[2022] KEHC 16283 (KLR)

Republic v Mutuma (Criminal Case 1 of 2016) [2022] KEHC 16283 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16283 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 1 of 2016

TW Cherere, J

December 15, 2022

Between

Republic

Prosecution

and

David Mutuma

Accused

Judgment

1. Accused is 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 December 13, 2015 at Tutua village, Ruiri location, Buuri District within Meru County murdered Kiome Ibuuri.

2. Accused denied the offence. The prosecution case as recounted by Salome Karwitha who is Accused’s mother and Kiome Ibuuri’s spouse recalled that on December 13, 2015 at about 10. 00 am, she left Accused and Kiome Ibuuri at home talking and went to the shamba and ½ an hour later heard screams. That she rushed home and found her husband lying down outside the house bleeding from the head and also saw Accused walking away from the scene. That her husband who was barely alive later died in hospital on December 19, 2015.

3. On December 13, 2015, Salome reported the incident to police. On December 23, 2015, PC John Nderitu upon being informed that Kiome Ibuuri had died recorded witness statements and subsequently arrested Accused on December 31, 2015 and had him charged. He stated that prior to his death, Kiome Ibuuri had on December 13, 2015 made a report of assault against his son Accused herein.

4. An autopsy on Kiome Ibuuri’s body was conducted on December 28, 2015 by Dr Bett. The postmortem form tendered as an exhibit reveals that Kiome Ibuuri suffered a fractured skull and intracerebral hemorrhage from which the doctor formed an opinion that deceased died of intracerebral hemorrhage secondary to assault.

Defence Case 5. Accused in his sworn statement denied having been at the scene of crime or murdering his father.

Analysis and Determination 6. Section 203 and 204 of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. They require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased through malice aforethought.

7. The sections 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.”

8. I have considered all the evidence availed in this case as set out above and the issue in question is whether the prosecution has proved the death of the deceased; that Accused caused the death and that he was actuated by malice.

a. The death of the deceased 9. The postmortem form PEXH 1 reveals that deceased Kiome Ibuuri suffered a fractured skull and intracerebral hemorrhage from which the doctor formed an opinion that deceased died of intracerebral hemorrhage secondary to assault.

b. Proof that accused person committed the unlawful act which caused the death of the deceased 10. Accused’s mother who is Kiome Ibuuri’s spouse stated that he had left Accused and his father together and that whne she heard screams, she rushed home to find her husband lying on the fround injured and saw Accused walking away.

11. Before his death, Kiome Ibuuri on the date he was assaulted reported to police vide OB05/23/12/2015 that he had been assaulted by his son, Accused herein.

12. The offence was committed in broad day light. Accused’s mother’s evidence that he saw Accused walking from the scene of crime and suspected he had assaulted his father was corroborated by deceased’s report to the police in which he identified Accused as the person that assaulted him.

13. From the foregoing, I find that the corroborated prosecution case places Accused at the scene of crime and his defence of alibi is hence rejected.

Malice aforethought 14. The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Codeevidence 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.”

15. The formulation of the law inRex Versus Tubere S/O Ochen 1945 12EACA 63 laid down the guidelines for trial Judges where the court held that:“To determine whether malice aforethought has been established to consider the weapon used, the manner in which it is used, the part of the body targeted, the nature of injuries inflicted, the conduct of the accused before, during and after the incident”.

16. The injuries inflicted on Kiome Ibuuri were concentrated on the head and Accused ought to have known that such serious injuries could probably cause grievous harm or the death of Kiome Ibuuri.

17. Right to life is protected by Article 26 of the Constitution and can only be taken away under the circumstances provided therein. It therefore means that every homicide is unlawful unless authorized by law or excusable under the law. (See Guzambizi Wesonga v Republic[1948] 15 EACA 63). The death of Kiome Ibuuri was intentional and unlawful. I therefore find Accused guilty of the offence of murder and convict him accordingly.

DELIVERED AT MERU THIS 15TH DAY OF DECEMBER2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAccused - PresentFor the Accused - Ms. Maore AdvocateFor the State - Ms. Mwaniki (PPC)