[2022] KEHC 14687 (KLR)

Republic v Mwaniru (Criminal Case 61 of 2019) [2022] KEHC 14687 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14687 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 61 of 2019

TW Cherere, J

November 3, 2022

Between

Republic

Prosecution

and

Bernard Mwenda Mwaniru

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 July 28, 2019at Thingámburi village, Kiandiu location in Tigania West Sub-County within Meru County murdered Sabina Kaluki Ciataya

2. Accused denied the offence. The prosecution case as recounted by Lawrence Ntongai was that on July 28, 2019 at about 02:00pm, one Kinoti informed him that his brother Mwenda had assaulted and seriously injured his Sabina Kaluki. He went to Miathene hospital and seeing the injuries inflicted on his mother in law Sabina reported the matter to police. Due to the seriousness of the injuries, Sabina was transferred to Meru Level 5 Hospital where she unfortunately died. Grace Kaluki d/o Sabina identified the body of her mother to the doctor that conducted the postmortem on July 31, 2019. She said that one Kinoti informed her that Sabina was assaulted by a neighbour one Mwenda. PC Edwins Odoyo stated that on July 28, 2019, Sabina reported vide OB NO. 02/29/07/2019 that she had been assaulted by Bernard Mwenda Mwaniru and after she succumbed to the injuries, Accused was arrested on July 31, 2019and charged with murder.

3. An autopsy on Sabina’s body was conducted on July 31, 2019by Dr. Chabari. The postmortem form tendered as an exhibit reveals that deceased suffered a cut wound on top of head with incomplete skull fracture, laceration on left arm, cut on right ring finger with fracture and bruise on right shoulder from which the doctor formed an opinion that deceased died of exsanguination due to multiple cut wounds.

Defence Case 4. Accused in her sworn statement stated that on July 28, 2019 at about 01. 00 pm, he rushed to Sabina’s home after hearing screams and found a crowd including his mother and Sabina’s son Karigi. That after Karegi accused him of assaulting Sabina, he went away and was arrested that night and charged after being in police custody for 21 days. His mother stated he was in the crowd that went to Sabina’s home after she heard screams. She stated that Accused found him there and walked away after Karegi accused him of assaulting Sabina.

Analysis and determination 5. 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.

6. 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.”

7. 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 8. The postmortem form PEXH. 1 reveals that deceased suffered a cut wound on top of head with incomplete skull fracture, laceration on left arm, cut on right ring finger with fracture and bruise on right shoulder and died of exsanguination due to multiple cut wounds.

b. Proof that accused person committed the unlawful act which caused the death of the deceased 9. None of the prosecution witnesses stated that they saw Accused assault Sabina. One Kinoti who allegedly informed Lawrence and Grace (the 1st and 2nd witnesses respectively) that Sabina was assaulted by Accused did not testify. The investigating officer’s evidence that Sabina reported on July 28, 2019 that Accused had assaulted him is not factual for the reason that on that date Sabina was admitted in hospital and Lawrence testified that he was indeed the one that made the report to police.

10. It is trite that the prosecutor has, in general, discretion whether to call or not to call someone as a witness. If he does not call a vital reliable witness without a satisfactory explanation, he runs the risk of thecourt presuming that his evidence which could be and is not produced would, if produced, have been unfavourable to the prosecution. (See Juma Ngodia v Republic(1982-88)1 KAR 454).

11. One Kinoti who allegedly informed the 1st and 2nd witnesses that Sabina was assaulted by Accused did not testify. Without the evidence of Kinoti to explain the basis on which he implicated accused. The evidence by the 1st and 2nd witnesses is barely adequate and this court makes an inference that the evidence of Kinoti might have been adverse to the prosecution case.

12. From the foregoing, I find that the prosecution has failed to prove that the injuries that led to Sabina’s death were caused byaccused. The prosecution having failed to prove actus reus’, it would be futile for this court to delve into the issue of malice aforethought.

13. In the end, I have come to the conclusion thataccused is not guilty of the offence of murder Contrary to section 203 as read with section 204 of the Penal Code and he is acquitted.

DELIVERED AT MERU THIS 03 RD DAY OF NOVEMBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAccused - PresentFor the Accused - Mr. Muchomba AdvocateFor the State - Ms. Mwaniki (PPC)