[2017] KEHC 2871 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

HCCRC NO. 8 OF 2016

(MURDER)

(CORAM: J.A. MAKAU – J.)

REPUBLIC...........................…..……...……PROSECUTION

VERSUS

WILSON AJWANG ADUL.......................………ACCUSED

J U D G E M E N T

1. The accusedWILSON AJWANG ADULis charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Chapter 63), Laws of Kenya. The particulars of the charge are that on the 20th day of June 2015 at Nyandiwa Sub-location, Siaya Sub-county within Siaya County, murdered one SHALOT AWUOR AWINO.

2. The Prosecution called a total of 8 witnesses. The key witnesses were PW1, PW2 a Boda Boda rider, PW3 the boyfriend to the deceased, PW4 and PW6. The evidence of PW1 Elijah Okoth Umidha is that he knew the deceased, Shalot Awuor Awino, as he worked with her father and following his death, he was assisting her recover her father’s terminal benefits. That on 20th June 2015 at around 8:00am while at his home, he received a telephone call from Wilson Adul, the accused, telling him he knew where Shalot Awuor Owino was living. PW1 asked him what he intended to do and he told him he wanted to go and confirm whether Shalot Awuor Owino was living at Usenge, in Siaya County. PW1 told the accused he also wished to know where Shalot Awuor was living. The accused then told PW1 that after he finished what he was doing at Kisumu, he will delay a bit before he would come. That the accused arrived at Awelo, in the afternoon and it started raining heavily. That PW1 and the accused met at Awelo, whereby PW1 told the accused on arrival at Usenge he should try to control his temper. That the two left for Usenge at 3:00pm in a motorbike, arriving at Usenge at 4:30pm, whereby the accused left PW1 standing at a place 30 metres to Shalot Awuor’s house as the accused walked to the house. PW1 saw the accused after 5 minutes walking from Shalot’s house pulling her. PW1 saw Shalot who also saw him and smiled but he got concerned. The two were about 3 metres from PW1, then Wilson Adul bent down, removed a kitchen knife from the socks of his right foot, as he was holding Shalot with his left hand at her right hand, and suddenly stabbed her left side of the chest next to her hand. Shallot screamed and fell down. PW1 got shocked as Shallot started convulsing. Wilson Adul then took off with the knife in his hand. PW1 was still standing there screaming for help. Two people came and carried the lady to the road to seek help to take her to the hospital. That members of public came to the scene and started beating PW1 who was injured by the mob, that police came to PW1’s rescue and took him to the hospital. Shallot meanwhile had been taken to the hospital by a Good Samaritan. PW1 testified he knew Shalot Awuor as he was her guardian since 2013 and that Wilson Adul was also well-known to him as a cousin of Shalot Awuor Owino, as he had met him twice at Siaya with Shalot Awuor Owino. He testified that he knew the accused by the name and his appearance. He identified him as the accused person in the dock. PW1 stated on the date of the incident, he had not talked to Shalot.

3. On being cross-examined, PW1 stated the accused was not known to him properly, stating before the incident he had met the accused twice, one of which time he met him at police station for having been arrested for shoplifting whereas the second meeting was at Shalot’s house. That Shalot was aged between 20-21years. PW1 stated he was related to Shalot by blood and he is 56 years old. He stated Shalot was not his girlfriend, though she had given him keys to her house. He stated the third time to meet the accused was on the day of the incident. PW1 stated when he saw the accused pulling Shalot he thought he was joking, but he noted Shalot was tense. PW1 stated he did not attack Shalot and that he was attacked by members of the public as he was the only one who remained at the scene. He stated there were only 3 people at the scene when the attack occurred. He stated if he had committed the offence he would have run away. He stated he did not help the girl because the attack happened fast, but he screamed for help. On being re-examined, PW1 stated both his legs are amputated and incase he had committed the offence he would have run away. He stated that Shalot was a friend and not a lover. PW1 told the accused to control his temper because he had noted he had a lot of temper when he realized the girl was running away from him.

4. PW2, Felix Otieno Owuor, a resident of Usenge Trading Centre, testified that on 20th June 2015 at around 4:00pm, he was at Usenge Trading Centre, as a Boda Boda rider, on his way to Siaya to buy salt and on his way back at Obwenda, he saw a certain old man with a young man who asked him to take them to Obambo, Usenge. He charged them Kshs.100/= and carried them up to Usenge. They paid him and he went away leaving them at Usenge Trading Centre. That after returning to Usenge Trading Centre, after 25 minutes, he found people saying the old man who was with the young man was the one who had killed the young girl. PW2 did not see anyone at the scene but blood. PW2 then proceeded to Siaya Police Station and made a report. PW2 testified that the two people he carried were not people known to him before but he was sure on seeing them he could identify them. He told the court after that incident, he has been seeing them at the court. He identified PW1 in court as Elijah Okoth Umidha and the accused in the dock by shaking his hand.

