[2023] KEHC 25196 (KLR)

Republic v Mwangi (Criminal Case 19 of 2016) [2023] KEHC 25196 (KLR) (14 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25196 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Case 19 of 2016

J Wakiaga, J

November 14, 2023

Between

Republic

Prosecutor

and

Joseph Njogu Mwangi

Accused

Judgment

1. The accused was charged with the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on the 1st day of September 2016 at Makuyu Market within Muranga County murdered Edward Murithi Mburu.

2. He pleaded not guilty to the charges on the 14th day of September 2016 and on the 22nd day of February 2022 his trial commenced before me.

3. PW1 Lucy Wanjiru Githua testified that on the material day she was called by one Owino who was staying in her plot to go take the deceased who was her employee to hospital as he had been stabbed by a tenant at the plot, she called the OCS Muranga and reported and further instructed the Boda Boda Operators at the area to stop the accused from leaving the scene, which they did.

4. It was her evidence that when she arrived at the scene, she found the body of the deceased lying at the door step of the accused room, who was standing at the door holding a knife and that he was later on arrested and taken to the police station. In cross examination, she stated that she was called by one of her tenants and that she was told that the accused who was her tenant, was working at Maguna Andu and that at the scene there were many people and that the accused who was holding a knife in his hand was arrested by the police together with his friend who was living with him in the same room.

5. PW2 Rosemary Egoki was called on phone by her brother in law who informed her that the deceased had been stabbed with a knife and died. The following day, she went to the mortuary in the presence of the wife of the deceased and PW1 where they identified the body for the purposes of post mortem examination.

6. PW3 Dr Elijah Mwangi Njoroge conducted post-mortem examination on the body of the deceased who had five stabbed penetrating wounds, one on the chin, two on the chest and two on the abdomen leading to a collapsed lung and as a result of his examination, he formed an opinion that the cause of death was exsanguination due to penetrating stab wound.

7. When put on his defence, the accused DW1 Joseph John Mwangi stated that on the 28th day of August 2016, he befriended a Mr. Owino who was a caretaker of the plot who had asked him to accommodate the deceased who was his relative and who could not stay with him since he had a family and he allowed him to stay thereat for five days. On the 1st day of September he woke up in the morning and woke up the deceased since he could not leave him at home and he proceeded to his place of work until 6. 00pm.

8. He returned home at 6. 30 pm and prepared supper. At 7. 00 pm he watched news for about thirty minutes before hearing noise outside the plot which was usual at the place since there were fights between drunkards and when he went to check, he noticed that the noise was at the gate of the plot and there were about twenty people there at including police officers. He saw Mr Awino and the deceased whom he had accommodated sitting down and holding something in his hand.

9. He was told by Mr Awino that Mr Mwangi had killed someone and that he was going to call the owner of the plot which he did and when she came he introduced her to him and that she took the said Mr Awino and the deceased to the police and when the deceased was asked whether he knew anyone in the plot he identified him as the person who had accommodated him and he was asked to accompany the police to the station to record his statement and in the police motor vehicle he saw a body covered and the police told him that the man he had accommodated was allegedly killed.

10. At the station, the owner of the plot Mr. Awino and the OCS went into a meeting and ordered the man to be placed in the cell while he accompanied them to the police station with the body and was placed in the cell and later on charged with the offence which he denied.

Determination 11. To sustain a conviction, the prosecution is required to prove beyond all reasonable doubt, the fact and the cause of death, that the said death was caused by unlawful act on the part of the accused person was malice aforethought.

12. The fact and the cause of death was proved by the evidence of the three prosecution witnesses and the accused in his defence confirmed the fact of the death of the deceased. PW2 the deceased’s mother identified the body to PW3 the Doctor for the purposes of post mortem examination who confirmed that the cause of death was exsanguination as a result of penetrating stabbed wound thereby corroborating the evidence of PW1. I therefore find and hold that the fact and the cause of death was proved beyond reasonable doubt.

13. On whether the death was caused by an unlawful act on the part of the accused person, the accused was positively identified and placed at the scene by PW1 who was called to the scene and found the accused standing at the door of his room holding a knife with the deceased lying on the floor. The accused in his defence corroborated the said evidence and placed himself at the scene from where he was arrested together with his friend.

14. The fact that the arresting officer was not called to testify did not in any way vitiate the proof of the prosecution case and the accused defence having placed himself at the scene did not raise doubt in the prosecution case. I therefore find and hold that the accused was positively identified and placed at the scene by PW1 whose evidenced was corroborated by the accused in material particulars by the accused in his defence and find and hold that the death of the deceased was caused by the accused and nobody else.

15. On whether the death was caused by malice aforethought, the same is defined in section 206 of the Penal Code as:a.Intention to cause death or do grievous harm to any personb.Knowledge that the act or omission causing death will cause death of or grievous harm to some person, whether such person is the person killed or notc.Intention to commit a felony.

16. The court of appeal in Morris AluochvRep Appeal No 47 of 1996 in defining what constitute malice aforethought stated as follows: “if repeated blows inflict the injury then malice aforethought could well be presumed “

17. In this matter the accused stabbed the deceased five times and I find and hold that the same had formed an intention to kill and or to cause grievous harm to the deceased and the same succeeded in so doing and therefore find that malice was proved.

18. It follows that the prosecution proved all the elements of the offence and subsequently find the accused guilty and convict the same of the murder of the deceased.

19. And it is ordered.

DATED, SIGNED AND DELIVERED AT MURANGA THIS 14TH DAY OF NOVEMBER 2023. J. WAKIAGAJUDGEIn the presence of:-Mr. Kagwe for the AccusedMs Gakumu for StateAccused – PresentJackline – Court Assistant