[2017] KEHC 3124 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NANYUKI

CRIMINAL APPEAL NO. 36 OF 2016

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

versus

J. M. G.........................................................1ST SUBJECT

D. K. W.......................................................2ND SUBJECT

JUDGMENT

1. JMG (1st subject) and DKW (2nd subject) are charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. They both pleaded not guilty.

2. JMG was 16 years old when the charges were laid before court, while DKW as 15 years old. The deceased KMW was 8 years when she was killed.

3. The background is that the deceased had on 14th December 2014 attended church in the company of her mother, MWW (PW 1), and also with three of her siblings. It seems like on that day as they all walked home the deceased was in jovial mood because she challenged her mother to a race to their home. The deceased took a different path to the one her mother and her other siblings took. Her mother said that path she took was a short cut to their home. Immediately the deceased challenged her mother to that race she began to run along that path said to be a short cut. The mother reached home and began to do her usual chores but she noticed that the deceased had not reached home. She sent her son B to go look for her sister. B returned saying he did not find her. The mother decided to go look for the deceased herself. As she walked along the path her deceased daughter had taken the mother saw the two subjects. She stated that the 1st subject was wearing a yellow T-shirt while the second subject was wearing a white T-shirt. She knew them and called them by their names as she testified. She first noted that the 2nd subject was chasing two girls, namely MW (PW 2) and PW (PW 3), with a panga. As the mother continued to walk toward that scene she noticed the bright coloured dress her deceased daughter had been wearing. Deceased was lying where the second subject had come from. Deceased was lying off but near the path. The mother noted that deceased’s face was covered with a hat she had been wearing. On removing that hat she noted that deceased’s sleeve of her cardigan, which she had been wearing was stuffed into her mouth. She removed that sleeve then heard the deceased whimpering. Deceased however stopped whimpering and the mother noticed she was dead. It was then she noticed 1st subject looking at her. She asked this 1st subject why he had killed her child and he responded by saying:-

“Wait and see.”

On saying that 1st subject screamed thrice. The mother in evidence said that 1st subject’s action meant to her that her daughter was dead. The mother left the scene screaming which alerted other villagers to the scene. As she went the villagers lifted the deceased to take her for medical attention but it then became apparent to the deceased was dead. The deceased’s mother as she returned to the scene met the two girls, PW 2 and PW 3, who told her:-

“We saw K (2nd subject) he was chasing us with a panga and he killed K (deceased).”

The mother emotionally said:-

“According to me both subject killed K. I don’t know why they killed her.”

4. The mother said that the 2nd subject lived in the bush from the month of November 2014 because he had fallen out with his grandmother whom he lived with. That he had been chased away from home by his grandmother. Further that the 2nd subject had just been released from an approved school where he had been committed. That the 1st subject lived near where the deceased body was found. On being cross examined the mother was very clear that she saw the 2nd subject chasing away the girls PW 2 and PW 3 in the bush.

5. PWM (PW 2) and MWM (PW 3), who are sisters, after attending a church service decided to go collect firewood from the nearby bush. As they went they both clearly stated that they heard a noise in the bush which they both described as sound of a goat being strangled. As they went closer to inquire what the noise was the 2nd subject with a simis (panga), which was raised up, chased them away without saying anything to them. PW 3 even demonstrated how the 2nd subject swung the panga at them as he chased them away. PW 2 and 3 tried once again to approach where that noise was still coming from and again they were chased by 2nd subject who was still wielding the panga at them. Both of them knew 2nd subject who was their neighbour. PW 2 and PW 3 decided to get assistance of an adult from a home they said was of Mama W. Since there was no adult in that home, only children were there, they decided to return to the scene of the noise as they did so they heard screams. At that scene there was a crowd of people. Pw 3 told those that were gathered that the 2nd subject had chased her and her sister way from that scene. PW 3 noticed the 2nd subject who was present in that crowd look at her sternly as she informed the crowd that he chased them.

