[2022] KEHC 2640 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL CASE NO. 17 OF 2019

REPUBLIC................................................................................PROSECUTOR

VERSUS

LYDIAH WAKUTHII MBOGO.......................................................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 and the particulars of the said offence being that between the 21. 08. 2018 and 22. 08. 2018 at South Ngariama within Kirinyaga County, jointly with others not before court unlawfully murdered Francis Mbogo Ndambiri ‘alias’ Kasarani.

2. Upon arraignment, she pleaded not guilty and a plea of not guilty was entered. The case proceeded for trial and wherein the prosecution called a total of nine (9) witnesses and who testified in support of its case.

3. PW 1, Peter Nderitu testified that on 21. 08. 2018 at 2 a.m. in the morning the accused herein called his wife, Felista and informed her that she needed some help. They invited her to their home where she narrated how the day was and how she had spent the day with the deceased. She told them that the deceased never returned home. That upon day break, they decided to go to South Ngariama to search for the deceased. That in the search process, they found a pair of shoes near a river bank which the accused identified as belonging to the deceased and which the deceased is said to have worn the previous day. They continued the search and after a 100-meter walk or so, they saw something in the river but since the river had overflown, they could not go near it. Instead, they reported the matter at Itangi Police Post. That the police accompanied them to where they had found the pair of shoes; and with the help of the police, they finally managed to retrieve a body which was later identified as that of the deceased.

4. PW2, Justin Nyaga Githinji stated that he is the chief of Gato sub location in Kirinyaga East. It was his evidence that he learnt of the death of the deceased on 22. 08. 2018 when he was called by PW1 upon which he organized for a meeting; that when they finally met; PW1 was in company of the accused and his son (Erick Mwangi). That the accused informed him that the deceased was missing and together, they headed to South Ngariama whereupon they embarked on the search process pursuant to which the body of the deceased was found on the bank of river Rupingazi. That upon retrieval of the said body, it was taken to Gacoka Police Station and upon viewing it, he realized that it belonged to the deceased. It was his statement that he did not see any physical injuries on the body and that he never saw the said black book that was presented before the court. Further, he stated that he did not know how the accused was involved in the deceased’s death.

5. PW3, Peter Mwangi Mbogo, testified that the deceased is his dad and the accused person his step mother. That on 21. 08. 2018, he was at Mururi, when the deceased called him at 10. 00 a.m. and told him that there was a book that he had written and he wanted him to go and pick it. He also told him told go and pick a map for South Ngariama from a surveyor called George and in the cause of the conversation, the deceased said “a person may go and not come back”. That the deceased sounded like he was in a hurry which was not unusual for him. He stated that he did not manage to do as the deceased had directed but on the following day, he went to Kerugoya and while there he received a call from Erick Mbogo (step brother) informing him to rush to South Ngariama. That upon reaching, he met amongst others PW1, the accused herein and he joined them in the search for the deceased. He confirmed that the body was found on the bank of river Rupingazi and that it was that of his late father. That when the body was removed from the river, he noticed that it had injuries on the chest, lower part of the head and that he was bleeding.

6. PW4, Linus Gichubi Kiove stated that he is a caretaker of rental houses belonging to the deceased. That on 20. 08. 2018 at around 9. 00 a.m., he was at Kianyaga when the deceased called him and requested him to take some documents to him. That he met him at the Ministry of Works and according to him, the deceased was just looking alright. He stated that he did not know anything about the death of his boss (deceased).

7. PW5, Dr. Ndirangu Karomo performed the post mortem on the body of the deceased on 29. 08. 2018 in the presence of the family members. It was his evidence that the body had bruises on the upper back posterior and behind the left shoulders, bruises on both legs anteriorly, a stab wound on the scalp 2 cms by 0. 5 cms; there were no signs of strangulation. Internally, there was haematoma on the left sternum border on the right, suggestive of blunt trauma; the lungs were spongy with no water; on the head, he had a haematoma below the scalp on the right parietal region and also haematoma on the temporis muscle; he had sub-dural haematoma on the right parietal region; it also had brain oedema. He formed opinion that the cause of death was cardio-pulmonary arrest caused by severe head injury inflicted by heavy blunt trauma.

8. PW6, Sgt. Henry Kathurima testified that he is attached to Safaricom Security Department and that he was requested to provide call data records for 0722-686511 and also for 0721-356694; the numbers belonged to the deceased herein and the accused person respectively. He produced a report containing the incoming and outgoing calls, messages, dates, the location of the callers and the geographical location; serial number of the phone used and the ID numbers and the owner’s names. The data requested was from 10. 08. 2018 and 31. 08. 2018 whereupon he retrieved the data and thereafter sent it to the investigating officer and the same was produced in court as an exhibit.

9. PW7, Daniel Kiragu stated that on 29. 08. 2018, he was requested to take photos of the deceased person while at the mortuary. He thereafter wrote a certificate of the same; he noted that the body had injuries on the head; he thus proceeded to produce the certificate and the photos before the court.

