[2017] KEHC 1432 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERUGOYA

CRIMINAL MURDER NO. 8 OF 2014

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

VERSUS-

JOSEPH MUCHIRI FURUNJO..........................ACCUSED

JUDGMENT

1. JOSEPH MUCHIRI FURUNJO,the accused herein faces the charge of murder contrary to Section 203 of the Penal Code. The particulars of the offence as per the information presented to this Court is that between 20th and 21st day of March, 2014, the accused herein murdered JECINTA WAMUTIRI GATHUNGA (hereinafter to be referred to as the deceased). The accused denied the offence and the prosecution summoned a total of 11 witnesses in support of their case.

2. The first witness summoned was Justine Kinyua Wanjiru (P.W.1) who told this Court that he was a neighbor to the accused as they lived on the same plot. She further testified that the deceased was known to him and was a friend to the accused and a frequent visitor to him and that she had known her well as they used to do casual work of picking tea together. It was his evidence that on the night of 20th March, 2015, the accused went home in the company of the deceased and started quarrelling as to him they appeared drunk and that the accused started beating the deceased incessantly as she screamed asking for help and pleading with the accused to stop it. The witness further testified that because a wall separated their respective houses he could hear everything and concluded that the accused was using a stick in beating the deceased. P.W. 1 added that at one stage, he went upto the accused room to ask him to stop beating the deceased and that the accused opened the house and the deceased went out walking on her knees due to the beatings she had received. It was his further evidence that the accused promised to stop beating her and asked him to go back to his house. He however, added that the beating did not stop because when the deceased went back t the house he could hear her screaming and groaning until went silent although he could still hear the beatings going on.

3. In the following morning after the fateful night, the witness told this Court that two of the tenants (Muchiri (P.W. 4) and Muriithi (P.W.2) within the plot concerned about what had happened went to fetch for the landlord and the village headman. He further added that since he had not heard the deceased speaking in the morning he inquired from the accused when he opened his door and as he was talking to the accused other people joined in as they had also repeatedly heard the screams the previous night and that when they ventured into the hose they found the deceased body dead and naked.

4. Dennis Mureithi Njage (P.W.2) also testified that he was living in the same plot with the deceased and that on 20th March, 2014 he recalled hearing the accused person and the deceased quarrelling at around 11 p.m. He confirmed that Justin (P.W.1) lived next to the room of the accused and that he lived two rooms away in the adjoined rooms in the plot and so it was possible for him to follow what was going on within the plot. He (P.W. 2) added that he heard the accused beating the deceased who was screaming and had to come out of his house to tell the accused person to stop the beatings. He confirmed the following morning after the incident (beatings of the deceased), he together with Mr. Muchiri (P.W.4) went to report the incident to the landlord who however, was not found. He added that they reported the incident to the village elder (Peter Mubiri (P.W.3). He confirmed that when they got back to the plot they sent some women who had gathered at the scene t go and check inside the room where they reportedly found the deceased lying naked and dead. Police were then called in.

5. The evidence of P.W.2 (Dennis Mureithi Njage) was supported by Peter Mubiri Kabuke (P.W.3). He confirmed that he was a village elder of the place where the incident took place and that he was called on 21st March, 2014 from the Assistant Chief’s office and he proceeded to the plot – the scene of crime and that when the deceased was called out in the room of the accused, they could not get any response and that is why he requested two ladies to go in the room and check out only for them to report back that the deceased was lying naked and dead on the bed. The witness told this Court that he went inside the room and confirmed the report because the deceased’s body was cold. He further testified that he was forced to lock the accused inside the room to safe him from the wrath of members of the public who had gathered outside and baying for his blood.

6. P.W.4 (Joseph Kinyua Muchiri) told this Court that he was the Landlord of the accused and 6 other tenants in a plot he stated he had constructed 7 semi-permanent rooms. He further added that he found the accused tied in Room No. 5 which he had leased and inside the room he found the deceased lying dead with visible bruises on her face. He also testified that he saw some blood stains on the floor and on the bed where the deceased body lay.

7. The other witness summoned by the prosecution was Daniel Gitari Gathunga (P.W.5) who testified that he was a brother of the deceased and he was called on 21st March, 2014 at his place of work at Kangaita Tea Factory by a co-worker who informed him that his sister (deceased) had been murdered. He told this Court that he rushed to Kwa Eliud village or the scene of crime and found her sister dead. He further added that the body was collected and taken to the mortuary by the Police.

8. John Mbuko Njau (P.W.7) another witness summoned testified that he was going about his business on 21st March, 2014 when he was informed that a woman had been murdered in a nearby plot and upon going there to check he found the headman John Njoroge Mugo (P.W.6) and the Assistant Chief (Joseph Kinyua P.W.4) trying to protect the accused from an angry mob gathered outside the scene of crime. He further added that he found the murdered woman lying on the bed and observed an injury on the left side of the swollen head.

