[2023] KEHC 19137 (KLR)

Republic v Kanisa (Criminal Case 5 of 2020) [2023] KEHC 19137 (KLR) (14 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19137 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 5 of 2020

LM Njuguna, J

June 14, 2023

Between

Republic

Prosecution

and

Alex Kanisa

Accused

Judgment

1. Alex Kanisa hereinafter referred to as the accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence being that on 29. 11. 2014 at Siakago Trading Centre in Siakago in Mbeere North Sub County within Embu County murdered Erick Gitonga. The accused person pleaded not guilty to the charge and in support of its case, the prosecution called nine (9) witnesses.

2. PW1, Stella Muthoni Mati testified that on 04. 11. 2014, she received a call from her sister, one Luciana Wawira informing her that the deceased had been arrested. That she went to Siakago Police Station where she met PW2 who told her of the happenings which involved her brother. She stated that the OCS, Siakago Police Station informed her that the deceased was injured and had been taken to Embu Level Five (5) Hospital. That upon visiting the deceased at the said hospital, the deceased told her that, on the 3/11/2014 he went to their house at around 7. 00pm where he was living with one Niceta and found her with another man. He demanded for his clothes and belongings but Niceta locked the deceased, the children and the other man in the house and when she later came back, and opened the door, the deceased felt some pain and he realized he had been shot. It was her testimony that the deceased had injuries on the left side of the stomach. That on the 3/12/2014, she identified the body of the deceased to the pathologist who conducted the post mortem.

3. PW2, Nicholas Nthiga Mwaniki testified that he knew the deceased as he used to visit Nicetta who had rented a room in a plot where he acted as an agent. That the deceased and Nicetta were living together as husband and wife. On 03. 11. 2014, he heard some noise emanating from the said house rented by Nicetta and the deceased and he went to check and upon getting there, he found the deceased being pushed by the accused person herein; that he opened the gate and the duo left the compound but shortly thereafter, he heard a gunshot. He stated that upon returning to his house, he heard a gunshot. On cross examination, he reiterated that the accused person had been called because there were two men in Nicetta’s house and both were quarrelling. That the accused person had been called to restore order for the reason that the deceased was being difficult by refusing to get out of Nicetta’s house. He reiterated that he could not tell how the deceased met his death.

4. PW3, Abdikadir Diba testified that he is currently attached to Siakago Police Station and he is in charge of armoury. It was his evidence that on 03. 11. 2014, a rifle AK 47 body number 7300366 of caliber 7. 62 mm and 30 rounds of ammunition were issued to the accused person. That on the same day, a report via O.B No.30/21. 43 hours was made by one Nicetta Muturi who reported that the deceased had entered her house and was causing disturbance. Another report was made vide OB 31 at 2200hours by CI Singidu to the effect that one member of public was escorted to hospital with a gunshot at the back. Further, another report was recorded as O.B No. 33 at 20. 02 hours when the accused person upon returning to the station, reported that a report had been made by one Nicetta Muturi in regards to the fact that the deceased was at her place and, was creating disturbance and she needed help to take out the deceased out of her house. That he made his way there and ordered the deceased to get out of the said house but he refused to. It was further reported that with the help of the complainant and the landlord, they managed to take the deceased out of the complainant’s house and escorted him out of the compound. That in the process of all these, he spent one ammunition of 7. 62mm.

5. PW4, Anthony Mugendi Njue testified that on 03. 11. 2014 he received a call from Nicetta who used to wash clothes for him at a pay, asking for her dues. That he told her that he was far away and would only pay her once he gets back home. That upon getting home, he went to her house where he found her with her three children. He stated that while there, another man entered the house and Nicetta demanded to know why the man had visited her yet she had previously warned him against doing so. That the man requested Nicetta to see her out since he was no longer welcome in the said house, but Nicetta turned down the request and the same angered the man who got back to the house. Nicetta got out of the house and locked the door. It was his evidence that they stayed in the said house for roughly one hour before Nicetta in the company of an armed police officer returned to the house. The police officer ordered the man out of the house but he refused. That the commotion attracted the landlord who also requested the man to leave the house. The man agreed to leave the compound in the company of the officer but after about three months, he heard that the man had passed on.

6. PW5, Florence Karimi stated that on 12. 03. 2015, some exhibits were submitted to the laboratory by one P.C. Tobias Oduor from Siakago Police Station to wit A.K. 47 (exhibit A and 29 rounds of ammunition marked as B.1 –B29. She stated that she successfully test fired the firearm with three rounds of ammunition which she randomly picked from exhibit B1-B29. She recovered the test cartridges which she marked as TC1 – TC3. That exhibits B1 – B2 were rounds of ammunition of caliber 7. 62x39 mm and each was in good working condition. It was her evidence that she formed the opinion that exhibit A and B1 – B29 were capable of being fired and that they were a firearm and ammunition respectively as defined under the Firearms Act Cap 114 Laws of Kenya.

7. PW6, Eliakim Kipkoech Silgichi testified that on the material day, he was recording statements from some officers when he heard someone groaning in pain outside. That upon checking, he found the deceased lying down writhing in pain. The person told him that he had been shot by a police officer who was well known to him. He stated that a lot of blood was oozing from the stomach and he summoned officers and together they put the deceased in a police land cruiser and as they were about to leave for the hospital, the accused herein emerged and he asked him to record everything that happened in the O.B. It was his evidence that on 04. 11. 2014, he summoned Nicetta to the station and she took to him the knife that allegedly was with the deceased. That he later recorded statement from the accused herein after which he forwarded the file to the Division with recommendation that the file be taken over by the D.C.I. On cross examination, he stated that it is not normally the duty of the officer on duty to respond in case that is reported and that there is a procedure laid down for answering distress calls.

8. In further cross examination she stated that the barrel did not have a serial number though it was also his evidence that it did not have to be serialized to match with the body of the firearm. It was her evidence that she examined firearm 3003636 and not 23003636. That she was not presented with spent cartridges and the bullet that was fired was from the firearm. That it would have been necessary to examine the spent cartridge or bullet to relate it with the firearm.

9. PW7, Dr. Joseph Ndung’u testified that he carried out post mortem on the body of the deceased and on examination, he noted that the same had a gunshot entry wound on the upper part of the abdomen on the right side. There was also an exit gunshot wound on the lower part of the back which measured 4x3 cm. On opening the abdomen, there was a perforated colon and ileum which had been repaired surgically. He formed the opinion that the cause of death was as a result of infection within the abdomen which infection occurred as a result of a single gunshot to the abdomen.

10. PW8, Dr. Sheilla Shavulimo testified on behalf of Dr. Thuo who conducted mental assessment on the accused person and found that he was fit to stand trial.

11. PW9, Javas Mutwiri Mworia testified that he carried out investigations and recorded statements from the witnesses wherein he established that Nicetta and the deceased were living together as a husband and wife in a plot owned by PW2. That on 03. 11. 2014, Nicetta called PW4 to bring her some money when a confrontation ensued between him and the deceased. He recovered the arms movement register which showed the accused was issued with A.K 47 No. 23003636 which he returned in good condition. That in the O.B. it was indicated that he spent one ammunition though the information was not captured in the armoury register. On cross examination, he stated that he could not establish with utmost certainty whether the deceased was shot by the accused person or the bullet that shot the deceased was discharged accidently.

12. The prosecution proceeded to close its case and in a ruling delivered on 5. 10. 2022, the accused person was put on his defence upon the court found that the prosecution had established a prima facie case.

13. DW1, Alex Kanisa testified that on 03. 11. 2014 he reported on duty after he took over from his colleague, P.C. Kiarie. He was allocated a firearm, AK 47 Serial Number 23003636. That while in the office, a lady by the name of Nicetta Muturi came to report a case of creating disturbance. The complainant was crying that she be accompanied to her house and since it was raining, he called PC Kisaka but he did not respond. He therefore heeded to the requests by the complainant and accompanied her to house where he found two men. That the deceased took a knife and threatened to attack him when he tried to get him out of the house. It was his case that with the help of PW2, they were able to get the deceased out of the compound. That at that point, the deceased retrieved the knife from his trouser pocket and grabbed his firearm and as they were struggling, the deceased touched the trigger of the fire arm and it fired. That he went back to the station and reported the incident and as he was reporting, the deceased also arrived at the station and reported the same incident. On cross examination, he stated that when he left the station, he did not book the report in the O.B and further that, he went alone since there was no one else in the station. Additionally, he confirmed that it is the responsibility of every officer to ensure the safety of his weapon.

