[2024] KEHC 16029 (KLR)

Republic v Njenga (Criminal Case 43 of 2019) [2024] KEHC 16029 (KLR) (18 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16029 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 43 of 2019

HI Ong'udi, J

December 18, 2024

Between

Republic

Prosecutor

and

Peter Mbugua Njenga

Accused

Ruling

1. Peter Mbugua Njenga the accused is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars being that the accused on the night of 22nd day of August, 2019 at Mainga Farm area in Rongai sub-county, murdered John Kinuthia Njenga.

2. He denied the charge and the matter proceeded to full trial with the prosecution calling four (4) witnesses who testified before the prosecution closed its case on 16th September, 2024.

3. The prosecution evidence revealed that the accused and deceased were brothers. On 21st August, 2019 PW1 Stephen Muriki Nikiara heard noise from the house of a neighbour called Nehemiah Muchiri. The noise was actually from the home of the Kinuthia’s and Mbugua’s who lived together. PW1 later learnt there were chaos created by Kinuthia (deceased) who was drunk as usual. The deceased left with a panga (EXB 1) to his brother Muchiri’s home from where he continued talking. He met a lady (Mama Stephen) another neighbour whom he asked to check on why there was noise.

4. He left for the market and returned at 8. 00pm and slept. The next day he learnt from Muchiri that Peter Mbugua (accused) had killed the deceased who was his brother. In cross examination he said he never saw the accused assault the deceased.

5. PW2 Naomi Chepkemoi Ngugi is the lady PW1 asked to check on the noise in the estate. It was her evidence that whenever Kinuthia (deceased) was drunk he made noise and chased children. She met the deceased jumping on the road. In cross examination she denied seeing the accused beat the deceased. She also stated that she never saw the accused that day.

6. PW3 No. 112842 P. C Peter Koome testified that he received a murder report from the DCIO Rongai sub county on 22nd August, 2019. There was a suspect who had surrendered himself at the station and he booked him pending further investigations. A panga was recovered from the fence and the suspect whom he identified as the accused, had been arrested. In cross-examination he admitted to not having recorded anything about the panga nor the scene.

7. PW4 Dr. Titus Ngulungu did the post mortem. He found the deceased’s body to have blood loss, wound on the middle bone, two overlapping wounds on back of head with an abrasion on the head; Fracture on the right mandible, injury and bleeding on the brain. The brain injury and bleeding caused the death as per the post mortem report (EXB 1)

8. Mr. Mongeri for the accused filed written submissions dated 4th November, 2024. He raised issues on the weight of the evidence adduced. He submitted that there was no eye witness. Reference was made to the case of Republic v Ismail Hussein Ibrahim [2018] eKLR. Further that the circumstantial evidence adduced was not sufficient to make this court place the accused on his defence.

9. On this point counsel relied on the case of Republic v Emilio Njoka Mwaniki which referenced the case of Republic v Kipkering Arap Koskei & another (1949) 16 EACA 135 where the court 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”.

10. He stressed that there were no circumstances that would point to the accused as the person who caused the deceased’s death to the exclusion of all other persons. That PW1 and PW2 stated that they never saw the accused that day and the deceased was at Muchiri’s home and he was the one carrying the panga.

11. Counsel also submitted that the failure by the prosecution to call crucial witnesses is fatal to its case. He pointed out that Nehemiah Muchiri in whose home the deceased was, ought to have testified to explain what transpired and how the deceased met his death. He also referred to a Mama Stephen a neighbour who was collecting a debt from Muchiri’s homestead. He thus contented that failure to call them meant their evidence would have been adverse to the prosecution case. To support this submission counsel referred to the cases of Peter Nyamu Mutithi v Republic [2021] eKLR and Republic v Silas Magongo Onzere alias Fredrick Namema 2017 eKLR.

12. The prosecution relied on the evidence on record and so did not file any submissions.

13. In a criminal case the prosecution has a duty to present evidence before the court establishing a prima facie case before an accused can be placed on his defence. Section 306(1) of the Criminal Procedure Code provides as follows:“When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or anyone of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty”.

14. In the case of Republic vs Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows:“Prima facie is a latin word defined by Black’s Law Dictionary, 8th Edition as ‘sufficient to establish a fact or raise a presumption unless, disproved or rebutted’.“Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v Republic [1957] E. A 332 at 334 & 335 the court stated as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one, “which on full consideration might possibly be thought sufficient to sustain a conviction”. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence…..It may not be easy to define what is meant by a “prima facie case”. But at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence”.

15. Bearing the above in mind I now move to consider the evidence presented before this court. PW1’s evidence was mere hearsay evidence. He heard noises and he saw children run to the estate. None of these children testified. He then saw the deceased go to the home of his brother Muchiri with a panga. He heard the deceased continue talking. He never went to check. In his evidence he stated:“I learnt they had family conflict”.

16. He did not tell the court whom he learnt all this from. Further the person who allegedly told him this never testified before this court.

17. PW2 only told the court that upon being assigned the task by PW1 she saw the deceased jumping on the road and she left. Prior to that she had seen the deceased going to Nehemiah Muchiri’s and they stood shortly. Nehemiah Muchiri came back to his house followed by Mbugua. She did not tell the court anything about the killing of the deceased.

18. PW3 a police officer told the court how the accused had presented himself to the Rongai police station and confessed to having killed the deceased. Besides stating so, there is no evidence of any other action taken by the police in respect of the alleged confession.

19. Section 25A of the Evidence Act provides:1. “A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of a person’s choice2. The Attorney General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where a confession is not made in court”.

20. Further, the rights of an accused person in respect of confessions are listed under rule 4 of the Evidence Act (out of court confession).

21. It is clear from the record that no confession was ever recorded from the accused. Based on the above provisions of the law it follows that the evidence of PW3 on the issue of confession to the police is of no value to the court in this matter.

22. Finally, the witness Nehemiah Muchiri Njenga whose evidence was very crucial in this case never testified for reasons best known to the investigating officer and the deceased’s family. The record shows that the said Nehemiah Muchiri is a brother to the accused and the deceased. His failure to testify denied the prosecution very crucial evidence, despite the several opportunities given to the prosecution to avail him.

23. Upon analysis of the evidence before this court I find that the evidence adduced only confirmed the death and cause of death of the deceased. This was the evidence of PW4 Dr. Titus Ngulungu. Otherwise the identification of the killer was not established at all. Placing the accused on his defence would amount to an exercise in futility as there is really nothing placed before this court for him to respond to. This court therefore finds no prima facie case established against the accused who I hereby acquit under section 306(1) of the Criminal Procedure Code. He shall be released unless otherwise lawfully held under a separate warrant.

24. Orders accordingly

DELIVERED DATED, AND SIGNED THIS 18THDAY OF DECEMBER, 2024 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE