[2022] KEHC 13426 (KLR)

Kimani v Republic (Criminal Case 14 of 2014) [2022] KEHC 13426 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13426 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 14 of 2014

HK Chemitei, J

October 6, 2022

Between

Paul Kimani

Appellant

and

Republic

Respondent

Judgment

1. The accused person herein is Paul Kimani (“accused person”). He is charged with murder contrary to section 203 as read with section 204 of thePenal Code. It is alleged that on the January 6, 2014 at Munada Village in Gilgil District within Nakuru County with others not before court, he murdered Geoffrey Muchori (“deceased”).

2. The accused person pleaded not guilty to the offence. The prosecution called nine witnesses to prove its case. Maureen Odero J heard eight witnesses before she was transferred out of the station. Mulwa J took over and heard the final witness. Unfortunately, she, too, was transferred out of the station after she gave a ruling that the Prosecution had established a prima facie case under section 306 of the Criminal Procedure Code.

3. After I duly informed the accused person of his options and rights under section 306 as well as section 200(3) of the Criminal Procedure Code, it fell on me to conduct the defence hearing. The accused person gave a sworn statement but did not call any witness before closing his case.

4. The prosecution theory was straightforward: the accused person, together with one Mwikali, attacked the deceased in concert at night over what a witness described as the deceased’s unwanted attention to Mwikali. The prosecution attempted to prove itself through a combination of both circumstantial evidence to construct the context and the direct evidence of one eye-witness.

5. The central issue for my determination in this trial is whether the accused person, together with others, committed the murder of the deceased. The only other identified alleged perpetrator, Mwikali, fled and has never been apprehended.

6. The offence of murder is defined by section 203 of the Penal Code as follows:Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

7. In order to reach a guilty verdict in a case of murder, the prosecution is required to tender proof beyond reasonable doubt of the following three crucial ingredients:i.That death of the victim occurred (actus reus);ii.That the death was caused by an unlawful act(s) or omission(s) by the accused persons; andiii.The unlawful act or omission was actuated by malice aforethought (mens rea).

8. On the other hand, under section 206 of the Penal Code, malice aforethought is established, when there is evidence of:i.Intention to cause death of or grievous harm to any person whether that person is the one who actually died on not;ii.Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not;iii.Intent to commit a felony; oriv.Intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

9. There is no contestation about the death of the deceased. Dr Nondi examined the body of the deceased on January 13, 2014. The body was identified to him by Sarah Wanjiku and Isaac Ndirangu. The doctor found that the body had bilateral bruises on upper and lower limbs and on the chest; cut wounds on the left wrist and scalp and a compound fracture on the head. Internally, he noted a compound skull fracture and massive intra-cranial haemorrhage. The doctor concluded that the cause of death was severe head injury secondary to blunt force trauma. By the time of the trial, Dr Nondi had travelled for further studies in South Africa. Dr Titus Ngulungu, his colleague who is familiar with his handwriting produced the post-mortem report on his behalf and upon the stipulation of the defence.

10. Serah Wanjiku, a sister to the deceased, testified as PW3 and confirmed receiving a call on January 6, 2014 informing her that her brother was badly injured and was being taken to the hospital. She went to the hospital. The deceased could not talk and later died. She identified the body for autopsy.

11. Hence, the death of the deceased is undisputed. The three questions that remain is whether he died as a result of unlawful actions; and if so, whether those actions were caused by the deceased; and further, if so, whether the deceased had the specific intention to cause the death as defined by the law.

12. Most of the witnesses testified about the night before the deceased was found lying almost lifeless near the house of Mwikali, the accused person’s friend. Wilfred Mureithi Ngugi testified that he was at a bar operated by Mwikali on the night of January 5, 2014 and that he drank until late and then slept in a room behind the bar because he was too drunk to go home. During the night, Mureithi testified, the deceased came in at around 10:30pm and was drinking with them. He confirmed that both Mwikali and the accused person were also drinking in the bar that night. He neither heard nor saw any commotion in the night although he woke up in the morning in time to see the neighbours putting the deceased on a boda boda to take him to the hospital.

13. Richard Koikai Kosgei similarly testified that he was present in the bar that night and that he had been drinking with the deceased and others. However, he testified that he had left earlier. It is only later the following morning that he learnt that the deceased had suffered a mishap. He testified as PW4. The testimony of John Selenge Segut, a colleague of Kosgei at work and who testified as PW5 was in those exact terms.

14. The testimony of James Musoga Nyali was in similar terms: he was drinking with the deceased and the accused person at Munada Trading Center in the night of January 5, 2014. He left them at the bar and went to get a customer for his boda boda. It was only the following morning that he got a call from a Mama Mburu who told him that the deceased had been injured. He rushed to the scene and found him lying outside Mwikali’s house bleeding from the head. He was still alive. He took him to a nearby dispensary and then to Nakuru PGH Hospital where he was admitted. Nyali testified as PW6.

15. Corporal David Macharia was the arresting Officer. He testified that he was asked by the OCS to go contain a crowd that had collected outside Mwikali’s house and bar on the day of the burial of the deceased. The charged crowd burnt down the bar and house. They alleged that Mwikali had a hand in the death of the deceased. Later, Corporal Macharia was requested by the OCS to arrest the accused person after investigations linked him to the death.

