[2020] KECA 274 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

[CORAM: MURGOR, SICHALE & KANTAI, JJ.A]

CRIMINAL APPEAL NO. 74 OF 2019

BETWEEN

EDWARD MURIUKI NYAGA.....................................................APPELLANT

AND

REPUBLIC.................................................................................RESPONDENT

(An appeal against the Judgment of the High Court of Kenya at Nairobi(Wakiaga J.)

dated 2ndNovember, 2017inH.C.C. No. 109 of 2009)

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JUDGMENT OF THE COURT

The facts of this appeal reveal an intricate murder of the deceased, Patrick Ndung’u Kariuki.

On 22nd July 2009, SP. Maxwel Otieno (P.W.15) (SP. Otieno) received a report from Grace Gathoni (P.W.2) (Grace) (the deceased’s wife/girlfriend) and Jane Wanjiku (P.W.12) (Jane)thatPatrick Ndungu Kariuki,(the deceased) was missing. According to Grace, she had last seen the deceased on 21st July, 2009 at 6. 30 p.m in Ngara estate when the deceased left her to go to town on account that his friend, Hannington Mbaka alias Daudi had called him requesting for bus fare to go to Embu. She had not seen the deceased since then and that all phone calls to the deceased were going unanswered. Jane, the deceased’s associate in the sale of gemstones stated that she had called the deceased at around 8. 30 p.m on 22nd July, 2009but before they could converse the deceased informed her that he had been abducted by 3 people. The deceased later sent a text message to Jane informing her that he was at a police station and that marked the end of any further communication from the deceased.

SP. Otienocommenced investigations in earnest with the assistance of the deceased’s family which led them to the deceased’s bank account at Equity Bank Moi Avenue Branch where it was discovered that several cash withdrawals had been made from the deceased’s account from an Automated Teller Machine (ATM). On 22ndJuly 2009,Kshs.20,000/=was withdrawn from an ATM in Githurai; on23rdJuly 2009, Kshs.20,000/=was withdrawn from an ATM in Embu; on24thJuly 2009,Kshs.20,000/=was withdrawn from an ATM in Githurai; on25thJuly 2009, Kshs. 20,000/= was withdrawn from an ATM in Tea Room; on 26th July 2009, Kshs. 20,000/=was withdrawn from an ATM in Tea Room and on27thJuly 2009,Kshs.20,000/=was withdrawn from an ATM in Ngara. The person captured on the bank’s CCTV cameras withdrawing the aforementioned amounts of money was the appellant, Edward Muriuki Nyaga who was unknown to the family.

Equity bank blocked the deceased’s account on 27th July 2009, and on the same night the body of the deceased was found within Mwihoko area of Kasarani and taken to city mortuary where he was identified by his family members including Mwangi Ndungu(Mwangi), the deceased’s son. At the request of Kasarani Police Station, Dr. Njau Munami (P.W.7) (Dr. Njau) carried out a post mortem examination and found that the deceased had multiple fractures on the face and the head, bruises on the chest and multiple stab wounds mainly on the neck. He opined that the cause of death was stab wounds.

Police investigations led to the location of the appellant’s house in Kahawa Wendani where a search was conducted and military items recovered. The appellant was subsequently arrested and detained with the help of members of the public.

Edith Njoki Muriuki (P.W.9)(Edith) testified that she was well acquainted with the appellant who was a member of the armed forces as her husband was from the appellant’s clan in Embu. She stated that in the year 2008, the appellant visited her father, Joseph Njagi Kariragia (P.W.5) (Joseph) at his home in a place called Nthagaiya in Embu. The appellant’s mission was to find out if Joseph knew of any mercury dealer; that two weeks later, Joseph was able to locate a mercury broker in Embu through his neighbor, Emily Wanjiku Njeri, (P.W.6) (Emily). The mercury broker was called Daudi who introduced the appellant to the deceased who was said to be in the business of selling mercury. Consequently, the appellant’s wife, one Nelly Maitu Kundi (Nelly)met with the deceased in Embu Town at a hotel called‘Mini’. Daudi,Joseph,EmilyandEdithwere present at this meeting. The deceaseddemanded a payment of Kshs. 150,000. 00 for the mercury but the appellant’s said wife had Kshs. 80,000. 00 only. The deceased took the money (Kshs 80,000. 00) and the appellant’s wife promised to pay the balance (Kshs 70,000. 00) once they arrive in Nairobi. They all parted ways and a year later,Edithreceived a phone-call allegedly from the appellant threatening to kill them all.Edithinformed her fatherJoseph.AlthoughEdithtogether withEmilyandJosephwere arrested in connection with the deceased’s murder, they were later released from Kasarani Police Station after recording their statements.

