[2022] KEHC 10736 (KLR)

Republic v Wekesa & 6 others (Criminal Case 33 of 2019) [2022] KEHC 10736 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10736 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 33 of 2019

SN Riechi, J

May 6, 2022

Between

Republic

Prosecutor

and

Maurice Wekesa

1st Accused

Alex Mukhebi

2nd Accused

Emmanuel Wekesa

3rd Accused

Dennis Wafula

4th Accused

Hudson Wanjala

5th Accused

David Simiyu

6th Accused

Jacob Chumba

7th Accused

Judgment

1. The accused Maurice Wekesa(accused 1), Alex Mukhebi(accused 2), Emmanuel Wekesa(accused 3), Dennis Wafula (accused 4),Hudson Wanjala(accused 5), David Simiyu(accused 6) and Jacob Chumba(accused 7) are charged with offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that Maurice Wekesa(accused 1), Alex Mukhebi(accused 2), Emmanuel Wekesa(accused 3), Dennis Wafula(accused 4), Hudson Wanjala(accused 5),David Simiyu (accused 6) and Jacob Chumba(accused 7) on the 11th day of August, 2019 at Sango village, Naitiri sub-location Bungoma North Sub County within Bungoma County murdered Martine Wawire.

3. PW1 Risper Akube Wawire was the mother of the deceased Martine Wawire. He was her 4th born son. On 11. 8.2019 she was at home asleep in company of her daughter Mildred Wawire when at 12 a.m. while asleep Mildred received a telephone call and she ran out. Risper then received a telephone call from her son Jairo who informed her deceased was being killed at Sango Market. She called the assistant chief and sought his help. She then received a telephone call from Mildred who informed her they had killed deceased. She went to the market and found people with one acre fund lamps. She saw deceased lying down. She saw Maurice Wekesa (accused 1) tie a chicken with a rope on his neck. She saw David Simiyu (accused 6) cut the deceased with a panga. She saw accused 2 Alex Mukhebi who was armed with a club hit deceased. He saw accused 7 Jacob Chumba who was armed with an iron rod hit the deceased on the neck. She saw accused 3 Emmanuel Wekesa cut the deceased on the head, accused 4 Dennis Wafula cut deceased on the head with a panga. They all continued beating him for 30 minutes. Then her son Geoffrey and Mike took deceased to Naitiri hospital where he died while undergoing treatment.

4. On being cross-examined by Mr. Murunga advocate for the accused she stated that when she arrived at the scene she found about 20 people present. She identified all the accused using the light from the one acre fund lamp which Wilberforce Wekesa had. On arrival she saw Maurice Wekesa (accused 1) with 2 chicken. She became unconscious about 15 minutes upon arriving, but saw accused before she became unconscious.

5. PW2 Mildred Wawire the sister of the deceased was asleep when she heard her mother’s mobile phone ring. She picked it and Jairo her brother informed her deceased was being killed at Sango market. She ran there and found deceased lying down and many people present. She then informed her mother. She saw the deceased was not able to speak.

6. In cross examination, she stated she did not see the persons who beat the deceased as it was dark, and was emotional and crying.

7. PW3 Geoffrey Weyusia Wafula was at his home when he heard screams from Sango market. He went there. On arrival he found accused 1 Maurice Wekesa who was speaking on phone saying they had finished the chicken thief. He also saw accused 7 Jacob Chumba and accused 4 Dennis. He saw the deceased lying down who was naked and had cut wounds on the head and private parts swollen. He was able to observe him well as Wilberforce had the one Acre fund lamp. He then went home.

8,.On cross-examination, he stated he did not go close to the body but saw 6 people but did not identify them because of darkness and did not see anybody beat the deceased.

9. PW4 Caleb Sifuna testified that on the material day Florence gave them work for landscaping. Florence then called accused 4 Dennis Wafula and instructed him to give the deceased a chicken to sell to Chumba as payment for the work he had done. They also had changaa at Florence’s home. Accused 4 Dennis gave deceased the chicken and deceased started going home. They left together and parted at Sango market. At 10 p.m. he heard screams from the home of accused 2 Alex Mukhebi. On arrival he met Dennis (accused 4) Wanjala (accused 5). He saw accused 1 Maurice Wekesa and 4 Dennis Wafula holding the deceased and taking him towards Sango market. He saw accused 1 Maurice cut the deceased on the head with a panga. Accused 2 Alex hit him on the back with a club. Accused 4 then also beat him with a bicycle spring, Florence hit deceased on the head, accused 7 Jacob Chumba hit Him on the chest and accused 6 David Simiyu removed clothes the deceased was wearing. Caro brought 2 chicken and they tied with a rope on his private parts. Later Willy and Geoffrey came and took him to hospital.

10. On being cross examined by Murunga for accused he stated that he went to the scene at 10 p.m. and saw about 7 people. He saw the deceased lying down with injuries on the head, legs and back.

11. PW6 Geoffrey Erima Wabwire a bodaboda rider was informed by his mother Rispar that deceased had been beaten at Sango market. He took his motor cycle and rode there. On arrival he found the deceased private parts had been tied with a rope. He untied him and with assistance of Wilson Wabwire took the deceased to hospital, despite being prevented by accused 1 Maurice accused Alex and accused 3 Emmanuel. The deceased died while undergoing treatment at Naitiri sub-county hospital.

12. On cross examination by Murunga he testified that he found about 200 people at the scene. He was afraid when he saw the large number of people and did not inform police that he saw anyone beating the deceased.

13. PW7 Wilfred Wawire the brother of deceased commenced his testimony on 27. 10. 2020 but he was stood down due to poor internet connection to prisons where accused 1 was. He was never recalled by the prosecution to continue testifying and complete his testimony.

14. PW8 No. 113223 P.C Felix Oduor Jowi the Investigating Officer recorded witness statements and caused the accused to be arrested and charged with present offence.

15. The accused gave sworn statement, in their defence. Accused 1 Maurice Wekesa Nanyiri testified that on 11. 8.2019 he was in his house when he heard screams from outside thief! thief!. He went there and on reaching about 40 meters from the house of Alex (accused 2) he found people surrounding the deceased whom he knew. He was being questioned and said he was with Wilberforce, Kevin and Mende. He advised the Mob to take the deceased to police. They started singing circumcision songs and left. He went back to his house and called the assistant chief. The next day the village elder came and they went to the home of Florence who explained how they had broken into her house. He saw mosquito net strings, banana fiber, red slippers and cigarette packet at the scene. He then went back home. On 14. 4.2021 he was arrested and later charged with the present offence. In cross examination he stated that when he arrived deceased was sitting and was able to walk away when he left with the mob.

16. Accused 2 Alex Mukhebi Nanyiri testified that on 11. 8.2019 he was asleep when he heard screams of mwizi! mwizi! from Sango market. He did not go out. The next day he went to collect milk when he saw 2 live chicken and dead one and he was told they were recovered from a thief. He stated in cross examination that he did not leave his house that night.

17. Accused 3 Emmanuel Wekesa Masinde testified that on material day he went to Nasianda market to watch football and then came home and slept. He did not hear any screams that night. On August 12, 2019he was at Sango market when he heard people say a thief had stolen chicken from mama Florence. He later heard deceased had died. On September 14, 2019 he was arrested by police on allegation that he had trespassed on the farm of Risper (PW1). Police demanded Kshs 20,000 but did not give them. He was then charged with present offence.

18. Accused 4 Dennis Wafula Wanyama stated that on August 11, 2019he was in the house of Florence who is the grandmother. He went to sleep and at 3 a.m. he heard Florence calling him. He went there and she informed him people and broken into the house and stolen chicken. He checked and found only 17 hens present. He saw there were footmarks and found one hen in the sugar cane farm. He took it home and Florence called the chief, assistant chief and village elder. The next day he went to Sango Market and saw 2 hens and human faeces. He was later arrested by police.

19. On being cross examined by M/s Omondi for state he denied that the deceased worked at home of Florence and that she sells changaa. He denied that he carried the deceased to Sango market.

20. Accused 5 Hudson wanjala Nanyiri testified that on August 11, 2019he was at his home and after having supper he slept. The next day he went to Sango market where he saw 2 hens. Later he heard deceased had been beaten on suspicion of stealing chicken. He was later arrested.

21. Accused 6 David Simiyu Kasala testified that on August 11, 2019he was at his home when he heard screams at 8 p.m. from the house of Florence. He went there and she told him people had stolen her hens. He saw slippers, Mosquito net rope and a packet of cigarette. He advised her to report to the chief and we went back to his house to sleep. On September 14, 2019 he was arrested by police officers.

22. Accused 7 Jacob Chumba Kisebe testified that on August 12, 2019 his first wife Caroline informed him that thieves had stolen the hens of Florence. He went and saw 2 hens at Sango market alive and one dead. He went to look for Florence but did not get her. He went to Kitale and later was arrested by police and charged with present offence.

23. The counsel for accused called DW8 No. 238442 Chief Inspector Salome Khabati who produced OB extract No. 2/12/8/2019 where Florence Bwire Wanyama reported that on August 18, 2019at 8 p.m. thieves broke into her house and stole 8 hens. She screamed and neighbours came and beat the suspect and said they were taking him to the police station. The OCS visited the scene and recovered slippers suspected to belong to the suspect.

24. The accused are charged with offence of murder contrary to section 203 of the Penal Code. Section 203 provides.“Any person who of malice aforethought causes death of another person by any unlawful act or omission is guilty of murder.”

25. The ingredients of the offence of murder which the prosecution must prove are:a)The fact and cause of deathb)The unlawful act or omission that caused the deathc)That it is accused who occasion the unlawful act or omission or inflicted the injuries that caused the deathd)That the accused had the intention of causing death or malice aforethought.

26. PW6 Dr. Okumu Otieno Moses who produced the post mortem report prepared by Dr. Patrick Mutisia who performed the post moterm on body of deceased testified that the deceased had multiple abrasions, open fracture on left leg, and open depressed fracture at back of the head. He formed opinion that the cause of death was due to severe head injury, caused by blunt trauma. He filled the post-mortem form therefore confirmed the fact of death. He also testified that the unlawful act that caused the death was assault using blunt force. The prosecution must establish who inflicted the injuries on deceased.

27. PW2 Mildred Wawire the sister of the deceased testified that on receipt of information that deceased was being killed at the market she went there and found many people and deceased lying down. She stayed there for 30 minutes but for all the time she was there, she did not see anybody beating the deceased.

28. PW3 Geoffrey Wepossi Wafula went to the scene and saw Chumba 9accsued 7) Dennis (accused 4) Carol Chumba and Florence Kola. He saw the deceased lying down naked and with cut wound on the head, and private parts swollen but did not see anybody beating the deceased.

29. PW5 Geoffrey Erima Wabwire went to the scene using his motor cycle where he saw accused 1 Maurice, Accused 4 Dennis, Accused 6 David and accused 7 Jacob. He found the deceased was bleeding and his private parts tied with a rope. He was assisted by Wilson and took deceased to hospital. He confirmed that he did not tell police that he saw any person beating the deceased.

30. These 3 witnesses did not testify that they saw any of the accused person assaulting the deceased.

31. PW1 Risper Akutu Wawire the mother of the deceased testified stating:“I went to the market. I found many people with acre fund lamps. I saw the deceased lying down. They were cutting him with panga. I saw Morris Wekesa him tie a Chicken on his neck. Morris is accused 1. I also Daudi Kasala. He was cutting the deceased with a panga on the head. He is accused 6. I then saw Mukhebi. He is accused 2. He was armed with a club. He beat him. I then saw Chumba. He is accused 7. He was armed with an iron rod. He hit deceased on the neck. The deceased was not having any clothes on. I saw Emmanuel. He is accused 3. He was armed with a panga. He cut the deceased on the head. Accused 4 also cut the deceased with a panga. On the head. They continued beating him for about 30 minutes.My son Geoffrey and Willie took the deceased to hospital. Accused 6,7 wanted to stop him from the scene. He was taken to Naitiri hospital. At 4 a.m I received information deceased had died. I went there and confirmed the body was taken to mortuary.”PW4 Caleb Sifuna in his evidence testified: “At 10 p.m. I heard screams from home of accused 2. I went there. I found many people. I asked Eliud what had happened. I met Morris (accused1) Mukhebi (accused 4) Dennis (accused 4) Wanjala (accused 5). I saw accused 1 and 4 holding the deceased taking him towards Sango Market. I saw deceased with a chicken tied on his private parts. I saw Morris tying him. Accused 1 was armed with a panga. I saw him cut him on the head. Accused 2 then came armed with a rungu. He hit him on the back. Later accused 4 came with a bicycle spring he continued beating him on back and buttocks. Florence came with an iron rode Y-10 and hit on the head. Florence called Caro telling her people had stolen her chicken. Caro came with Jacob (accused 7). Accused 7 hit the deceased on the chest. Caro had a piece of wood he hit him on the back. Later David (accused 6) came he was not armed. He had a torch. He then removed the deceased clothes. Caro brought 2 other chicken and they tied him on his private parts. Caro said he got the 2 chicken in the sugar farm.”

32. In cross examination by Murunga for accused he stated: “We parted at 7 p.m. I heard the screams at 10 p.m. My home is about 20 minutes walk to Sango market. It is about 2 km. it was at 10 p.m. when I heard screams. I found Mildred Maligo the sister of deceased. I did not find the mother there. I also found Wilfred Malito. I found him in the sugar cane of Muheho. There were about 7 people. It was dark. We reached Sango market at around 11 p.m. I saw deceased had injuries on head, legs and back. He was lying facing down. I was able to see them from Morris who had a torch. Mukhebi (accused 2) had the one acre fund lantern. Caro had not arrived then. Florence was there.”

33. PW1 Risper and PW4 Caleb in their evidence they stated that they saw the accused present and what role each accused played in assaulting the deceased. They however agree that it was at night and dark. They also agree that there were many people. PW1 Risper stated that she was able to see them from the torch light and a one acre fund lamp. PW4 Caleb however stated in cross examination that he only saw Mildred (PW2) but Risper (PW1) the mother was not there.This raises the issue of proper identification of the accused by the two witnesses PW1 Risper and PW4 Caleb. Positive identification of an accused as the perpetrator of an offence is a fundamental requirement of criminal law. This is so for two reasons, first that an offence is committed by a person or entity and the punishment is meted out to the offender.

34. In Kariuki Njiru & 7 others v Republic, the court held inter alia that the “law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”

35. To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness's testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness's intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness's testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before. It is necessary to test the evidence of identification, and take great care and caution to ascertain whether the surrounding circumstances were favourable to facilitate proper identification. These in my view include light, time spent with the assailant, clothes or any item that the witness may positively identify and whether the accused was known to the complainant. Such evidence may be reinforced by sufficient collaboration and where there is no collaboration the court needs to treat it with caution. Thus, in evaluating the accuracy of identification testimony, the court should also consider such factors as:-a)What were the lighting conditions under which the witness made his/her observation"b)What was the distance between the witness and the perpetrator"c)Did the witness have an unobstructed view of the perpetrator" dd)Did the witness have an opportunity to see and remember the facial features, body size, hair, skin, color, and clothing of the perpetrator"e)For what period of time did the witness actually observe the perpetrator"f)During that time, in what direction were the witness and the perpetrator facing, and where was the witness's attention directed"g)Did the witness have a particular reason to look at and remember the perpetrator"h)Did the perpetrator have distinctive features that a witness would be likely to notice and remember"i)Did the witness have an opportunity to give a description of the perpetrator" If so, to what extent did it match or not match the accused, as the court finds the accused's appearance to have been on the day in question"j)What was the mental, physical, and emotional state of the witness before, during, and after the observation"k)To what extent, if any, did that condition affect the witness's ability to observe and accurately remember the perpetrator"

36. Considering the circumstances obtaining as stated by PW1 Risper and PW4 Caleb and the other witnesses that it was at night and dark; and there were many people, I find that the same were not favourable for positive identification of the accused. I therefore find that PW1 Risper and PW4 Caleb identification of accused as the persons who inflicted injuries on the deceased was not free from possibility of error.

37. In the result I find the prosecution has not proved the charge of murder against the accused beyond reasonable doubt. I therefore find Maurice Wekesa (accused 1), Alex Mukhebi(accused 2), Emmanuel Wekesa (accused 3), Dennis Wafula (accused 4), Hudson Wanjala (accused 5), David Simiyu (accused 6) and Jacob Chumba (accused 7) not guilty of the offence of murder and acquit each one of them under section 215 C.P.C.

38. I order accused Maurice Wekesa (accused 1), Alex Mukhebi(accused 2), Emmanuel Wekesa (accused 3), Dennis Wafula (accused 4), Hudson Wanjala (accused 5), David Simiyu (accused 6) and Jacob Chumba (accused 7) be set at liberty unless otherwise lawfully detained.

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