16. Unfortunately, the Investigating Officer, Senior Sergeant Silvano Njeru Ndwiga, died before the trial. His statement was produced by PC Vincent Tanui and was admitted as evidence. The statement reveals that Snr Sergeant Ndwiga received the initial report of the incident and investigated the death. He formed the opinion that the Accused Person was involved in the murder and recommended that he be charged.

17. It was left to PW 1 – Hassan Wanyoike Gichuru – to do most of the heavy lifting in the case. His account was straightforward. On the night of January 5, 2014, he was asleep in his house. His house neighbours that of Mwikali. At around 3:00am in the morning, he heard some commotion and shouting. He ventured out. He noticed that seemed like a fight going on. He testified that he clearly saw two people – Ann Mwikali and the accused person. Ann Mwikali, he said, had a long piece of wood; the accused person had what seemed like a rungu. Hassan testified that he clearly saw both of them beating the deceased using those crude weapons. He heard Mwikali say: “si wewe nimekukanya kuja hapa kwangu!”

18. Hassan told the court that he had gone out of his house in his underwear so he was forced to hide behind a thicket. He, thus, did not intervene. He said that when he was woken up by the noise, he had heard a crowd of at least seven or so people who were at the scene in addition to Mwikali’s children – who, he said, were crying loudly. Nevertheless, he said, the only people he found at the scene and whom he saw beating up the deceased were Mwikali and the accused person. There was moonlight, he said, and he could see quite clearly from behind the bush where he was hiding.

19. When placed on his defence, the accused person delivered a straight denial enunciated by an alibi: he was nowhere near Munada Trading Center that night, he said. He testified that he is a tractor driver and that on night he was in a place called Mbagaria. His narrative is that he is a tractor driver and that on January 4, 2014, he received a call offering him some work to deliver “hard core” to Kiptangwani. It was to be picked from a quarry in Mbagaria. Mbagaria, he said, is about 25 kms from Munada while Kiptangwani is about 2 kms from Munada.

20. The accused person testified that he did two trips from Mbagaria to Kiptangwani and then the tractor developed “mechanical problems” near Mbagaria: it burst its tyre and he did not have a spare one. He told the court that he went to look for help from a neighbour by the name Moses who has a tractor but he did not get help. He therefore towed the tractor to Moses’ home and spent the night there. It was only the following day that he got a spare tyre for the tractor. Indeed, he said that he spent the night at Moses’ house with his turn boy by the name, David Mbogoh.

21. The accused person denied that he killed the deceased or that he was in Munada on the night he was killed. He insisted that he spent the night at Moses’ place with Mbogoh. Moses was deceased, he said, but he has a wife and children who saw him there.

22. Based on the evidence adduced, there is little doubt in my mind that the accused person participated in the murder of the deceased; and that he did it with malice aforethought. I say so for at least three reasons:

23. First, the evidence of PW1, Hassan, was straightforward and un-impeached that he clearly saw the accused person and Mwikali beating up the deceased on the fateful night. Hassan’s descriptions were detailed. He remembered the noises he heard; and what was said. He described the scene with details which enhanced his credibility. His testimony was also evidence of recognition: he knew the deceased and had seen him many times before. He explained that there was moonlight that night and he could clearly make out both the accused person and the deceased. He said that he crouched in the shrubs barely 10 metres away. There was also voice recognition: both Mwikali and the accused person spoke during the incident and the witness heard them clearly. I find that the testimony of PW1, Hassan, was credible and remained unimpeached. I believe it.

24. Second, at least one other witness – PW2, Wilfred Mureithi Ngugi, saw all the three protagonists - the accused person; the deceased; and Mwikali -- in Mwikali’s bar the night the deceased was killed. This offers some indirect corroboration to Hassan’s narrative since the deceased was seen in the company of the accused person and Mwikali shortly before he was found dead.

25. Third, looking at the totality of circumstances in this case, I easily find that the accused person’s alibi defence has no inherent possibility that it might be true. It is not capable of raising any reasonable doubts in the mind of a reasonable Tribunal. The accused person did not place enough credible evidence before the court to trigger the prosecution’s duty to displace the alibi defence. It is telling, for example, that although the accused person says that he was with at least five people that night, he was unable to call any of them to vouch for his improbable story. His narrative is simply implausible. In the circumstances, I dismiss it as one that has no inherent possibility that it might be true.

26. As for mens rea, PW1 was categorical that he saw the accused person and Mwikali beating up the deceased with crude weapons. That kind of assault easily meets the definition of malice aforethought under our law for the offence of murder.

27. It is, therefore, this court’s finding that all the elements of murder have been established against the accused persons. Consequently, I find and hold that the accused person. Paul Kimani, is guilty of the murder of Geoffrey Muchori (deceased) contrary to section 203 as read together with section 204 of the Penal Code. I hereby convict him accordingly.

Orders accordingly.DATED NAKURU THIS 29TH DAY OF SEPTEMBER, 2022. ……………………………………JOEL NGUGIJUDGEDelivered at Nakuru this 6th day of October, 2022……………………………HILLARY CHEMITEIJUDGE