[2022] KEHC 10902 (KLR)

Republic v Wangala Alias Mwala & 3 others (Criminal Case 31 of 2017) [2022] KEHC 10902 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10902 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 31 of 2017

SN Riechi, J

May 6, 2022

Between

Republic

Prosecution

and

Moses Wanjala Wangala Alias Mwala

1st Accused

Milon Wambasi Nyongesa Alias Abuu

2nd Accused

Albert Simiyu Masindano

3rd Accused

John Mzee Chemotei

4th Accused

Judgment

1. The accused Moses Wanjala Wangala alias Mwala (accused 1), Milon Wambasi Nyongesa alias Abuu (accused 2) Albert Simiyu Masindano (accused 3) and John Mzee Chemotei (accused 4) are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. Particulars of the offence are that Moses Wanjala Wangala alias Mwala (accused 1), Milon Wambasi Nyongesa alias Abuu (accused 2) Albert Simiyu Masindano (accused 3) and John Mzee Chemotei (accused 4) on the night of the 4th and 5th November, 2017 at Katiba village, Chongeywo location in Cheptais Sub-county within Bungoma County murdered Morris Bunyasi Simiyu.

3. The case for the prosecution is that PW1 Fred Wamalwa Simiyu the brother of the deceased Morris Bunyasi Simiyu was at his home on November 5, 2017 at 6. 30 a.m. when he received information from Lena Matera that the deceased was lying down at the home of Joseph Nyongesa. He went there and on the way met the wife of Joseph who said she was going to look for Moses Wanjala (accused 1) Albert Simiyu (accused 3) and Mzee (accused 4). He proceeded to the scene and found the body of the deceased with no visible injuries. He found Joseph in his house who also mentioned the accused as person who were last with the deceased. He went and reported to police.

4. On being cross examined by M/s Natwati for accused he stated the body was about 2-3 meters from house of Joseph and there was a rope and jacket about 20 ft away. He confirmed he did not know who killed the deceased.

5. PW2 Linet Nelima Matera passed near the home of Joseph Nyongesa when she saw a person lying in a coffee farm. She called Nasambu and together they identified the person as deceased. She went and informed the family of the deceased.

6. PW3 Vitalis Wekesa a minor aged 12 years testified that he was staying with his grandfather Nyongesa and grandmother Judith. He knew accused as a person who used to come and drink alcohol at their home which was being brewed by the grandmother. On November 4, 2017 he was at home when deceased came to drink alcohol. He was joined by Nimrod (accused 2), Simiyu (accused 3) and his grandfather accused 4 and accused 1 who was also present. The deceased became drunk and his grandfather asked accused to escort him and they left with deceased.

7. PW4 Judith Nasambu Nyongesa was at her home on November 4, 2017 selling changaa which she brews. She saw deceased come at 8 p.m. looking for changaa and she told him it was finished. Her husband Joseph Nyongesa was present when Moses (accused 1) and Mzee (accused 4) came. The next day she was informed by Matera (PW2) that there was a person lying down outside. She went and confirmed it was the deceased. She went and informed the husband Joseph. She also informed the village elder and later police came.

8. On being cross-examined by Natwati counsel for accused, she stated that she and known deceased since birth. She stated that Melon (accused 2) is her son. Moses (accused 1) is her in-law’s son, Albert (accused 3) is here in-law and Mzee (accused 4) is a neighbour’s son. She testified that she and been in changaa business since 1992 to date. On the material day she testified the deceased came to her home and the husband sold him changaa although he appeared drunk. Moses (accused 1) came at 6 p.m., Albert (accused 3), Mzee (accused 4) came and left.

9. PW6 No. 53234 Segt Murice Mulwa was at Kipsigon police station when Fred Wamalwa (PW1) came made a report of murder. He together with OCS and other officers went to the scene. They found the body of deceased lying down. On observing it they saw it had a mark on the neck as if he was strangled. They found a shoe and a net string near the deceased and the deceased clothes had mud. He received information that deceased had been drinking at home of Joseph and was escorted away by accused 1 and 2. Later accused 1 and 2 were brought to the police station by members of public. A son of Joseph mentioned accused 1, 2, 3 as the ones who tied the accused and beat him. Accused 4 was later arrested and he caused all of them to be charged with present offence.

10. PW5 Dr. Haron Ombangi who performed the post mortem on body of deceased found that he had bruises on left elbow, injuries around the neck, bilateral left lung collapse, fracture of cervical spine and compression at point of fracture. From the examination he formed opinion that the cause of death was due to loss of air due to strangulation.

11. The accused on being put on their defence gave sworn statements. Accused 1 Moses Wanjala alias Mwala testified that on the material day he left his place of work and went to the home of Judith Nasambu (PW4) to look for changaa. She told him it was finished. He left at 6. 30 p.m. and went to this home where he slept until the next day. The next day at 4 p.m. the assistant chief came to him and told him he was wanted by police.

