RULING ( 306 CPC)
1. The four accused persons MICHAEL KIOKO, WAMBUA KIOKO ISAIAH MULI, ALICE MULI are jointly charged with murder Contrary to section 203 as read with section 204 of the Penal Code Cap 63 of the laws of Kenya.
2. The particulars are that on 30th day of October 2018 at 2000 hours’ at Thwake village in Mbooni east Sub County within Makueni County they jointly murdered Julius Ndeta Makuthi.
3. Plea was taken on 8th of July 2019 before Hon Ong’udi J. Each of the accused persons pleaded not guilty.
4. They accused persons were represented by Mr. Maanzo whose brief was held by Mr Kioko
5. The matter proceeded for hearing on the 28th of September 2020 with the production of the government analyst’s report by Dr Mwendwa Muthini.
6. He testified that he received samples from the body of the deceased, that is, the liver, stomach contents, kidney, urine and blood. He was required to determine whether they contained any toxic substance. He said that the test results were negative. He produced the Exhibit memo and the report as P exhibit (1)(a) and 1(b) respectively.
7. The next witness was heard by Dulu J.
8. PW2 was Bernard Munyoki Nzau a village elder from Kathangi. He told the court that on the 30th of October 2018 at 1:30 PM he was at home when he received a phone call from the first accused. He left for the first accused’s house but met him on their way. They went through the farm where they found five people one of whom was lying down. The one who was lying down was Ndeta. The other people were Nthenya, Kalii, the second and third accused who is the wife of the deceased. When he inquired as to what had happened he was told by the sister of the deceased that the deceased had just fallen down. On checking on the person laying down he found that he was dead he did not see any injuries or anything else on the deceased. He called his senior, the chief who came and also checked on the deceased and did not see any injuries.
9. The first accused Michael also told him that a goat had also been killed. They went to another part of the farm where they saw the dead goat. The witness told the court he left the place when the police came at 1000am the following day.
10. On cross examination he said he did not connect the two deaths; that of the goat and that of the deceased. He told the court that the sister to the deceased was one Nthenya Manthi and she was not among the accused persons. He also said the police came the following day at 10:00 AM and took away the body. He said Nthenya told him that her brother just collapsed and died.
11. I heard PW3 no. 67026 Corporal John Ateka formerly from Kalawa police station Crime branch office .He told the court that he was the investigating officer and that on 31st of October 2018 at 7:00 AM he was in the office when he received a report from one Engineer Nduva Makuti to the effect that his brother, Julius Nduva Makuti aged 58 years while in his home was visited by four people known to him; that these four people dragged him beating him to forcefully take him where it was alleged that a goat had been killed.
12. The I. O said that he and his colleagues visited the scene and found the body of the deceased lying face down hands behind. that there was a little blood on the right toe, his T shirt grey in colour indicated that there had been a struggle. He also said that there was a goat nearby. The body was taken to the mortuary while the four suspects were arrested. He attended the post-mortem on the 6th of November 2018 by Dr Alex Makau. He told the court that the cause of death could not be established and that is why he took the samples from the body to the government analyst for analysis.
13. On cross examination he said that both the post-mortem and the government analysts report did not establish the cause of death. He said that he could not know whether the days of the deceased had come to an end and that he could not find anything to connect the accused persons to death what he was told that they were the ones who took him from his house. He told the court that the reportee who told him that did not record a statement but that at this scene he saw that the deceased T-shirt was torn but he could not tell whether it was torn before the alleged incident.
14. The post-mortem report was produced by consent and marked as Pexb 3.
15. The prosecution closed its case
16. Counsel for the accused persons filed submissions on no case to answer and after summarizing the case for the prosecution submitted on the law with respect to the issue as to when an accused person is said to have a case to answer under section 306 of the Criminal Procedure Code.
17. Counsel relied on the Republic versus Nicholas Onyango Nyolo [2014] eKLR where the court set out the critical elements of murder to be;
i. Proof of the fact and cause of death of the of the deceased
ii. Proof that the death of the deceased was a direct consequence of an unlawful act or omission on the part of the accused which Constitutes the ‘actus reus’ of the offence.
iii. Proof that they said unlawful act or omission Was committed with malice afore- thought which constitutes the ‘mens rea’ of their offence
18. Counsel also relied on Republic versus Martin Olouch Okwako and two others [2015] eKLR on the proposition that for the prosecution to sustain a conviction factors provided for in Nicholas Onyango above must be present in a case of murder. To support his he cited Republic versus Morris Karani Alando [2012] eKLR where the court cited with approval Bhatt versus Republic [1957] EA 332 to the effect that that “a prima fashion case is not made out if at the close of the prosecution the case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction “. On the strength of Bhatt, he submitted that the onus is always on the prosecution to prove its case beyond a reasonable doubt and a case to answer cannot depend on “some evidence irrespective of its credibility or weight’.
19. In applying those authorities Counsel submitted that no evidence was brought before this court to connect the accused persons with the death of the deceased. This is because there was no evidence to show that death was caused by any omission or action on the part of the accused persons, but more importantly that the cause of death of the deceased was never established.
20. The DPP did not file submissions.
21. The issue for determination is whether the prosecution has placed before court sufficient evidence for the court to act in accordance with either s, 306(1) or s. 306(2) of the Criminal Procedure Code.
306. Close of case for prosecution
(1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.
22. I have carefully considered the evidence and set out here in above. I have also considered the submissions by the defence. It is evident from the authorities cited that it was upon the prosecution to establish before the court the cause of death under the accused persons had something to do with that death.
23. The witness in this case who was the key witness for the prosecution is a person who said he was told that the accused persons had committed certain acts against the deceased but he was not at the scene. The person who allegedly told him the story never testified in this case hence his evidence can only be hearsay evidence which cannot be relied upon to support a conviction.
24. Section 62 & 63 of the Evidence Act provided for what is admissible in oral evidence;
62. Oral evidence. facts, except the contents of documents, may be proved by oral evidence.
63. Oral evidence must be direct.
(1) Oral evidence must in all cases be direct evidence.
(2) For the purposes of subsection (1) of this section, "direct evidence" means —
(a) with reference to a fact which could be seen, the evidence of a witness who says he saw it;
(b) with reference to a fact which could be heard, the evidence of a witness who says he heard it;
(c) with reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner;
(d) with reference to an opinion or to the grounds on which that opinion is held, the evidence of the person who holds that opinion or, as the case maybe, who holds it on those grounds:
25. PW2 clearly did not himself perceive any of the evidence he gave with respect to his allegations that brother died from injuries inflicted by the accused persons.
26. While the Post Mortem report indicates that the deceased had bruises on his forearm, forehead, right toe, congested conjunctiva, “palechaei haemorrhage” (sic) of the lungs, no one testified that the accused persons were the ones who actually inflicted those injuries. In any event the pathologist did not find any connection between the bruises and the death.
27. The evidence of the investigating officer was clear that upon conducting investigations he did not find anything to connect the accused persons with the death of the deceased.
28. The post-mortem and the government analyst reports were also negative.
29. In the circumstances it is evident that the prosecution failed to establish any connection between the death of the deceased- neither the actus reus nor the mens rea- and the accused person either individually or jointly.
30. The only conclusion that draws itself is a finding under s. 306(1) of the Criminal Procedure Code.
31. I therefor make a finding of not guilty, dismiss the charge and acquit each of the accused persons accordingly.
Dated, signed and delivered in open court this 14th March 2024
Mumbua T Matheka
Judge
CA Nelima & Elizabeth
C/Prosecutor Mr. Kazungu
Counsel for accused persons- Mr. Hassan
Accused Persons present