6. Both PW 2 and PW 3 said that when the 2nd subject chased them away they did not see the 1st subject nor did they see what was making the strange noise because the place was very bushy.

7. Chief Inspector Wafula Wanyama went on the scene and noted that that the deceased was bleeding from her left ear, and she had bruises around the neck, which looked like it was caused by squeeze by bear hands. He was also surprised that the deceased did not have any under pant but there was an under pant, about a meter away from the scene which deceased’s father confirmed belonged to the deceased. The underpant was completely torn. The chief inspector noted that the vegetation at the scene was very disturbed suggesting there had been a struggle.

8. PW 4, Doctor Ayub Gitaka Macharia performed the postmortem on the deceased body. He noted that deceased had multiple scratches and bruises on the neck extending to both right and left neck region. That the deceased body also had bruises in on submental, that is the facial space of the head. Bruises in right and left cheek bone. Laceration of 2 cm on the upper gum. There was peripheral cyanosis, which means bluish discoloration due to de oxygenation. The deceased clothes had soil mostly on the front. Internal examination revealed clotted blood on trachea, and between the lungs. Genitaria examination revealed that hymen was not intact. There was minor perineal tear which the doctor said was an indication of defilement. The doctor concluded that death was due to asphyxiation secondary to manual strangulation.

9. In his defence 1st subject while giving an unsworn statement denied the offence. He said on that the subject date he was at home with his sisters. At 12 p.m. he went to the local shopping centre of Kahuho. He was there with his mates up to 1 p.m. when he went home. As he was preparing lunch a pastor called M knocked the door to inquiring from him whether he was not hearing screams coming from the bush. That was when he went to the place where the screams were coming from. That it was then mother of the deceased said that he had killed her daughter.

10. 2nd subject said under oath that he moved to that Karushua area to live with his grandmother two year prior to the incident. That his mother resides in Nyahururu. That he went to Western Kenya for 4 months to train in bakery.

11. On 14th December 2014 he did not go to church. At 10 a.m. he went to fetch firewood. At 1 p.m. he and his grandmother, who he referred to as cucu, had lunch. His cucu requested that they go to harvest potatoes in his farm. As they were at that farm they heard screams. That someone was screaming that their child had been killed. That he jumped the fence of the farm where he found two girls collecting firewood. The two girls ran away. He went to that direction when he heard the person who was screaming say:-

“M you have killed my child.”

Coincidently M is one of the names of the 1st subject.

12. 2nd subject denied committing the offence. When asked why PW 2 and PW 3 said he chased them he replied that they probably lied because they thought he would say that it was they who killed the deceased.

13. AW (DW 3) was the 2nd subject’s grandmother. She testified that 2nd subject collected firewood in the morning of the subject day. After 1 p.m. they both went to the farm to harvest potatoes. That whilst at the farm they heard screams. She said that apart from minor incidents of 2nd subject stealing her money to buy sweet they lived in harmony.

14. On being cross examined the grand mother said, contrary to what the 2nd subject said, that she had been living with the 2nd subject from the time the 2nd subject was 1 year old. Also contrary to the testimony of the 2nd subject she stated that the 2nd subject mother’s whereabouts were unknown, indeed she said of that mother that:-

“she is here and there.”

Also contrary to the testimony of 2nd subject she stated that he, the 2nd subject attended approved school for one year because he used to steal her money.

15. Under Article 50(2) of the constitution it provides that every person is presumed innocent. For that presumption to be displaced the prosecution has to prove a case against an accused person beyond reasonable doubt. The prosecution in a murder trial has an obligation to prove three elements which are:-

(a) Whether death of the deceased was proved;

(b) Whether the accused’s unlawful act resulted in the death of the deceased;

(c) And whether the accused had malice aforethought.

16. On the first element death was proved by the mother of the deceased, the inspector of police Mr. Wanyama and finally by the doctor who performed the postmortem. That element, that death be proved to have occurred, was proved by the prosecution beyond reasonable doubt.

17. For the second element the evidence of the prosecution was adduced by the mother of the deceased, and the sisters PW 2 and PW 3. PW 2 and PW 3 heard a sound which they both described as sounding like a goat being strangled. At the place they heard that noise is where the mother of the deceased found the lifeless body of her daughter. The mother saw the 2nd subject chase away PW 2 and PW 3 from the scene where she discovered that body of her daughter. When she discovered that body of her daughter she saw the 1st subject who seemed to mock her screams by he himself screaming thrice.

18. No doubt that it was due to the unlawful act of strangulation and defilement of the deceased, as determined by the doctor PW 4, that the deceased met her death.

19. That unlawful act was perpetrated by both subject as the evidence of deceased’s mother and of PW 2 and PW 3 showed. Their evidence was more credible than the evidence of the subject and their witness, the cucu. The evidence of the subject was not credible and was unbelievable. Their defence was an afterthought because much of the prosecution’s evidence which placed them at the scene at the time the crime was committed was not entirely contradict in cross examination of the prosecution’s witnesses.

20. The subjects main defence was that of alibi. Indeed the law does not require an accused person who sets up alibi defence to assume the burden to prove the same. See Karanja V Republic [1983] KLR 501. In this case however weighing the subjects defence of alibi and the prosecution’s evidence I do find the prosecution did prove beyond reasonable doubt that it was the subject who committed the unlawful act against the deceased which act resulted in the death of the deceased. I make this finding also taking into consideration of the evidence of the cucu who in my view, from my observation of her as a witness, gave evidence in simple attempt to support her grandson. Her evidence was not credible and I reject it on that ground.

21. On the other hand as stated before prosecution provided credible and believable evidence which places the subjects at the scene of the crime. There would be no reason for a mother who was grief stricken to lie that it was the subjects that she saw when she first sighted the lifeless body of her deceased daughter. There is similarly no reason why the two sisters PW 2 and PW 3 stated that they heard a noise sounding like a goat being strangled and when they approached where the noise was coming from the 2nd subject chased them with a panga. The noise PW 2 and PW 3 heard is consistent with someone being strangled which was the main of cause of death of the deceased.

22. The evidence presented by the prosecution is circumstantial but that evidence is incompatible with the innocence of the two subject and is incapable of explanation upon any other reasonable hypothesis than their guilt. See the case SAWE V REPUBLIC (2003) KLR 365. The prosecution’s evidence against both subjects irresistibly leads to conclusion they killed the deceased.

23. The prosecution was also required to prove to that the subjects had malice aforethought, that is that they had the mental state.

24. The deceased mother who approached deceased body first found the deceased cardigan sleeve stuffed into her mouth. The Chief Inspector of Police on examining the deceased’s body found marks of strangulation around the neck of the deceased. Now that this court has found that it was the subjects that caused the unlawful act that resulted in the death of the deceased, the severity of that unlawful act of strangulation shows that the subjects had intention to cause grievous bodily harm to the deceased and in my view they had knowledge that death or grievous harm would be caused to the deceased. The prosecution therefore proved beyond reasonable doubt the third element that the subject had malice aforethought.

25. The subjects committed a joint offence as provided under section 21 of the Penal Code. That section provides:-

“21. When two or more person form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that is commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

The subjects formed a common intention to attack and defile the deceased which attack resulted in her death.

26. I therefore make a finding of guilt against both subjects for the murder of KMW deceased.

DATED and DELIVERED at NANYUKI this 4TH day of OCTOBER 2017.

MARY KASANGO

JUDGE

CORAM:

Before Justice Mary Kasango

Court Assistant – Njue/Mariastella

Appellants: J. M. G. ………………………………

D. K. W. ………………………………………………

For the Respondent: ….............................................

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE