' A. Introduction
The accused, Duke Kerosi Matoke , was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on the night of 17th and 18th June 2022, at Gekano Sub-location, Manga Sub-County, Nyamira County, he murdered Judith Kadogo , his wife.
He pleaded not guilty to the offence, and the matter proceeded for hearing. The prosecution called a total of four witnesses in support of its case. The accused testified on oath in his defence and did not call any witnesses.
B. Prosecution’s Case Summary
The prosecution evidence was as follows:
PW1 (Thomas Nyang’au Ombui) , the Assistant Chief of Gekano, testified that he received information on 18 th June 2022 that the accused had killed his wife. He went to the accused’s home where he found the deceased lying dead on the bed with visible injuries on the face, hands, and legs. He found the accused sitting inside the house. The police came and took both the accused and the deceased body to Magombo Police Station.
PW2 (David Nyangwara Mesa) , a neighbour, testified that he heard screams at around 7:00 a.m. and went to the scene. He saw many people gathered but did not enter the house. He found the accused outside his house and did not know who killed the deceased.
PW3 (Dr. Fredrick Goga) , the pathologist, performed the post-mortem examination on the deceased’s body on 24 th June 2022 and concluded that the cause of death was haemorrhage following blunt force trauma.
PW4 (PC Wesley Mutai Maritim) , a police officer, confirmed that the deceased’s body had bruises and injuries, and that both the accused and deceased were living together as husband and wife. He arrested the accused and took him to Manga Police Station.
C. Defence Case
When placed on his defence, the accused ( DW1 ) testified that he attended a funeral on the night of 17th/18th June 2022 and that upon returning home at 6:00 a.m., he found his house door half open and his wife unresponsive on the bed. He called for help and reported to the area assistant chief. He maintained that he had no disagreement with his wife and denied killing her.
He stated that they had been married since 2021, had two children, and that he had no motive for the killing as there was or quarrel between them.
D. Issues for Determination
I have considered the evidence presented by the prosecution and the accused. I find that the following issues arise for my determination: -
Whether the death of the deceased and the cause thereof were established.
Whether the accused person caused the death of the deceased by an unlawful act or omission.
Whether the accused acted with malice aforethought.
E. Analysis and Determination.
The accused person is facing a charge of murder contrary to Section 203 of the Penal Code, which section provides that: -
Any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.
The elements that the prosecution had to prove in a charge of murder are mens rea , that is, the guilty mind, and actus reus , that is, the guilty act that causes the death. It is trite that the standard of proof required in any criminal is that of beyond reasonable doubt. In the case of Joseph Kimani Njau vs. Republic [2014] eKLR , the Court of Appeal stated that: -
“In all criminal trials, both the actus reus and the men''s rea are required for the offence charged; they must be proved by the prosecution beyond a reasonable doubt. The trial court is obliged to ensure that before any conviction is entered, both actus reus and mens rea have been proven to the required standard.
In Anthony Ndegwa Ngari vs. Republic [2014] eKLR , the Court of Appeal identified that three crucial ingredients of the offence of murder that have to be proved for a conviction to be entered are as follows: -
“For the offence of murder, there are three elements that the prosecution must prove beyond a reasonable doubt to secure a conviction. They are: -
(a)the death of the deceased and the cause of that death
(b)that the accused committed the unlawful act which caused the death of the deceased and
(c)that the accused had the malice aforethought.”
Consequently, I will consider these elements of the offence to determine whether the prosecution has proved the charge against the accused beyond reasonable doubt.
(i) Death and Cause of Death
The post-mortem evidence by PW3 confirmed that the deceased died of haemorrhage due to blunt force trauma. I find that the fact of death and its cause were therefore proved beyond reasonable doubt.
(ii) Whether the Accused Caused the Death
I note that there was no direct evidence linking the accused to the murder as none of the four prosecution witnesses testified that they saw him committing the offence. The prosecution’s case therefore rested entirely on circumstantial evidence. In Abanga alias Onyango vs. Republic Cr. App No. 32 of 1990 (UR) , the Court of Appeal laid out the test for circumstantial evidence as follows: -
“The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; they must be of a definite tendency unerringly pointing to the guilt of the accused; and taken cumulatively should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and no one else.”
Similarly, in Republic vs. Elizabeth Onyango Ajwang [2018] eKLR , Wakiaga J. warned: -
“In a case depending largely upon circumstantial evidence, there is always danger that conjecture or suspicion may take the place of legal proof.”
