Republic v Peter Nur [2022] KEHC 2274 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

(CORAM: CHERERE-J)

CRIMINAL CASE NO. 84 OF 2019

BETWEEN

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

AND

PETER NUR....................................ACCUSED

JUDGMENT

1)   PETER NUR is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.  The particulars of the charge are that:

On 16th December 2018 at Gargarsa area in Quilta Korma Location, Marsabit Central Sub-County within Marsabit County jointly with others not before court murdered GEORGE GODANA DARARA.

Background

2)   On 15th December, 2018, clashes arose between two communities within Marsabit County as a result of which two police reservists Doko Galgalo and Lububa Borana were killed.

3)   The chief of Dirigombo Location GEORGE GODANA DARARA aka Chief Bika was one of the countless mourners that went for the burial of Doko Galgalo at Gargarsa area in Quilta Korma Location, Marsabit Central Sub-County within Marsabit County. The said Chief did not leave the burial alive having been killed and his body burnt with fuel drawn from his motor cycle. Following the murder, the 4 Accused persons herein were arrested and charged in High Court Criminal Caee No. 16 of 2019. Accused herein was subsequently arrested 10 months later and charged separately for the reason that the other case had advanced a great deal in his absence.

Prosecution case

4)   PW1 BMtestified that on the material date at about 10. 00 am, she had gone to the burial of Doko Galgalo and when chief George Godana (Chief) arrived riding G.K motor bike he was attacked with stones and other cude weapons and after he was overwhelmed, Accused herein and another drew petrol from the Chief’s motorcycle and used it to set him on fire.

5)   PW2 DR. Imbusi Mark on 16th December, 2018 conducted an autopsy on the body of Chief at Marsabit County Hospital. The body had burns of about 60% surface area of the whole body. The right side of the neck had a deep degloving 10 cm injury, occipital (rear head) was fractured and had a deep degloving, injury with bone exposed, there were multiple deep cuts and fractures on the frontal part of the face and the nose was completely disfigured. He formed the opinion that the deceased died of excessive bleeding, inhalation burns and disfiguring head injuries as shown on the postmortem report PEXH7.

6)   PW3 PC Abdullahi Jillo, a crime scene investigator visited the scene of crime on 16th December, 2018 and took 33 photographs which he tendered as PEXH 2 and the report and certificate as PEXH 3.

7)   PW4 CPL Kennedy Onyango Otienovisited the scene of murder and removed the body of the Chief to the mortuary. Accused persons who were implicated with the murder were subsequently arrested and charged.

DEFENCE CASE

8)   Accused in his sworn statement denied the going to the burial of Doko Galgalo on 16th December, 2018 and stated that he spent the day in the grazing fields where the said Doko was killed. His witnesses Abdul Diba Jattani and Wako Dalachasaid they were with Accused in the grazing fields the whole day.

ANALYSIS AND DETERMINATION

9)   I have considered the evidence on record and submissions on behalf of the Accused.

10) For Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients the death, that Accused persons committed the murder and that they were actuated by malice. (See Anthony Ndegwa Ngari v Republic [2014] eKLR).

(a)  The death of the deceased

11) That GEORGE GODANA DARARA died was confirmed by all the prosecution witnesses and the Accused. Their evidence was corroborated by the evidence of the doctor contained in the postmortem form tendered as PEXH. 1 which reveals that the Chief died of deceased died of excessive bleeding, inhalation burns and disfiguring head injuries.

(b)Proof thataccused committed the unlawful act which caused the death of the deceased

12) Section 203 and 204of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. They require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased through malice aforethought. The sections read as follows:

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

204. Any person who is convicted of murder shall be sentenced to death.”

13) The only evidence implicating accused is that of PW1. The law on identification and particularly on identification by a single witness is well set out in our jurisprudence. The Court of Appeal for Eastern Africa in Abdalla Wendo v Republic [1953] 20 E.A.C.A 166 held on this issue as follows:

“Subject to certain exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification, were difficult. In such circumstances what is needed is other evidence whether it be circumstantial or / direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” I have considered the uncorroborated

14) The evidence on record is that the offence was committed in the presence of a crowd. I have considered the uncorroborated prosecution case vis a vis the corroborated defence case and I find that the defence introduces into the mind of the court a doubt that is reasonable considering that the case of the prosecution against him is not overwhelming.

15) Accordingly, and for the reasons set out hereinabove, I have come to the conclusion that the prosecution case is not so strong against the Accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence that it is possible that he indeed murdered the deceased.

c)Malice aforethought

16) Since the prosecution has failed to prove actus reus’,it would be futile for this court to delve into the issue of malice aforethought.

17) Consequently, I find Accused NOT GUILTY and order that he be set at liberty unless otherwise lawfully held.  It is so ordered.

DELIVERED AT MERU THIS 10th  DAY OF FEBRUARY 2022

WAMAE. T. W. CHERERE

JUDGE

APPEARANCES

Court Assistant                          -  Kinoti

Accused                                      -  Present

For the Accused                         -  Mr. Halake Advocate

For the State                               - Ms. Mwaniki