[2022] KEHC 13645 (KLR)

Republic v Manyara & another (Criminal Case 4 of 2014) [2022] KEHC 13645 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13645 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Case 4 of 2014

FN Muchemi, J

October 13, 2022

Between

Republic

Prosecutor

and

Nicholas Muthomi Manyara

1st Accused

Dennis Muthuri Muguna

2nd Accused

Judgment

1. The accused persons face a charge of murder contrary to Section 203 of the Penal Code as read with Section 204. The particulars of the charge are that on the 2nd day of February 2014 at Ngerima Village in Nyeri County the accused persons jointly murdered Geoffrey Mwangi Ngari.

2. This case was heard by Matheka J before I took it over. The Honourable Judge heard eight prosecution witnesses. Directions under section 200(3) of the Criminal Procedure Code were taken with the accused opting to proceed from where the former trial judge reached. This court heard the last prosecution witness and the defence case. A total of nine (9) witnesses were called to testify.

3. Precisely, the evidence of the prosecution was that on 02/04/2014 the deceased went to visit PW1 in his house. Soon afterwards, the 2nd accused entered the house and accused the deceased of having assaulted the 1st accused. The 2nd accused was armed with a panga and immediately used the panga to cut the deceased three times on the head, neck and forehead. The 2nd accused also entered the home of PW1 armed with a panga and stood outside the house. PW2 and PW4 who are brother and mother of the deceased heard screams from the house of PW1 and rushed there. The 1st accused person inflicted fatal injuries on the deceased which caused his death.

4. The accused persons after being held at Narumoru Police station was taken for mental assessment whereas Dr. Richu Mwenda declared the two of them fit to plead. Post mortem of the deceased’s body was conducted by Dr. Ayub Macharia at Nanyuki Teaching and Referral Hospital. He formed the opinion that the cause of death a severe head of injury with severed brain stem secondary to multiple cut wounds on the head.

5. Upon being put on their defence, the accused persons presented their defences. Both of them denied the offence gave alibi defences. The 1st accused testified that on 02/02/2014, he was at Kieni constituency grazing cattle at the farm of one Muguna. He was informed by the area manager that he was required to report at Narumoru Police Station. He then reported there and was licked in the cells. The 2nd accused found him there later. The accused denied knowing the deceased or PW1 and other witnesses.

6. The 2nd accused said that on the material day he was at home at Ngerima village in Meru when the area chief informed him that police were looking for him and that there were instructions that he reports at Narumoru police station. He said that he obeyed the instructions with his advocate accompanying him to the station where he found the 1st accused already in custody. He denied committing the offence and added that the 1st accused was an employee of his grandmother one Maguna. He also said that the prosecution witnesses were not known to him.

7. The prosecution and the defence filed their submissions in this case which court has perused and considered in this judgement.

8. The prosecution highlighted the evidence of its witnesses on the fact that they knew the accused persons before the incident and that on the material day they interacted with them in the house of PW1. It was further submitted that the defence has not pointed out any material contradictions or inconsistencies in their case. In any event, if there were any such discrepancies, the same are minor and do not go to the root of the prosecution case.

9. The prosecution submitted that PW2’s testified when he was 17 years old however he was 14 years old when the incident occurred. For that reason, the voire dire examination was not necessary for PW2 for the witness was not a child of tender years. PW2 was 17 years old and he tendered sworn testimony as shown on the record. Further, his evidence was clear and very consistent and did not require corroboration.

10. The prosecution further submits that it has discharged the burden of proof given the evidence on record. Further, that its evidence was not in any way discredited by the defence during cross-examination. The evidence regarding participation of both accused persons is strong and the prosecution contends that there are no other co-existing circumstances that would displace their participation. Identification was indeed by recognition as all the witnesses knew the accused persons prior to the incident.

11. On cross-examination, the witness stated that she knew the accused persons very well. She further stated that she knew them as Mwirigi and Riungu.

