[2023] KEHC 19378 (KLR)

Republic v Wanyonyi (Criminal Case E038 of 2021) [2023] KEHC 19378 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19378 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E038 of 2021

DK Kemei, J

June 30, 2023

Between

Republic

Prosecution

and

Moses Barasa Wanyonyi

Accused

Judgment

1. The accused herein Moses Barasa Wanyonyi has been charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on the April 3, 2021 at Namakhele village in Kimilili sub county within Bungoma county, he murdered Ismail Wataka.

2. The accused denied the charge and hence the hearing kicked off in earnest on February 7, 2022. The prosecution called seven (7) witnesses in support of its case. PW1, Sylvia Wanjala, 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 referred to as “Poliko”. She recalled on April 3, 2021 the deceased approached her at her hotel and made an order for ready-made meat (stew). He ate and while finishing drinking his cup of water the accused walked in requesting to talk to the deceased outside the hotel. Abruptly, she heard some noise and on checking what it was, she found the deceased pleading with the accused not to kill him and that she witnessed the accused hitting the deceased with a stick. The deceased fell on the ground and 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 watch as he assaulted the deceased. She only screamed for help.On cross-examination, she stated 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.

3. PW2, Zacharia Busuru, testified that he is the assistant chief of Kamsinga sub location and knew the accused as he is a neighbour. He knew the deceased as one of the clan elders and recalled on April 3, 2021, while 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 it to the mortuary. The large crowd at the scene claimed that the accused was the assailant and that he 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 stated that he has not seen the said Kuka in the area and that the accused disappeared after the incident.

4. PW3, John Maina Muchunu, testified that on April 3, 2021 while at his farm, it started raining and 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 deceases which he handed over to the clan elder one Evans Simiyu. He recorded a 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 the 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.

5. PW4, Dr Wanambisi Caleb Wata, testified that he is currently based at Webuye District Hospital. He recalled on April 14, 2021 a post-mortem examination was conducted by Dr Simiyu and that he was before court to tender in evidence on his behalf as the said doctor had proceeded for further studies and that he had worked with him and was familiar with his handwriting and signature. He told the court that on external examination of the body, 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 and there was a pool of blood on the stomach. 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, 2021 as Pexh 1.

6. PW5, Evans Simiyu, testified that he is a clan elder for the Kamsinga area and knew the deceased herein as they grew up together. He recalled on April 3, 2021 at around 3. 00 pm he received a report that the deceased had died. He quickly rushed to the scene where he found a large crown gathered and that the body of the deceased had severed 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 stated that he did not know the accused herein.On cross-examination, he stated that he did not witness the incident. He confirmed thatPW1 and PW3 are a couple and that the deceased’s mobile phone handsets were not handed over immediately byPW3. 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.

7. PW6, Nancy Nanyama Walubengo, testified that on April 3, 2021 at around 1. 00 p.m. 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 she 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 stated 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 disagreement between the accused and the deceased and that she did not have a problem with the accused.

8. On cross-examination, she testified 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 stated 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 emerged from PW1’s home. She finally denied that she was protectingPW1 and PW3 who are her neighbours.

9. PW7, No 237384 PC Evans Chesebe, who testified that he is currently stationed at DCI Kimilili performing investigations. He recalled on April 3, 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 October 25, 2021, they received a call from the assistant chief Kamusinga 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 testified 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 stated that the recovered phones of the deceased were not linked to his murder and that the deceased was killed about five metres from PW1’s shop and five hundred metres from PW1’s house and that PW3 was two kilometres away at his farm at the time of the incident. The eye witness did place the accused at the scene and further linked him to the murder of the deceased.

10. The prosecution then closed its case. A prima facie case was later established to have been made out by the prosecution and that the accused was placed on his offence. He opted to tender a sworn testimony.

11. Moses Barasa Wanyonyi (DW1) is the accused herein. His case is that on the material date, he was in Kitale over ploughing farms as he had gone there on February 17, 2021 and that he was not aware of any death of the deceased. He testified that he was arrested on October 25, 2021while ferrying sand and escorted to the police station in Kimilili. He stated that it was only after his arrest that he learnt of the allegations and that he did not know the deceased herein. He added that the name “Poliko” is unknown to him and that he is sometimes referred to as “Musa”. He stated that he knows PW2 as he is his assistant chief but denied the allegations before the court.On cross-examination, he stated that he was hired by one sister Catherine but that he lacked the employment letter and that prior he had worked with one Peter who died and that he is not able to call his employer to verify his testimony.

