[2022] KEHC 17141 (KLR)

State v Ongoro & another (Criminal Case 1 of 2021) [2022] KEHC 17141 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17141 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Case 1 of 2021

REA Ougo, J

December 14, 2022

Between

State

Prosecutor

and

David Ongoncho Ongoro

1st Accused

Moffat Motari Bosire alias Oyaro

2nd Accused

Judgment

1. The case before the court relates to the murder of Salome Gechemba Ongoro (‘the deceased’). The deceased died a painful and an unfortunate death as she was burnt on suspicion that she was a witch. It is unfortunate that in Kisii county in the year 2022, persons suspected to be practicing witchcraft are still being executed by burning despite the formal laws that have been laid down to address issues relating to witchcraft, that is, the Witchcraft Act. It is the prosecution’s case that the accused persons were part of the mob and were responsible for the death of the deceased.

2. David Ongoncho Ongoro andMoffat Motari Bosire alias Oyaro have been charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge were that on December 18, 2020 at Bomachabe village, Bogitaa sub-location in Kisii South county within Kisii county murdered Salome Gechemba Ongoro. On January 8, 2021, the charge and the elements of the charge were read to the accused persons and a plea of not guilty entered.

3. The prosecution was required to prove the culpability of the accused persons beyond reasonable doubt. In order to do so, the prosecution called 5 witnesses. According to the prosecution case, the deceased was killed on suspicion that she was a witch and was responsible for the death of Ronald Oluoch. The 2nd accused person is the brother to the boy that was allegedly bewitched by the deceased.

4. Joshua Ongoro Nyamosi (Pw3) testified that on 18th December 2020 he was attending the burial of Ronald Oluoch who died after being electrocuted. Pw3 testified that it all started when a girl named Faith gave the 2nd accused person milk that was leaking. The 2nd accused person asked Faith why the milk was leaking and she explained that she had punctured the packet to drink some of the mild. The 2nd accused person poured out the milk. At around 2:00 pm. Faith was acting suspiciously and was questioned by some boys. She confessed to being sent by the deceased who had given her the milk to give to the 2nd accused person and a bangle which was to be thrown in water pot inside Ronald Oluoch’s house. Faith was escorted to the deceased’s home and she removed everything that she had been given. The deceased came from her house and went to her son’s house but was followed there by the gathering crowd. The people began beating her at her son’s house and Pw3 carried her back to her house. The 1st accused person shouted ‘kill the witch’! One of the clan elders asked why they were demanding for the deceased be burnt and he was stoned. Pw3 together with the elder ran away and saw smoke coming from the home.

5. William Moranga Ongoro (Pw1) testified that he was asked by the chief to go the deceased house on the material day. Upon arrival, he found a crowd that was saying the deceased had killed a child. The 1st accused was shouting loudly ‘choma choma’! The 2nd accused carried the deceased who was inside the house outside. The deceased was placed by the door and althoughPw1 told them not to beat the deceased, he was overpowered by the outraged mob. As Pw1 left, he heard the 1st accused requesting for a mattress, petrol and matchbox. He recalled that the incident took place at 8:00 pm. There was light and he was able to identify the 1st and 2nd accused persons as well as Sankara. On cross examination, he testified not to have seen the accused persons clearly but testified to recognizing their voices. He also testified that he identified the accused persons because he ran away with them however, he could not tell whether they contributed to burning the deceased.

6. The deceased sons Peter Bosire Ongoro (Pw2) and Lawrence Sagini Ongoro (Pw4) were home on the day the deceased was killed. Pw2 testified that at around 8:00 pm. when he returned home his daughter told him that the deceased had been burnt. He was in shock and confused therefore he got into his house and slept. He heard the crowd shout ‘choma choma’! On cross examination he testified that there were so many voices shouting ‘choma choma’! He also testified that they did not have electricity and that the deceased used a lantern at night. Pw4 testified that he had visitors on the material day and heard people shouting ‘witch witch’! He ran to the scene and they threatened to burn him as they had burnt his mother. He testified that it was dark and he could not identify any person. On cross examination he testified that they usually use candles or lamps that use kerosene.

7. No 94480 PC Andrew Kerio (Pw5) told the court that he is the second investigating officer in the case as the initial officer PC Bernard Ekai was on transfer. On December 18, 2020 theOfficer Commanding Police Division (OCPD) Beatrice Kigolu and other officers visited the scene and recovered the body of the deceased. The body was mutilated and burnt beyond recognition by an angry mob. The body was taken to Kisii Teaching and Referral Hospital Morgue and the deceased identified by family members. The accused persons were arrested through the area chief and identified.

8. The prosecution closed its case and the court found that the accused persons had a case to answer. David Ongoncho Ongoro (Dw1) gave unsworn testimony and denied killing the deceased. He testified that on the material day he was from Christamarriane Hospital and was carried by a boda boda to his home. The deceased is his neighbour. At that time there were burial arrangements being made and he found many people in the boma. As he neared the home, he found out that the deceased had been burnt. He stayed in the boma till morning as he was her neighbour.

9. Moffat Motari Bosire (Dw2) also gave unsworn testimony. He testified that he lives in both Nyamira Ndogo and Suneka in Kisii. He denied killing the deceased. He recalled hearing screams on the material day and proceeded to the scene where he found many people gathered and the deceased burnt. He testified that this was about 8:00 pm at night. He told court that he was not amongst those people that burnt the deceased. He was arrested after 2 to 3 days.

Analysis And Determination 10. The fact that the deceased died is not in dispute. Pw5 produced the post-mortem form prepared by Dr Benjamin Ndibile who noted that the deceased has suffered 4th degree burns and developed complications which resulted into her death. Pw4 testified that he identified the deceased who was her mother. Although she was burnt on the face she was still wearing the necklace she always had around her neck.

11. The prosecution is required to prove beyond reasonable doubt that the accused persons were the persons responsible for the death of the deceased. It is not in dispute that the incident took place at 8:00 pm when there was no natural light and the court must examine the nature of lighting that was available. The Court of Appeal in John Muriithi Nyagah v Republic [2014] eKLR, the Court of Appeal held:“In testing the reliability of the evidence of identification at night, it is essential to make an inquiry of the relevant circumstances such as the nature of the light, the strength of the light, its size, its position relative to the suspects etc.”

12. Pw1, Pw2, Pw3 and Pw4 gave evidence as regards to the nature of the light that was at the scene. Pw1 on cross examination testified that it was dark but there were lights outside. Pw2 who was the deceased’s son testified that they did not have electricity at home and the deceased used to use a lantern at night. Pw3 testified that there was no power at the deceased’s house but there was a bulb outside. Pw4 testified that it was dark and he could not identify people and explained that there was electricity in one of the neighbour’s home next to his elder’s brother’s house.

13. The deceased’s son, Pw2 andPw4, maintained that they were no electricity in their mother’s home. Pw2 in re-exam testified that mokoba solar power had not been installed in their home. Although Pw3 and Pw1 testified that there was light from a bulb outside the deceased’s house, this could not be true. In my view, it was not possible to visually identify the accused persons as it was dark.

14. However, it was also the prosecution’s case that the 1st accused person was identified by his voice. Pw1, Pw2, Pw3 andPw4 testified that there were so many people in the deceased’s home. Pw1 testified that many people including the accused person were saying burn the deceased. Pw1 testified that the 1st accused person shouted ‘choma choma’ while Pw3 heard him say ‘kill her, kill the witch’. Pw1 testified that the 1st accused person was well known to him as they were from the same clan.

15. However from the evidence of Pw1, it is not possible to ascertain the position the 1st accused person took in regards to the deceased.Pw1 testified that the 1st accused was telling the crowd not to burn mama (‘the deceased’) while the people were saying burn the mama. Pw1 also testified that he also told the mob not to beat the deceased he was over powered and he ran away with the 1st accused person. I therefore find that there are inconsistencies in the testimony of Pw1 who was a key witness in the prosecution case. In Richard Munene v Republic [2018] eKLR, the Court of Appeal stated with regard to contradiction or inconsistency in the evidence of the prosecution witness:“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”

16. There was no direct witness on who saw the accused persons burn the deceased. The evidence led by the prosecution was that the accused persons were at the scene and had formedcommon intention to cause death or grievous harm. Section 21 of the Penal Code, states as follows:“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

17. In Stephen Ariga & another v Republic [2018] eKLR, the Court of Appeal adopted the ingredients of common intention as established in Eunice Musenya Ndui v Republic [2011] eKLR thus:(1)There must be two or more persons;(2)The persons must form a common intention;(3)The common intention must be towards prosecuting an unlawful purpose in conjunction with one another;(4)An offence must be committed in the process;(5)The offence must be of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.

18. The prosecution witnesses Pw1, Pw3 and Pw4 testified that there were many people at the deceased home, around 500-1000 people. Pw4 testified that he heard people saying ‘witch witch’ while Pw2 heard many people saying ‘choma choma’. Their testimony was corroborated by the evidence of Pw1 and Pw3 who testified that the outraged mob wanted to burn the deceased.

19. It was therefore critical that the evidence of Pw1 be watertight as to indicate that the 1st accused person was part of the crowd that wanted the deceased burnt. However, according to his evidence before the court, on the one hand he testified that the 1st accused wanted the deceased to be burnt and on the other hand the 1st accused person was pleading with the people not to burn the deceased. Pw1 further testified that he was overpowered by the outraged mob and ran away with the 1st accused person. The contradictions, discrepancies and inconsistencies in Pw1’s evidence must be resolved in favour of the 1st accused person. It is therefore my finding that the prosecution failed to prove that the 1st accused person formed common intention with the angry mob to burn the deceased. Further, the evidence of Pw3 reveal that by the time Pw3 was leaving the scene before the deceased was burnt, the 1st accused person had left. He must have ran away with Pw1 when they tried stopping the angry crowd from burning the deceased.

20. Further, I find that the prosecution did not adduce sufficient evidence on identification of the 2nd accused person as being present at the time the deceased was burnt. I say so because there was no sufficient light as the incident took place at 8:00 pm. The evidence against the 1st accused person on whether he had common intention to kill the deceased was also not proved to the required standard. Pw1 testified that he ran away with the 1st accused person as they were overpowered by the outraged mob after the 1st accused person had asked the people not to kill the deceased. The prosecution has therefore failed to prove the charge of murder against the accused persons herein beyond any reasonable doubt. Consequently, I find the accused persons David Ongoncho Ongoro andMoffat Motari Bosire alias Oyaro not guilty of the charge of murder and are hereby acquitted. The accused persons shall be set at liberty forthwith unless otherwise lawfully held.

Dated, Signed, and Delivered Online via Microsoft Teams at BUNGOMA this 14th day of December 2022. R.E. OUGOJUDGE**In the presence of:Mr. Kaba - For the Accused personsAccused No. 1& 2 - PresentMr. Mulati - State Counsel ODDPMr. Orwasa - C/A