[2022] KEHC 655 (KLR)

Republic v Mruya & another (Criminal Case E002 of 2020) [2022] KEHC 655 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 655 (KLR)

Republic of Kenya

In the High Court at Busia

Criminal Case E002 of 2020

JR Karanja, J

June 16, 2022

Between

Republic

Prosecution

and

Maureen Mruya

1st Accused

Robinson Mruya

2nd Accused

Judgment

1. Maureen Mruya, and Robinson Mruya, the first and second accused respectively, are charged with murder contrary to S.203 as read with S.204 of the penal code, in that, on the October 6, 2020 at Kwangamor sub location in Teso South – Busia County murdered Wycliffe Ndeke (deceased).

2. The case for the prosecution was that on the material date in the forenoon a group of boys was gathered at the bank of a river scooping river sand when an altercation occurred between themselves over a radio or radio battery being charged on behalf of one of them (deceased) by another called Davy who then left the scene in a huff and was followed by the other boys including Dickson Wanjala (PW 1), Levin Okware (PW 3) and the deceased.

3. On arrival at Davy’s home, the boys met his brother Robinson (accused two) who led them to Davy. At that juncture, Davy started to cry. His mother (accused one) shortly thereafter appeared at the scene and immediately set upon the deceased and the other boys. She slapped the deceased and instructed the second accused to fetch a thick stick or “rungu” which was then handed over to her whereupon she used it to hit the deceased on the head.

4. The first accused also instructed the second accused, her son, to also hit the deceased with the rungu. She alleged that the deceased and the other boys who accompanied him to the scene were rogues and while she was in the process of assaulting them her neighbour Everlyn Amoit (PW 2) appeared at the scene after hearing screams and shouts emanating from there. She (PW 2) found the first accused assaulting the deceased with the rungu which she then handed over to the second accused on realizing that she (PW 2) was at the scene.

5. Everlyn (PW 2) confronted the first accused and attempted to wrestle from her a machete (panga) that she was holding. The first accused resisted and handed over the panga to the second accused who ran away with it. She (PW 2) noted that the deceased had a head injury. She assisted and took him to her house where he cried aloud complaining that he was in pain. Thereafter, he ran to his home.

6. The deceased arrived at his home where he lived with his grandmother, Rispa Auma Okwara (PW 4), while staggering and looking dazed. He went straight to bed and slept. The grandmother did not think much of it and opined that he was tired or unwell with malaria until Everlyn (PW 2) appeared at her home and informed her that the deceased had been assaulted by the first accused.

7. The grandmother immediately thereafter proceeded to the homestead of the first accused and questioned her. The first accused denied assaulting the deceased but alleged that her children had been attacked by thugs. This prompted the grandmother to report the matter to the police before taking the deceased to Amukura Health Centre where he was examined and given some drugs without being admitted although his condition had worsened.

8. On the following day, the deceased was referred to Busia County Hospital and eventually to the Moi Teaching and Referral Hospital in Eldoret where he passed away while undergoing treatment.A postmortem conducted by the pathologist, Dr. Kibet Keitanyi (PW 6) revealed that the deceased died from severe head injury.The postmortem report (Ex 1) indicated that the cause of death was severe head injury due to blunt force trauma consistent with assault.

9. The report made by the deceased’s grandmother (PW 4) was received and booked by PC Everlyne Wambua (PW 5) who noted that the deceased appeared weak and had an injury on the head reportedly caused by the first and second accused. A P3 form was issued to the deceased but he was in serious state and was admitted to a local hospital at Kocholia before being referred to Busia hospital.

10. Everlyne (PW 5) arrested and charged the two accused with the offence of grevious harm but after the death of the deceased at the Moi Teaching and Referral Hospital the charge was enhanced to that of murder after which necessary investigations were conducted by Sgt Samson Biwot (PW 7) who found that the deceased was assaulted and occasioned severe injury by the two accused. However, the alleged assault weapon was never recovered.

11. Both accused denied the charge with the first accused stating in her defence that she arrived at her home only to find a group of children shouting and making noise while the deceased and Levin (PW 3) fought. She learnt that a dispute over a radio had taken place among the children while collecting sand at a nearby river. She told the children to return to their respective homes. Later, she learnt that the deceased had been hit on the head by her son, the second accused and that this happened while the second accused was protecting his brother called Davy from being beaten by the deceased.

