[2022] KEHC 2272 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J)

CRIMINAL CASE (MURDER) NO. E020 OF 2021

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

VERSUS

HENRY KAITHIA.......................................................................................ACCUSED

JUDGMENT

1) HENRY KAITHIA (Accused) is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that

On 02nd February 2021 at Shauri Yako slums within Mutuati Township Amwathi 1 Sub location Kabachi Location, Igembe North Sub-County within Meru County murdered JULIUS MITHIKA.

PROSECUTION CASE

2) On 02nd February, 2021, Accused, PW2 Joseph Muchiri and Julius Mithika were partaking alcohol at a bar in Shauri Yako slums within Mutuati Township. According to PW1 Isaac Mbae Katheru, PW2 Joseph Muchiri and PW3 Ibrahim Mukaria, Accused for no apparent reason attacked Julius Mithika by hitting him once with a stick on the back of the head after which he escaped with the murder weapon. Deceased’s son PW1 Isaac Mbae Katheru and PW3 Ibrahim Mukaria escorted the Julius Mithika to hospital where he died while receiving treatment.

3) The matter was reported to police and PW5 CPC Fredrick Pete conducted investigations and arrested Accused on the 12th March, 2021 and caused him to be charged.

Defence Case

4) Accused conceded that he was partaking alcohol at bar in Shauri Yako slums with the deceased on the material date. He stated that deceased was waylaid by one Ayub whose beer deceased had spilled and that it was the said Ayub that assaulted the deceased.

ANALYSIS AND FINDINGS

5) 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.

6) Section 203 and 204of the Penal Code under which the accused is 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.

7) 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.”

(a) The death of the deceased

8) The postmortem form PEXH.4 filled by PW4 Dr. Saidi Bule on 12th February, 2021 reveals that the deceased died of excessive intracerebral bleeding due to basal skull and parietal skull fractures.

(b) Proof thataccused person committed the unlawful act which caused the death of the deceased

9) PW1 Isaac Mbae Katheru, PW2 Joseph Muchiri and PW3 Ibrahim Mukaria identified Accused as the person that attacked the deceased and hit him once on the back of the head with a stick. Accused was well known to the three witnesses. The incident took place around 06. 00 pm and I find that there existed conducive conditions for recognition of the Accused.

10) From the foregoing, I find that Accused’s defense that deceased was attacked by one Ayub does not cast doubt on the well corroborated prosecution case that Accused was the one that caused the basal skull and parietal skull fractures that led to the death of the deceased.

c)Malice aforethought

11) Having found that the prosecution has proved actus reus, the issue for determination is whether malice aforethought can be inferred now that a single blow to deceased’s head caused his death.

12) The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves 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 from custody of any person who has committed or attempted to commit a felony.”

13) When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under section 202 Penal Code which is punishable under section 205 Penal Code by a term of imprisonment extending up to life.

14) In Morris Aluoch v Republic Cr. Appeal No. 47 of 1996[1997] eKLR), the Court of Appeal cited the case of REX VS TUBERE S/O OCHEN (1945) 12 EACA 63 with approval where it was in stated as follows:

“If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days late.

15) In this case, there is no evidence of repeated blows. This factor leads me to believe that the blow was an isolated one probably without any malice aforethought on the part of the Accused. In other words, it was likely that the Accused did not intend to kill the deceased but intended simply to hit him once.

16) The evidence as adduced by the prosecution established beyond reasonable doubt the act of unlawful killing of the deceased by the accused person herein without malice aforethought. Sections 179 of the Criminal Procedure Code stipulates:

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but he remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”

17) As a result, Accused is found guilty of a lesser charge of manslaughter contrary to Section 202 (1) of the Penal Code as read with Section 205 of the Penal Code and is convicted accordingly.

DELIVERED AT MERU THIS 10TH DAY OF FEBRUARY 2022

WAMAE. T. W. CHERERE

JUDGE

Appearances

Court Assistant - Kinoti

Accused - Present

For the Accused persons - Mr. Sandi Advocate

For the State - Ms. Mwaniki