[2022] KEHC 10090 (KLR)

Republic v Muswahili (Criminal Case 52 of 2020) [2022] KEHC 10090 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10090 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 52 of 2020

TW Cherere, J

July 7, 2022

Between

Republic

Prosecution

and

Meshak Kimathi Alias Muswahili

Accused

Judgment

1. Meshak Kimathi alias Muswahili (Accused) is charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that:On 12th September, 2020 at Kiangua sub – location, Kiangua Location within Meru county murdered Joseph Nabea

Prosecution Case 2. PW1 John Mbungi Gitonga recalled that on 12. 09. 2020, Accused who was bleeding from the face and had bloodstained clothes passed him his home armed with a stick and a bloodstained panga and after he left, a group of people passed by looking for him and together with the group followed the direction Accused had gone to and on the way collected a panga abandoned in the farm.

3. PW2 George Munene Nabea, Accused’s brother recalled that on the material date, Accused who was drunk turned unruly and cut his coffee bushes causing them to engage in a fight. That he left Accused in the farm and returned home and from there heard scream sin the farm and when he rushed there found Accused cutting their father Mzee Nabea with a panga after which Accused escaped from the scene. PW3 Francis Karani, Accused’s nephew was at home on the material date and saw accused who was armed with a panga go the shamba where Mzee Nabea was before he heard screams from PW2 that Accused had killed Mzee Nabea. He rushed to the scene and found Mzee Nabea whose head was cut off lying dead. PW4 Sarah Nkatha Imanene assistant chief Kaaria sub-location found Accused who was alleged to have killed his father arrested by members of public and escorted him to the police station. PW7 IP John Kiangana investigated this case and caused Accused to be charged.

Defence Case 4. Accused in her sworn statement denied the offence that he was at home on the date and time that his father Mxzee Nabea was killed.

Analysis and Determination 5. Section 203 and 204 of the Penal Code under which the accused is charged 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. The issue for determination is whether the prosecution has proved its case beyond reasonable doubt. In Anthony Ndegwa Ngari vs Republic [2014] eKLR The Court of Appeal stated the three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction being: -(a)the death of the deceased and the cause of that death;(b)that the accused committed the unlawful act which caused the death of the deceased and(c)that the Accused had the malice aforethought.

a. The death of the deceased 7. That Mzee Nabea died is confirmed by a postmortem form PEXH. 1 filled by Dr. Riungu which shows he suffered the following injuries.i.massive bleeding due to severed jugular and external carotid vascular bundle on posterior aspect of the neckii.compound skull fracture with exposed brain tissue,iii.cuts extending from left orbital area to the right temporal region measuring 18iv.deep linear cut in the right parietal area measuring 6 inchesv.severed cervical vetabrae at C1, C2 and C3 with served cervical spinal code.

8. The doctor formed an opinion that Mzee Nabea died of head laceration due to trauma inflicted by sharp object with attendant hemorrhage.(b)Proof that accused persons committed the unlawful act which caused the death of the deceased

9. PW2 George Munene Nabea who is Accused’s brother stated that he left Accused in the farm and shortly thereafter heard screamed and when he rushed back found Accused cutting Mzee Nabea with a panga. That Accused had gone to the shamba where Mzee Nabea was murdered was corroborated by Accused’s nephew PW3 Francis Karani, who was at Mzee Nabea’s home on the material date and time. Further corroborative evidence was adduced by PW1 who stated that Accused passed by his home on the material date armed with a blood stained panga.

10. From the foregoing, I find that Accused has been positively identified the person that caused Mzee Nabea the injuries from which he died. Accused was placed at the scene of crime and his defence of alibi is considered and found to have no merit and is therefore rejected

c) Malice aforethought 11. 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.”

12. In the case of Republic v Tubere S/O Ochen [1945] 12 EACA 63 the court held that:“An inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack”

13. Having found that the prosecution has proved actus reus, the issue for determination is whether malice aforethought can be inferred from the circumstances of this case. Evidence by the Accused that he was provoked by Isaac has not been controverted.

14. That the injuries inflicted on the deceased were so severe and concentrated on the head and spine can only mean that they were intended to cause him grievous harm if not death and Accused ought to have known that such serious injuries could probably cause the death of or grievous harm to the deceased. I am therefore satisfied that malice aforethought has been established in terms of Section 206 (a) and (b) of the Penal Code.

15. Consequently, I have come to the conclusion that the state has proven its case beyond reasonable doubt. Accused is found GUILTY of the offence of murder and he is accordingly convicted.

DELIVERED AT MERU THIS 07th DAY OFNJuly 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAccused - PresentFor the Accused - Ms. Mukaburu for Mr. Kaaria AdvocateFor the State - Ms. Mwaniki (PPC)