[2023] KEHC 23666 (KLR)

Republic v Nyanje & another (Criminal Case 08 of 2016) [2023] KEHC 23666 (KLR) (17 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23666 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Case 08 of 2016

RN Nyakundi, J

October 17, 2023

Between

Republic

Prosecutor

and

Michael Ziro Nyanje

1st Accused

Erick Masha Kitsao

2nd Accused

Judgment

Coram: Before Hon Justice R. NyakundiMr. Mwangi for the ODPP 1. The two accused persons namely: Michael Ziro Nyanje and Erick Masha Kitsao were on the 23rd day of March 2016 at around 1000hrs at Mida village of Gede Location within Kilifi county jointly murdered Karisa Khonde Karani

2. Statement of the offence Murder contrary to Section 203 as Read with Section 204 of the Penal Code Chapter 63 of the Law of Kenya

3. When the two accused persons were reigned before this court they all pleaded not guilty and in accordance to Article 50 (2) (a) of the Constitution the accused persons having a right to be presumed innocent until the contrary is proved it was not the singular duty for the prosecution to prove its case beyond reasonable doubt. In discharging that duty, the following witnesses were summoned to offer both direct and circumstantial evidence against the accused persons.

4. PW1 Dr. Angore Gilbert a medical officer attached to Malindi sub county hospital testified on behalf of Dr. Nazra in respect of a post-mortem conducted upon the body of the deceased on request by the investigating officer and the victim family. The brief findings arrived at showed that the deceased suffered penetrating cut wound from the posterior of the right back with the with the exit on the anterior of the chest wall, multiple cut wound on the skull with the skull in process and brain matter exposed. Cut wound on the face as well. In conclusion, the medical officer opined that the cause of death was severe head injury seconding to assault from sharp penetrating object. The next in line was PW2 one Leah Karisa wife to the 2nd accused. She called that on the 23rd March 2016 the 2nd accused had gone to work at the farm it was not very far from the homestead. He returned at about 9. 00pm and on arrival he confirmed that he was in possession of a jembe and a panga being basic farm tools. One other observation made by PW2 was that the accused’s clothes were blood stained and his finger had a cut. The following day, she came to learn that someone had been killed in the forest. PW2 on be curious rushed to the scene only to confirm a known person by the name Karisa Karani was dead. Further in support of their case, the prosecution summoned PW3 Bahati Baya. In his evidence PW3 stated in court that he is the father to the 2nd accused but essentially he was neither at the scene nor in possession of any probative evidence as to the occurrence of the offence in question. In addition, to the narrative by the prosecution aimed at discharging the burden of proof beyond reasonable doubt PW4 Sarah Mjeni gave evidence as follows: Her central evidence was on the personal knowledge she had of the deceased and the information received on 24th March, 2016 that he had been killed. She was then asked by the police to record the witness statement with regard to the dispute between the deceased and the accused. In the same mandate the prosecution adduced evidence of PW5 Fatuma Kahindi who went on to state that she lived in the same environment with the deceased. The only recollection she attributed to this case was about a knock at the door at the shop of the deceased, and the tragic news in the following morning of his death. Further in their a quest to disapprove the innocence of the accused person PW6 was No. 82653 Corporal Erick Kathima stated in court that his main role was that of arresting the suspects of murder to this offence. PW6 went on to state that in the cause of their investigation the following exhibits were recovered. A panga, greish blood stained clothes i.e a pair of shorts and a t-shirt, to that extent, PW6 produced recovery inventory certificate in connection with the murder of the deceased. The other significant witness was PW7 P.C Paul Mugambi who referred to his role as the investigating officer he went on to state that correlating the witness statements, the recovered exhibits and the post-mortem report he recommended the accused persons be charged with the offence of murder of the deceased. He produced the following exhibits in support of the charge to be proven by the prosecution as against the accused persons. Panga, Short, T-shirt, Search Certificate, Confession Report and Sketch Plan. That was in so far as the prosecution case was made to cover ground on consonant with the law.

5. At the close of the prosecution case, the accused persons were place on their defence in the 1st instance PW1 Erick Masha elected gave unsworn statement and denied any involvement or participation with the death of the deceased. On the part of Michael Nyanja he also denied being part of the offenders who caused the death of the deceased. Thereafter brief submissions were made by both counsels as to the commission of the offence.

Analysis And Resolution 6. It is emphasized in Section 107 (1) of the Evidence Act(i)Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove tht those facts exist.It is for the prosecution to prove the guilty of the accused persons on the elements of the offence of murder which constitutes the following(a)The death of the deceased,(b)that his death was unlawfully caused,(c)That whoever committed the death was actuated with malice aforethought(d)and the accused persons before court in exclusion of any other person committed the offence and this burden except in a few situations never shits from the prosecution throughout the trial.The standard of prove required is for the prosecution to discharge this burden beyond reasonable doubt. Speaking of proof of beyond reasonable doubt Lord Dennin had this to say in Miler v Ministry of Pensions (1947) 2 ALL ER 372:“that degree is well settled. It need to reach certainly, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. if the evidence is so strong against a man as to leave only a remove possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable, then the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

7. Locally so to speak in Elizabeth Waithiegeni Gatimu v Republic (2015) eKLR Mativo J as he then was expressed himself as follows:“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basis cot our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could drawn from the evidence offered taking into account the defence offered it any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubts (s). A single circumstances creating reasonable doubt in a prudent mind about the guilt of the accused in sufficient. The accused is entitled to the benefit of doubt not to a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt is not mere possible doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge”.

8. It is correct at this stage upon consideration of the prosecution case and that of the defence to make the following findings as to whether the deceased was hacked to death there is no contestation from either of the two versions. PW1 –PW7 evidence is in concurrence that the deceased was killed on the night of 23rd March, 2016. The evidence by the prosecution satisfies the threshold on proof of death set out in the following cases: Nyamhanga v Republic, Ndiba v Republic & Musyoka and Others v Republic. It is evident the body of the deceased was recovered duly identified by Sarah Mjeni Karani and P/C Mugambi. The post-mortem report referenced to the same body while conducting the post-mortem.

9. On the cause of death, the guidelines for the court must fall within the characteristics in Section 213 of the Penal Code defines causing death to include acts which are not the immediate or sole causes of the death. The accused would be held responsible for another person’s death although his acts is not the immediate or sole cause under the following circumstances:(a)He inflicts bodily injury on another person and as a consequence of that injury the injured person undergoes a surgery or treatment which cause his death.(b)He inflicts injury on another which would not have caused death if the injured person had submitted to proper medical or surgical treatment or had proper prosecutions as to his mode of living:(c)He by actual or threatened violence causes such other persons to perform an act which causes the death of such person, such an act being a means of avoiding such violence which in the circumstances appear natural to the person whose death is so caused.(d)He by any act hastens the death or a person suffering under any disease or injury which apart from such an act or omission would have caused the death, and(e)His act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons.

10. In answering the question as whether the death of the deceased in particular Karisa Karani it is necessary for the prosecution to lead evidence that the death ensued from the use of force by the accused persons which amounted to the arbitrary deprivation of life and a violation of the human right to right in Article 26 of the Constitution. The other key element is the prominence Article 26 guarantees respect for the right to life and the integrity of the person. Therefore, every human being has the inherent right to life save for the exception in sub section 3 which reads as follows:“A person shall not be deprived of the intentionally except to the extent authorized by this Constitution or other written law”In this case at hand the court has examined specific issues based on the ingredients of circumstantial evidence as propounded in the cases of: Sawe v Republic (2003) KLR 364 the court of Appeal held:“In order to justify on circumstantial evidence, the inference of guilt, the exculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses that that of his guilt. Circumstantial evidence can be a basic of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on: the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocent is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.”See also in R v Kipkering Arap Koske & Another (1949) 16 EACA 135 in the court of Appeal for Eastern African had this to say:“In order to justify the inference of guilty, the exculpatory fact must be incompatible with the innocence of the accused, and incapable of explanation of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused."

