[2022] KEHC 509 (KLR)

Republic v Muchiri & 2 others (Criminal Case 23 of 2012) [2022] KEHC 509 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 509 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 23 of 2012

LM Njuguna, J

May 11, 2022

Between

Republic

Republic

and

Joseph Njiru Muchiri

1st Accused

John Nyaga Kithaka

2nd Accused

Joseph Namu Kariuki

3rd Accused

Ruling

1. The accused persons herein were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code and the particulars of the offence being that; 1. Joseph Njiru Muchiri 2. John Nyaga Kithaka 3. Joseph Namu Kariuki on May 30, 2012 at Gichera Village Kagaari South Location of Embu County jointly with others not before court murdered Francis Njeru Muchiri.

2. Upon arraignment, the 1st and 2nd accused persons pleaded not guilty and a plea of not guilty was entered. The 3rd accused person pleaded guilty to the charge of murder on the December 13, 2018 and a plea of guilty was entered and he was sentenced to serve 10 years imprisonment.

3. The case against the 1st and 2nd accused persons proceeded for trial and wherein the prosecution called a total of seven (7) witnesses and who testified in support of its case.

4. PW1, Robert Ndwiga James testified that on May 26, 2012 in the evening at around 5. 00 p.m., he was leaving the home of one Njue, a neighbour whose son had passed away. That as he walked home, he passed near the home of the 1st accused person and found the two accused persons, one Njeru who was not charged and a 4th person. That he greeted them and none of them responded. That he suspected there was a problem somewhere given that the deceased herein had been killed a week before. It was his evidence that the deceased and his brother who is the 1st accused herein had an existing land dispute.

5. PW2, Benard Njeru testified that on May 30, 2012 at around 6. 00 p.m., he was at his house in Gichiera when the deceased went to his house to pick milk and he told him that he had seen his brother (1st accused person herein) and two other people seated somewhere and that they talked about a school that was to be established. That on May 26, 2012, he had witnessed the deceased and the 1st accused person fighting before the deceased was killed and that the two had deep differences. He reiterated that he did not witness the death incident of the deceased. On cross examination, he testified that he did not see the fight between the 1st accused and the deceased but that on May 26, 2012, the deceased had informed him that him and the accused had fought. On further cross examination by the 2nd accused person’s advocate, PW2 stated that, he had seen the 2nd accused talking with three other people and that he did not notice anything unusual. He testified that when the deceased went to his house on the December 31, 2012, he had told him that he was fearing for his life after he saw the 1st accused and others elsewhere. That later the same day, at around 6. 30 Pm, while in the house of Gichovi, Wanjira went there screaming and they accompanied her to her house where they found the body the deceased lying near her kitchen. That he used torches to see the body of the deceased which had several cuts. He stated that he had advised the deceased to flee from the area and this was due to the frequent arrests that were happening due to the long standing land dispute. That he found PW5 at the house of Gichovi; that Gichovi’s house was about 400 meters from PW5’s house where the deceased was killed. On cross examination by counsel for the 2nd accused, he stated that the deceased was killed about 400 meters from his house i.e PW2s house, thirty minutes after he left his house. He later stated that the deceased was killed at Wanjira’s home but he stated that he did not see the murder weapon. Further that Wanjira told him that he was struggling with the attackers of the deceased when she was injured on the neck but she did not tell her who the attackers were.

6. PW3, Daniel Ndwiga testified that on May 30, 2012, at around 9. 30 p.m., he was at Kabiruri when PW5 called and informed him that she had been attacked in her home and that she was apprehensive that Francis Njeru (deceased) had been fatally injured. That he informed her to report to the police as he prepared to go to the scene where upon reaching, he found the deceased lying outside the house near a kitchen in a pool of blood with a gaping wound on the jaw. That it was dark but he could see since he had a spotlight. That he conducted preliminary investigations at the scene and the names of John Nyaga Kithaka and Namu Kariuki were given as suspects and so he proceeded to arrest them and handed them over to the police. On cross examination, he stated that he did not know that the deceased was an employee of Wanjira and could not tell the circumstances under which the deceased was found at Wanjiras home. That it is the police who gave him the names of the two accused persons herein after they carried out preliminary investigations. It was his further evidence that he did not get to know the time the attack took place but it was that evening.

