Introduction
Lesaya Ole Tasuna and Erick Odhiambo Ouko accused persons (hereinafter referred to as Accused 1 & Accused 2 respectively) are jointly 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 night 28th and 29th January 2015 at Neissut Location, Njoro Sub -county within Nakuru County, they jointly and unlawfully murdered Masambe Ole Tanini.
The accused persons pleaded not guilty and the trial commenced and in order to discharge the burden of proof under Section 107(1) of the Evidence Act, the prosecution tendered evidence of nine witnesses. On being placed on their defence, accused 1 adduced sworn testimony while Accused 2 gave unsworn testimony. Apart from their testimonies, they did not call any witnesses.
The Evidence
PW1 was Alfred Muma Saina, he is a boda boda operator. He testified that 28th January 2015, his sister Margaret called him at 9:00 pm and requested him to go and stand in for her at her bar known by the name “Nyamu bar” since she had a young child. He went there and replaced her at the counter where she was working and he found the two accused persons herein and the deceased seated at the bar. He proceeded to serve them. At about 10:00 pm, he began to close up and the two accused person left leaving behind the deceased dozing in the bar. He decided to call them to come for him. Both accused returned to the bar and woke up the deceased and they left with him. He closed the bar. While going home, he met one lady by the name Hellen Chebet (Pw4) and with a man whom he did not know. On the next morning, at about 9:00 am, he saw a number of people going towards Centre Juu. He was told that a man had been killed. He decided to also go to follow the said people, on reaching there, he noted that the man who was lying dead was one of the men whom he had served in the bar the previous night. He noted that deceased had cuts on the head and neck and stab wounds in the chest.
On being cross examined, he reiterated that the two accused persons had left the bar together. He also reiterated that while going home he met Helen with another man whom he did not know. He was firm that he did not know what happened after the accused person and the deceased person left the bar.
PW2 Jesica Cherono recalled that on 28th January, 2015 she went to a bar known as “kwa Nyamu” at 11 :00 pm. She stayed in the bar for a short while and the bar was closed. She left the bar with her friend called Hellen (Pw4). While on their way home her friend told her to run as the two accused wanted to follow her. She decided to run home. On reaching where she found her husband and they slept. The next morning, Hellen and the area chief went to her house and asked her if she had seen deceased with the accused herein. She told them that she did not know deceased and so she could not tell whether he was in the bar or not. She disclosed that when she went to the bar she found Hellen with the 2 accused.
She further stated that she knew nothing about this case.
PW3 Joseph Rotich Kones is the chief Neissut Location. He recalled that on 29th January, 2015 he received a call from his wife informing him that she was on her way to school when she saw a crowd of people near Full Gospel Church. He immediately took a boda boda and went to the scene where he found a man lying dead. He immediately called, the police. He also informed the Assistant County Commissioner and DCIO Njoro. The Police arrived with their vehicle took photographs of the body and took it away. He stated that the body had multiple cuts and three stab wounds on the chest. He disclosed the body lay on a pool of blood. He stated that there was one hundred shilling note and a Bottle of Horizon beer next to the body.
He went on to testify that he gathered that the accused and deceased were spotted drinking together at Nyamu bar the previous night and so he proceeded to the said bar. He was not told of any incident in the bar. He testified that he knew that the accused person had come to his location from Suswa two weeks earlier to graze his cattle. He stated too that he never heard of any dispute between the three save that he had been told that the 2nd accused person and the deceased had a debt issue which he did not follow up on.
On cross-examination he reiterated that in as much as he had been told that the 2nd accused person and the deceased had a debt problem no report had been made to him. He disclosed that the deceased and the two accused persons lived together in the same compound in temporary structures. He discovered that they lived together when he visited their home.
