[2022] KEHC 11329 (KLR)

Republic v Kivwia (Criminal Case 25 of 2017) [2022] KEHC 11329 (KLR) (15 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11329 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Case 25 of 2017

RK Limo, J

June 15, 2022

Between

Republic

Prosecutor

and

Muema Kivwia

Accused

Judgment

1. Muema Kivwia, the accused herein is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence as per the information provided are that on 13th December, 2017 at Koi village in Twambui, Malalani within Kitui County murdered Kivwia Mwinzi.

2. The accused pleaded not guilty to the offence and the prosecution called a total of 8 witnesses to support its case. All the prosecution witnesses testified before Hon. Justice Lilian Mutende who initially handled this matter before going on transfer. This court took over from where the other court left under Section 200 of Criminal Procedure Code and proceeded with the defence. Below is a summary of both the prosecution’s case and defence.

3. Dorcas Mbuve Magati (PW1) wife to the accused testified that the accused person herein, on 12th December, 2017 went home at around midnight drank and when she served him food, she stated that he declined the food and picked a quarrel with his 14-year-old son named M who was sick with a running stomach. She testified that the accused slapped the son and the said son ran away for safety to the grandfather, the deceased herein. The witness stated that quarrels ensued as she took off to a neighbour to seek help and refuge. She testified that the neighbour went to try and help his father in law and that when he returned he advised her not to go back to that home but instead look for where to sleep. She further stated that she took heed and went to sleep at home of Mwale and that in the morning she went back home and found her father in law dead.

4. She further informed this court that she had met Musyoka and Mutunga along the way as she headed home and that they are the ones who first informed her that her father in law had been killed and that when she reached home she actually found him lying down dead facing up. She added that the accused was drunk at the fateful night and that he was in the house sleeping when she arrived home adding that she slept until 11am.

5. Nicholas Mutunga Mbuvi (PW2) on his part testified that on the fateful night (12. 12. 2017) he was at his father in law’s house when at around mid-night, he heard someone scream and when he went out to check what was happening, he found a woman screaming asking for help that upon seeing him, she beseeched him to go and rescue her father in law because he was reportedly being killed by his son, the accused herein.He testified that he had a torch with him and rushed to the scene where he found the accused sitting on an old man on the ground while holding his throat.

6. The witness stated that he asked the accused why he was doing so and that the accused threatened that he would finish his father and then turn on him. The witness testified that he got scared and retreated to where the other people stood at some safe distance. He added that the following morning he went back to the scene with his father in law and found the old man lying down dead on the spot he had left him with the accused.

7. Boniface Ibrahim Mwinzi (PW3) told the court that he was the deceased’s younger brother and that he identified the body of the deceased to a pathologist on 21st December 2017 prior to conduct of the post mortem.

8. Musyoka Kyenza (PW4) informed the court that he was in his home on the material day when he heard someone screaming and when he went outside, he found PW1 and her two children. He stated that the lady asked him to go and help her father-in-law who was been killed by her husband, the accused. He stated that he did not go as it was late and went there the following morning where he found the deceased lying down dead.

9. A.P.C Joel Kosgei (PW5) stated that the area sub-chief Koi village reported the murder at the station on 13th December 2017. The officer stated that he accompanied the chief to the home of the deceased where they found the body near a trench next to his house. The officer added that the accused was also in his house sleeping a few meters from the scene and that he looked drunk at the time of his arrest.

10. Dr. Edward Kiatu (PW7) Medical Superintendent Katulani sub-county hospital informed the court that he performed a post-mortem on the body of the deceased on 21st December 2017 and found out that the deceased succumbed to asphyxia secondary to strangulation. He tendered the post-mortem report as P Ex 1. He added that the deceased was elderly and that the body also had other injuries like black eye and a cut. He also stated that his tongue was stretching out.

11. Sergeant Solomon Mwendwa (PW 8) stated that he was called on 13th December 2017 and asked to go to the scene following a report of a murder. That he went to the scene with other officers and found the body of the deceased which lay on open ground. The officer stated that he observed blood on the rear part of the head and on the right hand but on cross-examination said that the body had no injuries. The officer stated that PW1 informed the police that the deceased died after he was wrestled and strangled by the accused. The police arrested the accused while the body of the deceased was transported to the mortuary.

