[2023] KEHC 25177 (KLR)

Republic v Njiru (Criminal Case E007 of 2023) [2023] KEHC 25177 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25177 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case E007 of 2023

LW Gitari, J

November 7, 2023

Between

Republic

Prosecutor

and

Morgan Kirimi Njiru

Accused

Judgment

1. Morgan Kirimi Njiru, the Accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 of the Laws of Kenya). The particulars of the offence as contained in the Information dated 10th March, 2023 are that on 24th February, 2023 at Mpiani Village, Weru location within Muthambi sub-county in TharakaNithi County, the Accused unlawfully murdered one Njiru Muga.

2. The Accused denied the charge contained in the aforesaid Information and the matter proceeded to full trial with the prosecution calling a total of seven (7) witnesses in support of its case against the Accused. On the other hand, the Accused testified as the sole witness in his defence. Below is a summary of their respective cases.Brief Facts of the case:On 24/2/2023 at around 6. 30 a.m. the deceased in this case was in his house when he was heard calling his son Martin Kibaara (PW1). Martin Kibaara went to the house of the deceased and found that he was bleeding from a stab wound on the left side of his neck. Blood was also oozing from his mouth. As PW1 was going to his father’s house, he met the accused and he noticed that his hands were heavily bloodstained. The accused told PW1 to go inside and see what his father had done to himself.PW1 entered the house of the deceased and upon enquiring what happened, the deceased told him that it is the accused who stabbed him with a knife. The accused was a son of the deceased and a brother of the PW1. The accused alleged that the deceased had stabbed himself. PW1 looked for a vehicle and escorted the deceased to hospital. The deceased succumbed to injuries. The accused was arrested and charged after the deceased told witnesses that the accused is the one who stabbed him with a knife. The accused was then charged with this offence.

The Prosecution’s Evidence 3. PW1 was Martin Kibaara, the son of the deceased and brother to the Accused. He recalled that on the material day, he woke up in the morning and went to cut grass for cows. At about 6. 30 a.m., PW1’s wife then called him stating that PW1’s father was calling him. PW1 then proceeded to where his father was and met the Accused coming out of their father’s house and who told him (PW1) to go and see what their father had done to himself. According to PW1, the Accused palms were heavily stained. PW1 then went to where his father was and found him lying on the ground with a stab wound on the neck. PW1 asked him (the deceased) what had happened. It was PW1’s testimony that the deceased then told him that it was the Accused who had stabbed him.

4. PW1 then proceeded outside and called his neighbor called Paul. PW1 looked for a motor cycle but the rider they found told him that the deceased could not be carried on a motor cycle. PW1 then went and got a vehicle and proceeded to a police station at Muthambi before taking the deceased to hospital. The deceased was unfortunately pronounced dead upon their arrival at the hospital.

5. According to PW1, the police went to their home and conducted a search but they did not recover the murder weapon. It is PW1’s testimony that he then slept and woke up at 3. 00 p.m. He went to arrange his father house as it was still open and that is where he found a blood stained kitchen knife in the breast pocket of a sweat jacket. PW1 then called the police and informed them that he had recovered the knife that they were searching for. The police then instructed him to take the knife to the police station which he did. Later, PW1 witnessed the conduct of the post mortem on the body of the deceased. According to PW1, the Accused stabbed the deceased over money which he was demanding as proceeds from the sale of land.

6. PW2 was Jane Kathure, a daughter-in-law of the deceased in this case and the wife to PW1. She recalled that on the material day, she woke up at 5. 00 a.m. and prepared the child to go to school before she returned to sleep. That at about 6. 00 a.m., PW1 woke up to go and cut grass for cows while PW2 slept until 6. 40 a.m. when she woke up to go and prepare breakfast. That she then heard the deceased calling for PW1 and decided to go tell him (the deceased) that PW1 was not nearby. That she then saw PW1 approaching and the Accused leaving the house of the deceased. PW2 corroborated PW1’s testimony that the Accused told PW1 to go and see what the deceased had done to himself. That PW1 went into the house and came out shouting and calling for Paul. That the Accused went to PW1’s house and when she tried to inquire from him what had transpired, the Accused did not respond but went to where PW2 kept utensils and picked a knife. On seeing this, PW2 ran away towards the road. A vehicle then came and took the deceased to hospital. PW2 stated that she then returned home and found the knife that the Accused had picked. That she then proceeded to do casual jobs. That she then returned at 3. 00 p.m. and PW1 asked him to go and see the knife which he had found while arranging the house of the deceased. PW2 identified the knife and stated that it belonged to the deceased and was being used by both the deceased and the Accused as the two used the same kitchen but used to live in different houses.

