[2022] KEHC 15111 (KLR)

Republic v Mutahi & another (Criminal Case 16 of 2019) [2022] KEHC 15111 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15111 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Criminal Case 16 of 2019

CM Kariuki, J

November 10, 2022

Between

Republic

Prosecutor

and

Jeremiah Mutahi

1st Accused

Dedan Ndungu Mugo

2nd Accused

Judgment

1. Jeremiah Mutahi, the 1st accused herein, and Dedan Ndungu Mugo, the 2nd accused herein were charged with the offence of murder contrary to section 203 as read with section 204 of thePenal Code.

2. The particulars of the offence are that the accused persons on the September 11, 2019 at Mastoo Trading Centre in Mwihoko Location within Nyandarua County jointly murdered Jackson Kiago Kariuki, the deceased herein.

3. The prosecution’s case, in brief, is that the accused persons murdered the deceased after they had an altercation at a bar in Mastoo.

4. PW1, Benson Gitu Kariuki, the deceased’s brother, testified that on a material day at about 9. 00 pm, he was in Mastoo bar in Shamata with the accused persons taking alcohol. He saw them struggling with the deceased and intervened, and they stopped. He stated he didn’t know what the scuffle was about.

5. Afterwards, he continued drinking his alcohol, and the accused persons left. He continued drinking until 10. 00 pm then went out and got a lift from Gerald Mathu, who was with his brother Mathai. He went to the hospital the next day after he received information that his brother was there, but he died on the 13th after being in the hospital for 1 day.

6. It was his testimony that the accused persons are his neighbours and he knew them well, and they had grown up together.

7. PW2, Michael Thumbi, the deceased’s brother, told the court that he received a call on September 11, 2019 informing him that his brother had been beaten and could not talk. That he was taken to hospital and died. He confirmed that he was present when the post-mortem was carried out on his brother.

8. Similarly to PW1, he stated that he knew the accused persons as they were neighbours and they had grown up together.

9. He stated that the deceased had told him that the 1st accused had a grudge against him because they, together with Herman and Matu, had slaughtered a cow that had not been examined by the vet, and the deceased had reported the matter to the police at Shamata. The police arrested the 1st accused and Herman, and when they were released, they used to tell the deceased that he must refund the money that they had used.

10. PW2 stated that the 1st accused, Herman and the deceased were friends who used to drink together. That the 2nd accused was not there when the cow was slaughtered but that there was a time a cow was stolen from his father and the deceased was a suspect. That the 2nd accused used to threaten the deceased that he would never steal another cow.

11. PW3 Joseph Theuri, stated that on September 12, 2019, he was at home at about 8. 30 am when he received a call from Herman who told him to go to Mastoo as the deceased had been assaulted there. He went to the deceased’s mother, who was her neighbor, to inform her.

12. He went to Mastoo together with Mathu and his wife, and they found the deceased lying on his back on the pavement. He was still alive but could not talk. They took him to Shamata dispensary and then to Nyahururu Hospital, where they arrived at 11. 00 am.

13. He received a phone call from the cousin the next day that the deceased had died. He later learned that the accused persons had been arrested concerning the deceased’s death.

14. PW4, Ibrahim Muhoro Wanjuki, testified that on September 12, 2019 he was at home when he heard neighbors talking on the road. He went out and found the deceased injured on the head, and one eye, and his clothes were torn. He called his brothers.

15. When they moved the deceased to get his phone, they noticed injuries on the right side of his head, and there was blood on the ground.

16. He stated that the distance from his house to where the deceased was about 45 meters, and he never heard any noises at night. What if there was a fight and noise on the road, he could have heard.

17. PW5, Richard Mathu Karari testified that on a material day at about 8. 00 pm he was at Mastoo Bar, where he had gone to get his brother Silas Mathai Karari. He saw the deceased at the bar, and he greeted them though he was drunk.

18. After a while, he noticed fracas between the deceased and other boys whom he did not know. They were pushing each other. It was not a fight, but they had a scuffle which was stopped. They started to scuffle again, and he saw Gutu, PW1, trying to separate them, and they stopped.

19. He saw the waiter in the bar push the deceased out. He later learned that the people who had had a scuffle with the deceased were Jeremiah and Ndungu, the accused persons. He stated that the 1st accused went back and sat at the counter.

20. After about 10-15mins, the deceased came back to the bar and sat next to the 1st accused. He heard them quarreling. After the quarrel, the deceased left the bar. He also left the bar but didn’t see the deceased outside.

21. He waited for his brother in the car for a while when he came, and together with PW1, they went home. Along the way, he saw the 1st accused, about 100meteres from the bar with somebody else, entering Magutu Road and passing them. After about 1km in a depression, he saw a tractor ahead of him belonging to Mugo, a neighbor, but he didn’t know who was driving it. He then dropped off his passengers, and he and his brother went home. He never saw the deceased on the road. He confirmed that the road to his home and the deceased are the same.

