[2022] KEHC 11497 (KLR)

Republic v Mukoiti (Criminal Case 12 of 2019) [2022] KEHC 11497 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11497 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 12 of 2019

TW Cherere, J

May 19, 2022

Between

Republic

Prosecution

and

Anjelika Mukoiti

Accused

Judgment

1. Anjelika Mukoiti(Accused) is are charged with Murder Contrary to section 203 as read with section 204 of the Penal Code.The particulars are that on the 12. 01. 2019 at Antuambui village in Githu Location in Tigania Central sub-county within Meru County with others not before the court jointly murderedJane Mukiri

2. Accused denied the offence. The prosecution case as narrated by PW1 Damiano Kobia was that on 12th January, 2019 at about 9:00pm, he was attracted to Accused’s house by screams and upon reaching there found a crowd of about 10 people from whom he saw Accused whom he knew well having come from the same village and who was armed with a panga assaulting Jane. That he left to report the matter to the chief and while he was away received information that the Accused had killed Jane and her and her body had been set on fire. PW4 Julius Mugaa stated that on 11th January, 2019 at 2:00pm Jane informed her that Accused, Isaiah and Kailikia had threatened to kill her after they accused her of being a witch and the next day he received information that Jane had been killed. PW5 Joyce Ciamukuru Muteria visited the scene of crime on the material night but did not identify anyone in the crowd that had gathered at the scene. On 12/01/2019 at about 10:00pm, PW3 Joseph Gichunge Kirigia the Assistant Chief of Githu Sub-location upon being informed by chief Francis Latanya that Jane Mukiri had been killed visited the scene and found the body at the home of Accused and Isaiah Kirimi Mbogo. PW2 IP Galaha Abdikadir Dida, the investif=gating officer visited the scene on the material night, removed Jane’s body to the mortuary and on the on the basis of information received from PW1 and PW4 caused Accused to be arrested and charged.

3. An autopsy on Jane’s body was conducted on 17th January, 2019 by Dr. Mohamed Nur and the Postmortem form tendered as PEXH. 4 reveals that deceased died of cardiopulmonary arrest following burns.

Defence Case 4. Accused in her sworn statement stated she was at home with her children when heard screams and noise outside her house at about 09. 00 pm which she reported to her husband Isaiah Kirimi and Chief Gichunge. That she only went out after the two arrived and that’s when she discovered that Jane had been killed outside her home. Her daughter Gladys Kiandira who was her witness similarly stated she was in the house with her mother and siblings when they heard screams only to later discover that Jane had been killed outside their house.

Analysis and determination 5. Section 203 and 204 of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. They require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased through malice aforethought. The sections read as follows:“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

204. Any person who is convicted of murder shall be sentenced to death.”

6. I have considered all the evidence availed in this case as set out above and the issue in question is whether the prosecution has proved the death of the deceased; that Accused caused the death and that he was actuated by malice.

a.The death of the deceased 7. The postmortem form PEXH. 4 reveals that deceased died of cardiopulmonary arrest following burns.

(b) Proof that accused person committed the unlawful act which caused the death of the deceased 8. None of the prosecution witnesses saw Accused set Jane on fire. The evidence on record reveals that the Accused was charged on the basis of PW1’s evidence that he had seen Accused assaulting Jane with a Panga on the material night although he did not see Accused set Jane on fire.

9. There is therefore no doubt that Accused was charged on the basis of circumstantial evidence.

10. As we know from Republic v Taylor Weaver and Donovan (1928) 21 Cr App R 20“Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence, to say, it is circumstantial.”

11. In Abanga alias Onyango v RepublicCA CR. Appeal No. 32 of 1990 (UR), the Court of Appeal set out the principles which should be applied in order to test circumstantial evidence as follows:It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

12. That Accused was at her home on the material day that Jane was killed outside her house has been confirmed by Accused and PW1. That Jane was killed 10 metres from Accused’s house is not disputed. That Jane was Accused’s step mother is also not disputed. That Accused could hear her step mother scream outside her house and a crowd gather without Accused going out to find out who was attacking her step mother is in my considered view unconceivable and implausible especially considering that Accused has not alluded to any threats having been made on her or any member of her family on the material night. From the foregoing analysis, I find that the summing up of the prosecution case forms a chain so complete that there is no escape from the conclusion that within all human probability, the crime of murder herein was committed by Accused either alone or with others.

c) Malice aforethought 13. Section 206 of the penal Code as follows; -206 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 of any person who has committed or attempted to commit a felony

14. Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with the following intentions, the test of which is always subjective to the actual accused. An intention to cause death or to cause grievous bodily harm where accused knows that there is a risk that death or grievous bodily harm will ensue from his acts and commits them without lawful excuse. (see NzukivRepublic[1993] KLR 171).

15. In the case of Daniel MutheevRepublic Criminal Appeal No. 218 of 2005 (UR) cited in the case of RepublicvLawrence Mukaria &another[2014] eKLR, Bosire, O’kubasu and Onyango Otieno JJA., while considering what constitutes malice aforethought observed as follows:“When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of section 206(b) of the Penal Code.” 16. The attack on Jane who was elderly was violent and cruel. Her body was desecrated by being set on fire and this leaves no doubt in the mind of the court that Accused’s sole intention was to kill her.

17. Consequently, I have come to the conclusion that Accused is Guilty of the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code is accordingly convicted.

DELIVERED AT MERU THIS 19th DAY OF May 2022WAMAE. T. W. CHEREREJUDGECourt Assistant - KinotiAccused - PresentFor the Accused - Mr. Wamache AdvocateFor the State - Ms. Mwaniki (PPC)