5. PW3, Nelson Mandela Oboro, a Boda Boda rider operating from Usenge, testified that on 20th June 2015 at around 3:00pm, he left Usenge for Siaya leaving his girlfriend Shalot Awuor Owino at his rental house at Usenge, Obambo Centre, after she had come to visit him. He had known her since 2010 but the two had stayed together for 1 month. That on his return at around 5:00pm, he saw an old man being beaten by members of public while on the other side of the road, he saw Shalot Awuor Owino lying on the ground from a distance of 25metres, he moved there and from a distance of 1 foot he noted she was bleeding from the right hand side near the shoulder, under the armpit and on the left side near the abdomen. PW3 rushed to his house to collect his mobile phone to seek help from his friend who had a vehicle. On the arrival at the house, he did not find the phone. He returned to where the old man was being assaulted, where he saw his phone in the left shirt pocket of the old man. PW3 took it and also as he was removing it, he discovered that he also had the ATM of Shalot and her identify card. He took the items and the person he intended to call one Allois Pius came to the scene. PW3 did not speak to the old man as he could not speak. Allois went for his vehicle, returned and picked Shalot and as they were leaving, PW3 saw a man advancing towards them, bleeding from the neck and at the same time holding a knife which was stained with blood. That the man was about 3 metres from PW3. That PW3 and Allois with Shalot left for Siaya County Referral Hospital and proceeded to Emergency Room from where Shalot passed on. PW3 then informed brother to Shalot one Austin Oduor what had happened. That on 26th June 2015, PW3 came to the mortuary and met Shalot’s sister by the name Ivy and her Uncle who asked him to accompany them to Siaya Police Station, where he was put in cells, and while there he saw the very man who he had seen with a knife bleeding from his neck. PW3 saw him in the cells. Then after recording his statement, PW3 was released the following day. He was told he was arrested because he had the identity card and ATM of Shalot Awuor which he was not voluntarily willing to release. PW3 stated that he knew the old man as the person who was assisting Shalot recover her late father’s benefits. PW3 identified PW1 in the court. He also identified the young man he saw on the date of incident with a cut at the neck, with a knife and also at the cells and noted he had a cut at the neck. He further stated he could recognize the young man as he had a cut at the back of the head (Court asked the accused to turn around, the Court saw an old cut at the back of the accused’s head). PW3 told court he could see the young man he was referring to (pointing at the accused) at the dock.

6. On cross-examination of PW3 by Mr. Odongo for the accused, PW3 testified prior to 20th June 2015, he had not seen the accused but he had met PW1, Umidha once before 20th June 2015. PW3 stated he was arrested on the following day and throughout the night, he was in the same cell with the accused and he saw him. He stated the accused was not in the hospital but in the cells with him. He stated the person he saw bleeding with a knife was 3metres from him and he saw him clearly for about 3 minutes. That his clothes were drenched with blood but at the cells; he had different clothes. PW3 testified that he gave the police the description of the person he saw, shown his statement PW3 confirmed that was his statement. It stated that he could identify the man he saw. He stated he identified the man at the police cells. PW3 stated he did not see the person who stabbed the deceased.

7. PW4, Allois Pius Okello, a businessman at Usenge Trading Centre testified that on 20th June 2015 at 5:00pm, he was at his shop within Usenge Trading Centre, when he noticed a commotion, people running in all directions from a distance of about 200metres from his shop, he then closed his shop and ran to the direction where people were running to. On arrival he found people wailing, looked around and saw a young girl lying on the ground with blood oozing from her chest, abdomen, head, left and right hand side as she was crying, while near her there was an elderly man lying on the ground as he was being beaten by members of public. People around pleaded with PW4 to go and bring his vehicle to take the young girl to the hospital. PW4, in company of Mandela (PW3), went for PW4’s vehicle from his home and returned back to the site. On the way he called Onyango Ahenda to accompany them to the centre. That as PW4 and others were putting the girl into the boot of his car, he saw a tall young man brandishing a knife and trying to enter into PW4’s car from the left side. He prevented him by closing the window. That the young girl was bleeding profusely and was crying, that on arrival at Siaya County Referral Hospital, the young girl stopped crying. She was picked by Emergency Unit people and PW4 left her being given first aid. That on arrival at his home, he was told she passed on. PW4 stated he saw the young man very well as he was trying to enter his car but he had not seen him before. He identified the young man who was brandishing the knife as the accused in the dock.

8. During cross-examination, PW4, stated the old man who was lying down visited his shop with Cpl Mutinda, the Investigating Officer, in this case. PW4 stated he recorded his statement on 16th February 2017 and that in the last 21months; he did not make any efforts to record his statements as the person who took the deceased to the hospital, but stated he recorded statement when police requested him to do so. He stated the gentleman with Cpl Mutinda did not introduce himself nor said anything nor did PW4 enquire who the gentleman was. PW4 stated at the scene of murder, he was able to see the accused brandishing his knife in the crowd as if to scare the crowd and the young man was chasing the car as PW4 was driving the deceased to the hospital. PW4 stated Cpl Mutinda never came to request him to record statement for the last 21 months. On re-examination, PW4 stated he had not recorded statement with police before. Cpl Mutinda went to record his statement 21 months after the incident.

