[2018] KEHC 3908 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO. 88 OF 2013

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

VERSUS

MESHACK MUTWIRI........................................................................ACCUSED

J U D G M E N T

1. MESHACK MUTWIRI (“the accused”) has been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code CAP 63 of the Laws of Kenya. The particulars of the offence are that on the 17th September, 2013 at Silent Annex Lodging, Makutano in Imenti North District within Meru County, the accused murdered DORCAS MWENDWA (“the deceased”). The prosecution called fifteen witnesses to establish its case.

2. PW1 Pamela Karimitestified that on 17th September, 2013 she was with her friend Soni, the deceased, whom she knew by that name. They both were in the business of selling their bodies and on that day they met at Back Street Bar at around 9pm where they bought alcohol. They then went walking in town until 10. 30pm when the deceased received a call. The deceased was called three times by a person whom she told PW1to be her friend. They then proceeded to silent Annex Lodge. On reaching the gate, the watchman whom PW1 knew as Marete opened the gate for them. The accused came and collected the deceased and headed to the rear of the lodge where staff houses were located.

3. PW1was able to recognize the accused because she had known him for about two months. There was also electric lights at the gate which enabled her to see and recognize him. Later that night and the following morning, she tried to reach the deceased on her mobile telephone No.0704 157 377 without success. She would later be called by people who turned to be police officers who inquired about the deceased. She informed them how she had escorted her to meet the accused. She accompanied the police officers together with a sister of the deceased, PW2, to the lodge where the accused was arrested. She later learnt that the deceased had died and her body recovered from the lodge borehole.

4. PW2 Christine Makena Muriuki,a sister to the deceased told the court that on 20th September, 2013, her mother informed her that the deceased had not come home for 3 days and that her phone was on voice mail. They reported the matter to the police. The police looked at the number that had called the deceased most on the day she went missing. They gave her the number and she called and requested for a room. She accompanied the police to the Lodge whereat she once again called and the accused picked the call. He came to meet them at the gate and had in his possession the deceased’s phone which she identified. The accused was then arrested. A week later, the police called and informed the family that a body had been found.

5. PW3 Joseph M’Maretewas the night watchman at Annex Lodge. He testified that on 16th September, 2013 at about 11. 30pm, some two girls came to the gate of the Lodge. One of them called the accused who came and picked her from the gate and went with her to his house while the other girl, PW1went away. He did not see the two leave until he left for home the following day at 9. 00am.

6. PW4 Duncan Ndegwa Ngorokie,a plumber, told the court how he was called on 7th October, 2013 by PW5, the manager of the Lodge and informed of a water shortage at the lodge. He went to the lodge and looking inside the borehole, he saw a human body. A report was made to the police who came and removed the body from the borehole.

7. PW5 Ezekiel K. Mborogo,a manager at the Lodge told the court that the accused was an employee of the Lodge. That he was on duty on 30th September, 2013, when the police arrested the accused because he had a mobile phone which the police were interested in. They later returned and asked for records from 16th September, 2013 for rooms to establish who had slept in the lodge the material night. The police asked about room 9 which was not booked on the material night. The police informed him that they had arrested the accused because he was found with the deceased’s phone. On 7th October, 2013 there was a water shortage in the lodge and he called PW4 to help clear the problem. PW4informed him that there was something suspicious in the borehole. They reported the matter to the police who removed a body from the borehole.

8. PW6 Dr. Koome Guantai performed the postmortem on the body on 8th October, 2013 at Meru District Hospital. The body was in the early state of decomposition. He could not establish the time of death but estimated it to be between 3- 4 weeks. There were features that could still help in identification. The body was yellowish but facial contours were still visible which helped the relatives positively identify it.

9. According to him, no injuries were discernible on the body. The systems were all normal except spinal column which were severed at C3 and C4 – at the neck. Neck was supple – free moving in all directions. Abrasion of the neck muscles prenatal friction of neck muscles. The injury could not have been self inflicted. He formed the opinion that the cause of death was respiratory failure due to spinal code sever. He produced the postmortem report as PExh.1.