In the present case, I find that the evidence falls short of the test established for circumstantial evidence as PW1 and PW4 gave contradictory accounts about the condition of the scene. While PW1 claimed that he saw blood stains and a bloody cooking stick at the scene, PW4 denied photographing the scene or recovering any possible murder weapon. PW2 , on the other hand, testified that he did not see any injuries on the body. I find that the above noted inconsistencies weaken the prosecution’s narrative.
Moreover, no forensic or DNA analysis was conducted on the alleged blood-stained stick or the accused’s clothing so as to establish their nexus with the accused. I also note that no specimen was collected from the accused or the deceased for comparison purposes. In David Ochieng Akech vs. Republic [2015] eKLR , it was held: -
“Where the prosecution’s evidence is riddled with glaring inconsistencies and contradictions going to the root of the charge, it should not be relied upon.”
My finding is that in the circumstances of this case, the contradictions in the prosecution’s evidence are so material that they render the evidence unreliable. In sum, I find that the prosecution’s case, amounts to mere suspicion. In Republic vs. MMN [2014] eKLR , the Court of Appeal held that mere suspicion, no matter how strong, cannot form the basis of a conviction.
(iii) Malice Aforethought
In view of my finding that the prosecution has not proved that the accused caused the death of the deceased, I find that the issue of malice aforethought does not arise.
F. Conclusion
The prosecution was required to prove its case beyond reasonable doubt. In this case, the totality of the evidence adduced leaves considerable doubt as to whether the accused caused the deceased’s death. My finding is that the contradictions, lack of direct evidence, and failure to carry out forensic investigations has the effect of weakening the case. In JOO vs. Republic [2015] eKLR ,
“It is better to acquit ten guilty persons than to convict one innocent person.”
I find that the prosecution has failed to prove its case beyond reasonable doubt and I make the following final orders: -
The charge of murder contrary to section 203 as read with section 204 of the Penal Code against Duke Kerosi Matoke is not proved.
The accused is acquitted under section 322(1) of the Criminal Procedure Code.
The accused shall be set at liberty forthwith, unless otherwise lawfully held.
'
The accused, Duke Kerosi Matoke , was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on the night of 17th and 18th June 2022, at Gekano Sub-location, Manga Sub-County, Nyamira County, he murdered Judith Kadogo , his wife.
He pleaded not guilty to the offence, and the matter proceeded for hearing. The prosecution called a total of four witnesses in support of its case. The accused testified on oath in his defence and did not call any witnesses.
B. Prosecution’s Case Summary
The prosecution evidence was as follows:
PW1 (Thomas Nyang’au Ombui) , the Assistant Chief of Gekano, testified that he received information on 18 th June 2022 that the accused had killed his wife. He went to the accused’s home where he found the deceased lying dead on the bed with visible injuries on the face, hands, and legs. He found the accused sitting inside the house. The police came and took both the accused and the deceased body to Magombo Police Station.
PW2 (David Nyangwara Mesa) , a neighbour, testified that he heard screams at around 7:00 a.m. and went to the scene. He saw many people gathered but did not enter the house. He found the accused outside his house and did not know who killed the deceased.
PW3 (Dr. Fredrick Goga) , the pathologist, performed the post-mortem examination on the deceased’s body on 24 th June 2022 and concluded that the cause of death was haemorrhage following blunt force trauma.
PW4 (PC Wesley Mutai Maritim) , a police officer, confirmed that the deceased’s body had bruises and injuries, and that both the accused and deceased were living together as husband and wife. He arrested the accused and took him to Manga Police Station.
C. Defence Case
When placed on his defence, the accused ( DW1 ) testified that he attended a funeral on the night of 17th/18th June 2022 and that upon returning home at 6:00 a.m., he found his house door half open and his wife unresponsive on the bed. He called for help and reported to the area assistant chief. He maintained that he had no disagreement with his wife and denied killing her.
He stated that they had been married since 2021, had two children, and that he had no motive for the killing as there was or quarrel between them.
D. Issues for Determination
I have considered the evidence presented by the prosecution and the accused. I find that the following issues arise for my determination: -
Whether the death of the deceased and the cause thereof were established.
Whether the accused person caused the death of the deceased by an unlawful act or omission.
Whether the accused acted with malice aforethought.
