Barisa Wayu Mataguda v Republic [2014] KECA 42 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

{CORAM: NAMBUYE , OKWENGU & KIAGE, JJ.A)

CRIMINAL APPEAL NO. 376 OF 2012 ( R)

BETWEEN

BARISA WAYU MATAGUDA...................................................APPELLANT

AND

REPUBLIC........................................................................... RESPONDENT

(Appeal from a judgment of the High Court of Kenya at Mombasa (Odero, J) dated 20th September, 2012

in

H.CCR. NO. 6 of 2008)

***********

JUDGMENT OF THE COURT

The appellant  was arraigned in  the High  Court at Mombasa vide Criminal Case No. 6 of 2008  on the offence of murder contrary to Section 203  as read with Section 204 of the Penal Code. The particulars of the offence were that Barisa Wayu Matagudaalias Abdul on the 9th day of February; 2008  at Karama Guest House in Mwembe Tayari Mombasa District within Coast Province murdered Eunice Mwelu Kingoo.

The appellant denied the offence. The prosecution tendered evidence through thirteen ( 1 3)  witnesses,  whereas the  appellant who gave an  unsworn statement, was the sole witness for the defence.

The brief facts of the prosecution case are that, the deceased was a daughter to PW7  Bernard Kingoo Mutiso, niece to PW6 Veronica Mweni  ]ames and sister to PW3 Willy Mutiso Mulandi. She lived in Mombasa with a young brother who was schooling at Kongowea Secondary School. It is not clear from the record what she was engaged in as a source of living. In the month of August, 2007  the deceased had taken the appellant  and his  father to her home and introduced him as her husband-to-be and his father  as  the  father-in-law-to-be. The appellant was introduced by one name only ?Abdul"and appellant's father by the name ?Wayu”

On 9th day of February, 2008  at 1. 00  p.m PW1  in the course of her daily routine at her place work at Karama Guest house owned by PW4, booked in room 211 a guest who had come in accompanied  by a lady covered  in a bui bui, and one who introduced himself verbally  by the name of Baya Kahindi and ID Card No. 21571035. On the same day at 8. 00 p.m or thereabout the body of the deceased was discovered in the same room 211 covered in a blanket with blood splattered on the wall. A phone recovered in the room enabled police to get through to PW6, whose particulars had been saved in the said phone under the title?Aunt”.She in turn alerted PW3 and PW7 and informed them of the death of the deceased.

With the help of images on the CCTV devise installed at the Quest house, PW1, PW7, PW6 and PW3 were able to identify the appellant to police as the man who booked himself in at the Quest house with an unidentified lady in a bui bui and the man seen on the CCTV Camera leaving room 211 alone at about 5. 00 pm on the same day. This information led to  the arrest of the appellant. Post mortem carried out  on  the  body of the  deceased by PW9 Doctor Mandalya  revealed presence of a superficial  cut on the neck, foam in  the mouth, massive  bleeding internally transsection of  the  major blood vessels,  fracture of  the  1st   and  6th vertebrae. Cause of death was haemorrhagic shock due to cut wounds on the neck.

Upon the  appellant's arrest, he  was taken to  the police station. An Identification  parade was conducted whereby PW1  identified  the appellant as the man who had booked himself into room 211  at the Quest house with a  lady wearing a bui bui. The appellant's finger prints were taken and sent to the Registrar of persons to determine his true identity.

The search revealed that the true names of the appellant were Barisa Wayu Motaguda holder of ID card Number 21356448. He hails from Tana River. He was born in the year 1978 in Wanje Division, Kuna Kuba location, Maseharo Sub- location. The appellant's fathers' details were given as Matagolo Wayu Wata, while those of the mother were given as Zena Nalako Wayu. The ID card number given at. the Quest house reception as number 21571035 belonged to a different person by the name ]uma ]aphet Mweri.

The appellant gave unsworn evidence denying involvement in the commission of the offence.

At the close of the entire trial, the learned trial Judge, Maureen Odero J, assessed, evaluated and  analyzed the  evidence before  her  and  then  made observations thus:·

?Having established the true identity of the  accused and the  fact that PW I  has positively identified him as the man who booked into room  No. 21 I   with the deceased, there exists circumstantial evidence linking the accused to the death of the deceased, in that he was seen in the company of the deceased a few hours before her  dead body  was recovered. Additionally PWJ; PW6 and PW3 all relatives of the deceased all identify the accused as a man whom they knew by the name  ?Abdul" and they all tell the Court that he  was the boy  friends; lover to the deceased. In his defence as stated earlier, the accused concedes that the deceased was his girl friend whom he intended to marry as a second wife. PW7 the father of the deceased confirmed to the Court that in August  2007 the accused came to his home with his  father seeking consent  to  marry his  daughter the deceased. It is quite clear that the accused knew the deceased very well. Therefore it cannot be  surprising  that  they  were together booking into a hotel on the material day”

The learned trial Judge then went on to state further thus:

?Although the CD was not introduced1nto evidence there is testimony from several witnesses who personally viewed the CCTV  footage. The accused was seen leaving the hotel at 5. 00 PM. PW4 the proprietor of the hotel did view the CCTV footage. She was able to positively identify the accused as the man she saw leaving the hotel at 5. 00 pm. The investigating officer PW13 told the Court that he too viewed the CCTV footage and was able to identify the accused as the man on the tape. Likewise PW6 the deceaseds’ aunt also viewed the CCTV  footage and was able to identify the accused as the man thereon...."

The evidence clearly shows that the accused booked into a hotel room with the deceased at  1. 00pm. He left a few hours later at 5. 00pm alone. Later the deceased is found dead in the room with blood splattered all over the wall No other possible explanation can be drawn from this set of facts other than that the accused killed the deceased inside that hotel room. If the deceased met with some misfortune or accident inside the hotel room then why did accused not alert the hotel management or call for help? The fact that accused calmly walked out of the room leaving the  deceased injured or  dead  proves that  he inflicted the injuries that killed her. No other person was seen to enter or leave room 211.  In his defence the accused whilst admitting that he spoke to the deceased on the material day denies that he went to the hotel room with her. However as discussed earlier, the evidence convincingly proves that it was the accused who went into that hotel room with the deceased. He was clearly seen and identified by PWI not  to mention the testimony of the witnesses who saw accused on CCTV  footage leaving the hotel.  None of the witnesses had any reason or motive to try to frame the accused.  I am convinced that they were telling the truth of what they had seen with their own eyes. For this reason I do reject the accuseds’ defence. Based on the weight of circumstantial evidence, I find that it was the  accused who inflicted the fatal cut on the deceased. As such, I am satisfied that the actus reus of the offence of murder has been proved."

Turning to the ingredients of malice afore thought, as set out in Section 206 of the Penal Code and while relying on the testimony of PW3, PW6 and PW7, the learned trial Judge concluded thus-:

"It is quite clear that this was an unhappy union. Each party had grievances against the other. Whilst there is no direct evidence on what transpired between the two in the hotel room, it is not far fetched to post that a quarrel or argument could have ensured leading to  the  attack by  the  accused on  the  deceased. The accused has not claimed that he was provoked nor did he raise the issue of self defence. Given that the accused left the room unarmed yet the deceased was badly cut and killed, it is only logical to conclude  that  accused was  the  aggressor. The savegeness of the cut  (major blood  vessels in  the neck  were severed and the fact that blood was splattered on the walls makes it clear that accuseds' intention was to kill the deceased. I am satisfied that mens rea  has been  proved. On the  whole I am satisfied from the evidence on record that the charge of murder has been proved beyond all reasonable doubt. I therefore convict the accused of this charge of murder"

The appellant was aggrieved by that decision and he has appealed to this court citing five grounds of appeal. These can be summarized as follows:·

(i) That  the  High  Court  judge  erred  in  accepting the  evidence  of identification by  PWI  without   considering that Chapter 46 of the standing orders had been contravened by PWI seeing the appellant before the identification parade, by  failure to indicate the position the appellant took on the  parade and lastly by  the investigating officer assisting the parade officer with the conduct of the parade.

(ii)  The learned judge wrongly relied on circumstantial evidence which had not been proved considering that PWI contradicted herself, the evidence of PW3, PW6 and PW7 should not have been given any weight, and lastly that the evidence was wrongly received in evidence.

(iii) By misdirecting her judicial mind by forming her own opinion contrary to law.

(iv) By wrongly connecting the  appellants arrest in  connection with the offence and yet nothing was recovered from him that connect him to the commission of the offence; and by  failing to give adequate consideration to the appellants defence which was reliable and created a doubt in the prosecutions case which doubt should have been resolved in favour of the appellant.

In his oral submission to Court, Mr. Ngumbau Mutua learned counsel for the appellant arguing all the five grounds globally urged us to allow the appellants appeal and set him at liberty. To learned counsel, the prosecution's evidence was not water tight. PW1 s evidence on identification was faulted because, she stated that she could not recall all the customers who came to the Quest house on the material date. As such there was nothing peculiar in the appellant which could have made her recollect his appearance. That she identified appellant on the identification parade because she saw him in the office just before she was called to the identification parade to identify him.

Learned counsel also faulted the identification of the  appellant  through  an alleged entry of an ID card on the room list because, there was nothing to link the appellant to that entry. Further, that the finger prints of the holder of the ID card bearing the number entered  in the  room  list were not taken  for verification and that no explanation was  given for the use of one receipt number 9822 more than once.

