Republic v Idd Wekesa Sibuta Simon Juma Bipore & 1 other

extended to skull, cut wounds on face and multiple injurie. Upon opening he found the skull had a fracture. He assessed cause of death to be due to severe head injury secondary to assault. Jocktan Walucho had compound fracture leading to massive bleeding. He assessed cause of death to be due to bleeding secondary to assault. The accused gave sworn evidence. Accused 1 IDD Wekesa testified that though he know the deceased, he did not know who killed him. He said he was arrested from a drinking place and taken to Malakisi police station. He denied during cross – examination of hearing any commotion during that night although his home is about 500 metres away. Accused 2 Simon Juma Bipore testified that on material day on 13.8.2016 he was in Bungoma in his bicycle transport business when he heard some people had been killed allegation of being a witch. He was later arrested. Accused Mohammed Wanjala testified that on 13.8.2016 he worked at his firm and later went to drink. He later learnt that a witch had been killed. On 21.9.2016 he was arrested at his home and taken to Malakisi police station and later charged with present offence. Mr. Wattanga for all the accused filed written submission. He submitted that the investigating officer confirmed that the deceased were killed by a mob. He further submitted that the accused were all arrested at place of drinking and were among the 14 people who were arrested as suspects but others were released when they gave out money to police. The accused were charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code which provides; Section 203 penal code provides. 203: Any person who of malice afore thought causes death of another person by unlawful act or omission is guilty of murder. 204: Any person convicted of murder shall be sentenced to death. The ingredients of the offence of Murder which the prosecution must prove are; In Republic Vs. Joseph Ekai Lomongin [2018] eKLR this court stated that in an offence of murder the prosecution must establish the three ingredients of the offence; 1. The killing or fact of death of the deceased; 2. existence of malice aforethought or mens rea and 3. The unlawful act or omission on the part of the accused the actus rheus. 4. That it is the accused who inflicted the injury. Death and cause of death was established by the evidence of Pw1 Dr. Haron Ombongi who testified that the deceased died as result of injuries on the head leading to the skull fracture by each. The issue this court has shown determination is whether the accuse either singly or jointly inflicted the injuries as the deceased in Count 1 and Count 2. In Republic Vs James Ogwang Alicho & Another [2018] eKLR The issue which has to be determined in this case is that of identification. It is particularly important because the death of the deceased occurred in the night. The courts have held, and rightly so, that in a case where the evidence for the prosecution rests on the identification of the assailant by whatever number of witnesses be it by way of identification of a stranger” or the recognition of a close relative or friend, the court must be careful to properly direct its mind to the condition prevailing at the time of the identification. The court must also consider the length of time for which the witness had the accused under his/her eye. The purpose of this careful consideration is to eliminate the possibility of error which is bound to happen even in cases where the person under observation is a close friend or relative. See Joseph Ngumbao Nzaro – vs – Republic [1991]2KAR 212 There were only two witnesses who were present during the attack who testified. Pw2 stated I recognized some voice of the accused and that of Wafula. Wafula singing some circumcision songs. I heard Wafula say as we get there we beat up the father, mother and daughter. Wafula is also known as Namutila. I have known Wafula for long, we live together. He is a nephew. Wafula did not explain why. I peeped and Anna and I wailed saying we have been invaded. They hit the door and window and were cutting Iron sheets. They then cut my husband. They started struggling with mzee at the window, some got inside and attacked mzee. When I saw this I ran through another door. I had seen Wafula and the boys whose names I do not know. (Court asks witness to point at the boys). (She was unable to point them out). Upon cross – examination by Wattanga she said she said; It is true on 13th night we went to sleep. I cannot know exact time. The attack was at night. It was dark but not very dark. We heard noise while in the house. It was noise of many people. I recognized voice of Wafula

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Wamutila. They sang circumcision songs in the house. Pw3 SW In her evidence testified; They hit the door. Babu hit one of them with a jembe my mother came out saying do not kill my father. She went near the kitchen and was hit. Mum ran towards the road. They hit her and killed her and one escaped. They killed my mum and returned and called my grandfather. I was able to identify the people. They were Evans, Kitutu, Sinoko, IDD, Simon and Mohammed. I see some of the people (points at some) 3rd accused is Mohammed 2nd accused is Simon It is not in dispute that the witnesses knew the accused. Even the accused admits that they knew each other as they stay about 500 metres away. It is also clear from the evidence that the attack took place at night and it was dark. Pw2 testified that she would recognize the voice of Wafula who is also known as Namutila. She did not mention or testify that she recognized the voices of Accused 1 IDD and 2 Simon or Accused 3 Mohammed Wanjala. This witness therefore did not identify the accused as among the persons who attacked the deceased. Pw2 SW a child aged 11 years testified that she saw IDD hit Anne before she escaped to the read. She in Cross – examination admits that there was no light in the house but there was moonlight outside. She further stated; I did not see them beating my mum. I saw them beat Babu. Babu was in the house. There were may attackers. I could not tell who beat my grandfather. I heard them sing circumcision songs. I could not tell the lyrics of the song. I know the accused. The 2nd accused came and helped cut trees. He used to pass by greeting. He is not a neighbor. 1st Accused used to come. I saw 3rd Accused only once. The accused called grandfather uncle. The accused put forward an alibi defence. Accused 1 stating that on the material day he was at his home the whole night; Accused 2 thought he was in Bungoma and Accused 3 was at his home. All the Accused state they were arrested later along with many other people as suspects. The proof of accused as the persons who knew the deceased is a burden for the prosecution to discharge to the satisfaction of the court. In this case it is admitted the offence was committed at night and involved many people who attacked the homestead. The witnesses were in the house which did not have any form of light to assist in recognition and/or identification. The witness asserts that they saw the accused inflict injuries on the deceased under those circumstances cannot in any view be practical. The importance of identification in Criminal cases is that punishment is based on culpability. In Evaluating the evidence of the witness and the conditions obtaining, I am not satisfied that conditions were such that she would make positive identification free from error. In the result I am not satisfied that Accused 1 IDD Wekesa Sibuta and 2 Simon Juma Bipore and Accused 3 Mohammed Wanjala Sibuta were positively identified as the person or persons who inflicted the injuries on the 2 deceased in Count 1 and Count 2. I therefore find Accused 1 IDD Wekesa Sibuta Accused 2 Simon Juma Bipore and Accused 3 Mohammed Wanjala Sibuta not guilty of the offence of Murder and acquit each one of them under Section 215 of Criminal Procedure Code. Accused to be set at liberty unless otherwise lawfully detained. Dated at Bungoma this 10th day of March, 2020. S.N. RIECHI JUDGE

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