REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL CASE NO.E003 OF 2020 REPUBLIC.............................................................PROSECUTOR VERSUS ALLAN MUBIRO Alias SALIM ..................................ACCUSED JUDGMENT [1] Allan Ouma Mubiro alias Salim, is accused of murder contrary to S.203 read with S.204 of the Penal Code, in that on the night of the 19th September 2020, at about 1000hrs in Malomba village, Marachi East-Butula within the county of Busia, he murdered Fredrick Akwera Omusanga (deceased). [2] The case for the prosecution was that on the material night the accused proceeded to the homestead of Francis Juma Baraza (PW 1) and informed him that he had apprehended a thief. He (accused) was at the time holding a piece of timber and had a mobile phone torch. He led the way to his homestead and pointed at a locked house in which the thief was allegedly confined. He did not open the house and instead left the scene to call other people. [3] In the process, Francis (PW 1) alerted the area village elder locally known as “Omwami” who arrived at the scene and found that the accused had returned with other villagers. The accused was told to open the locked house and on doing so, the villagers confirmed blood stains in the house and found the alleged thief in one of the rooms having seemingly hanged himself. The deceased herein was the alleged thief. [4] Shadrack Oketch (PW 2) was one of the villagers who was awakened by the accused and led to the scene where the accused refused to open the door of the locked house until the wife of the deceased was called to the scene. He (accused) opened the door after the deceased’s wife arrived and they found the deceased hanging using some strings (P.Ex 1). It was at that juncture that the accused fled from the scene. The police arrived later and removed the dead body of the deceased to the mortuary. [5] P.C Peter Kibuguchi Wekesa (PW 3) was among the officers who arrived at the scene on receipt of the necessary report and commenced investigations. He found a crowd of people at the scene and inside the house he found the body of the deceased suspended from the top with some ropes or strings. It appeared that the deceased had hanged himself but had injuries on his body. [6] The actual owner of the house was said to be a widow who was allegedly involved in a love triangle with the deceased and the accused. P.C Wekesa (PW 3) gathered that the two male lovers of the widow (i.e the deceased and the accused) met in the widow’s house and a violent confrontation occurred between them leading to the death of the deceased. [7] The officer (PW 3) indicated that traces of a fight were found at the scene. He produced a post mortem report (P.Exh 2) prepared by a medical doctor indicating that the cause of death of the deceased was hypoxia due to tight cord around the neck. The report also indicated that there were other injuries on the body of the deceased arising from “RTA” which denotes Road Traffic Accident. [8] The accused was suspected of having caused the death of the deceased. He was therefore arrested and charged with the present offence. His defence was a denial and a contention that he merely locked the deceased inside the material house after finding him there with his (accused’s) wife and half naked inside his bedroom. He called his neighbours after locking the house from the outside and upon his return to the scene with the neighbours and a village elder, they found the deceased hanging on a rope in the bedroom. [9] The accused contended further that he did not kill the deceased as alleged and that the deceased actually hanged himself. That, he did not fight with the deceased even though he was shocked to find him, a pastor, inside his house at night. [10] It is apparent from the foregoing evidential facts that the deceased was found dead with strings or ropes around his neck inside a house which belonged to the accused’s inherited wife who allegedly disappeared from the scene after the incident. The house had been locked from the outside by the accused who informed his neighbours including Francis (PW 1) and Shadrack (PW 2) that he had apprehended a thief or intruder in the house and locked him therein.
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[11] Indeed, when the accused opened the door of the house and villagers entered therein they found the deceased already dead and seemingly having hanged himself using some rope strings although Francis (PW 1) noted the presence of blood stains in the house. P.W Wekesa (PW 3) also noted the presence of blood stains at the scene. He said that traces of a fight having occurred in the house were found in the cause of investigations. [12] The post mortem report (P.Ex 2) indicated that the cause of death was hypoxia due to tight cord around the neck. This means that the deceased died from oxygen deficiency occasioned by strangulation of the neck by use of a tight cord or rope strings. There being no dispute as to the cause of the death, the basic issue for determination was whether the deceased caused his own death by strangulating himself using tight cords or strings or his death was caused by another person who used tight cords or strings to strangle him, that other person being the accused herein. [13] If the deceased strangled himself, then that was a case of suicide, pure and simple, but if he was strangled by another person, then that would be a case of murder, written and executed by that person. No doubt, the death of the deceased was a mystery revolving around two narratives, firstly, that, the deceased committed suicide by hanging himself after being caught “ red-handed” in the accused’s matrimonial bedroom with the accused’s inherited wife, widow to the accused’s late brother. This was the theory floated by the accused in his statement of defence. Secondly, that the deceased was caught by the accused in the matrimonial home of the widowed wife of the accused and was in the process attacked and fatally injured by the accused who strangled him with pieces of strings to appear as if the deceased had killed himself. This is the theory which was advanced by the prosecution. [14] The two narratives notwithstanding in a criminal case the burden to prove a charge against the accused lay on the prosecution upon a standard of proof which is beyond reasonable doubt. There is no obligation on the part of the accused to prove his innocence. In order to unravel the mystery surrounding the death of the deceased, it was incumbent upon the prosecution to provide cogent, credible and sufficient evidence to prove beyond any reasonable doubt that the deceased did not commit suicide, but was attacked and fatally assaulted by the accused. [15] In that regard, no direct evidence was availed against the accused. The person who would have provided such evidence was the inherited wife of the accused but both the accused and the prosecution indicted that she disappeared from the area when events were unfolding or had already unfolded. [16] The prosecution therefore resorted to charging the accused on the basis of circumstantial evidence which raised suspicion that the deceased was strangled and killed by the accused. The suspicion was aroused by the accused’s conduct of awakening some of his village neighbours and telling them that he had apprehended a thief or an intruder in his house and locked him therein. But, when the villagers arrived at the scene, the accused declined to unlock the house immediately and when he eventually did unlock the house, the villagers were shocked to find the dead body of the deceased in a manner suggesting that he had killed himself. [17] Francis (PW 1) and Shadrack (PW 2) were among the villagers who were awakened by the accused. Francis, said that the apprehended thief (deceased) had hanged himself but pointed out that there were some blood stains in the house and that the accused fled from the scene after the discovery of the dead body of the deceased inside his house. In cross examination, he stated that he was unsure whether the deceased hanged himself or was hanged by the accused. [18] Shadrack (PW 2) confirmed that the accused fled from the scene after the dead body of the deceased was discovered in his house. He was also unsure whether the deceased hanged himself or was hanged by another person. The investigations officer P.C Wekesa (PW 3), indicated that the accused was arrested on 12 th October 2020, a month or so after the body of the deceased was found in his house on or about the 18th/19th September 2020. He was traced and arrested within the county of Kakamega. [19] It was further indicated by the officer (PW 3) that the impression created at the scene of the offence was that the deceased had hanged himself but there were some “tale tell” signs at the scene such as blood stains inside the house, injuries on the body of the deceased and traces of fight which all indicated that the deceased was a victim of an unlawful act. “Dead men tell no tale.”. Therefore, the tale herein could not be told by the deceased but those people who were with him at the time of his demise. These were the accused and his inherited wife who disappeared and is yet to be traced, dead or alive. This left the accused as the only other person who could tell the tale. [20] Indeed, in his defence, the accused told the tale and in the process implied that the deceased was the thief who stole his wife’s affection from him and due to his guilt as a man of God (pastor) he could not face the world any more and decided to kill himself. The accused further implied that he did not lay a finger on the “thief” and if he did, that his intention was not to hurt the thief. [21] However, the accused’s tale was discredited and disproved by the “tale tell” signs found at the scene of the offence together with traces of a fight as well as the appellant’s conduct of disappearing from the scene of the offence after the body of the deceased was found in his house and prior to that, his conduct of awakening his neighbours and announcing that he had apprehended a thief and locked him inside his house only for him (accused) to refuse to open the house immediately the villagers accompanied him back to the scene. [22] All the foregoing factors provided strong and credible circumstantial evidence against the accused indicating that he was the person responsible for strangling the deceased and attempted to hide the fact by making it appear that the deceased had committed suicide. The motive for his action was to cause harm to the deceased after finding him half naked with his wife in their matrimonial bedroom. The presence of the deceased in the accused’s house provided the accused with the greatest opportunity to execute his ill-motive. Unfortunately,
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the consequences were more than he had bargained such that his defence could not come to his rescue. Infact, it ended up portraying him as the villain rather than a saint. [23] It is therefore the finding of this court that the circumstantial evidence provided herein by the prosecution did credibly prove and establish beyond reasonable doubt that the accused was criminally responsible for the death of the deceased. He decided to mete out his brand of punishment against a person he considered to be a thief of love or if you like, “mwizi wa mapenzi”. In so doing, he came into conflict with the Law. He is hereby found guilty as charged and is convicted accordingly. J.R. KARANJAH JUDGE [DATED & DELIVERED THIS 3RD DAY OF MARCH 2022]
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