[2022] KEHC 13684 (KLR)

Republic v Njeru (Criminal Case 5 of 2018) [2022] KEHC 13684 (KLR) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13684 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 5 of 2018

LM Njuguna, J

October 11, 2022

Between

Republic

Prosecution

and

Justus Ireri 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 December 19, 2017 at Karuari village, Njeruri sub-location in Kyeni North within Embu County jointly with others not before court murdered Harison Muriuki Kavinda.

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 a total of seven (7) witnesses in support of its case. When he was placed on his defence, the accused gave sworn statement but did not call any witnesses in support of his defence.

3. PW1, Daniel Mukundi Muriuki, a son to the deceased testified that on December 19, 2017 a neighbour by the name Paul went to his home at 0600 hrs to check whether his father was there. Upon checking his house and not finding him, he accompanied Paul and Mama Chiru to a place 500 meters away where they found his father lying in a drainage. He further testified that his father had injuries to the leg and burns to his face and that he was not talking though he was alive and full of mud. He further stated that they put him on a motorbike to his home to change the wet and muddy clothes, then took him to Runyenjes District Hospital for treatment. After treatment, the deceased revealed that he had been assaulted by Ireri and Gatema, people he claimed to know.

4. PW2, Felistas Ndinda Fundi stated that on December 19, 2017 she was at her home when she received a call from her neighbour Rael who asked her to check whether the deceased was at home. That she sent her neighbour Paul to check on the deceased who later confirmed he was not there. Together with Paul and Daniel, they went to the place they were directed and found the deceased lying in a drainage with injuries to his legs and other parts of the body. She stated that after changing the deceased’s clothes, PW1 and PW2 took him to hospital for treatment. That at the scene, the deceased mentioned the name of Ireri and Mugendi as people who beat him. It was her evidence that the deceased had several injuries and that it was not true that he was assaulted by a mob because he was a thief.

5. PW3 Paul Ngoroi Nyaga, a pastor at Siloam Celebration Church where the deceased used to fellowship, stated that while in a queue for treatment at Runyenjes District Hospital, he spotted PW1 who informed him of the happenings. That, he went to the wards where he saw the deceased with several injuries and on asking what happened, the deceased told him it was the issue of the Nyumba Kumi members. And at that very moment, the doctor came in and so they could not talk much, he left the ward but later heard from the wife that the deceased passed on.

6. PW4, Cecilia Muthoni Muriuki a farmer and wife to the deceased testified that on December 19, 2017 she was looking after her ailing mother at her place when she received a phone call from her son Daniel Mukundi (PW1) informing her to go home urgently. That upon arrival, she found her husband in bed with injuries and burns all over his body. She stated that they changed him the clothes which were wet and muddy and took him to hospital where he was admitted. That, while at the ward, the deceased asked her for water which after drinking, he shook his head twice and passed on. However, the deceased never told her the people who inflicted the injuries on him. That on 28. 12. 2017 she identified the body of the deceased to the doctor who performed the post mortem.

7. PW5, Paul Nyaga Njeru, testified that on December 19, 2017, PW2 called and informed him that the deceased had been beaten up and had been discovered in a certain place. That he went to the home of the deceased together with PW2 to give PW1 the information about his father. Afterwards, the three went to the location where the deceased was said to be lying and found him in a drainage. He noted that he had injuries on the head, legs, hands and burns on the face. That thereafter, PW1 and PW2 managed to talk to the deceased and then proceeded to look for a bodaboda to take him to hospital. He returned to the hospital later at 1. 00 pm when he found PW1 talking to the deceased but he did not hear the conversation because he was outside the ward and that the deceased died immediately thereafter. Upon cross examination the witness reiterated that he recorded a statement to the police where he said the deceased was muddy but did not say he was not talking. He stated that he was confused at the time of recording the statement.

8. PW6, Dr. Patrick Kariuki testified that on December 28, 2018, he conducted post mortem on the body of the deceased at Runyenjes Sub-County hospital. That the body blood was settled on mobility, the joints were mobile with the estimated time of death as six days before the post-mortem. That there were minor lacerations on both arm rests and minor bruises on the upper lower libs with a bruise on the frontal lobe. He formed the opinion that the cause of death was intrapleural and intraabdominal haemorrhage secondary to blunt trauma.

9. PW7, Joyce Njiiri, testified that she was the investigating officer and that on December 20, 2017 while perusing the OB within Runyenjes police station, she came across a report of death incident which had been made by Cecily Muriuki (PW4) and that the deceased was found lying in a trench. The witness stated that during the statement recording, PW2 had managed to talk to the deceased while he was in the trench, and had told her that he had been attacked by Justus Ireri and his brother Mukundi. Further, PW1 reported to them that while at the hospital, his father told him that he had been attacked by Justus Ireri and his neighbour Patrick. She arrested the accused herein together with Francis Mugendi and Patrick Kinyua who were mentioned to have been involved in the attack. She went ahead to state that she did not charge the latter two as she could not place them at the scene of crime. The witness stated that she interviewed other persons in the village like Augustine Mugo and Tabitha Nyaga, who mentioned and linked the accused person to the offence. That she settled on the accused herein as she had sufficient evidence to charge him with the offence.

10. 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.

11. DW1, Justus Ireri (the accused person) stated that on December 19, 2017 he went to sleep and at 2 am he heard someone stealing his chicken. He chased him for about 500 meters while shouting mwizi ! mwizi !, and met with Nyumba Kumi members who arrested the alleged thief. That he afterwards went back to the house and continued sleeping and upon waking up the following day, he heard that someone had been found lying on the road and died later. He stated that the deceased was not known to him before and that he got arrested on the January 13, 2018 along with his brother Francis Mugendi and his neighbour Patrick Nyaga who were not charged. On cross examination, the accused told the court that no neighbours responded to his distress call and that he did not know the names of the Nyumba Kumi members who arrested the suspect. He did not know why Francis Mugendi and Patrick Nyaga were arrested. He also told the court that he did not kill Harison Muriuki.

12. After the close of the defence case, directions were given for both parties to file their submissions wherein the prosecution chose to rely on the evidence on record in support of its case. Though the defence counsel prayed for time to file his submissions, he did not comply with the court directions on filing the same.

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 Miller vs Minister of Pensions [1947] 2 ALL ER 372 – 373).

14. For the Prosecution to secure a conviction on a charge of murder, it must prove three ingredients against an accused person. In Anthony Ndegwa Ngari vs Republic[2014] eKLR, the elements of the offence of murder 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.

15. As to whether the death of the deceased occurred, it is not in doubt that the deceased herein died. PW6 and PW7 who saw the deceased’s body with injuries to his legs and other parts of the body and by the post mortem form produced and signed by PW6 that confirms the deceased died of intrapleural and intraabdominal haemorrhage secondary to blunt trauma. The body of the deceased was identified by his wife PW4 on the December 28, 2017 when the post-mortem was carried out by PW6.

16. As to whether the accused person caused the death of the deceased, it is clear that there was no eye witness who testified as to what caused the death of the deceased. However, the prosecution relied on a dying declaration that the deceased made before he died. It was the evidence of PW1, the son of the deceased that when he went to the scene where his father was lying, he found him with injuries on his leg; hand and was burnt on the face. He was still alive and was talking but he was full of mud. He was in the company of Paul Nyaga (PW3) and (PW2). They removed him from the trench where he was and put him on a motor bike to his house where they changed him to clean clothes and took him to Runyenjes District Hospital. That the deceased felt better and told him (PW1) that he had been beaten by Ireri and Gatema. PW1 stated that he knew who Ireri and Gatema were because they were his neighbours.

17. On her part, PW2 stated that she accompanied PW1 and PW5 to the scene where the deceased was lying and he had injuries on the legs and on other parts of the body. They took the deceased to his house where they changed his clothes and later took him to hospital. According to her, the deceased while at the scene gave the names of Ireri and Mugendi as the people who had beaten him up and that he pointed to the house of the accused person. She was categorical that the accused did not mention to her more than two names of his assailants. On cross-examination, it was her evidence that she knew Joseph Ireri Nyaga, James Ireri and Patrick ireri who were also her neighbours. The deceased was also her neighbor.

18. PW5 also accompanied PW1 and PW2 to the scene. It was his evidence that he never heard the deceased talk at the scene and his evidence contradicted that of PW2 who stated that the deceased gave the names of Ireri and Mugendi as his attackers. In fact, his evidence corroborated that of PW1 who stated that at the scene, his father (deceased) was not talking and it is therefore doubtful if the deceased gave the names of the accused and that of Mugendi at the scene as the people who assaulted him.

19. Turning to the evidence of PW1 on the dying declaration, it was his evidence that the deceased gave him the names of Ireri and Mugendi. On cross-examination, he stated that he knew Ireri Kamacha and Joseph Ireri who are his neighbours but he denied knowing James Ireri and Patrick Ireri. On the other hand, the evidence of PW3 when he asked the deceased what had happened when he found him at the hospital, he said it was issues of “Nyumba Kumi members”.

20. From the evidence of PW1 it is clear that his deceased father only gave one name of the people who assaulted him being that of Ireri and Mugendi. What emerges from the evidence of PW1 and PW2 is that there were several people in their neighbourhood going by the name Ireri namely Ireri Kamacha, Joseph Ireri Nyaga, James Ireri and Patrick Ireri. PW1 did not enquire from his father the Ireri he was referring to and who was his assailant. It could have been any of the other people going by the same name.

21. The other evidence that creates some doubts in the mind of the court is the evidence of PW3 and what the deceased told him when he asked him what had happened. He stated that “it was the issues of Nyumba Kumi members”. The deceased did not mention any person by name.

22. When the accused was placed on his defence, he testified that on the December 19, 2017 at 2 a.m. he heard someone stealing his chicken and chased him for about 500 meters while shouting “mwizi mwizi”. He met with the Nyumba kumi people who arrested the said person after which he went back to the house and continued sleeping. He stated that he did not know the person. The following day he heard that someone had been found dead on the road. His evidence corroborates that of PW3 on what the deceased told him about what happened on the December 19, 2017. It should be remembered that this being a criminal case, the burden is always on the prosecution to proof its case beyond any reasonable doubt and not on the accused to proof his innocence.

23. Consequently, I have come to the conclusion that the prosecution has not proved its case beyond reasonable doubt. Accused is found not guilty of the offence of murder and he is accordingly acquitted.

24. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE............for the Accused.............for the State