[2018] KEHC 3873 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO. 40 OF 2013

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

VERSUS

JOSEPH MWENDA M’LITHIRANGA.......... ACCUSED

J U D G M E N T

1. JOSEPH MWENDA M’LITHIRANGA(“the accused”) has been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code CAP 63 of the Laws of Kenya. The particulars are that in Lanyiru sub-location, in Tigania East District, within Meru County murdered JAMES MAINGI KARING’ORI (“the deceased”).The prosecution called four witnesses to establish its case.

2. PW1 Kenneth Muriuki,brother to the deceased told the court that on the material day, he and the deceased attended a circumcision ceremony for the accused’s son at the accused’s homestead. They were relaxing in the initiate’s house when at about nightfall he asked the deceased that they go home. The deceased told him that he was to wake one Murea first. When he went inside to call Murea, one Mutembei told them that Murea was not going to accompany them. The deceased questioned why that was so, the father of the accused, DW2, heard them and came and ordered everyone out. When the deceased came out, DW2asked him what he was doing inside the initiate’s room and hit him with a walking stick three times. PW1 and the deceased ran towards the gate. On reaching the gate, the accused stabbed the deceased on he left back side and the left groin with a knife. PW1 called PW3 to assist him carry the deceased outside the compound and they wrapped the bleeding wounds with his shirt. They put him on a motor bike which took him to hospital and the next day, he heard that his brother had died.

3. PW2, Dr. Brian Kiprop Bett,produced the postmortem report carried out on 7th May, 2013 by Dr. Mwende. He stated that the body had a penetrating injury of a deep cut wound on the left iliac fossa measuring 4cm long and 10cm deep. Internally, there was feacal matter present in the abdominal cavity with a raptured duodenum. The colon and the diaphragm, all on the left side were raptured. It was established that the cause of death was penetrating intra abdominal injury with a raptured gut.

4. PW3, David Muchaitold the Court that on the material day, the deceased, PW1 and about 50 others were in the homestead of the accused for an initiation ceremony. At around 8pm, PW1 wanted to leave but the deceased told him that Murea had asked that they should not leave him behind. When they went into the initiate’s house to wake him up, Mutembei shouted at them that Murei was not leaving with them. The noise prompted the accused’s father to come and order all of them to leave. They left with the deceased preceding them. That when the accused reached the gate he found the accused at the gate who stabbed him with a knife. The accused was then held by one Kirichwa and taken to his house while he and PW1put him on a motor bike and took him to hospital.

5. PW4 NO. 67342 PC Andrew Akolo,stated that PC James Aswani who was incharge of this case, acted on the OB report made by the deceased. The deceased had stated that he had been stabbed by the accused. PC Aswani established that after making the report, the deceased was admitted at Meru level 5 hospital. He went to the scene on the same day where he received a call from the sub-chief of Lanyiru village informing him that the reportee had died at Meru Level Five Hospital. PC Aswani indicated that the accused presented himself at the police station where he was interviewed and taken to I.P Akali, the OCS who took his statement. On 7th May, 2013, PC Aswani, and the father and cousin of the deceased went and witnessed the postmortem of the body at Meru level 5 hospital mortuary. It was confirmed that the deceased died from the injury of stabbing.

6. When put on his defence, the accused gave a sworn testimony and called two witnesses. DW1 was the accused. He testified that on the material day, there was a ceremony in his home for his son who had just been circumcised. At the material time, he was with his family discussing various issues and at about 9 pm, he heard stones hit the roof and wall of his house. He then heard screams from the initiate’s house. He heard the initiate crying for help saying that “Baba usiache niuawe” he rushed to the initiates’ house.

7. He stated that there was a tussle inside the initiate’s house and on reaching thereat, he saw the deceased and three others coming out of that house. He stated that he was holding a knife which he was using to peel yams but he did not use it as a weapon. That as he was entering the house, the deceased hit DW2. He saw, his father. He then heard people say that the deceased had been stabbed. His family pushed him towards his house while the deceased was pushed out of the compound. He surrendered himself to Muthaara police station as he feared the community could take action against him or his home.

8. DW2 M’Lithiranga M’Munyi is the father to the accused. He told the court that on the material day, he was within the accused’s homestead for a circumcision ceremony. At about 8pm, he heard noises from the initiate’s house as some boys were beating the initiate. On approaching the door to that house, two boys came out and one, Simon, hit him with a stick. When he turned to ran away, he was hit on the shoulder. He heard the accused stating that ‘we are now being beaten, including our fathers’. He did not establish who were beating the accused. The following day, he heard that the accused had stabbed the deceased.

9. DW3, Kirichwa Thirinja, told the court that on the material day, he was in the accused’s homestead for a circumcision ceremony. At about 8pm, he was in the accused house taking tea when he heard screams and stones being thrown to the initiate’s house. DW2and the accused went out ahead of him. When he came out, he heard Ncurubu screaming “mtoto wa ndugu yetu ameuliwa”. He admitted that he did not go to check who had been killed because there was intense, throwing of stones

10. I have carefully considered the evidence on record. The accused is facing a charge of murder.Section 203 of the Penal Code defines that offence as follows:-

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

The four ingredients of the offence that arise from the definition and that need to be proved by the prosecution beyond reasonable doubt are:

a) the fact of the death of the deceased;

b) the cause of such death;

c) proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused person; and

d) proof that the said unlawful act or omission was committed with malice aforethought.

11. On the first issue, the testimonies by PW1, PW2, PW3 and PW4 was that the deceased was stabbed with a knife. The post mortem report produced by PW2 as PEXH 1indicated that the body had a penetrating injury of a deep cut wound on the left iliac fossa measuring 4cm long and 10cm deep. Internally, there was feacal matter present in the abdominal cavity with a raptured duodenum. The colon and the diaphragm, all on the left side were ruptured. It was established that the cause of death was penetrating intra abdominal injury with a raptured gut. This evidence proved the fact and cause of death to the required standard.

12. Was the death of the deceased a direct consequence of an unlawful act of the accused? PW1andPW3 told the court that on the material day, they were in the accused’s homestead. When they went to call Murea so that they could leave, DW2 came and ordered them out, hit the deceased and later saw the accused stabbing the deceased. PW4 testified that PC Aswani he acted on a report in the OB made by the deceased who reported that the accused had stabbed him.

13. In his defence , the accused stated that he heard a commotion in his child’s house and when he was entering that house, he saw his father being hit by the deceased. He then heard people say that the deceased had been stabbed.

14. Counsel for the accused submitted that the prosecution had failed to prove the case to the required standard. That the evidence tendered was circumstantial in nature in that the Prosecution witnesses failed to place the accused at the scene. That the testimony that the accused stabbed the deceased twice varied with the medical evidence before the court.

15. In Erick Odhiambo Okumu v Republic [2015] e KLR the court of appeal cited the case of Abanga Alias Onyango V. Republic, CR. APP. NO 32 OF 1990(UR), and held:-

“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.”

16. In this case, these tests are established when I had a look at the initial statement the accused gave when he surrendered himself to the police. Whilst he told the Court that he surrendered himself on account of his safety since the incident occurred in his homestead, he told the police at the first instance that he saw the deceased coming from the direction of his son’s house armed with a rungu and hitting three people while being pushed out. It was then that he decided to knife him or stab him once at the left rib and people started dispersing.

17. Section 33 of the Evidence Act highlights the admissibility of statements made by persons who are not in a position to adduce evidence in court:

Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—

(a) relating to cause of death when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;

(b)……….

18. The locus classicus in this case is Swami vs. King Emperor (1939) 1ALL ER 396 where a dying declaration was admissible on the basis that it provided evidence of the circumstances of the transaction. According to PC Aswani’s testimony, he renders that a report was made by the deceased who stated that the accused stabbed him. It was at night, therefore this Court treads with caution as directed in the case of Wamunga v Republic [1989] KLR 424]

19. From the foregoing, I am satisfied that the circumstantial evidence produced is as sufficient as any direct evidence that would have been adduced in this matter.

20 Was there malice aforethought? Section 206 of the Penal Code provides that:-

“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 the person 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 actually 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;

(c) …..

(d) ……..

21. PW4 stated that the in his investigations, he established that the motive of the attack was due to an argument which arose between the deceased and the father of the accused. DW2had sought to know what the commotion in the initiate’s house was all about; that the said boys in the company of the deceased attacked DW2, which provoked the accused who retaliated by stabbing the deceased on the back and left side of the groin. In this regard, the accused clearly demonstrated intent to cause the grievous bodily harm and the death of the deceased.

22. Accordingly, I am satisfied that the prosecution has been able to prove its case beyond any reasonable doubt. I find the accused guilty of the offence of the murder of James Maingi Karing’ori and convict him of the offence of murder contrary toSection 203 as read with Section 204 of the Penal Code CAP 63 Laws of Kenya.

Signed at Meru by me

A. MABEYA

JUDGE

DATED and DELIVERED AT MERU THIS 4TH DAY OF OCTOBER, 2018

F. K. GIKONYO

JUDGE