Hamisi Geovannie Nderi v Republic [2016] KECA 194 (KLR)

IN THE COURT OF APPEAL

AT NYERI

(SITTING IN MERU)

CRIMINAL APPEAL NO. 48 OF 2014

(CORAM: WAKI, NAMBUYE, & KIAGE, JJA)

BETWEEN

HAMISI GEOVANNIE NDERI..................................APPELLANT

AND

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

(Being an appeal from the Judgment of the High Courtof Kenya

at Meru (Lesiit, J.) dated on 2nd day of August, 2012

in

H. C. Cr. C. No. 77 of 2009

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JUDGMENT OF THE COURT

1. Hamisi Geovannie Nderi (the appellant) was charged, tried and convicted before the High Court in Meru (Lesiit J.) for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It was alleged in the Information filed before that court that on the 28th day of August 2009 at Maua Township in Igembe South District, he murdered Administration Police Corporal Francis Mworia (deceased). Upon his conviction, he was sentenced to death as by law provided.

2. According to the evidence adduced from 10 prosecution witnesses and the appellant himself, the appellant was a serving officer with the Kenya Wildlife Service (KWS) at the level of Senior Sergeant and was stationed at Mulika Headquarters of Meru National Park, On the fateful day, he was off duty and wanted to visit his in-laws in Kiengu. He got a lift from another officer, Jonah Kiprotich Chebilal (PW1) (Jonah) who served as a Ranger and was assigned to drive a Toyota Land Cruiser station wagon, to take the family of another officer who had a sick child to Nyambene Nursing Home in Maua Township.  Jonah was also assigned an assault rifle, AK 101, with 25 rounds of ammunition. They left at 7pm and arrived in Maua at 9pm. The child was admitted in hospital and so the appellant and Jonah left the family there and drove out to Riverside bar in town.

3. They were joined there by a business lady, Frida Kendi Kaibonga (PW9) (Kendi) a friend of Jonah whom he invited on phone to join them for a drink. In the same bar was the deceased who had been Kendi’s lover for three years before they split. After a short while he went out and called Kendi on the phone and told her:

“You refused to be my friend so you be behaving like that? Ni sawa tu.”

and he disconnected. Later the deceased left the bar through the back door. Jonah, the appellant, and Kendi took three beers each at Riverside bar and then drove off to  another bar known as Silver Inn but arrived when it was about to close down at about midnight.

4. Their arrival was witnessed by the watchman at the Inn, Charles Kathure Kubai (PW2)( Kubai), who saw the KWS vehicle arrive at high speed at the parking. Kendi, whom he knew, and two askaris he did not know alighted. They went into the bar through the back door as the front door had been closed. The bartender, one Makena, who was about to go home agreed to sell them one beer each before leaving. In the same bar was the deceased who had arrived ten minutes earlier  and joined another patron, Jakubu Gitonga (PW4) (Gitonga), a well-known butcher in the town.

5. When they settled down in the bar, Kendi testified, and Gitonga confirmed it, the deceased went to their table, pulled out a pistol and told Kendi that was her last day. He slapped her so hard on the face that she fell down. She stood up and ran into a toilet where she locked herself in. Then Gitonga heard one askari tell the other “let us go.”That was the appellant and Jonah who were strangers to him. One went out alone but the other walked out with the deceased talking. When they reached outside, Gitonga heard 3 gunshots.

6. Kubai, for his part was about to escort Makena out after  requesting Gitonga to guard the premises, when he saw the appellant walk out to the KWS vehicle, open  it and sit inside. After a short while, Kubai saw the deceased coming out of the bar heading to his car at the parking. He saw the deceased flash a torch when he reached his vehicle, and then Kubai heard a gunshot from the direction of the KWS vehicle. He thought the deceased, who was a well known AP officer, was chasing a thief because he could not see him again. He went towards the vehicle but then saw the appellant who had been seated in the KWS vehicle jump over a stream called Mboone and disappear. On reaching the deceased’s car, he found him on the ground with blood on his face. Kubai testified that there was electricity light outside Silver Inn, although there was a bill board partially obstructing some of the light. But the KWS vehicle was parked 3 meters from the bar corridor within the security light. He rushed to Maua Police Station which was about 200 meters from the Inn, to report the incident. As soon as he arrived, Jonah drove in the KWS vehicle and reported that the officer he was with had shot a person. Jonah drove out again to the scene where he was arrested.

7. The duty police officer who received the report of the watchman was Senior Sergeant Peter Maundu (PW3) (Sgt. Maundu) who was called by the OCPD with information that an AP officer had been shot dead at Silver Inn. He mobilized other officers to go to the scene where they found the deceased lying down with the torch still on. Just then the KWS vehicle with one occupant arrived and on opening it, Sgt Maundu was hit by a fresh smell of gun powder. He retrieved an assault rifle, AK 101, tucked behind the driver’s seat. He removed the magazine which had 22 live ammunition of 5. 56 calibre, which he later handed over to the investigating officer. He also arrested Jonah at 1. 30 am on suspicion of committing the offence and for further investigations.

8. The investigating officer was PC John Maina (PW7) (PC Maina) who heard gunshots from his house at the police lines close to Silver Inn. He headed to the report office and found Kubai. He also found Jonah who had driven in the KWS vehicle to the station. Kubai told him that KWS officers had killed the deceased whom PC Maina had known for many years. As PC Maina recorded in the Occurrence Book (OB), Jonah drove away but was arrested at the scene by other officers. PC Maina and other officers also went to the scene and found the deceased with gun shot injuries on his body. He checked the body and found the deceased’s official pistol still tucked between his trousers and shirt. He also saw four empty cartridges on the ground which he collected. He went back to the office where he collected the rifle, magazine and cartridges which he forwarded to the Firearms expert, CP Emmanuel Lagat(PW10).  The expert produced a report confirming that the firearm was in good working order and that the four expended cartridges were fired from the rifle.

9. According to the pathologist, Dr. Benjamin Kailikia Kanake(PW6)(Dr. Kanake), who carried out the post mortem on 3rd September 2009, the deceased was 35 years old. The body had a bullet entry wound on the left scapula fracturing the 2nd and 3rd cervical spines and shattering the lower and upper jaw into multiple fragments and exiting through the right chin. Another bullet entered through the left hip through the left femur fracturing it into multiple fragments before exiting through the front. In his opinion, the cause of death was cardio pulmonary arrest secondary to hemorrhage arising from gunshots. He produced graphic photos of the injuries.

10. The arrest of the appellant was made the following day, 29th August 2009 by PC Joseph Ringine (PW8) (PC Ringine) who, with other officers and KWS personnel received information from one Nyambura that the appellant was hiding somewhere in Maua town. They proceeded there and arrested him.

11. Jonah was later released after recording his statement implicating the appellant with the offence and detailing how the killing occurred.  He was called to testify as PW1 but then turned hostile, denying parts of his statement to the police and narrating a different story. He nevertheless admitted that he was with the appellant on the fateful day; that the gun from which the fatal bullets were fired was his; and that they went to the two bars where they took drinks. However, he said when they saw someone hit a woman who was sitting in a different table, he and the appellant decided to walk out to their vehicle. On stepping outside they heard gunshots and on checking their vehicle they found the door opened. He checked for his gun which he had left near the handbrake but it was missing. He denied knowing or being in the company of the woman who was slapped by the deceased, but admitted in cross examination that it was Kendi and that he knew her. He denied that the appellant left the bar first saying they left together, and further denied that the fatal shots were fired by the appellant. He was at pains to explain how, as a trained officer, he could leave a loaded gun in an unlocked vehicle in a public place. He blamed drunkenness for his conduct and in the end said he did not know who between the appellant and some three unidentified men in the vicinity took and fired his gun. He confirmed that the appellant knew there was a gun in the vehicle, but the three men did not.

12. The appellant gave sworn testimony confirming that he had accompanied Jonah in the trip to Maua and went together to Riverside bar where they were joined by a woman known to Jonah. After three beers each they went to Silver Inn to see two of their colleagues who were staying there. Jonah parked the vehicle and locked it. They then entered the bar which was about to close and were served with one beer each at the back where they found the two colleagues playing pool. He played pool with them as Jonah and two ladies seat at a table 30 meters away. Then he heard the cocking sound of a pistol and a lady screaming. He looked at Jonah’s table and saw a man aiming a pistol at a woman who was on the floor while Jonah and the other lady looked on. He was very scared and ran off to hide behind the lodgings since their vehicle had been locked. It was from that hiding place that he heard gunshots, then the sound of their vehicle moving away. From there he walked away looking for a taxi which took him to his in-laws’ place in Kiengu where he slept. The following day he tried to call Jonah on phone without success. He decided to go back to Maua to find out what happened the previous night. Before he left, another KWS officer called and told him to wait for him at Kiengu, which he did, but when the officer came, he was accompanied by the police who took him to Maua Police Station and he was locked up. He refused to record a statement in the absence of his lawyer but was still charged with the offence of murder which he had nothing to do with.

