1.The accused faces a charge of the murder of Faith Lumusi Inziani, on August 16, 2014, at Irobo Village, Museno Sub-Location, Kakamega County. He denied the offence, and the prosecution called six witnesses.
2.PW1 was the father of the deceased. He testified that a body of a woman had been found in a maize plantation, it turned out to be that of his daughter. PW2 was the stepmother of the deceased. She testified on how she and the deceased went to the farm on the lunchtime of August 16, 2014 to harvest maize. On the way back, the deceased spoke to someone on telephone, and they parted ways, with PW2 going home and deceased going to Museno. On August 20, 2014, her body was found in a maize plantation, and the witness identified it as that of the deceased. PW4 was the mother of the deceased. She was among the people who went to view the body of the deceased as it lay in a maize plantation. PW3, the village elder, got a report of the sighting of the body in a maize plantation and got information about a suspect from PW6. PW5 was the pathologist. He identified the cause of death as failure to breath due to manual strangulation. PW6 said she had sighted the accused, on August 18, 2014 and August 19, 2014, near the site where the body was recovered.
3.The offence of murder is defined in section 203, and the sentence for it is stated in section 204, of the Penal Code, Cap 63, Laws of Kenya. Its elements are the death, caused by the accused person, with malice aforethought. On whether the deceased died, there is ample evidence. Her body was seen by PW1, PW2, PW3, PW4 and PW6. PW5 performed autopsy on it. On cause of death, the pathologist concluded that the same was caused by suffocation due to manual strangulation. The primary facts that are in contention are whether the death was caused by the accused, and, if so, whether he had malice aforethought.
4.Regarding causation by the accused person, the starting point should be that there is no direct evidence on that. None of the witnesses testified as to seeing or witnessing the accused kill the deceased. The only link to the death is the claim by PW5 that she saw him on August 18, 2014 and August 19, 2014 standing on the road not far from where the body was found. She said that she did not see him do anything. Clearly, therefore, the case against the accused is built around suspicion and circumstantial evidence.
5.Let me start with suspicion, as it is easier to dispose of. It is trite that suspicion, that one committed a crime, is not sufficient to found basis for a conviction. See Sawe vs. Republic (2003) KLR 364 (Kwach, Lakha & O’Kubasu JJA). However, strong suspicion might be, it cannot form basis for a conviction. The burden on the prosecution is to establish a case beyond reasonable doubt, and there can be no room for reliance on suspicion in the circumstances.
6.The law on circumstantial evidence is that, it can only be relied upon where the incriminating facts are incompatible with the innocence of the accused person or the same are incapable of explanation on any other reasonable hypothesis than that of his guilt, James Mwangi vs. Republic (1983) KLR 327 (Madan, Potter JJA & Chessoni Ag. JA). The only incriminating fact is that the accused person was allegedly seen by PW6 standing near the spot where the body of the deceased was eventually found. That could raise suspicion that he knew something about the body. But other than that there is nothing else. No one saw the deceased and the accused together on August 16, 2014 or August 17, 2014. No evidence was led to show that the accused was the person the deceased was communicating with on telephone, and for whom she parted with PW2 to go and meet. The said facts cannot inexorably lead to the conclusion that the accused had anything to do with the death of the deceased.
7.The conclusion that I, therefore, come to, on the causation of death of the deceased, is that there is no evidence linking the accused to it. There is neither direct nor circumstantial evidence that the accused person had anything to do with the death of the deceased.
8.On malice aforethought, I believed I should endeavour to establish whether the accused had any, if I had come to the conclusion that he had caused the death of the deceased. I have found that there is no evidence that he had caused the death, and, therefore, there would be no basis for me to try to determine whether there was any mens rea, or even motive, for the crime.
9.The accused gave a sworn statement in defence. He said he was at the scene on 20th August 2014, when the body was discovered, but he had just stumbled on the scene as he was on his way to see PW1 or the child that he had with another daughter of PW1, who was staying with PW1.
10.In the end, it is my finding that the prosecution has not established beyond reasonable doubt that the accused person herein, Titus Chitechi Jackson, murdered the deceased, Faith Lumusi Inziani. Consequently, I do find him not guilty of the murder, and I accordingly acquit him of the charge. He shall be released from remand custody, unless he is otherwise lawfully held.