[2022] KEHC 13217 (KLR)

Republic v Wafula (Criminal Case 33 of 2020) [2022] KEHC 13217 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 13217 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 33 of 2020

SN Riechi, J

July 20, 2022

Between

Republic

Prosecutor

and

Moses Juma Wafula

Accused

Judgment

1. The accused Moses Juma Wafula is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that Moses Juma Wafula on the 21st day of July, 2020 at around 0400 hrs at Mayanja village in Bungoma South Sub-County within Bungoma County murdered Lilian Namuyemba.

2. The Prosecution case is that the deceased Lillian Namuyemba was the wife of accused Moses Juma with whom they had one child. Both the accused and the deceased stayed in a room at a plot with many rooms with other 7 tenants.

3. PW1 Edwin Wekesa Nakitare was staying in the room neighbouring where accused and deceased were staying. On the night of 21st July 2020 at 12. 30 a.m. he was asleep when he heard arguments from the house of accused. After a short time he heard accused say; “You have now seen you have now seen”. He did not hear the voice of the deceased again. He went to the house of accused where he saw deceased bleeding from the nose while lying down facing upwards. He called neighbours who informed the Chief. The Chief informed the Police who came and took the body to the mortuary. The accused was not present and was arrested 2 days later.

4. PW5 Robert Nyongesa Makanda received information that the accused had fought with his wife the deceased. He went to accused’s house and saw deceased lying down and bleeding from the breast and nose. He did not see the accused there and the Chief was informed who called the Police.

5. PW6 IP Simon Mwangi attached to Mayanja Police station is in-charge received a murder incident report which had occurred 500 metres from the Station. He went there and was led to the house by the Landlord where he found deceased with stab wounds. The scene was processed and body taken to the mortuary. The next day he received information that accused was at his home at Kakabet village. He and Officers went there but found the house locked. They broke into the house but did not find accused. From the house he recovered a bag from which they recovered a blood-stained knife, blood-stained shirt, blood stained yellow carrier bag. Next to the bag they found a pair of blood-stained gumboots. He handed over the items to DCI Officer.

6. PW8 No. 85816 P.C Sabashai Messoti who was among the Investigating Officers attached to DCI Bungoma South visited the scene with other officers and saw deceased with 2 stab wounds. He received information that accused had visited her and they had a quarrel and had escaped. The next day he received information that accused had been arrested by members of public and taken to Mukuha Patrol Base. He went there and collected him. The OCS (PW6) handed to him a blood-stained knife, shirt, bag. He obtained blood samples of accused and forwarded it together with the items to the Government Analyst Kisumu for analysis.

7. PW7 Polycap Lutta Kweyu a Government Analyst received:1. Blood sample of deceased2. Blood sample of accused3. Knife4. Long sleeved shirt5. Yellow carrier bag

8. He was requested to determine the DNA analysis. He found that the knife, shirt and carrier bag had human blood belonging to the deceased. The blood of the accused was not found in the items examined.

9. PW3 Dr. Claudia Wafula Wema produced a post-mortem report prepared by Dr. Musa Ochieng who performed the post-mortem on body of deceased. His findings were that the deceased had laceration on thoracic cavity and left breast, multiple stab wounds on left chest and abdomen and the diaphragm was perforated. He formed opinion that the cause of death was due to perforation of diaphragm following lying by sharp object.

10. The accused upon being placed on his defence gave sworn evidence. He testified that he did not know the deceased Lilian Namuyumba nor the did he know PW1 Edwin or PW2 Gabriel, or Nyongesa (PW5). He testified that on 22/7/2020 he was arrested from his home where he was staying with the mother Concepta and father. He denied in cross-examination that the shirt, (Exhibit 5) does belong to him.

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

12. The ingredients of the offence of murder which must be proved by the Prosecution are:a)The fact and cause of death.b)The unlawful act or omission causing the deathc)That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d)That the accused committed the unlawful act with malice aforethought.

13. PW3 Dr. Claudia Wafula who produced the pot-mortem report testified that the deceased had multiple stab wounds on the chest and abdomen leading to perforation of diaphragm. The multiple stab wounds were inflicted on the deceased by a person who assaulted her. The fact and cause of death was therefore proved.

14. The next issue for determination is whether the accused is the one who inflicted the stab wounds on the deceased that led to her death. PW1 Edwin Nakitare testified that he stays in the same block of rooms with the accused and deceased. On material night he heard the accused and deceased quarreling. On going to check he saw the deceased lying down with stab wounds and bleeding.

15. The Assistant Chief was called and Police were informed. The accused who had been quarreling with deceased had escaped from the scene. He confirmed in cross-examination that he heard the accused saying “Now you have seen”. He therefore recognized the voice of the accused.

16. PW5 Robert Nyongesa testified that he received information that accused had fought with the deceased. He went there and found deceased already dead and with stab wounds.

17. PW6 Inspector Simon Mwangi visited the scene and confirmed the death. The next day he went to accused’s house which he found locked. Upon breaking into the house he recovered a knife, shirt and carrier bag which were blood-stained. These together with accused’s blood specimen and blood of deceased were forwarded to Government Analyst Kisumu who confirmed that the knife, shirt and carrier bag were stained with the blood of the deceased. These items were recovered from the house of accused.

18. These witnesses and in particular PW2 Edwin testified that he knew the accused and the deceased as man and wife and were staying next door. He heard both of them quarreling and then heard accused say “now you have seen”. He recognized his voice and on going to check found the deceased lying down with injuries.

19. PW6 IP Simon Mwangi testified that he received information that accused who was a suspect of the murder was at his home. He and other Police Officers went to his home and found the house locked. They did not find accused but on searching the house recovered knife, shirt and carrier bag which were blood-stained. These items were forwarded to Government Analyst who confirmed that the blood stains on the items matched that of the deceased. This confirmed that the knife, carrier bag and shirt were stained with blood of the deceased at the scene of the murder. These items which were found in the house of accused confirmed that the person who committed the murder later went to the home of accused.

20. The accused defence is that he never knew deceased; was not his wife and that on the material day he was staying at his home. This was arrested the next day on 22/7/2020. He also in his defence denied knowing the Prosecution witnesses or in any way being connected with the death of deceased.

21. The evidence of PW1 Edwin who testified that he was staying next house next to the accused and deceased and that he knew accused and deceased well I find believable. His evidence that he heard the accused and deceased quarreling in the next room and accused speaking to deceased was clear evidence that it is accused who was with the deceased in the house.

22. In Vura Mwachirumbi –versus- Republic Criminal Appeal No. 20/2020 the Court stated:"The issue of voice recognition was the subject of a Court of Appeal decision in the case Choge V Republic (1985) KLR. The Court of Appeal considered the admissibility of voice identification in that case and held-“Evidence of voice identification is receivable and admissible in evidence and it can, depending on the circumstances, carry as much weight as visual identification. In receiving such evidence, care would be necessary to ensure that it was the Accused person's voice that the witness was familiar with it and recognized it and that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who had said it”.The Court in the case Njeri v Republic [1981] KLR 156 responded to submissions that voice identification was less satisfactory by stating-“Mr. Otieno has submitted that identification by voice is less satisfactory than visual identification. In our view it can be equally safe and free from error, more so if the identification takes place at night. We agree with the two lower courts that in the particular circumstances of this case, the appellant and the complainant being familiar with each other for many years, the possibility of error was excluded.”

23. The PW7 Edwin was a neighbour of the accused and deceased who was staying in a next room in a set of rooms in the compound. They knew each other well and was familiar to each other’s voice. On this particular night he heard the accused and deceased quarreling and heard the accused saying; “now you have seen”. This is what prompted the witness to go and check. I find that the conditions for voice identification were clear and it makes this Court to find that the recognition by voice was free from error.

24. PW6 IP Simon Mwangi visited the house of accused which they found locked and upon breaking into the house recovered the knife, T-shirt and carrier bag which were blood-stained and upon DNA analysis found the knife, carrier bag and T-shirt contained the blood of the deceased. This means that the person who killed the deceased carried the items which were recovered from house of accused.

25. Upon considering the evidence I am satisfied that accused was recognized by PW1 Edwin as the person who was quarreling with the deceased on the material night where she was stabbed. I also find that blood stained items recovered from his house which upon DNA analysis confirmed to contain the blood of the deceased. I am therefore satisfied that accused is the person who inflicted the injuries on the deceased and that his statement that he does not know the deceased is not true.

26. The last issue is whether the prosecution in that evidence has proved that the accused committed the unlawful act with malice aforethought.Section 206 defines malice aforethought as:Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances –a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;c)an intent to commit a felony; an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

27. Upon examining the evidence, the weapon used – a knife, the part of the body targeted which was the breast and abdomen and the multiple stab wounds inflicted all indicate to me an intention to inflict grievous harm or death as it happened in this case. I am satisfied that the Prosecution has established that accused had the necessary intention to cause death. I find Prosecution has proved malice aforethought.

28. I am satisfied that the Prosecution has proved beyond reasonable doubt a charge of Murder against the accused. I find the accused Moses Juma Wafula guilty of the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code and convict him accordingly.

DATED AT BUNGOMA THIS 20TH DAY OF JULY, 2022. S. N. RIECHIJUDGE