[2017] KEHC 6756 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL CASE NO. 19 OF 2015

REPUBLIC……………...…………………………....……………...……PROSECUTOR

Versus

DAVID MUNYUI CHARAGU.….…...……..................................................1ST ACCUSED

SAMUEL MUNGA NG’ANG’A…………………………………………….2ND ACCUSED

JUDGEMENT

DAVID MUNYUI CHARAGU and SAMUEL MUNGAL NG’ANG’A hereinafter referred as 1st and 2nd accused persons respectively are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63 of the Laws of Kenya). The brief facts as per the information are that on the night of 25th and 26th day of January, 2014 at unknown time at Nkama village, Kuku Location in Loitokitok District within Kajiado County jointly murdered CATHERINE KANINI MUIWA hereinafter referred as the deceased. Each of the accused pleaded not guilty to the charge. Initially they were represented by Mr. Kaluu advocate but on transfer of the case to Kajiado High Court there was change of legal representation under the probono scheme to one Mr. Nyaata advocate.

The prosecution called eight (8) witnesses to prove the charge of murder beyond reasonable doubt.

The essential elements the prosecution are required to proof under section 203 of the Penal Code constitute the following:

(1) That the deceased Catherine Kanini Muiwa is dead.

(2) That the death of the deceased was as a result of unlawful act of omission or commission.

(3) That the accused persons allegedly before court killed the deceased with malice aforethought.

(4) That the accused persons are the ones who participated in causing the death of the deceased.

PROSECUTION EVIDENCE:

PW1 FAITH MUMBUA testified that on the night of 25th & 26th January 2014 her mother, the deceased came home with three people among them she was able to identify the 1st and 2nd accused. It was further PW1 testimony that he opened the door, lit the tin lamp and allowed them to take respective seats within the house. According to PW1 that day was not the first time she saw the two accused persons as they were familiar faces who used to visit their home. PW1 further added in her evidence that after a short while the 1st accused left the house in company of a third person whom she did not know earlier or on that material day. PW1 further stated to this court that the 2nd accused was left in the house with her mother (the deceased) but they also went out of the house following the first group of the accused and the other stranger. That departure of her mother, the deceased in company of the 2nd accused was the last time she saw her mother alive.

PW1 in her testimony proceeded to keep vigil at home and also attending school the following morning as usual while at the same time making reports to the neighbours about the missing of her mother (deceased) from home. During this time she was later contacted by the police regarding the death of her mother. One such occasion was on 1/2/2014 when she participated in an identification parade at Loitokitok Police Station involving the 1st and 2nd accused person. In her testimony PW1 told this court that the parade was conducted when she was called upon to go through a line of people to see whether she could identify anyone she saw that fateful night. PW1 stated in evidence that after going through the parade she positively identified the 1st and 2nd accused persons.

The identification parade was conducted by C.IP John Nyangares PW7 who produced the identification forms indicative of the manner and details of parade dated 1/12/2014. According to PW7 before calling PW1 to participate in the parade as a witness he made arrangements in compliance with police standing orders on identification parade (Cap 46). One such criteria in his testimony was to explain the rights to the suspects and also the role of the witness. It was PW7 testimony that in the two parades organized differently. The witness PW1 was able to positively identify the 1st and 2nd accused by touching. PW7 further testified that after the parade none of the accused raised any dissatisfaction. He therefore signed and the accused persons counter signed that they were satisfied with the conduct of the parade.

PW2 FELISTA NGINA MUIWA gave evidence on how she learnt from PW1 that her sister the deceased was missing from her house since 25/1/2014. PW2 further stated that together with other relatives they embarked on a mission to search for the deceased who left home in the night of 25/1/2014 and never returned back. According to PW2 they made contact with the landlady PW3 Hannah Njeri to assist them in tracing the deceased. PW2 further testified that on 27/1/2014 while at the stage near the deceased’s residence a lady crossed over a thicket to answer the call of nature. In a short while the lady came back running from the bush and beckoned us to go and see a body of somebody lying at the said area. This was the time PW2 managed to identify a half naked body of the deceased lying motionless in the thicket. PW2 conveyed information to other relatives including the police at Loitokitok.

The screams by PW2 attracted the attention of PW3 and PW4 who rushed to the scene. PW3 and PW4 who knew the deceased prior to her death confirmed positively that it was her found dead on the roadside inside a forest covered area. PW4 Joyce Mukulu further told this court that on the night of 25/1/2014 at about 10. 30 she heard the voice of the deceased welcoming some visitors. PW4 further added that on that night she never heard the deceased leave the compound. It is only later she learnt that the deceased body had been discovered dead in a thicket at Nkama village. The body of the deceased was retrieved by PW7 C.IP Libao on 27/1/2014 and taken to the mortuary where he made arrangements for a postmortem to be conducted by Dr. Mutiso PW6. According to the postmortem report the deceased suffered from puffiness of face as a sign of attempted strangulation, severed spinal code and cervical spine fracture. He produced the report as exhibit 1.

PW8 IP MUNGA the investigation officer testified that on the material day of 27/1/2014 in company of PW7 they visited the scene of the murder. PW8 further stated that he took over the duties of investigating the murder involving the deceased death. Upon investigations the leads led him to arrest the accused persons who were the last known persons to have been with the deceased in her house. In support of the prosecution case he alluded to the motive of the murder due to a fight between the accused who disagreed over the deceased.

THE DEFENCE CASE:

At the close of the prosecution case each of the accused was placed on his defence. Their testimonies can be summarized as follows:

DW1 DAVID MUNYUI CHARAGU gave a sworn testimony and denied killing the deceased on the night of 25/1/2014. He confirmed knowing the deceased prior to her death but on the material day he alleged to have spent the night with his wife DW3. The 1st accused further denied that he was a boyfriend with the deceased as alleged by the prosecution evidence. According to the testimony of DW3 the wife to the 1st accused she gave evidence that on the 25/1/2014 they spent time together with the accused and retired together at 10. 00 pm for the night. DW3 also denied that she saw the deceased within the plot because their home to that of the deceased is about 3 kilometres.

DW2 SAMUEL MUNGA NGANGA testified and denied the charge of committing the offence nor being at the scene of the crime. DW2 further stated that he knew the deceased by virtue of his work as a mason having contracted to build a house in the plot where the deceased lived. DW4 LEAH WANJIRU MUNGA the wife to the 2nd accused gave evidence that on the night of 25/1/2014 they spent time together from 6. 30 pm as a family in their home. DW4 further testified that the 2nd accused only left the house briefly about 9. 00 pm and came back after five minutes. The thread of evidence by the two accused persons can be described as that of an alibi defence.

SUBMISSIONS:

Mr. Nyaata for the accused persons submitted that the eight witnesses by the prosecution failed to establish the case of murder against the accused beyond reasonable doubt. Mr. Nyaata learned counsel submitted that there was no eye-witness to the murder of the deceased. The prosecution relied on circumstantial evidence which on application to the facts of the case falls short of the test as enunciated in the case of Abunga alias Onyango v Republic Cr. Appeal No. 32 of 1990 UR. Mr. Nyaata further argued that the prosecution failed to prove that the death of the deceased was due to unlawful act of the accused persons. Mr. Nyaata further submitted that the prosecution did not bother to proof malice aforethought by leading evidence on the intention to kill on the part of the accused persons. Mr. Nyaata argued and submitted that the defence through the sworn statement by each of the accused has presented a plausible defence. The sworn testimony according to Mr. Nyaata has been corroborated with that of their witnesses who spent a night together on 25/1/2014. That evidence according to Mr. Nyaata the accused persons were not at the scene of the crime where the deceased was murdered. In a nutshell Mr. Nyaata submitted that in absence of cogent evidence from the prosecution the case against each of the accused flops hence the benefit of doubt should be resolved in their favour and be acquitted forthwith.

