REPUBLIC OF KENYA
IN THE HIGHCOURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO.13 OF 2018
REPUBLIC .........................................................................................PROSECUTOR
-VERSUS-
PATRICK WANYONYI OGARA ................................................................ACCUSED
JUDGEMENT
Introduction
1. The accused herein, Patrick Wanyonyi Ogara, 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 diverse dates between 16th and 17th May, 2018 at Mlolongo in Athi River Sub-County within Machakos County. he murdered Elizabeth Wesonga Opiyo (hereinafter referred to as ‘the deceased’).
2. When the accused was arraigned before this Court, he pleaded not guilty to the offence. He was tried. The hearing of the prosecution’s case was conducted before Hon. G. V. Odunga, J (as he then was). After the close of the prosecution’s case, the Court found that a prima facie case had been established to warrant the accused being placed on his defence.
3. The accused gave a sworn testimony and did not call any witnesses. The accused’s defence was taken by yours truly.
The trial:
4. The prosecution lined up fifteen (15) witnesses to prove the information against the accused.
Hearing of prosecution case
5. This case proceeded for hearing on various dates and Prosecution called 15 witnesses.
6. PWI - Margaret Gati Getingita, told court that she worked as an Administrator at Jeff Hamilton School in Syokimau in the department of training. She averred that she had served in the department for four years having been employed in November 2018. She told the court that her work was to recruit students for training as security personnel. She added that prior to their admission, she scrutinizes their documents and ensure that they eat and keep well while on training. She stated that the role of the Jeff Hamilton College is to train and recruit security personnel.
7. She told court that on the Monday of 7/5/2018, she recruited about 30-40 new members among them, Elizabeth Wesonga (deceased herein). It was her testimony that they trained from Monday up to Friday of 11/5/2018 and that between 12th and 13th May 2018, the deceased was sent for attachment to Baba dogo premier food company.
8. PWI said that the deceased then returned to the college on Monday 14/5/2018 and proceeded with the training. She noted that training normally begins from 6:00 am up to 5:00 pm. She said that on 16/5/2018 she took a break from training. She clarified that the college trains both day scholars and boarding students but stated that the deceased was a boarder.
She informed court that during break, the trainees usually change into civilian clothes while borders are free to leave the compound but must be back by 7:00 pm adding that borders are supposed to get permission to leave the college from the team leader. She stated that on the day the deceased disappeared, the guard in-charge was Daniel Mtampash Sitoya. The college compound is usually fenced by mabati (iron sheets).
9. The witness stated that on 16/5/2018 at around 6.00pm, the deceased, who also doubled up as team leader left college and went outside the school compound to an M-pesa shop and that by around 8:00 pm, the deceased had not yet reported back to the college. She testified that at around 8.00pm, a lady called Agneta Nyangi went to her house and informed her that the deceased had not yet returned to the college.
10. She told court that she checked her records and called her phone number but it was not going through. She stated that she then called the team leader, Philip and asked him to report to her once the deceased comes back to college. She then returned to her house.
11. She stated that while in her house, a student by the name Risper came to her house and informed her that the deceased had an Ex-husband who was in junior class. She stated that she then went back to the college and approached Phillip whom she asked to call for her the deceased's ex-husband. She added that she also went to Simba dormitory to look for the accused and after calling the register book, she found out that both the accused and the deceased were missing after which she went back to her house to sleep.
12. PWI said that on the following day of 17/5/2018 at 8:00 am, she inquired from Risper on whether the deceased’s husband had come back and discovered that he had not returned to college. She stated that she inquired from Phillip, a male team leader on whether the accused had come back and the response was that the accused came back and was in his uniform.
13. She informed court that she then went to the junior class and inquired where the accused was but was told by his classmates that he had gone out to seek medication after seeking permission from Silas Otiri. She stated that she then went to the senior class to make further inquiries and was told that the accused had gone out to the shops. The witness told court that she walked towards the gate and when she was around the gate, someone knocked at the gate and she told the gateman to open the door. It was PWI testimony that while at the gate, someone walked in and Risper told her that the person who had walked in was the accused, the deceased's ex husband.
14. She stated that she stopped the accused and asked him his names. He stated his name was Patrick. She further asked him whether he knew anyone in the school which he denied but on being asked further he agreed that he knew the deceased whom he said was the mother of his children and had two children with her. She added that the accused told her that they were married at one point but had been separated.
15. She told court that when she asked the accused person on whether he knew where the deceased was, his answer was that he did not know her whereabouts saying that he had never spoken to the deceased since he came to Jeff Hamilton. She added that by this time. she had already reported the deceased's absenteeism to the training manager at the college.
16. The witness stated that on 18/5/2018, deployments were done in Elizabeth's class and she was still not back in the college adding that on Monday 21/5/2018, the junior class reported back from attachment wherein Patrick Ogara reported on that same day and was limping. She told court that upon calling him and asking him why he was limping, he said that he had an injury. She added that she advised him to go change into uniform.
17. PWI stated that on 21/5/2018 the deceased was not yet back. She stated that she went to the office to check for her records to establish the next of kin after which she called one Charles Onyango who was listed as her next of kin and informed him that the deceased was not back in college. She said that the deceased had also indicated in her records that the accused was her next of kin and husband.
18. She narrated that Charles Onyango later called and informed her that he had called home and the deceased was not there. She told court that herself and Charles Marwa then called the accused for further questioning. It was her testimony that while in the office, Chacha Marwa, the training Manager questioned the accused on who referred him to the college and his answer was that it was Evans who had brought him to Jeff Hamilton. She added that the accused admitted knowing the accused and clarified that she was the one who connected him and sent him transport to come to the college. She stated that Chacha Marwa then asked the accused to bring his bag for inspection which he complied with adding that on checking his bag, she found the following personal items which included three phones, three civilian clothes and Safaricom cards belonging to the deceased. She stated that in the bag there were also deceased's photos, Identity card and voter's card.
19. She told court that on being asked why he had the deceased's documents. His answer was that she had given him to make copies. The witness stated that she then called Charles Marwa and asked him to accompany her so that they could jointly report the case to the police which request he honoured. She stated that she then took Charles Marwa to the CEO of Jeff Hamilton College who also requested that the case be handled by the police after which the Assistant training manager and deceased's two brothers then headed to the police station in Mlolongo.
20. It was her testimony that she later learnt from the Assistant Training Manager on 21/5/2018 while at the police station that police had told them that they had recovered a body in a neighbouring open filed and took it to city mortuary. She then wrote a statement at Mlolongo Police Station.
21. She testified that the school compound was not very big adding that it was about half an acre and noted further that the gateman told her that the accused returned at 5:30 am on 17/5/2018 and upon asking the accused where he was the previous night on 16/5/2018, his reply was that he was in college.
Cross-examination of PWI
22. In cross-examination, she told the court that the duties of the security guard-Daniel Mtampash Sitoya at the gate on the evening of 16/5/2018 when the deceased went missing of was to guard the gate and search people who entered the College through the main gate. She averred that there was a register book at the gate which was only for day scholars. She also stated that at the gate, entries in the register were made as from 5:00 am where only day scholars were recorded.
23. She further told the court that at the College, they had two team leaders that was Phillip as the male leader while the deceased was the female team leader. She also stated that Risper was not a team leader. Additionally, she told the court that on the evening of 16/5/2018 it had rained a lot for it was a very rainy season.
24. She told court that on 16/5/2018, she called everybody in Simba male dormitory, took roll calls with Philip, the male team leader by calling out names of trainees wherein it was established that the accused was not present as he did not answer when his name was called out.
25. She further told the court that the male dorm had seven beds which were double decker's totalling to 14 beds. She added that the changing room also hosted male students which had two beds - double decker's totalling to four beds and two small beds. She concluded that the total number of all beds were twenty. She testified that the accused person used to sleep in Simba dorm adding that he slept on a double bed but she couldn't remember his neighbour. She added that while looking for the accused, they checked all male dorms and beds but found them to be empty. She concluded that the accused was not in the school compound.
26. When asked about a witness by the name-Milton Malingu who stated in his statement that the accused slept in the male dormitory in the night of 16/5/2018, his answer was that she did not interact with Milton Malingu on that evening insisting that all meals were taken in class. She added that both male and female trainees usually ate in class. She testified that Milton was lying to say that he saw accused in class in the evening of 16/5/2018.
27. She told court that on 17/5/2018, Risper showed her the accused and while asking him questions, she was alone and Risper did not hear their conversation. She reiterated that the deceased started training on 7/5/2018 and was to graduate on 18/5/2018 but that she disappeared two days prior to graduation.
28. PWI told court that at the time or recruitment, she took the deceased's original identity card and certificates. She confirmed that details of documents taken from the deceased were recorded in the documentation book but told court that she did not produce the said book in court.
29. She also informed court that before they deploy students for training, they were required to provide their NHIF card, NSSF card, KRA certificate, certificate of good conduct, Chief’s letter with one referee and a photocopy of Identity card which documents she stated are usually brought before graduation. She added that when the documents are brought, they are filed, students are registered and sign against the registration form.
30. She told the court that she knew this was a murder case and that she did not see the accused killing the deceased. She further stated that she did not know who killed the deceased adding that she only handed the case to police for investigation.
Re-examination of PWI
31. In re-examination, the witness told the court that the team leader is normally one and that Phillip was overall team leader. She added that the deceased was the ladies team leader. She stated that in regard to the register book, it had names of students and entries. She added that it also had columns for breakfast, lunch and supper and that before any meal was taken, the register was called and marked accordingly.
32. The witness also told court that Moses was from junior male class and that Daniel Matambashi was a trainee student in the senior class adding that Daniel's work was to confirm the purpose of visit, names and then entered particulars in the register book. She added that Daniel had to counter sign in the register book as well.
33. It was her testimony that only day scholars were to sign in the register book when they walked in and out of college adding that no border was to sign the register. She stated that in case a border left the college, they were to be back in the college by 6.00am in case they had slept out.
34. She stated that during meal time, the team leader, Philip rang the bell and all students assembled in Simba room to take their meals.
35. In regards to the dorms, she stated that there were some on the ground floor while others were in the first floor. She added that on the ground floor, there were also classes. On first floor were dorms for girls and offices. She noted that for males, there were two changing rooms and dorms were on the ground floor. She stated that the changing room had five beds asserting that Simba room which was the male dormitory had seven double decker beds totalling to fourteen beds. The female room on the other hand had two decker beds totalling to four beds. She added that there were also extra six mattresses in the class corridor. The mattresses were there in case of any extra recruitment.
36. PWI stated that normally, there are more male trainees and therefore some of them used to reside in the changing room on the ground floor but added that the beds were big, and sometimes the students used to share.
37. The witness testified that the accused used to sleep in Simba room where she went to check for him on the fateful night and he was not there. She also stated that when they were taking roll calls, the students had not taken supper.
38. She told court that when she heard a knock at the gate, she informed Daniel that someone was knocking and he allowed him in and found out that it was Patrick.
39. It was her testimony that prior to recruitment, they checked height, age and academic credentials of the trainees. She clarified that on recruitment of the students. they did not take copies of Identity cards, NSSF or NHIF cards but added that the photocopies of the documents were to be brought on Thursday or Friday of that same week. She reiterated that the deceased disappeared on Wednesday evening on 16/5/2018.
40. PW2 - Nobert Oduori Opiyo testified that he lives in Kayole in Nairobi and worked with Yam Company as a delivery officer. The deceased was his sister.
41. It was his testimony that on 5/5/2018, the deceased left their home in Busia to come to Nairobi and arrived on 6/5/2018 and was picked by his brother- Charles whom he said was also working with Jeff Hamilton and had connected her to join the college.
42. He stated that Charles and the deceased came to his house on 6/5/2018 and he gave them bus fare and they went to Jeff Hamilton training centre.
43. He told the court that the deceased started training on 7/5/2018 and that on 11/5/2018, she was sent on attachment and stayed in his house until the end of her attachment at premier food company between 11/5/2018 - 13/5/2018.
44. The witness further told court that on Monday 14/5/2018, the deceased went to buy hair oil. He stated that he left behind Kshs.200/= to his wife to give the deceased who would use it as bus fare. He later called his wife who confirmed that the deceased went back to the college.
45. He averred that on 16/5/2018 between 6:30pm and 7:00 pm, the deceased told him that she had been sent to get NHIF and KRA cards but she did not have transport to take her to town on the following day 17/5/2018. He stated that he told her that she would send Charles to take her to town. He stated that on 17/5/2018, Charles called him and informed him that the deceased's phone was off. He therefore called her number and it was off. He added that when he called the deceased's telephone number were still 18/5/2018.
46. PW2 stated that there was a girl by the name Mary, whom the deceased had requested her to collect her birth certificate from him on 14/5/2018. It was his testimony that he then called the deceased's teacher/trainer by the name Chacha who informed him that his sister-the deceased had left college the evening of 16/5/2018 and had not come back.
47. He told the court that on 21/5/2018, Charles called and informed him that a suspect in school may know where his sister was. He added that the suspect was the accused. He then agreed with Charles to go to Jeff Hamilton and while at the college they met the accused. He stated that the accused and the deceased were relatives adding that they were married and the accused had not paid dowry. He further told court that while in Busia, the accused and the deceased were living in Kinga Ndole village but had separated in April 2018 and had two children.
48. The witness averred that when they asked the accused where deceased was, he told them that she had gone to Ukambani to see their uncle's daughter whom they don't have. He later said she went to Kitale. He told the court that they met the accused in the company of Margaret and other officials and after interrogating him, they escorted the accused to Mlolongo police station and reported the case. Upon reporting the case about his missing sister, the police informed them that they could not hold the accused until investigations were complete. At the police station, they were given OB. No. 52 and recorded statements.
49. The witness further testified that in the office at Hamilton, the accused had two bags. In one of the bags were the deceased's Photographs with several people in it, her ID and voter’s card. The identity card was marked as MFI-1 while the voter's card is marked as MFI-2. He stated that the clothes in the bag were for a male. They were cream shirt and grey trouser.
50. He further testified that while leaving the police station, another police officer approached Silas, an employee of Jeff Hamilton and asked him what they were looking for and upon explaining to him why they were at the police station, the police officer told them that they had taken a female body to city mortuary on 21/5/2018 and asked them to go and check.
51. He stated that they went to city mortuary on 22/5/2018 and inquired on the body brought from Syokimau on 21/5/2018. The mortuary attendant brought a body and after seeing a mark on her leg, he identified her as the deceased herein. He stated that the clothes she was wearing were his wife's. On the face of the deceased, there was no skin, the body was swollen and white because the skin had peeled off. The witness told court that he then called his mother at home who also came later and identified her. He added that on 25/5/2018, he went to the city mortuary in the company of his brother and his mother, identified the deceased's body, witnessed postmortem being conducted after which they made funeral made funeral arrangements and buried the deceased.
52. The witness averred that he later went back to Mlolongo police station and wrote a statement. He added that he also went to the scene of crime in the company of a boda boda and noted that the scene was bushy and was logged with water. He stated that at the scene, they found the gloves which he said belonged to police from mlolongo police station which he noted was about 50-70 meters from the Jeff Hamilton College. He told the court that he had known the accused for a long time since his home was near his mother's home adding that they did not school in the same school.
53. He stated that after the accused and the deceased separated, the deceased went back to their home. It was his testimony that the marriage between the accused and his sister, now deceased was not good as they used to disagree most of the time. Every time the deceased used to come back home the accused would come to get her.
Cross-examination of PW2
54. In cross-examination, the witness told the court that he did not report the constant issues of disagreement between the accused and deceased's marriage to the police station.
55. He averred that when he went to visit the scene of crime on 23/5/2018, he was not in the company of police. He stated that he inquired from the Boda boda riders and found out that the police had been informed of the body dumped in the bush by a man driving a lorry but were not told the name of the man or the Lorry's registration number. He reiterated that at the scene of crime, the ground was dirty with footsteps and had been clogged with water.
56. He stated that the deceased disappeared on 16/5/2018 which was around 5 days before his body was discovered noting that the place where the body was discovered was about 50-70 meters to the college. He said that despite the short distance from the scene of crime, the college students had not seen the body and no smell was reported. He stated that the scene of crime was a path connecting to Jeff Hamilton College where there was only one gate. He added that at the scene of crime, he also found the deceased's pants which was white in colour and there was no presence of blood.
57. He told the court that he went back to the police and informed them of the pant that had been left at the crime scene. However, the police did not take any action. He confirmed that he did not know who killed his sister.
Re-examination of PW2
58. In re-examination, he informed the court that he went to the scene before post-mortem and burial. He also stated that he never got any information from Jeff Hamilton College on whether there was foul smell from the scene of crime. Further, he said that the path towards Jeff Hamilton can allow a lorry to go through. He averred that he took a video recording of the pant and went to police to record statement
PW3 - Peter Marwa Chacha
59. The witness averred that he lived in Fedha Estate in Nairobi but was from Kuria, Migori County. He stated that he had worked with Jeff Hamilton as a training teacher since May 2015 and was promoted as a training manager in 2017.
60. He averred that the deceased joined Jeff Hamilton on 7/5/2018 and trained up to 11/5/2018 and then proceeded for attachment which was only for two days that was on Saturday and Sunday. The deceased was then to return on Monday 14/5/2018. He said that on Thursday 17/5/2018 morning at around 7.00am, he conducted the parade and noticed that the deceased was nowhere to be seen. He then inquired from Margaret Gati (PWI) on the whereabouts of the deceased who told him that she had left school to do an M-pesa transaction.
61. He told court that since training starts at 8:00 am. he called the deceased on her phone number as she was not around but the call did not go through as a consequent of which he assumed that the deceased may be away on leave and thus chose to continue with the training without her.
62. The witness informed told court that the brother to the deceased who was also an employee of Jeff Hamilton called him and asked to know how the sister was fairing on and told him that she was not in college and asked him to collect her certificates. He added that on Monday 21/5/2018, he forwarded a report to the management of the college that Elizabeth Wesonga was missing.
63. He also stated that on Monday 21/5/2018 at around 8:00am he noticed that the accused was limping and upon inquiring with him, he said he got an injury while on attachment.
64. He further stated that upon checking for the deceased's documents, he noted that the deceased had shown his brother as the next of kin whom he called and informed him that the deceased was missing. He said that he also informed him that the last person the deceased was seen with was the accused.
65. PW3 said that on 21/5/2018, he called Patrick and interrogated him after learning from the Gate keeper that he had earlier seen the deceased and the accused leaving together on the evening that she was last seen. He stated that during interrogation, the people present were Silas Otiri, Margaret Gatu, team leaders and himself. He said that he asked Patrick whether he knew Elizabeth which but he denied. The added that he asked him how he had her documents and his answer was that he had been given the documents to go and make photocopies. He added that after the interrogation, he checked the accused's bag and found in it some of his clothes which were dirty and wet and the deceased's ID and voter's card.
66. He informed court that it was weird since the school had a photocopying machine and photocopy charges for students was free of charge. The accused was then taken to the head office and later escorted to the police station.
67. He further informed the court that on the same day of 21/5/2018, the accused was brought back to the school and on 22/5/2018 the detectives from mlolongo police station came to the college and informed them that a body had been found which was unidentified and the brother to the deceased were requested to check the body at city mortuary. He averred that he did not visit the scene of crime which was some distance from the college.
68. He further averred that when joining college, one was required to bring copies of ID card, KCSE certificate and KCPE Certificates which were to be kept in the school's custody.
69. He stated that he never saw the accused and the deceased together during the training adding that the deceased went missing in the evening of 16/5/2018 and was never seen until her dead body was discovered days later.
Cross-examination of PW3
70. In cross-examination, the witness stated that he did not know who killed the deceased and that he never saw anyone beating her. He said that during enrolment, the deceased presented all her documents but was yet to make copies. He averred that it had rained on the evening of 16/5/19 but was not sure if it had rained on 17/5/18. He also stated that due to the weather condition, it was normal for the accused to have wet clothes. He further stated that he did not have the college's admission manual to demonstrate how the admission procedure was conducted at the college.
71. He also told the court that he was aware that Milton Malingu was a student in the senior class where the deceased was training and but stated that he was not aware that the said Milton Malingu had stated in his witness statement that the accused person slept in college on the evening of 16/5/2018. He stated that the College has Simba dormitory and did not know the accused's bed mate. He informed the court that he did not know the last person who saw the deceased.
Re-examination of PW3
72. In re-examination, PW3 stated that he was still an employee of Jeff Hamilton. He stated that he noticed the accused was limping when the deceased was already missing adding that on 17/5/2018, he trained the junior class. He further said that on 16/5/2018, it had rained heavily and that the clothes of the accused were wet and dirty.
73. He also stated that when meals were served, the trainees would pick a plate and be served with meals. He added that there was also a meal register which was marked after being served with food. There was however no record produced before court. He told court that he did his report on weekly basis wherein he had indicated that the deceased was missing without leave. He averred that the beds in the dormitories were wooden double decker. He told the court that he did not know where the accused was sleeping so he could not tell whether he had a bed or otherwise adding that each person was required to record when coming in and out and the same applied to all trainees.
74. PW4- Charles Opiyo Onyango testified that he was a resident of Busia County and a serving military police Officer. He stated that the deceased was his elder sister and that the accused was her boyfriend. He said that he left then in a relationship in the year 2016 and that they always had differences and fought regularly. He stated that their relationship was opposed by the deceased's parents because the accused came from the same clan from his mother. He stated that on 4/5/2018, his mother called and told him that the deceased wanted to come to Nairobi to look for a job and that when she travelled to Nairobi, he came to Nairobi town and picked her from the stage. He added that in the evening of the same day, he left for work in BuruBuru and took her to his employer for interview the following day.
75. It was his testimony that on 11/5/2018, the deceased called and informed him that she had been sent for attachment in baba dogo adding that she spent a night at his house and on 12/5/2018, he took her to the said attachment site.
76. He averred that on Monday, 13/5/2018, the deceased came to his house and asked for money to plait her hair and she proceeded to the salon but she did not come back. He added that he
[...truncated]
IN THE HIGHCOURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO.13 OF 2018
REPUBLIC .........................................................................................PROSECUTOR
-VERSUS-
PATRICK WANYONYI OGARA ................................................................ACCUSED
JUDGEMENT
Introduction
1. The accused herein, Patrick Wanyonyi Ogara, 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 diverse dates between 16th and 17th May, 2018 at Mlolongo in Athi River Sub-County within Machakos County. he murdered Elizabeth Wesonga Opiyo (hereinafter referred to as ‘the deceased’).
2. When the accused was arraigned before this Court, he pleaded not guilty to the offence. He was tried. The hearing of the prosecution’s case was conducted before Hon. G. V. Odunga, J (as he then was). After the close of the prosecution’s case, the Court found that a prima facie case had been established to warrant the accused being placed on his defence.
3. The accused gave a sworn testimony and did not call any witnesses. The accused’s defence was taken by yours truly.
The trial:
4. The prosecution lined up fifteen (15) witnesses to prove the information against the accused.
Hearing of prosecution case
5. This case proceeded for hearing on various dates and Prosecution called 15 witnesses.
6. PWI - Margaret Gati Getingita, told court that she worked as an Administrator at Jeff Hamilton School in Syokimau in the department of training. She averred that she had served in the department for four years having been employed in November 2018. She told the court that her work was to recruit students for training as security personnel. She added that prior to their admission, she scrutinizes their documents and ensure that they eat and keep well while on training. She stated that the role of the Jeff Hamilton College is to train and recruit security personnel.
7. She told court that on the Monday of 7/5/2018, she recruited about 30-40 new members among them, Elizabeth Wesonga (deceased herein). It was her testimony that they trained from Monday up to Friday of 11/5/2018 and that between 12th and 13th May 2018, the deceased was sent for attachment to Baba dogo premier food company.
8. PWI said that the deceased then returned to the college on Monday 14/5/2018 and proceeded with the training. She noted that training normally begins from 6:00 am up to 5:00 pm. She said that on 16/5/2018 she took a break from training. She clarified that the college trains both day scholars and boarding students but stated that the deceased was a boarder.
She informed court that during break, the trainees usually change into civilian clothes while borders are free to leave the compound but must be back by 7:00 pm adding that borders are supposed to get permission to leave the college from the team leader. She stated that on the day the deceased disappeared, the guard in-charge was Daniel Mtampash Sitoya. The college compound is usually fenced by mabati (iron sheets).
9. The witness stated that on 16/5/2018 at around 6.00pm, the deceased, who also doubled up as team leader left college and went outside the school compound to an M-pesa shop and that by around 8:00 pm, the deceased had not yet reported back to the college. She testified that at around 8.00pm, a lady called Agneta Nyangi went to her house and informed her that the deceased had not yet returned to the college.
10. She told court that she checked her records and called her phone number but it was not going through. She stated that she then called the team leader, Philip and asked him to report to her once the deceased comes back to college. She then returned to her house.
11. She stated that while in her house, a student by the name Risper came to her house and informed her that the deceased had an Ex-husband who was in junior class. She stated that she then went back to the college and approached Phillip whom she asked to call for her the deceased's ex-husband. She added that she also went to Simba dormitory to look for the accused and after calling the register book, she found out that both the accused and the deceased were missing after which she went back to her house to sleep.
12. PWI said that on the following day of 17/5/2018 at 8:00 am, she inquired from Risper on whether the deceased’s husband had come back and discovered that he had not returned to college. She stated that she inquired from Phillip, a male team leader on whether the accused had come back and the response was that the accused came back and was in his uniform.
13. She informed court that she then went to the junior class and inquired where the accused was but was told by his classmates that he had gone out to seek medication after seeking permission from Silas Otiri. She stated that she then went to the senior class to make further inquiries and was told that the accused had gone out to the shops. The witness told court that she walked towards the gate and when she was around the gate, someone knocked at the gate and she told the gateman to open the door. It was PWI testimony that while at the gate, someone walked in and Risper told her that the person who had walked in was the accused, the deceased's ex husband.
14. She stated that she stopped the accused and asked him his names. He stated his name was Patrick. She further asked him whether he knew anyone in the school which he denied but on being asked further he agreed that he knew the deceased whom he said was the mother of his children and had two children with her. She added that the accused told her that they were married at one point but had been separated.
15. She told court that when she asked the accused person on whether he knew where the deceased was, his answer was that he did not know her whereabouts saying that he had never spoken to the deceased since he came to Jeff Hamilton. She added that by this time. she had already reported the deceased's absenteeism to the training manager at the college.
16. The witness stated that on 18/5/2018, deployments were done in Elizabeth's class and she was still not back in the college adding that on Monday 21/5/2018, the junior class reported back from attachment wherein Patrick Ogara reported on that same day and was limping. She told court that upon calling him and asking him why he was limping, he said that he had an injury. She added that she advised him to go change into uniform.
17. PWI stated that on 21/5/2018 the deceased was not yet back. She stated that she went to the office to check for her records to establish the next of kin after which she called one Charles Onyango who was listed as her next of kin and informed him that the deceased was not back in college. She said that the deceased had also indicated in her records that the accused was her next of kin and husband.
18. She narrated that Charles Onyango later called and informed her that he had called home and the deceased was not there. She told court that herself and Charles Marwa then called the accused for further questioning. It was her testimony that while in the office, Chacha Marwa, the training Manager questioned the accused on who referred him to the college and his answer was that it was Evans who had brought him to Jeff Hamilton. She added that the accused admitted knowing the accused and clarified that she was the one who connected him and sent him transport to come to the college. She stated that Chacha Marwa then asked the accused to bring his bag for inspection which he complied with adding that on checking his bag, she found the following personal items which included three phones, three civilian clothes and Safaricom cards belonging to the deceased. She stated that in the bag there were also deceased's photos, Identity card and voter's card.