7. PW4, Joseph Mugo Ndaveta testified that on May 30, 2012, at around 4. 00 am, while he was sleeping in his house, his neighbours, among them the 3rd accused, woke him up and they told him that Francis Njeru, the deceased herein had been killed by thugs. That they requested him to accompany them to help but they later said they had learnt police had gone to the scene. That he stayed with them outside his house for about one hour and then left. To him, it was unusual to be woken up at 4. 00 a.m. and he did not understand why it happened.

8. PW5, Lucy Wanjira testified that on May 30, 2012 at around 7. 00 p.m., she was at home watching News with the deceased who used to visit her from time to time. That she left him listening to the radio and went to collect milk from PW2 and on the way, she saw a group of men sitted near a church. That the 1st accused person was addressing the group but she never heard what he was saying. On arrival at PW2s house, he asked her if she had seen the deceased since he had told PW2 that there was a plan to kill him because he had differed with his brother. She took the milk and then returned home and informed the deceased what she had heard. That the deceased said that he would go to PW2’s house to pick his phone and call his sisters to inform them of the news. The deceased went to PW2s house and went back after a short while and since his phone had no charge, she lent him her phone which she used to call his sisters. She stated that after a while, the dogs started barking and she told the deceased to put off the radio since she had a feeling that there were people outside her house. That the deceased went outside and she followed him but he rushed back to the kitchen and a man that she did not identify, hit her twice with an iron bar.

9. It was her evidence that she was able to identify the 1st and the 2nd accused persons herein. That one of the men hit her with a panga on the back of the neck but she managed to escape to the home of Gichobi who was her neighbour. That in the company of Gichobi and his neighbours, they went back to her house where they found the body of the deceased lying near the kitchen and was bleeding on the left side of the head. That on her way from Pastor Bernard’s house, she saw four people walking ahead of her on the road and the 1st accused was one of them. On cross examination, she testified that she never saw the 1st accused person in her compound before the dogs started barking and that it was not true that they lived with the deceased herein as a husband and wife but in the year 1998 he was her employee on monthly pay but at the time of the attack, the deceased used to do some casual work for her. She denied that the deceased used to sleep in her house. It was her evidence that PW 2 had told her that there was a plan to kill the deceased and he had heard the accused persons and others discuss the murder plan near the church. Further that the 1st accused and the deceased had sharp differences which made her know they were planning to kill the deceased. She denied that she planned the murder of the deceased. She stated that she did not know how the accused persons came to know that the deceased was going to her house on that day. That she did not witness the murder of the deceased but she knew there was a land dispute case involving the 1st accused and the deceased in which, she had appeared as a witness of Francis but stated she was not aware of any trespass case against the deceased. On cross examination by counsel for the 2nd accused, she stated that she saw the 2nd accused during the attack and he was wearing a jacket but she did not identify other clothes. She admitted that in her first statement she did not mention the name of the 2nd accused but his name is in the further statement. She further stated that she had known the 1st accused and others were hunting for the deceased and she knew what they were doing.

10. PW 6, Francis Njomo stated that on May 30, 2012 while on duty at Runyenjes Police Station, he heard people talking at the report office and upon going there, he found PW5 making a report. That she said that Francis Njeru (deceased) who had visited her at her home had been killed by attackers while she was assaulted by the same gang. She said that she had recognised one John Kithaka and one Namu but the 3rd person had covered his face with a scarf. That he gave PW5 a treatment note to go to hospital and in the company of IP Wangombe and PC Serem, they headed to the scene at Kaguma. That on arrival, they found the body of the deceased lying on the ground and that it had deep cuts on the right side of the head and right elbow. He recovered a wooden rod that was blood stained near the body and thereafter moved the body to Embu mortuary. He stated that they interrogated PW5 in regards to the suspects that she had allegedly seen and then proceeded to the home that they had been directed to, but unfortunately found no one.

11. It was her further evidence that, on May 31, 2012, the area chief handed over to him two suspects (John Kithaka and Namu) said to have been identified at the scene of crime. That he took a yellow T-shirt that he said the 3rd accused was wearing which had blood stains and a grey jacket which he said was worn by the 2nd accused and it had blood stains on the front. He then recorded the statements from witnesses, took the accused persons for mental assessment and then charged them with the offence of murder. He then forwarded the wooden rod, yellow T-shirt and jacket, blood samples of the deceased to the government chemist for analysis. He concluded by saying that the motive of the murder was a land dispute between the deceased and his brother, the 1st accused person herein. On cross examination, he stated that he was informed by the villagers that the 1st accused person held a meeting with two suspects just before the deceased was killed and that the participants would keep quiet any time there was a passer-by. That the manner in which the meeting was held is what made the villagers think it was a meeting with a bad motive. He further stated that, PW5 told him that the person who had a scar is the one who injured her while the 2nd one hit her before she escaped. He conceded to the fact that only PW5’s evidence connected the 2nd accused person with the offence. He admitted that the wooden rod that was recovered at the scene was not dusted for finger prints and denied that the exhibits were planted at the scene.

12. PW7, Dr. Humprey Mwende Ndwiga produced the post-mortem report on behalf of Dr Thuo who carried out the post-mortem on the body of the deceased. He stated that on external appearance of the body, it had an extensive cut wound on the right side of the head and face; he had deep cut wounds approximately 6cms in length on the right elbow extending up to the humerus. That on the internal appearance of the body, on the head, there was a left deep extensive cut wound extending from the left occipital region to the left cheek region approximately 20 cms in length. The cut wound involved celleberum of the brain, the muscles of the face, the mandible and the maxillary bones. That all other internal organs were intact including the spinal cord and the spinal column. It was the doctor’s opinion that the cause of death was cardio respiratory arrest due to severing of the celleberum of the brain which hold the respiratory control centres of our bodies. He proceeded to produce the post mortem report as PExh 5; He also produced the mental assessment reports both dated June 11, 2012 which showed that the two accused persons are normal and fit to stand trial.

13. The prosecution proceeded to close its case and vide a ruling delivered on 21. 07. 2021, the accused persons were placed on their defence upon the court having found that the prosecution established a prima facie case.

14. DW1, Josephat Njiri Muchiri testified that the last time he set his eyes on his deceased brother and his wife PW5 was on May 26, 2012 and that he was not the one responsible for his brothers death. It was his case that PW5 never said that he was present at the scene and that he never planned to kill the deceased as alleged. On cross examination, he stated that there was no bad blood between him and the deceased and further that, PW5’s evidence was contradictory since she had initially testified that she had seen his co accused on the road but in her statement, she stated that she saw them at home.

15. DW2, John Kithaka testified that it was not true that he was hired by the 1st accused to kill the deceased. That on May 30, 2012, he woke up at 7. 00 a.m., and worked until 2. 00 p.m. when he left for Siakago to collect muguka, then he proceeded to Ichiche market to sell the miraa in a bar called J.K. Corner. That he sold miraa from 6. 00 p.m. to 10 p.m. That he only saw the deceased on May 26, 2012 and that there was no bad blood between them. He told the court that PW5 was not happy with him because he used to discourage the deceased from his relationship with PW5 due to the big age difference between them which was about 37 years. On cross examination, he stated that the death of the deceased was not a normal death and he suspected it was PW5 who killed the deceased. He denied ever sitting with the 1st accused to plan the death of the deceased. He stated that PW5’s children were not happy with the relationship between the deceased and PW5.