14. At the close of defence hearing, the prosecution chose to rely on the evidence on record while the accused person submitted that there was no doubt that the deceased herein died. That the accused person being a police officer, was responding to a distress call and since the deceased had previously been reported to be creating disturbance, the best that the accused could have done was to respond to the same. It was also submitted that a police officer can justify firing his weapon when his life or property is in danger. It was stated that any injuries sustained can therefore be legally permissible in the premise. He relied on Order 11(2) of the NPS Standing Orders and the Sixth Schedule of the NPS Act No. 114 of 2011 read together. Further reliance was placed on Section 17 of the Penal Code and the case of Palmer Vs Republic [1971] AC 814. Therefore, it was submitted that the discharge of the ammunition from the firearm at close range was unintentional and the same only happened because the deceased was trying to snatch the firearm from the police officer, the accused person herein. That the unintentional shot by the accused person who is of many years of experience as a police officer was buttressed by the entry point of the bullet in the deceased’s body.

15. That the accused person’s intention was not established as the prosecution did not shift the burden to the accused person herein. Reliance was placed on the case of Rex Vs Tubere s/o Ochen 1945 12 EACA 63 which laid guidelines for trial judges in consideration of malice aforethought.

16. I have considered the evidence adduced herein by the prosecution witnesses and the defence proffered by the accused person. The main issue for determination is whether the prosecution has proved its case against the accused person to the required standard and which standard has been held to be that of beyond any reasonable doubt.

17. Section 203 of the Penal Code provides that:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

18. For the Prosecution to secure a conviction on the charge of murder, it has to prove four main elements against an accused person. In Anthony Ndegwa Ngari Vs Republic [2014] eKLR, the elements of the offence of murder were listed as follows:a.that the death of the deceased occurred;b.that the death was due to an unlawful act or omission;c.that it was the accused who committed the unlawful act or omission which caused the death of the deceased; andd.that the accused had malice aforethought.

19. On whether there was proof of death and the cause of the said death, the death of the deceased was proved by the evidence of PW1, 3, 7 and 8. PW1, the deceased’s sister attended the deceased’s post-mortem that was carried out on 03. 12. 2014 at Kenyatta National Hospital by PW8 Dr. Joseph Ndung’u.

20. As to the cause of the deceased’s death, PW8 Dr. Joseph Ndung’u produced a post-mortem report as PEX 2 detailing the injuries found on the body of the deceased and his opinion on the cause of death as being peritonitis due to gut perforation due to single gunshot to the abdomen.

21. On whether the death of the deceased was caused by an unlawful act or omission, the aspect of when an act causing death can be said to be lawful has been recognized from the time immemorial. Article 26 of theConstitution is clear that every person has the right to life and that a person shall not be deprived of life intentionally except as provided in law. In Guzambizi Wesonga Vs Republic [1948] 15 EACA 65 the Court stated:“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable it must have been caused under justifiable circumstances, for example in self-defence or in defence of property.”

22. As stated above, there is no doubt that the death of the deceased was caused by the injuries that he sustained as was detailed in PEX 2. There is no evidence showing that the injuries found on the body of the deceased were self-inflicted or that it was justified in any way under the law. The evidence presented before court irresistibly points to an unlawful act that led to the death of the deceased following a gunshot. Accordingly, I find and hold that the death of the deceased was caused by an unlawful Act.

23. On whether the prosecution have proved beyond reasonable doubt that it was the accused person herein who committed the unlawful act which caused the death of the deceased, from the onset, the burden of proof lies on the prosecution throughout the trial and that burden does not shift to the accused person even if the accused chose to remain silent as that is his constitutionally guaranteed right. See Article 50(2) (i) of theConstitution. In addition, the accused has the right not to give any self-incriminating evidence. [See Article 50(k) of theConstitution].

24. The accused person herein has not denied committing the unlawful act that led to the death of the deceased but rather submits that the same was done unintentionally for the reason that the deceased was on the verge of stabbing him with a knife and further, the deceased had reached out to the firearm and in the process of the struggle, the firearm fired a single shot and injured the deceased.