22. He asserted that he used to live in Nairobi and was not aware of any dispute between the deceased and any of the accused.

23. PW6 Margaret Gathoni Munyani, who was the bar employee, testified that on a material day, she was at work when two people walked into the bar and ordered a bottle of alcohol which they shared. After a while, two others joined the Ndungu and another. One started demanding for alcohol to be bought for him, and she told them to go out as the one demanding was shouting and exchanging words. They left, and she closed the bar at 11 pm

24. She identified the 2nd accused as her customer and one of the two who entered the bar later, and the 1st accused as one of the ones who had come earlier.

25. PW7 No 9xxx7 Edward Esanya, stationed at Nyandarua G.K. Police Station, produced photos of the deceased’s body taken at the mortuary and a report of the same. Photos were marked P Exhibit 1a-h and the report and certificate as P. Exhibit 2.

26. PW8, No 6xxx0 PC Fredrick Mwaria, Shamata Police Station, testified that they went to Kwa Wanyoike together with colleagues, where they got information that there were murder suspects there. They managed to arrest one, i.e., 1st accused, and escorted him to Shamata Police Station. He stated that they had a point man who had known him as the neighbor and that they were drinking together. That they arrested the 1st accused, but the 2nd accused came to the police station on his own.

27. PW9, No 5xx CPL Joshua Mwongera, the investigation officer, testified that he investigated by calling witnesses. On September 17, 2019, he went with the family members to Nyahururu Hospital Mortuary for a post-mortem to be done.

28. He told the court that he recorded all statements and was informed that there was a fight at the Caxton Mastoo Shamata area before the body of the deceased was found. He visited the scene of the crime where the body was collected, but they recovered nothing as they had visited it 5 days later and it was interfered with.

29. On September 27, 2019, together with PC Mwai Kinuthia Kiptanui and another from Ndaragwa Police Station went to search for the suspects on a tip-off. They arrested the 1st accused, and on the following day, the 2nd accused was brought to the police station.

30. It was his testimony that he gathered that the accused persons had a grudge against the victim and that they had fought in the bar.

31. PW10, Dr Silas Nganga Njoroge, produced the post-mortem report. He stated that on examination of the body, he saw multiple bruises on the face, up lips, lower lips posterior, and a blood clot on the mouth and nose. The right side of the head was a cut 5cm long, which had been repaired. That he opened the skull and there was bleeding in brain compression. He opined that the cause of death was severe head injuries secondary to blunt head trauma.

Defence Hearing 32. DW1 Jeremiah Mutahi Matu, 1st accused, testified that on the material date, he was in the bar with the 2nd accused at around 8. 00 pm taking alcohol. That the deceased came near him and held him by the collar, saying that they had a grudge. He paid the bill and left the bar with the 2nd accused, and arrived home at around 9 pm. He stated that the 2nd accused had a tractor, and they used it to go home.

33. He stated that he and the 2nd accused were neighbours and he entered his house where he found his wife and children, and so did the 2nd accused.

34. It was his testimony that the deceased was also their neighbor, but they never killed him.

35. He confirmed that they had a grudge against the deceased as he had reported that they were selling dead animal meat, but he was arrested, charged, and acquitted.

36. DW2, Rahab Wairimu Waweru, the 1st accused wife, told the court that she was at home on the material date and that her husband came home at about 9 pm and cooked for her. They ate and slept, and on the next day, she heard that he had been arrested on allegations that he had murdered the deceased.

37. DW3, Dedan Ndungu Mugo, the 2nd accused testified that on September 11, 2019 he went to the bar and joined Jeremiah, the 1st accused. While they were taking alcohol, the deceased came and held the deceased by the collar, saying he would beat him. One person came to separate them, and he pulled the 1st accused away. The waiter told the deceased to go out, and she held him and escorted him out.

38. The deceased came in again after 5 minutes, but he and the 1st accused left with his tractor and went home. They arrived at around 9 pm. At home, he found his parents, ate, and slept.

39. He later learned that the deceased had died and heard rumors that they were the alleged killers. He went to the police station with his father and was later charged with this crime.

40. It was his testimony that they never killed the deceased. They left him at the bar with other people.

41. DW4, David Mugo, the 2nd accused’s father, testified that on the material day, the 2nd accused arrived home at around 9 pm and found him with his mother. After eating, he went to sleep. After about a week, he took his son to the police station after it was alleged that he had murdered the deceased.

Accused Persons Written Submissions 42. On whether the prosecution has proved its case beyond a reasonable doubt, it was contended that it was not proved beyond reasonable doubt that the deceased met his death as a result of an unlawful act or omission on the part of the accused person. That the witnesses told the court they didn’t know who had killed the deceased, particularly PW1, PW2, PW3, and PW5.

