[2017] KEHC 9668 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CRIMINAL CASE NO. 57 OF 2013

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

VERSUS

ISAACK MOMANYI MAKWORO...................................................ACCUSED

RULING

1. The accused ISAACK MOMANYI MAKWORO 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 21st day of May, 2013 at Umoja Innercore Estate in Nairobi within Nairobi County murdered JULIUS MWANGI MAINA.

2. He pleaded not guilty to the said charges and to prove its case the prosecution called a total of fourteen witnesses and at the close of the prosecution case both the prosecution and defence opted not to make any submissions and left it to the court.

3. At this stage of the proceedings under Section 306 of the Criminal Procedure Code the court is called upon to make a determination as to whether the prosecution has established a prima facie case or not so as to either return a verdict of not guilty or to put the accused on his defence as was stated in the case of RAMANLAL TRAMBAKLAL BHATT v REPUBLIC [1957] EA 332and that is to say whether the court based on the prosecution evidence would convict the accused person should he opt to exercise his right under Article 50(1) (i) to remain silent and to testify.

4. The starting point in the determination of this matter therefore is analysis of the prosecution case. PW1 JANET GESARE MYAMBANI a sister to the accused person testified that on the material day at 3. 30 p.m. the accused called her on phone and informed her that she was going to die through a road traffic accident and therefore advised her to kneel down and pray and to notify their mother and brother. She requested him to give the phone to the house help which he did and the house help told her that he had ordered her together with her four year old son to kneel down and requested her to go to the house immediately. She then decided to call her landlady PW3 who informed her that the accused needed medical attention.

5. It was her further evidence that when she got to her house she found the deceased talking to the accused person and shortly saw the deceased step backwards as if in pain though she did not see what happened. It was her evidence that when she came from her place of work she found the accused talking to the deceased in his house before he left for her house.

6. PW2 PIUS NYAMBANE the father of the accused testified and corroborated PW1’s evidence that he was called by the same and informed that the accused was acting and talking as if he had unsound mind. He traveled to Nairobi and found the accused missing. He was later found in Kisii town and was subsequently taken to a traditional doctor since in 2003 and 2009 he had been treated traditionally. He thereafter took the accused to the police station where he was arrested and escorted to Nairobi.

7. PW3 ELIZABETH WAITHIRA ONYIEGO an analyst at the government laboratory did a DNA analysis on the items forwarded to them and concluded that the knife which was found at the scene matched the blood sample collected from the deceased.

8. PW 4 MARY ALICE WANJIRU MAINA confirmed that PW1 called and together with the deceased rushed to the flat wherein PW1 lived with the accused and invited the accused to the house to wait for his sister and as he was talking to the deceased he stated that he wanted to be saved. She stated that when PW1 arrived from her place of work the accused followed her to her flat after she had told him that she wanted to take him to Mama Lucy Hospital while leaving the deceased in his house. She thereafter went to the gate to wait for the accused and PW1 only to hear PW1 calling for assistance that the deceased had been stabbed. It was her evidence that while they went for the accused at his sister’s house he was not violent and walked with the deceased while holding his head.

9. PW5 SHEM KIMONDO MWANGI the son of the deceased confirmed that the accused was at their house at some stage while he was in his bedroom and that at about 4. 30 p.m. he heard PW1 scream that the deceased had been stabbed. He rushed to the scene and found the door locked which he pushed and when the accused saw him he rushed towards him causing him to run to the second floor with the accused following him only for the accused to fall down. When he entered PW1’s house he found the deceased on the corridor inside the house and that at the time he was stabbed it was only the deceased and him who were in the said house. PW6 SAMSON MAINA MWANGI corroborated the evidence and stated that he went to the house of PW1 and found the deceased lying on the floor with blood oozing from his chest.

10. PW6 CORP MILLICENT OUMA and PW9 PC CLEMENT MUTHOKA received the report that the deceased had been stabbed and was receiving treatment together with the accused at Mama Lucy Hospital where they found both of them receiving treatment and that PW1 informed PW6 that the accused had a mental problem. He had bruises on the hip and buttock which he sustained while trying to escape from a second floor of a building. PW7 DR. MARY MUGANIA performed post mortem on the body of the deceased who had stabbed wound on the lower chest and formed opinion that the cause of death was penetrating injuries secondary to stabbed wound. She stated that it was a single deep penetrating stabbed wound. PW8 PC PHILLIP CHIVOLIrearrested the accused from Kisii from PW14 SGT ABDI RASHID who had been handed over the accused by his father on an allegation that he had committed murder in Nairobi.

