[2023] KEHC 25573 (KLR)

Director of Public Prosecutions v Mutabari & another (Criminal Case 68 of 2016) [2023] KEHC 25573 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25573 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 68 of 2016

TW Cherere, J

November 16, 2023

Between

Director Of Public Prosecutions

Prosecution

and

Domiano Mutabari

1st Accused

Joseph Miritho

2nd Accused

Judgment

1. On 29th July, 2018, Isaack Karigori Nchebere (Isaack) left home at about 05. 00 pm and his father Henerico Nchebere (Henerico) was troubled when his son did not return in the evening. The following morning, Domiano Mutuma who is brother to Isaack delivered devastating news to his father Henerico that Isaack had been killed and his body was lying at a place called Ithata. Henerico went to Ithata and found the naked body of his son Isaack which had injuries on the back lying beside the road surrounded by a large crowd. Among them was Senior Chief Joshua Kithinji who reported the matter to police who arrived at the scene shortly thereafter and removed the body to the mortuary.

2. In the course of investigations, police recorded statements from witnesses among them David M’ Anampiu who stated that on the evening of 29th July, 2018 at about 06. 00 pm while he guarding a school where he was employed as a night guard, he saw a group of 20 men among them Accused 1 that had arrested and were beating Isaack whom they alleged was a thief. That the following morning, he received information that a man had been found dead about a kilometer away and he rushed to the scene to find Isaack lying dead.

3. According to Paul Kirianki, he was arrested on the night of 29th July, 2018 by Accused 2 and 3 and 6 others whom he knew before who accused him of misbehaving and they took him to the Njuri Ncheke house where there was burning a bright bonfire and moonlight. That upon arrival, he saw a man he recognized as Isaack who was naked and looked beaten and he too was undressed and tied together with Isaack and both were beaten unceasingly throughout the night. That in an unfortunate turn of events, Isaack died from the beatings while he miraculously survived and was released to go home the following morning with instructions that he should not disclose what happened that night. The witness stated he reported the incident to Isaack’s father three days later after recuperating from the beatings.

4. A postmortem dated 30th July, 2018 reveals that Isaack suffered a 2 by 1 cm laceration on the left parietal region with hematoma on extra cranial left parietal region and bruising on legs and arms from which Dr. Munyoki formed an opinion that Isaack died of severe head injury.

5. Subsequently, Accused persons and Accused 1 who was found with no case to answer were arrested and charged that on the night of 29th and 30th July, 2028, at Matiru village, Athwana location in Tigania West Sub County within Meru jointly with others not court within Meru County murdered Isaack Karigori Nchebere

6. Accused persons denied committing the offence with each raising the defence of alibi that they were at their respective homes on the material date and time. The three however confirmed that they were Njuri Ncheke elders.

Analysis And Determination 7. Section 203 and 204 of the Penal Code under which the accused persons are charged provide for the offence of murder and the punishment for it.

8. In the case of Joseph Githua Njuguna v Republic [2016] eKLR the Court of Appeal outlined the ingredients of the offence of murder as follows: -“…Under section 203 of the Penal Code, any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. It is clear from this section that there are three elements which the prosecution must prove beyond reasonable doubt to secure a conviction for the offence of murder. These are; (a) the death of the deceased and the cause of that death; (b) that the appellant committed the unlawful act which caused the death of the deceased; (c) and that the appellant had harboured malice aforethought. See Milton Kabulit & 4 others v Republic [2015] eKLR.”

9. The foregoing sections require that the prosecution prove beyond reasonable doubt. In Stephen Nguli Mulili v Republic [2014] eKLR the court emphasised the prosecution’s duty in a criminal case and state that;“…it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V Woolmington, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See Festus Mukati Murwa V R, (2013) eKLR”

10. I have considered all the evidence availed in this case as set out above together with written submissions made on behalf of Accused persons and the issue in question is whether the prosecution has proved the death of the deceased; that Accused caused the said death and that that they were actuated by malice.

11. That Isaack suffered severe a 2 by 1 cm laceration on the left parietal region with hematoma on extra cranial left parietal region and bruising on legs and arms from was confirmed by Dr. Munyoki that conducted the post-mortem on 30th July, 2018 from which he formed an opinion that Isaack died of severe head injury.

12. Concerning Accused persons’ culpability, Accused 1 was implicated by David M’Anampiu who stated that on the evening of 29th July, 2018 at about 06. 00 pm, he saw Accused 1 among a group of about 20 men that had arrested and were beating Isaack whom they alleged was a thief. Kirianki stated that Accused 1 was not among the persons that assaulted him and Isaack. Accused 1 has denied the offence and since the evidence by the two prosecution witnesses is uncorroborated, I find that the defence by Accused 1 casts a reasonable doubt on the prosecution case against him.

13. Concerning Accused 2 and 3, Kirianki was the sole witness to the beatings against him and Isaack and he identified Accused 2 and 3 among the assailants. As a matter of practice, corroboration is necessary in murder cases.

14. The meaning of corroboration was defined or stated in the Nigerian case of Igbine vs. The State {1997} 9 NWLR (Pt.519) 101 (a), 108 is thus: -“Corroboration means confirmation, ratification, verification or validation of existing evidence coming from another independent witness or witnesses".

15. In Mukungu vs. Republic [2002] 2 EA 482, the Court of Appeal citing Mutonyi vs. Republic [1982] KLR 2003, held that:“An important element in the definition of corroboration is that it affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it: See Republic vs. Manilal Ishwerlal Purohit [1942] 9 EACA 58, 61. ”

16. In Khalif Haret vs. The Republic [1979] KLR 308, Trevelyan and Hancox, JJ pronounced themselves as hereunder:“What then, is corroboration" As was put succinctly in R vs. Kilbourne (at page 263) it means “no more than evidence tending to confirm other evidence”. It is not, as the judge-advocate correctly stated, confirmation of everything, so that it amounts to a duplication of the evidence needing corroboration.”

17. In support of Kiriaki’s evidence that he was also assaulted in the incident that Isaack died, a P3 Form was tendered as PEXH. 2 confirming that he had been assaulted on 3oth July, 2018 and had suffered harm. Kirianki stated that the incident happened outside a Njuri Ncheke House. He explained that there was bright moonlight and bonfire at the scene and he was able to identify Accused 2 and 3 that he knew Accused 2 and 3 before the material date. As much as Accused 2 and 3 have raised the defence of alibi, they have conceded that they are Njuri Ncheke elders. They have similarly not denied that they were known to Kirianki before the material date.

18. From the totality of evidence by Kirianki, I find that Accused 2 and 3 were positively identified. I find that his evidence that he knew Accused 2 and 3 and that Accused 2 and 3 are Njuri Ncheke elders and the P3 form confirming injuries inflicted on the material date and all these leads me to the conclusion that Accused 2 and 3 were part of the group that assaulted Isaack and inflicted on him injures that led to his death. Consequently, I reject the defences of alibi raised by Accused 2 and 3.

19. In the end, I find Accused 2 and 3 are found guilty of the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code and both are convicted accordingly.

20. Finally, I have noticed that the defence by Accused 2 and 3 was inadvertently taken twice. Accused persons in both instances raised the defence of alibi. The error is highly regretted.

DATED THIS 16TH DAY OF NOVEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneAccused 2 & 3 - PresentFor the Accused persons - Mr. Omari AdvocateFor DPP - Ms. Rita Rotich (PC-1)