[2022] KEHC 10640 (KLR)

Republic v Wekhungu & another (Criminal Case 35 of 2020) [2022] KEHC 10640 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10640 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 35 of 2020

SN Riechi, J

May 12, 2022

Between

Republic

Prosecution

and

Isaac Simiyu Wekhungu

1st Accused

Joel Museveni Wanyonyi

2nd Accused

Judgment

1. The accused Isaac Simiyu Wekhungu(accused 1) and Joel Museveni Wanyonyi(accused 2) are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence is that on the 26th day of July 2020 at [particulars withheld] village, Miendo location in Webuye West Sub-county within Bungoma county murdered Edwin Wekesa Simiyu.

3. The case for the prosecution is that on 26. 7.2020 at 3 pm PW1 LW a minor aged 7 years old and a pupil at [particulars withheld] Academy in std 2 was with his father EWS the deceased. The deceased carried L, S and D on his motor cycle. On the way home they saw 2 motor cycles coming towards them. One person alighted from one of the motor cycle and started beating the deceased at the back. He saw the person who was beating the deceased as Isaac (accused 1). He took D and they went home. Baba Mukhwana came to deceased to rescue but by that time accused 1 had left. The deceased was later taken to hospital.

4. In cross examination he stated that he sat at the back as pillion passenger together with S and D sat in front of the rider the deceased. He testified that the next day accused 1 was brought to their home by boda boda riders.

5. PW2 SW a minor aged 11 years old a pupil at [particulars withheld] Academy the son of the deceased testified that on 26. 7.2020 the deceased bought them chips for D and they started going home. They were riding as pillion passengers in a motor cycle which the deceased was a rider. He said they saw one Museveni come with a motor cycle at 7 p.m. and met deceased. They started beating the deceased who then fell from the motor cycle. Baba Mukhwana came and assisted deceased. The assailants then escaped.

6. In cross examination he stated that he saw an oncoming motor cycle which had no lights. The people from that motor cycle hit the deceased and they fell down.

7. PW4 Sikuku Khisa Silas was in his house when his sister witness Shikuku informed him that she had seen deceased lying down on the road. He went there and found deceased who was bleeding from the head. He also found a motor cycle and children at the scene. The deceased was taken to hospital at Webuye where he died.

8. PW5 Benard Mukwhana Sikuku received information that deceased was lying on the road. He went to the scene where they found Silas (PW4). They called Justus who assisted them and took him to hospital. At the scene he stated they found deceased’s son called Sammy and a motor cycle.

9. PW6 RN the wife of the deceased received information that deceased had been killed at the road. She went there and found Silas (PW4) administering first aid. At the scene she found her children S and L. The deceased was taken to hospital where he died. On being cross examined by Makokha for accused she testified that she had parted with deceased at about 7. 20 p.m and received the report of him being killed at 8 p.m. She stated that on 27. 7.2020 boda boda riders brought accused 1 to her home where Lenox saw him.

10. PW7 MNS the mother of the deceased was at her home on 20. 7.2020 at 8. a. when one Museveni came to demand his debt from O her grandchild. Museveni told her he was with police officers. Isaac (accused 1) then came on a motor cycle and E the deceased came out of his house and greeted both accused 1 and Museveni and went away. Museveni is accused 2, and Isaac is accused 1. She confirmed they did not quarrel.

11. PW8 OC testified that he knew accused 1 Museveni as he had paid some money to the police to have them released when he was arrested. The deceased heard Museveni making the demand and came out and asked why accused 2 was demanding the money and yet he (deceased) had advised accused 2 Museveni not to pay the money to police. Accused 2 then went away. On 27. 7.2020 he received information that deceased had been assaulted and was at Webuye hospital and later learnt that deceased had died.

12. PW10 No. 250424 PC Abraham Tabut attached at Matisi police post received a report of murder on 27. 7.2020 at 11 a.m. He and colleague went to the scene where the scene was processed by scenes of crime personnel. He recorded statements and members of public brought accused 1 and 2 as suspects. They were arrested and later charged with present offence.

13. PW12 Witness NS a minor aged 16 years and then in form 1 at [particulars withheld] Sec. School was from the home of Emmanuel when on the road he met Samwel Wekesa holding a motor cycle. He saw the deceased lying nearby and bleeding from the head. Sam informed him that deceased had been attacked. He went home and informed his parents who went to the scene.

14. PW11 Inspector Meshach Langat conducted an identification parade on Isaac Wakhungu (accused 1) and Joel Museveni (accused 2). He invited witnesses Lenox who picked accused 1 Isaac and accused 2 Joel Museveni.

15. PW3 Dr. Edward Milembwa produced a post mortem form prepared by Dr. Alex Munyendo who performed the post mortem. He found the deceased had 4 stab wounds on left side of the head, middle of the head leading to bleeding to the brain. He also had a depressed fracture of the skull. From the examination he formed opinion that the cause of death was due to severe head injury caused by a sharp object.

16. Upon being put on their defence accused gave sworn evidence. Accused 1 Isaac Simiyu Wakhungu testified that he does not know the deceased but admit he knows Oscar Chemiyati (PW8).

