[2022] KEHC 11653 (KLR)

Republic v Mwarire (Criminal Case 4 of 2019) [2022] KEHC 11653 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11653 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case 4 of 2019

LW Gitari, J

July 21, 2022

Between

Republic

Prosecution

and

Jackson Musyoka Mwarire

Accused

Judgment

Introduction: 1. The accused person herein is charged with the offence of murder contrary to section 203 as read withsection 204 of the Penal Code (chapter 63 of the Laws of Kenya).

2. The particulars of the offence are that on June 13, 2019at Kisasi area in Ueuweni Market, Twantanju Sub-location, Kathangachini Location, Tharaka-North Sub-County within Tharaka-Nithi County, murdered one Mark Mucunku Nkanga.

3. Before being arraigned in court the accused underwent a mental assessment by Erick Bundi a Clinical Psychiatrist and was found fit to stand trial. The accused was then charged and subsequently pleaded not guilty. The matter proceeded to full trial. The prosecution called a total of eight (8) witnesses in support of its case against the accused.

Brief Facts 4. In brief, it was the prosecution’s case that on the material day, the deceased and the accused person together with other members of the public were on a drinking spree in the same place where illicit brew was being consumed. The accused then alleged that the deceased had abused him, and an altercation ensued. It is then that the accused pushed the deceased over a steep slope over a river causing him to sustain serious head injuries. He was rescued by the members of the public from the river where he fell and was rushed to hospital but unfortunately succumbed to the injuries while undergoing treatment. The accused was escorted to the Ap’s Camp by the area manager. The report was made to the police at Tharaka North Sub-County. Investigations were conducted and the accused was then charged with this offence.

5. A summary of the evidence adduced by the prosecution witnesses is as follows:

6. PW1, Joshua Mwikamba Mucee, was a neighbour of the deceased. on the material day at around 4 p.m., he visited a drinking den near Tana River where local brew was being sold. There were many people there. He sat down and asked for a cup of the brew. The deceased was also at the den and was sitting in front of him. The accused later came to the den. After a while, the accused started insulting the deceased stating that the deceased had called him “mkundu”. The deceased then moved from where he was sitting indicating that he was an old man and did not want trouble with a young man. The deceased went and sat next to the river, a place that was far from where he had initially sat. The accused then followed the deceased. When the deceased saw the accused, he stood up. The accused then pushed the deceased. The deceased fell backwards, rolled several times down a steep slope before falling into the river.

7. PW1, PW4, and one William ran to the river and rescued the deceased. They placed him on the riverbank. The deceased had injuries on his face and head. He was groaning and talking incoherently. The other revellers who were on top of the slope restrained the accused from running away. They then called PW5, the area manager, who came and took the accused to a GSU camp. The deceased was then taken to hospital where he passed on while being treated.

8. The testimony of PW1 was corroborated by the testimonies of PW2, PW3, and PW4 who were present at the drinking den on the material day and witnessed what transpired. PW2, Joseph Mwakangi Mugambi, is the deceased’s younger brother. PW3, Lucy Gathao Muthengi, was the deceased’s neighbour and the one who was selling local brew at the den. PW4, Mwithi David Munene, knew the deceased and was among the revelers in the subject drinking den.

9. PW5, Jeremy Mwenda Mzee, was the area manager at the time. He knew the deceased. He went to the scene after receiving a call from one Mercy. On arriving at the scene, he found the said Mercy holding one Grace, the wife to the deceased. They narrated how the accused had pushed the deceased into the river. PW5 thus made a call to officer-in-charge GSU camp and made the report. He then saw a group of about 15-16 people who were holding a person who he came to learn that is the person who was alleged to have pushed the deceased into the river. PW5 realized that the accused could be hurt and he therefore held him and tied him with ropes on his hands. He then took the accused to the G.S.U camp. He then proceeded to the scene with one policeman but on the way he met the deceased being carried by members of the public and had an injury on the back of the head. He was taken to hospital and he later learnt that he passed away.

