[2022] KEHC 11323 (KLR)

Republic v Kamau & 2 others (Criminal Case 4 of 2018) [2022] KEHC 11323 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11323 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Case 4 of 2018

LK Kimaru, J

June 14, 2022

Between

Republic

State

and

George Mbotia Kamau

1st Accused

Maurice Wafula Barnabas

2nd Accused

James Barasa Nyongesa

3rd Accused

Judgment

1. The Accused persons, George Mbotia Kamau, Maurice Wafula BarnabaS and James Barasa Nyongesa were jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on the 2February 8, 2018 at Nairobi Ndogo Village within Trans Nzoia East Sub-County, the Accused persons, jointly with others not before court, murdered Elizabeth Nyambura (deceased). When the Accused persons were arraigned before this court, they pleaded not guilty to the charge. The prosecution called nine (9) witnesses in its bid to establish the basis of the information drawn against the Accused persons. After the close of the Prosecution’s case, the court found that the Prosecution had established a prima facie case to place the Accused persons on their defence.

2. This case was initially heard by Chemitei J who took the evidence of all the prosecution witnesses. He was later transferred from Kitale Law Courts after finding that the Accused persons had a case to answer. This court took over the proceedings at that stage. The Accused persons when asked, did not have objection to the court proceeding with the case from where it had reached. The Accused persons gave sworn statements in their defence. After the close of both the Prosecution’s and the defences’ respective cases, the respective Counsel for the Prosecution and the 1st Accused filed written closing submission in support of their respective cases. This court shall revert to the arguments made after setting out the facts of this case as put forward by the prosecution witnesses.

3. The deceased Elizabeth Nyambura was the wife of the 1st accused George Mbotia Kamau, a resident at Kapsara within Trans Nzoia County. They had one (1) child who at the time of the incident was a minor. However, the deceased had other children from a previous marriage. PW1 Paul Ndung’u Kamau, a Kenya Police Reservist (KPR) and farmer and a brother to the 1st Accused person established that the two lived together in their parents’ homestead.

4. According to PW1, PW2 Mary Muthoni (the 1st Accused’s sister) and PW3 Joseph Nduati Njoroge (the deceased’s father), the 1st Accused person and the deceased had been in a two (2) year turbulent marital relationship. PW3 recalled an incident that occurred on 3rd February 2018. On that day, the deceased appeared at his homestead injured and unable to walk. The deceased informed PW3 that she had a domestic dispute with the 1st Accused hence the injuries. He took her to hospital for treatment. However, the incident was never reported to the police. He made efforts to mediate and resolve the disputes between them. He ultimately advised the deceased to live separately from her husband since they had long standing dispute. However, the deceased and the 1st accused resolved to continue living together.

5. On February 28, 2018, PW3 called the 1st Accused and requested for their children’s birth certificates for purposes of formalizing his marriage with the deceased. The following day, PW1 accompanied his wife to his parents’ home. They had work to do there. They found the 1st accused person at home with his child. He told them that the deceased had left to collect her children’s birth certificates. The evidence of PW1, PW2 and PW3 was that the deceased hardly left the child with the 1st Accused person. It was a peculiar occurance.

6. As the day was unfolding, PW1 noticed the 1st accused person dragging something he could not identify to the toilet. He was also piling a heap of soil onto something. When questioned, the 1st Accused informed him that he was sealing holes created by rats. PW1 then gave the 1st accused Kshs. 200. 00 to go do some work elsewhere. PW1 and his wife entered the 1st Accused person’s house and inquired from the child as to the whereabouts of his mother. They advised the 1st accused that it was in the child’s best interest that he be left with PW1 and his wife. However, the 1st Accused dropped the child at PW2’s place. This raised suspicion.

7. The child was dropped at PW2’s home about 2. 00 p.m. The child appeared fearful. When questioned about the deceased, the 1st Accused person informed PW2 that the deceased had gone to collect her children’s birth certificates. At about 4. 00 pm, PW2 called the 1st accused to establish the time the child would be collected. He did not pick her calls. She then informed PW1 of this development.

