[2023] KEHC 27487 (KLR)

Republic v Waswa (Criminal Case 55 of 2019) [2023] KEHC 27487 (KLR) (13 October 2023) (Ruling)

Neutral citation: [2023] KEHC 27487 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 55 of 2019

PJO Otieno, J

October 13, 2023

Between

Republic

Prosecutor

and

Joseph Lentrix Waswa

Accused

Ruling

1. Joseph Lentrix Waswa (“accused person”) is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the 30th day of August, 2014 at Kimilili sub-location, Kimilili district of Bungoma County, the accused person murdered Mitch Barasa Kimiti.

2. The accused pleaded not guilty to the charge and to prove its case, the prosecution called a total of nine witnesses whose evidence as summarised below.

3. PW1, Simon Shiundu testified that in the year 2014 he was on attachment as a lab technician at Kimilili Hospital and that on 29/8/2014 he went to club Etonia owned by the accused at about 10PM. At about 11 PM he was joined by his friends the deceased and another called Brian Sitati. At around 12:30PM, two Somali boys in the company of another man entered the club, ordered for drinks and then started to force girls to dance with them prompting the bouncers to intervene and they moved them to another section of the club. At about 1AM he decided to catch some air outside but from where he could see the Somalis still fighting by the pool table section and he saw a pool table break and the accused came out of the club saying, “I must kill someone” as he rushed to his vehicle which was parked directly outside the pool table area. He opened the driver’s seat and came out holding something on his right hand and pointed it towards the entrance of the club while people were rushing out including the somali’s who got into their car. He then saw sparks of fire and a loud bang. The accused was holding a pistol and he fled into his car. He rushed back to the club and found that his friend the deceased had fallen against the fall and was bleeding profusely form the head.

4. On cross examination he stated that no differences emerged at the club emerged between the accused and the deceased. He further stated that the club had three enclosed sides with the bar enclosed in a mabati and that the Somalis were taken towards the front area within the club and that the pool table was outside the club. When he went to catch some air, he said that the Somalis were at the pool table while he had left his two friends at the table. He claimed that the people fighting had two uncut sticks and that the deceased was not in the group fighting and neither was the deceased. He asserted that as he was standing outside the club he saw the deceased coming out of the club but he did not get to speak to him since he was shot as he was coming out of the club. He said that he realized that it was his friend that had been shot when he went back into the club and that the door, pool table and the car were within his sight and that the accused passed behind him.

5. PW2, Dr. David Wanikina Muke, a senior medical officer at Kimilili District Hospital testified that he conducted an autopy on the body of the deceased who had a gunshot wound on the right temporal region measuring 2x2 cm in diameter with a track going into the skull. There was soot at the entry and it laterally had a fracture of temporal and parietal bones approximately 8cm. They opened up the area and found a bullet 2cm in length at the temporal region which bullet was forwarded to the DCIO. He formed the opinion that the deceased’s cause of death was severe hemorrhage due to a head injury secondary to a gunshot and he produced the post mortem report as PEXH 1.

6. On cross examination he stated that the bullet removed from the body of the deceased was not recorded in the post mortem report and that the soot at the entry point was related to fire and whose origin was a gunshot. He claimed he could not tell how far the shooting was from the deceased but in the science of medicine, when a bullet is fired, soot is found.

7. PW3, Aggrey Mulongo Wahaulona, stated that he was a businessman and that on 30/8/2014 at about 3:40PM he received a call from one Ms. Kiprop asking him to inform the parents of the deceased that their son had been shot at Etonia. He passed by the parents’ home and they headed to club Etonia where they did not find the deceased but were met with a pool of blood. They were informed that the body had been taken to Nabwana Mortuary where they all headed to and identified the body of the deceased which on being turned and an injury on the right side of the head and was bleeding.

8. On cross examination he stated that he was not aware that Club Etonia had been burnt.

9. PW4, Patrick Lukosi Kibiti, testified that he was the deceased’s grandfather residing in Trans Nzioia County and that on 1/9/2014 at about 11AM he received a report that his grandson, Mitch Baraza Kibiti had died and together with David Barasa Kibiti and an officer they went to Lumboka Nursing Home Mortuary where a doctor conducted post mortem on the body of the deceased by operating the head of the deceased on the right ear side where a bullet was found.

