[2018] KEHC 8894 (KLR)

Republic v Kirigia & 2 others (Criminal Case 11 of 2016) [2018] KEHC 8894 (KLR) (14 December 2018) (Judgment)

Neutral citation: [2018] KEHC 8894 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case 11 of 2016

DAS Majanja, J

December 14, 2018

Between

Republic

Prosecutor

and

Jotham Ikunda Kirigia

1st Accused

Parminus Murimi

2nd Accused

Benard Muchiri Njoka

3rd Accused

Judgment

1. The accused, JOTHAM IKUNDA KIRIGIA, PARMINUS MURIMI and BENARD MUCHIRI NJOKA are police officers. They are charged with two counts of murder contrary to section 203 as read with section 204 of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the offences are that they murdered APC Wycliffe Otieno Ndiga (“Wycliffe”) and John Oduor Omondi (“John”) on 13th September 2014 at Manyatta Estate, Kisumu East Sub-County within Kisumu County.

2. It was not in dispute that the deceased died as a result of wound inflicted on them as a result of gun shots. Dr Dixon Mchana (PW 7), who conducted post-mortem examinations on both the deceased at Jaramogi Oginga Odinga Teaching and Referral Hospital on 18th September 2014. He formed the opinion that the cause of death was internal bleeding secondary to gunshot wounds.

3. Everlyne Achieng Atsegere (PW1), the deceased Wycliffe’s wife, was at their home on the 13th September 2014. She was together with her was her daughter Tamara Akinyi Otieno, niece Irene Atieno (PW3) and house help, Deborah Aluoch (PW4). At around 1:30 pm, Wycliffe came home with his brother John. He headed into the bedroom while John remained in the sitting room in the company of Tamara, PW 3 and PW 4. As they were seated in the room the three accused came up to the door step. PW 1 testified that the 2nd accused removed a small gun from his waist as he entered the house. The three accused then moved over to John and handcuffed him, and asked “ako wapi huyo kijana mwingine?”. At that point, Wycliffe came into the sitting room, and he was handcuffed together with John. They were ordered to sit down on the sofa set, while Everlyne, Irene and Tamara were ordered out of the house.

4. As Everlyne left the house, she heard the 2nd accused say to Wycliffe and John “nyinyi ndio mutesumubua sana haki ya mungu leo nitawamaliza.” Everlyne started screaming and the 2nd accused chased her out again, so she ran to her neighbour’s compound. From there, she heard a total of five gunshots. One of her neighbours, Mama Joylene got her and they left together. Upon their return to the house later that day, she found the bedroom and the kitchen had been ransacked, and there was blood on the 3 seater chair that the deceased had been ordered to seat.

5. The incident was overheard by Priscilla Nyaboke (PW8) who was at her home in Manyatta. She heard someone ask Everlyne to leave her house; Priscilla went outside and asked Everlyne why she was being told to leave her house, and a few minutes later, she heard a gunshot. She ran back into her house while Everlyne went behind the landlord’s house. She then heard someone in Everlyne’s house say,“The person has not died” and heard another gunshot. Thereafter, she saw three people, whom she identified as the three accused, leaving the house. She was later informed that one of the people that they had killed was a police officer.

6. Juliet Atieno Karan (PW2) was the wife to the 2nd deceased. On the 13th September 2014, someone came and called her and took her to Everlyne house. She saw her husband lying down on his side, and saw people carrying Wycliffe’s body from the house. Where the second deceased was lying down, there were three phones, among them Everlyne’s phone. Some clothes, the 1st deceased’s ID and a black rod measuring about one meter. Thereafter, she headed to the hospital when she was stopped and taken to the social hall in Manyatta where they were beaten and accused of living with robbers. The 2nd accused was there and she heard him say “nimeanguasha wanyama wawili”.

7. In September 2014, Gradus Adero Atida (PW4) was serving as the County Administration Police Commander. On the material day, he was called by the OCPD Musa Kongoli who told him that there had been an accident and that a civilian had been gunned down and found with a police uniform. He arrived at the scene of the accident at about 3:00pm and was informed that the body had already been taken to the mortuary. Around this time, the family of the 1st deceased arrived and identified themselves. He then went into the house and discovered blood on the floor of the house. He also discovered that the civilian in question was the 2nd deceased. He was informed by Everlyne what had transpired and briefed his supervisors.

