Criminal Division v Geoffrey Lubembe Khasiani & 1 other

5. PW3 Simeon Kwalumwa Andakalwa (Simeon) is uncle to deceased. He corroborated the testimonies by Pius and Silvanus. After receiving the call from Pius, he rushed to the scene and found the deceased in critical condition. The deceased told him that at about 8.00PM he was cooking when people entered his house. The first three persons were Thomas Shanza, Geoffrey Khasiani and Rodgers Odunga but there were 7 men in total. They removed him from the house and started walking with him along the road while assaulting him. He managed to hit Thomas Shanza on the right hand side of the face. Simeon together with Pius took the deceased to the local hospital but were advised to take him to Kakamega PGH. They took him home first to make arrangements for transport, but at about 4.00AM at night the deceased died. 6. PW4 was Dr. Dixon Mchana Mwaludindi Kakamega County pathologist. He conducted the post mortem examination on the body of the deceased on 2nd July 2012. Externally the body had multiple non-extensive injuries on the scalp, face, both front and back trunk and both legs. There were whip marks on the back and lacerations on fore- arms and legs. The whip marks were less than 2 days old. The deceased’s fingertips, lips, tongue and eyes were all blue in colour. There were defence injuries as well. There was evidence of medical intervention namely dressing and tape on the limbs. The body had blood clots under the skin in the chest but no fractures. There was a lot of bleeding under the skin in the abdomen and in both kidneys. There was very little urine in the bladder which would imply shock. There was a blood clot under the scalp above the right ear but there was no bleeding inside the scalp though the brain was swollen. Consequently, Dr. Mchana opined that the cause of death was extensive soft tissue injury secondary to blunt force trauma secondary to assault. He produced the post mortem report which was marked PExh. 2. He filled permit no. 227255. He also took some blood sample from the deceased and handed it over to the investigating officer for DNA matching. The Defence Case 7. When put on their defence the accused persons gave sworn testimony and called one witness. DW1 Geoffrey Ikhunyalu Lubembe, 1 st accused person, denied the allegation of murder, stating he only learnt about it on 19 th May 2014 when he was arrested. On that day he was at the shamba of Sevenzi Khasatsili weeding maize. At about 9.30AM people armed with pangas and axes entered the shamba and started cutting trees. Among the people were one Boaz Ashiono and Godwin. He went and reported the matter to Sevenzia and then went back to the shamba after five minutes where he found the people he was working with – namely Ikura, David, Geoffrey Ashiono and 2 nd accusedhad apprehended Godwin. They took him to Sevenzia together with the felled trees. She called the assistant chief, Pius, who advised her to take Godwin to his office. They did so. He later advised them to take Godwin to Malakia Police Station. When they got to the police station, Godwin was put in the cells but they were told to wait until 3.00PM when they were to record their statements. At 3.00PM, he together with his co-accused were ushered into a room and locked inside. Sevenzia was not placed in the cells. He looked through the window which had wire mesh and saw a man carrying an envelope which he gave to the OCS then the man left while laughing. The young man was Felix Muswanyi who is his cousin. The envelope was an A4 khaki envelope but he did not know what was in it. Felix took the envelope to the office of the OCS but he could not see inside the office. He saw the OCS, Mugo and Felix enter the office together but he could not tell who exactly between the OCS and Mugo received the envelope. He did not know whether the envelope contained a bribe. 8. The 1st accused stated further that on 21 st May 2014 they were taken to Malinya CID where they were informed that they had killed somebody but they were not told when they committed the offence. An order was made to take them to Kakamega police station. It was the 1st accused person’s evidence that it is the assistant chief Pius who knows the people who killed the deceased, and further that both Pius and Silvanus did not mention his name. He stated that from 2012 to 2014 he was at home throughout and could not tell why he was not arrested during those years. He produced his department of social development card issued to him in 2010 which confirmed that he lived at home (DExh – 1). He also confirmed that he did not know the deceased or the other witnesses brought to court apart from Pius, who he has no grudge with. 9. DW2, the 2nd accused gave his name as Rodgers Otunga Shibeka. He reiterated exactly what DW1 had told the court. He also produced his department of social development card (DExh 2). He declared that on 26 th June 2012 he worked in his shamba the whole day and then went to sleep. He had no information concerning the death of the deceased neither does he know who killed him. He affirmed that he does not know the prosecution witnesses apart from Pius. Further, that his name was not mentioned by any witnesses neither did the witnesses tell the court they saw him and his co-accused kill the deceased. 10. DW3 Sevenzia Khasatsili corroborated what was stated by DW1 and DW2. She affirmed that the accused persons have continuously lived at their homes throughout. That she had never heard of any murder charge against them. Neither has she heard that anyone had been murdered in her area. That they are before court because of a land dispute involving her land. She also stated that she had no grudge with Pius. She asserted that she does not know the deceased. Submissions 11. In their written submissions, the accused persons submitted that there is no tangible evidence that they had any interaction with the deceased either prior to or on the material day. Further that there is no concrete evidence as to whether they were acquaintances, enemies or had any reason to quarrel or fight. That the evidence adduced by Pius, Silvanus and Simeon was not consistent and had glaring discrepancies thereby throwing their credibility in doubt. Defence counsel relied on several authorities such as Ndungu Kimanyi v Republic [1979] KLR 282, Musa Njuguna Gachuru and Others v Republic [1962] EA 673 and Kihara v Republic [1968] KLR 473, for the proposition that the credibility of witnesses is crucial in determining whether the case about which such witnesses have testified stands or falls, and where the court doubts credibility of a witness, the evidence of such witness should be rejected. The Law 12. The offence of murder is defined as follows by Section 203 of the Penal Code: “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

