State v Onyiengo [2022] KEHC 13477 (KLR)

State v Onyiengo (Criminal Case 111 of 2014) [2022] KEHC 13477 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13477 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case 111 of 2014

RPV Wendoh, J

October 6, 2022

Between

State

Prosecution

and

Simon Nchore Onyiengo

Accused

Judgment

1. By the information dated 14/2/2020, the accused, Simon Nchore Onyiego was charged with the offence of Murder contrary to section 203 as read with section 204 of the Penal code.

2. The particulars of the charge are that on 18/9/2013 at Nyamwinyi village in Bukira West Location Kuria sub-county, jointly with others not before the court murdered Andrew Chacha. The accused denied the charge and the case proceeded to hearing with the prosecution calling a total of six witnesses.

3. PW1 Charles Mwangaof Isebania did not know both the accused or deceased but on 18/8/2013 while at Isebania, his brother PW2 Charles Nyabiru who was herding cattle near River Kendwi called him that he had seen the body of a child in the river. PW1 reported to the police station and the area chief. He went to the scene together with police and the body was retrieved and taken to the mortuary. He noted a wound on the neck of the body of the deceased.

4. PW2 Charles Nyabiru confirmed finding the body in river Kundwi when herding cattle and called other people to see and later the police came and took the body away.

5. PW3 Prisila Mosoti Mokono, the mother of the deceased, Andrew Chacha identified accused as her son in law who was married to her daughter Elizabeth. PW3 recalled that on 15/9/2013, she was at her house at Sirare with her the deceased at about 7:45pm when she heard a knock on the door and the deceased opened, The deceased informed PW3 that it was the accused. PW3 greeted accused and he informed them that he had some luggage at the stage and needed the deceased to go and assist him carry. They left together but they never returned. When Elizabeth arrived home that night, and enquired on the whereabouts of the deceased, Elizabeth informed her that she should never let deceased go with accused because she had quarreled with accused.

6. They started searching for the deceased till his body was found near a river in Nyamwinyi. PW3 told the court that from the time accused left with the deceased, she next saw him at the Kisii Police Station.

7. PW4 Doctor Vitalis Owuor Kogutu a Medical officer, conducted the postmortem on the body of the deceased on 23/9/2013 after it was identified by Peterson Mosoti and David Ogeseke and a police officer. He found that deceased was 12 years old, with bruises and lacerations all over the body, head, neck, chest, forelimbs, abdomen and back of the trunk, Right ear was chopped off, lacerations on the anal area and rectum were bruised. Head, ears, thorax , liver and stomach intestine were bruised; right hyoid bone was fractured and small bone of the neck. He formed the opinion that the cause of death was asphyxia due to strangulation. According to PW 4 the body must have been deposited in the river when the child was already dead.

8. PW5 Peterson Mosoti as brother to PW3 and therefore an uncle to the deceased knew the accused as the husband to his niece, Elizabeth Kerubo. He recalled visiting PW3 on 18/9/2013 when he learned that accused left with the deceased on 15/9/2013 and they did not return home; that during that time, the accused was communicating with the family on phone that he was with the child in church that the child was not found till 23/9/2013 when a herder called to inform them that a child had been seen in the river; that he proceeded to the river and identified the body and the clothes which was used in strangling him the throat was still tied tightly round the neck. He was present during post mortem when it was noted that apart from the other injuries, the child had been sodomized.

9. PW5 also stated that even when the body of the child was retrieved the accused kept calling neighbours making threats.

10. PW6 CPL David Kwemui Ndiema accompanied CPL Kwabe to the murder scene on 18/9/2013. They found the deceased’s body partially immersed in water and the upper part was visible; that the body was identified by the relatives as that of Andrew Chacha. He observed that the right ear was chopped off, injuries to the head and neck had signs of strangulation. He learned from the deceased’s mother that the deceased was last seen with the accused and they started searching for accused. PW5 did the postmortem on 23/9/2013. He got information that accused had been seen in his home area in Gucha and he wrote an arrest order dated 31/5/2014 to the DCIO and on 15/11/2014, he was called by the DCIO Gucha informing him that the accused had been arrested and he collected him on 7/11/2014. Accused was arraigned in court for the charge of murder. Accused was convicted by J. Majanja but the first trial proceedings were set aside by Court of Appeal in Criminal Appeal No. 80 of 2014 and a fresh trial ordered; a fresh mental assessment was conducted on 14/2/2020 and this trial began.

