Republic v Philip Chege Maina [2021] KEHC 7717 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CRIMINAL CASE NO. 16 OF 2017

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

VERSUS

PHILIP CHEGE MAINA.........ACCUSED

RULING

1. The accused is charged with murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars are that on 28th March 2017 at Kamacharia Location within Murang’a County he murdered Milka Muthoni Wanjiru.

3. He pleaded not guilty. The Republic only managed to call two witnesses. The prosecution’s case is built entirely on circumstantial evidence. The question now is whether the evidence raises a prima facie case.

4. PW1 was Elizabeth Wanjiku Wanjiru, an elder sister of the deceased. She knew the accused well as they were all day scholars at St.   Philip   Gikindu   Secondary   School.  On 28th March 2017, she arrived home from school at about 7:00 p.m. She found her brother, Eliud   Kimani (PW2) at home.    The deceased was not there.  After   a few   minutes their grandmother, Elizabeth   Wanjiku, came to inquire about the whereabouts of the deceased. PW1 told   her   that   she had   left   school ahead of her and she did not know   where   she   was. She had last seen her at school at about 11:00 a.m. with   a   fellow   student   called   Rose   Njeri.

5. Their grandmother advised them to look for her. They began the search at the home of Rose   Njeri who told them that they parted   ways   with the deceased when   they   reached Njeri’s home. She said that the   deceased proceeded towards her   home.

6. PW1 used her grandmother’s phone to call a number of their schoolmates including Samuel who in turn said he would call the accused. Samuel called back a   short   while   later to say that the   accused    told   him   that   he had   not   seen   the   deceased   after   they   parted   ways    earlier on.

7. The deceased’s brother (PW2) went out for a further search and returned after two hours. It did not bear fruit. At   about   9:00 p.m., Rose   Njeri, her mother and the   accused   came   to the deceased’s home.    They   said   they   had   come   to   assist in   looking   for   the   deceased. They went out to their shamba to conduct a search while PW2 went to a neighbouring farm. The searches yielded nothing.

8. Njeri’s mother then suggested    that the search be extended to a nearby   stream.    The    five of them (PW1, Mama Njeri, Rose   Njeri,   the   accused   and   PW2) went to the stream armed  with   pangas   and torches. PW2   then   proceeded   alone   into   a   place   which   looked   disturbed.  He   came   back   and   said   nothing. They all moved to   another   spot.  Just   then,   Mama Njeri   and   Rose    Njeri    rushed   back   towards   them.  Mama   Njeri   was   screaming.  PW2 was also screaming.

9. PW1 realized that they had located the body of the deceased in the thicket. She did not go near the body. The village elder and other members of the public came to the scene. Police officers later arrived and took the body to the Kiriaini mortuary.

10. Like I stated, PW2 was Eliud Kimani, a brother of the deceased. His evidence was largely in tandem with that of PW1. He added that the body was discovered at about 10:00 p.m. in a bushy area on   the   accused’s    shamba. The   body was   naked but the deceased still had her shoes. Her clothes   were    neatly folded on her side. She had injuries   on   the mouth and the head   was   swollen. Her tie   was   on   the   neck.    He   formed   the impression   that she   was   raped.  He testified that the body    was   taken by the police   to Kiria-ini   Mission Hospital Mortuary. He attended   the post mortem examination but could not   remember   the   date.

11. That marked the close of the prosecution’s case. Learned counsel for the accused, Ms. Kimani, filed submissions on 15th February 2021. The Republic did not to file any submissions.

12. I am now called to determine whether the evidence discloses a prima facie case sufficient to place the accused on his defence. I have said that only two witnesses took to the stand. And the blame lies at the feet of the prosecution. On 30th October 2017 when PW1 testified, there were two other witnesses in court but Ms. Keya, Learned Prosecution Counsel, sought an adjournment and told the court-

The   other   witness   present   will   be   a   witness   in   a trial    within   the   trial over   the   admissibility of   the   accused’s   confession.  In   the   circumstances I   seek   adjournment.  The investigation officer   is present   but   I   wish   to   call him   at   the   end.    he   told   me   that    the other   witnesses   whom   he   had   bonded   were   not   able   to   attend   court   today.  He   did   not   give   me   any   reasons.  They   are   relatives of   the   deceased.   Other   witnesses   were not   bonded.

13. Although the application was not opposed by the defence, the Court, (Waweru J), warned the prosecution as follows-

Indeed   the prosecution   must   remember   that   the   accused is   a minor   and his trial is   time -  bound   by   law.  See   section   194   and   5th   Schedule of   the   Children   Act.  This   case   is   now    fixed   for   further hearing on   28/11/2017.

14. The matter did not proceed on 28th November 2017 but was placed before Waweru J the following day when it was put off to a further mention. After a series of mentions, it was fixed for hearing on 9th October 2018 when I took over the proceedings and explained to the accused his rights under section 200 of the Criminal Procedure Code.

