High Court 3967 of 2016

7. His mother DW1 denied allegations by PW3 and PW8 that on the material night she had come to the scene of the alleged assault and pleaded with her son (Accused) to stop assaulting the deceased. She stated that on the material night she was in her house watching television. According to the defence PW3 and PW8 have grudges, for different reasons against the Accused, and therefore gave false testimonies against him. Submissions were made by the defence at the close of the defence case. 8. I have considered the evidence on record as well as the submissions made. There is no dispute regarding the fact and cause of the death of the deceased herein. Neither is it disputed that her seminaked body was found on a wheat farm within Kisiriri area on 25 th December 2014. And clearly whoever inflicted the injuries leading to death intended to cause her grievous harm if not to kill her. The real dispute in this case relates to the identity of the person who inflicted on the deceased the injuries leading to her death. 9. The key prosecution witnesses were PW3 and PW8 who claimed to have witnessed a sustained assault on the deceased by the Accused on the evening on 23/12/2014. Both witnesses stated that the incident in question occurred at 7.30pm on a road within Kisiriri. 10. PW3’s narration was as follows:“……[A]t 7.30pm I was leaving Kisiriri town centre headed home. I heard a lady crying by roadside “Mwalimu unaniua.” We used to call the lady “Cha Marinda” or “Mama Shiru”. Mwalimu is the nickname of the accused. They were at the gate of the compound of the accused. The accused was hitting the lady with a stick. A torch appeared from home of accused. It was mum of the accused. She flashed torch and said “Dahn why are you attacking the lady”. But accused said: “Let me finish her.” Dahn’s mother tried to pull the son away. He was hitting her on the head. The accused had blood on his hands when his mother shone the torch. Eventually, the lady dragged her son away and left the lady. She was badly off. I decided to go home. I hoped the mother of Dahn (Accused) would take her to hospital.” 11. This witness was subjected to lengthy cross-examination. He replied, interalia that: “It was 7.30pm. Yes I first heard voices of both people – assailant and deceased. Then I confirmed when Accused’s mother came and shone a torch on them to try and rescue the woman……. Accused was not speaking but his name was being called. I have sat with Accused. I knew him all along. Before mother came the Accused did not speak but was busy hitting the deceased. The darkness was not pitch-dark. I was right close…… I was very close to them. It was not very dark. I stood there about 15 minutes before his mother came to intervene. I was standing on a ledge about 2 ½ metres away. Yes I am a Nyumba Kumi (security) elder….. I decided not to engage with the two and was considering matter when the mother came. I did not intervene before mother of the Accused came……I did not make any report to police on the assault I had witnessed despite being elder. When body was found I went and told police what I had seen.” 12. Apart from the obvious challenge presented by the fact that the described incident occurred in the night, PW3 was unable to give a sound reason why, if he witnessed the assault on the deceased, he neither intervened in the 15 minutes he watched the assault, nor subsequently reported to any person in authority. He admitted that he was a local elder responsible for security matters (Nyumba Kumi) and claimed that the injuries were inflicted with a piece of wood directed at the head of the deceased, that the Accused’s hands appeared bloody. 13. Evidently, the deceased was not well regarded in the village due to her excessive drinking and quarrelsome conduct. Even then, that a witness could watch a brutal assault on such a vulnerable woman

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by a young man but feel no need to intervene, sounds remarkable. PW3 may or may not have had a strained relationship with the Accused, but his testimony raises several questions. 14. The next eye witness PW8 also claimed that he was headed home on the material night when he witnessed the assault. He stated in his evidence in chief that : “……….I was going home from Kisiriri centre with one Ngatia. It was about 7.30pm. Close to the accused home (1 Kilometre from centre) we heard screaming of a woman. We drew close and my colleague became fearful. I noted “Cha Marinda” nick name of deceased who was being assaulted. She was saying: Dan ni nini unaniuliza? Dan was holding a stick with which he beat lady with. He also kicked her. I noted it was Dan beating the lady who lay down on the ground. The mother of the accused came with a torch and intervened. I decided to go away home……….. The assault was taking place about 10 metres away. It was not very dark. I saw clearly. It took almost 10 minutes for Mama Dan (Accused’s mother) to come. She came with a torch which she flashed asking Dan: “What are you asking this lady?” Dan responded in English to his mother…….Scene of the assault is on road next to the homestead of Accused………” 15. During cross-examination PW8 stated that although it was 7.30pm it was not very dark and he could see clearly. Like PW3 he admitted that he did not intervene to stop the assault or lodge a report to authorities despite the assault lasting 10 minutes in his presence. He agreed too, that he had a past disagreement with the Accused. 16. The visual and voice identification evidence by PW3 and PW8 requires close scrutiny. In the case of Wamunga -Vs- Republic, [1989] KLR 424 the Court of Appeal exhorted: “Where the only evidence against a defendant is evidence of identification on recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that circumstances of identification were favourable and free from possibility of error before court can safely make it a basis of a conviction.” 17. In its more recent decision in Joseph Muchangi Nyaga & Another -Vs- Republic [2013] eKLR the court repeated the exhortation, stating interalia that: 14: “Evidence of visual identification should always be approached with great care and caution (see Waithaka Chege -Vs- Republic [1979] KLR 271). Greater care should be exercised where the conditions for a favorable identification are poor. (Gikonyo Karume & Another -VsRepublic [1980] KLR 23). Before a court can return a conviction based on identification of any accused person at night and in difficult circumstances, such evidence must be water tight. (See Abdalla Bin Wendo & Another -Vs- Republic (1953) 20 EACA 166; Wamunga -Vs- Republic [1989] KLR 42; and Maitanyi -Vs- Republic [1986] KLR 198). Before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him...” 18. Clearly, the conditions obtaining at the time of the incident allegedly witnessed by PW3 and PW8 were not favourable to positive identification of the two subjects mentioned or visibility regarding what was going on. Regarding the latter, it is notable that while both PW3 and PW8 asserted that the assault weapon was a stick or piece of wood, the post mortem examination revealed that the deceased had sustained sharp cuts to the scalp with massive blood loss. 19. There was admittedly, no real source of light before the alleged appearance of the Accused’s mother with a torch. It is true that the witnesses were well known to the deceased and the Accused, but it is unlikely that at 7.30pm, PW3 and PW8 could identify him without light at a distance of about 2 ½ metres and 10 metres, respectively. Evidently remaining at the same distance, the witnesses claim to have seen

