[2022] KEHC 14792 (KLR)

Republic v Wekesa (Murder Case E023 of 2021) [2022] KEHC 14792 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14792 (KLR)

Republic of Kenya

In the High Court at Bungoma

Murder Case E023 of 2021

DK Kemei, J

November 2, 2022

Between

Republic

Prosecution

and

Esau Masinde Wekesa

Accused

Ruling

1. The accused herein, Esau Masinde Wekesa, is charged with the offence of murder contrary to sections 203 as read with section 204 of the Penal Code, Cap 63. It is alleged that on the June 12, 2021 at Biliso A village in Bumula Sub County within Bungoma County, he murdered, Chrispinus Wanjala Masinde. On February 15, 2022 the accused denied having committed this offence and as such, a plea of not guilty was entered thereby setting in motion all the ingredients of the offence charged to be proved by the prosecution in order to secure a conviction against him.

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

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

4. The above test in the criminal procedure code has been amplified inR V Galbraith 73 CR Appeal R 124 as follows; -a)If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty. The judge will stop the case.b)The difficult arises when there is some evidence, but it is a serious character, for example because if inherence weakness or vagueness or because it is inconsistent with other evidence.c)When the judge comes to the conclusion that the provision evidence taken its high-rise, in such that a jury directed could not properly convict upon it, it is his duty upon a submission being made to stop the case.d)Where however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness reliability or other matters which are generally speaking with the province of the jury, and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

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

6. The prosecution called a total of thirteen (13) witnesses in an attempt to prove its case. PW1 was Scholastica Nafula Rang ’a who testified that she is the assistant chief of Muanda sub location Bumula Division in Bumula Sub County. She told the court that the accused herein killed his father. She recalled that on June 12, 2021 while at her homestead, a village elder came to inform her that the accused had killed his father. She quickly alerted the police officers. She stated that as she tried to leave the compound, the accused herein turned up while armed with a panga. She pleaded with him to calm down and that he handed over the weapon to her. She added that the police arrived and picked him up and that they went to the scene where they found the body of the deceased lying down outside his house with several cuts and that the body had been covered with avocado leaves and branches. On cross-examination, she told the court that she surrendered the murder weapon to the police but which had not been shown to her in court. On re-examination, she stated that the name Boaz is one of the accused’s names.

7. PW2 was Chrispinus Wangila Khaemba who testified that on June 12, 2021 at around 10. 00 am he received a report that there was a problem in the home of the deceased and on rushing there he found a large crowd that was claiming that the accused had killed his own father. He quickly rushed to the home of PW1 and on the way he met with the accused who was armed with a panga. He reached the home of Pw1 who later alerted the police of the incident. On cross-examination, he stated that he found the accused at the home of Pw1 and that he did not know the genesis of the incident leading to the death of the deceased. On re-examination, he stated that he is the one who alerted Pw1 on the incident.

8. PW3 was Judith Wanjala who testified that on June 12, 2021 while in her compound, she heard someone screaming and that there were noises suggesting someone was cutting trees. She tried to peep through a maize plantation and saw the accused crying while cutting trees. She did not approach him but she later established that the accused had cut his father and then covered his body with some tree branches. She quickly alerted PW2. The accused later on tried to burn the deceased’s body by heaping some tree branches all over the body. She added that she alerted the village elder and that villagers helped put out the fire and removed the trees that had covered the deceased. On cross-examination, she told the court that she did not witness the accused cutting his father with a panga and that she had not been shown the panga in court.

9. PW4 was Anthony Nyongesa who testified that the accused herein is his younger brother. He recalled that on June 12, 2021 he suddenly heard screams from the deceased’s house and on rushing there he found the accused armed with a panga while the deceased was on the ground. He quickly raised an alarm and rushed to PW1’s house. The deceased and the accused were alone at the scene and he did not speak to any of them. On his way back home, he met with PW2 and they proceeded to the scene where they found the accused had place tree branches on the body of the deceased. The deceased had been cut on the back of the head and that he formed the opinion that the accused might have inquired from the deceased about the proceeds from some land sale. On cross-examination, he told the court that they referred to the accused as 'Boss' and not 'Boaz' and that the accused was in possession of a panga but he has not been shown in court.

10. PW5 was Wycliff Wanyonyi who testified that the accused is his nephew. He recalled that on June 12, 2021 while away from his home he found the accused had killed the deceased and saw him armed with a panga and that people who were gathered in the deceased’s compound were afraid of him. The deceased’s body had panga cuts on the back of her head. He added that he did not know the reasons behind accused’s actions. On cross-examination, he testified that the deceased had sold a portion of his land and that the accused wanted a portion of the proceeds with which to purchase a motor bike.