19. She told court that on being asked why he had the deceased's documents. His answer was that she had given him to make copies. The witness stated that she then called Charles Marwa and asked him to accompany her so that they could jointly report the case to the police which request he honoured. She stated that she then took Charles Marwa to the CEO of Jeff Hamilton College who also requested that the case be handled by the police after which the Assistant training manager and deceased's two brothers then headed to the police station in Mlolongo.
20. It was her testimony that she later learnt from the Assistant Training Manager on 21/5/2018 while at the police station that police had told them that they had recovered a body in a neighbouring open filed and took it to city mortuary. She then wrote a statement at Mlolongo Police Station.
21. She testified that the school compound was not very big adding that it was about half an acre and noted further that the gateman told her that the accused returned at 5:30 am on 17/5/2018 and upon asking the accused where he was the previous night on 16/5/2018, his reply was that he was in college.
Cross-examination of PWI
22. In cross-examination, she told the court that the duties of the security guard-Daniel Mtampash Sitoya at the gate on the evening of 16/5/2018 when the deceased went missing of was to guard the gate and search people who entered the College through the main gate. She averred that there was a register book at the gate which was only for day scholars. She also stated that at the gate, entries in the register were made as from 5:00 am where only day scholars were recorded.
23. She further told the court that at the College, they had two team leaders that was Phillip as the male leader while the deceased was the female team leader. She also stated that Risper was not a team leader. Additionally, she told the court that on the evening of 16/5/2018 it had rained a lot for it was a very rainy season.
24. She told court that on 16/5/2018, she called everybody in Simba male dormitory, took roll calls with Philip, the male team leader by calling out names of trainees wherein it was established that the accused was not present as he did not answer when his name was called out.
25. She further told the court that the male dorm had seven beds which were double decker's totalling to 14 beds. She added that the changing room also hosted male students which had two beds - double decker's totalling to four beds and two small beds. She concluded that the total number of all beds were twenty. She testified that the accused person used to sleep in Simba dorm adding that he slept on a double bed but she couldn't remember his neighbour. She added that while looking for the accused, they checked all male dorms and beds but found them to be empty. She concluded that the accused was not in the school compound.
26. When asked about a witness by the name-Milton Malingu who stated in his statement that the accused slept in the male dormitory in the night of 16/5/2018, his answer was that she did not interact with Milton Malingu on that evening insisting that all meals were taken in class. She added that both male and female trainees usually ate in class. She testified that Milton was lying to say that he saw accused in class in the evening of 16/5/2018.
27. She told court that on 17/5/2018, Risper showed her the accused and while asking him questions, she was alone and Risper did not hear their conversation. She reiterated that the deceased started training on 7/5/2018 and was to graduate on 18/5/2018 but that she disappeared two days prior to graduation.
28. PWI told court that at the time or recruitment, she took the deceased's original identity card and certificates. She confirmed that details of documents taken from the deceased were recorded in the documentation book but told court that she did not produce the said book in court.
29. She also informed court that before they deploy students for training, they were required to provide their NHIF card, NSSF card, KRA certificate, certificate of good conduct, Chief’s letter with one referee and a photocopy of Identity card which documents she stated are usually brought before graduation. She added that when the documents are brought, they are filed, students are registered and sign against the registration form.
30. She told the court that she knew this was a murder case and that she did not see the accused killing the deceased. She further stated that she did not know who killed the deceased adding that she only handed the case to police for investigation.
Re-examination of PWI
31. In re-examination, the witness told the court that the team leader is normally one and that Phillip was overall team leader. She added that the deceased was the ladies team leader. She stated that in regard to the register book, it had names of students and entries. She added that it also had columns for breakfast, lunch and supper and that before any meal was taken, the register was called and marked accordingly.
32. The witness also told court that Moses was from junior male class and that Daniel Matambashi was a trainee student in the senior class adding that Daniel's work was to confirm the purpose of visit, names and then entered particulars in the register book. She added that Daniel had to counter sign in the register book as well.
33. It was her testimony that only day scholars were to sign in the register book when they walked in and out of college adding that no border was to sign the register. She stated that in case a border left the college, they were to be back in the college by 6.00am in case they had slept out.
34. She stated that during meal time, the team leader, Philip rang the bell and all students assembled in Simba room to take their meals.
35. In regards to the dorms, she stated that there were some on the ground floor while others were in the first floor. She added that on the ground floor, there were also classes. On first floor were dorms for girls and offices. She noted that for males, there were two changing rooms and dorms were on the ground floor. She stated that the changing room had five beds asserting that Simba room which was the male dormitory had seven double decker beds totalling to fourteen beds. The female room on the other hand had two decker beds totalling to four beds. She added that there were also extra six mattresses in the class corridor. The mattresses were there in case of any extra recruitment.
36. PWI stated that normally, there are more male trainees and therefore some of them used to reside in the changing room on the ground floor but added that the beds were big, and sometimes the students used to share.
37. The witness testified that the accused used to sleep in Simba room where she went to check for him on the fateful night and he was not there. She also stated that when they were taking roll calls, the students had not taken supper.
38. She told court that when she heard a knock at the gate, she informed Daniel that someone was knocking and he allowed him in and found out that it was Patrick.
39. It was her testimony that prior to recruitment, they checked height, age and academic credentials of the trainees. She clarified that on recruitment of the students. they did not take copies of Identity cards, NSSF or NHIF cards but added that the photocopies of the documents were to be brought on Thursday or Friday of that same week. She reiterated that the deceased disappeared on Wednesday evening on 16/5/2018.
40. PW2 - Nobert Oduori Opiyo testified that he lives in Kayole in Nairobi and worked with Yam Company as a delivery officer. The deceased was his sister.
41. It was his testimony that on 5/5/2018, the deceased left their home in Busia to come to Nairobi and arrived on 6/5/2018 and was picked by his brother- Charles whom he said was also working with Jeff Hamilton and had connected her to join the college.
42. He stated that Charles and the deceased came to his house on 6/5/2018 and he gave them bus fare and they went to Jeff Hamilton training centre.
43. He told the court that the deceased started training on 7/5/2018 and that on 11/5/2018, she was sent on attachment and stayed in his house until the end of her attachment at premier food company between 11/5/2018 - 13/5/2018.
44. The witness further told court that on Monday 14/5/2018, the deceased went to buy hair oil. He stated that he left behind Kshs.200/= to his wife to give the deceased who would use it as bus fare. He later called his wife who confirmed that the deceased went back to the college.
45. He averred that on 16/5/2018 between 6:30pm and 7:00 pm, the deceased told him that she had been sent to get NHIF and KRA cards but she did not have transport to take her to town on the following day 17/5/2018. He stated that he told her that she would send Charles to take her to town. He stated that on 17/5/2018, Charles called him and informed him that the deceased's phone was off. He therefore called her number and it was off. He added that when he called the deceased's telephone number were still 18/5/2018.
46. PW2 stated that there was a girl by the name Mary, whom the deceased had requested her to collect her birth certificate from him on 14/5/2018. It was his testimony that he then called the deceased's teacher/trainer by the name Chacha who informed him that his sister-the deceased had left college the evening of 16/5/2018 and had not come back.
47. He told the court that on 21/5/2018, Charles called and informed him that a suspect in school may know where his sister was. He added that the suspect was the accused. He then agreed with Charles to go to Jeff Hamilton and while at the college they met the accused. He stated that the accused and the deceased were relatives adding that they were married and the accused had not paid dowry. He further told court that while in Busia, the accused and the deceased were living in Kinga Ndole village but had separated in April 2018 and had two children.
48. The witness averred that when they asked the accused where deceased was, he told them that she had gone to Ukambani to see their uncle's daughter whom they don't have. He later said she went to Kitale. He told the court that they met the accused in the company of Margaret and other officials and after interrogating him, they escorted the accused to Mlolongo police station and reported the case. Upon reporting the case about his missing sister, the police informed them that they could not hold the accused until investigations were complete. At the police station, they were given OB. No. 52 and recorded statements.
49. The witness further testified that in the office at Hamilton, the accused had two bags. In one of the bags were the deceased's Photographs with several people in it, her ID and voter’s card. The identity card was marked as MFI-1 while the voter's card is marked as MFI-2. He stated that the clothes in the bag were for a male. They were cream shirt and grey trouser.
50. He further testified that while leaving the police station, another police officer approached Silas, an employee of Jeff Hamilton and asked him what they were looking for and upon explaining to him why they were at the police station, the police officer told them that they had taken a female body to city mortuary on 21/5/2018 and asked them to go and check.
51. He stated that they went to city mortuary on 22/5/2018 and inquired on the body brought from Syokimau on 21/5/2018. The mortuary attendant brought a body and after seeing a mark on her leg, he identified her as the deceased herein. He stated that the clothes she was wearing were his wife's. On the face of the deceased, there was no skin, the body was swollen and white because the skin had peeled off. The witness told court that he then called his mother at home who also came later and identified her. He added that on 25/5/2018, he went to the city mortuary in the company of his brother and his mother, identified the deceased's body, witnessed postmortem being conducted after which they made funeral made funeral arrangements and buried the deceased.
52. The witness averred that he later went back to Mlolongo police station and wrote a statement. He added that he also went to the scene of crime in the company of a boda boda and noted that the scene was bushy and was logged with water. He stated that at the scene, they found the gloves which he said belonged to police from mlolongo police station which he noted was about 50-70 meters from the Jeff Hamilton College. He told the court that he had known the accused for a long time since his home was near his mother's home adding that they did not school in the same school.
53. He stated that after the accused and the deceased separated, the deceased went back to their home. It was his testimony that the marriage between the accused and his sister, now deceased was not good as they used to disagree most of the time. Every time the deceased used to come back home the accused would come to get her.
Cross-examination of PW2
54. In cross-examination, the witness told the court that he did not report the constant issues of disagreement between the accused and deceased's marriage to the police station.
55. He averred that when he went to visit the scene of crime on 23/5/2018, he was not in the company of police. He stated that he inquired from the Boda boda riders and found out that the police had been informed of the body dumped in the bush by a man driving a lorry but were not told the name of the man or the Lorry's registration number. He reiterated that at the scene of crime, the ground was dirty with footsteps and had been clogged with water.
56. He stated that the deceased disappeared on 16/5/2018 which was around 5 days before his body was discovered noting that the place where the body was discovered was about 50-70 meters to the college. He said that despite the short distance from the scene of crime, the college students had not seen the body and no smell was reported. He stated that the scene of crime was a path connecting to Jeff Hamilton College where there was only one gate. He added that at the scene of crime, he also found the deceased's pants which was white in colour and there was no presence of blood.
57. He told the court that he went back to the police and informed them of the pant that had been left at the crime scene. However, the police did not take any action. He confirmed that he did not know who killed his sister.
Re-examination of PW2
58. In re-examination, he informed the court that he went to the scene before post-mortem and burial. He also stated that he never got any information from Jeff Hamilton College on whether there was foul smell from the scene of crime. Further, he said that the path towards Jeff Hamilton can allow a lorry to go through. He averred that he took a video recording of the pant and went to police to record statement
PW3 - Peter Marwa Chacha
59. The witness averred that he lived in Fedha Estate in Nairobi but was from Kuria, Migori County. He stated that he had worked with Jeff Hamilton as a training teacher since May 2015 and was promoted as a training manager in 2017.
60. He averred that the deceased joined Jeff Hamilton on 7/5/2018 and trained up to 11/5/2018 and then proceeded for attachment which was only for two days that was on Saturday and Sunday. The deceased was then to return on Monday 14/5/2018. He said that on Thursday 17/5/2018 morning at around 7.00am, he conducted the parade and noticed that the deceased was nowhere to be seen. He then inquired from Margaret Gati (PWI) on the whereabouts of the deceased who told him that she had left school to do an M-pesa transaction.
61. He told court that since training starts at 8:00 am. he called the deceased on her phone number as she was not around but the call did not go through as a consequent of which he assumed that the deceased may be away on leave and thus chose to continue with the training without her.
62. The witness informed told court that the brother to the deceased who was also an employee of Jeff Hamilton called him and asked to know how the sister was fairing on and told him that she was not in college and asked him to collect her certificates. He added that on Monday 21/5/2018, he forwarded a report to the management of the college that Elizabeth Wesonga was missing.
63. He also stated that on Monday 21/5/2018 at around 8:00am he noticed that the accused was limping and upon inquiring with him, he said he got an injury while on attachment.
64. He further stated that upon checking for the deceased's documents, he noted that the deceased had shown his brother as the next of kin whom he called and informed him that the deceased was missing. He said that he also informed him that the last person the deceased was seen with was the accused.
65. PW3 said that on 21/5/2018, he called Patrick and interrogated him after learning from the Gate keeper that he had earlier seen the deceased and the accused leaving together on the evening that she was last seen. He stated that during interrogation, the people present were Silas Otiri, Margaret Gatu, team leaders and himself. He said that he asked Patrick whether he knew Elizabeth which but he denied. The added that he asked him how he had her documents and his answer was that he had been given the documents to go and make photocopies. He added that after the interrogation, he checked the accused's bag and found in it some of his clothes which were dirty and wet and the deceased's ID and voter's card.
66. He informed court that it was weird since the school had a photocopying machine and photocopy charges for students was free of charge. The accused was then taken to the head office and later escorted to the police station.
67. He further informed the court that on the same day of 21/5/2018, the accused was brought back to the school and on 22/5/2018 the detectives from mlolongo police station came to the college and informed them that a body had been found which was unidentified and the brother to the deceased were requested to check the body at city mortuary. He averred that he did not visit the scene of crime which was some distance from the college.
68. He further averred that when joining college, one was required to bring copies of ID card, KCSE certificate and KCPE Certificates which were to be kept in the school's custody.
69. He stated that he never saw the accused and the deceased together during the training adding that the deceased went missing in the evening of 16/5/2018 and was never seen until her dead body was discovered days later.
Cross-examination of PW3
70. In cross-examination, the witness stated that he did not know who killed the deceased and that he never saw anyone beating her. He said that during enrolment, the deceased presented all her documents but was yet to make copies. He averred that it had rained on the evening of 16/5/19 but was not sure if it had rained on 17/5/18. He also stated that due to the weather condition, it was normal for the accused to have wet clothes. He further stated that he did not have the college's admission manual to demonstrate how the admission procedure was conducted at the college.
71. He also told the court that he was aware that Milton Malingu was a student in the senior class where the deceased was training and but stated that he was not aware that the said Milton Malingu had stated in his witness statement that the accused person slept in college on the evening of 16/5/2018. He stated that the College has Simba dormitory and did not know the accused's bed mate. He informed the court that he did not know the last person who saw the deceased.
Re-examination of PW3
72. In re-examination, PW3 stated that he was still an employee of Jeff Hamilton. He stated that he noticed the accused was limping when the deceased was already missing adding that on 17/5/2018, he trained the junior class. He further said that on 16/5/2018, it had rained heavily and that the clothes of the accused were wet and dirty.
73. He also stated that when meals were served, the trainees would pick a plate and be served with meals. He added that there was also a meal register which was marked after being served with food. There was however no record produced before court. He told court that he did his report on weekly basis wherein he had indicated that the deceased was missing without leave. He averred that the beds in the dormitories were wooden double decker. He told the court that he did not know where the accused was sleeping so he could not tell whether he had a bed or otherwise adding that each person was required to record when coming in and out and the same applied to all trainees.
74. PW4- Charles Opiyo Onyango testified that he was a resident of Busia County and a serving military police Officer. He stated that the deceased was his elder sister and that the accused was her boyfriend. He said that he left then in a relationship in the year 2016 and that they always had differences and fought regularly. He stated that their relationship was opposed by the deceased's parents because the accused came from the same clan from his mother. He stated that on 4/5/2018, his mother called and told him that the deceased wanted to come to Nairobi to look for a job and that when she travelled to Nairobi, he came to Nairobi town and picked her from the stage. He added that in the evening of the same day, he left for work in BuruBuru and took her to his employer for interview the following day.
75. It was his testimony that on 11/5/2018, the deceased called and informed him that she had been sent for attachment in baba dogo adding that she spent a night at his house and on 12/5/2018, he took her to the said attachment site.
76. He averred that on Monday, 13/5/2018, the deceased came to his house and asked for money to plait her hair and she proceeded to the salon but she did not come back. He added that he
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