8. PW1 called Richard Njuguna Waweru, a KPR (PW4) and COrporal Haron Kimosop Number 222184 (PW5). He requested that they get hold of the 1st accused and inquire as to the whereabouts of the deceased. He was suspicious that the 1st accused had committed a crime. He thus remained at the home of the 1st accused. He was later joined by PW4 and PW5 who arrived at 7:00 p.m. In the meantime, the 1st accused appeared at PW2’s home drunk. He asked PW2 to remain with the child.

9. The 1st accused person returned home late in the night. When he opened his house, PW1, PW4 and PW5 saw dry bloodstains on the floor and on the bed. The toilet had a lot of blood. When questioned, the 1st accused stated that he had sealed holes on the ground. He had also slaughtered chicken. He explained that his wife had gone to collect birth certificates for their children. PW4 and PW5 were not convinced by his explanation. The 1st accused was then arrested and taken to the Police Station where upon interrogation he admitted the crime. While admitting the crime, he disclosed that the body of the deceased was buried in the pit latrine. He stated that he had been assisted by the 2nd and 3rd accused. They were subsequently arrested. He explained that he had quarreled with the deceased over a land dispute. He attempted to bribe PW4 and PW5 to escaped being called before the law to account.

10. PW9Corporal Tom Ndolo, the investigating officerarrived at the scene at 3:00 a.m. while PW8 Corporal Benjamin Koono Number 76925 arrived at 5:00 a.m. on 2nd March 2018. He took photographs of the spats of blood on the latrine and bedroom floors. The latrine was demolished. The floor was smeared with mud.

11. The deceased’s body was later extricated from the latrine in the presence of the 1st accused, PW1, PW5, PW8 and PW9. It had been wrapped in a blanket with a sheet and tied with a rope. An observation of the body revealed that the deceased had sustained injuries to the face, chest and on the head. Photographs were taken of the house, sitting room, bedroom, the latrine before, during and after demolition. Also taken were pictures of the spot where the soil was scooped and that of the deceased. The photographs in a bundle were produced into evidence as Prosecution exhibit 3. The body was thereafter transferred to the mortuary where the autopsy was done.

12. On 3rd March 2018, PW7 CIP Joseph Nzioka recorded the 1st accused’s statement . It was in the form of a confession at Cherangany Police Station. The 1st accused nominated his elder sister Marion Nyambura To be present at the time of recording the statement.

13. In his confession, the 1st accused stated that he had been married to the deceased since October 22, 2015. He added that their disagreement began that year. On 27th February 2018, he came home from Kapsara Trading Centre. He found that the deceased was asleep and had not fed the dog. When asked why she had not fed the dog, she retorted that he could feed it himself. The next day, the deceased again failed to feed the dog. He became angry. He slapped her, pushed her and hit her on her thighs and hands with a stick. He then closed the door. As he was approaching the door, the deceased followed him. He pushed her. She fell on the floor. She then asked for a glass of water and after which she died. He then sought help from the 2nd accused who came to his house at 8:00 p.m. The 3rd Accused joined them later. They covered the deceased with a blanket and buried her in the toilet. The 1st Accused added that the following day at 10:00 a.m., he went to bury the area with a heap of soil. PW1 found him putting soil in the toilet but was unaware of the reason why he was doing this. The confession was produced as Prosecution’s exhibit No.2.

14. According to the post mortem report dated 8th March 2018 prepared by PW6 Dr. Moses Okumu at Kitale County Referral Hospital, there were external bruises on the chest. The body was in an early stages of decomposition. The body had bruises on the chest, a fracture of the left rib (9/10) and a fracture of the 8th rib. There was presence of bleeding in the lungs. The scalp had hematoma with cerebral haemorrhage. He formed the opinion that the cause of death of the deceased was cerebral haemorrhage due to severe head injury and chest trauma. The deceased was two (2) months pregnant at the time of her death. The post mortem report was produced as Prosecution’s exhibit No.1.

15. PW9 interrogated all the accused persons. The 2nd and 3rd accused persons blamed the 1st accused for putting them in trouble. He thereafter preferred charges against the three accused persons.

16. The 1st accused, when placed on his defence, stated that he was at PW1’s residence resolving a land dispute he had with PW1 on February 28, 2018. PW3 on the same day informed him to collect the children’s birth certificates. On 2nd March 2018, the 1st accused left home with his brother to go and resolve the dispute to conclusion. His evidence was that the deceased (whom at the time he was married to for eight (8) years) was at home when he returned. They shared a cup of tea together where after the deceased departed with her brother. The 1st Accused then had a drink within the locality and dropped their child at his sister’s place. He went back to his house only to find PW1, PW4, PW5 and PW6 waiting for him. He was then arrested. He was taken to the police station. He was informed that he was behind bars because of the dispute he had with PW1. He was thus surprised when he was arraigned in court and informed that he was facing the charge of murder. He denied knowing his co-Accused persons and denied the charge to the effect that he killed the deceased. He disowned the confession and maintained that the deceased was alive on February 28, 2018. He also denied that he battered his wife on several occasions as there were no police reports filed against him.

17. On the part of the 2nd accused, he testified that on February 28, 2018 and March 1, 2018, he was in Kapenguria with his 1st wife. He was back on March 2, 2018 Kapsara where he went to check his crops. He was asleep at 11:30 p.m. when police officers arrested him at his home. He, together with the 3rd accused were arraigned in court on March 5, 2018. He denied having anything to do with the deceased’s murder. He maintained his innocence. He denied knowing the 1st accused person prior to the charges being levelled against him. He stated he saw him casually at drinking spots.

18. The 3rd accused person stated that he was at work March 1, 2018. At around 11: 45 p.m., he was called by PW5 who was outside his door. He was in the company of police officers. He was arrested in the presence of PW1 and PW3. He was taken at the Police Station where he met the 2nd accused. He claimed that they had been arrested because they were suspected of theft. He was later arraigned in court with the other Accused persons. He denied committing the offence. He denied knowing the 1st accused or the deceased. He however admitted to have seen the 1st accused in a bar.

19. In criminal cases, it is the duty of the Prosecution to establish the charge it has brought against the accused to the required standard of proof beyond any reasonable doubt. This burden does not shift to the accused. In essence, no burden or responsibility is placed on the Accused to prove his innocence.

20. In the present case, the Prosecution adduced eye witness account of what transpired the day after the crime that is said to have occurred on February 28, 2018. The Prosecution further presented a confession from the 1st accused. The prosecution relied on circumstantial evidence to establish the charge of murder brought against the Accused persons. In arriving at its conclusion, this court will rely on circumstantial evidence. As was held by the Court of Appeal in the case of Sawe-vs- Republic[2003] KLR 364 at page 372:“In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution and always remains with the prosecution. It is a burden, which never shifts to the party accused.”

21. According to the evidence of PW1 and PW2, the 1st accused behaved suspiciously on the material day of February 28, 2018. On March 1, 2018, PW1 found the 1st accused piling a heap of fresh soil into the latrine where the body of the deceased was later retrieved. When questioned, the 1st Accused explained that he was sealing the holes created by rats. In the afternoon hours, PW2 was surprised to find the 1st accused and his child at his door. They had never visited her house prior thereto. The 1st accused informed PW1 and PW2 that the deceased had gone to collect the birth certificates of her children. Their further evidence was that the child always accompanied his mother, the deceased. It was further put in evidence that the 1st Accused person and the deceased were constantly fighting. Their marriage was not a happy one. PW1 called PW4 and PW5 when he suspected that the 1st Accused person could have harmed the deceased when the deceased had not been seen for a whole day. When the 1st accused returned home on the night of March 1, 2018, he found PW1, PW4 and PW5 at his residence. The evidence of the three Prosecution witnesses was to the effect that when the house was opened, they saw blood on the floor of the bedroom and the on bed. The 1st accused explained that he slaughtered a chicken.

22. The 1st accused was apprehended for failing to give a satisfactory account of the presence of blood and the absence of the deceased. It was further adduced in evidence that the 1st accused attempted to bribe PW1, PW4 and PW5. He would later admit that he had killed the deceased while at the Police Station. The 1st accused implicated the 2nd and 3rd accused persons in commission of the crime. According to the 1st accused, the two helped him bury the body of the deceased.

23. The 1st accused’s confession led PW4, PW5, PW8 and PW9 to extricate the body of the deceased from the pit latrine and the 1st Accused confirmed that he had dumped the body there. The deceased was positively identified by PW1 and PW3. The postmortem report (Prosecution Exhibit 1) revealed that the deceased succumbed due to cerebral haemorrhage due to severe head injury and chest trauma. The prosecution relied on circumstantial evidence and the confession of the 1st accused produced as (Prosecution Exhibit 2) to establish that indeed it was the 1st accused who caused the death of the deceased.

24. In their defence, all the Accused persons raised defences of alibi. The 1st accused maintained that the deceased was alive on February 28, 2018. He further added that PW1, the deceased and himself shared a cup of tea on March 2, 2018. He insisted that on that day, he had a drink and was arrested when he returned home. The 2nd Accused maintained that on the fateful day, he was in Kapenguria with his wife. The 3rd Accused asserted that he at work the whole day and slept that particular night. They all denied knowledge of each other. The 2nd and 3rd Accused persons further testified that they had occasionally seen the 1st accused at the local bars.

25. This court has carefully evaluated the evidence adduced by the prosecution and the defences of the Accused persons. As stated earlier in this judgment, the Prosecution relied on circumstantial evidence and the 1st Accused’s confession in an attempt to establish what transpired on the material day. This court holds that the evidence adduced by the prosecution is credible, cogent and corroborates each other on all the factual materials to prove that the 1st accused killed the deceased. The prosecution was able to establish that the 1st accused had prior to the fateful day been a batterer of his wife, the deceased. That physical assault of the deceased was not a one off but a pattern of behavior that led the 1st accused to fatally injure the deceased. After killing the deceased the 1st accused dumped the body in a pit latrine in a bid to conceal her death. This court is satisfied to the required standard of proof beyond any reasonable doubt that it was the 1st accused who caused the death of the deceased.

26. As regards the evidence against the 2nd and 3rd accused , this court is not convinced that they assisted the 1st accused in the manner that the 1st accused confessed. In any event, the prosecution did not adduce any other evidence to corroborate the evidence of the 1st accused. It is trite law that the evidence of an accomplice must be corroborated. This is for the purpose of eliminating likelihood that the accomplice may implicate another in order to exonerate himself from the crime or to lessen his role in the commission of the crime (See Karanja &ano. -vs-Republic[1990] KLB.)

27. In the premises therefore, this court holds that the prosecution failed to prove the charge of murder against the 2nd and 3rd persons to the required standard of proof beyond any reasonable doubt. They are thus acquitted of the charge and shall be set at liberty forthwith unless otherwise lawfully held.

28. The issue that remains for determination is whether the 1st accused killed the deceased with malice aforethought. Malice aforethought is defined under section 206 of the Penal Codethus:“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 or a 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.”

33. In the present case, it was clear that the marriage between the 1st accused and the deceased was not a happy one. This was confirmed by the evidence of PW1, PW2 and PW3. In fact, PW3 testified that he advised the deceased and the 1st Accused to separate because of their constant fights. In one instance, the deceased appeared in PW3’s homestead when she was so injured that she was unable to walk. PW1 and PW2 also confirmed that the 1st accused and the deceased quarreled constantly. In his confession, the 1st Accused indicated that he was annoyed by the deceased’s failure to feed their dog. He assaulted the deceased thus causing him to sustain the fatal injuries. It was clear to the court that the 1st accused killed the deceased with malice aforethought. The fact that he did not attempt to take the deceased to hospital after injuring her is clear indication of someone who wanted to eliminate the deceased from this earth.

34. In the premises therefore, this court holds that the Prosecution proved its case on the charge of murder contrary to section 203 as read with section 204 of the Penal Codeas against the 1st accused. 1st Accused is accordingly convicted of murder. It is so ordered.

DATED AT KITALE THIS 14TH DAY OF JUNE 2022. L. KIMARUJUDGE