10. PW6, Benjamin Muthini Muchungu, is the deceased’s son. He was called on the material day and informed that his father ad been involved in an accident. He subsequently went an identified the body of the deceased before a post-mortem examination was conducted. He also met the accused for the first time as he had been taken to the mortuary by police when the postmortem was being performed.

11. PW7, Dr. Nicholas Nkonge, performed the post-mortem examination on the deceased’s body on June 21, 2019. He issued the death certificate, and then filled and signed the post-mortem form which he produced as P.Exhibit 1. After performing the post mortem the doctor formed the opinion that the cause of death was severe head injury secondary from a blunt trauma.

12. PW8, P.C. Christopher Mosop, was the investigating officer in this case. He recalled receiving a murder report on the material day at around 9 p.m. He proceeded to the Gathangacini dispensary where the deceased had been taken. He found that the deceased had already passed away and thus moved the deceased’s body to Chuka mortuary. PW8 then visited the scene and recorded statements from the witnesses. He then re-arrested the accused from the Ap’s camp and charged him with this offence.

13. At the close of the prosecutions, this court found that the accused had a case to answer, and he was put on his defence.

Defence case 14. The accused testified as the sole witness in his support of his defence case. He denied committing the crime. It was his contention that he had been implicated based on his ethnic background. According to him, he never visited the scene on the material day as he went to his kiosk on that day and later went to buy a padlock from the shop belonging to one Muriuki. The accused alleges that he found that the shop was closed and, on his way back home, he was arrested by officers on the ground that he had not carried his identification card.

Issues for determination 15. I have carefully considered the evidence on record. Section 203 of the Penal Codethat creates the offence of murder provides that the offence is committed when a person with malice aforethought causes the death of another person by an unlawful act or omission. In this regard, the prosecution was required to prove:a.The death of the deceased and the cause of such death,b.That the death was caused by an unlawful act or omission on the part of the accused, and if so,c.That there was malice aforethought on the part of the accused.Section 203 of thePenal Code provides:”Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

16. Below is an analysis to determine whether the prosecution proved the ingredients in order to secure a conviction for the offence of murder. The prosecution had a duty to prove the charge against the accused beyond any reasonable doubts.

Analysis a. Proof of death and cause of death 17. Evidence was tendered by PW5, PW6, PW7 and PW8 that they witnessed the lifeless body of the deceased. Their testimonies prove the fact that the deceased, Mark Mucunku Nkanga, is dead. This is corroborated by direct evidence as well as medical evidence. Proof of death in murder cases is mandatory. This is normally proved by a pathologists who performs a postmortem and confirms the fact, issues a death certificate gives an opinion as to the observation on the body and the cause of death.

18. The cause of the deceased’s death was confirmed by the evidence of PW7. He testified that he examined the body of the deceased and noted that the deceased had a depressed and fractured skull at the back of the head. PW7 also noted that there was bleeding on deceased’s head. After the examination, he formed the opinion that the cause of the deceased’s death was severe head injury secondary to blunt trauma. He produced the postmortem form as exhibit-1. I find that the prosecution proved the cause of death and the fact of the death of the deceased.

b. Whether the accused caused the death of the deceased 19. PW1, PW2, PW3 and PW4 were all eyewitnesses who saw the accused pushing the deceased over a steep slope from a cliff. After the push, the deceased fell backwards, rolled several times, before falling into the river. After he was rescued, the deceased was groaning in pain. He later succumbed to his injuries on the same day while undergoing treatment. The testimonies of PW1, PW2, PW3 and PW4, who were eye witnesses gave cogent evidence which show that the fall of the deceased into the river was not accidently as submitted by the defence. The witnesses who were all eye witnesses gave the genesis of the incident and stated that it is the accused who came to the drinking den and alleged that the deceased had insulted him. The deceased moved away but the accused followed him and in a scuffle he pushed him into the river. This happened in broad day light. There was nothing from the testimony of the witnesses to suggest that their judgment was impaired by the brews which they were taking. The action of rushing to rescue the deceased from the river and arresting the accused portray them as being in their normal mental faculties. I therefore see no reason why they cannot be believed. I am satisfied that the deceased met his death from the injuries he sustained after being pushed by the accused. The onus was on the prosecution to prove the fact that the death was caused by an act or omission of another person. The evidence by the four eye witnesses is uncontroverted. It remains the undisputed account given to this court on how the deceased met his death. I find the prosecution proved that it is through the unlawful act or omission committed by the accused with malice aforethought that led to the death of the deceased.

c. Whether there was proof of malice aforethought 20. The question here is whether the circumstances of this case disclosed a proven case of malice aforethought. To do so, it is necessary to restate the true meaning of ‘malice aforethought’. The Court of Appeal in Jennifer Wanjitu Ng’ang’a v Republic[2018] eKLR was categorical that the Penal Codedoes not define ‘malice aforethought’, the indubitable mens rea for the offence of murder. What the Code does at section 206 is list circumstances under which malice is deemed to be established. The said section provides that:“S.206Malice 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.”

21. It was the evidence of PW1, PW2, PW3, and PW4 that after a disagreement arose between the accused and the deceased, the deceased stood and went and sat elsewhere to avoid a brawl. Despite walking away, the accused followed the deceased and pushed him over a rocky steep slope. The accused must have known that by pushing the deceased, as he did, his actions were to lead to the grievous harm of the deceased or even cause his death. Indeed, the actions of the accused caused the deceased sustain serious injuries which he later succumbed to.In the case ofRepublic v Tubere s/o Ochen(1945) EACA 63. “The court held that the inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.”In this case the accused pushed the deceased down a steep slope causing him to fall into the river. The accused must have known that a person falling from the cliff would sustain fatal injuries or even drown in the river. I find the prosecution has established that the accused had an intention to cause death or to cause grievous harm to the deceased. The actions of the accused were also undoubtedly with an intent to commit a felony.

22. In his defence, the accused denied being at the scene on the material day but did not sufficiently remove himself from the events of that day. His defence was mere denial of killing the deceased. In any event, sufficient evidence was led that PW3 was engaging in an illegal trade of selling illicit brew in a hidden location on the material day. The accused raised the defence of alibi. InKiarie v Republic Court of Appeal (1984) KLR, it was held;“An alibi raises a specific defence and an accused person who puts forward alibi as an answer to a charge does not in law thereby assume any burden of providing that answer and it sufficient if an alibi introduces in the mind of a court a doubt that is not unreasonable.”This calls on this court to weigh the alibi against the evidence of the prosecution.In this case the defence is not sound. To start with the accused never put it to any of the witnesses that he was not at the scene. In cross-examination what was put to the witnesses was that the revelers ran helter shelter after police came to arrest them for taking illegal brews. These witnesses denied. The evidence by the witnesses shows that there were no policemen who went to the scene.Secondly the accused put it to the witnesses that he was implicated because he was the only Akamba man at the scene. I find that the defence of alibi is not tenable and cannot possibly be true. The defence of the accused was dislodged by the four prosecution witnesses, that is PW1-4 who placed the accused at the scene of murder. The accused was arrested by the said witnesses at the scene after rescuing the deceased from the river and realizing that the deceased was in serious condition to the serious injuries he had sustained. The evidence of the witnesses was well corroborated and I have no doubt in my mind that they were telling the truth. The defence of accused is a mere fabrication and a sham.The deceased and the accused as well PW1, PW2 and PW4 were among the consumers of illicit liquor. While the testimonies of PW1, PW2, PW3 and PW4 implicated them of a different offence in law, they gave their testimonies, nonetheless. This made the prosecution’s case more believable.

23. In the circumstances, the prosecution proved malice aforethought on the part of the accused person to warrant a conviction for the offence murder.

Conclusion 24. The upshot of the foregoing, in my view, is that the prosecution has proved its case against the accused to the required standard of beyond any reasonable doubt. I therefore find the accused person guilty of the offence of murder and I convict him accordingly under section 322 (1) (2) of the Criminal Procedure Code (cap 75 Laws of Kenya).

DATED, SIGNED AND DELIVERED AT CHUKA THIS 19TH DAY OF JULY 2022. L.W. GITARIJUDGE21/7/2022The Judgment has been read out in open court.L.W. GITARIJUDGE