Silas Mutuma Marimi & 2 others v Republic [2020] eKLR
Court: High Court of Kenya at Nakuru
Category: Criminal
Judge(s): Joel Ngugi
Judgment Date: September 17, 2020
Country: Kenya
Document Type: PDF
Number of Pages: 3
Case Summary
Full Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO. 5 OF 2016
SILAS MUTUMA MARIMI..........................................................1ST ACCUSED
REUBEN MAINO..........................................................................2ND ACCUSED
WYCLIFFE WANGILA SIKUKU...............................................3RD ACCUSED
VERSUS
REPUBLIC...................................................................................................STATE
JUDGMENT
1. The three Accused Persons herein, Silas Mutuma Marimi; Reuben Maino and Wycliffe Wangila Sikuku – are jointly charged with the offence of murder contrary to section 203 as read together with section 204 of the Penal Code. It is alleged that on the 8th day of July, 2014 at Olenguruone town within Nakuru County, the three Accused Persons jointly murdered Caren Chepkoech Rono Alias Mercy Chepkoech (“Deceased”).
2. The Prosecution called seven witnesses to prove its case. The Prosecution theory was a simple one: the three Accused Persons arrested the Deceased from Wagon Bar in Olenguruone Town on the night of 08/07/2014 and unlawfully assaulted her to death while in their custody. However, since no one witnessed the alleged assault, the Prosecution had to rely on circumstantial evidence to piece together the evidence for the alleged murder. The Prosecution’s seven witnesses were assembled to try and do so.
3. The first Prosecution witness was the owner of Wagon Bar whence the Deceased was arrested. His name is Charles Kiprop Ng’eno. He testified that he had employed the Deceased as a Bar Tender at his bar; and that on 07/07/2014 he was the last person with her at the bar. He said that both he and the Deceased were inside the counter shortly before 2:00am when two people came through the front door. He immediately recognized the 2nd Accused Person who, he said, was accompanied by a second person who was dressed in a Police Rain Coat. That second person, he said, is the 3rd Accused Person.
4. Mr. Ng’eno testified that the 2nd Accused Person insisted that they had seen someone coming into the bar at that late hour which, he said, was proof that they were operating the bar beyond the closing hours allowed by the regulations. Mr. Ng’eno testified that the 2nd Accused Person insisted that they were going to arrest the Deceased for operating beyond closing hours. He said that the Deceased pleaded with the Police not to arrest her but the 2nd and 3rd Accused insisted on arresting the Deceased. Meanwhile, Mr. Nge’no testified, the 1st Accused Person, who was known to him, came into the bar. It was the 1st Accused Person, Mr. Ng’eno testified, who “fueled everything”: insisting that the Deceased had to be arrested and even carried a crate of assorted beers into the Police Vehicle to be used as exhibits in Court.
5. Mr. Ng’eno told the Court that the officers dragged the Deceased to the Police Vehicle and that the Deceased was both pleading with them not to arrest her because she had a young son who was alone at home and actively resisting the arrest. She was bundled into the Police Vehicle anyway and the vehicle took off.
6. Mr. Ng’eno told the Court that after locking up the bar, he drove towards his house which was in the same general direction as the Police Station. Before branching off to his house, he said, he noticed someone lying on the side of the road at the last bump of the seven bumps on the stretch of the main road. He said that he drove five metres past the intersection to his house in order to take a good look at the body but just then he noticed a Police Vehicle coming in the opposite direction. He said that he turned around his motor vehicle and drove home. He did, however, notice the Police stop by the body he had seen and he assumed they would “take care of everything.” He did not know whose body it was or indeed, whether the person was dead or alive.
7. The following morning, Mr. Ng’eno told the Court, he was was shocked to receive a call from a Mr. Alfred Tororei informing him that the Deceased had apparently died as she attempted to jump out of the Police Vehicle.
