[2022] KEHC 13647 (KLR)

Republic v Njeru (Criminal Case 14 of 2018) [2022] KEHC 13647 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13647 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 14 of 2018

LM Njuguna, J

October 3, 2022

Between

Republic

Prosecutor

and

James Muchangi Njeru

Accused

Judgment

1. The accused person herein was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code; the particulars of the offence being that on May 09, 2018 at Embu Township within Embu County unlawfully murdered Titus Kariuki Manzi.

2. Upon arraignment, he pleaded not guilty and a plea of not guilty was entered. The case proceeded for trial and wherein the prosecution called six witnesses who testified in support of its case.

3. PW1 testified that on May 09, 2018 at around 8. 00 a m, he was carrying a luggage on his back while the deceased was pushing a hand cart belonging to the accused. That the accused was demanding Kshs 10. 00 from the deceased and in the process, they started fighting. It was his evidence that the accused person got hold of the deceased and hit his head on the wall of the council market made of iron sheets. That the deceased fell down and was helped up by the county government officials manning the gate; and that he was still alive but died the following day. Upon cross examination, he stated that the deceased had taken the accused person’s handcart without his permission. He reiterated that, indeed, the deceased was taken away alive but reportedly died the following day.

4. PW2 testified that on the material day, he was on duty manning gate “C” at Embu Market. That as him and his colleagues were collecting the gate charges, they heard people shouting and they went to check on what was happening. He stated that he found a crowd gathered and that there was presence of fresh blood on the ground. That upon enquiry, they were told that some young men had been fighting over a handcart and that the injured man had been rushed to the hospital. It was his case that they took the hand cart as an exhibit and thereafter locked it in their store; he further stated that they reported the matter to the police.

5. PW3 stated that on May 10, 2018 at around 2. 00 p m he was on duty at Gachuriri working on someone’s farm. That her sister Tabitha Murima called him and informed him that his brother was admitted at Embu Provincial Hospital. He made it to the hospital only to find that the deceased had passed on. That on May 16, 2018, he went to Embu Hospital Mortuary with one PC Muthama where he identified the body of the deceased to the doctor who performed the post mortem.

6. PW4 stated that on May 23, 2018, he carried out mental examination on the accused person herein and in his opinion the accused was fit to stand trial.

7. PW5 stated that he conducted post mortem on the body of the deceased and on the outward appearance of the body, there appeared blood coming out of the nose and on internal appearance, the respiratory system was normal, the heart was normal, the general urinary system was also normal. On the head, there was a fracture of left sphenoid and ethmoid bones (facial bone); on the left frontal region, there was a frontal brain concussion. He found that the cause of the death of the deceased was head injury base of skull fractures due to blunt force trauma.

8. PW6 stated that he investigated the matter and that he recorded the statements from reinforcement officers of Embu County Government. That he then proceeded to view the body of the deceased where he noted that the face and the back of the deceased were swollen. He stated that from his investigations, he established that the accused had a hand cart which he used to ferry goods at a fee. That on the material date, he discovered that his hand cart was missing and upon searching for the same, discovered that the deceased had it. It was his evidence that a disagreement ensued and as a result, the accused attacked the deceased with punches until the deceased fell down. On cross examination, he stated that the accused asked money from the deceased for using his hand cart and when he was not given, he attacked him.

9. After the close of the prosecution’s case the accused herein was placed on his defence upon the court finding that the prosecution had established a prima facie case.

10. DW1 stated that on the material day, he left home for Kiritiri stage when he learnt that his hand cart had been taken away. That he asked around and found it with the deceased and demanded to know why he had taken the same but to the contrary, the deceased started beating him. That after being hit, the deceased fell down and thereafter the accused left the scene. That the deceased who was drank, fell down and hit his head on the ground. He stated that he was later arrested but was released after two days. That on May 11, 2018, a group of people surrounded him demanding to know where the deceased was, and that they beat him and was only rescued by the police who later arrested him. He stated that he did not know the cause of the deceased person’s death and on cross examination, he stated that he was also partly drank but not as drank as the deceased was. He reiterated that the deceased fell on his own and sustained the fatal injuries.

11. After the close of the defence case, the court gave directions on filing of submissions which the defence filed but the prosecution chose to rely on the evidence on record.

12. The defence submitted that the accused person passed on as a result of the head trauma when he hit his head on the concrete ground. That the accused person did not intend to murder the deceased herein; and that he was only defending himself from being assaulted by the deceased and in the process as already submitted, the deceased hit his head on the concrete ground thus succumbing to his injuries. Thus the accused’s acts were purely an act of self-defence from the assaults from the deceased. That the prosecution’s case is marred with gaps which cannot be amended and that it failed to prove the elements of the offence of murder in that the accused was provoked by the actions of the deceased. The defence therefore urged this court to acquit the accused person.

13. I have considered the evidence presented before this court by both the prosecution and the defence. It is trite that in any charge preferred against an accused person, the prosecution has the duty to prove the elements of the same. (See section 107 of the Evidence Act Cap 80 of the Laws of Kenya. The degree/standard of prove is always that of “beyond any reasonable doubts” [See was Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373].

14. In the instant case, the accused person is facing a charge of murder contrary to section 203 as read with section 204 of the Penal Code. Murder is defined as “when any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” The elements of murder and which the prosecution ought to prove are;a.the death of the deceased occurredb.the death was caused by unlawful acts;c.that the accused committed the unlawful act which caused the death of the deceased; andd.that the accused had malice aforethought.(See Anthony Ndegwa Ngari v Republic[2014] eKLR).

15. The question therefore is whether the prosecution tendered sufficient evidence to prove the above elements.

16. As to whether the death of the deceased occurred, it is not in doubt that the deceased herein died. PW5 testified that he conducted post mortem on the body of the deceased and wherein he formed the opinion that the cause of death was due to blunt force trauma on the base of skull. The body of the deceased was identified by his brother who testified as PW3.

17. As to whether the death of the deceased was caused by unlawful act, PW 5 testified that the death of the deceased was due to blunt force trauma on the base of skull.As such, the death of the deceased herein was definitely caused by acts which are not excusable or authorized by law and thus the same was unlawful. [See article 26 of the constitution and Sharm Pal Singh v R [1962] EA 13].

18. As to whether the accused person committed the unlawful act which caused the death of the deceased, I have gone through the prosecution’s evidence as presented before the court and I note that the prosecution’s evidence as presented, points out that indeed, the accused person inflicted the fatal injuries on the deceased on the May 9, 2018. I note that PW 1 saw the accused hit the deceased person’s head on the wall of the market of the council and PW2 and his fellow security guards were told of what had ensued during the commotion near gate “C” of the council market.

19. The accused person did not deny having a fight encounter with the deceased at the council market but only pleads that the deceased person provoked him by taking his hand cart without his permission. He stated that he was defending himself after he was assaulted by the deceased and in the process, the deceased hit his head on the concrete ground thus causing his death. He further stated that the deceased fell on his own which is not true as the prosecution witnesses vividly recounted how the accused herein assaulted the deceased.

20. As to whether the accused had malice aforethought, this can be discerned from the evidence adduced by the prosecution. Section 206 provides that malice aforethought means: -(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 the death of or grievous harm to some person, whether that person is the person actually 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 not be caused;(c)an intent 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.

21. This being a murder charge, the prosecution had the onus to prove mens rea and actus reus. The actus reus has been established. The mens rea of murder is traditionally called malice aforethought and it connotes an existence of culpability or moral blameworthy on the part of the accused person. In the instant case, could this court infer malice aforethought on the part of the accused herein? In the case of Joseph Kimani Njau v Republic (2014) eKLR the Court of Appeal stated:“In both criminal trials, both the actus reus and the mens rea are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both actus reus and mens rea have been proved to the required standard. In the instant case, the trial court erred in failing to evaluate the evidence on record and to determine if the specific mens rea required for murder had been proved by the prosecution …”In the present case, ….we find that mens rea for murder was not proved. Failure to prove mens rea for murder means that an accused person may be convicted of manslaughter which is unlawful act or omission that causes death of another.”

22. The evidence as adduced by the prosecution established beyond reasonable doubt the act of unlawful killing of the deceased by the accused person but can it be equally said that the same was done with malice aforethought? As already determined, the accused person had a fight with the deceased wherein the deceased got injured and thereafter succumbed to his injuries. In the same breadth, the accused person has submitted that in deed he was drank and was only defending himself from the attacks from the deceased; as such, the defence of self defence and provocation have been fronted by the accused.

23. In the case of Mokwa v Republic [1976] eKLR 1337, the Court of Appeal held that;Self defence is an absolute defence even on a charge of murder unless in the circumstances of the case the accused applied excessive force.[Also see Mungai v Republic [1984] KLR 85].

24. The circumstances as exhibited by the evidence adduced before this court are to the effect that indeed the deceased took the accused person’s handcart without his permission and when the accused person demanded to know why he had to do so, a fight ensued. In my own view, unlike self defence, provocation is not an absolute defence. The post mortem report indicated that the deceased succumbed due to frontal brain concussion as a result of blunt force trauma. The nature and extent of the injuries suffered by the deceased portrays the use of excessive force and therefore, self defence as a defence cannot lie. I am however satisfied that the accused person did not act with malice aforethought and this case, in my view lies within the defence of provocation. [SeeRepublic v Kevin Aboki Onsom [2021] eKLR].

25. Sections 179 of the Criminal Procedure Code stipulates:(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.(2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”See Republic v Irene Kageni [2022] eKLR].

26. From the circumstances of this case, I find the accused person guilty of the offence of manslaughter contrary to section 202 of the Penal Code and I convict him accordingly.It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3RD DAY OF OCTOBER, 2022. L NJUGUNAJUDGE……………………………………….…..for the accused…………………………………………….for the state