOA who had pressure from the Bungoma Women Rep. He stated that they did not arrest anybody from the homestead, nor was he aware of any exchange of money to release suspects. He denied assaulting the deceased and does not know why out of the 6 officers he was the one who was charged.

26. On being cross-examined by M/s Omondi for state, he testified that he did not know the deceased nor did he interact with her that day. He confirmed they went to the home of deceased where they found children. He stated he declined to participate in the identification parade beaus he was known in the area where the witness came from and feared victimization.

27. Mr. Makokha for the accused filed written submissions that the prosecution failed to establish the charge against the accused. After analyzing the evidence of the witnesses, counsel submitted that the offence was not established beyond reasonable doubt and that accused should be acquitted.

28. The accused is charged with the offence of murder contrary to section 203 of the Penal Code. Section 203 provides:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

29. From the provisions the prosecution must establish the following ingredients of the offence of murder beyond reasonable doubt.a)The fact of death of the deceased.b)The act or omission causing the death.c)That in causing death the accused committed it with malice aforethought.d)That there is direct or circumstantial evidence that it is accused who inflicted the injuries from which the deceased died.

30. PW16 Dr. Dickson Mchana Waludindi who performed the post mortem on the body of the deceased on January 28, 2015found that the deceased had lacerations on liver, bleeding in the area surrounding the kidney and raptured spleen. He formed opinion that cause of death was due to abdominal bleeding due to abdominal trauma. He issued death certificate No. In cross examination he stated that the trauma can be by human force or from fall. He therefore confirmed the fact and cause of death of deceased.

31. Who occasioned the abdominal trauma that caused rapture of the spleen that caused the death of deceased?

32. PW1 Elizabeth Wekesa testified that when they were made aware of the presence of police, she ran away to a neighbours home. She was later informed deceased had been injured. She went there and deceased informed her she had been injured by police officers. She did not see when deceased was being injured, nor did she see anybody beating the deceased.

33. PW2 Caren Nanjala Wamalwa the daughter of deceased was at their home when police arrived and she ran away with Elizabeth (PW1). Later deceased told her police had injured her. She confirmed the deceased did not tell her the name of the police officer. She too confirmed in Re-examination that she did not see the person who beat the deceased.

34. PW3 Lucy Nafula the sister of the deceased was arrested along with others by police officers and later released at Tessia supermarket area after payment of money. She did not see the deceased being beaten.

35. PW4 Titum Wabwire Wasike testified that he ran to a farm after hearing of police presence and hen aw deceased and a police officer come where he was. He then saw the police officer hit the deceased who fell down. He did not recognize the police officer. He admitted that he had taken changaa and was drunk, at night and dark. He did not know whether the police officer he saw was male or female or Ap or Regular police.

36. PW5 Cleopa Simiyu was at the home when Elizabeth (PW1) shouted “police” and he escaped and deceased also escaped, into a sugar cane farm. He later learnt that deceased had been injured. He noticed one of the police officers who chased him was slender brown and with wide ears. He confirmed that it was not the accused.

37. PW6 Job Wafula Wabuka and PW7 Esther Wanjala the children of the deceased who were studying testified how 3 police officers came and later leant deceased had been injured. They went to where deceased was who told them she had been injured. PW8 Jentrix Machuma and PW9 Leila Nanjala also testified how they saw police officers and escaped.

38. None of these witnesses except PW4 Titum Wabwire Wasike testified that they saw accused inflict the injuries on the deceased. They were therefore not eye witnesses to the assault. PW4 Titum while stating that he saw a police officer hit the deceased, did not see who the police officer was. In his evidence he stated:“ Remember on 20. 1.2015 I went to Emily Naliaka to get a drink of changaa. Emily is the deceased. While there deceased sold me changaa shortly after a girl called Leila shouted ‘police’. I tried to run away towards the sugar cane farm. It was about 8 p.m. After a short while I saw 2 people coming to where I was. I saw it was deceased and a police officer. The police was wearing black attire. I did not recognize the face of the policeman. He then hit deceased who fell down. I then escaped and went home. I did not see deceased again. Later I received a telephone call informing me deceased had died. I was outside the house when I was drinking.Cross examined by Anyul:I know Lucy (PW3). I saw her on that date. I had gone to drink changaa. There were other people also drinking. I did not recognize them as it was at night. I had drunk for one hour. I was getting drunk. I hid in the sugar cane farm. Deceased was about 30 ft away. I recorded a statement with IPOA officials. I told them I was 2 meters away.Cross examined by Makokha:I recorded 2 statements. One with police and another with IPOA. I only know of police officer. I do not differenciate between AP and police. They were dressed in black jackets. I only saw police came there once. I did not see them arresting anyone. I hid because I was a bit drunk. It was at night and dark. I was bending in the sugarcane farm hiding. There was no light. I could not know whether the police was male or female. I did not identify the police officer who beat deceased.”

39. From his evidence it is clear that while he saw a police officer hit the deceased, he confirmed that he did not identify the police officer who beat the deceased.

40. PW15 PC Kirui Vincent who was the investigating officer testified that upon recording witness statements he established that it is PC Odhiambo (accused) who assaulted the deceased on the following grounds.(a)That he was the one who had a fire-arm with a sling(b)That PC Too and Copl Yusuf said they saw PC Odhimabo run to the sugarcane farm and came back without arresting anybody.

41. He stated that he recorded 3 statements from Titum Wasike on February 12, 2015where he stated the police officer was wearing a black coat. In his statement recorded on June 13, 2015he said he did not see the clothes he was wearing but said a rain coat and beret and on February 25, 2016he was wearing a black coat. He admitted that this witness Titun kept changing his statements. Indeed, when he testified in court he said he did not recognize the person who assaulted the deceased. If as PW15 PC Kirui stated he relied on this evidence to form an opinion as to who assaulted the deceased, then on his own admission this witness who kept changing the contents of his statement every time he recorded one cannot be said to be a truthful and credible witness.

42. The prosecution can prove a charge against an accused person by tendering direct evidence where witnesses will testify as to what they saw or heard. The prosecution can also prove a charge by circumstantial evidence where facts are proved from which the court will draw an inference that ii is the accused and no other who committed the offence. The burden of proving those facts always remains with the prosecution and never shifts to the accused. In R v Kipkering arap Koske &another 16 EACA 135 where it held, inter alia, that:-“In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt”.

43. The prosecution has established the following.1. That 5 police officers visited the homestead of the deceased.2. That deceased ran to a sugar can farm to escape arrest.3. That the deceased while in the farm complained of pain as a result of being assaulted by police officer.4. That the deceased died from injuries inflicted by blunt force trauma.

44. For facts to form basis of inference of guilt, the incupatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of his guilt.

45. I do not find that the facts proved meet the threshold in Kipkering arap Koskei –vs Republic 1949 EACA.

46. In the result I find the prosecution has not proved the charge of murder contrary to section 203 as read with section 204 of the Penal Code against the accused Dennis Odhiambo Sule. I therefore find accused not guilty and acquit him under section 215 C.P.C.

47. Accused Dennis Odhiambo Sulebe set at liberty unless otherwise lawfully detained.

DATED AT BUNGOMA THIS 6TH DAY OF MAY, 2022S.N RIECHIJUDGE