12. Accused 2 Milon Wambasi Nyongesa testified that on the material day he went to his place of work where he was digging a foundation of a house. After work he went to his home. On November 5, 2017 he was informed by the assistant chief that he was wanted by police. He stated that Judith (PW4) stays about 300 meters from his home and that he did not visit her home that day. He stated that Vitalis (PW3) is his sister’s son but what he told court was lies. He confirmed that Judith (PW4) is his mother, accused 1 is a cousin and accused 3 is a neighbour.

13. Accused 3 Albert Simiyu Masindano testified that on November 4, 2017 after work he went to the home of Judith (PW4) to drink changaa. Her house is about 400 meters from his house. She told him she did not have changaa. He went home and slept. At 6 a.m. he heard screams form home of Judith. He went there and found the body of the deceased who was his uncle. People searched and in a farm they recovered a rope and jacket 20 meters from where the body was. They also recovered one shoe which belonged to the deceased. Police were informed and came to the scene.

14. Accused 4 John Mzee Chemotei testified that on material day after picking coffee and taking to the society he went to the home of Judith (PW4) to drink changaa. She told him the changaa was finished and he then went home and stayed there. The next day on November 5, 2017 he learnt of the death of the deceased.

15. Ms/ Natwati for the accused filed written submissions. Counsel submitted that there was no direct evidence linking all the four accused persons with the commission of the offence as there was no eye witness. Counsel submitted that none of the 6 prosecution witnesses saw any of the accused strangling the deceased. Counsel submitted that all the accused gave an alibi defence and that the prosecution failed to place the accused persons at the scene of crime.

16. The accused are 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 any unlawful act or omission is guilty of murder.”

17. The element of the offence of murder from the provisions of the Section 203 Penal Code which must be proved beyond reasonable doubt by the prosecution are:a)The fact and cause of deathb)The unlawful act or omission that caused the deathc)That it is accused who occasioned the unlawful act or omission or inflicted the injuries that caused the deathd)That the accused had the intention of causing death or grievous harm or malice aforethought.

18. The doctor who performed the post mortem Dr. Haron Ombongi (PW5) testified that on examining the body of the deceased he found that he had brises on left elbow, with injuries around the neck, bilateral left lung collapse and fracture of cervical spine with compression at point of fracture. From the examination he formed opinion that the deceased died due to axypsia loss of air as a result of strangulation. He issued death certificate No. 40xxxx. He therefore confirmed the fact and cause of death of the deceased.

19. PW1 Fred Wamalwa Simiyu the brother of the deceased testified that he received information of deceased lying near home of Joseph Nyongesa. He went there and found him already dead. In response to cross examination by Natwati Advocate he stated he did not know who killed the deceased.

20. PW2 Linet Nelima Matera found the body of the deceased near the home of Joseph Nyongesa. He was already dead. She too testified that she did not know how deceased died.

21. PW3 Vitalis Wekesa testified on how he saw accused escort the deceased from Judith home as deceased was drunk and accused then came back and continued drinking.

22. PW4 Judith Nasambu who was selling changaa to both deceased and accused testified that both accused and deceased went to her looking for changaa but found it finished. The next day she received information that deceased was dead near their house.

23. None of these witnesses testified as seeing the accused either jointly or singly strangling the deceased. There was however evidence of strangulation both from the medical report and presence of rope found at the scene. There being no direct evidence the prosecution therefore relied on circumstantial evidence to prove the charge against the accused persons.

24. The inculpation facts which the prosecution sought to prove was that(a)The deceased was at the home of Judith and drank changaa.(b)That the accused also came to the home of Judith and drank changaa.(c)That the accused left together with the deceased.(d)That the deceased was found the next day near the home of Judith having been strangled.

25. The test with regard to circumstantial evidence was stated in the case of Musili Tulo v Republic(2014) eKLR. The court set out the test as follows:i.The circumstances, from which an inference of guilty is sought to be drawn, must be cogently and firmly established.ii.Those circumstances should be of a definite tendency unerring pointing towards the guilt of the accused.iii.The circumstances taken cumulatively should form 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 no one else.

26. In Abanga alias Onyango v R, the Court of Appeal stated:“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 a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstance taken cumulatively, should form 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.”

27. From the evidence adduced by the prosecution the accused were arrested because on that material day, they were at home of Judith where they drank changaa together with the deceased and left with him. According to PW3 Vitalis and denied by both the accused and PW4 Judith. Considering the evidence, I find that the circumstantial evidence relied on by the prosecution do not satisfy the threshold of circumstances from which the court can make an inference that it is accused 1,2,3,4 and no other who committed the offence. The circumstances relied on in my view do not form a chain so complete that there is no escape that within all human probability it is accused who committed the offence.

28. I therefore find Moses Wanjala Wangala alias Mwala (accused 1), Milon Wambasi Nyongesa alias Abuu (accused 2) Albert Simiyu Masindano (accused 3) and John Mzee Chemotei (accused 4) not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and acquit each one of them under Section 215 C.P.C.

29. I direct that Moses Wanjala Wangala alias Mwala (accused 1), Milon Wambasi Nyongesa alias Abuu (accused 2) Albert Simiyu Masindano (accused 3) and John Mzee Chemotei (accused 4) be set at liberty unless otherwise lawfully detained.

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