[2022] KEHC 16428 (KLR)

Republic v Muindi (Criminal Case 35 of 2014) [2022] KEHC 16428 (KLR) (1 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16428 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 35 of 2014

MW Muigai, J

November 1, 2022

Between

Republic

State

and

Kioko Muindi alias Rasta

Accused

Ruling

Background 1. The accused person herein Kioko Muindi alias Rasta was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars being that the accused on May 28, 2014 at Sabaki area within Athi River Township in Athi River District of Machakos County murdered Bernard Mwanza Mumo alias Mugai Mutemba.

2. The mental assessment report dated June 18, 2014 and filed in court on June 24, 2014 found the accused person fit to plead. The accused person herein took plea on July 31, 2014 whereof after the charges were read out to him in a language that he understood and he pleaded not guilty. A plea of not guilty was entered on his behalf.

3. The accused person was represented by Mr Kamanda Advocate while the State was represented at different stages of trial by Mrs Abuga, Mr Machogu and later Mr Mwongera.

4. The hearing took off and the prosecution called a total of ten (10) witnesses.

Evidence 5. Pw1 Washington Wambua Peter of Sabaki area in Mlolongo testified that he works as a laborer in the construction industry. On May 29, 2014, upon arrival at the construction site where he was working with the accused person Kioko Muindi alias Rasta and deceased Bernard Mwanza the foreman whose name he could not remember instructed him to go and call Bernard Mwanza Mumo (the deceased) from his house which was about 300 meters from the construction site. He called him but he did not answer. He moved closer to the fence and he saw his body looping down with a knot on the neck. The fence was made of barbed wire. He was already dead as he had a knife stuck in the neck. He then ran to the Sabaki police post to report what he had seen and the police went to the scene. At the scene there were a spade, a wood with stains of blood on it and a metal rod. They went to the accused house which was about 500 meters from the deceased’s house. They were with Charles Kimanthi, the village elder and an askari. In the house they found two blood stained t-shirt behind the door. His door was open but he was not there. Later he recorded a statement with the police.

6. On cross examination by Mr Kamanda for the accused person, he stated that he used to work with both accused and the deceased and two more workers, Njoroge and Amin. Both Njoroge and Amin had arrived earlier on that day. The deceased’s house was not far from the construction site. The deceased’s body was outside his house in open ground. The police arrived at about 8 am. Before the police carried away the body, we went to the accused house from where we took the aforesaid t-shirts. The accused was not in his house. We went to his house with police and village elder. When the accused tried to run away he was blocked and arrested by the crowd. The accused was also with the crowd at the deceased’s house then ran away from the deceased house we recovered two blood stained t-shirts from the accused house. The truth is that the accused was not present when we recovered the t-shirts. The blue apron was recovered from the house of the deceased. The apron belongs to the deceased. He used to wear it to work.

7. Pw2 Charles Kimathi Michemi a resident of Sabaki in Athi River, Machakos County testified that he is a construction worker as well as a farmer. He is the chairman of Sabaki village. On May 29, 2014 at about 7 am a neighbour called Alex Kinjama called him and informed him that a person had died at the site. He proceeded to the scene which was about 500 meters from his house. At the scene he found many people and saw a knife stuck in the deceased neck. Next to the body was a green pipe together with a spade and a metal rod. There was also a log of wood which the body lay on. The knife was a kitchen knife and it was blood stained. There were many people at the deceased’s house among them was Alex who had called me and Washington Wambua (Pw1). The accused person was already arrested by the public. The police put him in their vehicle he directed the police officer to the house since he knew where it was. The accused’s house was about 300 meters from the deceased house. At the accused’s house, they found two red t-shirts were under the bed. The door to the accused person’s house was not locked. Later he recorded a statement with the police.

8. On cross examination by Mr Kamanda for the accused person, he told the court that the knife shown to him in court is the one he saw stuck on the neck of the deceased on the material date. When the police came the accused was already arrested by the crowd. When the police came he took one of them to the accused house. From accused person after recovering the t-shirts they went to Ndwiga’s house since he was the deceased’s neighbour and we wanted to find out if he had any information, Inside Ndwiga’s house we found a slaughtered rabbit and there were also blood stains outside Ndwiga’s house. The police officer then arrested Ndwiga and took him to police station.

9. Pw3 Josephat Mwalavu Muinde a resident of Mombasa and doing electronics testified that he knew the deceased herein who was his nephew. On June 12, 2014 at Machakos Level Five Hospital he identified the body in the company of Regina Ndunge Mumo. The doctor performed a post-mortem examination on the body. He later recorded his statement.

10. On cross examination he said that he identified the body of the deceased on 6th and was present when the body was dissected.

11. Pw4 No 84372 Pc Letoya Kaparo currently attached at Central Bank of Kenya Nairobi testified that initially he was based at Athi River Police Station carrying out investigations. On May 29, 2014 he was on duty standby at the station when the OCS CIP Gitau instructed him to accompany him to Sabaki area about 6 km from the station. There was a semi-permanent house and a fence. A report had been received of the presence of the body of a certain person. On arrival they found two AP officers who were stationed at a nearby post. They were led to where the body lay. They found the body of a male adult with injuries with a knife stuck on the neck. They organised for photographs to be taken. Photos of the scene were taken and exhibits collected. They escorted the body to Machakos Level Five Hospital mortuary for preservation. He also escorted two suspects to the police station. The two had been arrested by AP officers. He later recorded his statement.

12. On cross examination by Mr Kamanda for the accused person he said that they found the body about four meters away from the house. He did not know the occupant of the house. The photographs were taken by a contracted photographer. The t-shirts were handed over to him by the AP officers and he could not tell from which house they had been recovered. Only one of the two suspects who were handed to him by the AP Officers was in court.

13. Pw5 No 236591 - Anthony Katuku, Police Officer currently under the Rural Border Patrol Unit based in Somali border testified initially he was at Athi River police station. That on May 29, 2014 at 8000 hours he was on patrol at Sabaki area when he received a report from one Washington Wambua who came to lodge a report that he had gone to wake up his colleague only to find him lying on the ground stabbed with a knife on the left neck.

14. They accompanied him to the scene around Sabaki area and upon arrival they found the deceased and saw that his throat had been slit and had a stab wound on the right eye. He alerted the OCS Athi River over the incident. Officers arrived at the scene and the said Washington Wambua pointed to him the person who was last with the deceased. He then arrested the person as a first suspect. Upon interrogating him he claimed his name was Kioko Muindi alias Rasta. He conducted further investigations and learnt that one Moses Ndwiga owed the deceased some money. He proceeded to the said Ndwiga’s place and arrested him as a second suspect. They then went back to the scene and the body was collected. He escorted the two suspects to Athi River police station. Photographs were taken and exhibits collected from the scene of crime.

15. On cross examination by Mr Kamanda for the accused person he stated that he arrested one Moses Ndwiga but he is not before court. Moses Ndwiga was arrested because he had a debt due to the deceased. They saw blood stains on Moses Ndwiga’s clothes and his house was approximately 800 meters from the scene. The accused herein was alleged to have been the last person seen with the deceased at night around 11 pm. Washington Wambua left accused with the deceased that night. He suspected accused participated in the murder. The knife was stuck on the neck of the deceased.

16. Pw6 No 219941 Cpl Godana Guyo Salesa currently attached at Athi River Administration police testified that on May 29, 2014 he was working at Sabaki area when a report was made by one Washington Wambua that somebody had been killed. He and his colleague Anthony Munene proceeded to the scene being led by the said Wambua. The area was within Sabaki. They found that indeed somebody had been killed. There was a knife stuck on the neck. There was a metal rod and a green plastic pipe near the body. He alerted his superior Stephen Mathu of the new development. He then began investigations and learnt from the members of public that the deceased had last been seen in company of one Rasta. He then proceeded to the residence of the said Rasta led by Wambua and the clan elder. It was within Sabaki area. At the house of the Rasta the accused person herein, they found two t-shirts hung inside the house and they had blood stains. They picked the two t-shirts and proceeded to the scene. They learnt from one Moses who was a chang’aa dealer was suspected to have information regarding the death of the deceased and they went to see Moses Ndwiga’s house and they saw bloodstains near the gate and Moses Ndwiga who claimed that the blood was from a rabbit that he had slaughtered. They checked the house and saw rabbit meat. They arrested the said Ndwiga and took him to the scene. The OCS came and picked up the body plus the two suspects. He later recorded his statement.

17. On cross examination by Mr Kamanda for the accused person he said that the said Rasta was among the crowd at the scene and it was claimed by the members of public that he had been the last person in company of the deceased. He searched Rasta’s house and recovered two t-shirts which had bloodstains. He did not know the source of the bloodstains. members of public claimed that one Moses Ndwiga usually had several people at his home at night. He saw rabbit meat at the home of Moses Ndwiga but did not see a live rabbit. Ndwiga claimed his dog had killed the rabbit. Moses Ndwiga’s house is about one kilometre from the scene. He arrested Ndwiga due to the bloodstains near his house. He was not the investigating officer. The body of deceased was photographed the same day and he was present.

18. Pw7 No 75255 Cpl Jane Mumo attached at DCI Athi River Sub County testified that on May 29, 2014 there was a case which had been reported at Sabaki Police Post. It had been reported that the body of a deceased person had been found in that area. A police officer had already visited the area and arrested the suspect and had scene of crime personnel take photographs and remove the body. The accused herein was handed over to him to investigate before he later visited the scene as well as the accused’s house within Sabaki area.

19. The accused led him to his house while officers from Sabaki police post namely Godana Katiku entered the deceased’s house where he recovered an apron. They then proceeded to Sabaki police post where statements were recorded and it was from there that he learnt that the accused and deceased had been engaged as construction labourers in the area and the two had been together before the incident. Later he witnessed the post-mortem on the body of the deceased by Dr Okinyi at Machakos Level Five Hospital. He also recovered several exhibits from PC Kaparo. After investigations he charged the accused herein with the offence. He did not manage to establish reasons why the accused stabbed the deceased.

20. On cross examination by Mr Kamanda for the accused person he said that he could not recall the date he visited the scene. He did not visit the accused’s house since PC Kaparo and his team had already done so. He gathered accused had been arrested from among the crowd gathered around the body of deceased. PC Kaparo had arrested accused and another Ndwiga was alleged to have had a dispute with deceased over some debt. The said Ndwiga was later discharged by the court on a date he could not recall. Ndwiga had butchered a rabbit and there were bloodstains at his home. He could not vouch more on the debt dispute between deceased and Ndwiga as the clan elder had resolved the debt dispute.

21. Pw8 Dr John Mutunga based at Machakos level 5 Hospital testified that the post mortem report of Benard Mwanza Mumo was conducted/prepared by a former colleague, Dr Okinyi, who had had already left the hospital/country. He stated that he was conversant with his handwriting. He has worked with him for over 5 years and hence understood his writing well as well as his signature. According to the post mortem report externally the face of the deceased was swollen on the right side and had a stab wound 1 – 2 cm on the right auxiliary area and stab wound on the right leg 1 – 2 cm. It was a gaping wound. There was a stab wound on the skull measuring 1by 1 cm at the head. Internally the lungs were normal, there was a carotid vessel, the lower kidney muscles were examined and the doctor found liver and kidney were pale and muscles were pale and did not have blood. As a result of the examination the doctor formed the opinion that the deceased died of hemorrhagic stroke – loss of blood due to the stab wounds.

22. Pw9 Henry Kiptoo Sang a Government Analyst testified that he prepared a report in respect of these proceedings. On June 13, 2014 he received the following samples for analysis from Cpl Jane Mumo ofCID Athi river namely; (a) blood sample of the deceased marked (A), (b) blood sample of the accused marked (B), (c) 2 red t-shirts marked C1 and C2 respectively, (d) one knife in a dark envelope marked D1, (e) green plastic pipe marked D2 and (f) blue apron marked E.

23. Upon analysis the following was established that the 2 red t-shirts C1 and C2 were stained with human blood. The knife D1 and apron E1 stained with human blood. The plastic pipe D2 slightly stained with human blood. He conducted the DNA analysis and found the blood stains of the 2 red t-shirts marked those of Kioko Muindi (the accused herein), the blood stains on the knife D1 and the pipe D2, apron E matched those of Bernard Mwanzia Mumo (deceased).

