Republic v Robert Zippor Nzilu Mulinge [2022] KEHC 1760 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(Coram: Odunga, J)

CRIMINAL CASE NO. 14 OF 2018

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

VERSUS

ROBERT ZIPPOR NZILU MULINGE..............ACCUSED

JUDGEMENT

1. The accused, Robert Zippor Nzilu Mulinge, is charged with the offence of murder contrary to section 203 as read section 204 of the Penal Code. It is alleged that on the 23rd day of October 2015 at unknown time at Kithimani-Mwala road within Machakos County, he murdered Jedida Lucy Wambua.

2. From the evidence on record, the deceased was initially married to Fredrick Wambua who testified as PW7. The two had children one of whom was Eric Ilako Wambua, PW3. However, the two seemed to have separated and one time and the deceased and the accused entered into a relationship which seemed to have not been smooth.

3. According to PW3, Eric Ilako Wambua, the deceased’s son, on 23rd October, 2015, the deceased called him and informed him that the accused wanted to go and buy her seedlings in Embu and that the accused had informed her that he would send a motor vehicle to pick her up. It was his evidence that the deceased feared that something wrong might happen to her since they were not in communication with the accused. PW3 warned her not to go and they agreed that PW3 would call her after work. However, when he later called her, he was unable to reach her as her cell phone was off and the position remained the same the following day. On 25th October, 2015 PW3’s grandfather Julius Kitheka Nyaa who testified as PW2 called him inquiring about the whereabouts of the deceased and upon being told that PW3 was unable to reach her, PW2 informed him that he had talked with the deceased who sent him the number of the motor vehicle that took her away. They then reported the matter to the police.

4. Later on 26th October, 2015, his aunt, Gloria Mwanzia, received a call from one Mwende Musya that a body had been found burnt at Yatta. When they went to Nairobi City mortuary, they found the burnt body of the deceased which had cut wounds on the back and the head.

5. It was his evidence that he lived with the accused when he was in primary school as his stepfather.

6. According to PW2, Julius Kivela Nyaa, the deceased’s uncle, on 23rd October, 2015, he was called by the deceased at 4. 00pm who informed him that the accused wanted her to go and buy her seedlings in Embu. Though he advised her not to go, as they were not in good terms, the deceased assured him that she would send him a text message of the registration number of the motor vehicle they were to use in the event that the accused forced her to go with him. The deceased sent the registration number as KBX 733W. However, on 25th October, 2015 when his attempts to reach the deceased via phone were futile, he called PW3 who similarly told him that he was unable to reach the deceased. On 26th October, 2015, PW3 called him and informed him that a body had been found at City mortuary and he advised PW3 to go and check. Later, PW3 called him and informed him that the body was at the mortuary.

7. According to PW2, the deceased was married to PW7 but they separated and she remarried the accused. However, the duo disagreed. While the deceased had three (3) children with PW7, she had none with the accused.

8. PW4, Florine Syombua Mwanza, the deceased’s sister in law testified that on 23rd October, 2015 at 3. 40pm, she received a call from the deceased who informed her that the accused had informed her that they go to Embu to buy seedlings. However, PW4’s cellphone went off and when she got another cellphone and rang back the deceased, they were unable to communicate. After that she was unable to get the deceased on phone. According to the witness, the deceased remarried the accused after she separated with PW7 with whom they sired children.

9. The following day, PW3 called her and informed her that the deceased had not returned and they decided to report the matter to the police who told them to wait until Monday when they returned to the police station She latter received a call from one Musya who told her that a lady had been burnt and killed at Kathumani. When they went to City mortuary, they found the burnt body of the deceased which had a cut wound on the head on the side and parietal region.

10. PW1, Rodgers Ndulu Ndula, a taxi driver, testified that on 23rd October, 2015 he was on duty when at about 4pm, the accused whom he had known a prison officer in Machakos while he was serving a sentence for a traffic offence, rung to go to Machakos G.K. Machakos prison camp and take him to Kitui. According to PW1, he was operating motor vehicle reg. no. KBA 733W Toyota Corolla Station Wagon gold in colour belonging to his father. That the vehicle belonged to his father was confirmed by PW10, Sgt John Nduva.

11. Though PW1 wanted to be paid Kshs 10,000/= they agreed on Kshs 8,000/- which the accused paid him. Upon their arrival at Kitui at 6pm, the accused told him to park the vehicle opposite a certain bar and called his wife on phone. PW1 entered the bar and left the accused talking to his wife. After twenty minutes, the accused called him and when he went to the vehicle, he found the accused’s wife, whom he did not know prior to that day with another person. The accused then told him to return to the bar and he would call him later. When he was called back, the accused asked him whether he knew Embu town and he denied knowing the place but the accused insisted that it was not far and offered to add him Kshs. 10,000/=. The three (3) of them then boarded the motor vehicle at 6. 30pm.

12. Upon reaching the junction of Kanyonyo Road the accused suggested to PW1 that they should go to Matuu to fuel the car. At Matuu the four (4) of entered a hotel where PW1 and the other two men asked for tea while the accused’s wife asked for chips and chicken.  After a short while the accused called PW1 outside and informed him that there was something he was going to do but declined to disclose what it was. They then returned to the hotel and after they finished taking what they were taking PW1, the accused and his wife entered the motor vehicle. However, the accused told him that since it was late, they should return back to Machakos and sleep at the camp.

13. On their way upon reaching Mwala junction, they found a man standing and the accused told PW1 to stop and the said man, man who carried a jerrican in a green paper, entered the motor vehicle and they continued with the journey. After driving for three (3) kilometres, the accused told him to open the motor vehicle and check the bonnet as he suspected that the motor vehicle was overheating. When PW1 went to open the bonnet, the accused and the deceased then went to the back of the vehicle, a private car, and he heard the lady screaming and when he checked he saw the accused hitting the wife with an axe. According to him, the motor vehicle lights were on. The other man opened the jerrican and spilled the contents which PW1 stated had the smell of petrol, on the lady. The accused then set the wife ablaze after which both PW1 and the accused boarded the vehicle and drove off while the other man ran away. Along the way, the accused threw the axe away. Upon their arrival in Machakos G.K. Prison, he dropped the accused and went home. According to him, the accused only paid him a deposit of Kshs 1,000/- in respect of the second leg of the journey and did not pay him the balance. Since the accused’s shirt was blood stained, he asked PW1 to give him his shirt in order to be allowed into the camp.

