Republic & 1 other v Bonface Agoyi Kwavalai

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA CRIMINAL DIVISION CRIMINAL (MURDER) CASE NO. 45 OF 2013 REPUBLIC................................................................PROSECUTOR VERSUS BONFACE AGOYI KWAVALAI....................................ACCUSED RULING The Charge 1. The accused herein Bonface Agoyi Kwavalai was arraigned before this court on 26 th August, 2013, on one count of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on the night of 24 th and 25th day of August, 2013 at Lirhembe Sub-Location in Kakamega South District within Kakamega County, he murdered one BEATRICE IGANJI. 2. The accused pleaded not guilty to the charge as a result of which the prosecution called four witnesses in an effort to prove the charge against the accused. The Prosecution Case 3. The prosecution called four (4) witnesses and from their testimonies the prosecution case was that at about 2.00pm on 24 th August, 2013, the deceased herein BEATRICE IGANJI left her mother’s home accompanied by her younger sister Hellen Litwachi PW2. They also took the deceased’s baby with them and headed for the accused’s home which was not far from the deceased’s home. On arrival at the accused’s home, both accused and deceased left together. They were quarrelling over some money although they told Hellen Litwachi (Hellen) that they were going to Sigalagala to buy vegetables. 4. When the deceased and the accused took long in returning home, Hellen took the deceased’s child and returned home where her mother Rosemary Khasiala Shileho PW1 (Rosemary) was. As the evening wore on and the night came both Hellen and Rosemary went to sleep. 5. On the following day at about 6.00am Rosemary received news that the deceased had been killed. She went to the scene and found the deceased’s body lying just outside the accused’s house. The matter was reported to Malaika Police Station and the report was received by the then DCIO, Chief Inspector Kenneth Otieno, who testified as PW4 and was also the Investigating Officer. He went to the scene and while he was there, the accused was brought to the scene by Inspector Kariuki, the then Deputy OCS of Malaika Police Station. After investigations, the accused was charged with this offence. 6. On 27th August, 2013, Dr. Dixon Mchana Mwaludindi, PW3 conducted a port mortem examination after the body had been identified to him by Rosemary and one Roseline Ambayi. Dr. Mchana testified that the body of the deceased had bruises on the forehead head both forehands as well as one large bruise on the left upper thigh. There was also a fracture involving the neck on the 2 nd and 3rd neck bones. The doctor formed the opinion that the cause of death was an unstable neck fracture with evidence of blunt force trauma following assault. Submissions on no case to answer 7. At the close of the prosecution case Mr. Osango, Advocate for the accused submitted the prosecution had failed to establish a prima facie case requiring the accused to be placed on his defence. On his part prosecution counsel relied on the evidence on record. Analysis and Determination

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