[2022] KEHC 11321 (KLR)

Republic v Wasike & 2 others (Criminal Case 8 of 2018) [2022] KEHC 11321 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11321 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Case 8 of 2018

LK Kimaru, J

June 14, 2022

Between

Republic

State

and

Dinah Nasimiyu Wasike

1st Accused

Stephen Tanui

2nd Accused

Collins Kibet Korir

3rd Accused

Judgment

1. The accused persons, Dinah Nasimiyu Wasike, Stephen Tanui And Collins Kibet Korir were jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on the April 1, 2018 at Sokoyo Village Kapkochor Sub-location within Elgeyo Marakwet County, the accused persons murdered Evans Kiprop (deceased). When the accused persons were arraigned before this court, they pleaded not guilty to the charge.

2. The prosecution called seven (7) witnesses in its bid to establish the basis of the information drawn against the accused persons. After the close of the prosecution’s case, the court found that the prosecution had established a prima facie case to enable the court place the accused to their defence. Consequently, the accused persons were placed on their defence.

3. This matter was initially heard by Chemitei J who took the evidence of the prosecution witnesses. He was transferred after finding that the accused persons had a case to answer. This court took over the proceedings at the defence stage. The accused persons, when asked, did not have any objection to the court proceeding with the case from where it had reached. After the close of the prosecution and defence cases, the parties filed their respective submissions.The facts established by the prosecution are as follows:

4. The deceased Evans Kiprop alias Kushoto was the husband to the 1st accused person Dinah Nasimiyu Wasike. They lived in Sokoyo Village Kapkochor Sub-location within Elgeyo Marakwet County. They were blessed with four (4) children in their marriage. A picture was painted of the couple in constant domestic wrangles spawning the entire period of their union. The deceased used to take alcohol and abuse his wife.

5. On the night of March 31, 2018, the 1st accused person and the deceased were at home where the 1st accused was selling chang’aa. Among the customers spotted at their homestead drinking were the 2nd and 3rd accused persons as well as PW3 Emily Yator, a farmer. SC, the deceased’s and 1st accused’s minor child aged six (6) years old (PW1) was also in the house. A quarrel ensued between the deceased and the 1st accused. According to PW1, the deceased was not drinking on this particular day.

6. PW3 left the homestead at 10:00 pm She was not fully sober. On her way home, she realized that she needed water. She thus returned to the deceased’s home where she heard a child crying. She could hear murmurs in the house. When she knocked on the door, the 1st accused refused to let her in. She instead asked her to fetch water from outside. PW3 went home.

7. Meanwhile, Kiprotich Kwambai PW2 a teacher at Kapkochor Primary School and brother-in-law to the deceased, was going home at about 11:00 pm on the said night. He could hear people talking from the deceased’s home. He recognized the 1st accused’s voice. She called the deceased’s name “Kushoto”. He also heard a male’s voice. He then retreated to his home.

8. Shortly after the quarrel, PW1 testified that the 1st accused pushed the deceased. He stepped on her brother and the traditional jiko and hit himself on the side of the bed. She then saw the deceased fall down. He did not wake up. The deceased was then laid to bed by the 2nd accused person and another unidentified person in the bedroom. At that time, PW1 was on the floor of the bedroom with her two (2) younger siblings. They covered him with a bedsheet. PW1 testified that the deceased asked the 1st accused to shut the door to the bedroom as she left in the company of the 2nd accused person.

9. PW4 Jennifer Jebet a neighbour and Aunt to the deceased and the 1st accused, testified that she had just gone to sleep at around 8:00 pm Later on, the 1st accused came to her house. She informed her that the deceased had committed suicide. She had earlier heard noises coming from their homestead.

10. In the wee hours of the following morning at around 2:00 a.m., screams emanated from the deceased’s homestead. PW2, PW3, PW4 and her son and other neighbours rushed there. They found the deceased seated near the gate with a belt tied to his neck and wrapped on the bar gate.

11. PW5 Charles Kipchumba, the assistant chief at Kapkochor was also alerted of the deceased’s death. He proceeded to the scene. He then informed the OCS and the Assistant Chief. All the persons who were drinking chang’aa in the homestead that night were questioned. Among them were the 2nd and 3rd accused persons who were spotted as the last to leave the homestead. Members of the public raised suspicion that the 1st 2nd and 3rd accused persons murdered the deceased. For fear of being lynched, the 1st accused person was taken to Kapkochor Administrative Police Post.

12. The OCS later came to the scene in the company of PW7 PC Samwel Otieno. After taking photographs of the deceased, PW7 proceeded to the house in the company of PW6. The house was a mess. Things were scattered. Two stools were upside down. The fireplace had been damaged. There were shirt buttons on the floor. PW7 took pictures of the scene. He then proceeded to Kapkochor Administrative Police Post where the first 1st accused was handed over to him. He then escorted her to Kapkochor Police Station. The other two (2) accused persons were handed over to PW7 at 4:00 am at the Police Station. He then conducted his investigations, recorded statements and charged the three (3) accused persons with the present offence. He produced the photographs and certificates as prosecution exhibits 1 (1-9) and 1 (b) respectively.

13. The body of the deceased was later taken to the mortuary for an autopsy on April 6, 2018. Senior Medical Officer Dr Alex Wanyonyi Barasa PW6 examined the body of the deceased. His findings were that the deceased was found with a belt around his neck. Suspicion had been raised as to the cause of death. He had bruises on the right and left shoulders, later side of the left arm, the distal third of the left forearm and the lower back. The deceased had conjunctival injection. There was a deep dark mark around the neck of the deceased. His eyes were red due to lack of oxygen. He had flatted cricoid cartilage, pulmonary oedema. His right heart chamber was completely filled and the left heart chamber was empty. His conclusion was that he died of strangulation with the bruises inflicted on the deceased prior to his death. He produced the post mortem report as prosecution exhibit 2.

14. The accused persons were placed on their defence. The 1st accused’s unsworn testimony was that on March 31, 2018 at 6:00 pm, the deceased returned home after paying a visit to his uncle. He was drunk. She was at the time selling chang’aa. After the last customer left, she remained at home with her husband and children. She stated that her husband refused to eat when served with dinner. They squabbled over a sum of Kshs 200. 00 which the deceased allegedly requested her to give him. She reluctantly gave him the money. The deceased then removed his gumboots, wore his other shoes and left. While asleep, after the deceased has gone, she was awaken by her in-law Hillary who took her to where the deceased was at around 4:00 am They found him holding the wire on the fence with one hand. He was not breathing. She then informed PW4 and the latter started screaming. A crowd gathered. She was then taken to the Administrative Police Post and later the Police Station. She was charged with the present offence which she denied. She maintained that in her twelve (12) years in marriage with the deceased, they never fought save for the normal domestic disputes.

15. The 2nd accused person’s sworn testimony was that on the said date at 8:00 pm, he proceeded to the home of the deceased where he drank chang’aa. He was there for ½ an hour. He spotted many people among them, Collins (Collo), DW4 Charles Yator and the deceased drinking. He also saw the deceased and 1st accused’s children in the homestead. He left at around 9:00 pm as he was drunk and slept at his house. He was the woken up at 4:00 am He was informed by Hillary that the deceased had committed suicide. He proceeded to the scene and found the deceased hung near a fence. The belt was not wrapped tightly on his neck. He concluded that the belt did not cause his death. When questioned, he said that the deceased and the 1st accused person never fought when he was there. He was later arrested in the company of twenty (20) others who had been drinking on that night. He was then taken with the 3rd accused person to the Police Station. The present charges were thereafter preferred against them. He dismissed the evidence of PW1 as having been fabricated. He knew the 1st accused person and the deceased who was his friend and neighbour but denied knowing the 3rd accused person. He added that the 1st accused person and the deceased quarreled and fought regularly. He urged the 1st accused person to tell the truth. He stated that he didn’t know how the deceased died. He saw that the household goods in the house of the deceased was scattered. He denied committing the offence. He maintained that he was only charged because he failed to contribute funds to bury the deceased.

16. The 3rd accused person’s sworn testimony was that on the said March 31, 2018, he proceeded to the homestead of the 1st accused person at about 6:00 p.m. to drink chang’aa. There were many people including the deceased. He then went home at 7:00 pm. He was a neighbour to the deceased and 1st accused. He was awaken up by his neighbour, Joseph at about 8:00 am. They proceeded to the scene where he found the deceased. There were many people. Later on, he identified himself to the Chief as one of the people who had taken alcohol at the deceased’s homestead the previous night. He stated that the 2nd accused person did the same thing. He was taken to the Administrative Post in the company of twelve (12) others including the 2nd accused person. He stated that the other persons were not charged because they bribed their way out. He was then charged with the present offence. He denied committing the offence. He denied knowing the 2nd accused person. He stated that he did not see him at the homestead that night. He identified the 1st accused as the person who sold the chang’aa. He was adamant that the deceased did not commit suicide based on the position of his body. He maintained that the charges levelled against him were fabricated.

17. DW4 Charles Yator identified and recognized all accused persons as well as the deceased. On March 31, 2018 at 5:30 pm, DW4 proceeded to the homestead of the 1st accused with his brother Emmanuel Yator. He spotted the 2nd and 3rd accused persons entering the same homestead. He then went home at about 8:00 am. He was awoken by his neighbour Philip who informed him that the deceased had passed on. He went to the deceased’s homestead at 5:00 am with his brother. He found the deceased tied with a belt round his neck seated. All 200 people who drank chang’aa the previous night were arrested. They were later released. The 2nd and 3rd accused persons were however detained, and later charged because they did not bribe the police to secure their release. He did not witness any quarrels between the 1st accused and the deceased. He stated that he was testifying on behalf of the 2nd accused and vouched for him as a law abiding citizen.

