Republic v Silas Mugoye Lugalia [2017] KEHC 9676 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CRIMINAL DIVISION

CRIMINAL CASE NO. 96 OF 2015

REPUBLIC................................................................RESPONDENT

VERSUS

SILAS MUGOYE LUGALIA............................................ACCUSED

JUDGMENT

1. The Accused SILAS MUGOYE LUGALIA was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on the night of the 19th September, 2015 at about 10. 00 p.m. at Baba Dogo Estate within Nairobi County murdered GRACE WAHU.

2. He pleaded not guilty to the said charges and to prove its case against him the prosecution called four (4) witnesses.

PROSECUTION CASE

3. The prosecution case was that on 19th September, 2015 PW1 NICHOLAS VICTOR MWALE went to the shop with the accused person  for shopping and on their way back to the house of the accused they witnessed two people a man and a woman fighting and the accused proceeded to where they were and told them to stop making noise and proceed to their house when the man left the woman he was fighting and ran to the accused and attacked him and shortly thereafter  a lady whom he was able to identify as Wahu joined and asked the accused why he was talking to them.  He shortly thereafter saw the deceased step back bleeding from the chest.  The accused then proceeded into the plot.  He then proceeded to his house.  He stated that he was with the accused but did not see him with a knife neither did he see him stab the deceased.

4. PW2 PC CHRISTOPHER SANGI received a report for one Caroline Wahu that the deceased had been stabbed with a knife by unknown person and that at 3. 40 a.m. members of the public took the accused who had been assaulted on allegations that he had killed the deceased to the police station and he rearrested him.

5. PW5 EDWARD KIPSANG NINGU the husband of the deceased stated that on the material day his wife was with one Wafula who he knew at the gate of their plot where there were also two other people one whom he knew as working at the stage but living in the next plot and that at the gate there was an altercation between him and his wife on the issue of food Preparation and the man joined their altercation when the said man removed a knife and aimed it at him but missed him and landed on the deceased and he turned and hit the man before turning back to witness the deceased fall down.  The deceased was subsequently taken to hospital where she died.  It was his further evidence that he came back to the plot where the accused lived and when they went to his house he declined to be arrested allegedly because he had a twin brother who was responsible for the stabbing.  He stated that he knew the accused and had seen him about five times.

6. PW4 INSP. EVANS CHEAHvisited the scene and found blood stains near the gate to where the deceased had been allegedly stabbed.  He subsequently attended post mortem examination and took the accused who had been booked at the cells for mental assessment and produced the post mortem report.  He confirmed that the accused was alleged to had been staying with someone in his house but the same was not present on the material day.  In cross examination he stated that the accused had initially been booked for aiding and abetting the escape of a suspect.

DEFENCE CASE

7. When put on his defence the accused corroborated the evidence of PW1 and stated that when they came from the shop they met a man and a woman making noise and he stopped them.  The man then turned against him wanting to pick up a fight with him but he declined and went to his house.  At 11. 00 a.m. the caretaker of the plot when to his house and informed him that he had visitors and as he was leaving to go meet the alleged visitors, he was attacked.  He then called Ruaraka police station who advised him to report the next day between 2. 00-3. 00 a.m.  a mob went to his house and took him to the police station where he was re-arrested.

SUBMISSIONS

8. On behalf of the defence it was submitted that the prosecution case had glaring contradictions and was very inconclusive.  It was submitted that there was contradiction between PW1 and PW3 on the nature of lighting at the scene and that PW1 confirmed that he was with the accused throughout and did not see him with a knife. It was submitted that material witnesses including one Wafula who was with the deceased was not called to testify.  It was submitted that only PW3 stated that he saw the accused stab the deceased but this was not corroborated by PW1 who was also at the scene.  It was further submitted that there was no evidence submitted to establish any malice aforethought on the accused who went to his house and proceeded with his normal life.

9. On behalf of the prosecution it was submitted that the accused was placed at the scene of the murder and that Section 206(a) and (b) defines malice aforethought as an intention to cause death or to do grievous harm to someone.

ANALYSIS AND DETERMINATION

10. The prosecution is under duty to prove beyond any reasonable court to sustain a conviction on a charge of murder the following ingredients.

a)  The fact and cause of death.

b) That the said death was caused by unlawful act or omission or commission on the part of the accused person

c) That the said unlawful act or omission was caused with malice aforethought.

11. The fact and cause of death of the deceased is not in dispute.  PW1 saw the deceased bleeding from her chest, PW2 received report of the stabbing at the station while PW3 her husband confirmed her death.   PW4 attended post mortem examination and produced post mortem report in which it was confirmed that the deceased sustained penetrating stab wound between the breast internally penetrating between 5th and 6th left ribs and stabbing the heart.  As a result of the examination the doctor formed an opinion that the cause of death was exsanguinations due to heart injury as a result of penetrating sharp force trauma.

12. On whether the said death was caused by unlawful act on the part of the accused person as submitted by the defence there is contradiction between the prosecution witnesses as to who caused the death of the deceased.  PW1 who was with the accused at the scene stated on oath that he did not see the accused stab the deceased but heard PW3 the husband of the deceased ask whether there was a knife.  Whereas PW1 stated that he was with the accused all along and did not see him with a knife, PW3 in his evidence stated that the accused had a one(1) feet long knife – Somali sword which PW1 would not have missed since he left with the accused for the shop and at the time of altercation they were together.  It is worth noting that one vital witness (Wafula) who was alleged to had been with the deceased was never called as a witness.

13. The issue therefore for determination is whether the accused was adequately identified by the prosecution witnesses as being the one who had stabbed the deceased.  PW1 stated in his evidence in chief that there was an altercation between PW3 and the deceased and that when the accused intervened PW3 left the deceased and attacked the accused. At that point he decided to move away from them as he was scared and only heard PW3 ask whether there was a knife and when the deceased got to where they were he saw her step back bleeding.  At the close of the prosecution case there remains a doubt as to who between PW3, the accused and or Wafula had a knife and who used that knife on the deceased.  PW1 moved with the accused into his house while according to PW3 he hit the man who had stabbed his wife and he fell down onto the gate while the person who was with him ran away.  It was his evidence that the person who had stabbed his wife was well known to him as he used to work at a coke distribution whereas the accused in this testimony indicated that he was a painter thereby raising the possibility of mistaken identity.

14. The issue of mistaken identity is further confirmed by the initial report made to the police that the accused had been booked for aiding and abetting the escape of a suspect and having noted that none of those who had initially arrested the accused were called to testify when weighed against the defence by the accused person, it is clear that there is a doubt raised in the prosecution case as to the involvement of the accused in the alleged murder of the deceased herein and this being a criminal trial the prosecution is expected to prove the guilt of the accused beyond any reasonable doubt and the benefit of any doubt raised should be accorded to the accused person.

15. Whereas there is suspicion as to the involvement of the accused, mere suspicion however strong cannot be a basis to sustain a conviction.  At the end of the day I find and hold that the prosecution has failed to  prove beyond any reasonable doubt that the unlawful act that led to the death of the deceased was exclusively caused by the accused person and accordingly find the same not guilty of the murder of GRACE WAHU and accordingly acquit the same.

16. The accused shall be set free forthwith unless otherwise lawfully held and it is so ordered.

17. The state has a right of appeal.

DATED, SIGNED and DELIVERED at Nairobi this 7th day of December, 2017

………………

J WAKIAGA

JUDGE

In the presence of:-

Mr. Meroka for the state

Mr. Ruiru for the accused

Accused  present

Court clerk Tabitha