[2022] KEHC 10648 (KLR)

Republic v Boru (Criminal Case 19 of 2016) [2022] KEHC 10648 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10648 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 19 of 2016

LM Njuguna, J

May 18, 2022

Between

Republic

Prosecutor

and

Liban Kune Boru

Accused

Judgment

1. The accused person herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and the particulars of the offence being that on 23. 08. 2016 at Mwea Game Reserve in Makima Location within Embu County murdered Joseph Nyaga Maragua.

2. When the accused person was arraigned in court he pleaded not guilty to the charge and a plea of not guilty entered and hence the case proceeded to a full hearing.

3. PW1, Mururi Richard testified that on 23. 08. 2016 at around 5. 00 p.m., while at the station and being official closing time, the accused herein entered his office and sat down. That before he talked to him, he observed that the accused was drunk and so he asked him whether he had taken alcohol. The accused did not reply and therefore he told him to leave his office and report the following day. That the accused left quietly without saying a word and so he closed his office and went out. He stated that along the corridor, he met the accused with one corporal Lengei heading towards his office and he informed them that they would talk on the following day since the accused herein was drunk. The two walked away without saying a word. He took a seat at the corridor where he found other officers and as he sat there, he saw the accused at the parking which was about 50 meters from where he sat and that he was armed and he sensed danger and went behind his office. He heard gun shots from the car park and he hid in the toilet when he realized that the accused herein was going for him. He stated further that on top of the toilet, there was an electric fence and she ran towards it and exited through a near gate when he saw the accused kneeling near the fence house aiming the gun at his direction. He ran along the road for about twenty meters and then entered the house of the assistant chief and hid in there and while there, he heard the accused herein saying that he wanted to kill him but he had escaped. That after twenty minutes or thereabouts, he heard the voice of one Dan Nzambu telling him to get out and upon getting out, he found so many people and that is the time he noticed that he had a gunshot on the head and he was bleeding from the head. He was rushed to Hospital and as he was being treated, he was informed that Nyaga had been shot. Upon cross examination, he stated that he did not witness the incident.

4. PW2, Musyoka Kivaa stated that on 23. 08. 2016, at around 4. 00 p.m he was on duty at Mwea Station when the accused herein passed through his office and they went to the office of PW1 and PW1 told them to go and see him the following morning as the accused person was drunk. That the accused went away but came back armed with a G3 rifle and on seeing the accused armed, him and PW1 scampered for safety. He stated that he entered his office which was near the Rangers Canteen where people were watching Television. The accused went to the door of the Canteen and cocked his gun and he shot Nyaga as he tried to exit through the front door but the other two officers who were with Nyaga managed to escape through the rear door. It was his evidence that he could see the accused from his office. That he ran to where the deceased fell and he had a gun shot on the left shoulder. He touched his heart and noticed that he was not breathing and was breeding heavily. It was his evidence that the accused left after shooting the deceased herein and followed PW1 to a nearby toilet. Upon cross examination, he confirmed that he saw the accused remove the rifle from his shoulder and then cock it.He stated that he was in charge of the arms movement register and that the accused had been allocated the rifle produced before the court and that he proceeded to confirm that he never saw the accused shoot the deceased. The witness was further recalled to produce the register before the court as P Exh 2.

5. PW3, Jesse Gathanga Muhiu testified that on 23. 08. 2016 while on duty at National Reserve at Mwea, he had been allocated patrol duty at the circuit inside the reserve. That they signed off at 1pm and at about 3. 45 p, the accused left him in the bar after he got drank. That later on, he heard that PW1 had been shot and had been admitted in Hospital and he went to see him and he had gunshot wounds. On cross examination, he confirmed that he never saw the incident.

6. PW4, Rose Mbone Kilema stated that on 23. 08. 2016, at around 7. 30 a.m., she reported on duty at the main gate as a revenue clerk. That at around 5. 25 p.m., and while still on duty with the deceased, they saw the accused coming from the staff quarters and at a distance of roughly 30 meters away and as he continued to approach them, the accused who was armed ,cocked his gun and in the process, was saying that ‘mnasema mimi ni mlevi. That at this point they sensed danger and she started running towards the offices while the deceased ran towards the gate. That as she ran away, she heard gunshots at the gate and also saw PW1 run towards the gate since he was being chased by the accused herein. That the accused shot PW1 as he attempted to run to hide at a corner of the office and he continued to shoot aimlessly. It was her evidence that later on, they found that the deceased had been shot several times and that he was bleeding from the right side of the chest and there were signs of gunshots on the ground where the deceased lay. On cross examination, she stated that she was on duty at the gate and that during the day, it could be very busy but not in the evening. She further stated that she only heard of gunshots as she ran away but further reiterated that she is sure that the accused herein was responsible for shooting the deceased herein. It was her further evidence that though there were other two officers who were also armed, they were not at the gate at the material time when the deceased was shot. She stated that she was very sure that it was the accused who shot the deceased as she left the two of them at the gate and she heard gunshots a few seconds later.

