[2022] KEHC 14770 (KLR)

Republic v Wanyonyi (Criminal Case E038 of 2021) [2022] KEHC 14770 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14770 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E038 of 2021

DK Kemei, J

November 3, 2022

Between

Republic

Prosecution

and

Moses Barasa Wanyonyi

Accused

Ruling

1. The Accused person, Moses Barasa Wanyonyi, is charged with the offence of murder contrary to sections 203 as read with section and 204 of the Penal Code Act, cap 63. It is alleged that on the 3rd day of April, 2021 at Namakhele village in Kimilili Sub County within Bungoma County he murdered Ismail Wataka. The accused denied having committed the offence and as such, a plea of not guilty was entered thereby setting in motion the need to prove all the ingredients of the offence charged by the prosecution. Resultantly, prosecution had to prove each and every element in the offence charged in order to secure a conviction against the accused.

2. The accused is represented by Mr. Sichangi, whilst the State is represented by Miss. Mukangu.

3. The test and procedure for a trial judge to decide if there is no case to answer is attributed in section 306 of the {{>/akn/ke/act/1930/11 Criminal Procedure Code which provides as follows.‘’ At the end of the prosecution evidence on either submission by the prosecution or defence, or on the courts own initiative may make a finding on whether there is sufficient evidence to prove the elements of the offence. If the prosecution evidence is capable of establishing the case for an independent tribunal to conduct it may call upon the accused person to state his or her defence in rebuttal. Whereas on the other hand the evidence is insufficient for any independent and reasonable tribunal directing its mind to the facts may reach a verdict of not guilty and acquit the accused person’’.

4. The above test in the criminal procedure code has been amplified in RvGalbraith73 CR Appeal R 124 as follows; -a)If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty. The judge will stop the case.b)The difficulty arises when there is some evidence, but it is a serious character, for example because if inherence, weakness or vagueness or because it is inconsistent with other evidence.c)When the judge comes to the conclusion that the provision evidence taken its high-rise, is such that a jury directed could not properly convict upon it, it is his duty upon a submission being made to stop the case.d)Where however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness reliability or other matters which are generally speaking with the province of the jury, and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

5. The prosecution in order to sustain a conviction must prove all the ingredients of the offence of murder. The elements of the offence as provided for under section 203 as read with section 204 of the Penal Code Act are: -i.That the deceased is dead;ii.That the death was caused unlawfully;iii.That there was malice aforethought; andiv.That the accused person directly or indirectly participated in the commission of the alleged offence.

6. The prosecution called a total of seven (7) witnesses in an attempt to prove its case. PW1 was Sylvia Wanjala who testified that the deceased herein used to be her customer as she used to sell him meat and that the accused is her neighbour popularly known as “Poliko”. She recalled that on April 3, 2021the deceased approached her at her hotel and made an order for ready-made meat (stew). He ate and while finishing with a cup of water the accused walked in and requested to talk to the deceased outside. Abruptly, she heard some noise and on going to confirm what it was, she found the deceased pleading with the accused not to kill him and she witnessed the accused hitting the deceased with a stick. The deceased fell on the ground and that the accused continued to assault him only to leave him when he was sure he was dead. The accused was in the company of someone else who stood and watched as he assaulted the deceased. She only screamed for help. On cross-examination, she told the court that the deceased did not run away on seeing the accused and it was like the accused came for the life of the deceased but could not tell if there were any squabbles between the two of them prior to the incident.

7. PW2 was Zacharia Busuru who testified that he is the assistant chief of Kamsinga sub location and knew the accused as his neighbour. He knew the deceased as one of the clan elders and recalled that on April 3, 2021while out on errands he received a call that the accused had been involved in a fight with the deceased and after a while he was alerted that the accused overpowered the deceased and managed to kill him. He quickly alerted the police at Kimilili and while on his way to the police station he spotted the accused who managed to flee even after trying to persuade him to surrender. He later proceeded to the scene where he found the deceased’s body lying on the ground. The police picked it up and took the body to the mortuary. The large crowd at the scene claimed that the accused was the assailant and who was in the company of one ‘’Kuka’’. On cross examination, he told the court that he knew both the accused and the deceased from their childhood and that he was not aware of any dispute between them and that he did not witness the incident. He further noted that he has not seen the said Kuka in the area and that the accused disappeared after the incident.