14. After one month while at home police officers went to interrogate him and he recorded a statement. Prior to this, the accused would visit him where he was operating the taxi to ensure that he did not divulge the information to the any person until he told him to nolonger visit him.  That same week the accused sent him a text message telling him not to laugh at the deceased. PW1 was later arrested by the police and was locked in police cell for one week before being released after he had recorded his statement. Though he could not racall the accused’s telephone number, it was his evidence that the accused had two cell phones. He stated that while on their way to Kitui, they would pick and drop passengers though he could not identify the persons that he carried that date.

15. According to the witness on the fateful day he was drunk. In cross-examination, the witness denied that he had gone to the bonnet to pick the axe and that it was at 8. 30 pm when they reached the place of the incident. He further denied that he was arrested because he carried the body of the deceased in the vehicle and was to drop it where it was found. He however, did not report the incident to any police due to the threats by the accused.

16. PW5, Joseph Musembi Nyeki, was, on 23rd October, 2015 at 9pm, in his home. According to him, his house and gate were about 250 meters and about 200 meters from his gate respectively, when he saw fire on the road and he decided to go and check and it took him 7-10 minutes to reach there. By the time he reached there, found that the fire had gone off and vehicles were passing. With the help of headlights, he saw a body lying on its back. He was able to see the head, the hands and the legs though he did not go near it. He then returned to his house and called the headman, Thomas Muthengi, and informed him about what he had seen. When he returned to the scene, he found the said headman with police officers and by then people had started gathering. It was then that he saw the breasts of the body and realised that it was a lady. There was a cut on the left side of the head and was naked with the breasts protruding. There was an injury on the left side of the head. As a result of the burns the face could not be recognised. The body was about 3 meters from the road connecting Garissa road and Kithimani. According to him, on his side of the road there were no houses nearby but the other side of the road were houses though not near. It was his evidence that from his house one could not hear someone wailing though it would depend on how loud the wailing was. He however, never heard any wailing.

17. On 23rd October, 2015 at 9pm, PW5,Joseph Mutuku Munyoki, the village elder was at a church function when he received a telephone call from his neighbour, PW9 who notified him that a person had been killed and was near the road. He excused himself from the function and proceeded to the scene where he found the burnt body of a woman alongside the road. Using his cellphone torch, he observed that the body had an injury near the ear and there was blood coming out of the ears. The clothes the person had worn were burnt and stuck on the body.

18. The witness called Francis Mutiso, the Assistant Chief who relayed the information to the police at Kithimani and told him to wait for the police. After a while police officers went to the scene and removed the body.

19. According to PW6,PC Abdalla Kongani, who was then based at Yatta police station, on the 23rd October, 2015 he received a call from PW6 who informed him that there was a body of a female adult beside the Kithimani- Mwala -Machakos Road. In the company of his colleagues the witness proceeded to the scene and upon his arrival, they found a completely burnt body of a female adult lying on her back with a deep cut on the left side near the ear. There were members of public but none of them identified the deceased as she was not from the village. They removed the body to Nairobi City Mortuary which was on 26th October, 2015 identified by PW3 and PW8 who introduced themselves as the son and husband of the deceased respectively. In his view, he was notified of the incident since he since he was the crime standby officer but denied that he was was connected to the offence and he did not know the deceased.

20. On 29th February, 2016, PW13, IP Nicholas Mulei, a scene of crime officer attached to DCI Kitui, received exposed film from IP Omar of DCI Kitui requesting that he processes the same and prepare for photographic prints. He did so and prepared 14 prints which he exhibited.

21. IP George Aringo, PW14, attached to Cybercrime Forensic Unit, CID headquarters, testified that he knew one James Kyalo who was working with him but left when he got a job in Singapore. He accordingly testified on behalf of his colleague under section 43 of the Evidence Act. According to the report it was required to retrieve SMS messages from exhibit marked B- Nokia 1110 between 22-11-2015 to 24-11-2015 and to retrieve voice messages for exhibit an Infinix x 551 and any other relevant message. From the report there was a message from Faith dated 25th November, 2015 at 7. 04. 56 in the morning. The typed in outgoing the message was “Name Mulinge. Tel No. 0735469592” but did not show to whom it was sent. The other highlighted message was outgoing message from +254708193844 at 19. 45 hours, saved as Faith on 25-11-2015 stating “KBX 733W”.

22. He added that two mobile phones marked “A” (Infinix) and B (Nokia) were received. With an exhibit memo on 20-11-2015 with instructions to retrieve SMS messages from the Nokia between 20-10-2015 to 24-10-2015 and to retrieve voice message communicated between 23-10-2015 and 24-10-2015 for Exhibit A (Infinix) and to retrieve any other message received by both phones.

23. According to him, there were no instruction to establish the ownership of the phones which could be confirmed Safaricom. From the memo it was not indicated whether there were simcards. The source of the information was however, from the phone memory because capacity of simcard is limited.

24. PW15, Barnabas Mantala Omollo,a Liaison Officer in Law Enforcement Security Department Risk Division of Safaricom testified that on 9th November, 2015 he received a request letter from the Criminal Investigation Department, Kitui to pull subscriber details if registered, the incoming and outgoing call data records from 11-10-2015 to 9-11-2015 and the IMEI and DNDN history. On 8th October, 2016 he received another letter from DCI Kitui with instructions to give subscriber details if registered, the incoming and outgoing call data records from 10-10-2015 to 18-11-2015 and IMEI and MSIDN history for 0790899297, 0716753237 and 0701697429 and IMEI 355230065196790.

25. From his analysis of the date, he confirmed that there was communication between 0710898623 registered under Jedidah Mulinge of ID N. 11519200 on 23-10-2015 at 0249 hours, incoming SMS from MSIDN 0712494419. The owner of the other number that sent the SMS was not requested for but he could have known it.

