[2023] KEHC 26271 (KLR)

Republic v Ndung’u (Criminal Case 36 of 2020) [2023] KEHC 26271 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26271 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 36 of 2020

HM Nyaga, J

December 7, 2023

Between

Republic

Prosecution

and

Samuel Kinyanjui Ndung’u

Accused

Judgment

1. The accused Samuel Kinyanjui Ndungu, was charged with the offence of murder contrary to section 203 as read section 204 of the Penal Code.

2. The Particulars of the offence were that on the 13th Day of September, 2020 at Kwa Mbure Village, Maili Tisa, in Nakuru North Sub-County within Nakuru County he murdered Peter Ndungu Kinyanjui.

3. On 2nd June,2021, the charge was read to the accused and he pleaded not guilty and thereafter the trial ensued with prosecution calling a total of seven (7) witnesses in support of its case.

4. PW1, was Mary Wanjiru Ndungu, a widow and mother of the deceased and accused respectively. She testified that she was living with the deceased and the accused. That the deceased was confined in a wheel chair and the accused would help him. She testified that on the material date she had sustained dislocation and she went to Nakuru Shabab for treatment. She left behind the deceased and the accused. The following day on 13th September,2020 she was called by their casual worker one Samwel Mwai around 7a.m saying that he had gone to her place and the deceased was not there, and that he had met the accused person going to buy milk and he informed him that he had seen where the deceased had been placed. She advised him to call the neighbours, and the neighbours said that the deceased head had been cut and it was inside a tank. She went home and found many people. She learnt that her husband’s headless body had been recovered. Thereafter the police officers came, checked around and found the deceased’s head in a tank. They took his body to the mortuary.

5. It was PW1’s further testimony that the accused after finishing Youth Service Training at Gilgil he was posted to Lamu for a course. That in 2004, while he was in Lamu he became mentally ill and he was brought back home. She said the accused was admitted for one month then discharged. She stated the accused would walk at night from Bahati to Nakuru Town and when his condition worsened she took him to Nakuru PGH where the doctors who attended him suspected that he could be taking bhang or injecting himself with drugs.

6. In cross examination, she said the accused was 43 years old and that he was still being treated for mental illness. She said after the incident she talked with the accused who told her that a man and a woman whom he could not identify took the deceased and he thought they were taking him to the hospital. She did not know who killed the deceased.

7. PW2 was DR. Titus Ngulungu. He performed autopsy on the body of the deceased. The body was identified by Ann Nyokabi and Mary Ndungu.

8. He said external examination revealed; Marked pallor on conjunctiva and finger nails.

Swollen feet and edema. The feet had ulcers at the heels and necrotic debri which showed wrinkling and hardening of the skin

4 slash wounds located on the back of the head measuring 60mm and other 90 x 110 m respectively; slash wounds had areas of crossing; upper neck had decapitated at lamp occipital joint; sub occipital trial 30 mm below left ear and 100 m below the chin and 50 mm below the right ear; cut involved all structures of the neck; and the rest of the body had no injuries.

9. Internally lungs were collapsed; there was extensive adhesion evidence of pneumonia(previous) of the left lung; sever trauma of the neck; digestive system severing of oesophagus; multiple fractures on the head; and severed spinal code and column.

10. He formed an opinion that the cause of death was decapitation due to blood loss due to trauma to upper neck in keeping with homicide. It was his further testimony that the weapon used was likely a sharp machete. He produced the post mortem report as P. Exhibit one.

11. PW3 was Ann Nyokabi Ndungu, the accused’s sister. She testified that on 13th September,2020 while at home with PW1. PW1 was called by their worker Samwel Mwai who told her that the deceased had passed away and his body had been thrown in a compost pit. She called the said worker and he confirmed the same. She said on that day the deceased and accused were the ones at home. She travelled with PW1 and on reaching home she saw the deceased body in a compost pit without the head. She said she was told the head was in a tank. It was her further testimony that the accused had mental problem and had been undergoing treatment since the year 2002. She said the accused when on medication was stable and he used to help the deceased.