9. P.W.8 (Faith Wamboi Gathinga) testified that she was a sister to the deceased and was called to attend a post mortem examination and identify her sister’s body on 24th March, 2014 which she did and stated that she observed injury on the eye and the head of her sister.

10. The doctor The doctor (Dr. Jean Claude P.W. 10) Post Mortem examination on 24th March, 2014 was also summoned and confirmed that the body brought to him for post mortem examination belonged to the deceased in this case and that she observed and noted the following injuries on the body namely:

(i) Cut wound on the right jaw measuring around 5 cm.

(ii) A collection of black stained blood on the hands.

(iii) Deep cut on the scalp.

The doctor further testified that when she opened the body she observed a cut wound scalp with fracture of the skull on the temporal bone. It was the opinion of the doctor that the cause of death of the deceased was collection of blood on the brain secondary to the fracture of the skull. He tendered the post mortem report dated 24th March, 2014 as Prosecution Exhibit 2 as proof of his findings.

11. The investigating officer, Cpl Stephen Kyalo (P.W. 11) also testified what he did upon receiving a report regarding the murder of the deceased herein on 21st March, 2014. He told this Court that when he arrived at the scene in the company of another officer he found the OCS, Kerugoya Police Station already there. He also found the accused tied outside what he described as a rented room. According to him, the suspect (accused) had been subjected to mob justice in connection with the killing of a woman whom he found lying naked and dead on a bed in the room. He testified that the accused was taken for treatment while the body was escorted to Mt. Kenya Hospital morgue. He further testified that he established upon interrogating witnesses that the accused was a boyfriend of the deceased and used to stay together in the single room rented by the accused. He also testified that he attended the post mortem examination on 24th March, 2014.

12. When placed on his defence, the accused herein gave a sworn statement and confirmed that the deceased was her girlfriend and that they had coincidentally met on 20th March, 2014 at Makangamo Bar where they frank until midnight and thereafter headed home together very drunk. He testified that they were both so drunk that they kept falling down along the way. He denied that they ever quarreled that night though he admitted making noise when they reached home saying that he used to be a noise maker when drunk. He further testified that he slept without any incident and woke up at 7 a.m. He added that he tried waking up the deceased but she did not wake up making him to seek help from a neighbour Justice (P.W.1) who he reportedly asked to go and get a boda boda to take his girlfriend for treatment. He further stated that he realized that the girlfriend was in fact dead because the body was cold when he touched her.

13. The accused further testified that he was later beaten by a crowd that had formed before the body was taken to the mortuary. He denied being responsible for her death stating that they had been friends with the deceased for a long time and had no issues or differences with her. It was his suggestion that the deceased may have died due to the injuries sustained during several falls she suffered when walking home the previous night. He further denied that the deceased had made a lot of noise and screams in the plot the fateful night stating that he was the one making the noise.

14. In his written submissions made through M/S Ikahu Ng’ang’ah & Co. Advocate, the accused has submitted that there were inconsistencies on the evidence adduced by the prosecution. It has been contended P.W.2 and P.W.3 denied seeing the deceased outside the accused’s room that night while P.W. 1 stated that he saw her outside the room. It has been contended that while the other witnesses never witnessed any blood at the scene of crime (room), P.W. 4 (Joseph Kinyua) testified that he saw blood stains.

15. The defence further contended that the other witnesses (P.W.1, P.W. 2 and P.W. 3) testified that they locked the accused in the room, the investigating officer (P.W. 11) stated that he found the accused outside the rented room (scene of crime).

16. The defence have also submitted that the deceased may have died due to falls she suffered while walking home and pointed out that none of the prosecution physically saw the deceased being assaulted. It has further been submitted that there was no malice aforethought or the element of mes rea established by prosecution’s case because in his view there was no evidence adduced to show that there was any existence of bad blood between the accused and the deceased. The defence has contended that the accused never planned to kill the deceased person.

17. The prosecution on its part has submitted that the accused beat the deceased and caused her death and pointed out at the evidence tendered by P.W.1 and supported by P.W. 2 and P.W. 3. The prosecution has contended that the medical evidence adduced indicated that the deceased was assaulted and dismissed the defence version or contention that the injuries were as a result of a fall due to drunkenness.

18. I have considered the evidence tendered by the prosecution and the defence put up by the accused person. I have also considered both the submissions filed by learned counsels from both sides. There is no doubt that the deceased in this case died as result of what Dr. Jean Claude (P.W.10) described as severe head injury which he concluded that it might have been caused by a head injury. He further observed that both the hands of the deceased had a collection of blood which he concluded were caused by some impact. The question is what or who caused these injuries both to the hands and the head?

