[2016] KEHC 6639 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL CASE (MURDER) NO. 15 OF 2015

REPUBLIC…………………………………………….………......……………..PROSECUTOR

-VERSUS-

WILSON NDIRANGU NJOROGE alias WILLY…..............................................1ST ACCUSED

SAMUEL MWAURA MUKAMI…………………………………………………2ND ACCUSED

ISAAC THEURI WACHIRA…………………..………………………………….3RD ACCUSED

R U L I N G

The three Accused persons herein were charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The Information states that on the 25th day of February, 2015 at County Council estate in Naivasha Sub-County, within Nakuru County, they jointly with others not before court murdered Samuel Waweru Mwangi. The Accused denied the charge. Mr. P. K. Njuguna represented the 1st Accused while the 2nd Accused was represented by Mr. Waigwa. The 3rd Accused was represented by Mr. Mburu F. I. The prosecution called seven witnesses.

Samuel Waweru Mwangi the deceased herein, lived in Naivasha town where he did odd jobs as a porter, commonly known as “beba beba”. Early on the night of 25th February 2015 the deceased was in the company of a friend, Peter Njoroge Macharia (PW1) near a place called Jubilee Building within central business district. They were accosted by a group of about 10 people riding on motorcycles. The men surrounded them.

In the company of the riders was one ‘Pato’ who alleged that one person named Kuresoi had robbed him of his cell phone and a sum of Shs 2,000/=. The deceased allegedly offered to lead the men where the said Kuresoi was. PW1 and the deceased were each sandwiched between two men on a red motorcycle and a blue motorcycle. They were driven to a place known as Mithori, Kabati. Kuresoi was not found there and the group left when the villagers at Mithori intervened.

The deceased and PW1 were allegedly driven back to Naivasha and to a lonely and dark spot in an area called Kanju where they were bludgeoned with wooden planks and kicks. They were moved to a second similar spot where further battering took place. They were left for dead. Two good Samaritans namely Fredrick Ochieng (PW5) and Virginia Wambui (PW6), on learning about the incident proceeded to a scene at the Nakuru bus stage at about midnight. Finding the two men in bad shape, they quickly organized for transport to take them to Naivasha District Hospital. PW1 was admitted for two days but the deceased succumbed to his injuries on the next day.

It is the prosecution case that the three Accused were among the bikers who confronted, kidnapped and eventually assaultedPW1 and the deceased. That the deceased’s injuries were as a result of the said assault. At the close of the prosecution case, counsel for the Accused and Mr. Koima for the Director of Public Prosecutions made written submissions.

I have carefully analysed the evidence on record in light of the submissions made. In my considered view, this case turns primarily on the question of the identification of the assailants. And, the prosecution case stands or falls on the evidence of PW1 the sole eye witness to the alleged assault.

As was stated by the Court of Appeal in Wamunga –Vs- Republic [1989] KLR P. 424:-

“Evidence of visual identification in criminal cases can bring about a miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize the danger……”

Again, the Court of Appeal, echoing the exhortation in Abdala Bin Wendo & Another –Vs- Republic [1953] 20 EACA 166, stated in Kiilu & Another –Vs- Republic [2005] 1 KLR 174:

“Subject to certain well known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence whether it be circumstantial or direct, pointing to guilt, from which a Judge or Jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error.”

The incident in question in the present case occurred at night, starting at about 8. 00pm. From the available evidence the transaction started on the street and ended in a dark place where the beatings occurred. Therefore the only place where the eyewitness had a chance to observe the bikers was in the street where he says there was some light.

According toPW1 the initial encounter occurred at Jubilee Building. In his evidence-in-chief, he said there was light on the street at the time and more light emanating from surrounding building. During cross-examination he was pressed to describe the scene of this encounter. The description he gave placed the scene between two buildings, namely, Jubilee Building and Othaya Annexe which he said were 5 meters apart, with trees and a garden, (named Nyayo), in between. He said he and the group of bikers stood close to the garden but asserted that light from Othaya Annexe assisted him to observe the men who had accosted them.

The intensity of the light and its distance to the actual spot where the men stood was not made clear. The presence of trees and a garden between the buildings cannot be a factor that facilitates easy identification at night. Indeed it would tend to hinder such identification, especially when one is suddenly accosted by a mob of men on motorbikes wearing similar “heavy jackets” as per PW1’s description of their apparel.

However, it isPW1’s answers given in cross-examination, specifically with regard to the identification of three Accused, that caused me some difficulty. I find it necessary to highlight some of these answers. Questioned by Mr. Njuguna for the 1st Accused PW1 stated on this aspect:

“I recognised them immediately although I did not know their names. Yes I gave names of Sammy, Willie and Munyiri. (A1 – 3 in dock). Pato is not here. He was complaining. Mwangi and Jose are not here. I told police about Willie but I cannot explain why name not on the statement. I did not give names of the accused herein as I did not know their names.”

In response to Mr. Waigwa’s questions PW1 stated that:

“Yes I mentioned the 2nd accused to police upon my discharge. I gave his name while recording statement. My statement mentions Mwangi, Jose, Pato. Accused 2 is called Sammy. I described the 2nd accused as a brown short man. I cannot tell if police did not record. Accused 2 arrested by members of public – porters who took him to police station. By time of his arrest I had not mentioned his name.”

In regard to the 3rd Accused he said:-

“I used to see Accused 3 at stage. He participated in assaulting us. He accompanied us on his cycle to Mithuri from Naivasha town. I was present when Accused 3 was arrested at Site in Naivasha. I did not know his name. I do not recall date of his arrest. Accused 3, last to be arrested. I knew his name as Munyiri. I gave it to police at time of recording statement. I cannot explain why the name not in statement. The Complainant has never been found.”

From the foregoing, it would seem that the names PW1 ascribed to the 1st to 3rd Accused in his evidence in chief namely, Sammy (Accused 2), Willie (Accused 1), Munyiri (Accused 3) were not given to police at the time of recording of statements. Nor were the men’s physical descriptions given. PW1’s statement to police did not bear the above names but bore the names of Mwangi, JoseandPato, the latter being the original complainant. PW1 confirmed that none of these latter persons were before the court.

He however asserted that he identified the three Accused by recognition as persons who operated at the Naivasha Stage. Surprisingly he maintained that he gave their names at the time of recording the statements to police while equally admitting that he did not know the names of the Accused at the time of the incident. Similarly he was unable to identify the two motor cycles in court [Exhibit 1A-C, Exhibit 4) with any of the Accused persons, primarily due to illiteracy. No special marks on them were highlighted.

The motor cycles were, according to CPL Nicholas Kogo (PW7) brought to the police station by the members of public upon effecting arrest of the three Accused persons, on different dates after the incident. The complainant of the alleged robbery incident described as Pato was not called as a witness. He stood in a good place to identify the cyclists, who, if PW6 is believed, were later found engaged in an argument with the original complainant while demanding payments for catching and punishing the “robbers”. This bit of evidence however must be seen as an afterthought because PW6 did not include it in her statement to police.

Upon a careful review of the prosecution evidence and particularly that of PW1, I am not persuaded that it meets the threshold of a prima facie case. I have to say however, that it appears that the police did not exercise diligence in investigating the unfortunate incident in which the deceased was brutally murdered. Indeed, all the suspects were arrested by members of public and not through the initiative of the police investigator PW7. It does not appear that any efforts were made to trace the initial named assailants whose names were given Mwangi, Joseand Pato during the first report. It is “Pato” in my view who originated the entire unfortunate transaction. As a minimum he should have recorded a statement with police.

This case is even more disappointing because the deceased was apparently a vulnerable young man who literally lived on the streets with no known relative. He too was entitled to protection under the law and the police ought to have shown more vigour in pursuit of his killers.

Be that as it may, on the evidence tendered, I have come to the conclusion that the Accused herein are entitled to an acquittal under Section 306 (1) of the Criminal Procedure Code and I so order.

Delivered and signed at Naivasha, this12thday ofFebruary, 2016.

In the presence of -

State Counsel : Miss Waweru for the state

For the Accuseds : Mr. Njuguna for Accused 1

: Mr. Waigwa for Accused 2

: Mr. Mburu for Accused 3

Court Assistant : Steven

Accuseds : All present

C. MEOLI

JUDGE