11. It is clear that on 23rd March, 2016 on or before 9. 00pm presumably saw from PW1 testimony the deceased Karisa Karani right to life had not been exterminated. Apart from the fact that PW1 did not witness the actual killing of the deceased there are irrefutable circumstances only alluded to the 2nd accused that he was involved in the murder of the deceased. This is as it regards being in possession of a jembe and a panga though being basic farming tools they are also dangerous devices when aimed and targeted against the vulnerable body parts of a human being. In the words of PW2 the 2nd accused returned from the purported farm with blood stained clothes and a cut finger. He started crying took a shower and slept. That same farm became a scene of crime in which the deceased met his death. The 2nd accused person dug a hole and burned his clothes including placing the panga underneath. The significant quality and quantity of corroborating evidence which I have properly appraised focuses on the chain of events which proves beyond reasonable doubt that the death of the deceased was unlawfully caused. A substantial degree of corroboration comes from the conduct of the 2nd accused after the act of killing the deceased. The brandishing of a panga, coming home with blood stained clothes, digging a hole to hide the incriminating evidence in this case is a chain of events which somehow shows a plausible connection between the 2nd accused and the offence. Therefore, the burden of proof imposed by Section 111 of the Evidence Act came into play for the accused person to lead evidence on the alleged existence of this unique circumstances as stated by the state through PW1. The prosecution have laid a strong factual foundation for the evidential burden on these grounds to shift to the accused person on matters within his personal knowledge. What is the scope of unlawfulness? One just has to look at the detailed post-mortem report in which the medical officer opined that the cause of death was severe head injury secondary to assault from sharp penetrating object. On this ingredient the accused person never controverted the unlawful fatal wounding of the deceased. That burden of proof beyond reasonable doubt as stated in the dictum of the Miller case has been discharged by the prosecution.

12. The offence of murder contrary to section 203 of the penal code is never complete without proof that the prosecution has brought the offence within the scope of the aforesaid section. This section demands that malice aforethought as defined in Section 206 of the Penal Code is manifested in the commission of the offence.

13. 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

14. It this juncture, putting carefully the prosecution side with that of the defence there is no hesitation that the sense of this killing of the deceased had the following elements which manifested malice aforethought. Such as the intent to kill, the intent to inflict great bodily injury, the venerable body parts targeted and directed at the deceased person is so clear of implied malice. The designated degree of injury with no evidence of justification or excuse as provided for in Section 17, 207, &208 of the penal code is sufficient to constitute malice aforethought. The defence of the 2nd accused expressed no defence of justification, provocation, excuse or mitigation. Obviously a mere denial cannot exonerate him of the heinous crime. In this respect see the principles in the cases of: Samwel Mosirigwa Mandere v Republic Kisumu CACRA No.59 of 1997. (Chesoni CJ.Omolo and Shah JJA), Ogeto v Republic (2004) 2KLR 14(Omollo Githinji JJA and Onyango Otieno Ag .JA, in Ernes Asami Bwire Abanga alias Onyango v Republic Nairobi CACRA No. 32 of 1990, In Morris Aluoch v Republic Nakuru CACRA. No.47 of 1996 (Gicheru Shah JJA and Bosire Ag. JA.

15. On this case the inference on malice aforethought flows on the testimony of PW1 and PW2 directed at the conduct of the 2nd accused and the great bodily injury inflicted with an objective to cause death. It was wanton and willful disregard of the right to life. Death or great bodily harm was the reasonable and probable consequences of the unlawful act by the 2nd accused to constitute the offence of murder contrary to section 203 of the penal code. The striking of the skull into pieces attended with dangerous weapons which had fatal consequences is proof of malice aforethought. Not only malice aforethought is present but there was actual design to kill and fatally injure the deceased. This is not a midway case on this element under Section 206 of the penal code. It places the 2nd accused on the hazard of homicide within the test statement of section 203 of the penal code. The matter however escaped the attention of the 2nd accused to this effect resulting in being the sole perpetrator in so far as the prosecution case demonstrates to qualify the rule of beyond reasonable doubt.

16. Did the prosecution proof that this is an offence which was committed under the doctrine of common intention in section 21 of the Penal Code. In the case of Dickson Mwangi Munene & AnothervRepublic (2014) eKLR it state that:“This provision has been interpreted and the doctrine of common intention dealt with by our court is several cases. In Solomon Mungai v. Republic (1965). EA 363, the predecessor of this Court held in order for this section to apply, it must be shown that the accused had shared with the other perpetrators of the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged."

17. In this case, none of the witnesses for the prosecution has alluded to the doctrine of common intention in the commission of the offence of murder against the deceased. What is more plausible from PW1 testimony are circumstances which are consistent with the offence having been committed by the 2nd accused. In my finding there is no doubt that the star witness for the prosecution case is PW1. She had the direct interaction with the 2nd accused, known to her as a spouse whom they enjoyed close consanguinity and affinity relationship. There was no mistaken identification and the sources of PW1 evidence was reliable and truthful. This is a person well known to PW1 for many years before the commission of the offence. The dispositions addressed by PW1 compared with 2nd accused defence, to wholesome extent remains uncontroverted. There is legally sufficient and admissible evidence of the accused identity placing him squarely at the scene of the crime. In light of the guidelines in R v Turnbull (1976) ALL ER the convincing evidence by PW1 answers the following questions in the affirmative:a.For how long did the witness have the accused under observation?b.At what distance?c.In what light?d.Was the observation impended in any way, such as by passing traffic or a press of people?e.Had the witness ever seen the accused before and how often?f.What time elapsed between the observation and the subsequent identification to the policeg.Were there any discrepancies between the initial description given by the witness and the actual description of the accused?

18. The case at bar hinges on the evidence of identification against the 2nd accused which I regard as authoritative to proof the series of events which culminated in the death of the deceased. In regard to the 1st accused, the witnesses testimonies was sketchy, shaky, unreliable and insufficient to make a finding on guilty and conviction of the 1st accused. It is important to note that what the prosecution contemplated against the 1st accused was never brought about by its witnesses. Needless to say, cumulatively there is no direct or circumstantial evidence to fairly place 1st accused at the scene of the crime in which the deceased was killed. For these reasons, 1st accused be and is hereby acquitted of any blameworthiness and is therefore set free unless otherwise lawfully held. Turning to the 2nd accused it is not disputed that he committed the offence of murder contrary to Section 203 as punishable under section 204 of the penal code. It is desirable to enter plea of guilty followed with a conviction for the offence which occurred on 23rd March, 2016. As we have already said, an offence so proved beyond reasonable doubt is subject to the application of Section 204 of the penal code on sentencing.

Verdict on sentence as against the accused 2nd accused 19. From the judgement of this court it is crystal clear that the 2nd accused has been found guilty of the offence of murder punishable under Section 204 of the Penal Code. The maximum sentence legislated for the offence is that of death by hanging. However, the sentencing principles applicable are discussed in Francis Karioko Muruatetu v Republic 2017 eKLR. The overlapping language combined in the decision sets out various parameters which govern exercise of discretion on individualized cases. In this respect, some of the significant factors adverted to by the court include:(a)Age of the offender,(b)Being a first offender,(c)Whether the offender pleaded guilty(d)Character and record of the offender,(e)Commission of the offence in response to gender-based violenc(f)The manner in which the offence was committed on the victim,(g)The physical and psychological effect of the offence on the victim’s family(h)Remorsefulness of the offender(i)Any other factor that the court considers relevant.

20. As will be seen in this judgement, The 2nd accused person premeditated the commission of the offence against the deceased. There are numerous unlawful acts which created the offence resulting the death of the deceased and in particular suffering fatal injuries to the most delicate parts of his body. In exercising discretion, one has to look at the severity of all the circumstances for this case. It is also pertinent to bear in mind the following principles:“That sentencing is not purely logical exercise and the troublesome nature of the sentence discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: Protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purpose overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions”

21. Generally, the more violent and serious offence, the more likely it is as a practical reality that the court will be persuaded to take into account the different concepts of sentencing to justify a custodial sentence. The role of a sentencing judge, is to impose an appropriate sentence to remedy an injustice to the victim and protect society against substantial risk of an offender with some kind of propensity against the right to life as demonstrated by the convict in this case. The principle of protection of society is of course especially important to facilitate rehabilitation and reintegration into the community as law abiding citizens on completion of the sentence.

22. I also recognize little remorse has been shown by the convict in this context being in violation of Article 26 of the Constitution on the right to life. As much as I appreciate that the determination of a just and appropriate sentence is a delicate one given the duty for this court to balance carefully the society goals of sentencing against the moral blameworthiness of the convict as reflected in the facts of this case. By the application of the law weighing the aggravating factors and mitigation by the convict and such attributes on sentencing I am satisfied that a sentence of 25 years imprisonment is fair and proportionate to the heinous crime committed as against the deceased. In this particular case, I factor in the provisions of Section 333(2) of the Criminal Procedure Code to order for the sentence so imposed to commence from the 30th of May 2016. It is so ordered. 14 days right of appeal.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF OCTOBER 2023In the presence of: -Mr. Mwangi for the StateM/S Tonia AdvocateAccussed.............................................R. NYAKUNDIJUDGE