12. When placed on his defence, the accused testified on oath and stated that he was drank at the material time after drinking a number of assorted drinks (both local and branded) at a local bar. He stated that when he got home, his wife (PW1) refused to open the door for him and that after she refused a commotion ensued which attracted his father (deceased) who lived within the homestead.

13. The defendant further testified that when his father reached where he was the wife opened the door and took off leaving him with his father. According to the accused, his father slapped him and he returned the favour by slapping him, he made his father to fall down. He testified that he just left his father lying down and went to sleep.

14. The accused person later changed the version of events mid-way and stated that he could actually recall fighting with his father for around ten minutes after a disagreement and that he grabbed him by the neck after he had slapped him and that he held him firmly by the neck until he fell down. He testified that he did not intend to kill him adding that when his father fell down he left him lying down and he went inside his house and slept.He further testified that he had no grudge with his father and had lived with him well adding that it was not his wish to kill.

15. In his written submissions through learned counsel Mr. Kilonzo, the accused has placed weight and emphasis on the information presented arguing that the particulars contained therein are insufficient to disclose the offence with enough clarity to enable him defend himself.

16. He has placed reliance on the principle of specificity and the case of Hass versus United States versus 582 where an American court of appeal rendered itself on the importance of clarity in charges to ensure that an accused person defends himself on the charges contained in the charge sheet to protect him against double jeopardy.

17. The defence also relies on an authority from a Ugandan High Court being High Court Case No. 302 of 2013 in UG versus Gule Sheik Twaha. The defence submits that the particulars of the information in that case contained the words ‘‘with malice aforethought killed................’’

18. The defence contends that it is the right time for this court to make a determination that the manner in which particulars of an information as drafted in Kenya lacks in detail to enable the accused person defend themselves sufficiently. They have relied on the doctrine on ripeness and referred the court to the case of Abbort Laboratories versus Gardener (1967) and Wanjiru Gikonyo & Others versus National Assembly of Kenya & 4 Others (2016) eKLR where the high court had been asked to pronounce itself on the constitutionality of Affirmative Action Social Development Fund (AASDF) Regulations 2015. The court dismissed the petition and while doing so considered the question of justiciability, ripeness and mootness. The court held the opinion that although courts retain the discretion to make determinations and declarations in cases, courts must not determine issues which are not yet ready for determination or make declarations that are only for academic exercise.

19. The state on its part submits it has established that the accused killed his father through strangulation. It contends that the charge was drafted with sufficient detail to enable accused know the nature of the charge facing him and that he was able to defend himself.

Determination 20. The accused in this matter faces the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The Section creating the offence is Section 203 which reads;‘‘when any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”From the above the 3 crucial elements necessary to be proved by the prosecution to sustain a conviction are;i.The fact of death and cause.ii.Actus reus or that the accused committed the act which caused the death of the deceased.iii.Malice aforethought. That the accused was ill-motivated.

21. Before I embark on the elements in relation to the evidence tendered in this matter, there is an issue raised by the defence which I should pronounce myself all in all fairness partly because of the industry exhibited by the defence counsel in the research and submissions made.

22. The defence submits that the information as framed did not disclose enough information to the accused to enable him understand the charges sufficiently. The particulars of the information are captured as follows;‘‘Muema Kivwa on 13th December 2017 at Koi village in Twambui sub-location Malalani location within Kitui County murdered Kivwia Mwinzi.’’The law is clear on the requirements needed in a charge.Section 134 of the Criminal Procedure Codeprovides;‘‘Offence to be specified in charge or information with necessary particulars. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.’’

23. A charge information should contain sufficient information as to the nature of the offence charged. In this instance, the offence charged was indicated as murder, the section creating the offence is clearly stated. The particulars indicated the date, place of offence and the name of the deceased. The accused person was well aware that he was defending himself against the charge of murder.

