[2022] KEHC 15077 (KLR)

Republic v Mbiti (Criminal Case E016 of 2020) [2022] KEHC 15077 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15077 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case E016 of 2020

LM Njuguna, J

November 9, 2022

Between

Republic

Prosecutor

and

Sylvester Njeru Mbiti

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. The particulars of the offence are that on September 22, 2020 at Kageri village, Mburi Location of Mbeere North sub County within Embu County murdered Benson Macharia.

2. The accused pleaded not guilty and the prosecution called six witnesses in support of their case.

3. PW1, Diana Wanjagi gave sworn evidence after the court conducted voire dire and found that she was intelligent enough to understand the importance of taking an oath. She stated that on September 22, 2020 at around 5. 00 p.m. while at home and playing with Benson Mutwiri and cousin Muriithi, she saw three people namely Kembu Njeru Wambiti and Mwangi’s wife. That Kembu was asking for his money from the accused herein who instead informed him that he would give him money for the water delivered. At that instance, the accused took out a knife from his waist and stabbed the deceased. That the deceased started bleeding and he placed his fingers on the injured point and thereafter fell down after walking for some distance. That he told one mama Lewi, a neighbour, that he was about to die. On cross examination, the witness stated that it is the deceased who went to where the accused was, and asked for his money in a polite way but then they started exchanging words that were not pleasant. It was at that point that the accused stabbed the deceased.

4. PW2, Jane Wanjue Njiru testified that on the material day, as she was coming from the quarry, she met the accused in the company of the deceased. That the deceased greeted her and the accused started walking away and all these while, the accused was in front of her while the deceased was behind her. She stated that the deceased was asking for his money from the accused herein and he didn’t feel happy that the deceased was reminding him of the same publicly. That at that point, he removed a knife and stabbed the deceased and further threatened that he would also stab PW2. On cross-examination, she reiterated that the two were drinking alcohol at that material time.

5. PW3, Anisia Nginya testified that the deceased was his son and on October 2, 2020, she identified the body of the deceased at Siakago Level (4) Hospital.

6. PW4, Jasmar Kimanthi Kinyua stated that while working at Kings and Queens Hospital, he was called by his fellow colleagues who informed him of a person who had been brought by a good Samaritan having a stab wound on the upper abdomen and that he was unconscious. That the wound was wrapped in gauzes and his hands and limbs were extremely cold signifying there was no sufficient blood supply in the body. It was his statement that the patient said that he is called Benson Gitonga and that he was stabbed by a person known to him, Njeru Mbiti. He stated that he called one Mwaniki, a police officer from Siakago Police station seeking advice on how to proceed with the case upon which, the police officer informed him to ask the good Samaritan who had brought the patient to report the same at the station. That he later checked out and upon resuming duties the following day, he was informed that the patient, deceased herein had passed on. On cross- examination, he reiterated that there was no doctor or a senior clinician at the time the deceased was brought in; further, the hospital did not have a resuscitation kit nor a blood bank. He further stated that given that the patient had been brought to the hospital by a good Samaritan, it proved difficult for him to be transferred to another facility for the reason that the Samaritan had already left. It was his evidence that the patient could communicate well although he was not coherent.

7. PW5, Simon Mutisya stated that he was the investigating officer and that he was called by the deputy OCS Siakago police station who told him of a case from Kings and Queens Hospital wherein a person had been stabbed. That he was informed that there was an individual who had been arrested and that he was required to interrogate him. It was his statement that upon the suspect being presented to their offices, his attention was drawn to his socks where he recovered a knife with a wooden handle. That he placed the suspect in custody to sober up and later on removed him from the cells and in the company of his colleagues they visited the home of the accused herein to see if he could recover any weapon given that previously, the accused had recorded a statement to the effect that he had been attacked and that he had used the knife to defend himself from the attackers. He stated that in his investigations, he established that on September 22, 2020, the suspect and the deceased met in a club within Kageri area in company of other customers and from the witnesses, it revealed that the deceased wanted Kshs 50/= from the accused and that the accused stabbed him instead. He stated that the evidence that he gathered from the witnesses and the pathologist, informed the reason for preferring the charges herein. He also produced a psychiatrist report of the accused which was prepared by Dr Muikaba.

8. PW6, Phyllis Muhonja testified that she conducted an autopsy on the body of the deceased and in the mid upper abdomen, there was a 4cm stab wound and the blood vessels supplying the intestine were coming out of the abdomen. That there was massive bleeding from the abdomen to the volume of 5 liters and that the stab wound perforated the layer that covers the intestines. She thus formed the opinion that the cause of death was a single stab wound into the abdomen caused by a sharp object leading to exsanguination.

9. After the accused was put on his defence he testified that on the material day, while at Siakago, he went to Kagere village where he has a piece of land, to check on some building stones and thereafter passed by Kagere Bar where he bought some alcohol. That while there, two men approached him demanding drinks from him but he told them that he had no money. It was his evidence that another lady also came along demanding to be bought for alcohol and that he got tired of them and left the bar. That the same people followed him and attacked him; that it was at this point that he took out a knife from his pocket and stabbed one of the men so that he could get an opportunity to escape; he therefore claimed that he acted on self defence. That he later on recorded a statement with the police on how he was attacked by people who took away his money, Kshs 5,000. 00 and a phone, make Itel but instead, he was arrested and placed in custody and accused of stabbing someone.