8. Nicholas Lokorodi testified as PW5. He was employed as a Security Guard at Buffalo Club – a club right adjacent the Wagon Bar (although the witness used the word “opposite” to describe the spatial relationship of the two establishments). He testified that only a fence separates the two premises and that on 08/07/2014 he was on duty. He testified that the Deceased closed the bar at 11:00pm but re-opened the doors around 3:00am when Mr. Ng’eno, the Proprietor, went to call her to do so. He claimed that Mr. Ng’eno and the Deceased came back at 3:00am “and started doing accounts.” There is, however, no way that a Security Guard from a neighboring premise would be able to tell what was happening inside the next premises.
9. Mr. Lokorodi testified that shortly after Mr. Ng’eno and the Deceased had come back to the bar, he saw a Police Vehicle come and stop by the premises. Out came a person he clearly recognized as the 2nd Accused Person, who he knew before. He said that he heard him calling out Mr. Ng’eno and the Deceased saying that he had caught them red-handed selling past hours. Mr. Lokorodi says that the Deceased told them that they were merely settling the accounts but the 2nd Accused Person would not listen; that he ordered the Deceased to carry the alcohol as exhibits and then escorted her to the Police Vehicle. Mr. Lokorodi stated that the Deceased was all along pleading with the 2nd Accused Person not to arrest her but the Officer would hear none of it; that the Officer dragged her to the vehicle and upon reaching it, another Officer alighted from the Vehicle and helped force the Deceased onto the vehicle. He said that the Motor Vehicle then sped off.
10. Mr. Lokorodi testified that he watched all this from his vintage point at Buffalo Club and that after the Police Vehicle left he went to the door of Wagon Bar and asked Mr. Ng’eno why he had let the Police take away the Deceased. He said that after about 30 minutes, Mr. Ng’eno left in his vehicle.
11. Raphael Kimutai Kosgei testified in the trial as PW2. He is now a retired Nursing Officer and worked at Olenguruone Sub-district Hospital. He testified that he was on duty on 08/07/2014 when a body was brought by the Police at about 2:45am. He said that it was on a stretcher. He quickly examined the body. It was the body of an adult female. It had no pulse and there was no respiration. The eyes were also fully dilated. He concluded that the person was dead. As per the procedures, he called the Clinical Officer on duty to document.
12. The Clinical Officer on duty was Ms. Jackline Kirui. She testified as PW4. She, too, recalled the date: 08/07/2014 and testified that she was called by a Security Guard who had been sent by Raphael (the Nurse – PW2). She went to the hospital and found three Police Officers in a Police Vehicle. She found the patient on a stretcher. She recognized the 1st and 2nd Accused Persons by name but did not remember the 3rd Officer. Upon examination of the person on the stretcher, she found a light-skinned woman in her twenties. She was fully dressed in khaki trousers and a white T-shirt. There were no signs of life: no heart activities and no pulse. She certified that the person was dead at that time. She filled in the paperwork and handed over the body to the Police Officers who, in turn, asked her to store the body in the cold room. She produced the report she made as an exhibit in the case.
13. Ms. Kirui testified that she Officers told her that the victim had fallen from a moving vehicle. She said that she only saw one injury: a wound about 5 cms long at the back of the head on the occipital region. She concluded that it had been caused by a blunt object. However, Ms. Kirui conceded that she did not remove the victim’s clothes and did not examine any other parts of her body covered with clothes. She saw no blood stains except on the T-shirt near the neck region. The clothes were slightly dusty but not soiled.
14. It was Dr. Titus Ngulungu who performed an autopsy on the body of the Deceased. This, he did on 14/07/2014. The body was identified to him by Joseph Korir Cheruiyot, an uncle to the Deceased (who testified as PW3 to confirm this fact). The autopsy was at Molo District Hospital’s mortuary.
15. Dr. Ngulungu testified that the body was that of a female of around 21 years of age of good nutritional status. He said that the body had cyanosis – the bluing of fingernails as a result of oxygen deprivation. It also showed pallor as a result of blood loss. On the head, the body had a laceration on the right occipital region. He did not find any other external injuries.
