[2021] KEHC 9572 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J)

CRIMINAL CASE NO. 13 OF 2018

BETWEEN

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

AND

JARSON MUTUMA THAMBURA...................................................................1stACCUSED

MARGARET KATHAMBI MURITHI..............................................................2ndACCUSED

JUDGMENT

1. JARSON MUTUMA THAMBURAandMARGARET KATHAMBI MURITHI(Accused 1 and 2 respectively) are jointly charged with the offence of Murder Contrary to Section 203 as read withSection 204of the Penal Code. The particulars of the charge arethat

On 17thJanuary, 2018 at Kiirua Location in Buuri Sub-Countywithin Meru County, jointly murdered PATRICK KAREMBA

PROSECUTION CASE

2. The prosecution called eleven (11) witnesses in support of its case. PW1 LYDIA MUTHONI, mother to PATRICK KAREMBA (deceased)stated that his son was employed by Accused persons who are husband and wife. PW2 CATHERINE MAKENA,deceased’s sister stated that she met the deceased on 17. 01. 2018 at about 11. 00 am and at around 06. 00 pm was informed by one Mutuma that her brother had taken poison and had been taken to Meru County Hospital. She proceeded to the said hospital and was informed that he had died.

3. PW5 JULIA KAJUJU RUKWAROon 17. 01. 2018 saw and heard the deceased who was dead drunk swearing that he was ready to die. She later saw the deceased and another person at the home of the Accused persons and next to them was a motor cycle and two bags of pig feeds. She reported the matter toAccused 2 who later informed her that deceased had taken poison and had later he died.PW6 SIMONsaw Accused 2 giving milk to the deceased who was suspected to have taken poison. Deceased was taken to hospital in a vehicle belonging toPW7FRANKLINE KIRIMI MURIUKIwhere he later died.

4. PW9 BENSON KINOTI MURIUNGIrecalled that on 17. 01. 2018, he accompanied the deceased to the home of Accused persons and found Accused 2 who quarreled with the deceased over money allegedly owed to the deceased. That Accused 2 told the deceased to go away and never to return and they went away. That they later parted ways after the deceased boarded a motor cycle to go and collect pig feeds in lieu of the money owed to him by Accused persons only for him to later learn that the deceased had died.

5. An autopsy on deceased’s body that was identified byPW1 LYDIA MUTHONIandPW3 STEPHEN MWRIGIwas conducted Dr. Muthuri on 22. 01. 2019 and the postmortem formPEXH.1was duly tendered byPW4 DR. KISILU JAMES. The report reveals that the deceased had lacerations on the frontal and parietal (back of head) region and had died of severe head injury with intracerebral hemorrhage secondary to blunt injury.

6. PW11 STEPHEN MUTINDA JOEL WAIMBAa government analyst examined the deceased’s stomach content and bloodsample. His reportPEXH. 2dated 27. 06. 2018 reveals that the stomach contents contained CYHALOTHRIN a highly toxic synthetic pyrethroid pesticide which suggested that the deceased had ingested poison.

7. PW8 PC KIPKPECH KIPLESreceived a report of a case of suspected suicide from both Accused persons on 17. 01. 2018 butafter the postmortem revealed that deceased died of severe head injury with intracerebral hemorrhage secondary to blunt injury, the suicide theory was dismissed and both Accused persons were arrested and charged.

DEFENCE CASE

8. In his sworn defence, Accused 1 who’s Accused 2’s spouseconfirmed that the deceased used to be their employee. He recalled that upon being informed by a neighbour one Muthomi that the deceased had released 2 bags of pig feed to a motor cycle rider on 17. 01. 2018, he called his wife Accused 2 herein to go home and find out what was happening. When he later arrived home, he was informed that the deceased had taken poison. In company of Accused 2, he reported the matter to the police and both were subsequently arrested and charged.

9. Accused 2 similarly denied the offence. She stated that on the material date, she was informed by PW5 that deceased was drunk and was swearing that he was ready to die. That she proceeded home and finding 2 bags of pig feed outside the house asked the deceased why he had removed the pig feeds from the store and he replied that he had been instructed to do so by her husband Accused 1 herein. That she called Accused 1 who denied it and upon asking the deceased to take back the bags to the store, he said he could not manage because he was drunk and he went away to his room. She said she followed him there 10 minutes later and found that he had ingested poison. She calledDW3 ENID KAGENIwho sourced a vehicle fromPW7 FRANKLINE KIRIMI MURIUKIwith which the deceased was taken to hospital where he died.

ANALYSIS AND FINDINGS

10. I have considered the evidence on record and submission made on behalf of Accused persons. For Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients which are: the death of the deceased; that Accused persons committed the murder and that they were actuated by malice. (SeeAnthony Ndegwa Ngari v Republic [2014] eKLR).

(a) The death of the deceased

11. That PATRICK KAREMBA died was confirmed by all the prosecution and defence witnesses. Their evidence was corroborated by a postmortem form dated 22. 01. 2019 PEXH.1which reveals that the deceased sustained lacerations on the frontal and parietal (back of head) region and had died of severe head injury with intracerebral hemorrhage secondary to blunt injury.

(b) Proof that accused persons or any one of them committed the unlawful act which caused the death of the deceased

12. That Accused 1 was not at home during the incident and arrived long after the deceased was taken to hospital has been confirmed by Accused 2. Accused 2 stated that after the deceased who was drunk failed to return the 2 bags of pig feed he had taken back to the store, he retreated to his room and 10 minutes later followed him there only to find he had ingested poison.

13. Whereas it is evident from the government analysts’report dated 27. 06. 2018PEXH. 2that the deceased’s stomach contents contained CYHALOTHRIN which is a highly toxic synthetic pyrethroid pesticide, the postmortem report dated 22. 01. 2019 reveals that the deceased did not die of ingestingpoison but died of severe head injury with intracerebral hemorrhage secondary to blunt injury.

14. From the evidence on record, none of the prosecution witnesses saw Accused persons or anyone of them inflict the injuries that resulted in the death of PATRICK KAREMBA (deceased).

15. That leaves the Court with no option but to make reasonable deductions from the available circumstantial evidence.

16. As we know from Republic –vs- Taylor Weaver andDonovan (1928) 21 Cr. App. R. 20

“Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence, to say, it is circumstantial.”

17. InAbanga alias Onyango v Republic CA CR. Appeal NO. 32 of 1990 (UR), the Court of Appeal set out the principles which should be applied in order to test circumstantial evidence as follows:

It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:

i. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,

ii. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused

iii. the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

18. I have considered the totality of the evidence on record. The fact that the deceased died of a head injury to back of head leaves no doubt in the mind of the court that he was struck on the head.

19. Whereas Section 203 as read with Section 204 of the Penal Code does not require the prosecution to prove motive, evidence of motive is always relevant to the facts in issue.

20. It is trite law that where the case against the accused depends almost entirely upon circumstantial evidence, the element of motive is one which the court will have to consider. In the case of Choge vs Republic (1985) KLR 1, the Court of Appeal held as follows: -

“Under section 9(3) of the Penal Code (cap 63), the prosecution is not required to prove motive unless the provision creating the offence so states, but evidence of motive is admissible provided it is relevant to the facts in issue. Evidence of motive and opportunity may not of itself be corroboration but it may, when taken with other circumstances, constitute such circumstantial evidence as to furnish some corroboration sufficient to establish the required degree of culpability. The evidence of the ill-feeling between the deceased and the 1stappellant would havebeen a corroborative factor if the other evidence had been satisfactory which it was not."

21. In Libambula Vs. Republic [2003] KLR 683, the court defined motive in the following terms:

“Motive is that which makes a man do a particular act in a particular way. A motive exists for every voluntary act and is often proved by the conduct of a person. See section 8 of the Evidence Act Cap. 80 Laws of Kenya. Motive becomes an important element in the chain on presumptive proof and where the case rests on purely circumstantial evidence. Motive of course, may be drawn from the facts, though proof of it is not essential to prove a crime.” (Emphasis added)

22. Concerning the value to be attributed to evidence of motive and opportunity, the Court of Appeal in the case ofVincent Munyi Boni Karukenya v Republic (1984) 1 KAR 540referred to the following two passages:

‘Whilst motive and opportunity are important matters to be considered when weighing the prosecution case, theycannot in themselves be regarded as corroboration.’ (R v Keriheimeiza w/o Tankikwawa [1940] 7 EACA 67)

23. The court went further to say that:

‘We appreciate of course that evidence of motive and opportunity is not of itself corroboration, but such evidence, in conjunction with other circumstances, may constitute such circumstantial evidence as to furnish some slight corroboration in a case where the degree of criminal complicity to be attributed to the alleged accomplice is very slight indeed. (R v Wanjerwa (1944) 11 EACA 93 at 96. )

24. The evidence by PW9 BENSON KINOTI MURIUNGI and Accused 2 reveals that there was indeed a disagreement between the deceased and Accused 2 concerning some money that deceased was demanding from her. There is further evidence that just as he had informed PW3 that he would takeAccused persons’ pig feeds in lieu of the unpaid cash, the deceased indeed removed 2 bags of pig feeds from the store andwas in the process of giving them to a boda boda rider when Accused 2 arrived home as instructed by Accused 1.

25. It is additionally evident that deceased who was drunk failed to take back, to the store, the 2 bags of pig feeds as instructed by Accused 2 and instead walked away to his room.

26. That Accused 2 and the deceased engaged in an argument over attempted theft of pig feeds by the deceased and Accused

2’s apparent dissatisfaction with the deceased’s failure to take the pig feeds back to the store and instead walking away to his room was sufficient, in my view, to form a motive to commit the offence. That the deceased was dead drunk in my considered view created an opportunity for Accused 2 to commit the offence.

27. The actual act of murder was not witnessed nor was the murder weapon recovered. But taken in totality, I find that the evidence on record has cogently and firmly established a chain so complete that there is no escape from the conclusion that within all human probability, the murder was committed by Accused 2, who was the only other person as the scene, and none else.

(c) Proof that deceased had malice afterthought

28. Malice aforethought is proved if the prosecution adduces evidence to demonstrate any of the circumstances constituting malice aforethought as set out under section 206 of the Penal Code.

29. In the case of Republic v Lawrence Mukaria & Another [2014] eKLR, the Court of Appeal considered what constitutes malice aforethought and observed as follows:

“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206(b) of the Penal Code.”

30. The fact that deceased was hit on the back of the head leaves no doubt in the mind of the court that Accused 2 must have known that her action would cause deceased grievous harm or death. I am therefore persuaded that malice aforethought on the part of 2nd Accused has been established.

31. Consequently, Accused 1 is found NOT GUILTY and it is ordered that he be set at liberty unless otherwise lawfully held.

Accused 2 is however found GUILTY and is convicted accordingly.

It is so ordered.

DELIVERED AT MERU THIS 28th DAY OF January 2021

T. W. CHERERE

JUDGE

Court Assistant - Kinoti

Accused 1 - Present

Accused 2 - Present

For the Accused persons - Mr. Kimathi Advocate

For the State - Ms. Mbithe