[2022] KEHC 16121 (KLR)

Republic v Kariku (Criminal Case E001 of 2021) [2022] KEHC 16121 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16121 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case E001 of 2021

LM Njuguna, J

December 7, 2022

Between

Republic

Prosecutor

and

Benson Murigi Kariku

Accused

Judgment

1. The accused person herein 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 December 5, 2020 at Karuku Village, Karaba Location within Mbeere South Sub-County in Embu County murdered Richard Munene Kinyua. Upon arraignment in court, he pleaded not guilty and a plea of not guilty was entered.

2. The case proceeded for trial and wherein the prosecution called Four (4) witnesses in support of its case; after which it closed its case.

3. PW1, David Maina Kariuki stated that on December 5, 2020at around 1. 40 a.m., he was asleep when somebody called Gichango knocked his door and told him that his employee had been stabbed and had been taken to hospital. That he was informed that Yori Yori alias John was the one who stabbed the deceased and that he had been rushed to White Rose Hospital where he was pronounced dead upon arrival. That he was called by a doctor from the hospital asking the full name of the deceased whom they used to call Karis. He added that the OCS from Makutano Police Station also called requiring him to provide the deceased’s full name and therefore, he took the deceased’s ID card to the said Police Station and thereafter wrote his statement. He was categorical that the person who stabbed the deceased was not the accused herein as he had been told Yori Yori was the one who stabbed him. On cross examination, he stated that he did not witness the incident but only informed the court what he was told.

4. PW2, Michael Muthama Mutinda stated that on the material day, he was at Makutano in the company of Karish, the deceased herein. That as they left work for home, he passed by a shop to pick some items that he had bought and the deceased went his way. That thereafter, the deceased found him and John Mwangi in a club called Kwa Mwalimu where they all stayed. That while there, the deceased said that John, the brother to the accused herein was a thief and John left the club. It was his evidence that he left the club in the company of John Mwangi, they decided to pass by the shop and while there, they heard screams and on going near there they found John and the deceased fighting and separated them and John left for his place but came back later in the company of his brother, the accused herein. He stated that the accused had a rungu which had a bolt while John had a knife; that the accused started beating the deceased on the head and when he fell down, John stabbed him on the left side of the stomach and the head. That they rushed the deceased to hospital and he later gave his statement to the police. He stated that he was able to identify John and Ben because there was electricity lights emanating from somebody’s house and that the incident lasted about ten minutes. On cross examination, he reiterated that it is John who stabbed the deceased.

5. PW3, Dr. Godfrey Njuki Njiru testified that he carried out a post-mortem on the body of the deceased herein and on general examination, he looked pale and the small intestines protruded through a stab wound on the left lumbar region. He thus formed the opinion that the cause of death was cardio pulmonary arrest due to massive internal bleeding from the injured spleen and from the stab wound. He also produced a mental assessment report for the accused person which showed that he was fit to stand trial.

6. PW4, Cpl. Hassan Adan stated that he was the investigating officer and that on the material day, he was informed by the DCIO that there was a suspect at Makuatano Police Station. He went for the suspect and took him to Kiritiri Police Station. That on December 14, 2020, post mortem was done on the body of the deceased and it was found that the cause of death was excessive bleeding. Further, he stated that on December 29, 2020, he took the accused herein for mental assessment where he was found fit to stand trial. That having gone through the statement of John Mwangi and Michael Muthama, they both stated that the accused herein and his brother were fighting, when the deceased tried to separate them but instead, they turned against him; that the accused herein hit the deceased with a rungu while his brother John stabbed him with a knife. That he therefore charged the accused herein with the offence of murder. On cross examination, he stated that the brother to the accused herein has not been arrested yet.

7. After the close of the prosecution’s case, the accused was placed on his defence upon the court finding that the prosecution had established a prima facie case.

8. The accused gave a sworn testimony and stated that on the material day, he was at his place of work where he sells miraa when he heard a distress call and he went there and found his brother John Mwangi fighting with the deceased. That they raised an alarm and his brother ran away while the deceased was left at the scene. He testified that after people came to the scene, they decided to take the deceased to the hospital and that the deceased told them that he was stabbed by John. He stated that John said that he was stabbed as well and that upon leaving the hospital, he went home where he was arrested. He denied having a rungu or hitting the deceased and stated that he only had a torch as it was dark; further that, he did not hit the deceased and that he was not responsible for his death.

9. I have given due consideration to the evidence on record and I find that the issue for determination is whether the prosecution proved its case to the required threshold. The burden to prove all ingredients of the offence of murder falls on the prosecution. The standard of proof is one of beyond reasonable doubt. This threshold has however been stated not to mean proof beyond any shadow of doubt. The standard is discharged when the evidence against the accused is so strong that only a little doubt is left in his favour. (Miller v Minister of Pensions [1947] ALL. E.R 372. )

10. The prosecution must prove all ingredients of the offence of murder in order to sustain a conviction thereof. As per the ingredients provided for under section 203 as read with section 204 of the Penal Code, the prosecution must prove beyond reasonable doubt that there was death of a human being and that it was unlawfully caused with malice aforethought either directly or indirectly by the accused.

11. The first issue for consideration is proof of death. In the instant case, there is no dispute about the deceased’s death. This was confirmed by all the prosecution witnesses, more so by the evidence of PW3 who carried out the postmortem on the deceased’s body and after the examination, reached the conclusion that the cause of death was cardio pulmonary arrest due to the massive internal bleeding from the injured spleen and from the stab wound. Accordingly, it is my view that the prosecution has satisfied this element beyond reasonable doubt.

12. The next issue is whether the death of the deceased was caused by an unlawful act or omission. Article 26 (1) of the Constitution guarantees every person the right to life. The postmortem report prepared by PW3 revealed that the deceased’s cause of death was as a result of cardio pulmonary arrest due to the massive internal bleeding from the injured spleen and from the stab wound.In the circumstances, I am persuaded beyond reasonable doubt that the deceased died out of an unlawful act. The law presumes every homicide to be unlawful unless where the circumstances make it excusable or where it has been authorized by law. See Republic v Boniface Isawa Makodi[2016] eKLR where it was held:“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.’’

13. As to whether the accused person committed the unlawful act which caused the death of the deceased, I have perused the prosecution’s evidence as presented before the court. PW1 was categorical that he never witnessed the incident but was informed that the person who stabbed the deceased was not present in court. He testified that Yori Yori was responsible for the unlawful act and not the accused herein. In his evidence, PW2 stated that it was John who stabbed the deceased and not the accused herein. Of importance to note is the fact that this witness stated that the accused herein participated in the said beating but the person who stabbed the deceased was John whom the prosecution has not presented before this court. The same is buttressed by the findings of PW3 who formed the view that the deceased died as a result of a stab wound. It therefore translates to the fact that the evidence adduced did not implicate the accused herein as the one who caused the death of the deceased. In his evidence, PW2 stated that when people gathered at the scene, the accused and his brother ran away. Further he told the court that he did not know the accused before the date of the incident.

14. When he was put on his defence, the accused stated that he was among the people who took the deceased to hospital after he was stabbed. Both PW2 and the accused agreed that the incident took place at night. Though PW2 in his evidence stated that there was enough light, the accused told the court that he had a torch which therefore means that if even there was light, it may not have been sufficient to have enabled PW2 to clearly see when the deceased was attacked and who participate in inflicting the injuries that caused his death. It would defeat logic and common sense how the accused could have participated in taking the deceased to hospital if he was one of his attackers. One would also have expected the people who had gathered to turn against him and attack him in reiteration or to be hostile to him which was not the case herein. The obvious instinct would have been for the accused person to run away and take cover if he was involved in the heinous act.

15. This court is not persuaded that the accused had a hand in the death of the deceased. The fact that the jacket that he was wearing on that day was produced as an exhibit is neither here nor there. In the first place, he has not denied that he was at the scene. What was important and what the prosecution was required to proof was his participation in causing the death of the deceased. Further, the post-mortem report that was produced by PW3 is conclusive on the cause of the death of the deceased which was cardiopulmonary arrest due to massive internal bleeding from injured spleen and from the stab wound. The evidence available to court is that it was john Mwangi who stabbed the deceased and not the accused herein. The court was told that the said John Mwangi is at large and the police could not trace him to charge him with the offence. This is notwithstanding the fact that the police have all the state machinery to trace and arrest any suspect if they really mean to do so.

16. In the case of Republic v Kipkering Arap Koskei &another[1949] 16 EACA 135, the Court for Appeal for Eastern Africa held as follows:“In order to justify 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 guilt. The burden of proving the facts which justify the drawing of this inference from the facts to the exclusion of any 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.”

17. That being the case, it therefore follows that the prosecution did not prove that the accused person herein was the one who caused the death of the deceased; despite having succeeded in establishing the death of the deceased and the cause of the said death. Having failed to do so, it is my considered view that the prosecution failed to prove all the elements of the offence of murder. It will therefore be an academic exercise to interrogate the issue as to whether the prosecution was able to prove malice aforethought.

18. From the foregoing, the upshot of this judgment is that the accused person herein is acquitted of the charge of murder and is set at liberty unless otherwise lawfully held.

19. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE………………………………………..............for the Accused………………………………………..……………for the State