11. PW6 was Jackline Wanyonyi who testified that on June 12, 2021 while on a search for sisal ropes, she heard screams from her compound. She quickly stopped what she was doing and rushed there to find her daughter in law who informed her that the accused had killed his father, the deceased herein. She found the deceased already dead and that the accused had heaped logs and branches on his body and set it on fire. She saw the deceased’s neck and back had been cut and that the accused had also placed plastic containers on top of his body to hasten the burning. She called for help from the villagers. On cross-examination, she told the court that she did not see the accused herein at the scene of crime and that she had not witnessed the incident. She stated that she heard the villagers mentioning the name ‘Boss’ as she approached the scene. She finally stated that she did not see the assault weapon at the police station and that none has been shown to her in court. On re-examination, she stated that ‘Boss’ refers to Esau and that anyone mentioning the name ‘Boss’ will be referring to Esau.

12. PW7 was Fridah Nekesa Shikuku who testified that on June 12, 2021 while in her compound, her sister-in-law, Colleta, alerted her that the accused had killed his father. She quickly rushed to the deceased’s house where she found the deceased lying on the ground. She retreated back to her home terrified and informed PW6 to rush to the scene. She told the court that she saw that accused cutting an avocado tree and did not see any other person there. She told the court that the deceased had sold a piece of land and it seems there was dispute over money which led to the death of the deceased. On cross-examination, she told the court that the accused is her brother-in-law and that she did not find any other villager at the scene. She also told the court that she has not seen any panga at the police station or in court.

13. PW8 was Cosmas Opuri Nyongesa who testified that on June 16, 2021 he witnessed the post mortem examination on the body of the deceased at Bungoma Hospital mortuary. He observed several cut wounds on the head, neck and right hand. The cuts were deep and he learnt that the cause of death was severe bleeding. He stated that the accused is his last-born brother who lived within the compound of their parents and that he had been in good terms with the deceased and was surprised as to what had transpired between the accused and their father. On cross-examination, he told the court that he did not witness the incident and that the assault weapon had not been shown to him in court.

14. PW9 was Colletta Naliaka Wanyonyi who testified that on June 12, 2021 while weeding her farm, the accused and two others passed by heading towards the accused’s home. She saw the accused separately heading into his home and that her home was 100 metres from that of the accused. She stated the accused was then carrying a panga and that she witnessed him cutting the deceased on the head. She quickly rushed to inform PW7. On the way back she saw accused cutting a tree in their compound which fell on the deceased’s body. The villagers and the police later arrived at the scene. On cross-examination, she told the court that she saw the accused cutting the deceased and that she was the first person to arrive at the scene. She also stated that she did not see the weapon at the police station and that he same had not been shown to her in court. On re-examination, she stated that a fire was lit on the legs of the deceased but that she was not there when the fire was lit.

15. PW10 was Dr Kosgei Eric who testified that he is based at Bungoma County Referral Hospital as a Senior medical officer. He performed a post mortem on the body of the deceased herein on June 16, 2021. On the examination of the external appearance, he observed a deep cut wound on the right hand and the right forearm. There was a fracture of the right ulna and radius proximal bones. There was a deep cut on the right temporal region with a fracture of temporal bone. There was a deep cut wound on the scalp (parietal region). He opined that the cause of death was haemorrhagic shock due to deep cut wounds. He produced the post mortem report dated June 6, 2021 as Pexh 1. On cross-examination, he told the court that the injuries were due to a sharp object.

16. PW11 was No xxxx SGT Harrison Mugumo who testified that he is based at Bumula DCI as an investigating officer. He recalled that on June 12, 2021 while in the office, he received a report of murder that took place in Biliso Village. In the company of his DCIO and OCS Bumula, they rushed to the scene of crime where they found the deceased under avocado branches which were placed on the body. He also noted that there were plastic containers heaped on the body of the deceased. He noticed the body had deep cut wounds on the head and hand and that the suspect was not at the scene as it was reported that he had surrendered himself and the weapon to PW1. They proceeded to PW1’s home and who handed over the accused and the weapon. He observed the weapon had fresh blood on it and took the body to the mortuary. They received the statements of various witnesses and also interrogated the accused who made a confession. He told the court that they proceeded to charge him with the offence of murder. He produced the assault weapon as Pexh 2. On cross-examination, he told the court that the avocado leaves on top of the deceased’s body were fresh and not burnt and that the accused surrendered himself to PW1. He also stated that one of the companions of the accused namely Kevin had not been traced despite him being a vital witness.

