[2022] KEHC 11227 (KLR)

Republic v Kanini (Criminal Case 18 of 2019) [2022] KEHC 11227 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11227 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 18 of 2019

LM Njuguna, J

June 8, 2022

Between

Republic

Prosecutor

and

Dennis Murimi Kanini

Accused

Judgment

1. The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code and the particulars of the offence being that on the June 2, 2019 Kirinyaga village in Mbeere South Sub-County within Embu County murdered Ismael Njue.

2. When the accused person was arraigned in court, he pleaded not guilty to the charge and a plea of not guilty entered hence the case proceeded to full hearing.

3. PW1, Henry Njagi Mwaniki stated that on June 2, 2019 at around 6. 00 am, he was alerted of screams that were coming from not far from their house. On going out to check, he discovered that the deceased’s house was on fire. On opening the deceased’s house, he found nobody and instead embarked on removing all beddings outside and it is at that point that he saw the accused coming from the house carrying a yellow jerrican. It was his evidence that he enquired to know whether there was a problem and the accused who talked as if he was annoyed told him that ‘’even you, you will see what you shall see’’. In the company of his children, they decided to follow the accused person. He called Fredrick Mbiti and told him to try and meet the accused and he told the said Fredrick that the accused had set the deceased’s house on fire. That, Fredrick agreed, and on meeting the accused on the way, he called him and told him to hurry as he had arrested the accused person who was still holding the jerricane. They went back to the deceased’s house but learnt that the deceased had taken refuge in PW1 son’s house with injuries that he sustained as a result of the burns and the deceased said it was the accused who set his house on fire.

4. The deceased requested them to take him to hospital and on the way, they passed through the police station to report the same and thereafter took him to Kavondori Health Centre where first aid was administered to the deceased before being transferred to Embu Level 5 Hospital where he succumbed to the injuries after 10 days. He identified the jerrican as the one that the accused had on the material day, and that it had 3 litres of petrol. On cross examination, he stated that he never saw the person who set the house on fire.

5. PW2, Charles Mwaniki stated that on June 2, 2019 at 06. 00 am, he heard people making noise and upon getting out of the house, he met the deceased who had injuries and told him that his son wanted to kill him. It was his evidence that he found PW1 who told him that he saw the accused person carrying a jerrican. He stated that the accused was arrested and taken to the house of the deceased. They later took the deceased to hospital where he was admitted until he died. He identified the jerrican as the one the accused had. He however stated that he did not see the accused setting the deceased’s house on fire.

6. PW3, Fredrick Mbithi Kiriamburi stated that on the material day, he got a call from PW1 who told him to come out and help in arresting the accused as he had set fire on the house of the deceased. That on his way, he met the accused who was carrying a jerrican and a piece of wood and he stopped him and he told him they go back to where he had come from. That shortly, PW1 came and they tied the accused person and took him back to the deceased’s house where they found the house partially burnt. On demanding to know from the accused why he did so, the accused responded by saying that the deceased was in the habit of beating him. It was his evidence that he also met the deceased who confirmed that the accused was the one who set the house ablaze.

7. PW4, David Njagi Gatundu stated that on the material day, he was called by PW1 who told him to go to his place as the deceased had been burnt and he needed assistance to take him to hospital. That upon arrival, he found the accused person had been arrested while the deceased was still alive and they took him to hospital but he later learnt that the deceased succumbed to the injuries. It was his evidence that when he arrived, the assistant chief was holding the jerrican.

8. PW5, Esther Wawira Gatundu stated that on June 18, 2019, she attended a postmortem and identified the body of the deceased as that of her brother.

9. PW6, Moses Ndung’u Kimaru stated that he received from PW 9 a 3 litre yellow jerrican marked ‘A’ containing pinkish liquid with instructions to ascertain whether the liquid was flammable. That after analysis, he formed the opinion that the liquid in the jerrican was petrol which is a flammable product.

10. PW7, Fred Martin Mokua stated that he received a report from the deceased to the effect that he had been seriously injured. That he had serious burns on the abdomen and was in serious pain and in company of the people who had escorted him and they said that one Njagi, the younger brother to the deceased was responsible for setting ablaze the deceased. It was his case that he arrested the accused person.

11. PW8, testified that she conducted post mortem on the body of the deceased and she formed opinion that the cause of death was severe thermal (heat) injuries to the face, upper and lower limbs and the mid front chest.

12. PW9, Boniface Bwonga who was the investigating officer stated that he received from the previous investigating officer a jerrican with some liquid substance and a post mortem form duly signed by PW 8. Further that, he took the jerrican (and the liquid substance) to the government chemist to ascertain the contents of the same. That he then proceeded to charge the accused with the offence of murder and thereafter took the accused for mental assessment wherein Dr Thuo formed the opinion that the accused was not fit to stand trial and instead he was taken to Mathari hospital for treatment and he later received a report that the accused was well and fit to stand trial.

13. PW10, Dr Mucheru Wang’ombe testified that from her findings, the accused had been chewing muguka and according to the history, he was diagnosed with alcohol disorder. She saw him on February 17, 2020 and as at then, he was fit to stand trial.

14. After the close of prosecution’s case, the accused was put on his defence and he gave a sworn statement.

15. In his defence, he stated that he was not responsible for the death of the deceased and neither does he know who killed the deceased. That on the material day, he was at home washing his motorbike when a mob approached him and tied him with a rope accusing him of having stolen a goat that the deceased had previously sold to him. That the mob beat him till he lost consciousness and only regained it in the police station.

16. I have considered the evidence presented before this court by the prosecution and the defence. It is trite that in any charge preferred against an accused person, the prosecution has the duty to prove the elements of the same. (See section 107 of the Evidence Act cap 80 of the laws of Kenya. The degree/standard of prove is always that of “beyond any reasonable doubts” [See Miller v Minister of Pensions [1947] 2 ALL ER372 – 373].

17. In the instant case, the accused person is facing a charge of murder contrary to section 203 of the Penal Code. Murder is defined as“when any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”The elements of murder and which the prosecution ought to prove are:a.the death of the deceased occurredb.the death was caused by unlawful acts;c.that the accused committed the unlawful act which caused the death of the deceased; andd.that the accused had malice aforethought.(See Anthony Ndegwa Ngari v Republic [2014] eKLR).

18. The question therefore is whether the prosecution tendered sufficient evidence to prove the above elements.

19. As for the death of the deceased having occurred, it is not in doubt that the deceased herein died. PW8 testified that she conducted post mortem on the body of the deceased. As such, death of the deceased was thus proven.

20. As to the death having been caused by unlawful acts, under article 26 of theConstitution of Kenya 2010, right to life is protected and can only be taken away under the circumstances provided therein. What this means is that every homicide is unlawful unless authorized by law or excusable under the law or under justifiable circumstances such as self-defence or defence to property. (See Guzambizi Wesonga v Republic [1948] 15 EACA 63). PW 8 gave evidence that the deceased’s cause of death was as a result of severe thermal (heat) injuries. The death of the deceased was definitely caused by acts which are not excusable or authorized by law and thus the same was unlawful. [See also Sharm Pal Singh[1962] EA 13 and Daniel Nzioka Mbuthi & another v Republic (supra)].

21. As to whether the accused had malice aforethought, malice malice aforethought is the mental element (mens rea) of the offence of murder. Section 206 of the Penal Code defines it as follows;206. 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)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.

22. The Court of Appeal inBonaya Tutu Ipu & another v Republic [2015] eKLR stated as follows on the prove of malice aforethought;-“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit v Uganda, CR APP NO 95 OF 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex v Tubere s/o Ochen (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick……”

23. On whether the accused person herein committed the unlawful acts which caused the death of the deceased herein, in this case, there was no eye witness. The prosecution is relying on circumstantial evidence to prove the charge of murder against the accused person herein. The Court of Appeal set out the test of determining whether the prosecution has established its case against an accused based on circumstantial evidence in the case of Abanga alias Onyango v Republic CR A No 32 of 1990 (UR) in the following terms:a)The circumstances from which an inference of guilt is sought should be drawn and must be cogently and firmly established.b)The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused person.c)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.”[See Simon Musoke v R (1958) EA 71; Sawe v Republic [2003] KLR 364 at pp 375-6].

24. In Mukungu v Republic [2002] 2 EA 482, the Court of Appeal citing Mutonyi v Republic [1982] KLR 2003, held that:“An important element in the definition of corroboration is that it affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it: See Republic v Manilal Ishwerlal Purohit [1942] 9 EACA 58, 61. ”

25. PW1, PW2 and PW3 testified that the deceased had told them that the accused was the one responsible for setting the house on fire and that he wanted to kill him. Under section 33(a) of the Evidence Act, a statement made by a deceased person relating to his cause of death is admissible in evidence:“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.”

26. In Philip Nzaka Watu v Republic [2016] eKLR, the Court of Appeal stated the following on admission and reliance on a dying declaration:“Under section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements. ……….….. While it is not the rule of law that a dying declaration must be corroborated to found a conviction, nevertheless, the trial court must proceed with caution and (sic) to get the necessary assurance that a conviction founded on a death declaration is indeed safe.”

27. PW1 stated that at the material time, he found the deceased’s house on fire and saw the accused coming from the house holding a jerican. Further that, the deceased informed him that the accused was the one who had set the house on fire. This was corroborated by the evidence of PW2 and PW3 who testified that the deceased told them that it was the accused who wanted to kill him. The accused was, not long after the house of the deceased was set ablaze, seen with a jerrican containing a substance which on being subjected to analysis was found to be petrol and flammable. He could not give a reasonable explanation of what he was doing with it and what it was for. From that evidence, it is clear that the accused is the one who set the house of the deceased on fire thus causing the deceased the injuries from which he succumbed to.

28. The issue of the accused mental illness arose during the hearing. I note that the accused herein was taken for mental assessment and the report by Dr Thuo indicated that he was unfit to stand trial. The law on sanity and insanity is contained in sections 9 to 12 of the Penal Code, the starting point being section 11 which provides that every person is presumed sane and responsible for his actions at all times including when he is alleged to have committed an offence because sanity is the normal and usual condition of mankind. Section 11 of the Penal Code is thus provides;“11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.”

29. The presumption of sanity is, however, rebuttable, hence the recognition in criminal law, of the defence of insanity. This is provided for in section 12 of the Penal Code, which provides for the application of the defence of insanity in the following terms:“12. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is, through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.”

30. This section must be read together with section 9 of the Penal Code which provides:“9. (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.”

31. This is the basis of the generally accepted notion that persons who cannot appreciate the consequences of their actions should not be punished if those actions happen to be criminal acts. Both section 12 aforesaid and the McNaughten Rules, in the old famous McNaughten’sCase, 1843-10 C & F 200, recognize that insanity will only be a defence if it is proved that at the time of the commission of the offence charged, the accused person, by reason of unsoundness of mind, was either incapable of knowing the nature of the act he is charged with or was incapable of knowing that it was wrong or contrary to law. The test as to insanity is strictly at the time when the offence was committed and no other.

32. The evidence that will best disclose the state of mind of the accused at the time of commission of the offence is: evidence of his mind-frame leading to the occurrence of the act; what the accused actually did at the material time, and what those around the accused observed contemporaneously with the occurrence of the act.

33. PW2 who is a cousin to the deceased testified that the accused was operating a boda boda before this incident. Infact, it is on record that he told the court that he was arrested when he was washing his motorbike. Though the psychiatrist report dated August 7, 2019 showed that he was not mentally fit to stand trial, a subsequent report dated December 2, 2019 shows that he was, by then, capable of making his defence. According to PW 10 (Dr Mucheru Wang’ombe), when she saw him on February 17, 2020, she formed the opinion that the accused was mentally fit. In view of the above, I find that the accused person is mentally fit as no evidence has been offered to show that he relapsed after the first mental examination.

34. In the final analysis, I find and hold that the prosecution proved beyond any reasonable doubt all the elements of the charge of murder. Accordingly, I find the accused guilty as charged and convict him accordingly.

35. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 8TH DAY OF JUNE, 2022. L NJUGUNAJUDGE........................for the Accused......................for the Respondent