Defence Case 12. The 1st accused testified that on 2/2/2014 he was at Ragati in Kieni constituency grazing cattle at Muguna’s farm. He was informed by the area manager that he was required to report at Narumoru police station. On cross-examination, he stated that Ragati is very far from Ngerima village where the incident occurred. He further stated that on the material day he worked from 8. 00am to 5. 00pm. The witness testified that he did not know the deceased nor did he know PW1. He stated that he knew the 2nd accused who used to visit his grandmother where he was working at Ragati. He testified that he was already in the cell when the 2nd accused was brought in.

13. The 2nd accused testified that he was at home with his siblings when the sub area chief of Ngerima village informed him that the police were looking for him. He further testified that he availed himself at the police station in the company of his advocate. He stated that he found the 1st accused in the cells. On cross-examination, DW2 testified that his grandmother, Muguna, had employed the 1st accused on her farm. He further stated that he did not know the prosecution witnesses.

The Prosecution’s Submissions 14. The prosecution reiterate their evidence in chief and the defence case and submit that the accused persons raised a defence of alibi but never called any witnesses to testify on their behalf and confirm the alibis. The prosecution urges the court to treat it as an afterthought and reject it because the accused persons raised this defence at the defence stage while they ought to have raised it at the earliest opportunity. The prosecution submits that both accused persons conceded to having been to Ngerima area before and that they were conversant with the area.

15. The prosecution further submits that the cause of death was due to injuries inflicted by a sharp object which is consistent with the evidence given by PW1 and PW2. Further, the evidence of the doctor on the nature of the injuries is consistent with the account given by the eyewitnesses.

16. The prosecution submits that the accused persons have been put at the scene by PW1 and PW2 who knew them prior to the incident. The evidence points out that though the 1st accused never inflicted any injuries on the deceased, he arrived at the scene armed with a panga and in the company of the 2nd accused, who is the principal offender. The prosecution thus submits that the 1st accused committed the offence jointly with the 2nd accused and as such, the doctrine of common intention applies pursuant to Section 21 of the Penal Code.

17. The prosecution further submits that the 1st accused’s presence at the scene was unlawful and intended to aid the 2nd accused in committing the offence of murder after developing a premeditated plan to finish the deceased. As such, the prosecution argues that there is enough direct evidence to show that the two accused persons acted together in causing the death of the deceased. The circumstances show a clear manifestation of malice aforethought.

18. The prosecution further submits that although the murder weapon was not produced in court, the 2nd accused person inflicted injuries on the deceased as indicated by the witnesses who testified. The prosecution further states that the absence of the murder weapon does not negate the fact that the offence was committed jointly by the two accused persons. The prosecution contends that failure to produce the murder weapon is not fatal to their case.

The Accused Persons’ Submissions 19. The accused persons submit that the prosecution has not proved its case beyond reasonable doubt as there are glaring inconsistencies and contradictions render the evidence incredible. As such, the accused persons submit that it would be unsafe to convict them based on the evidence presented.

20. The accused persons rely on the case of James Muthee Karanja & Another vs Republic Court of Appeal at Nakuru, Criminal Appeal No. 193 & 195 of 2002 and submit that they raised the defence of an alibi and the burden of proving an alibi did not fall on them.

21. The accused persons further submit that the evidence of PW2 was not corroborated by other independent evidence. PW2 was not the victim and at the time of the incident he was 14 years old. Furthermore, the accused persons contend that voire dire test was not done as contemplated by Section 19(1) of the Oaths and Statutory Declarations Act Cap 15 Laws of Kenya. To support their contentions, they rely on the case of Fuad Dumila Mohammed vs Republic Court of Appeal at Mombasa Criminal Appeal No. 210 of 2003. The accused persons submit that since the evidence of PW2 was taken in contravention of Section 19(1) of the Oaths and Statutory Declarations Act, then it was illegally obtained by dint of Section 175 of the Evidence Act and should be discarded. Based on the foregoing reasons, the accused persons submit that the prosecution has not proved its case beyond reasonable doubt and that the accused ought to be acquitted.

The law and analysis 22. The burden of proof in criminal cases lies on the prosecution to establish that the deceased death was as a result of the unlawful act of the accused persons. The prosecution must prove the primary ingredients of the offence of murder namely:-a.That the deceased died as a result of the unlawful act of the accused.b.That the accused persons were positively identified.c.That the unlawful act was actuated by malice, rather that malice aforethought existed on part of the accused persons.

23. Upon death of the deceased, PW8 Dr. Ayub Macharia subsequently conducted the autopsy on the deceased. The post-mortem report show that the cause of death was a severe head injury with severed brain stem secondary to multiple cut wounds on the head. The death and the cause of death has been established by the prosecution herein.

Whether the accused persons caused the death of the deceased by either an unlawful act or omission. 24. PW1 testified that he saw the 2nd accused cut the deceased on the head three times with a panga and that the 1st accused was also armed with a panga at the material time. PW1 said that the deceased was in his house having come to visit when the 2nd accused attacked him. PW2 a brother to PW1 said he heard commotion from PW1’s house and rushed there. He found the two accused persons there both armed with pangas and that the deceased had already been injured. The testimony of both PW1 and PW2 place the two accused persons at the scene of the crime. PW1 testified that the 2nd accused cut the deceased three times whereas the 1st accused stood outside armed with a panga.

25. The defence challenged the evidence of PW1 for the reason that a voire dire test was not conducted in taking his evidence. Although the trial judge referred to this witness at the preamble of his evidence as “male minor” the rest of the evidence tell a different story. The witness gave sworn evidence and said he was aged 17 years at the date he testified but was 14 years old when the offence was committed. Having attained seventeen (17) years, there is no requirement under Section 19(1) of the Oaths and Statutory Declarations Act that a witness who recorded a statement at the age of 14 years undergo a voire dire test. The key thing here is the age evidence is tendered by a witness. The test is applicable to children of tender years, that is below 14 years as provided for under Section 19. At the time of giving evidence PW2 was 17 years old and it was in order for the court to take sworn evidence without conducting a voire dire test.

26. It was held in the case of Kibarege Arap Korir Vs Republic by the East African Court of Appeal that “a child of tender years” means a child under 14 years. Similarly, in the case ofPatrick Kathurima Vs Republic [2015]eKLR that:-“The age of fourteen years remains a reasonable age indicative under Section 19 of Cap 15. The court proceeded to state that it was aware of the definition of “a child of tender years” under S. 2 of the children’s Act to be a child under the age of ten (10) years but said there was no good reason to import it in the Criminal Law which has express provisions.The court of Appeal has made the position clear that the definition under Section 19 of the Oaths and Declaration Act is the one applicable to the evidence of a child. PW2 was therefore not a child of tender years. In my considered view, the evidence of PW2 was taken in accordance with the law and is properly on record and requires no corroboration.

27. The accused persons alleged that the prosecution case was filled with contradictions and inconsistencies. However, not a single contradiction or inconsistency was brought forward for the consideration of this court. Even assuming there were some discrepancies or contradictions, the Court of Appeal in the case ofPhilip Nzaka Watu vs Republic [2016] eKLR the Court of Appeal held that:However it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.

28. I have perused the evidence on record I find no inconsistencies or contradictions that could affect the incredibility of the evidence.

29. The defence of alibi by the accused persons was raised but no details were given to enable the prosecution to investigate the truth of such allegations. It is trite law that by setting up an alibi defence, an accused person does not assume the burden of proving the alibi. However, this defence should be raised at the earliest opportune time as was held in R vs Sukha Singh s/o Wazir Singh & others[1939] 6 EACA 145 that:-If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there’s naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment, it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped.

30. Similarly in the case of Victor Mwendwa Mulinge vs Republic[2014]eKLR the Court of Appeal stated:-“It is trite that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs Republic, this court held that in a proper case, a trial court may, a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought”

31. Given the late stage that the alibi defences were presented and taking into consideration the evidence of PW1 and PW2 which was not shaken during cross-examination, I am of the considered view that the defences are afterthoughts in that accused persons did not raise them at the earliest possible time to give prosecution a chance to interrogate the same. I find the defences of the two accused persons not plausible weighed along the direct and credible evidence of the prosecution.