24. The non-inclusion of the ‘unlawful act’ or ‘omission’ complained of in the information in my view did not affect the accused adversely. The accused suggests that the particulars should have read;‘‘Muema Kivwa on 13th December 2017 at Koi village in Twambui sub-location Malalani location within Kitui County murdered Kivwia Mwinzi by strangulation.’’ That however, would be tantamount to inclusion of evidence in the charge.

25. The Supreme Court in Hussein Khalid and 16 others v Attorney General & 2 others [2019] eKLR rendered itself against inclusion of evidence in a charge sheets when it observed as follows;‘‘It is a well-known tenet of the Constitution that a person cannot be convicted (after trial) of an offence unless it is an offence in Kenya (Article 50(2) (n) of the Constitution). This makes it mandatory that the charges have to be based on an offence known to law. The charge is a succinct description of the offence and the particulars and it should not contain any evidence. However, the particulars must be clear enough to enable the accused person to know what offence he is charged with. The Criminal Procedure Code provides that if the offence charged is one created by enactment it shall contain a reference to the section of the enactment creating the offence.’’

26. Furthermore, the High Court in Evans Odhiambo Kidero versus Republic [2019] eKLR also held;‘‘In my view, the allegations raised before. This court challenging issues of non-disclosure of full particulars or duplicity of charges does not qualify as breach of one’s fundamental rights. (See William S.K. Rutto & Another vs Attorney General Nairobi HCC No. 1192/05 (2010) eKLR) where the court stated that “the fact that a charge is defective does not raise a constitutional issue.’’

27. Counsel is challenging this court to make a declaration that the manner in which ‘information’ in Kenya’s legal system are drafted are wanting. It is true that an accused person has a right to fair trial which includes the right to be informed of the charge with sufficient detail to answer it as stipulated under Article 50 (2) (b).

28. Article 23 of the Constitution grants this court jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

29. When one alleges infringements of his right as an accused he is required to raise the issue as a preliminary question on the infringements of any constitutional right so that the issue can be ventilated at earliest opportunity and at the preliminary stage so that the court can render itself. The procedure is provided for under the court of Kenya (Protection of Right and Fundamental Freedom) Practice and Procedure Rules2013 (Mutunga Rules). Rule 4 of those Rules provide;‘‘Where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules’’

30. Rule 10 proceeds to give the form in which such Petitions should take. Counsel who was present throughout the proceeding did not raise issue in the manner in which the information was drafted only for the same to be raised at submissions stage at a point where a substantive response could not be filed for the court to render itself.

