[2022] KEHC 14794 (KLR)

Republic v Kithinji (Criminal Case 18 of 2019) [2022] KEHC 14794 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14794 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case 18 of 2019

LW Gitari, J

October 12, 2022

Between

Republic

Prosecutor

and

Renson Murithi Kithinji

Accused

Judgment

1. Renson Murithi Kithinji, the accused person herein, is accused of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 of the Laws of Kenya). The particulars of the offence as contained in the Information dated 18th November 2020 are that on the 20th October 2019 at Kiroo sub-location, Maara sub-county, within Tharaka Nithi County, the accused person jointly with others not before the court unlawfully murdered one Frankline Gichobi Kithinji.

Brief Facts:The facts of the case are that the deceased and the accused are step-brothers. On the material day at about 3. 00pm the deceased and one of his step-brothers called Gitonga were involved in an altercation at Mathare area over proceeds of sale of some timber which the family had sold to facilitate the subdivision of the family land. The deceased took the keys of the motor bike belonging to Stephene Gitonga after pushing him. Later that evening the deceased went to the house of Stephene Gitonga at about 8. 30 pm and enquired as to what he was asking him earlier in the day. The mother of Stephene Gitonga who is also a stepmother of the deceased, (DW2) started screaming. The deceased left and went to his mother’s house. As the deceased stood outside his mother’s house, the accused and his son called Murimi (he is at large) went to where the deceased was shouting “ndio huyu.” (here he is ) The accused was armed with a panga while his son who is at large was armed with a stick. The deceased fled but the accused and his son chased him and caught up with him after he tripped and fell down. The two then attacked the deceased. The accused was armed with a panga which he used to cut the deceased on the head while his son hit him with a big stick. The deceased died instantly. The motive of the attack was a land dispute. The matter was reported to the police. The body was removed from the scene and escorted to Chuka Hospital Mortuary. Later on 28/10/2019 a postmortem was conducted on the body of the deceased by doctor Nicholas Nkonge who observed that there was dry blood on the mouth and a cut wound on the left temporal region on the head. There was also bruises on the left side of the face below left eye with a swollen left eye. The doctor formed the opinion that the cause of death was severe head injury from blunt trauma. The accused was then arrested and charged with this offence.

2. The accused denied committing the offence and the matter proceeded to full trial. The prosecution called a total of six (6) witnesses in support of its case against the accused while the accused testified in his defence and called two other witnesses in support of his case. Hereunder is a summary of the respective cases presented by the parties.

Prosecution’s Case 3. Purity Kendi Kithinji (PW1) is the sister to the deceased. She recalled that on the material day she went to visit her mother, Eunice Omollo Kithinji. She found that her mother was not there but her step mother, Hellen Mwiti Kithinji, was there. She went and greeted her stepmother and stayed with her until her mother came. She then went and stayed with her mother in her house. At about 8 p.m., her nephew called Lewis (PW2) came and told her that he had heard that her brother had disagreed with one Stephene Kithinji. At about 8. 30 p.m., the deceased came on a motor bicycle and packed it next to his house which was about 5 metres away from the house of PW1’s mother. The deceased went to the house of Stephene Gitonga and asked him about what he was saying during the day. PW1’s stepmother, Hellen Mwiti, and her daughter, Angela Kinani, started screaming. The deceased left the house of Stephen Gitonga and ran behind his mother’s house. At this point, PW1 had come outside of the house. She asked the deceased what was wrong. The accused, one Newton Murimi, and other children came chanting “Ndio huyu” (Here he is). The accused was armed with a panga and his son, Newton Murimi, was armed with a big stick. On seeing the accused and his son, the deceased ran away towards the road.

4. The deceased ran to the house of a neighbour where he tripped and fell into a trench. PW1 was running behind them. When the deceased fell, the accused cut him at the back of the head with a panga. Murimi, on the other hand, hit the deceased on the head with the stick he was carrying. When Murimi wanted to the deceased a second time, PW1 shielded the deceased by lying on him. She was hit and injured on the right hand. She realized the deceased had passed away. She then asked the accused why he had killed her brother and the accused threatened to kill her too. That is when PW1 ran back to her mother’s house and called the police via telephone number 999. She was instructed to go to Kiarugu Police post and she did. The police came to the scene.

5. PW1’s testimony was corroborated by the testimonies of PW2 and PW3. PW, Lewis Mwenda is the nephew to both the accused and the deceased while PW3, Eunice Umotho Kithinji, is the mother to the deceased and the stepmother to the accused.

