[2022] KEHC 10325 (KLR)

Republic v Mwaniki (Criminal Case 7 of 2018) [2022] KEHC 10325 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10325 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 7 of 2018

LM Njuguna, J

July 20, 2022

Between

Republic

Prosecution

and

Simon Mukundi Mwaniki

Accused

Judgment

1. The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and the particulars of the offence being that on 17. 10. 2017 at unknown place in Rutune Village, Embu North Sub-County within Embu County murdered Peter Munyi Muriuki.Upon arraignment, he pleaded not guilty and a plea of not guilty was entered. The case proceeded for trial and wherein the prosecution called eight (8) witnesses who testified in support of its case.

2. PW1 Polly Mukami testified that on 17. 10. 2017 as she was walking from the shop to buy milk, she met the deceased herein and they stood to talk. That as they were talking, the accused who is her former husband emerged and had covered his face with a kikoi and asked the deceased why he was ‘spoiling his home’. She stated that she recognized his voice in as much as the accused covered his face and that the accused started beating her up. That she ran for her life and when she later enquired on how the deceased was doing, she was told that the deceased’s body had been recovered near the shopping centre. Upon cross examination, she reiterated that she recognized the accused by his voice and further that, she managed to see the accused well when he was beating her. It was her evidence that the colour of the shawl that the accused covered his face with was maroon in colour.

3. PW2 David Rutere Mwaniki stated that on 17. 10. 2017, the accused came home at around 8. 00 p.m. and told him that he had been drinking at Forest Fever Club. The accused told him that he had been called on phone by PW5, a sister to PW1 and who told him to go to their home. Further, the accused told him he had gone to the home and the people there had become confrontational against him and he had to leave. That on the following day at around noon while picking tea with other labourers, PW5 received a call informing her that a person had been found dead near Ngimari Tea Buying Centre. The accused thus was later arrested after the incident had happened and having disappeared from home for some time.

4. PW3 Ludia Gichuku, mother to the accused testified that on the material date, she arrived home only to be informed that the accused had gone out to pick his phone. She slept and only saw the accused the following day. That the accused told her that he had fought with the deceased and he was armed with a knife. It was her testimony that the accused thereafter disappeared from home for a period of one week.

5. PW4 Patricio Njagi Muriuki testified that while on his way to work, he received a call from Kivugithi who informed him that he had seen a dead body that resembled that of his brother lying near Ngimari Tea buying centre. That he informed the area chief and then proceeded to the scene where he confirmed seeing the body and there was a maroon kikoi and a red cap at the scene. On 24. 10. 2017, he identified the body of the deceased to the doctor who performed the post mortem.

6. PW5 Beatrice Nyaguthii Njue testified that the accused was previously married to PW1 and that on the material day, she saw the body of the deceased lying at the tea buying centre and further saw the hat belonging to the accused person and a kikoi which belonged to PW1. That there was bad blood between the accused person and herself as the accused used to beat PW1. On cross examination, she stated that she never witnessed the accused murder the deceased but she could recognize the hat before the court as that of the accused since she used to see him wearing it.

7. PW6 Sang Nicholas stated that on 21. 01. 2018, he was informed of a murder suspect who had been brought to the station. He re-arrested the suspect and placed him in custody to await further investigations.

8. PW7, Dr. Ndirangu Karomo testified that he conducted the autopsy on the body of the deceased and on general observation, he noticed that there was a deep laceration which penetrated on the right hemi thorax. He thus formed the opinion that the cause of death was as a result of cardio respiratory arrest secondary to internal hemorrhage chest injury inflicted by a sharp object.

9. PW8, Osman Abdullahi stated that when he took over, much of the investigations had already been done and all what he did was to retain the maroon kikoi and the red hat. He confirmed that he could not tell to whom exactly the items belonged and further that, he could not identify the accused person. He further produced the mental assessment report showing that the accused was fit to stand trial. On cross examination, he reiterated that he could not connect the accused herein to the offence.

10. After the close of the prosecution’s case and vide a ruling delivered on 28. 04. 2022, the accused was placed on his defence upon the court finding that the prosecution had established a prima facie case against him.

11. The accused (Simon Mukundi Mwaniki) testified that the deceased was unknown to him and that on the material date, he was at Murang’a where he had gone to work. He denied being responsible for the death of the deceased and further owning the kikoi and the hat that were produced before the court. He stated that he is the one who took himself to the area chief after having been informed by his nephew of what was happening.

12. The defense proceeded to close its case. The court gave directions on filing of submissions wherein the prosecution chose to rely on the evidence on record in support of its case whereas the defence chose to rely on the submissions made at the no case to answer stage.

13. The defence submitted that the prosecution failed to prove the elements of the offence of murder in that; there was no evidence linking the accused person to the death of the deceased. He proceeded to submit that the prosecution witnesses were not credible and the prosecution mainly relied on circumstantial evidence based on suspicion. Further that, the glaring gaps left by the prosecution witnesses did not establish the blameworthiness of the accused person. Reliance was made on the case of Joan Chebichii Sawe v Republic, Criminal Appeal No. 2 of 2002 [2003] eKLR. The defence therefore urged this court to acquit the accused herein.

14. I have considered the evidence tendered before this court by both the prosecution and the defence and the written submissions filed by the accused person. As I have already stated, the accused person herein is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.

15. The offence of murder is defined under section 203 of the Penal Code in the following terms;-“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

16. As such, for the prosecution to secure a conviction on the charge of murder, it has to prove, beyond reasonable doubt the ingredients of the offence of murder against an accused person. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the elements of the offence of murder were listed as follows:-(a)death of the deceased occurred;(b)the accused committed the unlawful act which caused the death of the deceased; and(c)the accused had malice aforethought.

17. It is trite that the prosecution bears the burden of proving every element of the offence an accused person is charged with and in this case, prove that the accused herein murdered the deceased (see Woolmington v DPP (1935) AC 462).The standard of proof which was required of the prosecution is that of “beyond any reasonable doubt” (See Miller v Ministry of Pensions, [1947] 2All ER 372).The question therefore is whether the above ingredients were proved to the required standards?

18. As for the death of the deceased, the evidence by PW7 was that the cause of death was as a result of cardio respiratory arrest secondary to internal hemorrhage chest injury inflicted by a sharp object. It is my considered view therefore that, the death of the deceased was indeed proved by the prosecution.

19. As to whether the death was caused by unlawful acts, PW7 formed the opinion that the cause of death was as a result of cardio respiratory arrest secondary to internal hemorrhage chest injury inflicted by a sharp object.

20. Under Article 26 of the Constitution of Kenya 2010, right to life is protected 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 or under justifiable circumstances such as self-defence or defence to property. (See Guzambizi Wesonga v Republic [1948] 15 EACA 63) and also Sharm Pal Singh [1962] EA 13).The cause of the death of the deceased herein was definitely not excusable or authorized by law and thus the same was unlawful.

21. As to whether the accused committed the unlawful act which caused the death of the deceased, having perused the prosecution’s evidence, it is my considered view that no prosecution witness saw the accused murder the deceased. However, the evidence of PW1 places the accused person at the scene of the crime. This is so given that PW1 was the wife of the accused herein in as much as they had separated. The accused on the other hand testified that PW1 is his wife and that their relationship was strained. In my view, PW1 and the accused having stayed together and related closely as husband and wife, it could not have been difficult for PW1 to recognize the accused person’s voice.

22. Further, PW1 stated that she managed to identify the accused person during the time that he was beating her at the scene. I believe the evidence of PW1 being that of recognition and not identification of a person who had related with the accused very closely for a period of more than three years. [See Turnbull & others (1976) 3 ALL ER 549]. The lingering questions to the facts of the case in particular include: For how long did the witnesses have the accused person under observation? At what distance? In what light? Was the observation impeded in anyway, such as by passing traffic or a press of people. Had the witnesses ever seen the accused persons before or how often? In the present case, it’s logical to conclude that the recognition of the accused is not a fabricated story by the PW1. It is a case of sound evidence that goes to satisfy the criteria of consistency and credibility to prove the accused person was at the scene.

23. However, though PW1 testified that the accused was at the scene, there is no direct evidence to connect the accused with the offence he is charged with as neither PW1 nor any other witness witnessed the accused the accused inflicting any injury on the deceased. To that extent, the case of the prosecution is heavily hinged on circumstantial evidence.

24. The Court of Appeal in Erick Otieno Meda v Republic [2019] eKLR while discussing the defence of alibi laid down rules to be applied in considering the defence of alibi and the Learned Judges of Appeal held as thus;-“23. The comparative decisions cited above are persuasive and espouse good law which we adopt herein. In considering an alibi, we observe that:An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.(d)The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail.[See Mhlungu v S (AR 300/13) [2014] ZAKZPHC 27 2014].

25. The only circumstantial evidence tending to link the accused person is that of PW1, a former wife of the accused person who through her testimony placed the accused at the scene of crime. This is so since after PW1 had left the scene, the accused person thus remained with the deceased of which the deceased body was later discovered near the tea centre. In this regard, the law presumes that where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming, there is no room for acquittal. [See Republic v E.E.K. [2018] eKLR; Moses Jua v The State (2007) LPELR-CA/IL/42/ 2006].

26. Having been placed at the scene of the incident as the person who was last seen with the deceased before he died, the accused had a duty to give an explanation of how the deceased met his death, or alternatively how they parted company. [See Republic v E.K.K [2018] eKLR].

27. However, the accused raised the defence of alibi to the effect that he was not at the scene of crime on the material date. The burden of proving the falsity of the defence of alibi rests on the prosecution. [See Victor Mwendwa Mulinge v R [2014] eKLR].

28. In the instant case, the said defence was not raised during the prosecution’s case to allow it time to disprove the same. Further, the accused person’s alibi was contradicted by the evidence of his own mother who told the court that he spent that night at their home and that she saw him the following morning. On his part, the accused person told the court that he spent the material night at Murang’a. The defence of alibi by the accused is not plausible and the same was an afterthought. [See Republic v Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA, 145].

29. As to whether the accused had malice aforethought, malice aforethought is the mental element (mens rea) of the offence of murder. Section 206 of the Penal Code defines it as follows;206. Malice aforethought shall be deemed to be established by evidence proving 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.

30. The Court of Appeal set out the test of determining whether the prosecution has established its case against an accused based on circumstantial evidence in the case of Abanga alias Onyango v Republic CRA NO. 32 of 1990 (UR) in the following terms:a)The circumstances from which an inference of guilt is sought should be drawn and must be cogently and firmly established.b)The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused person.c)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.”[See also Simon Musoke v R {1958} EA 71].

31. From the foregoing analysis, I find the accused guilty of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code and he is convicted accordingly.

32. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 20TH DAY OF JULY, 2022. L. NJUGUNAJUDGE......................... for the Accused......................... for the State