43. It was argued that the prosecution’s case heavily relied in circumstantial evidence however, the chain of events did not corroborate to sustain the charges of murder. They stated that it was PW10’s evidence that the injuries sustained by the deceased were also consistent with a fall. PW7 never visited the scene of the crime and only took photos from the mortuary, and PW9 did not record the accused persons’ or their relative and/or persons’ statements and did not investigate them.

44. Reliance was placed on Abanga alias Onyango v Republic Cr App No 32 of 1990 (UR), Sawe v Republic [2003] eKLR 364, P.O.N v Republic [2019] eKLR, Republic v Daniel Musyoka Muasya & 2 others [2014] eKLR

45. The accused persons’ counsel also presented the defence of alibi. He stated that the accused persons were both homes at 9. 00 pm. That the 1st accused’s wife and 2nd accused’s father corroborated their testimony on the same. It was argued that the prosecution is aware of the defence of alibi raised and ought to have Investigated the truth of the alibi before prosecuting the caused persons and/or Impeached the accused persons’ in cross-examination on their said defenses of alibi. Reliance was placed on section 155 of the Evidence Act andKiarie v Republic [supra] .

Analysis and Determination 47. It is well underpinned that for the offence of murder to be proved three ingredients must be established;i.The fact of death;ii.An unlawful act or omission on the part of the accused resulting in the death of the deceased and thirdly;iii.Malice aforethought on the part of the accused.

48. InAbanga alias Onyango v RCr App No 32 of 1990, the Court of Appeal set out the conditions as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) 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. ”

49. The elements of the offence of murder that must be proved by the prosecution beyond any reasonable doubt. Those elements were listed in the case ofAnthony Ndegwa Ngari v Republic [2014] eKLR to include: -That the deceased died;ii.That the death was caused by an unlawful act or omission;iii.That the accused person directly or indirectly participated in the commission of the alleged offence; and

50. In the present case, the evidence of the prosecution indicate that no one witnessed the accused persons killing the deceased. This then to light that the evidence of the prosecution is based on circumstantial evidence. Before such evidence forms the basis of a conviction, it must satisfy several conditions, which are designed to ensure that it unerringly points to the accused persons and others as the perpetrators of the offence.

51. The strands of evidence presented by the prosecution must connect the accused persons with the death of the deceased beyond any reasonable doubt. According to prosecution evidence, on September 11, 2019, when the deceased was said to have been killed, he was in a bar at Mastoo where he had a scuffle and/or altercation with the accused persons, particularly the 1st accused, according to the testimony of PW1, PW5, and PW6.

52. PW1, who was the deceased brother, testified that he intervened to stop the fight, and this was corroborated by PW5. He stated that by the time he left the bar at around 10 pm, the accused persons and the deceased had already left.

53. PW2 testified on the grudge that existed between the accused persons and the deceased.

54. Interestingly, PW5 testified that as he left the bar, he was in the company of PW1 and others whom he was to drop home. Along the way, he stated that he saw the 1st accused, who appeared drunk, and another person whom he couldn’t identify, entering Magutu road. He also saw a tractor ahead, which he later learned was driven by the 2nd accused. However, he stated that he did not see the deceased. PW1 did not corroborate the same, yet they were in the same car save for the fact that he did not see the deceased on their way home.

55. PW7, who was a scene of crime officer, produced photos that were not taken at the scene but in the mortuary. I believe that in this particular case, it was vital to have photos of the scene of the crime as evidence of the position and exactly how the deceased was found at the scene.

56. PW4 testified that he was among those who saw the deceased at the scene where he was found. He also went on to state that the distance from his house to where the deceased was about 45 metresmeterse never heard any noises at night. That if there was a fight and noise on the road, he could have heard.

57. On the other hand, the accused persons denied killing the deceased, and both presented an alibi defence that was corroborated by way of the testimony of DW2 and DW4. They stated that they were both home by 9 pm and, therefore, they could not have killed the deceased.

58. The Court of Appeal in the case of Ahamad Abolfathi Mohammed and another v Republic [2018] eKLR stated as follows: -“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr App R 21: -“It has been said that the evidence against the applicant is circumstantial. So it is, but 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 from evidence to say that it is circumstantial.”“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr App No 32 of 1990, this court set out the conditions as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively, should from 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.

59. Further, in the case of Neema Mwando Nduzya v R [2008] eKLR, it was held that circumstantial evidence must be examined very closely before forming a basis for conviction. Similarly, in cases of R v Richard Itweka [2020] eKLR, Regina v Exall and others[1886] 176 ER 850, and Mwangi and another v Republic [2004] 2KLR 32 stressed that each link in the circumstantial evidence chain must be closely and separately examined before the whole chain is put together and a conclusion drawn on the guilt of the accused.

