Case ID:201516

Republic v Abdallah Kahi (Criminal Case 26 of 2015) [2022] KEHC 12455 (KLR) (8 July 2022) (Judgment)

Case Metadata

Case Number:

Criminal Case 26 of 2015

Parties:

Republic v Abdallah Kahi

Date Delivered:

08 Jul 2022

Case Class:

Court:

High Court at Vihiga

Case Action:

Judgment

Judge(s):

William Musya Musyoka

Citation:

Republic v Abdallah Kahi (Criminal Case 26 of 2015) [2022] KEHC 12455 (KLR) (8 July 2022) (Judgment)

Court Division:

Criminal

County:

Vihiga

Disclaimer:

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

Republic v Abdallah Kahi (Criminal Case 26 of 2015) [2022] KEHC 12455 (KLR) (8 July 2022) (Judgment)

Neutral citation:

[2022] KEHC 12455 (KLR)

Republic of Kenya

In the High Court at Vihiga

Criminal Case 26 of 2015

WM Musyoka, J

July 8, 2022

Between

Republic

Prosecution

and

Abdallah Kahi Alias Alex Kash

Accused

Judgment

1.

The accused, Abdalla Kahi alias Alex Kash, faces a charge of murder of Fidelis Aguya. The facts, being that he did so onDecember 22, 2014 at 1100hrs at Lodondo Village, Lusiola Sub-Location within Vihiga County.

2.

He denied the charge and the prosecution called nine witnesses. PW1 placed the accused at the scene. He was the one taking care of the deceased that morning, when the accused came and asked for tea. He served him, then the accused sent him to the shops to buy mandazi. When he came back, the accused had left the scene, and the child was lying dead. PW2 had left the home earlier leaving the child with PW1 and the accused was not at the scene then. He mentioned that the accused came in and left before PW1 arrived. PW3 had left the home earlier. She left the child with PW3, who was to wait for PW1, and hand over the child to him. The accused had not yet entered the scene, by the time PW3 left. PW4 was informed of the death of the deceased, and he, in turn, informed the police. PW3 was an Administration Police Officer who came to the scene, and who called the Directorate of Criminal Investigations officers to take over. PW6 and PW7 came in to the scene as responders after alarm was raised by PW1. PW8 was the investigating officer, while PW1 processed in pictures or photographs taken at the scene, of the body of the child.

3.

Murder is established where one kills with malice aforethought. To prove murder four elements of the offence must be established. One, the deceased died. Two, the cause of death must be established. Three, the cause of death must be linked to the accused. Four, and finally, the death must have been caused by the accused with malice aforethought.

4.

It is not disputed the child died, there is overwhelming evidence from the prosecution witnesses. A pathologist did not testify, and there is, therefore, no medical or scientific evidence of the death. Witnesses testified that his neck was severed and it would appear that that was what caused his death. He must have died instantly.

5.

Was the death caused by the accused person? There is no direct evidence. No one saw the accused do anything to the child, the prosecution case is built on circumstantial evidence. PW1 placed the accused at the scene. He allegedly came to the home, found the deceased and PW1. He asked for tea. He was served tea. He sent PW1 to buy him mandazi. He was left alone with the child. When PW1 came back, thirty minutes later, the accused was nowhere, and the deceased was lying dead, inside the house, with a severed neck. It is on the basis of these circumstances that the accused was arrested and charged. It can also be said that he case is founded on mere suspicion, that since the accused was left alone with the child, and then the child was found dead thirty minutes later, with the deceased nowhere in sight, it followed then that the accused must have known what happened to the boy.

6.

Do the circumstances irresistibly lead to a conclusion that the child was killed by the accused? Firstly, the principal evidence is that by PW1. He was gone for thirty minutes. The boy was supposedly killed within those thirty minutes. It is not clear at what stage the accused left the scene. There was evidence that the compound easily accessible by anyone, as it had an open gate and an open compound, in terms of being unfenced. Anyone could have accessed it within intervening period. Doubts were raised with respect to the thirty minutes interval between the time the PW1 left the compound and the time he came back, given that the shop where he went to buy mandazi was just five hundred metres away. Again, PW1 was the only one who saw the accused at the scene. No one else placed him at the scene at that time. PW2 alleged that the accused had come earlier and left, and it was only PW1 who says that he came back. Any doubt must be resolved in favour of the accused. During the thirty minutes interval any other person could have come in. No one saw the accused leave. He was a member of the extended family of the deceased, yet no one made an effort to trace him after the discovery of the body of the deceased. If he was indeed around the area. He was eventually arrested at Eldoret several days later. Other than his being placed at the scene, nothing else linked him to the crime. Nothing was recovered at the scene traceable to him. Nothing was found on or recovered from him, which linked him to the offence. No evidence of any kind was adduced to establish and to explain the killing by him.

7.