6. PW4 was CPL Isaiah Wanyama, the investigating officer in this case. He received a report of the murder on 21st October 2019. He proceeded to the scene in the company of CPL John Kwariamba. At the scene, they found the OCS, the Chief Inspector Waigwa of Ntumu Police Station and Inspector Lukuna of Magutuni Police Station. The deceased’s body had been removed from the scene and taken to Chuka Mortuary and the accused had been arrested as a suspect. From his investigations, PW4 found out that on the material day, the deceased and accused, who are stepbrothers, had apparently argued over proceeds from the sale of trees which Gitonga had cut and which was to be used to file a succession cause.

7. Dr. Nicholas Nkonge (PW5) is the medical officer who conducted the postmortem examination on the body of the deceased. He noted that the body of the deceased had a cut wound on the left temporal of the head. That there was an injury on the back of the head with evidence of a fractured skull. The left eye of the deceased was swollen. He produced the postmortem form as P. Exhibit 1.

8. Erick Kiprono (PW6) visited the scene of crime on 21st October 2019 in the company of the OCS. He stated that at the scene, they found the deceased’s body on the ground near his house. He observed injuries on the deceased’s body which included a deep cut on the head.

9. This marked the close of the prosecution’s case and by a ruling of this court that was delivered on 24th February 2022, the accused was put in his defence.

Defence Case 10. DW1 was the accused person herein. He stated that on the material day, he left work at around 8 p.m. and went home. That he heard screams from the home of the deceased. His mother, DW2, was the one screaming saying “It is him. It is him.” The accused denied seeing the deceased and further denied being armed or having knowledge of how the deceased met his death.

11. Hellen Mwiti Francis (DW2) is the mother of the accused. She stated that on the material day, she was at home with her daughter Pamela (DW3) when Gitonga came and went to his house. She gave DW3 food to take to Gitonga. Pamela came back and told her that the accused had injured Gitonga and that he was bleeding. DW2 went to Gitonga’s house and saw the injuries. Gitonga told her that he had had a confrontation with the accused who beat him and took his motor bike. DW2 asked him whether she could take him to hospital but Gitonga refused. DW2 went back to her house. She then heard a motor bike coming in to the compound while speeding. It dropped the deceased who went to Gitonga’s house and asked him to go outside. DW2 was outside the door of her house. According to her, the deceased threatened to finish Gitonga and that is when DW2 decided to raise an alarm by screaming for help. Many people responded to the screams. The deceased then ran away and hid. According to DW2, the crowd that had gathered in the compound dispersed and everyone went to sleep. She stated that she did not see people chase after the deceased. At midnight, DW2 heard her co-wife (PW3) crying. She found out that PW1 had told PW3 that the accused had killed the deceased. She alleged that the deceased was killed by the people who responded to screams.

12. Pamela Kinanu Kithinji (DW3) is a sister to the accused and the deceased’s step-sister. She corroborated DW2 testimony save to add that when she asked her brother Stephen Gitonga what had caused his injuries, the said Gitonga told her that the deceased had beat him over some money. She also stated that she did not know who cut the deceased.

Submissions:The prosecution after analyzing the prosecution case and the defence submits the defence tendered was feeble and cannot shake the prosecution’s case. They urge the court to find that the defence is a fabrication and a sham. The prosecution submits that they have proved the case against the accused beyond any reasonable doubts and has urged the court to reject the defence and convict the accused. For the accused submissions were filed by L. Kimathi Riara & Co. Advocates for the accused. They urged the court to find that the evidence by the key witnesses, PW1 & 2 contradicts the injuries which were observed by the doctor who performed the postmortem. Their contention is that the deceased was hit by more than one person with different instruments and advance a theory that he may have been murdered by a mob. It is also the contention by the accused that the witnesses were relatives to the deceased while the defence witnesses were mother and sister to the accused. The defence contends that PW1 & 2 were not at the scene of murder and could have concocted the evidence to suit the circumstances of their side of family.They urge the court to find that the investigations were shoddy as the investigating officer did not call any independent witness.I have considered these submissions. From the evidence tendered by the defence and the prosecution, DW1 (accused) agrees with the prosecution witnesses account safe for the manner in which the deceased was murdered. I will further analyse the evidence below.I have considered all the evidence adduced by the prosecution and the defence. I have also considered the submissions filed by the parties in this case at the close of the defence case. I will proceed to analyse the issues which arise for determination

Issues for determination 13. Section 203 of the Penal Code that creates the offence of murder provides that the offence is committed when a person with malice aforethought causes the death of another person by an unlawful act or omission. It thus follows that the main issues for determination by this court are:i.Whether the deceased died and what was the cause of his death;ii.Whether the accused caused the death of the deceased by an unlawful act or omission; and if so,iii.Whether the accused had malice aforethought.

14. Below is an analysis on whether the prosecution proved the ingredients in order to secure a conviction for the offence of murder.

