[2022] KEHC 14766 (KLR)

Republic v Mwasya (Criminal Case 7 of 2017) [2022] KEHC 14766 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14766 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 7 of 2017

LM Njuguna, J

November 3, 2022

Between

Republic

Prosecution

and

Justus Munyua Mwasya

Accused

Judgment

1. The accused person Justus Munyua Mwasya was charged with offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on May 4, 2017 at Kanjatiri village, Gichera sub-location, Kagaari North location of Embu County murdered Lawrenzia Njeri Njeru. The accused pleaded not guilty to the charge. The prosecution called Nine (9) witnesses in support of their case.

2. PW1, Justa Karimi Njue stated that on May 4, 2017 at around 1700hrs, he received a call from Lawrenzia Njeri who requested her to go to her home and accompany her to meet her boyfriend, the accused herein Justus Munyua Mwasya to collect school fees for her child. That they both proceeded to Kanjatiri and waited for the accused for some time, and when he finally showed up at about 6pm, they greeted each other and started discussing their affairs. She decided to walk ahead and when she looked back she saw them standing conversing about 15 meters away from where she was, but after a short while, she heard Njeri scream calling her name while on the ground; and all the while, the accused was standing there and she could hear bangs. It was her statement that the accused chased her, and she noticed he was armed with a panga. A crowd started running to where Njeri was lying and as result, the accused entered a mango plantation and disappeared. She stated that she had known the accused for about three months. On cross examination, the witness confirmed that there was light although it was not very clear; further, she stated that the murder happened before 1900hrs and that she didn’t see the accused cut the deceased, but she heard the bangs.

3. PW2, Phyllis Wanja testified that on the material day, she received a report from her sister in-law (Wangari) that her sister-Njeri had been cut severally and that they were required to take her to hospital. She went to her parents who live in the same village to inform them of the happening. Her mother (Josephine) and herself, went to the hospital where they found a crowd gathered and from there, she learnt that it was Njeri’s boyfriend who had assaulted her. That PW2 called the accused person to ask for the reasons of his actions and that he told her, it was him who killed the deceased. That she passed the phone to her brother Joseph Kariuki to speak to the accused and in the call, he threatened to kill the whole family for abusing him for having killed his own wife. She stated that she had known the accused for a period of two months prior to the incident, when he visited their home after a quarrel with the deceased.

4. PW3, Catherine Muthoni testified that on May 4, 2017 as she was walking home from the market, she heard someone scream saying,’’ Njeri has been killed’’. That she proceeded to where the crowd was, and upon reaching there, she saw the deceased lying on the road side and bleeding profusely and since it was a bit dark, she managed to see the same using the spot light from her phone. It was her evidence that she called out the deceased but she did not respond. She turned her body and saw a deep cut on her jaw. She sent a boda bodarider to look for a vehicle to take the deceased to hospital and they managed to take her to Karurumo Health Center but she was pronounced dead on arrival. Upon cross examination, she confirmed that she did not know who was responsible for the deceased’s death.

5. PW4, Cpl Francis Kithinji stated that he was informed that a murder suspect had disappeared but he was given the number and the photograph of the suspect. Upon calling the number, it showed that the suspect was in Kitui; that he later realized that the same number was moving from Kitui to Embu and together with his colleagues, they went to Kiambere but they noted that the suspect had diverted his route to Siakago and so they proceeded to Kiritiri/Siakago junction where they laid an ambush. That in the process of searching the vehicles that were coming through the junction, they searched one probox KBQ 313R but failed to find the suspect but on searching the boot, they found the accused herein; thereafter, they handed him over to the OCS. Upon cross examination he stated that the accused was not armed and further that, he did not record statements from the occupants of the said vehicle.

6. PW5, Esther Wanjiru Njagi testified that on May 11, 2017 she went to Kyeni hospital to identify the body of the deceased and was present when the postmortem was conducted.

7. PW6, Livingstone Njiri testified that on the material day, as he was going home, he encountered a crowd that was gathered by the road and upon closing in, he noticed the body of the deceased which was severely cut on the neck, chin and legs. That she could not identify the female who was lying down as she had been severely cut on the neck, chin and legs and so he looked for a vehicle which was used to take the deceased to Karurumo Health Center. On cross examination, he stated that the deceased was married to one Dennis Mukundi but they had since separated.

8. PW7, Dr Moses Maina stated that on May 11, 2017, he performed post mortem on the body of the deceased. That the body of the deceased had multiple injuries on the ribs and on the head which were caused by a sharp object. She had a deep cut on the cervical part (of the neck) that had cut the spinal cord into two. The body was pale, consistent with massive loss of blood and as such, he formed the opinion that the cause of death was cardiac arrest secondary to complete cord transection. On cross examination, he reiterated that the cause of death was cardiac arrest due to complete cord transection as the immediate cause of death although the multiple deep cuts were still capable of causing death on their own.

9. PW8, Joseph Thuo testified that he conducted mental assessment on the accused person and found that he was fit to stand trial.

10. PW9, Nelson Tanshi testified that he received information from Karurumo Health Center that there was a lady who had been seriously injured. He mobilized his team to the hospital where they found the body of a lady with sharp cuts on the head and body (legs). They talked to PW1 who gave them information that she was in company of the deceased when she went to meet the accused herein when he descended on her with a panga. That she raised alarm and when the members of the public came, they found the deceased lying on the road. It was his evidence that they got the number of the accused but all over sudden, it was switched off. That after attending the post mortem, he involved the DCIO from Embu who traced the accused person’s phone and informed him that the accused was on his way to Embu and so they laid a road block and the same led to his arrest and he was handed over to him. Upon interrogating him, he offered to show him where he had hidden the murder weapon of which after searching, they managed to recover it. That he later preferred the murder charges against the accused herein and recorded the statements of some of the witnesses. On cross examination, he stated that they tracked down the accused using safaricom records.

11. The accused was placed on his defence and wherein he gave sworn statement and stated that on the material day, he left to meet his girlfriend, the deceased herein, and arrived at 06. 20 p.m. That they were to talk about their wedding amongst other issues and in the process, three men appeared and after some bouts of argument, he waived a passing vehicle and left the deceased in the hands of the three men. He reiterated that he did not kill the deceased and instead blamed the former husband to the deceased in that, he had allegedly warned of dire consequences should the deceased marry another man. On cross examination, he confirmed that he indeed met the deceased on the material day.

12. DW1 stated that the accused herein was a person known to him as he is his nephew. It was his evidence that the accused person had gone to his place to inform him that he had plans of marrying a lady from Embu. On cross examination, he confirmed that he was not with the accused person on the material day the incident herein occurred, and further, he did not tell him the name of the lady he intended to marry.

13. Directions were given that parties file written submissions and both complied with the said directions.

14. The accused submitted that the prosecution did not prove that he was liable for the death of the deceased given that there was no motivation to do so. That the prosecution did not prove the necessary ingredients of the charge of murder which falls short of proof beyond any reasonable doubt. Reliance was placed on the case of Miller v Minister(1947) ER. This court was therefore urged to find that the accused person under the prevailing circumstances ought to be set free and so it was prayed.

15. The respondent on the other hand submitted that the prosecution proved all the necessary ingredients as mandated for proof of the offence of murder as enumerated in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR. It was its case that though no specific witness saw the accused cut the deceased, that fact alone does not weaken the prosecution’s case for the reason that circumstantial evidence has been adduced by the prosecution to show that indeed the accused caused the death of the deceased herein. Reliance was placed on the case of Republic v Richard Itweka Wahiti [2020] eKLR. That the accused person was placed at the scene by PW1 who knew him so well. In the end, it was prayed that the evidence on record is sufficient to hold the accused person liable for the offence of murder. The court was urged to find so.

16. I have considered the evidence adduced by both the prosecution and the defence. The main issue for determination is whether the prosecution proved beyond reasonable doubt, all the elements of murder against the accused person. These elements are: the fact of the death of the deceased, the cause of that death, that the death was occasioned by an unlawful act or omission, that it was the accused person Justus Munyua Mwasya who caused the unlawful death of the deceased and finally that the accused had malice aforethought when he unlawfully killed the deceased.

17. There is no doubt that there was death of a person in the name of Lawrenzia Njeri Njeru.

18. As to whether the deceased’s death was caused by an unlawful act or omission, Article 26 (1) of the Constitution guarantees every person, the right to life. PW7 conducted the post mortem and prepared a report wherein he formed the opinion that the cause of death was cardiac arrest secondary to complete cord transection. From the evidence adduced herein, this court notes that there was no lawful basis for the aforementioned death. In the circumstances therefore, the court finds that indeed the deceased’s death was unlawfully caused.

19. On whether it was the accused who caused the deceased’s unlawful death, in this case, there is no direct evidence from the prosecution linking the accused to the death of the deceased. The prosecution relied on circumstantial evidence.

20. The Court of Appeal in the case of Pon v Republic (2019) eKLR stated that when faced with circumstantial evidence, a court should consider the following;“Though not direct, circumstantial evidence, as this Court stated in Musili Tulo v Republic Criminal Appeal No 30 of 2013:-“... is as good as any evidence if it is properly evaluated and, as is usually put, it can prove a case with the accuracy of mathematics.”To base a conviction entirely or substantially upon circumstantial evidence, it is necessary that guilt of the suspect should not only be rational inference but also it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the suspect not guilty. This principle has been applied for years in this jurisdiction and the two leading judicial authorities that have stood the test of time are Rex v Kipkerring Arap Koske & 2 Others [1949] EACA 135 and Simoni Musoke v R [1958] EA 71. ………….……… It is settled law that when a case rests on entirely circumstantial evidence, such evidence must satisfy three tests:-(i)the circumstances from which an inference of guilty is to be drawn, must be cogently and firmly established;(ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)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 and none else”

21. It is trite law that a conviction can be founded on the evidence of a single witness. The Court of Appeal in Abdullah Bin Wendo v Rex 20 EACA 166, stated as follows:Subject to certain well-known exceptions it is trite law that a fact may be proved by a testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt from which a Judge or jury can reasonably conclude that the evidence of identification although based on the testimony of a single witness can safely be accepted as free from the possibility of error.

22. In the circumstances therefore, and after looking at the evidence adduced by the prosecution wholesomely, the same provides a tight link and point towards the accused as the one who caused the unlawful death of the deceased. I say so for the reason that PW1 who had accompanied the deceased to meet the accused herein testified that in as much as she did not see the accused herein cut the deceased, she heard the deceased scream and called her name and she could hear the sounds emanating from bangs. That when she went near to check on what was happening, the accused chased her and she noticed that he was armed with a panga. In the same breadth, the evidence adduced by PW7 on how the deceased met her death, is consistent and corroborates the evidence of PW1. [SeeRepublic v Stephen Ekeya [2020] eKLR].

23. In his defence, the accused person admitted that he was with the deceased at Karurumo where he arrived at 6. 20 pm and found her with her friend who testified as PW1. That one of the reasons for the meeting was for him to help the deceased with school fees for her son and the other reason was for them to discuss about their wedding.

24. That while there, three (3) gentlemen came and asked them what they were doing there and the deceased told them that it was not their business to know what they were doing. That they asked him who the deceased was to him and he told them it was not their problem to know who he was to her. That a matatu arrived and he boarded the same to Embu and on his arrival in Embu, he called the deceased on phone to find out if she had arrived safely but she could not be reached. That he kept calling the deceased and it was not until later that he learnt of the death of the deceased.

25. In his defence he sought to discredit the evidence of Phylis Wanja (PW2) who is a sister to the deceased alleging that she was against his relationship with the deceased. It was also his contention that the man who had previously married the deceased had threatened her with dire consequences if the deceased married another man. He also denied that he did show/led the police into recovering the panga that was produced in court as an exhibit.

26. The court has analyzed the evidence of the prosecution witnesses and in particular, that of PW1 vis a vis the defence tendered by the accused person. The evidence of PW1 corroborates that of the accused to the effect that the accused and the deceased met on the material day at Karurumo, Kanjatiri stage and PW1 was there.

27. The accused person and the deceased started discussing personal issues and PW1 walked slightly ahead of them to allow them their privacy to discuss freely but after a while she heard the deceased scream while calling her name and when she went to check on her friend, the deceased, the accused chased her with a panga.

28. A crowd gathered and the accused entered a mango trees plantation and disappeared. She went to the scene and found the deceased had panga cuts on the neck, the jaw, back and on the leg and she was still alive. She was taken to hospital but was pronounced dead on arrival at the hospital.

29. From that evidence, I am persuaded that the accused person is the one who inflicted the injuries that caused the death of the deceased. The deceased and the accused had met on the material day, time and place where the deceased met her death.PW1’s evidence is clear that the accused inflicted the injuries and when she went to help her, he chased her away and he thereafter disappeared to a mango trees plantation. The accused led the police to the same plantation where the panga was recovered and he helped them in recovering the same.

30. If, indeed it is true that, the accused left the deceased at Karurumo with three (3) men as he alleges, one would have expected that he would have gone to check on her the following day to find out if she arrived home safely, which he did not do. The court is also not persuaded that, he could have left her in company of some three men, that hour of the night, yet she was his good friend whom he had intended to marry and they had met to discuss their wedding plans.

31. On whether the accused had malice aforethought when he unlawfully killed the deceased, the Court of Appeal in the case of Peter Kiambi Muriuki v Republic [2013] eKLR reiterated its previous holding regarding malice aforethought in the case of Nzuki v Republic(1993) KLR 171, where it stated that:“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:The intention to cause death;The intention to cause grievous bodily harm;Where the accused knows that there is a serious risk that death or grievous bodily harm will ensure from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed. The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder.(see Hyman – v- Director of Public Prosecutions, {1975} AC 55. ”

32. In the case ofMary Wanjiku Gitonga v R(Nyeri) Criminal Appeal No 83 of 2007 (UR) the Court of Appeal stated as follows:“We are told by counsel that there was no malice aforethought on the part of the appellant; there had been no previous tension between the two and their relationship had been cordial. For our part, we think and are satisfied that the appellant and the deceased must have had a dispute over some issue just before the deceased was killed…. Taking into account all these circumstances, including the fact that the deceased was found lying on his back in the bed wearing only underwear, the logical inference to draw is that the appellant must have attacked the deceased while he was lying in bed. She attacked him using an axe and cut him on the head. Malice aforethought is proved where an intention “to do grievous harm to any person……” is shown.In using the axe to cut the deceased on the head, the appellant as a reasonable person must have known or ought to have known that she would at the very least cause grievous bodily harm to her husband, she ended up killing her.In the circumstances we see no reason to interfere with the appellant’s conviction for murder. The conviction was fully justified by the evidence on record. (Emphasis added).”

33. Taking all the above circumstances into account, I find that there is a clear manifestation of malice aforethought. The nature, severity and multiplicity of the injuries leave no doubt in the mind of this Court that the accused person was determined to end the life of the deceased or to cause her grievous bodily harm. This is covered under Section 206 (a) of the Penal Code. I therefore find and hold that the prosecution proved malice aforethought against the accused person, beyond reasonable doubt.

34. In the end, I find and hold that the prosecution proved all the ingredients of the charge of murder against the accused person beyond reasonable doubt.

35. In the foregoing premises, therefore, I find the accused person guilty of the charge of murder and accordingly convict him.

36. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3RD DAY OF NOVEMBER, 2022. L. NJUGUNAJUDGE……………………………………….…..for the Accused……………………………………………….for the State