[2022] KEHC 2326 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL CASE NO. 16 OF 2016

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

VERSUS

EMILIO NJOKA MWANIKI…..…………………………………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 said offence being that on the 1st day of August,2016 at Gatunduri Village, Kibugu Location, Embu North Sub County within Eastern Region, jointly with others not before the court murdered Martin Muriithi Njue.

2. Upon arraignment, he pleaded not guilty and a plea of not guilty was entered. The case proceeded for trial and wherein the prosecution called a total of five (5) witnesses and who testified in support of its case.

3. PW1, Patrick Kivuti Gichovi testified that on 01. 08. 2016, while he was going to Embu to work, he met a customer at Maria Mairi area. That he carried him on his motor bike when he met the accused who asked him for a lift to go to the deceased’s house. He therefore carried him to the gate of the deceased’s home upon which, the accused demanded from the deceased the things that he had stolen but he also was categorical that he did not hear the exact words. That the accused herein was quarrelling the deceased; and that when he returned home, he came to learn that the deceased had been burnt. Upon cross examination, he reiterated that he took the accused person to the home of the deceased at around 0700hrs but later learnt at about 1300 hrs that the deceased had died. It was his take that he is not aware of what happened between 0700hrs and 1300hrs.

4. PW2, Elias Njeru Muchangi testified that on 01. 08. 2016 at around 0730hrs, he was at home with his cousins and with the deceased at their grandmother’s home. At that point, they saw the accused approach them carrying a stick but looking so annoyed. At that point, the accused grabbed the deceased demanding his chicken and a radio allegedly stolen by the deceased a week before. That the deceased on the other hand, denied the accusations and it was at that point, the accused attempted to hit the deceased with a stick which PW2 and others thwarted. They instead advised the accused person to report the matter to the police. The accused and the deceased thereafter left together and they assumed that they were headed for the Police Station. At around 0830 hrs, one Isaac Mugo went home only to inform them that the deceased had been lynched at Gatunduri for allegedly having stolen a duck and a radio set.

5. PW3, Dr. Joseph Thuo testified that on 16. 08. 2016, he examined the accused herein on his mental status and found him mentally fit to stand trial. He therefore produced the report together with DCIO’s request as Pex 1 and 2.

6. PW4, Dr. Timothy Onyuma stated that 05. 08. 2016, he conducted post mortem on the body of the deceased which was identified by a relative. He then formed opinion that the cause of the death was head injury and complication of 63% burns. Externally, the body had 3rd degree burns assessed at 8% on the head, the anterior trunk at 10% and posterior 12%. Left upper limb at 9%, right lower limb 9% and left lower limb 7%. That this totalled to 63% burnt area. That there was bleeding under the scalp underlying between the scalp and the bone. In the same breadth, there was bleeding on the surface of the brain below the coverings associated with the loss of the normal convolution of the service. He therefore prepared a report and produced it as Pex 3. Upon cross examination, he stated that the history shows that the deceased was attacked by many known people.

7. PW5, Anne Thuku testified that she was not the investigating officer and that on 10. 08. 2020, she was instructed by their boss together with one, Norman Mugogo to arrest and charge the accused person herein for the alleged offence of murder. Upon cross examination, she stated that the date was 10. 08. 2016 and not 10. 08. 2020. She was not aware why PW1 was released and yet he had been arrested together with the accused person herein. The state made an application to recall PW5 to produce photographs that were taken at the scene of crime, an application that was allowed by this court since the defence had no objection. As such, PW5 proceeded to state that she was the arresting officer while the investigating officer, one P.C. Kariuki retired from the service. That she bonded P.C. Serem who took photographs at the scene of crime and since Mr. Kariuki had retired, it was the practice that D.C.I would normally appoint another investigating officer but in this case, that did not happen and therefore, the arresting officer took over the process of bonding witnesses and given that Mr. Serem had failed to honour court summons, she proceeded to produce the photos and the report as Pex 4. Upon further cross examination, she stated that she never visited the scene of crime and she was not the person who took the photos.

8. The prosecution proceeded to close its case and vide a ruling delivered on 29. 09. 2021, the accused herein was placed on her defence after the court found that the prosecution had established a prima faciecase.

9. When he was put on his defence, DW1, Emilio Njoka Mwaniki testified that he could not remember the date that he was arrested and that it is not true that he murdered the deceased herein. That he was never investigated and as such, he knows not the people responsible for the death of the deceased herein. Upon cross examination, he confirmed that the deceased was his neighbour and that he used to hear that he was a thief and that there is also a time when he stole his chicken and he reported the matter to the police. On the second occasion, he stole his chicken again and this prompted him to go to his place to demand money in exchange of the stolen chicken but the deceased told him to wait for the police to do their work. That on the day he was burned, he heard screams and upon reaching the scene, he found him being burned and this prompted him to call the sub chief who came to the scene. He reiterated that he never killed the deceased herein.

10. The defence proceeded to close its case. The court gave directions that parties do file written submissions wherein the prosecution elected to rely on the evidence on record in support of its case while the defence chose to rely on the submissions made at no case to answer stage.

11. The defence submitted that the prosecution failed to prove the elements of the offence of murder in that; there was no evidence linking the accused to the death of the deceased. Reliance was made on the case of Nanyuki Criminal Case no. 1 of 2016, Republic v Nicholas Wanjohi Gakuya where the court decried the extreme shoddy investigation carried out by the prosecution and further the repeated act of failing to present before court of witnesses who could possibly have assisted the court reach a just determination. The defence therefore urged this court to acquit the accused person.

12. I have considered the evidence presented before this court by the prosecution and the defence. It is trite that in any charge preferred against an accused person, the prosecution has the duty to prove the elements of the same. (See Section 107 of the Evidence Act Cap 80 of the Laws of Kenya. The degree/standard of prove is always that of “beyond any reasonable doubts” (See Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373).

13. In the instant case the accused person is facing a charge of murder contrary to section 203 of the Penal Code. Murder is defined as

“When any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

The elements of murder and which the prosecution ought to prove are;

a) the death of the deceased occurred

b) the death was caused by unlawful acts;

c) that the accused committed the unlawful act which caused the death of the deceased; and

d) that the accused had malice aforethought.

(See Anthony Ndegwa Ngari vs Republic [2014] eKLR).

14. The question therefore is whether the prosecution tendered sufficient evidence to prove the above elements.

15. As for the death of the deceased having occurred, it is not in doubt that the deceased herein died. PW4 (Dr. Timothy Onyuma testified that he conducted post mortem on the body of the deceased. That the family members were in attendance and proceeded to identify the body of the deceased. As such, the death of the deceased was thus proven.

16. As to the death having been 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. What this mean is that every homicide is unlawful unless authorized by law or excusable under the law or under justifiable circumstances such as self-defence or defence to property. (See Guzambizi Wesonga v Republic [1948] 15 EACA 63). PW4 gave evidence that the deceased herein died as a result of a head injury and complication of 63% burns. The death of the deceased herein was definitely caused by acts which are not excusable or authorized by law and thus the same was unlawful.

17. As to whether the accused committed the unlawful act which caused the death of the deceased, I have perused the prosecution’s evidence as presented before the court. I note that none of the prosecution witnesses saw the incident in which the deceased herein was killed. From the evidence on record, it was the evidence of the arresting officer that she was instructed by their boss together with one, Norman Mugogo to arrest and charge the accused person herein for the alleged murder of the deceased herein; but upon being recalled, she stated that the date was 10. 08. 2016 and not 10. 08. 2020. She testified that she was not the investigating officer and neither did she visit the crime scene. She proceeded to state that the investigating officer, one P.C. Kariuki retired from the service. That she bonded P.C. Serem who took the scene of crime photos and since Mr. Kariuki had retired, it was the practice that D.C.I would normally appoint another investigating officer but in this case, this did not happen and so, given that Mr. Serem had failed to honour court summons, she proceeded to produce the photos before the court. In short, there were no investigations done to determine who exactly caused the unlawful death of the deceased herein. As stated, there is no direct or circumstantial evidence to connect the accused with the death of the deceased.

18. In the case of Republic v Kipkering Arap Koskei & Another [1949] 16 EACA 135, theCourt for Appeal for Eastern Africa held as follows:

“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. The burden of proving the facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”

19. That being the case, it therefore follows that the prosecution did not prove that the accused person herein was the one who caused the death of the deceased; despite having succeeded in establishing the death of the deceased and the cause of the said death. Having failed to do so, it is my considered view that the prosecution failed to prove all the elements of the offence of murder. It will therefore be an academic exercise to interrogate the issue as to whether the prosecution was able to prove malice aforethought.

20. From the foregoing, the upshot of this judgment is that the accused person herein is acquitted of the charge of murder.

21. It is so ordered.

Delivered, datedandsignedatEmbuthis9thday ofFebruary, 2022.

L. NJUGUNA

JUDGE

……………………………………….…..for the Accused

…………………………………………....….for the State