11. PW8 DR. GEORGINA KAMUNGE examined the accused on 6/6/2013 and formed an opinion that the same was not fit to plead though she recommended that he required the benefit of inpatient care for which he was admitted on 22/7/2013 and on 10/10/2013 was found fit to stand trial. It was her evidence that the accused’s condition can be made stable after treatment but will recur in his lifetime. PW14 DR. JOHN NGUGI GATERE stated that the accused was taken to Mathare National Hospital on 18/5/2015 though he had earlier been seen on 30/5/2013 and 3/6/2013 but could not be assessed as he was mute. He confirmed that the accused as admitted on 22/7/2013 while still mute and that at some point he attempted to commit suicide and upon treatment on 11/10/2013 he was found fit to stand trial. On 3/11/2013 he was found to had relapsed and treatment was commenced again and on 18/5/2014 was found to be of normal mental status. He formed an opinion that the accused was suffering from a major depressive disorder at the time of the commission of the offence and was not in his normal senses.

12. To sustain a conviction on a charge of murder the prosecution is required to prove beyond any reasonable doubt the following ingredients of the offence:-

a)The fact and the cause of death.

b)That the said death was caused by unlawful act of omission or commission on the part of the accused person

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

13. The fact and cause of death of the deceased is not in dispute. The deceased died as a result of stab wounds inflicted upon him on the material day and the fact of the said death was confirmed by PW1, PW2, PW4, PW5, PW6 while PW7 DR MARY MUGANIA concluded that the cause of death was penetrating injuries to the chest secondary to the stabbed wounds. I therefore find and hold that the prosecution has proved beyond reasonable doubt the fact and the cause of death of the deceased.

14. On whether the said death was caused by the accused person, the evidence tendered before the court points beyond any reasonable doubt to the accused person. He was the only person who was with the deceased at the house of PW1 when the same was stabbed. PW3 the wife of the deceased confirmed that the accused had earlier been with the deceased in their house and PW1 saw the accused talking with the deceased before the same shouted that he had been stabbed and she raised an alarm which attracted PW5 and PW6 the sons of the deceased who responded to the alarm and found the deceased lying on the floor with a stabbed wound on the chest. They met the accused running down stairs and the same jumped from second floor sustaining injuries.

15. The accused was positively identified and placed at the scene of the offence. The accused was known by most of the prosecution witnesses and thereafter found that there was no mistaken identity. I therefore find and hold that the death of the deceased was caused by unlawful act on the part of the accused person.

16. On whether the said unlawful act was caused with malice aforethought on the part of the accused, the evidence of PW3 is very clear that the accused and the deceased had been together talking in their house and at that time the same was not violent towards the deceased. The accused had earlier called PW1 and informed her that she was going to die in a traffic accident on the same day and that the accused only left the house of the deceased when PW1 had arrived at the plot and had purposed to take him to hospital. It is clear from the evidence tendered that there was no dispute or grudge between the deceased and the accused and that the attack as sudden and unprovoked.

17. PW14 DR JOHN NGUGI GATERE stated that at the time of the commission of the offence the accused was suffering from a mental disease and had committed the offence because of the mental illness. He stated that the accused was not in his normal senses at the time of the commission of the offence since he had told his sister on phone that an angel had instructed her not to travel and further since he was mute at the time of admission and attempted to commit suicide. Both the father of the accused and the sister confirmed that the same had earlier suffered from a mental disease. It is therefore clear and I find that at the time of the commission of the offence the accused was suffering from a mental disorder and therefore did not have the necessary mens rea.

18. It follows that the accused committed the offence herein without malice aforethought and therefore find and hold that all the ingredients of murder have not been proved by the prosecution and therefore find the accused not guilty of murder. However from the evidence tendered it is clear and I find and hold that the prosecution has proved beyond reasonable doubt the offence of manslaughter and therefore find the accused guilty and convict him of the lesser offence of manslaughter under the provision of Section 179(2) of Criminal Procedure Code.

DATED, SIGNED and DELIVERED at Nairobi this 9th Day of November, 2017

………………………………

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Meroka for the State

Miss Kali for Gulenywa for the accused

Accused person present

Court clerk Tabitha