24. Pw10 No 237709 IP Virginia Wanjiku based at DCIMuranga Crime Scene previously based at DCIHeadquarters testified that on June 16, 2014 she received 1 Cd marked F with an exhibit memo form from PC Peris Njonjo for analysis. She processed the same and prepared a certificate.

25. On July 27, 2022 the prosecution closed its case and the court directed the parties to file and exchange their written submissions.

Written Submissions Prosecution submissions dated September 29, 2022 26. The prosecution submitted that it availed ten (10) witnesses in support of its case and raised the following issues for determination namely;-a.Was the accused involved in the murder of the deceased?b.Did the accused have malice?c.Was the cause of death as a result of the injuries inflicted?

27. On the issue of whether the accused was involved in the murder of the deceased the testimony of Pw1 placed the accused person at the crime scene.

28. On whether the accused had malice section 206 of the Penal Code states that 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, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;(c)an intent to commit a felony;(d)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 is evident that the accused person had malice aforethought because he inflicted injury on the deceased by stabbing him with a knife.

29. On the issue of whether the cause of death was a result of the injuries inflicted, the Pw8 the doctor who testified on behalf of Dr Fredrick Okinyi who conducted the post mortem formed the opinion that the death was caused by hemorrhage on the neck caused by stabbed carotial vessels.

30. Reliance was made in the case of Ronald Nyaga Kiura –vs- Republic [2018] eKLR wherein paragraph 22 it is stated as follows:-“It is important to note that at the close of prosecution, what is required in law at stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebutted is offered by an accused person."

31. Also in the case of Ramanlal Bhat -vs- Republic [1957] EA 332 at 334 and 335 relied on by the state the court stated as follows:-“It may not be easy to define what is meant by a “ prima facie case” but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

32. Similarly in R v Jagjivan M Patel & others 1, TLR, 85 the court stated;-“All the court has to decide at the close of evidence of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or it may be a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a border line case where the court, though not satisfied as to conclusiveness of the prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.”

33. The prosecution finally submitted that by availing testimonies of the ten witnesses as well as documentary evidence it has proved its case beyond reasonable doubt and the accused ought to be placed in his defence under section 306 (2) of theCriminal Code.

Accused Person’s Submission Dated November 4, 2022 34. The accused submitted that there was no prosecution witness linking him to the offence.

35. That no witness ever testified to the effect that he saw the accused person with or in company of the deceased.

36. That Pw5 testified that it was Pw1 Washington Wambua who pointed to him and stated that the accused was last seen with the deceased. The fact that Pw1 left the accused with the deceased at night made him suspect that the accused person had participated in the murder.

37. Pw1 never mentioned that he ever saw the accused with the deceased on the material night before the deceased demise hence the testimony of Pw5 is baseless and ought not to be believed.

38. Pw6 Cpl Godana Guyo testified that he conducted the investigations and members of the public told him that the accused was the last person to be seen with the deceased, however no witnesses ever testified seeing them.

39. Pw1 testified that when they went to the accused person’s house but did not find him since that he had run away however the testimony of Pw5, Pw6 and Pw7 was that the accused was present with the crowd at the deceased’s house.

40. It was finally submitted that mere suspicion cannot infer guilt upon the accused therefore the prosecution has not made out a prima facie case to warrant the accused put on his defense.

Finding 41. The matter commenced hearing on July 4, 2014 by Hon L Mutende LJ, Hon E Ogolla J who heard the evidence from Pw1, Pw 2, and thereafter Hon DK Kemei J who took the evidence of Pw3, Pw4, Pw5, Pw6 &Pw7.

42. On October 21, 2021, this court took over the matter and sought court proceedings be typed and to be copies were to be served to the ODPP/prosecution & the accused person & counsel for the accused person, before directions were taken on the way forward.

43. On December 14, 2021, section 200-201 CPC was read/explained to the accused person by the Court Assistant Geoffrey in Kiswahili and the accused opted to proceed from where the matter stopped.

44. On February 8, 2022, the prosecution calledPw 8, the Pathologist who produced post mortem report exhibit 8, Pw9, Government Analyst who produced the report on DNA Analysis of the deceased and the accused person and samples presented for examination. Pw 10 produced the photographs taken by scenes of crime personnel at the scene with the report.