8. PW3 was John Maina Muchunu who testified that on April 3, 2021while at the farm, it started raining and that he decided to move towards the road and that was when he heard people claiming that somebody had been killed. He testified that his wife handed over to him two mobile phones make I-TEL belonging to the deceased and which he handed them over to the clan elder one Evans Simiyu. He added that he recorded his statement after the burial of the deceased. On cross-examination, he testified that he knew both the deceased and accused for so long as they grew up together. He also confirmed that Pw1 was his wife and denied a suggestion by defence counsel that the deceased had been killed at the hotel. He finally added that the people in the area feared to come forward to testify.

9. PW4 was Dr. Wanambisi Caleb Wata who testified that he is currently based at Webuye District Hospital. He recalled that on April 14, 2021a post-mortem examination was conducted by Dr. Simiyu and that he was before court to tender in evidence on his behalf as he had proceeded for further studies. He told the court that on external examination of the body, it was noted that there were multiple bruises on the chest wall, stomach and rear head and that the body was pale. On internal examination, there were ruptured vessels in the digestive system with a pool of blood on the stomach. It was also noted that there were cut wounds on the skull and a pool of blood inside the brain. He opined that the cause of death was severe anaemia due to intra-abdominal and intra-cranial haemorrhage which had been caused by a blunt and sharp trauma to the body. He produced the post mortem report dated April 14, 2021as Pexh 1.

10. PW5 was Evans Simiyu who testified that he is a clan elder for the Kamsinga area and knew the deceased herein as they grew up together. He recalled that on 3rd April, 2021 at around 3. oo pm he received a report that the deceased had died. He quickly rushed to the scene where he found a large crowd gathered and that the body of the deceased had severe injuries on the head. He stated that he received two mobile phones that the deceased had left with somebody as he ran for his dear life and that he handed them over to the village elder. He told the court that he did not know the accused herein. On cross-examination, he stated that he did not witness the incident. He confirmed that Pw1 and Pw3 are a couple and that the deceased’s mobile phone handsets were not handed over immediately by Pw3. He confirmed that Pw1 and pw3 were not arrested despite being found in possession of the mobile phone handsets. He also confirmed that Pw3 had a fractured arm at the time but could not know the cause of the fracture. On re-examination, he stated that he did not know the kind of business Pw1 and Pw3 ran in the area.

11. PW6 was Nancy Nanyama Walubengo who testified that on April 3, 2021 at around 1. 00 pm while at her place of business she decided to take a break and head home. On her way, she saw one “Poliko” holding one Mr. Brown Ishmael and pulling him away. Later he saw “Poliko” hit Mr. Brown with a club and he fell on the ground. She quickly raised an alarm and the villagers arrived only to find Mr. Brown had died. She told the court that a large crowd turned up at the scene and she maintained that she did not see any other person at the scene apart from the said Poliko and Brown Ishmail before the villagers arrived. She pointed out that she did not know the issue of the disagreement between the accused and deceased and that she did not have a problem with the accused. On cross-examination, she told the court that she saw “Poliko” struggling with Mr. Brown and that there were no other people. She also stated that the said Poliko was assaulting Brown and that she screamed for help. She stated that she could not tell if Pw1’s husband (Pw3) fought off the deceased on finding him with his wife. On re-examination, she told the court that she saw Ishmael had fallen down having been hit by ‘Poliko” and did not see John at the scene and that the accused and deceased had emerged from PW1’s home. She finally denied that she was protecting Pw1 and Pw3 who are her neighbours.

12. PW7 was No. 237384 PC Evans Chesebe who testified that he is currently stationed at DCI Kimilili performing investigations. He recalled that on 3rd April, 2021 while at the station he received a report about a murder which had occurred at a place called Namakhele. With his colleagues, they rushed to the scene and found the body of the deceased herein. The witnesses alleged that the deceased had been assaulted by one Moses Wanyonyi Barasa aka “Poliko”. The body was moved to the mortuary. It was alleged that the suspect was at large and in possession of a large club which was the murder weapon. They recorded witness statements. On 25th October, 2021 they received a call from the assistant chief Kamsinga sub-location who informed them that the suspect had resurfaced and was moving around driving a tractor. They started the man hunt and managed to apprehend him. On cross-examination, he told the court that he is the investigating officer in this case and that he was not aware that one PW3 attacked the deceased when he found him with his wife. He stated that he did not see the deceased’s mobile phones and that his investigations exonerated Pw3 from blame. On re-examination, he told the court that the recovered phones belonging to the deceased were not linked to his murder and that the deceased was killed about five metres from PW1’s shop and 500 metres from PW1’s house and that PW3 was two kilometres away at his farm at the time of the incident. He maintained that the eye witness did place the accused at the scene and further linked him to the murder of the deceased

13. Thereafter, the prosecution closed its case and parties were directed to file submissions. Learned counsel for the defence submitted that a prima facie case has not been established and that there is a contradiction between the evidence of PW1 and PW6. Further, that PW7 treated the scene of crime in an ordinary manner by failing to secure it and that no rungus used or other items were collected from the scene and that despite being given the two phones by PW5 who had been given the same by PW2, no action was taken. Therefore, it was submitted that the accused should be acquitted. Learned counsel for the prosecution submitted that a prima facie case has been established against the accused and that this court should find that the accused has a case to answer since he was placed at the scene of crime as Pw6 was an eye witness. It was further submitted that the assault on the deceased was done with the sole intention to kill him and finally, that the evidence as adduced would be sufficient to sustain a conviction even if the accused opts to elect to remain silent in defence.

14. I have given due consideration to the evidence adduced at this stage of the proceedings as well as the submissions by the learned counsels herein. The issue for determination is whether a prima facie case has been made out by the prosecution to warrant the accused being placed on his defence. The question on the prima facie case has been extensively considered by the courts and other legal texts by scholars. The Oxford Companion of Law at page 907 gives the definition as:“A case which is sufficient to all an answer while prima facie evidence which is sufficient to establish a fact in the absence of any evidence to the contrary is not conclusive.”

15. In making a finding on a prima faciecase, one should bear in mind the cardinal principle on the burden of proof that it is the duty of the prosecution to establish the guilt of the accused for the offence charged beyond reasonable doubt, as was stated in Woolmington v DPP [1935] EA 462 at 481.

16. Section 107 (1) of the Evidence Act cap 80 of the Laws of Kenya provides that:“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist.”

17. In criminal trials, that burden of proof is always on the prosecution. A trial court is therefore enjoined by law to determine whether at the conclusion of the prosecution case there exists a case discharging that burden of proof. I have considered the prosecution evidence.

18. The legal principles to guide a trial court in making a determination on a prima facie case have clearly been stipulated in the Eastern African case of R T Bhatt v Republic(1957) EA 332. The legal principles which run through the cases cited revolves around sufficiency of evidence capable of establishing the ingredients of the offence the accused is charge with. Secondly, a mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence. Thirdly it is evidence adduced by the prosecution such that a reasonable tribunal properly directing its mind would convict the accused in absence of any explanation when called upon to answer or put on his defence.

19. It is trite as expressly stated in the cases of State v Ramadhan Chin Shue HCA No. 104 of 1997 andSanjih Chaittalvthe State [1985] 39 WLR Bhatt v Republic[1957] EA 332 that; -“A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence adduced by the prosecution to prove essential elements in the alleged offence (b)With the evidence adduced by the provision has been so discredited that no reasonable tribunal could safely convict on it.”

20. In the instant case, I find that the testimonies of PW1 and PW6 confirms that the accused was the one who inflicted the injuries on the deceased and that the evidence of PW4 confirms the existence of the injuries on the body of the deceased. The evidence of PW1 was that accused walked into her hotel and requested to speak to the deceased outside and the evidence of PW6 was that he saw the accused leaving the hotel of PW1 dragging the deceased. I believe both witnesses have established that the accused was the one who was in the company of the deceased as he exited the hotel and it is probable that the accused dragged the deceased outside once he reached the other side of the door of the hotel. The two witnesses did establish that they witnessed the accused hitting the deceased several times. In totality I find that the evidence placed before me has met the threshold of a prima facie case. The evidence of PW6 did corroborate the occurrence of the incident even if there was a slight difference in the modality the accused used to escort the deceased outside the hotel. This means that the prosecution has established a prima facie case against the accused to warrant him to be called upon to make a defence to the charges facing him. The test to be applied here is as elucidated under section 306 of the Criminal Procedure Code and buttressed by the legal principles in the cited authorities. In a nutshell the evidence tendered at this stage is sufficient to sustain a conviction were the accused to elect to remain silent in defence. Indeed, the accused was placed at the scene of crime and that the incident took place around 1. 00pm in broad daylight.

21. In the result it is my finding that the prosecution has established a prima facie case against the accused herein Moses Barasa Wanyonyi. I find that the accused has a case to answer and is now called upon to make his defence in accordance with the provisions of section 306(2) of theCriminal Procedure Code.

DATED AND DELIVERED AT BUNGOMA THIS 3RD DAY OF NOVEMBER, 2022. D. K KemeiJudgeIn the presence of:Moses Barasa Wanyonyi AccusedNatwati for Sichangi for AccusedMukangu for ProsecutionKizito Court Assistant