REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA HCR NO. 41 OF 2018 REPUBLIC.............................................................................................PROSECUTOR VERSEUS JOSHUA SIMIYU TERE..............................................................................ACCUSED JUDGMENT The accused JOSHUA SIMIYU TERE is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 4th day of December, 2018 at Chebukwabi village, Kimilili Sub-county within Bungoma County murdered ABIUD SIMIYU TONISIO. The case for Prosecution is that on 4.12.2018 PW1 Sarah Akinyi was at the home of her grand father at 4 p.m. when deceased Abiud Simiyu Tonisio went there to borrow a bag from her. He then went away. At 8 p.m. deceased sent Francis Simiyu to call here to where he was. She went there and asked the witness to escort him as he was going to his home. She agreed. They started walking and suddenly a person came from behind them and hit the deceased on the shoulder. They started fighting. She was pushed and fell down. She ran away to the home of deceased and informed his brother Tony who ran to the scene. Tony later came and informed her that he had found deceased lying in a trench. She stated she did not see who assaulted the deceased and was forced to say it is Joshua the accused who had assaulted him. On being cross-examined by Maloba for accused, she stated it was at 10 p.m. and that she was forced to record what she stated in her statement to police. PW2 Tonisio Wafula Simiyu the brother of the deceased was at their home when PW1 Sarah told him to go and assist the deceased who had been assaulted by accused. He went to the scene and raised an alarm and people came who took him to hospital. PW4 NO. 61443 Copl James Nanjao the investigating officer received information a person had been assaulted. They went to the scene and found the victim had been taken to Dreamland hospital and he had died and body taken to mortuary. He commenced investigation and found that deceased had a love affair with Sarah a niece of the accused and that on material day Sarah and deceased were walking to the home of deceased and was assaulted by accused using a blunt object. The accused later come to AP post where he was arrested and later charged with present offence. PW3 Dr. Edward Simiyu performed the post mortem on body of deceased. He found there as swollen front part of the skull, the spleen was enlarged and brain swollen with pool of blood on the surface. He formed opinion that cause of death was due to intracranial haemohorage due to blunt trauma. The accused upon being put on his defence gave sworn evidence. He testified that on 4.12.2018 he was at his home and slept. At about midnight people came and hit his house and left. He went and reported to his father. They checked around the compound but did not see anybody. At 2 a.m. same people came and said they wanted Joshua (accused). The next day he went and reported to the village elder. He then met police officers who took him to the AP post. On being cross examined by M/s Nyakibia for state he stated he knows Sarah as his niece and on the material day he was at his home. The accused is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Section 203 provides: “Any person who of malice aforethought causes death of another person by any unlawful act or omission is guilty of murder.” From provisions of Section 203 Penal Code the ingredients of the offence of murder which the prosecution must prove are
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a) The fact and cause of death b) The unlawful act or omission that caused the death c) That it is accused who occasion the unlawful act or omission or inflicted the injuries that caused the death d) That the accused had the intention of causing death or malice aforethought. The prosecution in a criminal case must prove all the above ingredients to the beyond reasonable doubt standard. In Criminal Justice is that an accused person under Article 50 (2) (a) of the constitution has the presumption of innocence in his favour guaranteed in the bill of rights unless the contrary is proved by the state beyond reasonable doubt. That burden of proof is well settled that it’s the state that bears the responsibility at all times. The well established jurisprudence on this doctrine that the deceased guilty rests on the prosecution to proof the charge beyond reasonable doubt can be traced way back to the cases of Woolmington versus DPP 1935 AC 462 and also Miller Versus Minister of Pensions 1942 AC. Whereas in the latter case Lord Denning stated on this phrase of beyond reasonable doubt as follows: “It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadows of doubt. The law would fail to protect the community if it admitted forceful possibilities to deflect the course of justice. If the evidence is so forceful against a man to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible but not in the least probable. The case is proved beyond reasonable doubt but nothing short of that will suffice.” PW3 Dr. Edward Simiyu who performed the post-mortem on body of deceased testified that on external examination he found swollen front of the skull. Upon opening the body, he found that the spleen was enlarged, brain swollen with a pool of blood on the surface. He formed opinion that the cause of death was due to bleeding to the brain due to blunt force trauma. He issued death certificate No. 1211659. This witness therefore confirmed the fact and cause of death. This fact of death is also confirmed by both PW1 Sarah and PW2 Tomiso the brother of deceased. The doctor (PW3) testified that the death was caused by a person inflicting injury on the head of the deceased using force. Who inflicted these injuries? The prosecution called PW3 the doctor who performed the post-mortem, PW4 the Investigating officer, PW2 Tomiso the brother of the deceased. None of these witnesses were at the scene when the deceased was being assaulted and did not give evidence as to who inflicted the injuries. The prosecution called PW1 Sarah Akinyi who was with the deceased on the material night. Her evidence was as follows: “The deceased came to my grandfather’s home to see me at 4 p.m. He wanted to borrow a bag. I told him to come later. He came later at 8 p.m. He told my uncle Francis Simiyu to come and call me. He called me. I went there. Deceased asked me to escort him as he was going to his home. I agreed. On the way a person came from behind and started fighting with deceased. He hit deceased on the shoulder with an iron bar. Deceased screamed. The person pushed me and I fell down. They continued fighting. I ran away. I did not know who was assaulting deceased. I ran to the home of deceased. I found his brother and informed him of the incident. I did not go back to where deceased was. I informed police that the person who had told me to stop the relationship with deceased was my uncle Joshua Simiyu. He is the accused. On that day he was at home. I did not see him. I was forced to record that it is Joshua who killed deceased. I was forced by the one who was recoding the statement. The person did not call me. I told my mother. She is in court.” The evidence of this witness is what was tendered by the prosecution to connect the accused with the assault on the deceased. This witness testified that she did not see accused; as the person who assaulted the deceased. She testified that the information she recorded on her statement was forced on her by police. This statement was never produced in court by the prosecution or even her assertion that it was forced on her challenged. This in my view leaves the prosecution with no evidence that it is accused who assaulted the deceased. The consequence of this is that the prosecution has failed to prove the charge of murder against the accused beyond reasonable doubt. I therefore find the accused Joshua Simiyu Tere not guilty of the offence of murder contrary to Section 203 of the Penal Code and acquit him under Section 215 of the Penal Code. I order that the accused Joshua Simiyu Tere be released unless otherwise lawfully detained. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 1ST DAY OF FEBRUARY, 2022. S.N RIECHI JUDGE
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