Republic v L W W [2015] KEHC 3658 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL CASE NO. 33 OF 2008

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

VERSUS

L W W....................................................................ACCUSED

JUDGMENT

Introduction

The accused, L W W was charged with the offence of murder contrary to Section 203as read with Section 204of the Penal Code. It was alleged that on the night of 23rd and 24th September 2008, at Makutano Village, Mukuyu Sub-Location, Mutuma Location in Lugari District, within Western Province, the accused murdered J M.

This case was initially presided over by Hon. Lady Justice P. M. Mwilu (as she then was) and taken over by Hon. Justice J. R. Karanja after six witnesses had testified who then heard the testimonies of PW7 and PW8 and shortly thereafter was transferred. The matter was thereafter taken over by Hon. Lady Justice A. Mshila and Hon. Justice F. Azangala (as he then was) who did not however hear any of the witness testimonies. Finally, I took over this matter at the point when one prosecution witness and the defence testimony were pending hearing.

Prosecution case

The prosecution called nine (9) witnesses in support of its case. Briefly, the evidence is as follows: PW1,J A, was the mother to the deceased. She testified that she had lived with the accused for three years during which period they got two children, but separated thereafter after disagreements. The deceased was their second child. She testified that on 23rd September 2008 at about 3. 00 p.m., she was informed by Olivia and Everlyn, that the accused had asked for the deceased. PW1 took the child to the accused, who was at the time alone and left him with the accused. She then proceeded to her mother’s home in Kitale. Later that night, at about 2. 00a.m., PW1 was informed by her aunt P (PW2) that the child had been killed. In the morning, PW1, accompanied by her mother, left for the accused’s house but did not find the accused or the deceased. She stated that she never saw the child again.

PW2,P S M who was related to the accused testified that on 23rd September 2008 at about 8. 00p.m., she found the deceased outside, about 5 metres away from the accused house. When the accused came out of the house, she cautioned him against leaving the child outside since it was cold. The accused did not respond and she went her way. PW2 did not know whether or not the mother of the deceased was in the house at the time. But according to her, the child appeared well. PW2 stated that she had first given the child to J (PW5) who refused to take him and asked her to take him to his father. The following day, a neighbour who came to pick the key to the water well informed her that there was a dead child on the road. When PW2 went to the spot, she found the Administration Police officers from Makutano telling the accused to take the child’s body inside the house. PW2 noticed that the child’s neck was swollen. She maintained that the child was well the previous night when she had handed him over to his father.

PW3,I B was a neighbour to the accused. She testified that on 24th September 2008, at about 6. 00 a.m., she found the deceased lying on the ground. She recognized him and screamed, attracting neighbours who rushed to the scene. She went and reported to the Administration Police officers and upon coming back, she found many people surrounding the body including the accused and his father. She stated that she did not hear any noises at night and did not know who had killed the child.

PW4,R B, was a minor, then aged 12 years. She gave an unsworn testimony after the trial court determined that she was not capable of appreciating the meaning of taking an oath. She testified that on 23rd September 2008 at about 7. 30 p.m., while accompanying her mother (PW2) to the shop, they found the deceased standing next to the road alone. They took the deceased to J who asked them to take the child back to his father. Thereafter, they proceeded to the shop and back home. The following day, PW4 heard from the neighbours that the child was dead. According to PW4, the child appeared well the previous night.

PW5,J M, who is related to the accused testified that on 23rd September 2008, at about 3. 00p.m., the child was standing alone near the neighbour’s house. At about 8. 00p.m., Pamela, (PW2), knocked at her house, and asked her to takethe child. Instead, PW5 asked her to take the child back to his father since she had her own newborn twins to take care of. The following day, PW5 heard that the child was dead. She saw the child’s body lying next to the road. She stated that Administration Police officers were brought to the scene and the body was taken away.  According to PW5, the child’s mother had disagreed with the accused and deserted their home.

PW6,J W, the father to the accused testified that on 23rd September 2008, he was at home, and he did not see either the accused or the deceased. He learnt the following day that the child had died. The accused came and told him that the child was dead but did not say what had caused his death. PW6 recorded his statement with the police at Turbo Police Station.

The evidence of PW6 was dispensed with after he had testified, on the application of the prosecution.

PW7,Corporal Joasm Nyachiro, No. 232587,  then attached to Turbo Police Station, and the investigating officer in this case assisted by PC Otando testified that on 20th December 2008 at 11. 00 a.m., he was informed by the officer then in charge of Administration Police Camp at Makutano that a child of 11/2 years had been found dead at Makutano Junction. Together with his colleagues, he proceeded to the scene but they did not find the body. They found the body in the house of the accused covered with a blanket.

In cross- examination, PW7stated that the body had minor injuries on the face and neck. He directed that a sketch plan of the scene be taken. He also identified potential witnesses at the scene and arrested the accused. Following further investigations, it was revealed that the accused had separated with the mother of the deceased child.PW7 further established from investigations that on 23rd September 2008, the accused had sent some people to collect the deceased and bring him home. The deceased had been received a day before he was reported dead. PW7 did not recover any murder weapon.

I do observe at this point that PW7indicated that the murder incident was reported to them on 20th December 2008. This reference must have been made in error since the offence was reported to have occurred on the night of 23rd and 24th December 2008. This was properly reflected in the testimony ofPW8 who was informed together with PW7 about the incident.

PW8, Police Constable Julius Otando was then based at Turbo Police Station took part in the investigations. He testified that on 24th December 2008, they were informed by CIP Nyachiro (PW7) that a murder had occurred within Makutano area. He accompanied PW7 to the scene where they found the body of the deceased in the house of the accused. On 1st October 2008, the accused’s father accompanied them to witness the post-mortem. From the investigations, it was revealed that the child’s mother and the accused had separated following disagreements. They also established that the deceased had died a day after he was taken by the accused from his mother.

PW9,Doctor Inwanyi Nicholas, then a senior medical doctor from WebuyeDistrict Hospital, produced the post mortem report in respect of the deceased which was filled by Dr. S.K. Ngugi who had at the time been transferred.From the post-mortem conducted on the body of the deceased, Dr. S.K. Ngugi concluded that the deceased died as a result of cardial pulmonary arrest due to severe asphyxia (suffocation/lack of air) secondary to upper air way traction secondary to strangulation with blunt object.

Defence

The accused gave a sworn testimony in his defence and did not call any witness. He testified that on the night of 23rd and 24th September 2008, he got home from work at about 10. 00 p.m. when his father informed him that the child’s mother had brought the deceased home and left him there. According to him, the child’s mother had declined to wait for him had instead opted to leave the child with a neighbour. When he got home, one Jackline, who was related to the accused, brought the child to him, and told him that the child’s mother had brought the child to him, saying was she had re-married and that the accused should be the one to take care of the child. The accused stated that the deceased asked for food. He left the child with Jackline in the house and went to the shopping centre at Makutano to buy food. When he got back, he found the door to the house unlocked and found no one in the house. He informed his father that there was no one in the house who advised him to wait until morning to follow up.

The accused further stated that he was woken up the following morning by a neighbour who enquired from him if he had spent the night with a child. When he told him he had not, the neighbour asked him to accompany him to the road and at a distance of about 10 metres, they found the child lying there dead. They went to the Makutano Administration Police who accompanied them to the scene. The neighbour carried the deceased’s body to his house on the orders of the police officers, who then called the OCS Turbo Police Station to the scene. The accused explained to the OCS what had happened, who slapped him and arrested him. He was first taken to Webuye District Hospital and then to the Police Station. He was later charged with the offence. The accused denied killing the deceased. He also denied the account as given by PW2, insisting that it was Jackline who brought the deceased to his house. He however,stated that Jackline had informed him that the deceased was loitering. He also denied that he had demanded for the deceased to be brought to him from his estranged wife.

EVALUATION OF EVIDENCE

For the offence of murder to be established, the prosecution is under a duty to prove beyond reasonable doubt the following elements:

The death of the deceased and the cause of the death,

That the death was caused by an unlawful act or omission of the accused, and

That in causing such death, the accused acted with malice aforethought

The death of the deceased is not in question. PW2testified that she had encountered the deceased on the night of 23rd September 2008 outside the house. She stated that she then asked the accused to take him in. On the following day, she learnt that the deceased had died and went to the scene where the body of the deceased was lying. PW3 found the body of the deceased on the morning of 24th September 2009, at about 6. 00 a.m., as she headed to the shop. She raised an alert and reported to the nearest Administration Police Camp. PW5recalled that PW2 had brought the child to her house on the material night but had directed PW2 to take him back to his father’s house. She also saw the body of the deceased lying next to the road the following day. PW7,who received a report of the murder incident, went to the scene where the body was said to be lying. They found the body at the house of the accused and arrested him. PW8who took part in the investigations corroborated the testimony of PW7.

