[2023] KEHC 25316 (KLR)

Republic v Njagi & another (Criminal Case 8 of 2019) [2023] KEHC 25316 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25316 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 8 of 2019

LM Njuguna, J

November 15, 2023

Between

Republic

Prosecution

and

Puel George Njagi

1st Accused

Zachary Muriithi Njagi

2nd Accused

Judgment

1. The accused persons were charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the offence are that on 28th February 2019 at Kiangungi sub-location of Runyenjes Sub-County, within Embu County, the accused persons, jointly with others not before this court, murdered Ibrahim Mwaniki Njeru.

2. Upon arraignment, both accused persons pleaded not guilty and a plea of not guilty was entered for each of them. The prosecution called six (6) witnesses in support of its case.

3. PW1, a friend of the deceased and who was declared a hostile witness, stated that on 28th February 2019, he spent the day at work and at around 8:30PM, he went to greet the deceased. That on the way to his house, he met the deceased who told him that he was going to the shop to buy medicine. That he noticed that the deceased had injuries on his forehead. That he escorted the deceased to Kiangungi to buy the medicine but on the way, they were waylaid by a group of twenty people who made them sit on the ground and started beating them and in the process, PW1’ both legs were broken so that he could barely walk.

4. He stated that he did not identify the people who attacked them save for one Mugendi who was his family member but that the deceased was able to identify them. He stated that the assailants released him and retained the deceased stating that they were only interested in the deceased. That the following day, he heard that the deceased had been taken to hospital and had succumbed to the injuries. He stated that he had given his version of the story and the same had been written down by the police although some details were missing in the statement but were narrated in court.

5. On cross-examination, he stated that when he met the deceased coming from the shops, he told him that he had been beaten by his three sisters following a land dispute. That the man called Mugendi was an uncle of the deceased and was part of the crowd that attacked them. That Njoki, a sister of the deceased, is the one who told him what to tell the police and that is what he did. That when they met with the crowd of people, they were tied with ropes but he did not see any of them beating the deceased. That the said Mugendi is not in court as an accused person or a witness.

6. PW2, sister of the deceased, stated that on the fateful day, she was in her house when her teenage son told her that the deceased had been arrested by the Assistant chief and two other people. That she went to the road and found members of the public beating the deceased and she was able to identify them because they are people from her locality. That when she asked why they were beating the deceased, the 1st accused who is the assistant chief and who was armed with sticks and a rungu, told her to go back home. She stated that the deceased was being beating while in the company of PW1, who was later released and they continued beating the deceased. That she moved to a safe distance and watched the whole ordeal which went on from 8:30AM to around Midnight.

7. That after they were done beating the deceased, they carried him to his house and left him there. That PW2 was able to identify the assailants as there was light from spot lights at the scene. She stated that on the same night she went to check on the deceased but he could barely talk and when she returned the next morning, she found him dead. That she did not report the matter at night but went to Kathangari Police Station the next morning and the police refused to record her statement when she named the assistant chief as one of the assailants.

8. On cross-examination, she stated that when the accused persons and other people were beating the deceased, he was not screaming but was pleading with them. She denied knowledge of any other incident of assault on the deceased. That she did not look at the body of the deceased to ascertain whether he had injuries on the forehead. That the title deed to their land belonged to her parents and that she was holding it pending succession but not on behalf of the deceased. She stated that she did not have any grudge against the accused persons.

9. PW3 was the doctor who performed the post-mortem on the body of the deceased. He stated that the deceased had sustained superficial bruises on both knees, bruises on the forehead and the scalp and it had deep cuts on the forehead. The injuries were caused by a blunt object and they were covered with dust. That the deceased also suffered extensive hematoma on the right side of the brain. He concluded that the cause of death was head injuries due to blunt force trauma. He produced the post mortem report and the mental assessment reports authored by his qualified colleague, stating that the accused persons were fit to stand trial.

10. PW4, the OCS Runyenjes Police Station, stated that he was on duty when he received a phone call from the assistant chief through Kathangeri police station informing him of the death of the deceased, who was found dead in his house. That he went to the house where the deceased was found dead and villagers were demonstrating, saying that the assistant chief and Nyumba Kumi elders had assaulted PW1 and the deceased. That they took PW1 to Runyenjes Level 4 hospital before returning to collect the body of the deceased. That when they returned, the irate demonstrators were still at the home of the accused and it took the intervention of the Deputy County Commissioner and the Senior Superintendent of police for the people to calm down.

11. He stated that they went into the house and removed the body of the deceased. That the demonstrating citizens told him that the deceased and PW1 were arrested by the area chief and Nyumba Kumi members on suspicion that they were thieves. That the 1st accused person was arrested on 04th March 2023 and the 2nd accused was arrested later. On cross-examination, he stated that he did not talk to PW1 who was unconscious when he was being taken to hospital. That he arrested the accused persons because the crowd said that the two were involved.

12. PW5 was attached to DCIEmbu East and was the investigating officer in the case. He stated that he gathered the witnesses and recorded statements from them. That he also collected the stick that was found at the crime scene, as presented by the members of the public. That PW2 took him and the other officers to the scene of the crime and photographs were taken. That the accused persons were arrested by members of the public and handed over to PW4. That the 1st accused was linked to the crime by the fact that on the material night, he was on patrol with the Nyumba Kumi members, among whom was the 2nd accused. On cross-examination, he stated that the accused persons were linked to the crime by PW1 and the son of PW2. That the members of the public told him that the deceased and PW1 were habitual thieves. That the stick was given to him by one Mr. Mbithi and that no DNA test was conducted with reference to the stick. He stated that the 2nd accused person was arrested by the members of public. That the deceased was found inside his house and that it was possible that he had been beaten elsewhere and returned to his house.

13. PW6 was the deceased’s nephew and son of PW2 who was living in the same house with the deceased. He stated that on the night of the incident, he was at home with the deceased having supper when they heard a knock on the door. That the assistant chief who was in the company of other people, entered the house and handcuffed the deceased and took him away. That when he asked what the problem was, the assistant chief told him to go and sleep. That he went and told his mother what had happened. He said that there was sufficient light for him to see and identify the assistant chief as he knew him very well before that day. On cross-examination, he stated that PW1 was their neighbor but he did not see him that night. That the 2nd accused was among the people who went to the house of the deceased but he was standing outside the door.

14. At the end of the prosecution’s case, the accused persons were placed on their defense.

15. DW1 was the 1st accused person who stated that on 28th February 2019, he spent the day at work and returned home at around 5:30p.m. where he was with his wife and a young boy. That between 8-9p.m, he was visited by one John Nyaga Muchiri, whom he had sent to Embu to bring him returns from the registrar. That because he was friends and neighbors with John Nyaga Muchiri, they stayed together until around 10PM when he escorted him and then he returned to his house and slept.

16. That he was arrested on 01st March 2019 by the OCS while visiting his aunt. He produced the civil registration returns as evidence, which move was opposed by the prosecution but the court allowed the production of the same vide a ruling delivered on 12th June, 2023. That on 01st March 2019 he received a phone call from a member of staff at his office, informing him about the death of the deceased. That he proceeded to the homestead of the deceased and confirmed the information after he entered the house of the deceased and found him dead on his bed. That he called Kathangeri Police station but he did not go through and was forced to go to the station to report the incident and where he found the Deputy OCS who instructed him to return to the scene.

17. He stated that when he went back to the scene, he met a rowdy mob that accused him of killing the deceased alongside the members of the Nyumba Kumi initiative. That one of the nephews of the deceased, Terevasio Mugendi, told him that the mob was planning to lynch him and that he should hide and so he hid in the house of Terevasio the whole day before he went to his aunt’s place where he called the police and they went for him. It was his testimony that before this incident, he had held the position of area chief for 11 months and the Nyumba Kumi had not been established.

18. He told the court that there was bad blood between him and PW2 over a land dispute and her alcoholism, and he heard that PW2 and PW6 had colluded to implicate him. That PW1 said that he was coached by PW2 on what to tell the court. He added that he had no reason to kill the deceased. On cross-examination, he stated that the forms that were brought to him on 28th February 2019 were undated. That he was not at the scene and he told the police as much but he did not raise the defense of alibi early enough for the police to investigate it. That in his capacity as assistant chief, he could not force the 2nd accused who is his subject, to do something that is illegal.

19. DW2, a friend and neighbor to the 1st accused stated that on 28th February 2019, between 8. 00p.m. and around 10:30p.m, he was at the home of the 1st accused and he was returning some forms to him which he had collected from the DC in Embu. It was his testimony that he stayed with DW1 and even ate supper with his family before leaving to go home around 10:30p.m. That on 01st March 2019, he heard that the deceased had died. That there was no grudge between DW1 and the family of the deceased, but the family always had disputes about land and in the past, another member of the family died following the land disputes. On cross-examination, he stated that even though the forms were not stamped, it was not the first time that DW1 had sent him on the same errand.

20. DW3 is the wife of the 1st accused. She stated that on 28th February 2019, she had harvested maize and DW1 was helping her to carry the maize to the house in the evening. That they finished this task at around 7. 00 p.m. and settled down. That DW2 visited them between 8-8:30PM and left for his house at around 10:30p.m. She said that the 1st accused was at home throughout that evening and that she had never seen him with handcuffs.

21. DW4 was the 2nd accused person. He stated that he has been living in Nairobi since January 2018 and was not a member of Nyumba Kumi initiative. He stated that he was arrested by police at Runyenjes Court where he had gone to attend to a criminal case. That PW1 lied to the court and that he was coached by PW2 on what to say. That he was working in Nairobi as a casual laborer at different construction sites in the company of DW5, but had no documentation for this, given the nature of the job. That when he was arrested, he did not tell the police that he was in Nairobi on the day of the incident.

22. DW5 is a friend and former colleague of the 2nd accused person who stated that he has known the 2nd accused for about 10 years and was aware of the charges leveled against him.

23. DW6 is the wife of the 2nd accused person. She stated that on the day of the incident, the 2nd accused was in Nairobi at work. That a certain man had been found dead and the 2nd accused was arrested in May 2019 in connection with that crime when he had gone to Runyenjes to attend court in a different case. He stated that he had no grudge with the deceased and that he was not a member of Nyumba Kumi.

24. The parties filed their written submissions in this case.

25. The 1st accused person, in his submissions, stated that it was him who reported the death of the deceased to the police and that he has witnesses who proved that he was at home on the evening of the incident. That due to the existing land dispute within the family of the deceased, there was a reason for a member of that family to kill the deceased. That according to Section 203 and 204 of the Penal Code, the elements of the offence of murder have not been proved. He submitted that going by the testimony of PW1, it is evident that PW2 masterminded fabrication of evidence. He relied on the case of Republic v Albert Tirima Ogata (2014) eKLR. He urged the court to acquit him under section 306 of the Criminal Procedure Code.

26. The 2nd accused person submitted that at the time of the incident he was working in Nairobi and was arrested in May 2019, months after the incident. That the testimony of DW6 corroborates his alibi defense and that he was working on invitation of DW2 and so he did not know who the employer was. He stated that the prosecution has made many allegations but has failed to prove them to the required standard in accordance with Section 111 of the Evidence Act. He relied on the case of Pius Arap Maina v. Republic (2013) eKLR and argued that any gaps in the prosecution’s case should be interpreted in favour of the accused person.

27. The Respondent relied on the case of Anthony Ndegwa Ngari v. Republic (2014) eKLR for their argument that the elements of the offence according to Section 203 of the Penal code have been proved beyond reasonable doubt. That PW1, PW2, PW3, PW5 and PW6 all testified with sufficient corroboration, that the deceased died due to injuries inflicted by the accused persons. That the testimonies of PW1, PW2 and PW6 placed the accused persons at the scene of crime and they were well known to the witnesses. Reliance was placed on the case of Republic v. Stephen Sila Wambua (2017) eKLR. The respondent cited Section 21 of the Penal Code and the cases of Njoroge v. Republic (1983) eKLR, Dickson Mwangi Munene & another v Republic (2014) eKLRand Otieno Evans Oduor v Republic (2021) eKLR, where the general sentiment was that several accused persons are liable for murder if they share a common intent to commit the offence.

28. It submitted that the accused persons were all present at the scene and were armed with crude sticks, a whip and metal rod, being fully aware of their mission in the home of the deceased. In the argument for malice aforethought, reliance was placed on the case of Joseph Kimani Njau v. Republic(2014) eKLR. As regards the defense of alibi as raised by the accused persons, it was the respondent’s argument that the same was not introduced early enough for the prosecution to interrogate it, and they cited the case of Erick Otieno Meda v. Republic (2019) eKLR.

29. The elements of the crime of murder are enshrined under section 203 read together with section 204 of the Penal code and also defined by the court in the case of Anthony Ndegwa Ngari v Republic[2014] eKLR where they were listed as follows:a.the death of the deceased occurred;b.that the accused committed the unlawful act which caused the death of the deceased; andc.that the accused had malice aforethought.

30. According to section 109 of the Evidence Act, the prosecution is tasked with the duty of proving these elements to a standard of proof beyond reasonable doubt, a standard that was set out in the cases of Woolmington v DPP (1935) AC 462 and Miller v Minister of Pensions (1947) ALL ER 373.

31. On the first element of proof of death, PW3 produced the postmortem report which detailed the injuries sustained by the deceased and concluded that the deceased died from head injury. It therefore follows that the element of death was proven. The next question is: who caused the injuries?

32. On this second issue, it is upon the prosecution to prove beyond reasonable doubt that the accused persons were responsible for inflicting fatal injuries to the deceased. PW1 testified that he was in the company of the deceased when they were accosted and beaten by the accused persons and others. However, PW1 was declared to be a hostile witness which means that he was biased against the examining party, unwilling to testify or is identified with the adverse party (see the 9th Edition Black’s Law Dictionary). He stated that the statement as provided to the police upon arrest was different from his statement in court and that PW2 coached him on what to say as a witness. In the case of Alowo v. Republic (1972) EA page 324 EACA the court stated:“The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible.”In Batala v. Uganda (1974) EA 402 the said court in page 405 stated:“….the giving of leave to treat a witness as hostile is equivalent to finding that the witness is unreliable. It enables the party calling the witness to cross examine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile, and it can be given a little, if any weight.”

33. The testimony of PW1 is not entirely worthless to this case. In his initial statement as recorded by police, he stated that on the day of the incident, he was asleep in his house when he heard a loud bang on the door. That when he opened, he saw one John son of Ireri Kirangi and Mureithi son of Philip who commanded him to sit down and started beating him with a wooden stick and a whip. That they took him to the house of the deceased and on the way, he saw the 1st accused standing beside the road in his full uniform. That when they reached the house of the deceased, the deceased was also taken and then they were led to the roadside where they started beating them. He stated that he saw the 1st accused walk on top of the deceased while beating him and still being handcuffed. That they released him to go but they continued beating the deceased. That he learned of the death of the deceased the following day.

34. PW2 testified that she watched the whole incident from a distance. That on the night of the incident, she was told by her son that the deceased had been arrested by the 1st accused person. The deceased and PW1 were being beaten at the same time and at some point, PW1 was released. That they continued beating the deceased until around midnight and then they carried him to his house. That PW2 tried to call him but he did not respond. She said that she was able to identify the accused persons as the assailants because they had spot lights. She also identified them in court.

35. PW6 who is the son of PW2 testified that on the fateful night, the 1st accused came to their house where he lived with the deceased, in the company of other people including Philip Muriithi and John Ireri. That the 1st accused went into the house and handcuffed the deceased then took him away. That the tin lamp they were using produced enough light for him to see the people outside the house.

36. In his defense, DW1 stated that on the day of the incident, he was at home with his family and DW2 and they stayed up until around 10:30p.m. when DW2 left to go to his house and DW1 went to sleep. His testimony was corroborated by DW2 and DW3. DW1, the 1st accused person said that he had sent DW2 to bring him some work-related documents from Embu and that DW2 was indeed at DW1’s house to bring the documents. The said documents were returns for civil registration and were produced as exhibits. I have perused the returns forms and noted that the same are dated and stamped, even though there is no indication of the time when the forms were received.

37. The prosecution decried the defense of alibi, saying that the same was brought too late to allow the prosecution to interrogate it. PW6 testified that he saw the 1st accused handcuffing the deceased and taking him away. PW2 was the eye witness who watched whole ordeal and stated that she saw the accused persons among others beating up the deceased, using the light of their spotlights at night. That after the accused persons had taken the deceased back to his house, PW2 went to the house of the deceased and called him but he did not respond. PW2 also testified that she was the first one to find the deceased dead the following day.

38. On the flipside, the defense witnesses said that they were with the 1st accused person in his house at the exact time when the alleged incident occurred. In his defense, the 2nd accused person stated that he was living in Nairobi when the incident occurred. The testimonies of DW5 and DW6 did not do much by way of detailing the whereabouts of the 2nd accused person on the night of the incident besides the fact that the 2nd accused person was working in Nairobi on 28th February 2019. He was arrested in May 2019 by members of the public, according to PW5.

39. In my view, the testimonies of PW1, PW2 and PW6 placed the accused persons at the scene of the crime and their alibis do not check out.

40. Next, the issue of malice aforethought has to be established. This is according to Section 206 of the Penal Code as follows:“(a)An intention to cause death or to do grievous harm to any person whether such person is the person actually killed or not.(b)Knowledge that the act or omission causing death will cause the death of or grievous harm to some person, whether such person is the person 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 be caused.(c)An intent to commit a felony.(d)An intention to facilitate the escape from custody of a person who has committed a felony.”Additionally, in the case of Hyam v DPP (1974) A.C. the Court held that:“Malice aforethought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another the accused knew that it was highly probable that, that act would result in death or serious bodily harm.”

41. According to PW2, the deceased was beaten by a group of people. PW4 stated on cross-examination that he arrested the accused persons because the members of the public said that they were involved. In his initial statement to the police, PW1 stated that him and the deceased were being beaten while tied up together and at some point he was let go, leaving the deceased behind. He stated that the accused persons told him that they were more interested in the deceased. PW5 stated that he was given the stick (murder weapon) by the members of the public but no forensic examinations were done on the alleged stick.

42. The murder weapon was recovered and PW2 stated that she saw the accused persons beating the deceased with a stick. PW2 also testified that she identified the body of the deceased and the injuries he sustained were documented in the post-mortem report. In the case of Rex v Tubere s/o Ochen (1945) 1Z EACA63, Eastern Court of Appeal observed:“In determining existence or nonexistence of malice one has to look at the facts proving the weapon used, the manner in which it is used and part of the body injured.”

43. The required standard of proof in this case is beyond reasonable doubt. In the case of Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 (supra) the court held:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

44. Further, in the case of Elizabeth Waithiegeni Gatimu v. Republic [2015] eKLRit was held thus:“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…… To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

45. A man died. His death was occasioned by fatal injuries inflicted upon him by the accused persons. There is sufficient evidence placing them at the scene at the time when the incident happened. There is an eye witness who testified. In my view, all this evidence combined satisfy this court that the accused persons are culpable.

46. In the premises, I find that the prosecution has discharged the burden of proof beyond reasonable doubt. I therefore find the accused persons guilty of the crime of murder contrary to Section 203 and 204 of the Penal Code} and I do convict them accordingly.

47. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 15TH DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE