[2020] KEHC 966 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIMINAL CASE NO. 26 OF 2017

REPUBLIC.................................................................PROSECUTOR

VERSUS

NANCY NJERI NJOGU ...........................................1STACCUSED

MICHAEL NGENE NJOGU......................................2NDACCUSED

JUDGMENT

1. The two Accused Persons, Nancy Njeri Njogu (1st Accused Person) and Michael Ngene Njogu (2nd Accused Person), are charged with murder contrary to section 203 of the Penal Code as read together with section 204 of the Penal Code. It is alleged that on 10th April, 2017 at Gachie area of Kihara within Kiambu County, the twoAccused Persons assaulted Samuel Ng’ang’a Njoroge (Deceased) who later died from the injuries on the 7th day of June, 2017.

2. The Prosecution’s theory of the case is that the two Accused Persons

– a mother and son – attacked the Deceased because they suspected he and one other person – John Maina Wanyoike (who testified as PW1) -- had influenced the 1st Accused Person’s other son (Paul Kamau Njogu, who testified as PW2) - to take the family car without permission while drunk and caused an accident in the morning of 10/04/2017. The Prosecution alleges that the Deceased died twomonths later of the injuries inflicted on him by the two Accused Persons.

3. The Prosecution called six witnesses to establish its case. The first witness was John Maina Wanyoike. John was a friend of the Deceased and the 1st Accused’s son (Paul, PW2). He testified that on 10/04/2017, he and the Deceased stopped by the 1st Accused

Person’s home. They were, he said, on their way to withdraw some money from an Mpesa shop. They found Paul (PW2) at the homestead where he was washing the 1st Accused Person’s motor vehicle, a Probox Registration No. KBM 952E. Paul overheard their conversation and offered to give them a lift to the shopping centre to withdraw the money.

4. PW1 testified that he, the Deceased and John got into the motor vehicle and drove to Gichagi shopping centre where he withdraw Kshs. 800/-. He said that though it was 7:00am in the morning, they decided to purchase some alcohol from a pub by the name Kaduma Bar. He testified that they took the bottles of beer (Vienna beer) to the car and they drank as they drove back to the 1st AccusedPerson’s homestead. Unfortunately, on the way back, John, who was driving, and who was also drinking, caused an accident, knocking down a mabati fence of a neighbour and slightly damaging both the fence and the motor vehicle. The car stopped in a ditch.

5. PW1 told the Court that they came out of the motor vehicle only to be confronted by the owner of the fence by the name, Mama Njeri. She took the key to the motor vehicle and promptly reported to the1st Accused Person. Following the report, PW1 said that the two Accused Persons and the 1st Accused Person’s husband came in another car and caught up with him and the Deceased as they were walking away from the accident. PW1 testified that the 1st Accused Person was armed with a wooden stick and that she immediately attacked the Deceased, raining several blows with the stick. The Deceased fell and the 1st Accused Person, later on joined by the 2nd Accused Person kept hitting him. Meanwhile, PW1 said that the 1st Accused Person also hit him with kicks and blows on his head and ribs and that he bled from his nose and ears.

6. PW1 said that he clearly saw the two Accused Persons beating the Deceased and that they continued beating him until the husband to the 1st Accused Person intervened and told them to stop. He further said that a crowd had gathered there watching the happenings but no one intervened except a woman by the name Wanja. However, he said that the 1st Accused Person insulted the said Wanja and did not stop her assault on the Deceased.

7. PW1 claimed that after the assault they did not go to the hospital or Police because they feared that the 1st Accused Person had a lot of influence in the area but that he went to Kihara Dispensary after about 10 days. He claimed that he was given OB No. 12 when he reported to Kihara Police Station. He testified that he was not sure if the Deceased had reported to the Police.

8. PW2 confirmed that he took the family vehicle and went with PW1 and the Deceased to Gichagi Shopping Centre where PW1 withdrewmoney and they bought alcohol; and that on their way back he had an accident as he drove the motor vehicle crashing into a fence of Mama Njeri. However, he fell short of saying that he saw the Accused Persons assaulting anyone. He said that after the accident he ran away and did not go back home for about a week. He, however, said that he met with the Deceased and PW1 that evening at Amazon Bar where they drunk alcohol and they discussed how each of them had managed to run away from the accident scene.

9. The Deceased’s mother, Charity Wambui Njoroge, testified as PW3.

She testified that her son came home on 10/04/2017 at around 10:00am and said that he had been beaten by the two Accused Persons. Since the Deceased was in a lot of pain, PW3 told the Court that she told him to go sleep; and that after 3 days, he started complaining that he had pain on his ribs. She said that they bought him some medicine but when the pain persisted, on 23/04/2017, they asked him to go to the hospital where he was treated as an outpatient. Later, PW3 said, his son went for an X-ray and they were told that his upper spinal cord was swollen and was asked to buy a brace. Thereafter, PW3 said, the Deceased started developing severe headaches. When they became too severe, on 07/05/2017, they took him to Kiambu Hospital. He was referred to Kenyatta National Hospital where he underwent an operation on 08/05/2017. However, he never recovered and he died on 07/06/2017.

10. PW4 was Dr. Betty Mburu, a doctor who filled a P3 Form for PW1 on 05/07/2017. She conceded that she had not earlier treated him and that she only filled the form about the injuries based on what PW1 told her. This form was filled after the Deceased had died – more than 3 months after the alleged assaults and in the context of the investigations into the murder. Its probative value was, therefore, quite minimal especially since the doctor admitted that she filled the form based on information she received from PW1 and treatment notes which were, however, not available for production and examination.

11. Chief Inspector Paul Okinda testified as PW5. He testified that the Deceased reported on 23/04/2017 at Kihara Police Post that he had been assaulted on 10/04/2017 by people known to him. He apparently named the two Accused Persons as those who assaulted him. The report was booked as OB No. 12 and he was referred to Kihara Sub-county hospital for treatment. He continued in treatment until his condition worsened and he was taken by his parents to Kiambu Hospital. Later on, CI Okinda told the Court, the parents reported that the Deceased had passed on. Curiously, CI Okinda was unable to confirm if PW1 had reported the assault to the Police as PW1 had claimed. Moreover, OB No. 12 referred to by CI Okinda is the same OB entry number PW1 claimed he was given when he reported to the Police about 10 days after the assault.

12. CI testified that he had later received the 1st Accused Person who went to complain to his office that there were rumours on socialmedia that she had caused the death of the Deceased. Later on, he said that he received some intelligence reports that villagers were planning to attack the home and business premises of the 1st Accused Person so they decided to hold her as a protective measure. However, CI Okinda told the Court that upon investigations he became convinced that the two Accused Persons had assaulted the Deceased and decided to charge them with murder. He resisted the suggestion that he only did it because of pressure from Politicians who attended the burial of the Deceased although he conceded that the politicians made remarks aimed at putting such pressure.

13. The final Prosecution witness was Dr. Bernard Midia a forensic pathologist who performed the autopsy on the body of the Deceased. He testified that he conducted the autopsy on 20/06/2017. He found an African male of good nutrition condition. He saw signs of medical intervention and previous injuries. There was a surgical wound which was stitched on the right side of the forehead and a scar over the left eyebrow. On examination, Dr. Midia told the Court that he concluded that the Deceased died of complications of increased intra-cranial pressured. He produced the post-mortem form as Exhibit 2.

14. On cross-examination, the pathologist explained that he did not find any recent injuries on the body. He found an old scar on the left eye brow which he said he could not tell how old it was; it was, however, not recent. As such, Dr. Midia could not explain the source of the intra-cranial pressure and what specific injury hadcaused it. Whatever the cause, however, it was clear that it was an “old” injury.

15. Put on their defence, both Accused Persons denied ever assaulting the Deceased and PW1. The 2nd Accused Person testified that on 05/04/2017, his brother (PW2) took the motor vehicle without permission and that shortly thereafter they received a report that it had been involved in an accident. He testified that together with his parents and his other brother, Steven, they rushed to the scene where they found PW2 and the other two people had run away from the accident scene. He said that they found a crowd at the scene and that his other brother drove the vehicle which had been involved in an accident to the garage. He denied that there was any altercation at all with the Deceased and PW1 and said that he was not sure why PW1 chose to lie. He theorized that the stories could have been politically motivated since this was in the run up to the 2017 General Elections. Later on, the 2nd Accused Person produced a DVD disc which was played in Court. It contained speeches by politicians – including former Governor Waititu – calling for the arrest and prosecution of a certain woman. The 2nd Accused Person said that the DVD was from the burial of the Deceased and that it was only on that day that the Police came and arrested them.

16. The 1st Accused Person’s testimony mirrored that of her son. She testified that she got a call from Mama Njeri telling her about the accident involving her car which was being driven by PW2. She said that she went to the scene with her husband and the 2nd AccusedPerson where they found a small crowd had already gathered. She said that by that time the three occupants in the vehicle had already fled. She, therefore, denied assaulting any of them.

17. The 1st Accused Person told the Court that two months later, on 21/06/2017, she learnt from a friend that there were rumours on Facebook that she had murdered the Deceased. She went to report to Kihara Police Post. The following day was the day the Deceased was buried and politicians showed up at the burial. That was the day she says she was arrested. On cross examination she said that the Deceased was a neighbour and they had no grudges. She claimed that between the alleged date of the assault and the death of the Deceased, she saw him many times working as a cart pusher.

18. DW3, Simon Njogu Kamau, is the husband to the 1st Accused Person. His narration was essentially the same as that of the two Accused Persons.

19. DW4 was Lydia Njeri. This was the Mama Njeri who was referred to by PW1 and PW2 as well as DW1 – DW3 as the woman whose fence had been damaged by the motor vehicle and who was present when the accident happened. She confirmed as much. She also testified that when the two Accused Persons and DW3 came to the scene, the three occupants in the motor vehicle had already fled. She therefore denied that there was any possibility that the two Accused Persons could have assaulted the Deceased on that day. She testified that she saw the three drive back in the direction oftheir home after the vehicle which was involved in the accident was driven off.

20. The Prosecution hoped to persuade the Court that this evidence establishes all the elements of the offence of murder beyond reasonable doubt. The offence of murder is defined by section 203 of the Penal Code as follows:

Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

21. In order to establish a charge of murder, the Prosecution is required to tender sufficient proof of the following three crucial ingredients:

(1) That death of the victim occurred (actus reus);

(2) That the death was caused by an unlawful act or omission by the Accused Person; and

(3) The unlawful act or omission was actuated by malice aforethought (mens rea).

22. On the other hand, under section 206 of the Penal Code, malice aforethoughtis established, when there is evidence of:

(1) Intention to cause death of or grievous harm to any person whether that person is the one who actually died on not;

(2) 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;

(3) Intent to commit a felony; or

(4) 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.

23. In the present case, there is no question that the death of the Deceased occurred. Dr. Midia, who performed the autopsy, testified as such as did at least two other Prosecution witnesses. The main question that was presented at the trial was what caused the death of the Deceased and whether the Prosecution’s straightforward theory that the Deceased was assaulted by the two Accused Persons on 10/04/2017 and died on 07/06/2017 as a result of the injuries sustained in that assault was proved beyond reasonable doubt.

24. After due and careful analysis of the evidence adduced during the trial, I have come to the considered conclusion that the Prosecution was unable to prove to the forbiddingly high standard of proof required that the two Accused Persons caused the death of the Deceased.

25. There are two major problems with the Prosecution case which prevented it from establishing a case beyond reasonable doubt.

26. First, the whole of the Prosecution case turned on the evidence of PW1 who allegedly saw the two Accused Persons attacking the Deceased.This is the only witness who testified at the trial who claimed that he saw the assault. Indeed, he claimed that he was also attacked and sustained injuries on the same day. It is fair to say that the whole Prosecution case rested on his credibility. Yet, there are some serious questions that are left unanswered by this witness’ account. The following are germane:

(1) One, the witness claimed that there were many other people present when the two Accused Person assaulted them. None of the other people were called to testify. Of particular importance is one eye witness he specifically named as Wanja. There was no explanation whatsoever why this witness was not called to testify. An inference must be drawn against the Prosecution in this regard. See Bukenya & Others v. Uganda [1972] EA 549.

(2) Two, it is rather curious that PW1 did not report the matter to Police or even go for medical treatment on that day. The available evidence suggests that his P3 Form was only filled on 05/07/2017 – after the Police had already started the investigations into the death of the Deceased. While it was claimed that he had reported the assault on 21/04/2017 – two weeks after the attack – the OB extract was not produced. Neither were the treatment notes which were allegedly used to fill the P3Form which would have provided evidence that the report had, indeed, been made on 21/04/2017. Curiously, CI Okinda (PW4) seemed unaware that PW1 had reported to the Police about the attack. More troubling is the fact that OB Entry no. 12 which PW1 claimed represented his report about the attack is the same OB entry number which CI Okinda claimed was for the report by the Deceased. Neither of the two OB extracts were produced in evidence.

(3) Three, while it was claimed that the Deceased reported to the Police the assault sometime in April. However, no evidence to that effect – other than the hearsay testimony of the Deceased’s mother – was available to prove this.

(4) Four, it is instructive that PW2 did not see the alleged assault.

(5) Five, PW2 claimed that he met with the Deceased and PW1 later that evening at Amazon Bar where they discussed what had happened earlier that day. If, indeed, the Deceased had been so fatally assaulted earlier in the day, the evening meeting would not have happened; or at least it would have been discussed. In any event, this piece of evidence is in material contradiction with the evidence of PW1 and PW2 whoclaimed that the Deceased was badly injured and was at home that evening.

(6) Six, it is also telling that the Police did not start investigations and, indeed, did not treat the case as a homicide until the local leaders raised the issue politically during the burial of the Deceased.

27. There is a second reason the Prosecution case does not approach the level of proof required in murder cases: the causation in the case remained too attenuated to yield a conclusion that it was the two Accused Persons who caused the death of the Deceased even if the testimony of PW1 is taken as truth. Differently put, the alleged actus reusdoes not fit with the cause of death tightly enough. The Prosecution needed to demonstrate that no other intervening factors supervened and that the assault by the Accused Persons was the cause of death. To do so, given the period of time it took for the Deceased to pass away, the Prosecution needed to show that the assault was still the controlling factor; and that no other intervening factors came into play. Here, however, any other number of factors could have come into play. For one, PW1 and PW3, in cross examination, testified that the Deceased had an accident.

28. Additionally, the pathologist could only conclude that the cause of death was intra-cranial pressure which had been caused by an

“old” injury. The pathologist was not able to tell how old the injury was and what exactly could have caused the injury. The pathologist could only conclude that the injury was more than a month old.

What is more, the pathologist noted an injury above the right eyebrow of the Deceased indicating that he had an “old” visible injury or scar. Yet, both PW1 and PW3 who claimed they saw the Deceased immediately after the alleged assault said categorically that they did not see any visible injuries on him after the alleged assault. In the circumstances, it is really not possible to say without reasonable doubt that the assault, even if established (and I have already indicated severe doubts about it) is the one that led to the injuries that led to the death of the Deceased.

29. The upshot is that the Prosecution failed to prove its case beyond reasonable doubt both due to lack of credibility of the Prosecution narrative about the alleged assault and failure to establish to the required standard that the alleged assault, even if proved, was the cause of death.

30. This leaves the Court with only one option: it must acquit the Accused Persons of the charges of murder as charged. It hereby so does. Each of the Accused Persons is acquitted under section 322(1) of the Criminal Procedure Court. They shall be set at liberty forthwith unless he is otherwise lawfully held.

31. Orders accordingly.

Dated at Kiambu this 7thday of December, 2020.

……………………………………

JOEL NGUGI

JUDGE