PAMELA KARIMI ..........................................................................APPELLANT

REPUBLIC ...................................................................................RESPONDENT

In her judgment dated 18^th January, 2009 and erroneously titled “Judgment of the Court”, instead of simply “Judgment”, the learned Judge (Sitati, J) states, at the beginning of her judgment, as follows: -

“1.    The enactment and operationalisation of the STATUTE LAW (Miscellaneous Amendments) ACT 2007 abolished the role of assessors in murder trials with effect from 15.10.2007.

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(e) affect an investigation, legal proceeding or remedy in respect of a right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceedings or remedy may be   instituted, continued or enforced, and any such penalty,  forfeiture or punishment may be imposed, as if the repealing written law had not been made.” 

 We have considered the law on circumstances where a retrial would be ordered. In the case of PASCAL CLEMENT BRAGANYA vs R ( 1952) EA 152, the predecessor of this Court stated:

“We accept the principle that retrial should not be ordered unless the court is of the opinion that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result.” 

That decision was adopted in the case of AHMED SUMAR vs REPUBLIC (1964) EA 481 and particularly at paragraph 483 where the court having cited the part we have reproduced above added:

“Each case must depend on the particular facts and circumstances of that case but an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to an accused person.”

In this case, the offence took place on 1^st June, 2003, and the appellant was arrested on the same day, and has been in custody for over eight years. Apart from that we have examined the evidence before the trial court, and which we shall now summarise here.

In the early morning of 1^st June, 2006, at about 5.00 am, the appellant and her husband set off on a short journey to Kaaria market, a distance of about three Kilometres from their home. That is the last time they were seen together. The last person to have seen them was their 13 year old daughter, B.G (PW1) (B), who told the court that her parents were headed to the market, on a bicycle, to settle some money debt. B’s father rode the bicycle, while her mother, the appellant, sat as a passenger. The previous night, according to B, one Munene came home. It was around 8 p.m. Her father was not home, but her two sisters Purity Muthoni and Emily Kendi were. Their mother gave Munene some Shs.700/=. She could not say for what purpose.

At about 8 am on the following day, some three hours after the couple had set off on the journey to Kaaria Market, the appellant was seen returning home alone, pushing the bicycle. On her way home, she met Bernard Murangiri Ndubi (PW3) (Bernard) and related to him how she and her husband had had an encounter with a snake as they were riding, and how they fell down and damaged the bicycle, whereupon her husband asked her to return home with the bicycle as he proceeded to the market. Later that morning, her husband’s mutilated body was found in the bushes, some 50 metres from the road. There was a trail of blood, indicating clearly that the body had been dragged to the spot from the road.

The appellant was arrested the same day, and subsequently charged with murder contrary to section 203 as read with section 204 of the Penal Code. It was alleged that she murdered Elias Mutiria Rugia, her husband, on 1^st June, 2003 at Kaare Village, Kiera Location, Meru South District.

However, the learned Judge completely disregarded the evidence of the appellant, given under oath, and upon which she was cross-examined, that she and her husband fell off the bicycle following an encounter with the snake; that the bicycle got damaged in the process; that she had to push the bicycle all the way back home; that at some point she had to repair the bicycle, hence a two hour delay. The other concern expressed by the learned Judge was that “she had no interest in going to the scene where the body was found…..such lack of interest could only mean that the accused already knew how the deceased died” is completely misplaced. It would be preposterous to convict someone on such a hypothesis, even in the absence of any evidence before the court. Here, in this case, the appellant clearly explained why she did not go to the scene. Here is what she said under oath:

“Though I wanted to go to the scene, one James Marangu cautioned me against going because he said I might commit suicide after seeing my husband. Marangu said he had seen my husband’s body.”

Finally, in our view, the trial Judge failed to consider how, the appellant on her own, could have killed the deceased on the road, and drag the body some 50 metres into the bush. Neither the Information nor the evidence alleged that the appellant was assisted by someone else. We have serious doubts that one woman could have accomplished that task on her own. On our part, we are of the view that the evidence on record is nowhere near the test laid down in respect of circumstantial evidence as set out in the case of R. V KIPKERING arap KOSKE & ANOR (1949) 16 EACA 155 that the inculpating facts would be incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilt. On the contrary we find that the co-existing facts and circumstances weakened, if not destroyed the inference of guilt.

That being our view of the matter, we are not of the opinion that if retrial is ordered, a conviction might result. Accordingly, we make no order for retrial. The conviction of the appellant is set aside and the sentence is quashed. The appellant is released forthwith unless otherwise lawfully held.

 Dated and delivered at Nyeri this 1^st day of December,2011.

P.N. WAKI