A. Introduction
1. The accused person, Samson Ong'eta Nyangau, is charged with murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 Laws of Kenya. The particulars are that on the 25th day of March 2024 at Boochi Chache Sub-location, Ogembo Division, Gucha Sub-County within Kisii County, he murdered Ian Ong'eta, hereafter referred to as the deceased.
2. The accused pleaded not guilty. The matter proceeded to full hearing. The prosecution called eight witnesses. At the close of the prosecution case the court found that a prima facie case had been established and placed the accused on his defence under section 306(2) of the Criminal Procedure Code. The accused elected to give sworn testimony and called no witness.
3. The prosecution, through Mr. Koima, elected to rely on the evidence on record and did not file written submissions. The defence, through Mr. Marita, filed written submissions urging the court to find that the prosecution case was founded on suspicion and that the circumstantial evidence did not meet the legal threshold required for a conviction.
B. Summary of the Prosecution Evidence
4. PW1, Nemwel Nyangau, was a brother to the accused and an uncle to the deceased. He testified that on 24th March 2024 at about 5.30 p.m. he visited the accused's home. His reason for visiting was that the accused had earlier been unwell after allegedly taking some substance following alleged differences with his wife. PW1 found the accused and the deceased at home. The deceased was well. The accused was in the bedroom and complained of stomach pains. PW1 left after they had eaten.
5. PW1 returned to the accused's home the following morning, 25th March 2024, at about 7.30 a.m., in the company of one Jason. He found the accused in the bedroom. When he asked where the deceased was, the accused said the deceased had gone to school. PW1 left to prepare porridge for the accused. Shortly thereafter PW2, John Ong'eta Otucho, ran to PW1 and told him that he had seen the deceased at the pit latrine. PW1 proceeded to the accused's home and found the deceased lying at or near the unfinished pit latrine. PW1 observed that the deceased was dead and was wearing school uniform.
6. On cross-examination, PW1 conceded that he did not witness the accused or the child Robin take poison, and could not tell whether any alleged poisoning was deliberate or forced. He also stated that the body was found in an open place; that the compound was not fenced and had open access; that he did not see blood or signs of struggle; and that it was possible that the deceased had been killed elsewhere and the body dumped near the toilet. He further accepted that there was a possibility that another person, other than the accused, killed the child. He also stated that when the accused's wife had gone to Lebanon, the accused took care of the children and he had not heard that the accused had differed with the wife.
7. PW2, John Ong'eta Otucho, was a minor aged about 15 years. He testified that on 25th March 2024 he was on his way back home from school to collect examination money when he saw the deceased lying at the pit latrine. He said the toilet belonged to the accused and was open. He ran to call PW1. He said he could see inside the accused's compound because the compound was not fenced. On cross-examination, PW2 said the pit latrine was next to the road, the home was not fenced, and any passerby could access the pit latrine. He also said that when they went to the accused's house, they found him sleeping and he said the deceased had gone to school.
8. PW3, Athanas Mogere, was a clan elder. His evidence was that PW1 informed him that the deceased had been found lying at the toilet. PW3 went to the scene and found the deceased lying there. He stated that it appeared as if the deceased had been killed elsewhere and taken there because it had rained and there was no sign that the body had been rained on. The deceased had one gumboot and was in school uniform. PW3 did not see injuries on the deceased. On cross-examination, he said there was no sign of struggle, no blood and no mud at the scene, that the gumboot had no mud, that the toilet was next to the road and that there was no fence. He further stated that he did not see who killed the deceased and that he could not confirm that the accused had taken poison.
9. PW4, Inspector Henry Kimuma, was the Scene of Crime Officer. He attended the scene on 25th March 2024 and took photographs which were produced together with his certificate. The photographs showed the body and certain injuries, including an injury to the left thumb. On cross-examination, he stated that he neither saw any indication of struggle nor blood at the scene.
10. PW5, Dr. Samora Ocharo, conducted the post-mortem examination on the body of the deceased on 3rd April 2024 at Gucha Sub-County Hospital. He described the deceased as a boy of about 10 years. He observed, among other findings, bruises on the anterior and posterior neck and narrowing or looseness of tracheal rings. He concluded that the cause of death was asphyxia due to manual strangulation. On cross-examination, he stated that he was a general doctor and not a specialist pathologist and that he can capacity to conduct conclusive postmortem.
11. PW6, PC Barnabas Mutai, was the investigating officer. He testified that on 25th March 2024 at about 10.10 a.m., the area assistant chief and village elders arrived at Ogembo Police Station with the accused, who had been brought there because a crowd was baying for his blood. PW6 proceeded to the scene with the Scene of Crime Officer. They found the body of a young boy in school uniform with one gumboot near an unfinished pit latrine. PW6 searched the main house and found nothing significant. He observed a dry sufuria in which ugali had been cooked and sukuma wiki leaves in another house. The body was removed to Gucha Sub-County Hospital.
