[2022] KEHC 14720 (KLR)

Republic v Marigu (Criminal Case 3 of 2020) [2022] KEHC 14720 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14720 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case 3 of 2020

LW Gitari, J

October 12, 2022

Between

Republic

Prosecutor

and

Juster Gateria Marigu

Accused

Judgment

1. Juster Gateria Marigu, the accused person herein, is accused 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 offence are that on March 23, 2020 at Tumaya Village, Rukurini sub-location, Tharaka South Sub-County, within Tharaka-Nithi County, the accused person murdered Gaudensio Marigui Kathenya.

2. The accused denied committing the offence and the matter proceeded to trial. The prosecution called a total of seven (7) witnesses in support of its case while the accused person testified as the sole witness in her defence. Hereunder is a summary of their respective cases.

The Prosecution’s Case 3. Julius Muriungi Marigu, PW1, son to the accused and the deceased stated that his parents used to live together in the same compound although in separate houses. He stated that the accused and the deceased used to quarrel a lot. On March 18, 2020, the deceased left home after a disagreement with the accused and went to Marimanti where he rented a house. The deceased returned home on the material day at around 8. 00 p.m. and an altercation broke out between him and the accused. PW1 heard them quarreling. He stated that he heard the accused telling the deceased that he should not bring H.I.V. to her. PW1 then heard a commotion. His sister (PW3) who lived in the house next to him, called him and asked him to go and find out what was happening. He went to the scene together with his brother, Peter Kinoti. It was just outside the deceased’s house.

4. PW1 used his torch to flash the scene and saw the accused cutting the deceased several times using a panga (P.Exhibit 1) that PW1 identified as belonging to the accused. The deceased was lying on the ground facing up and the accused was cutting him on the chest. PW1 witnessed all this from a distance of about 5 metres away. He went to were the deceased was and found that he was unconscious. The deceased also had a cut wound on his neck and on his hand that split his fingers in the middle. PW1 and his brother Peter Kinoti lifted the deceased from the ground and took him to Marimanti hospital on a motor bicycle. The deceased was then pronounced dead. They then went and reported the matter to the police at Marimanti Police Station.

5. Peter Mutithi (PW2), a neighbour to both the deceased and the accused corroborated PW1’s testimony. He stated that he heard screams coming from the deceased’s home on the material day. He went to find out what was happening and found the accused holding a panga and the deceased was lying on the ground outside his house with cut wounds on his hand, neck and chest which were bleeding profusely. He asked the accused why he had inflicted the injuries on the deceased but she did not answer. The accused went in to her house and immediately came out and ran away. PW2 was left behind when the deceased was escorted to hospital. He was later informed that the deceased had passed on. The following day, he returned to the homestead of the deceased where he found a blood stained panga (P.Exhibit 2) along a pathway they were trying to make for vehicles.

6. Lucy Karugo (PW3), is a daughter to the deceased and the accused. She lives in the same compound as her parents. She corroborated the testimonies of PW1 and PW2. She stated that on the material day, she heard her mother, the accused, quarrelling with the deceased. According to her, the accused was telling the deceased that whenever he gets money, he goes to spend it on prostitutes at Marimanti while she spends her money with him. PW3 also heard the deceased telling the accused that she could spend her money they way she wants. They were talking loudly and PW3 then heard the accused reminding the deceased of her previous threat to kill him. PW3 then called her brother (PW1) and asked him to go find out what was happening. She (PW3) also went to the scene and found the accused holding a panga (P.Exhibit 2) while her father (the deceased) was lying on the ground with injuries on his hand, neck and chest. She identified the panga as the one that belonged to the accused. When the deceased was rushed to hospital, PW3 and her sister-in-law (PW4) tried to look for the accused but they did not find her.

7. Damaris Karwirwa (PW4), is the niece to the deceased and the accused as she is married to their nephew. She recalled that on the material day at around 8. 30 p.m., she heard PW3 screaming. She also heard the accused saying “Marigu, I told you I would kill you.” She went to the scene and found PW1 and his brother Peter carrying the deceased who could not talk. The accused was not there.

8. Dr. Nicholas Nkonge (PW5) is the medical officer who conducted a post-mortem examination on the body of the deceased. He stated that there was a penetrating, 4-centimetres-long cut wound below his left clavicle and abrasions on his chest. Internally, PW5 stated that there was about 3-litres of blood in his chest cavity and the left veins were severed. He formed the opinion that the cause of the deceased’s death was severe blood loss secondary to the penetrating wound and produced the post-mortem form as P.Exhibit 1.

9. Peter Njogu (PW6) is the investigating officer in this case. He received a report of the murder incident on March 24, 2020. Before going to the scene of the crime, he received a call from the D.C.I.O. Tharaka North informing him that the accused person had surrendered herself to them and confessed to committing the crime. PW5 then visited the scene in the company of other officers, and interviewed the witnesses. He produced a blood stained panga as P.Exhibit 2. On cross-examination, PW6 stated that he did not confirm whether the blood stains on the panga were from the deceased.

10. CPL Erastus Wambugu (PW7) recalled that on March 24, 2020, while he was attached at D.C.I.’s Office Tharaka North, the accused went to the said office and reported that she had had a disagreement with her husband the previous night and that she had killed him. According to PW7, the accused stated that she spent the night in the bush for fear of being killed by her children. He arrested her before escorting her to Marimanti Police Station for booking.

