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JudgmentThe Republic VS HESBON NYAKUNDI OMAE AND PATRICK OGERO MATOKE7 min read

The Republic VS HESBON NYAKUNDI OMAE AND PATRICK OGERO MATOKE

High Court at Kisii High Court · · Kiarie W. Kiarie

  1. Hesbon Nyakundi Omae is charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.
  2. The particulars of the offence are that on the 21st day of October 2021, at the Nyauno village, Bogiakumu sub-location, Bogiakumu location in Kisii South Sub County of Kisii County murdered, Samwel Nyaundi.
  3. According to the medical evidence, the deceased died from two causes. One was ingestion of an organochloride-based pesticide, which was detected in his stomach and from renal laceration and ruptured spleen secondary to blunt trauma force.
  4. The accused was linked to his death on the allegation that the deceased implicated him in his condition before he died.
  5. The accused denied any involvement in the death of the deceased.
  6. The issues for determination are:
  7. Whether what was attributed to the deceased amounts to a dying declaration and
  8. Whether the prosecution proved their case against the accused.
  9. One of the reasons the accused was arrested and charged with this offence was that on the 16th day of October 2021, he was in the company of the deceased and others while taking chang’aa in various homes. This is not denied by the accused. He contended that he had no hand in the death of the deceased.
  10. Joseph Nyakundi Nyangoya (PW1) is the deceased's father.  His evidence was that the deceased informed him that Nyakundi forced him to drink some liquor, which was in an energy soda bottle. His evidence did not state where they were when he was being forced to take the drink. He was testifying about the events of the 16th day of October 2021.
  11. The evidence of Rebecca Kwamboka (PW2) was that she took the deceased to the hospital on the 17th day of October 2021, where he was diagnosed with malaria. He was given medication, and when she left, he was okay. In the evening, he got sick again, and when she went to see him, he informed her that if he died, she should know that Nyakundi had poisoned him.
  12. Section 33(a) of the Evidence Act Provides:

Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—

    1. relating to the cause of death

when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;

The evidence attributed to the deceased is, therefore, admissible.

  1. There have been numerous decisions on how to treat the evidence of a dying declaration. The earliest in our jurisdiction is the Court of Appeal for Eastern Africa in Pius Jasunga s/o Akumu vs Regina [1954] 21 EACA 331. In this case, the Court said corroboration supporting a conviction is not a legal requirement, but the court must be satisfied that the statement can be relied upon. It went on to say that there may be circumstances which go to show that the deceased could not have been mistaken in his identification of the accused; it is, generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject to cross-examination, unless there is satisfactory corroboration.
  2. I agree with this Court and its subsequent decisions. There is no proven way to show that at the point of death, the mind is induced by the most potent consideration to tell the truth, as observed in the case of Choge vs Republic [1985] KLR 1. It is documented in the Bible that one of the thieves crucified with Jesus remained sarcastic to the end, yet he was aware he was dying. For a dying declaration to be the basis for a conviction, it must be corroborated. This is what I am going to establish whether it was done.
  3. The evidence of PW1 and PW2 that the accused gave him chang’aa laced with poison was not supported by the evidence of Samwel Nyaundi (PW3), who testified that they took chang’aa from one cup. This is the impression the evidence of Edinah Nyabaro Okengo (PW5) gave. This added that when the deceased, the accused and PW3 went to their home to take chang’aa, the deceased was already very drunk, and she requested the other two not to allow him to drink.
  4. Curiously, Edinah Nyabaro Okengo (PW5) talked of an energy drink bottle the accused had in his pocket. Without evidence as to why she knew the bottle in the accused's pocket was a container of energy drink, it is not safe to rely on her assertion. The prosecutor ought to have elicited from her what drew her attention to the accused's pocket. Since this was not done, her evidence lacks probative value to corroborate what the deceased allegedly said.
  5. The deceased's widow is Veronicah Nyanchama Nyaundi (PW4). Her evidence was that on the 16th day of October 2021, her auntie, Esther Kwamboka, went and informed her that her husband was sleeping in her Napier grass. She went and found him very drunk. He had no visible injuries. He was, however, speaking, and he was weak. He never complained against anybody. The evidence of this witness contradicted that of PW1 and PW2, that the accused had forced him to take some alcohol, which was suspicious.
  6. The deceased was taken to hospital on the following day. One of the causes of the death of the deceased was ingestion of an organochloride-based pesticide. There was a hiatus in the prosecution evidence regarding how long the pesticide can take in the system after manifesting itself. An expert ought to have been called to shed light on this issue. My opinion is informed by the evidence that the deceased did not complain on the 16th day of October 2021. When he was taken to hospital on the following day, he was diagnosed with malaria. Curiously, it is apparent that no signs of poisoning were observed. The failure to call an expert was, therefore, fatal to the prosecution case.
  7. Another issue that went unexplained was why the deceased's wife, Veronicah Nyanchama Nyaundi (PW4), disappeared from home when she was sent to summon the deceased’s son. According to PW1's evidence, she left secretly for her home in Kitale. The prosecutor ought to have elicited the reason she left home secretly to avoid any speculations.
  8. I, therefore, find that the dying declaration of the deceased was not corroborated.
  9. After dismissing the dying declaration, I am left with circumstantial evidence against the accused. In the case of Mohamed & 3 Others vs Republic [2005]1KLR 722, Osiemo Judge explained what circumstantial evidence is as follows:

Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for a reasonable inference of the occurrence of the fact at issue. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

Earlier in the case of Republic vs Kipkering arap Koskei & Another 16 EACA 135, the Court of Appeal had the following to say on circumstantial evidence:

In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.

  1. in his defence, the accused recounted how he moved with the deceased on the material day.  His evidence agreed with the prosecution on how they went about their businesses, including taking chang’aa. He, however, denied the allegation that he was involved in the death of the deceased.
  2. I find that there is no sufficient evidence that was adduced to infer that he murdered the deceased herein. All that the prosecution adduced against him was evidence based on suspicion. The court of appeal in the case of Sawe vs Republic [2003] KLR 354 held as follows:

Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.

In the instant case, the evidence has not gone beyond suspicion, which, in my view, is very weak.

  1. Based on the preceding analysis of the evidence on record, the prosecution has failed to prove its case against the accused to the required standards. I accordingly acquit him of the offence of murder and set him free unless otherwise lawfully held.
    The Republic VS HESBON NYAKUNDI OMAE AND PATRICK OGERO MATOKE The Republic VS HESBON NYAKUNDI OMAE AND PATRICK OGERO MATOKE