7. PW3 was Martin Muthomi, a bodaboda rider. He stated that on 20th February, 2023, PW1 went to his house at 7. 00 a.m. and requested his assistance in taking PW1’s father (the deceased) to hospital. That he took his motor cycle and proceeded there but met a group of people who told him that PW1’s father could not be carried on a motor cycle. The people then asked PW3 to go report the matter to the chief which he did. The chief then asked PW3 to take him to the home of the deceased. PW3 took the chief to the house of the deceased where he found that PW1 had looked for a vehicle. PW3 then assisted PW1 to take the deceased to hospital. According to him (PW3), he sat at the front seat of the vehicle while the deceased sat on the back seat and was bleeding from the mouth. They took the deceased to Chuka Hospital and after a short while, they were told that the deceased had passed away. He stated that they then reported the matter at Muthambi Police Station and the police officers accompanied them to the house of the deceased, searched the house, and then left.

8. PW4 was Denis MawiraNjeru. He is the one who provided his vehicle, at the request of PW1, that took the deceased to hospital. According to him, when he went to assist PW1 to take the deceased to hospital, he found the deceased bleeding profusely from the mouth as a result of a stab wound. That he tried to find out what had transpired and Accused herein told him that he was the one who had stabbed the deceased. That they proceeded to hospital with PW1 and the Accused. That they then proceeded to report the matter at Muthambi before taking the deceased to Muthambi Health Centre. Further, that the deceased was asked who had stabbed him and he identified the Accused as the perpetrator. That a police officer who heard what the deceased had stated then arrested the Accused and placed him in a cell.

9. PW5 was Dr. Nicholas Nkonge. He performed the postmortem examination on the body of the deceased on 5th March, 2023 at Chuka Hospital. He stated that the deceased’s body had a penetrating stab wound on the left side of the neck measuring 2 centimetres. That the mucous membranes were pale. Further, that internally, there was a severing of the blood vessels on the left side of the neck. PW5 then issued death certificate and filled and signed the post-mortem form which he produced as P. Exhibit 1.

10. PW6 was IP AbdullahiMaalimu, the Officer Commanding Muthambi Ward. He recalled that on the material day at around 8. 00 a.m., three (3) people drove to his station in a motor vehicle. That the three people were PW1, PW3, and the Accused who were escorting the deceased who had an injury and was bleeding profusely from a stab wound at the side of the neck that appeared to have been caused by a sharp object. PW6 stated that he booked the report in the occurrence book and then accompanied the deceased to Muthambi Health Centre for treatment. That the nurse who attended to the deceased assisted PW6 in interrogating the deceased as the deceased was speaking in Kimeru. He stated that the nurse told him that the deceased stated that he had been stabbed by his son using a kitchen knife. Further, that on their way to the hospital, PW1 and PW3 had told him that the Accused was the one who had stabbed the deceased. That with assistance from other police officers, they arrested the Accused and escorted him to Marima Police Station. That they then escorted the deceased to Chuka Hospital where he was pronounced dead on arrival. It was PW6’s testimony that at around 11. 00 a.m., he proceeded to the scene of the crime at Weru accompanied by other police officers. That he (PW6) established that the deceased lived in a single room timber house and noted that there were blood clots on the floor. That he collected samples of the blood clots and took photographs of the scene. That on 25th February, 2023, he received a blood stained knife from a son of the deceased which handed to one Inspector Kiprono for further processing.

11. PW7 was IP Kiprono Too, the investigating officer in this case. He recalled that on the material day, he was in the office when he received a murder report from the officer-in-charge investigations. He was assigned to investigate the report. He stated that he then called Inspector Maalim from Marima and they then proceeded to meet the son of the deceased (PW1) who took them to the scene of the crime. That they found that it was a one roomed house where the deceased lived. That he saw that there was blood on the floor. That they tried to look for the murder weapon but could not trace it. That PW6 then went to Chuka Hospital and saw that the deceased had a stab wound injury on the neck. They then proceeded to Marima Police Station where the accused person was being held. They then removed the Accused from there and took him to Chogoria Police Station. They then recorded the statements of witnesses. PW7 corroborated PW6’s testimony that on 25th February, 2023, they received the alleged murder weapon which was a knife. That they received information from PW1 that the deceased had been stabbed by his son, the Accused herein. That PW4 also informed them that the deceased had stated that it was the Accused who had stabbed him. Further, that PW6 told them that at Muthambi Health Centre where the deceased was taken, the nurse who attended to the deceased enquired from the deceased and the deceased stated that he stabbed by his son, the Accused herein. PW6 produced the knife identified as the murder weapon as P. Exhibit 2.

Defence Case 12. When put on his defence, it was the testimony of the Accused that on the material day at around 6. 00 a.m., his brother woke him up so that he could go work. That the Accused decided to make tea. That he found that he did not have a match box and decided to borrow one from his father. That he found his father sitting on the bed and he was allegedly hiding a bottle of beer (alcohol). According to the accused, he asked his father for a match box and his father gave him a match box and told him that he wanted to tell him something. That the Accused told his father not to tell him at that time as he had taken alcohol. That his father insisted and so the Accused left and went to his house and made tea. That after taking tea, he went outside the house when he heard the sound of a person groaning. That the realized that the groaning was coming from the house of his father and decided to go and find out what was happening.

13. According to the Accused, when he entered the house of his father, he found his father had blood. That he tried to find out from his father what had happened but his father told him to leave him alone. That that is when the Accused realized that his father had a knife in his hands. That the Accused asked his father to give him the knife but his deceased insisted that the Accused should leave him alone. That the Accused then looked for a cloth to tie the wound which he found but blood started coming out from the mouth of his father. That the Accused then realized that all was not well and started screaming. That he then called his brother (PW1) to go and see what that their father had stabbed himself. That PW1 tried to assist the deceased but he started vomiting blood and that is when PW1 went and called their neighbor called Paul. That their cousins and uncle also came but everyone was shocked and could not do anything. According to the Accused, their uncle asked the deceased what had happened to him but the deceased could not talk. That the deceased was then rushed to hospital. The Accused thus maintained that he was not the one who stabbed the deceased and that the deceased stabbed himself with a kitchen knife.

Issues for Determination 14. I have considered the evidence tendered by counsel for the prosecution, the defence given by the Accused. The Accused herein is charged with the offence of murder. Section 203 of the Penal Codedefines the offence of murder and requires proof of the following elements beyond any reasonable doubt, to establish the offence of murder: proof of death, the cause of that death, proof that the death was due to an unlawful act or omission, that the unlawful act or omission was on the part of the suspect and that the unlawful killing was with malice aforethought.It follows that the main issues for determination by this Court are:a.Whether there is proof of the fact of death and cause of death of the deceased; and if so,b.Whether the death of the deceased was cause by an unlawful act or omission on the part of the deceased;and if so,c.Whether there was malice aforethought on the part of the Accused.

Analysisa.On proof of the fact and cause of death

15. The first issue for determination is whether there is proof of death. In this present case, there is no dispute that the deceased died. This was confirmed by the testimonies of all the seven (7) witnesses called by the prosecution, more so by the evidence of PW5 who carried out the postmortem examination on the body of the deceased. It was PW5’s testimony that after conducting the postmortem examination on the deceased, he formed the opinion that the cause of his death was haemorragic shock secondary to a penetrating stab wound. Accordingly, it is my view that the prosecution proved beyond any reasonable doubt the fact and cause of the death of the deceased.b.On whether the Accused was positively identified as the perpetrator

16. None of the prosecution witnesses actually saw the Accused stabbing the deceased. In essence, therefore, the prosecution case was based on circumstantial evidence. 17. In Ahamad Abolfathi Mohammed and Another v. Republic [2018] e KLR, the Court of Appeal stated as follows on reliance 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. 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.”

18. In the same case, the Court of Appeal set out the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction. The court stated:“Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Subject person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions 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 the guilt of the Subject;(iii)the circumstances taken cumulatively, should from 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.”

19. In this case, the Accused was at the scene of the crime. This can be deduced from the testimony of PW1 who was the first person at the scene. PW1 stated that he saw the Accused leaving the house of the deceased and that the Accused told him to go inside to see what the deceased. On entering the deceased’s house, he found the deceased bleeding profusely with a stab wound on the left side of his neck. This was corroborated by the testimony of PW2 who was also near the scene of the crime. PW2 stated that she also saw the Accused leaving the house of the deceased.

