[2022] KEHC 11626 (KLR)

Republic v Njoroge & another (Criminal Case 17 of 2004) [2022] KEHC 11626 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11626 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 17 of 2004

LM Njuguna, J

May 18, 2022

Between

Republic

Prosecution

and

Patrick Muchoki Njoroge

1st Accused

Celia Muthoni Muchoki

2nd Accused

Judgment

1. The accused persons herein were charged with the offence of murder contrary tosection 203 as read with section 204 of the Penal Code and the particulars of the offence being that on January 20, 2014 at Kamaina Village, Mbita sub location, Mbeere South Sub County within Embu County, jointly murdered Jeff Munene.

2. When the accused persons were arraigned in court they pleaded not guilty to the charge and a plea of not guilty entered and hence the case proceeded to a full hearing.

3. PW 1,Dr. Sylvester Maingi stated that on January 23, 2014,he conducted post mortem on the body of Jeff Munene, a child aged 2 ½ years at Embu Level 5 Hospital. He testified that the body had a foamed fluid from the mouth and nose and that from the exterior, there were no injuries. That the stomach had little fluid secretions while other systems were normal. He formed the opinion that the cause of death was acute poisoning and took a sample of urine; blood; a piece of liver, kidney, stomach and its contents for further investigations. He produced the report in evidence as PExh 1 and upon cross examination, he reiterated that the cause of death was acute poisoning and that embalming of the body did not affect his finding.

4. PW2, Mwendo Muthini stated that he knew Stephen Njue Matinde who was working with him as a government analyst in Nairobi since 1999 and that he was away on official duties and so he stood in his place. He testified that on January 24, 2014, he received samples for analysis from PC Victor Omondi as follows: a plastic bottle of tea; blood and urine samples; liver, kidney, stomach and its contents. That after analyzing the samples, he found a substance called Baygon which is a pesticide. He stated that the pesticide is poisonous and could kill a human being; he produced the report as PEx 2.

5. PW3, Hellen Wambui Kiringa testified that on January 20, 2014at around 7. 00 a.m., she left for the farm of the accused persons which is about 100 meters from her house and that she went with her grandson, the deceased herein, to harvest miraa. That the 2nd accused invited her to pick some bananas and she was given five bananas out of which she ate two and gave three to the deceased. She stated that thereafter, the 1st accused left the house to take miraa to the collection center while they waited in the accused person’s house. That when the 1st accused person came back home, he brought a half packet of milk and at that point, the deceased followed him to the house and he gave the deceased a ripe pawpaw.

6. It was her further evidence that the 1st accused then entered the kitchen to boil the milk and thereafter told the 2nd accused person to proceed and make tea. It was her evidence that the 2nd accused person made the tea, served her and gave her some to cool for the deceased. That the 2nd accused served her with another cup of tea and told her to check if it had enough sugar. She enquired why the 2nd accused was not taking tea together with them and she replied that she had been unwell since the previous night. She noticed that after taking half cup of the tea, the deceased appeared disturbed and then started sweating, diarrhearing and vomiting. She asked the 2nd accused person what could be affecting the deceased but she replied that he could be suffering from pneumonia. That she also started feeling weak and she could not lift the deceased who had already grown weaker, so she requested the 2nd accused person to hold the deceased as she struggled to find her way to the toilet to no avail. She stated that she lost consciousness and only heard people speaking around her. That she was taken to the hospital and was later informed that Jeff (deceased) had passed on. On cross examination, she stated that she recorded her statement on April 8, 2014 while the incident took place in the month of January, 2014. That the milk was not bought from the supermarket but from a milk vendor.

7. PW 4, Jacob Marecho stated that on January 23, 2013, he went to Embu Level 5 Hospital where he identified the body of the deceased to the doctor who performed the post mortem.

8. PW 5, Julita Muthoni stated that on January 20, 2020at 10. 00 a.m., while she was in her house, one Paul Mwangi called her and told her that two people had taken some tea laced with poison and one of them was the deceased while the other was PW3 who was still ailing. That she told them to take PW3 to hospital as she rushed to visit the home where the incident had taken place. That upon arrival, she found the lifeless body of the deceased under a tree with foam oozing from the mouth. That she only found the 1st accused person and upon enquiring the whereabouts of the 2nd accused she was informed that she had left for a women group meeting at Muchonoke. That she called the 2nd accused back home and upon reaching, she informed her that it is the 1st accused who had made the alleged poisonous tea.

9. It was her further evidence that she proceeded to call PW3 who informed her that the 2nd accused person having served them tea, declined to take the same and said she was unwell. That the police took the remaining tea in the two cups as exhibits. She explained that the two accused persons did not belong to her location but clarified that she attended to the scene since she was near the area but thereafter called the area chief. She proceeded to state that the 1st accused person had previously informed her of the several attempts by the 2nd accused to poison his tea and that she had previously solved one poisoning dispute between the accused persons. She stated that she was not aware that the 1st accused person had offered to plead guilty to a lesser charge of manslaughter. She stated she did not have a grudge with the 2nd accused and that her evidence was not geared towards fixing her.

10. PW6, Wycliffe Nalianya Mufutu, the investigating officer stated that on January 20, 2014 at around 10. 00 a.m., he received a report from the O.C.S who gave him instructions to take over this matter from Victor Omollo who had been transferred from the station. That the matter had been reported by PW5 wherein she reported that the deceased and PW3 had gone to visit the accused persons to assist in picking miraa and after working in the shamba,the 2nd accused offered to prepare them tea. He proceeded to state that at around 10. 00 a.m., the 1st accused came from Muchonoki where he had gone to sell miraa and on returning, brought along some milk in a polythene bag. That the 1st accused took the milk and poured it in a sufuria and thereafter left the 2nd accused to prepare tea after which the 2nd accused served the deceased and PW3. That all over a sudden, the deceased and PW3 started vomiting and diarrhearing and within no time, the deceased passed on while PW3 was rushed to hospital. She stated that at that time, the 1st accused had gone to tether his goats in a nearby bush and upon return, he found everything unusual and so he informed the villagers who immediately called the assistant chief who proceeded to the scene and found the 2nd accused person had left PW3 and the deceased in the compound and had gone for a chama meeting. That he recorded the statements of witnesses and prepared inquest No. 3/2014; he confirmed having received a jug containing tea and a mug that the deceased had used and thereafter prepared a memo and handed them over to the government analyst.

11. He testified that he received a report after the samples had been tested and a finding made that the tea had been laced with a dangerous chemical known as Baygon and went on to charge the accused persons herein. He then produced the mental assessment report for the accused persons as PExh 3 and 4 respectively. On cross examination, he stated that he was not aware how the chemical got into the tea and that it is why he charged both accused persons. On being shown treatment documents for Morgan the son to the accused persons who had been treated a few days after the incident, he said that he was not aware of the same. He further stated that the said Morgan was not at home that day.

12. The prosecution proceeded to close its case and in a ruling delivered on October 4, 2021, the accused persons were put on their defence upon the court finding that the prosecution had established a prima facie case.

13. DW1, Patrick Muchoki stated that on January 20, 2014he was at home when together with PW3, they went to his farm to pick miraa and that the 2nd accused also joined them. That when they were done with the work, he went to the market and upon his return, bought some milk and he instructed the 2nd accused to make some tea. That at that point, he went to tether his goats and after 25 minutes or so, he went back to the house and asked the 2nd accused to serve him tea but PW3 cautioned him not to take the tea as her grandson had vomited after taking the tea and so he declined to take the tea. It was his statement that they then took PW3 to the hospital and during all that time, he did not know where 2nd accused person was. That the 2nd accused and himself were arrested, interrogated in relation to this matter but thereafter released. He testified that he did not know of any pesticide by the name of Baygon and further reiterated that he didn’t cause the death of the deceased. On cross examination, he reiterated that the death of the deceased was not natural since he died of food poisoning but nonetheless, he did not cause the said death. He defended himself and stated that upon bringing milk home, he left to tether his goats. He did confirm that he is the one who put the milk in the sufuria and requested the 2nd accused to make the tea. It was his case that he never plea bargained for a lesser offence of manslaughter.

14. DW2, Celia Muthoni Muchoki testified that on 20. 01. 2014, she woke up in the morning and prepared her son for school and upon coming back, he found 1st accused and PW3 picking miraa and she joined them. That she had bananas which she gave the deceased and PW3. That at that time, DW1 came home with a paper bag and the deceased followed DW1 and thereafter, he emerged with a pawpaw. She stated that, it was DW1 who poured the milk, water and tea leaves in the sufuria and thereafter placed the same on a jiko. That he thereafter excused himself to go tether the goats. She stated that since she was not feeling well, it was PW3 who served the tea once it was ready and that in the process of them taking tea, she excused herself to go for a group meeting since she was running late. That when she was called by PW5, she returned home almost immediately and to her shock, found Jeff (deceased) dead. That she was taken to Kiritiri Police Station with DW1 but thereafter set free. That the following day, she was chased away by the family of DW1 and on January 25, 2014 she was informed that her son – Morgan- had been taken ill and that he had taken poison.

