[2023] KEHC 26485 (KLR)

Republic v Muthoni (Criminal Case 9 of 2020) [2023] KEHC 26485 (KLR) (13 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26485 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 9 of 2020

LM Njuguna, J

December 13, 2023

Between

Republic

Prosecution

and

Morris Kiura Muthoni

Accused

Judgment

1. The accused person was charged with murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the offence are that on 04th March 2020 at Muchonoke Area in Mbeere North Sub-County within Embu County, the accused person, jointly with others not before court, murdered Mary Kagendo. Upon arraignment, he pleaded not guilty and a plea of not guilty was duly entered before the matter proceeded to full hearing.

2. PW1, Moses Ngugi Nyaga, the husband of the deceased stated that on the day of the incident, he parted ways with the deceased and went to work. That the deceased told him that she would go to visit her sister at Embu Hospital at around noon on the same day. That when he returned home at about 8:30PM, he did not find the deceased and she was also unreachable on her mobile phone. That he looked for her for two days before reporting the matter at Siakago Police Station where he was informed that the body of a woman had been found at Muchonoke area and had been taken to Siakago Mortuary. That he went to the mortuary and found that the body was that of his wife and he informed the police officers of this finding.

3. He stated that the police officers asked him to give them time to investigate and they later informed him that they had arrested the accused because he was seen with the deceased on the day when she died. That he recognized him as a menial worker who was hired by the deceased to pick miraa from time to time. He identified the accused in the dock. On cross-examination, he stated that he lived with the deceased and his son named Patrick Muriithi. That on the day of the incident, he returned home at around 8:30PM but his son returned at around 8:50PM and when asked, he said that he had not seen the deceased. That the deceased and Patrick Muriithi were not in good terms and Patrick Muriithi had threatened to kill the deceased.

4. That his relationship with the deceased was good and when she went missing, he called the sisters of the deceased. That all the time when he was looking for the deceased, his son Patrick Muriithi was not around and he even told the police that he suspected Patrick Muriithi because he used to bother the deceased a lot. That the body of the deceased was found on 09th March 2020 about 20KM from their home and it had started decomposing. That the sister of the deceased who was admitted at Embu Hospital and who the deceased was going to visit, said that the deceased had told her that she had a business meeting with someone with whom she intended to start a business, but he did not know if that person was the accused.

5. PW2, Lucy Wanja Njeru stated that at the time when the deceased died, she had been admitted for treatment at Embu Level (5) Level Hospital. That the day before her death, the deceased visited her in hospital but she said that she was in a hurry because she was going to meet somebody and promised to return the following day. That the next day, her other sisters went to visit her and told her that the deceased was missing. That when the deceased visited her on 3rd March 2020, she stayed with her for about 30 minutes but she did not look disturbed but she observed that the deceased had lost some weight. That she was later called by Mama Edna, her sister-in-law who told her that the body was seen at Muchonoke.

6. PW3, Purity Wandia Mugo stated that on 06th March 2020, she was looking for firewood when she smelt a foul smell. That she informed another woman called Mama John and when they went near, they saw the body of a person which was covered with a red leso. That she went home to drop her firewood and, on the way, back she met with the sub-area chief whom they informed of what they had seen. That the chief called the police. That she was not able to identify the body. On cross-examination, she stated that no other incident like that one had ever been witnessed in that area. That the body was found near the road and that at first, she thought that it was a pile of clothes but it turned out to be a dead body.

7. PW4, John Kariuki Mwaniki, the sub-area chief stated that on 06th March 2020, he was called by a village mate who said that there was a dead body in the woods. That he accompanied her and they went to the scene where he indeed found a decomposing body. That he called the area chief who went to the scene with police officers and they saw a woman’s body whose eyes had been gorged out and there was a knife at the scene.

8. PW5 was Dr. Andrea Mwi Kamba who conducted a mental assessment on the accused person and concluded that he was mentally fit to stand trial. He produced the mental assessment report as an exhibit.

9. PW6 was Dr. Job Mwaniki who conducted post-mortem on the body of the deceased. He observed that there was a protruding wooden piece through the right anterior neck region with an exit (through and through) on the left anterior neck region measuring about 2cm by 2cm. He formed the opinion that the cause of death was hypovolemic shock secondary to a penetrating anterior neck injury. He produced the death certificate of the deceased as evidence. On cross-examination, he stated that from the nature of the injury, it was not clear whether the deceased was attacked by more than one person but the attacker could have been the same height as the deceased. That the time of death was uncertain but was more than 72 hours. That the body did not have any bruises and there were no strangulation marks. That he collected samples of the pubic hair to help ascertain whether the deceased had been sexually assaulted before the death. That the blood loss was massive to an extent that at the time of death, most of the body organs were not functional.

10. PW7, PC Bernard Wachira, a data analyst at DCI Eastern Region Headquarters produced call data for the deceased’s phone number. He stated that the phone number belonging to the accused frequently contacted the deceased’s phone number and the data showed that the two were at the same places at the same time on 04th March 2020. That the accused’s and the deceased’s phone last signals were seen at Muchonoke at 3:41PM at the same location. That he concluded that either the accused was trailing the deceased to the place where she met her death, or the accused was the las person who communicated with the deceased and he was in her company on that day.

11. That it is likely that the accused caused the death of the deceased as he was the last one to call and be seen with the deceased at the scene of the crime. He produced the request letter and the call data as evidence. In cross-examination, he stated that according to the call data, the accused called the deceased who was at the Embu Bus Park while the deceased was at Kiambuthi and that they were not at the same location. That the movements of both the accused and the deceased were similar on that day and that the data from the other phone numbers did not tally with the movement of the deceased. That while at Muchonoke, the deceased received a phone call but it is not known who called her before her phone went off.

12. PW8, SGT Simon Mutisya was the investigating officer in the case. He stated that he requested for phone data records for the deceased in the course of his investigations. That the mobile data was analysed and it established the geographical locations of the deceased on 04th March 2020 and the communication she had with the accused. That he looked into the accused and his interactions with the deceased and he admitted to having met with the deceased on that day at her home in Rwika where she had promised him some work and she was to pay him Kshs 700/=.

13. That the accused and the deceased then parted ways and the accused went to Embu town where he was later joined by the deceased who was going to visit her sick sister at Embu- Level 5 Hospital. That the accused was arrested while holding a different phone from the one that he had previously and when asked, he said that he had sold it in February 2020 even though he still had it and both handsets were confiscated during arrest and produced as evidence. That from his further investigations, he collected statements from some witnesses at the scene of the crime who said that they saw the accused at the scene on that day and that he was a herds boy who worked at the farm in the forest where the body was found.

14. That he was convinced that the accused knew the place well before he went there on that day and that is why he was charged with the offence. On cross-examination, he stated that from the call data received, he narrowed down on the accused because of the geographical location of the accused’s proximity of the deceased. That one of the witnesses who was also the son of the deceased had also died. That the phone he found at the house of the accused was different from the one that the accused was holding at the time of arrest but the phone data shows that he was using both of them at different locations.

15. At the end of the prosecution’s case, the court found that the accused person had a case to answer and was placed on his defense.

16. DW1, the accused person, stated that he was offered to work at the farm of the deceased for Kshs 700/= and he was to do the work on 04th and 05th March 2020. That on 04th March 2020, he went to the deceased’s farm and the deceased left him in the company of the son of the deceased, one Patrick Muriithi. That since he had planned to leave the farm in the afternoon, he left and met the deceased at the bus stop on the way to Embu Town and while there, she gave him Kshs 500/= as deposit for the work he had done. That he returned home at 4PM and he denied having visited Muchonoke that day. That Patrick Muriithi, son of the deceased had threatened to kill the deceased on several occasions as PW1 had stated.

17. That he (the accused) was already in remand when Patrick Muriithi, son of the deceased was found dead. That he did not kill the deceased and had no reason to do that. That on 04th March 2020, he was with the deceased in Embu town but when he went to the home of the deceased on 05th March 2020, he did not find the deceased at home and PW1 did not know her whereabouts. That he attended the deceased’s funeral. On cross-examination, he stated that on 04th March 2020, he spent a considerable amount of time with the deceased and he went with her to town and communicated with her on the phone. That before the incident, he worked at Muchonoke where the deceased was found but he had no reason to kill her.

18. At the end of the defense case, the parties filed their written submissions.

19. The prosecution filed its written submissions in which they urged the court to consider the case of Anthony Ndegwa Ngari v Republic [2014] eKLR where the elements of murder were outlined as regards section 203 of the Penal Code. It stated that on the element of proof of death, the death and cause of death were ascertained by PW6 who produced the postmortem report and the death certificate. It relied on the cases of Republic v Stephen Sila Wambua (2017) eKLR and Guzambizi Wesonga v Republic (1948) 15 EACA 63 for the argument that Article 26(1) and (3) of the Constitution accords everyone the right to life and that there is no justifiable cause for the deceased’s life to be taken away. On the issue of whether the accused person caused the death of the deceased, it was its argument that there was sufficient evidence from PW1 and PW7 to prove that indeed the accused was at the scene.

20. It urged the court to consider the cases of Abanga alias Onyango v Republic CRA No 32 of 1990 (UR) and Republic v Kipkering Arap Koske &another (1949) EACA 135. On its argument on malice aforethought, it relied on Section 206 of the Penal Code and the case of Joseph Kimani Njau v Republic (2014) eKLR and stated that malice aforethought was proved by the prosecution and that the accused was rightly charged with murder. That the evidence adduced by PW8 showed that the accused’s mobile phone was used to communicate with the deceased because when the sim card number was paired to the handset, it was found to have been used. That the handset that was used to communicate with the deceased was recovered from the house of the accused.

21. That the accused in his defense did not provide a satisfactory explanation as to why the signal from his phone was found at the location where the body of the deceased was found. It relied on sections 111 and 119 of the Evidence Act and the cases of R v F.O.O. (2021) eKLR and the doctrine of “last seen” as established in the case of Stephen Haruna v The Attorney-General of the Federation (2010) 1 iLAW/CA/A/86/C/2009. Further reliance was placed on the case of Joseph Kimani Njau v Republic (2014) eKLR and section 206 of the Penal Code on malice aforethought.

22. In his submissions, the accused disputed the evidence produced by PW7 stating that the same was inconsistent as it showed that the deceased was at Muchonoke area at 15:41PM while the accused was in that area at 16:21PM but the same data shows that the deceased communicated with the accused at 1:53PM. That the data showing the geographic locations of the deceased and the accused shows that they were at different locations within the same area and that an expert in phone data analysis ought to have been called to establish the accuracy of the information.

23. That the fact that the son of the deceased had threatened to kill her was enough to create reasonable doubt in the case. That even if the court should determine the case based on circumstantial evidence, the same is scanty and unreliable and unable to meet the threshold required. He relied on the cases of Republic v Daniel Musyoka Muasya & 2 others (2014) eKLR, Republic v Kipkering Arap Koske &another (1949) EACA 135, Charles Mathenge Mwangi &anotherv Republic CA No 72 of 1999 and Joseph Kimani Njau v Republic (2014) eKLR (supra).

24. It is now upon this court to determine whether the offence of murder has been proved beyond reasonable doubt.

25. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. The accused person herein faces the charge of murder under sections 203 and 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased. These provisions of the Penal Code provide the elements of the offence as follows:“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

26. In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR, as follows:“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (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.”

27. On the first element of death and cause of death, PW6 produced the death certificate and the postmortem report. He observed that the neck of the deceased had a penetrating through and through injury with a piece of wood sticking out of both sides of the neck, severing the internal carotid artery. He formed the opinion that the cause of death was hypovolemic shock secondary to a penetrating anterior neck injury. On the postmortem report, it is indicated that the body of the deceased was identified by PW1 and one Faith Gichuki.

28. On the element of the unlawful act which caused the death of the accused, the prosecution is tasked with proving that the accused was linked to the death of the deceased. PW7 analyzed mobile phone data from the phones of the accused and the deceased while PW8, the investigating officer relied on the said information to arrest the accused. PW7 stated that the accused last spoke with the deceased at 1:53PM when the deceased was at Embu town while the accused was in Kiambuthi. That the accused was at Muchonoke at 3:41PM and the deceased was within the same coordinates at 4:27PM. That according to the data, the deceased travelled from Rwika to Don Bosco Embu to Matakari to Embu Bus Park to Muchonoke while the accused travelled from Rwiki to Don Bosco to Embu Bus Park to Embu Kiambuthi to Muchonoke to Embu Kiambuthi to Embu Matakari to Embu Don Bosco then to Thiba.

29. It is evident that the accused and the deceased were around the same locations on that day given the data showing their geographical locations. However, the accused lived on a farm near the place where the body was found. In his submissions, the accused stated that the exact geographical locations were not ascertained because there was no expert evidence by a witness from the data provider. From the data as analyzed and presented in evidence, the movement of the accused is not explained as to why they travelled the same areas on that day. The alternative phone linked to the accused’s sim card was recovered from his wife and it showed to have been used to communicate with the deceased on 04th March 2020 yet he had told the police that he sold the handset.

30. There may not be direct evidence showing that the accused caused the death of the deceased but I am inclined to follow circumstantial evidence. In the case of Chiragu & another v Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR) the Court of Appeal pronounced itself on the subject while citing its own decisions in the following cases:a.In the case of Ahamad Abolfathi Mohammed andanotherv Republic [2018] eKLR, it was held:“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.’”b.In the case of Abanga alias Onyango v Republic CR. App No 32 of 1990(UR) it was held:“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 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.” (emphasis mine)c.In the case of Sawe v Republic [2003] KLR 364, the Court of Appeal amplified on the above thus:“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.” (emphasis mine)

31. There was no murder weapon recovered from the scene of crime and the postmortem showed that the deceased was stabbed through the throat with a piece of wood. Going by the mobile data, the accused was in communication with the deceased on the fateful day and was the last person to contact her, but again, the home of the accused was near the scene of crime. None of the prosecution’s witnesses raised an unusual explanation why the accused’s phone signal was found at the scene besides the fact that the accused’s wife was at home near the scene and using the said mobile phone. The circumstantial evidence in this case does not form a formidable chain of evidence. In my view, this element has not been proved beyond reasonable doubt.

32. On the element of malice aforethought, the prosecution must prove beyond reasonable doubt that the accused intended to cause the death of the deceased. However, given that the accused cannot be linked to the murder of the deceased, I find no reason to delve into malice aforethought.

33. In conclusion, in the absence of sufficient evidence to prove the offence, I find that the accused person is not guilty of murder and I hereby acquit him.

34. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF DECEMBER, 2023. L. NJUGUNAJUDGE