16. John Mwaniki Abel testified in support of the second accused person’s defence. He stated that he operated a bar by the name of J.K. bar and that he knew 2nd accused person since 2011. That the 2nd accused is a miraa dealer and that on May 30, 2012, he saw him at his bar from 6pm -10pm selling miraa.

17. The defence proceeded to close its case and the court gave directions on filing of submissions; the prosecution chose to rely on the evidence on record in support of its case while defence filed their submissions.

18. The 1st accused person’s submitted that the prosecution failed to prove the elements of the offence of murder in that; there was no evidence linking the accused to the death of the deceased. He proceeded to submit that on page 50 of the typed proceedings, it is indicated that John Nyaga Kithaka is the 1st accused while it is clear from the charge sheet that he has always been the 2nd accused person. That PW5 never mentioned the 1st accused as being a suspect in the entire case; on page 56 of the typed proceedings, the record indicates that PW5 testified to the effect that she identified 1st and 2nd accused persons outside the house. It was submitted by the 1st accused person that there is an error apparent on the record in the sense that during examination in chief, PW5 clearly testified that she identified the 2nd and 3rd accused persons outside the house. It was further submitted that PW5 from her statement recorded on May 31, 2012 stated that when she came out of the house, she saw three people among them John Kithaka and Namu but did not identify the third person since he had a scarf on his head. That this goes on to prove that, what was recorded in court was in error and he urged the court to find that the 1st accused person was not at the scene of the crime. Reliance was made on the case of Anthony Ndegwa Ngari v Republic, Criminal Appeal No. 352 of 2012 [2014] eKLR. The defence therefore urged this court to acquit the 1st accused herein.

19. In regards to the 2nd accused person, it was submitted that the prosecution did not prove its case beyond any reasonable doubt in that the only link to the commission of the alleged offence is an allegation that the 1st accused person might have hired the 2nd accused person to commit the offence but there is no evidence to support that allegation. That PW5 was not a truthful witness in that she had only indicated that the deceased was her employee while in the real sense, they lived together as a man and wife which relationship the children of PW 5 did not approve of, because of the huge age difference and for that reason, it is likely that the deceased was attacked by the children of PW5 or PW5 herself. He further submitted that the only inference from the behaviour of PW5 is that she must be the first suspect and the only reason PW5 picked on the 2nd accused is because she hated him as he did not approve of her marriage to the deceased.

20. I have considered the evidence presented before this court by both the prosecution and the defence. It is trite that in any charge preferred against an accused person, the prosecution has the duty to prove the elements of the same. (See section 107 of the Evidence Act Cap 80 of the Laws of Kenya. The degree/ standard of prove is always that of “beyond any reasonable doubts” [See was Miller v Minister of Pensions[1947] 2 ALL ER 372 – 373].

21. In the instant case the accused persons are facing a charge of murder contrary to section 203 of the Penal Code. Murder is defined as “when any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” The elements of murder and which the prosecution ought to prove are;a.the death of the deceased occurredb.the death was caused by unlawful acts;c.that the accused committed the unlawful act which caused the death of the deceased; andd.that the accused had malice aforethought.[See Anthony Ndegwa Ngarivs Republic [2014] eKLR].

22. The question therefore is whether the prosecution tendered sufficient evidence to prove the above elements.

23. As for the death of the deceased having occurred, it is not in doubt that the deceased herein died. PW7 testified that he conducted post mortem on the body of the deceased who thereafter formed the opinion that the cause of death was cardio respiratory arrest due to severing of the celleberum of the brain. As such, the death of the deceased was thus proven.