13. In cross examination, the appellant said he had worked with Jonah for two years and was senior to him. He denied knowledge that Jonah had left his rifle in the vehicle as testified by Jonah and called him a liar. In his evidence, he only saw the rifle, an AK 101, when they left Mulika headquarters but not after leaving the hospital to go to Riverside bar. He denied having seen the deceased’s face as he pointed the pistol at the lady since he ran away to hide as soon as he saw the pistol and did not return to the scene. He could not tell what happened to the colleagues with whom he was playing pool at the time, although he knew they were still working with KWS. Finally, he confirmed there were electricity lights at the premises.

14. The trial court evaluated that evidence and was in no doubt that the death of the deceased and the cause of it were proved beyond doubt. The court was also persuaded, in the absence of direct evidence, that there was a chain of circumstantial evidence which was consistent and unerring, that it was the appellant who fired the two fatal shots. The court particularly reviewed and believed the evidence of Kubai, Gitonga and Kendi before surmising that it was consistent and concluded as follows:-

“The prosecution has cogently and firmly established the circumstances from which an inference of guilt was sought to be drawn. The prosecution has shown that the accused, Jonah, Kendi and the deceased kept meeting that evening and that the deceased was very unhappy with Kendi's association with Jonah and the accused, and he openly demonstrated it. The accused left the bar and went to sit in the KWS vehicle where PW1 had left his rifle and he, accused knew that the gun was there. The accused waited until the deceased went out of the bar and he shot him twice from behind as he tried to open his car. He then ran into the night through a river. That clearly shows a guilty mind and also an attempt to escape responsibility for what he had done.

The prosecution has demonstrated that there was no one else in the KWS vehicle and indeed the vicinity except the accused and the deceased. The prosecution has shown beyond any reasonable doubt that it was only the accused that had the opportunity and the time to commit this offence. The prosecution has shown that the gun shots sounded from within the KWS vehicle where the accused was alone. I find that these circumstances unerringly point to the accused guilt and that cumulatively the circumstances form a chain so complete that the only conclusion which can be reached is that with all human probability, the offence was committed by the accused.”

15. The appellant’s defence was rejected since he pleaded that he was not at the scene while believable evidence confirmed he was and did in fact fire the fatal shots for no apparent motive, which was not relevant as an element of the offence. Malice aforethought was established when a lethal weapon was used, not once but twice,  and was directed at sensitive areas of the body. There was thus a clear intention to cause grievous harm or death.

16. The appellant now challenges those findings on ten grounds of appeal which were argued as six by learned counsel for him, Ms Thibaru, after abandoning several other grounds filed by the appellant in person without leave of the court. The grounds may be summarized as follows:

“The trial Judge erred in fact and in law in:

2. failing to note that no report from the criminal identification Bureau, CID HQs, NAIROBI on the elimination finger and palm prints from C24 was presented in court to prove whether the appellant had any access to the exhibited firearm.

3. failing to note that presentation of the exhibited firearm in court fell short of the required standard in law.

4. failing to note that identification/recognition of the appellant fell short of the required standard in law.

5. failing to note that the circumstantial evidence tendered did not point irresistibly to the guilt of the appellant.

8. putting forward some extraneous matters which had no basis on evidence tendered before the honourable judge, which matters led the court to make a wrongful conviction.

10. failing to take into consideration the appellant’s defence testimony which was given under oath as a true account of what exactly the appellant knew about this case. Bearing in mind that no statement was recorded from the appellant when he was arrested and subsequently arraigned in court.”