PW4 was Hellen Chebet a resident of Nassuit. She recalled that 28th January 2015 she left her house at 6:00 pm and went to Nyamu bar. She straight away went to the counter where she found her friend Lydia drinking and joined her. She bought herself Keg beer. Later on Pw2 joined them. After sometime the 2nd Accused person left his table and came to their table and started conversing with Pw2. She moved aside to let them talk. Thereafter the deceased PW2 called PW2 and she went to him and had a chat and thereafter she returned back and continued to drink with the 2nd accused person. She disclosed that the two accused persons had been drinking together on the same table. The bar man later alerted every one that he intended to close the bar. The deceased had dozed off by then. The waiter told the two accused to take him with them. She then went home to sleep. The next day she woke and later heard people say there was a dead body had been found near the church. She went to the scene with one Ngina and found the body of deceased with cuts on the head, face and nose and chest.
She testified further that the deceased was alive and well when they left the bar. She said that deceased left the bar with all of them. It was also her testimony that when they parted, the deceased went with the 2 accused.
When cross-examined she stated that it was the first time to see the two accused persons when she went to the bar. She disclosed that the two accused persons and the deceased came to the bar after her. He stated that the accused persons sat with the deceased on the same table and were all drinking happily. Also that she did not hear what Jessica and 2nd accused discussed. She was firm that when the bar was closed they all left. She reiterated that accused persons left with the deceased person when they parted ways. She however stated that she could not tell what happened between the deceased and the two accused persons since they had no quarrel while at the bar. She disclosed that they were all talking as friends.
PW5 was one Mataki Ole Nkeiya Patiop alias Luka. He stated he is a herdsman from Suswa and that at the material time he was staying near Neissut center. It was his testimony that he knew the two accused persons by appearance and did not know their names. He however stated that he knew the deceased well because he was his neighbor and his in-law. He recalled that on 29th January, 2015 he heard people saying that a man had been killed at Neissuit Center. He went to Neissut Center to find out what was happening. He viewed the body and identified it to be that of deceased. He revealed that the deceased persons had cuts on the neck and on one hand and bruises on the face. He did see any weapon at the scene. The Area chief who was present proceeded to call police to the scene of crime. He stated that he did not find accused persons where the body was. He however stated that some people had seen the accused persons with the deceased the previous night in a bar taking bear.
PW6 was one Joseph Lesingo, the Assistant Chief, Neissut. He recalled that on 29th January, 2015 he received a call from a church elder who told him that a man had been killed few kilometers from the church. He boarded his motor bike and rushed to scene where found a crowd of people surrounding the body of the deceased which had cuts on the face and buns to the stomach. He also found Kshs.100/- note and a stick near the body. He proceeded to call the OCS of the nearby police station. He also inquired about the home of the victim and proceeded there. On his way just few meters from the scene, he met the two accused persons who were all heading towards the scene. He told them that a man had been found dead near the church. He went back to where the body was with accused. He later on inquired about who had last been seen with the deceased person and was told that the two accused persons were the last persons to be seen with the accused person. When he asked the 2nd accused person whether he had been with the deceased person, he told him that he had left the bar together with deceased but left him on the way. Since the 2nd accused person had yielded that he was the last person seen with the accused person he arrested him and took him to the nearest police station. He however indicated that he did not know why the first accused person was later arrested.
PW7 was one George Biketi, a Medical Superintendent at Nakuru PGH Annex Hospital. He produced the post mortem report for the body of Masambe Ole Tanini, (the deceased herein) which was done on 30/1/2015 at the Egerton University Funeral Home. He testified that he was stepping in for Dr. Wainaina who performed the post mortem and said he knew the said doctor as they have worked together for 6 years and he was familiar with his hand writing and signature. He said the Dr. Wainaina examined the body they found the body had 6 cut wounds on the head. The first one was 15 x 2 cm over the temporal parietal region; the 2nd one was 21 x 2 cm extending from the left orbit laterally to the ear with a fractured skull. The 3rd, 4th and 5th were on the occipital region. It was also established there was also a deep cut on the next on the trachea. The doctor also saw two penetrating injuries on the chest and a deep cut on the arm; the respiratory system had 2 penetrating chest injuries. The chest cavity was exposed with the right lung collapsed. There were severed sub-mandibular vessels. The other systems were intact. On the head, there was a fracture of the skull and injured brain. The spinal column was normal. Dr. Wainaina therefore concluded that the cause of death was as result of severe head injury with skull fracture caused by multiple blows by sharp objects as well as hyperemic shock due to massive hemorrhage. He stated the report indicated that the police officer took clothes of the deceased that were soaked in blood for matching with blood on the suspects' clothes.
During cross examination he said that blood stained clothes were collected for matching with the suspects’ blood stained clothes. He reiterated that a sharp object was used to assault the deceased. He stated that there was a possibility that deceased was attacked by one person and that the weapon was not availed by police officer in this instance. He yielded that the report did not disclose the estimated time of death as required.
PW8 was PC Sanga Tinje, based at Njoro Sub - county DCI office as an investigator. He indicated that he was the investigating officer in this matter. He recalled that on 29th January 2015 he received a report on the phone from Chief Neissut Location who informed him that a body had been spotted near a church. He also received a call from Njoro OCS with the same information. He proceeded to the scene with a colleague by the name Florence Kieti. Upon arriving they found a body of an African male with several injuries on the head, neck and chest. Next to the body there was a stick and a liquor bottle which was partly drank and Ksh.100/= note. They looked around to see if could get the weapon used but they could not find only. He testified that from his observation of the body it seemed that a sharp object had been used to inflict the injuries. They moved the body to Egerton University Funeral Home. The body was identified to be that of Masambe a herdsman whom he found out that he had come from Duka Moja near Ntulele to look for Green pastures for his cows due to drought in his said home area. He had moved to the area with other herdsmen including the two Accused persons herein.
In his investigations he gathered that Eric (2nd Accused) had a grudge with Deceased. He had sold maize to Deceased and then stole it. They resolved the matter amicably. He also learnt that Eric had at one time stolen unga from Deceased and this issue as at the date of the death of deceased had not yet been solved. The 1st Accused also had a debt of Kshs. 300/= owed to deceased which on material day, he had told deceased he wanted to pay.
He discovered too that on the material day, the 1st accused person went with deceased to a pub called Nyamu's bar in Neissut. They started drinking and were later joined by Erick (the 2nd accused person). However, the deceased refused to sit with him. When the club closed, 1st Accused paid the bill. 1st Accused went out with the Deceased. The 2nd Accused had gone earlier. He said that what happened until the following day when the deceased was found dead was not clear.
He went on to testify that investigations showed that on the next morning, the 1st Accused went to where they were keeping animals and alleged that he didn't find the deceased. The 2nd Accused woke up early in the morning which was unusual and he was seen going to the river. They were both arrested by the police in Nessuit after they failed to explain where they had left deceased. From the other statements recorded, he concluded that the two of them were responsible for the death of the Deceased. He reiterated that they never recovered he murder weapon.
During Cross examination, he said that he observed the body and concluded that a sharp object had been used to cause the fatal injuries but the same was never recovered. He disclosed that the stick that was found closer to the body was not used to kill the deceased. He stated that made the recommendation to charge the Accused persons based on the facts that the Accused persons and the Deceased lived in the same home. He said that he gathered from a shepherd who lived in the same home with deceased and the accused persons that Eric did not have a good relationship with the deceased
He stated too that the two accused persons were with the deceased a day before he died day he died but he did not reach home. He stated that when 2nd accused was asked by one of the shepherds where the deceased was, he said that he left him on the way and he headed home. He stated further that the boma where the persons stayed was about 4 kms from the bar. He also stated further that the body was found in a church compound which was on the west side of the bar and 2km away from the home of accused.
He disclosed that deceased’s clothes were blood stained. The clothes were taken by the family of the Deceased said that customarily they had to take the clothes with them because of the manner of death. He contended that if it were not for the customs he would have sent the clothes to the government analyst.
He yielded that he did not find any blood stained clothes on the Accused clothes persons. However, he stated that he was told by the shepherds that Eric, the 2nd accused person herein went to the river early in the morning on the day dead body was discovered. He claimed that he was unable to get the shepherds who stayed with the three to come testify because they are nomads. He stated that according to the Shepherds it was not ordinary for Eric to get up early to go wash clothes at the river. He however stated from his investigation there was no grudge between the 1st accused person and the deceased.
The evidence of PW8 marked the close of the prosecution case, the court place accused on their defence.
The 1st accused person testified as Dw1 and stated that he comes from Ntulele Narok. He disclosed that he is a herdsman and a casual worker. He testified further in January of year 2015 he migrated to Njoro due to drought. It was his testimony that at the material time, he was working for one Kendio at that time as a herdsman. Masambe Ole Tanini, (the deceased) was known to him given that he was his neighbor and age mate of his elder brother. They were living in the same home in Njoro where he was also herding. He testified that Erick Odhiambo, the 2nd Accused person was known to him as he previously stayed with him at Barnabas. The two of them were employed by the same person. They were also staying in one boma with the deceased. They had no houses but tents. The deceased had his own tent different from his.
He narrated that they were together with deceased in the evening of the 28th January, 2015. The deceased asked him to take him to Neissut center to buy airtime to talk to his children who were going back to school. They reached the center at 7.30 pm but they did not get air time. They moved to the next Centre and deceased bought Kshs 100/= airtime and he talked to his children and they later went to a hotel where they had tea and mandazi which (the 1st accused) paid for. He told the deceased that they should go home but the deceased requested him take him to a club that was nearby so that he (the 1st accused) could buy him alcohol known as keg. They reached at the club at 8. 00p.m and he (1st accused) ordered for him (the deceased) keg worth Kshs.150/=.
They drank till 10.00pm when Erick came to the club. By the time Eric came he (the 1st accused) had taken about 6 bottles of Guinness while the deceased had taken 4 cups of keg. They were not so drank as they were used to drinking. He asked Erick why he came the bar leaving the cattle on their own. Eric told him that he had heard the (the 1st accused) had money and therefore he followed him. Erick sat between the deceased and him. Erick and the deceased then started arguing about maize which Masambe accused him of stealing. The 1st accused noting the escalation of the quarrel he asked Erick to seat elsewhere. Erick left the table and went and sat far from them. Erick stated he wanted to take spirit not keg. He was served with the spirit which he choose to carry away.
The bar tender said he wanted to close. The deceased and Erick left him in the bar paying the bills. When he left the bar he found his friend Tinyo Tandai with another friend of his. By then deceased and the 2nd accused person had left. He together with Tinyo proceeded to another bar which was licensed to work till morning and they drank till 1.00 am. He walked home and found Erick sleeping with a fellow worker called Pere. He asked Erick to move for him so that he could sleep. He moved and he slept till 6.00 a.m.
He woke up Erick and told him to go and tether the cattle the deceased was taking care of so that he could give their cattle salt. He said that he had a headache and could not wake up. He dealt with the cows himself. He later woke up Accused 2 and Pere. He and Pere milked the cows while Erick was lit fire.
One Justus called him and informed him that the old man who was in their company had been killed. He told him that had left him with Erick. He requested him to keep an eye on Erick as he had reported to the chief and he was to be arrested. He went on to ask Erick where deceased was and he told me him left him on the road. Erick was putting clothes on cloth line. He left with Erick and on his way to the scene he met the chief and Tinyo who stopped them and arrested Erick.
They proceeded to the scene and found a lot of people. His body had injuries. There was alcohol and walking stick next to the body. Later the police called him to go and record his statement. When he went to Neissut police station he found Erick. The police proceeded to handcuff him and Erick. By then he had not been told the reason of his arrest. The Police from Njoro came at 10.00 a.m. The family of deceased came and made noise.
They were taken out of the cells and the police officers looked for blood on their clothes. They took 2 trousers from Erick and a jumper and he was given Mtumba clothes which he wore. The body was later brought to the police station in land rover. They remained at the police station for 3 days. They were arraigned in court on 3. 2.16, and charged with the offence herein. He stated that No blood samples were taken from his clothes. Police did not pick his clothes. He stated too that he had no grudge with deceased or Erick. He indicated it was the first time he had alcohol with deceased.
When cross-examined by the learned counsel for the 2nd accused person he stated that the 2nd accused came to the bar and took way alcohol in a bottle with a blue sticker. He stated he also followed deceased and 2nd accused person, after 3 hours but did not see anything strange on the road as he went home. He stated further that the body of deceased was beside the road but he did not see it at night while he was passing. He stated further security at Neissut was good. He disclosed that clothes of the 2nd accused were taken from him at the police station but were not produced in this court. He indicated the he was shocked to see the body of deceased as he was with him the previous night. He reiterated that deceased and the 2nd accused person had a dispute 3 months before but it was resolved and at the material time they had a good relationship.
When cross-examined by the learned prosecution counsel he stated that on the night of 28.1.15, the deceased, the 2nd Accused person and him were drinking alcohol. He was the one who was buying the alcohol. Erick came at 10.00pm and deceased asked him why he was sitting between them yet he had stolen his maize. Erick said he had not stolen his maize and that deceased had taken his Kshs 300/=.
He stated too that they used to sleep in the same boma with the deceased but he never used to cook there. Erick used to sleep in the house where deceased used to cook but on 28th he slept with them. He revealed that the deceased used to keep his unga and sugar in that house where Erick used to sleep.
He revealed that Erick came with the maize deceased alleged he stole and wanted to sell to him. This happened one and a half months before the incident herein. He sold the maize to deceased in his presence and went and later took it. He revealed too that Erick told him to give the deceased Kshs 300/ =from his salary which had been sent to him.
He stated that the deceased remembered about the maize on the fateful date while he was drunk. He (the 1st accused) told Erick to go sit elsewhere when they started to argue and bought him alcohol whose name he did not know. Erick and the deceased left that bar at 10.40 pm leaving him behind to settle the bill. When he left the bar he did not find deceased and he did not know why deceased and accused 2 left without him.
He stated too that Erick had a phone but deceased's phone was off. He said that the said phones were never produced in this court. He did not call them to confirm if they reached home as he was sure they would reach. He left the bar at 1.00am and walked home. The bar where he was drinking was about 5 kilometers from where they were staying. He walked for one hour from the bar to home. Upon reaching he found Erick and Pere where he used to sleep. He thought Erick had slept there since he was drunk.
He revealed that the deceased used to sleep far from them and thus he could not see that place from their place. He revealed further that he used to see deceased on many mornings, however he did not see him on the material morning. He said, he did not call deceased that morning as he thought he was still asleep.
He revealed that he left their place at 7: 30 am on the next morning after milking the cows. He visited the scene which was between two centers. He reiterated that he did not see the body of deceased when he was going home. When he arrived at the scene he found many people at the scene and the body was covered with a shuka, there was fimbo and alcohol beside him. The alcohol was intact. They were later arrested. He stated too that when he asked Erick what happened he told him that he had left deceased on the road as he was too drunk.
The 2nd accused person, ERICK ODHIAMBO OUKO testified as DW2 stated that before the incident he used to stay at Barnabas in Nakuru and later moved to Njoro. The Deceased was his friend as they used to work together. He had known him for about 3 months. He narrated that 28.1.2015 he left where they were staying and went to the center. He went to a bar and found deceased and Lesaya, the 1st accused person herein.
He stated that Lesaya was friend and a colleague. He bought him alcohol in the bar. He drank the alcohol he bought him in the bar and finished it. He stated that at about 10.30 pm, the bar owner said he wanted to close and so him and the deceased and Lesaya left the bar. While outside, Lesaya told him he did not want to go home. He told him and deceased to go home. He said deceased was an elderly man and so he asked him whether he will would reach home and yet he was too drunk. Accused 1 said he himself was not too drunk and they left for home but along the way he left him on the road because he was too drunk. The Place where he left deceased at Neissut Centre about, 500 meters from the lower Neissut center. When he left him it was heading to 11.00 pm and that was the last time he saw him.
He revealed that during harvest they usually pick some maize from maize farms in Njoro. He picked some maize and sold to deceased and he later accused me of stealing the same maize. We resolved that issue. However, when he went to the bar on the material night the deceased asked him why he sat between them and yet he had taken his maize. He revealed that cloths were taken from him but the same clothes never were produced in court. He yielded that the same were wet because it had rained that day.
With the two accused persons’ testimonies, the defense closed its case. Parties were then directed to file submissions and the parties duly complied.
ISSUES FOR DETERMINATION
The accused persons were charged with the offence of murder. Section 203 defines the offence of murder and requires proof of the following elements beyond reasonable doubt, to establish the offence of murder: proof of death, the cause of that death, proof that the death was due to an unlawful act or omission, that the unlawful act or omission was on the part of the suspect and that the unlawful killing was with malice aforethought.
The first issue for consideration is proof of death. In the instant case, there is no dispute of the deceased’s death. This was confirmed by all the prosecution witnesses, more so by the evidence of PW7 who produced the post mortem report. The cause of death was as result of severe head injury with skull fracture caused by multiple blows by sharp objects as well as hyperemic shock due to massive hemorrhage. Accordingly, it is my opinion that the prosecution has satisfied this element beyond reasonable doubt.
The next question is whether the death of Masambe Ole Tanini was caused by an unlawful act or omission. Article 26 (1) of the Constitution guarantees every person the right to life. The postmortem report prepared by PW7 revealed that the deceased’s cause of severe head injury with skull fracture caused by multiple blows by a sharp object. The doctor also established that there were 2 penetrating injuries on the chest and a deep cut on the arm; the respiratory system had 2 penetrating chest injuries. The chest cavity was exposed with the right lung collapsed. There were severed sub-mandibular vessels. In the circumstances, I am persuaded beyond reasonable doubt that the deceased, Masambe Ole Tanini died out of an unlawful act.
The other question is whether it was the two accused persons who unlawfully caused the deceased’s death. None of the prosecution witnesses actually saw the accused persons kill the deceased. In essence, the prosecution case was based on circumstantial evidence.
In Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR, the Court of Appeal stated as follows on reliance on circumstantial evidence:
“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -
“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”
In the same case, the Court of Appeal set out the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction. The court stated:
“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Subject person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions 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 Subject; 9iii) 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.”
In this case, PW1 was a bar tender at Nyamu’s Bar testified that when he saw both accused herein leaving the bar with the deceased on the material night. PW1’s testimony was corroborated by PW4 who was also in the bar and saw the two accused persons leave with the deceased person.
From the evidence above it is clear that the accused persons were the last persons who were seen with the deceased prior to her death.
In his defence, the 1st Accused person narrated that he was with the deceased person at Nyamu bar wherein they were drinking alcohol. They were at 10.00pm joined by the Accused 2. An argument ensued between deceased and Accused 2 as deceased asked Accused 2 why he was sitting with them yet he had stolen his maize. He proceeded to buy alcohol for Accused 2 who opted to carry the same with him, at around 10:30pm, PW1 told them that he wanted to close the bar. 2nd accused person and the deceased person left him behind clearing the Bill. By the time he left the bar, he found the accused person had left for home. while still outside the bar he met some friend of his who convinced him to go to another bar that was nearby. They went to the said bar and sat there until it was 1.00 am.