17. PW12 was No xxxx CIP Evans Mwangi who testified that he is the current DCIO Bumula sub-County and that on June 13, 2021 while in his office, PW11 briefed him that the accused in this case had confessed to the crime. He immediately ordered the accused to be brought to his office and on interrogating him, the accused confessed to injuring and killing the deceased. He informed the accused that he needed to prepare a proper confession and that he proceeded to read to him his rights and informed him that he was at liberty to have his advocate present. During the recording of the confession, he enquired whether the accused was coerced to confess and that the accused maintained that he was doing it out of his own volition. He established from the accused that he needed his brother one Cosmas Opuri to be present during the recording of the statement. He stated that he managed to contacted the said Cosmas Opuri. After caution, he proceeded to record his statement on June 13, 2022. He stated that the accused stated that there was a disagreement between him and the deceased over Kshs 50,000/= which were proceeds from the sale of the land and which he needed to pay as deposit for a motorcycle. He stated that an argument arose in the course of the discussion and that the deceased almost hit him with a club but he managed to ward it off and snatched it from him. He further stated that the deceased attempted to cut him with a panga but he managed to wrench it from him and used it to cut him until he died. He later handed himself to the assistant chief who escorted him to the police. After that he proceeded to prepare a certificate confirming that the confession had been made freely and that the accused signed the same.

18. Counsel for the defence objected to the production of the confession as the same had been obtained under duress as his client was harassed and compelled by the police to confess. It was also claimed that the same was made contrary to the accused’s constitutional rights and section 26 of the Evidence Act.

19. Counsel for the prosecution submitted that the assertions by the defence on duress were unsubstantiated and mere allegations. It was submitted that the Confession Rules (out of Court) 2019 were complied with by the respective officer and it was clear that the accused voluntarily and willingly in the presence of his brother made a confession and that the same ought to be accepted as no evidence was availed to prove the accused’s rights were violated and that the confession be admitted in evidence.

20. This court having carefully reviewed the sentiments of both counsels, it was satisfied that the accused’s confession was taken in accordance with the Evidence (Out of Court Confession) Rules and was admissible under section 26 of the Evidence Act. The court allowed PW12 to proceed and produce the confession document as evidence. PW12 thus produced the statement of accused together with the certificate of confession dated June 13, 2021 as Pexh 4 (a) and (b) respectively.

21. PW13 was Polycarp Luta Kweyu who testified that he works at the Kisumu Government Chemist. He recalled that on June 18, 2021 PW11 submitted a panga with black rubber handle marked as 'A' and blood sample of Chrispinus Wanjala Masinde (deceased) marked 'B' for analysis. It was required that they determine the genetic relationship between the two items. It was his finding that the stains on the panga tested positive for blood of a human being. The DNA comparison profiles led him to the conclusion that the DNA profile from the panga were similar to that of the deceased. He produced a report dated November 24, 2021 as Pexh 5 and the exhibit memo dated June 17, 2021 as Pexh 3. On cross examination, he told the court that he did not know the person who used or handled the panga.

22. Thereafter, prosecution closed its case and that the learned counsels indicated that they will not file submissions at this stage but opted to rely on the evidence so far tendered.

23. At this stage of the proceedings, the prosecution is under a duty to establish a prima facie case against the accused so as to warrant him to be called upon to make a defence. The question on the prima facie case has been extensively considered by the courts and other legal texts by scholars. The Oxford Companion of Law at page 907 gives the definition as:'A case which is sufficient to all an answer while prima facie evidence which is sufficient to establish a fact in the absence of any evidence to the contrary is not conclusive.'

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

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

26. In criminal trials that burden of proof is always on the prosecution. A trial court is therefore enjoined by law to determine whether at the conclusion of the prosecution’s case there exists a case discharging that burden of proof. I have considered the prosecution evidence. The issue to be determined is whether the prosecution has established a prima facie case against the accused to warrant him to be called upon to make a defence.

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

28. In the instant, I find that the testimony of each of the thirteen (13) witnesses called by the prosecution as evaluated against the charge of murder facing the accused herein together with the evidence placed before me, the testimonies of PW9 confirms that the accused was the one who inflicted the injuries on the deceased and that the evidence of PW8 and PW10 confirms the existence of the injuries on the body of the deceased. The evidence of PW1 was that the accused did surrender himself to her and also handed her the murder weapon and that the confession recorded from the accused left no doubt that he had a hand in the death of the deceased. He forcibly took the panga from the deceased and in anger started assaulting him with it. In totality, I find that the evidence placed before me has met the threshold of a prima facie case. This means that the prosecution has established a prima facie case against the accused to warrant him to be called upon to make a defence to the charges facing him. The test to be applied here is as elucidated under section 306 of the Criminal Procedure Code and buttressed by the legal principles in the cited authorities. In a nutshell the evidence tendered at this stage is sufficient to sustain a conviction were the accused to elect to remain silent in defence. Indeed, the accused was placed at the scene of crime as the incident took place in broad daylight and thus, he must now be called upon to make his defence regarding the death of the deceased.

29. In the result it is my finding that the prosecution has established a prima facie case against the accused. I find that the accused has a case to answer and is now called upon to make a defence in accordance to the provisions of section 306(2) of the Criminal Procedure Code.It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 2ND DAY OF NOVEMBER, 2022. D. KEMEIJUDGEIn the presence of:Esau Masinde Wekesa AccusedWanjala for AccusedMukangu for ProsecutionKizito Court Assistant