10. On cross examination he said that he saw the bullet being removed from the deceased’s body though the same was not recorded in his statement.

11. PW5, Brian Sitati Mutai, testified that in 2014 he was a law student at Moi University and that on 29/8/2014 at around 11PM he was in the company of the deceased and together they headed to club Etonia where on arriving they spotted a friend, PW1, sitting at the front of the bar and with whom they exchanged pleasantries. They then ordered soft beverages and the deceased went to the dance floor where he joined him. At the dance floor he noticed a commotion with two men of somali origin being forced out by the bouncers. Since PW1 had gone out to catch some fresh air and it was getting late, they decided to leave with the deceased walking behind him. Upon reaching the main entrance he spotted the accused holding a gun in his right hand and cussing saying he was going to shoot someone. In a split second he heard a gunshot only to realize that the deceased had suffered a head shit with blood oozing from his right ear and this forced him to take cover behind the cars at the car park from where he saw the accused rush to his car and flee away.

12. On cross examination he stated that he knew the accused before the incident as he was the proprietor of Club Etonia which he frequently visited. He further stated that on the night of the incident before proceeding to club Etania he was having drinks with the deceased at a bar in sasa mall from about 9:30 PM to 11PM when they walked to Etania Club. He said they were not having alcoholic drinks at sasa mall and claimed not to have seen the accused at the club but met with him as he leaving at the entrance. He pointed that he was not involved in the commotion with the Somalis and that he kept on dancing while sitting and that he did not also witness a commotion between the somali’s and the deceased since he also kept on going to the toilet. He was further cross examined on the contents of his statement in which he recorded that he saw the accused threaten to kill someone who was near him almost an arm’s reach and that he was standing in a line of about five when the accused passed him towards the deceased and shot a man at close range. He claimed to only have had a shot but did not see the gun flush.

13. PW6, No. 42502 Corporal Benjamin Wechuli Mukinusu attached at Bungoma South CID testified that on 30/8/2014 at about 2:40AM he received a call from the OCS Kimilili C.I. Athanas Maithya informing him of a shooting at Kimilili town which required his attention. He proceeded to the scene where he took the following photographs: - 1st and 2nd photographs were general front view of the scene Etonia Club

3rd photo was the general view showing rear side of Etonia Club

4th photo was front view of main entrance of Etonia where Mitch was shot dead with the OCS and other officers being seen at the scene

5th photo was a close view of the deceased body with a pool of blood coming from his left ear

6th photo was an extreme close view showing a spent cartridge on the ground

The other photos were taken on 1/9/2014 during post mortem and are identified as below; 7th and 8th photos were extremely close view showing gun wound on the right ear of the deceased

9th photo was inner view of how the doctor was searching for the bullet lodged in the head

10th photo was an extremely closer view showing the bullet head found on the left side near the left ear

11th photo was an extreme close view of the bullet and head as the doctor held it upon removing it.

14. He also produced Gazette Notice 5853 to show his appointment and a certificate which were identified as PEXH 3-14.

15. On cross examination he stated that he was the one who took the photos.

16. PW7, Benjamin Kisaka Barnaba, testified that he was a watchman at Joharo Spare Parts which neighbored Etonia Club and that on 30/8/2013 between 1AM and 2AM while working he heard shouts at the club and when he went there he found people who looked like of somali origin fighting. He did not get to the entrance but looked from a distance, standing at a petrol station adjacent Etonia, where he saw Etonia, the accused, say stop fighting, I will shoot. He showed them something he was holding and the two men fled while the accused turned to the club’s verandah and shortly he heard a bang and he moved closer and saw someone go down with blood oozing towards his legs. The owner (the accused) went to his car and then back to the club where he came out with a man and a woman and they all left.

17. On cross examination he stated that initially the accused was not there and then he came from somewhere saying stop fighting or I shoot. He could not recall where he came from. He claimed that the accused was a short distance from the entrance and he did not get in as the bang was heard but when he heard the bang, the accused moved back and he saw someone go down.