18. In criminal cases, it is the duty of the prosecution to establish its case against the accused persons to the required standard of proof beyond any reasonable doubt. This burden does not shift to the accused. In essence, no burden or responsibility is placed on the accused to prove his innocence. In the present case, the prosecution adduced eye witness accounts on what is said to have transpired on March 31, 2018. The prosecution relied on circumstantial evidence to establish the charge of murder brought against the accused persons. As was held by the Court of Appeal in the case of Sawe v Republic [2003] KLR 364 at page 372:“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 reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other 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.”

19. This court has carefully evaluated the evidence adduced in this case. It has also considered the submissions made by counsel. In order to sustain a conviction, the prosecution must prove all the ingredients of the offence of murder. The ingredients of murder were explained and captured in the case of Roba Galma Wario v Republic [2015] eKLR as follows:“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”

20. This court shall analyze and make its findings by discussing the conjunctive elements as hereunder under those heads.

a. The death of the deceased 21. The death of the deceased was uncontroverted. All the prosecution witnesses and the accused persons testified that the deceased was found lifelessly seated dead with a belt tied around his neck and wrapped to the gate. The body was found not too far from his homestead. The post mortem report, prosecution exhibit 2, confirmed that the deceased died as a result of strangulation.

b. The death of the deceased was caused by the Accused persons 24. The next ingredient that the prosecution had to prove was to establish that the accused persons caused the death of the deceased person. According to the evidence of the Prosecution, on the night of March 31, 2018, the deceased and 1st accused person quarreled between the hours of 10:00 pm and 11:00 pm. PW1 further testified shortly after the quarrel ensured, the 1st accused person pushed the deceased. He toppled over the traditional jiko and their minor child before losing balance, hit himself on the side of the bed and fell down. He did not wake up. He was then taken to the bedroom by the 2nd accused person and another and covered with a bed sheet.

25. In the wee hours of the morning, the 1st accused person raised an alarm regarding the death of the deceased who was found seated at the gate. He had a belt tied to his neck and wrapped around the gate. Neighbours that came to the scene raised suspicion that the deceased person had been murdered. When PW6 and PW7 visited the crime scene, they found the household goods scattered in the house. There were shirt buttons on the floor. The stool tables stood upside down. The fireplace had been damaged.

26. The post mortem report concluded that the deceased died of strangulation. The evidence of PW1 that the deceased fell down and did not wake up dislodged the theory that the deceased was killed at this juncture. It is possible that he was still alive but unconscious.

27. The prosecution’s case is that the quarrel, the subsequent pushing of the deceased who fell down and taken to the bedroom point to the ultimate fate of the deceased who died of strangulation. This court finds it difficult to create a nexus between the initial occurrences as witnessed by PW1 and the untimely death of the deceased. This court finds that it would have been sufficient for the prosecution to retrieve DNA samples from the belt to establish the perpetrator of the crime. There were many people who were at the scene prior to the time it is alleged the deceased was strangled to death. It is difficult to hold the accused persons responsible for the deceased’s death by strangulation with the paucity of the evidence adduced. The deceased died of strangulation yet the antecedent circumstances up to his death could not tie any relation to the cause of death. Suspicion, however strong cannot form a basis of conviction in the absence of cogent evidence connecting the accused person to the crime.

28. Since the prosecution relied on circumstantial evidence, the culpatory evidence had to be so compatible with the guilt of the accused persons that no other co-existing circumstances would weaken the chain of circumstances relied on. While it is not disputed that the deceased died of strangulation, this court is slow to conclude that the same was occasioned by the unlawful act of the accused persons, in the absence of any other person or persons.

29. In the present case, the prosecution asserted that the 1st accused person had intention to cause the death of the deceased because of the family difference that they had at the time. Evidence was adduced to the effect that the deceased and 1st accused relationship was not a harmonious one, exhibited by quarrels and fights. The prosecution thus concluded that the 1st accused person had every intention to kill the deceased based on the history of their domestic wrangles. That could have been a basis of suspicion but cannot constitute a basis for conviction. Cogent and water tight evidence is required.

30. The 2nd and 3rd accused persons were charged on the basis that they were in the deceased’s house on the night that he was killed. From the evidence adduced, there were many people at the deceased’s house that night because the 1st accused was a chang’aa dealer. No evidence was adduced by the prosecution witnesses to connect the 2nd and 3rd accused persons with the death of the deceased. The decision by the police to charge the 2nd and 3rd accused persons appear to have been a decision based on the fact that the 2nd and 3rd accused persons were the last persons to leave the deceased’s house after taking the alcoholic drink. No other evidence was placed on record to persuade this court that the 2nd and 3rd accused persons had the motive to cause the death of the deceased.

31. In the premises therefore, this court holds that the prosecution failed to discharge its burden of proof to the required standard of proof beyond reasonable doubt that the accused killed the deceased with malice aforethought. The accused persons are hereby acquitted and set free forthwith unless otherwise lawfully held.It is so ordered.

DATED AT KITALE THIS 14TH DAY OF JUNE 2022. L KIMARUJUDGE