[2014] KEHC 7710 (KLR)

REPUBLIC OFKENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL CASE NO.6 OF 2010

REPUBLIC……………………………….……………….....PROSECUTOR

VERSUS

MOSES MWANGI KARURI…….……………………..…………ACCUSED

JUDGMENT

Moses Mwangi Karuri, the accused, in this case was charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence were that on 31st January 2010 at about 5. 30 p.m. at Kinyago Village, Kamukunji Nairobi, the accused murdered John Kanyara Gathulitho (hereinafter referred to as the deceased). When the accused was arraigned before this court, he pleaded not guilty to the charge. The prosecution called eight (8) witnesses in its bid to establish the charge against the accused. After the close of the prosecution’s case, submission on no case to answer was made. After considering the evidence on record, this court formed the opinion that the prosecution had established a prima facie case to enable the court put the accused to his defence. The accused gave unsworn statement in his defence. He denied committing the offence.

The facts of this case as this court was able to assess from the evidence adduced by the prosecution is as follows: PW1 Simon Gitau testified that he was a resident of Majengo. He used to reside in the same house with the deceased. He recalled that on 31st January 2010 at about 5. 30 p.m., the accused went to their house and started quarrelling with the deceased. The accused then stabbed the deceased with a knife on his chest. The accused then ran away. The deceased fell to the ground and died on the spot. PW1 testified that prior to the fateful date, the accused and the deceased used to quarrel especially when drunk. After the stabbing, PW1 raised alarm while chasing the accused. He testified that the accused was chased and was apprehended by members of the public near Eastleigh Section III. At the time of his arrest, PW1 recalled that the accused had a knife in his pocket. He identified the knife which was produced as Prosecution’s Exhibit No.1 during his testimony. He also identified a T-shirt and a trouser which were produced as Prosecution’s Exhibit No.2 and 3. He identified these items of clothing as belonging to the deceased. He reiterated that the accused entered their house while armed with a knife which he used to stab the deceased. The deceased fell dead inside the house. It was his evidence that the accused was arrested after the incident about 100 metres from his house. He denied the suggestion by the accused that he had at one time attended a reconciliation meeting at the Chief’s Office to resolve a dispute between the accused and the deceased.

PW1 Robert Mugo Wachira testified that on the material day of 31st January 2010 at about 5. 00 p.m., while he was at his shop in the Kanuku area of Eastleigh, he heard screams emanating from the direction of the house of the deceased. PW1 knew the accused and the deceased prior to the incident. Infact, he testified that they were neighbours. He responded to the screams and went towards the direction of the house of the deceased. He saw the accused with a bloodstained knife. The accused was running away from the house of the deceased. He went to the house of the deceased and saw that the deceased had sustained an injury on his abdomen area. The deceased was bleeding from the injury. He decided to go towards the direction that the accused had run to. He saw the accused across the road. He was buying a paper bag. He told members of the public what had transpired. They apprehended the accused. Before apprehending him, PW2 saw the accused retrieve a knife from his pocket and then throw it away. He retrieved the knife and escorted the accused to the Chief’s Camp. He also took the knife with him. They were advised to take the accused to Shauri Moyo Police Station where the accused was arrested by the police. PW2 identified the knife that he recovered in the accused’s possession. It was produced as Prosecution’s Exhibit No.1. He conceded that prior to the incident, he had had a disagreement with the accused over allegations that the accused was interfering with the affairs of his family. He however stated that the matter was arbitrated upon by the area Chief and resolved. At the time of the incident, he had made peace with the accused. He reiterated that he saw the accused remove the knife from his pocket and throw it away a few moments just before he was apprehended. He further testified that earlier during that day, the accused and the deceased had fought. He denied the existence of a grudge between him and the accused.

