|Civil Appeal 287 of 2010
|Joseph Chemasweti Lomulei v Republic
|25 Mar 2011
|Court of Appeal at Eldoret
|Riaga Samuel Cornelius Omolo, Samuel Elikana Ondari Bosire, John walter Onyango Otieno
|Joseph Chemasweti Lomulei v Republic  eKLR
|Appeal from a conviction and sentence of the High Court of Kenya at Kitale (Ombija, J.) dated 28th October 2009 in H.C.CR.C. NO. 42 OF 2003
|Individual v Government
|History Docket No:
|42 OF 2003
|Nicholas Randa Owano Ombija
Criminal Practice and Procedure – murder – appellant convicted and sentenced to death by High Court – appeal against conviction and sentence – grounds that the High Court erred in law in convicting and sentencing the appellant on circumstantial evidence – whether the conviction and sentence in the circumstances was legal – whether the prosecution had proved its case beyond any reasonable doubt.
|Appellant’s appeal dismissed
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
CRIMINAL APPEAL NO. 287 OF 2010
(Appeal from a conviction and sentence of the High Court of Kenya at Kitale (Ombija, J.) dated 28th October 2009
JUDGMENT OF THE COURT
The particulars in the information alleged that on 11th September 2003, at Karara area of Trans- Nzoia District within Rift Valley Province the appellant murdered Patrick Juma, hereinafter referred to as the deceased.
The prosecution case at the trial was wholly based on circumstantial evidence. The trial Judge appreciated this and cited the often cited case of R v. Kipkering Arap Koske and Another (1949) 16 EACA 135. She purported to quote a passage from that decision in the following manner:-
“In order to justify 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 that of his guilt.” The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”
“Clearly the direction the learned Judge gave to the assessors and which she sets out in this part of her judgment is no longer adequate and it is no wonder Mr. Georgiadis conceded before us that had the Republic’s case been based wholly on circumstantial evidence as the learned Judge thought it was the Republic would have had no leg to stand on. Mr. Kapila cited to us first the case of Teper v. Reginam  AC 480 which was decided by the Privy Council after Kipkering’s case (1949) and there the Privy Council laid down the further test that: “it is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”
What were the circumstances in this case? Robinson Juma Khaemba (PW4), who, like the deceased, operated a bicycle taxi, testified he was present when the appellant approached the deceased on 11th September, 2003 and requested him to take him to some place. The deceased agreed and rode his bicycle away with the appellant as his passenger. The time was about 3 p.m. On the way they passed Benson Ng’ang’a Mwangi (PW6), who knew the deceased and the appellant well before. He testified that the appellant was then employed by one James Gichimu (PW7) who was PW6’s neighbour. He knew the deceased’s bicycle well, more so because it was labeled at the back with words “Sungura Mjanja”. He heard the deceased inquiring from the appellant whether he had reached his destination, but the appellant answered that he had not. He saw them branch into a path leading into a maize plantation. That was the last time the deceased was seen alive.
In her assessment of the evidence the trial Judge rendered herself thus:-
There is in this case no existing (sic) circumstances that can negate the presumption of the accused person’s guilt. There is no possibility that the deceased was confronted by another person immediately after branching into the maize plantation and attacked and killed in the presence of the accused and this other person went and sold the deceased’s bicycle to the accused person immediately thereafter. It is my considered view that the prosecution has established an unbroken chain link from the time the accused hired the deceased’s bicycle at Karara as witnessed by PW4; to the time PW6 saw them branch into the maize plantation, to the recovery of the deceased’s body in the said maize plantation and the recovery of the deceased’s bicycle with the accused barely 3 days later.”
The appellant filed a home-made memorandum of appeal with seven grounds, but at the hearing of the appeal Mr. Kiplagat J. Misoi, counsel for the appellant abandoned all but the 6th ground, which reads as follows:-
This is a first appeal. We remind ourselves that it is our duty to re-evaluate the evidence and draw our own conclusions on it of course without overlooking the conclusions of the trial Judge. We must also bear in mind that unlike the trial Judge, we did not see and hear the witnesses testify as to be able to assess their credibility as witnesses. See Okeno v. Republic (1972) EALR page 32.
The appellant’s explanation is not believable, when considered against other evidence on record. As stated earlier the appellant was as at 11th September, 2002, an employee of PW7. He left PW7’s employment on 8th September, 2002. He left PW7’s home on that day saying he was going to get a bag in which to carry his clothes. He did not return until 11th September 2002, the day the deceased disappeared. As he was leaving he told PW7 and his wife that he was going to Moi’s Bridge where he had got another job. He did not however go to Moi’s Bridge but to Biririet where he was later arrested in possession of the deceased’s bicycle. Besides, a bicycle is not an item which changes hands quickly. Therefore to suggest that the deceased’s bicycle changed hands by way of sale within two or so days is not believable. The deceased’s bicycle was well-known in his home area and such was not the type of bicycle which in our view would find a buyer who would buy it without raising issues.
The trial Judge did not consider whether the killing was with the requisite malice aforethought. The deceased suffered several serious cut wounds one of which penetrated his chest and punctured his lungs. The injuries clearly are evidence that the killing of the deceased was pre-meditated and was therefore with malice aforethought as to constitute murder.
Dated and delivered at ELDORET this 25th day of MARCH, 2011.
R. S. C. OMOLO
JUDGE OF APPEAL
S. E. O. BOSIRE
JUDGE OF APPEAL
J. W. ONYANGO OTIENO
JUDGE OF APPEAL