8. The matter was reported to Chief Inspector Peter Kinuthia (PW 9), who was at the time, the officer in charge Crime at the Kondele Police Station. On the material day, he was called by the control room to proceed to Manyatta Area, and when he was informed that there had been a robbery at Tuff Foam Mattresses in Kisumu. It was stated that the robbers were in a motor vehicle KBQ 691V which was found in Manyatta. His officers had seen the vehicle stop, two people come out and the vehicle being driven off. The officers were outside a house while the 1st accused was arranging items that he had found inside the house, among them an Uzi Gun, serial number BAR7420 and some uniforms. He went in the house and found two dead bodies, more uniforms, handcuffs and money in the form of notes. There were also keys for the handcuffs. While he was there, he received information that one of the alleged robbers was a police officer who was stationed at Koibatek AP Camp in Eldama Ravine, who had been on leave, while the other was a civilian called Njoro.

9. The bullets in question were examined by Chief Inspector Alex Chirchir (PW11) on the 28th November 2014 after he received them from Pauline Njoroge (PW 14), an officer from Independent Police Oversight Authority (IPOA). He determined that exhibit A is bullet of 9mm caliber which was formerly a component of the round of ammunition in caliber 9 X 19mm. He did comparative tests and determined that the bullet exhibit A had been fired from exhibit A1 which was a Ceska pistol serial number SN H4286.

10. Corporal Joel Juma (PW13) was then working under the DCI Kisumu East Sub County. On the material day, he was at Kisumu Police Station when a robbery was reported at Tuff Foam shops in Kisumu. He and his colleagues proceeded to the scene where there were informed that two men, armed with a firearm, had attacked employees of Tuffoam Mattresses and gotten away in a white Toyota Wish registration KBQ691V. After a while, he heard that the vehicle had been spotted along Manyatta by SPIV officers who were attached to Kondele Police Station. The officers had pursued the vehicle and two occupants had alighted near Kosawo Primary school. The three police officers followed the two people who alighted as the vehicle took off. They followed them into a house, where the SPIV officers challenged the suspects. It was alleged that one of them was armed with a firearm and as a result, the SPIV officers shot at the suspects and fatally wounded them.

11. In the course of his investigation, he entered the house and found the two deceased. Outside the house, he found several items displayed, including an Uzi Firearm, a magazine, a bundle of money and an assortment of clothes. Three of the victims from the robbery at Tuffoam mattresses visited the scene and identified the deceased as the people who had robbed them.

12. The Investigating Officer, Pauline Wambui Njoroge (PW14), was tasked with investigating the circumstances surrounding the death of the two deceased. Her investigation concluded that the shooting was intentional and that while the accused were armed and on duty, the officers had enough time to arrest and handcuff the deceased in accordance with the law. In her view, the accused were not in any danger that necessitated the use of force, and they had enough time to handcuff and arrest them.

13. After consideration of the evidence that had been adduced by the witnesses for the prosecution, the three accused were determined to have a case to answer and were placed on their defence.

14. The 1st accused testified that at around 11:00 am on the date in question, he received information of a robbery at Tuffoam Mattresses in Kisumu Town involving a motor vehicle KBQ691V Toyota Wish. He and the other accused went on patrol to Manyatta estate and saw the vehicle whose registration had been circulated. He called the station to confirm the details of the vehicle and once this was done, they followed the vehicle to Kondele. He and the 2nd accused were armed with Ceska Pistols. They followed the vehicle until it stopped and the deceased alighted. The two entered into a house, where they knocked and identified themselves as police officers. There were some women in the house who left the house; at the time, only the 2nd deceased was in the room, while the 1st deceased was coming out of the bedroom.

