[2022] KEHC 14688 (KLR)

Republic v Mungathia (Criminal Case 81 of 2005) [2022] KEHC 14688 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14688 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 81 of 2005

TW Cherere, J

November 3, 2022

Between

Republic

Prosecution

and

Edward Kailanya Mungathia

Accused

Judgment

1. Edward Kailanya Mungathia (accused) is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.The particulars of the charge are that on July 24, 2005 at Abondii sub location, Kiguchwa location in Meru North district within Eastern province murdered Kailemia M’Ithale

Prosecution Case 2. The prosecution case as recounted by Salestino Kandura Mworia is that on July 24, 2005 at about 01:00pm, he was walking home from church when he found accused and Kailemia talking. That after walking a short distance from them, he heard the sound of something being hit followed by screams for help and upon going back to where he had met accused and Kailemia, he saw Kailemia running into a maize planation with accused pursuing him. That Kailemia fell and accused cut him on the forehead. That he noticed that Kailemia had another injury on top of his head. That from there, accused ran and found a cow which he also cut. That members of public managed to arrest accused and escorted him to the police station together with Kailemia and handed them over to IP Langat who placed accused in cells and escorted Kailemia to hospital where he died on July 26, 2005. Paul Kilemana M’Rubere and Kailemia’s father arrived at the scene long after Kailemia was injured. IP Langat and CPL Koech were present when the autopsy was conducted on Kailemia’s body on August 2, 2005. IP Langat tendered the postmortem form which reveals that deceased suffered multiple cuts and fractures on the head and forehead and had died of cardiopulmonary arrest due to severe head injury and extensive fractures.

Defence Case 3. Accused was put to his defence on March 7, 2013 but years passed by and the defence did not take place for the reason that accused was not mentally capable of mounting a defence. By an order dated May 17, 2018, the court made an order detaining accused at Mathari Mental Hospital for treatment.

4. Subsequently, a medical report dated June 9, 2022 certified that accused was fit to stand trial. In his unsworn statement, accused stated that Kailemia attacked him and he fought back and injured him.

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 that “203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. Section 204 provides that 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 Kailemia; that accused caused the death and that he was actuated by malice.

a. Death 7. The postmortem form reveals that Kailemia suffered multiple cuts and fractures on the head and forehead and had died of cardiopulmonary arrest due to severe head injury and extensive fractures.

b. Whether accused committed the unlawful act which caused the death of Patrick 8. Accused concedes that he indeed cut Kailemia with a panga causing his death.

c) Malice aforethought 9. The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves 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.”

10. Accused’s case is that he attacked Kailemia in self defence. The issue in question whether the defence of self defence is available in the circumstances of this case.

11. Right to life is protected by article 26 of the Constitution and can only be taken away under the circumstances provided therein. It therefore means that every homicide is unlawful unless authorized by law or excusable under the law. (See Guzambizi Wesonga v Republic[1948] 15 EACA 63).

12. Section 17 of thePenal Code provides that:“Subject to any express provisions in this code or any other law in operation in Kenya criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.

13. Those principles have been clearly elucidated in the persuasive authorities in Palmer v Republic [1971] AC 814 and in Republic v Mcinnes 55 Cr Appeal 551 where the prosy council and the Court of Appeal respectively stated as follows:It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but only do, what is reasonably necessary. But everything will depend upon particular facts and circumstances. Some attacks may be serious and dangerous; others may not be. If then is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then in a mediate defensive action may be necessary. If the moment is out of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction...……………………..”

14. The Court of Appeal discussed the doctrine of self-defence in Mokwa v Republic [1976-80] 1KLR 1337 and held that:“Self-defence is an absolute defence even on a charge of murder unless; in the circumstances of the case the accused applies excessive force.”

15. Whereas self defence is an absolute defence even on a charge of murder, the evidence accused that he had been attacked with a panga by Kailemia was not proved there being no evidence that accused was injured. Even if indeed Kailemia had threatened accused, the evidence on record does not disclose provocation of such a nature as would warrant the attack that was visited on Kailemia. Consequently, I find that the defence of self defence is not available to accused in the circumstances of this case.

16. The injuries inflicted on Kailemia were brutal. That the injuries were concentrated on the head and forehead demonstrates the vindictiveness and callousness on the part of accused and he ought to have known that such serious injuries could probably cause grievous harm or the death of Kailemia. I am therefore satisfied that malice aforethought has been established in terms of section 206 (a) and (b) of the Penal Code.

17. According, I find that accused acted with malice aforethought and he is found guilty of murder contrary to section 203 as read with section 204 of the Penal Code and he is convicted accordingly.

DELIVERED AT MERU 03 RDDAY OF NOVEMBER, 2022. WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAccused - PresentFor the Accused - Mr. Gitonga AdvocateFor the State - Ms. Mwaniki