Republic v J N S [2017] KEHC 1892 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL CASE NO. 2 OF 2013

REPUBLIC……………………………......………….PROSECUTOR

VERSUS

J N S………………………………………………………ACCUSED

JUDGEMENT

1. The accused herein Joseph Namunyu Simiyu was charged with the offence or murder contrary to Section 203 as read with 204 of the Penal Code.

The particulars thereof were that between the night of the 28th and 29th of October, 2012 at [Particulars withheld] village, Misikhu location within Bungoma County he murdered his 15 year old daughter F N.

2. The accused pleaded not guilty and the Prosecution relied on circumstantial evidence adduced by 9 witnesses including a hand writing expert in a bid to prove the case against the accused.

3. 9 of the Prosecution witnesses did not point a finger at the accused save for the handwriting Expert whose opinion was that although disguised the handwriting of the accused was similar to the hand writing found on the deceased slipper, found next to the bathroom near the accused house.

4. PW1 David Barasa Lokoriti a ‘Mukasa’ from a neighbouring village learnt of the deceased death on 29/10/2012.  Upon consultations he went to the scene and found the deceased body lying at a sugar plantation that belonged to the accused about 120m away.

5. PW2 D W S a brother to the deceased.  On the day the body was recovered he found people gathered as he arrived from school at 5p.m. He learnt that she had died.

He confirmed that when the deceased left home she was wearing slippers one of which was found to have a message purportedly written by the deceased.  It was his evidence further that their father used to get home drunk and did not take good care of them forcing them to fend for themselves.  He also confirmed that their mother had left home due to disagreement with the accused.  In cross examination he stated that the relationship between their father and the deceased was good and he did not see any reason why their father would have killed her.  He testified that on the 27/10/2012 the deceased left to go and buy vegetable at about 7p.m. never to return.  They looked for her all in vain.  They informed their father who asked them to look for her.  When they failed he told them to sleep and look for her the following day.  That as they looked for her their father was just at home.  Later he saw their sister’s slippers and informed his brother Ambrose.

He saw the slippers just infront of his father’s house a day after the deceased disappearance.

PW3 Michael Kisembe

He was an employee at the Sugar plantation where the deceased body was found.  He recalled that he met the accused carrying slippers that had a written paper on one of them.  He advised the accused to report to the Mukasa.  The Mukasa advised them to look for the deceased.  The witness left to search for the deceased as the accused went to look for other people to assist.

The witness looked around followed a path and found the deceased placed in a sitting position next to a sugarcane stem.  He then went for the accused and led him to where the body was and on seeing the body the accused wailed.  The witness then called the Mukasa who arrived with the assistant Chief, who then called the police.

6. PW4 Daniel Barasa a village elder, recalled that on 29/10/2012 at 8. 30a.m. he met PW3 and the accused who informed him of a lost child, they had a slipper with them with some writing.  He advised them to go back look for the child, before long he received a call from PW3 that they had found the child dead.  He went to the scene.  He saw the deceased seated against a cane.  The slipper with the writing was left at his house.

7. PW5 Noah Wanjala Mwangale an Assistant Chief recalled that on 29/10/2012 at about 8. 45a.m. he received a call from PW4 that a person was found dead at a sugar plantation. He went to the place and found the body of a girl of 15 years.  He learnt from the accused that the child got lost on 27th of October, 2012, and had resurfaced the next day.  The accused could not explain where the daughter had disappeared to.  He saw the body of the deceased and noted that it had injuries.  He called the O.C.S. of Webuye.  He saw the slipper with the writing and asked for the girl’s book as she was a Standard 7 pupil.  Later gave the book and the slipper to the police Officers.

8. PW6 Sergeant Consolata Ingonzoof Webuye police station recalled that while on duty on 29/10/2012 at about 11a.m. she received a call from Officer in-charge of Crime Inspector Wangila regarding the deceased and they left together with him and police driver Kosgey to the scene.  On arrival at the scene, they found a crowd.  The Assistant Chief took them where the body lay.  They found a panty hanged on a sugar cane.  They saw the body of a girl aged between 14 & 15 years seated against a cane, hands hanging, with injuries to the arms and legs.  The legs had mud as if she had been dragged to the place.  They were given one slipper with some hand written notes.  They asked if the girl’s book for comparison.  They went to the accused house interrogated him and the son.  The accused and his son were asked to write similar information as contained in the note 10 times which they did.  The witness handed over the slipper, with the note and the hand writings to the D.C.I.O. who took the same to a hand writing expert.

9. PW7 Inspector Francis Waigwa Giterewho was the O.C. Crime on the material day, stated that on 29th October, 2012 at about 11a.m. he received a call from O.C.S. Chief Inspector John Munyoki and was informed about the deceased together with PW6 they went to the scene.  They were taken to the place by the assistant Chief.  They found a panty hanging on a cane.  They viewed the body and saw bruises on the neck, hands and legs.  They were shown on a note purportedly written by the deceased.  They also took the note and a book of the deceased.  They took the body to Webuye.  They handed over the book and the note to the D.C.I.O. for further investigations.

10. PW8 Aggrey Wekesa.He engaged PW3 on 28/11/2011 to plant sugar cane at the plantation where the deceased body was found.  He initially had leased the land and later purchased the same from the accused.

11. PW9 was Dr. Edward Vilembwa who did a post mortem on the body of the deceased.  He found that she had the presence of strangulation force on the upper neck, both lungs had collapsed.  He formed the opinion that the collapsed lungs cause the death.

