[2020] KEHC 945 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CRIMINAL CASE NO. 37 OF 2014

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

VERSUS

JOYCE KAREMA...............................................................................1ST ACCUSED

MUSA THURANIRA..........................................................................2ND ACCUSED

JACKSON KAUMBUTHU.................................................................3RD ACCUSED

J U D G M E N T

1. Joyce Karema(1st accused), Musa Thuranira (2nd accused) and Jackson Kaumbuthu(3rd accused) have been charged with the offence of murder contrary to section 203 as read together with Section 204 of the Penal Code, Cap 63 of the Laws of Kenya.

2. The particulars of the offence are that on 29/4/2014 at Gakuri Village, Ngandone sub-location Ndurumia location in Imenti Central district within Meru County, the accused jointly murdered FRANCIS MWORIA (the deceased). The prosecution called eleven (11) witnesses in support of its case.

3. Pw1 Edward Mwiti Chabari recalled that on the material day at about 9. 00 a.m., he and the deceased were leaving his home for Meru town when they met the 1st and 3rd accused on the way. The two inquired if there was alcohol in the home of Pw1which he answered in the affirmative. Pw1and the deceased finished their errands in Meru town and returned home at about 2pm when they found the 3rd accused consuming alcohol. He was in the company of a stranger. The stranger was reading a Taifa Leo newspaper which was produced as Pexh1.

4. The consumption of alcohol went for sometime and the 3rd accused and the stranger left. The 3rd accused returned again and stayed until about 6. 30pm when he received a call and went to receive the same. He never returned. About 20 minutes later, a motorbike arrived and two people entered the compound and ordered those present to put off the lights. One of the intruders whom Pw1recognized as the 2nd accused, drew a gun from his coat while the other intruder shone a light on the deceased. The 2nd accused then shot the deceased and they took off on the motorbike.

5. Since the 3rd accused was in the company of the 2nd accused during the day, members of the public arrested the 3rd accused the following day demanding that he sheds light on the killers. Pw1was later to identify the 2nd accused at a parade conducted by Pw7at Gaitu Police Station as the person who shot the deceased.

6. On the material day at about 7. 45 pm, Pw2 Meshack Kirimi,the area manager for Njuthine village, was at Chaaria Market when he received a report of some gun shots from Nkandone village. While walking home, he caught up with 3 people and the 2nd accused was pushing a motorbike. The 2nd accused asked for help as the motorbike had a puncture. Pw2directed him to a nearby Kiosk to have his motorbike repaired.

7. Pw2 went ahead and found a group of about 20 people who confirmed to him that a person had been killed and the perpetrators had run towards Chaaria. He told them about the three people he had come across on the way and they decided to wait for them in order to interview them about the incident.

8. While his motorbike was being worked on, the members of the public present questioned the 2nd accused about the shooting incident and he became suspicious. The police were called and they arrested him. They also recovered the motorbike which was produced as Pexh2. Pw3 Musa Mutembei,who was part of the public assisted the police in ferrying the motorbike to the police station.

9. PW4 Japhet Mwongeraheard the gunshots but only visited the scene the following day. By that time the body had been removed.

10. On 30/4/2014, officers from the scene crime DCI Meru visited the scene and took photograph thereof. Pw5 Corporal Gabriel Koskeiappeared and produced the said photographs and the accompanying report.

11. Pw6 Dr. Wendo Kubaiproduced the post mortem report. It revealed a single entry gunshot wound on the head. The skull had fractures. There was inter cerebral hematoma and multiple cerebral laceration. The cause of death was opined to be severe traumatic brain injuries secondary to a gunshot to the head.

12. On 1/5/2014, CIP Wilfred Mwangi (Pw7) conducted an identification parade at Gaitu Police Station. He followed all the requirements for such identification. The 2nd accused was placed in the company of 8 other persons and was identified by Pw1, Pw9and Pw10by touching.

13. Pw8 Martin Mwongerarecalled having been selling alcohol on the material night when the deceased was shot. He was unable to recognize the attackers due to darkness.Pw9 Moses Mwenda only heard that the deceased had been shot dead.Pw10 James Kirimi was at the drinking den when the shooting occurred. He saw the two strangers who came looking for the deceased and after shooting him, they run away.

14. Pw11 PC Joseph Kirui testified on behalf of Sgt. Mohammed Haji who was the investigating officer. He told the Court that, 2 spent cartridges and a Taifa Leo newspaper were recovered from the scene. The body was also recovered from the scene and taken to the mortuary.

15. Investigations established that the deceased was shot at a drinking den. It was a revenge mission whereby, the 1st accused’s son had been murdered and she had suspected the deceased to have been involved.

