[2023] KEHC 23687 (KLR)

Republic v Ndegwa (Criminal Case 4 of 2018) [2023] KEHC 23687 (KLR) (16 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23687 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Case 4 of 2018

GL Nzioka, J

October 16, 2023

Between

Republic

State

and

Paul Njogu Ndegwa

Accused

Judgment

1. Paul Njogu Ndegwa, the accused herein 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 the 27th day of January 2018, at Tigoni market in Kipipiri Sub-County within Nyandarua County murdered Garrishon Gathu Munywa.

2. The accused pleaded not guilty to the charge and the case proceeded to full hearing. The prosecution called a total of five witnesses whereas the defence relied solely on the evidence of the accused.

3. The prosecution case is that on the material date, 27th January 2018, the deceased, went to Horizon bar at Tigoni. That at the same time the accused was in the same bar drinking in the company of his brother called Majago. That the deceased went to the table of the accused with a glass and served Nyaga’s beer. That the accused pulled the deceased outside the bar having been angered by the conduct of the deceased and beat him up by kicking him in the stomach.

4. That, one by the name of Paul Muriithi Nduchue who saw the accused hit the deceased with his leg on the stomach, went into the bar and called Mr. Tanui (PW3) the owner of the bar who took the deceased and into the bar.

5. That, PW3 Tanui paid Kshs 100 to the Boda Boda rider and the deceased was taken home in the company of Paul Muriithi. That upon arrival at home, he reported to his mother and brothers (PW1) Joseph Maani Munyua and (PW2) Wilson Kiarie Munyua that, he was having stomach pains. He was given pain killers which he took.

6. However, the following day his condition deteriorated, as he vomited everything he drunk or ate. As a result he was taken to hospital at Engineer but passed on as he was undergoing treatment. The matter was then reported to the police station, the accused was then arrested and charged accordingly.

7. At the close of the prosecution case the accused was put on his defence, he told the court he was not in the said Horizon bar on the material date on 27th January 2018. However, on the day the deceased passed on, he was requested by his brothers to assist take him to hospital. That he was paid Kshs 1,000 and took the deceased to hospital. He also assisted in paying for the X-ray as the relatives had no money. After the deceased passed on, he was refunded his money back. Later he was arrested and charged.

8. At the close of the case the parties adopted and relied on the submissions tendered on case to answer. Basically the prosecution submitted that all the ingredients of the offence of murder had been proved and there were witnesses who saw the accused hit the deceased in the stomach. Furthermore the post mortem results supports the prosecution case that, the deceased was hit on the stomach.

9. The respondent on his part submitted that, the prosecution did not adduce any evidence to connect him to the offence. That none of the witnesses called saw him assault or commit the offence.

10. I have considered the evidence adduced by the prosecution and I find that, there is no dispute that, the deceased died of acute peritonitis following trauma gut rupture due to blunt trauma to the abdomen, with the doctor holding that a kick being was a possibility. This was established following the post mortem exercise conducted on the body of the deceased by Dr. Titus Ngulungu on 1st February 2018 at 1730 Hours, and evidenced by the post mortem form produced as Pexh 1).

11. It suffices to note that, the Dr. ruled out a fall as the probable cause of death as the injuries noted on the deceased’s body, include inter alia perforation of the small intestines. Therefore although there is in evidence that, the deceased told the mother that, he fell, the post mortem results revealed otherwise. As such the cause of death is more associated by a third party action, and most likely the kick on the stomach.

12. The very question that remain, is who occasioned the kick on the deceased abdomen or stomach. The prosecution’s five witnesses testified briefly as follows, PW1 Joseph Munyua stated that he first saw the deceased when he was brought home on a motor bike. That he was in the company of one Paul Muriithi, and were saying they had been beaten at the bar. That the following Monday the deceased told him he had fallen. Therefore, this witness did not testify to the events that took place at the bar where the deceased was allegedly assaulted resulting into his death.

13. (PW2) Wilson Kiaria Munyua on his part testified that, he learnt of the deceased sickness when his mother called him to milk the cows as the deceased who usually did the job had stomach ailments. That, when he learnt the deceased was vomiting on taking food, he gave him mara moja pain killers. That, the deceased told him that, he was hit on the stomach by the accused while at Tigoni. That while taking the deceased to hospital, they found the accused at Tigoni area, and he said, they fought with the deceased and would be responsible for the hospital issues. Again it is clear from the evidence of the witness that, he was not at Tigoni in the bar where the incident occurred.

14. The evidence of PW2 that the deceased was hit by the accused was alleged told to him by the deceased who unfortunately cannot confirm yet the accused has denied the same. What is surprising or puzzling is that, PW2 states that, the accused told them he was responsible for the injuries, yet they allowed him to take the deceased to hospital, pay his hospital expenses and when he died, they did not tell the police officers that the accused was to blame so that he could be arrested the same day.

15. Be that as it may, PW3 Njuguna Karoi was categorical in his evidence that he was asleep and did not witness the alleged assault. That, he was only requested to pay Kshs 100 for his fare. The witness therefore did not testify as to who assaulted and/or killed the deceased.

16. PW4 No. 6343 corporal Paskwale Ireri, the investigating officer gave a detailed account of how the police received a report of the death of the deceased and learnt from witnesses that the deceased was hit by the accused on the stomach. The witness testified that, there were two witnesses who were in the bar, who witnessed the incident. One was Nduta and the other Paul Muriithi. That Nduta told the police officers that “the people were drinking in that bar”

17. Further Paul Muriithi told him that he left the bar at 10. 00pm to buy cigarettes. He left the deceased and the accused outside the bar. That he saw the accused kicking the deceased with his leg on the stomach and he fell down. That he went into the bar called Tanui (PW3) they went out, collected the deceased and took him to the bar. That they got him a motor bike which PW3 Tanui paid for and the deceased was taken home.

18. Furthermore, the investigating officer testified that Paul Mwangi who was drinking in the bar, told him that, the accused was seated on his table drinking alcohol. He was with his brother called Majago. That, the accused’s brother was drinking beer called Santana. That, the deceased went to the table, with a glass and served Nyagas beer and the accused pulled the deceased outside having been angered by his conduct where he beat him.

19. From the evidence of the investigating officer, all the three witnesses, Nduta, Paul Muriithi and Paul Mwangi, saw the accused in the bar where the deceased was and/or saw the accused hit the deceased on the stomach. Yet the prosecution closed its case without calling these witnesses or even offering an explanation as to why they were not called as witnesses. It is at that stage that the prosecution case collapsed and offered the defence, the easily available defence of denying having been at the scene of crime.

20. It is not conceivable how the prosecution could omit to call the most critical witnesses. Indeed in cross-examination, the investigating officer remarked that“A person called Mwangi told me he saw the accused kick the deceased. I recorded his statement. I do not know if he testified. It would be very sad to learn he has not testified. Apart from Paul, there was a reveler called Mwangi who saw the incident. He did not testify. But the rider can shed more light.”

21. Yet against all these evidence, the learned prosecutor merely closed the prosecution case. The evidence herein does not place the accused at the scene of crime, even if he may have been there and/or committed the offence

22. Therefore I find that, the prosecution has failed to adduce adequate evidence to connect the accused with the commission of the offence and there is no need to further analyse whether all the ingredients of the charge of murder have been proved. Consequently I find the accused not guilty as charged and I accordingly acquit him.

23. Right of Appeal 14 days explained.

24. It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 16TH DAY OF OCTOBER 2023GRACE L. NZIOKAJUDGEIn the presence of:-Mr. Ndiema for the stateMr. Ngunjiri for the accusedAccused present physicallyMs Ogutu- court assistant