1. The accused persons, Tom Otieno Magumba , Ekiru Arema Chegem and Charles Obonyo Yongo, hereinafter referred to as accused no. 1, 2 and 3 respectively, are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the Information are that on the night of 20th and 21st May 2015, at Motonto Administration Police Post, Bomorenda Location within Kisii County, the accused persons, jointly with another person not before the Court, unlawfully murdered Francis Mainyura.
2. Each of the accused persons pleaded not guilty, and the case proceeded to a full hearing . The prosecution called nine witnesses. Upon being placed on their defence, each accused gave sworn testimony. All the accused were duly represented by Counsel as required by law .
Prosecution Evidence
3. PW1, Alice Kemunto, was the deceased’s girlfriend and had been cohabiting with him before the material date . Her evidence was that on 20th May 2015, the deceased assaulted her, threatened her with an axe and burnt her clothes. She ran away to the home of her cousin, Stephen Omwanso, who testified as PW2. The deceased followed her there while carrying petrol and a matchbox. According to PW1, the deceased threatened to set Stephen’s house on fire. He was restrained by members of the public and taken to the area chief, who advised that he be taken to Motonto Police Post.
4. PW1 testified that the deceased was left at the police post. She was later called back and found him hanging by the window with a belt around his neck. She identified the belt as belonging to the deceased. On cross-examination, she conceded that it was dark, that she did not know the officers at the post before that night, and that she could not exclude suicide.
5. PW2, Stephen Omwanso, confirmed that the deceased went to his home while carrying petrol and a matchbox. He stated that the deceased was behaving strangely and that he was taken to the chief and later to Motonto Police Post. He later learnt that the deceased had been found hanging at the post. PW2 could not state whether the death was suicide or not.
6. PW3, Joseph Onsarigo, identified the body of the deceased for purposes of post-mortem examination. His evidence was formal.
7. PW4, Dr. Peter Asuba, a pathologist and lecturer at Maseno University School of Medicine, performed the post-mortem examination on the body of the deceased at Nyangena Hospital. He found a black leather belt around the neck of the deceased, a pattern of abrasions around the neck, bruising of the anterior neck muscles, congested neck veins and bloody frothy fluid in the trachea. He also noted healed or partially healed injuries on the face, hand, forearm, arm, shoulder and back.
8. PW4 formed the opinion that the cause of death was asphyxia due to hanging with a ligature or belt. He produced the post-mortem report. On cross-examination, he clarified that the external injuries appeared to have been sustained before death. He further stated that he could not conclusively say that the deceased committed suicide because he did not have the full clinical history and did not have photographs of the scene at the time of the post-mortem. His medical conclusion was limited to the fact that the deceased died while hanging. Importantly, he also stated that, considering the circumstances described, a person could have hanged himself from the position described without necessarily involving a third party.
9. PW5, Corporal Charles Kitur, a gazetted scenes-of-crime officer, visited the scene on 21st May 2015 at about 3.25 a.m. He accompanied other officers, including the OCS Gesonso and Corporal Rono to the scene of the crime herein. He found the deceased hanging near a window inside an office at Motonto AP Camp, with a belt around his neck tied to the window grills. He observed blood stains on the deceased’s left ear and took six photographs of the scene. He produced the photographs and the certificate.
10. On cross-examination, PW5 stated that his role was limited to taking photographs. He did not dust the scene for fingerprints. He did not lift fingerprints from the window grills. He did not see any signs of struggle at the scene. He also stated that he did not recall whether the accused persons were at the scene when he arrived.
11. PW6, Sergeant Emmanuel Rono, was the duty officer at Gesonso Police Station. He testified that on 21st May 2015 at about 2.20 a.m., he received a report from Sergeant Tom Agunda and Corporal Ekiru Chegem that a suspect had allegedly committed suicide at Motonto AP Camp. He proceeded to the scene with the OCS and other officers. They found the deceased hanging with a belt around his neck. Photographs were taken. PW6 opened an inquest file. He stated that the belt could not be dusted for fingerprints because its surface was rough.
12. PW6 testified that his investigations showed that the deceased had earlier quarrelled with Alice Kemunto, that Alice had escaped to Stephen’s home, and that the deceased followed her there while armed with petrol and a matchbox. He was then arrested by members of the public and taken to Motonto AP Camp. PW6 said he was later advise to open and inquest file but IPOA later took up investigations and recommended that the accused herein be charged with murder.
13. On cross-examination, PW6 stated that he had worked with the accused officers for a long time and that they had not previously been involved in criminal activities. He confirmed that the deceased had been arrested for attempted arson and that taking him to Motonto AP Camp was prudent because it was the nearest available post pending arrangements for transport to a gazetted police station. He further confirmed that there was no complaint by members of the public against the accused persons, that the deceased did not know the accused persons before the incident, and that the dispute was between the deceased and his girlfriend. In re-examination, he maintained that, from his investigations, the deceased died by suicide and was not handcuffed.
14. PW7, Thadeus Tinega, a retired assistant chief, testified that after receiving reports about the deceased’s conduct, he referred the members of the public to Motonto Police Post. He stated that the deceased was initially in a good state and agreed to go with them. He was later found hanging at the police post. PW7 could not recall who received the deceased at the post.
15. PW8, Charles Oyugi, a brother of the deceased, identified the body at the mortuary. He observed a belt around the deceased’s neck and small marks on the hands and face.