12. PW6 also testified that he established that another child of the accused, Robin, had been admitted at Lenmek Hospital and that the accused had previously been taken to Gucha Sub-County Hospital. He relied on medical reports which, according to him, referred to poisoning. He further testified that it emerged that the accused had quarrelled with his wife and that the wife was not at home when the incident was reported.
13. On cross-examination of PW6 he admitted that the police arrived at the scene about two hours after the body had been found and that there were many members of the public at the scene. He stated that it was possible that the scene had been interfered with before police arrival. He confirmed that the compound was not fenced and any member of the public could have accessed it. He said he did not notice signs of any struggle. He did not find the other gumboot despite a search. He stated that the search of the accused's house revealed nothing unusual and nothing significant at the scene. He did not lift footprints or fingerprints and no blood traces were found. He also stated that no witness saw the accused administer poison and no analysis was undertaken to confirm the presence of poison in the house. On the alleged matrimonial related motive, he stated that he did not establish where the wife was at the material time and the he could not recall her name. He admitted that heneither recorded her statement nor did he treat her conduct as suspicious. He said that no witness saw the accused strangle the deceased and that his evidence was wholly circumstantial.
14. PW7, Nancy Martins, a clinical officer at Gucha Sub-County Hospital, produced a medical report relating to the accused. The report had been prepared by Dr. Wilcliffe Guto, who did not testify, and the accused was said to have been seen by Geoffrey Masare, who also did not testify. PW7 testified that the accused had been diagnosed with toxic effects of organophosphate. On cross-examination, she stated that she did not personally attend to the accused; that no laboratory tests had been carried out; that organophosphate and carbamate are different classes of chemicals with different toxicological profiles; that a laboratory test is important for a definitive cause in suspected poisoning; and that she did not have a toxicology report or a laboratory report. She also said the medical report did not state that the patient had carried the alleged poison to the hospital.
15. PW8, Dr. Emmanuel Mukaba Masubuko, produced a summary report relating to Robin Nyangwanoa Ong'eta, another child of the accused. He said the child had been brought to the facility on 28th February 2024 with a history of taking a poisonous substance and was diagnosed with organophosphate poisoning with aspiration pneumonia. On cross-examination, he stated that he did not interact with the father; that nurses told him what the father had said; that he had not produced the minor's primary treatment documents; that aspiration pneumonia is not caused by poisoning only; that no laboratory investigations or toxicology report had been produced; that no chemical substance was indicated in his report; and that he had no scientific proof that it was a poison case.
C. The Defence Case
16. The accused testified as DW1. He denied the charge. He stated that he was a family man with three children, namely Ian, Robin and Trivian. He said his wife Grace had gone to Lebanon and had left him with the children and that he had been taking care of them. He denied that he had a strained relationship with his wife or that she had returned to Kenya and entered another relationship which angered him.
17. Regarding the events before the death of the deceased, the accused stated that on 22nd March 2024 he returned from work and found the deceased at home taking care of his siblings. The deceased informed him that Robin was not waking up. He stated that he, PW1 and PW3 took Robin to hospital. He denied taking poison or administering poison to his children and stated that he was later treated for ulcers.
18. On the morning of 25th March 2024, the accused testified that the deceased woke up and went to school, having taken tea which PW1 had made the previous night. He stated that the deceased left with other children who had called him and that he signed the deceased's homework book. He further stated that he was sick and was taken by one Philip Orwaru to hospital where he was treated for ulcers. Upon returning home he heard screams and was shown the deceased's body near the toilet. He stated that the body had one gumboot, had no school bag, and that nothing indicated that people had been there. He further stated that his compound was not fenced, that there is a public a road nearby, and that police searched his house and the toilet in his presence but found nothing incriminating. He stated that he had no intention to kill the deceased.
19. On cross-examination, the accused admitted that he was living with the deceased and Trivian at the material time while Robin was in hospital and his wife was not living with him. He denied that he had taken poison because his wife had left him for another man. In re-examination, he denied that he had differed with his wife and denied that he took poison gave poison to of his children.
D. Issues for Determination
20. From the charge, the evidence and the submissions, the issues for determination are the following:
a. Whether the fact and cause of death of the deceased were proved; sec
b. Whether the death was caused by an unlawful act or omission of the accused;
c. Whether malice aforethought was established against the accused within the meaning of section 206 of the Penal Code.
E. Applicable Law
21. Section 203 of the Penal Code defines murder as follows: '’Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.'’Section 204 provides the punishment for murder. Section 206 of the Penal Code sets out the circumstances under which malice aforethought is deemed to be established, including an intention to cause death or grievous harm, or knowledge that the act or omission causing death will probably cause death or grievous harm.
