[2023] KEHC 24809 (KLR)

Republic v Mutitu & 2 others (Criminal Case E024 of 2021) [2023] KEHC 24809 (KLR) (1 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24809 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case E024 of 2021

LM Njuguna, J

November 1, 2023

Between

Republic

Prosecution

and

Sofia Mutitu

1st Accused

Silas Muchiri Magara

2nd Accused

Ostian Gitonga Thathi

3rd Accused

Judgment

1. The three accused persons herein were 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 the 3rd day of June, 2021 at Kivue area, Muminji Location in Mbeere North Sub-County within Embu County, murdered Titus Kariuki.

2. They pleaded not guilty to the charge and in support of their case, the prosecution called a total of six (6) witnesses and at the close of the prosecution’s case, they were all placed on their defence after the court found they had a case to answer.

3. Bibian Ngungi who testified as PW1 told the court that the deceased was his neighbor. That on the 3/6/2021 she was at home but later left for town and on coming back he found the body of the deceased in a pit latrine.

4. The body was retrieved by theDCI officers. She stated that the deceased used to quarrel with the first accused person over a piece of land but on cross examination she stated that she did not know the extent of the dispute. Further that she does not know if there was bad blood between the deceased and the 2nd and 3rd accused persons and that she could not tell who killed the deceased.

5. Cyrus Kithunge Nyaga who is a cousin to the accused persons and the deceased, testified as PW2. It was his evidence that on the 3/6/2021 he was in Chomely Club when Kambo Njuki, Muchangi Silas and Gitonga entered the club. The deceased was also in the same club at the same time. That they left the club and went to a wines and spirits outlet within the same locality and while there one Kambo entered and called the deceased and asked him to go and give him something that he wanted from him. That after a while, he heard some distress calls from Wilson Kariuki who was saying, “They have killed him like a dog”. He did not go to the scene and on the following day, he learnt of the death of the deceased and that his body was found in a pit latrine. In cross examination he stated that he did not see the first accused person that night but he saw the 2nd and 3rd accused persons but he could not tell when they left town. It was his evidence that the deceased left the club in the company of Kambo Njuki that night.

6. Wilson Kambo Kariuki testified as PW3. It was his evidence that on the 3/6/2021 at around 10pm, he was at Muminji Town and at around 11 pm he found the three accused persons assaulting the deceased along Gakoni base road. That they were using fork jembes and sticks and he was able to identify them because he had a torch and on asking them why they were beating the deceased, they threw stones at him. He asked them why they wanted to kill him but they did not talk to him. He went home and on the following day, he heard that the deceased had died and his body was found in a pit latrine. In cross examination, he stated that the deceased left the club alone at around 11. 00p.m. and after about 20 minutes he also left the club and on the way, he found the deceased being beaten by the accused persons and further that he was drank. He stated that he went to the police station voluntarily to write his statement. That there is no grudge between him and the accused persons. He denied the allegation that in the year 2018 the 2nd accused person and one Henry Mwaniki had arrested him for beastiality.

7. Doctor Sheila Shavulimo a psychiatrist testified on behalf of Dr. Mwenda who examined the three accused persons and found them fit to plead and stand trial.

8. Dr. Rosemary Wangari, a pathologist, carried out post mortem on the body of the deceased on the 9/6/2021. On examination there was bruising on left iliac hip area measuring 4 x 3 cm, bruises on the face and the scalp and there was blood coming out of the nose. There were multiple injuries on the head which involved frontal parietal and temporal bones with crush at the base of the skull fracture; there was haemorrage on the entire brain with raised intercranial pressure. She formed the opinion that the cause of death was severe head injury secondary to blunt force trauma.

9. PC Owino the investigating officer stated that he visited the scene in the company of other officers and found the body of the deceased in a pit latrine which was about 12 feet deep. They organized for the retrieval of the body which had multiple injuries to the head, bruises on both hands and the legs. They organized for the body to be taken to Embu Level (5) mortuary and a post mortem was carried out on the 8/6/2021. They recorded statements of the witnesses and from their investigations seven (7) people were named as suspects who they arrested, among them the three accused persons herein. That PW3 implicated the accused persons and stated that he saw them when they were beating the deceased using sticks. He stated that there was a land dispute between the first accused person and the deceased which they were trying to resolve but the same had not been settled. That they forwarded the file to the DPP who recommended that they charge the three accused persons herein. That they also investigated the phone call data for the seven (7) suspects including voice call and messages sent through their lines and it was not of value because the results were negative. In cross examination he stated that PW2 was taken to the station by the assistant chief, one Benadin Binya Njiru who is not a witness in the case and who according to his investigations, had a grudge against the 1st and 3rd accused persons but he was not able to know the source and/or reason of the grudge because the assistant chief refused to go to their offices. Further that if the accused were at the scene the phone records could have revealed this fact.

10. All the accused persons gave sworn evidence in their defences and each of them denied having committed the offence. The first accused stated that she spent the day on 3/6/2021 at home with some workers who had come to work for her who she named as Austin Gitonga (3rd accused), Alfred Ng’ang’a, Grace Wawira and Kambo Njoki. That the said workers left her place at 4. 00 p.m. and thereafter she was at home with her children and on the following morning she went to the “base” to buy milk and it is then that she learnt about the death of the deceased, and as she proceeded to the scene where the body of the deceased was lying she fainted and only regained consciousness later. That she was later arrested and taken to Siakago Police Station. She denied that there was a land dispute between herself and the deceased who was his step brother and that there is bad blood between herself and PW3.

11. In his defence, the 2nd accused stated that on the 3/6/2021, he went to work in Mbeti North which is about 50 kilometers from Kivue. He went home around 7. 00 p.m. where he found his mother, wife and children and he had supper with them and he slept at 9. 00p.m. That he heard about the death of the deceased the following day and went to the scene to try and rescue his cousin but he was already dead. He was arrested on the 14/6/2021 which was almost a week after the deceased had died. He stated that there is bad blood between him and PW3 after he found PW3 being involved in unnatural act and suggested that he be taken to the police. He denied having been in Chomely Bar on the night the deceased died. He called his wife as a witness who told the court that at the material time of the incident he was working at Mbeti North for two months and had just come back home on that date where he arrived at 7. 0 p.m. and sept the rest of the night at home.

12. The third accused told the court that on 3/6/2021 he spent the whole day at home working. That he was with Bernard Ngari who was helping him to repair his house. That they left home at 5. 00 p.m. and went to the “base” where they stayed until 9. 00 p.m. but they were at the premises where he sells miraa. That from there, they went home together and he did not leave the house again because it was during corona and there was curfew. That he parted ways with Bernard at the gate and he went straight to bed and only learnt about the death of the deceased the following day when he went to the market. He called Bernard Njeru Ngari as his witness who stated that on the material date he was working at the home of the 3rd accused who had given him work to fix his doors and fissure board and he was with him until 4. 00 p.m. after which they left for the “base” where they stayed until 9. 00 p.m. That he left with him and they parted ways at the gate of the 3rd accused and he went home which is about one kilometer from the home of the 3rd accused person.

13. In his submissions, the first accused person submitted that the prosecution did not proof the case against him beyond reasonable doubt. It was his contention that the mysterious third party who left the drinking establishment with the deceased on the fateful night namely Kambo Njuki is the father to PW3 a fact that was only made relevant during the defence hearing. That the prosecution’s case stood on the narrative of a long standing dispute over a piece of land as the motive behind the death of the deceased but there was no evidence of malice aforethought on the part of the accused persons. That it was the sworn testimony of the accused persons that there was no bad blood between them and the deceased. He relied on the case of Pius Arap Maina v R (2013) eKLRon the burden of proof in criminal cases and buttressed the fact that the same lies with the prosecution to proof the case beyond any reasonable doubt.

14. On the part of the 2nd accused person it was submitted that the prosecution did not proof the case against him as required by the law and relied on the case of Miller v Minister of Pensions (1947) 2 AllER 372 -373 on the degree of proof. He submitted at length on the elements of the offence of murder and cited several cases including that of R v Ismail Hussein Ibrahim(2018) eKLR in which the court referred to the case ofR v Andrew Omwenga (2009) eKLR. On malice aforethought, he cited the case ofR v Juma Kituko Wambugu (2020) and that of Ernest Asami Bwire alias Onyango v R.

15. The third accused person submitted that the evidence of prosecution witnesses was contradictory and that it did not meet the required threshold in criminal cases. That the prosecution did not establish malice aforethought on the part of the 3rd accused person and that the theory of a long outstanding land dispute was not proven as the cause of death of the deceased. He invited the court to consider and be guided by the provisions of the constitution and in particular Article 50(2). He relied on the case of Pius Arap Maina v R (2013)eKLRon the burden and degree of proof in criminal cases and urged the court to acquit him.

16. On its part, the prosecution relied on the evidence on record and made no submissions.

17. The court has considered the evidence on record and the submissions by all the accused persons.

18. The three accused persons have been charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal code. It is trite that the prosecution bears the burden of proof which is beyond any reasonable doubt. See the case of Pius Arap Maina v Republic (2013) eKLRwhere the court observed:“It is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution’s case raising material doubts must be interpreted in favour of the accused person.”In the famous case of Miller v Minister of Pensions (1947) 2 All ER 372-373 Lord Denning stated that:“That degree is well settled. It needs not reach certainty, but it must carry a high degree of probability proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.”

19. In order to sustain a conviction on a charge of murder, the prosecution must prove the following elements:i.The deceased died.ii.The death was unlawful and the same was caused by the accused persons.iii.There was malice aforethought.

20. On the first element, it is not in doubt that the deceased died. All the prosecution witnesses testified to that effect. The police pathologist who testified as PW5 stated that he conducted the post mortem on the body of the deceased.

21. On whether the death was unlawful, ourConstitution2010 protects right to life unless as otherwise provided for under the law. In the case herein the pathologist testified as PW5. She stated that she conducted postmortem on the body of Titus Kariuki, the deceased herein and on external appearance, there was bruising on the left iliac hip area measuring 4 x 3cm, bruises on the face and the scalp and there was blood coming out of the nose. That on the head, there were multiple injuries which involved the frontal parietal and temporal bones with crush at the base of the skull fracture. On the nervous system, there was haemorrhage (entire brain), there was brain contusion with raised intercranial pressure. She formed the opinion that the cause of death was severe head injury secondary to blunt force trauma.

22. From the above findings there is no doubt that the cause of the death was unlawful as it was not stated to be a natural death but was due to injuries that the deceased sustained as a result of which he met his death. This then takes me to the next question – who caused the death of the deceased? According to the evidence on record, the only eye witness is PW3, Wilson Kambo Kariuki who stated that, on the 3/6/2021 at around 10. 00 p.m. he was at Muminja Town and at around 11. 00 p.m. he found the accused persons assaulting the deceased along Gakoni – base road. That they were using jembe, sticks and he was able to identify them because he had a torch. He asked them why they were beating him but they did not talk to him. That they threw stones at him and he screamt and went away. That the following day, he heard that the deceased had died.

23. In regard to PW3’s evidence, the court notes that the alleged incident happened at 11. 00 p.m. in the night. From his evidence, it must have been dark because he stated that he had a troch which he lit and was able to identify the accused persons. The court was not told the intensity of the light that was emanating from the torch and for how long he was able to direct the torch on each of the accused persons so as to effectively identify them. His testimony was that he talked to them but none of them responded. It is also` on record that he had been drinking and he told the court that he was drunk. He also did not tell the court how far he was from the accused person when he allegedly identified them. The other important piece of evidence in this regard is that of the investigating officer, who, in his evidence stated that no witness connected the accused persons with the offence apart from PW3 whose evidence this court has already analyzed and has found it has fallen short of the required threshold.

24. Further, the investigating officer stated that he compared the phone records for all the accused persons with that of the deceased but there was no connection. It was his further evidence that if the accused persons were at the scene, their phone records could have revealed this fact. In view of that evidence, I come to the irresistible conclusion that the accused persons are not guilty of the offence of murder as charged. The prosecution has failed to proof the case against them beyond reasonable doubt and I hereby acquit them.

25. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 1ST DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE………………………………....………………………………………………………...…..for the State………………………………..……………………………….…………....for the Accused PersonsJUDGMENT HCCR E024 OF 2021 Page 2