PW9produced the post mortem report in respect of the deceased in place of Dr. S.K. Ngugi. The post mortem report confirmed the death of the deceased and gave detailed particulars on the cause of death.In the report dated 30th September 2008, it was observed that the body of the deceased hadbruise marks along the base of the neck, collapsed crizoid cartilage and blood oozing from the mouth and nose. Internal examination showed collapsed trachea and collapsed crizoid cartilage and collapsed heart and fracture of the cervical bone.  From the post-mortem, the doctor concluded that the cause of death was ‘cardio pulmonary arrest due to severe asphyxia (suffocation/lack of air) secondary to upper airway traction, secondary to strangulation with blunt object.’

Regarding the issue as who caused the death of the deceased, there was no direct evidence linking the accused to the offence. It is true, as submitted on behalf of the accused, that the evidence in this case is purely circumstantial. Therefore, in evaluating the evidence before me, I shall be guided by the principles regarding the treatment of circumstantial evidence as a basis for a conviction. In the case of Sawe

-Vs- RepublicCriminal Appeal No 2 of 2002 (2013) eKLR,the Court of Appeal restated the principles which ought to be applied when dealing with circumstantial evidence in the following terms:

“In order to justify, on circumstantial evidence, the inference of guilt, 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. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.”

The evidence of PW1, PW2, PW4andPW5 is relevant. It was the evidence of PW1 that the deceased sent some people to her requesting for the deceased. PW1 took the child to the accused herself and left him with the accused who was then at home. She thereafter left the child with the deceased. This was corroborated in part by the testimony of PW5who testified that she had seen the deceased on 23rd September 2008, at about 3. 00p.m., alone near the neighbour’s house. The denial by the accused that he did not send for his child is therefore unfounded. The absence of the testimonies of the persons allegedly sent by the accused to collect the child does not lessen the evidence of this fact since eventually, it has been shown that the deceased was left at the accused’s house. The accused in his sworn testimony confirmed that the deceased was in deed brought to him by PW1 but he denied being present when the child was brought to him. He indicated that he was informed by his father that PW1 had come and left the child there. Only PW1,testified to have found the accused home at 3. 00 p.m. when she left the deceased with him. The accused denied this fact. Nevertheless, this contention does not dispel the evidence that the deceased was left in the custody of the accused.

The evidence before me firmly establishes that the child was delivered into the custody of the accused on the 23rd September 2008. This is elaborated by the accounts of PW2 and PW4 who were with the child on the evening of 23rd September 2008. PW2 and PW4 testified that they found the deceased outside alone at about, 7. 30 p.m. or 8. 00 p.m. The variance on their account regarding the time of the night is immaterial. PW2 then took the child to PW5 who declined to take the child in and asked them to take his to his father. This fact was denied by the accused who stated that it was PW5 and not PW2 who took the child to him. Again, I find his denial untruthful because PW5 herself confirmed that PW2 knocked on her door at about 8. 00 p.m. asking her to take the child but she declined and asked PW2 to take the child to the accused. She stated that she had her own newborn twins to take care of. PW2 took the child to the accused, and PW5 attested to this fact. Even though PW4 gave an unsworn testimony, her evidence is in accord with the account of PW2 who she had accompanied on the material night. Therefore, from this examination of the evidence, it has been established that the deceased was at the material time in the custody of the accused.

From the sequence of events as narrated by the witnesses, there is no direct account regarding what happened between the period the child was left in the custody of the accused and the discovery of his body the following morning. What is clear from his evidence is that the child was well at the time he was handed over to his father. This was confirmed by PW2 and PW4.

The accused in his defence denied being with the child on the night.  He stated that when the child was brought to him by Jackline, PW5, he asked for food and the accused left them and went to the shopping centre to buy food. PW5 denied that she took the child and brought him to the accused. The accused therefore, by his testimony sought this court to find that he was not with the deceased on the material time after he was delivered to him by PW5. Were this court to be persuaded in this respect, which I am not, I still find his testimony unbelievable. The accused stated that when he found no one in the house after returning from the shops, he consulted his father who told him that he should wait till the following morning. Ordinarily, it would have been expected of him to have made an attempt to confirm with Jackline, who, he alleges he had left the child with, to confirm if she was with the child. Furthermore, were this true, he would even have, on his own initiative, sought to find his son. According to him, he was alerted by a neighbour the following morning. The account of events as narrated by the accused does not accord with the conduct of any parent concerned about the welfare of the child. I find his defence as a mere attempt to dissociate with his being in custody of the deceased at the material time. PW5’s account was that it was PW2 who delivered the deceased to him. I am satisfied with the account that the deceased was lastly seen alive with the accused.

The body of the deceased was discovered on the morning of 24th September 2008 by PW3on her way to the shop. It was upon PW3’s encounter that an alert was raised about the death of the deceased. PW3 stated that she went and informed the Administration Police.

The body of the deceased was found lying on the road on the morning of 24th September, 2008 at 6. 00 a.m. This fact is not in dispute. It is also not in dispute that the body was removed from the scene to the house of the accused. This was an irregular conduct on the part of the Administration Police to whom the finding of the body was first reported. They may have tampered with the scene of the crime in so ordering.PW7 and PW8 both confirmed that it had been reported that the body of the deceased was lying on the road at Makutano Junction. They however, did not find the body there when they proceeded to the scene. PW2testified that she found the police officers directing the accused to take the body to his house. While both PW7 and PW8 carried out investigations into the commission of the offence, their findings regarding the circumstances surrounding the offences are based on the testimonies of the witnesses who recorded their statements and who have testified.

From the accounts of witnesses already set out above, I find that there is uncontroverted evidence to the effect that the accused was in the custody of the deceased when he was last seen alive. Counsel for the accused attempted to explain away the disappearance of the deceased into the night as attributable to the fact that the child was in a new environment and therefore disturbed and restless as he had not acclimatized to the environment. While explaining this, counsel seemed to agree with PW2’s account of finding the deceased outside at night, evidence which was disputed by the accused in his defence.

I have found that there was strong evidence to show that when the child was last seen alive, he had been handed over to the custody of the accused. The deceased was at the material time, under the care of the accused. Having established so, a rebuttable presumption can be made that he knew the circumstances surrounding the last time the deceased was seen alive. While he tried to distance himself from the knowledge of the whereabouts of the deceased, based on the evidence available before me, I found his account untruthful. With the prosecution having established that the deceased was with the accused at the material time, before his body was discovered, then Section 111(1) of the Evidence Act would apply, which provides:

“(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:

Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:

Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”

The court is entitled to make the presumption above under Section 119 of the Evidence Actwhich empowers the court to presume‘the existence of a factwhich it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case’Once the prosecution firmly established that the deceased was in the custody of the accused when he was last seen alive, the accused did not discharge theburden of explaining facts within his special knowledge.

The attempt by the accused to distance himself from knowledge about the whereabouts of the deceased does not hold water. He attempted to show that the deceased was lastly in the company of Jackline (PW5). This, theory was defeated by the consistent testimony of PW2, PW4 and PW5. This leads me to the conclusion that the accused, from the evidence adduced, could have been the only one who caused the unlawful death of the deceased.

With regard to the element of malice aforethought, the prosecution has the onus of proving any of the following circumstances described under Section 206of the Penal Code.

“(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 bodily 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’

Malice aforethought can be inferred from the facts of the case. The deceased was a child of less than 2 years at the time of his death. Evidence from the post-mortem was clear that the deceased had suffered both external and internal injuries. According to PW9, the deceased suffered strangulation which was the ultimate cause of his death. From this elaboration, it is not in doubt the person who inflicted the injuries intended to cause the death of the deceased. The victim  being a minor and defenceless, are the more reasons why the assailant ought to have appreciated the consequences of his action. The injuries inflicted on the deceased are pointedly indicative of a deliberate action to cause death of or grievous harm to the deceased.

Let me comment on the evidence of PW7 and 8 with respect to the dates they testified they received the information on the murder.  According to PW7 he testified that on 20th December, 2008 at 11. 00 a.m., he was informed about a dead child at the Makutano Junction.  PW8 on the other hand testified that it is on the 24th December, 2008 that he was informed by PW7 about the murder.  He went on to testify that on 1st October, 2008 the accused’s father accompanied them to witness the postmortem exercise.  The evidence of the two witnessestend to bring out an assertion that the murder was committed sometime in the month of December 2008.  Those dates are clearly reflected in the hand written proceedings as well.  I think it was a mistake on the part of the recording court because from the evidence of all other witnesses and from the information containing the charge there is no doubt that the murder was committed on the night of 23rd and 24th September, 2008.  Therefore, the contradiction raised by the evidence of PW7 and 8 with respect to the date of the murder does not vitiate the strong evidence on the record that the murder was committed on the aforestated dates.  In any case, the error in the recording by the court is curable under Section 382 of the Criminal Procedure Code which provides that:-

“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, commission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice.

Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at tan earlier stage in the proceedings.”

Conclusion

From the foregoing, I am satisfied that the prosecution has proved the charges against the accused to the required standard. I therefore convict the accused of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

DATEDandSIGNEDthis 24th day of June, 2015.

G. W. NGENYE – MACHARIA

JUDGE

DELIVERED at ELDORET this 2nd day of  July 2015.

BY: G. K. KIMONDO

JUDGE

In the presence of:-

1. No appearance by Counsel for the accused

2. Miss. Karanja for the state.