[2017] KEHC 950 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO.19 OF 2012

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

- V E R S U S –

EUNICE KAARI NTUTUAMWARI.............................ACCUSED

J U D G M E N T

Eunice Kaari Ntutuamwarifaces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the charge are that on 22/2/2012 at Kongo Aceke Village, Kaaga Sub Location, Imenti North District, murdered Titus Mutabari Mairanyi alias Kimathi. I will refer to the deceased as Titus.

In support of its case, the prosecution called a total of eleven (11) witnesses. The State was represented by learned counsel Mr. Mulochi. When she was called upon to defend herself, accused testified on oath. She did not call any other witness. The learned defence counsel was Mr. E. Kimathi.

PW1, Dr. Brian Bett of Meru Level 5 Hospital produced the postmortem report on behalf of Dr. Makandi who performed the postmortem on the deceased. The Doctor found that the deceased sustained a penetrating wound on the left side of the neck on lateral aspect 4cm long and that the carotid and jugular veins had been severed. The Doctor formed the opinion that the cause of death was haemorhage due to a penetrating stab wound.

PW2 Stanley Kimaita was declared a hostile witness and therefore his evidence is worthless.

PW3, Rosemary Makena, was on 22/2/2012, selling changaa in her house at Kampakia, in her house where there were many people who included the deceased, Titus, Kimata (PW2); that she was washing the house when she heard noises and on going out, found Titus had been stabbed on the neck and upon enquiring who had stabbed Titus, was told it was Eunice Kaari, his wife, but that she denied having stabbed Titus. PW3 knew that the accused and Titus lived together on and off and that earlier that day, Kaari had come to look for Titus and that Titus used to sell the accused’s clothing and sufurias. That they took Titus to hospital but was pronounced dead on arrival and she called the police.

PW4 Isaiah Nturangi, a cousin to Titus received a call on 23/12/2012 informing him that Titus had been killed. On 28/2/2012, he identified Titus’ body to the Doctor before postmortem was done.

PW5 Naphtali Nthurubi, a cousin to accused heard screams from the house of Rose, PW3 where somebody was shouting that Kaari had killed the husband; he rushed to PW3’s house, found Titus had fallen outside and was dead and accused was seated at the veranda.

PW6 Josephine Mugambi Mwarania is a niece to the accused. She was in her house on 22/2/2012 when accused went there and asked PW6 if she had seen accused’s husband Titus but PW6 told accused that he had been there earlier and left. When going to the Dispensary, the accused caught up with her and they went to Rose’s house (PW3) where they found Titus drinking alcohol with other people; that the accused asked Titus for a bag and a fight broke out and she left as it continued. She later heard that the accused had killed Titus, went back to the scene and confirmed the death. She said that accused and Titus had lived together for 10 years and that both were drunkards and that accused was drunk on that day.

PW7 CPL Peter Kimani was the officer in charge Kampakia Police Post. He received a call from PW3 who reported that Eunice had stabbed her husband on the neck and they needed assistance to take him to hospital; there was no available vehicle. He went to the scene at 10. 30 a.m. and found that Titus had died and there was a wheelbarrow where the body was on a path; that he visited PW3’s home where the incident occurred and found a lot of blood; PW7 was with scenes of crime officer who took photographs of the scene; the knife used in the stabbing was recovered at the home of PW3 and had blood stains. PW7 attended the postmortem and Titus’ blood was drawn to be taken to the Government Analyst for further investigations. PW7 denied that accused looked drunk at the time of arrest.

PW8 CIP Patrick Mwatha was the investigating officer in this case. He received a call about the assault, went to the scene about 1. 00 a.m., found accused at the Kampakia Police Post. He found Titus’ body on a footpath with an injury to the neck and a wheelbarrow next to the body – (P.Ex.No.2). He also saw the knife recovered by P.C. Henry. During the investigations, she learnt that the accused went looking for Titus for allegedly stealing her clothes, a fight broke out and that accused took a kitchen knife and stabbed Titus.

PW9 PC Gabriel Koskei was the scenes of crime officer who took photograph of the scene and prepared a report to this effect (P.Exh.3 & 4).

PW10 PC Driver Elly Hamisi of Kampalakia Police Post accompanied PW7 to the scene of crime where Titus was stabbed; when at the scene, one Stanley showed him where the murder weapon, a knife (PEX.14), had been thrown in a flower bed and he gave it to PW10 who he in turn handed it to the investigating officer.

Caroline Njoki Wamea, (PW11) a Senior Principal Chemist, received blood samples of Titus and that of accused, a kitchen knife wrapped in an envelope whereby she was required to determine the source of the blood stains on the knife; she found the knife to be heavily stained with human blood of which she did a DNA analysis after which he concluded that it matched the DNA of Titus.

When called upon to defend herself, accused stated on oath that on 21/2/2012, she returned home about 4. 00 p.m. to find her house broken into by removing of 2 frames and her foodstuffs and child’s clothes were missing. She suspected her husband, Titus. Next day, Titus came home at 7. 00 a.m., she asked him about the missing things but he told her not to disturb him. She went to report to the chief but did not find him. She looked for her niece PW10, to find out where Titus was and asked her to escort her to Rose’s house (PW3) to see if she could recover the child’s clothes. They found Titus at PW3’s place, she tried to persuade him to return the child’s clothes but he became abusive and threatened to kill her; that he took a knife from some utensils which were nearby, stabbed her on the left hand and thigh but people intervened and got hold of her because she had fallen. On getting up she noted that Titus was bleeding on the neck; that she was arrested, taken her to hospital for treatment but police took away the treatment notes.

After the close of the defence case, Mr. Kimathi submitted that the prosecution did not prove its case to the required standard beyond reasonable doubt; that there was a fight and the accused also got injured; that the incident having been at a changaa den, some witnesses were intoxicated and that Titus received only one stab wound.

In reply Mr. Mulochi argued that the prosecution had proved its case beyond reasonable doubt in that the accused was seen stabbing Titus by PW5 while PW3 and 6 witnessed the fight.

As regards malice aforethought counsel left it to court to decide.

The accused was charged for the offence of murder under section 203 of the Penal Code. It is the duty of the prosecution to prove beyond reasonable doubt.

(a) The death and cause of the deceased’s death;

(b) That the death of deceased was caused by the unlawful act or omission of the accused;

(c) That the accused had malice aforethought or the intention to cause grievous harm or kill.

PW3, 4, 5 and 6 saw the deceased after he had been stabbed. The police officers who went to the scene, PW7, 8, 9 and 10 only found the lifeless body of Titus. Dr. Makandi corroborated their evidence that Titus received only one stab wound to the neck which according to the doctor, had severed the carotid artery and jugular vein. The cause of death was due to haemorhage. Even the accused admitted that she saw Titus bleeding after their alleged fight. The death of Titus and the cause are not in doubt.

The next question to consider is whether it is the accused who inflicted the said injuries on Titus. PW6, a niece to the accused accompanied the accused to PW3’s house to look for Titus and whether she could recover the child’s clothes. The accused admitted that PW6’s testimony was truthful; that she had been looking for Titus since early morning. PW3 also alluded to the issue of accused alleging that Titus used to steal accused’s clothes and sufurias. According to PW6, when the accused asked Titus for the clothes, or bag, a fight broke out. The officers who came to the scene, PW7 and 8, during their investigations, established that indeed there was an allegation of Titus having sold some clothes and bag. There is no doubt that the source of the dispute between accused and her husband Titus on the fateful day was the allegation that Titus had stolen a bag with clothes.

I am satisfied that from the overwhelming evidence that there was a quarrel over the said items which deteriorated in a fight between accused and Titus.

Interesting enough, none of the witnesses saw how the deceased came to be stabbed. However right from the onset, when PW3 arrived where there were noises in her home, she was informed by those present that it is the accused who had stabbed Titus. Similarly, PW5, went to PW3’s house on hearing somebody scream that “wooi, Kaari has killed her husband.”