The Defence Case 11. When she was put on her defence, the accused admitted that she killed the deceased by cutting him but raised the defense of self-defence. According to her, the deceased came home that day from Marimanti and called her. She greeted him and the deceased responded by calling her “Kimanyoko” meaning “you dog”. She realized that there was a problem and went back to her house when the noise became too much. She contended that the deceased had the habit of beating her and that he had previously hit her and knocked out her teeth. The accused then stated that the deceased held her and pushed her causing her to fall on the ground. The deceased was allegedly armed with a panga and asked her to give him the money which he had given her to keep for him. She showed him a box where he had kept some Kshs. 20,000/= which she alleged she had withdrawn and that it belonged to a group.

12. The deceased then went to the box and took money which was inside that was tied in a ‘lesso’. She asked him to give her some of the money but the deceased refused and hit her three (3) times with the blunt side of the panga. A fight ensued between the two and the accused alleged that the deceased tore her petticoat leaving her with only a pant. According to her, the deceased fell down during the struggle and the panga also fell down. That is when the accused alleges that she picked the panga in anger and cut the deceased, fatally injuring him.After the close of the defence case no submissions were filed on behalf of the accused. For the prosecution, submissions were filed by the D.P.P. They urge the court to find that they have proved the case against the accused to the required standards and she should therefore be convicted.I have considered the evidence adduced by the prosecution, the defence and the submissions.

Issues for determination 13. This Court is called upon to decide whether the accused is guilty of the offence of murder. Section 203 of thePenal Code(Chapter 63 of the Laws of Kenya) defines the offence of murder and requires proof of the following if the offence of murder is to be established:a.death of the deceased,b.the cause of the death and an unlawful act or omission on the part of the accused resulting in the death of the deceased,c.malice aforethought on the part of the accused.Section 203 of the Penal Code provides:“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”

14. Accordingly, the following are the main issues for determination by this court:a.Whether there is proof of the fact and cause of death of the deceased.b.Whether the accused caused the death of the deceased. And if so,c.Whether the acts of the accused, resulting in the deceased’s death, qualify as murder (intentional killing).SeeRepublic- v- Anthony Kyalo Ndaka &another (2020) eKLR. These are the ingredients of murder which must be proved beyond any reasonable doubts.

15. Hereunder is an analysis of the evidence on record with regard to the issues highlighted above.

Analysis (a) Proof of the fact and cause of death of the deceased 16. The death of the deceased was proved by postmortem form produced as P.Exhibit 1 by PW5 which confirmed that the deceased died from cardiopulmonary arrest secondary to severe blood loss from penetrating cut wound.

(b) Whether the accused caused the death of the deceased 17. PW1 and PW2 witnessed the accused cutting the deceased with a panga. In addition, the accused on her own volition surrendered herself to the police following the incident and admitted that she indeed cut the deceased using a panga. It is therefore not in dispute that the accused caused the death of her husband, the deceased herein.

(c) Whether the accused had malice aforethought 18. The final element that proves the commission of the offence of murder is establishment of malice aforethought on the part of the accused. Section 206 of the Penal Code defines malice aforethought as follows:“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;c.an intent to commit a felony;d.an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

19. In this case, PW1, PW2 and PW3, the marriage between the accused and the deceased was riddled with many disagreements and quarrels. According to PW2, the accused had threated to kill the deceased on several previous occasions. PW5, who did the postmortem examination of the deceased’s body stated that there were ten (10) abrasions on the left side of the chest and neck. Although the accused testified that she only cut him once, her testimony was disproved by the evidence of PW1 and PW2 who saw the accused cutting the deceased several times and the testimonies of PW3, PW4, and PW5 who saw the deceased’s body with several cut wounds on his neck and chest.

20. The other contention by the accused that the deceased is the one who attacked her first on the material day is, in my view, an afterthought. The defence of self defence was discussed in the case of Ahmed Mohammed Omar & 5others v Republic [2014] eKLR where the Court of Appeal expressed itself as follows:“What are the common law principles relating to self defence? The classic pronouncement on this issue and which has been severally cited by this Court is that of the Privy Council in Palmer v R [1971] A.C. 814. The decision was approved and followed by the Court of Appeal in R v McINNES, 55 Cr. App. R. 551. Lord Morris, delivering the judgment of the Board, said:“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. …..Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. ….. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.” ”

21. In the instant case, the testimonies of PW1 and PW3 confirmed that the accused had her teeth removed many years back when she had a dental problem and they therefore denied the contention that it was the deceased who knocked out her teeth on the material day. PW1 and PW2 stated that they never saw any injuries on the accused’s body. In any case, the investigating officer in this case testified that the accused never made any report of the deceased attempting to rape her or stealing her money or even beating her.

22. Taking the evidence on record in totality, it is my view that the accused’s defence was a made up story to cover up for the heinous act she did. She had a history of having quarrels with the deceased and had even threatened to kill him. In addition, considering the weapon she used to cut the deceased and the severity of the injuries she inflicted on him, it is my view that the prosecution proved beyond any reasonable doubt that the accused had the requisite mens rea to sustain a conviction for the offence of murder. She executed the threat to kill her husband and promptly surrendered to the police. The mensrea is confirmed by her previous verbal threats to kill the deceased. This has been attested to by her own children who I found no reason to doubt.

Conclusion 23. The upshot of the foregoing, is that the prosecution proved beyond any reasonable doubt that the accused committed the offence of murder contrary to section 203 as read with section 204 of the Penal Code. I therefore find the accused person guilty of the offence of murder and convict her accordingly under section 322(2) of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 12TH DAY OF OCTOBER 2022. L.W. GITARIJUDGE