22. The prosecution must therefore prove, beyond reasonable doubt, the death of the deceased, that the death was caused by an unlawful act or omission, that the accused was the person who committed the unlawful act or omission, and that the accused acted with malice aforethought. These are the ingredients commonly restated in decisions such as Anthony Ndegwa Ngari v Republic [2014] eKLR.
23. The burden of proof in a criminal case remains throughout on the prosecution. The accused bears no obligation to prove his innocence. The principle in Woolmington v Director of Public Prosecutions [1935] AC 462 remains that it is the duty of the prosecution to prove the prisoner's guilt, subject only to limited statutory exceptions which do not arise here. Any reasonable doubt must be resolved in favour of the accused.
24. This case rests substantially, if not entirely, on circumstantial evidence. Circumstantial evidence can sustain a conviction, but only where the inculpatory facts are firmly and cogently established, where those facts unerringly point towards the guilt of the accused, and where the chain of circumstances is so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and by no one else. That test was stated in R v Kipkering arap Koske & another (1949) 16 EACA 135, Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990.
25. The said authorities assert that suspicion, however strong, cannot form the basis of a conviction, and that any co-existing circumstances which weaken or destroy the inference of guilt must be considered. The prosecution bears the burden of excluding any reasonable hypothesis consistent with the innocence of accused.
26. The court is also alive to section 143 of the Evidence Act, which provides that no particular number of witnesses is required for proof of any fact. The prosecution is not bound to call a superfluity of witnesses. However, where a witness appears material to an issue on which the prosecution itself relies, failure to call or adequately account for such a witness may, in appropriate cases, weaken the prosecution case or justify an adverse inference as recognized in Bukenya & Others v Uganda [1972] EA 549.
F. Analysis
27. I have carefully evaluated the prosecution’s case, defence and submissions by defence.
i. Whether death and cause of death were proved
28. The fact of death was not disputed and it was proved by the evidence of PW1, PW2, PW3, PW4, PW5 and PW6. PW1, PW2 and PW3 saw the deceased's body at the scene. PW4 photographed the body. PW6 removed the body to hospital. PW5 conducted the post-mortem examination. I am satisfied that the prosecution proved that Ian Ong'eta died.
29. PW5 found the cause of death as asphyxia due to manual strangulation. His evidence was supported by the neck bruises and tracheal findings which he observed during post-mortem. Although cross-examination established that PW5 was not a specialist pathologist, he denied that that a general doctor has no capacity to conduct forensic post mortem examination and this was not displaced by contrary evidence. PW5's opinion on the cause of death i.e manual strangulation was not challenged. The prosecution therefore proved that the deceased died as a result of an unlawful act.
ii. Whether the unlawful act was committed by the accused
30. The main question is whether the prosecution proved beyond reasonable doubt that the accused was the person who manually strangled the deceased or otherwise caused his death. There was no eye witness to the actus reus, no confession, no forensic evidence linking the accused to the deceased's death, there was also no evidence fingerprints, footprints, DNA, hair, nails, clothing, ligature, or other trace evidence was recovered and produced to connect the accused to the act of strangulation.
31. The prosecution relied on the following circumstances: the deceased was the accused's son; the accused lived with the deceased; PW1 saw the deceased and accused at the accused's home on the evening of 24th March 2024; on the morning of 25th March 2024 the accused said the deceased had gone to school; the deceased's body was thereafter found at a pit latrine associated with the accused's home; and the prosecution suggested that the accused had a motive arising from alleged domestic differences and alleged poisoning of himself and another child.
32. The fact that the accused was the deceased's father and caregiver, and that the deceased was found in accused's compound, are very important and raise suspicion. The accused also gave an explanation that the deceased had gone to school, yet the body was discovered nearby. However, suspicion is not proof. The court must test whether the proved circumstances exclude every reasonable hypothesis other than guilt.
33. In the instant case, prosecution did not establish the time of death. PW5 did not give an estimate of the time when the deceased died. The evidence does not therefore enable the court to determine whether death occurred before or after PW1's visit on the morning of 25th March 2024, or at what precise point the body came to be at the pit latrine. The absence of a proved time of death weakens the last-seen theory.
34. Secondly, the place where the body was found was not shown to be a secured or exclusive place. PW1 stated that the body was found in an open place, that there was no fence and that there was open access to any person or passerby. This was confirmed by PW2, PW3 and PW6. The prosecution therefore did not prove that the accused had exclusive access to the place where the body was found.
35. Thirdly, several witnesses gave evidence that raised the possibility that the body had been moved or dumped. PW1 accepted that it was possible the deceased was killed elsewhere and the body dumped near the toilet. PW3 stated that it looked as if the deceased had been killed elsewhere and taken there, particularly because it had rained and there was no sign that the body had been rained on. PW3 also observed no blood, no mud and no sign of struggle. PW4 saw no indication of struggle and no blood at the scene. PW6 also saw no sign of struggle and no blood traces. The court does not make a positive finding that the body was dumped, but these matters are co-existing circumstances which weaken the inference that the the deceased was killed where the body was found.
36. Fourthly, the investigations did not bridge the evidentiary gaps. PW6 confirmed that the police arrived about two hours after the body had been found and after a large crowd had gathered. He admitted that it was possible the scene had been interfered with before police arrival. He found nothing unusual in the accused's house. He did not recover the missing gumboot. He did not lift fingerprints or footprints. He did not recover or produce any trace evidence. In a case where no one witnessed the killing, the absence of such investigative linkage is significant.
37. Fifthly, the alleged poisoning theory did not supply a reliable evidential link to the murder. PW7 did not attend the accused and the persons who attended him did not testify. PW7 acknowledged that no laboratory or toxicology report existed. PW8's report concerning Robin was based on history and examination; he did not produce primary treatment notes, neither did he conduct laboratory investigations and expressly stated that he had no scientific proof that it was a poison case. Even if the court accepted that the accused and Robin were treated for suspected poisoning, that fact would not, by itself, prove that the accused killed the deceased by manual strangulation.
38. Sixthly, the alleged motive arising from the accused's matrimonial differences with his wife was not proved to the required standard. PW1 and PW6 spoke of matters relating to the accused's wife, but the wife was not called to testify. PW1 named the wife to accused as Grace Kwamboka and that she attended the post-mortem. PW6 stated that he did not know or had forgotten her name, did not establish where she was at the material time, and did not record her statement. I find that the motive was part of part of the circumstantial chain, which was not proved and thus it is still speculative.
39. Seventhly, accused in his defence said that deceased left for school that morning with other children and that he was unwell and was taken to hospital that morning by one accused was taken to hospital by one Philip Orwaru. The burden was upon the prosecution to prove that the deceased did not leave for school, to establish the time and place of death, and to connect the accused to the fatal act. In the present case, the body was found at an open, unfenced place next to a road; the time of death was not established; the possibility of dumping or third-party access was not excluded; and no forensic or scientific evidence connected the accused to the fatal act. The relevant circumstances were therefore not proved to be exclusively within the accused's knowledge. The puzzle herein would have been easily resolved by use of forensic investigations of the scene, the food and items found in the home of accused and at the scene, the cause of illness of Robin and accused. The investigations left gaps whose answer can only be found in the defence of accused.
40. Upon evaluating the evidence as a whole, I find that the chain of circumstantial evidence adduce by prosecution is incomplete. The evidence creates serious suspicion against the accused, but it does not unerringly point to him as the perpetrator to the exclusion of all other reasonable hypotheses. There are co-existing circumstances i.e public access to the scene, possible interference with the scene, absence of time of death, absence of forensic linkage, unproved poisoning, motive, and failure to pursue material lines of inquiry which weaken the chain relied upon by the prosecution. The court cannot convict merely because the accused's explanation is unsatisfactory or because he was the deceased's father and caregiver to the deceased.
iii. Whether malice aforethought was proved
41. It is trite law that actus reus, the act, by itself cannot constitute an offence of murder unless it is accompanied by mens rea, guilty mind. The act of manual strangulation of a child, if attributed to an accused person, would ordinarily be capable of establishing malice aforethought under section 206 of the Penal Code. The court would be entitled to infer an intention to cause death or grievous harm from the nature of the act and the part of the body affected, consistent with the principles in Republic v Tubere s/o Ochen (1945) 12 EACA 63.
42. In this case, however, the prosecution has not proved beyond reasonable doubt that the accused was the person who strangled the deceased. Since the actus reus has not been attributed to the accused beyond reasonable doubt, malice aforethought cannot be attributed to him. The third ingredient of murder therefore fails.
G. Conclusion
43. The death of Ian Ong'eta was tragic and was proved to have resulted from an unlawful act of manual strangulation. The court's duty, however, is not to speculate on who may have committed the offence, but to determine whether the prosecution has proved, by admissible and cogent evidence, that the accused committed it and did so with malice aforethought.
44. Having considered the entire record, the prosecution evidence, the defence, and the defence submissions, I find that the prosecution has proved the fact and cause of death, but has failed to prove beyond reasonable doubt that Samson Ong'eta Nyangau caused the death of the deceased. The case rests on suspicion and an incomplete chain of circumstantial evidence.
45. Accordingly, I find the accused, Samson Ong'eta Nyangau, NOT GUILTY of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He is hereby acquitted under section 322(1) of the Criminal Procedure Code.