Analysis a. Proof and cause of death15. It is not in dispute that the deceased died. PW1, PW2, PW3, and PW5 all saw the lifeless body of the deceased. According to PW5, the cause of death of the deceased was severe head injury caused by blunt trauma. Thus, the fact and cause of the death of the death was proved beyond any reasonable doubt.

b. Whether the accused caused the death of the deceased 16. There were two eye witnesses in this case, that is, PW1 and PW2. They followed the accused and his son they pursued the deceased and witnessed the accused’s son hitting the deceased with a big stick before the accused cut the deceased at the back of the head with a panga.

17. The incident happened at about 8. 30 p.m. on the material day. The visibility of the crime scene comes to question. According to PW1, the houses in their compound are close to each other and there was adequate light from the electric bulbs in the houses, the moonlight, and a small solar lamp that she was carrying as she followed the accused and his son. PW1 further stated that the road on which the deceased ran to while being chased was lit by electric security lights.

18. The accused, PW1 and PW2 are relatives and there is therefore no doubt that PW1 and PW2 could identify the accused on the material day. On cross examination, DW2 stated that the accused was not in the compound when she screamed as he was at work. This is a blatant falsehood as it contradicted the very evidence of the accused that was categorical that the accused heard DW2 scream and responded to the screams. It therefore follows that the prosecution proved beyond any reasonable doubt that the accused was at the scene of the murder and did in fact cause the death of the deceased.

Whether the accused had malice aforethought 19. Malice aforethought is defined in Section 206 of the Penal Code in the following terms:a.An intention to cause death or to do grievous harm to any person whether such person is the person actually killed or not.b.Knowledge that the act or omission causing death will cause the death of or grievous harm to some person, whether such person is the person 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 be caused.c.An intent to commit a felony.d.An intention to facilitate the escape from custody of a person who has committed a felony.

20. There are numerous authorities covering manifestation of malice aforethought in homicide cases on the charge under Section 203 of the Penal Code. For the offence of murder and proof of malice aforethought in Rex v Tubere s/o Ochen[1945] 1Z EACA 63, Eastern Court of Appeal observed:“In determining existence or nonexistence of malice one has to look at the facts proving the weapon used, the manner in which it is used and part of the body injured.”

21. In the case of Hyam v DPP [1974] A.C. the Court held interalia that:“Malice aforethought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another the accused knew that it was highly probable that, that act would result in death or serious bodily harm.”

22. According to PW1, the deceased had earlier on the material had a confrontation with one of his stepbrother, Stephen Gitonga. PW1 stated that the said Gitonga told her that the deceased had injured him during the altercation. However, Gitonga was not among the witnesses called to testify in this case. That notwithstanding, PW1, PW2 and PW3 all saw the events that unfolded when the deceased arrived home on the material night.

23. PW1 and PW2 testified that the deceased died instantly after the accused hit him with a panga. He was bleeding from the nose and mouth. According to PW5, the deceased had several injuries which could not have been caused by one blow.

24. In addition, PW1 stated that there was a land dispute in the family because their deceased’s father did not distribute his land to them prior to his death. PW2 corroborated this evidence.

25. Taking the evidence on record in totality, malice aforethought on the part of the accused can be inferred from the brutal killing of the deceased. The accused must have known that by cutting the deceased with a panga on his head, the deceased would die or suffer grievous harm. In addition, the fact that the accused chased after the deceased is proof that the malice aforethought was premeditated.

26. The defense case was, in my view, a mere denial and a weak fabrication that attempted to insulate the accused from culpability. The facts and evidence presented by the prosecution was cogent, credible and irresistible to point at the guilt of the accused. In the circumstances, I find that the prosecution proved the charge against the accused beyond any reasonable doubt.

Conclusion 27. The upshot of the foregoing, is that the prosecution has proved its case against the accused to the required standard of beyond any reasonable doubt. As such I find the accused guilty of the offence of murder and convict him accordingly under Section 322(2) Criminal Procedure Code.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 12THDAY OF OCTOBER 2022. L.W. GITARIJUDGE12/10/2022The Judgment has been read out in open court.L.W GITARIJUDGE12/10/2022S E N T E N C EThe offence is serious. An innocent life was lost. A sentence to discourage the offence and deter others from irresponsible acts which lead to loss of life is called. No matter the dispute, no life should be lost and more so violently. The deceased did not deserve to die. The accused was not under any threat or danger from the deceased and he had no reason to use brutal force. He inflicted four cuts on the deceased head with a lot of force which resulted in multiple fractures.I find that the accused needs to be committed to prison where he will be weaned out from the kind of behavior demonstrated in this case. A custodial sentence is called for. I sentence the accused to serve twenty (20) years in prison.Right of Appeal in 14 days explained.L.W. GITARIJUDGE12/10/2022