Republic v George Ochieng Ooko [2017] KEHC 2931 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCRC NO. 22 OF 2010

REPUBLIC ………………………………………………………………PROSECUTOR

VERSUS

GEORGE OCHIENG OOKO …………………………………………… ACCUSED

JUDGMENT

The accused is charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

The Information states that on 21st May 2010 at Awach Sub-location in Nyakach District within Nyanza Province, now Kisumu County, he unlawfully murdered Paul Ouma Apaya, deceased.

He pleaded not guilty to the charge.

At the ensuing trial the prosecution called seven witnesses. The court heard that the accused and the deceased in this case were brothers.  Their mother (PW1) who would have shed light on what transpired on the fateful day turned hostile and stated that she could not remember what happened on the material day. She in fact denied that the accused killed his brother.  She contended that when she woke up at 9. 00 O'Clock that morning she noticed that the deceased's door was still shut.  Thinking he was still sleeping she went to awaken him but he did not respond.  She called him thrice but there was no response from him. She sent for her brother in-law, Zacharia Buodo Agidho, (PW2) who went to her home.  According to Zacharia Buodo Agidho, (PW2) the mother and father of the accused told him that the accused and the deceased had quarreled and the deceased had locked himself in the house and would not answer when called.  He went round the house and noticing there was no movement inside and the door and window were shut he went and called the Assistant Chief. That Assistant Chief is James Odhiambo Okoth, (PW3).  He told the court that when he went to the home of the accused the accused's mother (PW1) told him the same thing she had told Zacharia.  He broke the door of the deceased's house and on entering he found Paul's, the deceased, body hanging on the roof.  He stated that the body had a rope around the neck.  He concluded that the deceased had committed suicide.  He reported the matter to Katito Police Station who then visited the scene and after cutting the rope removed the body to the New Nyanza Hospital Mortuary.

Corporal Charles Musungu (PW6) who is currently based at Central Police Station in Mombasa testified that he previously worked at Katito Patrol Base and that when they received report of this incident from Assistant Chief James Odhiambo (PW3) he went to the scene.  He confirmed that the police removed the body to the mortuary.  Contrary to what the witnesses before him stated he told the court that the deceased had been strangled.  He stated that the accused and the deceased had fought over some money and the accused had cut the deceased with a panga and the deceased had a deep cut on the left hand.  He recalled seeing blood oozing from the cut and blood clots at the scene.  He produced a strap which he allegedly found around the deceased's neck and stated that he formed the opinion that the deceased had been killed.  The doctor (PW7) also testified that during the postmortem there were several injuries found on the body of the deceased and that the cause of death, in the opinion of the doctor who performed the postmortem, was hyporolemic shock secondary to severe trauma of the left arm and stab wound.  The Doctor performing the postmortem made sure to note that foul play was suspected or could not be excluded.

On his part the accused maintained his plea of not guilty and narrated how he was roughed up by people he found drinking chang'aa when he went there to inform his aunt what had transpired at his home.  He testified that he had earlier in the day arrived home from work only to find his mother and a group of people.  He stated that his mother told him that his brother had committed suicide.  He further stated that he did not know who killed his brother and contended that he was surprised he was charged with murder.  He denied that he fought his brother and cut him on the hand.

The point for determination is whether it has been proved beyond reasonable doubt that first, the accused caused the death of the deceased through an unlawful act and secondly, if he did, whether he did it of malice aforethought.

The prosecution gave two versions of what could have caused the death of the deceased.  His own mother (PW1) who also happens to be the mother of the accused, her brother in-law (PW2) and the area Assistant Chief (PW3) testified that he committed suicide. All three of them testified that the door and window of the deceased were bolted on the inside thereby forcing the Assistant Chief to break in. The Assistant Chief testified how on entering the inner room, I presume the bedroom, he found the deceased's body dangling from the roof with a rope around the neck.Whereas the deceased's mother (PW1) was declared a hostile witness and her evidence is therefore of little probabitive value, her brother in-law and the Assistant Chief were resolute in what they saw and it is that the deceased took his own life.  Although their rope around the neck testimonies was confirmed by the Investigating Officer and the doctor who performed the postmortem that is where the similarity of their evidence ends.  It is also instructive that the statement of PW1 was not shown to this Court and there is no way to know if there was any contradiction between it and her testimony.

The Investigating Officer (PW7) was categorical that the deceased was strangled with a strap.  It was also his evidence that the deceased and the accused had been involved in a fight and that the accused had cut the deceased with a panga.  He, PW6, testified that he saw a deep cut on the deceased's left hand and blood in the room.  The doctor who produced the postmortem on behalf of the doctor who performed the postmortem stated that strangulation had been ruled out.  The postmortem report sets out various injuries found on the body of the deceased.  Among those injuries were multiple stabs wounds (3) on the left arm, lacerations on the scalp, sutured wound approximately 8cm on the left distal 1/3 of the forearm and radio-ulna fracture of the area, multiple bruises on the head, all injuries which I agree would give rise to suspicion of foul play.  However there is absolutely no evidence to connect these injuries to the accused person.  The Investigating Officer PW6 was not present when he claims the two brothers fought and he did not tell this Court how he came to that conclusion.  Their mother (PW1) did not make any mention of a fight.  Neither did her brother in-law or the Assistant Chief.  The closest PW2 and PW3 came to it was when they said that the brothers quarreled.  I am not persuaded that a quarrel per se would occasion the kind of injuries seen on the body of the deceased.  Moreover these witnesses told this court what they were told not what they heard or saw and their evidence is no more than hearsay.  As one ponders over this evidence it begs the answer – what actually happened?  If the accused committed suicide how come the doctor ruled out strangulation as the cause of death?  If his death was the result of the injuries recorded by the doctor who caused those injuries?  How did the assailant enter the house when the door and window were bolted on the inside?  Even were we to believe the Investigating Officer and the Doctor who are independent witnesses and presume a cover-up by the first three witnesses due to the kinship between them and the accused, the question on who inflicted these injuries upon the deceased would still beg an answer.  It is my finding therefore that the prosecution has not proved that the accused caused the death of the deceased through an unlawful act.  In other words it was not proved beyond reasonable doubt that the accused killed the deceased.  Having reached this finding I need not consider whether there was malice aforethought.  In the premises I find the accused not guilty of murder and acquit him.  He should be released forthwith unless otherwise lawfully held.

Signed, dated and delivered at Kisumu this 12th day of October 2017

E. N. MAINA

JUDGE

In the presence of:

Miss Kimani for the State

Mr. Omondi T for the Accused Person

Accused Person

Court Assistant – Serah Sidera