15. She reiterated that she remembered so well that DW1 had plea bargained for a lesser charge of manslaughter and she reiterated her innocence. On cross examination, she acknowledged that the deceased did not die a natural death. She maintained that the 1st accused came back home with milk and proceeded to make tea which according to her was not usual. That she never took the said tea since she was not feeling well but she did not go to hospital since there was no one to take her. Further that, she was obliged to attend the ‘chama’ since she had Ksh. 50,000. 00 for the ‘chama’ members.

16. At the end of the hearing, the parties proceeded to file written submissions wherein the prosecution submitted that the cause of death of the deceased was as a result of ingestion of a pesticide known as Baygon and the report by the government chemist analyst corroborated the cause of death as indicated in the post mortem report. That the accused persons herein are the ones who prepared the poisoned tea and as a result, caused the death of the deceased herein. The prosecution submitted further that, even with the arrival of police, it was found that the alleged remaining poisoned tea was locked in the bedroom with the two cups already rinsed in an attempt to conceal what had previously transpired. Reliance was placed on the case of Rex v Tubere s/o Ochen 1945 EACA 63. The prosecution submitted that the accused persons’ defences were mere denials and did not displace the evidence by the prosecution. It was prayed that this court finds the accused persons herein guilty of the offence of murder.

17. The 1st accused on his part submitted that none of the prosecution witnesses connected him with the murder herein. That after the tea had been prepared, he went to tether his goats so that he could come and take tea but upon arrival, he was shocked to find the deceased and PW3’s condition. It was submitted that the prosecution failed to prove that the 1st accused was responsible for the death of the deceased. Reliance was placed on the case of Abanga alias Onyango v Republic Cr Appeal No. 32 of 1990. It was further submitted that, the case did not pass the test of circumstantial evidence as held in the Abanga case (supra). In the end, it was prayed that this court acquits the 1st accused person of the charge herein.

18. The 2nd accused submitted that no prosecution witness connected her with the murder herein and that the documents purportedly produced by the 1st accused insinuating that their son was suffering from epilepsy were not convincing. That there was no evidence that the 2nd accused left home for the ‘chama’ meeting knowing there was a problem at home; and that it was clear that the 1st accused knew where the 2nd accused was since it is not possible that the 1st accused could allow his wife to leave the compound when it was clear that the deceased had passed on and PW3 was writhing in pain. In the end, it was prayed that this court acquits the 2nd accused herein.

19. I have considered the evidence tendered before this court by both the prosecution and the defence and the written submissions by both parties. The accused persons herein were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The offence of murder is defined under section 203 of the Penal Code in the following terms;-“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

20. From the above definition, it therefore means that for the prosecution to secure a conviction on a charge of murder, it has to prove, beyond reasonable doubt, three ingredients against an accused person. Those ingredients are as follows:-a)The death of the deceased and the cause of death;b)That the accused committed the unlawful act which caused the death of the deceased; andc)That the accused had malice aforethought.[See Republic v Isaac Mathenge; Republic v Mohamed Dadi Kokane & 7others [2014] eKLR].

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

22. It is trite that the prosecution bears the burden of proving every element of the offence an accused person is charged with, and in this case, prove that the two accused herein murdered the deceased (See Woolmington v DPP(1935) AC 462). The standard of proof which was required of the prosecution is that of “beyond any reasonable doubt” (See Miller v Ministry of Pensions, [1947] 2All ER 372). The question therefore is whether the above ingredients were proved to the required standards. [Also see Moses Nato v Republic[2015] eKLR].

23. As for the death of the deceased having occurred, it is not in doubt that the deceased herein died. PW1 testified that he conducted post mortem on the body of the deceased. That PW4 was in attendance and he identified the body of the deceased. As such, the death of the deceased was thus proven.

24. On whether the accused persons herein committed the unlawful acts which caused the death of the deceased, right to life is protected by our Constitution under article 26 and can only be taken away under the circumstances provided therein. It therefore means that every homicide is unlawful unless authorized by law or excusable under the law. In Guzambizi Wesonga v Republic[1948] 15 EACA 63 the court held that;-“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable, it must have been under justifiable circumstances, for example in self-defence or in defence of property.”[See also Sharm Pal Singh[1962] EA 13 and Daniel Nzioka Mbuthi & another v Republic (supra)].

25. From the evidence on record, I note that there is no direct evidence linking the two accused persons with the death of the deceased. The prosecution is relying on circumstantial evidence to prove the case against the accused persons. In this regard, the Court of Appeal 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 Accused 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 Accused; 9iii) 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.[See also Sawe v Republic(2003) e KLR and GMI v RCr App No 38 of 2011; Teper v R [1952] ALLER 480 and Musoke v R [1958] EA 715].

26. Therefore, for this court to find the accused persons guilty, the inculpatory facts must be incompatible with innocence and incapable of explanation upon any other hypothesis than that of guilt.

27. In this case, the court proceeds to deal with the identified key strands of evidence together as they weave into one another. In relation to PW3 testimony which in essence was never shaken even during the cross examination, a scene was depicted where PW3 together with the deceased had gone to help the accused persons pick miraa; thereafter, 1st accused left for the market and brought home milk which he poured and mixed with water and thereafter left the 2nd accused person to boil. Further that, during the time that the tea was boiling, the 1st accused conveniently left to tether his goats while the 2nd accused made claims that she was not feeling well and so she proceeded to serve the tea to PW3 and the deceased. Of importance is when 2nd accused informed PW3 to taste the deceased tea to ensure that the sugar was enough and equally the temperature so as to enable the deceased person take the tea. In the same breadth, the fact that the deceased appeared disturbed, started vomiting, diarrhearing and thereafter passing out which the same condition PW3 was also facing at the same time, the 2nd accused seemed to allege that the deceased could be suffering from pneumonia. That even with all these happenings in the house of the accused persons, the 1st accused person was conveniently missing and the 2nd accused preferred to attend ‘chama’ meeting leaving the deceased and PW3 suffering.

28. As to whether the accused had malice aforethought, malice aforethought is the mental element (mens rea) of the offence of murder. Section 206 of the Penal Code defines it 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.[See Peter Kiambi Muriuki v Republic[2013] eKLR]

29. PW3, Hellen Wambui Kiringa testified how together with the deceased they had gone to the 1st accused’s farm which was about 100 meters from her house to harvest miraa. That the 1st accused person brought home milk which the 2nd accused person used to make tea and after taking the tea, the deceased appeared disturbed and then started sweating, diarrhearing and vomiting. Further, PW1 testified that in his opinion, the cause of death was acute poisoning while PW2 corroborated the statements of the prosecution witnesses that the samples that were taken to Government Chemist were laced with a substance called Baygon. The samples were collected from the house of the accused persons.

30. The two accused persons did not deny that the deceased and PW3 took tea in the house and immediately after taking the tea, the deceased developed complications and died while he was at the home of the accused persons. Both participated in preparing the tea that was laced with Baygon in that the 1st accused put the milk, the water and tea leaves in the sufuria and later asked the 2nd accused to boil the tea after which it was served to the deceased and PW3. It is important to note that the accused herein did not take the tea as one would have expected them to, together with the visitors.

31. Even as the events were unfolding, the 1st accused conveniently went to tender the goats while the 2nd accused left the deceased in a serious condition in her house and went for a chama meeting. The behaviour of the accused persons were not consistent with their alleged innocence.

32. It was an excuse for the 2nd accused person to say that she was running late for the chama meeting and that she had Kshs. 50,000/= for the members. In my view, saving the lives of the deceased and PW3 was more important than attending the chama meeting. Their defences do not hold any water at all. In regard to the 1st accused the court notes that he had offered to plead guilty to a lesser charge of manslaughter.

33. In view of the fore going, it is my considered view that the actions of the accused persons could not have had any other intention but to cause either the death or grievous harm to the deceased herein. I therefore find from the foregoing that, there is sufficient collaborating evidence that the accused persons caused the death of the deceased, and that the evidence on the chain of events in this regard can only lead to that inference and conclusion.

34. In the end, I find that the prosecution has proved the case of murder against the accused persons and I therefore find them guilty as charged and convict them accordingly.

35. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF MAY, 2022. L. NJUGUNAJUDGE…………………………………………….for the 1st Accused…………………………………………….for the 2nd Accused…………………………………………………….for the State