16. In his defence,Musa Thuranira, the 2nd accused told the court that he was a boda boda rider. That on the material day at about 2. 30 pm, a customer asked him to ferry him to Chaaria hospital. He agreed and ferried the customer reaching Chaaria Cotolengo hospital at about 5. 00pm. He started the return journey at about 6. 30pm. On the way, he got a puncture and he sought assistance. It is then that Pw2referred him to some Kiosk. However, because he was a stranger in the area, the residents became suspicious of him and had him arrested. He denied any involvement in the murder of the deceased.

17. On his part, Jackson Kaumbuthu, the 3rd accused admitted going to Pw1’sdrinking den. He took two cups and left to his farm at about at 3. 30 pm. At 5. 00 pm he prepared food for his pigs and retired to sleep. The following day at about 7. 30am, Simon Kaburu arrived with about 5 people who commanded him to Pw1’shouse. At Pw1’s house, the area chief and assistant chief informed him that someone had been killed and he might know something about it. It was then that he was arrested and taken to Gaitu Police Station.

18. D3 Joania Tirindi, mother to the 3rd accused recalled that on the material day, the 3rd accused was at home that evening where they ate supper together.

19. DW4 Francis Mwenda a boda boda rider told the court that he was working together with the 2nd accused. On the material day, he was present when the 2nd accused got a passenger at the stage at Kimongoro Market. The customer asked to be taken to hospital whereby the 2nd accused took him to Chaaria Hospital. Another boda boda rider, Dw5 Dickson Kimathirepeated the testimony of Dw4.

20. The accused face a charge of murder. According to the definition in section 203 of the Penal Code,the prosecution must prove beyond reasonable doubt 4 elements of the charge. These are; the fact of death, the cause of death, that the death was caused by the unlawful act on the part of the accused and finally that the act was committed with malice aforethought. SeeRepublic v Mohammed Dadi Kokane & 7 others [2014] Eklr.

21. On the first issue of the fact of death, Pw1 who was familiar with the deceased, was with him on the material day and time. He witnessed the deceased being shot at close range at about 7. 30pm in his compound. Pw9 saw the body at the scene of crime.

22. On the cause of death, Pw1, Pw8 and Pw9testified that the deceased was shot at. Pw5produced the Post Mortem Report prepared by Dr. Guantai. The same revealed the cause of death to have been due to severe traumatic brain injuries secondary to a gunshot to the head.

23. In the premises, I am satisfied that the fact and cause of death was proved to the required standard.

24. On the third ingredient, the matter turns on the issue of identification. In Joseph Muchangi Nyaga & Another -Vs- Republic [2013] eKLRthe court held that:-

“Evidence of visual identification should always be approached with great care and caution (see Waithaka Chege -Vs- Republic [1979] KLR 271). Greater care should be exercised where the conditions for a favorable identification are poor. (Gikonyo Karume & Another -Vs- Republic [1980] KLR 23). Before a court can return a conviction based on identification of any accused person at night and in difficult circumstances, such evidence must be water tight. (See Abdalla Bin Wendo & Another -Vs- Republic (1953) 20 EACA 166; Wamunga -Vs- Republic [1989] KLR 42; and Maitanyi -Vs- Republic [1986] KLR 198). Before acting on such evidence, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him...”

25. Bearing the foregoing in mind, the Court is to examine the evidence on record. The testimonies of Pw1, Pw8 and Pw10was that on the material day, they were drinking alcohol at Pw1’shome. At about 7pm, the 3rd accused received a call and went to receive the same. He never returned. Twenty minutes later, two strangers stormed the compound and shot the deceased. People scampered for safety and the attackers disappeared in the motorbike they had come with.

26. Earlier on in the day, the 3rd accused was at the den with a stranger. Pw1identified the 2nd accused as the stranger who was with the 3rd accused at the drinking den between 2pm and about 5pm. While the 3rd accused was taking alcohol, the 2nd accused was only reading a Taifa Leo newspaper. He took no alcohol. The deceased was present and is said to have also been taking alcohol.

27. According to the evidence on record, when the attackers struck some few minutes after 7 pm, they ordered those present to switch off the lights. One of the attackers flashed a torch and on identifying the deceased, the 2nd accused shot him. The two thereafter took off on a motorbike that they had come with.

28. Pw2a village manager, and therefore a person in authority in the vicinity, was going home at about 7pm. On the way, he met 3 people one of them turned out to be the 2nd accused. The 2nd accused was pushing a bicycle as it had a puncture. Pw2directed him where to have his motorbike repaired. When the 2nd accused was accosted by members of the public as to his identity and what he was doing in the vicinity, he became suspicious and Pw2informed the police who arrested him.

29. Pw1was later to identify the 2nd accused in an identification parade conducted by Pw7as the stranger who was at the drinking den during the day reading a Taifa Leo newspaper but not drinking. He was in the company of the 3rd accused. Pw1also recognized the 2nd accused as the person who drew the gun and shot the deceased in the evening of the material day.

