[2023] KEHC 25153 (KLR)

Republic v Ndege (Criminal Case 27 of 2018) [2023] KEHC 25153 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25153 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case 27 of 2018

LW Gitari, J

November 7, 2023

Between

Republic

Prosecutor

and

Julius Kithaka Ndege

Accused

Judgment

1. The accused person is charged with the murder of one John Kinyatta Ndatho (hereinafter referred to as “the deceased”) contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 of the Law of Kenya). The particulars of the offence as per the Information dated 21st November, 2018 were that the accused committed the said offence on 20th October, 2018 at Kioru Village, Ntoroni Location, Tharaka North Sub-County within Tharaka Nithi County.

2. The accused person denied the charge and a plea of not guilty was entered against him. The matter then proceeded to full trial with prosecution presented seven (7) witnesses. The accused was then put on his defence and he testified and called one (1) other witness.

The Prosecution’s Case 3. PW1, Joyce Kanini Gaichu, is the wife to the deceased and a big sister to the accused (same mother). It was her testimony that on the material day, she was at home with the deceased and her three children. That the said homestead was in the land of PW1’s father and that the accused also has a house in their father’s land. The two houses are 200 metres apart. According to PW1, the accused person came to their home at around 7 p.m. on the material day and greeted them. He then asked the deceased what he was doing in their homestead and not taking his family to his own home. At this point, PW1 saw the accused pick a huge stone with two hands, and threw it at the deceased. The stone hit the deceased on the stomach and rolled and hit on the legs. The deceased then stood, took a panga which was on the ground and hit the accused on the head using the flat side of the panga. It was PW1’s evidence that the accused then tried to take for the panga from the deceased and that is when they wrestled and fell.

4. PW1 then called her sister Grace Kambura (PW2) to come and assist as PW1 was unable to take the panga from the accused and the deceased. Before PW2 came, PW1 managed to take away the panga, and she took it inside the house and locked it there. On returning, PW1 found the deceased and the accused were still fighting. PW1 managed to separate them briefly before they got hold of each other and started fighting again. According to PW1, the deceased got overpowered and the accused pinned the deceased down and strangled him while stepping on his head. PW2 then came. PW1 took a cane and hit the accused on the hands and that is when the accused let the deceased free. PW2 assisted the deceased from the ground. The deceased kept on holding his stomach.

5. The accused now turned the fight on PW1 and started slapping her. PW2 tried to stop the accused but the accused advanced on her too and slapped her. PW1 and PW2 then managed to run away. It was PW1’s testimony that the accused even tried to burn a motorcycle that belonged to the deceased by placing pieces of wood and rubbish on the motor cycle. PW1 managed to put out the fire. The accused tried to start the fire again but some people had started arriving at the scene and they managed to stop the accused. The deceased was then taken to Gatithini Dispensary as he had severe pain in his stomach. He was later referred to Marimanti Level 4 Hospital and then to Charia Misssion Hospital where he died on 22nd October, 2018.

6. PW2, Grace Kambura, corroborated PW1’s evidence by stating that the accused is her younger brother, PW is her sister, and the deceased is her brother-in-law. PW1, PW2, and the accused had all built homes on their father’s land. PW2 stated that on the material day at around 7 p.m., she was at home when the accused went and greeted her and stated that he wanted to go to PW1’s house. The accused then left and after a short while, PW2 heard screams from PW1’s home. PW2 went there and she found the deceased and the accused fighting, while PW1 was trying to separate them. She tried assisting in separating them and after they succeeded, the deceased went into the house and the accused started beating PW1. According to PW2, the accused even tried to burn the deceased’s motorcycle but PW1 put the fire off.

7. PW2 then took the accused to her house. The accused was crying and bleeding from his hand. The accused told PW2 that he had held the panga and was cut. On inquiring what had started the fight, the accused told PW2 that it was because he had PW1asked why they had cut down his wide trees. PW2 then assisted the accused to clean the wound on his hand. PW2 then heard a motor cycle entering the homestead. She found it was one Abraham Mauruna who told her that he had come to take the deceased to hospital as he had been seriously injured. The deceased was then taken to hospital where he succumbed to his injuries after two days.

8. PW3, Ian Muthomi, PW1’s son, the deceased’s step son and the accused’s nephew. He recalled that on the material day, the accused went to their home and found them at home with PW3’s siblings, the deceased and PW1. PW3 corroborated PW1’s and PW2’s testimonies that the accused asked the deceased what he was doing there yet he had no children. The deceased said nothing. The accused then took a big stone and hit the deceased on his stomach while the deceased was seated. The deceased and the accused then started fighting. The deceased took a panga and started beating the accused. PW1 started screaming and PW2 came. PW1 and PW2 managed to separate the accused and the deceased and PW2 took the deceased to the house and asked PW3 to lock the house from outside. PW2 then took the accused to her house. After a short while, the accused came out and stated setting the deceased’s motor cycle on fire. PW1 put off the fire and people came and removed the motor cycle from the compound.

9. PW4, Cecelia Kangaria, stated that on the material day at around 7 p.m., she heard his neighbour screaming and calling for help. She responded to the screams and met the accused burning a motorcycle. The crowd that had started to gather carried the motorcycle and took it to PW4’s house. She inquired about the whereabouts of the owner of the motorcycle (the deceased) and was told that he had been locked inside a house. PW4’s neighbour then told her that the deceased had been seriously injured and that they were taking him to hospital. That he saw the deceased before he was taken to hospital and he was screaming in pain and was vomiting. PW4 later came to learn from PW1 that the deceased had died while undergoing treatment.

10. PW5, Edward Chabari Ndatho, the deceased’s older brother. PW5 stated that he received a call from a woman called Kajera Mutegi on 22nd October, 2018. The said Kajera informed him she was in Marimanti Hospital on 21st October, 2018 where she saw PW5’s brother, the deceased herein, had been admitted and that the deceased was later transferred to Charia Hospital. PW5 immediately rushed to hospital to see his brother but was met with the news that the deceased had died that day at 9. 00 a.m. On 27th October, 2018, PW5 attended the post-mortem examination of the deceased’s body at Charia mortuary. He noted that the deceased had an injury on the stomach.

11. PW6, SGT Levi Endege, is a police officer stationed at the D.C.I.’s office Tharaka North He stated that on 25th October, 2018, he was instructed by Chief Inspeatcor Otieno to investigate a case of a serious assault which had been reported at the office by the victim’s wife. PW6 investigated the case and found that the deceased had been assaulted by the accused, taken to hospital and later passed away. Further, that a postmortem examination was done on the deceased’s body and it was established that the cause of the death of the deceased was due to the injuries inflicted on him by the accused who hit the deceased with a stone. On 28th October, 2018, PW6 visited the scene and recovered the stone that had been used to kill the deceased. He also recovered the panga that was used when the deceased and accused were wrestling. PW6 then proceeded to record the statement of the witnesses. He produced the panaga and stone ad P. Exhibits 1 and 2 respectively.

12. PW7, Dr. James Kihumba performed the post mortem examination on the body of the deceased. He filled the death certificate. He also filled and signed the post-mortem form which he produced as P.Exhibit 3. He formed the opinion that the caue of death was severe hemorrhage in the abdominal cavity due to perforation following blunt abdominal injury contributing cause of sepsis.

The Defence Case 13. At the close of the prosecution’s case, this Court ruled that the accused person had a case to answer and put him on his defence. The accused testified as DW1. It was his testimony that on 19th October, 2018, he left where he was staying on Igembe Mpeketoni and went to Ntoroni where he lived in his father’s land. He reached at 6. 00 p.m. and was informed that the deceased had cut trees and burnt it into charcoal. According to the accused, the deceased had not married her sister as their relationship was on and off. The following day, he went to his sister’s residence and found her sitting outside her house with the deceased.

14. The deceased asked the deceased why he had cut down the trees and that is when the deceased and the accused started exchanging words. The deceased told the accused that the accused did not own the trees as they were in his father’s land. The accused told him that he (the accused) was the one who planted the trees and so they should share the charcoal equally. It is the accused’s testimony that the deceased then took a panga which he had placed on the seat and hit the accused on the side left side of the neck. That the deceased also cut the accused on the head and a struggle ensued between them. That is when the accused was cut on the head. The accused raised his hand and the deceased cut him between the thumb and the index finger.

15. The struggle between the deceased and the accused ensued further. According to the accused, he held the deceased on the wrist as he was holding a panga on his hand. That they then fell down and the deceased fell with his stomach on a stone used to gride porridge. The accused then ran away to the house of his sister (PW2). PW2 sent for one Mugambi (DW2) who came with one Kirema. They boiled some water and washed the accused’s wounds. The accused slept at her sister’s house and the following day he went to a private clinic where he was treated. The accused stated that he then proceeded to Mpeketoni and after two days, he got arrested. The accused maintained that he did not lift a stone and dropped it on the deceased. He further denied that he beat his sisters. He also denied that he made an attempt to burn the deceased’s motor cycle. According to him, he was very drunk on the material day and he only disagreed with the deceased over the trees that the deceased had cut.

16. DW2 was Abraham Mugambi Musee, a neighbour and cousin to the accused. He is also the immediate neighbour to the home of the deceased and PW1. He stated that on the material day at around 8. 30 p.m., his wife woke him up and told him that his nephew was calling him. He met his nephew outside the house who told him that the accused was calling him. DW2 called his brother Patrick Kilema to accompany him. They then went and met the accused at the house of PW2. According to PW2, the accused’s clothes had blood stains and the accused had sustained injuries on his head, neck, and hand. The injuries were fresh and still bleeding. DW2 inquired on what had happened and the accused told him that he had had a fight with the deceased. They then warmed water which they used to clean up the wounds and the accused said that he would go to hospital the following day. DW2 then went back to his house and did not see the deceased that night. The following day, DW2 did not meet the accused and he later heard that the deceased had died.

Final Submissions 17. It was submitted by counsel for the state that the prosecution proved all ingredients of the offence of murder beyond a reasonable doubt. That the accused was the aggressor who found the deceased peaceful in his home and started attacking him with words and stone. That it was the accused’s brutal conduct that caused the death of the deceased. Further, the prosecution submitted that the aggressive conduct by the accused was well calculated as the deceased was unarmed and in a defenseless sitting position when the accused hit with a stone. That the accused even wanted to burn the deceased’s motorcycle and as such, the actions of the accused prove that he visited the deceased’s home with an intention to do harm.

18. On the defence of provocation and self-defence raised by the accused, the prosecution submitted that the evidence by the prosecution witnesses prove that the accused was the aggressor. That he had many chances to leave the compound of the deceased and his family in peace but did not and instead chose to not only assault the deceased but also PW1. It was further submitted that the doctrine of the heat of the moment which is key to the defence of provocation does not apply in this case. That the issue that the accused found trees had been cut at the deceased’s compound does not equate to heat of the moment as the trees did not belong to the accused and had not been cut at that particular moment. The prosecution thus urged this court to find that all the elements for the offence of murder had been proved to the required standard and to proceed and convict the accused person and sentence him accordingly.

19. On his part, the accused submitted that the evidence of PW4, PW5, PW6, and PW8 is no more than hearsay evidence as none of them witnessed the assault incident. That in law, such evidence is inadmissible and of no evidential value and hence, it should not be relied upon in this case. He relied on the case of Kinyatti vs. Republic Cr. Appeal No. 60 of 1963 (CA) to buttress this position.

20. The accused conceded that the prosecution had proved the fact and cause of death of the deceased. He however submitted that his action of hitting the deceased with a stone were as a result of provocation by the deceased. That the deceased had cut down two big trees of the accused and a fight ensued between them. That the deceased is the one who hit the accused with a panga on the head and that the accused then threw a stone at the deceased in defence of his life and property. Further, it was the accused’s submission that his actions were done in the heat of passion and anger. That the fact that he threw a stone at the deceased and hit him with a single shot without repeating shows that the actions of the accused were not premeditated. The accused thus urged this court to find that he was provoked into acting as he did and that his actions were justified and lawful. Further, that the prosecution had failed to prove that the death of the deceased was unlawful.

Issues for Determination 21. I have considered the evidence adduced by the prosecution and the accused defence. For the prosecution to secure a safe conviction on the charge of murder, it had to prove the following issues:a.That the death of the deceased occurred; and if so,b.That the accused person committed the unlawful act which caused the death of the deceased; and if soc.That the accused the requisite mens rea for murder, that is, malice aforethought

Analysis On proof of fact and cause of the death 22. The death of the deceased has been proved by the evidence of PW5 who identified the body before the postmortem examination was done and by the postmortem report produced by PW7 which confirmed that the cause of death of the deceased was severe hemorrhage in the abdominal cavity secondary to perforation.

On Whether the Accused Committed an Unlawful Act which Cause the Death of the Deceased 23. The accused conceded that the committed the act which caused the death of the deceased. He however maintains that his actions were lawful as they were in defense of self and property.

24. Section 17 of the Penal Code stipulates that:-“Subject to any express provisions of this Code, or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law.”

25. Section 17 of the Penal Code subjects criminal responsibility for use of force in the defence of person or property to the principles of English Common Law, except where there are express provisions to the contrary in the Code or any other Law in operation in Kenya. In Ahmed Mohammed Omar & 5 others v Republic [2014] eKLR the Court of Appeal after discussing several cases among them Palmer V. Republic[1971] A.C. 814, Robert Kinuthia Mungai V. Republic (1982-88) 1 KAR 611, Beckford V. Ford [1987] 3 ALL ER 425, DPP V. Morgan [1975] 2 ALL ER 347, R V. Williams [1987] 3 ALL ER came to the following conclusion in regard the principles relating to self-defence:“It is acknowledged that the case of DPP V. Morgan (Supra) was a landmark decision in the development of the Common Law regarding offences against in that it fundamentally varied the test of culpability where the defence of self defence is raised from an objective test to a subjective one. See also Smith And Hogan's Criminal Law, 13th Edition, Page 331. .....Just as the Privy Council did in Beckford V. R (Supra), we must also dispel the fear that ''the abandonment of the objective standard demanded by the existence of reasonable grounds for belief will result in the success of too many spurious claims of self-defence''. Each case will have to be determined on its own merit and peculiar circumstances.”

26. In the instant case, the testimonies of PW1, PW2, PW3, and PW4 are consistent and corroborated. They point to the culpability of the accused. On the other hand, the accused’s defence is marred with inconsistencies and contradictions which only point to a lack in truth in his evidence. It was the accused’s testimony that he never hit the deceased with a stone. In his submissions, however, the accused changed the narrative and conceded that he threw a stone at the deceased to stop him from charging towards him with the panga he had. The accused also never reported the incident to the police. There is no evidence that he was injured at all as he alleged. Considering the circumstances of this case in totality, it is my view that the accused’s action were unlawful and the same resulted in the death of the deceased.

On Proof that The Deceased had Malice Afterthought 27. Malice aforethought is the mens rea in murder. Section 206 of the Penal Code defines malice aforethought as follows:“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.”

28. In the case of Republic v Tubere s/o Ochen [1945] 12 EACA 63 the court held that an inference of malice aforethought can be established by considering the nature of the weapon used in causing death, the number of injuries inflicted upon the victim, the part of the body where such injury was inflicted, the manner in which the weapon was used, and the conduct of the accused before, during and after the attack. See Republic –v- Mohamed Dachikokane & 7 Others (2014) eKLR where the court held that where malice aforethought was considered as the intention to cause death of grievous harm, knowledge that the act will cause death and intent to commit a felony.

29. The murder weapon in this case was recovered. It was a big stone which the accused found at the scene of the incident. As for the injuries inflicted on the deceased, it was the evidence of PW7 that externally, he notes that the deceased’s eyes had mater and blood. The fingers were blue which indicated that the deceased had bled profusely according to PW7. There was a wound on the left 2nd toe which was dressed and bruises on the left palm. Internally, PW7 noted that there were minimal fluids in the chest. There was no abnormality in the cardio vascular system. The intestines were perforated and there was feacal matters and blood in the abdominal cavity. The anterior abdominal wall had haematoma and the muscles were red indicating presence of injury. Taking into consideration the said injuries, the evidence of PW1 as corroborated by that of PW3 is believable. The deceased was hit on his stomach with a big stone while he was seated down and when he stood up, the stone feel on his foot. In the circumstances, it is my view that the actions of the accused were intended to grievously harm the deceased and even kill him.

30. As for the defence of provocation raised by the accused in his submissions, Section 207 of the Penal Code provides for instances where a defence of provocation may be accepted. The section provides;“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, is guilty of manslaughter only.”Section 208 of the Penal Code defines provocation as follows:“208. (1)The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.(2)When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.(3)A lawful act is not provocation to any person for an assault .(4)An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.(5)An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.”

31. In the case of RC V Republic (2005)2 KLR 239 the Court of Appeal in dealing with a defence of provocation stated as follows“1. Under section 207 of the Penal Code, an unlawful killing in circumstances which would constitute murder would be reduced to manslaughter, but only if the act which causes death is done in the heat of passion caused by sudden provocation. It is a question of fact whether the accused in all the circumstances of the particular case, was acting in the heat of passion caused by grave and sudden provocation when the killing was done.”

32. Applying Section 207 of the Penal Code, this Court must consider all the circumstances of the case. PW1 stated that the accused was not very pleased with the fact that the deceased had moved in with the accused’s sister (PW1) and that they were living in the land that the father of the accused and PW1 had given them. The accused claimed that he was the one who had planted the trees and thus the charcoal produced from burning the trees should have been shared between him and the deceased.The alleged provocation was not sudden and did not happen at the heart of the moment. The evidence led by witnesses and the accused himself is that the trees were cut the previous day and the accused came armed with a panga to ask the deceased to repeat what he said.

33. In addition, it was the accused’s testimony that he went looking for PW1 earlier but did not find her and then came later and found her with the deceased. According to PW2, the accused passed by her house and told her that he had to go see PW1. This was before the confrontation between the deceased and the accused began. It certainly cannot be said that the accused was acting in the heat of passion. In my view, the actions of the accused were premeditated and as such, the element of malice aforethought was proved beyond any reasonable doubt. The defence of provocation is a shambe and is rejected by this court.

Conclusion 34. For the foregoing reasons, I find that the prosecution proved its case against the accused person herein, Julius Kithaka Ndege, to the required standard of beyond any reasonable doubt.The end result is that I find the accused person guilty of the offence murder contrary to Section 203 as read with Section 204 of the Penal Code and I convict him under Section 311 of the Criminal Procedure Code.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 7THDAY OF NOVEMBER 2023. L.W. GITARIJUDGE