17. On 10. 7.2020 Oscar (PW8) asked accused 1 to lend him Kshs 2000 which he did. Oscar told accused 1 he will return the money on 17. 7.2020 on 17. 7.2020 he did not pay and requested 2 more weeks. On 27. 7.2020 O came with about 30 boda boda riders and took him to the home of deceased and later to the home of accused 2 Joel Museveni where they alleged that he and accused 2 Joel had killed the deceased.

18. In cross-examination by M/s Omondi for state he admitted he participated in the identification parade. He stated that it is Oscar who had brought him in this matter.

19. Accused 2 Joel Museveni testified that deceased is his cousin and accused 1 is a neighbours son. On 26. 7.2020 he worked at the home of Madam Mary and left at 4 p.m. He went to a funeral and he went home and slept. The next day on 26. 7.2020 he went to weed sugarcane with others and thereafter started going home when he received a telephone call from the mobile phone of accused1 but another person was speaking. He went home and on arrival found accused 1, Oscar (PW8) and many people who asked him about the murder of the deceased. He told them he did not know. They then took him and accused to Matisi police and later charged with the present offence. He confirmed that he participated in identification parade.

20. Mr. Simiyu Makokha for the accused filed written submissions. He submitted that the evidence of Lenox (PW1) was not corroborated and that there is no evidence linking the accused 1 and 2 to the offences. Finally, counsel submits that the prosecution has failed to prove the charge beyond reasonable doubt.

21,.The accused are charged with the 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 an unlawful act or omission is guilty of murder.”

22. The ingredients of offence of murder which the prosecution must prove beyond reasonable doubt are:a)The death of the deceased.b)The unlawful cause of deathc)That in causing death the accused committed it with malice aforethought.d)That there is direct or circumstantial evidence placing the accused at the scene of the crime.

23. On the fact and cause of death, PW3 Dr. Edward Milembwa produced a post-mortem prepared by Dr. Alex Munyendo who performed the post-mortem. From the examination he found deceased had 4 stab wounds on left side of the head, and middle of the head extending to the bone of the skull leading to fracture of the skull and bleeding into the brain. He formed opinion that the cause of death was due to severe head injury. He issued death certificate No. 1246995. This witness therefore confirmed the fact of death. He also found that the death was caused by severe head injury using a sharp object. Who inflicted the injuries?

24. PW1 testified that he was with his siblings being carried by the deceased on his motor cycle when they saw on coming motor cycles with lights on. The riders from the on-coming motor cycle stopped and started attacking the deceased. He was able to see one of them as Isaac- accused 1. He took his siblings D to the home of Baba Mukhwana who came to the father’s rescue. On being cross examined by Mr. Makokha for accused he stated:“I sat at the back of the motor cycle. S was behind my father and D in front of the father. I saw lights of 2 motor cycles. I saw them when I alighted. We did not fall down. The person started beating my father. My father did not have helmet. The next day accused 1 was brought to our home by boda boda people. That is when I saw him. I was then told by my mother to go to police and say I saw accused 1. I know Museveni. I have never seen him in our church. He was there with a motor cycle.”

25. PW2 SW testified that while on the road, at 7 p.m. he saw people come with a motor cycle. He saw it was Museveni (accused 2) They started beating the father who then fell from the motor cycle. Baba Mukhwana came and assisted the deceased. On being cross-examined by Makokha for accused he stated:“I was seated at the rear of the motor cycle. L was between me and my father. I saw 1 motor cycle. It had no lights. It came from in front of us. The motor cycle was moving my father was beaten on the head. He did not have a helmet. We fell down and they continued beating him. They hit him 3 times.”

26. These are the two witness the prosecution relied on to identify the accused 1, Isaac and accused 2 Museveni as the persons who assaulted the deceased. This are the witnesses the prosecution brought forward to give direct evidence implicating the accused. The other witnesses who testified in particular PW8 Oscar on the issue of accused 1 Isaak demanding his money form him and the intervention by deceased was only intended to lay strong suspicion that it is accused who had a grudge with the deceased, and could have been involved in his death.

27. This court notes that PW1 LW was 7 years old at time he was testifying. PW2 SW was 11 years old at time of giving evidence. These witnesses were a child of tender years. See 124 of the evidence Act provides.Section 124: Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.The witnesses while not being children of tender years (below 8 years) who are considered immature) their evidence still needs corroboration as a matter of practice and the court must caution itself on the dangers of convicting on uncorroborated evidence of such child.

28. Thought PW1 L and PW2 S were at the scene, this court notes that the incident occurred at night, suddenly without adequate lighting and this people who were attacking the father were not familiar with them which necessitated the mounting of an identification parade. Their evidence at the issue of identification when cross-examined by counsel for accused demonstrates that they did not observe clearly and the identification of accused 1 and 2 were not free from error.

29. I therefore find that accused 1 Isaac and accused 2 Museveni were not identified beyond reasonable doubt as the person who assaulted the deceased.

30. I therefore find the prosecution has not proved the charge of murder of murder against Accused Isaac Simiyu Wekhungu(accused 1) and Joel Museveni Wanyonyi(accused 2) beyond reasonable doubt and acquit each of them under section 215 C.P.C. I direct that Isaac Simiyu Wekhungu (accused 1) and Joel Museveni Wanyonyi (accused 2) be set at liberty unless otherwise lawfully detained.

DATED AT BUNGOMA THIS 12TH DAY OF MAY, 2022S.N RIECHIJUDGE