PW3 David Munyiri Thiga recalled that on 31st January 2010 while he was at the market near the Eastleigh Airbase, he was approached by PW2 who inquired from him whether he had seen the accused. PW3 was known to both the PW2 and the accused. He answered in the negative. PW2 told him that the accused had stabbed the deceased. As they were talking, they saw the accused buying a paper bag on the opposite side of the road. They mobilized members of the public who assisted them to apprehend the accused. PW3 testified that before apprehending him, he saw the accused holding a knife. The accused wanted to put the knife into the paper bag. He stated that the accused had removed the knife from his pocket and put it in the paper bag. When the accused realized that he was being apprehended by members of the public, he attempted to throw away the knife. The knife was however recovered and taken to Shauri Moyo Police Station. PW3 identified the knife produced as Prosecution’s Exhibit No.1 as the knife that was recovered from the accused. He told the court that he had known the accused a year prior to the incident. He did not know how the accused and the deceased related. He was only informed that the accused had stabbed the deceased thus causing his death. He recalled that the police later that evening collected the body of the deceased and took it to mortuary. PW4 Stephen Kathurigu Kanyara, the father of the deceased, testified that on 1st February 2010 he was informed of the death of the deceased. He was present at the mortuary and was able to identify the body of the deceased before postmortem was conducted. PW5 Dr. Zephania Kamau examined the accused on 4th February 2010 to determine whether the accused was mentally fit to stand trial. He did not see any physical injuries on the accused. It was his opinion that the accused was mentally fit to stand trial. The P3 form was produced as Prosecution’s Exhibit No.4.

PW6 Cpl John Mmasi was at the material time working at the Scenes of Crime Department. He was instructed to visit a murder scene by the Officer-in-Charge of Shauri Moyo Police Station. He proceeded to the scene on the same 31st January 2010. He arrived at the scene at 9. 00 p.m. He took two photographs of the body of the deceased. The photographs were taken where the deceased died inside his house. The two photographs were produced as Prosecution’s Exhibit No.5(a) and 5(b). The certificate was produced as Prosecution’s Exhibit No.5(c). PW5 testified that in one of the photographs he instructed the investigating officer to place the knife which was allegedly recovered from the accused next to the body of the deceased. He stated that the knife was bloodstained. PW7 Dr. Njau Mungai conducted a post mortem on the body of the deceased on 2nd February 2010. On external examination, he saw a lone injury-a penetrating wound to the upper abdomen. The contents of the abdomen and upper bowel were protruding through the injury. The injury was about 4cm long. On internal examination, there was an injury on the stomach and large intestines. There was a lot of blood in the abdominal cavity. He formed the opinion that the deceased died due to severe hemorrhage due to penetrating abdominal wound. He testified that the wound was possibly caused by a sharp knife. The post mortem report was produced as Prosecution’s Exhibit No.6.

PW8 PC Daniel Muteshi, was at the material time based at the CID office at Shauri Moyo Police Station. He was instructed to investigate the case on 1st February 2010. After concluding his investigations, he reached the conclusion that there was sufficient evidence to charge the accused with the offence of Murder. He told the court that during the post-mortem, blood sample was recovered from the body of the deceased and taken to the Government Chemist. The bloodstained knife was also taken to the Government Chemist. At the time of the trial however, he only received the knife without a report from the Government Chemist. PW8 produced all the exhibits which had previously been marked for identification by the witnesses as Prosecution’s exhibits in the case.

When the accused was put on his defence, he gave unsworn statement in his defence. He testified that on the material day of 31st January 2010 when it is alleged that he had stabbed the deceased, he had gone to church after which he went to look for work in a construction site at Eastleigh. He denied being at the scene when the deceased was stabbed. He told the court to take into consideration the fact that PW1 and PW2 had adduced contradictory evidence which cast doubt as to the circumstances of the stabbing of the deceased and his subsequent arrest. He testified that there existed a grudge between him and PW1. Their difference was such that he had reported PW1 to the police for assaulting him a week prior to the incident. He however conceded that the incident had been amicably resolved with the intervention of PW1’s mother. In essence, the accused gave an alibi defence. It was his defence that he was elsewhere at the time the deceased was stabbed.

In every criminal case, the burden of establishing the guilt of an accused person to the required standard of proof beyond any reasonable doubt is on the prosecution. The prosecution is required to adduce evidence which will establish the guilt of the accused on the charge brought against him. An accused person has no responsibility or burden of proving his innocence. In the present case, the prosecution has relied on eye witness account in its bid to establish the guilt of the accused on the charge of Murder contrary to Section 203 as read with Section 204 of the Penal Code. PW1, PW2 and PW3 were known to both the accused and the deceased prior to the incident that led to the death of the deceased. According to PW1, on the material day of 31st January 2010, the accused went to the house that he was sharing with the deceased and started a quarrel with the deceased. He then stabbed the deceased with a knife before making good escape. The incident took place at about 5. 30 p.m. There was therefore sufficient light which enabled PW1 to be certain that it was the accused who had stabbed the deceased. Immediately after the incident, PW1 raised alarm. PW2 arrived at the scene. PW2 has a shop which is about 10 metres from the house where PW1 the deceased lived. PW2 saw the accused come from the direction of the house of the deceased with a bloodstained knife. The accused ran away from the scene. PW2 went to the house of the deceased. He saw the deceased double over with a stab injury on his chest. He left the deceased at the scene and followed the path that the accused had taken. While on the way, he met PW3.

As they were talking, they saw the accused on the opposite side of the road. The accused was buying a paper bag. They decided to mobilize members of the public to apprehend the accused. They managed to apprehend the accused. They also got a bloodstained knife in his possession. PW1, PW2 and PW3 gave what may at first glance appear to be contradictory evidence regarding the circumstances under which the knife was recovered. This court has however evaluated that evidence. The apparent contradiction is resolved basically by the fact that PW1, PW2 and PW3 narrated various stages that the accused was first seen with the knife, and then when he tried to conceal it in a paper bag that he had purchased before finally attempting to throw away the knife when he realized that he had been cornered by members of the public. PW1, PW2 and PW3 gave snapshot evidence of what they saw during these various stages. Their evidence is therefore not contradictory in that regard because the three witnesses are all agreed that the knife was recovered in the accused’s possession. They were able to positively identify the knife during trial. The knife was bloodstained. Although the Government Chemist did not adduce forensic evidence to confirm the fact that the bloodstains in the knife belonged to the deceased, the absence of such evidence does not distract this court from making a finding based on the cogent eye-witness account of the three witnesses.

Having evaluated the evidence adduced by the prosecution witnesses, it was clear to this court that indeed the prosecution proved its case to the required standard of proof beyond any reasonable doubt that it was the accused who caused the unlawful death of the deceased by stabbing him with a knife. The eye-witness account of PW1 was not rebutted by any evidence adduced on behalf of the accused. PW1 narrated how the accused provoked a quarrel with the deceased in their house before stabbing him with the knife. The accused went to the house of the deceased while armed with a knife. The fact that he used the knife to stab the deceased showed that in carrying the knife to the house the deceased, he had the intention to use it.

As stated earlier in this judgment, the accused was known to PW1, PW2 and PW3 prior to the stabbing incident. It cannot therefore be said that there was a case of mistaken identity. The stabbing incident took place in broad daylight. The accused made no effort to conceal his identity. He was seen with bloodstained knife a few moments after the deceased had been stabbed by PW2 and PW3. Indeed, the knife was recovered from him a few minutes after the stabbing incident. There was no reason for this court to believe the accused’s assertion that the evidence adduced against him by PW1, PW2 and PW3 was either motivated by a grudge or by malice. The testimony of the three witnesses was consistent and in fact corroborated each other in all material respects. It gave the sequence of events that took place immediately prior to the fatal stabbing of the deceased until the arrest of the accused. This court therefore holds that the accused did indeed fatally stab the deceased.

The next issue for this court to determine is whether the prosecution proved malice aforethought. According to Section 206 of the Penal Code:

“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances-

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;

knowledge that the act of 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 of grievous bodily harm is caused or not, or by a wish that it may not be caused;

an intent to commit a felony;

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.”

In the present case, it was clear that when the accused stabbed the deceased, he had the intention of at least to cause him grievous harm if not fatally injure him. The death of the deceased was therefore a natural consequence of the accused’s action in provoking the quarrel with the deceased before fatally stabbing him. As stated earlier in this judgment, the fact that the accused was armed with a knife at the time he confronted the deceased is sufficient proof that he premeditated the act of stabbing the deceased. The accused’s alibi defence did not displace the strong evidence that was adduced against him by the prosecution.

In the premises therefore, this court holds that the prosecution proved both the actus reus and the mens rea of the charge of Murder contrary to Section 203 of the Penal Code. The prosecution established all the ingredients of the charge. The accused is accordingly convicted of murder contrary to Section 203 as read with Section 204 of the Penal Code.

DATED AT NAIROBI THIS 25TH DAY OF FEBRUARY, 2014.

L. KIMARU

JUDGE