Republic v Khasembeli & another (Criminal Case 20 of 2019)  KEHC 14004 (KLR) (7 October 2022) (Judgment)
Neutral citation:  KEHC 14004 (KLR)
Republic of Kenya
Criminal Case 20 of 2019
SN Riechi, J
October 7, 2022
Loice Nafuna Khasembeli
Noah Khasembeli Wafula
1.The accused Loice Nafuna Khasembeli(accused 1) and Noah Khasembeli Wafula (accused 2) are charged with 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 the 17th day of April 2019 at Mupeli village in Chwele town, Bungoma Central Sub- County within Bungoma County jointly murdered John Wamwoyo Lubonga.
3.The case for the prosecution is that on 17.4.2019 PW2 Eliud Wafula Munialo the village elder of Chwele Centre village was at his home when at 7 a.m. Accused 1 Loice Nafuna who is a resident of his village came and reported to him that she had locked a person in her house who had taken her 29500 and sewing machine head. She informed him that the person had threatened to commit suicide. He advised her to report to police. She did not go to police. Later he received information that a person had been killed in accused 1’s house. He went there and found the OCS and Chief already present. He observed the deceased who was lying outside the door of the house of accused 1 Loice. On cross examination he stated that he learnt that deceased was accused 1’s tenant.
4.PW4 NO. 60131 senior Sergeant Sarah Situma attached to Chwele police station was at the station when accused 2 Noah Kasembeli came and reported that a person John Omwoyo who was his tenant had died at his accused 2’s home. She and the OCS chief Inspector Ndiwa visited the scene. At the scene they found the deceased lying outside a door of the house. They found the house was locked from inside where accused 1 Loice had taken refuge. They ordered the house to be opened and on entering they observed that there was a lesso tied to a roof truss which was alleged to have been sued by deceased to hang himself. They recovered the same, a window curtain, bag with a diary and exercise book. She observed the deceased and observed he was bleeding from the mouth. They found accused 1 Loice had been assaulted by members of public and took her to hospital.
5.PW5 Timothy Ndiwa a retired police officer then attached to Chwele police station received a report from both the village elder and Noah (accused 2) that a person had died in the house of accused. He accompanied them to the scene. At the scene they found the body of the deceased at the accused’s compound which was about 20 meters from his house. He established that the deceased was accused’s tenant and had rent arrears of Kshs 5000. He dismissed the allegation that the deceased committed suicide as there was no evidence of strangulation. He went into the accused’s house where they found a bag which contained items of the deceased.
6.PW8 NO. 631792 Copl Hussein Mori the Investigating officer received a report of the murder and visited the scene. He found the OCS already present and had collected items from the scene which were handed over to him. He later took the blood specimen of deceased and handed the recovered items together with the specimen of deceased, blood and that of the accused to Government Analyst. He drew the sketch plan of the scene which he produced as Exh. 10 A and legend 10B.PW6 Richard Kimutai Langat the Government analyst received:1.Blood stained table cloths marked A12.Door cloth – A23.Cloth D14.Blood sample of deceased C15.Blood sample of Accused 1 – D16.Blood sample of accused 2 –D2
7.After analysis I made the following finding.A-E table cloth and Dour cloths had blood – stains of human blood. I subjected them to DNA Analysis which gave the profiles in the table in the report. From the profiles, I found:1.Stains on table cloth A1 matched that of accused 2. Noah Khasembeli.2.DNA profiles of door clothes and cloth matched the DNA profile of the deceased John Lubanga.3.DNA profile of Loice had no connection with submitted items.
8.PW7 Dr. Kere Reuben who performed the post mortem on body of the deceased found deceased had bruises on the face and head, blood oozing form the ears, haemotoma on the skull and bleeding in the brain. He formed opinion that the cause of death was due to critical head injury secondary to assault.
9.Upon being placed on their defence, accused gave sworn statement. Accused 1 Loice Nafula Khasembeli testified that he deceased was a tenant in one of their houses. On 17.4.2019 she woke up, milked her cows and took milk to Chwele. When she came back she found deceased had died. She went and reported to village elder. He husband accused 2 Noah had gone to report to police. The crowd that had gathered at the home started assaulting her with stones. She stated that the deceased was found within the compound dead and that it is not true that he had committed suicide.
10.On being cross-examined by M/s Omondi for state she stated that she was the first one to find the deceased died outside within the compound and does not know how deceased bag and items were found in her house.
11.Mr. Wamawla Simiyu counsel for the accused filed written submissions. He submitted that there was no eye witness to the murder of the deceased. Counsel submitted that no evidence was adduced by the prosecution as to how the accused murdered the deceased and that prosecution relied on circumstantial evidence. He submitted that the circumstantial evidence adduced were not incompatible with the innocence of the accused.
12.PW1 Jackson Lubunga Musanda the father of the deceased only identified the body to the doctor for post mortem. PW3 Mark Wamwoyo only received information of the death of his father and later attended the post mortem. PW 2 Eliud Wafula Munialo the village elder received the information from accused 1 that the deceased was threatening to commit suicide in accused 1’s house and later visited the scene and found deceased dead. PW4 Sergent Sarah Situma visited the scene of the murder and found the deceased already dead; and so did PW5 Thimothy Ndiwa and PW8 Copl Hussein Noori. None of these witnesses who testified stated that they saw accused inflict injures on the deceased which injuries caused his death. It is therefore true as Wamalwa counsel for the accused submitted there was no eye witness to the murder who testified.
13.The accused is charged with the offence of Murder contrary to Section 203 of the Penal Code. The ingredients of the offence of murder are:a)The fact and cause of death.b)The unlawful act or omission causing the deathc)That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d)That the accused committed the unlawful act with malice aforethought.
14.The fact and cause of death was proved by the evidence of PW7 Dr. Kere Reuben who testified that upon conducting the post mortem, he found the deceased had bruises on face and hand, blood oozing from both ears haemotama on the skull and bleeding into the brain. He formed opinion that cause of death was due to head injury. He filled the post mortem form which he produced as Exh.9 this witness therefore established both the fact and cause of death of deceased.
15.The next issue for this court to determine is whether the accused did inflict the injuries that lead to the death of the deceased. The prosecution can prove the charge by direct evidence or by circumstantial evidence.
16.PW1 Jackson Lubunga Musanda the father of the deceased only identified the body to the doctor for post mortem. PW3 Mark Wamwoyo only received information of the death of his father and later attended the post mortem.
17.The prosecution in this case having not adduced direct evidence sought to rely on facts which when considered cumulatively would lead to an inference by the court that it is accused and no other who committed the offence. In this case the facts sought to be proved by the prosecution are:1.That the deceased was a tenant of the deceased.2.That the deceased was found in the compound with injuries.3.That the deceased owed the accused rent arrears.4.That some items of the deceased were found in the house of accused.5.That blood stains on item found in the house of accused matches that of deceased.
18.That the deceased was a tenant of the accused is not disputed. Indeed even the accused admit to that fact. It is also not in dispute that the deceased was found dead in the compound about 20 meters form his rented ho use. He was found with injures on the head and was bleeding. He was found in the compound and not in his house or house of the accused. Copl Noor drew a sketch plan of the since. From the sketch plan and legend, the body was found on letter marked F a foot path 50 metres from the house of accused and almost similar distance from the house of deceased and next to Chwele Academy. The evidence of PW5 Thimothy Ndiwa that the body was found near accused’s house therefore cannot be accurate in view of the sketch plan and legend produced.
19.The next fact the prosecution sought to rely on is the fact that there some items belonging to the deceased were found in the house of accused. That fact alone even if it was to be admitted does not show any connection between the death and the accused.
20.Finally, the prosecution sought to establish by evidence of the Government analyst that deceased blood stained matched that found in a curtain/cloth recovered from the house of accused matched that of the deceased John Lubonga.
21.Where the prosecution seeks to base their case on circumstantial evidence. The threshold to be met was enunciated in Kipkering arap Koseky v R where the court stated: “There was no eye witness to the murder. The entire case for the prosecution hinges upon circumstantial evidence. In Rv Kipkering arap Koske & Another 16 EACA 135 the court held: “in order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
22.In the Case of Sawe V R  KLR 364 the Court of Appeal held that “Suspicion, however strong cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.”
23.In the same case of Sawe v R (supra) the court stated the following on circumstantial evidence.” In order to justice 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 hypothesis than 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.”
24.It is clear from these authorities that in a case based on circumstantial evidence the chain must be continuous with no evidence breaking it.
25.In the present case PW2 Eliud Wafula testified how accused 1 Loice Nafula went to him and told him that deceased who was their tenant was in her house threatening to commit suicide and had locked the deceased in the house. PW4 Senior Segt Sarah Situma attached to Chwele police station testified how while at the station Accused 2 Noah reported to her that there was a person who had died in his house and gave the name of the deceased who was their tenant. He informed her that the deceased had just collapsed and died in their house. She visited the scene and find the body at the door and accused 1 Loice having locked herself in the house. In the house she saw a lesso hanged on the rafters of the house. This is the similar evidence given by PW5 Timothy Ndiwa the then OCS of Chwele police station who stated:
26.From the evidence it is common ground that the deceased died in the house of accused. The accused reported to both the village elder and police that deceased had committed suicide in their house. PW4 Segt Sarah Situma and PW5 Timothy Ndiwa who visited the scene found evidence of a lesso tied to the rafter of the house which the accused alleged deceased had used to commit suicide. This theory of suicide has not been displaced by any of the prosecution witnesses. The evidence of PW7 Dr. Kere agreed in cross examination that the injuries sustained would as well be caused due to a fall. There is evidence that the lesso cut and deceased may have fallen down.
27.In view of the evidence adduced I find the accused’s explanation of the events in their defence probable and plausible. From the evidence I find that the prosecution has not proved that the deceased did not die as a result of suicide and that the death was caused by the unlawful act of the accused 1 and 2.
28.In the premises I find the prosecution has not proved its case against accused 1 Loice and accused 2 Noah beyond reasonable doubt. I therefore find accused I Loice Nafuna Khasembeli and accused 2 Noah Khasembeli Wafula not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. I therefore acquit accused 1 Loice Nafuna Khasembeli and accused 2 Noah Khasembeli Wafula accordingly.
29.I order that accused 1 Loice Nafuna Khasembeli and accused 2 Noah Khasembeli Wafula be set at liberty unless otherwise lawfully detained.
DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S.N RIECHIJUDGE