Republic v Eric Omondi Otieno [2017] KEHC 9662 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

HIGH COURT CRIMINAL CASE NO. 34 OF 2014

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

VERSUS

ERIC OMONDI OTIENO............................ACCUSED

JUDGMENT

1. The Accused ERICK OMONDI OTIENOwas charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on the 8th of October, 2013 at Mwiki area Kasarani District within Nairobi murdered REUBEN ODUOR OYERO.

2. He pleaded not guilty to the said charges and to prove its case against the same the prosecution called a total of fourteen (14) witnesses and when put on his defence the accused tendered in sworn statement of defence and called no witness.

PROSECUTION CASE

3. It was the prosecution case that the deceased and the accused were working together at Kenya quarry in Mwiki area where the deceased was the treasurer of the group, while the accused provided security thereat together with others.  Before the deceased met his death the accused had been suspended over some dispute with the other youth in the group during the month of September.

4. On 8/10/2013 according to the evidence of PW1 DEDACUS OCHIENG AUGO the deceased came to the site driving motor vehicle registration No. KBL 945D Toyota probox and called him to take to him the money for that week’s collection which he did and while with  him the deceased received a cellphone call and he told them that it was the accused who had called him.  He then left the deceased who had told them that there was somewhere he had to go to, only to be called at 12. 30 p.m. with information that the deceased had been killed in his car.  They proceeded to the scene and confirmed the death.  It was his further evidence that the deceased had informed him that the accused wanted to know when he would resume his duties.

5. PW2 PC JOSEPH KIPSAM a scene of crime officer processed the scene and confirmed that the body of the deceased was found sitting in the driver’s seat with four stabbed wounds on the chest, one in the abdomen and one in the right arm.  PW3 JOHN OLE KOILEL a herdsman stated that he was looking after his goats when he noticed the deceased motor vehicle stop and shortly thereafter a man who was dressed in red cap and red T-shirt and jacket entered the motor vehicle from the co-driver’s seat.  The motor vehicle moved shortly and stopped so they decided to go and check whether they wanted to buy goats only to notice blood coming from the driver’s side with the body of the deceased lying towards the co-driver’s seat. This evidence was corroborated by PW12 JOHN MAISODO who stated that he saw somebody enter into the deceased motor vehicle and he shortly thereafter heard a cry from the motor vehicle and the person who had earlier entered got out closed the windows and moved towards the quarry.  He further stated that two people came thereafter and went and called the police and that the accused had greeted the deceased as if they had known each other.

6. PW4 HENRY OMONDI AGUTU confirmed going to the scene together with one of their friends called OBEDI OLUBANDA who was pointed out by PW3 and PW12 as the one who had killed the deceased since he was wearing sports shoes as the accused but did not have red clothes.  PW5 THOMAS OGALLO ADHOGA  confirmed that on the material day between 12. 00 – 1. 00 p.m. while going for lunch they met the accused along the road towards Mwiki and it was his evidence that the accused was putting on green jacket and a red cap.  They greeted each other and parted ways.  He was thereafter called on phone and informed of the death of the deceased and they proceeded to the scene where they confirmed the same.

7. PW6 PC PETER NYONGESA received the report from the manager of the quarry called ANTHONY NJOROGE  and proceeded to the scene with PW9  SGT JOSEPH WAMBUA where he  interviewed PW3 and PW12 before taking the body of the deceased to Chiromo where post mortem was subsequently done by  PW13 DR PETER NDEGWA in the presence of PW7 LUCAS OYIER his brother and PW8 GRACE AKOTH  his wife and noted that the deceased had penetrating wound on the chest (praecoraiun), small bowels, extruding, penetrating stab wound, left paraumbilicre and left wrist.  Internally he found both chest cavities penetrated between the 3rd and 4th rib among other injuries and formed an opinion that the cause of death was exsanguinations due to multiple organ injuries due to multiple stab wounds.

8. PW10 CHARLES OCHEING OMOLLO confirmed going to the scene where they found the deceased dead inside his car and further stated that on the material day while going to work at 7. 00 a.m. he met the accused who had been interdicted by the deceased having beaten some old men who he had a dispute with and that before the said interdiction there was no dispute between the accused and the deceased.

9. PW11 PC BOAZ MUNGA KEMO arrested the accused at Osieko Beach in Usenge having located the accused mobile thereat on 13/4/2014 together with PW14 PC JOSEPH NAMPASO and PC ERICK OMONDI and brought  the accused to Nairobi.  It was his evidence that both the accused and the deceased were his friends since they belonged to Gor football club supporters group.  It was his evidence that he had the accused mobile number which they used to track the same down having ran away upon the commission of the offence and that at some stage his mobile phone was located in Uganda.  It was his evidence that the accused who knew him very well was shocked to see him at Osieko and that the accused wife was at the shop where he was arrested at.

10. PW14 PC JOSEPH NAMPASOtook the sketch plan of the scene and thereafter spoke with witnesses from which he established that on the material day the accused who had been suspended at the quarry wanted to talk to the deceased and they agreed to meet along the road to discuss the issue.  He thereafter proceeded to the house of the accused where they found nobody.  They searched the house and recovered a blood stained T-shirt with the name of the accused on it.   Using the mobile phone tracking devise the accused was traced to Malaba and subsequently to Osieko beach where he was arrested and taken to Nairobi. On 15/4/2014 the same was examined and found fit to stand trial and was subsequently charged with this offence.

DEFENCE CASE

11. When put on his defence the accused testified on oath and confirmed having worked with the deceased at the quarry where he was a security guard and when the quarry flooded he together with five others were suspended for a period of time.  It was his evidence that on the material day he was a trader at the site from 7. 00 a.m. to 12. 00 when he left to go look for a lorry at the gate which he did.  He stated that he loaded the hardcore up to 4. 00 p.m. when he went to Mwiki where he was staying.  It was his evidence that he had left his mobile phone at home and when he switched it on at 4. 00 p.m. he found several missed calls and attempted call.  He was thereafter called by someone who told him that the deceased had died at lower quarry and that the mob had arrested someone called OLUBANDA and beaten him up.  He denied having called the deceased on the material day.

12. He further stated that after one week his wife called him from his rural area and informed him that she was sick and could not continue with the shop he had opened for her, so he decided to go to Osieko Beach and assist her while looking after their children and that upon the recovery of his wife while  planning to come back to Nairobi he saw police officer including PW11 BOAZ NYAMWANGE who was the chairman of Gor Mahia Mwiki Branch who told him that he wanted him to accompany them to  Nairobi to assist with the investigation on the death of the deceased.  He stated that he had not absconded to Uganda since at Osieko Beach this mobile phone sometimes get connected to MT of Uganda.  He confirmed having met PW5 but denied having committed the offence.

SUBMISSIONS

13. At the close of the prosecution case the prosecution relied on their submissions at no case to answer stage while on behalf of the accused Mr. Wamwayi submitted that there was no witness who saw accused at the scene of murder save for PW1 who stated that he had only seen him twice on 8th of October, 2013 and on the day he testified in court.  It was submitted that no identification parade was conducted and that he did not give any reason of how he could have identified the accused in support of which the case of CHARLES AMBOKO & ANOTHER v REPUBLIC Kakamega  HC CR. Appeal No. 51/52/2014 (2015) eKLR was submitted.

14. It was further submission that the prosecution case was purely based on circumstantial evidence.  It was submitted that the analysis of the blood found on the red T-shirt allegedly belonging to the accused was never produced and  neither did the prosecution establish the alleged communication between the accused and the deceased.  It was submitted that no record was produced to confirm the communication  between the accused  and PW11.  It was submitted further that one OBED ALUBANDA who was attacked on suspicion of being the killer was never called as a witness to rule out mistaken identity and therefore the accused should be accorded the benefit of doubt.

ANALYSIS AND DETERMINATION

15. To sustain a conviction on a charge of murder, the prosecution is under legal duty to establish beyond any reasonable doubt the following ingredients.

1) Fact and cause of death of the deceased.

2) That the said death was caused by an unlawful act or omission on the part of the accused.

3) That the said unlawful act or omission was caused by malice aforethought

which is defined under Section 206 of the penal code as follows:-

“S. 206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:-

a) An intention to cause death 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 or grievous harm to some person whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whet her death or grievous bodily harm is caused or not or by a wish that it may not be caused.

c) An intention to commit a felony.”

16. The fact and  the cause of death of the deceased herein  is not in dispute.  PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8 all confirmed the death of the deceased whereas PW13 DR PETER NDEGWA confirmed the cause thereof to be exsanguinations due to multiple organ injuries as a result of multiple stab wounds.  The accused in his defence confirmed that he was called and told that the deceased who was his friend had been killed at the lower quarry.  I therefore find and hold that the fact and the cause of death of the deceased has been established beyond any reasonable doubt.

17. On whether the said death was caused by an act of omission or commission on the part of the accused person, the evidence on record confirms that the accused was placed at the scene of murder by the following witnesses:-  PW1 who met with the deceased shortly before his death testified on oath and confirmed  that the deceased received a cellphone call in his presence and duly told him that it was the accused who had called him and that they were going to meet by the roadside.  This was at 11. 30 a.m.  and after one hour he was called and informed of the death of the deceased.

18. PW3 JOHN OLE KOILEL stated that the person who entered the deceased car had a red cap on. PW5 THOMAS OGALLO ADHOGA met the accused at the path to the lower side of the quarry between 12-1. 00 p.m. and confirmed that he had a green jacket and a red cap shortly thereafter he was called and informed of the death of the deceased. PW10 CHARLES OCHIENG OMOLLO met with the accused on the road as he was reporting on duty at 7. 00 a.m. and it was his evidence that the accused who had been  interdicted was not supposed to be on duty on the said date, PW11 BOAZ MUIGA KEMO who was a friend of both the accused and the deceased stated that after the murder the accused ran away and since he had his number he communicated with him and from their talk there were indications that he knew  of what had happened while PW12 JOHN NAISODO stated that he could identify the accused since he was a tall black man slightly  built who wore a red T-shirt and red cap.  He was able to identify the accused at the dock as the one he had seen on the material day.  PW14 the investigating officer went to the house of the accused and recovered a red T-shirt which had blood stains.

19. The accused in his defence confirmed that he was at the quarry between 7. 00 a.m. to 12. 00 he confirmed having met with the PW5 towards the gate while he was going for lunch.

20. The issue for determination is whether the accused person was placed at the scene and whether the same was positively identified and whether the circumstantial evidence tendered herein is strong enough to link  the accused to the commission of the offence  herein:- it is not in dispute that most of the prosecution witness  were personally known to the accused.  The evidence tendered was that the accused called the deceased on phone and they thereafter met by the road side shortly before the accused was met by  PW5 and immediately thereafter the deceased was found dead in his car. There were two eye witnesses who saw someone who matched the description of the accused leaving the car wherein the body of the deceased was found with stab wounds.

21. There is unchallenged evidence that at the time when the accused was seen at the scene he had been interdicted and was therefore not on duty as he alleged in his evidence in defence.  There is evidence which is unchallenged to the effect that the accused had arranged to meet with the deceased so that the issue leading to his interdiction would be sorted out and having listened to most of the prosecution witnesses  who were friends of both the accused and the deceased, I have no doubt on their truthfulness and credibility and therefore find that the accused person who was known to PW5 was positively placed at the scene and having been interdicted by the deceased find that the  accused had the necessary mens rea and indeed caused the death of the deceased with malice aforethought.

22. On the issue as to whether there was mistaken identity of the accused person, the evidence of PW3 was that the accused was tall and heavy built, this was confirmed by the evidence of PW12 who was able to identify the accused at the dock.  It is also clear that one Obed Olubanda was mistaken for the accused since he had sports shoe like those the accused had on but he was accounted for by the evidence of PW4 who was with him on the material day and went with him to the scene and confirmed that he was not wearing red clothes.

23. I therefore find and hold that the accused was positively placed at the scene and whereas the prosecution did not tender in evidence to confirm the communication between the accused and the deceased, there is strong circumstantial evidence connecting the accused to the offence herein in addition to his conduct of running away from Nairobi immediately upon the death of the deceased which was confirmed by the evidence of PW11 who was both a friend of the accused and the deceased.

24. I have further taken into account the defence of the accused person herein and find that the same has not dislodged the prosecution case and having confirmed that the accused and the deceased were friends before he was interdicted and having taken into account the fact that the accused admitted having communicated with PW11 during the said period, I find his defence unbelievable and hereby dismiss the same.

25. In the final analysis, I find and hold that the prosecution has proved its case against the accused beyond reasonable doubt that the same caused the death of the deceased with malice aforethought and hereby find the same guilty and accordingly convict him of the murder REUBEN ODUOR OYERO on 8th October, 2013 contrary to Section 203 of the Penal Code and it is so ordered.

DATED, SIGNED and DELIVERED at Nairobi this 9th day of November, 2017

…………………………

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Meroka for the State

Miss Kali for the accused

Accused person present

Court clerk Tabitha