15. The 1st accused asked the deceased if they had alighted from the vehicle that had been seen but got no response. One of the deceased held down an item covered in a cloth, which the 1st accused discerned to be a gun. The 1st accused asked the suspect to surrender, but he did not. The 1st accused therefore drew his gun, cocked it, and after hearing a gunshot from inside the house, shot twice into the house with the intention of disarming the deceased. After the shooting, the 1st and 3rd accused reported the incident to their superiors and when they arrived, they underwent the process of investigations and recovery of items that were found in the house.

16. The 2nd accused gave a similar account. He stated that once the vehicle stopped ahead of them at the junction, two men alighted. One was carrying a bag while the other was carrying a jacket. They followed them, but they lost sight of them, but a boy they found along the way gave them directions. Upon arrival at the house, they found the door ajar and introduced themselves as police officers. There were two women and a child in the room who left the house. He entered the house and asked the two deceased to surrender. The man in the stripped shirt stood up and moved a cloth on the table and revealed a gun muzzle. He then heard a gunshot, he shot once in the air to scare the suspects.

17. Bernard Muchiri Njoka, the 3rd accused, corroborated the accounts given by the 1st and 2nd accused. He added that once the compound had been secured, two people who were victims of the robbery that had taken place earlier that day at Tuffoam came identified the bodies of the deceased as the people who had earlier on robbed them.

18. Evidence of the robbery at Tuffoam Matressess was led by James Odhiambo Atambe (DW 4) who was working as a driver there. On the material day, he was asked by the accountants, Harshuardham Savalkar (DW5) and Hewal to drive them to their factory. As they made to leave the parking, they were unable to as there was a vehicle blocking the gate. A man alighted from the vehicle and went to the left passenger side where Hashuardham was seated, and told him “leta hiyo”. The man opened his jacket and removed a gun and demanded money. There was another man who had a white t-shirt who grabbed a green Safaricom bag from Hash and went and entered a white Toyota Wish, KBQ691V. After the robbers had left, he called some officers who usually patrol the vicinity and informed them of what had transpired.

19. About an hour later, a police officer came to their premises and asked them to accompany them to Manyatta near Kosao Primary School who were said to be the assailants. They went into the house and found two deceased persons seated on the two-seater couch and he positively identified them as the people who had robbed them earlier. He was shown a gun and saw the police recover various exhibits among them an AP uniform, handcuffs and bullets.

20. To prove that the accused committed the offence for which they are charged, the prosecution must establish the fact of death and the cause of the death of the deceased, that the accused committed the act that caused the death of the deceased and finally that the accused committed the act with malice aforethought.

21. The fact of death and cause of death is not disputed. It was conclusively proved by the evidence of Dr Dixon Mchana (PW 7) who conducted post-mortem examinations on both the deceased and in both cases, formed the opinion that the cause of death was internal bleeding secondary to gunshot wounds. From the ballistic examination, it is also not beyond dispute that the shots that killed the deceased were fired by the 1st accused and 2nd accused.

22. The question that this court must determine is whether in causing the death of the deceased, the accused acted with malice aforethought. Section 206 of the Penal Code sets out the circumstances under which malice aforethought would be established. These include an intention to cause death or do grievous harm or knowledge that the act causing death will probably cause death. Thus, I must consider whether the accused, in shooting the deceased persons, intended their death or that grievous harm be caused to them.

23. The position led by the prosecution is that is that the accused had a plan to execute the deceased persons, and that the death of the deceased was not in self-defence as they claim.

24. At this juncture it must be noted that the 3rd accused did not fire any shots on that fateful day as he was not armed. In order to implicate him the prosecution has to establish a premeditated plan or common intention to kill the deceased. The evidence led by the defence is clear that while the events in question were taking place, the 3rd accused was positioned behind both the 1st and 2nd accused. None of his actions led to the death of the deceased.

25. Police officers are allowed to use firearms subject to the provisions of the National Police Service Act. Section B of the Sixth Schedule thereof provides for the conditions as to the use of firearms. At section 1(b) provides that:Firearms may only be used when less extreme means are inadequate and for the following purposes—…(b)in self-defence or in defence of other person against imminent threat of life or serious injury;

26. In Republic v Andrew Mueche Omwenga Criminal Case 11 of 2008 [2009] eKLR the court considered the meaning of self-defence and rendered itself as follows:A person is justified in using a reasonable amount of force in self-defence if he or she believes that the danger of bodily harm is imminent and that force is necessary to repel it. This defence therefore turns on two requirements: one, that the force must be necessary and secondly that it must be reasonable.

27. It is also settled that in order to rely on self-defence, there need not be an attack. It is sufficient that that the person believes that he was under imminent attack, as was stated by the Court of Appeal in Roba Galma Wario v Republic Criminal Appeal 159 of 2014 [2015] eKLR as follows:The essential element of self defence is that the accused believed that he was being attacked or in imminent danger of being attacked but this belief should be based on reasonable grounds. The ground of self defence also fails as evidence on record does not bring out that the appellant faced any kind of danger that made him fear for his life.

28. If a killing occurs in the course of self-defence, the sentiments of the Court of Appeal in Anthony Njue Njeru v Republic [2006] eKLR (Criminal Appeal 77 of 2006) would be instructive. In that appeal, the Court observed thatA killing of a person can only be justified and excusable where the action of the accused which caused the death was in the course of averting a felonious attack and no greater force than was necessary was applied for that purpose. For the plea to succeed, it must be shown by the accused on a balance of probabilities that he was in immediate danger or peril arising from a sudden and serious attack by his victim. It must also be shown that reasonable force was used to avert or forestall the attack. In this case, it was not in dispute that the appellant, being a police officer on duty, had shot the deceased and killed him. It was therefore upon the appellant to show that at the time of the shooting he was in the course of averting a felonious attack and that no greater force than necessary was applied. The appellant was bound to show that he was in immediate danger or peril arising from a sudden and serious attack by the deceased.

29. I have taken note of the prosecution evidence that Everlyne was chased away, as Juliet’s evidence that she heard the 2nd accused saying “nimeangusha wanyama wawili.” On the other hand, the 1st and 2nd accused claim that the 1st deceased had a gun, and that a gunshot was heard from within the house which prompted them to fire in self-defence.

30. I have considered the evidence as well as the elements of self-defence as they have been outlined in case law. The totality of the evidence indicates that the accused persons were all following up suspects in a robbery case that had occurred earlier on that day at the Tuffoam Mattresses. It is also evident that upon their arrival at the deceased’s house, they found only the 2nd deceased seated in the sitting room while the 1st deceased was in the bedroom. The evidence led by the defence was that the deceased were responsible for the robbery at Tuffoam. The fact that they had a gun was shown in evidence by way of the inventory of the items that were recovered from the scene of the crime.

31. It appears therefore that the circumstances required to sustain a defence of self-defence were evident. First, it is apparent that the accused went to the house as they were pursuing the people who had committed a robbery. They had been informed that the robbers had been armed, and when they got to the house, they all saw one of the deceased hold down what they thought to be a gun. In addition, all the accused gave testimony that they heard a gunshot that came from within the house which prompted both the 1st and the 2nd accused to shoot into the house. I therefore find that the accused held a reasonable fear that the deceased were attacking them, and they fired back in response to this attack. It therefore does not seem probable, as the prosecution states, that the accused acted in a manner to intentionally and with malice aforethought kill the deceased, or that they could have apprehended them without the use of force.

32. In the circumstances the prima facie case established by the prosecution was adequately answered by the accused persons, and that their actions, resulting in the death of the two deceased, were in self-defence. As such, I acquit each of the accused, JOTHAM IKUNDA KIRIGIA, PARMINUS MURIMI and BENARD MUCHIRI NJOKA on each count of murder faced by them. They are accordingly discharged from these proceedings.

DATED AND DELIVERED AT KISUMU THIS 14TH DAY OF DECEMBER 2018D. S. MAJANJAJUDGEMr Mwaura instructed by Njoroge, Mwaura and Company Advocates for the 1st and 2nd accused.Mr Indimuli, Advocate for the 3rd accused.Mr Mutai and Mr Muia instructed by the Office of the Director of Public Prosecutions, for the State.HC CRIMINAL CASE NO. 11 OF 2016 JUDGMENT Page 4