The accused narrated how Titus took a knife and stabbed her. She avoided stating how Titus got injured yet it is only accused and Titus who were in a scuffle. Besides, nowhere in the prosecution case was it alleged that the accused was injured or taken to hospital for treatment. If the police took PW1’s treatment notes, she has been on bond, represented by counsel and could have procured the copies. There was no allegation or question put to PW3 that there were utensils nearby from which Titus snatched a knife. The weapon used had even been concealed had not somebody pointed it to PW10.

I am satisfied beyond any doubt that there was a scuffle between Titus and accused. The accused was armed with a knife with which she stabbed Titus during their fight.

PW6 told the court that accused and Titus were both drunkards. Indeed the accused admitted that she tried to go to the changaa den which is PW3’s home. PW3 admitted that fact. However, there is totally no evidence on record to suggest that accused was drunk at the time she went in search of Titus. Though PW6 said accused looked drunk, nowhere in her defence did she suggest that she was drunk. She clearly narrated how she woke up and went in search of Titus. PW7 and 8 denied that the accused was drunk. It is the defence counsel who submitted that the accused was intoxicated but I find no evidence of intoxication on record.

Intoxication has been provided for as a defence to a criminal charge under Section 13 of the Penal Code which provides as follows:

“1. Save as provided in this section, intoxication shall not constitute a defence to any criminal charge;

2. Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission;

3. Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code (Cap. 75) relating to insanity shall apply;

4. Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence;

5. For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs”.

It is clear from the above provision that the said defence of intoxication is very narrow in its application. Section 13(4) of the Penal Code cannot be read in isolation but has to be read together with Section 13(1), (2)(a) and (b) of the Penal Code. It was not enough for the defence to allege in its submissions that accused was intoxicated. The defence could be availed to the accused if it was demonstrated that she was intoxicated; that she did not know what she was doing or that it was wrong or that her state of drunkenness was caused without her consent by the malicious intentional act of another person or that she was by reason of intoxication, insane or temporarily insane.

In the case of Cheminingwa v Republic EACA Cr.No.450/1955, the Court of Appeal of E.A. Stated:

“It is of course correct that if the accused seeks to set up a defence of insanity by reason of intoxication, the burden of establishing the defence rests upon him in that he must at least demonstrate the probability of what he seeks to prove. But if the plea is merely that the accused was by reason of intoxication incapable of forming the specific intention required to constitute the offence charged, it is a misdirection of the trial court lays the onus of establishing this upon the accused;”

In the later decision of Kupele Ole Kitaiga v Republic (2009) (Cr.26/2007)the court said as follows:

“A clear message must also go out to those of the appellants ilk who deliberately induce drunkenness as a cover up for cruel acts. Unless a plea of intoxication accords with the provision of Section 13 of the Penal Code, it will not avail an accused and does not avail the appellant in this particular case….”

In this case, the defence of intoxication cannot avail the accused because she never raised it and it cannot be raised in submissions. The accused was in her proper mental faculties when she went in search of Titus in a bid to recover her missing child’s clothing.

Before the accused stabbed Titus, there was a quarrel then a fight ensued between them. Therefore, there is no evidence that the accused had planned to cause any injury to Titus and therefore malice aforethought cannot be inferred from her actions. Besides, the accused stabbed Titus only once although it was in a very delicate part of the body.

In the end, I find that the prosecution has not proved malice aforethought against the accused person and therefore the offence of murder has not been proved to the required standard of beyond reasonable doubt. I acquit accused of the charge of murder under section 203 of the Penal Code. However, I find that the accused unlawfully caused the death of Titus and I find her guilty of the charge of manslaughter contrary to section 202 of the Penal Code and convict her accordingly.

DatedandSigned at Nyahururu this 29thday of November, 2017.

………………….

R.P.V. Wendoh

JUDGE

Delivered by JUSTICE A. MABEYA atMERU this 7TH day of DECEMBER 2017.