12. PW 10 Mr. John Muindeis a superintendent of police based at the Directorate of Criminal Investigations in Nairobi.  He is a forensic Examiner, he received exhibits of the hand writings for comparison.  The documents he received were;

Exhibit A –Document in question.

Exhibit B – Known hand writing of the deceased Faith Nafula

Exhbit C1-C3 – Hand writing of Joseph Namunyu Simiyu

Exhibit D1-D3 – Hand writing of Michael Kisesure Nyongesa.

He compared the handwriting in Exhibit A with Specimen in C1 – 3 and D1 – 3 and the known hand writing.

He formed the opinion that there were similarities between exhibit A and C1 – C3.

13. The accused was placed on his defence.  He denied having murdered his daughter.  It was his evidence that he last saw his daughter alive on the 27th of October, 2012.  The following morning he woke up and as he went to the toilet he saw his daughter’s slippers placed near a stone next to his bathroom.  He picked the slippers and took to Nyumba Kumi representative to read.  The nyumba kumi representative read the same and advised him to go to the Mukasa who then directed the two to search for the child.  In the thicket he found his daughter lying against the sugar cane, her head hanging and insects all over her.  He wailed and other people joined him.  Later the police arrived, took photo graphs and took the body to the mortuary.  It was his further testimony that he had no reason to kill his child.

He also stated that he lived with all his children.  After the incident he was arrested 3 months thereafter.  Further, when he got released on bond, he did not find his son Ambrose at home.  He is not aware whether Ambrose was to be a witness.

14. After analyzing the evidence on record the issues for consideration are; whether all the ingredients of the offence of murder have been proved, namely (i) whether indeed there was a death, (ii) proof that the unlawful action or omission of the accused caused the death and (iii) whether the said unlawful action or omission was committed with malice aforethought.

15. In considering all the above the Court is minded that the onus of proving the guilt of the accused squarely lies upon the Prosecution.  See the case of Woolmington vs D.P.P. (1935) 462 at 481 where the legal burden in Criminal Case was stated as hereunder bearing in mind that the position in Law is applicable in our jurisdiction

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the Prosecution to prove the prisoner’s guilt.  Subject to what I have already said as to the defence of insanity and subject also to any statutory exception…

No matter what the charge is where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common Law of England and no attempt to whistle it down can be entertained.”

16. From evidence on record the deceased was found dead in a sugarcane plantation on the 29th of October, 2017.  See the evidence of PW1, PW2, PW3, PW4, PW5, the accused and as confirmed by PW9 Dr. Edward Vilembwa who carried out her post mortem examination.

17. 9 of the witnesses did not pointed an accusing finger at the accused and there were no eye witnesses at all.  The Prosecution through PW10 purported to link the accused to the writing note stuck on the slipper that the deceased is said to have worn before her disappearance.  The Prosecution further argue that the accused’s movements and reaction after the disappearance was wanting as he showed no concern for his lost daughter.  Further that the expert formed the opinion that the hand writing on the slipper had similarities with the hand writing of the accused.

18. On its part the defence argue that the handwriting on the slipper and that of the accused were totally different.  Further that the expert witness did not give specifics of the alleged similarities.   That what he gave were mere general characteristics.  They submitted that the opinion was not binding as the Court ought to come up with its own opinion.

19. The Court has examined the exhibits referred to and in particular the disputed handwriting and exhibit C1-C3.

It is clear to Court that the disputed handwriting was written by an educated person and to a good level, yet exhibits C1-C3 are by a person who struggled writing the same.

In Dhalay V Republic (1995-1998) 1 E.A. the Court of Appeal held inter alia

“while Courts were obliged to give proper respect to the opinions of experts, such opinions were not binding on the Courts.  Expert evidence had to be considered along with all other available evidence and, where there was a proper and cogent basis for rejecting an expert opinion, a Court was perfectly entitled to do so.  A trial Court had the duty of deciding whether or not it believed the expert and giving reasons for its decision.”

20. Guided as above the Court is inclined not to believe the evidence of PW10, firstly because the hand writings as noted above are totally dissimilar, secondly the opinion given is based on generalities and no specifics were given that would convince this Court to take the opinion to be credible.

21. Thirdly, even with the doubt from the report, the Prosecution had no other evidence linking the accused to the daughter’s death.  Most witnesses stated that the accused stayed well with all his children.  Indeed PW2 a brother to the deceased said that he saw no reason why their father would have killed his sister.  Though he went on to describe their father as one who did not care much for their welfare as he was a drunk, this in my view may have explained why he did not immediately react to his daughter’s disappearance nor report her disappearance, this behavior cannot possibly make him guilty of his daughter’s murder in the absence of evidence implicating him.

22. Interestingly the note found on the slipper implicated one Ambrose, a brother to the deceased, yet his handwriting sample was not taken.  Ambrose was expected to be a witness but he has since disappeared from home, his evidence therefore is not available. Could he be the missing link?  Just a thought.

23. The third ingredient of the offence facing the accused is malice aforethought.   The Court is of the view that the Prosecution totally failed to place before Court evidence that would support this ingredient.

24. Yet again another case will fail.  The deceased died at the age of 15 years, it may never be known why and by whom.   This to me can be attributed to shoddy investigations that were done.

25. For the above reasons the Court finds the evidence placed before it to be insufficient to sustain the charge of murder and to have the accused convicted.

26. The benefit of the doubt has to be resolved in favour of the accused.  Consequently the Court acquits him for lack of sufficient evidence.  He is hereby set free unless otherwise lawfully held.

DATED and DELIVERED at BUNGOMA this  12th day of   October,   2017

ALI-ARONI

JUDGE