[2017] KEHC 9508 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

HIGH COURT CRIMINAL CASE NO. 45 OF 2011

REPUBLIC ………………….…PROSECUTOR

VERSUS

FELIX MUNYAO MAKENZIE ….…..ACCUSED

JUDGMENT

1. The accused FELIX MUNYAO MAKENZIE was charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal Code the particulars of which were that on 12th March, 2011 at Ongata Rongai Township within Kajiado County murdered HANNAH WANJIRU NDURUMO.

2. He pleaded not guilty to the said charges and on 5/3/2012 his trial commenced before Ombija J (as he then was) who heard the evidence of all the prosecution witnesses and put the accused on his defence before retiring from the judiciary. On 21/6/2016 Justice Lesiit issued directions under Sections 201(1) and 200 of the Criminal Procedure Code but further directed that the file be placed before me for further directions as the accused had indicated that he wanted the trial to start afresh.

3. On 26/9/2017 I issued further directions that the matter do proceed before me for hearing from where it had reached before Justice Ombija with leave to recall PW11 CPL NICKSON LUKWA to testify further and be cross examined by the defence which said order was reviewed since the intention of recalling the said witness was to clarify on the character of the accused in respect of an attempted escape from custody and the State promised not to raise the said issue in their submissions.

4. It must therefore be stated for record purposes that I did not have the advantage of hearing and seeing all the prosecution witnesses but have had the advantage of reading and analysis the typed copies of their evidence on record for purposes of this judgment.

PROSECUTION CASE

5. The deceased and the accused were staying together as wife and husband at Victoria Apartment within Ongata Rongai and as in any marriage at the times we are living in had its share of domestic challenges including assault, allegations of parental interference and infidelity on the part of the accused person which at some stage led to the parties living apart before coming back together against an alleged wishes of the parents of the deceased but with the attempted mediation by the parents of the accused.

6. PW1 LOISE NJERI MBURU the caretaker at the apartment wherein the accused lived with the deceased testified that in the month of January, 2011 the accused and the deceased moved together into Victoria Apartment 2nd floor Door No. 21 together with their two children. On 1/2/2011 at about 9. 00 p.m. the watchman PW2 went to her with information that there was a fight in House No. 21 between the accused and the deceased and that she sent PW2 to tell the accused to desist from quarreling. They stopped the fight and at 11. 00 a.m. there arose a second round of fight when according to PW2 the accused had wrestled the deceased down and in an attempt to separate them he was injured in the hand.

7. It was her further evidence that she went to the said house and observed that the deceased had injury and swollen left side of the face above the eye. She later on met the accused removing his things from the flat and when he asked him why PW2 informed her that the accused and the deceased he agreed to separate. The deceased stayed in the house for two days thereafter and a few days the deceased father came to the flat and informed the witness that the deceased was in a coma at Nairobi hospital. After two weeks she was discharged from the hospital and when PW1 went to visit her she informed her that the accused had formed the habit of beating her up but the last beating was excessive. On 28th April, 2011 the deceased daughter called her with information that the same was unwell and was later on pronounced dead. In cross examination she confirmed that the following Monday the deceased had left the flat walking.

8. PW2 BILDAD MOSOTI MIYOGO testified that on the material day the house help of the deceased called him and informed him that the accused was assaulting the deceased and when he went to the flat he found the accused kicking and assaulting the deceased on the ribs using his fist while the deceased was crying. He pulled the accused away from her and the same promised that he would not assault her again only to be called two hours later that the accused and the deceased were still fighting. This time when he responded he found the accused holding and kicking the deceased head against the floor. He separated them and the deceased who looked disoriented locked herself in the bedroom.

9. He stated further that the deceased gave her the phone which was in dispute which he passed to the accused who went out of the compound and came back with handcart and loaded his things away with the parting words “tell that woman that if she is not careful. I will kill her.” And for three days the deceased did not come out of her house up to Tuesday when she left and did not see her for about four weeks when she came back using a walking stick. It was his evidence under cross examination that after the accused left the compound their house help stayed for one and half weeks before leaving and thereafter the mother of the deceased acted as the maid.

10. PW3 DR ZEPHANIA KAMAU examined the accused on 4/6/2011 and found him fit to stand trial and further confirmed that he had no injuries on her body. On 14/4/2011 he examined the deceased on allegations that she had been assaulted by her husband and found that she had had injuries, a CT scan done showed multiple hemorrhage contusions in the right parietal area of the head, the upper limb was supported by a string and formed an opinion that the injuries which then were one month two days old had been caused by a blunt object and the degree thereof assessed as grievous harm. He stated that constant hit against a hard surface would cause the said injuries and in cross examination confirmed that a fall including from a moving vehicle could cause them too.

11. PW4 JOSEPH NDURUMA GITUAthe father of the deceased testified that on 1/3/2009 he got information that the deceased and the accused had problems so he sent his wife PW5 to go and find out what the issue was and was subsequently informed them that the accused wanted to have an intimate relationship with the maid and that the PW5 called for a meeting between the accused the deceased and the maid which did not please the accused thereby leading to a fight between the deceased and the accused. The deceased reported this fight to the police at Ongata Rongai.

12. He stated further that on 2/3/2009 he went to Ongata Rongai police station to confirm the status of the report and on 11/4/2009 he reported the matter since the police did not take the earlier report seriously to the chief who summoned the accused but the meeting did not take place. On 18/3/2009 he received a call from a doctor at Ongata Rongai Aga Khan clinic in respect of the deceased who was subsequently admitted in ICU for one week and was thereafter discharged on 11/4/2009 during which period of time neither the accused nor his family visited the deceased.

13. It was his further evidence that on 28/4/2012 PW5 called him and informed him that the deceased had not woken up and was thereafter pronounced dead. Under cross examination he stated that the deceased used to move houses at Ongata Rongai because she did not want to stay with the accused who was a stalker. This evidence was corroborated by PW5 TABITHA MUGUKE NDURUMA the mother of the deceased who stated that she was called by PW4 and given information on the deceased and upon reaching Nairobi hospital they found that she could not talk. It was her evidence that they left the deceased at the hospital and proceeded to her rental house where a child of the de ceased informed her that she had been beaten by the accused leading to her being unwell.

14. It was her evidence that upon discharge from the hospital she stayed with the deceased until 27th April, 2011 when the deceased informed her that she was very sick and was later on pronounced dead. It was her evidence that on 1/4/2009 the deceased had called her and informed her that she had problems at her house and when she responded to her call she spoke with the maid who informed her that the accused wanted to seduce her which accusations led to a fight between the accused and the deceased whereupon the accused swore to kill the deceased. The matter was reported to the police of Ongata but they took no action. On 3/4/2009 they reported the matter to the area chief on the recommendation of the police.

15. PW6 Chief Inspector WALTER BENGIa scene of crime officer visited the scene and took photographs while PW7 EUNICE MBULA KIMANZI the house help of the deceased and the accused stated that on 12th March, 2011 the accused asked the deceased for his mobile phone and the same did not respond. The couple returned to their bedroom and she heard commotion thereafter. The deceased then instructed her to call the caretaker to take their son away at which stage she saw the accused slapping the deceased. The caretaker came and separated the two. It was her evidence that later on the accused left the house carrying his belongings in a handcart. On 17th March, 2011 the deceased went to hospital.

16. PW8 – JAMES MUTURI THIONGO stated that the deceased used to work with him at Brook house school and that in 2007 she kept on asking for permission to go home early or to a chemist and upon inquiry what was wrong he was told that her husband was battering her. In the months of February – March 2011 she told him that the beatings had increased. On 28th April, 2011 he was informed of her death. It was his evidence in cross examination that he cared about the deceased as a staff who would sometime come to work with black eye and that she told him that she loved her husband and did not want him in trouble that is why she did not report him to the police.

17. PW9 DR. DAVID OLUOCH OLUNYAa consultant neurosurgeon at Nairobi hospital testified that he saw the deceased on 17th March, 2011 with a history of assault with bruises on the hands and stomach. A CT scan done confirmed that she had bleeding to the brain. With evidence of brain swelling. It was his evidence that the deceased did not tell her that she had fell from a moving matatu on 13th March, 2011. PW10 DR. JOHANSEN ODUOR conducted post mortem examination on the body of the deceased and formed an opinion that the cause of death was head injury due to trauma.

18. PW 11 CPL NICKSON LUKWAthe investigating officer testified that the accused and deceased had a confrontation over a cell phone call from a certain woman whom she claimed was the girlfriend of the accused leading to the accused throwing her against the wall. He subsequently arrested the accused and charged him with assault which was withdrawn upon the death of the deceased and the accused charged with the current offence.

DEFENCE CASE

19. When put on his defence the accused testified on oath and stated that he was married to the deceased in a customary marriage for a period of seven (7) to eight (8) years during which period they lived together at Rongai and they were blessed with two children one who was from the deceased previous relationship. It was his evidence that on11/3/2011 which was the deceased birthday they were supposed to go together for a wedding goat eating which did not happen since the deceased was working up to 12. 00 and when she called the accused to go for her he informed her that the function was over and when he got home he found the deceased upset and did not talk to him. The following day she refused to go with him for customer appreciation day at his place of work stating that she had something to attend to at home.

20. At 7. 30 a.m. a client called him inquiring for the time of the function and he thereafter went back to bed when he woke up he looked for his phone which rang in the bed where the deceased was sleeping but could not trace the same. He asked for the phone but the deceased declined to give it to him. He then took their son outside the bedroom to wear his shoe and on the way back met the deceased on the corridor who proceeded to lock herself in the toilet and said there goes his phone. This made him unhappy and when he asked her what the issue was all about she told him that he was pretending to had been talking to a client while it was not since she thought he was talking to some girl. She then told him that she wanted him out of the house to make life easy for both of them.

21. At that point his mobile phone rang from the deceased pocket, the phone rang again and he followed her to the bedroom to get the phone. The deceased then told him that he had nothing in the house save for his clothes and sent the house girl to go call the watchman. The phone rang again and to get the phone he sat on the deceased before their son came into the bedroom to ask him when they were leaving for the customer appreciation function. He then told her not to create a scene in the presence of their son to which she asked him who told him the son was his this caused him to slap her before the watchman pulled him out of the bedroom and when the watchman went to talk to her he heard him ask her why she had hit him.

22. He then heard her tell the maid to call the watchman since the accused things were ready. She then told the watchman that she had agreed to give him the phone on condition that he leaves her, she shortly thereafter threw a stool on him hitting him on the eye. The watchman gave him his phone at 12. 00 and he left the compound since that time he tried getting back to the house but was never allowed. On 18/3/2011 the deceased called him and informed him she was unwell and needed the medical card. He was later on called from Aga khan Rongai to take the medical card to enable them treat the deceased which he did and she was treated. She then sent him for some changing clothes and when he came back he was told that she needed CT scan which had to be done at the main Aga Khan but ended up at Nairobi hospital where she was admitted for three weeks during which period she could only call him when her parents were not with her.

23. He confirmed having been arrested in March on assault report and subsequently charged at Kibera but upon the death of the deceased which he read from the newspaper he was charged with the present offence. It was his evidence that he did not kill the deceased neither did he have any intention of killing or harming her since he loved her dearly. He stated that he did not hit the head of the deceased but only slapped her and that the deceased was insecure based on what had happened between her parents where another woman almost broke their marriage causing the children to be taken to their grandmother. He confirmed that there was an incidence involving him with a house girl when he leaned on her while picking up a toothbrush that had fallen leading to him leaving the house. Under cross examination he confirmed that on 12/3/2011 the house help was in the house and he saw the watchman and further that the deceased did not leave the house on the said day.

24. DW2 PHILLIP OKWARO SONGA a security guard at Ongata mall testified that on 10/11/2011 a lady who was unable to walk went next to the gate of Aga Khan hospital Rongai Branch and he held her to the clinic. DW3 BERNARD MBURU NDUNGI who used to sell second hand items stated that on 18/3/2011 saw a matatu move before a passenger had alighted causing her to fall hitting her head on the cemented stage. He assisted her to the gate of Aga khan hospital and left her there with the watchman.

25. DW4 DR. ANDREW KANYA GACHIE testified that he reviewed the documents in respect of this case and that it was stated that the deceased was assaulted on 12/3/2011 by her husband. There was documentation of her being admitted on 18/3/2011. It was his evidence that if you have severe head injury you cannot stay with it for several days since most patients would present symptoms within 24 hours. It was his evidence that the deceased did not show any immediate symptoms and was going to work and that the said injuries were so severe that she could not stay with them for six days. It was his evidence that the injuries of 12th could not have been severe enough since there was no hospitalization. It was his evidence that there must have been another injury on 18th which necessitated her hospitalization and admission. He stated that one could not live with bleeding for 4-5 hours and therefore it was unlikely that those injuries were present on 12th.

SUBMISSIONS

26. At the close of the defence case the parties filed written submissions in which it was submitted that the defence offered by the defence was made up story, an afterthought to cover-up for his assault toward the deceased which lead to her death. It was submitted that the evidence of PW1, PW2 and PW3 placed the accused at the scene of crime. It was submitted further that malice aforethought was proved by witnesses who gave evidence that the accused had a tendency of assaulting the deceased for which she recorded a statement with the police. It was submitted that the defence witnesses contradicted themselves and that Dr. Andrew Kanyi who never performed post mortem examination on the deceased based his report on the false story that the deceased fell for a moving matatu.

27. On behalf of the accused it was submitted that though there was some physical altercation between the deceased and the accused on 12/3/2011, it was based on the action of the deceased refusal to hand over the accused mobile phone to him, the accused admitted slapping the deceased and wrestled with her to get the phone but denied any ill motive. It was therefore submitted that the prosecution did not prove malice aforethought. It was submitted that the accused actions including taking the deceased to hospital and using his medical card is a pointer to his innocence. It was submitted that Dr. Kanyi’s evidence ruled out the possibility of the deceased having died as a result of the action on the part of the accused on 12th March, 2011 and therefore the defence had raised a reasonable doubt as to the cause of death. It was finally submitted that the accused had been charged with murder of the deceased on 12th March, 2011 yet the prosecution evidence shows that the deceased actually died on 28th of April, 2011.

ANALYSIS AND DETERMINATION

28. For the prosecution to prove a charge of murder as provided for under Section 203 of the Penal Code the following ingredients must be established beyond reasonable doubt by the prosecution:-

a. The fact and the cause of death.

b. Proof that the said death was as a result of unlawful act or omission on the part of the accused person.

c. That the said unlawful act or omission was committed with malice aforethought.

29. Malice aforethought has been defined by the Court of Appeal in NZUKI v REPUBLIC (1993) KLR 171 as quoted in REPUBLIC v MARTIN KINYUA NANCY EMBU HIGH COURT CRIMINAL CASE NO. 14 OF 2011.

Intention to cause death

Intention to cause grievous bodily harm.

Where accused knows that there is a risk that death or grievous bodily harm will ensure from his acts and commits them without lawful excuse. It does not matter whether the accused desires those to ensure or not. The mere fact that the accused conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder.”

30. In this matter the fact and the cause of death of the deceased is not in doubt. PW4 and PW5 confirmed that the deceased died on 28th April, 2011 at her house in Ongata Rongai. The accused in his defence confirmed that he was called By a co-worker of the deceased who gave him the information about her death and after four days he confirmed the same when he saw her in the newspaper which I presumed the obituary section. PW10 Dr. Johansen Oduor performed postmortem examination on the body of the deceased on 29/4/2011 and in the nervous system found right sided interocerebral hemorrhage on parietal region signs of raised intracranial pressure including flattened gyri narrow suici cerebeclum tonsilor groving and as a result of the said examination he formed an opinion that the cause of death was due to blunt force trauma. I therefore find that the first ingredient of murder was proved by the prosecution beyond any reasonable doubt.

31. On whether the said death was caused by the accused through unlawful act or omission:- there is evidence on record that there was a fight between the accused and the deceased on the 12th of March 2011 wherein the accused physically assaulted the deceased. According to PW1 there were two rounds of fight between the accused and the deceased at 9. 00 a.m. and 11. 00 a.m. which led to her hospitalized for two weeks. PW2 entered the bedroom of the accused and the deceased and found the accused assaulting and kicking the decease. Two hours later he was called again and this time found the accused kicking the head of the deceased against the floor and when he separated them the deceased appeared disoriented with a swollen face and head. PW3 examined the deceased on 14/4/2011 on an allegation of assault and CT Scan conducted confirmed multiple hemorrhage contusion in the right parietal area of the head with the degree of injury classified as grievous harm. This evidence was corroborated by PW9 who attended to the deceased from 17th March, 2011 to 12th April, 2011 who confirmed that the deceased had not told him that she had fell from a moving matatu and further stated that the history from the patient was that she had been assaulted and the injuries were consistent with assault.

32. This medical evidence was challenged by that of DW4 DR. ANDREW KANYI GACHIE who confirmed not having seen the deceased and only made his conclusion based on the review of the documents provided to him and on the evidence of DW3 who alleged that the deceased on 18/3/2011 fell down from a matatu and hit her head. This evidence is contradicted in material particulars by that of DW2 the watchman at the gate whose evidence was that the lady went to the gate alone. The two witnesses were unable to agree on the type of clothes the deceased was wearing on the material day. Of much interest to the court is how the said witnesses were secured to testify in favour of the accused thereby raising doubt at their honesty.

33. Since the accused has admitted fighting the deceased on the material day which resulted into some injuries, thereby corroborating the evidence of PW1, PW2 and PW7 their house help the only issue in dispute is as to whether there was any intervening circumstances on 18th of March that broke the casual chain and whether the death of the deceased would not have occurred but for the conduct of the accused?

34. The deceased on 2nd April, 2011 recorded a statement with the police which statement was produced as exhibit 9 under the provisions of Section 33 of the Evidence Act in which she stated that the accused assaulted her with blows and kicks and hit her head several times on the wall. She confirmed the evidence already tendered before the court that she did not leave the house for work until 15/3/2011 when she went on duty and collapsed at her place of work before going back home. She described the event of 18th March, 2011 which contradicted that of DW2 and DW3. As at 2/4/2011 the deceased did not know that she would die and I therefore see no reason why she would have omitted the aspect of her falling from a matatu in her statement to the police.

35. From the evidence tendered I have come to the conclusion that the injuries inflicted on the deceased by the accused person on 12/3/2011 sufficiently contributed to the death of the deceased on 28th April 2011 and therefore find no defect on the charge sheet herein. I therefore find and hold that the death of the deceased was caused by unlawful act on the part of the accused person.

36. The final issue for determination is whether the said unlawful act was caused by malice aforethought? From the evidence tendered the prosecution has proved beyond reasonable doubt that the accused caused grievous harm to the deceased as per the documents tendered and that the death of the deceased was as a result of the said grievous harm. It is also clear that the accused had knowledge that his said actions could cause death. This is clear from the evidence of PW2 to the effect that while taking away his things his parting shot was “Tell that woman that if she is not careful, I will kill her”. It is also clear from the evidence tendered that the assault was meted upon the deceased by the accused twice on this particular day in addition to the previous battering.

37. I am unable to find any justifiable cause for the action of the accused. The court is alive to the fact that our mobile phones have become our “shadow” and the mere fact that the deceased had held onto the cell phone of accused and refused to hand over the same to him cannot justify the nature of injuries inflicted upon the deceased who according to the evidence of PW8 despite the fact that the accused used to batter her, she declined to report him to authority to protect him. if indeed the deceased had fallen from a matatu, going by her previous conduct of protecting the accused, this would have formed the basis of her report to the police which was not so this time around.

38. In the final analysis I am satisfied that the prosecution has proved its case against the accused beyond any reasonable doubt and reject the accused defence that there was an intervening circumstance on 18th March 2011 as the two defence witnesses contradicted each other on the same and the said defence is displaced by prosecution witnesses. Further Dr. Kanyi who had not examined the deceased only came to a conclusion that:-

“It is apparent that the Late Hannah may have died of injuries sustained through assault (highly unlikely since she was not hospitalized immediately and stayed at home for six days. Most signs and symptoms will present within 24 hours and will require medical attention”

He therefore did not rule out that the death of the deceased resulted from the assault on her by the accused.

39. The accused actions of assaulting the deceased over a mobile phone as stated herein sitting over her and valuing his phone more than her life flies on the face of his evidence that he loved her dearly and did not wish her any harm. If the accused had knowledge of the deceased insecurity as a result of her past, that should have been the more reason for him to treat her with velvet hands to give her reassurance that he was a better man than her pastor father whom he blames for all their marital problems.

40. I therefore find the accused guilty of the murder of HANNAH WANJIRU NDURUMO contrary to Section 203 of the Penal Code and convict the same accordingly.

Dated, Delivered And Signed At Nairobi This 9th Day Of October, 2017.

……………....

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Meroka for the State

Mr. Anan for the Accused

Accused person present

Court Assistant Paul