26. On 24-10-2015 at 1653 hours there were two calls from 0716753237 to 0729655929 registered under Robert Mulinge ID No. 34738080 who was at Vulueni. On the same date 24-10-2015 at 1119 hours there was communication between 0729655929 and 0716753237 at Vulueni. On 23-10-2015 at 1727 hours at Central Primary School Kitui there was outgoing call from 0729655929 Robert Mulinge to 0716753237. The owner of 0716514718 is registered under Kitheka Nyaa. The first related Jedidah Mulinge, the second related to Robert Mulinge and the third related to Kitheka Nyaa.

27. According to him, No. 0729655929 communicated five times on 23-10-2015 at 1730 (ongoing call) to 0716753237 the same date (1729) Mr. Mulinge also called the number. At 1727 same date when at Central Primary School he called the number at 1725 same day he called the same number while at Kitui Kilundu area. Same date at 1512 Mulinge called 0716753237 at Machakos Mwalimu. At 1512 he called again.

28. On that date 23-10-2015 there was SMS at 1720 and at 1551. There was also a call at 1119 hours made at Vulueni. According to the witness the site has wide area around Central Primary School and the booster call covers up to 500 meters. He confirmed that from the call record from Mulinge there was a roaming number 0722500615 which was not registered to anyone and that the last communication was from Robert Mulinge was on 26-10-2015.

29. The post mortem examination of the deceased’s body was performed by Dr. Peter Muriuki Ndegwaon 30-10-2015 at City Mortuary whose body was identified by PW7, Fredrick Wambua Musee, the deceased’s husband and PW8, Francis Musee Nthengi, cousin to deceased. It was conducted in the presence of PC Mwanza of Yatta police station.

30. According to the witness, the body was of female African adult of 45 years with charred remaining clothes but of good nutritional status well-built and tall. The body had 100% superficial burns with deep cut wounds on left anterior hairline measuring 9 cm long, 2 cm wide on the left nape; 9cm x 3xm on the left side of neck; deep cut wound 6x2 cm. Internally there was no soot in the airway. On the head was fragmented fracture of occipital skull, deep depressed fracture on left occipital, brain laceration displacement and spillage of the brain. It was his opinion the cause of death was severe cranial cerebra injuries due to sharp fracture trauma. According to him, the 100% burn was on the whole body though the burns were superficial not below epidermis. The wounds were however deep cut wounds from sharp weapon. It was his opinion that the fire came after the death.

31. According to the investigations officer, PW11CIP Julius Omari,on 5-11-2015 he was instructed by the DCIO to go and take over the case of murder reported at Yatta within Machakos in which the deceased had been reported missing at Kitui police station. He went to Yatta, where he met the OCS who took him to the scene where the body was found and later handed over to him the statements. According to him, the scene was on the roadside along Kithimani- Machakos Road, 7 kms from Kithimani. There, he saw some burnt grass but there was no body. When facing town on the right there was homestead about 300-400 meters but was visible. On the left there was a structure like a church. Upon his return to Kitui, he recorded more statements from the deceased’s son, the uncle, a sister-in-law He confirmed from the phone of the uncle that there was a message and the number of the vehicle which was KBX 733W. He prepared a memo and took the uncle’s phone to CID headquarters to extract the message and prepared another memo requesting Safaricom to provide him with data of the phone. The report showed the phone of deceased and accused were together at Kitui, Kangundo all the way to Kithimani. Another data from the phone of the accused indicated the phone of accused and the deceased were at one time together and that there was communication between him and the deceased. He also got report from the phone of the son of deceased (PW3) indicating communication with the mother and another for Flavian the sister-in-law who communicated with the deceased the day she went missing. Through the registration number of the said vehicle he was able to trace the person who was driving the vehicle whom they arrested and took to Kitui.

32. Upon interviewing the said driver, Rodgers Nduva, PW1 he disclosed that he was hired by a person known to him from Machakos to Kitui. At Kitui they picked a lady and was told to drive to Embu. In the way near Kangundo the person who hired him told him they go to Machakos and stay there till the following day. Near Kithimani he recalled the person carrying a jerrican with some contents. They went past Yatta and on the way, the person who had hired him told him to stop and he stopped and went to open the bonnet while checking the said person pulled the lady outside cut her several times, poured the substance on her and set the body on fire. He drove the accused to the Machakos prison where the accused was an officer after which he went home parked the vehicle and never told anybody.

33. Before then he had received a post-mortem report and at Machakos G.K. Prison the accused was identified by PW1. He arrested him and took him to Kitui after which he completed compiling his file and took it to ODPP who advised him to charge the accused with murder.

34. According to the witness, from the reports, the Safaricom number of accused was 079655929 and the phone was at deceased’s place on 23-10-2015 at Central Primary School Kitui, the same day it was at Kangundo. He however did not recover the weapon. From his investigations, there was no evidence that the accused was on duty on the day of the incident.

35. Upon being placed on his defence, the accused, Robbert Zippor Mulinge, in his sworn testimony stated that the deceased was his girlfriend from the year 2000 to 2015 and that they had no children though the deceased had three children. On 23rd October, 2015, he was at his place of work, Machakos Main Prison, Staff Quarters with his son, Ochestro Wambua, who testified as DW3.   That day he was supposed to be on duty at 7pm where he was working in the search party section. Their duty was to search the prisoners from outside and the inmates to ensure there were no illegal objects from outside entering the prison. It was his evidence that they were working in shifts and his shift was from 1pm to 7pm being shift number 6. He produced the duty roster showing that he entered at 1pm on 23rd October, 2015.

36. According to the accused, he knew PW1 when the latter was in jail for a traffic offence where he found him several times with forbidden items late. He saw PW1 in Court charged with the same offence and he did not know the circumstances under which PW1 was released and turned into a witness. According to him, there was another person who was arrested and was released without being charged.