46. The accused shall be set at liberty forthwith unless otherwise lawfully held.
47. Orders accordingly.
1. The accused person, Samson Ong'eta Nyangau, is charged with murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 Laws of Kenya. The particulars are that on the 25th day of March 2024 at Boochi Chache Sub-location, Ogembo Division, Gucha Sub-County within Kisii County, he murdered Ian Ong'eta, hereafter referred to as the deceased.
2. The accused pleaded not guilty. The matter proceeded to full hearing. The prosecution called eight witnesses. At the close of the prosecution case the court found that a prima facie case had been established and placed the accused on his defence under section 306(2) of the Criminal Procedure Code. The accused elected to give sworn testimony and called no witness.
3. The prosecution, through Mr. Koima, elected to rely on the evidence on record and did not file written submissions. The defence, through Mr. Marita, filed written submissions urging the court to find that the prosecution case was founded on suspicion and that the circumstantial evidence did not meet the legal threshold required for a conviction.
B. Summary of the Prosecution Evidence
4. PW1, Nemwel Nyangau, was a brother to the accused and an uncle to the deceased. He testified that on 24th March 2024 at about 5.30 p.m. he visited the accused's home. His reason for visiting was that the accused had earlier been unwell after allegedly taking some substance following alleged differences with his wife. PW1 found the accused and the deceased at home. The deceased was well. The accused was in the bedroom and complained of stomach pains. PW1 left after they had eaten.
5. PW1 returned to the accused's home the following morning, 25th March 2024, at about 7.30 a.m., in the company of one Jason. He found the accused in the bedroom. When he asked where the deceased was, the accused said the deceased had gone to school. PW1 left to prepare porridge for the accused. Shortly thereafter PW2, John Ong'eta Otucho, ran to PW1 and told him that he had seen the deceased at the pit latrine. PW1 proceeded to the accused's home and found the deceased lying at or near the unfinished pit latrine. PW1 observed that the deceased was dead and was wearing school uniform.
6. On cross-examination, PW1 conceded that he did not witness the accused or the child Robin take poison, and could not tell whether any alleged poisoning was deliberate or forced. He also stated that the body was found in an open place; that the compound was not fenced and had open access; that he did not see blood or signs of struggle; and that it was possible that the deceased had been killed elsewhere and the body dumped near the toilet. He further accepted that there was a possibility that another person, other than the accused, killed the child. He also stated that when the accused's wife had gone to Lebanon, the accused took care of the children and he had not heard that the accused had differed with the wife.
7. PW2, John Ong'eta Otucho, was a minor aged about 15 years. He testified that on 25th March 2024 he was on his way back home from school to collect examination money when he saw the deceased lying at the pit latrine. He said the toilet belonged to the accused and was open. He ran to call PW1. He said he could see inside the accused's compound because the compound was not fenced. On cross-examination, PW2 said the pit latrine was next to the road, the home was not fenced, and any passerby could access the pit latrine. He also said that when they went to the accused's house, they found him sleeping and he said the deceased had gone to school.
8. PW3, Athanas Mogere, was a clan elder. His evidence was that PW1 informed him that the deceased had been found lying at the toilet. PW3 went to the scene and found the deceased lying there. He stated that it appeared as if the deceased had been killed elsewhere and taken there because it had rained and there was no sign that the body had been rained on. The deceased had one gumboot and was in school uniform. PW3 did not see injuries on the deceased. On cross-examination, he said there was no sign of struggle, no blood and no mud at the scene, that the gumboot had no mud, that the toilet was next to the road and that there was no fence. He further stated that he did not see who killed the deceased and that he could not confirm that the accused had taken poison.
9. PW4, Inspector Henry Kimuma, was the Scene of Crime Officer. He attended the scene on 25th March 2024 and took photographs which were produced together with his certificate. The photographs showed the body and certain injuries, including an injury to the left thumb. On cross-examination, he stated that he neither saw any indication of struggle nor blood at the scene.
10. PW5, Dr. Samora Ocharo, conducted the post-mortem examination on the body of the deceased on 3rd April 2024 at Gucha Sub-County Hospital. He described the deceased as a boy of about 10 years. He observed, among other findings, bruises on the anterior and posterior neck and narrowing or looseness of tracheal rings. He concluded that the cause of death was asphyxia due to manual strangulation. On cross-examination, he stated that he was a general doctor and not a specialist pathologist and that he can capacity to conduct conclusive postmortem.
11. PW6, PC Barnabas Mutai, was the investigating officer. He testified that on 25th March 2024 at about 10.10 a.m., the area assistant chief and village elders arrived at Ogembo Police Station with the accused, who had been brought there because a crowd was baying for his blood. PW6 proceeded to the scene with the Scene of Crime Officer. They found the body of a young boy in school uniform with one gumboot near an unfinished pit latrine. PW6 searched the main house and found nothing significant. He observed a dry sufuria in which ugali had been cooked and sukuma wiki leaves in another house. The body was removed to Gucha Sub-County Hospital.
12. PW6 also testified that he established that another child of the accused, Robin, had been admitted at Lenmek Hospital and that the accused had previously been taken to Gucha Sub-County Hospital. He relied on medical reports which, according to him, referred to poisoning. He further testified that it emerged that the accused had quarrelled with his wife and that the wife was not at home when the incident was reported.
13. On cross-examination of PW6 he admitted that the police arrived at the scene about two hours after the body had been found and that there were many members of the public at the scene. He stated that it was possible that the scene had been interfered with before police arrival. He confirmed that the compound was not fenced and any member of the public could have accessed it. He said he did not notice signs of any struggle. He did not find the other gumboot despite a search. He stated that the search of the accused's house revealed nothing unusual and nothing significant at the scene. He did not lift footprints or fingerprints and no blood traces were found. He also stated that no witness saw the accused administer poison and no analysis was undertaken to confirm the presence of poison in the house. On the alleged matrimonial related motive, he stated that he did not establish where the wife was at the material time and the he could not recall her name. He admitted that heneither recorded her statement nor did he treat her conduct as suspicious. He said that no witness saw the accused strangle the deceased and that his evidence was wholly circumstantial.
14. PW7, Nancy Martins, a clinical officer at Gucha Sub-County Hospital, produced a medical report relating to the accused. The report had been prepared by Dr. Wilcliffe Guto, who did not testify, and the accused was said to have been seen by Geoffrey Masare, who also did not testify. PW7 testified that the accused had been diagnosed with toxic effects of organophosphate. On cross-examination, she stated that she did not personally attend to the accused; that no laboratory tests had been carried out; that organophosphate and carbamate are different classes of chemicals with different toxicological profiles; that a laboratory test is important for a definitive cause in suspected poisoning; and that she did not have a toxicology report or a laboratory report. She also said the medical report did not state that the patient had carried the alleged poison to the hospital.
15. PW8, Dr. Emmanuel Mukaba Masubuko, produced a summary report relating to Robin Nyangwanoa Ong'eta, another child of the accused. He said the child had been brought to the facility on 28th February 2024 with a history of taking a poisonous substance and was diagnosed with organophosphate poisoning with aspiration pneumonia. On cross-examination, he stated that he did not interact with the father; that nurses told him what the father had said; that he had not produced the minor's primary treatment documents; that aspiration pneumonia is not caused by poisoning only; that no laboratory investigations or toxicology report had been produced; that no chemical substance was indicated in his report; and that he had no scientific proof that it was a poison case.
C. The Defence Case
16. The accused testified as DW1. He denied the charge. He stated that he was a family man with three children, namely Ian, Robin and Trivian. He said his wife Grace had gone to Lebanon and had left him with the children and that he had been taking care of them. He denied that he had a strained relationship with his wife or that she had returned to Kenya and entered another relationship which angered him.
17. Regarding the events before the death of the deceased, the accused stated that on 22nd March 2024 he returned from work and found the deceased at home taking care of his siblings. The deceased informed him that Robin was not waking up. He stated that he, PW1 and PW3 took Robin to hospital. He denied taking poison or administering poison to his children and stated that he was later treated for ulcers.
18. On the morning of 25th March 2024, the accused testified that the deceased woke up and went to school, having taken tea which PW1 had made the previous night. He stated that the deceased left with other children who had called him and that he signed the deceased's homework book. He further stated that he was sick and was taken by one Philip Orwaru to hospital where he was treated for ulcers. Upon returning home he heard screams and was shown the deceased's body near the toilet. He stated that the body had one gumboot, had no school bag, and that nothing indicated that people had been there. He further stated that his compound was not fenced, that there is a public a road nearby, and that police searched his house and the toilet in his presence but found nothing incriminating. He stated that he had no intention to kill the deceased.
19. On cross-examination, the accused admitted that he was living with the deceased and Trivian at the material time while Robin was in hospital and his wife was not living with him. He denied that he had taken poison because his wife had left him for another man. In re-examination, he denied that he had differed with his wife and denied that he took poison gave poison to of his children.
D. Issues for Determination
20. From the charge, the evidence and the submissions, the issues for determination are the following:
a. Whether the fact and cause of death of the deceased were proved; sec
b. Whether the death was caused by an unlawful act or omission of the accused;
c. Whether malice aforethought was established against the accused within the meaning of section 206 of the Penal Code.
E. Applicable Law
21. Section 203 of the Penal Code defines murder as follows: '’Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.'’Section 204 provides the punishment for murder. Section 206 of the Penal Code sets out the circumstances under which malice aforethought is deemed to be established, including an intention to cause death or grievous harm, or knowledge that the act or omission causing death will probably cause death or grievous harm.