On the evidence of the CCTV  footage, learned counsel argued that once the learned trial Judge declined to admit in evidence the CD containing alleged footage images retrieved from the CCTV devise, she should not have accepted the evidence of  the witnesses who allegedly viewed the said footage on  the  CCTV devise and used it as a basis for adding weight to the evidence of identification of the appellant in connection  with the offence in issue; that  the  evidence of the  relatives of the deceased namely PW3, PW6 and PW7 should have been treated  with caution as they were out to do all they could to nail the appellant; that the evidence of these witnesses on the identification of the appellant in connection with the deceased's death through the CCTV footage was not water tight and should have been ignored; that neither the alleged murder weapon nor the blood of the deceased provided any  incriminating  value against the  appellant; that the  photographs tendered in evidence  were of no evidential value as they were taken at the morgue and not at the scene of the murder.

Turning to the appellant's defence, learned counsel argued that since it was undisputed that both the appellant and the deceased were lovers and they were planning to get married, there was no reason for the appellant to book himself and her in a hotel room and then give a false name,identity card number and also cause her death. That we should ignore allegations of existence of any bad blood between the appellant and the deceased as this piece of evidence came from the deceased's relatives who were prepared to do anything to nail the appellant.

On exculpatory evidence in favour of the appellant, learned counsel argued that the appellant had sufficiently exculpated himself  from responsibility  for the commission of the offence charged as the evidence on identification of the appellant in connection  with the commission of the offence was not water tight; that evidence on ill motive  had been sufficiently negated; that the falsity of the appellant's identity in  booking room 211 for  purposes of  the  commission of  the  offence stood controverted and lastly that both mens rea and actureus  which are   necessary ingredients for proving of the offence of murder were absent.

Mr. Robert Oyiembo Assistant Director of Public Prosecutions appearing for the state opposed the appeal and urged us to dismiss it. To learned counsel, there was sufficient evidence to support the conviction.  This is borne out by the fact that PW1 was confident about her identification of the appellant in connection with the commission of  the  offence as she  interacted  with him thrice;  that  is, when  the appellant  and  the  deceased inquired about  hiring a  room  and secondly when  he came to pay for the room; thirdly when he came to ask for a towel. The interaction took place in broad day light, the environment was friendly, there was no crowding. As such there was nothing to impede PW1's positive registration of the appellants appearance and identity.

Mr. Oyiembo urged us to believe the evidence of PW1 that the appellant was accompanied by a lady in a bui bui; that  bui bui was found in the room where the deceased was found murdered; that  the appellant was known to the family of the deceased, sufficiently to enable them  to identify him on  the CCTV footage; that there is nothing to suggest that these witnesses were prepared to do anything to nail the  appellant  as   they all testified that  they  knew the  appellant  by the name  of Abdul to which he responded as an alias; that the knife was the murder weapon  as it was found in the room hidden under the mattress, where the deceaseds' body was lying; that the blood stains on it matched the blood group of the deceased found on the pillow and towel;  that  malice aforethought was established by the nature of the injury inflicted as the person who inflicted the injury clearly intended to cause the death of the deceased.

This being a first appeal our  mandate  is as set  out  in  Rule 29(1) of  this Courts Rules namely to re-appraise the evidence and to draw our own inferences of fact. The appellant is therefore  entitled to expect   from us a fresh, thorough  and exhaustive assessment, appraisal and analysis of all the evidence that  was before the trial  court  so  as to  arrive at  our  own  independent  conclusion on  the  guilt or otherwise of the appellant.

In  Mrs. C Figgies versus Rex [1940719 KLR 32, the  Court  of Appeal  for Eastern Africa while quoting  with approval    the  decision   in the  case of  Coghlan versus Cumber land [189871CH, 704 had this to observe:-

?…….. The Court of Appeal has to bear in mind that its duty is to re-hear the case and the Court must reconsider the material before the judge with such other material as it may have decided to admit. The Court must then make up its own mind not disregarding the judgment appealed from, but carefully weighing and considering it, and not shrinking from overturning it if on full consideration the Court comes to the  conclusion  that  the judgment is wrong. When as often happens much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of a witness from written deposition and when the question arises which witnesses is to be believed rather than another, and that question turns on the manner and demeanor of a witness the Court of Appeal always is and must be guided by the impression made on the judge who saw the witness. But there may obviously be other circumstances quite a part from manner and demeanor which may show that a statement is credible or not, and these circumstances may warrant the court in differing from the judge even on a question of fact turning on the credibility of witnesses whom the court has not seen"

The  evidence  we  have  re-appraised,  re-assessed and  re-analyzed  raises the  following crucial  issues for  our  determination   in the  disposal of  this appeal,  first, proof of  both  the  fact of death  and  cause of death  of the  deceased;  secondly  the identity  of the  person or  persons  responsible for that  death;  and  thirdly  proof  of existence of malice aforethought in the causation of the death of the deceased.

With regard to  proof of both the fact and cause of death,  we agree with the learned  trial Judge  that  this was borne  out  by the  evidence  of PW2, PW3,  PW4, PW6,  PW7,  PW9,  PW11 and  PW12, which all went  to  demonstrate   that  the deceased was alive when she walked into Karama Guest  House in the company  of a man later identified as the appellant; the appellant was seen leaving that  room  211 at 5. 00pm alone; that her body was later found in room 211;  that  the body had a deep cut on the neck; it  was covered in a blanket; there was blood splattered on the wall.  The body was removed to the mortuary and post mortem carried out on it by PW9 confirmed the cause of death as the injury inflicted on the deceaseds' neck.

With regard to the  question  as to  who was responsible for the  deceaseds' death; the prosecution fronted  the appellant as the person responsible for the death of the deceased. The learned trial Judge after assessing, appraising and analyzing the evidence  that  had  been tendered   before  her  arrived  at  the  conclusion that  the appellant was the man who committed  caused the death of the deceased. We have been called upon by the appellant  to  overturn that  finding and  by the  State  to affirm that finding.

As  observed  by  the  learned  trial  Judge  in  her  judgment  sought  to   be impugned,  there  was  no  eye  witness to  the  commission of  the  offence.  The prosecution relied entirely on circumstantial evidence. The parameters within which a Court  of law can both receive and  rely on  circumstantial evidence to  found  a conviction have now been crystallized by case law. To quote a few, See the case of Rex versus Kipkering Arap Koske & Kimire Arap Matatu 26EACA  135,  Simon IMusoke versus Republic [1958[ EA 715 and more recently Sawe versus Republic [20031 KLR 364.

The  central  thread  running  through  all the  above  cited  decisions among numerous others is that the inculpatory facts established by the prosecution against an accused on the basis of which that accused is sought to  be convicted, must be such  that  lead  irresistibly to  the  conclusion of  the  accused's  guilt incapable of explanation on any other reasonable hypothesis other than the accused's guilt and are incompatible with the innocence of that accused.

The inculpatory facts fronted by the prosecution as against the appellant are those relating to facial identification  at the Guest house; identification through the room list kept at  the Guest house; PW1s identification  of the appellant in  an identification  parade conducted by PW8 and lastly identification  in the footage of the CCTV device installed at the quest house.

It was PW1s testimony that the appellant was the man who called at Karama quest house in  the company of a lady wearing a bui bui. He talked to PW1 and inquired of a room; It was day light between 12. 00  noon and 1. 00pm; PW1 gave him the liberty to choose a room of their choice; the appellant and his woman companion left to choose the room; the appellant returned alone; and informed PW1 that they had settled for room 211.  He paid Kshs.600. 00 and he was issued with a  receipt No.9822. Shortly thereafter the appellant came back again and asked for a towel.  PW1 handed him one. It is this threefold facial encounter which PW1 alleged formed the basis of her positive identification of the appellant on the identification parade conducted by PW8.

When cross-examined, PW l had this to say:-

?The lady customer who accompanied the accused had a bui bui. It was black and I could not identify her. The man had something like a shirt and a jacket. The jacket was bluish but I cannot exactly recall”

The testimony  in-chief of PW8 No.232185 IP Joel Kange in chief in part is as follows:-

?l prepared a team of 8 members. The suspect was 9th. I personally explained to the suspect the purpose of the parade. He did not raise any objection. I conducted the parade with one witness. The witness identified the suspect by touching.  The witness had not seen the suspect before the parade. I asked the suspect for comment on how the parade had been conducted. He did not object. He signed the identification parade forms. I also signed the form"

When cross-examined, PW8 had these responses to make:-

?l  indeed  conducted the  parade. It is not true that the parade took place in the crime office. The witness never saw the suspect before the parade. The open place is in the cells premises but not in the cells. I was in an open place in the cells premises. They are accused in the cells usually. But for the parade I had the suspect. I selected members of similar height, physique and same complexion. Two members were cancelled and I counter signed for the cancellation because the two were different

…………..

I wrote what the suspect told me in reported speech. He said he was satisfied with the parade and I recorded accordingly"

The appellant in his unsworn statement was silent about the evidence of facial identification at  the  Guest house, but had this to say about the  identification parade:-

?While I was in the cells, I was taken out to  the office where a lady was seated. Later a parade was conducted. The same lady identified me."

The observations of the learned trial Judge on the evidence of identification were as follows;-

?The accused came to the Hotel at I.00 p.m.it was broad day light. PWI spent ample time in his presence talking to him and recording his details. I am satisfied that PWI had a clear and unfettered view of the accused and was thus able to give a positive and reliable identification.  This identification of the accused is reinforced by the fact that PW I was able to positively identify the accused at a police identification parade on 17th day of February, 2008 at central police station by PW8 inspector Joel Kange. The accused voluntarily participated in the parade. PW8 told the Court that PWI did identify the accused by  touching him. The accused registered no complaint about the manner in which the identification parade was conducted''

Our own analysis of the evidence on facial identification is that, it was indeed correctly observed by the learned trial Judge that the two customers who called on PW1 at the Quest house seeking a room did so in broad day light at 1. 00pm. Only the lady concealed her facial appearance with a bui bui (veil). She did not also engage PW1 in a conversation.  The man customer had not concealed his face. He talked to PW1 thrice. There was no crowd on each of the three occasions when the man customer talked to PW1.

The appellant has sought to fault this evidence on the basis of the responses PW1 gave in cross-examination  over her ability to identify the customers who came to the Quest house at that particular time. PW1 had this to say:-

''I had attended  to customers before  l.pm but  I cannot remember the No. Some came in but two others were single. I cannot remember any of those customers. I however remember a Tanzanian who was a regular customer..."

It is our stand that this narrative relates to events before 1 .00pm. Nothing peculiar happened in   connection with the rooms rented out by PW1 before 1. 00PM. This room 211 rented out at 1. 00pm was however peculiar and events culminating in its rental could easily be registered and recalled by PW1 . Our reasons for saying so are, one, a couple was involved; two, they requested to view the rooms first; three, only the man customer engaged   PW1 in a conversation thrice. We therefore agree with the finding of the learned trial Judge that PW1 s view of this male customer was unimpeded and allowed room for the registration of the customer's appearance as events narrated took place in broad day light.

As regards the mode of the  conduct of  the  identification  parade, the identification  parade form was produced as an  exhibit. PW8 was firm that he complied with all the prerequisites set out in the said form. The learned trial Judge believed him. We have no reason to fault the learned trial Judge on that belief. Our reason for saying so are that, the appellant cannot be believed when he alleges in his unsworn statement that the witness saw him in the crime office before the parade.Had this been the case, he would have remarked so when asked if  he had any objection to make on the conduct of the identification parade. The appellant has not mentioned that he tried to raise this complaint and PW8 brushed it aside.. We are satisfied that the learned trial Judge rightly rejected this belated complaint. PW8 had no reason to doctor the entry in the parade form against the appellant whom he did not know before.

Regarding the identification of the appellant through entries on the room list, PW1 s testimony is that when the male customer returned alleging that he had liked room 211, PW1 rented it out to him; that she asked the appellant for his name and ID card; the appellant replied that he had not brought his ID card but knew his names and ID card number off head. The appellant gave the name Baya Kahindi and ID card number 21571035. The carbon copy of the receipt No. 9822 was produced as an exhibit. The entries bear the date of 9th  February,   2008,   Baya Kaahindi, amount of Kshs. Six hundred only, A/C Room 211, time 1 .05  pm and ID Card number 21571035. The room list was also produced as an exhibit. The room had been booked for the period of 9th February, 2008-10th February, 2008.

The appellant took issue with this evidence asserting that the evidence is unreliable because the list had entries of different rooms bearing same receipt numbers inclusive of room 211 subject of this appeal. The learned trial judge's observation on the above evidence were that the appellant gave to PW1 his name as Baya Kahindi and gave his  ID  card details as 21571035;  that PW13 P.C  Paul Nganga the investigating officer had testified that upon the appellant's arrest, PW1 recovered appellant's work identity card exhibit 11 . This bore the names of Barisa Wayu Mataguda ID. Card No.21356448; that PW5 Evans Maragaa Oyori a finger print officer with the Registrar of Persons received the finger prints of the appellant and carried out investigation and confirmed that the appellant had been registered with the registrar of persons under the names ?Barisa Wayu Mataguda ID Card No 21356448; that further investigation by the same registration officer revealed that ID card number 21571035 actually belonged to one ]uma ]opheth Mwari. Then the learned trial judge went on thus:-

?The defence made no attempt to challenge or rebut this evidence. Indeed the names to which the accused has responded each time he had come to this court are Barisa Wayu Mataguda

……………………

It is quite evident that the accused gave PW1  a  false identity when he registered at Karama Hotel. In his defence, the accused said that he was a married man. Given that he was booking into a hotel room with a woman who was not his wife, it is not difficult to see why he preferred to give a false identity"

The above observation of the learned trial Judge when considered in totality with the evidence of facial identification by PW1 which we have already accepted as being positive and reliable, leads to the conclusion that the issue of double entry of one payment receipt as evidencing payment of rental hire charges for two different rooms was apparently not put to PW1 in cross-examination.  As such we have no explanation on the record for it. However, to us the possibility that this may very well have been a case of false accounting cannot be ruled out. It does not however rule out the possibility of room 211  having been rented out to the appellant and his companion at 1. 05pm, considering that the other entry related to a hiring  out which took place earlier  in the day at 11. 40 am. It may very well have been for a short stay if indeed the same was hired out at 11. 40 am.

The learned trial Judge was therefore right when she ruled that this room was rented out at 1. 05pm by PW1 to the appellant and his companion.  The positive facial identification of the appellant by PW1 as the person who rented room 211 on this particular day and time indicated supports the learned trial Judge's findings that the appellant rented the said room under a false name and identity. PW1s assertion and explanation that her failure to insist on the appellant's production of his ID  card accounts for the presence of the false entries made, is  a reasonable explanation .

PW13's move to establish the true identity of the appellant was reasonably informed by the fact that the entries of the names and identity of the persons who rented out room 211 on the material day differed from the names and identity of the appellant as demonstrated on his employment identity card. Since investigation carried out from the records held by the Registrar of Persons revealed that the appellant's true names and identity were as per the entries on his employment card, the learned trial judge cannot be faulted in her findings that the appellant booked himself in room 21 1 at the named guest house on the material day and time under a false name because he was not yet married to the deceased.

The appellant's  submission against the above last finding was that, since the appellants' and deceaseds' relationship  was an open secret and they had in  fact intended to get married, there was no need for the appellant to hide his identity. The evidence we have on record however is that this relationship was known to the deceaseds' relatives.  It was undisputed and indeed conceded by the appellant himself that he had a wife and two children. It is on record that both the appellant and the deceased lived separately.  The appellant with his wife and children. The deceased with her brother. There is no evidence that the deceased was known to the appellant's wife or that the two had or could freely spend the night or consort in the other places openly and freely. Considering that although PW6 stated that the two could live together and at other times separately, she did not elaborate where the two lived  together and if  it was openly or secretly. In  the absence of proof that the appellant and the deceased had at any one particular time ever lived together openly, the learned trial Judge cannot be faulted on her findings that the appellant chose to hide his true names and identity because he had booked himself into a room with a woman who was not yet his wife.

The last evidence on identity is the evidence touching on  identification through the CCTV device installed at the Guest house. PW1 had this to say about this evidence:-

?There are CCTV cameras but they cannot be easily seen"

And in cross-examination

'The CCTV  faces the entrance ... It also takes photos of those in the corridors"

PW4 had this to say:-

?However I informed them (police) that there was a CCTV camera in the guest house. We went to the computer room with the police. We found that room 211  had received two guests a woman and a man. The TV further had recorded the entry of the two. It had also recorded that at 5. 00 pm the man had left. TV showed that the woman had a veil (bui bui) and the man had a jacket...

When cross-examined, PW4 had this to say:-

"The CCTV took  movements  on  the  corridors....the CCTV showed that the man left at S.OOpm....the CCTV showed many people. The  CCTV showed movement to all the rooms including 211.

PW6 stated this:-

?He is the person I saw in the video camera at the Karama Guest house"

(Pointing to accused)

PW11 No.67933 Charles Chirchir had this to say:-

?We  were shown the  footage of the CCTV camera. We saw a man and a lady enter the room No.211. The man later left the room alone. He was a brown man wearing a cap. A blue jacket and yellow T-shirt.... He was of a similar colour and height as the man we saw on the CCTV camera. One Veronica a relative of the deceased identified the man in the CCTV footage as Abdul" who she said was a boy friend of the deceased"

In cross-examination  PW1 added:-

" I  saw a  man who looked like the accused on the CCTV camera footage. The person who booked room 211 was one Baya Kahindi. The accuseds' name is Barisa Wayu...

We were trying to search for the blue jacket and yellow T. shirt which we had seen the man on the CCTV camera footage wearing. PW, 13, No. 69648 P.C. Paul Nganga had this to say:-.

"We showed the relatives the CCTV footage showing the accused and deceased entering the hotel. The relatives did identify the accused as Abdul a boy friend to the deceased ..."

The learned trial Judge's observations on this aspect of the evidence are as follows:-

?PW4 the proprietor of Karama Hotel told the court that on the material day CCTV cameras were on and were recording in the  hotel  loby.  The attempt made by the prosecution to produce a CD of this CCTV was objected to by  the defence counsel Mr. Kirui. In my ruling dated 22nd July, 2011   I did uphold this objection. Although the CD was not introduced into the evidence there is testimony from several witnesses who personally viewed the CCTV  footage that the accused was seen leaving the hotel at 5. 00pm.  The investigation officer PW/3 told the court that he too viewed the CCTV footage and was able to identify the accused as the man on the tape. Likewise PW6 the deceased's aunt also viewed the CCTV footage and was able to identify the accused as the man thereon.

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“Although PW4 and PW13 did not know the accused before this incident, PW6 told the Court that she knew the accused very well as the boy friend of her niece. She has told the court that the name by which the accused introduced himself to her aws “Abdul”. They have positively identified him in court. This was a person who was well known to them and I find no possibility of a mistaken identity. I have no doubt that “Abdul” was a nickname by which the accused was known and I am satisfied that him “Abdul” and the accused are one and the same person”

The appellant has taken issue with that evidence arguing that once the learned trial judge declined the tendering in evidence of the CD containing the CCTV footage images, she should not have gone ahead to rely on the oral testimony of the witnesses as regards what they had seen on the CCTV footage, when they viewed it. On our analysis of this evidence, we have come to the conclusion that it was not in dispute that PW4, the owner of the business in Karama Guest house had. in fact installed, CCTV Cameras; that these cameras from their location could capture images of , movements at the entrance to the Quest house and in the corridors.

There is also no dispute that the functioning of the CCTV device depended on the continued supply of electricity to the device. PW1 who was on the day shift at the premises was firm that there were no black outs. The witnesses who viewed the CCTV were firm in their testimonies that the device recorded not only the movements of patrons but also the timings. The device functioned throughout that day. What the Court rejected was the lifting of the  information from the  CCTV device into the  CD for  purposes  of  production  as evidence into  Court  for  the reasons given by the  learned  trial  judge. The Court did not however reject the evidence viewed by the witnesses on the CCTV device itself as being worthless. Neither did it doubt the truthfulness of the content of what the witnesses had viewed on the CCTV device footage. It is not disputed that it is the identification of the appellant through this device that led to his arrest.  He was identified by the name ?Abdul"a boy friend of the deceased since 2007. As found by the learned trial  Judge  PW7, PW6 and  PW3 all relatives of  the  deceased  all identified the appellant as  a man whom they knew by the name ?Abdul"and whom they knew as the boy friend or  lover of  the  deceased. They all stated and  the  court  was satisfied that?Abdul"was a person they knew very well and the Court was right in arriving at the conclusion that there was no possibility of any mistaken identity. We find no fault in the learned trial Judges finding that ?Abdul"was a nick name by which the appellant was known and the ?Abdul"referred to by the relatives of the deceased was in fact one and the same person as the appellant who was before her.

In her concluding observations on the evidence on the identification of the appellant in connection with the commission of the offence, the learned trial judge had this to say:-

?The  fact that PW1 has positively identified the appellant as the man whom she booked into  room  No. 211   with the deceased, there exists circumstantial evidence linking the accused to the death of the deceased in that he was seen in the company of the  deceased a few hours before her dead body  was discovered...

The evidence clearly shows that the accused booked into a hotel room with the deceased at 1. 00pm.  He left a few hours later at 5. 00pm alone. Later the deceased is found dead in the room with blood splattered all over the wall. No other possible explanation can be drawn from this set of facts other than that the accused killed the deceased inside that hotel room.  If the deceased met with some misfortune or accident inside the hotel room then why did accused not alert the hotel management or call for help? The fact that accused calmly walked out of the room leaving the deceased injured or dead proves that he inflicted the injuries that killed her. No other person was seen to enter or leave room 211. In his defence the accused whilst admitting that he spoke to the deceased on the material day, denies that he went to the hotel room with her. However as discussed earlier, the evidence convincingly proves that it was the accused who went into that hotel room with the deceased. He was clearly seen and identified by PW1 not  to  mention  the  testimony  of the witnesses who saw accused on CCTV  footage leaving the hotel. None of the witnesses had any reason or motive to try to frame the accused. I am convinced that they were telling the truth of what they had seen with their own eyes. For this reason, I do reject the accused defence. Based on the weight of circumstantial evidence, I find that it was the accused who inflicted the fatal cut on the deceased. As such I am satisfied that the actus reus of the offences of murder has been proved."

The above findings when considered in light of the  totality of the evidence analized  above,  confirms  that   the  learned  trial  Judge  arrived  at  the  correct conclusion on the evidence of identification of the appellant in connection with the commission of the offence subject of this appeal. Our reasons for saying so are as follows: We have already  confirmed the  finding that  PW1  was in a  position to positively identify and in fact did positively identify the appellant as the person who booked into the hotel room 211  with the deceased. This positive identification was confirmed  by  the  positive  identification  of  the  appellant  on  the  identification parade, the identification parade was properly and procedurally conducted.   The appellant had an opportunity to book himself in the hotel under a false name and identity because as at the time he booked himself and the deceased in, the deceased was not with him. She had been left in the room upstairs.   The reason that the learned trial judge advanced as the possible reason for the appellant to book himself in the  hotel with the deceased  under a false name and identity was because they  were just friends or lovers and although their relationship was an open secret to the deceaseds' relatives, we have no evidence that it was known to the appellants wife. The appellant therefore had a reason not to  reveal his true identity. Another plausible reason for this conduct on the part of the appellant was that he knew what was to happen to the deceased ultimately. He therefore had to do all he could to conceal his tracks, especially considering that the record does not show that there was advance warning to the customers that there were CCTV cameras in use. The appellant assumed he could accomplish his mission and get away unnoticed.

The testimony of the witnesses who viewed the CCTV devise fortifies the evidence of PW1. It is the same evidence which led to the arrest of the appellant. This arrest was based on sound grounds and was not mistaken. Indeed the clothes that the appellant allegedly wore on this fateful day were never recovered. However considering the length of time between the date of the commission of the offence and the date of the arrest, there was sufficient opportunity to the appellant to conceal or dispose them off in one way or another. A person who can have the ingenuity to conceal his true name and identity card in the process of preparation to commit a crime would not surely take the risk of retaining the very attire he was in when he committed the crime. The failure to recover this clothing does not in any way water down the cogent evidence on facial identification of the appellant in connection with the offence.

The appellant after booking himself in the hotel came for a towel. A towel was found stuffed in the deceaseds' mouth. PW1 saw nothing in the hands of either the deceased or appellant as they inquired for a room for hire. There is no doubt that the towel the appellant came to ask for is the same towel that was used to stuff the deceaseds' mouth with.