10. PW9, Steve Kibagendi the investigating officer testified that on 22. 08. 2018, his boss instructed him to proceed to the scene and make some enquiries in regard to this case. That he proceeded to Ngariama farm and interrogated the manager and some casual workers at the farm. He stated that he was informed about a will that the deceased had allegedly written and the same was hidden at PW1’s house. That upon conducting a search in the same house, he found an identity card, 4 ATM cards placed on a table and he wondered to himself why such important documents could be found in this particular house and so, he decided to forward the same for authentication of the author. It was his evidence that post mortem was done and it was established that the body had some injuries and according to him, the deceased could not have committed suicide as was being theorized. That he linked the accused herein to the murder of the deceased due to her behaviours in that during the investigations, the accused was not cooperative and she was very temperamental.

11. Upon cross examination, he stated that he went on transfer before completing the investigations but well still, he had already made a recommendation to the D.P.P that the accused be charged with the offence of murder of the deceased. It was his take that he had summoned the workers and family members but he could not find the real culprit/s who killed the deceased. That it is the family members who pointed at the accused and his first-born son to have had a hand on the death of the deceased. That according to him, the deceased was tortured and thereafter forced to write a will. It was his evidence that the offence was committed on 22. 08. 2018 but the accused was later arrested nine (9) months and that to him, the accused killed the deceased because the deceased had another family.

12. On being placed on her defence, DW1, Lydia Wakuthii Mbogo testified and gave sworn evidence to the effect that on 21. 22. 2018, she was with the deceased in the house at Kianyaga and that he left him in the house and went to the shamba at South Ngariama which is about 19 km from Kianyaga. That at the time that she left, the accused was sitted on the bed writing something but she never cared to know what exactly he was writing. On arrival at the shamba, she organized the workers and later on the deceased arrived at around 11 a.m., parked the vehicle behind the house, said a quick hello to the workers and then went to the shamba but using another door. That they left the shamba and went home for lunch for about two hours and after which they went back to the shamba to inspect on the progress of the work till 18. 00hrs when she left for home to go prepare dinner. She stated that the deceased never returned home and upon making enquiries from the workers, they said that they had not seen him. She further tried calling his cell phone number to no success. That she found the 4 A.T.M. cards two (2) for equity and K.C.B. and an amount of Kshs.10,000/=. That the driver drove her to Kianyaga whereupon on reaching the house, she found a book (already produced before the court) and an identity card and on reading the contents of the same she realized that it was a will. It is at this point that she decided to involve PW1 and upon daybreak on the following day, they decided to embark on a search mission around the shamba where they found a pair of shoes belonging to the deceased and thereafter, they found the body of the deceased which was finally retrieved by the police and taken to Kibugu Mortuary. She was then arrested and charged with the offence of murder. Upon cross examination, she stated that she saw the deceased stressed but she never knew what exactly was stressing him and that she never killed the deceased.

13. I have considered the evidence presented before this court by the prosecution and the defence. It is trite that in any charge preferred against an accused person, the prosecution has the duty to prove the elements of the same. (See section 107 of the Evidence Act Cap 80 of the Laws of Kenya. The degree/standard of prove is always that of “beyond any reasonable doubts” (See Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373).

14. In the instant case the accused person is facing a charge of murder contrary to section 203 of the Penal Code. Murder is defined as

“When any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

The elements of murder and which the prosecution ought to prove are;

a) the death of the deceased occurred

b) the death was caused by unlawful acts;

c) that the accused committed the unlawful act which caused the death of the deceased; and

d) that the accused had malice aforethought.

(See Anthony Ndegwa Ngari vs Republic [2014] eKLR).

15. The question therefore is whether the prosecution tendered sufficient evidence to prove the above elements.

16. As for the death of the deceased having occurred, it is not in doubt that the deceased herein died. PW5 (Dr. Ndirangu Karomo) testified that he conducted post mortem on the body of the deceased. That the family members were in attendance and they identified the body of the deceased. As such, the death of the deceased was thus proven.

17. As to the death having been caused by unlawful acts, under Article 26 of the Constitution of Kenya 2010, right to life is protected and can only be taken away under the circumstances provided therein. What this means is that every homicide is unlawful unless authorized by law or excusable under the law or under justifiable circumstances such as self-defence or defence to property. (See Guzambizi Wesonga v Republic [1948] 15 EACA 63). PW5 gave evidence that the deceased herein died as a result of cardio-pulmonary arrest caused by severe head injury inflicted by heavy blunt trauma. As such, the death of the deceased herein was definitely caused by acts which are not excusable or authorized by law and thus the same was unlawful.

18. As to whether the accused committed the unlawful act which caused the death of the deceased, I have perused the prosecution’s evidence as presented before the court. I note that none of the prosecution witnesses witnessed the incident in which the deceased herein was killed. From the evidence on record, it was the statement of the investigating officer that he had summoned the workers and family members but he could not find the real culprit who killed the deceased. That it was the family members who pointed at the accused and his first-born son to have allegedly killed the deceased; and that the culprits who tortured and thereafter forced the deceased to write a will were never found. Though it was his case that the accused was later arrested nine (9) months and that to him, the accused killed the deceased because he had another family, he did not tender any evidence to support that allegation and/or to connect the accused person with the death of the deceased.

19. In the case of Republic v Kipkering Arap Koskei & Another [1949] 16 EACA 135, theCourt 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.”

20. 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 the case against the accused person.

21. From the foregoing, the upshot of this judgment is that the accused person herein is acquitted of the charge of murder.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF FEBRUARY, 2022.

L. NJUGUNA

JUDGE

…………………………………..FOR THE ACCUSED

…………………………………..FOR THE STATE