20. PW1 stated that after finding the deceased with a stab wound, the deceased told him several occasions that that it was the Accused who had stabbed him. That first, it was after PW1 found the Accused leaving the house of the deceased and that secondly, PW1 stated that on their way to the police station, the deceased stated that the Accused should never step foot on his land as he is the one who had stabbed him. According to PW4, while they were escorting the deceased to the hospital, the Accused tried to hold the deceased but the deceased told him, “You wanted to kill me and now you want to hold me.” On the other hand, PW6 testified that he escorted the deceased to the hospital and that since he could not understand the language that the deceased was speaking, he asked a nurse to interpret what the deceased was saying and that the nurse told him that the deceased accused his son, the Accused herein, for stabbing him.Defining declarations under Section 33(a) of the Evidence Act (Cap 80 Laws of Kenya) a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. In this case the deceased made dying declarations to three witnesses that the accused is the one who wanted to kill him and stabbed him with a knife. The declaration is admissible. It is corroborated as the accused was seen leaving the house of deceased with blood in his hands.In Phillip Nzaka –v- Republic (2016) the Court of Appeal in abiding decision stated that dying declarations are admissible in evidence. The Court of Appeal held:-“Under Section 33(a) of the Evidence Act, a dying declaration is admissible in Evidence as an exception to the rule against admissibility of hearsay evidence.” Under that provision, statements of admissible facts oral or written where the cause of death is in question and those statements were made by him as to the cause of circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements. Clearly by reason of Section 33(a) there is no substance in the claim that a dying declaration constitutes inadmissible hearsay evidence. Notwithstanding Section 33(a) of the Evidence Act, courts have consistently held the view that evidence of a dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to death of deceased, such as acts of violence may have occasioned him confusion and surprise as to render his perfection questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe.This court expressed itself in Choge –v- Republic.“The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the make is at point of death and the mind is induced by the most powerful considerations to tell the truth. In Kenya however the admissibility of dying declaration need to depend upon the declarant, being at the time of making it, in hopeless expectation of eminent – death. There need not be corroboration in order for a dying declaration to support a conviction solely on the dying declaration of a deceased person.”See also Charles Njonjo Gituro –v- Republic (2019) eKLR and Moses Wanyala Nzaira –v- Republic (2019 eKLR under Section 33(a) of the Evidence Act it is provided-Statements by deceased person……..“When statements written or oral or electronically recorded of admissible facts made by a person who is dead….. are themselves admissible in the following cases-Relating to cause of death when the statement is made by a person as to the cause of his death, in cases in which he cause of that person’s death. In cases in which the cause of that person’s death comes into question such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death and whether may be the nature of the proceeding in which the cause of his death comes into question……”In this case we have the testimonies of PW1, PW4, PW6 who testified that the deceased told them that it is his son who stabbed him with a knife. The statements made to the witnesses by the deceased related to the incident that eventually led to his death. I find that the statement made by the deceased on how the injury which led to his death were dying declarations. I find that the dying declarations show that it is the accused who stabbed the deceased using a knife causing his death.

21. From the evidence adduced by the prosecution, that the Accused was the last person who was with the deceased before he was stabbed. In my view, the defence provided by the Accused that the deceased stabbed himself amounted to a mere denial. Accordingly, I am satisfied that the prosecution proved beyond any reasonable doubt that it was the Accused who unlawfully caused the deceased’s death.

On whether there was malice aforethought on the part of the Accused 22. Finally, on the question of whether there was malice aforethought on the part of the subject, Section 206 of the Penal Code defines Malice aforethought as follows:“206. 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 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.”

23. The Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR, held as follows:“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;i)The intention to cause death;ii)The intention to cause grievous bodily harm;iii)Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed……”

24. In this case, PW5 who carried out the postmortem on the deceased’s body testified that his examination revealed that the cause of death was hemorrhagic shock secondary to a penetrating stab wound. The deceased was pronounced dead upon arrival at the hospital. He must have suffered a painful death noting that he never got a chance to receive treatment for the stab wound inflicted on him. In the circumstances, I am persuaded that the prosecution also proved beyond any reasonable doubt the presence of malice aforethought on the part of the Accused.I reject the defence of the accused as there is overwhelming evidence which proves the charge against him beyond any reasonable doubts.

Conclusion 25. The upshot of the foregoing, in my view, that the prosecution has proved all the ingredients of murder against the Accused to sustain a conviction against him.I therefore find the accused person guilty as charged and I convict him

DATED, SIGNED AND DELIVERED AT CHUKA THIS 7TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE