1.The accused was charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code with the particulars that he had on the February 4, 2016 at around 0700 hrs at Athiru village Location of Igembe North Sub-County within Meru County murdered Robert Mwenda.
2.The Prosecution called five (5) witnesses whose evidence is set out in full below:
3.At the close of the case for the Prosecution, counsel for the defence indicated that he wished to, but eventually did not, make any submissions, and the Counsel for the DPP relied on the evidence adduced before the court.
Issue for Determination
4.In accordance with the section 306 of the Criminal Procedure Code, the court is at the stage of close of the Prosecution evidence required to make a determination on case to answer in terms as follows:
5.The Court has considered the evidence presented by the prosecution in this trial, and at this stage of decision on case to answer pursuant to section 306 (1) of the Criminal Procedure Code, finds that the evidence is not sufficient to call upon the accused to make his defence, there being not established a prima facie case within the meaning of Ramanlal Trambaklal Bhatt v. R (1957) EA 332.
6.The evidence of the Prosecution was that PW1, a miraa dealer who knew both the deceased and the accused, respectively as miraa picker and dealer, testified that on 4/2/2016 at 0700 am while on his way to buy miraa at a shamba he was attracted to the scene by screams coming from the adjacent road and witnessed the accused beating the deceased –
7.On cross-examination PW1 said the child he met at the scene was Kawira (PW3) who he was seeing for the first time and that he had “told Kawira that Francis had beaten Mwendwa. I also told Baariu (PW2), (who he said he saw when he was called by Kawira), that Mugambi and Mwenda had fought but I did not know why they fought. I saw Mugambi (Francis) tun away. When Mugam bi ran away Kawira was just approaching.” PW2 also said Baariu who he said was called by Kawira was not there when Mugambi was beating the deceased.
8.PW2, the deceased’s Uncle said that he was at home on 4/2/2016 at 7.00am when he was called by Julie Kawira who had come to his home, and while crying had told him that “she had left Robert Mwenda on the road at SDA School junction”, and when he went to the scene had seen the body “lying on his back facing up [and] there was blood and a few miraa around.” On cross-examination PW2 confirmed that “I did not see the accused beating the deceased.”
9.PW3 Juliet Kawira testified that in 2016, then 14 years old she was at class 8 pupil at SDA Athiru Primary school, and that on 4/2/2016 at 7.00am while going to school alone she had found her cousin Robert, the deceased herein lying on the road:
10.PW3 said that she had known Francis since she was born in 2002 as a neighbour whose home was just about 15 meters from her home. She described her encounter with Francis at the scene as follows:
11.PW4 Dr Seth Mwenda Maore presented the post-mortem report by Dr Paul Wamugu that the deceased’s external appearance as “bleeding from the nose. Blunt force trauma on the left hypochondria region (below the chest” and on the cardiovascular system “shattered raptured spleen with blood in the abdomen.” Cause of death was given as “internal bleeding secondary to blunt abdominal trauma.” PW4 on cross-examination said the deceased had suffered “blunt force injury [and] it could be a motor cycle or motor vehicle.”
12.PW5 the Investigating Officer testified that a report had been received at the police station “On 4/2/2016 … when a relative of the deceased Gideon Baariu who is he uncle came at the station and reported that his cousin Robert Mwenda had been killed.” He testified that the police had gone to the scene at Athiru village Igemebe North Sub-County where they found the deceased’s body lying on the road, bleeding from the mouth, and that the accused had ran away after the incident and was on 25/5/2016 arrested at Maili Tatu township.
Analysis of Evidence
13.PW3 a child of 14 years did not runaway to report the incident of his cousin lying apparently dead on the road but from the sound of someone coughing in a neighbouring shamba. It is not believable, there must some explanation which has been withheld. The behaviour of PW1 on witnessing the killing that he had just pointed the child to where the body lay and left on his way without any report on the matter save he report he made to the shamba’s owner wife, is not a realistic normal reaction to a situation of discovery of a serious crime as that of killing, and the court takes it that eh witness PW1 did not tell the whole truth.
14.There is glaring inconsistencies in the evidence of the two self-styled eye-witnesses, PW1 and PW3. PW1 said the child Kawira only came to the scene after the Mugambi the accused had ran away. PW3 said she came upon the body of her cousin Mwenda and found Francis the accused collecting miraa from around where the deceased was lying. She further said that she heard some cough from a neighbouring shamba, (presumably PW1 in Meme’s shamba), and she fled and went to report to her uncle the PW2. She had no opportunity to meet the PW1.
15.Yet PW1 went into detail how he had seen Kawira PW3 that day and told her and Baariu PW2 that the accused had beaten the deceased. He said on cross-examination:
16.On cross-examination, PW3 confirmed that other than Francis and the person she heard coughing in the neighbouring shamba and ran away there was no one else at the scene, as follows:
17.PW1’s testimony is self-contradictory. While early on in cross-examination he says he did not talk to Kawira who was at the scene when Mwenda was being beaten, he later on states that he is the one who told Kawaira and her uncle Baariu that Francis had beaten the deceased and that the accused had run away before Kawira came to the scene:
18.If Kawira PW3 was present when the accused was beating the deceased as alleged by the eye –witness PW1, it would not have been necessary to tell her that Francis had beaten Mugambi and that they had fought but he did not know why they fought. Kawira would have been an eye witness to the fighting and beating, something in her own testimony she did not witness. PW1 could not explain on cross-examination why he had not recorded that fact that Kawira was at the scene or told anyone about it since 2016 when the killing happened.
Single Identifying Witness
19.On the evidence presented byPW3, if she were to be believed, the accused could only be convicted of collecting miraa on the scene, if the miraa did not belong to him. PW3 did not see the accused or anyone hit the deceased.
20.The evidence of PW1 placing the accused is therefore that of a single identifying witness. As held in Abdalla Bin Wendo & Anor v. R (1953) 20 EACA 166-
21.The offence is alleged to have been committed at 7.00am in the morning, according to PW1. It is also the time when PW3 came upon the body of her cousin lying on the ground and the Accused picking a few miraa stems around the scene. The beating alleged by PW1 must have started earlier and taken some time for it to lead to the killing of the deceased before the school girl PW3 stumbled upon the body at 7.00am. It is also the time when the uncle of the deceased says he was called out by the child PW3 and told of the body of the deceased lying on the road.
22.The beating and killing must have happened earlier than 7.00am and there is no indication as to the lighting at the time as to support correct identification. PW1 suggested that he saw through the fence between the road and the Meme’s shamba where he was assessing the miraa crop as follows:
23.The circumstances of identification do not appear very conducive bearing in the mind the time before 7.00 am and blocked view and the court must give the benefit of the doubt as to the conditions favouring identification to the accused.
24.The court has taken caution to look for corroboration of the evidence of PW1 identifying the accused as the killer of the deceased and has found none. The evidence of PW3 merely implicates the accused for being at the scene, picking some miraa on one hand and looking shaken when he saw the child. No corroboration on material fact of beating the deceased to his death.
Ingredients of the offence of murder
25.As the prosecution had not proved that the accused committed the act that caused the death of the accused, the further inquiry as to the necessary mens rea does not arise. In terms of section 306 (1) of the Criminal Procedure Code, there is consequently, no evidence that accused and or others caused committed the offence of murder as charged.
26.All the evidence proved was the fact of death but not the other ingredients of the offence of murder, namely, the act of the accused caused the death and that the accused was driven by malice aforethought. See section 203 of the Penal Code and Etyang, J. in R v. Nyambura & 4 Others  KLR 355 and R v. Gachanja  KLR 428. There was, in law, no evidence that the accused committed the offence of murder as charged.
27.PW1 the only eye-witness to the alleged beating was not a witness of truth: his evidence is irrational, self-contradictory and unsupported by any other material evidence as required for evidence of single identification witness. See Abdalla bin Wendo & Anor. v. R (1953) 20 EACA 166. It would not surprise the court that the witness was himself an accomplice in the beating of the deceased. That is why he struggled with the reasonable question why he did not report the very matter of the killing to the police having witnessed the beating unto death of the deceased. And of failure to record with the police as to the presence at the scene of another eye-witness, child Kawira PW3. The court gets the feeling that the PW1 as the lead witness was at the hearing conjuring the facts to fit the offence and guilt of the accused.
28.The wife of the owner of the miraa shamba where PW1 was allegedly checking for miraa, was not called as a witness to confirm the report to her by PW1 of the alleged beating by deceased by Francis the accused herein. Neither was her husband Ronald Meme whose availability was confirmed by PW3 on cross-examination called to testify on any relevant dealings on the morning of 4/2/2016 with PW1 as would confirm the latter’s testimony.
29.In the circumstances of this case, the court feels justified to invoke the adverse inferences of criminal justice in Ndungu Kimanyi v. R (1976-80) KLR 1442 that “the witness in a criminal case upon whose evidence it is proposed to rely should not create an impression on the mind of the court that he is not a straightforward person, or raise a suspicion about his trust-worthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore, an unreliable witness which makes it unsafe to accept his evidence” and in Bukenya v. Uganda (1972) EA 349 that “where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
30.No exhibits were recovered as to killer weapon in view of the medical evidence suggesting blunt force trauma equivalent to a hit by a motor cycle or motor vehicle. PW1 said the accused beat the deceased by only his legs to the stomach and fist on the face. The court must ask whether the nature of the beating described by the eye-witness PW1 could result in the instantaneous death of the deceased. The alleged act of the accused beating the deceased by legs and fist, even when proved which was not the case here, was not shown to be the cause of death.
31.As the killing of the deceased by the accused has not been proved to the required standard of beyond reasonable doubt there is no occasion for inquiry on the third ingredient of the offence of murder, namely that the accused killed the deceased with malice afore thought. The accused cannot be found guilty of the offence of murder contrary to section 03 as read with 204 of the Penal Code.
32.Consequently, the Court having found in the terminology of section 306(1) of the Criminal Procedure Code “that there is no evidence that the accused or any one of several accused committed the offence”, therefore, enters a finding of not guilty for the accused on the murder charge contrary to section 203 as read with 204 of the Penal Code. The accused is accordingly acquitted.
33.As the accused has been out on bond pending trial, the bond and surety shall be discharged and the security returned to the depositor.Order accordingly.