[2024] KEHC 10857 (KLR)

Republic v Njiru (Criminal Case E030 of 2021) [2024] KEHC 10857 (KLR) (18 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10857 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case E030 of 2021

LM Njuguna, J

September 18, 2024

Between

Republic

Prosecution

and

Silvano Nthiga Njiru

Accused

Judgment

1. The accused was charged with murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the offence are on 20th November 2021 at Gacuriri village, Kathera sublocation, Kiang’ombe location in Mbeere North subcounty within Embu County, the accused murdered Newton Njiru Kiura. The accused person pleaded not guilty and a plea of not guilty was duly entered before the matter proceeded to full hearing.

2. PW1, was Nancy Kithi Ngoru who stated that on the night of the incident, she was at home with her mother and her brother when at around 3:20 a.m, she heard the accused insulting the deceased while standing near their home. That the accused said that he was going home and would be back and he returned about 5 minutes later. That she awoke her brother and they went to the deceased’s compound through the fence since he was living a few meters from them. That the deceased left the house and went towards the gate where the accused was making noise from and the accused told him that he will know who he is. That the deceased answered that he did not know him and then the accused shot the deceased with an arrow in the stomach using a bow.

3. She stated that there was moonlight that night and that she also had a torch which she used to identify the accused as the assailant. That her mother screamed and one of the people who had gathered called the assistant chief who visited the scene at around 6. 00 a.m. She stated that the deceased tried to remove the arrow from his stomach but its metallic tip remained in his flesh. That police recovered a bow and arrow from the house of the accused. That the accused is well known to her since they attended the same school and she was familiar with his voice when he was making noise outside their compound.

4. On cross-examination she stated that the deceased did not have any weapon. That she used a torch to identify the accused that night. That the deceased had a habit of drinking alcohol and she did not know whether the accused and the deceased were together before the incident. That she did not see the accused releasing the arrow but she shone her torch after the deceased had already been shot.

5. PW2 was Newton Makundi Ngoru who stated that on the material night, he heard noises outside the house at around 3:40 a.m and he soon found out that it was the accused who was hurling insults at his uncle, the deceased. That the deceased told the accused to go home and sleep but the accused told him that he would go and then return. That shortly afterwards, the accused returned with a bow and arrow and when the deceased moved near him, he shot him in the stomach with an arrow and the deceased said “I have been shot”.

6. That he was able to see the accused using a torch that PW1 had shone. That his mother is the one who raised alarm and someone called the police who removed the body of the deceased from the scene and began investigations. He stated that he was able to identify the accused because there was moonlight and he was about 10meters away from him and he was well known to him. He identified the arrow in court and stated that the metallic tip of the arrow remained in the deceased’s flesh. On cross-examination, he stated that he had heard an exchange of words between the accused and the deceased but he couldn’t tell whether the 2 were together earlier that night. That the deceased had a drinking habit but he did not know if he was drunk that night. That the deceased was unarmed that night and they went to his home after he had been shot with an arrow.

7. PW3 was Esteria Wanyaga who stated that she was at home on the material night when she heard the deceased screaming, saying that he had been shot. That she knew the deceased very well since he was her brother-in-law. That when she heard the deceased’s distress calls, she ran to his home where she found PW1 and PW2, her children and the deceased was lying on his back, seeming lifeless.

8. That the deceased had been shot with an arrow but its sharp tip remained in his abdomen. That she screamed and people gathered and they called the local authorities and the police who removed the body of the deceased. That she was present when the accused was arrested by the police. On cross-examination, she stated that she had spoken to the deceased 3 days before his death and that she did not find the accused at the scene.

9. PW4 was Cyprian Nitaru who stated that he heard distress calls from the direction of the deceased’s home and when he went there, he found PW1, PW2 and PW3 and PW1 told him that the deceased had been shot with an arrow by the accused. That the arrow handle was next to the deceased but its tip was stuck in his abdomen. That he called the subarea chief who advised that they take the deceased to hospital but by the time the vehicle was arriving, he had already died. That later, the subarea chief and the police went to the scene and removed the body.

10. He stated that the accused is well known to him as they were neighbors. On cross-examination, he stated that the deceased is his cousin and when he saw him at the time of the incident, he was not talking. That he did not see any panga at the scene neither did he see who shot the deceased. He stated that he did not know whether the accused and the deceased were together earlier that night.

11. PW5, Clinton Gitonga stated that on that night at around 10PM, he carried the deceased, his uncle, on his boda boda to Runyomu market at Dennis’s bar where the accused was drinking water in the company of others who were drinking alcohol. That he stayed at the bar until 11PM and he left the deceased there with the accused and others. That the next day, he received a call from PW1 informing him of the incident and when he arrived at the scene, he found the deceased covered with a bedcover outside his gate.

12. That they uncovered the body and he saw the deceased’s intestines protruding from the stomach and the arrow handle was stuck there. That he was there when the police recovered more arrows from the house of the accused who was later arrested. On cross-examination, he stated that when he left the accused and the deceased at the bar, he couldn’t tell what else happened. That the home of the accused and the deceased are not far apart. That it is possible that the police did not find the accused at his house at first because he had hidden since he was a suspect.

13. PW6, Julius Ngoru Kiura, the brother to the deceased stated that on 21st November 2021, he received a call from PW1, his daughter, informing him of the incident. That he met with the police officers at Kanyuabora Police Station and they went and took the body to Gakwegori mortuary. That the body had a wound on the stomach from which the intestines were protruding. He stated that he did not know why his brother was killed and who killed him. That the accused person is their neighbor and there has been no conflict between their families. On cross-examination, she stated that it was PW1 who called him at 4:30AM and told him that she witnessed the incident. That he did not go to the scene but he accompanied the police to the mortuary.

14. PW7, Rosemary Ngugi Mbui stated that she received a call at about 3:50PM from the wife of one of the deceased’s nephews informing him of the incident. That when she went to the scene, she saw the body of the deceased with intestines protruding and a part of an arrow was next to it. That the police arrested the accused in connection with the death of the deceased. On cross-examination, she said that by the time she arrived at the scene, it was already dawn and there was enough light to enable him see the arrow. That the deceased used to drink alcohol but he was a good person and she did not know who killed him.

15. PW8 was Jane Igoki Njiru, the assistant chief, who stated that PW4 called her at around 4:07AM informing her that the deceased had been shot with an arrow by the accused. She told the caller to arrange for transportation of the deceased to hospital but she later received another call informing her that the deceased had already died. That she went to the scene in the company of police officers who removed the body of the deceased and took it to Gakwegori mortuary. That she saw that the deceased had been shot with an arrow in the abdomen and his intestines were protruding. That she was informed that he accused person was the alleged assailant and he was arrested.

16. PW9 was Denistasio Njeru Nyagah who stated that he runs a bar business and that the deceased was one of his good customers. That on 20th November 2021, the accused was at his bar and he was disturbing other customers by putting water into their drinks and so he resolved to remove him from his establishment. That afterwards, the deceased walked into the bar in the company of one Anderson and he stayed with them until later when they left though not at the same time. That the following day at 6. 00 a.m, Anderson, called to inform him that the deceased had been shot with an arrow by the accused. That he went to the scene and found he had died and his body was covered with a lesso. That he helped in searching for the accused who was arrested in connection with the incident. On cross-examination, he stated that both the accused and the deceased were at his bar the previous night and that he closed at 11. 00 p.m. He did not have any further details of the incident and how it happened.

17. PW10 was Dr. Godfrey Njuki Njiru of Embu Level 5 Hospital who conducted postmortem on the body of the deceased. He stated that there was a stab wound through the abdominal wall through which the small intestines had protruded and an arrow head was in situ. That he removed the arrow head and handed it to the police and noted that the blood vessels supplying blood to the intestines had been severed, resulting in severe internal bleeding into the abdominal cavity. He concluded that the functioning of the other organs was hampered due to the low blood volume which had resulted from massive internal bleeding to the abdominal cavity which had been caused by the arrow stab wound. He produced the death certificate as evidence and a mental assessment report authored by his colleague, Dr. Thuo whose opinion was that the accused person was fit to plead.

18. PW11 was Doris Karimi, niece of the deceased. She stated that on the fateful night, she heard noises around the deceased’s home and she heard him saying that no one should make noise near his place. That Later, she heard PW3 saying that the deceased had been shot with an arrow. That she went to the scene and then called PW7. That at the scene, some people were saying that the deceased should be taken to hospital but they discovered that he had already died. That the deceased had a stab wound on the lower part of his stomach and PW1 said that she saw the accused shooting the deceased.

19. PW12 was Ruth Wangari Kahiu from government chemist Nairobi. She stated that her office received a blood sample in a vacutainer, an iron arrow head and an arrow stick for analysis. She concluded that the DNA profiles generated from the blood sample and the other items were a match and originated from the deceased. The DNA analysis report was produced as evidence.

20. PW13, Sgt. Awadh Mohammed of DCI Mbeere North was the investigating officer. He stated that he received a report of the incident at his office and he proceeded to the scene where he found the lifeless body of the deceased covered with a bedsheet. That when he examined the body, he saw an abdominal wound and the intestines were protruding. That 2 of his colleagues handed him 2 arrows and a bow and shoes. That the body was removed from the scene and taken to Gakwegori funeral home where postmortem was conducted.

21. That blood samples were collected and sent to the government chemist for analysis together with an arrow handle and arrow head. That the accused was arrested and charged with the offence and he was escorted for psychiatric assessment. He stated that he recorded the witness statements in which several witnesses stated that on the night of the incident, there was a full moon and that the deceased had been escorted to a bar by one Clinton who left him there with the accused among others.

22. He narrated the accounts of the witnesses and then produced the items found in the accused’s house and at the crime scene as exhibits. On cross-examination, he stated that the accused and deceased hailed from the same neighborhood and that he did not know what happened at the bar earlier that night. That none of the witnesses mentioned there being a panga at the scene and that the altercation happened immediately before the deceased met his death.

23. After the close of the prosecution’s case, the court found that the accused person had a case to answer and he was placed on his defense.

24. DW1, the accused person, stated that at around 7. 00 p.m, he was at a club with the deceased who poured alcohol on him. That he complained to the bar owner who then sent the deceased out of the bar and he went outside. That he remained at the bar until midnight and while on his way, he passed by the deceased’s gate where the deceased was hiding with a jembe handle in his hand, ready to attack him. That he fled and jumped his fence, reached for the bows and arrow and shot the deceased as a way of defending himself since the deceased had threatened him earlier. That the incident occurred when he was defending himself. Upon cross-examination, he stated that there were no eye witnesses at the time of the incident and that it was just him and the deceased.

25. After the close of the defense case, the parties did not file their written submissions.

26. The issue for determination herein is whether the offence of murder has been proved beyond reasonable doubt.

27. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. The accused person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased. Section 203 of the Penal Code provides:“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

28. In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”

29. The first element is death and cause of death. PW10 stated that the deceased suffered a stab wound to the lower abdomen resulting in severe internal bleeding. He concluded that the functioning of the other organs was hampered due to the low blood volume which had been caused by massive internal bleeding to the abdominal cavity as a result of the arrow stab wound.

30. The second element is to prove that the accused is responsible for inflicting the fatal injuries upon the deceased. From the testimonies of the prosecution witnesses PW1 and PW2, the accused person was indeed at the scene and they saw him attacking the deceased. Moreover, DW1, the accused himself stated that he shot an arrow at the deceased that night but he only did so in self-defense. Given his testimony, there is no need to go further since the accused confirms that he indeed shot the arrow that caused fatal injuries to the deceased. The important question at this point is whether or not the accused had malice aforethought and if the defense of self-defense holds water.

31. The defense of self-defense is available to an accused person in line with section 21 of the Penal Code which states:“Subject to any express provisions in the code or any other law in operation in Kenya , criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common law.”

32. For this defense to be applicable, it must be measured against certain parameters. Under Common Law, the accused must prove that his actions went towards either defending himself, preventing attack on other person or defending his property. This was further explained in the case of Victor Nthiga Kiruthu and Another v. Republic (2017) eKLR where the court stated;-“The principles that have emerged from these and other authorities are as follows:-i.Self-defense, as the term suggests, is defense of self. It is the use of force or threat to use force to defend one self, one’s family or one’s property from a real or threatened attack. Self-defense is therefore a justification in the application of force recognized by the common law;ii.The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self-defense if he or she believes that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonable;iii.It is not necessary, however, for there to be an actual attack in progress before the accused may use force in self-defense. It is sufficient if he apprehends an attack and uses force to prevent it;iv.The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must be of a nature which could not reasonably be met by mere pacific means; andv.What amounts to reasonable force is a matter of fact to be determined from evidence and the circumstances of each case.”

33. The defense of self-defense fails if the prosecution proves beyond reasonable doubt that the actions of the accused did not amount to self-defense. In the case of Palmer v. Republic (1971) ALL ER 1079 the court said;-“Where the evidence is sufficient to raise the issue of self defence, that defence will only fail if the prosecution shows beyond doubt that what the accused did was not by way of self defence.”

34. PW1 and PW2 stated that they stepped out once they heard the accused exchanging words with the deceased. They found when he had shot the deceased with an arrow. PW1 testified that she heard the accused threatening the deceased saying that he will show him who he is and that he was going to his house and would be back. That he returned shortly afterwards and that is when he shot the deceased with an arrow. PW2 and PW3 stated that they heard the deceased saying ‘I have been shot’.

35. PW5 and PW9 stated that they both saw the accused and the deceased at PW9’s bar. PW9 stated that the accused was putting water in other customer’s drinks and so he sent him out of his bar and they did not see him again. DW1 stated that he was at PW9’s bar but according to him, it was the deceased who was causing nuisance and so PW9 sent him out of the bar. That when he was going home, he passed by the home of the deceased who was lying in wait to attack him with a jembe handle. That he ran away towards his house and the deceased chased after him and he had no option but to shoot him with an arrow in self-defense.

36. From the evidence, there is more to show that the accused and the deceased were involved in some kind of tussle even before the accused shot the deceased with the arrow. In my view, the accused intended to harm the deceased given his conduct before the actual shooting. I am not persuaded that he was acting in self-defense.

37. This also means that the prosecution has established beyond reasonable doubt that the accused had malice aforethought as provided under section 206 of the Penal Code. The prosecution recovered the murder weapon which included a bow and arrows, including the one used to inflict the fatal injuries upon the deceased. PW10 stated in detail the injuries inflicted upon the deceased that caused his death. It is clear that the murder weapon was deployed to kill the deceased purposely.

38. In the end, I find that the prosecution has proved beyond reasonable doubt that the accused murdered the deceased. This court finds the accused person guilty of the offence of murder contrary to section 203 of the Penal Code and convicts him accordingly.

39. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF SEPTEMBER, 2024. L. NJUGUNAJUDGE....................... for the State..................for the Accused person