He decided to walk home. Upon reaching he found the 2nd accused person sleeping in their house. He asked him to move him. He slept until the following morning. In that morning he was called by one Joram who informed him that the deceased had died. He proceeded to ask the 2nd accused person the whereabouts of the deceased but the 2nd accused person told him that he had left him behind that night because the deceased was too drunk the subject himself testified that indeed he went to sleep in the same room where PW1 found him but that he did not kill the deceased. The 2nd accused person yielded that it was him who left with the deceased person from the bar. He however indicated that he left him along the way home because he (the deceased) was too drunk to walk home.
From the above testimonies, it is clear that it was the accused persons who were last seen with the deceased before he was found dead. However, the 1st accused person said he left Accused 2 with deceased on the material night and proceeded to another bar. This was admitted by Accused 2 who said that it was indeed true that he was the one who left with the deceased from the bar but left him along the road because he was too drunk.
- In the case of Republic v DWK [2020] eKLR the court held;
“In the Indian case of Deepack Sauna Vs State of Delhi the court in developing the doctrine of last seen stated: -
“In the case of murder where there is no explanation for the death or disappearance of the deceased and the accused was the last person to be seen in the company of the deceased, the circumstantial evidence can be used to link the accused with the death of the deceased and prove the charges against the accused beyond reasonable doubt. There is no burden on the accused to prove his innocence and explain the death of the deceased but the burden remains on the prosecution to lead sufficient evidence to establish prima facie case against the defendant to require an explanation for the disappearance of the deceased and absence of a reasonable explanation can support the inference of guilt.”
The Nigerian Case Achie Vs State (1993) In Nigerian case of Ismeni Vs State (2011) Kuktan JSC said of the doctrine.
- “In a case of culpable homicide as in the present one where the doctrine of last seen has been applied, the law presumes that the person last seen with the deceased before the death was responsible for his death and the accused is expected to provide an explanation of what happened.”
In the absence of any explanation by the defendant as to how the deceased met his death, the court can allow an inference that the defendant killed the deceased.”
In R Vs ECK, Lessit J in analysis of the doctrine of the last seen with deceased alive stated: -
“Regarding the doctrine of the last seen with the deceased. I will quote from the Nigeria: Court case of Moses Jua Vs the state (2007) (PELR – CA/11 42/2006.
The court while considering the last seen doctrine held: -
“Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his/or her death. In the absence of any explanation, the court is justified in drawing an inference that the accused killed the deceased.”
It is clear that the doctrine of last seen alive is based on circumstantial evidence where the person last seen with the deceased before his death was responsible for his death and Accused 2 is therefore expected to give an explanation how the deceased met his death. Having been placed at the scene of the incident as the person who was last seen with the deceased before he died, accused 2 herein has a duty to give an explanation of how the deceased met her death.
Sections 111(1) and 119 of the Evidence Act 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 prosecuting, whether in cross-examination or otherwise, that such circumstances or facts exist:
Provided further that the person accused 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. The court 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.”
From the forgoing therefore, I find that Accused 1’s defence and the evidence of Accused 2 that he is the one who left Neissuit with deceased leaving Accused 1 behind has exonerated him from the last seen theory.
On whether it can be inferred that Accused 2 is the one who murdered the deceased, the investigating officer whose evidence was corroborated by the 1st accused person, was that the 2nd accused person had dispute with the deceased. The 1st Accused person narrated that the 2nd accused had sold maize to the deceased at a sum of Kshs. 300/= which the deceased later claimed was stolen by the 2nd accused person. He said that on the material night, deceased protested to Accused 2 sitting with them on the same table in the bar claiming that he had stolen his maize. On cross examination and has not been displaced by the evidence of Accused 2 on his evidence of the strained relationship between deceased and Accused 2 but he said it was resolved 3 months before and that at the material time they had a good relationship. On cross examination by the prosecutor he said on the material night, deceased questioned why Accused 2 had sat with them yet he had stolen his maize. He said deceased explained to him that Accused 2 sold him maize which he later stole from him. He said he witnessed Accused 2 sell the maize to deceased, he said that Accused 2 told him to give deceased Kshs. 300/= from his salary which had been sent to him by their employer. Why would deceased raise the issue in the bar if it had been resolved as alleged by Accused 1.?