19. I have carefully considered the evidence by the accused and keenly saw his demeanor while testifying in Court. He stated that probably the deceased died because of falling several times while they were walking towards home in his company while both were very drunk. But looking at what he did the morning following the incident, it is quite clear that the accused person was not being candid. He stated that he woke at 7 a.m. but his lover (the deceased) did not and that he called Justin Kinyua (P.W.1) and told him that his girlfriend the deceased was not waking up. According to him, he sent P.W.1 to go and get a boda boda and that he later noted that the deceased was dead because the body was cold. The question is when did he discover that if he did not know what had happened?

20. It is of course a matter of law that the prosecution always has the burden to prove their case and that is the position even if I have began by considering the evidence tendered in defence. The weight of the prosecution in my view really pointed to the guilt of the accused person. The evidence of P.W. 1 (Justin Kinyua Wanjiku) in this trial was key. He was living in an adjacent room with the accused and that fact was conceded by the accused himself. He testified that the accused came home with the deceased at night and that after a quarrel beatings started. He was sure that the person being beaten was the deceased as she had known after working with her in tea plantations. He was firm even under cross-examination that he heard her being badly beaten with a stick as she could hear the sounds in the next room divided by a timber wall with his. I find that the conclusions he made about what he was hearing was unmistakable because after a short while, he could not take it any more and he went to the rescue. The accused momentarily stopped and opened his door and P.W. 1 saw the deceased come out crawling on her knees because of the beatings she had received. I also find that his evidence that the deceased later agreed upon being prodded to go back to the room upon which the beatings resumed telling. The evidence is telling because it clearly shows the accused’s intention of asking the deceased to go back to the house was to get a further opportunity to inflict further pain which he did going by the evidence of P.W. 1. He sated that the deceased continued screaming until she fell silent but nonetheless he could still hear the accused beating her. Thus probably the fatal injuries were inflicted going by the doctor’s evidence. The blood collection in the hands of the deceased noted in my own assessment showed that the deceased tried all she could to shield herself with her bare hands from the brutal beatings by the accused person. That is the only explanation why her hands had a collection of black stained blood as noted by the doctor. P.W. 1, under cross examination by the defence counsel stated as follows:

“I told the accused to stop beating her on the head……….the deceased was screaming that she was being hit on the head………..”

As I have observed above, doctor noted in his report (Prosecution Exhibit 2) that the deceased succumbed to “severe head injury”.

21. The evidence of P.W. 2 (Dennis Mureithi Njage) who was also residing in the same plot with the P.W.1 and the accused corroborated the evidence of P.W. 1 on what transpired in their place of residence that fateful night. This Court found the evidence of the two witnesses (P.W. 1 and P.W. 2) to be credible and steadfast. They haboured no grudge with the accused to be motivated to lie or give incriminating evidence against the accused. The accused in his defence never alluded to any differences with the witnesses. This Court therefore found their evidence credible and this largely added to the weight of the prosecution’s case against the accused person.

22. I do not find the defence submissions that the deceased could have suffered injuries due to a fall or a series of falls when walking home. If that was the case, there would have been no screams in plot where the accused resided that fateful night. The accused also stated that he also fell several times and the question is if the deceased suffered fatal injuries due to her falls, why did the doctor observe a collection of blood in her hands when he performed post mortem examination? Why did the accused not suffer any visible injury that could be observed by any of the witnesses who testified in this case? In my own considered assessment, the accused formed up the story of falls to deflect the blame and guilt of brutally beating the deceased and causing her death as a result.

23. The defence has submitted that the accused had no intention to kill her lover and that the prosecution’s case was devoid of mens rea. However, a look at the provisions of Section 206 of Penal Code and the evidence tendered give a different story. Section 206 of the Penal Code(Cap 63 Laws of Kenya) provides as follows:

“malice aforethought shall be deemed to be established by evidence proving 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 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 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………………….”

By incessantly and brutally beating the deceased, the accused that fateful night (20th March, 2014) and may be early hours of 21st March, 2014) might have gotten wary of the companionship of the deceased but whatever the case, this Court finds that the important element of mens rea was clearly established by the prosecution in this case. I have no doubt going by the evidence tendered by the prosecution that the accused by his brutal actions caused the death of the deceased, a woman who was completely defenseless in the face of the unexplained aggression by the accused person. I find him guilty of the murder of JECINTA WAMUTIRA GATHUNGA and I convict him accordingly.

Dated and delivered at Kerugoya this 2nd day of November, 2017.

R. K. LIMO

JUDGE

The judgment is read out in open court, Mr. Omayo Prosecution counsel for the State, accused present, M/S Wangechi Munene Advocate holding brief for Mr. Nganga for Accused, court assistant Naomi Murage by me this 2nd day of November, 2017.

L. W. GITARI

JUDGE

2. 11. 2017