[2022] KEHC 2678 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL CASE NO. 21 OF 2018

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

VERSUS

PATRICK NYAGA MUGO..........................................................................ACCUSED

JUDGMENT

1. The accused person herein was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and the particulars of the offence being that on the 29. 03. 2018 at Kavari Village in Manyatta Sub-County within Embu County murdered Lydia Wanja Nguru.

2. Upon arraignment, he pleaded not guilty and a plea of not guilty was entered. The case proceeded for trial and wherein the prosecution called a total of thirteen (13) witnesses and who testified in support of its case.

3. PW1, Dr. Bernard Owino Midia testified that at Embu level 4 hospital, he performed an autopsy on the body of the deceased Lydiah Wanja Nguru who had sustained severe burns. That the body was identified to him by two relatives named in the report. That externally, the deceased was completely charred on the external surface more on the right side of the chest and that there were multiple burn fractures of bones because of the burning process. That internally, the respiratory system showed complete burning of the right lung and soot deposit in the airways, the internal organs had cherry redness due to inhalement of carbon dioxide during the burning process. The intestines were charred at almost charcoal status. He thus formed the opinion that the deceased died of 110% burns which charred almost all the body organs beyond the burns of the 1st, 2nd, or 3rd degree and that the intercranial bone was due to severe burning that bordered on cremation. It was his opinion that the severe burning was likely to conceal any injuries existing before the burning.

4. PW2, Lillian Karimi Ngure testified that the deceased was her younger sister and the accused was the husband. That on 29. 03. 2018 at around 0500 AM, Newton Kinyua brother to the accused informed her that fire had broken out at the deceased’s house. That together with her son, they drove to her sister’s house which is 15 minutes away. On arrival the whole house was on fire but the roof was still intact. The house was made of timber and the roof was made of iron sheets. That she called the fire brigade at Embu County through one Ngoroi to go and help but she was told that the fire fighting vehicle was out of order. That when she came out of the car, she met Mama Maria a neighbor to the deceased coming from the compound who informed her that she never heard any screams from the house before the fire. She further said Lydia was inside the house while the accused was outside the house. That only the accused and the deceased were living in the house as the children were in boarding school. That she did not see the accused and could not tell what started the fire.

5. PW3, Kelvin Muchangi Nyaga testified that on the material day, his wife woke him up since there were some noise coming from outside of the house and people were shouting ‘fire’,’fire’; that on getting out, he noticed a house burning and so he decided to carry along a jerrican of water headed for the scene. That on reaching there, he realized that it was the house of the accused person which was on fire. He stated that it was only the bedroom that was burning and that the accused person who was well dressed stood out screaming that his wife was burning. That the fire became fierce while the crowd continued to pour more water. It was his word that upon the fire dying, he realized that the deceased body which lay in the bathroom near the bedroom, was almost burnt beyond recognition. That he picked a blanket and with assistance of Jackton Kariuki and Morris, they wrapped the body of the deceased. Upon cross examination, he confirmed that he recorded three statements; two at Manyatta police station and another one at Mugoya Police Station but he confirmed that he did not know what caused the fire.

6. PW4, Jairus Mutuku Omwenga testified that he is a retired fire officer at public works ministry in Machakos County. That on 08. 08. 2018, he received a letter from the County Criminal Investigation Officer to hold an inquest on the death of the deceased. He then carried out investigations on the possible causes of the fire and thereafter came up with the following findings: he classified the fire as that of class ‘A’ after observing what was burnt which included wood and other flammable materials. It was his evidence that the principle cause of fire was carelessness; he then produced the report as Ex 2. Upon cross examination, he stated that the cause of fire was arson in as much as he could not tell who exactly caused the fire. He recommended that more investigations be carried out by the police so as to establish the cause of the fire.

