Murder convict freed after state fails to call key witnesses

A murder convict who had been sentenced to life in prison has been freed after prosecution failed to call a key witness.

Paul Njoroge Kamau was freed by the Court of Appeal on grounds that crucial witnesses who should have been asked to testify in his murder trial were ignored.

The court said this made the case against him not compelling enough to return a solid guilty conviction.

Kamau was convicted in July 2013 for a murder he allegedly committed in October 2010 in Narok county.

The appeal judgment was given on March 22.

The case against him was that he, alongside others, released before being taken to court, cornered the victim in his house and strangled him using a rope.

This happened as he beat his head and back using stick, causing fatal injuries.

A postmortem conducted on October 26, 2010 said the deceased had a cord around his neck and his whole body was swollen save for his head.

“The deceased also had a fracture of the cervical bone on the neck and had suffered strangulation at the jugular and carotid vessels. He formed the opinion that the deceased died as a result of asphyxia due to strangulation or lack of oxygen to the lungs.”

Seven witnesses testified for the prosecution including police officers and the doctor who did the postmortem.

The victims was a farmhand at the time of his killing.

His employer told the court that on the material day, he was away when he received a call informing him that his employee had been murdered.

He went back home and informed the area chief, before proceeding to his employee's house.

At the house, he noted that the man seemed to have been strangled with a rope and had injuries on the body like those inflicted by a stick.

He also had burns on the head and stomach and the household items were strewn all over to imply there was a struggle.

At the close of the prosecution’s case, the appellant gave sworn evidence without calling any other witness.

Kamau said he knew the victim but that there was no dispute between them.

He said he had no aforethought malice to have him dead.

Kamau’s lawyers said he was convicted based on shaky evidence.

The March 22 judgment said the lawyer argued that, “although the trial court mainly relied on the evidence of PW3, that evidence did not exclusively point to the appellant as the person who killed the deceased.”

“According to counsel, the evidence on record did not surmount the burden of proof placed upon the prosecution for a conviction to ensue ...[and the] inconsistencies and discrepancies in the evidence of PW3 could not sustain the appellant’s conviction.”

The judges agreed with the convict’s lawyer that the PW3’s evidence, which the High court relied upon to convict, had numerous loopholes and left a lot of doubt.

“We note that the only witness who placed the appellant at the scene of crime was PW3. It is the evidence of this witness which the trial court relied upon to return a conviction.”

Part of the witness’ testimony said he was too far away from the house where the crime allegedly took place.

The judges also faulted the prosecution for not bringing the witnesses who were mentioned during the proceedings.

“From the evidence on record, it is clear that some of these witnesses were present at the scene of crime before, during and after the deceased met his death. They had information that would have aided the trial court in establishing how the deceased met his death. Neither the prosecution nor any of the witnesses tendered any explanation as to why these witnesses could not be procured to come and give their evidence,” they said.

“In our view, considering the loopholes we identified in the testimonies of PW3 and PW5, we are inclined to draw adverse inference on the prosecution’s failure to call these witnesses. In the end, we agree with the appellant and find that the failure by the prosecution to call the mentioned witnesses was fatal to their case.”