31. In my view the invocation of the doctrine of ripeness at this stage of proceedings is both belated and irrelevant. Belated because given the defence put forward, (which I shall shortly delve on), the issue appears an afterthought. It is also not relevant in the current proceedings because they are criminal in nature. The doctrine is not new in Kenya it has been discussed but the court was dealing with a civil case in Wanjiru Gikonyo & 2 Others versus National Assembly of Kenya & 4 Others [2016] eKLR where the court observed: -‘‘The citadel of the power to determine disputes through the exercise of judicial authority and the capacity to commence action for such determination is based however on the rather universal concept or principle of justiciability. This concept has found much favour in most jurisdictions. It also gathers much support from the engraved supplementary doctrines of ripeness, avoidance and mootness.By justiciability it is meant a matter “proper to be examined in courts of justice” or “a question as may properly come before a tribunal for decision”: see Black’s Law Dictionary 9th Ed,pp 943-944. In other words, courts should only decide matters that require to be decided. Thus in Ashwander versus Tennessee Valley Authority [1936] 297 U.S 288, the US Supreme Court stated that courts should only decide cases which invite “a real earnest and vital controversy”.Effectively, the justifiability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments. The court is prevented from determining an issue when it is too early or simply out of apprehension, hence the principle of ripeness. An issue before the court must be ripe, through a factual matrix, for determination.Conversely, the court is also prevented from determining an issue when it is too late. When an issue no longer presents an existing or live controversy, then it is said to be moot and not worthy of taking the much sought judicial time. The exception it must be noted exists where the court is allowed by law to offer advisory opinionsin Hon. Martin Nyaga Wambora –v- Speaker of County Assembly of Embu and 5 Others HCCP No. 3 of 2014, the court observed as follows:“It is clear from the above definition that whether a matter before a Court is justiciable or not depends on the facts and circumstances of each particular case but the Court must first satisfy itself that it has jurisdiction to entertain the matter before it can resolve the issue of justiciability.’in Jesse Kamau & 25 Others –v- Attorney General Misc. Application 890 of 2004 , the court dedicated a great part of the judgment to the doctrine of justifiability and rendered itself as follows"the Political Question Justifiability Ripeness And MootnessOn Ripeness pp 80 - 81 Tribe says: “In some cases the constitutional ripeness of the issues presented depends more upon a specific contingency needed to establish a concrete controversy than upon the general development or underlying facts.…….Blackburn versus Attorney – General and Justice Ringera’s remarks in the Njoya case that one of "the most fundamental aspects of the court’s jurisdiction is that we are not an academic forum and we do not act in vain does indeed resonate in line with authorities and legal texts." The court cannot be subjected to proceedings where the questions for determination are abstract and hypothetical. Stamp LJ in Blackburn vs Attorney General (supra) states at p.138 3 h J“It is the duty of this court in proper cases to interpret those laws when made; but it is no part of this court’s function or duty to make declarations in general regarding the powers of Parliament, more particularly where the circumstances in which the court is asked to intervene are partly hypothetical……..’’This court finds no basis to make the declaration sought bythe defence in the manner presented. He should have filed aconstitutional petition seeking the declaration and cite theAttorney General of Kenya.

32. This court further finds that the doctrine of ripeness in the context upon which it is raised here is hypothetical and rather academic and irrelevant in this proceedings. The information provided in my view contains the offence committed by the accused and the particulars shows the date it was committed, the place and the victim of the offence. The accused was well aware of the nature of the charge and even the evidence tendered. That is the reason why at the trial end of the prosecution’s case he asked the court that he wanted to charge his plea and plead guilty. When this court told him to proceed and state the same on his defence he proceeded and gave a vivid account of what transpired. He cannot therefore turn back and say that the charge sheet/information was defective.

33. Having disposed-off the preliminary issues, I will now go back to the elements listed above as necessary to sustain a conviction in a charge of murder.

34. (i)Fact of death and causeThe fact of death and its cause is undisputed in this case. The body of the deceased was collected from his homestead by the police as clearly narrated by PW8. The body of the deceased was identified by Boniface Ibrahim Mwinzi (PW3) who was a brother to the deceased. Dr. Edward Kiatu (PW7) conducted post mortem and prepared a post mortem report (P Ex 1) which states that the deceased died from strangulation.The elements of fact of death and cause have been proved by the evidence presented by prosecution.

35. (ii)Actus ReusThis element is also conceded by the accused. The evidence of PW1 and PW2 is corroborated by the defence who stated on oath that he held his aging father tightly on his neck and left him for dead lying on the ground. The doctor’s evidence further corroborates the fact that the deceased cause of death was strangulation. That element of actus reus is well proven.

36. (iii)Whether the action by the accused was actuated by malice aforethought.Medical evidence confirmed that the deceased died from asphyxia secondary to strangulation.The defence contend that although the accused by his own testimony conceded to strangling the deceased, that he did not intend to kill him and that it was a retaliation following the action of the deceased of slapping him. The defence has suggested intoxication as negating malice afterthought stating that the accused was too drunk to have had malice to kill his father.

37. Under Section 13 of the Penal Code, it is provided that intoxication shall not constitute a defence to a criminal charge unless;‘‘Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and;a.the state of intoxication was caused without his consent by the malicious or negligent act of another person; orb.the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.’’ (Emphasis added)

38. In this case the accused narrated the events of the material night in detail. He stated as follows;‘‘I recall on 12th December 2017 at 11pm I arrived home. I was from a club or bar. The bar is near home in a place called Koi. I drank many different types of alcohol. I drank Guinness, spirit (Kenya cane) and local brew (Karubu)...when I reached home at night, I knocked the door, my wife did not open. She told me to go back when I came from. My father’s home was nearby, he heard the commotion and he came to where my house was. When he came, my wife opened the door and ran away. My father slapped me and I slapped him too and he fell down...I recall we fought with my father for ten minutes. I grabbed his neck when he slapped me...I held him firmly on the neck...’’