7. PW5, Moses Njuki testified that he is a retired chief and that the deceased was known to him. He stated that he knew the accused herein since he had been a sub area but then he was sacked due to incompetence. It was his case that on 23. 03. 2013 at around 5. 00 a.m., the sub area called him informing him of the fire that had engulfed the house of the accused herein and that upon reaching the scene, he found many people trying to put the fire out. That the roof had already caved in and that the wife of the accused was burning inside the house. That the accused who was smartly dressed looked very confused and so he decided to call the Officer Commanding Manyatta Police Station and the Assistant Commissioner who thereafter came to the scene. He further stated that the deceased and the accused person herein had a troubled marriage and that at one time, he had acted as a mediator in solving their problems, and the accused was warned to keep peace in his home.

8. PW 6, Henry Kariuki Kiura stated that on the material day, he went out after having heard lots of noise and that is when he saw a burning fire. That upon calling the sub area, he told him that the accused person’s house was on fire and so he decided to go to the scene only to find that the house had already caved in and the onlookers were trying to put out the fire. He stated that it caught his attention how smartly dressed the accused person was since he had a trouser and a jacket and he seemed uneasy. That he managed to see the body of the deceased who was lying on her left hand holding her cheek but was burnt beyond recognition. Upon cross examination, he confirmed that he did not know how the fire started.

9. PW7, Miseta Gachagua stated that on the material day, she heard distress calls and upon waking up, she saw fierce fire from the accused person’s home which is about 10 meters away from her home. Upon reaching there, she saw the accused person standing outside his house and that he was dressed in a shirt, trouser but without shoes. It was her statement that she had not seen the deceased on the morning of the fateful day and equally on the previous day. But upon being referred to her statement specifically on para 1 of page 2 which stated that she heard somebody shouting ‘ndiyo huyu’, she rebutted that she was so confused that morning. She proceeded to state that prior to the year 2018, the accused person and the deceased had had problems and they used to quarrel and in the end, they would mend their differences. Upon cross examination, she stated that she was not aware how the fire started.

10. PW 8, Mercy Njoki Mwaniki testified that on the material day while she was still asleep, she heard distress calls and so she decided to approach the scene and on reaching there, she heard people saying that the deceased was inside the burning house. That she felt so confused and weak on seeing what had happened; that people later told her that the deceased had died in the fire. On cross examination, she stated that she could not tell who or how the fire started.

11. PW9, Joseph Muriuki Njeru testified that he was the assistant chief of Kamutiri Sub location for the period covering the material date when the alleged offence was committed. That on the material day, he heard distress calls coming from Kavari village and so he called the village elder to enquire where the calls were coming from. He then proceeded to the scene and upon reaching, found people gathered trying to help put off the fire. That when the fire was finally put off, he saw near the bedroom what appeared to be a human body which was badly burned. It was his further evidence that when the OCS Manyatta arrived, he summoned the accused person to the house of PW7 and the accused person was so unsettled; that upon being questioned by the OCS, the accused person stated that when the fire started, he ran out and left his wife in the house since he was not able to rescue her. It was his word that previously, the accused had threatened to kill the deceased. Upon cross examination, he stated that there was no point in time when the deceased reported to him that the accused had threatened to kill her.

12. PW10, PC Daniel Kiragu testified that on the material day, he visited the scene and photographed the scene of arson. That he took photographs numbers MFI 3(a) – (f) which showed a general view of the scene showing a temporary house which had been burned down. He then wrote a certificate dated 05. 02. 2019 to accompany the photographs. Upon cross examination, he stated that he did not find out the cause of the fire since his work was just to take the photos of the scene.

13. PW11, Edwin Murimi Njagi testified that the deceased and the accused person were their family friends; that on 27. 03. 2018, she went to collect fertilizer from the accused person’s home and upon reaching, she found the accused with the deceased and so she took half of the fertilizer and left the rest for another day. That upon visiting the home again to pick the other half, she did not see the deceased and upon reaching the following day, she received information that the deceased was no more.

14. PW 12, Edwin Cliff Murimi testified that on 28. 03. 2018, he was picked from school only to be told of what had happened. It was his statement that the deceased and the accused person who are his parents used to quarrel a lot and at times, the accused person could physically assault the deceased. Upon cross examination, he confirmed that it was normal for his parents to quarrel and in his opinion, he linked the accused person to the death of his deceased mother because of the disputes that they used to have.

15. PW 13, Cpl. Lucas Juma testified that he was one of the investigating officers and that he was assigned to carry out investigations in the matter. That a file from the ODPP was forwarded to him and in his view, there were gaps that needed to be covered before the matter could be referred back to the DPP. He stated that on 30. 07. 2018, he visited the scene together with his colleague – Cpl. Ochido – and they found that the scene had been burned about 14 months prior. That a house together with other structures had been burned down and the debris were intact. That they traced the witnesses that could help in this case and further recorded their statements. It was his evidence that the fire allegedly had been as a result of electrical failure. That they were assigned a fire officer from the county government who proceeded to investigate the cause of the fire; he proceeded to state that the officer formed an opinion that the fire may have been as a result of arson and a flammable material may have been used. That it was probable that the fire could have started from the bedroom and that was in consonance with the other witnesses’ statements.

16. He proceeded to state that the witnesses that he interviewed confirmed that the accused person and the deceased had a troubled marriage. That he interrogated the accused person on his whereabouts on the material date and he stated that he had returned home at around 7. 00 p.m., had supper with the deceased, they watched television until around 1. 30 a.m. and thereafter they slept only to be woken by the fire from the house; that the accused was not hurt nor did he suffer any burns. He proceeded to confirm that from what he gathered, the accused person was well dressed and appeared disturbed. That the fire was reported by PW5 and that they recorded the matter in the O.B. but he was informed that after the incident, someone attacked the reporting office and destroyed documents among them the said entry.

17. Upon cross examination, he confirmed that the matter was minuted to him four months after the incident. That he had previously opened inquest number 10/2018 and at that time, nobody had been charged in connection with the incident. Further, that one Lilian Karimi, sister to the deceased had reportedly complained that she was not satisfied with the investigations and further that the bank account of the deceased had been tampered with; but upon investigations, he realized that they were just normal deductions. It was his take that he was not able to know how the fire started and further that it surprised him that the accused had said that he was woken by the fire but on the same breadth, he was equally well dressed but then could not save his wife. That it was not usual for a person to sleep with his clothes on.

18. After the close of the prosecution’s case and vide a ruling delivered on 28. 09. 2021, the accused herein was placed on his defence upon the court finding that the prosecution had established a prima faciecase.

19. DW1, Patrick Nyaga Mugo (the accused herein) gave a sworn statement that on the material day, he was a sleep with his late wife (deceased herein). That they were the only ones in the house since their children are in boarding school and that at around 4. 30 a.m. he heard a loud sound and saw a huge fire. That he woke his wife so that they could escape and he put on his clothes which were near the table where he placed them the previous night and so he managed to open the door and escaped. That he called the wife severally but he did not manage to get the deceased out since the fire was so fierce and eventually nothing was saved from the house. That everything was burned and he only escaped in a trouser and a shirt and that the jacket he had on, was given to him by his brother. It was his word that he has never known what exactly caused the fire and that he never killed his wife. Upon cross examination, he stated that the relationship between his wife and himself was good and that the only reason he was not injured is because he ran out of the house almost immediately.

20. DW2, Michael Muriithi Peter testified that on the material day, his wife woke him up due to the distress calls. That upon waking up, he went out of the house and saw a lot of smoke emanating from the house of the accused person; he thus went back to his house and brought along two buckets of water to go help in putting out the fire. That he took the accused person to his house whereupon he gave him a jacket to wear and upon asking of the whereabouts of the deceased, the accused person informed him that his wife never came out of the house. It was his evidence that there were times when the accused person and his wife could have differences and even in some occasions, he had mediated on their differences. On cross examination, he reiterated that he was not aware what exactly caused the marital problems between the accused and the deceased.

21. Upon the close of the defence case, the prosecution chose to rely on the evidence on record in support of its case while the defence chose to rely on the submissions made at no case to answer stage.

22. The defence submitted that the prosecution failed to prove the elements of the offence of murder in that; there was no evidence linking the accused to the death of the deceased. They proceeded to submit that the prosecution had adduced evidence which is circumstantial and which only portrays the accused as a suspect. That the accused herein was suspected since he was the only person who was with the deceased on the fateful night. The defence therefore urged this court to acquit the accused.

23. I have considered the evidence presented before this court by the prosecution and the defence evidence. It is trite that in any charge preferred against an accused person, the prosecution has the duty to prove the elements of the same. (See Se)ction 107 of the Evidence Act Cap 80 of the Laws of Kenya. The degree/standard of prove is always that of “beyond any reasonable doubts” [See was Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373].

24. In the instant case, the accused person is facing a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. Murder is defined as “when any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” The elements of murder and which the prosecution ought to prove are;

a. the death of the deceased occurred

b. the death was caused by unlawful acts;

c. that the accused committed the unlawful act which caused the death of the deceased; and

d. that the accused had malice aforethought.

(See Anthony Ndegwa Ngarivs Republic [2014] eKLR).

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

26. As for the death of the deceased having occurred, it is not in doubt that the deceased herein died. PW4 Dr. Benard Owino Midia testified that he conducted post mortem on the body of the deceased who had sustained severe burns. As such the deceased herein died as the death was proven.

27. As to the death having been caused by unlawful acts, under Article 26 of the Constitution of Kenya 2010, right to life is protected and can only be taken away under the circumstances provided therein. What this means is that every homicide is unlawful unless authorized by law or excusable under the law or under justifiable circumstances such as self-defence or defence to property. (See Guzambizi Wesonga v Republic [1948] 15 EACA 63). PW 1 gave evidence that the deceased herein died of 110% burns which charred almost all the body organs. That it was beyond burns of the 1st, 2nd, and 3rd degree. The death of the deceased herein was definitely caused by acts which are not excusable or authorized by law and thus the same was unlawful.

28. As for the accused having committed the unlawful act which caused the death of the deceased, I have perused the prosecution’s evidence as presented before the court. I note that none of the prosecution witnesses witnessed the incident in which the deceased herein died. From the evidence on record, it was the statement of the investigating officer that he received a file from the ODPP and in it, were gaps that needed to be covered before the matter could be referred back to the DPP. He stated that on 30. 07. 2018, he visited the scene together with his colleague – Cpl. Ochido – and they found that the scene had been burned about 14 months prior. That a house had been burned down and the debris were intact. That they traced the witnesses that could help in this case and further recorded their statements. He proceeded to state that the witnesses he interviewed confirmed that the accused person and the deceased person had a troubled marriage. That the fire was reported by PW5 and that they recorded the matter in the O.B. but he was informed that after the incident, someone attacked the reporting office and destroyed documents among them the said entry. Upon cross examination, he confirmed that the matter was minuted to him four months after the incident. It was his take that he was not able to know how the fire started. He further stated that PW1 formed an opinion that the cause of the death of the deceased herein was as a result of 110% burns which charred almost all the body organs. There has been no link pointing towards the accused person herein as having been the person responsible for the death of the deceased. No evidence was adduced to prove so.

29. From the evidence adduced by the prosecution, including that of the investigating officer, none was able to tell the court how the fire started. There has been evidence that the accused person was smartly dressed on the material date and that it was not usual that he would be dressed in such a manner at that particular time and the fact that the deceased and the accused had a troubled marriage. The prosecution’s case seems to be based on circumstantial evidence and suspicion but however strong the suspicions may be;

“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt; Circumstantial evidence can be a basis 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 innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.” [See in the case of Sawe v Rep[2003] KLR 364].

30. In the case of Republic v Kipkering Arap Koskei & Another [1949] 16 EACA 135, theCourt for Appeal for Eastern Africa held as follows:

“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. The burden of proving the 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.”

31. That being the case, it therefore follows that the prosecution did not prove that the accused person herein was the one who caused the death of the deceased; despite having succeeded in establishing the death of the deceased and the cause of the said death. Having failed to do so, it is my considered view that the prosecution failed to prove all the elements of the offence of murder. It will therefore be an academic exercise to interrogate the issue as to whether the prosecution was able to prove malice aforethought.

32. From the foregoing, the upshot of this judgment is that the accused person herein is acquitted of the charge of murder.

33. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF FEBRUARY, 2022.

L. NJUGUNA

JUDGE

...................................................for the Accused

..........................................................for the State