The Republic VS ONESMUS KIOKO MUTISYA AND NICODEMUS NYAMASIO SILA AND 4 Others

1. PART IX of the Criminal Procedure Code provides for the PROCEDURE IN TRIALS BEFORE THE HIGH COURT. Section 306 provides for what should happen at the close of the case for the prosecution. It states;

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.

(3) If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against the accused person; but if the accused person says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon him to enter upon his defence.

1. Vide a consolidated charge sheet dated 23^rd July 2019, the accused persons were jointly charged with the offence of murder c/s 203 as read with s. 204 of the Penal Code. It was alleged that on the 29^th March 2018 at Kiambani village in Kiu location within Makindu sub-county Makueni County jointly murdered Jackson Mutune Masila.
2. The accused pleaded not guilty to the charge before Ong’udi LJ.  The learned Judge heard PW1 and PW2. The PW3 and PW4 were heard by Hon Dulu J and I heard PW5 and PW6.
3. The case for the prosecution was that on the 21^st February 2018 PW1 Agnes Wanza Masila the mother to the deceased found Mulei, Kioko and Mambo beating her son Jackson Mutune Masila. Mulei was alleging that that Mutune had stolen his motor bike. She testified that the three attempted to lynch him but police from Makindu Police Station rescued him and took him to Makindu hospital. After treatment they took him to Makindu Police Station. She followed them there and was told that Mulei had lodged a complaint that Mutune had stolen his bike and as soon as Mutune got well he would be arraigned in court. The police told her that they were waiting for the complainant.
4. On 22^nd February, PW1 was called to the station. She was told that the complainant against her son had not come to the station and it was on that basis that Mutune was released. She was given his medication and they went home from where he continued with treatment.
5. It was her testimony that thereafter on some dates in March 2018, while Mutune was ferrying her on his father’s motor bike, Kioko hit them with his boda boda twice, hurting Mutune on the leg while telling him he would kill him. She testified that Mutune reported to the matter of the assault to the police. Later, she and Mutune went to their chief one Kennedy Robert where Kioko was summoned. That the chief told Kioko to call his father but he called his grandmother the 4^th accused. It was her testimony that Kioko stated before the Chief that he would kill Mutune because he had stolen his motor bike. She testified that the Chief advised Kioko to report the matter to the police.
6. PW1 further testified that on the 29^th March 2018, she had some casual laborers planting on her land. These included Kioko Mutisya (NOT the 1^st accused) & Mutiso Mutisya. That upon finishing the work around 6:00pm they left with Mutune for the shopping Centre.
7. She testified that a few minutes after 9:00pm she heard Kioko Mutisya calling at her gate. That she asked him what the problem was and that he told her that Nyamasyo, Mulei, Kioko & Mambo had taken Mutune from Hill Top Bar where they were having drinks, that they had dragged him out and were beating him. That by the time he was leaving to come and call her the four had beaten Mutune, that he had fainted and they had taken him on a motor bike to Kiambani School.
8. She testified that she called her son PW3 Masaku Masila and informed him. She met with him at Makindu Police station. As she waited to be attended upon at the police station PW3 left to look for his brother. She testified that she rang the 4^th accused who told her that she had no mercy for thieves and in any case it was Nyamasio who had taken her son from the bar.
9. PW1   further    testified    that when the police    came they went   towards Kiambani school but did not find her son, then she alighted     from the motor vehicle and left   for home.  On her way her son PW3 - rang   her and she sensed   that Mutune   had died.   She went home.   The next day PW3 told the father about Mistune’s death, the father told her -   and she   went   to the police station and recorded her statement.   The OCS  confirmed  that  Mutune  had  died and his  body was  at  the mortuary,   she  was  not  told  where  his  body  was  found.  Police   asked her for Kioko’s   number   and she gave them.
10. The next day about 10.00am she was home when   she heard   the noise of many boda bodas.  On going out she found the 4^th accused them.   The 4^th accused told her to have Kioko released or they     would kill her.  She ran off to the police station and on the way she   met a police   car on the road, stopped it, boarded    it, led police to her home where the boda boda were but   they took off.  It was then that one Mutuku and Accused 4 were arrested, she stated that Kioko Mutisya Peter Accused 1 is the one who killed her son. 