37. On 23rd October, 2015, he stated, he had a visit from his cousin, Everline Munyira Mutia who was sent by his mother for money for honey from Kitui. Since it was 12. 45pm he gave her Kshs 5000/- as well as some seeds to take to the deceased for planting. He also gave her the deceased’s telephone number. Because the said cousin told him that her phone was not in a good working condition, he gave her his phone a Nokia 1110 and left her in the house with his said son and went to work.

38. Upon his return home at 7. 05pm he found his son and at about 8pm his said cousin arrived and informed him that she found the deceased and handed over the seeds to her and the deceased appreciated. That night he spent the night with his said son and cousin.

39. It was his evidence that when he met the deceased, the deceased had a son and one daughter who were still young. However, when the deceased’s uncle, PW2, discovered the relationship, he started visiting the deceased at his place of work at G.K Kitui demanding dowry but the accused told him that they were not married as he had his own family. PW2 got annoyed and as a result they were in bad terms. After PW3 complete his Form 4 he told the accused to take him to driving school but the accused told him he had no money to do so after which PW3 went to report to PW2 that the accused had declined to give him his father’s properties. PW3 then demanded that he stops the relationship with the deceased if the accused could not assist him and threatened both the accused and the deceased. PW3, according to him told him that he had friends, one of whom was a taxi driver whom the accused had mistreated when in jail and he would do something very bad to the accused if he insisted on continuing with the relationship.

40. After his arrest, he was taken to a bush at Kwa Vonza where he was assaulted on the allegations of having killed the deceased. He was then taken to Kitui Police Station where he was directed to sign some papers and he declined to dos o after which he was threatened with death. He insisted that he was not involved in the death of the deceased.

41. Everline Munyiva Mutie, DW2 testified that she was the accused’s cousin. On 23rd October, 2015 she was sent by her aunt, Mary Nduthe Mulinge to the accused, her son, to go and collect for her Kshs 5000/- to go and buy for her honey in Kitui. She did so and arrived in Machakos the following day at 12. 45pm and found the accused in is house taking lunch with his son, Festo Wambua. After she relayed the information to the accused, the accused told her that he was looking for someone to send to Kitui and gave her money and two packets of maize seed and the telephone number for the deceased. As her phone had problems, the accused told her to take his phone since they were not allowed to use it in prison and the accused left for work. After taking lunch, she left at about 3pm and arrived in Kitui at about 5pm. While on the way, she contacted the deceased and they agreed on where to meet. They met at Kitui Central Primary School where she gave the deceased the bag entered the market to buy the honey and re-entered the same vehicle and returned to Machakos arriving at 8pm. When she arrived, she found the accused in his house preparing supper, returned to him his phone which had gone off by then and spent the night there with the accused and his son.

42. According to her, her phone number was 0700118891 while that of the accused was 07599819956.

43. DW3, Ochestro Wambua Mulinge, the accused’s son testified that on 23rd October, 2015 he was staying with his father at Machakos Prison helping him in domestic chores. That day at about 12. 45pm the accused’s cousin, DW2, visited them and informed them that she had been sent by DW3’s grandmother for honey for honey. The accused then told DW3 that he would send her to one Jedidah to take to her seeds after which the accused went to work. DW3 also left at 3pm and returned later at 8pm with the honey while the accused was in the house having returned from work. That night they all spent the night in the same house.

44. At the close of the case, it was submitted on behalf of the prosecution that the main ingredients of the offence of murder are the death of the deceased and the cause of the death, the accused person committed the unlawful act which caused the death of the deceased persons and the accused had malice aforethought.

45. In this case it was submitted that the death of the deceased and the cause of the death was proved by the evidence of pathologist (Pw8) who conducted post-mortem on 29th October 2015 after the body of the deceased was identified by Erick Ilako Wambua (PW3) and Florian Syombai Mwanzia (PW4) at city mortuary and then post-mortem was conducted.

46. The prosecution relied on section 203 of the Penal Code and submitted that once the prosecution proves one or a combination of the ingredients therein, malice aforethought will be deemed to have established as seen in Republic vs. Daniel Anyango Omoyo [2015] eKLR.

47.  In this case it was submitted that the second evidence was proved by the evidence of PW1 and that the accused attacked the deceased with an axe and the injuries sustained were only made to inflict grievous harm, which he did thus resulting to the deceased’s death. The accused had unlawful intention when he armed himself with an axe, he acted on that intention with malice aforethought by cutting the deceased at the back of her head thus establishing the ingredient of malice.

48. It was submitted that a critical evaluation of the evidence on record it places the accused person at the scene of crime. He was well known and recognized by PW1; therefore, the issue of recognition is not in dispute. As to who caused the death of the deceased the eyewitness confirm that it is the accused who assault the deceased.

49. The prosecution relied on the doctrine of “last seen with deceased” and direct evidence and submitted that the accused person was last seen with the deceased when he was alive, therefore the burden of prove shifts to the accused person. This submission was based on the case of Rex v Kipkerring and it was submitted that in his defence, the accused person did not give an explanation or even adequate evidence to dispute that he was the last person to be seen with deceased alive. To the prosecution, the evidence adduced by the accused and his witnesses is an afterthought which cannot shake the prosecution cogent evidence before this court, as he raised the defense of an alibi and failed to dispel the doctrine of last seen. He told the court that he was at Machakos prisons on duty at the fateful day. He alleged that that he gave his mobile phone to his sister as her phone had a problem. His sister took his mobile phone to Kitui and used it to call the deceased. Bearing in mind the defense of the accused and being alive to the principle that the law places no burden on him to prove his innocence, the prosecution invited the court to make a finding that his defense raises more questions than answers. To the prosecution, if a person is accused of anything and his defense is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until years afterwards there is naturally a doubt as to whether he has not been preparing it in the interval. Secondly, if he brings it forward in the earliest possible moment it will give the prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped. The accused in this case, it was submitted, raised his defense of an alibi six years after the offence was committed, and reliance was placed on Festo Andora Asenua vs. Uganda, Cr App. No. 1 of 1998.