16. Upon internal examination, Dr. Ngulungu testified that he found that on the head there was scalp hematoma – at least 5 cms long on the right occipital region but no skull fracture. The brain had extensive bruising on the opposite of the injuries and subdural hematoma. Dr. Ngulungu also testified that the lungs were collapsed meaning that she had intra-cranial pressure leading to reduced oxygen saturation and concentration. Dr. Ngulungu testified that he concluded that the cause of death was severe head injury “due to discrete force trauma to the head on the right occipital region.” He insisted that the injury was inconsistent with a person who fell from a moving vehicle. He explained that this was primarily because there were no abrasions and that the injuries were only concentrated on the head. Dr. Ngulungu further opined that for a person who meets their death from jumping from a moving Motor Vehicle, one expects to find injuries on all parts of her body because such a person rolls at the speed of the Motor Vehicle. The injuries on the Deceased, however, opined Dr. Ngulungu, do not depict motion injuries. He produced the Post-mortem form as an exhibit in the case.
17. Aggrey Amadi, the Investigating Officer in the case testified as PW6. He worked at the Independent Police Oversight Authority (IPOA) at the time of the incident. He has since moved to the Kenya Revenue Authority (KRA). He testified that he was tasked to do investigations in the case. He said that in the course of investigations he found out that the Deceased was picked up from Wagon Bar on 08/07/2014 at around 2:00am by Police Officers. At the time of the arrest, she was in the company of Mr. Ngeno (PW1). Mr. Amadi said that his investigations showed that the three Accused Persons were the officers who picked up the Deceased. He produced OB extracts showing how the Police Officers left the station and then went back and entered a second OB item stating that the Deceased had jumped from the vehicle. He also produced the incident Report as an exhibit. Mr. Amadi said that he was not persuaded by that version because the injuries were inconsistent with jumping form a moving vehicle. He, therefore, recommended that the three Officers be charged with murder.
18. On cross-examination, Mr. Amadi testified that the matter was reported to IPOA by a Daisy Chelagat who is a cousin to the Deceased. However, he conceded that he received a letter from Zacharia Cheruiyot with a copy of the post-mortem report. Mr. Cheruiyot was the area Member of Parliament at the time. He denied getting pressure from Mr. Cheruiyot to prosecute.
19. Mr. Amadi testified that there was already a post-mortem report by the time he took over the investigations. The report was done on 14/07/2016 by Dr. Ngulungu. He then proceeded to record a statement by Dr. Ngulungu on 31/07/2014. Dr. Ngulungu, in his statement, concluded that the injuries were inconsistent with a fall from a moving vehicle. Mr. Amadi says he relied on that statement as well as the other eye witness accounts in making his recommendation that the three Officers be prosecuted for murder.
20. When placed on their defence, each of the three Accused Persons gave sworn statements. None of them called any witnesses.
21. The 1st Accused Person – Silas Mutuma – testified that he has been in the Police Force for about 20 years and that he is now attached to Kongoni Police Station but on interdiction due to the instant case. He testified that he was serving at Olenguruone Police Station when the incident happened. He recalled that it was 08/07/2014 and he was the Duty Officer at the Police Station. At about 1.20am, the 1st Accused Person testified that he received a call from the OCS, Chief Inspector Otieno informing him about an accident along the Olenguruone-Molo Road near Karbatonjo junction. He booked the report in the OB and summoned the 2nd and 3rd Accused Persons to accompany him to the scene – with the 3rd Accused Person driving the Police Vehicle.
22. The 1st Accused Person testified that at the scene they found a middle-aged man who he came to learn later was Tom Langat. He was lying in the middle of the road with some bruises on his forehead. His motor cycle was lying next to him. The man appeared unconscious but was breathing. Upon checking on him, finding some liquor in his pockets, and experiencing the heavy smell of alcohol in his breath, the 1st Accused Person testified that they concluded that the man was simply too intoxicated but that he had not been involved in an accident. They drew a sketch plan and bundled the man and his motor cycle at the back of the Police Vehicle and headed back.