12. PW4, was Samwel Mwai Maina. He testified that in 2020 he was working as a farm worker at the home of the deceased but left in March,2020. That on 7th September,2020, PW1 called him to go and plant potatoes in her farm. He agreed and on 13th September,2020 he arrived there at 7. 00 am but did not find her. He only found the accused. He asked the accused where the deceased was as he wanted to know where the work was to be done and the accused told him that the deceased had left the previous day with a man and a woman who he could not name. He then called PW1 who directed him where to farm. On reaching the farm, he saw wheel tracks which he recognized as those of the deceased’s wheelchair. He also saw a white cloth which the deceased used to wrap his leg wound with and near the rubbish pit he saw the deceased body that had been beheaded. He called PW1 who alerted him to call the neighbours. He did so then he rushed to Bahati Police station. He said the police came to the scene and they recovered the deceased head in a water tank.

13. In cross examination, he stated that after the accused informed him that the deceased had been taken by a woman and a man he left to go buy milk. He said the accused was not there when he saw the deceased’s body. He said the accused had been treated for mental illness and he was on treatment. He did not know who killed the deceased.

14. PW5 was Joseph Ngure a police officer attached to DCI Nakuru North Sub County. He said on 13th September,2020 at around 8. 00 hours he received a call from DCIO requesting him to accompany him to the scene at Kwa Ngure Village in Maili Tisa concerning a case that had been reported at Bahati Police station vide OB NO 12/13/9/2020. On reaching the scene, they found PW4 and saw the deceased’s body without the head in a pit. They searched for the head and they found it in a water tank. They grilled PW4 who informed them that the deceased was living with the accused who had left shortly before they arrived. They called the crime scene personnel who photographed the scene. He said they did not find the murder weapon and the house was not disturbed. That later, the accused was arrested by P.C Kiboi at Kiambaa Police station. He said the accused claimed that two people came and took his father. They charged the accused with murder as he was the last person to be with the deceased.

15. In cross examination, he said the deceased body was a few meters away from the house and that after the incident the accused fled to Kiambu.

16. PW6 was Chief Inspector Simon Kamare Wahome from Regional DCI Headquarters in Nakuru. He produced 12 photographs of the scene plus the accompanying certificate as P.Exh 2(i)-(xii) and Exh.3.

17. PW7 was PC Michael Kiboi attached to Mwihoko Police Station. He testified that on 13th September,2020 while on duty four men came and reported the incident herein and presented the accused as a suspect. He then rearrested the accused and alerted the O.C.S.

Defence Case 18. DW1 was the accused. He testified that he was living with the deceased and PW1 at their Rural Home in Bahati. However, on 13th September 2020, PW1 was not at home. He stated that he did not know what happened and he was told his father had passed away by the police. He denied killing the deceased as alleged. He said he did not see the deceased’s body and he visited his burial site later.

19. It was his further testimony that at the material time he was on medication. He produced a psychiatric report by Dr. Njau as Dexh-1showing that he is mentally unwell.

20. In cross examination, he confirmed he was the only with the deceased at home and stated that he did not know how he died.

21. PW3, also testified as DW2. She reiterated that the accused has had a psychiatric problem since 2002 and has been under constant medication and treatment. She added that after the incident the accused was later traced in Kikuyu where their grandmother lived.

Submissions 22. Only the counsel for the accused person filed his submissions. She submitted that although the accused was the last person to be seen with the deceased, his defence is that there were some people who took the deceased the previous evening. The counsel argued that if this court finds that the accused committed the offence, then the accused committed the same while suffering from a disease that affected his mind and was incapable of understanding what he was doing or of knowing that he ought not to have acted that way.

23. In buttressing their submissions, the counsel relied on the cases of Leonard Mwangemi Munyasia v Republic [2015] eKLR; Republic V CMW [2018] eKLR; & Wakesho v Republic (Criminal Appeal 8 of 2016) [2021] KECA 223 (KLR)

Analysis & Determination 24. I have considered the evidence adduced herein by both the prosecution witnesses and the defence witnesses. The main issue for determination is whether the prosecution has proved the ingredients of the offence of murder against the accused person beyond reasonable doubt.

25. Section 203 of the Penal Code provides that:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

26. For the Prosecution to secure a conviction on the charge of murder, it has to prove four main elements against an accused person. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the elements of the offence of murder were listed as follows:(a)that the death of the deceased occurred;(b)that the death was due to an unlawful act or omission;(c)that it was the accused who committed the unlawful act or omission which caused the death of the deceased; and(d)that the accused had malice aforethought.

27. On whether there was proof of death and the cause of the said death, the death of the deceased was proved by the evidence of PW1,3,4,5 and 6 all who saw the deceased’s body at the scene of crime. In addition, PW1 and 3, the deceased’s’ widow and daughter respectively identified the deceased body to the doctor(PW2) for post mortem.

28. As to the cause of the deceased’s death, PW2 Dr. Titus Ngulungu produced a post-mortem report as PEX 1 detailing the injuries found on the body of the deceased and his opinion or conclusion on the cause of death was decapitation due to blood loss due to trauma to upper neck in keeping with homicide.

29. On whether the death of the deceased was caused by an unlawful act or omission, the aspect of when an act causing death can be said to be lawful has been recognized from the time immemorial. Article 26 of the Constitution is clear that every person has the right to life and that a person shall not be deprived of life intentionally except as authorized by written law. In Gusambizi Wesanga v Republic [1948] 15 EACA 65 the Court stated:“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 caused under justifiable circumstances, for example in self-defence or in defence of property.”

30. The cause of the deceased death was as stated above. There is no evidence showing that the injuries found on the body of the deceased were self-inflicted or that it was justified in any way under the law. Accordingly, I find and hold that the death of the deceased was caused by an unlawful Act.

31. On whether it was the accused person herein who committed the unlawful act which caused the death of the deceased, there was no direct evidence linking the accused to the death of the deceased. The Prosecution’s case is largely based on circumstantial evidence.

32. In the case of Ahamad Abolfathi Mohammed and Another vs Republic [2018] eKLR, the Court had this to say on circumstantial evidence:“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence.”

33. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.’”

34. Further, the conditions for the application of circumstantial evidence in order to sustain a conviction in any criminal trial have been laid down in several authorities. Suffice to mention Abanga alias Onyango vs Republic CR. App NO. 32 of 1990(UR) in which this court held as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought 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.”

35. In Sawe vs Republic [2003] KLR 364, the Court of Appeal amplified on the above as follows:“In order to justify on circumstantial evidence, 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 his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”

36. The only circumstantial evidence tending to link the accused to the crime was premised on the criminal law doctrine of “last seen with”. The evidence of the prosecution witnesses particularly PW1,3 and 4 was that the accused was the person last seen with the deceased.

37. Under Sections 111(1) and 119 of the Evidence Act:(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecuting, whether in cross-examination or otherwise, that such circumstances or facts exist:Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”“119. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

38. In Republic vs E K K [2018] eKLR the Court held thus and I agree, concerning the last seen with the deceased doctrine:“Regarding the doctrine of “last seen with deceased” I will quote from a Nigerian Court case of Moses Jua V. The State (2007) LPELR-CA/IL/42/2006. That court, while considering the ‘last seen alive with’ doctrine held:"Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.”

39. In Stephen Haruna vs The Attorney-General Of The Federation (2010) 1 iLAW/CA/A/86/C/2009 cited severally by Kenyan Courts, the Nigerian Court of Appeal held that:“The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”

40. In Ramreddy Rajeshkhanna Reddy & Another vs State of Andhra Pradesh, JT 2006 (4) SC 16 the Indian Supreme Court held that:“Even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.”

41. In the present case, and from the evidence of PW1,3 and 4, the accused was the last person ‘to be seen’ with the deceased. The deceased elderly and was wheel chair bound and he required someone to be with him. The person left with him was the accused. The deceased’s body was found the following morning on the farm, several meters away from the house.

42. The accused person was under no duty to adduce and challenge the prosecution’s case but having been the last seen person, he was under a duty to offer an explanation as to how the deceased met his death. The accused herein admitted that he was the last person to be with the deceased although he denied killing him and stated that he did not know how he met his death.

43. PW1 and 4 told this court that the accused told them two people whom he could not identify came and took the deceased, however, this was not the testimony of the deceased in his defence. Shortly before the deceased body was discovered PW4 told court that the accused left for the shop to buy milk. PW5’s evidence that the accused fled the scene after the incident was corroborated by DW2 who told court that the accused was later traced in Kikuyu where their grandmother lived. The accused said he did not know what happened to the deceased and that he never saw his body. From his testimony, it is clear that he failed to offer a concrete explanation as to what happened to the deceased yet he was the last person to be seen with him. In the absence of that explanation, the court is justified in drawing the inference that the accused killed the deceased.

44. In the circumstances, I am satisfied that the prosecution has proved that it was the accused who committed the unlawful act which caused the deceased’s death.

45. On whether the accused had malice aforethought when he unlawfully killed the deceased, under section 206 of the Penal Code, 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 death or grievous harm to some person, whether that person is the person killed or not, accompanied by indifference whether death or grievous injury occurs or not or by a wish that it may not be caused.(c)an intention 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.”

46. The prosecution has a duty to prove malice aforethought on any of the circumstances stated under section 206 of the Penal Code.

47. In the case of Republic vs 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, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack.

48. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi vs R (2013) eKLR: -“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”

49. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango vs R (CACRA No. 32 of 1990) where the Court held:“The question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”

50. In the instant case, the defence holds that the accused was of unsound mind at the time he committed the offence.

51. In order for the accused to plead the defence of mental illness as per the Provisions of Section 12 of the Penal code, the accused should prove he had the mental illness at the actual time of the commission of the offence.

52. I have considered the evidence before me. Both the evidence for the prosecution precisely that of PW1,3 and 4 and that of the defence show that the accused had mental illness. The conduct of the accused has been demonstrated by the evidence of witnesses who testified and bolstered by the Psychiatric report dated 26th May, 2021 by Dr. J.W.Njau that was produced as Defence Exhibit Number 1. The said report indicates that the accused suffers from a chronic psychotic disorder(schizophrenia) and he is on the treatment for the same.

53. I note from the proceedings that the accused was unable to take plea on 2nd of December,2020 as he was declared unfit to do so by a psychiatrist. On 9th December,2020, the accused was committed to Mathare Mental Hospital.

54. It is for the prosecution to prove malice aforethought. My assessment of the evidence is that the prosecution did not prove that the accused killed the deceased intentionally. Their own evidence attests to the fact that the accused was mentally ill. In addition, the evidence of PW1,2 and 4 showed that the accused had a good relationship with the deceased and he used to help him. For unexplained reasons, the accused’s conduct led to the painful death of the deceased. However, from the evidence on record, especially the history of his mental illness, which was not disputed, it is more likely that these actions were as a result of a mental disease. It is thus presumed that the accused either did not know what he was doing at the material time, or that he did not know that what he was doing was wrong.

55. I therefore hold that the accused is guilty of the offence of murder but was insane at the time of commission of the offence.DATED, SIGNED AND DELIVERED AT NAKURU THIS 7TH DAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.Further Orders on Sentence

56. Having made the above findings, I proceed to invoke the provisions of section 166 of the Criminal Procedure Code. It provides as follows;“166. Defence of lunacy adduced at trial(1)Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.(2)When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile order the accused to be kept in custody in such place and in such manner as the court shall direct.(3)The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody.(4)The officer in charge of a mental hospital, prison or other place in which a person is detained by an order of the President under subsection (3) shall make a report in writing to the Minister for the consideration of the President in respect of the condition, history and circumstances of the person so detained, at the expiration of a period of three years from the date of the President’s order and thereafter at the expiration of each period of two years from the date of the last report.(5)On consideration of the report, the President may order that the person so detained be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.(6)Notwithstanding the subsections (4) and (5), a person or persons thereunto empowered by the President may, at any time after a person has been detained by order of the President under subsection (3), make a special report to the Minister for transmission to the President, on the condition, history and circumstances of the person so detained, and the President, on consideration of the report, may order that the person be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.(7)The President may at any time order that a person detained by order of the President under subsection (3) be transferred from a mental hospital to a prison or from a mental hospital, or from any place in which he is detained or remains under supervision to either a prison or a mental hospital.”

57. The court’s powers are as set out in Sections 166(1) and (2) of the Code. The rest of the section applies to other institutions.

58. I therefore direct the accused to be taken to a mental institution for medical treatment. The officer in charge, Nakuru G.K. Prison shall facilitate the transfer of the Accused to a holding facility for persons so held pending further action by other Authorities.

59. A report shall be forwarded to the President as required by law for his action.

60. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 7TH DAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A KipsugutMs Murunga for stateMs Awuor for Mrs Ndeda for the accused