10. PW7 Meshack Mungathia Johanatestified that he is a chef at Ushirika Annex Lodge. On the material day, he was the receptionist. He worked till 11. 00pm when he closed and handed over the keys of the reception and kitchen to the watchman. He then went to sleep in the staff quarters behind the lodge. On 30th September, 2013, police officers came and arrested the accused who was in possession of a phone make bird Model V210 which he identified in court. Later a body was recovered from the Lodge’s borehole.

11. PW8 Sarah Wanja,a sister to the deceased told the court how she went to Meru General Hospital mortuary with her father and aunts to identify the body. The body was whitish but was not rotten. She identified the body as that of her sister from her round face, a gap in the teeth, a broken tooth and an operation mark on the lower abdomen. PW9 Luka Muriuki, the father of the deceased accompanied PW8 in identifying the body.

12. PW 10 NO. 48267 CPL Evans Mose,the in charge of scenes of crime in Meru County explained how he took over the scene of crime at the lodge on 7th October, 2013 during the retrieval of the body from the borehole. He took a total of 20 photographs of the scene which he produced as PExh.2. That in this case, there was no forensic evidence (for example blood and fingerprints) at the scene except documenting it.

13. The investigating officer was PW11 NO.63737 CPL James Mwangi.He testified that on 30th September, 2013, he was instructed by the DCIO to investigate a case of a missing person. He interviewed the sister of the missing person, got the cell phone number of the latter and handed it to the Cyber Crime officer CPL Sanga. He got some communication data of the last signal of the missing person’s mobile number. Through signal, it was established that the missing person’s handset was being used in Makutano area.

14. CPL Sanga directed him where to trace the phone. He took him to the Lodge where he called the number and the accused, who was about 5 meters away, picked up the call. They arrested him and recovered the handset (PExh.3) from him. On interrogation the accused told him that on the night of 16th September, 2013, a stranger came to the Lodge and gave him a number to call certain lady. That person booked room No. 9 and he handed over the girl to that person. That that person gave him the phone as a reward. On enquiring from the Lodge on who used room 9 on the material night, he confirmed that the said room was not booked. He produced the Lodge’s room records as PExh.4.

15. On further interrogation, the accused told him that he was given the phone by a street boy at Makutano. For 2 days they moved around at Makutano with the accused but the accused did not identify the street boy. He found that the accused was the last person to call the deceased on No. 0704 157 371 through his line No. 0701 597 882. It is the same number the accused was using and an inventory of the handset mobile phone was recovered. He also established that it was the accused’s number that had paired with the accused’s other phone known as Forne, PExNo.5 which he had been using prior to start using the deceased’s handset.He also recovered an ID card from the accused’s pocket PExh.6. He then charged the accused with robbery with violence and asked for more time to continue with further investigations of which he was granted.

16. On 2nd October, 2013 a report was made of a dead body found in a borehole at the Lodge. The police retrieved the body and took it to the mortuary for identification and postmortem.

17. PW12 NO. 78293 CPL Gambo Sangatestified that he was the officer assisting in investigations by collection of intelligence and phone analysis. On 25th September, 2013, he was requested by the DCIO to assist in investigations in a case that was reported at Meru Police Station involving a missing person. Prior to the victim’s disappearance, she had a mobile phone with mobile No. 0704 157 377 which was paired to mobile handset make Bird V210 with the International Mobile Equipment Identity (“IMEI”) number 358068030018050. Since it had 2 slots for a SIM card, it also had another IMEI number 358068030018068. He managed to trace the current user of the victim’s handset shortly after her disappearance.

18. On gathering more intelligence, on 30th September, 2013 with his colleagues, they arrested PW1 who revealed that she was the last person to be with the victim at Makutano. On trying to locate the number that was currently in the victim’s handset, the user was placed at the Lodge whom they arrested and recovered the handset from him. That person was the accused. The number found in the handset was 0701 597 882 registered in the name of the accused. He produced as PExh.7, the inventory of what they recovered from the accused.

19. PW13 NO. 232609 CIP Andrew Kioko Kyangi’s role was to find out the details of the victim’s communication and identify the IMEI of the handset that the deceased was using. He wrote letters on 24th and 30th September, 2013, respectively (PExh.8 and 9)to Safaricom who supplied data that identified the deceased’s handset’s IMEI number and the number that was subsequently used in the deceased’s handset after her disappearance.

20. PW14 NO. 69485 CPL Daniel Hamisiis a Safaricom Law Enforcement Liaison Office based at Safaricom headquarters. He testified and produced communication data from Safaricom on the use of the handset belonging to the deceased as well as the mobile number of the accused as PExh.12 and 13,respectively.

21. PW15 Jackson Kamakewas a finger print officer at Huduma Centre Meru who produced a set of 10 finger prints which showed that the fingerprint on the accused’s National ID Card (PExh 6) was genuine.

22. When put on his defence, the accused gave sworn testimony and called one witness. He testified that he was born in 1987 and in 2013 he was 17 years. He admitted that he had applied for and was issued with the ID Card that was produced in court as PExh.6. That when he was arrested and taken into custody, the police showed him the photograph of Dorcas Muthoni but he told them that he did not know her. That on inquiring about the phone he was using, he told them that it was sold to him by Meshack Mungáthia (PW7)whom they arrested. That he and PW7were charged with the offence of robbery with violence. He told the court that he was later charged with the current offence in unclear circumstances as PW7was released and later testified against him.

23. Regarding the offence, he told court that he used to work at the Lodge as a gardener between 8am and 6pm. On the material day, he worked in the dining room until 8pm when he retired to sleep at 8. 30pm at the staff quarters behind the Lodge. That he was sharing his phone with PW7who had lost his phone the previous December. On the material day, PW7started using his phone at 10pm. The following day, PW7confided in him that a customer had asked him to call Dorcas, the deceased, for him. He denied the testimony of PW3,that the lady he came with into the Lodge on the material night was the deceased. That it was a girlfriend of one Musyoka who was at the time was living in the staff quarters. He denied ever knowing the deceased.

24. DW2 Cecilia Ekenois the Executive Assistant in charge of the Meru Criminal Magistrate’s Criminal registry. She appeared and produced the original record of Meru CM’s Court Cr. Case No. 1372 of 2013- Republic vs. Meshack Mutwiri Kirimi. In that case, the accused with PW3had been charged with robbery with violence. That case was withdrawn under Section 87(a). She produced the record as DExh.1.

25. The offence of murder is defined under Section 203 of the Penal Code Cap 63 of the Laws of Kenya.This definition gives rise to four (4) crucial ingredients of the offence of murder which the prosecution must prove beyond a reasonable doubt. These are; the fact of the death of the deceased; the cause of such death; proof that the death was as a result of an unlawful act or omission on the part of the accused and finally proof that the said unlawful act or omission was committed with malice aforethought.

26. With regard to the fact and cause of death of the deceased, PW1 and PW3 last saw the deceased on the night of 16th September, 2013. PW8 and PW9 positively identified the body to be that of the deceased using some body features before postmortem. PW6 carried out the postmortem on 8th October, 2013 and approximated the date of death to be between 3 – 4 weeks. The cause of death was cardiorespiratory failure due to spinal cord trauma.

27. In this regard, I am satisfied that the prosecution was able to prove the fact of death of the deceased as well as the cause of such death to the required standard.

28. On the third issue, it must be proved that the deceased met her death as a result of an unlawful act or omission on the part of the accused person.

29. The testimony of PW1was that on the night of 16th September, 2013 at about 10pm, she was with the deceased around Makutano area of Meru town. That the deceased received a telephone call and she, PW1,escorted her to the gate of Lodge from where the accused picked her. PW3 who was a watchman at the establishment and who was on duty that night confirmed opening the gate for the deceased and the accused picking her. The two disappeared to the accused’s house in the staff quarters of the Lodge.

30. This was refuted by the accused. Firstly, he denied knowing the deceased. According to him, he first saw her photograph at the police station after he was arrested. Secondly, he stated that after he finished his work on the material day, he went to the staff quarters. He left the premises to buy tomatoes and when returning, he met Caroline, Musyoka’s girlfriend at the gate and entered the compound with her.