45. The prosecution closed its case on May 19, 2022 and parties/counsel filed written submissions.

46. At the close of the prosecution case, this court read through the court record and documentary exhibits produced during trial and considered the totality of the evidence on record.

47. In the case of Anthony Njue Njeru vs Republic Court of Appeal No 77 of 2006; the court determined the scope and content of case or no case to answer ruling by the court as follows;"[Is]Was there a prima facie case to warrant the trial court to call upon the appellant to defend himself? It is a cardinal principle of our law that the onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of prosecution the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction”.

48. The issue of what is a prima facie case in criminal trials was clearly explained in Ramanlal Trambaklal Bhatt v R [1957] EA 332 at p 334-335 where the court stated:-“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one:-“Which on full consideration might possibly be thought sufficient to sustain a conviction.”This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case.Nor can we agree that the question whether there is a case to answer depends only on whether there is:-“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.”A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson, J, said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “prima facie case,” but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

49. From the evidence on record, Pw1 worked at the construction site with the accused person and the deceased. On May 29, 2014, the Foreman sent him to call Bernard Mwanzia Mumo, when he went to the deceased’s house 300m from the construction site. He called the deceased and he did not answer. He moved closer near the house and saw the deceased lying on the ground with a knife stuck on the neck. The deceased was dead. At the scene was a spade, piece of wood with stains of blood on it and a metal rod. A blue apron was recovered.

50. At the accused person’s house was found 2 blood stained t shirts and blue apron. He identified the blue apron as the one the accused person wore to work.

51. From the evidence on record, Pw2, Chairman of Sabaki Village was informed of the incident and went to the scene and found the deceased lying on the ground and was stabbed with the knife which was on his neck, next to him were a metal rod, green pipe and a spade. The accused person was arrested by the public. At the accused person’s house 2 t shirts blood stained were recovered. Pw2 admitted he knew Ndwiga the deceased’s neighbor but he was not at the scene. He accompanied police officers to his house and saw blood stains and found a slaughtered rabbit. Pw2 confirmed Ndwiga had a case with the deceased. He was arrested by the police and together were taken to the police station.

52. Pw8, the Pathologist produced the post mortem report on behalf of Dr Okinyi whom he worked with and was familiar with his handwriting and signature. The report which disclosed the cause of death was/is hemorrhage caused by stabbed carotid vessels.

53. Pw9, the Analyst produced the report and confirmed that blood samples of both deceased and the accused person were presented for analysis and 2 blood stained t shirts, knife, apron and plastic pipe. The results were/are that DNA profiles from the blood -stained t shirts matched the accused person, Kioko Muindi. The DNA profiles from the blood stains on the knife, plastic pipe and apron matched the deceased Bernard Mumo.

54. Pw10, Investigation Officer produced photographs taken by scenes of the crime at the scene and the report.

Disposition 1. The evidence on record does not disclose an eye witness to the murder of the deceased. However, the circumstantial evidence on record points to the accused person’s participation of the murder of the deceased.

2. Upon this court’s consideration of the totality of the evidence adduced before this court and the evidence on record, the prosecution has proved a prima facie case ‘’……one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defense.”

3. The evidence of witnessPw1 coupled with the formal witnessesPw8,Pw9 & Pw10 confirm that the deceased died from an unlawful act as the deceased was found by Pw3 Pw4 Pw5 Pw6 & Pw7 police officers who recovered exhibits which were taken for examination. The post mortem report and the photographs confirm the deceased died from unlawful act, the analysis report on blood stained exhibits partly implicates the accused person. The circumstantial evidence points to the accused.

4. The evidence on record discloses commission of the criminal offence of murder c/s 203 of the Penal Code and is sufficient to warrant the accused person to be placed on her defense.

5. The law requires that the accused exercises the legal right as prescribed under sections 306 CPC.

It is so ordered.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 1ST DAY OF NOVEMBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE).M.W MUIGAIJUDGEIN THE PRESENCE OF:KIOKO MUINDI alias RASTA - ACCUSED PERSONKAMANDA - FOR THE ACCUSEDMWONGERA - FOR STATEGEOFFREY/PATRICK - COURT ASSISTANT