[2025] KEHC 1544 (KLR)

Director of Public Prosecutions v Kithinji (Criminal Case 8 of 2018) [2025] KEHC 1544 (KLR) (6 February 2025) (Judgment)

Neutral citation: [2025] KEHC 1544 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 8 of 2018

HM Nyaga, J

February 6, 2025

Between

Director of Public Prosecutions

Prosecutor

and

Timothy Muthuri Kithinji

Accused

Judgment

1. The accused herein Timothy Muthuri Kithinji was charged with the offence of murder contrary to sections 203 as read with section 204 of the Penal Code following a fatal road traffic accident. on 7th January, 2018 at Meru Township in Imenti North Sub County within Meru County in which Erastus Mugambi died.

2. The prosecution called four (4) witnesses in support of its case. The first witness stated that around 10:30 am on the incident day, accused blocked his entry into a barber shop while armed with a knife, which was subsequently taken by an individual named Murega. PW1 stated he boarded a motor cycle and on his way to report the incident to the police station, he was involved in an accident with the lorry accused was driving on a hilly slope as a result of which the motor cycle rider was injured and subsequently unfortunately succumbed to the injuries during treatment on the same day.

3. A postmortem on the body of the deceased was conducted by Dr. Mutunga, and in a report dated January 15, 2018 opined that deceased died from massive left hemothorax secondary to a road traffic accident.

4. Both the lorry and the motor cycle were assessed and found with damages but with no pre-accident defects. Accused was subsequently arrested and charged.

5. Accused, in his defense claimed that after parking his lorry outside Mwalimu Plaza with the engine running, the first witness pulled him out, causing the lorry to slide and collide with the motorcycle, leading causing a collision with a motor cycle. He asserted he fled from the scene due to threats from bodaboda riders but later surrendered to the police at Giaki Police Station.

Analysis and Determination 6. I have considered the evidence on record and the issues for determination is whether the DPP has proved the three main ingredients of murder i.e the death, that Accused person/s committed the murder and that they were actuated by malice. (See Anthony Ndegwa Ngari v Republic [2014] eKLR).

7. That deceased died is not disputed. In deciding whether Accused unlawfully caused the death of the deceased, it is essential to consider the legal principles concerning causation, the standard of proof beyond reasonable doubt, and the reliance on uncorroborated evidence from a single witness.

8. Causation in criminal law requires establishing a direct link between the accused's actions and the resultant harm. The prosecution must demonstrate that the accused's conduct was the substantial cause of the victim's death. In Roba Galma Wario v Republic (Criminal Appeal 159 of 2014) [2015] KECA 521 (KLR) (Crim) (17 July 2015) (Judgment), the Court of Appeal stated that“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought…..……..”

9. According to the first witness, the accident occurred independently of the earlier confrontation, between him and Accused implying that the accused was in control of the lorry at the time of the collision. Contrariwise, the accused asserts that PW1's act of pulling him from the lorry directly caused it to move and result in the accident.

10. These conflicting testimonies present challenges in establishing a clear narrative of the events. The absence of neutral eyewitnesses or additional evidence makes it difficult to ascertain the exact circumstances leading to the accident. Consequently, this ambiguity introduces reasonable doubt regarding the accused's intent and the actual cause of the fatal collision.

11. In the case of Michael Mumo Nzioka v Republic [2019] eKLR, the court cited with approval the holding in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR where Mativo, J (as he then was) stated that:“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

12. Given the absence of additional corroborative evidence and the conflicting narratives, the court has come to the conclusion that the Prosecution has failed to establish beyond any reasonable doubt the link between Accused and the causation of the accident that led to the death of the deceased.

13. From the foregoing analysis, I find Accused not guilty of the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code and hereby acquit him. He shall be set at liberty unless otherwise lawfully held.

DATED THIS 03RD DAY OF FEBRUARY, 2025WAMAE.T. W. CHEREREJUDGEDELIVERED AT MERU THIS 6TH DAY OF FEBRUARY, 2025………………………H.M. NYAGAJUDGEThis Judgment is delivered under the provisions of Section 200 (1) as read with Section 201 (2) of the Criminal Procedure Code Cap 75 Law of KenyaApology for delayThe Court acknowledges that there has been a delay in the delivery of this Judgment due to an unfortunate accident involving the Judge who initially presided over the matter. The Court sincerely regrets the inconvenience this has caused to the parties involved. The Judiciary remains committed to the timely dispensation of justice, and every effort has been made to ensure that this matter is concluded appropriately.