|Criminal Appeal 243 of 2006
|Anthony Magua Gituchu v Republic
|08 Apr 2011
|Court of Appeal at Nairobi
|Philip Nyamu Waki, John walter Onyango Otieno
|Anthony Magua Gituchu v Republic  eKLR
|learned counsel Mr. Roch Odhiambo for the appellant learned Senior State Counsel Mr. Monda
|(An appeal from a judgment of the High Court of Kenya at Nairobi (Rawal, J.) dated 8th February, 2005 in H.C.CR.C. No. 129 of 2003)
|learned counsel Mr. Roch Odhiambo for the appellant learned Senior State Counsel Mr. Monda
|History Docket No:
|H.C.CR.C. 129 of 2003)
|Kalpana Hasmukhrai Rawal
Criminal law-murder-appellant convicted on a count of murder and sentenced to death-circumstantial evidence-conviction of the appellant based on circumstantial evidence-appeal against conviction and sentence-grounds of appeal that the circumstantial evidence against the appellant was not properly summed up by the trial court-whether the prosecution discharged its duty of proving the case beyond any reasonable doubt-whether the appeal had merit-Penal Code (cap 63) sections 203 & 204; Evidence Act (cap 80) section 111
|Both Parties Represented
|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
(An appeal from a judgment of the High Court of Kenya at Nairobi (Rawal, J.) dated 8th February, 2005
At about 6.30 a.m. on 2nd August, 2001, Susan Wangui Ngure, bid goodbye to her parents in Gikambura village, Kiambu, and left for her school, Magutuini Primary School, where she was in standard four. She never made it there. Her dead body was discovered eight days later in a bush, not far from her home, with a missing left leg, missing private parts and a deep cut near one of her ears. No one witnessed the macabre killing. On the strength of two pieces of circumstantial evidence, Anthony Magua Gituchu, the appellant now before us, was suspected to have caused the death and was charged for the offence of murder contrary to section 203 as read with section 204 of the Penal Code, before the superior court. According to the Information filed by the Attorney General, between the 2nd day of August, 2001 and 10th day of August, 2001, at Gikambura Village in Kiambu District of Central Province, the appellant murdered Susan Wangui Ngure (“the deceased”).
The first piece of circumstantial evidence came from the deceased’s cousin, S. W. T (PW4), who was a standard six pupil in the same school. Ordinarily, the deceased together with Susan and another cousin who was in standard five, used to go to school together as they were required to report very early in the morning. But on the morning of 2nd August, 2001, the deceased did not accompany them. She was delayed at home up to 6.30 a.m. as her father, R. N. M (PW1) had arrived from Mombasa the previous night and wanted to greet her. Her mother, J. W.N (PW2) was also at home and she saw the deceased off after she finished talking to her father. When the deceased did not return home from school after 4.30 p.m, her father, R, went to check with S but S said she did not see her at school. He asked her whether they had seen anybody that morning on their way to school and S said she had seen the appellant standing along the road and greeted him. When R prodded further to know whether they had talked to the appellant any other day, S said at one time the appellant had asked her who the brown girl was. R proceeded to Riu Police Post where he was given two officers to go to the appellant’s home but he was not at home. They went to report to Kikuyu Police Station and the appellant was arrested the following morning. The Officer Commanding Station (O.C.S.) however released the appellant as he was of the view that there was no sufficient evidence to hold him. The appellant, in the company of his father had already voluntarily gone to the police station when they heard that he was being sought. The release of the appellant extremely angered R. He continued to search for his missing daughter. On 7th August, 2001 he returned to Kikuyu Police station and in the company of four police officers including Pc. Ngugi Wamaya (PW8), they headed for the appellant’s home. It was the evidence of R and Pc. Ngugi that the appellant escaped from the house when he saw the policemen but they found the appellant’s father, Benson Gituchu Magua (DW2). It is also their evidence that they entered into the appellants’ house and carried out a search which unearthed a blood stained rope found on the floor of his room. Pc. Ngugi took possession of the rope and subsequently, on 15th August, 2001, submitted it to a Government Chemist, Cyrus Otieno Ojode (PW7) for forensic examination. This was the second piece of circumstantial evidence.
In the meantime, on the 10th August, 2001, George Mugo Ngure (PW3) was attending a ceremony in his aunt’s home which is in the same neighbourhood as the appellants’ home and R’s home. The two homesteads are about 500 meters apart. It was about 6 p.m. when George saw some five young boys running through the home and he stopped them. One of them was carrying a blood stained rope and said they had seen a dead body of a child. They all headed to R’s home where they found many people praying. R and some other villagers accompanied George and the young boys to the place where the body lay. It was in a bush about 200 meters from the appellant’s home. One of the young boys explained how they came about the discovery of the body. It was Stephen Mucheru Nyama (PW6) who said he was called by his cousin to go and assist in pulling out a dog which had fallen in a ditch. They went with three other boys. As they pondered on how to pull out the dog, they stumbled on the dead body of the deceased in a sack with a protruding leg. They ran out to inform others who also went to the scene. The police were also informed and on arrival at the scene, IP. Helen Rotich (PW5) observed that “the body had a deep cut near her ear and also her left leg was chopped off. Her private parts were chopped off.”
A post mortem was subsequently carried out by Dr. P.K. Maundu who formed the opinion that the cause of death was “head injury, brain haemorrhage and Asphyxia due to strangulation”. The Government Chemist also confirmed that the bloodstains on the sisal rope he examined and that of the deceased were both blood group A.
After the evidence was summed up for the three assessors who assisted the trial Judge, they were of the unanimous opinion that the appellant was not guilty as charged as there was no evidence to connect him. The learned Judge however, in her judgment, believed the evidence of Susan (PW4) despite some contradictions; that the appellant had spoken to her about the deceased one day before her disappearance; that a blood stained rope was found in the appellant’s house and that the appellant escaped and was not arrested until four months later. The learned judge also examined but curiously said nothing about the bloody rope seen by George (PW3) on the day the deceased’s body was discovered in the bush. She also rejected the evidence of the appellant’s father stating that he was sitting in court when prosecution witnesses testified.
The superior court appreciated, correctly so, that the case rested on circumstantial evidence, stating: -
The court further referred to the appellant’s evidence that he saw and spoke to the deceased that morning for a short while before the vehicle he was waiting for arrived. On this evidence the court stated:
“After this evidence in my humble submission (sic), it was incumbent upon the accused, to call Githua to confirm his story. This fact was only within his knowledge and thus onus to prove his alibi on balance of probability is entirely on the accused. He has failed to discharge that onus.”
Those findings aggrieved the appellant who challenged them on six grounds argued by his learned counsel Mr. Roch Odhiambo. We think however that it is on two grounds that this appeal will rest and we shall now examine them.
The first of those grounds relates to the “bloody rope” which was the vital second link in the chain of circumstantial evidence incriminating the appellant. In his submissions, Mr. Odhiambo contended that the prosecution evidence relating to the rope was not only confusing but was not properly summed up to the assessors or evaluated by the trial Judge. In his view, there were two “bloody ropes” put forward by the prosecution but only one of them was subjected to forensic examination. The first “bloody rope” was allegedly recovered in the appellant’s house by R in the company of the police on 7th August, 2001 and was retained by the police. The second “bloody rope” was found by a group of young boys where the dead body of the deceased lay. In Mr. Odhiambo’s submission therefore there was no consistent evidence on the “bloody rope” thus inviting the conclusion that the “bloody rope” was either planted in the appellant’s house in his absence or was never found in his house as his father (DW2) testified.
In response to that submission, learned Senior State Counsel Mr. Monda submitted that there were never two “bloody ropes” as only one was recovered from the appellant’s house. In his view, the evidence of PW3 in relation to a rope ought to be ignored since the defence counsel did not show such rope to the witness to confirm or deny its existence.
With respect, we do not understand the view taken by Mr. Monda on that evidence. The evidence of George (PW3) was adduced by the prosecution and there was no onus or burden on the appellant or his counsel to produce any evidence to disprove it. We may reproduce the relevant part on that evidence:-
The second ground raised by Mr. Odhiambo was in relation to the disappearance of the appellant from the scene for a period of four months and the manner his defence was evaluated. As stated earlier, an adverse inference was drawn from such conduct, the trial Judge stating that the onus was on the appellant to prove his alibi. The submission by Mr. Odhiambo was that there was a genuine fear by the appellant who had, as soon as he became aware of the incident, voluntarily gone to the police to proclaim his innocence only to be harassed by visits to his home by police, the angry and bitter father of the deceased, and mobs who ended up burning down his house and those of his parents. It was a natural reaction therefore that the appellant would seek refuge from his hostile villagers who wrongly believed that he was responsible for the deceased’s death. That is how he joined his cousin in Mumias and returned later on the wrong assumption that tempers had cooled down. In Mr. Odhiambo’s submission, the appellant was not the only one who had the opportunity to harm the deceased that day and he had no duty to prove, as the trial Judge erroneously stated, that he was with one Ngugi that morning.
In his response to those submissions Mr. Monda contended that the defence of the appellant was an afterthought as it was not put to the investigating officer in cross-examination that the appellant was given a lift by one Ngugi on the material date. He relied on section 111 of the Evidence Act which shifts evidential burden in some circumstances. Finally he submitted that the appellant had no reason to run away if he was innocent and such conduct supported the findings of the trial Judge on his culpaliability.
We have considered that ground of appeal anxiously and we think, with respect, that the learned trial Judge erred in shifting the burden of proof to the appellant in the circumstances of this case. Firstly, it is not correct to state, as contended by Mr. Monda, that the appellants’ defence was an afterthought and he should therefore have called evidence to prove it. As stated by Sir Udo Udoma, Chief Justice in Sekitoleko v Uganda  EA 531:
“(i) as a general rule of law the burden on the prosecution of proving the guilt of a prisoner beyond reasonable doubt never shifts whether the defence set up is an alibi or something else (R v. Johnson  3 All E.R. 969 applied; Leonard Aniseth v Republic  E.A 206 follows);
That general rule may only be departed from in limited circumstances when the evidential burden is shifted under section 111 of the Evidence Act. In this case there was evidence, confirmed by the prosecution ,that the appellant had voluntarily gone to the police station and had been interrogated and recorded a statement before he was set free by the OCS. It must be presumed that the story he gave to the police was consistent with the defence he gave in court on oath, since he was not cross-examined on any inconsistency about his story. The police therefore had ample opportunity to cross-check the story about one Githua and the vehicle the appellant stated he boarded to go to work in Wangige on the material date. It cannot therefore be said that his defence was an afterthought or that he failed to discharge any burden of proof. He had none to discharge. In the circumstances explained by the appellant we also think it was plausible that he was in mortal fear of his life and therefore left his village after seeing the conduct of the police, the deceased’s father and other villagers. We give him the benefit of doubt, and reverse the adverse inference drawn by the trial Judge.
All in all, it is our finding after re-evaluation of the entire evidence, that the circumstantial evidence relied on to convict the appellant did not measure up to the standards proclaimed by this Court and its predecessors in such cases as Kipkering arap Koske (1949) EACA 135, Teper v Reginam (1952) AC 480 and Parvin Singh Dhalay v Republic [1995 – 98] 1 EA 29. We allow the appeal, quash the conviction and set aside the sentence of death (now commuted to life) imposed on the appellant. The appellant shall be set at liberty forthwith unless he is otherwise lawfully held.
Dated and delivered at Nairobi this 8th day of April, 2011.
J.W. ONYANGO OTIENO