30. The defence of the 2nd accused was an alibi. That on the material day at about 2. 30pm, he got a customer whom he took to Chaaria Hospital. He reached there at 5pm. He left the hospital at about 6. 30pm and his motorbike got a puncture whereby, the people of Chaaria suspected him because he was a stranger in the area and caused his arrest. His testimony was echoed by Pw4 and Pw5,who were his fellow boda boda riders.

31. On 1/5/2014, after the identification parade at Gaitu Police Station, Pw7took the 2nd accused’s statement under inquiry. In that statement, the 2nd accused stated that on the material day, he had been asked by his sub-chief Francis Gikundato get him charcoal. He got him charcoal at about 10am.

32. At about 1pm, the said sub-chief sent him to go and get him a farm worker by the name Karue from Chaaria (Cottolengo).He picked the said Karuebut when returning, the motorbike got a puncture at a place he did not know. Karuedecided to go back and call the sub-chief while the 2nd accused got Pw2to assist him in the repair of the motorbike. It is then that members of the public instigated his arrest because he was a stranger in the area.

33. The statement under inquiry was produced as PExh7. The same was neither denied nor challenged. Pw7’sevidence remained unshaken.

34. The version given by the 2nd accused in his statement under inquiry and his testimony in court were at variance. Given, an accused is not supposed to prove his alibi. See the Court of Appeal decision in Erick Otieno Meda v. Republic [209] eKLR.The alibi however, must not only be reasonable, it should be believable. It should be plausible in the eyes of the court and be capable of displacing the evidence of the prosecution.

35. In the present case, on 1/5/2014, only two days after the events of 29/4/2014, the 2nd accused told Pw7 when the events were still fresh in his mind that he had gone to Chaaria to pick a farm hand for his assistant chief. Four years later, in 2018 when he was testifying, he changed the story and told the Court that it was a customer he delivered to Chaaria Cottolengo Hospital.

36. Obviously, the alibi was an after-thought. The Court did not believe the testimonies of Dw4 and Dw5. The two witnesses struck the Court as dishonest. They were only out to help one of their own, the 2nd accused.

37. The 2nd accused was positively identified at the parade by 3 witnesses. He admitted as such in the statement under inquiry. Pw1was with the 2nd accused for quite a long time. They were together from about 2pm until 5pm at Pw1’sdrinking den. He was able to recognize him later that night as the one who shot the deceased.

38. What must have happened was that; the 2nd accused was brought earlier in the day on a reconnaissance tour. He came in order to survey the general area and be able to identify his victim. That is why all the while, he was only reading a newspaper and not partaking alcohol as were the others. After he accomplished his mission and took off, as fate would have it, his motorbike got a puncture and was able to be apprehended by Pw2.

39. I am satisfied that the 2nd accused was involved in the murder of the deceased.

40. As regards the 3rd accused, he is suspected of having brought the 2nd accused to carry out the mission. He was the one who brought him during the day on the reconnaissance trip. He received a call, probably to advise the would be assassins, that their victim was still at the drinking den. That is why he left and never came back. His home was said to be only about 200m away from the scene, yet according to him, he did not hear the gun shots.

41. While his mother Dw3 testified that he never left his home on the material day, the 3rd accused himself admitted having gone to partake alcohol at Pw1’s home during the day. Although he may not have participated in the actual shooting, the strong suspicion that he may have been the one who arranged the shooting by bringing the 2nd accused and identifying the victim to him. He may have been guilty of the common intention to eliminate the deceased. Be that as it may, suspicion, however strong cannot be a basis of a conviction. The case against him is doubtful and I resolve it in his favour.

42. As for the 1st accused, her only connection with the murder is that she was with the 3rd accused in the morning of the material day. There was no any evidence to connect her with what happened later on in the day. The suspicion that she had arranged the murder in revenge for the killing of her son was never proved. She was innocent of the offence and that is why the court acquitted her as she had no case to answer.

43. In view of the foregoing, I find that it was the unlawful act of the 2nd accused that caused the death of the deceased. The third element was proved to the required standard against the 2nd accused but not the 3rd accused.

44. The final ingredient is whether malice aforethought was established. In Daniel Muthee v R. CA No. 218 of 2005 (UR), the Court of Appeal observed: -

“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in a 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”.

45. It was established that the cause of death was due to severe traumatic brain injuries secondary to a gunshot to the head. The 2nd accused must have known that shooting the deceased would cause grievous harm or death.

46. Accordingly, I find that the prosecution was able to prove its case beyond reasonable doubt against the 2nd accused. I therefore find the 2nd accused guilty of the murder of Francis Mworiacontrary to section 203 as read with Section 204 of the Penal Code CAP 63 Laws of Kenya and convict him accordingly. The 3rd accused is acquitted of the offence of murder and is to be set forthwith at liberty.

SIGNEDat Nairobi.

A. MABEYA, FCIArb

JUDGE

DATEDand DELIVEREDat Meru this 10th day of December 2020.

JUDGE