25. Malice aforethought constitutes the mental element of the offence of murder, that is, mens rea or the intention to kill another person. Section 206 of the Penal Code defines it as follows;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. 26. In determining whether there was malice aforethought, the court must look at the entirety of circumstances and in particular, the nature of weapon used and the manner in which the deceased was injured all of which, are a manifestation of the malice aforethought. This principle was elucidated by the Court of Appeal in Bonaya Tutu Ipu & Another Vs Republic MLD CA Criminal Appeal No. 43 & 50 of 2014 [2015] eKLR where it stated as follows: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 -vs- Uganda, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in 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 -vs- 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…

27. In IP Veronica Gitahi and Another Vs Republic MSA CA Criminal Appeal No. 23 of 2016 [2017] eKLR, the Court of Appeal dealt with the scope of application on the use of force with the firearm under the National Police Service Act vis-a- vis the common law and in particular the defence of self defence. It observed as follows:In our view in light of the above express provisions of the National Police Service Act regarding use of force and firearms by the police in self defence, there is no room for invoking section 17 of the Penal Code and applying the principles of the Common Law on self defence. The provisions of the Act are a complete and exhaustive code and demand that a police officer must resort to non-violent means as the first option and to use force only when non-violent means are ineffective. In addition even where the use of force is justified, the officer does not have a carte blanche in the use of force. The Act demands that the force used must be proportional to the objective to be achieved, the seriousness of the offence and the level of resistance, and still, only to the extent necessary. When it comes to use of firearms, the Act makes that a last resort option.

28. To determine whether a police officer has used force or a firearm as required by the Act therefore, cannot be a subjective issue. The court must evaluate all the circumstances surrounding the use of force or firearm so as to determine, for example, whether force was used as a last option; whether it was proportionate to the threat that confronted the police officer; or whether the officer had made all effort to avoid the use of firearms.

29. In the case herein, a review of the accused person’s evidence is to the effect that upon heeding to the requests by the complainant and thereafter accompanying her to her house, he found two men. That the deceased took a knife and threatened to attack him when he was trying to get the deceased out of the said house. That the deceased grabbed his firearm and as they were struggling, the deceased touched the trigger of the fire arm and it thus fired.

30. In the scenario created herein, the deceased was allegedly armed with a knife while the accused had a rifle. The question that one would ask is whether the accused person herein is being truthful by saying that he felt threatened. The court also notes that none of the prosecution witnesses mentioned that the deceased had a knife with him. Also the circumstances under which the knife was recovered are also very suspicious. The court was told that it is the complainant who recovered it in very unclear circumstances.

31. In determining whether there was an accidental discharge or whether the accused person intentionally shot the deceased herein, this court has taken the liberty to assess the process of releasing a shot from a gun. Indeed, it is its finding that the process includes loading ammunition(s) into the magazine, inserting the magazine well in the gun, cocking the gun, removing the safe catch and thereafter pulling the trigger. The accused person stated that in the process of struggling, the gun discharged the bullet that killed the deceased person and therefore, the same was pure accident. In my view, the contrary is true for the reason that as already shown above, the process of firing encompasses several stages and in this case, the accused had to cock the gun, remove safe and thereafter pull the trigger. But even for a moment, assuming that the safe catch was already removed, the accused person is a police officer of over twenty years’ experience and would have known and acted better. [See IP Veronica Gitahi and Another Vs Republic MSA CA Criminal Appeal No. 23 of 2016 [2017] eKLR. It is my view, therefore, that the accused ought to have known that pulling the trigger of a riffle which already had transferred a live ammunition into the chambers was ripe for firing hence causing death or grievous bodily harm. I therefore reject the theory of accidental discharge and find that the accused did not have any justification for discharging the ammunition.

32. The accused being a police officer ought to have known that shooting the deceased or indeed any other person with a firearm would cause grievous harm or indeed death. Counsel for the defence has submitted that the accused person had no motive to kill the deceased herein but of importance to note is the fact that according to Section 9(3) of the Penal Code, motive is irrelevant in proving the commission of murder particularly where the evidence is clear and direct. I therefore find that the prosecution proved malice aforethought in line with Section 206(a) of the Penal Code.

33. I find the accused herein guilty of the offence of murder contrary to Section 203 of the Penal Code and I convict him accordingly.

34. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF JUNE, 2023. L. NJUGUNAJUDGE