18. PW8, David Kibiti Barasa, gave evidence that he was an employee of the County Government of Bungoma and that the deceased was his son. He stated that on 30/4/2014 he was woken up by a neighbor, Aggrey Mulongo, at about 4AM informing him that his son had been shot at Club Etonia. In the company of his wife, one Aggrey, Hellen and Emmanuel, all being his neighbors, they went to the scene which had officers and went straight to the verandah that had a lot of light and he saw a pool of blood. The police informed him that someone had been shot and his body had been taken to Nabwana mortuary. He drove to the mortuary where he saw the lifeless body of his son. He turned his body which was on the floor and saw a deep wound on the right side near the ear and blood was still oozing. He later received a call that people were at the scene searching for something and when they went to the scene a gun was discovered which the police took. He identified his son’s body for post mortem purposes but could not stand the entire process.

19. PW9, No. 231165 Chief Inspector Alex Mudindi Mwendamo testified that he was a firearm examiner attached to forensic laboratory at CID headquarters Nairobi and that his work entailed examination and identification of firearms, ammunition and their components. He stated that on 2/9/2014 their lab received from No. 79795 Cpl. Julius Oguma exhibit marked A- A Pistol S/No. B274088, Exhibit B1, C1-C7 (8 rounds of ammunition), Exhibit 2- an expended cartridge, Exhibit B3- a fired bullet. In examining the Exhibit A he established that it was a C275 combat pistol otherwise referred to as a Ceska pistol manufactured in the Czetch Republic, Calibre 9mm designed to chamber rounds of ammunition of caliber 9x19mm such as exhibit B1, C1-7. The pistol was in good condition and all components were intact including the 14 round magazine and was capable of being fired. He proceeded to test exhibit A using 3 rounds of ammunition which were picked from exhibit B2, C1-7. He then recovered test cartridges and test bullet for purposes of comparison.

20. In examining Exhibit B11 and C1-7, the rounds were of caliber 9 x 19mm and as such each of them was capable of use in the firearm such as exhibit A.

21. In examining exhibit B2 which was an expended cartridge, he compared it with exhibit A and there were no matching markings. Exhibit B3 which was a fired bullet was of caliber 9mm though its initial caliber was 9x19mm. Exhibit B3 was slightly deformed to show that it came into contact with a hard surface. He stated that there are markings left through a bullet when it goes through a barrel and that exhibit B3 had 6 land unframed areas such a right hand twist. When he compared B3 with test bullet he did not find a marching mark up and he prepared a report of his findings which was produced as PEXH 13.

22. On cross examination he explained that when a bullet leaves a gun to the target, a cartridge would be the expended shell and B2 was an expended cartridge while B3 was a fired bullet. He stated that distinctive markings are left by the barrel on every bullet that passes through it and markings are repetitive for every bullet.

23. On being examined by the court he stated that markings will be unique to a gun and that no two guns of the same make in caliber will line similar markings of bullets fired.

24. Parties have proceeded to file their respective submissions on whether the prosecution has established a prima facie case as below.

Submissions By The State 25. It is their submission that it was the evidence of PW9, the fire arms examiner that the expended cartridge which was marked as exhibit B2 was compared to exhibit A which was a pistol allegedly recovered from the scene and which was allegedly fired by the accused and PW9 drew the conclusion that there were no marching markings. PW9 also noted that the bullet retrieved from the deceased’s body was slightly deformed and that it had come into contact with a hard surface during flight and on comparing it with the test bullets, he did not find a marching markup.