12. The first accused contended that she did not assault the deceased and attributed her predicament to a land dispute existing between her family and that of the deceased.On his part, the second accused indicated that he was aged fifteen (15) years old and schools in Kitale. He was with other children collecting sand at a river when a dispute arose over a radio. His brother, Davy, was in the process beaten by the deceased and others. Thereafter, Davy went home and he (accused two) followed him.

13. The deceased and other children also followed them to their home while holding sticks with which they further assaulted Davy before turning to and assaulting him. He defended himself by hitting the deceased on the head using fists. His mother arrived at the scene and told the children to go to their homes although the deceased complained of being injured and asking for compensation.

14After some days, police officers arrived at the homestead of the two accused and arrested them both. The second accused contended that he did not use any object but his fists to hit the deceased and that what happened to the deceased was accidental. He also contended that the first accused was not at the scene when the deceased was beaten.

15. All the facts and evidence foregoing present each sides version of the events leading to the death of the deceased. What is however, not disputed is the fact that the deceased died from a fatal head injury inflicted upon him on the material date. The assault was an unlawful act committed against the deceased after he and his boyfriends engaged in a brawl over a radio. The brawl started at a river bank and escalated at or near the homestead of the two accused where the deceased received the head injury which later proved fatal.

16. The big question and indeed the issue for determination is whether the fatal assault against the deceased was inflicted by the first accused or the second accused or both. There cannot be any doubt that the force used against the deceased was extremely excessive in the circumstances. A brawl which is a normal phenomenon among boys of more or less similar age was unfortunately turned into a criminal transaction after one of the boys (deceased) received a fatal head injury.

17. The medical evidence provided by the doctor pathologist (PW 6) indicated clearly that the head injury was due to blunt force trauma due to assault such that the deceased developed complication which necessitated a sophisticated medical procedure to remove a blood clot. Unfortunately, the procedure failed and the deceased succumbed to the head injury.The evidence of Dickson (PW 1), Everlyne (PW 2) and Levin (PW 3) clearly and credibly indicated that it was the first accused who actually inflicted the fatal injury upon the deceased using a thick stick (weapon) which was not recovered by the police.

18. Indeed, the evidence against the first accused strongly indicted and established that she interfered in a boy’s brawl in which her sons were involved not with a view to create peace and maintain harmony but to “punish” the deceased and other boys for daring to go after her sons Davy and Robinson (accused two). She showed absolute bias against the deceased whom she perceived to be the ring leader of those who followed her sons into her homestead and that explained why he (deceased) received the severest of the punishment. Her evidence in defence was clearly disputed by the prosecution evidence which showed that she was determined to use excessive force against the deceased even though the death of the deceased was the last thing on her mind.

19. It was quite clear that in the efforts by the first accused to escape criminal culpability for the fatal injury caused to the deceased by herself she made an attempt almost successfully to transfer blame to the second accused who in a move which showed that he was being protective for his mother stated in his defence that his mother was not at the scene when the deceased was assaulted and implied that he was the person who inflicted the fatal head injury upon the deceased using his bare fit. In that regard, he made an attempt to disprove the existence of a thick stick (rungu) in the assault against the deceased.

20. From this court’s observation of the second accused’s demeanor while testifying it was quite obvious and apparent that he was coached on what to state in court with a view to exonerating the first accused and place himself on the “frying pan” or in the position of the “chief operating officer” in the criminal transaction against the deceased.

21. Although the second accused was in fact not the key offender in assaulting and fatally injuring the deceased, he aided and abetted the commission of the offence as was indicated by Dickson (PW 1) and Levin (PW 3). Both indicated that a blunt assault weapon (rungu) was brought to the scene by the second accused after he was instructed by the first accused to fetch it. That, the second accused also hit the deceased with the rungu after the first accused had done so. This action was akin to the slogan “we lead others follow”. Only in the case, it was the first accused leading and the second accused following.

22. In sum, it is the finding of this court that the deceased was assaulted and occasioned fatal injury by both the first and second accused with the first accused being the leading and most notorious offender.However, as noted hereinabove, the last thing on the minds of the two accused was to cause death to the deceased. The circumstances of the case did not establish that the two accused while assaulting the deceased had the necessary intention to cause his death. They must however, be held criminally responsible for the consequences of their unlawful act.

23. Ultimately, this court must find and hereby finds that the offence established against the two accused beyond reasonable doubt by the prosecution is that of Manslaughter, contrary to S.202 (1) of the penal code rather than murder.Both accused are accordingly found guilty and convicted.

J.R. KARANJAHJ U D G EDELIVERED AND SIGNED THIS 16TH DAY OF JUNE 2022