Prosecutor v Dennis Ochieng John [2020] KEHC 3839 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCRC NO. 18 OF 2018

PROSECUTOR.......................................REPUBLIC

VERSUS

DENNIS OCHIENG JOHN.....................ACCUSED

JUDGMENT

The accused, DENNIS OCHIENG JOHN, was charged with the offence of MURDERcontrary to Section 203as read with Section 204of the Penal Code.

1. He was alleged to have murdered MICHAEL OWINO ODONGOon 25th June 2018, at Kibos area of Kisumu East Sub-County, within Kisumu County.

2. At the trial, the prosecution called 3 witnesses.

3. PW1, EDWIN LEWIS OCHIENG ACHOLA, testified that the accused used to be his tenant at one of his houses in Kibos.

4. On the material day, PW1saw both the accused and the deceased at the site, where the deceased cleared the compound and also fixed a fence for him.  PW1said that the deceased did that work together with his brother, Clinton Oluoch.

5. Thereafter, PW1contracted the deceased to build a pit latrine at the site.  However, after the deceased had done some work on the pit latrine, the accused advised PW1to carry out the task in a different manner.

6. It was the evidence of PW1that he assigned the further construction work to the accused.

7. Although the accused worked with the deceased for sometime, the deceased then chose to stop working with the accused, saying that he was tired.

8. PW1testified that the accused told him that the deceased was not happy about the fact that PW1had assigned the work to the accused.

9. On the material day, whilst PW1 was traveling from Kisumu to Nairobi, he received a text message on the mobile phone, telling him that the accused had fatally stabbed the deceased.

10. According to PW1he had left the accused together with the deceased at a time when the 2 of them were not quarreling.  He was unaware whether or not any quarrel ensued between them after he had left.

11. Therefore, PW1told the court that he was unable to tell if there was any reason that could warrant the accused killing the deceased.

12. PW2, LOICE ADHIAMBO OTIENO, was the wife to Clinton Oluoch, who is a brother to the deceased.

13. PW2testified that PW1had assigned Clinton to fence a piece of land which he had acquired within Kibos. Clinton invited the deceased to help him carry out the fencing.

14. Thereafter, Clinton worked with the deceased in building a three-roomed structure on the plot.

15. PW2 testified that the accused rented one of the 3 rooms on the plot.  When the accused moved onto the plot, there were no toilets.

16. When PW1learnt that the accused was a fundi, he gave him the job of putting up the toilets.

17. It was the evidence of PW2that the deceased was unhappy due to the fact that PW1had replaced him.  For that reason, the deceased is said to have handed back to PW1, the keys of the rooms on the plot, so that the accused could become the new care-taker.

18. PW2testified that the deceased handed over the keys to PW1, inside the house of the accused.

19. After about 20 minutes, PW2saw the deceased coming out from the house of the accused; the deceased was holding his chest.  He then fell down.

20. PW2saw the accused turn over the deceased, so that the deceased lay on his back.

21. PW2testified that Clinton ran after the accused, but the latter threatened to stab him if Clinton got near him.

22. During her evidence-in-chief PW2said that at the time when the deceased was stabbed, those present were Dennis and Chonjo.  She also said that the next person to get to the scene was Pastor Rosemary.

23. When she was being cross-examined,PW2 was referred to the written statement which she recorded at the time when the police were conducting investigations.  She confirmed that in the said statement it was recorded that PW2 found a female person at the scene, and that Lucas and Chonjo also arrived.

24. In the written statement, it is indicated that the person who turned the deceased around (so that he was facing upwards), was Lucas.

25. When PW2 was asked to explain the difference between the written statement and her oral testimony in court, she tendered no explanation.

26. In the light of the evidence concerning the arrival of PW2 at the scene, the next issue for consideration is about her exact location at the time when the incident unfolded.

27. During her evidence-in-chief,PW2 said that she was seated “nearby”.  When the advocate for the accused sought clarification about the actual distance, PW2 said that she had been seated about 80 metres from the scene.

28. Accordingly, it is clear that PW2 was not an eye-witness to the alleged stabbing of the deceased.

29. I also note that PW2testified that she had never seen the accused and the deceased quarreling.

30. In her understanding, it was Michael was unhappy with the accused, because the accused (Dennis) had taken over the work which the deceased (Michael) had been doing.

31. PW3, PC JOYCE WAWIRA,was the Investigating Officer.

32. She testified thatPW2 was about 100 metres away from the scene of crime when the incident happened.

33. In effect, PW2 was not at the scene itself.

34. PW3 testified that it was the deceased who was aggrieved because the accused had taken over the work which had earlier been given to the deceased byPW1.

35. None of the prosecution witnesses cited any reason that would have warranted the stabbing of the deceased, by the accused.  The person who felt aggrieved was the deceased.  The prosecution did not lead any evidence from which the court could discern a motive for the killing of the deceased.

36. Of course, I am alive to the fact that Malice Aforethought, as defined at Section 206 of the Penal Code, is not synonymous with Motive.  The said section stipulates 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 indifference whether

death or grievous harm is caused or

not, or by a wish that it may not be

caused.

(c) an intent to commit a felony,

(d) An intention by the act or omission

to facilitate the flight or escape from

custody of any person who has

committed or attempted to commit a

felony.”

37. From the evidence tendered by the prosecution I find no direct evidence connecting the accused to the stabbing of the deceased.

38. In effect, the evidence provided to the court was all circumstantial.

39. In order for such circumstantial evidence to justify the inference of guilt, it is well settled that the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.

40. In his case, it is the evidence of PW2 which purported to place the accused at the scene of crime.  However, as already noted earlier herein, the witness was about 100 metres away from the scene of crime.

41. Although she testified about what had allegedly transpired immediately after the deceased stepped out of the house where he had been in, together with the accused and PW1, I note that PW2 only saw the accused carrying a bunch of keys and a padlock.  He had no knife.

42. The prosecution tendered no evidence about what happened to the knife which had allegedly been used to stab the deceased inside the house, but which knife was not carried away by the accused.

43. In conclusion, I find that the evidence adduced by the prosecution did not prove beyond any reasonable doubt that the accused murdered the deceased.  Accordingly, I find and hold that the accused, DENNIS OCHIENG JOHN, is Not Guilty.  He is therefore acquitted.

DATED, SIGNED and DELIVERED at KISUMUThis 27th day of July 2020

FRED A. OCHIENG

JUDGE