In reply to the defence submissions Mr. Akula the senior prosecution counsel submitted that the prosecution proved the elements of the offence under section 203 against accused persons jointly. The learned prosecution counsel invited the court to find that in early evening of 25/1/2014 the deceased was alive and in good health. The circumstances that followed after 9. 00 pm resulted in the injuries inflicted upon the deceased. According to Mr. Akula the deceased died and her death was due to unlawful acts by the accused persons. Mr. Akula further submitted that there is sufficient evidence from PW1 that the accused persons planned to cause the death of the deceased. The postmortem report according to senior prosecution counsel confirms the serious injuries suffered by the deceased. This therefore given the circumstances malice aforethought accompanied the killing of the deceased. In support of the submissions Mr. Akula placed reliance on the following authorities: Libambula v Republic [2203] KLR 683 on the proposition regarding relevance of motive in the charge of murder, (2) Charles O. Maitanyi v Republic [1986] KLR 198 on the principle that a fact in a case may be proved by a testimony of a single witness save for the need for testing with a greatest care the evidence of a single witness by the court before placing reliance on it to convict and accused person.

Last but not least the case of Abanga alias Onyango v Republic Cr. Appeal No. 32 of 1990 on the test applicable for a case which rests entirely on circumstantial evidence. Mr. Akula on his part submitted that the prosecution discharged the burden of proof beyond reasonable doubt to warrant a verdict of guilty and conviction under section 203 of the Penal Code.

Having set out the events leading to the death of the deceased from the summarized evidence by the prosecution case against each of the accused, their respective defences thereto and submissions by both counsels on this matter, I find it necessary to proceed to examine in more detail each of the ingredients of the offence under section 203 of the Penal Code which the prosecution ought to proof beyond reasonable doubt against each of the accused.

1. The death of the deceased

Prosecution adduced evidence of PW1 Faith Mumbua that her mother went missing on the night of 25/1/2014 from her house at Nkama village. Felista Nganga PW2, Hannah Njeri PW3, PW4 Joyce Mukulu received information from PW1 that her mother whereabouts are not known. According to PW2 they mounted a search in various hospitals but with no success. The body of the deceased was accidentally stampled upon by a good Samaritan who went to the bush to answer a call of nature. As fate will have it PW2 was at the stage nearby when the discovery of the deceased body happened. The police were called in as evidenced by the testimony of PW7 and PW8. The body of the deceased was retrieved on 27/1/2014 from the bush and taken to Loitokitok Mortuary. There is evidence from PW7 who processed the photographs on the scene that the deceased was found dead. The postmortem was conducted by PW6 Dr. Mutiso. That medical evidence proved the death of the deceased. PW2 a sister to the deceased identified the body of the deceased during the postmortem at the mortuary. There is no dispute that even the accused persons in their defence alluded to the fact that the deceased is dead. She was known to them prior to her death. I am therefore satisfied that the ingredient of death has been proved beyond reasonable doubt.

2. The unlawful death of the deceased

The general principle of law under this category of offences is that every homicide is unlawful unless authorized or excusable by the constitution of the republic or statute. This was the holding in the case of Republic v Sharmpal Singh v Republic [1962] Ea 13. See also Gusambizi S/O Wesonga v Republic 15 EACA 65. In the instant case PW6 Dr. Mutiso performed the postmortem on the body of the deceased and produced the report as exhibit 1. In his findings the cause of death was a result of severed spinal cord due to cervical spine fracture. PW6 further added that the deceased also underwent an attempt of strangulation based on evidence of puffiness of the face. The testimony of PW1, PW2, PW3 and PW4 confirms both direct and indirect evidence that the deceased was alive up to about 9. 00 pm on 25/1/2014 at her house. The deceased went missing on the material night until her body was accidentally discovered half naked lying in a thicket off the road. What the evidence by the prosecution established is that the death of the deceased was unlawful. It was occasioned by an assailant who inflicted grievious harm from which she succumbed to death. This was an unlawful attack on the deceased with no evidence that whoever does it was in any imminent danger to his life or in defence of property. The circumstances as explained by the pathologist PW6 who conducted the postmortem does not point to any other causes save for an assault resulting in serious harm to the deceased.