22. The prosecution must therefore prove, beyond reasonable doubt, the death of the deceased, that the death was caused by an unlawful act or omission, that the accused was the person who committed the unlawful act or omission, and that the accused acted with malice aforethought. These are the ingredients commonly restated in decisions such as Anthony Ndegwa Ngari v Republic [2014] eKLR.
23. The burden of proof in a criminal case remains throughout on the prosecution. The accused bears no obligation to prove his innocence. The principle in Woolmington v Director of Public Prosecutions [1935] AC 462 remains that it is the duty of the prosecution to prove the prisoner's guilt, subject only to limited statutory exceptions which do not arise here. Any reasonable doubt must be resolved in favour of the accused.
24. This case rests substantially, if not entirely, on circumstantial evidence. Circumstantial evidence can sustain a conviction, but only where the inculpatory facts are firmly and cogently established, where those facts unerringly point towards the guilt of the accused, and where the chain of circumstances is so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and by no one else. That test was stated in R v Kipkering arap Koske & another (1949) 16 EACA 135, Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990.
25. The said authorities assert that suspicion, however strong, cannot form the basis of a conviction, and that any co-existing circumstances which weaken or destroy the inference of guilt must be considered. The prosecution bears the burden of excluding any reasonable hypothesis consistent with the innocence of accused.
26. The court is also alive to section 143 of the Evidence Act, which provides that no particular number of witnesses is required for proof of any fact. The prosecution is not bound to call a superfluity of witnesses. However, where a witness appears material to an issue on which the prosecution itself relies, failure to call or adequately account for such a witness may, in appropriate cases, weaken the prosecution case or justify an adverse inference as recognized in Bukenya & Others v Uganda [1972] EA 549.
F. Analysis
27. I have carefully evaluated the prosecution’s case, defence and submissions by defence.
i. Whether death and cause of death were proved
28. The fact of death was not disputed and it was proved by the evidence of PW1, PW2, PW3, PW4, PW5 and PW6. PW1, PW2 and PW3 saw the deceased's body at the scene. PW4 photographed the body. PW6 removed the body to hospital. PW5 conducted the post-mortem examination. I am satisfied that the prosecution proved that Ian Ong'eta died.
29. PW5 found the cause of death as asphyxia due to manual strangulation. His evidence was supported by the neck bruises and tracheal findings which he observed during post-mortem. Although cross-examination established that PW5 was not a specialist pathologist, he denied that that a general doctor has no capacity to conduct forensic post mortem examination and this was not displaced by contrary evidence. PW5's opinion on the cause of death i.e manual strangulation was not challenged. The prosecution therefore proved that the deceased died as a result of an unlawful act.
ii. Whether the unlawful act was committed by the accused
30. The main question is whether the prosecution proved beyond reasonable doubt that the accused was the person who manually strangled the deceased or otherwise caused his death. There was no eye witness to the actus reus, no confession, no forensic evidence linking the accused to the deceased's death, there was also no evidence fingerprints, footprints, DNA, hair, nails, clothing, ligature, or other trace evidence was recovered and produced to connect the accused to the act of strangulation.
31. The prosecution relied on the following circumstances: the deceased was the accused's son; the accused lived with the deceased; PW1 saw the deceased and accused at the accused's home on the evening of 24th March 2024; on the morning of 25th March 2024 the accused said the deceased had gone to school; the deceased's body was thereafter found at a pit latrine associated with the accused's home; and the prosecution suggested that the accused had a motive arising from alleged domestic differences and alleged poisoning of himself and another child.
32. The fact that the accused was the deceased's father and caregiver, and that the deceased was found in accused's compound, are very important and raise suspicion. The accused also gave an explanation that the deceased had gone to school, yet the body was discovered nearby. However, suspicion is not proof. The court must test whether the proved circumstances exclude every reasonable hypothesis other than guilt.
33. In the instant case, prosecution did not establish the time of death. PW5 did not give an estimate of the time when the deceased died. The evidence does not therefore enable the court to determine whether death occurred before or after PW1's visit on the morning of 25th March 2024, or at what precise point the body came to be at the pit latrine. The absence of a proved time of death weakens the last-seen theory.
34. Secondly, the place where the body was found was not shown to be a secured or exclusive place. PW1 stated that the body was found in an open place, that there was no fence and that there was open access to any person or passerby. This was confirmed by PW2, PW3 and PW6. The prosecution therefore did not prove that the accused had exclusive access to the place where the body was found.
35. Thirdly, several witnesses gave evidence that raised the possibility that the body had been moved or dumped. PW1 accepted that it was possible the deceased was killed elsewhere and the body dumped near the toilet. PW3 stated that it looked as if the deceased had been killed elsewhere and taken there, particularly because it had rained and there was no sign that the body had been rained on. PW3 also observed no blood, no mud and no sign of struggle. PW4 saw no indication of struggle and no blood at the scene. PW6 also saw no sign of struggle and no blood traces. The court does not make a positive finding that the body was dumped, but these matters are co-existing circumstances which weaken the inference that the the deceased was killed where the body was found.
36. Fourthly, the investigations did not bridge the evidentiary gaps. PW6 confirmed that the police arrived about two hours after the body had been found and after a large crowd had gathered. He admitted that it was possible the scene had been interfered with before police arrival. He found nothing unusual in the accused's house. He did not recover the missing gumboot. He did not lift fingerprints or footprints. He did not recover or produce any trace evidence. In a case where no one witnessed the killing, the absence of such investigative linkage is significant.
37. Fifthly, the alleged poisoning theory did not supply a reliable evidential link to the murder. PW7 did not attend the accused and the persons who attended him did not testify. PW7 acknowledged that no laboratory or toxicology report existed. PW8's report concerning Robin was based on history and examination; he did not produce primary treatment notes, neither did he conduct laboratory investigations and expressly stated that he had no scientific proof that it was a poison case. Even if the court accepted that the accused and Robin were treated for suspected poisoning, that fact would not, by itself, prove that the accused killed the deceased by manual strangulation.
38. Sixthly, the alleged motive arising from the accused's matrimonial differences with his wife was not proved to the required standard. PW1 and PW6 spoke of matters relating to the accused's wife, but the wife was not called to testify. PW1 named the wife to accused as Grace Kwamboka and that she attended the post-mortem. PW6 stated that he did not know or had forgotten her name, did not establish where she was at the material time, and did not record her statement. I find that the motive was part of part of the circumstantial chain, which was not proved and thus it is still speculative.
39. Seventhly, accused in his defence said that deceased left for school that morning with other children and that he was unwell and was taken to hospital that morning by one accused was taken to hospital by one Philip Orwaru. The burden was upon the prosecution to prove that the deceased did not leave for school, to establish the time and place of death, and to connect the accused to the fatal act. In the present case, the body was found at an open, unfenced place next to a road; the time of death was not established; the possibility of dumping or third-party access was not excluded; and no forensic or scientific evidence connected the accused to the fatal act. The relevant circumstances were therefore not proved to be exclusively within the accused's knowledge. The puzzle herein would have been easily resolved by use of forensic investigations of the scene, the food and items found in the home of accused and at the scene, the cause of illness of Robin and accused. The investigations left gaps whose answer can only be found in the defence of accused.
40. Upon evaluating the evidence as a whole, I find that the chain of circumstantial evidence adduce by prosecution is incomplete. The evidence creates serious suspicion against the accused, but it does not unerringly point to him as the perpetrator to the exclusion of all other reasonable hypotheses. There are co-existing circumstances i.e public access to the scene, possible interference with the scene, absence of time of death, absence of forensic linkage, unproved poisoning, motive, and failure to pursue material lines of inquiry which weaken the chain relied upon by the prosecution. The court cannot convict merely because the accused's explanation is unsatisfactory or because he was the deceased's father and caregiver to the deceased.
iii. Whether malice aforethought was proved
41. It is trite law that actus reus, the act, by itself cannot constitute an offence of murder unless it is accompanied by mens rea, guilty mind. The act of manual strangulation of a child, if attributed to an accused person, would ordinarily be capable of establishing malice aforethought under section 206 of the Penal Code. The court would be entitled to infer an intention to cause death or grievous harm from the nature of the act and the part of the body affected, consistent with the principles in Republic v Tubere s/o Ochen (1945) 12 EACA 63.
42. In this case, however, the prosecution has not proved beyond reasonable doubt that the accused was the person who strangled the deceased. Since the actus reus has not been attributed to the accused beyond reasonable doubt, malice aforethought cannot be attributed to him. The third ingredient of murder therefore fails.
G. Conclusion
43. The death of Ian Ong'eta was tragic and was proved to have resulted from an unlawful act of manual strangulation. The court's duty, however, is not to speculate on who may have committed the offence, but to determine whether the prosecution has proved, by admissible and cogent evidence, that the accused committed it and did so with malice aforethought.
44. Having considered the entire record, the prosecution evidence, the defence, and the defence submissions, I find that the prosecution has proved the fact and cause of death, but has failed to prove beyond reasonable doubt that Samson Ong'eta Nyangau caused the death of the deceased. The case rests on suspicion and an incomplete chain of circumstantial evidence.
45. Accordingly, I find the accused, Samson Ong'eta Nyangau, NOT GUILTY of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He is hereby acquitted under section 322(1) of the Criminal Procedure Code.
46. The accused shall be set at liberty forthwith unless otherwise lawfully held.
47. Orders accordingly.