39. The question of intoxication was discussed in Republic versus Patrick Mutuku Wambua[2020] eKLR where the court held as follows;‘‘Intoxication can provide a defence for offences of specific intent but not for offences of general intent. For offences such as murder which require a particular intent or knowledge, a person who performs the act causing death while in a state of intoxication is liable to be dealt with as if he or she had the same knowledge as he or she would have had if he or she had not been intoxicated, unless it is shown that the substance which intoxicated him or her was administered to him or her without his or her knowledge or against his or her will. Alternatively, that by reason of intoxication he or she was insane, temporarily or otherwise to the extent of not knowing what he or she was doing or that it was wrong. The law was aptly summarized by the House of Lords in Director of Public Prosecutions versus Beard [1920 AC 479] thus:“There is a distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man's mind becomes incapable of forming a specific intention. If actual insanity in fact supervenes as the result of alcoholic excess, it furnishes as complete answer to a criminal charge as insanity induced by any other cause. But in cases falling short of insanity evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by the drink that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequences of his act.”

40. The Penal code provides that the accused person must show that at the time of the act he did not know that such act or omission was wrong or even know what he was doing. In this case, the accused clearly knew what he was doing, he slapped his father who fell down and instead of leaving at that instance proceeded to strangle him.

41. The accused was also required to show that the state of intoxication was caused without his consent by the malicious or negligent act of another person. In this case, the accused did not lead evidence indicating that the intoxication was caused without his consent. He was also required to show that because of the intoxication, he became temporarily insane. The manner in which the accused narrated the events of the night indicate that he had awareness of what was happening.

42. The Court in Republic versus Patrick Mutuku Wambua[2020] eKLR held as follows;‘‘Intoxication can provide a defence for offences of specific intent but not for offences of general intent. For offences such as murder which require a particular intent or knowledge, a person who performs the act causing death while in a state of intoxication is liable to be dealt with as if he or she had the same knowledge as he or she would have had if he or she had not been intoxicated, unless it is shown that the substance which intoxicated him or her was administered to him or her without his or her knowledge or against his or her will. Alternatively, that by reason of intoxication he or she was insane, temporarily or otherwise to the extent of not knowing what he or she was doing or that it was wrong. The law was aptly summarized by the House of Lords in Director of Public Prosecutions versus Beard [1920 AC 479] thus:“There is a distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man's mind becomes incapable of forming a specific intention. If actual insanity in fact supervenes as the result of alcoholic excess, it furnishes as complete answer to a criminal charge as insanity induced by any other cause. But in cases falling short of insanity evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by the drink that he more readily gave way to some violent passion does not rebut the presumption that a man intends the natural consequences of his act.”

43. The accused in my view committed the act of strangling his aging father well knowing what consequences would be in fact he did not seem to care when his father collapsed and fell to the ground. He simply left him to die as he proceeds to his house to sleep. In such circumstances malice aforethought is inferred. Section 206 of Penal Codeprovides;‘‘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; …………….’’

44. Malice aforethought can be established by evidence proving an intention to do grievous harm to any person whether that person is actually killed or not. The accused stated that after his father slapped him, he retaliated by slapping him back which made his father fall to the ground. At that point, the accused had the opportunity of walking away as his father was no longer a threat to him, he instead proceeded to grab him by the neck and strangle him which in my opinion established malice aforethought.

45. The accused person should have handled himself better instead of harming his aging father. This court based on the evidence tendered finds that the prosecution’s case has been proved beyond doubt. This court finds him guilty as charged and is hereby convicted accordingly.

DATED, SIGNED AND DELIVERED AT KITUI THIS 15TH DAY OF JUNE, 2022. HON. JUSTICE R. K. LIMOJUDGE