Court acquits Kilifi man for murder citing gaps in evidence
Mr Nilesh Vaghadia also wants the court to restrain Ms Chetnadevi Nilesh, also known as Chetnadevi Himatlal, from interfering with the bank accounts and management of Plasma Diagnostics Ltd without consulting him.
Inconsistencies in the evidence provided by prosecution witnesses have seen a suspect found guilty of murdering someone over a bottle of alcohol set free.
George Owino Adhoch is now a free man after the Court of Appeal quashed his 28-year jail term.
Adhoch and Juma Boi fought in 2018 over a bottle of alcohol at a pub in Mnarani, Kilifi County. The court heard that a waiter at the bar served Boi and Adhoch alcohol on October 10, 2018.
A watchman who testified in the case told the court that he could see the two enjoying their drinks.
“Before long, I saw Boi go to where Adhoch was seated and forcefully take his alcoholic drink,” he said.
The witness said this triggered a confrontation between the two as Adhoch held on to his bottles close to his chest.
The scuffle then moved outside as the two wrestled each other over the bottles.
“I saw Adhoch attack [Boi] with a club on the chest and stomach,” he said.
The guard then called a boda boda operator to take Boi to a hospital.
But he testified that Boi died before the boda boda rider arrived.
The motorcyclist told the court that he had seen Boi lying on the ground at the club but did not touch him.
Adhoch was charged with the murder of Boi in the High Court but denied killing him. In his defence, he gave an unsworn statement admitting that he was at the pub that day.
But he said Boi was in a drunken stupor when he entered the bar and caused a fracas, resulting in a physical confrontation between them.
Suffered injuries
“[Boi] threw a stone at me. I then pushed [him and he] fell on some tree. He sustained injuries as a result,” Adhoch testified.
Adhoch claimed he too suffered injuries and called for a motorbike to take him to a hospital.
The High Court found Adhoch guilty and sentenced him to death.
A postmortem report indicated that the cause of Boi’s death was a severe head injury. Two witnesses had identified Adhoch as the assailant, that the cause of death was as a result of an unlawful act and that malice aforethought could be inferred from the head injury.
The court rejected his defence that he was defending himself after being provoked, saying there was no evidence that Boi had committed a wrongful act.
Adhoch was sentenced to 28 years in prison. Aggrieved by the decision of the High Court, he appealed. He argued that the judge should have considered the defence of provocation and intoxication.
Insufficient evidence
Through his lawyer, Ngumbao Mutua, Adhoch argued his conviction was based on insufficient evidence as the witnesses that prosecutors relied on did not witness the incident. He also argued that the watchman gave scanty evidence on how Boi’s body was recovered and that it was inconsistent.
State counsel Vivian Kambaga opposed the appeal but submitted that if the offence of murder could not be proved, it should be reduced to manslaughter.
Court of Appeal justices Stephen Kairu, Jessie Lesiit and Pauline Nyamweya said in their final verdict that a perusal of the proceedings had shown several gaps.
They said that from the evidence of the third witness, the court could not tell whether he was a watchman or the owner of the pub where the incident happened.
The court could also not tell whether he was present at the time or not and that the evidence of two witnesses was contradictory.
The watchman initially said he had taken both Boi and Adhoch to the hospital but later changed his story and said the former was left at the scene.
“The gaps in the prosecution case is lack of clarity about the number of people involved in the fight that night. Evidence of the second witness corroborates the appellant’s defence that [Boi] also fought with the third witness,” the judges said.
Given the poor quality of lighting at the scene, the judges said it was not clear what murder weapon was used and the area targeted.
The court also noted there was no nexus between what caused Boi’s death and the beating he received from Adhoch.
The court also said it was not clear where Boi’s body was found judging from the evidence of the investigating officer.
They also found that there was no evidence of a nail cracking Boi’s skull from the evidence of the third witness as observed by a fourth witness.
“We find that the prosecution did not prove the case against Adhoch on the required standard of proof, beyond any reasonable doubt. In the result, the appeal succeeds, the conviction is quashed and the sentence set aside,” the judges ruled.