Although the appellant denied booking himself with the  deceased  in the room  where the deceased was later found dead, we are satisfied as was the learned trial judge that the totality of the evidence on the record placed him at the scene of the murder and points to him irresistbly as the person who committed the  offence of murder of the deceased. The inculpatory facts outlined above are in capable of explanation on any other hypothesis other than the appellant's  guilt and  are  in compatible with his innocence.

The last issue to be dealt with is the issue of proof of existence of malice aforethought which is a necessary ingredient and or element in proving the offence of murder.  The elements of malice aforethought have  clearly  been  set  out  in Section 206  of the Penal Code. All that we are required to demonstrate here is that the learned trial Judge was alive to this requirement, and applied the applicable law to the facts before her and was properly satisfied that it had been proved to exist before finally settling for a conviction for the offence charged as murder. Section 206  of the Penal Code defines malice aforethought as follows;

?Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances...

(a) An intention to cause the death of or to do grievous harm to any person. Whether that person is the person actually killed or not.

(b)Knowledge  that  the  act  or  omission  causing death       will probably cause the death of or grievous harm to some person, whether  that  person is  the  person actually killed or  not, although such  knowledge is  accompanied by  in  difference whether death or grievous bodily harm is caused or not or by a wish that it may not be caused.

(c)  An intent to commit a felony.

(d)....,

In arriving at the conclusion that malice aforethought had been established, the learned trial Judge had this to say:-

It is quite clear that this was an unhappy union. Each party had grievance against the other. Whilst there is no direct evidence on what transpired between the two in the hotel room, it is not far fetched to post that quarrels or argument could have ensued leading to the attack by accused on the deceased. The accused has not claimed that he was provoked nor has he raised the issue of sell defence. Given that the accused left the room unharmed yet the deceased was badly cut and killed. It is only logical to conclude that accused was the aggressor. The savageness of the cut (major blood vessel in the neck were severed) and the fact that blood was splattered on the walls makes it clear that accused intention was to kill the deceased. I am satisfied that the mens rea or murder has been proved. On the whole I am satisfied from the evidence on record that  the  charge of murder has been proved beyond reasonable doubt. I therefore convict the accused of this charge of murder"

On our own, we are  satisfied as was the  learned  trial Judge  that  malice aforethought  had been proved beyond reasonable doubt. Issue of provocation and or quarrel or argument between the appellant and the deceased is ruled out. This is borne out by the fact that if there was any commotion in that room definitely PW1 who signed off duty at 6. 00pm or any other person would have heard it. There was no evidence of any struggle in the room. The deceaseds’ items other than being under the bed  were not scattered. The beddings were not scattered. As found by the learned trial Judge, the appellant was unharmed. There were no blood stains noticed on his clothes on the images viewed on the CCTV device. The knife which was the murder weapon mysteriously found its way into the room. There is nothing to show that the deceased had it on her. PW1 did not say that customers are inspected before entry into the guest house. Upon accomplishing its use, it was nicely tucked under the mattress. This is conduct of a person who had planned its use well in advance. Definitely it was concealed upon entry into the room. Upon using it for the purpose for which it was intended namely murder, the handler could not have definitely taken it with him due to fear of being given away because of the presence of blood stains on it. It had to be tucked away and concealed beneath the mattress.

The towel the appellant collected from PW1 thirty (30) minutes after he had booked himself and the  deceased into  room  211  was found stuffed in  the deceaseds' mouth. Considering the extent of the injury that was inflicted on the deceased upon the stuffing of the towel into her mouth, it is clear evidence that the appellant intended to silence the deceased, prevent her from either calling for help or screaming in order to attract attention. The appellant did not care whether this action on his part would lead to a suffocation of the deceased to death or not. The fact of severing of major blood vessels on the neck of the deceased is a clear indication that the person who did it intended the deceased to bleed to death. This intention was achieved as the deceased was discovered dead hours after the appellant had sneaked out of the hotel room alone as shown by his image on the CCTV.

The issue of appellant being unhappy for spending a lot of money in the search of employment for the deceased as a source of disharmony in the appellant's relationship with the deceased featured prominently in the evidence of PW3, PW6 and PW7. This, the least affords a form of motive for the murder of the deceased. It is trite law however that motive however strong is never a mandatory ingredient in proving the offence of murder. It is only malice aforethought, which is a mandatory ingredient in proving the offence of murder. All the elements we have outlined above, demonstrate existence  of malice  aforethought  beyond reasonable doubt.

The upshot of all the above assessment is that, we find no merit in this appeal.  It is dismissed in its entirety. We accordingly confirm both the conviction and sentence by the learned trial Judge.

Dated and delivered at Nairobi this 27th day of February 2014

R.N. NAMBUYE

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JUDGE OF APPEAL

H.OKWENGU

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JUDGE OF APPEAL

P.O. KIAGE

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JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR