REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL CASE  I OF 2002

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

VERSUS

EMMANUEL TUNE KIRIGI................................................. ACCUSED

JUDGMENT

Emmanuel Tune Kirigi ("the Accused") is charged with the offence ofMurder Contrary to Section 203 as read with Section 204 of the Penal Code.The Particulars of the charge are that on the night of 13th/14th December,1999 at Majajani Village in Kilifi District within Coast Province jointly withothers not before Court he murdered AH Abdalla ("the Deceased").

The prosecution called six witnesses. PW1 DR. ATRINSMWAYAYI MWADENA was a Medical Officer at Kilifi District Hospital.On the 15^TH  December, 1999 he carried out a post mortem examination onthe body of the deceased. the said  deceased was a male African adult ingood nutritional status. He found the body with a rope tightly tied aroundthe upper part of the neck. The lower part of the neck was swollen and hadsome lacerations which he said could have been caused by the tightening of2

the rope around the neck. He said he did not open the body due to thefamily's Islamic rites. However on outside examinations and observationsof the body he formed the opinion that the cause of death was asphyxiasecondary to strangulation. On cross-examination he said there was noevidence of blood on the body but there was cyanosis on the mucusmembrane and nails.

PW2 KACHE ALI ABDALLA is the widow of the deceased. Shestated that on the night of 13^th December, 1999 she slept in the same housewith the deceased and her young children leaving a small kerosene lamp on.She said she slept in the same room with her husband. The room could onlyaccommodate two beds leaving a small space in between. While lying onher bed and the deceased on the other and before she fell asleep about fivepeople went into their house. The Accused whom she was able to recognizeas their small lamp was still on blindfolded and warned her not to scream.Although she was able to remove the blindfolds after twenty minutes shestayed in the house until the following day. When she got out she found thedeceased tied with a rope around his neck and the rope was tied to a tree atthe rear of their house. She found the deceased in a standing position withhis feet touching the ground.   She called the deceased but he did notrespond. She then went and told their neighbour Alfan Mohamed, who wasalso the deceased's brother, that the deceased had hanged himself.

On receipt of that information Alfan Mohamed PW3 went to thehouse of the deceased and saw the body in the position as described by PW2.PW2 was not crying and did not appear shocked. He went and reported thematter to the area Assistant Chief PW6 who gave him a letter to Kilifl PoliceStation. Although the deceased's home was only about 100 metres from his,PW3 did not, during the night of 13th/14th December, 1999, hear any noise orcommotion.

After reporting the matter to the police, police went to the deceased'shome and took the body to the mortuary. The following day post mortemexamination was carried out on the body of the deceased but the witness andother members of the family instructed the doctor not ton open the body asthat was against their Islamic faith rites. The witness on cross-examinationsaid he knew that the Accused has a lame right hand which cannot liftanything heavy.

PW4 SAFARI CHARO CHIDZI was a brother-in-law to thedeceased. He is a brother to the deceased's widow, PW2. On 14^thDecember, 1999 the deceased's son went to his home and informed him thatthe deceased was dead.  He immediately went to the deceased's home andon enquiring from his sister, PW2, what had happened, she told him matwhile in bed the previous night at about mid-night she saw the deceased goout with a rope. She did not ask him where he was going or follow him out.She slept until the following morning when she discovered that the deceasedhad hanged himself and sent their son to call the witness.

