[2022] KEHC 16265 (KLR)

Republic v Kairera & 2 others (Criminal Case 28 of 2015) [2022] KEHC 16265 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16265 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 28 of 2015

TW Cherere, J

December 15, 2022

Between

Republic

Prosecutor

and

Joshua Muchui Kairera alias Edwin Kathurima Puthia

1st Accused

James Kimathi alias Dancun Kimathi Muriira

2nd Accused

Peter Mputhia M’thmatia

3rd Accused

Judgment

1. Joshua Muchui Kairera alias Edwin Kathurima Puthia, James Kimathi alias Dancun Kimathi Muriira and Peter Mputhia M’thmatia (accused 1, 2 and 3 respectively) are charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.The particulars of the charge are that on the December 25, 2014 at Kanthiari village, Nkomo Location in Tigania West sub-county within Meru County jointly with another who is now deceased murdered Jonah Gitiye M’Thumatia.

2. Accused persons denied committing the offence and the prosecution called a total of seven (7) witnesses in support of their case.

3. The prosecution case as recounted by Josephine Kanini is that on December 25, 2014 at about 10:00 pm, she was at home with her family when one Samuel called her husband (Jonah) and asked him to go out and see what was happening at his home. They both went out and with the light from the torch that her husband had, she saw Muthethia, Kimathi (accused 2) and Edwin (accused 1) who are from her village and were armed with pangas, knives and sticks and they took her husband away to the house of his brother Samuel. That from there, they took Jonah to a nearby road and attacked him causing him serious injuries from which he died the following day.

4. Erick Mwiti said he was attracted to the scene of crime by screams and he called one Lawi who informed him that Kimathi, Mutethia, Edwin and Mputhia were beating Jonah. That he went to the scene and with light from his torch saw Jonah lying down injured and Mutethia and Edwin who were armed with pangas standing nearby. He stated that he did not see Josephine at the scene.

5. Mwiti M’Itimitu arrived at the scene long after Jonah was assaulted and one Douglas informed him that he had been assaulted by Mutethia, Mputhia, Edwin and Kimathi. Samuel Limiri stated that on the material night, Mputhia and others went to him and destroyed his fence and glass windows. That when Jonah who was his neighbour inquired what was happening, he was attacked by Mputhia, Mutethia, Edwin and Kimathi whom he identified with the light from their torches. Douglas was also attracted to the scene by screams and Jonah who had serious injuries informed him he had been attacked by Mutethia, Mputhia, Edwin and Kimathi who escaped when he arrived at the scene. He said he saw them he identified them because he had a torch.

6. An autopsy on Jonah’s body was conducted December 30, 2014 by Dr Kimani. The postmortem form tendered as an exhibit reveals that Jonah suffered multiple cuts and had died of subdural hematoma and subarachnoid hemorrhage due to blunt force trauma and massive blood loss due to multiple cut wounds. PC Wandiri upon receiving a report from Samuel Limiri that his home had been attacked by Mputhia, Mutethia, Edwin and Kimathi visited the home and found some iron sheets damaged. That from there they proceeded to the home of Jonah and found his wife who reported that her husband was attacked when he tried to intervene the attack on Samuel’s home. The officer returned to the police station to find Jonah who has serious injuries allover his body and Jonah informed him he had been assaulted by Mputhia, Mutethia, Edwin and Kimathi. That Jonah was taken to Meru Level 5 hospital where he died the following day. He subsequently arrested Mputhia on December 30, 2014 and Edwin and Kimathi from Kangeta Prison on March 6, 2015 and from Meru GK Prison on March 7, 2015 and caused them to be charged.

Defence Case 7. Accused 1 stated that on the material night at about 09:30 pm, he found Samuel and his cousin Mutethia quarrelling and that the quarrel degenerated into a fight which his uncle Jonah attempted to stop. That he subsequently left the scene with Jonah and about an hour later, one Faith informed him that Jonah and Mutethia had seriously injured each other. He denied assaulting Jonah. Accused 2 stated that he arrived at the scene after Johan was assaulted. Accused 3 stated he was at home on the material night and only learnt about the fight that led to his brother’s death the following day.

Analysis and determination 8. Section 203 and 204 of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. They require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased through malice aforethought.

9. The sections read as follows:“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.204. Any person who is convicted of murder shall be sentenced to death.”

10. I have considered all the evidence availed in this case as set out above and the issue in question is whether the prosecution has proved the death of the deceased; that accused caused the death and that he was actuated by malice.

a. The death of the deceased 11. The postmortem form tendered in evidence reveals that Jonah suffered multiple cuts and had died of subdural hematoma and subarachnoid hemorrhage due to blunt force trauma and massive blood loss due to multiple cut wounds

b. Proof that accused person committed the unlawful act which caused the death of the deceased 12. The evidence from PW1 to PW5 reveals that Mputhia, Mutethia, Edwin and Kimathi were at the scene of crime, armed and participated in assaulting Jonah. Although the incident happened at night, the witnesses and accused persons are from the same village and were not strangers. There is evidence that Jonah and Erick Mwiti had torches from whose light accused persons and another were recognized. From the foregoing, I find that the prosecution case as to the identity of the persons that assaulted Jonah was corroborated. The defences are thus rejected.

Malice aforethought 13. The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves 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)An intent to commit a felony;(d)An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

14. The formulation of the law in Rex v Tubere S/O Ochen 1945 12EACA 63 laid down the guidelines for trial judges where the court held that:“To determine whether malice aforethought has been established to consider the weapon used, the manner in which it is used, the part of the body targeted, the nature of injuries inflicted, the conduct of the accused before, during and after the incident”.

15. The injuries inflicted all over the body of Jonah were serious and were concentrated on the head and accused persons ought to have known that such serious injuries could probably cause grievous harm or the death of Jonah

16. Right to life is protected by article 26 of the Constitution and can only be taken away under the circumstances provided therein. It therefore means that every homicide is unlawful unless authorized by law or excusable under the law. (See Guzambizi Wesonga v Republic [1948] 15 EACA 63). The death of Jonah was intentional and unlawful. I therefore find accused 1, 2 and 3 guilty of the offence of murder and convict him accordingly.

DATED THIS 15THDAY OF DECEMBER, 2022. WAMAE T W CHEREREJUDGEAppearancesCourt Assistant - KinotiAccused 1, 2 & 3 - PresentFor the Accused persons - Mr Wamache AdvocateFor the State - Ms. Mwaniki