[2022] KEHC 542 (KLR)

Republic v Munyao (Criminal Case 33 of 2018) [2022] KEHC 542 (KLR) (6 June 2022) (Ruling)

Neutral citation: [2022] KEHC 542 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 33 of 2018

MW Muigai, J

June 6, 2022

Between

Republic

Prosecution

and

Charles Mutuku Munyao

Accused

Ruling

1. The accused Charles Mutuku Munyao is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars being that the accused on 30th and 31st August at Ngalalya Market in Matungulu Sub-County within Machakos County murdered David Rukungu Kimani.

2. A Mental Assessment was carried out and the accused person herein took plea on 26/03/2019 whereof after the charges were read out to him in a language that he understood he pleaded Not Guilty.

3. The hearing took off and the prosecution called a total of 8 witnesses.

4. PW.1 Onesmus Kimeu stated that he is a farm caretaker for Jennifer Kimani (PW.2) at Koma. That on a day he would not remember he had gone out drinking and while there he met the deceased with one Wambua. The deceased told him that he had been injured on the hand. That he had been attacked by one Mbisi. That on 30th August, 2018 one Wambua (PW.4) informed him that deceased herein was injured at Ngalalya market and could not speak. He together with one Miriam Ndanu and Wambua went and found the deceased lying on the road side. The deceased had his dreadlocks plucked out and could not talk or open his eyes. That they took him to Matuu Hospital but could not be treated. They then took him to Kangundo hospital where he passed on later on.

5. PW.2 Jennifer Wanjiru Kimani stated that she lives in Nairobi and the deceased herein was her younger brother and he used to work for her on her farm with one Paul. On 31st August 2018 she was called and told that the deceased was assaulted and was hospitalized. That she proceeded to the hospital and was informed that he had passed on.

6. PW.3 Virginia Nyathira Nyokabi testified that she was the wife to the deceased and used to stay with the deceased at Koma. That one Sarah Gathoni informed her that the deceased had been assaulted and was taken to hospital. She said that she did not know the accused person and only came to hear of him after the incident.

7. PW.4 Joseph Wambua Nzau testified that he stayed at Kantafu, Matungulu, Machakos County. That on 30th August 2018 the deceased took him from his workplace with a motorbike at Ngalalya for shopping. They went to a bar for a drink and that when the deceased went to pay for another drink they were ejected by a group of about six people who were unknown to him. The assailants started assaulting them and plucking out the deceased dreadlocks. He rushed to call for help. That he went back at the scene with the deceased’s wife and one Paul and found the deceased lying down and could not speak. They took him to Kangundo Hospital. He further stated that he knew the accused person but he did not see the accused during the fight. That he did not know whether the accused had any issue with the deceased.

8. PW.5 Benard Mutune stated that he was working as a watchman at Ngalalya market. That on 30th August, 2018 at 10. 30 p.m. he was at work with one Nthenge Mutui. That as he was doing the rounds he came across a person who was lying down and surrounded by many people. The person could not talk. He later informed the head of the market. At around 11. 00 p.m three people came and took the deceased to hospital. He further said that he knew the accused person well as he is his neighbour and that he did not see him in the crowd surrounding the deceased.

9. PW.6 Dr. Katua Daniel stated that he is a doctor based at Kangundo level 4 Hospital and that he worked with Dr. Munee Lautami when he was a medical Officer. The body had multiple bruises on the right lower leg and upper cheek. There was massive subdural haematoma, fractures on the temporal bone. He formed the opinion that the cause of death was massive left subdural hematoma secondary to blunt trauma and secondary to assault.

10. PW7 Josphat Nthenge Muti the watchman at Ngalalya market, he was at work at 6 pm with Bernard Mutune and he came across a person lying down and rushed to call the Chairman of the Market. He did not hear of any commotion. The next day he heard people say it was Muoki & Sila who assaulted the deceased.

11. PW. 8 CPL Peter Orwa Investigating Officer testified on 30th August2015 the deceased and pw4 met in Ngalaya Market, went to Kamanzi Bar to drink and enjoy themselves. They were surrounded by Sila, Mbisi and Mutuku (Accused person) they got hold of the deceased and pulled him out of the Bar. They assaulted him and wrenched off his hair. PW4 managed to escape in order to seek for help. He managed to take the deceased to Kangundo District Hospital.

12. The DPP/Prosecution stated, through I/O the motive for Sila, Mbisi & Mutuku (Accused) to assault the deceased was that the deceased had assaulted Mbisi with an axe. This was a revenge attack which resulted in the demise of the deceased. The Accused person was arrested 2 months later in Kariobangi area.

13. The Defense took the view that since no one saw the Accused person assault the deceased.PW4, 5 & 7 knew the Accused but did not see him at the scene. The testimony of I/Ois hearsay without probative value. He testified as if he was at the scene of the rime, yet he relied on the witnesses who testified in the negative.

14. This Court is guided by age-old precedent in the case of Ramanlal Trambaklal Bhatt v Republic [1957] E.A 332, 334 & 335, the court stated as follows:-“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 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.”

15. I find from the evidence on record there is sufficient evidence to warrant the Accused person to be placed on his Defense under Section 211 CPC.

16. Further Mention for Directions on 28/06/2022.

DELIVERED SIGNED & DATED IN OPEN COURT ON 6TH JUNE 2022 (VIRTUAL CONFERENCE)M.W. MUIGAIJUDGE