16. PW9, Christopher Ogega, an investigator from IPOA, investigated the death. He confirmed that the deceased died at Motonto AP Camp. He testified that Motonto was not a gazetted police cell, that the 1st accused was the officer in charge, and that the 2nd accused received the deceased. He also admitted that the belt belonged to the deceased, that there was no fingerprint evidence linking either accused to the belt, that there were no documented signs of a struggle, that there was no evidence that the deceased had been restrained, and that no witness saw either accused person strangle or assault the deceased. He further confirmed that the injuries noted on the deceased had partially healed. PW9 also stated that the standard procedure for arranging transfer to a gazetted station had been initiated. He said that the accounts given by accused were not adding up and thus Inquest case no. 4 of 2018 was opened and it was recommended that accused be charged .
The Defence Evidence
17. DW1, Senior Sergeant Tom Otieno Magumba, the 1st accused, testified that in 2015 he was attached to Kisii Central Sub-County Headquarters but was in charge of Motonto Administration Police Post. On the material evening, he left the post to buy phone credit and food after informing Corporal Ekiru Chegem to take charge. While away, he received information from the area assistant chief that a suspect had been handed over to Corporal Chegem.
18. DW1 stated that he was informed that the suspect had quarrelled with a woman, burnt her clothes, picked an axe, and later followed her to her cousin’s house where he was arrested by members of the public. Because Motonto AP Post had no gazetted cells, DW1 called Gesonso Police Station and later the Sub-County AP Commander to arrange for a vehicle to transfer the suspect.
19. DW1 testified that when he returned to the post at about 11.15 p.m, he found the office door locked with a padlock from outside. Through the window, he saw a person hanging from the window grill with a belt around the neck. He called Corporal Ekiru and informed the OCS Gesonso Police Station. The scene was thereafter processed and the body taken to the mortuary. He denied tampering with the scene or assaulting the deceased.
20. DW2, Ekiru Arema Chegem, the 2nd accused, testified that he was then a Corporal at Motonto AP Camp. He stated that Sergeant Magumba called him and informed him that the assistant chief was bringing a suspect to the post. The suspect was brought by members of the public, including the assistant chief, the suspect’s girlfriend and the owner of the house where the incident had allegedly occurred. DW2 said the suspect had no visible injuries when he arrived.
21. DW2 testified that he tried to speak to the suspect, but the suspect remained quiet and looked at his wife or girlfriend. Since the post had no cells, DW2 placed the suspect in the office, locked the office door with a padlock, and went to pick his phone and call DW1. He then went to the washroom. While there, he heard Sergeant Magumba raise alarm. He rushed to the office and found the deceased hanging by a belt. DW2 denied injuring, assaulting or killing the deceased.
22. The defence case, in summary, was that the deceased was brought to Motonto AP Post as a suspect by members of the public and the assistant chief; that the post had no proper cells; that the deceased was temporarily placed in an office pending transfer to a gazetted police station; that none of the accused persons assaulted him; and that he was later found hanging by his own belt from the window grill.
23. The case raises a grave concern to the public because the deceased died while in lawful custody in Motonto police post. A death occurring in police custody, or in a place where a person has been placed under the control of law enforcement officers, calls for careful judicial scrutiny. The State bears a special duty to account for the safety of persons placed in its custody. However, the seriousness of the circumstances does not lessen the burden of proof resting upon the prosecution. The Court must still determine, on the evidence, whether the accused persons caused the death of the deceased by an unlawful act or omission, and whether they did so with malice aforethought.
The Applicable Law
24. Section 203 of the Penal Code defines murder as follows:
“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
25. It follows that, for a conviction for murder to stand, the prosecution must prove beyond reasonable doubt the following ingredients:
a. the fact and cause of death of the deceased;
b. that the death was caused by an unlawful act or omission of the accused person; and
c. that the unlawful act or omission was accompanied by malice aforethought as defined under section 206 of the Penal Code.
26. The burden of proof in criminal cases remains upon prosecution. The accused person bears no duty to prove innocence. The classic statement of that principle is found in Woolmington v Director of Public Prosecutions [1935] AC 462, where the House of Lords stated that the duty of proving the prisoner’s guilt is on the prosecution. That principle is now firmly embedded in our constitutional and criminal law. Article 50(2)(a) of the Constitution guarantees every accused person the right to be presumed innocent until the contrary is proved.
27. The Court of Appeal in Pius Arap Maina v Republic [2013] eKLR restated that the prosecution must prove a criminal charge beyond reasonable doubt and that any doubt must be resolved in favour of the accused. It is also trite law that suspicion, however strong, cannot form a ground for a conviction.
28. . The law on circumstantial evidence is settled. In R v Kipkering arap Koske & Another (1949) 16 EACA 135, the former Court of Appeal for Eastern Africa held that, in order to justify a conviction based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.
29. The same principle was restated in Sawe v Republic [2003] KLR 364, where the Court of Appeal held that suspicion, however strong, cannot provide the basis for inferring guilt. The Court stated that before drawing an inference of guilt from circumstantial evidence, the court must be sure that there are no other co-existing circumstances which would weaken or destroy the inference.
30. In Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990, the Court of Appeal held that ‘ “ lt 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 guilt of the accused; (iii) the circumstances taken cumulatively, should form 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.’’
31. On malice after thought, it is trite law that the actus reus alone cannot constitute the offence of murder unless it is accompanied by men rea or malice afterthought. Malice aforethought is defined under section 206 of the Penal Code as follows :-
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.
31.In the case of Moses Wanjala Ngaira v Republic [2019] eKLR, the Court of Appeal held as follows:
30. In Daniel Muthee v Republic [2007] eKLR, this Court addressing the issue of malice aforethought stated as follows:
“When the appellant set upon the deceased and cut her with a panga several times and proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased person on the head with a sharp instrument would cause death or harm to the victims. We are therefore satisfied that malice aforethought was established in terms of section 206(b) of the Penal Code.”
32. In the case of David Wekesa Namachanja v Republic [2021] eKLR, the Court of Appeal cited the case of Republic v Tumbere S/O Ochen (1945) 12 EACA 63, the Eastern Africa Court of Appeal where the EACA set out the following factors to be considered in determining whether malice aforethought has been established:
“The nature of the weapon used; the manner in which it was used; the part of the body targeted; the nature of the injuries inflicted either a single stab/wound or multiple injuries; the conduct of the accused before during and after the incident.”
33. In Dhadho v Republic (Criminal Appeal 78 of 2021) [2023] KECA 280 (KLR) (17 March 2023) (Judgment) held that:
34. From the injuries indicated in the post mortem report adduced by PW6, we find that there was malice aforethought since it is evident that the appellant’s intention was to do grievous harm or to cause the death of the deceased. The appellant attacked the deceased on the head which is a vital part of the body. Further, the injuries were so severe that the deceased had to be admitted in the intensive care unit until she succumbed.”
35. Mens rea or malice aforethought may be established by proof of an intention to cause death, an intention to cause grievous harm, knowledge that the act or omission causing death would probably cause death or grievous harm, or other circumstances set out in that section. In Republic v Tubere s/o Ochen [1945] 12 EACA 63, the Court stated that, in determining malice aforethought, the court may consider the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, the nature of the injuries inflicted, and the conduct of the accused before, during and after the attack.
Issues for Determination
33. Having considered the evidence, the following issues arise for determination:
a. Whether the fact and cause of death of Francis Mainyura were proved;
b. Whether the prosecution proved beyond reasonable doubt that either accused person caused the death by an unlawful act or omission;
c. Whether malice aforethought was established; and
d. Whether, in the alternative, the evidence discloses a lesser offence.
Whether Death and Cause of Death Were Proved
34. There is no dispute that Francis Mainyura died. PW3 and PW8 identified the body. PW4 performed the post-mortem examination. PW5 photographed the scene where the body was found hanging. PW6 and PW9 also confirmed that the body was recovered from Motonto AP Camp. I therefore find that the prosecution proved the fact of death .
Whether the Accused Persons Caused the Death
35. This is the central issue in the case. The prosecution was required to prove, beyond reasonable doubt, that the accused persons, or either of them, caused the death of the deceased by an unlawful act or omission. The evidence establishes that the deceased was taken to Motonto AP Post alive. It also establishes that he was later found dead within the premises of that post. That fact is of grave concern to the public . Where a person dies in police custody, the police officers under whose custody he was placed are expected to offer a credible explanation. That expectation arises from the State’s duty to protect the life and safety of persons in custody. However, that expectation does not reverse the burden of proof. It does not permit the Court to convict merely because the deceased died within a police post. The Court has to determine whether the prosecution there is direct evidence pointing to the guilt of accused and prosecution seek to rely on circumstantial evidence , it must evaluate the evidence together with defence and determine whether it excludes every reasonable hypothesis consistent with the innocence of the accused persons as was held in the Abanga case (Supra ).
36. In the instant case, prosecution did not call any witness who saw either accused person assault, strangle, hang or otherwise inflict violence upon the deceased. There was no confession. There was no forensic evidence linking the accused persons to the belt used in the hanging. There was no evidence of fingerprints on the belt or window grill. No witness testified that the deceased cried out, struggled with, or was attacked by the accused persons. The scenes-of-crime officer did not observe signs of struggle at the scene.
37. PW9, the IPOA investigator conceded that the belt belonged to the deceased; that there was no fingerprint evidence linking the accused persons to the belt; that there were no documented signs of a struggle; that there was no evidence of restraint; and that no witness saw either accused strangle or assault the deceased. He further confirmed that Pw4 found that the injuries observed on the deceased were partially healed.
38. The pathologist, PW4, also gave evidence that weakens the prosecution theory of homicide by the accused persons. He further confirmed that the injuries observed on the deceased were partially healed. The partial healing of the injuries means that the possibility of them being inflicted by accused is ruled out . Although he did not conclusively classify the death as suicide, he stated that the deceased died while hanging and that, from the circumstances described, it was possible for a person to hang himself from that position without the intervention of a third party.
39. The evidence of PW1 and PW2 described the deceased’s state shortly before he was taken to the police post. PW1 said the deceased had assaulted her, threatened her with an axe, burnt her clothes, followed her with petrol and a matchbox, and threatened to set PW2’s house on fire. PW2 confirmed that the deceased came carrying petrol and a matchbox and was behaving strangely. That evidence is relevant because it provides a possible background of agitation, emotional disturbance or irrational conduct by the deceased shortly before his death.
40. It is not the duty of the defence to prove that the deceased committed suicide. The question is whether the possibility of suicide, on the evidence, is a reasonable hypothesis that has not been excluded by the prosecution. In my view, the prosecution evidence itself left open the reasonable possibility that the deceased hanged himself.
41. The Court cannot fill evidentiary gaps through suspicion. The fact that the death occurred at a police post raises suspicion and a legitimate concern. It may also point to possible negligence or breach of custodial procedures. But suspicion, however strong, is not proof beyond reasonable doubt. As held in Sawe v Republic [2003] KLR 364, suspicion cannot be the basis of a conviction.
Case Against the 1st Accused
46. The evidence against the 1st accused is that he was the officer in charge of Motonto AP Post. He was therefore the senior officer administratively responsible for the post. However, criminal liability for murder cannot rest only on administrative responsibility. The prosecution had to prove that he personally committed an unlawful act or omission that caused the death, or that he participated in a common design to kill the deceased.
47. The evidence does not establish that the 1st accused received the deceased at the post. DW1 stated that he had left the post and that DW2 was in charge when the deceased was brought. That evidence was not displaced. PW9’s evidence was that the 1st accused was the officer in charge and that the 2nd accused received the deceased. PW7 could not recall who received the deceased.
48. DW1’s evidence that he called Gesonso Police Station and the Sub-County AP Commander to arrange for transport to move the deceased to a gazetted police station was not materially controverted. PW6 and PW9 confirmed that Motonto AP Post was not a gazetted cell and that steps to arrange transfer had been initiated.
49. There is no evidence that the 1st accused assaulted the deceased. There is no evidence that he tied the belt around the deceased’s neck. There is no evidence that he assisted or encouraged the deceased to hang himself. There is also no evidence that he was present in the office with the deceased immediately before the death.
50. At most, the prosecution established that the deceased died at a post under the command of the 1st accused. That is not sufficient to prove murder. Administrative command may attract disciplinary, supervisory or civil questions where appropriate, but it does not, without proof of a actus reus or omission and malice aforethought, amount to criminal liability for murder.
51. I therefore find that the prosecution did not prove beyond reasonable doubt that the 1st accused caused the death of the deceased.
Case Against the 2nd Accused
52. The case against the 2nd accused is stronger in one respect: he was the officer who received the deceased and placed him in the office. He was therefore the last officer known to have had direct interaction with the deceased before the body was discovered.
53. The 2nd accused admitted that the deceased was placed in an office because the post had no cells. He also admitted that the deceased was locked inside the office. It is apparent that the deceased retained his belt. The failure to search a suspect properly and remove a belt, shoelaces or any item that may be used for self-harm is a lapse in custodial care. A person placed in police custody is under the control of the officers. The officers owe such a person a duty of care.
54. However, the question before this Court is not whether there was a procedural lapse. The question is whether that lapse, on the evidence, proves murder, or any other unlawful killing, beyond reasonable doubt.
55. There is no evidence that the 2nd accused assaulted the deceased. There is no evidence that he tied the belt around the deceased’s neck. There is no evidence that he knew the deceased would probably use the belt to hang himself. There is no evidence that he intentionally left the belt with the deceased to facilitate self-harm. There is also no evidence of prior hostility or motive.
56. The prosecution was required to prove actus reus . It had to establish that the omission attributed to the 2nd accused was the cause of death and that it was accompanied by the necessary mens rea for murder, or at least by such gross negligence as would sustain a lesser offence. The evidence falls short of that threshold.
57. The possibility that the deceased, while emotionally disturbed, used his own belt to hang himself remains a reasonable hypothesis. The prosecution did not exclude it. In those circumstances, the Court cannot infer that the 2nd accused killed the deceased merely because he was the officer who received him and he did not take possession of his belt . The Omissions of 2nd accused amount to negligence which is not a lesser offence of murder . can be dealt with administrativelly
58. I therefore find that the prosecution did not prove beyond reasonable doubt that the 2nd accused caused the death of the deceased by an unlawful act or omission amounting to murder.
59. On the 3rd accused, it has emerged that he was a mere sentry at the gate of the post at the material time and he had gone to get supper and did not interact with the deceased at any point. I find no evidence linking him to the offence .
Whether Malice Aforethought Was Proved
59. Even assuming that causation had been proved, the prosecution was further required to prove malice aforethought under section 206 of the Penal Code.
60. There is no evidence that either accused person intended to cause the death of the deceased. There is no evidence that any of the accused herein intended to cause grievous harm. There is no evidence that either accused knew that his act or omission would probably cause death or grievous harm. There is no weapon, no assault, no threats, no prior disagreement, no motive, and no conduct from which malice can safely be inferred.
61. The relationship between the accused persons and the deceased appears to have been purely official . The deceased was taken to the post by members of the public and the local administration. The dispute that preceded his arrest was between him and PW1. There was no evidence that the deceased had any previous quarrel with the accused .
62. In Republic v Tubere s/o Ochen [1945] 12 EACA 63, the Court identified the nature of the weapon used, the part of the body targeted, the manner of attack and the conduct of the accused as relevant indicators of malice aforethought. In this case, there is no proven attack by either accused person. There is therefore no evidentiary basis upon which malice aforethought can be inferred.
63. I accordingly find that malice aforethought was not proved .
Whether a Lesser Offence Is Disclosed
64. The Court has considered whether the evidence discloses the lesser offence of manslaughter. Manslaughter may arise where death is caused by an unlawful act or by a culpable omission, without malice aforethought. However, the prosecution must still prove actus reus and unlawfulness beyond reasonable doubt.
65. The evidence against the 2nd accused discloses a possible lapse in custodial procedure, particularly the failure to remove the deceased’s belt before placing him in the office. It may properly attract administrative, disciplinary or civil consequences.
66. I therefore find that the evidence does not safely disclose manslaughter or any lesser cognate offence against any of the accused persons herein .
69. The prosecution proved that the deceased died in police custody and that the cause of death was due to hanging by a belt. However, the prosecution did not prove that the deceased was killed by any of the accused herein . The case was circumstantial but the chain of evidence was not complete. There were material gaps in the investigations. No fingerprints linked the accused persons to the belt or window grill. No signs of struggle were documented. No evidence of restraint was produced. No witness saw an assault. The medical evidence did not exclude self-hanging. The civilian evidence showed that the deceased had behaved violently and irrationally shortly before he was taken to the police post. The belt belonged to the deceased but was not dusted for finger prints . Forensic evidence of fingerprints would have resolved the puzzle herein .
70. These circumstances leave a reasonable doubt on whether accused killed deceased . The law requires that such doubt be resolved in favour of the accused persons.
71. The Court is mindful that a person died in circumstances that required the highest level of accountability from law enforcement officers. However, accountability must be pursued within the limits of evidence and law. A conviction for murder cannot be founded on suspicion, or the mere fact of death in police custody. It
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2. Each of the accused persons pleaded not guilty, and the case proceeded to a full hearing . The prosecution called nine witnesses. Upon being placed on their defence, each accused gave sworn testimony. All the accused were duly represented by Counsel as required by law .
Prosecution Evidence
3. PW1, Alice Kemunto, was the deceased’s girlfriend and had been cohabiting with him before the material date . Her evidence was that on 20th May 2015, the deceased assaulted her, threatened her with an axe and burnt her clothes. She ran away to the home of her cousin, Stephen Omwanso, who testified as PW2. The deceased followed her there while carrying petrol and a matchbox. According to PW1, the deceased threatened to set Stephen’s house on fire. He was restrained by members of the public and taken to the area chief, who advised that he be taken to Motonto Police Post.
4. PW1 testified that the deceased was left at the police post. She was later called back and found him hanging by the window with a belt around his neck. She identified the belt as belonging to the deceased. On cross-examination, she conceded that it was dark, that she did not know the officers at the post before that night, and that she could not exclude suicide.
5. PW2, Stephen Omwanso, confirmed that the deceased went to his home while carrying petrol and a matchbox. He stated that the deceased was behaving strangely and that he was taken to the chief and later to Motonto Police Post. He later learnt that the deceased had been found hanging at the post. PW2 could not state whether the death was suicide or not.
6. PW3, Joseph Onsarigo, identified the body of the deceased for purposes of post-mortem examination. His evidence was formal.
7. PW4, Dr. Peter Asuba, a pathologist and lecturer at Maseno University School of Medicine, performed the post-mortem examination on the body of the deceased at Nyangena Hospital. He found a black leather belt around the neck of the deceased, a pattern of abrasions around the neck, bruising of the anterior neck muscles, congested neck veins and bloody frothy fluid in the trachea. He also noted healed or partially healed injuries on the face, hand, forearm, arm, shoulder and back.
8. PW4 formed the opinion that the cause of death was asphyxia due to hanging with a ligature or belt. He produced the post-mortem report. On cross-examination, he clarified that the external injuries appeared to have been sustained before death. He further stated that he could not conclusively say that the deceased committed suicide because he did not have the full clinical history and did not have photographs of the scene at the time of the post-mortem. His medical conclusion was limited to the fact that the deceased died while hanging. Importantly, he also stated that, considering the circumstances described, a person could have hanged himself from the position described without necessarily involving a third party.
9. PW5, Corporal Charles Kitur, a gazetted scenes-of-crime officer, visited the scene on 21st May 2015 at about 3.25 a.m. He accompanied other officers, including the OCS Gesonso and Corporal Rono to the scene of the crime herein. He found the deceased hanging near a window inside an office at Motonto AP Camp, with a belt around his neck tied to the window grills. He observed blood stains on the deceased’s left ear and took six photographs of the scene. He produced the photographs and the certificate.
10. On cross-examination, PW5 stated that his role was limited to taking photographs. He did not dust the scene for fingerprints. He did not lift fingerprints from the window grills. He did not see any signs of struggle at the scene. He also stated that he did not recall whether the accused persons were at the scene when he arrived.
11. PW6, Sergeant Emmanuel Rono, was the duty officer at Gesonso Police Station. He testified that on 21st May 2015 at about 2.20 a.m., he received a report from Sergeant Tom Agunda and Corporal Ekiru Chegem that a suspect had allegedly committed suicide at Motonto AP Camp. He proceeded to the scene with the OCS and other officers. They found the deceased hanging with a belt around his neck. Photographs were taken. PW6 opened an inquest file. He stated that the belt could not be dusted for fingerprints because its surface was rough.
12. PW6 testified that his investigations showed that the deceased had earlier quarrelled with Alice Kemunto, that Alice had escaped to Stephen’s home, and that the deceased followed her there while armed with petrol and a matchbox. He was then arrested by members of the public and taken to Motonto AP Camp. PW6 said he was later advise to open and inquest file but IPOA later took up investigations and recommended that the accused herein be charged with murder.
13. On cross-examination, PW6 stated that he had worked with the accused officers for a long time and that they had not previously been involved in criminal activities. He confirmed that the deceased had been arrested for attempted arson and that taking him to Motonto AP Camp was prudent because it was the nearest available post pending arrangements for transport to a gazetted police station. He further confirmed that there was no complaint by members of the public against the accused persons, that the deceased did not know the accused persons before the incident, and that the dispute was between the deceased and his girlfriend. In re-examination, he maintained that, from his investigations, the deceased died by suicide and was not handcuffed.
14. PW7, Thadeus Tinega, a retired assistant chief, testified that after receiving reports about the deceased’s conduct, he referred the members of the public to Motonto Police Post. He stated that the deceased was initially in a good state and agreed to go with them. He was later found hanging at the police post. PW7 could not recall who received the deceased at the post.
15. PW8, Charles Oyugi, a brother of the deceased, identified the body at the mortuary. He observed a belt around the deceased’s neck and small marks on the hands and face.
16. PW9, Christopher Ogega, an investigator from IPOA, investigated the death. He confirmed that the deceased died at Motonto AP Camp. He testified that Motonto was not a gazetted police cell, that the 1st accused was the officer in charge, and that the 2nd accused received the deceased. He also admitted that the belt belonged to the deceased, that there was no fingerprint evidence linking either accused to the belt, that there were no documented signs of a struggle, that there was no evidence that the deceased had been restrained, and that no witness saw either accused person strangle or assault the deceased. He further confirmed that the injuries noted on the deceased had partially healed. PW9 also stated that the standard procedure for arranging transfer to a gazetted station had been initiated. He said that the accounts given by accused were not adding up and thus Inquest case no. 4 of 2018 was opened and it was recommended that accused be charged .
The Defence Evidence
17. DW1, Senior Sergeant Tom Otieno Magumba, the 1st accused, testified that in 2015 he was attached to Kisii Central Sub-County Headquarters but was in charge of Motonto Administration Police Post. On the material evening, he left the post to buy phone credit and food after informing Corporal Ekiru Chegem to take charge. While away, he received information from the area assistant chief that a suspect had been handed over to Corporal Chegem.
18. DW1 stated that he was informed that the suspect had quarrelled with a woman, burnt her clothes, picked an axe, and later followed her to her cousin’s house where he was arrested by members of the public. Because Motonto AP Post had no gazetted cells, DW1 called Gesonso Police Station and later the Sub-County AP Commander to arrange for a vehicle to transfer the suspect.
19. DW1 testified that when he returned to the post at about 11.15 p.m, he found the office door locked with a padlock from outside. Through the window, he saw a person hanging from the window grill with a belt around the neck. He called Corporal Ekiru and informed the OCS Gesonso Police Station. The scene was thereafter processed and the body taken to the mortuary. He denied tampering with the scene or assaulting the deceased.
20. DW2, Ekiru Arema Chegem, the 2nd accused, testified that he was then a Corporal at Motonto AP Camp. He stated that Sergeant Magumba called him and informed him that the assistant chief was bringing a suspect to the post. The suspect was brought by members of the public, including the assistant chief, the suspect’s girlfriend and the owner of the house where the incident had allegedly occurred. DW2 said the suspect had no visible injuries when he arrived.
21. DW2 testified that he tried to speak to the suspect, but the suspect remained quiet and looked at his wife or girlfriend. Since the post had no cells, DW2 placed the suspect in the office, locked the office door with a padlock, and went to pick his phone and call DW1. He then went to the washroom. While there, he heard Sergeant Magumba raise alarm. He rushed to the office and found the deceased hanging by a belt. DW2 denied injuring, assaulting or killing the deceased.
22. The defence case, in summary, was that the deceased was brought to Motonto AP Post as a suspect by members of the public and the assistant chief; that the post had no proper cells; that the deceased was temporarily placed in an office pending transfer to a gazetted police station; that none of the accused persons assaulted him; and that he was later found hanging by his own belt from the window grill.
23. The case raises a grave concern to the public because the deceased died while in lawful custody in Motonto police post. A death occurring in police custody, or in a place where a person has been placed under the control of law enforcement officers, calls for careful judicial scrutiny. The State bears a special duty to account for the safety of persons placed in its custody. However, the seriousness of the circumstances does not lessen the burden of proof resting upon the prosecution. The Court must still determine, on the evidence, whether the accused persons caused the death of the deceased by an unlawful act or omission, and whether they did so with malice aforethought.
The Applicable Law
24. Section 203 of the Penal Code defines murder as follows:
“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
25. It follows that, for a conviction for murder to stand, the prosecution must prove beyond reasonable doubt the following ingredients:
a. the fact and cause of death of the deceased;
b. that the death was caused by an unlawful act or omission of the accused person; and
c. that the unlawful act or omission was accompanied by malice aforethought as defined under section 206 of the Penal Code.
26. The burden of proof in criminal cases remains upon prosecution. The accused person bears no duty to prove innocence. The classic statement of that principle is found in Woolmington v Director of Public Prosecutions [1935] AC 462, where the House of Lords stated that the duty of proving the prisoner’s guilt is on the prosecution. That principle is now firmly embedded in our constitutional and criminal law. Article 50(2)(a) of the Constitution guarantees every accused person the right to be presumed innocent until the contrary is proved.
27. The Court of Appeal in Pius Arap Maina v Republic [2013] eKLR restated that the prosecution must prove a criminal charge beyond reasonable doubt and that any doubt must be resolved in favour of the accused. It is also trite law that suspicion, however strong, cannot form a ground for a conviction.
28. . The law on circumstantial evidence is settled. In R v Kipkering arap Koske & Another (1949) 16 EACA 135, the former Court of Appeal for Eastern Africa held that, in order to justify a conviction based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.
29. The same principle was restated in Sawe v Republic [2003] KLR 364, where the Court of Appeal held that suspicion, however strong, cannot provide the basis for inferring guilt. The Court stated that before drawing an inference of guilt from circumstantial evidence, the court must be sure that there are no other co-existing circumstances which would weaken or destroy the inference.
30. In Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990, the Court of Appeal held that ‘ “ lt 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 guilt of the accused; (iii) the circumstances taken cumulatively, should form 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.’’
31. On malice after thought, it is trite law that the actus reus alone cannot constitute the offence of murder unless it is accompanied by men rea or malice afterthought. Malice aforethought is defined under section 206 of the Penal Code as follows :-
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.
31.In the case of Moses Wanjala Ngaira v Republic [2019] eKLR, the Court of Appeal held as follows:
30. In Daniel Muthee v Republic [2007] eKLR, this Court addressing the issue of malice aforethought stated as follows:
“When the appellant set upon the deceased and cut her with a panga several times and proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased person on the head with a sharp instrument would cause death or harm to the victims. We are therefore satisfied that malice aforethought was established in terms of section 206(b) of the Penal Code.”
32. In the case of David Wekesa Namachanja v Republic [2021] eKLR, the Court of Appeal cited the case of Republic v Tumbere S/O Ochen (1945) 12 EACA 63, the Eastern Africa Court of Appeal where the EACA set out the following factors to be considered in determining whether malice aforethought has been established:
“The nature of the weapon used; the manner in which it was used; the part of the body targeted; the nature of the injuries inflicted either a single stab/wound or multiple injuries; the conduct of the accused before during and after the incident.”
33. In Dhadho v Republic (Criminal Appeal 78 of 2021) [2023] KECA 280 (KLR) (17 March 2023) (Judgment) held that:
34. From the injuries indicated in the post mortem report adduced by PW6, we find that there was malice aforethought since it is evident that the appellant’s intention was to do grievous harm or to cause the death of the deceased. The appellant attacked the deceased on the head which is a vital part of the body. Further, the injuries were so severe that the deceased had to be admitted in the intensive care unit until she succumbed.”
35. Mens rea or malice aforethought may be established by proof of an intention to cause death, an intention to cause grievous harm, knowledge that the act or omission causing death would probably cause death or grievous harm, or other circumstances set out in that section. In Republic v Tubere s/o Ochen [1945] 12 EACA 63, the Court stated that, in determining malice aforethought, the court may consider the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, the nature of the injuries inflicted, and the conduct of the accused before, during and after the attack.
Issues for Determination
33. Having considered the evidence, the following issues arise for determination:
a. Whether the fact and cause of death of Francis Mainyura were proved;
b. Whether the prosecution proved beyond reasonable doubt that either accused person caused the death by an unlawful act or omission;
c. Whether malice aforethought was established; and
d. Whether, in the alternative, the evidence discloses a lesser offence.
Whether Death and Cause of Death Were Proved
34. There is no dispute that Francis Mainyura died. PW3 and PW8 identified the body. PW4 performed the post-mortem examination. PW5 photographed the scene where the body was found hanging. PW6 and PW9 also confirmed that the body was recovered from Motonto AP Camp. I therefore find that the prosecution proved the fact of death .
Whether the Accused Persons Caused the Death
35. This is the central issue in the case. The prosecution was required to prove, beyond reasonable doubt, that the accused persons, or either of them, caused the death of the deceased by an unlawful act or omission. The evidence establishes that the deceased was taken to Motonto AP Post alive. It also establishes that he was later found dead within the premises of that post. That fact is of grave concern to the public . Where a person dies in police custody, the police officers under whose custody he was placed are expected to offer a credible explanation. That expectation arises from the State’s duty to protect the life and safety of persons in custody. However, that expectation does not reverse the burden of proof. It does not permit the Court to convict merely because the deceased died within a police post. The Court has to determine whether the prosecution there is direct evidence pointing to the guilt of accused and prosecution seek to rely on circumstantial evidence , it must evaluate the evidence together with defence and determine whether it excludes every reasonable hypothesis consistent with the innocence of the accused persons as was held in the Abanga case (Supra ).
36. In the instant case, prosecution did not call any witness who saw either accused person assault, strangle, hang or otherwise inflict violence upon the deceased. There was no confession. There was no forensic evidence linking the accused persons to the belt used in the hanging. There was no evidence of fingerprints on the belt or window grill. No witness testified that the deceased cried out, struggled with, or was attacked by the accused persons. The scenes-of-crime officer did not observe signs of struggle at the scene.
37. PW9, the IPOA investigator conceded that the belt belonged to the deceased; that there was no fingerprint evidence linking the accused persons to the belt; that there were no documented signs of a struggle; that there was no evidence of restraint; and that no witness saw either accused strangle or assault the deceased. He further confirmed that Pw4 found that the injuries observed on the deceased were partially healed.
38. The pathologist, PW4, also gave evidence that weakens the prosecution theory of homicide by the accused persons. He further confirmed that the injuries observed on the deceased were partially healed. The partial healing of the injuries means that the possibility of them being inflicted by accused is ruled out . Although he did not conclusively classify the death as suicide, he stated that the deceased died while hanging and that, from the circumstances described, it was possible for a person to hang himself from that position without the intervention of a third party.
39. The evidence of PW1 and PW2 described the deceased’s state shortly before he was taken to the police post. PW1 said the deceased had assaulted her, threatened her with an axe, burnt her clothes, followed her with petrol and a matchbox, and threatened to set PW2’s house on fire. PW2 confirmed that the deceased came carrying petrol and a matchbox and was behaving strangely. That evidence is relevant because it provides a possible background of agitation, emotional disturbance or irrational conduct by the deceased shortly before his death.
40. It is not the duty of the defence to prove that the deceased committed suicide. The question is whether the possibility of suicide, on the evidence, is a reasonable hypothesis that has not been excluded by the prosecution. In my view, the prosecution evidence itself left open the reasonable possibility that the deceased hanged himself.
41. The Court cannot fill evidentiary gaps through suspicion. The fact that the death occurred at a police post raises suspicion and a legitimate concern. It may also point to possible negligence or breach of custodial procedures. But suspicion, however strong, is not proof beyond reasonable doubt. As held in Sawe v Republic [2003] KLR 364, suspicion cannot be the basis of a conviction.
Case Against the 1st Accused
46. The evidence against the 1st accused is that he was the officer in charge of Motonto AP Post. He was therefore the senior officer administratively responsible for the post. However, criminal liability for murder cannot rest only on administrative responsibility. The prosecution had to prove that he personally committed an unlawful act or omission that caused the death, or that he participated in a common design to kill the deceased.
47. The evidence does not establish that the 1st accused received the deceased at the post. DW1 stated that he had left the post and that DW2 was in charge when the deceased was brought. That evidence was not displaced. PW9’s evidence was that the 1st accused was the officer in charge and that the 2nd accused received the deceased. PW7 could not recall who received the deceased.
48. DW1’s evidence that he called Gesonso Police Station and the Sub-County AP Commander to arrange for transport to move the deceased to a gazetted police station was not materially controverted. PW6 and PW9 confirmed that Motonto AP Post was not a gazetted cell and that steps to arrange transfer had been initiated.
49. There is no evidence that the 1st accused assaulted the deceased. There is no evidence that he tied the belt around the deceased’s neck. There is no evidence that he assisted or encouraged the deceased to hang himself. There is also no evidence that he was present in the office with the deceased immediately before the death.
50. At most, the prosecution established that the deceased died at a post under the command of the 1st accused. That is not sufficient to prove murder. Administrative command may attract disciplinary, supervisory or civil questions where appropriate, but it does not, without proof of a actus reus or omission and malice aforethought, amount to criminal liability for murder.
51. I therefore find that the prosecution did not prove beyond reasonable doubt that the 1st accused caused the death of the deceased.
Case Against the 2nd Accused
52. The case against the 2nd accused is stronger in one respect: he was the officer who received the deceased and placed him in the office. He was therefore the last officer known to have had direct interaction with the deceased before the body was discovered.
53. The 2nd accused admitted that the deceased was placed in an office because the post had no cells. He also admitted that the deceased was locked inside the office. It is apparent that the deceased retained his belt. The failure to search a suspect properly and remove a belt, shoelaces or any item that may be used for self-harm is a lapse in custodial care. A person placed in police custody is under the control of the officers. The officers owe such a person a duty of care.
54. However, the question before this Court is not whether there was a procedural lapse. The question is whether that lapse, on the evidence, proves murder, or any other unlawful killing, beyond reasonable doubt.
55. There is no evidence that the 2nd accused assaulted the deceased. There is no evidence that he tied the belt around the deceased’s neck. There is no evidence that he knew the deceased would probably use the belt to hang himself. There is no evidence that he intentionally left the belt with the deceased to facilitate self-harm. There is also no evidence of prior hostility or motive.
56. The prosecution was required to prove actus reus . It had to establish that the omission attributed to the 2nd accused was the cause of death and that it was accompanied by the necessary mens rea for murder, or at least by such gross negligence as would sustain a lesser offence. The evidence falls short of that threshold.
57. The possibility that the deceased, while emotionally disturbed, used his own belt to hang himself remains a reasonable hypothesis. The prosecution did not exclude it. In those circumstances, the Court cannot infer that the 2nd accused killed the deceased merely because he was the officer who received him and he did not take possession of his belt . The Omissions of 2nd accused amount to negligence which is not a lesser offence of murder . can be dealt with administrativelly
58. I therefore find that the prosecution did not prove beyond reasonable doubt that the 2nd accused caused the death of the deceased by an unlawful act or omission amounting to murder.
59. On the 3rd accused, it has emerged that he was a mere sentry at the gate of the post at the material time and he had gone to get supper and did not interact with the deceased at any point. I find no evidence linking him to the offence .
Whether Malice Aforethought Was Proved
59. Even assuming that causation had been proved, the prosecution was further required to prove malice aforethought under section 206 of the Penal Code.
60. There is no evidence that either accused person intended to cause the death of the deceased. There is no evidence that any of the accused herein intended to cause grievous harm. There is no evidence that either accused knew that his act or omission would probably cause death or grievous harm. There is no weapon, no assault, no threats, no prior disagreement, no motive, and no conduct from which malice can safely be inferred.
61. The relationship between the accused persons and the deceased appears to have been purely official . The deceased was taken to the post by members of the public and the local administration. The dispute that preceded his arrest was between him and PW1. There was no evidence that the deceased had any previous quarrel with the accused .
62. In Republic v Tubere s/o Ochen [1945] 12 EACA 63, the Court identified the nature of the weapon used, the part of the body targeted, the manner of attack and the conduct of the accused as relevant indicators of malice aforethought. In this case, there is no proven attack by either accused person. There is therefore no evidentiary basis upon which malice aforethought can be inferred.
63. I accordingly find that malice aforethought was not proved .
Whether a Lesser Offence Is Disclosed
64. The Court has considered whether the evidence discloses the lesser offence of manslaughter. Manslaughter may arise where death is caused by an unlawful act or by a culpable omission, without malice aforethought. However, the prosecution must still prove actus reus and unlawfulness beyond reasonable doubt.
65. The evidence against the 2nd accused discloses a possible lapse in custodial procedure, particularly the failure to remove the deceased’s belt before placing him in the office. It may properly attract administrative, disciplinary or civil consequences.
66. I therefore find that the evidence does not safely disclose manslaughter or any lesser cognate offence against any of the accused persons herein .
69. The prosecution proved that the deceased died in police custody and that the cause of death was due to hanging by a belt. However, the prosecution did not prove that the deceased was killed by any of the accused herein . The case was circumstantial but the chain of evidence was not complete. There were material gaps in the investigations. No fingerprints linked the accused persons to the belt or window grill. No signs of struggle were documented. No evidence of restraint was produced. No witness saw an assault. The medical evidence did not exclude self-hanging. The civilian evidence showed that the deceased had behaved violently and irrationally shortly before he was taken to the police post. The belt belonged to the deceased but was not dusted for finger prints . Forensic evidence of fingerprints would have resolved the puzzle herein .
70. These circumstances leave a reasonable doubt on whether accused killed deceased . The law requires that such doubt be resolved in favour of the accused persons.
71. The Court is mindful that a person died in circumstances that required the highest level of accountability from law enforcement officers. However, accountability must be pursued within the limits of evidence and law. A conviction for murder cannot be founded on suspicion, or the mere fact of death in police custody. It
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