10. I have considered the evidence adduced by both the prosecution and the defence and I find that the main issue for determination is whether the prosecution proved beyond reasonable doubt all the elements of murder against the accused person herein. These elements are: the fact of the death of the deceased, the cause of that death, that the death was occasioned by an unlawful act or omission, that it was the accused person who caused the unlawful death of the deceased and finally, that the accused had malice aforethought when he unlawfully killed the deceased.

11. There is no doubt that there was death of a person in the name of Benson Macharia. The testimonies of PW4, PW5 and PW6 was sufficient to demonstrate death and therefore, the prosecution proved beyond reasonable doubt that indeed the deceased passed on.

12. As to whether the deceased’s death was caused by an unlawful act or omission, article 26 (1) of the Constitution guarantees every person the right to life. The postmortem report prepared by PW6 and produced as PEX 2 showed that the cause of death was a single stab wound into the abdomen caused by a sharp object leading to exsanguination. There is no lawful basis for the aforementioned cause of death. In the circumstances, it is my finding that indeed the deceased’s death was unlawfully caused. [See Sharm Pal Sign v R [1962] EA 13].

13. On whether it was the accused who caused the deceased’s unlawful death, there is no doubt that the deceased died out of a single stab wound into the abdomen caused by a sharp object leading to exsanguination. PW1, PW2 and PW4 testified on how the accused herein stabbed the deceased after the two exchanged unpleasant words in relation to debt of Kshs 50/= owed by the accused to the deceased.

14. On whether the accused acted with malice aforethought, the accused admitted stabbing someone but testified that he stabbed him in self-defence. That person turned out to be the deceased in this case but the circumstances under which the accused stated that he stabbed the deceased were very different from what emerged from the evidence of the prosecution witnesses who witnessed first-hand, what transpired on the September 22, 2020.

15. It is trite that the defense of self-defense when established and proved, does not only have the effect of justifying an act causing death of a deceased person and which act is unlawful but has the effect of disproving malice aforethought. A finding that the accused herein acted in self-defense will not only disprove the issue as to the act causing death being unlawful but will also disprove the issue of the accused having acted with malice aforethought. As such, the question which needs to be answered is whether the contention that the accused acted in self-defence is plausible.

16. Section 17 of the Penal Code states that: -“Subject to any express provisions in this code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.”

17. At common law the defence of self-defence allows a person to use reasonable force to:-i.Defend himself.ii.Prevent attack of another person.iii.Defend his property

18. The Court of Appeal in Ahmed Mohammed Omar & 5 Others v Republic [2014] eKLR in recognizing these principles (principles of english common law) held as thus: -“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] AC 814. The decision was approved and followed by the Court of Appeal in R vMcinnes55 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.”

19. According to Archbold– Criminal Pleading, Evidence and Practice 2002, paragraph 19-42, the test of whether force used in self defence was reasonable is not purely objective.“There is no rule of law that a man must wait until he is struck before striking in self defence.” R vDeana, 2 Cr App R 75, CCA…………………”

20. In the instant case, the accused raised defense to the effect that he was defending himself against an attack by the people who had attacked him and in the course of defending himself he stabbed the deceased with the knife he was armed with.

21. The burden in a case where self-defence is raised, the burden of proof does not shift from the prosecution. The duty of the accused is to lay before the court, facts upon which the defence of self-defence is based in order to enable the court and the prosecution to rebut the self-defence with other evidence as was held in the case of Chan Kau v R (2) (1955) WLR 192 that was cited with approval in Morris Mungathia v Republic Criminal Appeal No 212 Of 2006 Court of Appeal at Nyeri.

22. In this case, the accused testified that on the material day, he passed by Kagere Bar where he bought some alcohol. That while there, two men approached him demanding drinks from him but he told them that he had no money to do so. It was his case that another lady also came along demanding to be bought for alcohol and that he got tired of them and left the bar to go sit outside. He decided to go home and on his way, the same people followed him and attacked him. That it was at this point that he took out a knife from his pocket and stabbed one of the men to get an opportunity to escape; he therefore claimed that he acted in self defence. The question is whether the accused faced imminent danger to justify using the force that he applied in stabbing the deceased.

23. On the part of the prosecution, PW1 testified that while they were playing with other children, she saw the accused and the deceased and that the deceased had asked the accused for his money and at that instance, the accused took out a knife from his waist and stabbed the deceased.PW2 stated that on the material day, the deceased asked his money from the accused herein and that he didn’t feel happy of being reminded of the debt publicly. That the accused instead removed a knife and stabbed the deceased. PW6 who performed the autopsy testified that the cause of death was a single stab wound into the abdomen caused by a sharp object.

24. In my view, these pieces of evidence point to the fact that contrary to the accused’s allegation that he stabbed the deceased in self defence, the evidence by the prosecution on the accused having stabbed the deceased in a bar is overwhelming. His defence does not hold water in the face of the evidence by the prosecution. [See State v George Omondi Owak [2022] eKLR], State v Odero (Criminal Case E006 of 2021) [2022] KEHC 10001 (KLR)].

25. I find and hold that the prosecution evidence was overwhelming and effectively dislodged the defence offered by the accused. I am therefore satisfied that malice aforethought has been established in terms of section 206(b) of the Penal Code.

26. Consequently, I find and hold that the prosecution has proved the charge of murder against the accused person beyond any reasonable doubt. I therefore find him guilty of the offence of murder and convict him accordingly.

27. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OF NOVEMBER, 2022. L NJUGUNAJUDGE……………………………………for the accused……………………………………for the state