11. On cross-examination   she told the court that she saw Accused 1, 5, 6 at the scene -  Accused 1 had a jembe stick    he hit   Mutune with it.  Accused  5  poured  petrol   on Mutune  from  his  motor bike  -  Accused  1  pulled out  a match  box.  That it was Accused   1, Accused 2, Accused 5, Accused 6 who killed   her son.  That   Mutune   told her that Accused 1, Accused 5, Accused 6 tied   him up and beat   him, while Accused 5 complained of his stolen bike. Accused 5   pushed her to the ground.  That Kioko (the one who ploughed her land) told her that Accused pulled Mutune   from the table    at the bar before Accused 1, 5 and 6 beat him. 
12. PW2 Jamila Athena Masaku, daughter in law of PW1 testified   to the events of 31/3/2018 -  when she   said that   the A4 went to her home with a group of boda boda people.   She  demanded  that  her  mother  in law  releases  Accused   1   from the  police  otherwise  she  would  set  their  home  on fire.  She only identified   A4 and A3   on the material date. On cross-examination   she said A4 had a 5 liter Jerrican of petrol but    it was not in her statement. 
13. PW3 Masaku Masila    brother   to deceased   testified   that it was     Kioko   Mutisya    a neighbor   who called    him on his phone on 29/3/2018 at about 9.00pm to tell   him   that his brother Mutune had been taken from the Hilltop bar      by Accused  5,  Accused  1 &  Accused 2   . 
14. He informed   him that they had headed for Kiambani   Primary    School.  After the failed    search with the police - as    narrated by PW1 -  he   continued the      search  alone.    30  minutes   later,  he  found his  brother’s  body lying   on the road   side  under a pile of stones. It appeared to him that  -  the  evidence  was    that  he  had  been  stoned   to  death  as   there  were stones  around  his  head and chest.  He phoned the police  at Makindu   Police Post - described   the scene to them the he left for home    before police came. The next day   he went   to the police station. 
15. On   cross-examination he said    2 weeks    prior     his brother    to this his had   been attacked  by  people   who  wanted  to kill him on  allegations   that  he was a thief -  the   Accused  4, Accused 1,  Accused  6  and 2 others  not  before  court.  He  said he  witnessed them  tie  him  up with   ropes, and try   to  lynch him, that the  police  rescued  him but  the  suspects  escaped -  that   Mutune  was held  in police  custody  but   no  one   reported  the  alleged  theft  of motor bike .  That his brother was killed on allegations that a certain young man in Kilome   said he was a thief.  That he found the body of his brother alone - with a broken skull. He was shocked    and just went home.
16. PW4  no.  113639   PC  Mark   Okoth   was the Investigating   Officer.  His testimony was that the family  told him that Onesmus  Kioko, Bernard Mutuku,  Nicodemus  Namasio,   Boniface  Mulei   and Mambo   Wambua   had  participated   in the mob justice   where  the  deceased  was killed. He  arrested  Onesmus  Kioko  that  day (30/3/2018) and later  the  late Antony    Mwanzia     who  was  said     to be  the master  mind of the whole thing, and later the  rest of the suspects. He said postmortem was conducted  on 5/4/2019 .  That deceased was killed on suspicion   of having  stolen  the motor  bike of  Onesmus  Kioko.  He  confirmed  that  a report  was made at  the police  station but  was not  aware  that  someone   was arrested.  He  said  Accused  1  was  identified  by the mother  of the deceased but   the other    accused  persons  he arrested  on the  instructions  of the DCIO.  He said   he    never   recorded any statements from any of the witnesses.
17. On cross-examination   he told the court that the accused were identified by members of the family of the deceased.  That none of the family members witnessed the killing of the deceased.  He told the court that   the arrests were based on speculation.  He never visited the scene. He said he arrested the suspects on instruction from the DCIO.  That it was the DCIO who visited the scene.
18. PW5 No.  79063   CPL Derrick    Kiprono  was scene of Crimes   Officer and testified  on behalf  of  his  retired   colleague  Sgt  Paul   Kiilu. That  on 29/3/2018  Sgt Kiilu  was called  by the DCIO  Jimmy  Kimaru  to  a  scene  at  Kiambani Village  Kiu  Location,  Pipeline  area,  where he found the  body  of male , took  photos,  the body  was half  covered  with stones the head  was torn out by stones -  he    produced  photos  and report   as evidence. 
19. PW6 Dr. Esther    Musyoki ,  medical   officer    Makindu   Subcounty  Hospital   testified    that she  conducted  postmortem  on 5/4/2018. On observation and examination,   the skull  was   crushed     with  brain   oozing out ,   mandible  was crushed,   bruises    on chest, fracture of right tibia,    fibula,    and multiple cut wounds – Degloving    injury of left toes; Both   clavicles were fractured, there were  multiple fractured ribs    on  both  sides, and   torn  brain  tissue: She determined the  cause  of death  to be  cardio  pulmonary  collapse   following   severe    head  injury.
20. The prosecution closed its case.

Ms  Onyango  appeared    for  1^st ,  4^th ,  5^th  ,6^th    accused persons. 

Mr.  Mwinzi appeared   for accused 2. 

Mr. Hassan   appeared for Accused 3. 

Mr.  Tanui appeared for the state. 

1. Parties   agreed to file written    submissions.  In the end submissions  were filed  by Ms  Onyango  and Mr.  Mwinzi on whether or not  the  accused had    case to answer to warrant being put on the defence. The state and the other counsel did not file any.
2. For the 2^nd   accused it  is  submitted  that  this  case is  set on circumstantial  evidence  as there    was no witness    present    when   the  incident took  place who testified. That   the evidence by prosecution witnesses was what was told to the witnesses   by person   who never testified.  That Accused 2 was a suspect because it was alleged that he was seen dragging the deceased  from  Hilltop  Bar. Counsel cited  R Vs  Silas  Magongo   Onzere   [2017] eKLR     where  the  court  found that  evidence at  that  time  insufficient  to warrant the   accused being put  on the  defence; Joan  Chebichii, Sawe  v R  [2003]  eKLR on principles  applicable   with respect  to  circumstantial    evidence  and R  V Wona  King’oo  & another   v  R [2019] eKLR  where  the accused were  acquitted  under Section 306(1)  for  paucity   of   evidence
3. For  the 4^th ,  5^th , 6^th  and  1  believe  1^st  Accused  (as per the record)   counsel  analyzed  the law relating  to the charge of  murder and cited  Ronard  Nyaga Kiura v R  [2018]eKLR  ;Black’s   Law  Dictionary  8^th   Edition  on the definition  of  prima facie  case, & Bhatt V  R (1957)  EA  332,  R V Turnbull &  Another 63 CR  App R 132 on identification. 
4. It was argued for  the accused  persons  that no  investigations  were conducted,  and the investigation  officer simply stated    that  he  took instructions  from his  superior  . 
5. The questions   that highlights itself from the evidence before  me is  whether   the prosecution   has  established  a  prima facie  case of the  case  of murder  to warrant  the accused  person to be placed on their  defence.  A prima facie case is defined    as one upon which a reasonable   court, applying its mind on the evidence    would   convict -  i.e find the accused guilty   of  the offence -  even  if  the accused   kept    silent  -  said  nothing in his  defence. 
6. The ingredients   of murder are set out at Section 203 as read together    with Section 206   of the Penal Code, and as defined in numerous precedents. 
7. First there must be the death of a person. 
8. Second, that   death    must have been   caused    unlawfully  
9. Third  that death must have been caused by the accused
10. Fourth, that death must  have been caused    with  malice  afore  thought  -, simply put,  deliberately. 
11. In this case Jackson Mutune was killed brutally.  The description given by the scenes of Crime Officer brings to live  the scene -  some  people    stoned  him,  and continued  stoning   him even after he was dead – because  the stone  were piled  on his body -  his  head  was torn almost  in two. One can understand PW3’s shock on identifying the body of his brother.  He was stoned to death. This   was clearly an unlawful killing.
12. The death was clearly with malice afore thought.  The people who killed Jackson Mutune   intended for him to die and that makes it murder foulest. 
13. So who did it? Did the prosecution prove that the accused person before the court   committed the offence?  
14. The I.O told the court that the reason he arrested the accused persons is because he was given their names by the family and his boss instructed him to arrest them. It was his position that it was the accused were arrested on speculation. The evidence   of the mother of  the deceased and that of his  brother was that there were  previous  incidents  where  the 1^st   accused and others  threatened  the deceased  on allegation of having   stolen  a  motorbike. It was also stated that someone in Kilome accused the deceased of being a thief.  It is alleged that the deceased spent the night in a police cell and the complainant   was Accused 1. 
15. However   there was no evidence from the police   to support this  claim -   that indeed   the  deceased   had  been arrested,  placed  in the cells  by the police    on the suspicions of  having   stolen the bike  belonging  to the  1^st  accused .
16. It was alleged   by the mother and the brother that there was an attempted    lynching of the deceased by 1^st, 4^th and 6^th accused  persons,  and that the  deceased was rescued  by the police. It is this alleged attempted lynching that they say connects the accused persons to the killing of the deceased.
17. It is noteworthy that the prosecution did not avail any evidence to support this alleged attempt of lynching the deceased. No evidence of any report of such an incident, no evidence from the police officers who rescued him, no evidence of such a report was made to the police.  This evidence was crucial   to the case for the prosecution because it was at the center of the suspicion of the accused persons. It is curious that not a single police officer testified to have rescued the  deceased  from the alleged   attempted  lynching, and the I.O was not aware of any report. 
18. The key witness for the prosecution is, one Kioko  (not  1^st  Accused). According to the mother of the deceased, and PW3 , On the material  day,   29/3/2018  is this Kioko who   left  home  with the deceased to Hilltop  Bar,  he  is the one who rang   PW3,  he  is  the one who  went to the home of PW1  and called  her and told  her  that Accused  1, Accused 2, Accused  5, Accused  6 had  dragged  the deceased  out of Hilltop Bar, had beaten him up until he had fainted.   This key witness for the prosecution was never called to testify. Again, the prosecution gave no explanation for the failure to call him yet it is the case for the prosecution that it was his call that set off the search  by PW1 ,  her son PW3,  &  police  officers  from  Makindu  Police Station but  he never testified came to  testify – how  is  the court  expected  to  treat this omission/neglect/refusal  by the prosecution  to call this witness?  The way that Bukenya  v  Uganda says -  perhaps  he  never   said  so, perhaps   his  evidence   would  have  contradicted  PW1, PW3. In addition, no police officer testified    to accompanying the PW1 and PW3 to search for the deceased on that night.   In fact the investigating officer   never  visited  the scene,  never   participated in the search  for  the deceased never recorded  any  statements -  never  booked any reports,  never read any reports in the OB   but  only  received  instructions  from  the  DCIO – proceeded  to  arrests suspects -  what  can the court  say of this ? Why were these accused persons charged with murder of the deceased? The 1^st accused is alleged to have complained that his m/bike was stolen by the deceased. He is alleged to have hurt the deceased with his m/bike. But that does not place him at the murder scene. A4 is said to have threatened to kill PW1, and she was not a suspect in the death of the deceased.
19. The was the was the Chief who allegedly dealt with the dispute between the 1^st accused and the deceased. He too did not testifiy.
20. No one placed them anywhere near the deceased on the material night. No one placed them at the scene either. No evidence of anything at the scene to connect them to the murder.
21. Pw1 and PW2 were adamant that the accused persons killed the deceased. That this was proved by the alleged attempted lynching a week or two before the murder. However, there was no connection made between the alleged attempted lynching and the murder. The ultimate answer   comes from   Sawe v R mere   suspicion that the accused person   committed   the offence   is not enough. Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt. The PW1 and PW3 may have had good reason to suspect that the accused persons killed their   kin – but the prosecution was expected   to place before the court sufficient    evidence    to   support the charge of murder. 
22. Having    failed to do so leaves   this court   with no option but to apply section 306(1) of the Criminal Procedure Code, make a finding of not guilty and acquit each of the accused persons accordingly.
23. I must state here that if indeed the accused persons were involved in this brutal murder, of a fellow human being, for merely suspecting him of theft of a motor bike as alleged by his mother, then, their conscious will rue them, where the law has freed them
24. Right of appeal 14 days.