KTI.NO.667/2020 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI CRIMINAL CASE NO. 46 OF 2015 REPUBLIC..........................................................PROSECUTOR VERSUS MWANIKI MWANGANGI..........................................ACCUSED JUDGMENT 1. Mwaniki Mwangangi, the Accused, is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63), Laws of Kenya. Particulars of the offence are that between 23rd and 25th June, 2014 at Mathunzu Village, Kalive Sub-Location, Nzeluni Division, Migwani District within Kitui County murdered Gideon Wambua Sammy (Deceased). 2. Facts of the case are that on the 26th day of June, 2014, the decomposing body of the Deceased was found in the bush at Muthunzu. A postmortem carried out established that he died of haemorrhagic shock, cut right and left caretoid arteries and empty cardial chamber caused by an assault. Investigations conducted revealed that the Accused was one of the individuals who were last seen with the Deceased prior to him going missing. As a result, he was arrested and charged. 3. To prove the case, the Prosecution called ten (10) witnesses. PW1 Josephine Syomunyu Samuel testified that she was at her shop on the 23rd June, 2014 when Mohamed Simon went looking for the Deceased, her son, and when she went home in the evening she did not find him. After the Deceased disappeared she went in search of him at the home of the Accused but he declined to open for her and others the door and after she reported to the police the Accused was amongst the people who were looking for the Deceased. On cross examination she stated that the Accused, Mohamed and the Deceased were friends who associated closely. 4. PW2 Sammy Makindia Muthama was led to the thicket where the body of the Deceased was found by his children who had gone to fetch firewood. 5. PW3 Samuel Marusi identified the body of his son (Deceased) to the doctor who performed the postmortem. 6. PW4 Dr. Christopher Wahinya performed the postmortem on the body of the Deceased. 7. PW5, a minor aged 13 years, JS was with his brother, the Deceased when they encountered Muteti who had a memory card that belonged to the Deceased. The Deceased went away with Muteti and returned home at 7.30 p.m. Thereafter the Accused went to their home and left with the Deceased soon thereafter and that was the last time that she saw him. 8. PW6 JMM a minor aged 16 years had been sent to fetch water when he encountered the Deceased and his siblings. He requested him to wait for him as he needed to collect his memory card from his brother Muteti. They went together but when they encountered his brother Muteti Mutinda, the two (2) left together and he continued with his journey. 9. PW7 JMM a minor aged 17½ years had been sent to the river to follow his brother JM (PW6) when he encountered the Deceased his friend. He wanted his memory card that he had. The Deceased requested him to escort him to see a friend. He gave him the memory card but since he did not have a cellphone he requested if they could insert it in his (Deceased’s) sister’s phone but the Deceased said that he was not going home. They parted after reaching the path leading to Mohamed’s home. That was the last time that he saw him. 10. PW8 Sarah Simeon Makau testified that the Accused went home and requested to be allowed to go and drive animals with his son Mohamed. She gave them permission. She took medicine and slept early therefore saw Mohamed the following day in the morning. On cross examination she stated that her son Mohamed was arrested and released following the incident but she failed to understand why the police made her testify instead of her son.
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11. PW9 No. 79107 Corporal Jackson Karumba visited the scene where the body of the Deceased was found and caused it to be removed to the mortuary. 12. PW10 No. 233425 Chief Inspector James Kariuki visited the scene, investigated the case and found that the Deceased was last seen in company of the Accused person therefore caused him to be charged. On cross examination he stated that the scene where the body was found was disturbed; that two (2) suspects had been arrested, Mohamed and the Accused but Mohamed was released following directions from the Director of Public Prosecutions(D.P.P.) as there was no sufficient evidence to have him charged although per the opinion he formed both of them should have been charged. 13. Upon being put on his defence the Accused stated that the Deceased was his closest friend. He testified under oath that on the 23rd June, 2014 he passed by the hotel of Gedion’s mother where he had tea per his regular custom, then left for the farm where he stayed until evening when he returned home and slept. On the 24th June, 2014 he went to Nthuku Sammy’s hotel to have tea. She enquired from him if Gedion had slept at their home as he had left going to collect a memory card from Muteti the previous evening, then sent him to go and find out if Gedion slept at Makau’s place. He went and asked Munanie Mutinda if Gedion had been seen and learnt that he had been seen with Muteti Mutinda, information that was conveyed to Mutinda. 14. On 25th June, 2014 he went to the farm and upon returning joined people who were searching for the Deceased. On the 26th June, 2014 he went to Nthuku Sammy’s hotel. She gave him tea but was evidently not happy with him. He went to the farm and returned at 4.00 p.m. At about 6.00 p.m. he heard screams. He went to check only to find that the Deceased’s body had been found in the bush. He was present when the police arrived. He was one of the persons who carried the body to the roadside. Nthuku told the police that Mohamed had said that he knew where Gedion was. The police instructed Muteti Mutinda, Makau Mutinda and Mohamed Simon to go to the police station on the 27th June, 2014 and they complied. 15. In the evening he got information that he was required at the police station. He went on the 28th June, 2018 only to be placed in the cells. Makau and Mutinda were released leaving him with Mohamed, but, subsequently Mohamed was released. 16. Issues to be determined are whether: (i) Death occurred. (ii) The unlawful act that caused the death was perpetrated by the accused.and, (iii) It was with malice aforethought. 17. The mortal remains of the Deceased were examined by Dr. Waihenya. Following the autopsy, he formed the opinion that the cause of death was haemorrhagic shock, cut right and left cardiac arteries due to an assault. A certificate of death was issued which confirmed the fact of death. 18. The Deceased sustained grievous injuries. The left forearm was chopped off, there was laceration of the skin to the shoulder joint. The margins of the cuff were rough. There was a cut on the neck. The scalp was absent on the head. The spinal column had a cut. There was a sharp cut between the vertebrae and the ligament was cut. Severing a body of an individual leading to death is an act that is done unlawfully. 19. The body was found decomposing in the thicket. Nobody saw the individual(s) who did the heinous act. Evidence against the perpetrator of the act was therefore circumstantial in nature. 20. Principles of relying on circumstantial evidence were enunciated in the case of Sawe vs. Republic (2003) KLR 364 where the Court of Appeal stated thus: “In order to justify, on circumstantial evidence, the inference of guilty, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.” 21. In the case of Abanga alias Onyango vs. Republic Criminal Appeal No. 32 of 1990 (UR) thus: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: i. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, ii. those circumstances should be of a definite tendency unerringly 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.” 22. Following the incident, various suspects were arrested. PW3 and PW6 last saw the Deceased going off with Muteti (PW7). Per the evidence of PW7, he parted with the Deceased at a path that led to the home of Mohamed who was arrested but released following
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instructions by the D.P.P. Mohamed was not treated as a witness. His mother PW8 failed to understand why the Prosecution made her to testify instead of her son. She however testified that Mohamed and the Accused left going to drive animals. She could not tell where they were at night for she saw her son in the morning. 23. In the case of David Ruo Nyambura & 4 Others vs. Republic (2001) eKLR it was stated that: “The cardinal principle of law is that in a criminal case the legal onus is always on the prosecution to prove the guilt of an accused person, and the standard of proof is proof beyond reasonable doubt. The burden of proof therefore lies on the prosecution throughout to prove the guilt of an accused.” 24. The Prosecution had the duty of proving beyond any reasonable doubt the case against the Accused. 25. From evidence adduced, it was not sufficiently explained why the Accused was the one answerable for the death of the Deceased. The last person seen with the deceased was Mohamed. Having not testified, there was no evidence as to when the Accused met the deceased and possibly acted by injuring him. Therefore, evidence on record failed to connect the Accused to the unlawful act that caused the death of the Deceased. Without evidence of Mohamed it cannot be authoritatively stated that the Accused was the last person to be seen with the Deceased. 26. Therefore, the Prosecution has failed to prove the case against the Accused beyond reasonable doubt. 27. He is not guilty and is hereby acquitted of the offence of murder. 28. It is so ordered. Dated, Signed and Delivered at Kitui this 9th day of January, 2020. L. N. MUTENDE JUDGE
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