REPUBLIC V MUSILI TULO[2012]eKLR a result the deceased had relocated to her parents. Several attempts at reconciliation yielded nothing. The accused in his defence, concedes that much, That the deceased had been forcefully taken away from her matrimonial home by 3 women at the instigation of his in laws. To him, the in laws wanted him to pay dowry. However, to PW1, the deceased had fled the matrimonial home on coming by information that the accused was bent on having sex with her daughter which she had sired outside wedlock with another. Whatever the reason, it is clear that the deceased and accused were living separately as a result of disagreements. Could this state of affairs have acted as a catalyst to the homicide? Perhaps. Alarmed at the failure by the deceased to return home that day after she had left in the morning for Mwingi Market, the family started searching for the deceased the following day. They also reported the matter to the police. As the family suspected the accused in the disappearance, they and in particular PW3 passed over to PW6, Cpl Alex Ogutu 3 cell phone numbers allegedly belonging to the accused namely; 0727418570,0729786784 and 07119550385. Using the later numbers, PW6 managed to talk to the accused who allegedly directed him towards Kasina Primary School where the body of the deceased could be found. The body was indeed found at the location. He found that the deceased had been cut on the tongue, skinned on the face and leg with eyes gouged. At the scene a white blood stained hat was also recovered. The accused’s response is that he did not have a mobile phone at the time and he could not therefore have spoken to PW6. It is instructive that the appellant never denied that phone number 0711950385 never belonged to him. Nor did he raise the issue of having lost his mobile phone sometimes in February, 2010 when he cross-examined PW6. I do not think that PW6 will have come with the evidence of the mobile number merely to frame the accused. He had nothing to gain for so doing. If the number that went through did not belong to the accused, how come that the information gleaned from the conversation pinpointed to where the body of the deceased was. If the owner of the line was a stranger, I do not think he would have provided such information. He could as well have said;- “I do not know what you are talking about.” To that extent that information given by the person at the end in the telephone conversation with PW6 led to the discovery of the body of the deceased, that information could only have come from a person known to the deceased. That person could only have been the accused. However, I hasten to add that information was in the nature of a confession. If it were treated that then PW6 was unqualified person under our laws to receive a confession. To my mind the accused merely provided the information that led to the discovery of the body without saying that he was responsible for her death. It is also worth noting that although the accused claimed to have been in Narok at the material time, there is evidence by PW1 and 3 that he had been in their homestead on 29th June, 2010. As already stated this evidence was not seriously challenged. I believe it. That the accused thereafter went underground only to resurface in Narok after the incident can only mean that the accused was running away from his horrendous act. It was not an act of innocence. This too can be circumstantial evidence tying the accused to the crime. At the scene of crime, a hat allegedly belonging to the accused was recovered. PW1 testified that he was familiar with hat as he used to see it with the accused. It was also unique in that it had 2 colours. Outside it was white whereas inside it was blue. According to the witness he had never seen that hat anywhere else. PW3 too testified that he had seen the hat with the accused severally when he frequented their home looking for the deceased. Much as he conceded that there were similar hats elsewhere, he was nonetheless certain that the hat in question belonged to the accused. As for PW6, he also confirmed that the hat belonged to the accused, that the accused used to wear it every day. He never used to leave it behind. Though the hat had no special mark, he was nonetheless certain that it http://www.kenyalaw.org - Page 6/8