The element of the death being unlawful has been proved beyond reasonable doubt.

3. The ingredient of malice aforethought

This is where the prosecution must lead evidence that in the accused committing the offence they had malice aforethought. Malice aforethought is defined under section 206 of the Penal Code in the following words:

“Malice aforethought shall be deemed to be established by evidence providing any one or more of the following circumstances:

a. An intention to cause the death of or to do grievious 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 death or grievious harm to some person, whether that person is the person killed or not, accompanied by indifference whether death or grievious injury occurs or not or by a wish that it may not be caused.

c. An intention to commit a felony.

d. An intention by the act of omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

It has been held by the decisions of the superior courts on the provisions of section 206 of the Penal Code on circumstances malice aforethought can be inferred. In Bonaya Tutut Ipu & Another v Republic [2015] eKLR:

“Malice aforethought is the mens rea for the offence of murder and it is the presence or absence of malice aforethought which determines whether the unlawful killing amounts to murder or manslaughter.”

In the celebrated case of Republic v Tubere S/O Ochen [1945] 12 EACA 62 the Eastern African Court of Appeal ruled thus:

“It is the duty of the court in determining whether malice aforethought has been established to consider the weapon used the manner in which it was used and the part of the body injured.”

It was further observed that ordinarily an inference of malice would flow the use of a spear or of a knife than from the use of a stick. See the case of Yoweri Damulira v Republic [1956] 23 EACA 501. In the case of Ernest Asami Bwire, Abanga alias Onyango v Republic Cr. Appeal No. 32 of 1990 the Court of Appeal observed interalia that, “malice aforethought can be inferred from the manner of the killing.”In this case the court stated the fact that, “the brutal killing was well calculated to conclude that he had an intention to kill the deceased.”

The inference to be drawn from the set of circumstances are that the deceased on the night of 25/1/2014 was lured to the death trap by the assailants of the deceased in a thicket. According to the postmortem report by PW6 Dr. Mutiso the deceased had suffered blistering of the skin, bruising to the forearms and thighs, cervical spine fracture and severed cervical spinal cord. The assailant targeted the sensitive and vulnerable parts of the body which regulars the nervous spinal system. The deceased was lured elsewhere to be killed. At all this chain of events gives rise to only one logical conclusion a manifestation of the intention to kill the deceased. My considered view is that the attackers hatched a plan to come for the deceased at her house. The dumping of the body in the bush presumably for the body to decompose and without trace of her remains. The circumstances under which the deceased met her death are clear and without a doubt malice on the part of the assailants can correctly be inferred. I am unable to buy into the submissions by the defence counsel that there was no malice aforethought. I am therefore satisfied that malice aforethought has been proved beyond reasonable doubt.

Turning to the question of common intention as evidenced by the prosecution case the provisions of section 20, 21 and 22 of the Penal Code are applicable to demonstrate that the two accused persons and another not before court executed the plan to kill the deceased. Section 20

(1) “when an offence has been committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say-

a. Every person who actually does the act or makes the omission which constitutes the offence;

b. Every person who actually does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.

c. Every person who aids or abets another person in committing the offence.

d. Any person who counsels or procures any other person to commit the offence and in the last mentioned case he may be charged either with committing of an offence or with counseling or procuring its commission.”

(2) A conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(3) Any person who procures another to do an act or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission.”

Section 21 provides:

“When two or more persons form a common intent to prosecute an unlawful purpose in conjunction with another, and in the prosecution of such a purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose each of them is deemed to have committed the offence.”

Section 22 (1) provides:

“When a person counsels another to commit an offence and an offence is actually committed after such counseling by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one, and whether the offence is committed in the way counselled or in a different was provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

(2) In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him”

I place reliance in the case of Wanjiro d/o Wamario v Republic 20 EACA 521 where the East African Court of Appeal remarked”

“Common intention generally implies a premeditated plan but his does not rule out the possibility of common intention developing in the course of events though it might not have been present to start with.”

In my finding the accused persons jointly with another not before court executed the plan to commit the offence of murder against the deceased. It follows therefore that the chain of circumstances is complete and points to the accused persons and another not before court as the ones involved in the killing of the deceased. The established circumstances of the last seen theory and positive identifications are capable of giving credible and consistent evidence which implicates the accused persons jointly as having committed the murder of the deceased. The evidence by the prosecution paints a picture where the accused persons seemed to have spent together in the night of the 25th/26th January 2014. This is exemplified by PW1 testimony that the mother (deceased herein) left the house at 8 pm. According to PW1 the deceased later came back in company of three men. It is again in the company of these three men PW1 stated left with the deceased in intervals. The next sequence of events as deduced from PW1 was the information that her mother the deceased body has been found in a forest away from their homestead.

In all human endeavours one can only draw a logical inference that by the perpetrators dumping the body of the deceased in the bush was meant to achieve – complete decomposition of the body or to tamper with the evidence in order to obstruct the course of justice. Thirdly it was meant to break the chain of the last seen theory which was a key factor which connected them with having played arose in both the disappearance and subsequent death of the deceased.

What i do find from the evidence is a very strong prima facie case against the accused persons that each had participated or had knowledge jointly on circumstances giving rise to the death of the deceased.

I now focus my attention on identification of the accused persons as the ones who caused the death of the deceased. The prosecution in this case anchored on the evidence of PW1 a single identifying witness. According to the prosecution evidence there was source of light from the lamp in the house. It was further the prosecution case that the 1st and 2nd accused persons were close acquaintances to the deceased. According to PW1 they visited their house severally before the 25/1/2014 so she had sufficient and adequate time to familiarize with them in those occasions. In the well known case of Republic v Turnbull [1976] 63 Cr. Appeal R 132 laid down the guiding principles on identification in the following passage:

“Whenever the case against an accused depends wholly on the correctness of one or more identifications of the accused, special need for caution before convicting in reliance of correctness of the identification is necessary the court should warn itself of the possibility that a mistaken witness could be convincing one and that a member of such witnesses could be mistaken.

The court should further examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? What distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally had he any special reason for remembering the accused? How long time elapsed between the original observation and the subsequent identification to the police.........

Recognition might be more reliable than identification of a stranger, but even then the court should remind itself........ That mistake in recognition of close relatives and friends have been made sometimes.”

These principles were applied in the case of Abdalla bin Wendo v Republic 20 EACA 166 on the cautionary measure while placing reliance in a single identifying witness. See also the case of Charles Maitanyi v Republic (Supra). I have considered the evidence by PW1 both at examination and cross examination in chief. The most important aspect of PW1 testimony is that of knowing the accused when they came visiting the mother. The two were not therefore strangers to the witness PW1. The credibility of the evidence by PW1 was further strengthened by the fact that the police PW7 conducted an identification parade. The witness PW1 was invited to participate in the parade where she managed to positively pick the 1st and 2nd accused person from the parade of eight members. The identification parade forms produced as exhibit 2 (a) (b) in support of the prosecution case.

I have carefully weighed and considered the law in respect to identification of an accused by a single witness. In compliance with the law I warn myself as I am bound under the legal principles referred to in the case of Abdalla bin Wendo (Supra). As a trial judge I take cognizance of the dangers of convicting the accused persons on the testimony of a single identifying witness. However in the instant case an appraisal of the single identifying witness has been subjected to the guiding principles in the above authority.

Taking all factors into account and the circumstantial evidence from PW 8 I find the testimony of PW1 cogent and truthful. On my part I find no compelling reasons having warned myself which arises from the totality of the evidence not to place reliance on the testimony of PW1. When taking the evidence of PW7 the parade officer I am satisfied that the law and procedure outlined under Chapter 46, force standing orders was properly followed and the identification parade forms were duly admitted in evidence as exhibit 2 (a) (b).

I find no error in the manner PW7 conducted the identification parade to verify the description by PW1 as to who was seen with her mother (the deceased) that fateful night.

From the testimony of PW1 I draw the following conclusions:

This witness was well known to the two accused persons prior to the alleged day when her mother went missing. It is clear from PW1 that the two accused persons were regular visitors at their house. PW1 further stated that there was light from the tin lamp. The deceased was lured by the three men acting in concert. The stranger had the audacity to return to the house alone and steal any valuables he would come across. During this theft the two were nowhere to be seen. The accused initially came in company of the deceased and another man. They sat in the house conversing in Kikuyu language which PW1 was not conversant with. Although PW1 was lying on the bed she could pursue and monitor the movements. It is clear from PW1 evidence that the 1st accused and the man who was not known to the witness left the house first. According to PW1 the mother and the 2nd accused followed soon thereafter. PW1 woke up and went to close the door to their house. While asleep she was awakened by a knock at the door. The witness PW1 acting under the impression it was her mother retuning back home opened the door only to find the man who was a stranger in their house. The witness further added that the man entered inside ransacked the house of money, mobile phones and other valuables carrying them away with him. PW1 again woke up and closed the door until the following day.

This chain of events as described by PW1 brought me to one logical conclusion that her evidence when tested during cross examination was not shaken. The prior knowledge, the source of light and further confirmation of her picking the two accused person in an identification parade conducted by PW7 strengthen her testimony as to placing the two at the scene of the murder of her mother. The action by the accused persons and another one not before court can squarely be brought within the provisions of section 21 and 22 of the Penal Code.

In my finding the accused persons jointly with another not before court executed the plan to commit the offence of murder against the deceased. It follows therefore that the chain of circumstances is complete and points to the accused persons and another not before court as the ones involved in the killing of the deceased. The established circumstances of the last seen theory and positive identifications are capable of giving credible and consistent evidence which implicates the accused persons jointly as having committed the murder of the deceased.

In my view applying the passage quoted from the case of Republic v Turnbull as adopted in the case of Abdalla hin Wendo (Supra) and Charles Maitanyi (Supra) by the Court of Appeal of Eastern Africa and the Kenya Court of Appeal. In the latest case the judgements show that there is no doubt that the surrounding circumstances supported positive identification of the accused persons to have been at the scene and did participate in the murder of the deceased.

The accused persons put forth a denial of the offence and further averred that they were not at the scene of the murder in the night of 25th/26th January, 2014. It is trite that the effect of an alibi defence when assented by an accused person is meant to demonstrate that he was not at the scene and therefore not capable to have participated in the crime.

It is an element of criminal cases that the prosecution must prove the accused guilt beyond reasonable doubt. That is why when an accused person introduces an alibi defence courts are mandated to weigh it alongside the prosecution evidence to make a finding whether it raises sufficient doubt to entitle him a verdict of not guilty and subsequent acquittal. In the present case the prosecution placed before this court the evidence of PW1 who testified to have seen the accused persons in their house in the night of 25th/26th January, 2016. The witness not only did recognize the accused persons but was also able to identify them during an identification parade conducted by PW7 on 1/2/2014. The accused persons were well known to PW1 prior to this day when this unfortunate incident happened. In the circumstances of this case i am unable to find iota of evidence of such a nature to create a reasonable doubt that the accused persons were not sighted in the house of the deceased on that particular day and soon thereafter she was never to be found alive.

In my view the watertight evidence by the prosecution was not controverted by the accused persons alibi defence.

In conclusion i am satisfied that the prosecution in their quest for justice for the victim has proved beyond reasonable doubt that; the deceased Catherine Kanini Muiwa is dead. Secondly her death was unlawful. Thirdly, the offenders who committed the killing had malice aforethought. Fourthly, the accused persons have been positively identified as the perpetrators of the offence and rightly so placed at the scene on the night of 25th & 26th January 2014. In the premises i find the accused persons jointly and severally guilty of the offence of murder under section 203 read together with section 204 of the Penal Code and do convict each one of them accordingly under the said sections.

Dated, delivered in open court at Kajiado on 27th day of February, 2017.

………………..

R. NYAKUNDI

JUDGE

Representation:

Mr. Nyaata for the accused

Mr. Akula for the Director of Public Prosecutions

Mr. Mateli Court Assistant

Accused present