Martin Wekesa (P.W.16) (Martin),a liaison officer with Safaricom investigated the issue of the deceased’s sim card and discovered that the sim card had been used by the appellant on three different occasions after the deceased had reportedly gone missing, that is, on 19th August, 2009, 31st August 2009 and 2nd September 2009. He also traced the deceased’s phone handset to a shylock shop owned by Samuel Ndungu Ngururi (P.W.14) (Samuel) who informed him that one, Hannington Mbaka (alias David) had given him the handset, Nokia 1600 against a loan of Kshs. 1000. 00 which he had borrowed from him but failed to collect the handset which he later sold to Robert Njoya (P.W.13), (Robert).

The appellant was consequently charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the Information were that:

“Between 26thand 27thday of july 2009 at mwihoko Estate in Nairobi North District within Nairobi Province murdered

PATRICK NDUNG’U KARIUKI.”

The appellant pleaded not guilty to the charge and a trial ensued. In his sworn evidence, the appellant admitted that he knew Hannington Mbaka alias Daudi, who was his rural home neighbour. He stated that they met in July 2009 at the Githurai stage and Daudi informed him that a relative of his had been arrested at Kasarani police station and that his relative’s wife had given him an ATM card to withdraw money for him and he required his assistance to withdraw the money. He obliged and they went to Equity bank, where Daudi gave him the ATM card and the pin number. He withdrew Kshs. 20,000. 00 and was given Kshs. 500. 00 in return. The following day, they met again in Embu Town and Daudi told him that he was still looking for money for the same cause and the appellant performed a similar transaction, instructed Daudi on how to operate the ATM machine and was rewarded with another Kshs. 500. 00 They parted ways and did not see each other again. The appellant denied knowing the deceased, communicating with him or engaging in the purchase of mercury from the deceased. He maintained that he was unmarried and hence, he did not know the lady (Nelly) who allegedly paid money to the deceased in exchange for the mercury and that he had no reason to kill the deceased.

In his judgment, Wakiaga J. found that the circumstantial evidence tendered before the court proved that the appellant either alone or with Hannington Mbaka aliasDavid, who had not been traced, killed the deceased. The CCTV cameras at Equity branches showed the appellant withdrawing money using the deceased’s ATM card. Further, that there was evidence that the appellant had inserted his sim card in the deceased’s hand set. The appellant was sentenced to suffer death as by the law then prescribed.

The appellant was aggrieved by the outcome of his trial and is now before this Court on a first appeal and has listed 4 grounds of appeal which can be summarized as follows:

(i) That the learned judge erred in law and in fact by failing to find the appellant not guilty given that his conviction was grounded on unsafe circumstantial evidence and that the case was poorly investigated;

(ii) That malice aforethought was not established to the threshold stipulated by law;

(iii) The learned judge erred by disregarding the appellant’s defence; and that

(iv) The prosecution’s evidence was full of gaps contradictions and discrepancies and created reasonable doubt as to the appellant’s participation in the murder.

At the virtual hearing of the appeal, Mr. Njanja for the appellant relied on the appellant’s written submissions filed on 13th December 2019. He submitted that the appellant’s conviction was based on circumstantial evidence that did not meet the test laid down in the case of Abanga alias Onyango v Republic. CR. A No. 32 of 1990 (UR);that the circumstances therein did not unerringly point to the guilt of the appellant and did not exclusively link the appellant to the murder. He contended that the court ignored the fact that Daudi was the last person in physical contact with the deceased; that Samuel testified that Daudi was the one who left the deceased’s phone in his shop after taking a loan; that the appellant admitted that he withdrew money from the deceased’s ATM on two occasions at the request of Daudi; that Christopher Wafula(P.W.11)(Christopher), the bank security officer of Equity Bank was only able to show footage of the two transactions and not the 7 withdrawals done by the appellant as alleged by the prosecution and that the police were not interested in arresting Daudi nor did the prosecution secure the attendance of the appellant’s alleged wife (Nelly).

