REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CRIMINAL CASE NO. 12 OF 2016

REPUBLIC...............................................................................................PROSECUTOR

VERSUS

DAVID AMUKU ALIAS LUGULU................................................................ACCUSED

JUDGMENT

1. David Amuku alias Lugulu is charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that on diverse dates between 16^th and 18^th day of March 2016, at Okame location, Chakol Division within Busia County, he murdered Andrew Maranga.

3. The prosecution case is that Lazarus Imodoi (PW3) met with the accused and the deceased on 17^th March 2016 at about 5 p.m. He was pushing a bicycle which had some charcoal and a machete. He was in company of the deceased who was walking. Later he learnt that the boy had gone missing and that his body was recovered.

4. The accused contended that his was a case of mistaken identity. He denied any involvement in the death of the deceased.

5. The issues for determination are:

a. Whether or not this was a case of mistaken identity;

b. Whether the accused was involved in the death or not; and

c. Whether the offence of murder was proved against him.

6. When the accused introduced himself to the court at the time he was defending himself, he said his name is David Etyang Sibia. He therefore contended that his was a case of mistaken identity. This contention cannot amount to a defence of mistaken identity. I have perused the record and at no time did the accused protest that the name in the charge sheet was not his. Secondly, in their evidence Gedion Mose (PW1) his brother in-law, Lazarus Imodoi (PW3) his neighbour and Felista Nyakerario, his wife referred to him as David Amuku.

7. These witnesses knew the accused by the name David Amuku. During cross examination they were not challenged that they were ascribing the wrong name to the accused.

8. Thirdly, it is immaterial which name the accused is known by. What is relevant in the instant case is the identification of the accused person. I therefore find the argument of mistaken identity does not arise in this case.

9. There was no eye witness in this case. The evidence that was adduced is circumstantial. Circumstantial evidence was restated by Osiemo J in the case of Mohamed & 3 Others vs. Republic [2005]1 KLR 722 as follows:

Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue.The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

10. In order for the court to found a conviction on circumstantial evidence, certain conditions must be satisfied. These conditions were spelled out in the case of  Sawe vs. Republic [2003] KLR 354, by the Court of Appeal as follows:

1. In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.

2. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.

3. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.

11.  I will therefore be guided by these authorities in evaluating the evidence at hand.

12. Felista Nyakerario (PW4) testified that she and the accused agreed to live as husband and wife on 1^st January 2016. Prior to their cohabitation, she had two male children namely Wesley Momanyi and Andrew Maranga, the deceased herein. The accused on the other hand had two daughters but did not have a wife. All the children were staying at Adungosi with the mother of the accused.

13. This witness, Felista Nyakerario (PW4), testified that whenever she wanted to go and visit the children, he insisted that she concentrate on business first. On 12^th April 2016 when the accused went to his Adungosi home, she decided to follow him there.

14. At their Adungosi home, she did not find her son Andrew Maranga. When she enquired his whereabouts from the accused, he told her to stop stupidity and advised her to go and look for her son in Kisii. When she was not satisfied with the response by the accused, she went and enquired from his mother. She told him that the accused took the child to Busia town on a bicycle. The mother of the accused was not called as a witness. This bit of evidence could have remained as inadmissible hearsay but for the evidence of PW3.

15. Lazarus Imodoi was prosecution witness number three (PW3). He testified that on 17^th March 2016 at about 5 p.m. as he was returning home from Adungosi market, he passed by his farm. He met with the accused and the deceased. The accused had a bicycle which had some charcoal and a machete. The accused was pushing the bicycle and the child was walking. After they had exchanged greetings, the accused told him he was going to town. On 16^th April 2016, when he learnt that the child was missing, he volunteered to the police what he witnessed on17^th March 2016.

16. Gedion Mose (PW1) testified of a quarrel on 15^th March 2016 between the accused and his wife Felista Nyakerario (PW4) where the accused threatened to do something she was not going to forget. In her evidence PW4 did not testify about this alleged threat. I am therefore not going to attach any weight to it.

17. The accused in his defence denied any knowledge of Felista Nyakerario (PW4). He argued that he was implicated after he refused to build a house at the home of Peninah Mwikali, his girlfriend.This defence of alleged false implication cannot hold for two reasons; it was brought too late in the day and none of the witnesses were cross examined on it. Gedion Mose (PW1) and Felista Nyakerario (PW4) in their evidence testified that the accused cohabited with PW4. Their evidence was not challenged during cross examination. His contention that he does not know Felista Nyakerario (PW4) is therefore dismissed.

18. There is sufficient evidence on record that the accused was seen walking away with the deceased and had a machete. His conduct thereafter when asked about the child can only lead to only one inference; he was the one who killed the deceased.

19.  From the evidence on record, I find that the prosecution has satisfied the conditions that were spelled out in the case of Sawe vs. Republic [2003] KLR 354.  There is no other reasonable hypotheses that can explain his conduct other than that of his guilt. I therefore find that the prosecution has proved its case against him beyond any reasonable doubt. I find him guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. I accordingly convict him.

DELIVERED and SIGNED at BUSIA this 2^nd day of December, 2020

KIARIE WAWERU KIARIE

JUDGE