[2017] KEHC 397 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 80 OF 2011

REPUBLIC..............................................................................................................STATE

VERSUS

DANIEL KAMAU MIRINGU alias DUNCAN KIMANI MUCHIRI........ACCUSED

JUDGMENT

The accused DANIEL KAMAU MIRINGU alias DUNCAN KIMANI MUCHIRI faces a charge of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF TH PENAL CODE.

The particulars of the charge were that

“On the night of 21st and 22nd day of October, 2011 at Jua Kali Estate – Njoro Town within the Nakuru County murdered EUNICE NYAMBURA KINYANJUI”.

The accused pleaded ‘Not Guilty’to the charge. His trial commenced before Hon Justice Anyara Emukule (now retired) who heard the evidence of the first seven (7) witnesses. Thereafter I took over the case and recorded the evidence of the final witness. A total of eight (8) witnesses testified in the case.

The accused was the husband to the deceased and they had 2 children together. According to PW8 JOHN KINYANJUI who was the father of the deceased the couple had a tumultuous relationship. They often quarreled and the deceased had severally returned to her parent’s home. After reconciliation the couple would resume cohabitation briefly only to part again.

PW1 ANTHONY GITAU KIMANI was a boda boda operator. He told the court that on 21/10/2011 the deceased called him and asked him to take her home. When PW1 went to pick the deceased he found her with her husband (the accused). The two began to argue. The deceased was demanding to be taken to her parents home while the accused wanted them to be taken to their matrimonial home. Eventually PW1 left them both at Njoro Day Secondary School. The next day he received news that the deceased had been killed. He went to the scene where he found the body of the deceased lying dead on a grassy plot.

PW3 JOASH MUENDI KIMANI was a village elder. He told the court that on 19/10/2011 the accused and deceased had quarreled and the chief invited PW3 to help in reconciling them. At that meeting the accused declared that he wished to separate from his wife. Then on 21/10/2011 the father of the deceased requested PW3 to assist the deceased ferry her belongings away from the house of the accused. PW3 obliged and escorted the deceased to her matrimonial home where she removed a suit case and packed it onto a motor bike and went away. Later on 22/10/2011 PW3 heard that the deceased had been killed.

PW4 ANNE WANJIKU WANGOYA told the court that on 23/10/2011 she was watching TV when she saw a picture of the accused indicating that he was suspected for having killed his wife. PW4 knew the accused well as he ran a butchery near her shop. Later accused came and requested PW4 to accommodate him for the night. She allowed him to sleep in her charcoal store. PW4 then alerted the police who came and arrested the accused.

Following police investigations the accused was arraigned in court and charged with the offence of murder.

At the close of the prosecution case the accused was found to have case to answer and was placed onto his defence. He gave an unsworn defence in which he denied having killed the deceased.

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”

In any charge of murder the prosecution must prove beyond reasonable doubt the following three ingredients in order to satisfy the charge

(i) Proof of the fact as well as the cause of death of the deceased

(ii) Proof that the deceased met his death due to an unlawful act or omission on the part of the accused

(iii) Proof that said unlawful act or omission was committed with malice aforethought

Regarding the fact of the death of the deceased there can be no controversy. PW1 and PW3 told the court that they saw the body of the deceased lying dead in a grassy plot. PW8 the father of the deceased confirmed that he identified the body of the deceased. All these witnesses who knew the deceased well identify her as ‘Eunice Nyambura’.

PW2 DR. TITUS NGULUNGU was the government pathologist who conducted the autopsy on the body of the deceased. He told the court that he noted bruises and a fracture at the base of the scalp. In his opinion the cause of death was ‘severe head injuries due to blunt trauma and haematoma’. PW2 filled and signed the post-mortem report which he produced in court as an exhibit P exb 1. I therefore find that the deceased met her unfortunate death due to a vicious attack to her person.

Having proved the fact as well as the cause of death the prosecution must tender evidence to prove that it was the accused who by an unlawful act or omission caused the death of the deceased. There was no witness who saw the accused assault the deceased at all. All that the witnesses are able to tell the court is that the couple had frequent squabbles. The mere fact that the accused and deceased had domestic woes is not prove that it was the deceased who killed her.

PW1 a boda boda rider told the court that on the material day the deceased called him and asked to be ferried home. PW1 went and found the deceased with the accused. They both boarded his motor bike but were quarrelling about their destination. The deceased wanted to be taken to her parent’s home while the accused wanted them to be taken to their matrimonial home. Since the two were unable to agree PW1 dropped them off near Njoro Secondary School.

PW1 has no idea where the two went after he left them and he has no idea what happened to the deceased. PW1 only says that he later saw the accused entering a bar alone. PW1 has no idea who killed the deceased.

There was no other witness who saw who killed the deceased. The evidence in this case cannot even be sufficient to amount to circumstantial evidence. It is purely evidence of suspicion alone.

In the case of SAWE Vs REPUBLIC [2003] KLR 364 the Court of Appeal held

“The suspicion may be strong but his is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond reasonable doubt”

The prosecution evidence in this case has fallen way below that standard of proof.

In his defence the accused told the court that after PW1 dropped them off, he and the deceased went separate ways. She went home and he went to a bar. There is absolutely nothing to disprove this defence. Indeed PW1 confirms that he later saw the accused in a bar alone.

I find that there exists no concrete or tangible evidence to link the accused to the death of the deceased. The mere fact that the couple had frequent domestic squabbles is not sufficient to implicate the accused. I therefore find that the actus reus of murder has not been proved as against the accused. I enter a verdict of ‘Not Guilty’ and I acquit the accused of this charge of murder. He is to be set at liberty forthwith unless otherwise lawfully held.

Dated in Nakuru this 10th day of November, 2017

Mr. Mamarua holding brief for Mr. Mongeri

Maureen A. Odero

Judge