17. Combining grounds 2 and 3, Ms Thibaru submitted that there was no proper investigation of this matter to answer the crucial question: “who fired the two shots from the firearm?” Counsel pointed out that there was no attempt by the investigators to dust the firearm to confirm who held it since the appellant did not handle it. On the issue of identification of the appellant through circumstantial evidence, which is covered under grounds 4 and 5, counsel faulted the trial court for determining that all the evidence was circumstantial only to turn round and make a finding that there was eye witness account from Kubai. According to counsel, the appellant was a complete stranger to Kubai but Kubai referred to him as “askari”despite the appellant not wearing any uniform.If there was an“askari” who was seen by Kubai leaving the bar, opening and sitting in the vehicle, and bolting across a stream after the gunshots, it was not the appellant. Furthermore, submitted counsel, it was a dark night otherwise the deceased would not have been using a lighted torch, and some electricity lights outside were obstructed. The evidence of Gitonga also contradicted Kubai’s as regards how the bar patrons walked out since Gitonga recalled that they went out together. That raises the issue of who the other person was. All in all, counsel was emphatic that Kubai’s identification evidence was doubtful and no more than dock identification.

18. If the evidence of Kubai was discounted as it should, submitted counsel, there was no possibility that the chain of circumstantial evidence would be complete. If the appellant was able to open the unlocked vehicle and collect the gun, any other person had similar opportunity and the chain is again broken. At all events, the deceased had a quarrel with Kendi and not the appellant who went to play pool and was nowhere near the confrontation. Ms. Thibaru cited the cases of John Gichunge Mutie v Republic [2013] eKLR and James Githinji Ndungu v. Republic [2012]eKLR to drive home those submissions.

19. As regards ground 8, counsel referred to the finding made by the trial court that Jonah reported to PC Maina that “his colleague who was with him that evening shot and killed a man”. She also referred to the oral evidence of PC Maina to show that there was no such evidence. In the circumstances, counsel submitted, the finding was not based on any evidence and was erroneous. On ground 10, counsel submitted that the appellant’s defence was totally ignored although it was truthful.

20. Finally, Ms Thibaru submitted on one ground which she introduced in a supplementary memorandum stating that the trial court ought to have considered the fact that the appellant was intoxicated at the time of the offence and was therefore incapable of forming the necessary mens rea. She referred to the evidence that the appellant and Jonah had been drinking for six hours from 7 pm to midnight and were in company of people they did not know. His conduct of running away from the scene was thus understandable and should not have been construed as an escape. In counsel’s view, Section 13(4) of the Penal Code was applicable.

21. In response to the last submission, learned Prosecution Counsel, Mr. A. Musyokaobserved that the evidence on record was that the appellant and Jonah first went to Riverside bar after leaving the hospital and only had 3 beers each there. When they moved to Silver Inn it was closing time and they were only allowed to buy one beer each. In the circumstances, the onus was on the appellant to show that he was intoxicated on four beers and also explain how he was able to go looking for a taxi which took him to his in-laws’ distant home. He knew all along what he was doing and Section 13(4) was not applicable.

22. As regards other submissions, Mr. Musyoka agreed with the analysis of the evidence by the trial court that Kubai was a truthful witness who clearly saw only one person, the appellant, go out and enter the KWS vehicle before hearing gun shots and seeing the appellant running across a stream. Kubai was only 50 meters away and the KWS vehicle was parked 3 meters away from a lighted corridor of the Inn. There was corroboration from the evidence of Gitonga that oneaskari left the bar ahead of the other. There was also support from Sgt Maundu that the shots were fired from the KWS vehicle when he opened it, smelt fresh gun powder, and retrieved the gun from the vehicle. Later, the firearms expert confirmed that the fatal shots were fired from the same gun. In his view, that was sufficient to connect the appellant with the offence the failure to dusting for finger prints notwithstanding.

23. Mr. Musyoka further submitted that malice aforethought was established by use of a firearm, shooting from behind and shooting twice. The appellant, who is a senior officer, well versed in firearms, was not in doubt that he would kill or cause grievous harm to his target. Regarding the conduct of the appellant, counsel was in no doubt that he intended to escape the consequences of his acts, otherwise, as a senior security officer himself, he knew or ought to have known that the incident should be reported to the police.

24. We have reviewed the evidence tendered before the trial court in some detail because it is our duty as a first appellate court to do so and to make our own conclusions as regards the evidence. In principle however, we must confer some deference to the findings of fact made by the trial court, particularly when they are based on the credibility of the witnesses, for then, the trial court is the better judge, having seen and heard the witnesses. The Court may only interfere where no reasonable tribunal could have made such findings or it is shown that there existed errors of law. It was better put in Okeno –Vs- Republic [1972] EA 32,thus:

“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya –Vs- R [1957] EA 336) and to the Appellate court’s own decision on the evidence.  The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala –Vs- R [1957] EA 570. It is not the function of the first appellate court merely to scrutinize the evidence to see there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions.  Only then can it decide whether the magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters –vs- Sunday Post [1958] EA 424. ”

25. We may quickly deal with the issue of intoxication before we embark on the rest of the issues raised in the appeal. There is a general provision under Section 13 (1) of the Penal Code  that “intoxication shall not constitute a defence to any criminal charge.” There are also exceptions to that provision in Section 13 (2) which reads as follows:

“(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and -

b.the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

b.the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.”

Section 13 (4) which is relied on by the appellant reads as follows:-

“(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.”

26. Those provisions have been discussed by this Court on many occasions and we take it from the case of John Waigwa Mumbi v Republic [2015] eKLR:

31. “It has been stated by this Court that “… the defence of intoxication is very narrow in its application. [section] 13(4) of the Penal Code should not be read in isolation. It should be read within the confines of Sections 13 (1), (2)(a) & (b).” See Roba Galma Wario v Republic [2015] eKLR.

32. When presented with a defence of intoxication, the court must consider if “… the drunkenness or intoxication deprived the [accused person] of the ability to form the specific intention required for the commission of a particular crime.” SeeCharles Heho Ndirangu v Republic [2009] eKLR (Criminal Appeal 346 of 2008) andKyalo Kalani v Republic [2013] eKLR (Criminal Appeal 586 of 2010).

33. In order to prove insanity by reason of intoxication, the appellant was required to demonstrate on a balance of probabilities that he was too drunk to appreciate what he had done. See Maina v Republic [2007] 2 EA 279 (CAK) where it was held that:

“If an accused person seeks to set up a defence of insanity by reason of intoxication, the burden of establishing that defence rests upon him in that he must at least demonstrate the probability of what he seeks to prove.”

34. See also Richard Kaitany Chemagong v Republic [1984] eKLR (Criminal Appeal 150 of 1983) where this Court held that:

“… the burden of proving an averment of insanity, once raised, lies upon the accused person to show on the balance of probabilities:

that at the time of the killing the deceased was-

(a) suffering from disease affecting his mind;

(b) through such disease incapable –

(i) of understanding what he was doing, or

(ii) of knowing that he ought not to kill the deceased.”

27. The import of Ms. Thibaru’s submission was that the appellant herein was so intoxicated that he was temporarily insane at the time of the murder, or had lost the ability to form the specific intention required for the commission of the crime, even assuming that he was present at the scene. There is, of course, evidence on record that the appellant and Jonah visited two bars and had some alcoholic drinks there. But, on the evidence,  the drinks were ordinary beers and the number was three in one bar and one beer in the other. It is not correct to say that the drinking lasted six hours from 7pm to midnight. They left Meru National Park at 7pm and, on the appellant’s own evidence, they were at Riverside bar at 10pm while the killing took place shortly before midnight. There is nothing to show that the appellant was actually in a state of intoxication from four beers over a period of less than two hours. On the contrary, as correctly submitted by the Prosecution Counsel, the appellant’s actions, even by his own account of events, portrayed a person who was well oriented in time and space. He has therefore not demonstrated that at the time of commission of the crime, he was suffering from infirmity of the mind that would have rendered him insane or incapable of forming the intention to kill. That ground of appeal fails.

28. As regards the rest of the appeal, the crucial issue, as correctly submitted by Ms. Thibaru, is to determine whether it was the appellant who fired the two bullets that instantly killed the deceased. The other relevant facts relating to the elements of the offence were either proved beyond doubt or are not disputed. Those include the fact of death, the cause of death, and that it was caused of malice aforethought as defined under Section 206 of the Penal Code and therefore amounted to murder.

29.  In connecting the appellant with the murder, the trial court relied on circumstantial evidence. It was Ms Thibaru’s submission that the court also relied on direct evidence from Kubai, but we think that is a misunderstanding of the trial court’s judgment. At no time did Kubai state or the trial court find, that he saw the appellant pulling the trigger of the gun and killing the appellant. That would have been direct and damning evidence against the appellant. Kubai’s evidence fell short of that, hence the application of the principles of circumstantial evidence which the court reminded itself by citing the age old decision of Rep v. Kipkering arap Koske & Another 16 EACA 135 and Abanga alias Onyango v. Republic Cr. App. No. 32 of 1990(UR)for application of the principles.

30. Ms. Thibaru cited the Mutie and Ndungu cases (supra) which re-emphasize those principles and we may restate them from the Abanga case (supra):

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

31. In a more recent case,Peter Mote Obero & Another V Republic [2011]eKLR this Court stated as follows:-

“It is the essence of circumstantial evidence that, in order to justify an inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference –Teper v. R [1952] AC 480. With those safeguards in place, circumstantial evidence is as good as any direct evidence which is tendered and accepted to prove a fact. InR v. Taylor, Weaver and Donovan[1928] 21 Cr. App. 20 CA, the court stated:-

‘Circumstantialevidence is very often the best evidence. It is evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”

32. In relying on the Kipkering and Abanga cases (supra), the trial court appears to have concentrated on the proof of circumstances pointing towards guilt which cumulatively would form the chain for drawing the inference of guilt. However, it is equally important that in that process, the court should examine other circumstances which would weaken the inference of guilt as stated in the Obero case (supra).

33. The cogent and firmly established facts in this case were that the appellant was a trained security officer in active service with KWS. The appellant and Jonah travelled in the same vehicle and was aware of the presence of a gun inside the vehicle. The appellant and the deceased were in the same bars, Riverside and Silver Inn, on the fateful day. At Silver Inn, it was closing time and there were no other customers except the deceased, Gitonga, the appellant, Jonah, Kendi, Kendi’s friend known as Karen, and the workers, Kubai and Makena. The appellant saw the deceased pull a pistol on Kendi and slap her hard on the face. The appellant left the bar and was seen entering the KWS vehicle by Kubai. The deceased also went out of the bar towards his car. Both vehicles were parked in the same parking area, but the KWS vehicle was near a lighted corridor of the bar. Kubai was 50 meters away from the KWS vehicle when the shooting occured. The fatal shots were fired from the direction of the KWS vehicle. The appellant was seen by Kubai dashing across a stream soon after the shots. The deceased died from the two shots. The appellant was nowhere to be found until he was arrested the following day. The appellant did not report the incident to the police or record any statement.

36. The circumstances that would have weakened that chain of circumstances would have been ; the declaration of Jonah as a hostile witness which made his evidence virtually worthless; failure to dust the offending gun for fingerprints; imperfect lighting system at the Silver Inn parking area; the omission to call two named persons who were at the scene-Makena and Karen; and the defence of the appellant if it was truthful. Although the trial court did not consider those circumstances, it is our view that they were rendered irrelevant and ineffectual by the inculpatory facts. There was ample other evidence even if Jonah’s evidence was discounted; it was proved that the offending gun found in the KWS vehicle was the one assigned to Jonah and was freshly fired; the partially blocked lighting system at the parking area did not affect visibility of the KWS vehicle which was in a lighted area; there is no particular number of witnesses necessary to prove a fact; and the defence of the appellant was displaced by the prosecution evidence.

35. The complaint that the defence was not considered is not correct. The strongest links in the chain of evidence were Kubai, Kendi and Gitonga who were found honest and truthful. We have no reason to fault the finding on their credibility and accept their version of events. There was no duty on the appellant to prove himself innocent. But none of the prosecution witnesses who were believed in their evidence saw him playing pool with two other officers of KWS he mentioned who seem to have disappeared into thin air. He was no stranger to the area for he was admittedly married from there, but failed to report to the police station only 200 meters away from the scene, or anyone else in authority, although he had the presence of mind to walk to town, look for a taxi and drive to his in-laws home until the following day when he was arrested.  For whatever reasons the appellant left the scene of the crime, it was not because he was very scared after seeing the deceased brandishing a pistol at a woman and his colleague. The conduct of the appellant fortified the circumstantial evidence adduced by the prosecution and we are in no doubt that it was the appellant who committed the offence charged.

36. Having so found, we dismiss the appeal in its entirety.

Dated and delivered at Meru this 19thday of October, 2016

P. N. WAKI

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JUDGE OF APPEAL

R. N. NAMBUYE

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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