[2017] KEHC 3117 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO. 74 OF 2011

REPUBLIC …………….……………………......PROSECUTOR

VERSUS

VINCENT ONG’AU OSORO…………………………ACCUSED

JUDGMENT

(1) The accused,Vincent Ong’au Osoro, faces a charge of murder, contrary to S. 203 as read with S. 204 of the Penal Code. It is alleged that on the 31st July 2011, at Mwembe area Kisii Central Kisii District within Kisii County, Nyamache Kisii County, he murdered Salim Sang.

(2) The case for the prosecution was that on the material date at about 5. 00 pm a resident at Mwembe area in Kisii town by name Pacifica Kerubo (PW 2), was heading to a nearby river to fetch water when she noticed a person inside a pit latrine lying down with his head inside the pit. She raised alarm and attracted people to the scene.

(3) The people pulled the affected person from the latrine and it was at that juncture that Pacifica (PW 2) learnt that the person was the deceased. She did not know what happened to the deceased.

An assistant chief, Josephat Ayiega Nandi (PW 3), learnt of the incident and proceeded to the scene where he found the deceased being carried out of the latrine while unconscious and with injuries on his face and chest.

(4) The chief and others assisted to take the deceased to the hospital and thereafter returned to the scene and noted some blood stains near a house which had nobody inside. A blood stained knife was also found nearby.

Selina Cherop (PW 4), mother to the deceased, was called by Pacifica (PW 2) and informed that a person had fallen into a toilet. She proceeded to the scene and found that the person was her son, the deceased. He was taken to hospital where he was pronounced dead.

(5) Selina (PW 4) did not know what happened to her son and she had no idea about his relationship with the accused who was their neighbour. She however, learnt that her son was fatally stabbed with a knife.

C.IP Gilbert Cheruiyot (PW 5), received the necessary information on the material date at about 6. 00 pm and visited the scene which was a plot of land on which residential houses were erected. There was also a disused latrine on the plot and that was where the deceased was found.

(6) In the process of carrying out investigations, C.IP Cheruiyot noticed some blood stains at the scene. The stains led him into the house of the accused who was not inside at the time. No other person was in the house. He (PW 5) thereafter proceeded to hospital where he found the deceased with serious injuries on the chest and forehead. He (deceased) passed away in hospital.

(7) On the day that followed, C.IP Cheruiyot (PW 5) re-visited the scene in the presence of the accused who had earlier on the same day reported that his neighbours had threatened him while alleging that he had killed the deceased.

He was interrogated by C.IP Cheruiyot before they all proceeded to the scene where a water basin with blood stained clothes was found near the door of the accused’s house. A search inside the house revealed a pair of blood stained shoes under a bed. He (accused) confirmed that the shoes belonged to him but said that the blood stains were as a result of a fight between two ladies in his house. A pair of jeans trouser was also found with blood stains.

(8) The Government Analyst, Lawrence Kinyua Muthuri (PW 6), examined the blood stains on the shoes and jeans trouser and prepared a report (P.Ex 5) indicating that the stains marched with the blood samples of the deceased.

Dr. Samwel Onchere (PW 1), produced a post mortem report (P.Ex 1) which showed that the deceased died from cardiorespiratory arrest secondary to haemopneuothorax resulting from a penetrating chest injury from a sharp object.

(9) It was on completion of the investigations that the accused was charged with the present offence. His defence was a denial and a contention that he was at his rural home on the material 31st July 2011, attending a fundraiser for his education at Kisii University. He returned to Kisii town on the following 1st August 2011, only to be confronted by police officers who arrested and took him to Kisii Central Police Station where he was interrogated and locked in the police cells.

(10) He (accused) further contended that he knew nothing about the death of the deceased and did not know him at all. He came to know Pacifica (PW 2) and Selina (PW 4) in the court and the clothes, shoes and knife recovered from his house did not belong to him.

(11) From all the facts and evidence, it is apparent that the death of the deceased as a result of an unlawful act is not in dispute.

It is quite evident as indicated in the post mortem form (P.Ex 1) that the deceased died from a severe chest injury occasioned by a sharp object.

It is also evident that a blood stained knife (P.Ex 4) was found near or at the scene where the deceased was found in a pit latrine.

(12) It is therefore clear and certain that the deceased was fatally stabbed with a knife by a person who was not found or seen at the scene at the time of the offence. The basic issue for determination herein is whether the accused was the person responsible for the death of the deceased.

(13) The accused denied such responsibility and raised an alibi by saying that he was not at the material scene of the offence at the material time as he was at his rural home. His clansman, Charles Mutomwa George (DW 1) confirmed as much. However, the alibi was disproved by the evidence of Selina (PW 4), who said that she saw him on the material date when she proceeded to his house in Kisii town and alerted him about a road accident which had occurred nearby but he showed no concern.

(14) If as stated by the witness (PW 4) that the accused was at his house in Kisii town on the material date it would follow that he was not at his rural home on that date as he alleged. His alibi as supported by his witness (DW 1) was devoid of any truth. However, he was not under any obligation to prove his innocence. The obligation to prove his guilt lay on the prosecution on a standard which is beyond reasonable doubt.

(15) In that regard, the prosecution did not have any direct evidence against the accused. They therefore relied on circumstantial evidence in the form of blood stains found on a pair of shoes belonging to the accused. Although he said that the pair of shoes did not belong to him, he did not deny the fact that it was inside his house. What was most vital about the shoes was that the deceased’s blood stains were on them thereby raising strong suspicion that the accused was responsible for the death of the deceased.

(16) As was stated in the case of Sawe V. Rep (2003)KLR 364, in order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other co-existing circumstances weakening the chain of circumstances relied on.

(17) Herein, the circumstances relied upon by the prosecution are that the accused and the deceased lived near each other. They were neighbours although the accused denied having previously known the deceased. His (accused’s) house was near a disused latrine in which the deceased was found while seriously injured on the chest with what was suspected to be a knife.

(18) Indeed, a blood stained knife was found at the scene but the accused was not there at the time. He was not therefore linked to it in anyway. However, he was at a later stage taken to his house by C.IP Cheruiyot (PW 5), who found some clothes with blood stains inside a water basin. He also found a blood stained pair of shoes under a bed. The blood stains on the pair of shoes and a jeans trouser were linked to the sample blood of the deceased by the Government Analyst (PW 6).

(19) All the foregoing factors strongly implied that the accused had something to do with the death of the deceased and more so, if it is taken into consideration that his alibi defence was clearly discredited by the prosecution evidence through the mother of the deceased (PW 4) who stated that he (accused) was at his house in Kisii town at the place known as Mwembe on the material date. His allegation that he was at his rural home at a place known as Bonyameuiu on the material date was therefore not the truth.

(20) At most, the blood stains on the accused’s shoes and trousers provided strong and credible circumstantial evidence against him in as much as they were linked to the blood samples of the deceased. One may ask what would the accused be doing with shoes and clothes stained with the blood of the deceased in a house where he lived alone if he was not connected with the death of the deceased???

(21) There was no attempt by the accused to explain how the blood of the deceased came to be in his house through the shoes and trousers. Under S.111 of the Evidence Act, he was under obligation to satisfactorily explain how the blood stains of the deceased came to be in his house. The explanation he gave to C.IP Cheruiyot (PW 5) during investigations was untenable, unbelievable and remained unestablished.

(22) Herein, the circumstances against the accused were such that the discovery of blood that belonged to the deceased on his shoes and trousers and without credible explanation from him undeniably linked him to the death of the deceased. The only inference arising was that he was responsible for that death. However, there was insufficient evidence from the prosecution to show that he acted with malice aforethought.

(23) Consequently, it is the ultimate finding of this court that the charge proved against the accused beyond reasonable doubt by the prosecution is that of manslaughter contrary to S.202(1) of the Penal Code rather than murder.

Accordingly, the accused is found guilty of manslaughter and is hereby convicted.

Delivered and signed this 4th day of October 2017

J.R. KARANJAH

JUDGE

In the presence of

CC Mohe N. Stephen

State Counsel – Mr. Otieno

Mr. Okemwa for accused

Accused - Present

State Counsel: Accused may be treated as a first offender.

J.R. Karanjah , Judge

Okemwa in Mitigation:Accused is remorseful. He is the only son of his family and is responsible for his widowed mother. He has a very young family and is the sole breadwinner. He prays for leniency and be allowed to be with his family. May he be given a non-custodial sentence. He is aged 26 years old.

J.R. Karanjah , Judge

Court:Accused is a first offender. Mitigation noted. The circumstances of the offence indicated that the deceased was attacked viciously with a knife. The fatal stab was aimed at the chest thereby implying that the culprit accused had the intention to grievously harm the deceased.

J.R. Karanjah , Judge

Sentence:Accused shall serve seven (7) years imprisonment. Right of Appeal.

J.R. Karanjah , Judge

4/10/17