Republic v Eli Elisa Endachi [2017] KEHC 1870 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL CASE NO.24 OF 2010

REPUBLIC……………………..PROSECUTOR

VERSUS

ELI ELISA ENDACHI………………..ACCUSED

JUDGEMENT

1. The Case facing the accused is that of murder contrary to Section 203 as read with 204 of the Penal Code.  The particulars being that on the 7th of April 2010 at Kakurkit area of Kakurkit sub-location within Teso North District the accused unlawfully killed Willis Wepondi.

2. A total of 5 witnesses testified for the Prosecution whose case in brief is that on the 4th of April 2010 the deceased aged 7 years was learning how to ride his father’s bicycle when the accused who had just had lunch at the deceased father’s kiosk joined the child and assisted him.   The two went towards Lwakhakha river and by evening they had not returned prompting the deceased’s father to report to the Police.  On 7th April, 2010 the deceased body was spotted floating on the Ugandan side of the river.  The body was retrieved.  The accused also disappeared and was later arrested at Amakura.

3. In his defence the accused denied knowing the deceased and his father PW1.  It was his testimony that he learnt of the alleged murder after his arrest and denied the charge.

4. In order to sustain a charge of murder three ingredients must be proved I). The fact of murder.  II). Omission or act leading to the death has to be linked to an accused.  III). There has to be proof of malice aforethought in actuating the act or omission.

5. Secondly in a Criminal Case the onus of proving the case squarely lies upon the Prosecution and the standard of proof is beyond all reasonable doubt.  See Woolmington Vs D.P.P. (1935) A.C @ 462.

6. There is no doubt from the evidence of all the Prosecution witnesses and more so PW5 Dr. Raymond Damba of Bungoma Referral Hospital that the deceased died of drowning.

PW1 – PW6, saw his body floating and being removed from Lwakhakha river.

7. There was no direct evidence linking the accused to the offence and the Prosecution relied on circumstantial evidence.  In Mutili Tulo Vs Republic CRA No.30 of 2013 the Court of Appeal stated;

“Circumstantial evidence is as good as any evidence if it is properly evaluated, and, as is usually put, it can prove a case with the accuracy of mathematics”.

Earlier in the case of Abanga alias Onyango Vs R Criminal Appeal No.32 of 1990(UR) the same Court set out tests to be considered in a case based on circumstantial evidence as follows;

“It is settled Law that when a case is entirely based 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 cogent and firmly established.  II). Those circumstances should be of a definite tendency unerringly pointing towards 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.”

8. According to PW1 Isaac Wekesa father of the deceased, on the 4th of April 2010 while at his hotel, he saw the accused join to teach his son aged 7 how to ride a bicycle.  Later he looked for them at about 4p.m. in vain his son’s body was found and removed from river Lwakhakha on 7th of April 2010.  On 28th April, 2010 he learnt that the accused had been arrested.  He went to Amakura Police Station, and found the Accused had been arrested and his bicycle recovered.

PW2 Bonface Wafulaof Amakura, Assistant Chief of Kamanoit sub-location confirmed arresting the accused who was riding a bicycle on a tip off and took him to AP Camp at Amakura and later Kotur Police Station.

PW3 Isaiah Makila Wamukotarecalled and confirmed meeting the deceased aged 7 and the accused and it appeared the child was being taught how to ride, this was on 4/4/2010 at about 1. 30p.m.  He knew both.  Next morning he learnt of the child’s disappearance and he helped look for him.  Later at night he learnt that the child’s body was seen floating in Lwakhakha river.

The following day they were to remove the body.  They looked for the accused and learnt that he had escaped.  Later they received information from Amakura that the accused had been arrested.  They went to Amakura where he saw the accused.

PW4 Sgt. Dickson Kimei confirmed the above from his investigation. He was present when the deceased body was recovered.

9. From the chain of events the deceased and the accused were outside the deceased father’s hotel at about 1p.m., the accused appeared to be helping deceased learn how to ride his father’s bicycle, they later disappeared and were not to be seen, a witness saw them at about 1. 30 together on a road leading to Uganda on one side and Kolait on the other.  After a couple of days the child’s body is found floating, and the accused disappears and is later arrested on the bicycle.  With the above information what is the likely inference to the drawn?

10. Since the accused was the last person seen with the deceased did he not owe an explanation?

In Dorcas Jebet Keter & Joseph Boit Vs Republic Criminal Appeal No.10 of 2012 Court of Appeal sitting in Eldoret in a case where the appellants were last seen with the deceased in that Case, stated,

“…in our minds the facts of the Case point to none other than the two appellants either alone or jointly as the people responsible for the death of the deceased.  In any event, under Section 111 of the Evidence Act (Supra), they had to explain what happened to the deceased who was last seen with them

…the burden showing what happened to him was on the appellants which burden is only confined to some explanation not amounting to proof beyond reasonable doubt…”

11. Section 111 of the Evidence is silent on what happens if the accused for instance in this Case denies or does not explain.  However Section 119 of the said Act allows the Court to presume the existence of any fact which it thinks likely to have happened given certain circumstances.

12. In the circumstances of this Case, given all the facts above based on circumstantial evidence and with no attempt by the accused to explain what happened to the deceased as they rode together, the accused disappearance and all facts pierced together; the Court must presume and draw the inference that the person who caused the murder of the deceased is none other than the accused.

13. Consequently I find the accused guilty of the offence of murder under Section 203 as read with 204 of the Penal Code and convict him of the offence.

DATED and DELIVERED at BUNGOMA this 2nd day of  November,  2017

ALI-ARONI

JUDGE