[2022] KEHC 15102 (KLR)

Republic v Ndiga (Criminal Case 16 of 2018) [2022] KEHC 15102 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15102 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 16 of 2018

LW Gitari, J

November 9, 2022

Between

Republic

Prosecution

and

John Murithi Ndiga

Accused

Judgment

1. The accused was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code and the particulars of the offence being that on the night of 29th/30th.06. 2018 at Majengo estate in Embu Township within Embu County murdered Caxton Vanaa Musingi.

2. The accused was arraigned in court and pleaded not guilty to the charge and a plea of not guilty entered and hence the case proceeded to a full hearing.

3. PW1, Christine Bahati testified that he received a call from Caroline Kanini who enquired whether she was aware of what was happening. That she informed her that the deceased was admitted in hospital having been attacked by thugs. It was her evidence that she then found someone to relieve her off her duties as she made her way to Embu Level 5 Hospital where she found Jemima Musinge, Eric Mumo, Caroline Kanini and another person whom she didn’t know. She stated that by that time, the deceased was still in ICU and therefore, she did not manage to see the kind of injuries that he had suffered.

4. PW2, Emilio Njagi Ndwiga stated that on June 29, 2018 while he was at work, he saw a person arrive on a motor bike after which the person asked him where he could find Mumo. That he called Mumo who upon coming to where they were, the person who had arrived riding a motorbike, with bitterness, enquired the whereabouts of Mumo’s brother and said that should he get hold of him, he will kill him. That after two weeks, he heard that Mumo’s brother had died; further, he stated that he could not identify the person who came riding the motorbike but he could remember that he was a plump man.

5. PW3, Lewis Mbogo Gitonga stated that on June 30, 2018 the accused called him at 9. 30 p.m. and told him to pick him from Wonder Place Bar and take him to Majimbo. That he took him to his garage near Bimas in Majengo area and then left him there.

6. PW4, Peninah Syombua, stated that she was instructed to investigate a case of assault which had been reported and that before she could proceed, another report on the death of the deceased was also reported. That the deceased who was being treated at Embu Level (5) Hospital had succumbed to his injuries and that the post mortem showed that the death was as a result of injuries occasioned on the head and stomach. She stated that she recorded statements which led to the arrest of the accused herein after she established that the accused and the deceased were relatives and further, they were not only residing in the same house but also working in the same garage within Majengo area.

7. It was her evidence that the accused had disagreements with the deceased in that, while they were drinking, the accused had some women and the deceased informed the accused person’s wife which act ended up infuriating the accused person. That he took a motorbike to go look for the deceased so that he could punish him and he went to Eric Mumo’s place to look for the deceased. On cross examination, she stated that she could not remember the name of the bar where the accused and the deceased were drinking and neither did she visit the said bar. That she did not record statements from the woman who was drinking with the accused and the deceased and further, she did not record any statements from the employees of the bar.

8. PW5, PC Sabina Mutegi stated that on June 30, 2018 she was on duty at Embu Police Station when two ladies Jemima Kareba and Christine Bahati brought an assault victim, Caxton Musingi. That the victim talked with difficulty but he told her that he had been assaulted by a person known to him; she stated that the person was seriously injured and she recorded the report in the OB, gave him a treatment note and then referred them to Embu Level (5) Hospital. That the victim did not mention the name of the person who had allegedly assaulted him and that after two weeks, she learnt that the victim had passed on.

9. PW6 Dr. Moses Njue on behalf of Dr. Wangari produced the post mortem report where he opined that the deceased’s cause of death was as a result of inflammation of the intestinal tissues and the peritorial walls. That the pus caused the infection as a result of which the patient suffered shock. That the injury was due to force trauma to the abdomen and further, the head injury was also significant. He thus produced the post mortem and mental assessment reports which showed that indeed the accused herein was fit to stand trial.

10. At this stage, PW5 was recalled for cross examination and wherein she reiterated that she was on duty when the deceased was brought and that he spoke to the deceased who stated that he was assaulted by people known to him but he did not name them and on re-examination, she stated that the deceased did not state whether he was assaulted by one or many people.

11. The prosecution closed its case and the defence filed submissions and wherein the defence submitted that the prosecution failed to establish a prima facie case against him and urged this court to acquit him. That the prosecution failed to prove malice aforethought on the part of the accused person and there was no evidence tendered to prove that the accused was responsible for the death of the deceased.

12. By a ruling delivered on April 28, 2022, the accused was placed on his defence upon the court finding that the prosecution had established a prima facie case against him.

13. The accused person testified that on June 29, 2018, he did not spend the night at the garage but he spent the night at home and then reported for work the following day. That upon reporting, he did not find the deceased and on the morning of June 29, 2022, he went to the offices of K.R.A. and left there at around 6-7 p.m. That he went for supper at Wonder Prize Hotel and thereafter, took a boda boda to Majimbo where his wife works. It was his evidence that he picked his son and then headed for his place of work and on the way, found the deceased lying about five metres from the entrance of the garage and he asked him why he was lying outside the house and the deceased replied that he didn’t want to be bothered. He stated that the deceased used to drink a lot and at times he could spend some nights on the road; it was his evidence that on the following day, the deceased was still lying outside and upon asking him once more, the deceased answered that he was not feeling well. That, it is at this point that he called the brother- in-law who he requested to come help him take the deceased to the hospital. He reiterated that he did not kill the deceased herein.

14. DW1, Evans Gitau stated that he knew the deceased from the month of June in the year 2018 and that he used to drink a lot and that there were times when he could call his relatives to go pick him.

15. After the close of defense case, the defense filed written submissions while the prosecution chose to rely on the evidence on record. The accused on his part submitted that the evidence adduced by the prosecution did not connect the accused herein to the murder of the deceased.

16. I have considered the evidence tendered before this court by both the prosecution and the defence and the written submissions filed herein. As I have already stated, the accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The offence of murder is defined under section 203 of the Penal Code in the following terms;-“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”[See Republic v Boniface Isawa Makodi [2016] eKLR].

17. From the above definition, it therefore means that for the prosecution to secure a conviction on a charge of murder, it has to prove, beyond reasonable doubt, three ingredients against an accused person. Those ingredients are as follows:-a.The death of the deceased and the cause of death;b.That the accused committed the unlawful act which caused the death of the deceased; andc.That the accused had malice aforethought.[See Anthony Ndegwa Ngari v Republic [2014] eKLR and Johnson Njue Peter v Republic [2015] eKLR].

18. It is trite that the prosecution bears the burden of proving every element of the offence an accused person is charged with and in this case, prove that the accused herein murdered the deceased (See Woolmington v DPP (1935) AC 462). The standard of proof which was required of the prosecution is that of “beyond any reasonable doubt” [See Miller v Ministry of Pensions, [1947] 2All ER 372]. The question therefore is whether the above ingredients were proved to the required standards.

19. Right to life is protected by our Constitution under article 26 and can only be taken away under the circumstances provided therein. It therefore means that every homicide is unlawful unless authorized by law or excusable under the law. InGuzambizi Wesonga v Republic [1948] 15 EACA 63 the court held that;-“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable, it must have been under justifiable circumstances, for example in self-defence or in defence of property.”[See also Sharm Pal Singh [1962] EA 13 and Daniel Nzioka Mbuthi &another v Republic (supra)].

20. The cause of the death of the deceased herein was not excusable or authorized by law and thus was unlawful. According to P.W.6, the cause of death was as a result of inflammation of the intestinal tissues and the peritorial walls; that the injury was due to force trauma to the abdomen and further, the head injury was also significant.

21. As to whether the accused person committed the unlawful acts which caused the death of the deceased herein, no prosecution witness testified that they indeed saw the accused herein killing the deceased.

22. The evidence from the post mortem report clearly shows that the deceased met his death through unlawful acts of assault but there was no link created that the accused person herein was the one responsible.

23. In this case, there is no direct or circumstantial evidence to connect the accused with the death of the deceased.

24. In the case of Republic v Kipkering Arap Koskei &another [1949] 16 EACA 135, the Court for Appeal for Eastern Africa held as follows:“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. The burden of proving the facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”

25. That being the case, it therefore follows that the prosecution did not prove that the accused person herein was the one who caused the death of the deceased; despite having succeeded in establishing the death of the deceased and the cause of the said death. Having failed to do so, it is my considered view that the prosecution failed to prove all the elements of the offence of murder. It will therefore be an academic exercise to interrogate the issue as to whether the prosecution was able to prove malice aforethought.

26. From the foregoing, the upshot of this judgment is that the accused person is hereby acquitted of the charge of murder.

27. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OF NOVEMBER, 2022. L. NJUGUNAJUDGE…………………………………….for the Accused……………………………………..….for the State