23. According to the 1st Accused Person, the 2nd Accused Person now boarded at the back of the Police Land Cruiser so that he could watch over the man. On getting near a building famously known as Unga Tamu Building, the 1st Accused Person testified that they saw a man coming out of Wagon Bar. Since it was already past sale-regulations time, the 1st Accused Person ordered the Police Driver (the 3rd Accused Person) to drive to the bar. On getting there, he says that he asked the 2nd and 3rd Accused Persons to go into the bar and see if it was operating beyond hours. He was left in the Police Motor Vehicle as the two left. They returned some minutes later with the Deceased. They had arrested her. The 1st Accused Person testified that he came out of the Police Motor Vehicle to assist in carrying away some exhibits from the bar to the Police Motor Vehicle.
24. The 1st Accused Person testified that he did not arrest the owner of the bar because it was a person known to him and he intended to summon him to the Police the following day. In any event, he testified that he saw the Deceased seated on the right hand side of the Police Motor Vehicle as it drove off. The 2nd Accused sat at the back again in order to guard both the Deceased and the man they had collected earlier. He said that the 2nd Accused Person sat on the right side near the door while the lady sat next to him. The accident victim was lying on the floor of the Police Motor Vehicle.
25. It was the 1st Accused Person’s testimony that they drove to the Police Station, when they got to a stretch which has seven road bumps, the 2nd Accused Person started banging the side of the Motor Vehicle to catch his and the driver’s attention. The vehicle stopped. Upon inquiry, the 2nd Accused Person informed them that the Deceased had jumped from the Motor Vehicle. The 1st Accused Person said that he ordered the 3rd Accused Person to reverse the Motor Vehicle as they looked around. Thirty metres away, they saw the body of the Deceased lying on the road. The 1st Accused Person testified that they picked her up and rushed to the hospital to try and get medical attention for her. Unfortunately, the Deceased was pronounced dead by the time they arrived.
26. The 2nd Accused Person’s narrative was similar to the 1st Accused Person’s about the background information leading to the incident at the bar. He testified that upon getting to the Wagon Bar, one person ran away through the back door. They quickly concluded that the bar was operating beyond hours and elected to arrest the bar attendant – the Deceased. He testified that the Deceased seemed drunk and needed support to board the Police Motor Vehicle upon arrest.
27. The 2nd Accused Person testified that in the Police Motor Vehicle, the Deceased sat on her own towards the door while he (the 2nd Accused Person) assumed the position of supporting the accident victim who was lying on the floor of the Motor Vehicle. He said that he was busy supporting the accident victim’s head that he did not notice what exactly happened but suddenly realized that the lady was missing. The 2nd Accused Person testified that he banged the door to catch the attention of the driver. When the car stopped and they backed up some thirty or so metres, they found the Deceased lying on the road. They picked her up and rushed her to the hospital.
28. The testimony of the 3rd Accused Person was, in all material terms the same as that of the 1st Accused Person about what happened. He insisted that he did not know what happened at the back of the Motor Vehicle after they left Wagon Bar to head to the Police Station.
29. On cross-examination, all the three Accused Persons conceded that it was a breach of regulations for there to be one Police Officer guarding two people at the back Of the Police Vehicle. It was also a breach of regulations that none of them were armed throughout the two incidences on that fateful evening. They, however, insisted that they did not murder the Deceased.
30. The Prosecution hoped to persuade the Court that this evidence establishes all the elements of the offence of murder beyond reasonable doubt. The offence of murder is defined by section 203 of the Penal Code, Cap 63, Laws of Kenya as follows:
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
31. In order to establish a charge of murder, the Prosecution is required to tender sufficient proof of the following three crucial ingredients:
i. That death of the victim occurred (actus reus);
ii. That the death was caused by an unlawful act or omission by the Accused Person; and
iii. The unlawful act or omission was actuated by malice aforethought (mens rea).
32. On the other hand, under section 206 of the Penal Code, malice aforethought is established, when there is evidence of:
i. Intention to cause death of or grievous harm to any person whether that person is the one who actually died on not;
ii. Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not;
iii. Intent to commit a felony; or
iv. Intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
33. In the present case, there is no question that the death of the Deceased occurred. Dr. Ngulungu, who performed the autopsy, testified as such as did at least two other Prosecution witnesses that the Deceased was dead by the time she was taken to the hospital. Indeed, even the three Accused Persons, in their own sworn statements conceded as much. The question that the Prosecution needed to settle was that the death was caused by the Accused Persons, and if so, whether it was pre-meditated.
34. It is fairly obvious that none of the Prosecution witnesses claims to have seen any of the Accused Persons committing the murder. Instead, the Prosecution relies on circumstantial evidence: it is not denied that the three Accused Person arrested the Deceased on the night of 08/07/2014 while she was alive and of sound health. About an hour later, she was delivered to the Olenguruone Hospital dead. The Prosecution insists that the cause of death was homicide by way of blunt force trauma to the head and insists thereby that, circumstantially, the three Accused Persons must be found guilty of killing her.
35. It is true that circumstantial evidence is, often, the best evidence. So said the Court of Appeal in Neema Mwandoro Ndurya v. R [2008] eKLR, where it cited with approval an English Case, R v Taylor Weaver and Donovan (1928) 21 Cr. App. R 20 where the English Court stated that:
Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics.
36. In Joan Chebichi Sawe versus Republic [2003] eKLR the principles that guide the Court in evaluating circumstantial evidence were laid out in three tests as follows:-
a. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
b. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
c. The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
37. Earlier on, Kipkering Arap Koske versus R. [1949] 16 EACA 135, long considered a locus classicus on this issue, had compressed the principles into two thus:
a. The inculpatory facts must be incompatible with the innocence of the accused.
b. The facts must be capable of no other conclusion or explanation except the guilt of the accused
38. However, as several Courts have pointed out, even where the Court is satisfied that the above threshold has been met, the Court is enjoined to exercise caution before applying the above thresh hold to the facts before it. As the Court of Appeal remarked in Simon Musoke versus Republic [1958] EA 715 while citing Teper versus R. [1952] AC 480,489 before drawing the inference of an Accused Person’s guilt from circumstantial evidence it is necessary for the court to be sure that there are no other existing circumstances which would weaken or destroy the inference.
39. Applying these principles to the present case, can we truly say that the “circumstances taken cumulatively… form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused Person and none else”"
40. This case turns on whether the Prosecution successfully established, beyond reasonable doubt, that the death of the Deceased was a result of homicide. To establish this fact, the Prosecution marshalled evidence as follows:
a. Mr. Ng’eno (PW1) and Mr. Lokorodi (PW5) testified that when the Deceased was arrested she was actively resisting arrest and pleaded with the Officers not to arrest her. The Police Officers, however, were hell-bent on arresting her and forcefully bundled her in the Police Motor Vehicle.
b. Dr. Ngulungu testified that the cause of death was inconsistent with falling or jumping from a moving motor vehicle. Instead, Dr. Ngulungu opined that the cause of death was severe head injury due to discrete force trauma to the head. Differently put, Dr. Ngulungu concluded that the Deceased was hit on the head by a blunt object.
c. By this theory, the inevitable conclusion, then, is that the Deceased was killed by a blunt object. Since the three Officers were the ones who arrested her and she died in their custody, the deduction, then, is that the three singly or jointly killed the Deceased.
41. Is this logic unassailable" Is the chain so complete that there is no escape from the conclusion that within all human probability Accused Persons or any of them killed the Deceased with malice aforethought" The logic is as unassailable, and the chain as complete as the cause of death. If Dr. Ngulungu’s theory is accepted as having been proved beyond reasonable doubt, the logic becomes ineluctable; the chain imperiously unbroken.
42. Unfortunately for the Prosecution, however, Dr. Ngulungu’s theory of the case and proffered cause of death is merely plausible – perhaps strongly plausible – but is not proved beyond reasonable doubt in the circumstances of this case. There are three reasons to be circumspect about the ability of Dr. Ngulungu’s theory to be taken as established beyond reasonable doubt.
43. First, while Dr. Ngulungu is a qualified pathologist – and a pretty good one at that – in the circumstances of this case there was a need for a second expert possibly on the biomechanics of the alleged incident to shore up the claim by Dr. Ngulungu and the Prosecution that the injuries on the Deceased were inconsistent with a fall or jump from a moving vehicle. For the Prosecution theory to meet the very high threshold required in criminal cases, more expert evidence was needed on the biomechanics of falling or jumping objects from a moving vehicle. Only such evidence would have completely ruled out the Defence theory that the Deceased jumped from the moving Police Vehicle.
44. Second, Dr. Ngulungu’s conceded that his theory was not “unassailable”. In cross-examination, he said that it is possible for someone to jump from a slow-moving vehicle and get a discrete injury under certain circumstances. What is more telling, though, is that Dr. Ngulungu’s certitude about his theory on the case seems to have increased with passage of time. I say so because Dr. Ngulungu recorded two statements. He recorded his first statement on 18/07/2014 – four days after his post-mortem examination. In that statement, Dr. Ngulungu explains as follows:
There was violent brain shake to cause counter coupe injuries (opposite side). There were no abrasions. The cervical vertebrae column had no compression fracture and no ring fracture were seen around foramen magnum. These (sic) could point towards inertia and were absent. The forces could be caused by either the head moving towards and hitting a hard surface several times or the force hitting the head several times.
It is therefore good to correlate the findings with the circumstances that the victim sustained these injuries.
45. The subtle but unmistakable tone of potential fallibility in the scientific theory of the cause of death in this statement by Dr. Ngulungu gives way to cocksure scientific certitude twelve days later in his second statement. In relevant part, Dr. Ngulungu opines as follows:
There was also discrete laceration of the brain noted at the area of the counter coupe injury.
The important negatives are:
1. There were no concentric bruising of the body as should be when a person jumps from a moving vehicle.
2. There were also no abrasion on any part of the body which should have been [there] if the person rolled on the ground after jumping.
3. There was no ring fracture seen at the cervical vertebrae which should be consistent with a fall of a heavy body such as that of the Deceased.
4. There were no landing injuries sustained by a person landing from a height.
In my opinion, the cause of death was head injury due to discrete force trauma to the head on the right occipital region. This means several injuries concentrated in the region of the first laceration. These were inconsistent with inertia given in the history of a fall from a moving vehicle.
46. In my view, this unexplained shift in opinion in itself would raise reasonable doubt about the cause of death of the Deceased. The doubts are increased by Dr. Ngulungu’s own qualification to this somewhat strident conclusion: Further correlations with the right circumstances are desired.
47. These “desired further correlations” never came. As such, the Prosecution was compelled to close its case with the looming doubts created by the “missing correlations” still very much present. Differently put, a biomechanics expert might have provided these “missing correlations” and help dissipate the reasonable doubts they have created.
48. A final cause of circumspection is the mystery of Mr. Tom Langat. This is the man who was collected pitch drunk and unconscious at the junction of Olenguruone-Molo road. By the time all this was happening, by the evidence of the other witnesses, the man was coming to. His evidence might have been useful to unknot what exactly happened in the Police Motor Vehicle. The explanation given by the Investigating Officer that he was unable to find him because his phones went un-answered was, with respect, un-impressive given the seriousness of the offence. It behooved the Prosecution to trace this witness in order to shore up this aspect of their case.
49. The upshot is that the uncertainty surrounding the cause of death of the Deceased introduces inherent doubts which effete the Prosecution case and prevent it from satisfying the very high threshold required in criminal cases.
50. This leaves the Court with only one option: it must acquit the Accused Persons of the charges of murder as charged. It hereby so does. Each of the Accused Persons is acquitted under section 322(1) of the Criminal Procedure Code. They shall be set at liberty forthwith unless they are otherwise lawfully held.
51. Orders accordingly.
Dated at Nakuru this 17th day of September, 2020.
.........................
JOEL NGUGI
JUDGE
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