Even though this dispute had occurred one and a half months before the date of the incident, the deceased person on the fateful night had an argument about the same in the bar which argument pushed them not to share a table in the bar it is clear to me that deceased and Accused 2 had a strained relationship over the said stealing allegations.
The investigating officer said that he gathered that Accused 2 went to the river very early in the morning after the incident to wash clothes but he admitted that the persons who told him so was not a witness herein as they are shepherds who move from place to place. This piece of evidence is thus here say.
Accused 2 alleged that deceased was an elderly man and was too drunk on the material time and that he left him on the road and went home. A reasonable person would have been expected to assist deceased reach home or even go home and seek for help to take him there. Nothing would have stopped Accused 2 from taking action ensure deceased arrived home safely since he said he himself was not too drunk. Even when he woke up on the next morning he was not bothered to find out whether deceased arrived until they were informed of his demise. Accused 2 did not did not give an explanation of how deceased died or why he left him on his own while drunk at that ungodly hour.
I have carefully evaluated circumstantial evidence herein and I find that it all points to Accused 2 as the only person one who was last seen with deceased but failed to explain how he met his untimely death. It can thus be safely inferred that he is the one who unlawfully caused the death of deceased.
Finally, on the question of whether there was malice aforethought on the part of 2nd accused person, Section 206 of the Penal Code defines Malice aforethought as follows:
“206. Malice aforethought shall be deemed to be established by evidence proving any one 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 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;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
The Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR, the Court of Appeal held as follows:
“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;
i) The intention to cause death;
ii) The intention to cause grievous bodily harm;
iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.
It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed……”
In the instant case, PW7 produced the postmortem report of deceased body testified that the examination revealed that cause of death was as result of severe head injury with skull fracture caused by multiple blows by sharp objects as well as hyperemic shock due to massive hemorrhage. The PW 7 stated that during examination of the body it was observed that there were 2 penetrating injuries on the chest and a deep cut on the arm; the respiratory system had 2 penetrating chest injuries; the chest cavity was exposed with the right lung collapsed; there were severed sub-mandibular vessels; on the head, there was a fracture of the skull and injured brain. These were very severe injuries indicating the intention of the perpetrator to fatally injure the deceased.
Based on the above findings it is has been proved that Accused 2 had malice after thought to cause the death of the deceased.
Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the Information of murder against the 2nd accused Person ERICK ODHIAMBO OUKO. However, the prosecution failed to prove their case against Accused 1 and I find Accused 1 namely LESAYA OLE TASUNA not guilty and I proceed to acquit him under Section 215 of the Penal Code. I find ERICK ODHIAMBO OUKO accused no 2 herein guilty of the offence of Murder contrary to section 203 as read with Section 204 of the penal code. I accordingly convict him of the same under section 215 of the Criminal Procedure Code.
T.A ODERA
JUDGE
24 .7.24
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF:
Mr. Kihara for the State
Orege for Accused 1
Miss Chepngetich for Accused 2
Court Assistant Oigo
Orege: May security of Accused. No.1 be released. Security of Accused 1 be released to depositor.
Kihara: Erick is a first offender. We do not have hi previous records. We seek a probation officer’s report.
Chepngetich: I seek a pre-sentence report too.
Order: Pre-sentence report and the victims be availed. Report be filed on the portal.
Order: Mention on 19.9.24 at noon for the pre-sentence report and mitigation.
T.A ODERA
JUDGE
24.7.24