9. PW5, Dreda Anyango Ogundo, grandmother to Shalot Awuor Owino testified that on 20th June 2015 at 10:00am, she received a telephone call through her co-wife’s phone from Dickson Okatch Alogo asking her whether she had heard anything from Shalot, to which she replied she had not. She later found Cynthia on her phone crying saying Ajwang had killed her sister Shalot, saying there were 3 messages from Ajwang in PW5’s phone, which she asked Cynthia to read to her. PW5 then called Dickson Okatch telling him about the messages. That on 22nd June 2015, PW5 came to Siaya County Referral Hospital Mortuary and identified the body of the deceased. She noted it had a stab wound on the left arm, left breast, the right breast and left side kidney. She went to Equity Bank to check on Shalot’s bank account. She called son of Oboro Joseph and enquired on Shalot’s documents, and he promised to avail them at the hospital but he did not come. She reported to police from where she was given the documents. PW5 stated Ajwang is also known as Wilson Ajwang Adul Paul, who PW5 had known before, as he was in the same class with Shalot but in a different school and used to visit PW5’s home. She knew also his parents and their home. She identified the accused by pointing at him in Court. PW5 stated she waited for police to call her till 7th March 2017 when they called her to record her statement.

10. On cross-examination, PW5 confirmed she recorded her statement with the police a day before giving her evidence. She confirmed she identified the body of Shalot at the Mortuary.

11. PW6, Eunice Akoth Juma, a resident of Usenge, evidence is that on 20th June 2015 at 5:00pm, she was on her way to Usenge Trading Centre when she saw many people at the middle of the road. On arrival, she found a girl lying on the ground, approached her, noted she had been stabbed on the right side of her breast and on the right thigh with blood oozing from those parts. She was told the girl had been stabbed by a young man who had ran away. She saw a man also lying on the ground being talked to, who said the stabbed girl was a daughter of his aunt. That while at the scene, a young man came from the nearby bush, holding a knife in his hand. PW5 saw the young man cutting himself at the neck with the knife, then he started running after the vehicle which was carrying the injured girl, as the members of public started throwing stones at him but he left them, leaving behind one of his shoes. PW6 stated the girl was taken to the hospital in a vehicle of Allois Okello (PW4) who was in company of PW3 and Onyango Aheda. PW6 stated the stabbed girl and the elderly man were unknown to her; however, she identified the elderly man in Court (PW1). She stated the young man who cut his neck, chased the vehicle carrying the deceased to the hospital, is the one in the dock (pointing) at the accused stating she observed him very well on that day. That she recorded her statement on 16th February 2017 as she was waiting for Government to look for her to record her statement; and that police came looking for her on 16th February 2017.

12. On cross-examination, PW6 stated police went to her home, missed her and called her over the phone. She stated from 20th June 2015 to 16th February 2017, the police did not go to her home and added she did not know how they came to know her home, but stated they were given her mobile number by a lady at Usenge by the name Irene, after she told police PW6 had witnessed the incident. PW6 stated she saw a young man come from the bush, who was not in the group of people she found on the road. That she saw him cut his neck with a knife but no one stopped him from cutting himself. That the one shoe, he left, no one picked it. That police came to the scene within a short time but PW6 did not tell the police anything and the police did not pick the shoe. The police greeted people and picked the elderly man.

13. PW7, Doctor Abdi Fatah Hassan Abdullahi, a Medical Officer working at Siaya County Referral Hospital, produced a postmortem report by Dr. Philip Okoth, who was his supervisor during his internship and who after his graduation was his workmate. He stated he was conversant with his handwriting, signature and that he is the author of the postmortem exhibit P1. The postmortem report was over one Shalot Awuor Owino which was conducted at Siaya Referral County Hospital Mortuary on 22nd June 2015 at 5:40pm. The external appearance of the body was as follows:-

Cyanosis present in the mucous membranes (buccal activity)

a) Stab wound penetrating the left arm with noted entry and exit point through the biceps muscle.

b) Stab wound in the chest at the 3rd intercostal space mid-axillary line; penetrating into the chest cavity.

c) Stab wound over the right breast~10cm deep.

d) Stab wound in the lateral aspect of the left leg ~15cm deep into the thigh.

Respiratory system: -

- Collapse of left lung with air in the pleural cavity.

The doctor as a result of examination opinioned that the cause of death was due to tension pneumothorax due to stab wound to the chest. PW7 stated the probable weapon is a sharp object. PW7 produced the postmortem report as exhibit 1.

