[2022] KEHC 1722 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL CASE NO. 12 OF 2015

REPUBLIC.............................................................................PROSECUTOR

VERSUS

DANIEL NDEGWA WACHIRA...................................................ACCUSED

JUDGEMENT

1. This case was part-heard by Judge T. Matheka when I took it over on 16/03/2021 whereas thirteen (13) prosecution witnesses had testified and only one was remaining. The prosecution failed to procure the attendance of the said witness and closed its case. Directions under Section 200(3) of the Criminal Procedure Code were taken as required. The accused was put on his defence and he gave sworn testimony but did not call any witness.

2. The accused faces a charge of murder contrary to Section 203 of the Penal code as read with Section 204. The particulars of the charge are that on 24th June 2015, at Umbui village of Mahiga East Location in Nyeri South District within Nyeri County the accused murdered Patrick Wanjahi Wachira. During the hearing, the accused was represented by Mr. Kimani Njuguna whereas Mr. Njue was the prosecuting counsel. Ms. Catherine Mwaniki took over from Mr. Njue and proceeded with the case to conclusion.

3. The case of the prosecution precisely is that PW2 the officer in-charge (O.C.S) Munyange Police Station received a report that a person had been murdered at Ombui village in Mahiga East Location. He took a number of officers from the station and visited the scene whereas they found the deceased on a seat and a pool of blood and a panga under the plastic chair. The scene of crime personnel came to the scene, attended to it and thereafter the body was removed to the mortuary. The body had deep injuries on the neck extending to the spine and to the major vessels. The case was later handed over to the District Criminal Investigation officer for investigation.

4. Dr. Obiero, the doctor who conducted the post-mortem testified that the cause of death was multiple injuries secondary to cut wounds. PW3 and PW12 identified the body to the doctor who conducted the post mortem.

The Prosecution Case

5. PW1, Dr. Obiero Okoth,produced the post mortem report in evidence. He testified that the cause of death was multiple injuries secondary to cut wounds (sharp trauma) the Post Mortem Report was produced in evidence.

6. PW2, PW5 and PW8 were police officers who visited the scene after the report of the death was reported at Munyange Police Station.

7. PW3 and PW12 were present for the identification of the deceased’s body at the mortuary.

8. PW4, a neighbour and son of PW7, testified that on the material day, he was working as a casual labourer at Wachira Wangai’s home when he heard screams. He said that he was told that the accused had cut his father and he immediately rushed to the accused’s home where he found his father being put on a motor bike to be rushed to hospital. He stated that his father had been cut on the head and he was bleeding profusely.

9. PW5,the then officer Commanding Police Division(OCPD) Nyeri South, testified that on 24th June 2015 the accused was brought by OCS Mwangangi to his office on allegations that he had cut the deceased on the neck to which he admitted to doing. The accused was said to be the son of the deceased. He testified further that he visited the scene of the crime and saw the deceased seated on a plastic chair surrounded by a pool of blood and that his neck had been cut. He stated that there was a sharp panga next to the pool of blood about a metre away from the body. He further stated that although the accused confessed to killing the deceased, he did not take down the confession in writing.

10. The evidence of PW7 was that on 24th June 2015, the accused called him to his home together with the deceased. He stated that when they reached the accused’s home, the accused told PW7 and the deceased that the work given by the accused’s brother had been assigned to him and he would do it. The deceased respondend to the accused that he was lying because his brother had called deceased on phone and told him that the deceased and PW7 should continue working on his farm. PW7 further testified that he got up to leave but the accused offered him tea. As they were having tea the accused took a panga from his house and began cutting grass around his homestead. PW7 stated that as the accused approached the deceased who was sitted aiming the panga at him and then cut him on the neck. He then hurried to PW7 and cut him on the head. The witness further stated that he wrestled with the accused trying to take the panga away from him, but the accused cut his hands and struck him on the back. PW7 stated that he tried to run but realised that the accused had locked the gate. The accused continued to cut him on his head as the witness continued screaming. He further stated that he was bleeding and his vision became blurred and he fell into a ditch whereupon the accused shouted insults at him and struck him on the left jaw. He regained consciousness at Nyeri Hospital where he was admitted for four days.

11. PW8the AP Commander then stationed at Mariga Ward, testified that on 24th June 2015 he was informed by the sublocation Assistant Chief that someone had been killed at Ombui Village. He further states that he informed the OCS Munyange police station and also mobilized officers to go to the scene. He stated that upon reaching the crime scene, he saw the deceased’s lifeless body on a chair with his head slanting backwards and had a sharp cut at the neck. He testified that members of the public informed him that the accused had killed the deceased and injured PW7 who had been rushed to hospital. PW8 told the court that he and his officers secured the site and called scene of crime personnel who processed the scene and removed the deceased’s body to Nyeri Provincial General Hospital mortuary. The witness also testified that he located the panga at the gate of the compound.

12. PW10, the investigating officer testified that she was tasked with investigating this case together with PC Muli, which had occurred at Ombui Village, Mariga Location. She stated that the accused was present and had surrendered himself to the OCPD’s office. She further stated that she booked the incident in the Occurrence Book under OB 24/20/6/2015 and went to the scene of the crime. At the scene, PW10 testified that she saw the deceased and PW7 and that the deceased had serious injuries. She stated that together with the officers from general duties, they secured the scene and obtained the exhibits which included a panga, clothes of the deceased and of those of PW7. PW10 testified that they took PW7 to Nyeri Provincial General Hospital for treatment and later went to take his statement but found him still unconscious. The witness further testified that on 26th June 2015, she took the accused to Othaya Law Courts before the Senior Resident Magistrate to make a confession. PW10 stated that according to the witnesses, there was an argument between the accused and the deceased about nappier grass and milk at the accused’s brother’s farm. She further stated that they disagreed and the accused took a panga and cut the deceased on his neck and also cut PW7 on the head and shoulders.

13. PW11, an Assistant Chief Kamuthu Sublocation testified that he received a call from Peter Kiiru Ndegwa and the villagers that someone was killed and another injured at the home of the accused. He stated that he went to the scene of the crime where he found the deceased’s body on a plastic chair with a deep cut on the neck. He further testified that he covered the deceased with a blanket. He stated that he saw a panga at the gate, 10 metres from where the deceased was seated and there were four chairs including the one the deceased was seated on. He identified the panga because of its wooden handle.

14. PW13a scene of crime personnel testified that on 24th June 2015, he arrived at the scene of crime together with PC Kamau and PW10. He stated that he was shown a panga which had a blood smear and saw one other panga at the scene. He further testified that he noticed a trail of blood drops moving out of the compound to outside the gate. On entering the compound, PW13 stated that he saw the deceased who had sustained a deep cut wounds from a sharp object on the left side of the neck and his upper body was soaked with blood. He stated that he took 15 photographs of the scene and the body. He said he supervised the processing of the photographs and wrote a report which he produced in evidence.

Defence Case

15. The accused testified that on the material day he was at his home when the deceased came to his house, carrying a panga. He stated that he had no differences with the deceased and the deceased asked him to accompany him to the accused’s brother’s farm to discuss the work the deceased and PW7 were doing on the said farm. He further testified that PW7 had abused the deceased and accused him of stealing milk. In return the deceased accused PW7 of taking nappier grass from the farm to an unknown location. The accused stated that he called PW7 on phone who came to his house with a panga. The accused further testified that they sat outside and began to deliberate on the issues. PW7 stated that the deceased and himself had differed on who was to do the milking. The accused then testified that he picked his fertilizer and went to the store and that is when he heard the deceased shouted at PW7 and threatened to cut him with a panga. He testified that he went back and found the deceased raising his panga in preparation to cut PW7 but he noted that PW7 was already bleeding on his face. He further told the court that the deceased cut PW7 a second time on the face. The accused told the court that he was not armed at that time. The accused then jumped at the deceased who was still seated from behind and asked him why he was cutting PW7. The accused noted at the time that the deceased had no injury and that he dropped his panga. He further stated that PW7 then cut the deceased on the neck as he was standing while the deceased remained on his seat. The accused further testified that he realised he was in danger and fled from the scene and went to report the matter at Othaya Police Station.

16. On cross-examination, the accused testified that his wife was not at home when the incident occurred but was at a neighbour’s home attending a women group meeting. He further testified that he was not armed with a panga.

The Accused’s Submissions

17. The accused submits that the case is based on direct evidence of PW7 whose evidence is full of discrepancies. The accused states that PW7 admittedly testified that he told lies and truths to the police who were recording his statement. As such, the accused submits that he is an unreliable witness and therefore his testimony is not worthy of being believed. To support this contention the accused relies on the cases of Kiilu & Another vs Republic (2005) 1 KLR 174 and Peter Warui Kagia Nyeri High Court Cr. Appeal No. 7 of 2016.