12. At the close of the defence hearing, learned counsels relied on their earlier submissions filed on a case to answer.

13. Vide submissions filed on July 26, 2022, the prosecution’s counsel Miss Mukangu submitted that to establish the offence of murder, the prosecution needed to prove the following ingredients: that there was an unlawful act or omission; that there was malice aforethought; and that the accused caused the death of the deceased.

14. It was submitted that PW1 and PW6 testified that they saw the accused assaulting the deceased in the company of another not before the court and that the that the accused is said to have called the deceased and then proceed to assault him with a rungu (wooden stick). This continued until the deceased fell down unconscious. He then left only to come back to continue with the assault on being informed that the deceased was not dead yet. He continued with the assault until the deceased died. It was argued that sufficient proof was provided to prove the ingredients of murder as the assault was done with the sole intention to kill the deceased. The accused was well known to the eye witnesses and that the offence happened at around 1300 hours in an open area allowing proper visibility. It was submitted that the prosecution established its case against the accused beyond reasonable doubt.

15. Vide submissions filed on July 13, 2022, Mr Sichangi counsel for the accused submitted that prosecution has failed to prove its case against the accused person beyond reasonable doubt as per the required standard and sought for the acquittal of the accused.

16. Having considered the evidence on record and the submissions of the parties, the issue for determination is whether the prosecution proved its case to the required standard of proof.

17. The offence of murder is defined by section 203 of the Penal Codeas:“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”Section 206 of the Penal Codeprovides as follows: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;d.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.

18. The burden of proof rests squarely upon the shoulders of the prosecution. The three ingredients of the offence of murder which they must establish beyond reasonable doubt under section 203 as read with section 206 of the Penal Code are as follows: -a.proof of the fact of death and the cause of death of the deceased.b.That the cause of deceased’s death was as a result of the direct consequences of the accused’s unlawful act or omission which is the actus reus of the offence.c.Proof that the unlawful act or omission was committed with malice aforethought.

19. As regards the first ingredient of the offence, it is noted that the same has been established by the prosecution. Dr Wanambisi Caleb Watawho testified as PW4 stated that on April 14, 2021 a post-mortem examination was conducted by Dr Simiyu and that he was before court to tender evidence on his behalf as the said doctor had proceeded for further studies and that he was familiar with his handwriting and signature. He told the court that on external examination of the body, 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 and a pool of blood on the stomach. It was also noted that there were cut wounds on the skull and a poll 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 in court the post mortem report dated April 14, 2021 as Pexh 1. To that extent, the first ingredient of the offence has been proved.

20. As to the unlawful nature of the death, the law presumes every homicide to be unlawful unless it occurs as a result of an accident or is one authorized by law. See Republic v Boniface Isawa Makodi(2016) EKLR that referred to the case of Guzambizi Wesonga v Republic (1948) 15 EACA 65 where it was held:“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable, it must have been caused under justifiable circumstances, for example in self-defence or in defence of property.’’

21. The deceased herein was found to have died froma severe anaemia due to intra-abdominal and intra-cranial haemorrhage which had been caused by a blunt and sharp trauma to the body. There is therefore certainty as to the cause of death. Given the nature of injuries suffered by the deceased that resulted in his death as indicated in the post-mortem report, it can safely be concluded that death was the desired outcome of whoever the assailant was.

22. The evidence ofPW1 was that the deceased herein used to be her customer as she used to sell him meat and that the accused is her neighbour popularly referred to as “Poliko”. She recalled on April 3, 2021 the deceased approached her at her hotel and made an order for ready-made meat (stew). He ate and while finishing drinking his cup of water, the accused walked in requesting to talk to the deceased outside the hotel. Abruptly, she heard some noise and on checking what it was, she found the deceased pleading with the accused not to kill him and that she witness the accused hitting the deceased with a stick. The deceased fell on the ground and that the accused continued assaulting him only to leave him when he was sure he was dead. Again, the evidence of PW6 was that on April 3, 2021 at around 1. 00 p.m. while on her way home from her business on a break, she saw one “Poliko” holding one Mr Brown Ishmael and pulling him away. Later, she 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. Further, the evidence of the assistant chief (PW2) was that he knew the accused as he is a neighbour and that the deceased was one of the clan elders. He recalled on April 3, 2021, while 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. The accused in his defence maintained that he did not know the deceased herein and the witnesses but only knew PW2 as he was his area assistant chief. He maintained that he never assaulted the deceased.

23. From the evidence of PW1 and PW6, it is clear that the accused was placed at the scene of crime and despite being spotted by PW2 and his efforts to persuade him to surrender, he fled. That evidence was not shaken by the defence. The prosecution was under duty to ensure that the allegation that the accused assaulted the deceased was with malice aforethought and not excusable. From the evidence of PW1 and PW6, the same established that the accused assaulted the deceased. The next issue for determination is whether the said assault was with malice aforethought. The evidence of PW1 is that the accused walked into her business establishment and requested to talk to the deceased outside. Abruptly, she heard some noises and on confirming what it was, she found the deceased pleading with the accused not to kill him and that she witnessed the accused hitting him with a stick. I find this was the factor giving rise to the malice aforethought. Suffice to add here thatPW1 testified that even when the deceased fell unconscious on the ground the accused still continued to assault him only to leave him when he was sure he was dead. It is thus obvious that the accused had planned to eliminate the deceased and that is why he did not heed the plea by the deceased not to kill him and went ahead to ensure that he accomplished the mission. This was the malice aforethought which the prosecution has discharged.

24. All the above provided the requisite malice aforethought in this offence. Hence, the accused person’s claim that he was at his place of employment at that time and did not know the deceased is not convincing. Hence, the alibi defence was disproved by the prosecution. The issue of motive was dealt with by the Court of Appeal in the case of Libambula v Republic [2003] KLR 683, when it held as follows:“We may pose, what is the relevance of motive here? Motive is that which makes a man do a particular act in a particular way. A motive exists for every voluntary act, and is often proved by the conduct of person. See section 8 of the Evidence Act cap 80 Laws of Kenya. Motive becomes an important element in the chain on presumptive proof and where the case rests on purely circumstantial evidence. Motive of course, may be drawn from the facts, though proof of it is not essential to prove a crime”.

25. Even if there is no other material evidence to corroborate the evidence adduced before this court as suggested by defence counsel, there are no co-existing circumstances which could weaken or destroy the inference of the guilt of the accused as the assailant as there is no escape from a conclusion that the crime was committed by the accused and nobody else. In the case ofR v Kipkering Arap Koske &another [1949] 16 EACA 135, the Court of Appeal for Eastern Africa held as follows:“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of is guilt. The burden of proving the facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”

26. The evidence of the pathologist (PW4) is that on external examination of the body, he noted multiple bruises on the chest wall, stomach and rear head and that the body was pale. On internal examination, he noted there were ruptured vessels in the digestive system and that there was a pool of blood on the stomach. It was also noted that there were cut wounds on the skull and a poll 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. The several severe injuries sustained by the deceased left no doubt that the accused intended to cause the death of the deceased. No wonder during the assault, the accused ensured that he left the accused dead for real and proceeded to flee from the scene. Such kind of conduct leaves no doubt that he had the requisite malice aforethought to eliminate the deceased.

27. From the above authorities, the evidence of the key prosecution witnesses leaves no doubt that there are no co-existing circumstances which could weaken or destroy the inference of guilt of the accused since he was placed at the scene of crime. The accused’s claim that he did not know the deceased, prosecution witnesses PW1to 3 and PW5-6 and that he was not the one who attacked the deceased is not plausible as he was seen assaulting the deceased by PW1 andPW6. That evidence was not dislodged by the defence as the said witnesses were not shaken even on cross-examination and therefore the element of a frame up does not arise at all. Indeed, the alibi defence of the accused was completely dislodged by the prosecution witnesses which squarely placed the accused at the scene of crime.

28. I find the accused had the requisite malice aforethought since from the injuries inflicted, it can be discerned that the assailant intended to achieve desired result namely death of the deceased. Even if the deceased might have been attacked by other persons as suggested by the accused, the fact that he assaulted the deceased in front of PW1 and PW6, then he was placed at the scene of crime and must therefore be held responsible for the crime. The actions of the accused in assaulting the deceased were not warranted since no amount of discord between them was beyond the attention of the area assistant chief. The killing of the deceased was therefore not justified in the circumstances.

29. In the result, it is my finding that the prosecution has proved the charge of murder against the accused herein Moses Barasa Wanyonyi beyond reasonable doubt. I find him guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and he is accordingly convicted therefor.It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 30TH DAY OF JUNE 2023. D. KEMEIJUDGEIn the presence of:__Moses Wanyonyi AccusedWekesa for Sichang for AccusedAyekha for ProsecutionKizito Court AssistantJUDGEMENT IN BGM HC CRIMIANL CASE NO e038 of 2021 - moses barasa wanyonyi 0