Case law has it that suspicion alone is not sufficient to found a basis for a conviction for murder. See

Sawe v Republic

(2003) KLR 364 (Kwach, Lakha & O’Okubasu JJA). However, strong the suspicion is, it cannot be a basis for a conviction, for the burden on the Republic is to establish the murder beyond any reasonable doubt.

8.

Regarding circumstantial evidence, the law is that the same can only be relied upon where the incriminating facts are incompatible with the innocence of the accused or the same are incapable of explanation on any other reasonable hypothesis than that of his guilt. See

James Mwangi v Republic

(1983) KLR 327 (Madan , Potter JJA & Chessoni Ag. JA). The only incriminating fact is the presence of the accused at the scene shortly before he was left alone with the child, and his having been left there for thirty minutes by PW1. There is nothing else that points to the accused probably having done anything to the deceased.

9.

The pathologist did not testify, and, therefore, no scientific evidence of the case of death is placed on record. The straightforward of proving cause of death is production of a post mortem report. Such a report is important for the purpose of identifying the cause of death and the approximate time of death. See

Ndung’u vs. Republic

[1985] KLR (Nyarangi JA, Platt & Gachuhi Ag. JJA)) and

Chengo Nickson Kalama v Republic

[2015] eKLR (Makhandia, Ouko & M’Inoti JJA). However, On cause of death, the same can be determined even in the absence of scientific evidence. That was addressed in

Republic v Cheya and another

[1973] EA 500 (Mfalila Ag J). In this case, the neck of deceased was cut to the point of being severed from the head, according to the witnesses. He must have died instantly. If the testimony of PW1 is to believed, that he left him alive, and thirty minutes later he found him dead, cause of death, no doubt, must have been the very severe neck injury.

10.

On malice aforethought, the law is stated in section 206 of the Penal Code. It is the mens rea for the offence. It is the intention to kill, or the intention to cause grievous harm, or the knowledge that the act or omission would cause death or grievous harm, or indifference to the fact that the act or omission could cause death or grievous harm, or an intention to commit a felony. See

Republic v Felix Nthiwa Munyao

Nairobi HCCRC No 43 of 1999 (Etyang J). It is usually inferred from the proved facts on the actus reus. See

Karani and three others v Republic

[1991] KLR 622 (Gachuhi, Cockar JJA & Omolo Ag. JA). The nature of the injuries sustained by the deceased, the severing of the neck, pointed to an intention to kill or to commit grievous harm on the deceased, both of which are proof of malice aforethought. So, if the killing was by the accused, then he must have done it with malice aforethought.

11.

Motive is usually not a factor in determining criminal liability. See section 9(3) of the

Penal Code

and

Karukenya and four others v Republic

[1987] KLR 548 (Kneller, Hancox JJA & Chesoni Ag. JA) and

Langat v Republic

[2002] 2 KLR 191 (Chunga CJ, Shah & Bosire JJA). However, in cases founded purely on circumstantial evidence, like the instant one, motive could be a factor to take into account as part of the circumstantial evidence on the culpability of the accused. See

Karukenya and four others vs. Republic

[1987] KLR 548 (Kneller, Hancox JJA & Chesoni Ag. JA),

Libambula v Republic

[2003] KLR 683 (Tunoi, O’Kubasu JJA & Onyango-Otieno Ag. JA) and

Kabiru v Republic

[2007] 1 EA 107 (Bosire, Githinji & Deverell JJA). The prosecution did not address the matter of the motive that might have driven the accused to commit the heinous crime on an innocent boy if indeed he was the one who did the killing. He was not his father, the mother of the deceased was his relative, and there was no evidence of any bad blood between him and the mother.

12.

The defence has submitted on the admissibility of the pictures or photographs that had been placed on record by the Republic. I believe that is one is water under the bridge. It came up, by way of objection, when PW9 was testifying. The objection was not on the production of the pictures or photographs, but on the accompanying certificate signed by PW9. I dealt with the matter by way of the ruling that I delivered on June 14, 2019. I ruled that the photographs and the certificates were advisable. That issue cannot be revisited at this stage.

13.

The accused gave a sworn statement. He said he was in Eldoret, where he was working then, at the material time that it is alleged that he killed the deceased. He did not produce anything concrete to show that he was indeed in Eldoret at this time. But then it is up to the prosecution to disprove or displace any alibi put forth by the defence. Two prosecution witnesses, PW1 and PW2, said that he was at the scene. He is their relative, and these encounters happened at daytime.

14.

In view of everything, that I have said so far, it is my finding that the prosecution has not established beyond reasonable doubt, that the accused herein, Abdalla Kahi alias Alex Kash, killed the deceased herein, Fidelis Aguya. Consequently, I do find him not guilty of the murder of the deceased, and I accordingly, acquit him of the charge. He shall be released from remand custody, unless he is otherwise lawfully held.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8

TH

DAY OF JULY 2022

W M MUSYOKA

JUDGE

Mr. Erick Zalo, Court Assistant.

Ms. Kagai, instructed by Director of Public Prosecution, for the Republic

Abdallah Kahi alias Alex Kash, the accused, in person