Republic v Thomas Mokaya Akara [2017] KEHC 6465 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL CASE (MURDER) NO. 4 OF 2015

REPUBLIC…………………………………………..PROSECUTOR

-VERSUS-

THOMAS MOKAYA AKARA…………………………….ACCUSED

J U D G M E N T

1. The Accused herein, Thomas Mokaya Akara, was charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code.  In that on the 7th day of January, 2015 at Narok Township within Narok North Sub-county, Narok County he murdered Margaret Nyakoboke Mokaya.  He denied the charge and was represented by Mr. F. I. Mburu.

2. The prosecution called ten witnesses. The prosecution case is as follows.Margaret Nyakoboke Mokaya (the deceased herein) was the wife of 30 years to Nyangweso Makori (PW1).  Although the couple had a home in Kisii, they practiced itinerate farming on leased parcels of land, a common practice in Narok County and surrounding areas.

3. In the material period, the couple had just recently leased an 8 acre parcel of land at Lamek, Mulot from James Nabala (PW3), and commenced farming activities.  The deceased lived in a mud-walled and plastic roofed temporary structure on the said leased land.  The Accused, her employee on the farm also occupied a similar separate structure at the homestead.  During the festivities at the end of year 2014, PW1 travelled to Kisii, leaving the deceased and the Accused at the farm.

4. Neighbours living in close proximity to the deceased included Edna Kemunto (PW5) and Monika Nyabunyo (PW2).  PW5 woke up at 6. 30am on 8/1/2015.  While outside her house, she saw the Accused sharpening his jembe (hoe) in apparent readiness for farm work.  Upon returning to her house, she heard screams emanating from the deceased’s home.  Outside, she saw the Accused holding his head and screaming that the deceased was dead.  She rushed there and questioned the Accused while also joining in the screaming.  The Accused told her that the deceased was lying inside her house.

5. Other neighbours attracted to the scene includedPW2.  Presently they were joined at 8. 30am by the local headman, Daudi Omata PW6 and the land ownerPW3.  The body of the deceased lay in a pool of blood with a large gash on the neck.  The Accused, upon being questioned confessed to the killing allegedly because of a debt owed him by the deceased.  The gathered neighbours led by the elder PW6entered the house of the Accused where they recovered a panga, a worn black trouser and what appeared to be bhangi in a plastic bag. [Exhibit 3 – 5].

6. Soon, PC Liu (PW10) and the scenes of crime personnel from Directorate of Criminal Investigations Narok arrived at the scene and took photographs, took over the recovered items and removed the body from the scene.  Investigations commenced as the Accused was placed in custody.  The Accused recorded a confession before SP Festus Kiambi (PW8) on 13/1/2015.

7. On 12/1/2015 Dr. Titus Ngulungu (PW7) performed the post mortem examination on the body of the deceased.  He concluded that death was caused by massive blood loss following deep cut wounds to the neck severing major neck vessels. The Accused was then arraigned in court.

8. When placed on his defence, the Accused elected to make an unsworn statement.  To the effect that he was working and living at PW3’s farm at Lamek in the material period.  That the deceased was his employer at her farm at Lamek.  That on the material morning he proceeded to the deceased’s house to collect tools and found the door ajar, the deceased lying dead in a pool of blood.  His screams attracted villagers to the scene.  They accused him of murdering her. He was arrested.  He denied the offence.

9. There is no dispute that in the material period the Accused was an employee of the deceased, working and living with her on her farm at Lamek which had been leased from PW3.  That on the morning of 8/1/2015 the deceased lay dead in a pool of blood in her house.  That the Accused raised the alarm that attracted several neighbours to the scene.  The court must determine whether the Accused, with malice aforethought, inflicted the injuries that resulted in the death of the deceased.

10. Apart from the admitted circumstantial evidence and that the Accused raised the alarm that notified neighbours of the deceased’s death, the prosecution also relied on two types of statements, allegedly made by the Accused, the first being an alleged admission of the killing to PW6and the second a formal confession made toPW8, some five days since his arrest.

11. The Accused admittedly lived within the same compound as the deceased as her farm employee although each of them had their separate shack.  Evidently, they were living alone at the home during the material period, asPW1 was away in Kisii.  It would seem that one of the closest neighbours to the duo’s residence was PW5.  She stated in her evidence-in-chief that:-

“I lived about 200 metres away (from the deceased home).  On 8/1/2015 I got up and saw accused at 6. 30am sharpening a jembe.  I entered my house to make breakfast.  But before I could, I heard screams………Accused was holding his head saying Margaret was dead.”

12. Another neighbour who said she also heard the Accused’s screams at about same time wasPW2.  She said that the Accused lived in a small hut next to the house where the deceased resided.  PW1 the deceased’s husband testified that the Accused lived with them but in a separate dwelling on the same shamba butusually had meals with them.  During cross-examination, he stated that:

“Not true that the Accused helped us build the house; (couples) it was a bare shelter – with plastic paper roofing and mud walls……  He had a small shed by our house close by about 30 metres away.  Margaret lived alone when I was not there.  The Accused also lived alone, closest neighbours were far – about 50 to 60 metres.  The body of the deceased was inside the house…….”

13. The Accused’s position that he only learned of the death of the deceased on the morning of 8/1/2015 is intriguing for two reasons.  First, he occupied a shed next to the deceased in close proximity.  The dwellings were made out of mud and plastic roofing.  Secondly, it seems that whoever murdered the deceased inflicted, not one but several injuries.  The post mortem report records the following injuries:

“Head: linear bruising at the right forehead 50 x 10mm.

Neck plus mandible:  Has incision wounds.  The larger extends from the left mid-mandible to the left neck, deep involving muscle, and left major neck vessels and nerves.  100 x 50 mm, anterior one 40 x 10 mm.  Right upper limb – mid arm a bruise 50 x 10mm.”

14. From the stated dimensions of the injuries, it is likely that the same weapon was used.  She was struck at least twice with the said weapon. The close up photographs of the body, Exhibit 6A to D reveal that the main cut wound on the neck was a wide and deep gash but the mandible injury was thinner.  Unless the deceased was attacked while asleep, she would definitely have made some noise, at least upon the first blow.   And at a distance of 20 metres, the Accused, unless also asleep or drunk in his bare shack, should have heard the first scream or cry for help.

15. The photographs of the deceased suggest that she may not have been asleep when attacked.  First, she was not in bed but on the floor of the house.  Witnesses said the body was at the door, which was ajar.  Ditto the Accused.  Secondly, the deceased was fully dressed save for shoes.  She wore a T-Shirt, a skirt and heavy-looking jacket.  Possibly therefore, the deceased was attacked inside her house the previous night before bed time or very early the next morning.  This supposition is more likely in light of the fact that PW6said that on his arrival, he found blood everywhere, and it had clotted or was starting to.  Unfortunately clothes allegedly belonging to the Accused, taken from the house of the Accused by PW6and police were not subjected to DNA analysis.

16. Leaving the circumstantial evidence aside for the moment, PW5 and PW6 also told the court that the Accused admitted before members of the public that he had murdered the deceased, when questioned that morning.  Although no objection was raised by the defence to this alleged admission, there is controversy as to whether the admission was forced out of the Accused.  While several witnesses at the scene including PW6denied that any force or violence was visited on the Accused at the time, PW5said that the Accused was struck on the shoulder by a ‘maasai man’, and that he subsequently admitted to the murder while pleading for his life.

17. The admission, if made, was in the circumstances not voluntary, and was retracted by the Accused through his cross-examination and defence statement.  Based on the observations of the Court of Appeal in Sango Mohamed Sango & Another –Vs- Republic [2015] eKLR a confession obtained in such circumstances cannot be relied on.

18. In the Sango case, the Court of Appeal dismissed a contention that the Evidence Act as amended prohibits an Accused person from making a voluntary confession to a private citizen.  However the court exhorted that before such a confession was admitted or acted upon, it must assure itself that the statement was made voluntarily.  The court proceeded to state:-

“The real issue in the appellants’ alleged confessions is whether they should, in the circumstances of this appeal, have been admitted, because the trial court must be convinced first about the voluntary nature of the confession and secondly that the confession has the ring of truth.

We have found that as regards the 2nd appellant there was no proper confession before the court. As regards the 1st appellant there was before the court a confession, the only issue being whether in the circumstances of this case, the trial court should have acted on it.

The defence did not object to the admission of the confession as they ought to have done, to enable the trial court determine the circumstances under which it was made and whether it ought to have been admitted. Nevertheless, from the cross-examination of PW3 as well as the defence put forward by the 1st appellant it leaves no doubt that the 1st appellant was denying ever having made the confessions. As this Court stated in KANINI MULI V. REPUBLIC, CR. APP. NO. 238 of 2007, even after the trial court has ruled a confession admissible, the accused person is still entitled to call evidence to show that the confession cannot be acted upon. Earlier in LAKHANI V. REPUBLIC, (supra)the appellant had not objected to the admission of his confession of theft made to his branch manager and as a result the confession was admitted without a trial within trial being held. Later in his defence, the appellant denied making the confession. On appeal the Court of Appeal for Eastern Africa held that the trial court ought to have asked the appellant at the time when the evidence of his confession was about to be given, whether he wished to repudiate or retract it or whether he agreed to its admission in evidence, and that as soon as the appellant repudiated his confession, a trial within trial ought to have been held.”

19. Regarding the confession allegedly made to PW8, the court conducted a trial-within-trial, upon objections raised by the Accused’s counsel.  Two witnesses called by the prosecutions in this regard were SP Felix KiambiandPC Isabella Wangechi (PW1 and PW2 respectively in the trial-within-trial (TWT)).  The gist of their evidence was that the Accused having been arrested on 8/1/2015 over a weekend, remained in police custody as investigations continued.  On 12th January, 2015 police applied before the court to continue holding him as investigations, which included interrogation and statement recording proceeded.

20. That on 13th January 2015 the Accused intimated to PW2 that he was ready to record a statement in connection with the investigations.  At about 3. 30pm he was removed from the cells to the office of PW1 (trial-within-trial) and after statement recording was returned to the cells at 5. 30pm.  PW1(trial-within-trial) outlined the steps he took in that session.  That firstly, he inquired into the language the Accused was comfortable speaking, and whether he was maltreated or otherwise tortured.  That he said he could speak Swahili and had no complaints of mistreatment.  That the Accused stated he was illiterate.

21. Informed of his right to have an advocate or relative present the Accused declined.  He then administered a caution in terms of Rules 4 (1) to (3) of the Evidence [Out of Court Confession] Rules, 2009. That PW1 recorded the statement in English although the Accused spoke in Kiswahili.  That he read it back to him in Kiswahili and he confirmed it was accurate, and signed.  That he did not apply any force threat, inducement or promise to obtain the statement, and the same was voluntary and in accordance with Rules.

22. In cross-examination,PW1 (TWT) admitted that under Rule 5 (3) of the Evidence [Out of Court Confession] Rules the venue of the confession ought to have been stated and in this case he recorded that it was at the Criminal Investigations Division office.  He said that although the Accused said he had never been to school, (illiterate) he understood Swahili.  That he recorded what the Accused told him in English, but translated it while reading it back to him as required, and afterwards certified. It was voluntary. PW2 (trial-within-trial) testified that she removed and returned the Accused to the cells and also made corresponding OB entries on 13/1/2015.

23. In his unsworn evidence in the trial within trial, the Accused said after his arrest on 8/1/2015, he remained in custody until 12/1/2015 when he was escorted to an office where he was beaten during interrogation, then returned to the cells by PW2.  That subsequently he was taken toPW1 (trial-within-trial) and asked whether he was literate, or understood Swahili.  That PW1 while questioning him recorded ‘things’ and that he was later told to sign, which he did by thumb-printing.

24. There is no doubt that the impugned statement meets the definition of a confession under Section 25 of the Evidence Act stating that:

A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.

25. Any confession obtained by threat promise or inducement is inadmissible under Section 26 of the Evidence Act which is in the following terms

“A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”

26. This provision is underpinned by the Constitutional guarantees to persons held in police custody, contained in Article 49 (1) (b) and (d) and 50 (2) and (4) of the Constitution.  The Judges Rules have now been codified in the Evidence [Out of court confession) Rules of 2009.  The rights of an Accused are set out in Rules 4 (1) to (3) as follows:-

“(1) Where an accused person intimates to the police that he wishes to make a confession, the recording officer shall take charge of the accused person and shall ensure that the accused person-

(a) has stated his preferred language of communication;

(b) is provided with an interpreter free of charge where he does not speak either Kiswahili or English;

(c) is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment;

(d) is informed of his right to have legal representation of his own choice;

(e) is not deprived of food, water or sleep;

(f) has his duration, including date and time of arrest and detention in police custody, established and recorded;

(g) has his medical complaint, if any, adequately addressed;

(h) is availed appropriate communication facilities; and

(i) communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5.

(2)The recording officer shall not record a confession from any accused person who complains to him of being a victim of torture or whose physical appearance shows signs of physical injuries including open wounds, body swelling, or shows extraordinary fatigue or any other indicators that would suggest that the accused person has been tortured.

(3) The recording officer shall ask the accused person to nominate a third party who shall be present during the duration of the confession session, and upon the appearance of the third party, the recording officer shall record the third party’s particulars and relationship to the accused person.”

27. The evidence ofPW1andPW2(in TWT) must be considered against the background of these provisions and rules.  Generally viewed,PW1’sevidence is consistent with due observance of Rule 4.  Three issues dominated PW1’s cross-examination by the defence, namely the OB record on the removal and return of the Accused from the cells, the time when the Accused intimidated willingness to record a statement, the place of recording of the statement and language used.  It is true that the actual OB item regarding the return to the cells was not assigned a number save the date.  But in my view the time of removal and return is well indicated in the OB and the evidence of PW1 and PW2 in the trial within trial.

28. There is no requirement however, for the recording officer or other officer to record the time when an Accused person agrees to record a confession, prior to the recording session before the actual recording officer.  As regards the place of recording, while generally stated at Criminal Investigating Division offices, the Accused admitted that the recording session occurred  in the office ofPW1(Trial-within-trial).

29. Regarding language, the Accused admittedly communicated in Kiswahili with the recording officer.  However according to PW1 (trial-within-trial) he translated the confession into English, on record and back to Swahili while reading it back to the Accused person.  Since the Accused was illiterate, he could not read a statement in either language.  And while it maybe desirable for the recording officer to record a statement in the language used by an Accused, especially if it is Swahili, and then prepare a translation and relevant certificate, I can find no breach of the Rules in what the recording officer did in this case.   Rule 4 (1) (b) as read with Rule 10 appear to allow the use of either English or Swahili, where applicable, in the recorded statement.

30. The Accused’s evidence that he was assaulted or tortured to confess to the murder was not put to PW1     or PW2 in the trial-within-trial during their cross-examination.  The Accused did not identify the place and who in particular assaulted him prior to being taken to PW1 (trial-within-trial), despite the witness maintaining that between 3. 30pm and 5. 00pm the Accused remained in his office.

31. Surely, if the Accused had just come from a torture session when brought toPW1, some evidence of sorts should have confrontedPW1and/or a complaint would have been raised by the Accused to the recording officer.  Secondly, the defence did not suggest to PW1 (TWT) that the said witness while speaking with the Accused recorded his own “things”, and apparently failed to read back the statement to him, before asking him to thumb print the same. The Accused did not state, despite the evidence by PW1to the contrary, that he made any complaint concerning a session of torture immediately prior to being taken to his office.

32. Having carefully reviewed the available evidence, I was satisfied that the Accused’s confession was taken in accordance with the Evidence (Out of Court Confession) Rules and was admissible under Section 26 of the Evidence Act.

33. In this case however, whether the Accused retracted or repudiated his statement is not very clear from his evidence.  In Ogero Omurwa -Vs- Republic [1979] eKLR the Court of Appeal discussed in detail whether there was any real distinction between a retracted and a repudiated statement.  The court quoted in extenso and with approval the observations made by the Court of Appeal of Eastern African in that regard, in its decision in Tuwamoi -Vs- Uganda [1967] EA 84 as follows:

“We now come to the distinction that has been made over the years between a statement “retracted” and a statement “repudiated”. The basic difference is, of course, that a retracted statement occurs when the accused person admits that he made the statement recorded but now seeks to recant, to take back what he said, generally on the ground that he had been forced or induced to make the statement, in other words, that the statement was not a voluntary one. On the other hand a repudiated statement is one which the accused person avers he never made.

We have had some difficulty in tracing how this distinction arose. The first reported decision in East Africa relating to retracted confessions appears to have been in 1935. We refer here to the decision of this Court in R v Muthiwa(1935) 2 EACA 66 in which this Court held that it would be unsafe to convict on the retracted confession in that case and it adopted as a correct statement of the law the rule of practice referred to by Sir Grimwood Mears CJ in Emperor v Shambbuand the judgment quotes this rule as follows (1932) ILR 54 All at page 358): “The evidentiary value of a retracted confession is very little and it is a rule of practice, as also a rule of prudence, that it is not safe to act on a retracted confession of an accused person unless it is corroborated in material particulars”.

This rule was more fully explained and modified by later decisions and before referring to the decision in 1936 which first made the distinction between a retracted and a repudiated statement, we would refer to some of these decisions. We would first refer to R v Keisheimeiza(1940) 7 EACA 67 and to the following extract from the judgment of the Court delivered by Whitley CJ: “We would refer to the judgment of this court in the case of R v Robert Sinoya(1939) 6 EACA 155 in which the authorities are reviewed and the opinion was expressed that the danger of acting upon a retracted confession in the absence of corroboration must depend to some extent upon the manner in which the retraction is made. We agree that in ordinary cases as a general rule when a confession is definitely and categorically retracted it is unsafe for the Court to act upon it without corroboration but if after enquiring into all the material points and surrounding circumstances the Court is fully satisfied that the confession cannot but be true there is no reason in law why the Court should not act upon it (R v Durgaya,3 Bom LR 141).

The law is concisely summarised in Woodroffe and Ameer Ali(9th Edn) at p 277, in the following words: ‘It is unsafe for a Court to rely on and act on a confession which has been retracted, unless after consideration of the whole evidence in the case the Court is in the position to come to the unhesitating conclusion that the confession is true, that is to say, usually unless the confession is corroborated in material particulars by credible independent evidence or unless the character of the confession and the circumstances under which it was taken indicate its truth’.”

We would also refer to the judgment of this Court read by Sir Alastair Forbes V-P, in Toyi v R[1960] EA 761 where it was stated: “We agree that there is no rule of law or practice which requires corroboration of a retracted confession before it can be acted upon. But we think the learned judge was understating the case in merely saying that ‘it is desirable ... to have such corroboration’. It is a well-established rule of prudence that it is dangerous to act upon a retracted confession unless it is corroborated, in material particulars or unless the Court, after a full consideration of the circumstances is satisfied of its truth - R v Kaperere Muaya(1948) 15 EACA 56. Miligwa Mwinje v R(1953) 20 EACA 255. With respect, we think that the learned judge’s direction, in so far as it fell short of a warning to the assessors that in the absence of corroboration a retracted confession is to be received with great caution and reserve, amounted to a misdirection. However, we were satisfied that in fact in his judgment the learned judge had accepted the appellant’s extra-judicial confession as true only after full consideration of the circumstances, and that there was every justification for such acceptance.”

In the recent case of Kamau v R[1965] EA 501 this Court set out the rule as at present applied by this Court to a retracted confession. This was an appeal from Kenya (Farrell J) but the rule as thus set out would equally well apply to Uganda and Tanzania. We quote ([1965] EA at page 505): “As we have earlier said, the other material evidence against the appellant was her own cautioned statement, which she retracted at the trial. In relation to this, the learned judge directed the assessors that it is dangerous to rely upon a retracted confession in the absence of corroboration, but that they might do so if fully satisfied that the confession must be true. He further directed them that they might properly treat the evidence of Wambui as corroboration of the cautioned statement. We think that the learned judge’s direction regarding retracted confessions was correct (Toyi Kalihose v R[1960] EA 501; Pyaralal Melaram Bassan v R[1961] EA 521) and that Wambui’s evidence, not itself requiring corroboration, was capable of affording corroboration.”

The present rule then as applied in East Africa in regard to a retracted confession, is that as a matter of practice or prudence the trial court should direct itself that it is dangerous to act upon a statement which has been retracted in the absence of corroboration in some material particular, but that the Court might do so if it is fully satisfied in the circumstances of the case that the confession must be true…….

On consideration of the position, we find it difficult to accept that there is any real distinction in principle between a repudiated and retracted confession.”

34. In the case of Patricio Njiru Kirangi & Another -Vs- Republic [2005] eKLR, the Appellants challenged before the Court of Appeal their confessions produced before by the High Court that were the basis of the convictions against them.  Dismissing the appeal the Court of Appeal stated interaliathat:

“We will first dispose of the appeal by the 2nd appellant. The Statement Under Inquiry and the Caution and Charge statement made by him are a clear admission of his guilt. The 2nd appellant goes into detail and describes the circumstances in which he took active part in killing the deceased and why he and the 1st appellant did so. With respect to Mr. Kahigah, we see no reason or justification for discounting the value of the confession so made by the 2nd appellant. The trial Court, in our view, could convict upon such confession. Since taking all the circumstances of the case into consideration, there seems to be no reason to believe that the confession is not true. We uphold the conviction of the 2nd appellant.

There is sufficient evidence on record to show that the 1st appellant led the police to the pit latrine at his home. Also, he made a Charge and Caution Statement which though he retracted, the trial Judge accepted it after a trial within a trial on the ground that the statement had been made freely and voluntarily and that it contained nothing but the truth. We think that, in the circumstances, the trial court was perfectly entitled to convict the 1st appellant on his confession since it is manifestly clear that it followed the guidelines set out in Tuwamoi vs. Uganda [1967] E.A. 84 at page 91 which reads: -

A trial court should accept any confession which has been retracted or repudiated or both retracted and repudiated with caution, and must before founding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually a court will only act on the confession if corroborated in some material particular by independent evidence accepted by the court. But corroboration is not necessary in law and the court may act on a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true.”

35. Similarly in the case before me, the court admitted the Accused’s confession because it was satisfied that the same was made voluntarily by the Accused.  The same is detailed and runs into 6 pages.  Some of these details, especially regarding the cause of and souring of the relationship between the deceased and Accused could not possibly have been invented by the recording officer or even drawn from witness statements, because most of them (PW2, 3, 5, in particular) were not close to the deceased or Accused.  They stated the latter two were new in the area and they were unaware that they had any differences.

36. During the cross-examination of PW6, he was challenged concerning issues raised therein that were not in his police statement. The key items related to the Accused’s assertion that deceased owed him money and that he was entitled to some of the land.  He explained that while recording his statement with police they prompted him with questions and therefore did not raise these matters in his statement with police.

37. Equally, the defence suggested to PW1, the deceased’s husband that the Accused helped the family build a house and had leased some land of his own.  These matters approximate to the complaint made in the Accused’s confession that because of debt, and his unrecognized efforts by the deceased he felt “misused” by the deceased.  PW1 also stated during Re-examination that the Accused ordinarily had his meals in the employers house but slept in his own shelter.  These matters go to corroborate specific statements in the Accused’s confession in that regard.

38. As earlier observed, the deceased evidently met her death while awake and fully dressed.  If indeed another person attacked her on the evening prior to the alleged ‘discovery’ of the murder by the Accused, she would have raised an alarm and being within earshot, the Accused should have heard.   Only two of them resided at the home in the material period and were admittedly at the home on the material night.  From his account, Accused evidently spent the night at the home and must be the last person to see deceased alive.

39. Section 111 of the Evidence Act states:

“(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any  exception or exemption from, or qualification to, the operation   of the law creating the offence with which he is charged and the  burden of proving any fact especially within the knowledge of such person is upon him:

Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such  circumstances or facts exist:

Provided further that the person accused shall be entitled to be  acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused  person in respect of that offence.

(2) Nothing in this section shall-

(a) prejudice or diminish in any respect the obligation to  establish by evidence according to law any acts, omissions or intentions which are legally necessary to  constitute the offence with which the person accused is  charged; or

(b) impose on the prosecution the burden of proving that the circumstances or facts described in subsection (1) of  this section do not exist; or

(c) affect the burden placed upon an accused person to prove a defence of intoxication or insanity.”

40. In the circumstances of this case, one would have expected the Accused to state in his defence when he last saw the deceased alive or at least at the home.  Despite living next door to her, the Accused in his defence was silent on that aspect, stating only that he stumbled on the body of the deceased, early in the morning of 8/1/2015 while collecting his tools for work.  He did not attempt to give any account of his movements on the previous night relative to the deceased.

41. I am satisfied that there is sufficient independent material corroboration of the Accused’s confession; and that at any rate, despite the retraction of the confession by the Accused, when all the surrounding circumstances are considered, the confession cannot but be true. The Accused’s defence has been displaced in totality by the prosecution evidence.

42. Based on all the foregoing, I find that the Accused inflicted the fatal injuries on the deceased possibly following an employee/employer disagreement.  The intention to cause death or at least grievous harm is evident in the severity of the wounding of the deceased.  She suffered two deep gashes to her head and neck.  The prosecution has proved the charge against the Accused beyond any reasonable doubt.  I will convict him as charged.

Delivered and signed in Naivasha this 16th day ofMarch, 2017.

In the presence of:-

Mr. Mutinda for the DPP

Mr. Mburu for the Accused

Accused – present

Court Assistant – Barasa

C. MEOLI

JUDGE