11. After the close of the prosecution case, the accused was called upon to defend himself. He testified on oath that on 15/9/2013, he was at work in Nairobi, where he worked as a taxi driver. He also denied knowing Andrew Chacha. He admitted knowing his mother-in-law, Priscilla, PW3 and that she only had three children whom he knew; that in November 2014, he was at his rural home in Gucha because he was unwell when he was arrested. He denied having disagreed with his wife, Elizabeth; That he was framed because he sent Elizabeth to check on his son. Clinton who was staying with PW3 in Isebania and that somebody wanted to steal him.

12. After close of the defence case, Mr. Mwita, Counsel for the accused was allowed 14 days within which to file and serve his submissions but this Judgment is being written a month later and so far, no submissions have been filed by counsel and the court have therefore gone ahead to write its judgment based in the evidence in record. The accused faces a charge of murder under section 203 of the Penal code. To prove the said charge the prosecution has to prove beyond reasonable doubt the following:-1. Proof of death;2. Proof that the accused caused the omission or act that caused the death;3. That the accused had malice afterthought.

Proof of death 13. PW5 Peterson Mosoti identified the body of the deceased as his nephew before post mortem was performed by PW4. PW1 and PW2 saw the body of the deceased while in the river. PW6, the investigating officer and PW5 were present when the body of the deceased was retrieved from the river. PW4 testified to the injuries he found on the deceased’s body. PW5 and PW6 corroborated PW4’s findings. PW4 formed the opinion that the deceased died of asphyxiation due to strangulation. PW6 also observed the body and noted some marks around the deceased’s neck. PW5 seemed to exaggerate that some cloth was found round the deceased’s neck but it seems nobody else saw this cloth. Even PW6 the investigation officer never mentioned it, nor did PW5. .

14. I am satisfied that there is overwhelming evidence that the deceased who was aged twelve (12) years died of strangulation.

Whether Accused caused the death: 15. The case against the accused dependent upon circumstantial evidence because nobody saw the accused murder the deceased or throw him into the river. Circumstantial evidence is said to be the best evidence because it is drawn from surrounding circumstances and when closely examined, will accurately prove a fact. In Neema Mwandoro Ndurya v Republic (2008)eKLR, the Court of Appeal in reiterating the probative value of circumstantial evidence stated as follows:-"It is true that circumstantial evidence is often the best evidence as it is evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics as was said in R vTaylor Weaver and Donovan(19280 21 Cr. App. R. 20). But circumstantial evidence should be very closely examined before basis of a conviction on it.”

16. Again in Pon v Republic (2019) eKLR, the Court of Appeal stated this:-"Though not direct, circumstantial evidence, as this court stated inMusili Tulo v Republic Criminal Appeal 30 of 2013;“.. is as good as any evidence if it is properly evaluated and, as is usually put, it can prove a case with the accuracy of mathematics.”See also Teper v Republic(1052) ALL ER 480.

17. In a case depending entirely on circumstantial evidence, the court must, before arriving at a conviction, find that the inculpatory facts are incompatible with the innocence of the accused person and incapable of explanation upon any other hypothesis that the accused’s guilt.

18. The conditions that must be satisfied before a court can base a conviction on circumstantial evidence were set out in Abang’a alias Onyango vs. Republic Criminal Appeal No. 32 of 1990 as follows:"It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; (iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else.”See also Ahmad Abolfathi Mohammed &another v Republic(2018)eKLR

19. We have only the evidence of PW3 who told the court that Accused went to her house and asked the deceased to go help him carry luggage from the stage. Although the accused denied that he knew Andrew Chacha (the deceased) to be PW3’s child, PW5 corroborated PW3’s evidence that PW3 had been a child by that name. Accused confirmed that he had no grudge with his in laws, that is PW3. The explanation he gives for being framed i.e. that he had come for his son Clinton who was about to be stolen does not make any sense. He did not explain who was about to steal the said child and he had not raised such allegation when PW3, PW5 and PW6 testified. It came as an afterthought during the defence. The defence is an afterthought and is not believable.

20. Further, the accused raised an alibi defence, that he was in Nairobi on 15/9/2013 when the offence was allegedly committed. An alibi defence is raised when an accused alleges that he was not present at the scene but was at a different location. The law is clear, that even when an accused raises an alibi defence, he does not assume any duty to prove the truth or otherwise if the alibi. The burden always lies on the prosecution to prove the accused’s guilt. In R. vs. Sukha Singh s/o Wazir Singh &others(1939) 6 EACA 145 the former court of Appeal for Eastern African stated as follows:-"If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped".