7. PW5, Dr. Phyllis Muhonja stated that on 30. 08. 2016, she conducted autopsy on the body of the deceased and that on the external examination, there was a deep abrasion on the right upper part of the leg and the wound measured 15 cm. The left arm mid-way on the outer muscle had a communated fracture of humerus bone. The wound extended to ampit region and the left arm was collapsed. That the muscle of the left chest was bruised and this was the entry wound; fractured ribs on the left chest (3rd, 4th and 5th) in different parts. There was massive blood collection in the left cavity, the wound went to the mid and lower part of the left lung which injured the thoracic aorta and extended to the heart on the left ventricle. There was massive haemopericardiqum in the cavity that houses the heart. That the wound extended to the ribs on the back on the left side of the chest fracturing the 6th and 7th ribs. The wound also extended to the spinal column. The bone on the spinal column was fractured and the bullet was lodged in the spinal muscle covering the spine. She thus formed the opinion that the cause of death was a single short injury whose entry being on the left humerus with bullet lodged in the spine. That she recovered the bullet for further analysis in certificate 0094389 and wherein she prepared and signed the report which she produced as P Ex 2.

8. PW6, Jacinta Waithira Nyaga testified that the deceased herein was her husband and that on 30. 08. 2016 at around 9. 30 a.m., at Gakwegori Funeral home, she identified the body of the deceased to the doctor for post mortem.

9. PW7, Saikuran Lekei testified that on 23. 08. 2016, at around 4. 00 p.m. while at the residential house of a colleague, they heard gunshots toward the office direction and he mobilized his colleagues and went towards that direction. He stated that he saw a person lying helpless near the gate and that he was bleeding from a gunshot wound on the chest. That he saw the accused herein chasing the camp boss one Njoroge and shooting towards that direction and he followed the accused herein at a distance. That the accused who was armed with a rifle shot three times at the boss. That when he (P.W.7) caught up with the accused, he ordered him to drop the rifle and they arrested him. On cross examination, he stated that the deceased had already been shot when they arrived at the scene near the gate.

10. PW8,Alex Chirchir testified that he received exhibit memo from PC Joshua on 31. 08. 2016 and they were : one rifle of serial number 390588 marked as Exhibit A; rifle magazine marked as Exhibit C;3 rounds of ammunition which was marked as E(1) – E (3); 3 fire cartridge cases marked as B(1) – B(3) and bullet fragments marked D (1) - D (3)That he was required to ascertain the following: whether exhibit A is a firearm under the Fire Arm Act and whether it was capable of discharging a bullet; whether exhibits B(1) – B(3) are ammunition, their caliber and whether they could be fired by exhibit A; whether exhibit marked C is a magazine and whether it was capable of fitting into the exhibit A; whether the bullet fragment that were marked as exhibits D(1) – D(3) were fired from the exhibit A. That he carried out the examination and his findings were: Exhibit A is a G3 rifle caliber 7. 62 mm and it was manufactured by Heckler & Koch Company and it was in a good general mechanical condition and capable of being fired. That the rifle is designed to chamber a round of ammunition in caliber of 7. 62 x 51 mm such as exhibits E(1) – E(3).That he fired in the laboratory using three rounds of ammunition i.e. E(1) – E(3);he recovered the cartridges and the bullets and marked them for comparison purposes. On exhibit E(1) – E(3), the rounds of ammunition was caliber 7. 62 x 5. 1mm and that he used the 3 rounds to testify in exhibit A and from that examination, he formed opinion that they were all capable of being fired and that they are firearm and ammunition respectively in terms of the Fire Arms Act.

11. On exhibits 3, he stated that it is a G3rifle magazine and it is in good working order and suitable for use in exhibit A. That it has a caliber capacity of 20 rounds of ammunition. On exhibit B(1) – B(3), he stated that there are 3 fired cartridge cases and each is formerly component part for the round of ammunition in caliber 7. 62 x 1. 5 mm and that he did a comparative microscopic examination of the 3 in conjunction to one another and they revealed that they were fired from one firearm. Further that, he did comparative microscopic examination of exhibits B(1) - B(3) in conjunction with the test cartridge cases that were referred in exhibit A and it revealed sufficient match in the ejector, breech face and in terms of firing pin markings which enabled him to form the opinion that the exhibit B(1) – B(3) were fired in exhibit A and the same exhibit A is a G3 rifle of serial number 390588. That there were 3 bullet fragments and he described them as D, and D(1) is a partly damaged fired bullet weighing approximately 2. 87 grammes and on physical examination, it revealed that it is shattered at the nose and it has a dry like blood stains. That D (2) is a fragment of copper jacketing and weighs approximately 0. 34 g in weight. Exhibit D (3) is a piece of lead core of a bullet measuring 0. 22 g. The 3 pieces of the bullet fragment do not have distinct markings as the bullet leaves the rifle hence not suitable for microscopic analysis. The damage is an indication that the exhibits D (1) – D (3) may have come into contact with hard surface during firing. He prepared the report dated 27. 09. 2016.

12. PW9, Daniel Kiragu testified that on 23. 08. 2016, he visited the scene of murder herein and took a total of 6 photographs of the said crime scene which he produced as exhibits together with the certificate dated 2nd August, 2019.

13. PW 10, Corporal Joshua Cherotich testified that on 23. 08. 2016 while at the station, he received a report of fatal shooting which was made by PW7 who reported that one Liban Kune Boru had killed his fellow Warden namely Joseph Nyaga. In company of his fellow police officers, he went to Mwea National Park and on arrival he found the body of the deceased, 3 spent cartiledges of 7. 62 which is meant to be used by G3 Rifle .That by then, the accused had been arrested by his fellow officers and he was handcuffed. He contacted the scenes of crimes personnel who went to the scene and took photographs. That he re-arrested the accused and his G3 rifle serial number 390588 and a magazine which was loaded with 3 live ammunition. That he took the arms movement book which showed that the accused was issued with the said fire arm on the 9th August, 2016 and 40 rounds of ammunition. It was his evidence that the accused was assigned duties outside the park and in those circumstances, he was not under duty to return the rifle and was only required to return the same on coming back to the camp. On cross examination, it was his evidence that they recovered the G3 rifle from the accused person and that the accused was working in an operation area and was not expected to return the rifle the same day. He, however, stated that it is not normal for an officer to stay with a rifle for two weeks.

14. The prosecution closed its case and vide a ruling delivered on 13. 10. 2021, the accused was placed on his defence upon the court finding that the prosecution established a prima facie case.

15. DW 1, Liban Kune Boru testified that on 23. 08. 2016, he was on duty having reported at 6. 00 a.m., he went to check the fence where the elephants had destroyed. That he left in the company of Katanga and only came back at 12. 00 noon and that he went back to the office and explained to his boss what he had seen. He stated that he did not have a fire arm on that day and that the same could be verified by the O.B which the prosecution did not produce and further that his finger prints were not taken and no finger prints report was produced in court. On cross examination, he confirmed that his boss was PW1 and that it is not true that he wanted to kill PW1 but instead shot the deceased.

16. The defence proceeded to close its case. The court gave directions that parties do file submissions wherein the parties complied.

17. The prosecution submitted that the evidence adduced by the ten prosecution witnesses was not dislodged by the weak evidence of the accused who in his defence, denied everything that transpired on the material day. It was further submitted that the murder of the deceased by the accused person has been proved beyond any reasonable doubt and prayed that the accused be convicted in accordance with the law. Reliance was made inter alia on the case of Joseph Kimani Njau v Republic (2014).

18. The defence on the other hand submitted that the prosecution failed to prove the elements of the offence of murder in that; there was no evidence linking the accused person to the death of the deceased and further that the charge sheet was defective to an extent that the same cannot be cured. That the accused was arraigned and charged before this court by use of a charge sheet whereas he was supposed to plead to information, this being an offence of murder. It was his case that such a defect which was never cured by way of amendment should be resolved in favour of the accused. On identification of the accused, it was submitted that there was no clear eye witness to the incident and that the circumstances cannot lend any identification to be accurate and sustainable. It was contended that as testified, many people were present and scattered and many were also armed and that the distance by the witnesses were far off under shock and panic.

19. It was also submitted that the contradictions, gaps and different versions and accounts regarding the rifle, damaged bullets cannot be wished away. Further that the integrity of handling the rifle was compromised from the word go.

20. I have considered the evidence tendered before this court by both the prosecution and the defence and the written submissions filed by both parties. As I have already stated, the accused person herein was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.

21. The offence of murder is defined under section 203 of the Penal Code in the following terms;-“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

22. As such, for the prosecution to secure a conviction on the charge of murder, it has to prove, beyond reasonable doubts the ingredients of the offence of murder against an accused persons. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the elements of the offence of murder were listed as follows:-(a)death of the deceased occurred;(b)the accused committed the unlawful act which caused the death of the deceased; and(c)the accused had malice aforethought.

23. It is trite that the prosecution bears the burden of proving every element of the offence an accused person is charged with and in this case, prove that the accused herein murdered the deceased (see Woolmington v DPP (1935) AC 462). The standard of proof which was required of the prosecution is that of “beyond any reasonable doubt” (See Miller v Ministry of Pensions, [1947] 2All ER 372).The question therefore is whether the above ingredients were proved to the required standards?

24. As for the death of the deceased, the evidence by PW5 was that the cause of death was a single shot injury entry being on the left humerus-with bullet lodged in the spine. In regard to this aspect, death of the deceased was indeed proved by the prosecution.

25. As to the death being caused by unlawful acts, under Article 26 of the Constitution of Kenya 2010, right to life is protected and can only be taken away under the circumstances provided therein. It therefore means that every homicide is unlawful unless authorized by law or excusable under the law or under justifiable circumstances such as self-defense or defense to property. (See Guzambizi Wesonga v Republic [1948] 15 EACA 63) and also Sharm Pal Singh [1962] EA 13). Going by the evidence of PW5 and the opinion she formed on the cause of death, the same was definitely not lawful.

26. As for the accused having committed the unlawful act which caused the death of the deceased, having perused the prosecution’s evidence as presented before the court, it is noted that no prosecution witness directly saw the accused herein shoot the deceased. However, it was the evidence by the prosecution witnesses that the accused herein was in possession a fire arm. PW 8 testified that, it was the same fire arm that had previously been issued to the accused that had been used in killing the deceased herein.PW2 was the person in charge of the armoury register. It was his evidence that he had allocated the accused herein a G3 rifle Serial No. 390588 on 09. 08. 2016 under entry 210 and further that, the accused herein signed having taken the rifle in question. He stated that the accused herein stayed with the rifle in question until the fateful day on 23. 08. 2016 when the incident happened. All the prosecution witnesses placed the accused at the scene of the crime. The investigating officer testified that when they arrived at the scene, the accused person had been arrested by the fellow prison warders including PW7 who confirmed they arrested the accused with the gun and he had fired several times. They re-arrested him and he was in possession of the G3 rifle. In his defence he denied having been in possession of a gun yet there is overwhelming evidence to that effect.

27. As to whether the accused had malice aforethought, malice aforethought is the mental element (mens rea) of the offence of murder. Section 206 of the Penal Code defines it as follows;206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances -(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)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, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)an intent to commit a felony;(d)an 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.

28. The Court of Appeal in Bonaya Tutu Ipu & Another v Republic [2015] eKLR stated as follows on the proof of malice aforethought;-“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit v Uganda, CR. App. No. 95 of 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex v Tubere s/o Ochen (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick……”

29. In this case, the prosecution witnesses clearly narrated what transpired on that fateful day and how the accused shot haphazardly and as result of his actions, the deceased herein lost his life.

30. According to PW 5 who carried out post mortem on the body of the deceased herein she formed an opinion that the cause of death was a single shot injury whose entry was on the left humerus with bullet lodged in the spine. The accused did not have any other intention but to cause either the death or grievous harm to the deceased. It is trite that Malice aforethought can thus be inferred not only from the weapons used to inflict injuries but also the nature of the injuries inflicted on the deceased resulting to death. The accused herein shot the deceased and caused his death.

31. In the end, I find that the prosecution has proved the case of murder against the accused person and I therefore find him guilty as charged and convict him accordingly.

32. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF MAY, 2022. L. NJUGUNAJUDGE……………………………………………………………… for the accused………………………………………………………………….. for the state.