26. The prosecution argues that it is prudent to look at all other available evidence before the court can make a decision on whether the expert’s evidence should be allowed or rejected in totality and places reliance on the case of Republic v Samuel Kinyua Njiru [2016] eKLR where the court held as follows;“…The above case did not elaborate on the statement to show when a doctor’s evidence can cease to be treated as that of a professional man giving independent expert evidence. I did come across a more recent British authority which seems to lay down principles to be applied by the court to determine the value to be placed on such evidence. Turner {1975} QB 834 at page 840;‘Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or had omitted to consider relevant facts, the opinion is likely to be valueless.’It would seem then that the position in England seems to be that the facts upon which doctor’s opinion is based must be disclosed and proved in evidence. Failure to prove them in evidence would render such an opinion of minimal or no value. In Kenya the position is quite clear and established, in DHALAY vs. REPUBLIC {1997} KLR 514 the Court of Appeal held:‘It is now trite law that while the courts must give proper respect to the opinion of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so.’The acid test set out in this case is that an expert’s opinion can only be rejected if there is proper and cogent basis for rejecting it. The principle was fortified in an earlier case Ndolo Vs. Ndolo {1995} KLR 390. The Court of Appeal held;‘The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held, the evidence of experts must be considered along with all other available evidence and it is the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision… of course where the expert who is properly qualified in his field gives an opinion and gives reasons upon which his opinion is based and there is no other evidence in conflict with such opinion, we cannot see any basis upon which such opinion could ever be rejected.”’

27. The prosecution further relied on the case of Peter Mote Obero & Another V Republic [2011] eKLR where the court of appeal held as follows;Once again we have anxiously considered this ground of appeal and all the authorities cited before us. We agree with Mr. Sangoro that ordinarily there is no scientific basis of a ballistics expert to state with certainty that a particular bullet or cartridge was fired from a particular gun. The learning from respectable textbooks and the holding in the Rajabu Case support that proposition. The court in that case was particularly irked by the positive assertions made by the firearms examiner in superlative terms thus:-“He was most assertive and definite in his evidence and stated the identification was made with “absolute accuracy”, that there was “no possibility of error”, and that the degree of accuracy in respect of the identification of pin impressions of shotgun cartridges was the same as that on the identification of finger prints.”The court was also skeptical about the experience of the officer in that case which they stated was limited, as it did not extend for more than five years, and were of the view that the officer pretended “to a knowledge which he does not possess and asserted a positiveness which does not exist”.

28. The prosecution submits that the PW1, PW5 and PW7 testified to having seen the accused hold something like a metal rod in his hand, a flash was seen and then a loud bang was heard and it was after discovered that Mitch had been shot. They argue that their evidence does not meet the test for a prima facie case for the below reasons;a.PW1 stated that he was with Brian Sitati and Mitch Baraza Kibiti when he saw the accused at the club who was seated 3-4meters away from their table while Brian Sitati testified that he did not see the accused at the club but only met him while leaving at the entrance.;b.PW1 stated that he saw two somali guys at the dance floor harassing some girls while PW5 who was allegedly in the club with PW1 did not see somali men harassing lady patrons on the dance floor;c.PW1 did not mention seeing PW5 walk out of the club with the deceased while PW5 testified that the deceased was behind him as they were leaving the club.d.PW1 stated that he heard the accused say he will kill someone, PW5 said he heard the accused say he will shoot while PW7 said he heard the accused say stop fighting I will shoot;e.PW1 said he saw the accused rush to his car and took out something from the driver’s seat which he believed to be a gun while according to PW7 he saw the accused come from the club already armed with a gun;f.PW7 stated that after the shooting he saw the accused go back to the club and took a woman and a man at the counter and left while PW5 and PW1 stated that after the shooting they saw the accused rush to his car and he drove off; andg.PW1 stated that the accused dropped the gun which fact was not corroborated by PW7 and PW5 and also there was no gun at the scene from the photographs presented as evidence.

29. They contend that the witnesses were not consistent and that since the incident happened at night, in a bar where there was commotion, the witnesses ought to have given a detailed explanation on the source of light, how far they were from the source of light and how long the accused was under their observation.

30. They further argue that the father of the deceased, David Kibiti Barasa, in an affidavit sworn on 26th May, 2023 had expressed that his family and the accused had embraced alternative dispute resolution mechanisms and reconciled and that he wished to have the case terminated which request is supported by the prosecution’s case since it does not point out to the guilt of the accused. They cite the case of Benjamin Koome Kaithu v Republic [2020] eKLR in that regard where the court observed as follows;21. In any event, the Court is under a duty to promote Alternative Dispute Resolution (“ADR”) mechanisms as provided for under Article 159 (2) (c) of the Constitution. In Mary Kinya Rukwaru v Office of the Director of Public Prosecutions & another [2016] eKLR the court observed: -“I would agree with Counsel for the Interested Party that the Constitution of Kenya 2010 recognizes that justice is not only about prosecution, conviction and acquittals [and that] it reaches out to issues of restoration of the parties [with] court assisted reconciliation and mediations are the order of the day with Article 159 being the basic test for that purpose.Accordingly, Alternative Dispute Resolution (ADR), including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms, are available means of settlement of criminal cases under the Constitution, and the Court is enjoined under Article 159 to promote ADR”.22. Further, the DPP himself has cast doubt on the efficacy of the evidence in his possession if he proceeds with the charges. Continuing with the prosecution might be an exercise in futility.”

31. The prosecution is thus praying that this suit be terminated under section 82 of the Criminal procedure Code as read with article 157(6)(c) and 157(7) of the Constitution of Kenya, 2010.

Accused Person’s Submissions 32. It is his submission that the prosecution has failed to prove the offence of murder against the accused beyond reasonable doubt because this is a case choreographed in order to punish the accused simply because he was the proprietor of club Etonia. He argues that it was the prosecution’s case that the accused was licensed to have a pistol which pistol was recovered at the crime scene and one which was used to murder the scene. He claims that this assertion was disproved by the PW9, the firearms examiner who testified that the firearm did not match the cartridges that were collected at the scene of the crime and the bullet that was apparently found lodged in the head of the deceased thus exonerating him of the charges.

33. He submits that it was the evidence of PW1, PW5 and PW7 that the accused was standing at a distance from the deceased when they heard gunshots. PW2, Dr. David Wanikina Muke testified that when he carried out post mortem on the body of the deceased he found soot on the temporal region and according to PW9, the firearm examiner, soot is found at the point where the gun is fired and not on the target to mean that the person who shot the deceased was very close to him and in fact had placed the gun on the temporal area of his head.

34. He questions if the bullet that was discovered was the deceased body was the same forwarded to the fire arms examiner since PW2 discovered soot while the bullet forwarded for examination was bent to mean it had it a surface while the presence of soot was to imply the bullet did not hit a surface. He thus claims that the prosecution has failed to discharge its burden of proof against the accused beyond reasonable doubt and cites the case of Bakare v State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria, stated:“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability. (emphasis)”

35. He submits that the inconsistencies of the prosecution witnesses are grave as to require that the accused be found not to have a case to answer. He argues that for instance PW1 first testified before Hon Justice Hellen Omondi by stating that he saw the accused get something from his car and did not describe it but when testifying before Hon. Justice Abida Aroni when the matter started denovo he stated he saw the accused remove a weapon from his car.

Analysis 36. What is before this court at this juncture is to determine whether the prosecution has presented a prima facie case that would warrant this court to call upon the accused person to give their defence.

37. According to section 211 of the Criminal Procedure Code, a prima facie case is established where the evidence tendered by the prosecution is sufficient on its own, for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person.

38. A prima facie case had been explained by the court in Ronald Nyaga Kiura vs. Republic [2018] eKLR where it was observed as follows: -“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of Ramanlal Bhat -vs- Republic [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”

39. Both the prosecution and the accused person appear to agree that the evidence of the prosecution was marred with inconsistencies. I have gone through the evidence tendered by the witnesses and I have noted that this is a case where three witnesses that is, PW1, PW2 and PW7 profess to have witnessed the incidents leading up to the shooting and killing of the deceased at Club Etonia which was owned by the accused person. Can their evidence and that of the other prosecution witnesses lead to the conclusion that it was the accused who shot and killed the deceased thus requiring the accused to be placed on defence to rebut the same?

40. The events leading to the death of the deceased is that there was a commotion at the club and the accused appearing enraged went to his car, according to PW1, and took something from the driver’s seat and pointed it towards the entrance of the club. Though using different words, PW1, PW5 and PW7 all testified that the accused commanded the commotion to stop or lest he will shoot someone. Indeed, someone was shot and according to PW1 and PW5, the deceased was shot as he was coming from the club and approaching the entrance. Though not mentioned by PW1, PW5 stated that he was walking with the deceased who at the time was behind him. PW1, PW5 and PW7 all agree that at the time of the shooting the accused was standing outside the club a few meters from the entrance. The question that then begs to be answered is, is the accused person the person that shot the deceased leading to his death?

41. The accused’s gun was taken together with its ammunition and the cartridges collected from the scene which were then forwarded by the OCS Kimilili to PW9, a firearm examiner. In addition to that, the bullet extracted from the deceased’s head was also forwarded and upon his examination, PW9 testified that Exhibit A, a Ceska pistol, did not march with exhibit B2 which was an expended cartridge. He further stated that the bullet extracted from the deceased’s head and marked as Exhibit B3 was slightly deformed to show that it came into contact with a hard surface. If the accused’s gun was not the one responsible for the fatal shooting of the deceased does it mean that there was another gun at the vicinity which was fired without anyone noticing due to the commotion in the club. That possibility has not been eradicated and therefore to place the accused on his defense would be akin to requiring him to fill the gaps in the prosecution’s case and to clarify the doubts raised by the prosecution witnesses. The court is guided by the court of appeal in Anthony Njue Njeru vs. Republic [2006] eKLR where it was held that;“Having expressed himself so conclusively we find it difficult to understand why the Learned Judge found it necessary to put the Appellant on his defence. Was there a Prima facie Case to warrant the trial Court to call upon the Appellant to defend himself? It is a cardinal principle of law that, the onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if at the close of the Prosecution case, the case is merely one,‘Which on full consideration might possibly be thought sufficient to sustain a conviction’Taking into account the evidence on record, what the Learned Judge said in his Ruling on no case to answer, the meaning of a Prima facie Case as settled in Bhatt’s Case(supra), we are of the view that the Appellant should not have been called upon to defend himself as all the evidence was one record. It seems the Appellant was required to fill in the gaps in the Prosecution case.”

42. The court finds that, the evidence in court up to this juncture establishes not a prima facie case to merit the accused being put on his defense. In addition, the prosecution has acknowledged and candidly submitted that their case does not point out to the guilt of the accused and it would therefore be an exercise in futility to proceed with this case and place the accused on his defense. The court finds that the accused has no case to answer and shall not be called upon to defend himself. He is therefore acquitted under Section 306(1) of the Criminal Procedure Code.

43. The court would pen off at this juncture but there occurred a development which merits a comment. The deceased’s father, David Kibiti Barasa, has filed an affidavit sworn on 26/5/2023 and indicated that his family has since reconciled with the accused and they do not wish to proceed with the case.

44. To this court, the dispute, even if the offence be murder, belongs to the parties. In a murder trial, even though the offense is pursued on public interest to guide the right to life, the family of the deceased as the immediate victims of crime are entitled to be heard at all times the matter pends before the court. The so far unchanged view of this court is that courts exist for resolution of disputes and that alternative dispute resolution processes need not take the conventional route of arbitration, mediation, conciliation and negotiations only. The constitution now recognizes and acknowledges traditional forms of dispute resolution as due for encouragement and promotion. To this court, the words of article 159(2)(c) are permissive enough for parties to any dispute to just walk into court and tell the court that they no longer want the court to engage in their dispute. The only limit and constraint is that the court needs to be satisfied that the settlement and the process employed to reach it do not contravene the bill of rights, be repugnant to justice and morality and that the results of the settlement are not themselves repugnant to justice and morality. The benefits of out of court settlement need no gainsaying but one only needs to underscore the reparation and reinstatement of relations. That can only be done by the parties for the court lack the ability to do same.

45. From the foregoing standpoint, had the court not done this decision by the time the affidavit was filed, nothing would have stopped it from adjudging the dispute settled, unless it was demonstrated that the settlement ran affront article 159(3). That however is now water under the bridge on the basis of this judgment. Let the accused be henceforth set at liberty, unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 13TH DAY OF OCTOBER, 2023. PATRICK J O OTIENOJUDGEIn the presence of:Ms. Chala for the ProsecutionMr. Amolo and Ms. Ashioya for the AccusedNo appearance for Mr. Murunga for the VictimsCourt Assistant: Polycap Mukabwa