24. As to the death having been caused by unlawful acts, under, article 26 of the Constitution of Kenya 2010, right to life is protected and can only be taken away under the circumstances provided therein. What this means is that every homicide is unlawful unless authorized by law or excusable under the law or under justifiable circumstances such as self defence or defence to property. (SeeGuzambizi Wesonga v Republic[1948] 15 EACA 63). PW 7 gave evidence that the deceased herein died as a result of cardio respiratory arrest due to severing of the celleberum of the brain which hold the respiratory control centres of our bodies. The death of the deceased herein was definitely caused by acts which are not excusable or authorized by law and thus the same was unlawful.

25. As for the accused persons having committed the unlawful act which caused the death of the deceased, I have perused the prosecution’s evidence as presented before the court.

26. From the evidence adduced by the prosecution, the investigating officer stated that he was informed by the villagers that the 1st accused person held a meeting with the two suspects just before the deceased was killed and that the participants would keep quiet any time there was a passer-by. That the manner in which the meeting was held is what raised suspicion to the villagers that it was a meeting with a bad motive. Further, according to the evidence of the Investigating officer, the two suspects gave conflicting times of leaving Kaguma village on the material day. With regard to the 1st accused, the prosecution gave evidence to suggest that the 1st accused could have killed the deceased due to a land dispute which started in the year 2010. This reason was given to link and or justify why the 1st accused person could have had the urge to kill the deceased.

27. I must state that strong the suspicions they may be but“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.”[See In the case of Sawe v Rep [2003] KLR 364].

28. The prosecution heavily relied on the evidence of PW5 and an alleged meeting that the accused persons herein are said to have held on the May 30, 2012 the day the deceased was killed. According to the prosecution witnesses, the meeting was suspicious but none of the witnesses told the court what was discussed by those present in that meeting.

29. It was her evidence that she identified the 1st and 2nd accused outside the house. However, on cross examination by counsel for the 1st accused, it was her evidence that she did not see the 1st accused in her compound before the dogs barked. Further, it was her evidence that in her main statement he did not tell the police that he saw the 1st accused during the attack. Similarly, she stated that she did not mention the name of the 2nd accused in her first statement but only mentioned him as a suspect in the further statement. The court has, however, perused the statement that PW5 gave to the police on the May 31, 2012 and it is clear that PW5 gave the names of John Kithaka and Namu among the people she identified on the material night. The statement was given just a day after the incident in which the deceased died and the facts must have been fresh in her mind. Pw3 was among the first people to arrive at the scene and he told the court that the names of John Nyaga Kithaka and Namu Kariuki were give as suspects.

30. It is worth noting that PW3 visited the scene the same night when the deceased was attacked. PW5 told the court that she knows the 2nd accused well as he is her neighbor and on the material night there was moonlight and the deceased had a torch. In these circumstances, I find that the 2nd accused was positively identified by PW5 and placed at the scene. This is coupled by the fact that PW5 stated that she had seen the accused persons herein earlier the same day at around 7 pm and the attack herein took place at 9PM which was barely two hours thereafter. Though PW5 did not witness the attack on the deceased, her evidence shows that the attack on the deceased happened immediately after she was attacked and the only inference that this court can make is that the same was perpetrated by the people that she had seen in her compound and who were the same people who attacked her. It is on record that after she flew from the scene she sought help from Gichovi and other neighbors and they went back to the scene barely one hour after, only to find the deceased had been fatally wounded.

31. With regard to the 1st accused I find that he was not properly identified and the evidence adduced by PW5 leaves a lot of doubt on his alleged identification. The case against him is based on circumstantial evidence and in my view, it has not met the threshold. In the case of Republic v Kipkering Arap Koskei & another [1949] 16 EACA 135, the Court for Appeal for Eastern Africa held as follows:“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. The burden of proving the facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”

32. That being the case, it therefore follows that the prosecution did not prove the case against the 1st accused person and I hereby acquit him of the charge. However, the case against the 2nd accused was proven and I hereby find him guilty and convict him accordingly.

33. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF MAY, 2022. L. NJUGUNAJUDGE……………………………………………for the Accused…………………………………………..for the State