15. The Prosecution was again not ready for want of witnesses. The application for adjournment was opposed. Ms. Otieno, learned Prosecution Counsel, pleaded for a lastadjournment. I ordered that “purely   in   the   interests   of   justice   and   noting   the   accused is   a  minor”  the  hearing   would be adjourned to 13th December 2018. I also issued witness summons to the following eight remaining witnesses:

i. Eliud   Kimani

ii. Rose   Njeri

iii. Teresa Nyambura

iv. Joseph   Mwangi

v. C.I. Stanley   Mwaura

vi. P.C.   Charles   Muna

vii. C.I.   Hassan   Ado

viii. Dr.   Sachini (Kiriaini   Mission   Hospital)

16. Save for Eliud Kimani (PW2) none of the other witnesses were called. On 9th October 2019, exactly one year later, learned Prosecution Counsel, Mr. Mutinda, sought another adjournment on grounds that the investigating officer was unwell and had not followed up on the earlier summons. The application was opposed. For reasons in a considered ruling I granted the prosecution the last adjournment and I renewed the witness summons to the remaining witnesses.

17. When the trial resumed on 11th February 2020, learned Prosecution Counsel, Mr. Mutinda, sought yet another adjournment on the grounds that he had a new investigating officer; that the Chief Inspector of Police who recorded the accused’s confession had retired from the force; and, that the area chief was unwell.

18. I found little merit and ruled as follows-

On   9/10/2019   and   for   reasons   in   a considered   ruling   the   Republic   was   granted   a   LAST   adjournment.  The   court   also issued   summons    to   the   last   3   witnesses   but   they   have   not   been   availed.  As   indicated   earlier   the   1st witness   testified   way   back on   30/10/2017    and   the last one   on   13/12/2018.  No   sufficient   grounds    have   been    advanced   for   the   fresh   application   for   adjournment   noting   also   that   the   accused   has   been in   custody   since   the   year   2017. Application   is   refused.  Matter   shall   proceed   at   11. 00   a.m.

19. At 11:20 a.m., the prosecution had not procured any more witnesses and closed their case.

20. Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

21. There are three key ingredients that must be present in the offence of murder: first, the prosecution must prove beyond reasonable doubt the death of the deceased and the cause of that death; secondly, that the accused committed the unlawful act that led to the death; and, thirdly, that the accused was of malice aforethought. Malice aforethought is the mens rea or the intention to kill another person.

22. There is absolutely no doubt about the death of the deceased. Although the pathologist did not testify and no postmortem report was produced, the body was clearly identified in the thicket by PW2 and who attended the postmortem examination.

23. From the injuries that PW2 highlighted, I also entertain no doubt that the cause of death was unlawful.

24. However, there was no eye witness to the murder. Like I stated, the entire case for the prosecution is built upon circumstantial evidence. InR v Kipkering arap Koske & another 16 EACA 135 (1949) the court held-

In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt

25. There are some incriminating pieces of evidence: Firstly, the accused was seen with the accused on their way from school. PW1 said that a boy called Samuel told her that the accused and deceased parted ways outside the homestead of the accused and that the deceased proceeded on her journey home. That latter statement is classic hearsay. Although the accused participated in the “search” he seemed to be leading the party to the body.

26. Sadly, Chief Inspector Stanley Mwaura, who recorded a “confession” by the accused never testified. I stated earlier that this critical witness was in court on 30th October 2017 but Ms. Keya, Learned Prosecution Counsel, chose not to put him on the stand that day. I issued summons to all remaining witnesses on at least two other occasions, to be specific on 9th October 2018 and a year later on 9th October 2019. They were not acted upon.

27. In a criminal trial, the standard of proof is beyond any reasonable doubt. In the absence of the “confession” and as things now stand, there is no reliable evidence proving that the accused killed the deceased. Paraphrased, there is no evidence to convictif the accused opts to keep silent.

28. The law on that subject was succinctly captured in Bhatt v Republic [1957] E.A. 332 at 334-

Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one-

‘which on full consideration might possibly be thought sufficient to sustain a conviction.’

This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is-

‘some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.’

A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence.  It is true, as WILSON, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively:  that final determination can only properly be made when the case for the defence has been heard.  It may not be easy to define what is meant by a ‘prima facie case’, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.

29. From my analysis of the evidence produced at the trial and the legal authorities, I am not persuaded that the Republic has proved a prima facie case against the accused sufficient to place him on his defence.

30. Accordingly, under the provisions of section 306 (1) of the Criminal Procedure Code, I enter a finding of not guilty.

31. The accused is hereby acquitted.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 20TH DAY OF APRIL 2021

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of-

Accused.

Mr. Mbue holding brief for Ms. Kimani for the accused.

Mr. Mutinda for the Republic.

Ms. Dorcas Waichuhi & Ms. Susan Waiganjo, Court Assistants.