Ezekiel Juma Barasa v Republic [2014] KECA 187 (KLR)

IN THE COURT OF APPEAL

AT  KISUMU

(CORAM:  MARAGA,  AZANGALALA  & KANTAI, JJ. A)

CRIMINAL APPEAL NO.  252  OF 2012

BETWEEN

EZEKIEL JUMA  BARASA ........................................................  APPELLANT

AND

REPUBLIC …............................................................................RESPONDENT

(Appeal from a  Judgment of the High Court of Kenya at Kakamega(Chitembwe, J)  dated  15th March,   2012

in

HCCRC   NO.  17  OF 2009)

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JUDGEMENT OF THE COURT

The appellant, Ezekiel Juma Barasa, was charged with the offence of murder contrary to Section 203as read withSection 204 of the Penal Code  particulars of the Information being that on the 27th day of February, 2009 at Butali market in the former Western Province he murdered Simon Mungai Chikamai.   The case was heard  partly by Lenaola, J  and then by Kimaru, J but was concluded by Chitembwe, J who in a  judgement delivered on 15th March, 2012 convicted the  appellant   and sentenced him to twenty five years imprisonment the learned judge making the further order that the appellant to only qualify for parole after serving a minimum of twenty years imprisonment.

Those findings provoked this appeal premised on the three grounds of appeal set out in the Memorandum of Appeal drawn by the appellant's counsel,  M/s Odhiambo Owiti & Company Advocates. In the first ground the trial court is faulted for giving undue regard and emphasis on the evidence against the appellant and disregarding  evidence in the appellant's  favour.  In the second ground it is claimed that  the trial court erred in failing to consider all the factors and evidence on record and in particular the evidence of the  appellant while in the last ground it is alleged that the trial court erred in failing to find that the prosecution had not proved its case beyond reasonable doubt.

Being a first appeal we are to reconsider the evidence, re-evaluate and analyse the  same and reach our own conclusions  always remembering that we did not hear the witnesses  or observe their  demeanour  and we must give allowance for that See - Okeno v Republic [1972] EA 32 and  Also Raphael Isolo  Echakara & Anor v Republic (Kisumu) Criminal Appeal No. 44 of 2013 (ur) amongst the many decisions that  have come forth from this court and its predecessor on  that duty of a first appellate court.

The case put forth by the prosecution was this:   On 27th February, 2009 Andrew Shimanyi (PW2) (Andrew) was at his brother Simon Shikamayi (deceased's) hotel at Butali when the appellant arrived and ordered for  food worth Kshs. 40/= which was served and he proceeded to consume it.   A bill was presented but he refused to pay.  He instead walked out and entered the nearby Highway bar where he proceeded to indulge in drinks  with friends until 5:00 p.m. when  the deceased in the company of Andrew confronted him and asked him to pay for the food he had earlier consumed.   Theappellant produced a knife which he used to stab the deceased in the chest inflicting injuries that killed the deceased.

Jebui Kongoi Mulupi (PW1) (Jebui), a local administrator, was attracted  by a crowd at the said Highway  bar.   On walking there he found the deceased lying on the ground in a pool of blood  writhing in pain.  The appellant was at the scene  standing over the deceased and was holding a knife which he used to threaten  those around him.  Jebui summoned administration police from the nearby Butali Administration Police Camp as he and members of the public  followed  the appellant who walked away  from the scene. The appellant threw the knife into a sugar plantation but the same was  retrieved  and  No. 88658 PC Joshua  Kiptilon (PW4) (the Police Officer)  of Kabras Police Station who later produced it in court as evidence.  The police officer upon taking possession of the knife found that it was  blood stained and was attached to three keys.  He  went  to the appellants home on the night of the incident but did not find the appellant.  On trying the keys he found that one key could open one of the padlocks in a house  in the compound.   The appellant was arrested the next day at a bus stage as he planned to travel to Mombasa.

Shikamai Shitanda (PW5), the father of the deceased, attended post-mortem on 4th March, 2009 and identified the deceaseds' body to Dr. Benard Oburu Oreke (PW6) (the Doctor)  who examined the body and found that  the deceased died of  cardio-pulmonary arrest due to accumulation of blood in the cavity due to stab wounds to the chest.

Upon the trial court finding that the appellant had a case to answer the appellant in a sworn statement stated that on the material day he was at Highway bar where he drank  alcohol in the course of which some people started a fight.   He later went home.  The next day he was arrested and told that the deceased had been killed in the fracas that had occurred at the bar. He admitted having fought  with the deceased but denied killing  him.

At the hearing of the appeal before us Mr. Kouko, learned counsel for the appellant, submitted that Andrew could not  have had opportunity to see the  appellant stab the deceased  because he walked out of the bar after  pointing him out  to the deceased.   Counsel wondered why the appellant would commit  such a crime but remain at the scene enabling witnesses to  gather and identify him.   He also attacked evidence on the keys because the actual  padlock was not produced in  evidence and finally submitted that the appellant was  prejudiced by shoddy investigations.

Mr. Sirtuy,  learned Principal Prosecuting  counsel, in opposing the appeal urged that the facts of the case were clear because it had been shown that the  appellant unlawfully and fatally  injured the deceased.  Counsel submitted that it was not  necessary to call many witnesses  to prove the case.

Chitembwe, J, who convicted the  appellant found as fact that the appellant entered the  deceaseds' hotel and ate food  which he did not pay for; that the appellant entered Highway bar where he remained until  about 5:00 p.m. when the deceased in the company of Andrew asked him to pay for the  food he had consumed earlier  that day; that Andrew while walking out of the bar heard  a scream and upon looking back  he saw the appellant stabbing  the deceased; that Jebui upon observing a group of people gatheredat the  said bar  went there and found the deceased lying in a pool of blood with  the appellant standing over him holding a bloodied knife; that  the appellant left the scene but was followed by amongst others Jebui who retrieved the knife from the plantation where he saw the appellant throw it and  that attached to the knife were keys one of which the police officer  found could open a padlock in the appellants compound.

We have reviewed and re-evaluated the record and considered  the submissions made before us.

The facts of the case show an  unfortunate situation where the  appellant's unprovoked act led to unnecessary loss of life. The  appellant was served food  which he happily consumed but refused to pay for. Such refusal to pay was not  because of inability to do so – witness the fact that upon leaving the hotel the  appellant entered a bar next door and proceeded to  engage in a drinking binge which  could very well suggest that he paid for drinks after refusal to pay for food whose bill was  a mere Kshs. 40/=. Upon being asked by the deceased to  pay for the food the appellant proceeded to produce a sharp knife  which he used to inflict fatal injuries upon the deceased. This was witnessed  by Andrew and  there is the circumstantial evidence of Jebui and the police officer.  Jebui went to the scene when  it was still fresh  and found  the deceased  was lying in a pool of blood while the appellant stood over  him holding a bloody knife  which he used to  threaten those  at the scene including Andrew  and Jebui.   Jebui  followed the appellant who threw the knife into a  sugar plantation before  making his escape. This knife  was retrieved and was produced in court as part of the evidence.  Attached to the knife were keys one of which the police officer used to unlock a padlock in a house  in the appellants compound. So there was the direct evidence of Andrew which was supported by the circumstantial evidence of Jebui and the police officer.  As was held by the predecessor of this Court inKipkering Arap Koske & Anor v R [1949] EA 135, in order to justify, a conviction on circumstantial evidence, the inference of guilt, the inculpatory facts must  be incompatible with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused. In this case the direct evidence of Andrew coupled with the  circumstantial evidence proved as required that the appellant attacked and stabbed the deceased leading to death from the fatal injuries inflicted by the appellant.

The appellants defence that he engaged in a bar  brawl was not true at all. The learned judge was right to  dismiss that defence in the light of the evidence put forth by the prosecution against the appellant.

Upon our own reanalysis of the evidence we find that the appellant was properly convicted. There is no merit in this appeal which we accordingly dismiss.

DATED AND DELIVERED AT KISUMU THIS 20TH   DAY OF  NOVEMBER  ,2014

D.  K. MARAGA

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JUDGE OF APPEAL

F.  AZANGALALA

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JUDGE OF APPEAL

S. ole  KANTAI

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JUDGE OF APPEAL