21. In Criminal Appeal No 1 of 1998 –Festo Androa ASenua v Uganda, the court held that it is expected that the accused would raise his alibi defence early enough in the case to enable the prosecutor or investigating officer to enquire into the alibi or enable a response to it. The accused admitted that when this case was heard earlier, before another judge he never raised an alibi defence. It means that he is raising this alibi defence for the first time nine (9) years after he was charged. Having been raised belatedly that goes to the credibility of the defence and in my view is the alibi is an afterthought and unbelievable.

22. Under section 143 of the Evidence, a fact can be proved by the testimony of a single witness except where the law provides otherwise. In this case PW3 told the court that accused left with the deceased on 15/9/2013 and the deceased was found dead after three days.

23. The circumstantial evidence here is that the accused was the last person who was in company of the deceased person before meeting his death. Having believed the testimony of PW3, I find that the accused had an obligation to explain what happened to the deceased, as recognized under section 111 and 119 of the Evidence Act. Section 111(1) provides as follows:-"111. (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 accused person 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 defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.119. Thecourt may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case”

24. The above provisions were considered by the Court of Appeal in Peter Mugambi v Republic(2017) eKLR, where the court stated thus"In Douglas Thiongo Kibocha v Republic [2009] eKLR the court while construing section 111 (1) of the Evidence Act had this to say:-“When parliament enacted section 111 (1), above, it must have recognized that there are situations when an accused person must be called upon to offer an explanation on certain matters especially within his knowledge. Otherwise, the prosecution would not be able to conduct full investigations in such cases and the accused in the event, will escape punishment even when the circumstances suggest otherwise. Section 111(1), above, places an evidential burden on an accused to explain those matters which are especially within his own knowledge. It may happen that the explanation may be in the nature of an admission of a material fact.”

25. The deceased having been in company of the accused when he was last seen, the accused has an obligation to explain what happened to the deceased. He totally avoided doing so and instead raised a defence which I have dismissed as an afterthought and I will find as the Court of Appeal found in Peter Mugambi’s case (supra) applying the principles in Section 111 and 119 of the Evidence Act, that the evidence adduced at the trial taken cumulatively shifted the evidential burden on the accused to explain how the deceased met his death. The accused has failed to discharge that burden and this court is satisfied that the circumstantial evidence before the court is incapable of any other explanation except that the accused caused the death of the deceased seemingly to take revenge on his wife with whom he had disagreed.

Whether Accused had malice afterthought 26. Malice afterthought is defined in section 206 of the Penal Code which provides as follows:-“206 malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances:-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;b)Knowledge that the act or omission causing death will probably cause the death of or grievous harm to same person, whether the person is the person actually killed or not although such knowledge is accompanied by indifference. Whether death or grievously bodily harm is caused.c)an intent to commit a felony;d)an intention by the act or omission facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”

27. The elements that constitute malice afterthought were considered in the case of Republic v Tumbere s/o Ochen (1945) 12 EACA 63 which are as follows:-1)The nature of the weapon used;2)The manner in which it was used;3)The part of the body targeted;4)The nature of the injuries inflicted either in a single stab wound or multiple injuries.5)The conduct of the accused before, during and after the incident.”

28. In this case, those injuries inflicted on the deceased i.e. strangulation and fracture the neck bone accompanied by the numerous injuries that caused internal injuries were meant to end the deceased’s life. There was even evidence of sodomy. To add to that, the body was thrown into the river an act meant to conceal the death. The injuries inflicted and the attempt to conceal the murder clearly demonstrates that the accused did have the intention to murder and conceal the death which is evidence of malice afterthought.

29. In the end, I am satisfied that the accused lured his young brother in law Andrew Chacha from his home in the pretext that Andrew was going to help him carry some luggage and murdered him. I find the accused guilty of the charge of murder contrary to section 203 of the Penal Code and convict him accordingly under section 322 (1) Criminal Procedure Code.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 6TH DAY OF OCTOBER, 2022R. WENDOHJUDGEDelivered in the presence of:Mr. Mulama for StateMs. Akoya holding brief for Mr. Mwita for AccusedAccused PresentMs. Nyauke Court Assistant