[2022] KEHC 1441 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL CASE NO. 32 OF 2012

[FORMERLY NYERI HCCR NO. 6 OF 2012]

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

VERSUS

JOHN MAINA MUCHERU.....................ACCUSED

JUDGMENT

1. Joseph Ng’ang’a Mucheru (hereafter the deceased) died at Kenyatta National Hospital on 4th January 2012. He had been earlier admitted to Murang’a Hospital following an assault on 30th December 2011.

2. One witness claimed that on the latter date, he saw the accused, a younger brother of the deceased, beating him up or hitting him with an unidentifiable object. The Republic thus brought information to the High Court charging him with murder contrary to section 203 as read with section 204 of the Penal Code.

3. The particulars are that on 30th December 2011 at Gatabua village, Kangari Sub-Location, Kangari Location within Muran’ga County, he murdered the deceased.

4. He pleaded notguilty. The prosecution lined up five witnesses. The first was Peter Ndirangu Kamau (PW1). On 30th December 2011, at around 8. 00 p.m., he found four people at the Kinyona stage: the deceased, the accused, Laban Mwangi and Sammy Njuguna. He and the deceased walked together until Gatabua Tea buying centre where they parted ways.

5. A short while later, he heard some screams. He went back and found the accused assaulting the deceased. He did not know why they were fighting. He saw the accused hit the deceased with an object but he could not tell what it was. In cross examination, he said that he (PW1) is also known by the moniker, Gichamba.

6. The witness went towards Kangari to seek assistance from the people he had earlier seen with the deceased. He, Laban Mwangi and Sammy Njuguna returned to the scene. They found the deceased “lying on the ground and bleeding from the forehead”.

7. In further cross examination, he said that there were only two people fighting: the accused and the deceased; and, that he was only 5 to 6 metres away. He knew both of them and there was some moonlight. He said that the accused ran away towards Kangari when he saw the deceased fall down.

8. As they were looking for a vehicle to take him to hospital, the deceased’s sister, Jacinta (PW2) arrived. She got in touch with her cousin who ferried the deceased to the police station and to the local dispensary for first aid. An ambulance took the deceased to Murang’a Hospital. The witness did not travel with them. He later made two statements with the police: one before and after his death. He said that the accused was initially charged for the offence of assault.

9. Jacinta Wambui (PW2) is a sister to the deceased and the accused. She saw the accused on 30th December 2011 at about 9:00 p.m. when he came to their house. They were living together. PW2 left at 9:30 p.m. to have her tea leaves weighed at Gatabua Centre. It is usually done at night. She was in the company of Peter Ndungu.

10. PW2 received a call from John Maina (not the accused) who told him that the accused had called him to say that the deceased was lying in a trench. When they reached the scene, they found the deceased lying in the ditch and bleeding from the head. Like, I said earlier, she then summoned her cousin to take him to hospital. The deceased was finally transferred to the ICU at Kenyatta National Hospital where he died.

11. She also wrote two statements: One before the death of the deceased on 2nd January 2012; and, another one after. She said there were family disputes between the accused’s wife and the deceased. She was unaware of any dispute between the deceased and the accused. On 30th December 2011, she overheard the accused’s wife saying that it would have been better for the deceased to die than their parents. PW2 said when the accused came into the house that evening, he uttered:“one of us will go to the mortuary and another to the remand”

12. PW3 was John Njoroge Mwangi. His material evidence is that at about 8:30 p.m., on 30th December 2011, he was at Kangari Shopping Centre. PW1 summoned him and Geoffrey Mwangi (PW4) to the scene to quell the fight between the accused and the deceased. They found the deceased lying in the ditch. He was not talking. He, PW2 and PW4 were in the ambulance that took the deceased to Murang’a Hospital. Before that, they had ferried him in a private car to the Kigumo Police and Kigumo Dispensary. That version of events was confirmed by PW4.

13. PW5 was Charles Karani, now a retired police officer. He and APC Kolomani arrested the accused on 1st January 2012 and booked him at Kigumo Police Station for assault.

14. When I placed the accused on his defence, he denied killing the deceased. He said he had no reason to do so. He testified that he delivered tea leaves at Gatabua Centre at 16:00 hrs. He then went to a bar at Kangari. He saw the deceased there in the company of Peter Ndirangu (PW1) and Peter Ndungu. At about 20:00 hours, he heard the tea collection lorry hooting. He went back to the tea centre. He then decided to go home and pick his jacket. On the way home, he saw the deceased, PW1 and Peter Ndungu but did not talk to them.

15. The accused testified that after getting his jacket he went back to Gatabua Tea Centre where he saw three people looking at a someone lying in the trench. When he went closer, he saw it was his brother. He did not find PW1 or Peter Ndungu there. He said that he left for Kangari to seek for help and reached out to his sister (PW2).

16. Learned counsel for the accused did not file finalsubmissions. Instead, he sought to rely on earlier submissions filed on 3rd May 2021 at the close of the prosecution’s case.

17. Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

18. There are three key ingredients that must be present: first, the prosecution must prove beyond reasonable doubt the death of the deceased and the cause of that death; secondly, that the accused committed the unlawful act that led to the death; and, thirdly, that the accused was of malice aforethought.

19. In our criminal justice system places the burden of proof entirely upon the shoulders of the prosecution. Woolmington v DPP [1935] AC 462,Bhatt v Republic [1957] E.A. 332.

20. I entertain no doubt about the death. PW2 confirmed that the deceased died on 4th January 2012 at Kenyatta National Hospital. She said they removed the body to Kigumo Hospital for Post Mortem purposes.

21. The prosecution blundered by failing to call the pathologist or to produce the post mortem form. From the evidence of PW1 and PW2 and the injuries they described, I find that the death was unlawful. What is lacking is expert evidence pinpointing the cause of the death.