E. Analysis and Determination.
The accused person is facing a charge of murder contrary to Section 203 of the Penal Code, which section provides that: -
Any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.
The elements that the prosecution had to prove in a charge of murder are mens rea , that is, the guilty mind, and actus reus , that is, the guilty act that causes the death. It is trite that the standard of proof required in any criminal is that of beyond reasonable doubt. In the case of Joseph Kimani Njau vs. Republic [2014] eKLR , the Court of Appeal stated that: -
“In all criminal trials, both the actus reus and the men''s rea are required for the offence charged; they must be proved by the prosecution beyond a reasonable doubt. The trial court is obliged to ensure that before any conviction is entered, both actus reus and mens rea have been proven to the required standard.
In Anthony Ndegwa Ngari vs. Republic [2014] eKLR , the Court of Appeal identified that three crucial ingredients of the offence of murder that have to be proved for a conviction to be entered are as follows: -
“For the offence of murder, there are three elements that the prosecution must prove beyond a reasonable doubt to secure a conviction. They are: -
(a)the death of the deceased and the cause of that death
(b)that the accused committed the unlawful act which caused the death of the deceased and
(c)that the accused had the malice aforethought.”
Consequently, I will consider these elements of the offence to determine whether the prosecution has proved the charge against the accused beyond reasonable doubt.
(i) Death and Cause of Death
The post-mortem evidence by PW3 confirmed that the deceased died of haemorrhage due to blunt force trauma. I find that the fact of death and its cause were therefore proved beyond reasonable doubt.
(ii) Whether the Accused Caused the Death
I note that there was no direct evidence linking the accused to the murder as none of the four prosecution witnesses testified that they saw him committing the offence. The prosecution’s case therefore rested entirely on circumstantial evidence. In Abanga alias Onyango vs. Republic Cr. App No. 32 of 1990 (UR) , the Court of Appeal laid out the test for circumstantial evidence as follows: -
“The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; they must be of a definite tendency unerringly pointing to the guilt of the accused; and taken cumulatively should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and no one else.”
Similarly, in Republic vs. Elizabeth Onyango Ajwang [2018] eKLR , Wakiaga J. warned: -
“In a case depending largely upon circumstantial evidence, there is always danger that conjecture or suspicion may take the place of legal proof.”
In the present case, I find that the evidence falls short of the test established for circumstantial evidence as PW1 and PW4 gave contradictory accounts about the condition of the scene. While PW1 claimed that he saw blood stains and a bloody cooking stick at the scene, PW4 denied photographing the scene or recovering any possible murder weapon. PW2 , on the other hand, testified that he did not see any injuries on the body. I find that the above noted inconsistencies weaken the prosecution’s narrative.
Moreover, no forensic or DNA analysis was conducted on the alleged blood-stained stick or the accused’s clothing so as to establish their nexus with the accused. I also note that no specimen was collected from the accused or the deceased for comparison purposes. In David Ochieng Akech vs. Republic [2015] eKLR , it was held: -
“Where the prosecution’s evidence is riddled with glaring inconsistencies and contradictions going to the root of the charge, it should not be relied upon.”
My finding is that in the circumstances of this case, the contradictions in the prosecution’s evidence are so material that they render the evidence unreliable. In sum, I find that the prosecution’s case, amounts to mere suspicion. In Republic vs. MMN [2014] eKLR , the Court of Appeal held that mere suspicion, no matter how strong, cannot form the basis of a conviction.
(iii) Malice Aforethought
In view of my finding that the prosecution has not proved that the accused caused the death of the deceased, I find that the issue of malice aforethought does not arise.
F. Conclusion
The prosecution was required to prove its case beyond reasonable doubt. In this case, the totality of the evidence adduced leaves considerable doubt as to whether the accused caused the deceased’s death. My finding is that the contradictions, lack of direct evidence, and failure to carry out forensic investigations has the effect of weakening the case. In JOO vs. Republic [2015] eKLR ,
“It is better to acquit ten guilty persons than to convict one innocent person.”
I find that the prosecution has failed to prove its case beyond reasonable doubt and I make the following final orders: -
The charge of murder contrary to section 203 as read with section 204 of the Penal Code against Duke Kerosi Matoke is not proved.
The accused is acquitted under section 322(1) of the Criminal Procedure Code.
The accused shall be set at liberty forthwith, unless otherwise lawfully held.
'