Republic v William Mwilitsa [2017] KEHC 9425 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL DIVISION

CRIMINAL CASE NO. 41 OF 2012

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

VERSUS

WILLIAM MWILITSA...................ACCUSED

J U D G M E N T

Introduction

1. The accused herein William Mwititsa is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.  The particulars of the offence are that on the 9th day of October, 2012 at Busanyi Village, Matanyi Sub-Location in Kakamega South District within western Province the accused murdered Samuel Ubenda.

2. When the charges were read to the accused he pleaded not guilty to the same and the case was set down for hearing. The 5 witnesses who testified for the prosecution were Mable Khatambi Luganda as PW1(Mable), Stephen Mwenesi was PW2 (Stephen) while Agnes Khasiala Ndombi testified as PW3 (Agnes). Dr. Dixon Mchana, pathologist at the Kakamega County Hospital was PW5 (Dr. Mchana) and Number 51469, Corporal Samson Otieno Awino testified as PW6(CPL Awino)

The Prosecution Case

3. From the testimonies of the 5 prosecution witnesses, the case for the prosecution is as follows:  On 10. 10. 2012 at about 9. 00pm Mable was in her house when she heard the accused calling Fridah Masike, her mother in law.  The accused was yelling and demanding to be given land by the deceased who is Mable’s husband.  The deceased went out of the house, while Mable remained inside.  A fight ensued between the accused and the deceased and continued for about 15 minutes. For all that while no one else dared to go outside because, according to Mable, the accused had warned anyone daring to do so of dire consequences.

4. After the commotion stopped, Mable went out of the house, only to find the deceased lying on the ground and bleeding from the back of the head.  She went and reported the incident to her mother in law before carrying the deceased into the house.  On the following morning, Mable was assisted to take the deceased to Shirwe sub-district hospital.  He was however transferred to Kakamega County General Hospital where he died while undergoing treatment.  After the body of the deceased had been put into the mortuary, Mable, together with Calistus Ndombi (not called as a witness) went and reported the incident to Isulu Patrol Base where she also recorded her statement.

5. Mable was taken through a lengthy cross examination by Mr. Simasi, counsel for the accused.  She confirmed that she could not say who else may have been in the company of the accused on the material evening.  She also confirmed that apart from hearing he accused, she did not see him.  Mable could however not say why neighbours did not come to the rescue after she screamed, though she attributed the neighbour’s apathy to the fear they had of the accused.

6. On that same morning, at about 6. 00am, Agnes got news that the accused had beaten his father.  On receipt of the news, Agnes went to the deceased’s house and saw the deceased lying on the floor of the sitting room, bleeding from the head.  Agnes helped in organizing for transport to take the deceased to hospital at Shibwesa sub-district hospital.  She did not however go to the hospital, but she informed Stephen, the village elder about the incident. Agnes also informed Stephen that the accused had run away from home and gone to hide in Stephen’s village.

7. Stephen mobilized the villagers who found the accused hiding near his (Stephen’s) house.  They arrested the accused and escorted him to Malinya AP line from where he was re-arrested by police.  Stephen also told the court that the accused was found in possession of a hoe handle when he was arrested.  The same was marked as PMFI-1.

8. CPL Awino investigated the case while he was still attached at Isulu Patrol Base.  On 11. 10. 2012, while attending a meeting at Malinya, he was informed that the accused had assaulted the deceased using the handle of a jembe.  By that time the accused had already been arrested.  The deceased died on 12. 10. 2012.

9. After postmortem examination was conducted on the body of the deceased, the accused was charged with the offence of murder.

10. Dr. Mchana is the one who conducted the post-mortem examination on the body of the deceased at the Kakamega County GH on 15. 10. 2012. From the examination Dr. Mchana said the deceased’s extremities appeared bluish in colour meaning that he had lack of oxygen before death.  There were signs of medical intervention for the star shaped laceration on the right hand top side of the scalp.  The laceration measured 9cm x7 cm.  There were also noticeable defence injuries on both forearms.

11. Internally, there was deffuse blood clot below the scalp. There was also a depressed skull fracture on the left part of the skull, extending on the right side.  There was massive bleeding above and below the coverings of the brain. There was bruising on the left forebrain.  Dr. Mchana formed the opinion that the cause of death was closed head injury secondary to blunt force trauma following assault. The post mortem report dated 15. 10. 2012 and duly signed and stamped by Dr. Mchana was produced as PExhibit 2.

Defence Case

12. At the close of the prosecution case, the accused was found to have a case to answer and he was accordingly placed on his defence.  In his sworn statement, he testified that he could not remember what happened on the material day nor where the deceased was, though he remembered the deceased was admitted to hospital at shibweye.  He also testified that on the night of 09. 10. 2012, he was at Bungoma but on the day of his arrest on 10. 10. 2012, he was at Malinya.  He denied going to his grandmother’s house as alleged by Mable.

13. During cross examination, the accused stated that he had not lived with Mable for any appreciable length of time and as such she could not have identified him by voice.  The accused did not call any witnesses.

Submissions

14. Counsel for the accused filed written submissions. Counsel did not attend court to highlight his submission but the colleague holding his brief asked for a judgment date.  Prosecution counsel relied on the evidence on record.  Counsel for the accused submitted that the prosecution has not proved that the accused unlawfully caused the death of the deceased or that the accused’s act causing the deceased’s death was occasioned by malice aforethought.

Analysis and Determination

15. The offence of murder is created by Section 203 of the Penal Code. To prove murder the prosecution must show that a person died, and that the said person died as a result of the unlawful act or omission of the accused person and lastly that the accused person had malice afore-thought before committing the murder.

16. Malice aforethought is defined under section 206 of the Penal Code and it encompasses a number of acts the proof of one of which would lead to establishment of malice aforethought

(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not or ;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may not be caused.

(c) an intent to commit a felony

17. It is of great importance that the above section is read together with Section 107 of the Evidence Act, namely that he who alleges must prove.

18. In this particular case it has been shown that the deceased died.  Mable testified to this fact and it was confirmed that she took the deceased to hospital and as he was being treated he succumbed to the injuries he had received during the night.

19. The fact of death was confirmed by the testimonies of both Stephen and Agnes who after receiving information of the incident later learnt that the deceased had died.

20. Dr. Mchana produced a post mortem report in which he gave his opinion on the cause of death. It is therefore not in doubt that the deceased is dead.  The second ingredient which is equally crucial to prove is whether the deceased died as a result of the act or omission of the accused person.   Mable stated that the incident happened at night at about 9. 00pm on the 10. 10. 2012, when accused went to their home shouting and demanding to be given land.  The accused allegedly walked to the grandmother’s house who is Mable’s mother in law and caused a commotion which led to a quarrel. After about 15 minutes everything went silent.  During this time, Mable was inside her house.

21. At this point Mable went out to see what had happened when she found her husband lying down and having an injury on the head.  She asked her mother in law to assist her carry the deceased into the house.  She raised an alarm but no neighbour came.  I note that the mother in law did not testify and that Mable did not see the accused attacking the deceased, So the evidence of the attack is circumstantial evidence.

22. Mable claims to have identified the accused through his voice and maintains that she had known the accused for about 3 years.  It is my considered view that there was need to corroborate this evidence because the accused said and Mable confirmed it that the accused was a rare person in the home and the only person who would have corroborated the same is Mable’s mother in law Fridah who unfortunately was not called as a witness. This court has to be very cautious when dealing with evidence of one (1) witness who did not even see the act but relied on voice identification which was also in doubt.

23. This court will therefore be very slow to point a finger at the accused for the deceased’s death although it is possible that the accused killed the deceased.  The issue of the deceased being a person who drinks local brew puts some doubt on the prosecution’s uncorroborated evidence together with voice identification by one witness. There is evidence on record that the accused was not living at home and it is thus doubtful whether Mable correctly identified the accused as she alleged.

24. I find that the prosecution has failed to prove that it is the accused who hit the deceased on the back of the head.  On the issue of mens rea, I find this has not been proved by any of the prosecution witnesses.  Although the issue of land was mentioned there is nowhere of the prosecution witnesses one has mentioned that there was a grudge between the deceased and accused over land.  Accused stated in his evidence that he was given land by his own father and that the deceased also had his own land and that they had no quarrels over the same.

Conclusion

25. For the above reasons and having taken into consideration the evidence by the accused, I find that the prosecution has not proved the case against the accused beyond reasonable doubt.  The accused is therefore acquitted of the charge of murder under Section 322(1) of the Criminal Procedure Code.  He should be released from custody forthwith unless he is otherwise lawfully being held.

Orders accordingly

Judgment delivered, dated and signed in open court at Kakamega this 5th day of October 2017

RUTH N. SITATI

JUDGE

In the presence of;-

………Mr. Ngetich (present)……………………………….for State

………Mr. Momanyi holding brief for Mr. Semani…….for accused

………Polycap Mukabwa……………………….Court Assistant