32. The prosecution must prove common intention for the reason that the 2nd accused was the first to enter the house of PW1 and cut the deceased with a panga. The 1st accused came later and stood outside the house and was also armed with a panga but did not strike the deceased. PW1’s evidence was clear that the 2nd accused attacked the deceased for the reason that the deceased had beaten the 1st accused. The 1st accused followed the 2nd accused to PW1’s house but did not enter the house. The 1st accused was armed with a panga at the time of the attack. PW2 who lived about 15 metres from his brother PW1. He was in his mother’s house at a close location to the home of PW1. He was attracted by the commotion in PW1 house and went there. He found the two accused persons at the scene and noticed that both were armed with pangas.

33. Section 21 of the Penal code provides as follows:-“When two or more persons form a common intention to prosecute unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that is commission was a probable consequence of that purpose, each of them is deemed to have committed the offence”

34. It was held in the case of Ismael Kiseregwa & Another vs Uganda CA CR Appeal No. 6 of 1978 where the court said:-In order to make the doctrine of common intention applicably it must be shown that the accused shared with the actual perpetrator of the crime, a common intention to pursue a specific unlawful purpose which led to the commission of the offence. If it can be shown that the accused persons shared with one another a common intention to pursue a specific unlawful purpose, and that prosecution of that unlawful purpose an offence was committed, the doctrine of common intention would apply irrespective of whether the offence was murder or manslaughter. It is now settled that an unlawful common intention does not imply a pre-arranged plan, common intention may be inferred from the presence of the accused persons, their actions and the omission of any of them to dissociate himself from the assault. It can develop in the course of events though it might not have been present from the start. It is immaterial whether the original common intention was lawful so long as an unlawful purpose develops in the course of events. It is also irrelevant whether the two participated in the commission of the offence. Where the doctrine of common intention applies, it is not necessary to make a finding as to who actually caused the death.

35. From the conduct of the 1st accused, there is no doubt that he was pursuing an unlawful purpose with the 2nd accused being that of fatally injuring the deceased. The two accused therefore had a common intention which they successfully executed at the scene.

36. Upon evaluating the evidence on record, I find that the prosecution have proved that the two accused person jointly executed the unlawful act that caused the death of the deceased.

Whether the accused persons had malice aforethought 37. The prosecution have a duty to prove that the accused persons had malice aforethought at the time they executed the unlawful act on the deceased. Section 206 of the Penal code stipulates that malice aforethought is deemed to be established by evidence when any of the following circumstances are proved:-a.An intention to cause the death of another.b.An intention to cause grievous harm to another.c.Knowledge that the act or omission causing death will probably cause death or grievous harm to someone, whether that is the person killed or not, accompanied by indifference whether death or grievous injury occurs or not or by a wish that it may not be caused.d.An intent to commit a felony.e.An intention to facilitate the escape from custody of or the flight of any person who has committed a felony or attempted it.

38. In this case, evidence was adduced that the accused persons armed themselves with pangas and followed the deceased to the house of PW1 where they attacked him fatally. The injuries inflicted on the deceased who was caught by surprise were the multiple on the head and were described as “severe head injuries with severed brain stem, secondary to multiple cuts on the head.” The cuts were on the frontal aspect with a fracture, left parietal deep accipital cut wound measuring 19cm long and depth of 8cm with a fracture as well as on the left scapular region.

39. The 2nd accused asked deceased in presence of PW1 why he had attacked the 1st accused and immediately struck him. This was the motive of the attack, to hit back on the deceased for assaulting the 1st accused. The words uttered by the 2nd accused are evidence that the unlawful act was premeditated.

40. Considering the severe nature of injuries inflicted on the deceased and the conduct and utterances of the accused persons at the material time, I am of the considered view that malice aforethought on part of the two accused persons has been proved.

41. It is my finding that the prosecution have proved the offence of murder against the two accused persons beyond any reasonable doubt. I find the two accused persons guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and convict them accordingly.

42. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 13TH DAY of OCTOBER, 2022. F. MUCHEMIJUDGEJudgement delivered through video link this 13th day of October, 2022.