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13. From the definition, the key ingredients of murder that need to be proved beyond reasonable doubt by the prosecution are: 1. The fact of the death of the deceased 2. The cause of such death 3. Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly 4. Proof that the said unlawful act or omission was committed with malice aforethought. Analysis and Determination 14. The first and second issues relate to the fact and cause of death. According to the prosecution witnesses the deceased was assaulted before he met his death. This was confirmed by Dr. Mchana and the post mortem report produced as Pexhibit 2 which showed that the cause of death was extensive soft tissue injury secondary to blunt force trauma secondary to assault. The injuries suffered by the deceased were not self-inflicted but were inflicted on him by another person (s). In addition, Dr. Mchana testified about the presence of defence wounds on the deceased’s body. Therefore, I am of the view that the fact and cause of death of the deceased have been satisfactorily proved. 15. With regard to the third issue, the prosecution has to establish that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons. According to Pius and Silvanus, when they asked the deceased who attacked him he mentioned the accused persons together with one Thomas Shanza as the people the deceased could identify. Simeon confirmed this when he told the court that when the deceased was telling Silvanus who had attacked him he (Simeon) was standing on the side and he could hear the conversation. 16. Under the law, Section 33 of the Evidence Act, permits the admissibility of statements made by a deceased person relating to the cause of his death. The section reads: “33. Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases– (a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question; …” 17. In spite of the above provisions, courts are alive to the danger of basing a conviction solely on dying declarations which must always be received with caution. This was the position held by the Court of Appeal in the case of Philip Nzaka Watu v Republic [2016] eKLR where it expressed as follows: “Notwithstanding section 33(a) of the Evidence Act, courts have consistently held the view that evidence of a dying declaration must be admitted with caution because firstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe. This Court expressed itself as follows in CHOGE V. REPUBLIC (supra): “The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful considerations to tell the truth. In Kenya, however the admissibility of dying declarations need not depend upon the declarant being, at the time of making it, in a hopeless expectation of eminent death. There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.” 18. Pius stated that the deceased gave him three names: Shanza, Moi and Shiveko as the people who assaulted him. That Shanza and Moi are sons of Lubembe while Shiveko is the son of Pius. He averred that the deceased mentioned Moi Lubembe and that is how he knew Moi is the 2nd accused. That there is no other Lubembe who has sons called Moi or Shanza. On his part, Simeon acknowledged that in the statement he made to the police on 26 th June 2012 he stated that the deceased gave three names, that is Thomas Shanza, Moi and Shiveka, while in the court he gave the names as Thomas Shanza, Rodgers Shiveka and Geoffrey Khasiani. He admitted the names given in court are different from what he recorded. Silvanus on the other hand stated that the deceased named his attackers as Rodgers, Khasiani, Lubembe, Amunga and James. 19. If indeed the deceased declared who attacked him, why then did it take two years to arraign the accused in court taking into consideration they had not fled their homes? No evidence was adduced by the prosecution to establish that the accused had fled or demonstrated whether

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proper investigations were conducted to establish that the names uttered by the deceased pointed to the accused persons given that the evidence is wanting. When one looks at the names of the accused persons and the names allegedly uttered by the deceased there is no similarity, especially in view of the fact that there might be other people with similar names such as Godwin Shiveka whom Pius said was known to him. In my considered view, the dying declaration raises doubt and evidence adduced does not help to clear the doubt. This doubt must of necessity go to the benefit of the accused persons. This being a criminal matter the prosecution has the burden to prove its case beyond reasonable doubt, a burden which they failed to discharge. The prosecution has failed to prove that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons. Resultantly, the prosecution also failed to prove that the said unlawful act or omission was committed with malice aforethought. Conclusion 20. From the foregoing, I am satisfied that the prosecution have failed to prove their case against the two accused persons beyond reasonable doubt. Therefore, I find Geoffrey Khasiani Lubembe, 1 st accused, and Rodgers Odunga Shiveka, 2 nd accused, not guilty of the murder of Richard Achesa Chaluwa and accordingly acquit them under section 322(1) of the Criminal Procedure Code. 21. Unless otherwise lawfully held each of them is to be released from custody forthwith. It is so ordered. Judgment written and signed at Kapenguria. RUTH N. SITATI JUDGE Judgment delivered, dated and countersigned in open court at Kakamega on this 26 th day of October, 2018. J. NJAGI JUDGE In the Presence of: Mr. Ngetich for State Mr. Munyendo holding brief for Mukhwana for Accused George – Court Assistant

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