Counsel further submitted that prudent investigations were not carried out by the prosecution and faulted the learned Judge for disregarding the appellant’s defence, relying on the investigating officer’s testimony which was unsupported by evidence and overlooking glaring contradictions in the prosecution’s case which created reasonable doubt as to the participation of the appellant in the alleged murder such as the lack of evidence of communication between the appellant and the deceased and the fact that there was proof of communication between the deceased and Daudi .

Lastly Mr Njanja submitted that malice aforethought was not established given that the alleged mercury deal having gone sour was not proved and there was no proof that the appellant made threatening calls to Edith. In his view, the police and the prosecution ignored crucial evidence in order to push a narrative that the appellant was the murderer while a plethora of evidence pointed elsewhere. He submitted that the prosecution’s evidence did not dislodge the appellant’s cogent defence that he was not involved in the murder of the deceased and urged us to overturn the conviction and sentence imposed on the appellant.

Appearing for the State, Mr. Hassan, Senior Assistant Director of Public Prosecution opposed the appeal. He submitted that there was sufficient circumstantial evidence to support the charge of murder. He contended that the appellant’s image was captured on CCTV withdrawing money from the deceased’s account and the appellant denied knowing the deceased yet, Martin produced data records proving that there was communication between the two. He submitted that the fact that Daudi was not apprehended did not exonerate the appellant and evidence produced indicated that he was responsible for the murder either alone or jointly with the said Daudi.

We have considered the record, the grounds of appeal, the rival submissions and the authorities relied upon. This being a first appeal, this court is obliged to re analyze and re-evaluate the evidence of the trial court and come up with its own findings and conclusion (see Okeno v. Republic [1972] E.A 32). In our view, two issues stand out for our consideration: whether the circumstantial evidence relied upon by the prosecution and the court met the required threshold of proof beyond reasonable doubt and secondly, whether the prosecution established that the appellant, with malice aforethought, caused the death of the deceased.

It is common ground that there was no direct evidence as to the commission of the murder and consequently the prosecution’s entire case laid out various events which amounted to circumstantial evidence connecting the appellant with the death of the deceased. It is trite that in order to justify a finding of guilt based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis other than that of his guilt. In addition, there must be no other co-existing circumstances weakening the chain of circumstances relied on. This burden lies squarely on the prosecution and never shifts to the person accused (see Rex Vs. Kipkering Arap Koskei & 2 others [1949] 16 EACA 135). See also the case of Neema Mwandaro Ndurya versus Republic, Criminal Appeal No.446 (2007) (UR) wherethis Court reiterated that:-

“It is now settled that for a court to convict on circumstantial evidence there must be evidence which points irresistibly to the accused person to the exclusion of any other person. At the same time there must be no co-existing factors or circumstances which may weaken or destroy the inference of the guilt of the accused person”.

The circumstantial evidence presented by the prosecution in support of the appellant’s conviction is that first, the appellant used the deceased’s ATM card after the deceased’s disappearance to make withdrawals from the deceased’s account at Equity bank. This was confirmed by Wafula, a security officer with Equity Bank who testified that the bank cameras captured the image of the appellant as the person who operated the account and he produced images of the appellant withdrawing money on 22nd July 2009 from an ATM in Githurai and on 23rd July 2009, from an ATM in Embu. Secondly, the testimony of Joseph, Emily and Edith was that there was bad blood between the deceased and the appellant because a year earlier, the deceased had sold counterfeit red mercury to the appellant and his wife and conned them of a substantial amount of money, which angered the appellant. Then there was the incriminating data records from Safaricom which proved that the appellant had inserted his sim card into the deceased’s handset on 19th August, 2009, 31st August 2009and on2ndSeptember, 2009.

On our own evaluation and analysis of the evidence on record, we habour no doubt that the circumstantial evidence relied on by the trial judge cumulatively met the threshold of pointing irresistibly to the guilt of the appellant as the person who murdered the deceased and that no other conclusion, save for the guilt of the appellant could be arrived at. The appellant’s defence that he had never met, interacted or called the deceased and that he only withdrew money using the deceased’s ATM card under instructions of Daudi in Githurai and Embu is a mere denial. The Equity bank CCTV cameras captured the appellant withdrawing money from the deceased’s account; and Wafula who viewed the images confirmed that it was indeed the appellant who was captured in the footage. The appellant admits having used the deceased’s ATM card to withdraw money from the deceased’s account, although he says this was only twice. Furthermore, the appellant in his testimony admitted that his telephone number in 2009 was 0720006458. A perusal of the Safaricom data records produced before the court show that the deceased’s handset which had an identifying number namely; IMEI 357308019360520 was used by the appellant to insert his own sim card-telephone number 0720006458 on 24thAugust 2009 at 17:00:50,on30thAugust 2009 at 14:03:55, on31stAugust

2009 at 20:15:24and on1stSeptember 2009 at 18:21:59. Clearly the unavoidable inference from the above circumstances is that the appellant had been in the company of the deceased around the time of his disappearance, that the appellant took possession of the deceased’s ATM card and made 6 withdrawals each of Kshs 20,000. 00 and even after the deceased’s death he had access to the deceased’s cell-phone which had been in his possession from the time of the deceased’s disappearance and the subsequent murder. This phone was later traced to Samuel who testified that it had been left with him by Daudi, the appellant’s associate as a lien for a sum of Ksh 1,000. 00 borrowed by Daudi. It does not matter that Wafula produced only two images of the CCTV cameras.

The last piece of evidence said to incriminate the appellant was that of motive, which formed the background to the circumstances leading up to deceased’s death. In the case of Choge vs Republic (1985) KLR 1, this Court held as follows:-

“Under section 9(3) of the Penal Code (cap 63) , the prosecution is not required to prove motive unless the provision creating the offence so states, but evidence of motive is admissible provided it is relevant to the facts in issue. Evidence of motive and opportunity may not of itself be corroboration but it may, when taken with other circumstances, constitute such circumstantial evidence as to furnish some corroboration sufficient to establish the required degree of culpability.

Even though the motive for committing a criminal offence is unnecessary in ascertaining criminal culpability, it becomes an important element in the chain of presumptive proof and where the case rests on purely circumstantial evidence. (See Libambula vs. Republic [2003] KLR 683).In the case before us, the learned Judge observed that Joseph, Emily and Edith attested to there being bad blood between the deceased and the appellant given that the deceased had conned the appellant by selling him fake red mercury and extorting a substantial amount of money from him which resulted in ill-will and which provoked the instant offence. We find no reason to doubt this version of events since it was the appellant who led the police to these witnesses in Embu during investigations and they had no reason to give a false account. Consequently we can safely draw an inference that: the appellant’s motive for the offence was an attempt to recover the money swindled by the deceased; he lured the deceased, abducted him, took his ATM card and withdrew the stated amounts until the account was blocked by the bank at the request of his family and only then did he murder the deceased. We therefore fully concur with the learned Judge’s conclusion:

I find and hold that the circumstantial evidence tendered herein puts the accused with the deceased and it is clear that the accused held the deceased either alone or with one Mbaka Hannington alias Daudiwho has not been traced to date in an attempt to recover the money he had lost when he was conned out of the same.”

As for the issue of malice aforethought, it is our view that this ground of appeal has no merit because malice aforethought can readily be inferred from the circumstances of the case by the nature of the injuries inflicted on the deceased. Dr. Njauwho carried out the post mortem examination found that the deceased had multiple fractures on the face and the head, bruises on the chest and multiple stab wounds mainly on the neck. In his view, the main cause of death was stab wounds and that the bruises were inflicted after he was stabbed to death. Clearly, the appellant had the intention to cause the death of the deceased.

In the end, we find that all elements of the offence of murder were proved to the required standard. Consequently, the appeal on conviction fails and is dismissed.

On sentence, we take note that a mandatory death sentence is not the only sentence available for the offence of murder in view of the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR, where the court held that a mandatory death sentence is unconstitutional. We must therefore consider the circumstances of each case, the mitigation provided if any, and impose an appropriate sentence including the death penalty where deserved. We note that the appellant was a 1st offender and had been in custody for almost 8 years prior to his sentencing. We have also taken into consideration the painful and torturous manner (from the postmortem conducted by Dr. Njau) in which the deceased met his death. Taking the totality of the circumstances into consideration, we set aside the sentence of death and substitute it with a sentence of thirty (30) years imprisonment with effect from 2nd November, 2017, when the appellant was sentenced.

It is so ordered.

Dated and Delivered at Nairobi this 23rdDay of October, 2020.

A. K. MURGOR

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JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

S. Ole KANTAI

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR