[2022] KEHC 12120 (KLR)

Republic v FK & another (Criminal Case 66 of 2019) [2022] KEHC 12120 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12120 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 66 of 2019

TW Cherere, J

June 9, 2022

Between

Republic

Prosecution

and

FK

1st Accused

James Njuki

2nd Accused

Judgment

1. Fridah Kananu and James Njuki (Accused 1 and 2 respectively) are charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code.The particulars are that on the 10. 08. 2019 at Kidani Location, Igembe South sub-county within Meru County murdered Martin Mwenda1. Accused persons denied the offence. PW2RM, a minor aged 7 years stated that he was the son of the 11st Accused and Martin Mwenda (deceased). He stated that he lives with his grandmother one Mukiri who took him in together with his siblings Daisy and Evans after their mother, Accused 1 herein was charged. He recalled that on the material day, his father Martin Mwenda (deceased) who came home infrequently arrived home and finding Accused 1, a fight ensued as Accused 1 attempted to throw Mwenda out of the house but he was resisting. That as they were fighting, Accused 2 arrived came in armed with a stick worth which he hit Mwenda on the head and held him as Accused 1 also hit him on the head with a stick that had a nail attached to it. That thereafter, Accused 1 and 2 dragged Mwenda and dumped him beside the road.

3. PW3 PC Albunus Kivilu visited the scene of crime at about 08. 00 pm on the material night and found the body of Martin Mwenda lying about 15 metres from Accused 1’s house. He removed the body to the mortuary. 5 days later, PW2 was escorted to the police station by his relatives and reported that his father Martin Mwenda had been beaten with wooden sticks by his mother, 1st Accused herein and Accused 2.

4. An autopsy on Martin Mwenda’s body was conducted 20th August, 2019 by Dr. Kariuki and the Postmortem form tendered as PEXH. 1 reveals that Martin Mwenda suffered scratch marks and bruises on both arms, chest, neck and forehead and frontal subdural hematoma and swelling of brain. An opinion was formed that he died ofdied of cardiopulmonary arrest due to blunt force head injury with subdural hematoma and swelling of brain.

Defence Case 5. Accused 1 in her sworn statement denied the offence. She stated that on the material date, she accompanied her husband Martin Mwenda to a drinking joint and they both partook of alcohol. She said she returned home and prepared supper for her children and when Mwenda arrived home at about 7:30pm, she declined his request to accompany him to the drinking joint and Mwenda got exasperated and poured the food she had prepared and held her by her neck in an attempt to beat her. That they struggled and both fell and in the process she was injured on her head and Mwenda bit her left hand (human bite scar visible on the hand) and left breast. That she felt a lot of pain and picking up a stone and hit him and after he released her, she ran away and later returned to the house and slept with her children. The following morning at about 06:00 am, she went to look for Mwenda to get money for breakfast but she found him lying outside the gate beside the road. A closer revealed that he was unresponsive and appeared dead. She reported the incident to police who visited the scene and removed the body to the morgue after which she was arrested and subsequently charged.

6. James Njuki, 2nd accused denied the offence. He stated that he was arrested on 09th December, 2019 and charged with an offence that he knew nothing about.

Analysis and determination 7. Section 203 and 204 of the Penal Code under which the Accused persons are charged provide for the offence of murder and the punishment for it. They require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased through malice aforethought. The sections read as follows:“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.204. Any person who is convicted of murder shall be sentenced to death.”

8. I have considered all the evidence availed in this case as set out above and the issue in question is whether the prosecution has proved the death of the deceased; that Accused caused the death and that he was actuated by malice.

Death of Mwenda 9. The postmortem form PEXH. 1 reveals that Mwenda suffered scratch marks and bruises on both arms, chest, neck and forehead and frontal subdural hematoma and swelling of brain. An opinion was formed that he died of died of cardiopulmonary arrest due to blunt force head injury with subdural hematoma and swelling of brain.

(b) Proof that accused persons committed the unlawful act which caused the death of Mwenda 10. The law is very clear that every homicide is unlawful unless authorized by law or excusable under the law. That proposition was elucidated in the case of Guzambizi Wesonga v Republic [1948] 15 EACA 63where the court held:“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable, it must have been under justifiable circumstances, for example in self-defence or in defence of property.”

11. Accused 1 did not deny that her son PW2 was at home on the date and time of the incident. Evidence by PW2 that Mwenda was hit on the head by both Accused persons with a stick has been corroborated by medical evidence which reveals he died of cardiopulmonary arrest caused by blunt force to the head which caused bleeding and swelling of brain.

12. PW2 stated that he knew Accused 2 well as he used to frequent their home when Mwenda, their father was away and there was therefore no possibility that he was mistaken for another person. PW2 identified the 2 Accused persons as the persons that caused the fatal injuries to Mwenda. His evidence that they also dragged him from scene of crime to the road can be explained from the numerous bruises and scratch marks on both arms, chest, neck and forehead.

13. From the foregoing analysis, I find that the summing up of the prosecution case points to the conclusion that Mwenda was killed by both Accused persons.

c) Malice aforethought 14. Section 206 of the penal Code as follows; -206 Malice Aforethought shall be deemed to be established by evidence proving any one or more of the Following circumstances-(a)An intention to cause the death of or to do grievous 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 the death of or grievous harm to some person whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)An intent to commit a felony;(d)An intention by the act or omission to facilitate the flight or escape of any person who has committed or attempted to commit a felony

15. Before an act can be murder, it must be committed with intention to cause death or to cause grievous bodily harm where accused knows that there is a risk that death or grievous bodily harm will ensue from his acts and commits them without lawful excuse. (see Nzuki vs Republic[1993] KLR 171).

16. The defence pleaded self defence on the part of Accused 1 and cited Palmer v Republic [1971] AC 814, Republic v Mcinnes 55 CR. Appeal R551 on the principle governing self defence in Kenya and use of excessive force to cause death or do grievous harm to the victim of murder. Accused 2 arrived at the scene as the fight between Accused 1 and Mwenda was ongoing but there is evidence that he also assaulted Mwenda.

17. The circumstances of this case demonstrate that the assault on Mwenda was not premeditated and I therefore find both Accused persons not guityof murder but find them guilty of a lesser offence of manslaughter contrary to Section 202 (1) of the Penal Code as read with Section 205 of the Penal Code and both are convicted accordingly.

DELIVERED AT MERU THIS 09TH DAY OF JUNE 2022WAMAE. T. W. CHEREREJUDGECourt Assistant - KinotiAccused 1 & 2 - PresentFor the Accused - Ms. Maore AdvocateFor the State- Ms. Mwaniki (PPC)