[2020] KEHC 941 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO. 40 OF 2014

REPUBLIC...................................................................PROSECUTOR

VERSUS

PATRICK KIRIMI MUKETHA......................................1ST ACCUSED

ALFRED MUGAMBI MUNYUA ..................................2ND ACCUSED

MORRIS THURANIRA MUNYUA..............................3RD ACCUSED

J U D G M E N T

1. Patrick Kirimi Muketha (1st accused), Alfred Mugambi Munyua (2nd accused) and Morris Thuranira Munyua (3rd accused)are charged with the offence of Murder contrary to section 203 as read with 204 of the Penal Code, Cap 63 of the Laws of Kenya.

2. The particulars of the offence are that on the 21/12/2013 at Rwanyange location, Imenti North District within Meru County, the accused murdered Japheth Kijuki Mugambi.

3. The Prosecution called seven (7) witnesses in support of its case whereas the defence called six (6) witnesses.

4. On the material day, Micheal Thuranira (Pw2), Peter Kinyua Kibaiko (Pw3)and Emmanuel Muchui (Pw6) were in a hotel within Kithia Marketat about 9pm. The hotel was next to a bar where there were about 10 patrons drinking. They heard a commotion from the bar and when they looked through the window connecting the bar and the hotel, they saw four people surround the deceased. They identified three of them to be the 3 accused.

5. The 1st accused then hit the deceased on the head with a stool commonly known as “Sina taabu” whereby the deceased fell down. The 2nd accused joined the 1st and 3rd accused and started beating the deceased who was then on the ground. They then dragged him outside the bar and escaped using a motor cycle.

6. The witnesses were able to see the incident as there was electric light both inside and outside the bar. The commotion took about five minutes. They knew the accused, as they are their neighbours at home.

7. The following morning, Benjamin Kinoti Mwereri (Pw1)and Joseph Makoronya (Pw4) were called by the owner of the bar and one Kimathiand informed of the demise of their brother and cousin, respectively. They rushed to the scene and found the body of the deceased being recovered by the police. They later identified the body for post-mortem at the Meru Level 5 hospital mortuary on 23/12/2013.

8. Dr. Wendo Kubai (Pw5)produced the post mortem report prepared by Dr. Guantai. Externally, the deceased had a large bruise on the face extending to the maxillary section. Internally, the head had a skull fracture on the frontal bone of 6 cm extending to the inner table. There was intracerebral haematoma. It was opined that the cause of death was severe head injury secondary to blunt trauma on the head. The post mortem report was produced as Pexh 1.

9. Justus Mosoti (Pw7) investigated the case. He was at the time attached to Meru Police Station. He was directed by his OCS to proceed to the scene which he did with two other officers. At the scene they found an agitated crowd. The relatives of the deceased identified the body as that of Japheth Muguna.

10. In his investigations, he established that the deceased was hit with a stool by the 3 accused. A 4th suspect was still on the run. He also established that the 2nd accused was the one selling in the bar. After assaulting the deceased, the accused dragged him outside and disappeared using a motorcycle. The 1st and 2nd accused disappeared for five months before being arrested while the 3rd accused was arrested two months later at Nchinu market. The 4th suspect, Robert James was still on the run.

11. In their defence, Patrick Kirimi Muketha (the 1st accused) gave an unsworn testimony. He stated that on the material day he was conducting boda boda business at Rwanyanga. He denied seeing the deceased on that day. He told the Court that Pw1 and Pw2 had a grudge with him because they had previously been charged for breaking and stealing his property in Meru Criminal Case No. 360 of 2011.

12. Alfred Mugambi Munya (the 2nd accused) also gave unsworn testimony. He confirmed that on the material day, he was at the bar having been employed as a bar attendant by the owner. That the deceased came with his brother to the bar at about 5pm. After taking some alcohol they left never to return. He denied that any fight broke out at the bar. He did not see either the 1st or 3rd accused in the bar. He sold alcohol until 11pm when he closed. It is only the following day that the owner of the bar informed him of the presence of the deceased’s body outside the bar.

13. He attributed Pw2’stestimony to the fact that he had reported him to this brother for the offence of stealing a sheep resulting in his being charged in Cr. Case No. 447 of 2006.

14. Morris Thuranira Munyua (the 3rd accused)gave sworn testimony. He was a brother in law to the deceased. On the material day at about 10 p.m. he carried Benjamin Muriungi on his boda boda from Mbeu to Kithia Market. After that, he went home. He only went to the scene the following morning where he saw both the 1st and 2nd accused as well as the prosecution witnesses. He was not in good terms with Pw2 because the latter had stolen his sheep and ate two of its young ones. This had led to the latter being charged in Cr. Case No. 447 of 2006wherein he was convicted and sentenced.

15. D3w1 Benjamin Thunarira told the Court that on 20/12/2013, he was called to Kithia Bar byPw2 who asked him for his money as he had leased his land. That the 3rd dropped him at the bar and left. He saw Pw2 and others in the bar. That the 1st and 3rd accused were not in the bar.

16. D3w2 Njuki Kariuki, the Court Administrator Meru Law Courts produced evidence to show that the original file for Meru Criminal Case No. 477 of 2006 Republic versus Micheal Muriirahad been disposed of under Disposal of Records Act Cap 14 of the Laws of Kenya. According to the court register, Pw2was convicted of the offence of stealing contrary to section 278of the Penal Codeand sentenced to serve two years’ probation.

17. D3w3 Joseph K. Igweta testified that he was the area chief of Rwanyange Location up to 2016. He confirmed that Pw2had been charged with the stealing of a sheep belonging to the 3rd accused person. He had participated in the arrest of Pw2but did not know the outcome of the trial. According to him, Pw2and the3rdaccused were not on good terms.

18. For the Prosecution to secure a conviction on the charge of murder, it has to prove four ingredients against an accused person. These are; proof of the fact of death, the cause of death of the deceased, proof that the death of the deceased was the direct consequence of an unlawful act or omission on the part of the accused which constitutes the ‘actus reus’ of the offence and proof that the said unlawful act or omission was committed with malice afterthought which constitutes the ‘mens rea’ of the offence.

19. Pw2, Pw3 and P6told the Court that on the material day at about 9 pm, they saw the deceased in the subject bar being assaulted and dragged outside. Pw1andPw4 were called the following day and saw the deceased’s body outside the bar and later identified the same for post-mortem. The post-mortem report produced by Dr. Wendo Kubai (Pw5)showed that the cause of death was as a result of severe head injury secondary to blunt trauma on the head. That post mortem report was produced as Pexh1. In this regard I find that the fact and the cause of death of the deceased was proved to the required standard.

20. The next ingredient is proof that the death of the deceased was the direct consequence of an unlawful act or omission on the part of the accused. I have considered the evidence of both the prosecution and that of the defence.

21. The evidence of the prosecution is consistent that the deceased was assaulted by the accused in a bar and later on left at the entrance thereto. According to Pw2, Pw3and Pw6,they saw the 3 accused jointly with a 4th suspect assault the deceased. The 1st accused hit the deceased on the head with a stool popularly known as “sina taabu”.On falling down the other 2 accused and a 3rd suspect fell on him with kicks and blows.

22. The body of the deceased would be found the following morning on the entrance to that bar. There was electric light both inside and outside the bar. The prosecution witnesses were less than 10 metres from where the assault took place. The incident took place for about a whole 5 minutes. There was enough lighting and opportunity for the witnesses to identify the assailants. The assailants were known to the prosecution witnesses.

23. The accused’s defence was a denial. Save for the 2nd accused, the others denied being at the scene. They laid malice on the part of the prosecution witnesses. It was based on Criminal Case Nos. 360 of 2011 and 447 of 2006where Pw2was alleged to have been charged and convicted of stealing. He was sentenced to serve 2 years’ probation.

24. I have considered the alleged malice. In that case, only Pw2had been charged. Even if the evidence of Pw2was discarded on the alleged malice, the testimonies of Pw3 and Pw6 would remain impeached. Their evidence placed the accused at the scene. Their testimonies was firm and consistent. It remained unshaken that they saw the 3 accused and a third person by the name Robertassault the deceased on the material night.

25. They testified that the 1st accused hit the deceased on the head with a “sina taabu”chair. That evidence resonated well with the findings of the post-mortem. The serious injury that led to the demise of the deceased was the fracture of the skull.

26. As regards the defences, I found them to be hollow and mere denials and an afterthought. The alibi of the 1st and 3rd accused could not displace the strong consistent and corroborative evidence of the prosecution witnesses. The alibis alluded to were not reasonable as opposed to the positive testimonies of Pw3 and Pw6.

27. The 2nd accused confirmed the presence of the deceased at the bar. That the deceased left shortly after 5pm. He however, did not give the name of the alleged brother of the deceased who was alleged to have been with the deceased up-to 5pm. This defence was not put to the prosecution witnesses when they testified.

28. Accordingly, I find and hold that weighing the evidence of the prosecution witnesses against that of the accused, the evidence of the defence is but an afterthought. The prosecution proved to the required standard that the death of the deceased was the direct consequence of an unlawful act on the part of the accused persons.

29. For malice aforethought, I have taken into consideration the weapon used and the nature of the assault. The intent of the accused was clearly to inflict grievous harm upon the deceased. Malice aforethought was therefore proved beyond reasonable doubt.

30. In the end, I do find all the accused persons guilty for the offence of Murder contrary to section 203 as read with section 204 of the Penal Codeand convict them accordingly.

SIGNEDat Nairobi.

A. MABEYA, FCIArb

JUDGE

DATEDand DELIVEREDat Meru this 10th day of December, 2020.

JUDGE