[2022] KEHC 327 (KLR)

Republic v Thomas (Criminal Case 82 of 2016) [2022] KEHC 327 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 327 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Case 82 of 2016

MM Kasango, J

May 5, 2022

Between

Republic

Applicant

and

Ezekiel Kivati Thomas

Respondent

Ruling

1. Ezekiel Kivati Thomas was on 21st November, 2016 charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He pleaded not guilty. The prosecution closed its case on 9th March, 2022 having called evidence from 7 witnesses. At this stage, following the closing of the prosecution’s case, I need to consider whether there is evidence adduced by the prosecution which, if the accused did not testify, I could convict him. This was so stated in the case RepublicvJones Mutua Anthony & 3others [2019] eKLR as follows:-“The question that this court has to deal with and answer at this stage is therefore whether based on the evidence before this Court, the Court after properly directing its mind to the law and the evidence can convict if the accused chose to give no evidence. It was therefore held in Ronald Nyaga Kiura v Republic [2018] eKLR wherein paragraph 22 it is stated as follows:‘It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of Ramanlal Bhat v Republic [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.’”

2. Prosecution called Janet Mutheu Karuga, PW1 the accused’s sister. She stated that she was a resident of Thogoto. She had rooms on her property which she rented out. She said she had rented out two rooms at low cost to her brother the accused. The deceased was her worker for about 10 years. He too lived in two of this witness’ rooms at low cost rent. On the material date, the 20th October, 2016, this witness went to visit her friend. When she left her residence, neither the accused nor deceased were at home. She returned later that evening. Before reaching home, she went to purchase some provisions at a nearby shop to her residence. She heard screams from the directions of her residence and on going there, she found a crowd of people gathered. She said it was then getting dark. On entering the gate she found a body. She had to light a torch to be able to see the body. She noted it was the body of Benson, the deceased. She called police who came and the accused was arrested.

3. Lucy Njeri, PW2 called by the prosecution was the wife of the deceased. She confirmed that she and her deceased husband lived on the plot where the accused sister had built rental rooms. She further stated that the accused was loathed by the fact that his sister had appointed deceased as the caretaker of those rental rooms. This is what she further said of the accused:-“He therefore stopped talking to us and was hostile. The accused did not want us there. He was angry that my husband played caretaker role. A month or two before the murder, the accused confronted me and said, ‘you will only have peace if you leave this plot.’”

4. This witness however confirmed she did not witness the accused attack her deceased husband.

5. PW3 was a friend of the 1st witness. His evidence was restricted to his response to 1st witness phone call on the material evening. He did not witness what or who caused the death of deceased.

6. Sgt. Hudson Magiri , PW4 was the one who photographed the scene of crime. He produced the photographs and of material interest is that he photographed the knife on 20th October, 2016. His evidence was that he was not recalled on a subsequent date to photograph a knife. It is also important to note that he did not identify the occupier of the room where the items he photographed were.

7. The 5th witness was the Government Chemist. This witness did not advance the prosecution’s case because the two blood samples provided to the Government Chemist belonged to deceased although one was marked as belonging to the accused. The government chemist was not informed through the Exhibit Memo Form whose the items of property belonged to that were required to be examined on the DNA generated from the blood stains. As a consequence, the results do not prove the accused’s culpability for the offence of murder at all.

8. The investigating officer (IO) Pc. Shadrack Amani stated he went on the scene of crime after receiving a call from Administration Police Officer (AP) Corp. Kamau. That AP informed him that the deceased had been murdered and was in a pool of blood. When IO arrived at the scene he found the body of the deceased lying in a pool of blood. IO stated he got from the scene of akala sandals, quarry stone, a phone without battery, knives and some clothes on the line. He did not state whose clothes were on the line or in whose house he recovered them from. It follows that although the government chemist found some of those clothes had blood stains, it is not possible in any way to connect those clothes nor the knife to the accused.

9. Death of the deceased was indeed proved by Doctor Dorothy Njeru, the doctor who performed the postmortem. The cause of deceased’s death was due to multiple injuries due to penetrating sharp force.

10. This indeed was a very poorly investigated case. The State also botched the collection of exhibits. The State failed to call the AP to tender evidence on why he detained the accused who was later re-arrested by IO. The State also failed to call the people who gathered at the homestead where the deceased was killed. There was an intimation by the deceased’s wife that it was that crowd that restrained the accused. Why did they restrain him?

11. This Court will never know. The greater error was failure to state where the items of exhibits, such as clothes, curtains and knife were recovered from. What connection did those have with accused?

12. After my analysis of the prosecution’s evidence, I do hereby find that the same is not sufficient to call the accused to defend himself. Accordingly, as provided under Section 306(1) of the Criminal Procedure Code, I hereby enter against accused a finding of not guilty.

13. Accordingly, the charge of murder against Ezekiel Kivati Thomas is hereby dismissed. He is hereby ordered to be set free unless otherwise lawfully held.

RULING DATED AND DELIVERED AT KIAMBU THIS 5THDAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceAccused : PresentFor accused : - Ms. Wanjira H/b Mr. GachauFor State :- Mr. KasyokaCOURTRULING delivered virtually.MARY KASANGOJUDGE