60. In Sawe v Republic [2003] eKLR, the court reiterated the above-stated conditions and added that the prosecution must also establish that there are no other coexisting circumstances that could weaken or destroy the inference of guilt.

61. I have considered whether they were any circumstances that could weaken the inference of guilt on the part of the accused persons. There are weak links that manifest in the prosecution’s evidence, including the failure to establish the exact and clear evidence of the triangulation of time and location in relation to the material night when the deceased was killed, the failure by the prosecution’s evidence to place the accused persons where the deceased was killed and/or found, the lack of photos of the deceased at the scene of the crime the and the failure to displace the strong alibi evidence presented by the accused persons.

62. The accused persons and the deceased were said to be in the bar from around 8pm. At that time, they had had about 2 separate incidents of a scuffle, and the deceased was supposedly thrown out of the bar by the waitress. He was not seen by anyone after that. None of the witnesses indicated the time at which the deceased was said to have left the bar. They also did not indicate whether the accused persons and the deceased left together. From the testimonies of PW1, PW5, and PW6, it appears the deceased had already left by the time the accused persons left the bar.

63. The accused persons stated that they left the bar and were at home by 9 pm, evidence that was corroborated by their witnesses. PW1 stated that he left the bar at 10 pm, and by that time, the accused persons or the deceased were not in the bar. He left in the company of PW5, and I, am therefore led to believe that they left at 10 pm, as stated by PW1. There is a glaring inconsistency on whom they met along the way home, although it was also not clear whether PW5 had already dropped off PW1 by the time he saw the accused persons on the road. It was also not clear whether the alleged scene of the crime was along the path of the way home to the deceased and the accused persons’ homes, as they were neighbors or it, was at an entirely different location.

64. From my analysis of the available evidence, it is my view that if the accused persons indeed murdered the deceased they could not have made it home by 9 pm as their alibi evidence provides. I am inclined to believe their defence as the same was not displaced by the prosecution.

65. In my view, the aforementioned weak links weaken the circumstantial evidence against the accused persons and it is insufficient. The evidence implicating them which included some of the prosecution witnesses and the accused persons themselves having admitted having an altercation at the bar with the deceased and the existing grudge between the accused persons and the deceased do not irresistibly connect the death of the deceased as having been caused by the accused persons and no one else in the circumstances of this case.

66. In my view, all the pieces of evidence analyzed separately are not as strong so that when pieced together, they do not unerringly point to the accused persons as the perpetrators of the offence. In a case that desperately required an accurate triangulation of time, distance, and location to place the accused persons at the scene of the crime as the deceased’s murderers, the evidence failed to deduce the conclusion that the accused persons were where the deceased was assailed to the precision. The mere existence of a pre-existing grudge and scuffle on the material night between the parties does not prove murder on the part of the accused. In its earlier decision in Mwangi and another v Republic(supra), the Court of Appeal exhorted that:“In a case depending on circumstantial evidence, each link in the chain must be closely and separately examined to determine its strength before the whole chain can be put together and a conclusion drawn that the chain of evidence as proved is incapable of explanation on any other reasonable hypothesis except the hypothesis that the accused is guilty of the charge”

67. All that this court is sure of is that the accused persons and the deceased disagreed at a bar, and the deceased was found dead the next morning. Notably, in cross-examination stated that, in his opinion, it was possible that the deceased injuries and death could have been caused by falling and rolling over. The accused persons are prime suspects in the murder of the deceased in a crime that would have required that they calculated and timed the attack so well however the prosecution failed to adduce sufficient evidence to strongly link them to the said murder.

68. Evidently, there is a strong suspicion that the accused persons caused the death of the deceased. Still, it has been stated by the courts before that suspicion alone, however strong, cannot be a basis for a conviction. The prosecution has to prove its case against the accused beyond any reasonable doubt. I should conclude this judgment by citing the holding of the Court of Appeal in Erickson Chengoli Wanyonyi v Republic [2018] eKLR, where the court stated as follows: -“We find that there was no circumstantial evidence adduced against the appellant that could lead to the inescapable conclusion that he was guilty of the murder of the deceased. All there was, was suspicion, but a court of law cannot act on mere suspicion no matter how strong. The appellant’s conviction was therefore not safe.”

69. In the end, the prosecution has failed to prove its case against the accused persons beyond any reasonable doubt, and the doubt is resolved in favour of the accused persons, and thus, the court makes the orders;i.The 1st and 2nd accused are hereby acquitted of the charge of murder under section 322 (1) of the Criminal Procedure Code.ii.The accused persons are set at liberty forthwith unless otherwise lawfully held.

DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 10TH DAY OF NOVEMBER, 2022. ....................................CHARLES KARIUKIJUDGE