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the mother of the Accused come to the scene with a torch. For PW3, the light confirmed for him the identities of the people in the incident, so clearly as to see blood in the hands of the Accused. He did not state how close the Accused’s mother came to the scene or how bright the torch was and its proximity in relation to the Accused person. Ditto PW8. 20. The Accused’s mother testifying as a defence witness denied having witnessed the assault incident, asserting that she was in her house on the material night watching television, hence putting to doubt the only possible chance that the witnesses saw the Accused in the light of her torch. In addition to the evidence by DW1, it is notable that PW3 and PW8 who from their testimony must have witnessed the same incident simultaneously, were unable to see each other, if present at the scene. 21. PW3 did not mention the presence of PW8 but the latter clearly denied having seen PW3 at the scene at the material time. Secondly, even as news of the disappearance of the deceased spread within Kisiriri, neither PW3 nor PW8 volunteered information of what they claim to have witnessed on the material night even to fellow elders including Peter Odedia Keleli (PW2) and Julius Olonana (PW5). They only recorded statements after the body was discovered on 25th December, 2014, 22. Not only is the identification evidence by PW3 and PW8 doubtful, in the circumstances, but also their claims to have identified the voices of the Accused, deceased and Accused’s mother are equally challenged. Significantly, while PW3 said the deceased referred to the Accused as “Mwalimu” which the witness understood to refer to the Accused, PW8 said she called him by his name “Dan”. 23. Regarding voice recognition, the Court of Appeal observed in Karani –Vs- Republic [1985] KLR 290 that:“Identification by voice nearly always amounts to identification by recognition. Yet as in other cases, care has to be taken to ensure that the voice was that of the Accused, that the Complainant was familiar with the voice and that he recognized it and that there were conditions in existence favouring sate identification.” 24. Possibly, the witnesses were familiar with the voice of the Accused and the deceased in light of the fact that they had previously interacted as residents of Kisiriri. However, this evidence too must be viewed within the context of the entire testimony of the witnesses. To this court, the admitted conduct of both PW3 and PW8 speaks louder than their words. 25. Here were two men, allegedly drawn to a scene by the cry for help by an old drunken woman who is known to them. They watch her brutalized by a man equally known to them for well over 15 minutes, do nothing and eventually go away. They do not report to any authority including Julius Olonana (PW5) the local chair of Nyumba Kumi, or the police officer identified as ‘Nick’ and with whom PW3 was seemingly on phone contact, even after news of the woman’s disappearance was received in the village. This evidence sounded more incredible in light of DW1’s testimony. 26. The Accused had no duty to prove his alibi defence (See Osiwa –Vs- Republic [1989] KLR 469). The onus lay on the prosecution to establish by water tight identification evidence that the Accused committed the unlawful act leading to the death of the deceased. Reviewing all the evidence placed before me, I am not satisfied that the prosecution has successfully discharged that burden in this case. 27. It would seem that other suspects, including one Meeli, a brother to Peter Odedia Keleli (PW2) and one Mapengo Kasi had been implicated in the murder. Inexplicably, these persons were not pursued by police even though, with regard to Meeli there was established to have been a serious disagreement with the deceased some days before her death. PW4 was alarmed enough by the incident to call her mother warning her to avoid “those people” who had, after the incident threatened to harm the deceased. 28. Evidently, the body of the deceased was found in a wheat farm a distance from the Accused’s home. While PW1 stated that the first set of the deceased’s clothes were found on the road close to the Accused’s home, there is no firm connection between the presence of the body in the wheat farm and the

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Accused. Possibly, the Accused became a suspect for the very reason given by PW1. Whatever the case, the prosecution case as presented was shaky and does not rise up to the threshold of proof beyond reasonable doubt. I therefore find the Accused not guilty as charged and acquit him under Section 322 (1) of the Criminal Procedure Code. Delivered and signed in Naivasha this 14th day of July, 2016. In the presence of:For the DPP : Mr. Koima For the Accused : Mr. Waigwa Accused : Present Court Assistant : Barasa C. MEOLI JUDGE

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