14. PW8, No. 63518 Cpl Francis Mutinda, previously attached to Siaya Police Station, the Investigating Officer in this case, stated he was attached at Siaya Police Station from 2012 to April 2017. That the matter was initially being investigated by C.I. Wanjala, who was transferred in February 2017 following which PW8 took over the file. He then revisited the scene on 16th February 2017. That prior to taking over the file he had been involved in the investigation of the matter. That on 20th June 2015 at 1630hours while at the office, C.I. Wanjala called PW8 to accompany him to Usenge Trading Centre, where there was a report of mob justice. On arrival, they found many people gathered along the roadside at the trading centre; whereby they found a man seated down beside the public road with injuries on his head and bruises on his face. They enquired from him his name and he told them he was Elijah Okoth Umidha. He was disabled as one of his legs had been amputated. They enquired from him what had happened and he was unable to give them any information. They enquired from members of public what had happened and were informed the man was in company of a young man who had attacked a young girl by stabbing her on her upper left arm and ribs, who they were informed had been rushed to Siaya County Referral hospital. They were told the young man had escaped into the thick bushes nearby after the attack. They then picked the elderly man and took him to Siaya County Referral Hospital. That at the hospital they enquired about the young lady who they had been told had been injured by being stabbed by the young man and they were informed while she was undergoing medical treatment, she passed on. PW8 then with his team proceeded to Siaya County Referral Hospital Mortuary and requested to be shown the body of the young lady by the name Shalot Awuor Awino, as they had already been given her name at the scene of attack at Usenge Trading Centre. They were shown her body and PW8 observed that she had a deep stab wound on the left upper arm, left ribs and/or the right hip and that the blood was still oozing from the said parts. They then left the victim Umidha (PW1) undergoing treatment, proceeded to Siaya Police Station and started investigation of where to get the young man who had been said to have attacked the deceased.

15. On the night of 20th June 2015 while on duty at midnight, a young man came to the Report Office with an injury on the neck at the front desk and was unable to talk. PW8 called the driver on standby and rushed him to Siaya County Referral Hospital whereby he was admitted and PW8 returned to the station with the driver. On 21st June 2015, PW8 got information from the nurses the young man was asking, “where is the lady?” to which the nurses suspected he had committed a crime, informed C.I. Wanjala, who informed PW8, both proceeded to the hospital and handcuffed the young man. That they then went back to Usenge Trading Centre, interrogated the members of public, from whom they got some witnesses to the incident. They recorded statements from Felix Otieno Owuor (PW2), Nelson Mandela. (PW3) and Elijah Okoth Umidha (PW1); who positively identified Wilson Ajwang’ Adul to have accompanied him to Usenge Trading Centre where he claimed his girlfriend had befriended another man. He also gave the name of the girl as Shalot Awuor Awino. The young man who they had handcuffed at the hospital bed gave them his name as Wilson Ajwang Adul. That at the same hospital, Umidha (PW1) was still admitted and they called him to identify Wilson Ajwang Adul, which he did and stated he was the person he had accompanied to Usenge Trading Centre. They then left the young man guarded as he was undergoing treatment. On 24th June 2015, he was discharged, arrested and taken straight to Siaya Police Station. He was subsequently charged with the offence of murder and taken to Kisumu High Court. PW8 recorded his statement on 26th June 2015.

16. On taking over the case, on 16th February 2017, PW8 revisited the scene for more eye witnesses. He recorded statements of Alloise Pius Okello (PW4); PW5 Dreda Anyango Ogundo, grandmother to the deceased, PW6 Eunice Akoth Juma and Irene Atieno Aluoch who did not testify. He gave the reason for delaying in recording their statements as due to the fact that he was not the initial Investigating Officer. That when he took over the file, he then took over the responsibility of recording of the statements of the eye witnesses. PW8 stated in the course of his investigation, he took over PW5’s phone which had threatening messages. The number which had forwarded the threatening messages was No. 0707676149 to phone No. 0705530274. He then prepared a memo and forwarded the same to Cyber Crime Officers in Nairobi, requesting for a printout in respect of the two phone numbers he had given, herein. That by the time of giving his evidence he was yet to receive any report. PW8 stated the person who reported to him at Siaya Police Station, while he was on duty on 20th June 2015 and who he took to the hospital, was the accused (pointing) at the accused in the dock and stated he had not known him before that date.