50. It was submitted that after the close of the defense case the prosecution did not call for the evidence to disprove the alibi raised by the accused since there was an eye witness who saw the accused person assault the deceased. In view of the foregoing, the court was invited to make a finding that the accused’s defense was an afterthought aimed at deceiving the court to defeat the course of justice. The accused person having realize his predicament that his dhow was sinking had to try and find anything to cling onto to avoid drowning. Such a manoeuvre, it was submitted, cannot be allowed to contaminate the pure waters of justice or divert its cause. The Court was therefore invited to make a finding that the defense raised by the accused person cannot displace the evidence adduced by the prosecution.

51. In the prosecution’s submission, the accused person was determined to assault the deceased and injure her. He set upon the deceased person who was helpless and overpowered her. Such action in the mind of the accused person was clearly have an outcome of grievous harm or death of the victim. Indeed, this is what exactly happened. The deceased was fatally wounded during the assault. The accused person had unlawful intention, acted on his intention with malice aforethought thus ingredient for murder has been proved beyond reasonable doubt.

52. It was submitted that the evidence adduced is sufficient to prove beyond reasonable doubt that the death of the deceased, which death was caused by unlawful act of and these circumstances point irresistibly towards the accused person to the exclusion of any other person as to the person who caused her death.

53. In light of the fore going, it was submitted that the prosecution had discharged its burden of proving their case beyond reasonable doubt against the accused person and the court was urged to find the accused person guilty of the offence of murder and proceed to sentence him accordingly.

54. On behalf of the accused, it was submitted that based on the evidence adduced by the defence supported by the records from the prison, removed the accused from the scene of crime and put into disarray the doctrine of last seen. It was submitted that PW1 was not a credible witness since he had several run ins with the accused and had reason to get back at the accused. It was noted that PW1 was a convict during the time he came to know the accused; was arrested and discharged under unclear circumstances; and though he had all the time to report the incident he never did so as a good citizen.

55. It was submitted that the fact that the accused had issues with his former wife cannot be used to infer that he was the one who caused the death of the deceased since PW1, PW2 and PW3 never gave any evidence that affirmed that the accused travelled to Kitui. It was noted that during the time the accused was allegedly communicating with the deceased his phone was in possession of DW2 and the text message was never produced as an exhibit.

56. To the defence, suspicion however strong cannot be a basis for inferring guilt which must be proved beyond reasonable doubt. It was submitted that an accused person assumes no burden of proving an alibi and that the accused’s defence that he was at his workstation remained unchallenged. It was noted that there was no evidence that the accused hired the motor vehicle in question; that he travelled to Kitui on the material day and tat to the contrary there was evidence that he was on duty the whole day and no murder weapon or any incriminating evidence such as blood stained clothes, axe was found on the accused.

57. Based on the principles laid down in Sawe vs. Republic (2003) KLR 364, it was submitted that the evidence on record failed to prove that the accused was guilty beyond reasonable doubt.

Determination

58. I have considered the evidence presented before this court.

59. The prosecution’s case in summary is that on 23rd October, 2015, the deceased received a call from the accused telling her that the accused wanted to take her to Embu to buy some seedlings and that the accused was sending a vehicle to pick her up. This information the deceased relayed to PW2, PW3 and PW4. Both PW2 and PW3 warned her against travelling but the deceased assure them that she would send them the information regarding the vehicle that was picking her up. After she texted PW2 the particulars of the vehicle her phone went silent and no one was able to reach her. In the meantime, the accused had hired the services of PW1, a taxi driver and an ex- traffic case convict to ferry him to Kitui. Upon their arrival, they picked the deceased and the accused requested PW1 to take them to Embu. On the way, the accused changed his mind and instead told PW1 to return them to Machakos due to the fact that it was late. On the way, the accused stopped him and another person boarded the vehicle with a jerican of petrol like substance. After 3 kilometres, the accused told PW1 to stop alleging that the vehicle was overheating and when PW1 went to the bonnet to check what was happening he saw the accused cut the deceased with an axe after which the other person poured the said substance on the deceased and the accused set the deceased a blaze. After that the other person ran away while the accused and PW1 returned to Machakos. Due to the warnings issued by the accused to PW1, PW1 never reported the incident.

60. In the meantime, PW9 whose home was next to the road saw the fire and proceeded to the scene where he discovered that a body had been set ablaze. He relayed the information to PW5, the village elder who alerted the police who rushed to the scene and removed the body of the deceased to the mortuary. A post mortem examination was conducted and it was found that death was due to the assault and not to the burns.

61. An examination of the phone data revealed that there was communication between the deceased’s phone and the accused’s phone which was traced to Kitui that day. This however, was explained by the accused and DW2 as being due to the fact that the accused’s phone was given to DW2 to use in contacting the deceased so as to deliver to the decased the seedlings that the accused had bought for her. To the accused there existed bad blood between him and PW1, PW2 and PW3 and that on the material day, he was at work and never left Machakos for Kitui.

62. Section 203 of the Penal Code under which the accused is charged provides that:-

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

63. Arising from the foregoing the ingredients of murder were explained in the case of Roba Galma Wario vs. Republic [2015] eKLRwhere the court held that:

“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”

64. In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR the elements of the offence of murder were listed by M. Odero, Jas follows:-

1) The fact of the death of the deceased.

2) The cause of such death.

3)  Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly

4) Proof that said unlawful act or omission was committed with malice aforethought.

65. In this case, there was no doubt as to the fact of death of the deceased. There was ample evidence from PW12 that he examined the body of the deceased which was identified by both PW7, the husband and PW8, the cousin. Similarly, PW3 and PW4 identified the same body.

66. As regards the cause of death, the post mortem report showed that the deceased’s body had 100% superficial burns with deep cut wounds on left anterior hairline measuring 9 cm long, 2 cm wide on the left nape; 9cm x 3xm on the left side of neck; deep cut wound 6x2 cm. Internally there was no soot in the airway. On the head was fragmented fracture of occipital skull, deep depressed fracture on left occipital, brain laceration displacement and spillage of the brain. It was the opinion of PW12 that the cause of death was severe cranial cerebra injuries due to sharp fracture trauma and not the burns which occurred after the death.

67.  As to whether the deceased met his death as a result of an unlawful act or omission, from the evidence of PW12, it is clear that the deceased’s death was as a result of external force giving rise to a fracture of the skull caused by a sharp object. Therefore, there was no doubt that the deceased’s death was as result of an unlawful act.

68. The next question is whether that unlawful act was caused by the accused.  That on the said day there was communication between the accused’s phone and that of the deceased is not in doubt since the accused admitted that he gave his phone to his cousin, DW2 who used to communicate with the deceased when she arrived in Kitui. Therefore, there is no doubt that at one point the accused’s phone was in Kitui. According to PW2, the deceased had sent to him the particulars of the registration number of the vehicle that picked her up and that the same vehicle was the one that was being operated by PW1.

69. Taken in isolation, it is clear that the evidence of PW2, PW3 and PW4 would not be sufficient to find the accused guilty of the murder of the deceased. This must be because none of the said witnesses could link the murder of the deceased to the accused save for what the deceased told them.

70. That leads us to the evidence of PW1. PW1 was admittedly a convict at Machakos GK Prison where the accused was stationed. According to the accused, during the said period, the witness was involved in some unlawful activities as a result of which there developed bad blood between the two since the accused was the in search party section. From the evidence of the accused, there was a connection between PW1 and PW2 since PW2, as a result of bad blood between the two warned the accused that he knew a taxi friend who the accused had mistreated and would collude to hit back at the accused. According to the accused, he was also not in good terms with PW3.

71. Looked at superficially one would be forgiven for taking a position that the accused’s version posed some difficulties in terms of acceptance. If the manner in which PW1 conducted himself would have been the usual course expected of human behaviour his evidence would have carried more weight. However, PW1 despite such heinous crime being committed in his site dropped the accused at his place of work, went home and carried on with his usual business unperturbed. It was only after he was arrested that he divulged the information to the police. If his evidence is to be believed, he was not only a witness to the crime but assisted the accused in almost getting away with it by not reporting the same to the police as soon as he was in a position to do so. Apart from keeping silent, PW1 admittedly lent the accused his shirt to put on because the accused’s shirt was allegedly blood stained.

72. In David Gicharu & Another vs. Republic Kisumu High Court Criminal Appeal Nos 165 and 179 of 1985,R.S.C. Omolo, J(as he then was) was of the view that a person who assists the offender, for example, to escape punishment with the knowledge that the offence has been committed, can be an accessory to the offence. In of Antony Kinyanjui Kiamani –vs- Republic (2011) KLR (Criminal Appeal 15/2007) wherein the court of Appeal stated inter alia:

“What legally constitutes an accomplice is not defined in our statutes but section 20 of the Penal Code makes every person who counsels or procures or aids or abets the commission of an offence, a principal offender. Section 396 of the Penal Code also defines an accessory after the fact but it does not cover a person who merely fails to report a crime. In the case of Watete v Uganda [2000] 2 EA 559, the supreme court held that “in a criminal trial a witness is said to be an accomplice if, inter alia, he participated as a principal or an accessory in the commission of the offence, the subject of the trial”, The same definition was restated by the same court in the case of Nasolo v Uganda [2003] 1 EA 181 where the court further stated:

‘On the authorities, there appears to be no one accepted formal definition of “accomplice”. Only examples of who may be an accomplice are given. Whether a witness is an accomplice is, therefore, to be deduced from the facts of each case. In Davies of Director of Public Prosecutions (supra), the House of Lords said at 513:’

‘On the cases it would appear that the following persons, if called as witnesses for the prosecution have been treated as failing within the category: (i) on any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons, committing, procuring or aiding and abetting (in case of misdemeanors).’ ”

73. In the instant case the conduct of PW1 was not the conduct expected of a blameless person. He knew the accused while he was serving a jail term albeit for a traffic offence. While, according to him, he may not have been aware of the accused’s intentions when they embarked on the journey to Kitui, the accused had hinted to him while they had made a stopover at Matuu for refreshment that the accused might have been up to no good when the accused told him that there was something he was going to do. At the scene, the evidence of PW1 was that the incident took a very short period of time. However, from the evidence of PW12 the pathologist, the deceased was already dead by the time her body was doused and set a blaze. By the time PW9 arrived at the scene the fire had already died. From the evidence on record it is clear that the incident could not have taken such a short period of time as PW1 would like the Court to believe.

74. In this case the evidence on which the prosecution hangs its case is rather shaky taking the account the manner in which the said witness, PW1, conducted himself after the incident.  As was stated in Ndung’u Kimanyi vs. Republic [1979] KLR 282:

“A witness in Criminal Case upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence”.

See also Alicandioci Mwangi Wainaina vs. Republic Criminal Appeal No. 628 of 2004 and David Kariuki Wachira vs. Republic [2006] eKLR.ncwith ey but declined to disclose what it was.

75. The reasons why courts are reluctant to rely on the sole evidence of the said witnesses was explained in the case of Karanja & Another vs. Republic, Criminal Appeal No. 92 of 1990 as follows:

“a) H/she is likely to swear falsely in order to shift the guilt from self;

b) As a participant in the crime, he is an immoral person who is likely to disregard the sanctity of the oath;

c) S/ he gives evidence either under a promise of a pardon of in expectation of an implied promise of pardon and is therefore liable to favour the prosecution."

76. In this case the accused defence was that of alibi defence. In the case of Patrick Muriuki Kinyua & Another vs. Republic Nyeri Criminal Appeal No. 11 of 2013 (UR) the Court held that:

“an alibi is a plea by an accused person that he was not there (was not present) at the place where the crime was committed at the time of the alleged commission of the offence for which he is charged.”

77. He called witness who supported his defence. It is trite in such circumstances that the onus is on the prosecution to displace the defence of alibi after the defence raises it at the trial since as was held by the Court of Appeal in Victor Mwendwa Mulinge vs. Republic [2014] eKLR:

“It is trite law that the burden of proving falsity, if at all, of an accused’s defence of alibi lies on the prosecution.”

78. The Court of Appeal in the case of Wangombe vs. Republic [1980] KLR 149 held inter alia as follows:

““…in Ssentale vs. Uganda [1968] EA 365, 368 [Sir Udo Udoma CJ]…said that a prisoner who puts forwards an alibi as an answer to a charge does not thereby assume any burden of proving that answer; it is a misdirection to refer to any burden as resting on the prisoner in such a case; for the burden of proving his guilt remains throughout on the prosecution. We agree, we have ourselves said so on more than one occasion…The defence of alibi was put forward for the first time some four months after the robbery when the appellant made his unsworn statement in court. Even in such circumstances the prosecution or the police ought to check and test the alibi wherever possible.”

79. In my view there is no particular formula for raising the defence as long as the prosecution and the investigators are put on notice that the defence is likely to be raised so that they can investigate the matter further. It is true that the defence ought to be raised at the earliest opportinity by the defence and as was held in Victor Mwendwa Mulinge v Republic [2014] eKLR where the Court of Appeal opined as follows:

“In KARANJA v REPUBLIC (Supra), this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought. In this case, we do not know whether the appellant in his statement to the police had stated that on the material day and time he was in a college class. This is an issue that ought to have been dealt with by the trial court but that court failed to discharge that duty. But even assuming that the appellant raised the defence of alibi for the first time while in court, as rightly submitted by Mr. Oguk, pursuant to the provisions of Section 309 of the Criminal Procedure Code the prosecution could have sought leave to adduce further evidence in reply to rebut the appellant’s defence.

80. What then is the option available to the prosecution where, as was in this case, the defence calls witnesses in support of his alibi defence? Section 309 of the Criminal Procedure Code states as follows:

If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.

81. In the case of Adedeji vs. The State [1971] 1 All N.L.R 75 it was held that:

“failure by the police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed.”

82. In this case, the accused not only called two witnesses, one of whose testimony was to the effect that the accused’s phone was in her possession at the time the phone was traced to Kitui and that she was indeed in Kitui and communicated with the deceased. The evidence provided by the phone service provider was only to the effect that the accused’s phone did communicate with the deceased’s phone. It could not confirm what the communication was all about.

83. Secondly, the accused produced the evidence from the Prison that he was on duty at the time it was alleged that he was in Kitui and at the scene of crime. In fact, the investigations officer, PW11, was unable to confirm whether or not the accused was on duty. The evidence by the accused was not rebutted. If the record produced by the accused was fabricated, one would have expected the prosecution to call for the authentic records in order to show that the accused’s evidence was incorrect. With that kind of evidence the accused would have been portrayed as a person of unbelievable character and the Court would have properly taken his conduct into account as was appreciated in Opo vs. The Republic [1980] KLR 137, where Law, Miller and Potter, JJA held that:

“At the trial, and before this court, the appellant’s defence was an alibi: he was at Kibarani, some distance away. We have come to the same conclusion as the judge; his alibi was false. The appellant was with the complainant on the material afternoon and had the opportunity to commit the offence; he has consistently lied in maintaining otherwise; and we think that these falsehoods give the proved opportunity a complexion such as to amount in the circumstances of this case to corroboration; see R vs. Erunasani Sekono s/o Eria (1947) 14 EACA 74, 76. ”

84. Similarly, in in the court of appeal case of Ernest Abanga Alias Onyango vs. Republic CA No.32 of 1990.

“In RAFAERI MUNYA alias RAFAERI KIBUKA V REGINAM (1953) 20 EACA 226, the appellant there was convicted of murder and the case against him was mainly based on circumstantial Evidence. In his sworn evidence at the trial, he made some denials which were obviously false. It was held that: The force of suspicious circumstances is augmented where the person accused attempts no explanation of facts which he may reasonably be expected to be able and interested to explain; false, incredible or contradictory statements given by way of explanation, if disapproved or disbelieved become of substantive inculpatory effect”. This case in our view does not in any way go against the basic legal principle that the burden of proving a criminal charge beyond doubt is solely and squarely upon the prosecution. But it`s a basic holding, namely that when an accused person tells an obvious and deliberate lie which is disproved or disbelieved, then such a lie is capable of providing corroboration to other independent available evidence”.

85. Even if this Court was to form the view that portions of the accused’s defence were difficult to believe, the Court of Appeal in   Lukas Okinyi Soki vs. Republic Kisumu Criminal Appeal No. 26 of 2004 expressed itself as hereunder:

“The appellant, as we have stated raised mainly two defences. The first was one of alibi and the second was that there were grudges between the appellant’s father and the complainant. Our understanding of the appellant’s defence is that he could not be properly identified as he was not at the scene of the robbery and the complainant’s evidence together with that of his wife and his grandson were all fabricated stories against him. On the other hand, the complainant and his wife were certain in their evidence that the appellant was one of the attackers. These were conflicting versions and demanded that the trial court had to carefully consider, analyse and evaluate the evidence that was before him both by the prosecution’s witnesses and the appellant. He had to consider whether the circumstances for identification were favourable or not. He had to consider whether the defence of alibi was well founded and whether it was properly displaced by the prosecution case. The consideration had to clearly be borne by the record. Equally the first appellate court, as was stated in the case of Gabriel Kamau Njoroge vs. Republic (supra) had a duty to carefully analyse and weigh conflicting evidence and draw its own conclusion on the same, bearing in mind that it had not seen or heard the witnesses.

……

We have perused the entire record of appeal and particularly the proceedings. We cannot see any evidence adduced either by the prosecution or by the appellant that would justify the conclusion the learned Magistrate came to, namely that the appellant’s alibi was an open lie and an indication of guilt. He may not have been truthful when he said that PW4 summoned him and asked him if he knew about the robbery at the complainant’s home but the burden was on the prosecution to displace his alibi.”

86. In criminal cases, it is old hat that the burden of proof lies with the prosecution and the standard of such proof is beyond reasonable doubt. Viscount Sankey L.C in the case of H.L. (E)* Woolmington vs. DPP [1935] A.C 462 pp 481 in what has been described as a subtle and masterly fashion stated the law on legal burden of proof in criminal matters, that;

“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.If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or 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 whittle it down can be entertained.’’

87. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:

“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”

88.  I also associate myself with the position adopted by the Supreme Court of Indian in the case of State of Punjab vs. Jagir Singh [1974] 3 SCC 277that: -

“A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged…In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts...”

89. Therefore, in acquitting the accused, the court does not necessarily make a definite finding that the accused is factually innocent of the offence with which he is charged. It simply makes a finding that the prosecution has failed to prove his guilt and he is therefore constitutionally deemed to be innocent as the benefit of doubt then inures to his benefit. I associate myself with Bagmall, J in Crowcher vs. Crowcher [1972] 1 WLR 425, 430 that:

“the only justice that can be attained by mortals, who are fallible and are not omniscient is justice according to the law: the justice that flows from the application of sure and settled principles to proved or admitted facts.”

90. What then is the standard of proof required in such cases? Brennan, J in the United States Supreme Court decision in Re Winship397 US 358 {1970}, at pages 361-64 stated that:-

“The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”

91. In 1997, the Supreme Court of Canada in R vs. Lifchus [1997] 3SCR 320 suggested the following explanation:-

“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.”

92. In JOO vs. Republic [2015] eKLR,Mrima, Jheld that:

“It is not lost to this Court that the offence which the Appellant faced was such a serious one and ought to be denounced in the strongest terms possible. However, it also remains a cardinal duty on the prosecution to ensure that adequate evidence is adduced against a suspect so as to uphold any conviction. The standard of proof required in criminal cases is well settled; proof beyond any reasonable doubt hence this case cannot be an exception. This Court holds the view that it is better to acquit ten guilty persons than to convict one innocent person.”

93. Mativo, J in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR expressed himself as hereunder:

“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right.  An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea.  Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

94. It may well be that the evidence of the prosecution stemming from the relationship between the accused and the deceased raised a suspicion that it must have been the accused who inflicted the fatal injuries on the deceased. However, in Sawe vs. Rep[2003] KLR 364 the Court of Appeal held:

“Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.”

95.   In R vs. Ally (Criminal Appeal No. 73 of 2002) [2006] TZCA 71it was held by the Tanzania Court of Appeal that:

“Suspicion, however grave, is not a basis for a conviction in a criminal trial. The appellant ought to have been given the benefit of doubt and acquitted.”

96. In James Tinega Omwenga vs. Republic [2014] eKLR, the Court of Appeal held that:

“Nelco testified that the conduct of the appellant pointed to his guilt because he avoided attending both meetings which had been convened by the chief. It is trite law that suspicion alone cannot be the basis for inferring guilt. In Mary Wanjiku Gichira -vs- Republic- Criminal Appeal No. 17 of 1998, this Court held,

“Suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence.”

See also this Court's decision in Sawe -vs- Republic (2003) KLR 364. ”

97. In the case of John Mutua Munyoki vs. Republic [2017] eKLR the Court of Appeal opined as follows:

“…Her story fitted their suspicion and that the appellant had the opportunity to commit the crime as urged by Murithi. All this is but suspicion and speculation. This can never be the basis of a conviction. In the case of Michael Mugo Musyoka v Republic (2015) eKLR we observed:

“We have looked at the evidence on record, there is no evidence or testimony to prove that there was any contact between the genital organs of the appellant with that of the minor. We are of the considered view that the evidence of PW1 was hearsay and did not carry much weight. We say so because she was not present at the house and did not witness what actually happened. She relied on what her daughter C had allegedly told her. Without the evidence of the said or eye witness we find that the prosecution did not prove that the appellant had intentionally and unlawfully indecently touched the child.......we find that the case against the appellant wasbased on a mere suspicion. In Mary Wanjiku Gichira v Republic, Criminal Appeal No 17 of 1998, this court held that suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life”.

In our view the evidence of PW1, 3, 5 and 10 as relates to the appellant only helped to advance the suspicion and was not cogent enough to found a conviction.

As correctly submitted by the appellant, in all criminal cases, the prosecution has the task of proving its case against an accused person beyond reasonable doubt and it is a burden the prosecution must discharge in relation to each and every ingredient of the particular offence charged.”

98. Where, as in this case the prosecution had within its powers the opportunity to gather evidence that would either have rebutted the appellant’s alibi or confirmed it but failed to do so, the benefit of the prosecution’s failure to present that evidence must benefit the accused, the appellant in this case. In my view, it is the duty of the prosecution to direct the investigators properly. Where the investigations do not measure up to the required standards, it behoves the prosecution to point out the same and give appropriate directions particularly in a matter such as this where there may be a need to call for rebuttal evidence.

99. It therefore follows that the mere fact that the prosecution’s case is believable does not amount to a rejection of the alibi defence.  The South African case of Ricky Ganda vs. The State, [2012] ZAFSHC 59, Free State High Court, Bloemfontein provides useful guidance. In the said case it was held: -

“The acceptance of the evidence on behalf of the state cannot by itself be sufficient basis for rejecting the alibi evidence. Something more is required. The evidence must be considered in its totality. In order to convict there must be no reasonable doubt that the evidence implicating him is true…the correct approach is to consider the alibi in light of the totality of the evidence in the case and the courts impression of the witnesses…it is acceptable in totality in evaluating the evidence to consider the inherent probabilities…The proper approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt.”

100. In this case apart from the information allegedly given by the deceased to PW2 and PW3, the only evidence that linked the accused to the deceased’s death was that of PW1. That evidence was clearly discredited both by the evidence of the accused and PW1’s own conduct. The accused relied on an alibi defence which was never rebutted.

101. Accordingly, I find that the prosecution has failed to prove that the accused persons herein on the 23rd day of October 2015 at unknown time at Kithimani-Mwala road within Machakos County, he murdered Jedida Lucy Wambua.

102. In the premises, he is acquitted and I direct that they be set at liberty forthwith unless otherwise lawfully held.

103. Judgement accordingly.

JUDGEMENT READ, SIGNED AND DELIVERED AT MACHAKOS THIS 8TH DAY OF MARCH, 2022.

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Muema for the accused

Mr Ngetich for the State

CA Susan