22. The prosecution is to blame for this state of affairs. I took over the proceedings on 29th May 2018 and explained the rights to the accused. He opted to proceed from where my predecessor left the matter. As the record will show, the prosecution sought numerous adjournments for want of witnesses.

23. On 21st April 2020, I took the evidence of PW5. The prosecution initially indicated they had three witnesses that morning. It was not to be. I declined any further adjournment for reasons in a considered ruling. They were four-fold: That the prosecution gave no guarantees when the remaining witnesses would be presented; that this was an old case dating back to the year 2012; that my predecessor, (Waweru J) had granted a last adjournment on 20th November 2017; and, that the accused was still in remand.

24. Notwithstanding the absence of the post mortem report, I find that the cause of death can be clearly inferred from the following set of circumstances: PW1 saw the accused beating up the deceased and hitting him with an unidentified object. When PW1 and PW2 found the deceased in the trench, he was bleeding on the forehead and comatose. The injuries were serious because according to PW1, he was transferred from Murang’a Hospital to the ICU at Kenyatta National Hospital where he died on 4th January 2012.

25. That was about 5 days from the date of the assault. I thus entertain no doubt that the deceased succumbed to those injuries. Any other interpretation would be a travesty of justice. I find some support in Ndungu v Republic [1985] KLR 487. The Court of Appeal emphasized that medical evidence on the cause of death is vital in a murder trial unless the cause of death is too obvious. The Court stated at page 493-

Of course there are cases, for example where the deceased person was stabbed through the heart or where the head is crushed, where the cause of death would be so obvious that the absence of a post- mortem report would not be fatal. But even in such cases, medical evidence of the effect of such obvious and grave injuries should be adduced.

26. The key question then is whether the available evidence proves beyond reasonable doubt that the accused, of malice aforethought, killed the deceased.

27. There is the direct evidence of PW1. He knew both the accused and the deceased very well. He had seen the accused earlier in the day repairing a vehicle. When he saw him attacking the deceased later that night, the accused was still dressed in the same clothes. PW1 met four people including the accused and the deceased at the Kinyona Stage. PW1 and the deceased walked together until Gatabua Tea buying centre where they parted ways. A short while later, he heard some screams. He went back and found the accused assaulting the deceased.

28. The accused in his defence confirmed that at about 8:00 p.m., on the material night he saw the deceased and PW1 on the road but did not talk to them. He claimed he was on his way home to pick a jacket. PW2 confirmed that the accused came home that evening and uttered ominous words:“one of us will go to the mortuary and another to the remand”

29. Three important elements arise from that set of facts. First, that PW1 clearly identified the accused in the moonlight as the person who assaulted the deceased outside the tea buying centre. PW1 knew the accused and deceased very well and was only 5 to 6 metres away. This was evidence of recognition; far more reliable than simple identification. Wamunga v Republic [1989] KLR 424, Maitanyi v Republic[1986] KLR 198 at 201.

30. Secondly, the accused was placed squarely at the locus in quo by PW1 and by his own admission. By the time PW1, PW3 and PW4 returned to the scene, the accused had disappeared to Kangari. I did not believe him when he said he went there to seek assistance. He had left his victim, his own brother, lying comatose in a ditch and taken off. He instead informed his sister (PW2) through Maina that the deceased was lying in a trench near the tea buying centre. The accused’s conduct is inconsistent with his plea of innocence.

31. Thirdly, he had a motive and necessary malice. Although the accused and deceased had no disagreements, there were wrangles in the family between the deceased and the accused’s wife. According to PW1, the accused’s wife and the deceased had a difficult relationship. On the day the deceased was assaulted, there was a quarrel between PW1, the accused, his wife and the deceased.

32. PW1 heard the accused’s wife repeating: “Today I will not go to the chief or go to the police or to the court [I] will go to the deceased as a woman [sic]”. When the accused came home on the material night, he told PW2:“one of us will go to the mortuary and another to the remand”. I readily find that the accused was motivated by malice in attacking the deceased.

33. That is further circumstantial evidence pointing to his malice aforethought. When combined with the clear and direct evidence of PW1 who saw him assaulting the deceased, the twin elements of actus reus and mens rea are united. The assault was vicious: The deceased was left bleeding from the forehead and unable to talk. He was taken to the hospital immediately after the attack and died in the intensive care unit five days later.

34. I must state that I did not find the defence by the accused believable. His demeanour betrayed him as untruthful. He was shifty in his answers. He was not forthright when he claimed that upon returning to the tea centre, he found three strangers looking at a person in the ditch. The truth is that he fought with his brother and left him for dead in the trench.

35. Learned counsel for the defence, Mr. Kirubi, submitted that the charge sheet is defective because the particulars state that the accused murdered the deceased on 30th December 2011. Of course, the deceased was only assaulted on that date. He succumbed to those injuries at Kenyatta National Hospital on 4th January 2012. I do not find the error fatal or capable of invalidating the charge. Furthermore, under section 275 of the Criminal Procedure Code, any objection to an information for a formal defect on its face shall be taken immediately after the information has been read over to the accused person and not later.

36. I find the entire corpus of direct and circumstantial evidence points stronglyto the guilt of the accused. There is no defence or hypothesis that exonerates the accused.

37. The upshot is that prosecution has proved beyond reasonable doubt that the accused, of malice aforethought, killed the deceased. I enter a finding of guilt and convict him accordingly.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 22ND DAY OF MARCH 2022.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:

Accused person.

Mr. Kirubi for the accused instructed by Kirubi Mwangi Ben & Company Advocates.

Ms. Muriu for the Republic instructed by the Office of the Director of Public Prosecutions.

Ms. Susan Waiganjo, Court Assistant.