17. On cross-examination, PW8 stated he recorded his statement on 26th June 2015 after the incident had occurred on 20th June 2015. That he went to the scene after the incident and participated in the conducting of the case. He stated the initial witnesses were interrogated by C.I. Wanjala, who recorded statements of those witnesses. That according to C.I. Wanjala the witnesses were enough. PW8 stated investigation goes on with time. PW8 stated he later discovered there was need of further evidence from the eye witnesses. That when he took over this case, some witnesses had testified. He stated he recorded statements from PW4 and that PW1 did not point PW4 to him as when he went to record PW4’s statements he was with police and Umidha (PW1) was not present. That PW4 testified 24 hours after recording his statement. He stated PW5 recorded statement before she gave her evidence. That PW6 recorded her statement on 16th February 2017. PW8 stated at the scene they found Umidha and they did not recover anything from him. PW8 stated the only person who witnessed stabbing of the deceased by the accused was Umidha (PW1) adding the knife was never recovered. He stated the ATM, ID card of the deceased was recovered from PW1, who never told the police how he got the items. PW8 stated according to the investigation, the accused and PW1 entered the deceased house and the three came out of the house together. That the assailant was the accused. PW8 testified he investigated PW1 and excluded him from the commission of the offence after evaluating the evidence. PW8 stated at the mortuary, the deceased’s body was identified to them by nurses. He stated that the body was also identified by the relatives of the deceased.

18. On re-examination, PW8 stated Umidha (PW1) was not charged because he did commit any offence and that there was enough evidence to charge the accused with the offence.

19. Upon the accused being put on his defence and Section 306(2) of the Criminal Procedure Code having been complied with, the accused opted to keep quiet.

20. M/S Maurine Odumba, the learned Prosecution Counsel made her submissions relying on the evidence adduced before the Court and added that; the Prosecution proved their case beyond reasonable doubt. That all the necessary ingredients of the offence of murder namely: the fact of death and cause of death of the deceased; who caused death and malice aforethought were proved beyond any reasonable doubt.

21. Mr. Odongo, Learned Advocate, for the accused on his part urged the Prosecution has not proved their case beyond any reasonable doubt and urged the court to acquit the accused. He based his arguments on the following points: -

(a) Right to remain silent is a constitutional right under Article 50(2)(i) and such right continues through the trial till the conclusion of the case and such right is also found under Section 307 of CPC, adding the accused has no obligation to respond to any allegation.

He urged the accused has no obligation to fill any holes in the Prosecution case alleging the holes in the Prosecution case are: -

Whether the person who died was Shalot Awuor or another? He urged that there is no evidence that the body was identified by anyone. He urged PW5 did not point the body to the doctor and as such it is not also clear whose body the Prosecution was talking about. He urged incase the Court found it was Shalot’s body, there is an issue as to who caused her death. He submitted from the evidence of PW1 he went to Usenge Trading Centre with the accused, he said he did not get into the deceased’s house, yet PW3 found him lying on the ground next to the deceased with an ATM, National Identity Card of the deceased and PW3’s phone, then how did he come to be in possession of the deceased’s items if he did not get into the deceased’s house? He urged that no explanation was offered, hence he submitted the person who caused the deceased’s death is PW1. He urged PW1 was never investigated by police and that he was a person of interest who ought to have been investigated. Mr. Odongo, further attacked the evidence of PW2, PW3, PW4 and PW6 as they had not seen the accused before the incident yet they claimed they saw him with a cut on his neck and further questioned how they came to know the accused had a knife. He urged no identification parade was conducted. That there is doubt whether the person they saw was indeed the accused person. He further urged PW8 recorded evidence of PW4 and PW6 two weeks to the hearing of the case and that in recording of the evidence of PW4, he was accompanied by PW1. He urged this was suspicious as PW4 had no intention in assisting the police. He urged as PW5 evidence was recorded 24 hours to the hearing; that casts doubt to the kind of investigation conducted by Prosecution. On malice aforethought, he submitted the same was not proved. He urged the cause of death did not come out clearly, concluding by stating the Prosecution case hinges on PW1 who has credibility issues.

22. M/s M. Odumba, Learned State Counsel in her response urged the Court to look at the evidence in its totality but not of a single witness. She urged PW1’s evidence was corroborated by circumstantial evidence. On identification of the accused, she urged the incident occurred during day time and it did not happen in a flash of time but it dragged for a while and the witnesses were not mistaken on the accused’s identification. PW8’s recording of witnesses’ statements later was not objected to by the defence, which was duly served with the statements and had opportunity to peruse the same before hearing. She urged that investigation did not stop by virtue of the matter having been brought to Court and PW8, as Investigating Officer was not stopped from bringing any further evidence that he came across to the Court when he took over the file from the former Investigating Officer. That when PW1 was found at the scene he was taken as a person of interest and same applied to PW3. That police carried out investigation and released them after investigation. She urged PW5 identified the body of the deceased and also PW8 confirmed the body was that of the deceased. On the accused choosing to remain silent, the State Counsel stated that is an accused’s constitutional right to remain silent. She submitted the accused did not rebute the Prosecution evidence, and urged the Court to find the Prosecution has proved their case to the required standard of proof.

23. The accused is facing a charge of murder. The Prosecution in a murder case has to adduce evidence to prove that the accused caused the death of the deceased with malice aforethought. The Prosecution must show that the accused had formed the necessary malice aforethought to either cause death or do grievous harm to the deceased. Malice aforethought is also proved if it is shown; that the person charged knew that his actions causing death would probably cause death or do grievous harm. Section 206 of the Penal Codedefines malice aforethought as follows: -

“206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances -

(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

(c) an intent to commit a felony;

(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

24. For Prosecution to prove a charge of murder, has to prove the following ingredients: -

(a) Death of the deceased and cause of death.

(b) That the accused caused the death through an unlawful act or omission.

(c)That the accused possessed an intention to cause harm, kill or had malice aforethought.

25. Whether the Prosecution has proved the death of the deceased and its cause? The defence urged that the Prosecution did not prove the person who died was Shalot Awuor as there is no evidence of the body being identified by anyone and that PW5 did not point the body to the Doctor. PW1 who was in company of the accused at Usenge Trading Centre testified that the accused went into the deceased’s house and came out pulling her, he saw him stab the deceased who fell down and started convulsing. PW2 who transported the accused and PW1 to Usenge Trading Centre and left them there, after returning to the scene after 25minutes, he heard people talking saying the old man whom he had carried with the young man had killed the young girl and he did not see any of them at the scene. He went to report to Siaya Police Station. PW3, the boyfriend to the deceased, Shalot Awuor Owino, left Usenge on 20th June 2015 for Siaya leaving Shalot in the house, and on returning back at 5:00pm, he saw an old man being beaten by members of public and on the other side of the road, he saw Shalot Awuor Owino, lying on the ground injured. He sought assistance from PW4 to take Shalot Awuor Owino to Siaya County Referral Hospital in PW4’s vehicle. That PW3, PW4 and another took Shalot Awuor Owino to Siaya County Referral Hospital and a she was being attended to, she passed on. PW4 testified that he took Shalot Awuor Owino to Siaya County Referral Hospital and left her being attended to and on his way home, he learned the girl had died. PW5, the grandmother to Shalot Awuor Owino testified that on 22nd June 2015, she went to Siaya County Referral Hospital, saw the body of Shalot Awuor Owino and identified it. She noted the stab wounds on her body. PW8, the Investigating Officer, testified that when he went to Usenge Trading Centre after receiving a report of mob justice, he was informed of a young girl who had been stabbed by a young man and who was taken to Siaya County Referral Hospital. That on arrival at Siaya County Referral Hospital, he enquired about the young girl whose name, he had been informed was Shalot Awuor Owino and he was informed by the Medical Officer that she passed on while undergoing treatment. PW8 and C.I. Wanjala proceeded to the mortuary and requested to be shown the body of the young lady, by the name Shalot Awuor Owino. They were shown the body and he observed she had deep stab wound on the left upper arm, left ribs and the right hip. PW7, Dr. Abdi Fattah Hassan Abdullahi produced postmortem examination report made by Dr. Philip Okoth as exhibit P1, who examined the body of Shalot Awuor Owino. The exhibit P1 showed that the body was identified to him by Geoffrey Odhiambo and James Ohawa Otieno, though none of them gave evidence. PW5, a relative of the deceased stated that on 22nd June 2015, the day the postmortem was carried out she saw and identified the body of the deceased at Siaya County Referral Hospital Mortuary. The fact that the postmortem report has two names is not in itself conclusive that the people recorded as identifying the deceased body were the only people who did it. PW5’s evidence was not challenged that she did not identify the body. I observed her demeanor and noted that she was a credible witness. I therefore, find the Prosecution witnesses proved the person who died was Shalot Awuor Owino and the deceased’s body was identified by PW5 to the doctor for postmortem purposes together with the people noted in the exhibit P1.

26. Whether the course of death was proved by the Prosecution witnesses? PW1 testified that on 20th June 2015, he saw the accused remove a knife from the socks of his foot and stabbed the deceased severally. No other person saw the accused stab the deceased. The deceased on being taken to the hospital, she passed on. PW3 observed at the scene of incident, the deceased had wound on the right side of her hand and another near abdomen as well as her right armpit. She was then unable to talk. PW4 saw a young girl lying on the ground with blood oozing from her chest, her head, left hand and right hand. PW5 observed the deceased’s body at the mortuary had stab wounds on the left arm, left breast, right breast and on left side kidney. PW6 stated she noted the girl she found lying on the ground had been stabbed on the right side of the breast and on the right thigh. PW8, the Investigating Officer who went to the mortuary saw the deceased’s body had deep stab wounds on the left upper arm, left rib and the right thigh. Dr. Abdi Fataah Hassan Abdullahi (PW7), gave evidence on behalf of Doctor Philip Akoth who conducted the postmortem examination on the body of Shalot Awuor Owino. The doctor’s finding corroborates the evidence of PW1, PW3, PW5, PW6 and PW8 on the injuries sustained by the deceased. The injuries as per the doctor’s postmortem examination report were stab wound penetrating the left arm, stab wound in the chest; stab wound on the right breast and stab wound in the lateral aspect of the inner left leg deep in the thigh. The doctor stated the possible type of weapon was a sharp object.

He opinioned the cause of death was due to tension on pneumothorax secondary to stab wound to the chest. I therefore find the Prosecution proved the cause of the death of the deceased herein.

27. I now turn to examine who caused the death of the deceased? In this case, PW1 was the only eye witness. The defence Counsel urged that PW1, Umidha on arrival at Usenge Market, he and the accused went into the deceased’s house and the three of them alongside the deceased come out of the house came out of the house the three of them. Counsel for defence frther stated, when PW3 came and found PW1 lying on the ground being beaten, he retrieved his phone, ATM and ID card of Shalot from PW1’s shirt pocket and thus urged that the person who caused the deceased’s death was PW1. He further urged PW1 did not give explanation on how he came to be in possession of the said items and that PW1 was not investigated on as a person of interest.

28. In this case, PW1 is not under trial to begin with. However, PW8 testified that he investigated PW1 and found that he had not committed any offence and as such he was not charged. In this case, the only evidence as to what happened is that of PW1 coupled with circumstantial evidence. PW1 was not led, when he was giving evidence, on how he came to be in possession of the phone of PW3 and ATM and Identity Card of the deceased herein nor was he cross-examined on how he came to be in possession of the same. PW8, the Investigating Officer did not shade any light on that issue and as such I need not engage further on that issue in the absence of any evidence, other than PW3 retrieved the said items from PW1’s pocket, the Court will not be engaging itself in speculation, as it would not be able to make any conclusion as there is no evidence on record as to whether PW1 went to the deceased’s house, came out with the said items as there is no evidence of anyone having witnessed the same.

29. PW1, Elijah Okoth Umidha, testified that he and the accused left at 3:00pm for Usenge on 20th June 2015 arriving there at 4:30pm. The accused left him at about 30 metres to the house, where Shalot Awuor Owino was, as he walked to the house. After 5 minutes, PW1 saw the accused coming out of the deceased’s house, pulling the deceased upto about 3metres from where PW1 was, the deceased smiled. That the accused bent down and PW1 saw him remove a kitchen knife from the sock of his right foot, while holding the deceased with his left hand on her hand and suddenly stabbed the lady to her left side of the chest next to her hand. Shallot screamed and fell down. PW1 got shocked as Shalot started convulsing. Wilson Adul, the accused then took off with the knife in his hand. Two people came and carried Shalot to the road to seek help to take her to the hospital.

30. PW1 had left with the accused from Obwende on the motorbike of PW2, who testified he had brought the two to Usenge Trading Centre. This was not the first time for PW1 to have met the accused; he had known him before and they travelled together between 3:00pm and 4:30pm to Usenge Trading Centre. It was day time. The accused went to the deceased’s house and came pulling her to where PW1 was standing from her house, a distance of 30 metres and attacked the deceased at a distance of 3 metres from PW1 in broad daylight. I am satisfied that PW1 saw what transpired and explained at great detail how the accused attacked the deceased. I find that PW1 recognized the accused as the attacker of the deceased and I find that PW1 was not mistaken on the identity of the accused whom he knew very well by name and appearance.

31. In this case, other than PW1, there is no other eye witness who witnessed the attack; however, the Prosecution is relying on circumstantial evidence.

32. In Abanga Alias Onyango V Republic, CRA No. 32 of 1990(UR) at page 5, Court of Appeal considered when circumstantial evidence can form basis of a conviction and held as follows: -

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: -

(i) The circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

(ii) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.

(iii) The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusions thus within all human probability the crime was committed by the accused and none else.”

33. The Prosecution is relying on the fact the accused called PW1 on 20th June 2015 at 8:00am asking him whether he knew where Shalot Awuor Owino was living and told PW1 he wanted to go and confirm whether she was living in Usenge in Siaya County. PW1 told the accused that he also wanted to know where she was living. He asked PW1 to wait for him and he arrived at Awelo in the afternoon. That PW2 took the two to Usenge Trading Centre and left the two. The accused went to the deceased’s house and came out pulling her and after stabbing her, he took off with the knife. PW3 testified that as he put the deceased in PW4’s car, he saw a man coming towards them with his neck bleeding while holding a blood stained knife. He saw the man who was 3 metres from where he was. PW4 testified as they were putting the girl in the boot of the car, he saw a tall young man brandishing a knife and trying to enter into his car from the left side. PW4 identified, the accused as the young man who tried to enter into his car while armed with a knife whom he stated he saw him very well. PW3 stated on 26th June 2015, he was arrested and put in cells and while there, he saw the very man whom he had seen at the scene with a knife and bleeding from the neck. That he saw him in the cells before he (PW3) was released the following day. He stated the person he saw at the scene of incident with a cut on the neck and with a knife, was the person he saw again at the cells and he noted he had a cut at the neck and a cut at the back of the head (which this court) noted. He identified him as the accused. PW6 testified that while at the scene of the incident, she saw a young man coming from a nearby bush carrying a knife in his hand, who started cutting his neck with the knife and then started running after PW4’s vehicle which was taking the deceased to the hospital. PW6 stated the young man she saw is the accused, who she saw again as she was giving evidence. PW8 testified that on 20th June 2015 while on duty at midnight, a young man came to the Report Office, with an injury on his neck at the front side and was unable to talk. He organized for him to be taken to the hospital. The following day, he got information from nurses, the person was asking, “Where is the lady?” and was suspected to have committed the offence. PW8 and C.I. Wanjala proceeded to the hospital and handcuffed the accused on his bed and left him under guard. He was later identified by PW1.

34. I have considered the evidence of PW1, PW2, PW3, PW4, PW6 and PW8. The evidence clearly shows that the accused was at Usenge Trading Centre on 20th June 2015 between 4:30pm and 5:00pm. That he had gone with PW1. That after the attack of the deceased, he took off into the bushes with the blood stained knife. He later emerged from the bushes brandishing the blood stained knife, cut his neck and tried to enter PW4’s car which was carrying the deceased. The evidence relied upon also established the accused went to Siaya Police Station at night with a cut on the neck and was unable to talk. The Prosecution witnesses placed the accused at the scene of crime. It is clear from the evidence, the accused was the person seen attacking the deceased before she died. I find the circumstances from which the inference of guilty is sought to be drawn is cogently and firmly established. The circumstances relied upon were definite and unerringly pointing towards the guilt of the accused. I have considered the entire evidence and found that there are no co-existing circumstances which would destroy or weaken the inference of guilt on the basis of the evidence before Court. The circumstances taken cumulatively form a chain, so complete that there is no escape from the conclusion; that within all human probability, the offence was committed by the accused and none else.

35. I have considered the fact that the Investigating Officer PW8, recorded some of the witnesses’ statements after the case had commenced to hearing, and after he took over the file and found there was a need to record statements of eye witnesses. The defence Counsel raised the issue of recording statements later in his submissions; however, he did not state how such recording of statements violated his client’s rights. He did not provide any provisions of law limiting investigation to a certain duration of period. My view is that investigation of criminal cases has no time limit and that investigation is an ongoing process not an event, however, the provisions of Article 50 of the Constitution of Kenya dealing with fair trial should not be violated. In the instant case, the Defence Counsel was supplied with witness statements on behalf of his client, the accused. He was thus informed in advance of the evidence the Prosecution intended to rely on against the accused and had reasonable access to the evidence in spite of having been gathered after the case had commenced. I do not find any infringement of the accused’s constitutional rights and why such evidence can be said is not properly on record. The counsel did not object to such evidence being produced and I find his objection at the submission stage to be overtaken by events and of no effect to the Prosecution case as the accused was not prejudiced by such evidence. He had in my view a fair trial as enshrined in the Constitution.

36. Having considered the evidence on record, I find the Prosecution proved that the deceased’s death was caused by the accused herein.

37. Whether the Prosecution proved malice aforethought?The Defence urged that the malice aforethought was not proved because the deceased’s death did not come out clearly. PW1 who travelled with the accused to Usenge Trading Centre, testified that he saw the accused pull out a kitchen knife from his socks and stabbed the deceased. I have weighed the evidence of PW1 and have found his evidence to be consistent and credible. I have taken into account that people do not walk about carrying kitchen knives in their socks for good purposes. The accused came from Kisumu as per PW1’s evidence on the material day wanting to find out where the deceased was living. He must have had that knife in his socks as he went to the deceased’s house. He had, by having carried the knife in his socks, prepared to commit the offence by either causing death or causing grievous harm to the deceased. From the way the several stab wounds were executed as per Postmortem Report exhibit P1, the accused intended to either kill the deceased or cause grievous harm. The stabs were many and were pre-meditated. The accused was prepared to execute his plan. He had planned to kill the deceased by stabbing her on her chest and other parts of her body. I therefore find that malice aforethought was proved.

38. The accused in this matter did not give any evidence and opted to keep quiet. I find that was within the accused’s constitutional rights as enshrined in Article 50(2)(i) of the Constitution of Kenya 2010. I have however, analysed and evaluated the prosecution evidence and I find the Prosecution has proved the charge against the accused person beyond any reasonable doubt.

39. Having come to the conclusion I have of this case, I find that the Prosecution has proved the case against the accused beyond any reasonable doubt. I find the accused guilty of murder of Shalot Awuor Owino contrary to Section 203 as read with Section 204 of the Penal Code as charged and convict him accordingly.

These are the orders of the Court.

DATED AND SIGNED AT SIAYA THIS 6TH DAY OF OCTOBER 2017.

J.A. MAKAU

JUDGE

DELIVERED IN OPEN COURT.

In the presence of:

M/S Odumba:for State

Mr. Odongo: for Accused

Accused– Present

Court Assistants:

1. Laban Odhiambo

2. Atika Leonidah

J.A. MAKAU

JUDGE