Republic v Njoka [2023] KEHC 23721 (KLR)

Republic v Njoka (Criminal Case E004 of 2020) [2023] KEHC 23721 (KLR) (11 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23721 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Case E004 of 2020

SM Githinji, J

October 11, 2023

Between

Republic

Prosecution

and

Fundi Mugo Njoka

Respondent

Judgment

1. The accused herein, one Fundi Mugo Njoka is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Chapter 63 of the Laws of Kenya.

2. The particulars of this offence are that on the 26th day of November, 2020 at Heshima Village, Hongwe Location in Lamu West Sub-County within Lamu County, the accused murdered Mugo Njoka Kirani.

3. The prosecution case is that the deceased herein is the father of the accused person. The deceased was living at Heshima Village in Lamu.

4. On 26/11/2020 at about 3. 50Pm the accused rushed into a mnazi beer selling den, seeking assistance to rush his father to the hospital as he was unwell in the house. PW 3 and a lady he referred to as Dada Jane were at the place and sought for a boda boda to assist. When they went they found the deceased fallen in the house dead. They informed the area chief. The deceased daughters, PW 1 and PW 2 were told about it. The body was taken to Mpeketoni Sub-County Hospital. A postmortem was conducted on 28/11/2020 where the pathologist made an opinion that the cause of death was due to strangulation on the neck, causing suffocation and respiratory failure thus leading to cardio pulmonary and cerebral arrest.

5. The matter was investigated and the accused was held as a suspect and later charged.

6. The accused’s defence is that on 26/11/2020 he was at home. He left home to go and see his father. He found his father unwell. He was alone. He was living alone. He sought assistance from neighbours. He wanted to be assisted to rush him to the hospital. When the chief arrived the accused was held. He was taken to the police station. He was the one taking care of his father.

7. At this juncture this court must establish as to whether the offence against the accused is proved by the prosecution beyond reasonable doubt.

8. The available evidence shows that the deceased was killed by way of strangulation. The only issue there is to determine is whether it’s the accused herein who killed his father. There is no eye witness to the incident that led to his death. The available evidence is circumstantial, in that it’s the accused herein who rushed to seek help to take his father to the hospital on allegation that he was unwell, only for it to be discovered that he had been killed by way of strangulation.

9. In the case of Ahanga alias Onyango v Republic Criminal Appeal No 32 of 1990 (UR), the Court held that circumstantial evidence must satisfy the following three test for it to lead to a conviction;i.The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; -ii.Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; andiii.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.

10. The evidence reveals no motive as to why the accused herein would have wanted his father dead. There is unanswered question why he chose to call for help and not just abandon him and escape if he is really the one who killed him. There is no evidence that he is the only one who had the opportunity to kill him at the time he met his death.

11. Considering the foregoing circumstances the available evidence only raises suspicion against the accused person and as was held in the case of Sawe v Republic (2003) KLR 364, suspicion, however strong, cannot provide basis for inferring guilt which must be proved by evidence beyond reasonable doubt.

12. The bottom line is that there is no reliable evidence that connects the accused person to the commission of the said offence. The case is therefore not proved by the prosecution against him, beyond reasonable doubt. He is accordingly acquitted of the offence and is free to go home.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 11TH DAY OF OCTOBER, 2023…………………………………………………S.M.GITHINJIJUDGEIn the presence of; -Ms Agatha for the ProsecutionAccused in Person