31. PW1 was firm that she knew the accused as working at the Lodge. She had seen him at the lodge before the material day. He had booked rooms for them at the Lodge. That part of evidence was not challenged or denied. She then told the court that the deceased had received three calls before she requested her (PW1) to escort her to the Lodge. That the person who had called her was the accused as he came to collect the deceased from the gate of the Lodge.

32. The prosecution was able to prove that the accused’s telephone number 070 1597 882 called the deceased’s telephone number 0704 157 377 severally on that night. The accused’s answer to that was that his co-employee, Meshack Mung’athia (PW7)was the one who used his phone to call the deceased on behalf of an unknown customer. However, PW7testified, this fact was not put to him during cross-examination. In my view therefore, it was proved that the accused’s number contacted the deceased severally on the material night.

33. The accused was found in possession of the deceased’s phone PExh.3. This was confirmed by witnesses who testified. The records produced in court confirmed that the phone recovered from the accused belonged to the deceased for it had the IMEI number 3580650300180050 that belonged to that phone. Evidence from Safaricom was tendered to show that the last time the deceased used her phone was on 17th September, 2013 at about 1. 00am. The next time the phone was active was on 18th September, 2013 at 12. 04pm with a different number, that is 0701 597 882 which admittedly belonged to the accused. The accused admitted that telephone number 0701 597 882 was registered under his name.

34. The accused told the court that he had bought the phone that was recovered from him from PW7for KShs.4,000/=. Firstly, he neither stated when he allegedly purchased that phone from PW7 nor produce any evidence of such purchase. Secondly, when PW7testified, that fact was not put to him although very crucial for the defence.

35. From the evidence on record, there was no one who saw the accused commit the act. However, he was the last person seen with the deceased. He was subsequently found in possession of her phone which he made use of approximately 12 hours after she last made use of it.

36. In Dorcas Jebet Ketter & Another v Republic [2013] eKLR,the Court of Appeal held:-

“In the case ofKipkering Arap Koske vs. Republic (1949) 16 EACA, 135,the predecessor to this Court stated that in order for a court to convict an accused person based solely on circumstantial evidence:-

(a) the inculpatory facts must be incompatible with the innocence of the accused,

(b) the facts must be capable of no other conclusion or explanation except the guilt of the accused”.

37. These principles were echoed in the case of Simon Musoke v. R [1958] EA 715 where the Court of Appeal referred to the case of Teper v. R(2) [1952] AC. 480 where the Privy Council held:-

“It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

38. Data from Safaricom shows that it is the accused who called the deceased before she went visiting him at the lodge. He is the one last seen with the deceased. He was found in possession of the deceased’s phone and could not satisfactorily explain how he came into its possession. He made use of that phone barely 12 hours after the disappearance of the deceased. To my mind, the above circumstances points unerringly to the accused as the person responsible for the death of the deceased. His defence did not discharge the strong evidence of the prosecution. Accordingly, this court finds that the deceased met her death as a result of an unlawful act on the part of the accused.

39. Did the accused have the necessary malice aforethought?Section 206 of the Penal Codedefines 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, ….

(c) …

(d) …”

40. The body of the deceased was found in a borehole after 3-4 weeks after the incident. It was not ascertained whether she sustained the fractures to her spine and neck before or was it due to the fall into the borehole. According toPW6,the fractures could not have been self-inflicted. The deceased was thrown into a borehole which was approximated to be 60 feet deep. This clearly demonstrates that the accused did indeed have the intention to cause death of or to do grievous harm to the deceased. The injuries themselves attest to the fact that the accused intended or knew that they will cause grievous harm upon the deceased. I am satisfied that the accused had the requisite malice aforethought in causing the death of the deceased.

41. Accordingly, I find that the prosecution has discharged its burden and has proved beyond reasonable doubt that, with malice aforethought, the accused caused the death of the deceased.

42. Consequently, I find the accused Meshack Mutwiri guilty of the murder of Dorcas Mwendwa and convict him accordingly.

Signed at Meru by me

MABEYA

JUDGE

DATED and DELIVERED AT MERU THIS 4TH DAY OF OCTOBER, 2018

F. K. GIKONYO

JUDGE