PC Edward Mwigandi PW5 is the police officer who received thesuicide report from PW3 the brother of the deceased at Kilifi Police Station.After booking the report in the OB he went with IP Muganda to the scene.At the deceased's homestead he found about 50 people. After going roundin the homestead he went to the rear of the deceased's house where thedeceased's body was. He found the deceased's body with a nylon string(rope) tied around its neck. The string was also tied to a tree. The body ofthe deceased was in a standing position with the legs slightly bent. With thevegetation around the body having been disturbed and considering the smalltree branch to which the rope or string from the deceased's neck was tiedand also the position of the body, he ruled out suicide. He said he talkedwith the deceased's widow who told him that on the 10^th December, 1999the deceased had left a funeral ceremony in a huff telling her that he hadbeen threatened. She also told him that on the night of 13th/14th December,1999 the Accused and other people had gone to their home, blindfolded herand warned her not to say anything as he (Accused) would kill her after hisjail term if he was jailed. PW5 said that that information was the basis of thecharge against the Accused. In cross-examination he said the scene was notphotographed and that he did not go to the village where the deceased hadbeen threatened. The tree branch to which the deceased's body was tied wasnot cut to be produced as an exhibit nor was the deceased's body dusted forfingerprints as that was not possible.

The last prosecution witness was Douglas Mwatzuma Nyambu PW6.He is the area Assistant Chief. He said that on the 14^th December, 1999 atabout 9.00 a.m. one Abdallahaman Salim went to his office and told him thatthe deceased had committed suicide. He went to the deceased's home butfrom his observation and the standing position he found the deceased'sbody, he doubted the suicide theory. He took the deceased's widow aside.She told him that during the night of 13th/14th December, 1999 the Accusedhad gone to that home with another person. Their kerosene lamp was stillon. The accused blew it off and warned her not to scream or say anythinglest he would kill her even after he came out of jail. She said the two carriedher husband out and the following day she found his body tied to a tree.

The witness waited at the deceased's home until the police went thereand the following day on 15^th December, 1999 he got the Accused arrestedand taken to Kilifi Police Station. He also stated that on the 25^th December,1999 he got instructions from Kilifi Police Station to arrest Bora CharoKatsari and Chira Nyale which he did.

On ruling that the Accused had a case to answer, the Accused testifiedon oath and denied killing the deceased. He said that on the 10^th December,1999 he had a funeral ceremony for his later father at his home. For a fewdays thereafter he had several people visiting his home. He therefore did notleave his home. On the morning of 14^th December, 1999 a neighbour toldhim that the deceased had hanged himself. Before he could go to thedeceased's home the Chief's Askaris arrested him and took him to KilifiPolice Station. He stayed at the police station until the 27^th January, 2000when he was released on Police Bond and ordered to report to the policestation twice a week. He kept reporting until 7^th February, 2000 when hewas re-arrested and thereafter charged with the murder of the deceased. Incross-examination he said that neither the deceased nor his widow, PW2,attended the funeral ceremony at his home on 10^th December, 1999. He saidhe had had no problem with either the deceased or PW2 and did thereforenot know why PW2 implicated him in the murder of the deceased. TheAccused rested his case with his testimony. He did not call any witness.

Counsel made short submissions. Mr. Okuto for the Accused inparticular attacked the evidence of the deceased's widow. He submitted thather story was inconsistent. She told PW3, the deceased's brother and PW4,her own brother, that the deceased had committed suicide. It was not untilPW6, the Assistant Chief prodded her that she changed the story andimplicated the accused in the death of the deceased. Citing the authority inthe cases of Roria -vs- R[1967]583 andAbdatla bin Wendo -vs-R[1953]20 EACA 166 he submitted that her evidence cannot be relied upon to founda conviction. He concluded that the prosecution has not proved the caseagainst the Accused as required and the Accused should therefore beacquitted.

Mr. Ogoti, Learned Senior State Counsel, on his part submitted thatthe prosecution had proved the case against the Accused. He submitted matthere was both direct and circumstantial evidence against the Accused.PW2, he further submitted, clearly identified the Accused before the latterblew off the kerosene lamp. He urged me to ignore the contradictions in theprosecution evidence as minor and reject the Accused's defence as a sham.

From the evidence as I have summarized it herein above it is clear thatthe basis of the prosecution case against the Accused is the evidence of thedeceased's widow, PW2. Hers is identification evidence of a single witness.

The law on such evidence is clear. It has to be treated with the greatest care.

In the old case of Roria -vs- Republic [1967]EA 583, at page 584 the Courtof Appeal for Eastern Africa had this to say on identification evidence by asingle witness:-

"A conviction resting entirely on identity invariably causes adegree of uneasiness....That danger is, of course, greaterwhen the only evidence against an accused person isidentification by one witness and although no one wouldsuggest that a conviction based on such identification shouldnever be upheld it is the duty of this court to satisfy itself thatin all circumstances nit is safe to act on such identification.In Abdala bin Wendo and another -vs- R (1953) 20 EACA166 this court reversed the finding of the trial judge on aquestion of identification and said this... at page 168.

'Subject to certain well known exceptions it is trite lawthat a fact may be proved by the testimony of a singlewitness but this rule does not lessen the need for testingwith the greatest care the evidence of a single witnessrespecting identification, especially when it is knownthat the conditions favouring a correct identificationwere difficult In such circumstances what is needed isother evidence, whether it be circumstantial or directpointing to guilt, from which a judge or jury canreasonably conclude that the evidence of identification,although based on the testimony of a single witness, cansafety be accepted as free from the possibility of error.*

This case has been applied and followed in numerous subsequentcases.  The identification evidence of a single witness can be relied on toprove a fact but it is to be treated with the greatest care especially when it isknown that the conditions favouring a correct identification were difficulty.

I suppose the "test with the greatest care" of such testimony must includeobserving the demeanour of the witness and considering the whole of hisevidence to determine if he is a truthful witness whose evidence can safelybe relied upon. Care must also be taken to ensure that his testimony is freefrom the possibility of error for a witness can be honest and truthful butmistaken.

Is the testimony of PW2 in this case "free from the possibility oferror and reliable". Let us consider it. She said that they went to bedleaving their kerosene lamp still burning. Why would they do that? If thatis true and she saw the accused, why would the accused the need to blindfoldher while still talking to her warning her not to say anything? I also find thedeceased's behaviour as related by her rather surprising. He did not put upany resistance at all or even scream for help. Their neighbour PW3 who wasalso a brother to the deceased did not hear any commotion. If the deceased'swidow indeed feared the deceased's threats why did she not tell thedeceased's brother PW3 the truth? Why did she not tell even her ownbrother, PW4, the truth?

I was not impressed by the demeanor of PW2. She did not impressme as a witness who was entirely truthful. Besides that I do not even thinkthat their kerosene lamp was left burning when they went to sleep.  Herevidence was riddled with a lot of inconsistencies as even the assessorsfound. It has not passed the test required of a single identifying witnessesstated in the above authorities and it cannot therefore be relied upon to provethat the accused went to the home of the deceased during the night of13th/14th December, 1999, unless there is some other independent evidenceto corroborate it.

I have carefully examined the evidence of the other witnesses. Thereis absolutely no corroboration of PW2's said testimony that the Accusedeither alone or with other people went to their house during the night of₁₃th_/14th December, 1999. The alleged threat by the Accused to thedeceased on the 10* December, 1999, as the Assessors correctly found, wasnot investigated. It does not prove anything.

The evidence of PW1, Dr. Kombe, is not conclusive as to the cause ofdeath. He was restrained by the family members of the deceased fromopening the body. It cannot therefore be said with certainty that the cause ofdeath was asphyxia due to strangulation. The deceased could have diedfrom any other cause. Even if I were to accept that as the cause of deaththere is no evidence to prove that the accused with a lame right handstrangled or caused the strangulation of the deceased.

I agree with the unanimous verdict of the Assessors that apart fromthe discredited evidence of the deceased's widow, PW2, there is noevidence, direct or circumstantial, connecting the Accused with the murderof the deceased.

For these reasons I find the Accused not guilty of the murder orkilling of Ah Abdalla, the deceased, and acquit him. Accordingly I orderthat he be released forthwith unless otherwise lawfully held.

DATED AND DELIVERED AT MALINDI THIS 28th DAY OF APRIL, 2004.

D. K. MARAGA

AG. JUDGE