18. It is the accused’s defence that the prosecution’s evidence was not consistent on where the murder weapon was found. PW8 gave contradictory evidence on where the panga was found compared to PW10 and PW11. Further, it was not clear how many pangas were at the scene. PW7 admitted in examination in chief that he had a panga but the same was never recovered at the scene. The accused further states that though PW8 stated that there was a confession by the accused, no recorded confession was ever produced. The prosecution in the end did away with the confession as it was not procedurally obtained. Thus, the accused then wonders what the confession contained that could not help the prosecution. Though its non production was non prejudicial to the defence case, the accused submits that it makes PW8’s testimony worthless. Furthermore, the accused submits that several clothes were taken by police and handed over to the government analyst for DNA Sampling together with blood samples from the accused. From the examination by PW6, none of the results implicated the accused which does not tell who killed the deceased.

19. The accused further submits that PW2 did not disclose vital information such as who told him that the accused dropped his panga and ran away. PW4, the son of PW7 said that his father was not talking when he was taken for treatment. Yet PW4 was among the first of about ten people to arrive at the scene of the crime. As such, the accused submits that the prosecution’s case has many glaring gaps and inconsistencies, which go to the root of the case.

Issues for determination

20. I have considered the entire evidence, the submissions of the defence and find the following issues arising for determination:-

a) Whether the prosecution proved the death of the deceased.

b) Whether the accused unlawfully caused the death.

c) Whether the prosecution proved malice aforethought on part of the accused.

The Law and Analysis

21. The burden of proof in criminal cases is on the prosecution to establish that the deceased death on 24th June 2015 was as a result of the unlawful act of the accused. To prove the offence of murder, the prosecution is supposed to prove the primary ingredients of the offence namely:

a) That the deceased died.

b) That his death was unlawfully caused and at the time of the murder accused person did so with malice aforethought;

c) That the accused person has been positively identified and placed at the scene of the crime.

22. While evaluating the evidence on record, it is not disputed that the deceased died on the 24/06/2015. PW1, Dr. Obiero Okoth produced the post mortem report that showed that the cause of death was multiple injuries secondary to cut wounds (sharp trauma).

23. As such the cause and fact of death has been sufficiently proved vide the post mortem report of PW1.

Whether the accused caused the death of the deceased by either an unlawful act or omission.

24. In the instant case, PW7 is the only eye witness who testified that he saw the accused inflicting fatal injuries on the deceased. The rest of the evidence is circumstantial.

25. In Abada bin Wendo and Another vs R (1953) 20 EACA 166 the court expressed itself as hereunder on the issue of considering the evidence of a single eye witness:-

“Subject to certain well known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safety be accepted as free from the possibility of error.”

26. Similarly in Kiragu vs Republic [1985] eKLR the court stated as follows:-

“It is trite law that subject to certain well known exceptions a fact may be proved by the testimony of a single witness however in exercise of its duty this Court has to satisfy itself that in all circumstances of the case, it is safe to act upon it.”

27. According to the evidence adduced by PW7, the accused called him to his home on the material day. On reaching there, PW7 found the deceased, the accused and his wife seated. The accused then told PW7 and the deceased that he would carry out the farm work at his brother’s farm but the deceased challenged him on the statement calling him a liar. The accused then offered tea to PW7 and the deceased. The accused then started cutting grass in his compound and as he approached the deceased who was seated, aimed the panga at him and cut him on his neck. The accused then cut PW7 on the head and as PW7 wrestled to get the panga away from the accused, the accused cut him on his hands. While trying to run away PW7 found the gate locked and could not escape. The accused continued to cut PW7’s head. PW7 screamed for help and neighbours started coming into the compound of accused’s home.

28. The defence challenged PW7’s evidence as contradictory and unreliable. The accused testified that he was not armed and thus he did not cut the deceased on the neck. According to him, the deceased using a panga cut PW7 two times on the face and then PW7 stood up and cut the deceased on the neck. According to the accused all this ensued, as the deceased was seated on his chair. The accused said his wife was not present in the homestead at the material time and as such, he could not call her as a witness. Furthermore, the direct evidence by PW7 was not dislodged as it placed the accused at the scene of the crime, which the accused admitted in his defence.

29. PW7 testified on how deceased and himself were called by the accused to go to his house after which they were welcomed and given seats and were later served with tea. The accused told the two men that the work they used to do for his brother on the farm was not available anymore, and that his brother had instructed accused to do it himself. By that time the accused had already milked the cows of his brother. There is evidence that the deceased and PW7 used to work at the farm of accused’s brother and that accused was not happy with that arrangement. According to PW7, the deceased was attacked while seated on a chair. He was cut on the neck with a panga. PW7 was then attacked and cut severally. He was taken to hospital unconscious.

30. The evidence of PW7 was challenged by the defence in that he was not truthful and that it was contradictory. PW7 gave a detailed account on how the incident occurred. He was present at the scene and was also attacked by the accused and seriously injured. He told the court that he screamed and his son PW4 came to the scene. PW4 said he saw the deceased sitted on a plastic chair while his father PW7 was being rushed to hospital. PW4 joined his father to hospital.

31. PW11 testified that on the material day he was attending a burial and was called on phone to go to the scene. On arrival, he found a crowd at the gate of the home and then saw deceased with a deep cut on the neck. He described the sight of deceased in his sitting position as very scary. PW13 the scene of crime personnel corroborated the evidence of PW4 and PW11 on the description of the scene and the state of the body of the deceased as well as the injuries inflicted on the deceased.

32. The evidence of PW7 as to what transpired at the scene up to the time he fell unconscious was corroborated by that of PW4 and PW13 as to the description of the scene, the injury sites on body of the accused, and the state of affairs at the scene. PW11 was the assistant chief who said the crowd was angry but he calmed them down.

33. On the other hand, the narration of events at the scene by the accused contrasts sharply with that of PW4, PW7 and PW13. The motive of the killing the deceased may not have come out clearly, but from the evidence of PW7, the accused seemed unhappy that the deceased and PW7 were working in the farm of his brother where they fed and milked cows. The accused said that his brother had said that the accused should take up the work to which the deceased told the accused that the information he gave was not true. This prompted the accused to take a panga from his house and started cutting grass at the scene shortly before he attacked PW7 and the deceased.

34. Although the accused said he rushed to Othaya Police station to report the matter after he realised that he was in danger, this was dislodged by PW5 who testified that the accused surrendered to the area OCPD after the commission of the crime. The evidence of PW7 was consistent with the chain of events soon after the attack as described by PW4, PW11 and PW13. The description of the scene, and the state of the victims and the injury sites was also brought out clearly by the said witnesses. PW7 said his statement was taken while still ill in hospital and the he was under medication. The minor discrepancies in the evidence, were clarified by PW7 in cross-examination and in re-examination. In my considered view, minor inconsistencies may occur in the evidence but are not fatal to the prosecution’s case.

35. The defence relied on the Court of Appeal case of Kiilu & Another Vs Republic [2005]I KLR 174, in arguing that the evidence of PW7 was totally unreliable. In the said case, the court was dealing with the issue of identification of the appellant in an appeal against conviction in a case of robbery with violence contrary to Section 296(2) of the Penal Code and was determining whether the evidence of a single witness could be relied on. In the case before me, the accused person is facing a charge of murder and his identification by PW7 and other witnesses was not an issue in the trial. The accused was well known to PW7 who was his neighbour. Further, in this case, there was evidence of PW4, PW11 and PW13 which corroborated that of PW7 on the state of the scene. I do not find the Kiilu case relevant to this case.

36. The Government analyst report was to the effect that the blood on the cap of the accused and on his jacket belonged to an unknown person. It is important to note that PW7 said he was cut with a panga severally and bled. His blood sample was not taken by the investigating officer and it is likely the blood that stained some of the exhibits was as a result of PW7 bleeding from the fresh wounds. The fact that the government analyst report was negative as regards the accused does not necessarily mean that he did not assault the deceased. The evidence of other witnesses is on record for the court to evaluate.

37. In his defence, the accused shifted the blame to PW7 that he is the one who inflicted the fatal injury on the deceased but this version was out of character with the prosecution’s witnesses who visited the scene as well as that of the doctor. PW7 witnessed the incident in broad day light and also became a victim. PW7 is a neighbour to the accused and there was no possibility of mistaken identity. The accused admitted being at the scene of crime which fortifies the evidence of PW7 as to his commission of the offence.

38. According to PW1 the doctor, the deceased had a deep cut wound on the neck extending to the left major vessel, muscle, spinal column and the spinal cord that partially amputated the trachea. This severe injury and other cut wounds caused the death of the deceased and were consistent with the injuries PW7 saw being inflicted on the deceased at the scene.

39. The defence also said that according to PW2,PW5 and PW7 the murder weapon was near the plastic seat on which the deceased’s body lay while PW8 said the panga was recovered near the gate of accused’s home. PW2 and PW5 were the first to visit the scene. They said they saw the panga near deceased’s body and also identified it in court. There is no evidence that the panga was moved to nearer the gate. PW10 testified that the panga was at the gate about ten(10) metres from where the deceased’s body was found. PW2 also identified the panga as the one he recovered at the scene just like PW5 and PW8 did. I am convinced that the three witnesses described the same panga because there were no two murder weapons at the scene. Although PW7 admitted he had his own panga he had carried to cut grass and that the deceased had his own for the same purpose, there is no mention of recovery of their respective pangas. The relevant exhibit herein is the panga of the accused that he used to inflict the fatal injury on the deceased. In my view, this is the blood stained panga recovered by PW2 and described by PW5 and PW8. Ten(10) metres difference in distance is negligible and should not be used to discredit the evidence of recovery of the exhibit. Furthermore, this is another minor discrepancy that has no effect on the prosecution’s case.

40. The confession recorded before one Ben Ekhubi was not produced in evidence because as borne by the record, the witness who was said to be a judicial officer declined to attend court after being summoned severally. Under Section 25 of the Criminal Procedure Code, a confession must be recorded before a magistrate and be tendered in evidence. As such, the court disregards the evidence of PW5 and PW8 that there was a confession recorded by the accused that can be used as evidence against him.

41. The Court of Appeal in Moses Nato Raphael vs Republic [2015] eKLR stated:

“What then amounts to “reasonable doubt?” This issue was addressed by Lord Denning in Miller vs Ministry of Pensions [1947] 2 ALL ER 372 where he stated:

That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof of reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

42. The defence said that the investigating officer who was a vital witness did not testify. The evidence of PW10 an officer from DCI office testified that on 24th June 2015, she was assigned duties to investigate the case together with one P.C Muli. On cross-examination by the defence, PW10 confirmed that she was the investigating officer. It is therefore not correct that the investigating officer did not testify as claimed by the defence in the submissions.

43. I have analysed the prosecution’s evidence and considered the defence of the accused. I am of the considered view that the defence is not plausible but was just a mere defence.

44. I am of the considered view that the prosecution have proved that the accused person unlawfully caused the death of the deceased.

Whether the accused had malice aforethought

45. Section 206 of the Penal code stipulates that malice aforethought is deemed to be established by evidence when any of the following circumstances are proved:-

a) An intention to cause the death of another.

b) An intention to cause grievous harm to another.

c) Knowledge that the act or omission causing death will probably cause death or grievous harm to someone, whether that is the person killed or not, accompanied by indifference whether death or grievous injury occurs or not or by a wish that it may not be caused.

d) An intent to commit a felony.

e) An intention to facilitate the escape from custody of or the flight of any person who has committed a felony or attempted it.

46. Therefore, for a charge of murder to hold against the accused, the prosecution must prove that at the time the accused inflicted the injuries on the deceased, he formed the necessary intention to either cause death or grievous harm on the deceased. In the instant case, PW7 testified that the accused told him and the deceased that he would carry out the farm duties on his brother’s piece of land. The accused also testified that there was a disagreement between him and the deceased about PW7 stealing milk from the said farm and nappier grass being removed from the farm. What is consistent here is that there was a disagreement about who was to carry out the farm duties on the accused’s brother’s farm. The investigating officer, PW10, the investigating officer said that her investigations revealed that there was an argument between the deceased and accused on the issue of nappier grass and milk at the accused’s brother’s farm that led to the accused assaulting the deceased the deceased and PW7. The existence of the said argument is evidence of motive on part of the accused.

47. The nature of the injuries inflicted on the deceased were so severe that they were no doubt intended to bring his life to an end. PW1 described the injuries as having extended from the major vessel of the neck which had been severed to the spinal column, spinal cord and the trachea. The accused person was at the material time determined to cause the death of the deceased. His action when he called the deceased and PW7 to his home and went for a panga from his house which he used to kill deceased and severely injure PW7 point to a premeditated killing.

48. It is my finding that the prosecution have proved that the accused had malice aforethought when he attacked the deceased and inflicted fatal injuries.

49. Consequently, I find that the offence of murder has been proved beyond any reasonable doubt and the accused he is hereby convicted of the said offence.

50. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 3RD DAY OF MARCH, 2022.

F. MUCHEMI

JUDGE

JUDGEMENT DELIVERED THROUGH VIDEOLINK THIS 3RD DAY OF MARCH, 2022