Republic v Charo Mzungu & 1 other

accused persons alleged witchcraft against the deceased which was followed with threats on his life. PW5 – No. 104661 PC Abdalla Muwazo, a police officer gave evidence that he investigated the case in conjunction with Sgt. Oyaro. In their investigations (PW5) told the Court that it emerged that accused persons participated in the commission of the offence of murder against the deceased. Determination The approach to adverse inferences on a motion of no case to answer or existence of a primafacie case is consistent with the letter and spirit of the provisions under Section 306 of the Criminal Procedure Code. The first question of relevance is whether the prosecution has been able to adduce sufficient evidence capable of establishing the elements of the charge beyond reasonable doubt for the Court to sustain a conviction. At the second stage is whether on consideration of all the various matters which have been set out in the prosecution case its easier to call upon the accused to testify without endangering his right to silence in Article 50 (2) (1) or presumption of innocence under Article 50 (2) (a) of the Constitution. If the answer to the first question is in the affirmative its said that the prosecution has presented a primafacie case. Therefore, the accused has a legitimate right to be placed on his defence. Whereas in the second stage, it emerges that none of the elements of the offence has been satisfactorily proved there is no case for the accused to meet in the form of a defence and as such a motion of no case to answer succeeds. In R v Johnson {1993} 12OR 3d 340 C.A. the Court on this point held interalia: “It is not so much that the failure to testify justifies an inference of guilt, it is rather that it fails to provide any basis to conclude otherwise.” “on the other hand, in the face of proven facts calling out for an explanation, the failure of the accused to testify has evidentially significance when the accused is in a unique position to provide such an explanation. Failure to testify is not evidence of guilt. It cannot be used to relieve the crown of its burden of proving guilt beyond a reasonable doubt. However, when an innocent explanation for an incriminating set of facts is not offered by the accused, or when his explanation comes solely from an out of court statement which has been introduced in evidence, if he does not submit himself to cross-examination, the judge, or jury may properly draw from that an inference unfavourable to the accused….” The hallmarks and conclusive determinants of the provisions under Section 306 of the Criminal Procedure Code are as articulated in the landmark case of R v Galbraith {1981} 1 WLR 1039 – Lord Lane observed the following: “1. If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. 2. The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a). Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. Where however the prosecution evidence is such that the strength or weakness depends on the view to be taken of the witness reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts, there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury or in our case by a trial judge (emphasis added) (See also Sanjit Chaittal v The state {1985} 39 WLR 925 R. T Bhatt v R {1957} E. A. 332) A further clearest exposition on this point can be found in the Queen v Home Parsons & others BVI Criminal case No. 9 of 2005 Joseph Olivetti states: “the judge does not have to consider whether the crown have proved the case beyond reasonable doubt as if the judge is required to do so, then that will amount to an usurpation of the jury’s functions which, it follows, is strictly to be guarded against. “ The real question is to decide whether there is sufficient evidence on which a reasonable jury properly directed might convict.” It is now time to turn our attention to the charge of murder contrary to Section 203 of the Penal Code. It is important to appreciate that on the face of it for the prosecution to secure Judgment in their favour as against the accused persons the chain of causation between the death and the unlawful conduct must be proved. Without proceeding very far these includes: (i). That the deceased is dead. (ii). That the death was unlawfully caused by the accused persons. (iii). That besides the unlawful act or omission there was malice aforethought and (iv) Finally there is primafacie evidence directly or circumstantially placing the accused persons at the scene (See Uganda v Bosco Okello 1992 – 1993 CHCB 68).

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In the instant case, the facts leading to the charge are that in the night of 31.7.2018 a murder occurred at the home of the deceased following an attack by two men. At the time the suspects were coming into the compound (PW1) wife to the deceased was in the kitchen. The home and environ was not illuminated with any lights but she was able to hear the distress call “I am dying alone” it is at that time (PW1) rushed to the scene and noted severe injuries to the head, arms and neck. Noticing that he was under serious danger in company of other neighbours, they took him to Malindi Sub-county hospital. He was succumb to death immediately thereafter on the same night. Regarding the severity of the wounds its clearly captured in the post-mortem dated 2.8.2018 that the deceased suffered multiple lethal injuries to the head, left side of the face, right upper limb, left upper limb, deep cut wound at the back. The use of actual violence armed with an offensive weapon or not against the alleged victim to inflict grievous harm or cause death is significant to proof a charge of murder under Section 203 of the Penal Code. The Court in Juma Lubanga v R {1972} HCD – 225 held that: “grievous harm as defined in the Penal Code involves a considerations whether the harm is such as seriously to interfere with health or comfort, and the answer to the question may depend on the nature of the injury and the circumstances of the case.” According to Dr. Abdul Hussein there is regrettably no doubt that the deceased cause of death was severe deep cut wounds to the body leading to acute blood loss. It is important to note that the deceased Kahindi Katana Mzungu is dead. It is also necessary to appreciate from the evidence of (PW1) and as fostered with that of (PW2), (PW3) and (PW4) without question the deceased cause of death arose out of the serious and brutal injuries inflicted by the assailants. Its trite that in terms of Section 203 of the Penal Code the unlawful and intentional killing of another human being is outlawed. In our case there are at least two distinctive facts for determining that the death was unlawful. This appears from the evidence of (PW1) who stated that at that particular time and night, two men walked through their home under the pretext of seeking directions leading to a specific destination. It dawned to the deceased that he was the only one available to offer such assistance. The sequence of unlawful conduct contemplated by the culprits was dutifully achieved of inflicting the fatal injuries. The consequence that flows from the evidence is to the effect of this Court concluding proof of the essential ingredients for the offence of murder evidence relating to the death of the deceased, the evidence of Doctor Abdul Hussein is specific in showing the grievous harm suffered and strikingly qualifying the cause of death (in DPP v Jordan {1977} AC 699): “An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.” In the present case the evidence in respect of the ultimate cause of death has been given by the doctor who performed the post-mortem. Finally, the evidence on malice aforethought as defined under Section 206 of the Penal Code tends to show the unusual characteristics already referred to in Rex v Tubere s/o Ochen {1945} 12 EACA 63, Ernest Asami Bwire Abanga alias Onyango v R Nairobi CACRA No. 32 of 1990, Karani & 3 Others v R {1991} KLR 622. Similarly in the case of R v Jared Otieno Osumba {2015} eKLR the Court emphasized thus: “these injuries are in my view inconsistent with self-defence as portend excessive morphing into malice aforethought. Likewise the nature of the multiple injuries at the front and back inflicted by a sharp object negate the defence of provocation. It is clear that multiple stab wounds demonstrate malice aforethought as to do the extent of the injuries. These injuries could only have been intended to cause the death of or do grievous harm to the deceased.” “The Court in Ahmed Mohammed Saeed v R {1956} 23 EACA 396 held interalia that the intention to kill is inferred from the evidence tendered in support of the charge. That it is the duty of the Court to determine whether on the facts adduced, it could reasonably infer either that the accused intended to kill or that he at least know what he was doing was so eminently dangerous that he must in all probability cause death or such bodily injury as was likely to cause death.” (See also text book by William Musyoka on Criminal Law 2 nd Edition 2016 Law Africa Publishing House Pg 329 paragraph (c).” I therefore find that the prosecution proved malice aforethought within the meaning of Section 206 (a) of the Penal Code. In essence elements of malice aforethought for the offence of murder comprises: (a). An intention to cause the death of any person, or grievous harm to another, whether such person is the person killed or not or (b). Knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not or by a wish that it may not be caused.” In David Anyango Omoyo v R {2015} eKLR the Court held: “It is to be noted that once the prosecution proves one or a combination of the above circumstances, malice aforethought, will be deemed to have been established and in such a situation, there would be no escape route for the accused person.” The case of Tubere (supra) highlights some of the characteristics that manifest malice aforethought to wit. “the nature of the dangerous weapon used or manipulated to inflict harm, the violent and serious injuries inflicted against the parts of the body of the victim, the vulnerable part of the body targeted by the assailant. The unlawful acts of omission before,

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during and after the commission by the accused.” In the instant case, the evidence adduced by the four witnesses (PW1) – (PW4) demonstrate the execution of the murder by the perpetrators under the guise of seeking help to verify a route direction to some place was riddled with malice aforethought. First, (PW1) in her testimony made reference to the entry of assailants to their home. It was on that precise night the deceased was attacked sustaining fatal injuries. Pursuant to these injuries a post-mortem report examination detailed a narrative and an opinion which clearly manifests against all odds that the persons committed the murder unlawfully and with malice aforethought. It transpires that the attackers intended to kill is the particular deceased. Nevertheless, the case is a tragedy for several reasons. The facts of the case as affirmed by the (4) prosecution witnesses is remarkably based on circumstantial evidence. I am mindful of the approach laid down in Simon Musoke v R {1958} EA 715 and Musili Tulo v R {2014} eKLR. In the later case: “the Court of Appeal held “It follows that the evidence linking the appellant to that offence is circumstantial. We must therefore closely examine the evidence on record, not only as our normal duty as the first appellate court to arrive at own conclusions, but also to ascertain whether the record evidence satisfies the following requirements: (i). The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (ii). These circumstances should be of a definitive tendency, pointing towards guilt of the accused. (iii). The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” It is essential to note that circumstantial evidence in certain instances stands out to be the best evidence in a related case of R v Taylor Weaver & Donovan {1928} 21 CR APP R. 20: “Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which by intensified examination is capable of proving proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.” From these the next matter to which I invite attention is that evidence on identification against each accused person. Its abundantly clear that the only witness closer to retain the correct view on identification of the accused persons remains to be (PW1) – the widow to the deceased. The leading cases on the subject of what constitutes positive identification appears to be Wamunga v R {1989} KLR 424, James Tuega Omwenga v R CR Appeal No. 143 of 2011. It is fundamental to the state from the outset that every ingredient of the charge should be proved beyond reasonable doubt. In the instant case, its not disputed that the prosecution case dependent wholly on the single identifying witness of (PW1). That again is significant because of the safeguards set by the Law before a trial Court can place reliance on such identification or recognition evidence to commit the accused persons. There is in the present case evidence that on that particular night of 31.7.2018 (PW1) was in the kitchen. She only heard a conversation between the alleged assailants and the deceased which happened outside the house. But she seemed to recollect that the voices came from two people and a third one being the deceased. The events occurred very fast in circumstances described by (PW1) as lacking the necessary source of light. Consequently (PW1) was unable to identify or recognize any of the men who attacked the deceased. The various aspects of her evidence emphasizes that fact on identification and in absence of an identification parade the relevance of her evidence never resolved culpability of the accused persons in this enterprise. In my view the murder took place at night within the vicinity without any sufficient light. The witness (PW1) was awakened by screams from the deceased. She immediately left the kitchen for the scene and the armed attackers had since injured the deceased leaving him for death. The circumstances were not favourable for safe identification or recognition of the accused persons. Having reviewed the evidence of (PW1 – PW4) and the questions of Law raised in this trial. I am satisfied that the admissible evidence proves an offence of murder contrary to Section 203 of the Penal Code, upon which the Court may convict; if evidence is not forthcoming from the accused. However, one of the key elements in the context of the persons who acted voluntarily; unlawfully and with malice aforethought to kill the deceased remains in the realm of unknown. These questions as set out in R v Turnbull {1976} 63 CR Appeal 132 are remarkable in securing identification element for the accused persons to be found liable for the offence: “Whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused special need for caution before convicting in reliance of correctness of the identification is necessary the Court should warn itself of the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could be mistaken. The Court should further examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long time elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition might be more reliable than identification of a stranger, but even then the Court should remind itself…. That mistakes in recognition of close relatives and friends have been made sometimes.” The prosecution is under a legal duty to discharge the burden of proof as stated in Woolmington v DPP {1935} AC 462 to illustrate that the

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accused persons unlawful act accompanied with malice aforethought caused the prohibited right to life of the deceased. The upshot is that the motion of no case is allowed and its directed that accused persons have no case to answer, under Section 306 (2) as read with Section 307 of the Criminal Procedure Code. To this extent accused persons are hereby set free unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT MALINDI THIS 7TH DAY OF DECEMBER 2020 .............................. R. NYAKUNDI JUDGE In the presence of: 1. Mr. Alenga for the state 2. Ms. Mwania for the accused persons

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