[2015] KEHC 490 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE NO.56 OF 2011

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

VERSUS

PAUL MWANGI MACHARIA.........................................ACCUSED

JUDGMENT

On 19th June 2011 one Joyce Wambui Kimani (PW1) was attending to domestic chores at her home in Kiuu Village, Gatundu when her neighbour Paul Mwangi Macharia (the accused) approached her with the intention to buy eggs and chicken from her. She sold him some eggs and led him to the chicken pen to select the chicken. As she bent to get the chicken he suddenly attacked her. She screamed and her husband one Charles Kimani Wairire (the deceased) rushed from the house only to be slashed by the accused. He died shortly thereafter. The accused surrendered himself to the police and was arrested. By information dated 1st July 2011 the DPP preferred a charge of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge are that on 19th June 2011 at Kiuu Village in Gatundu South within Kiambu County murdered Charles Kimani Wairire.

The prosecution case

The key witness in this case was Joyce Wambui Kimani (PW1). She narrated how on the material day at about 3p.m, she was in her kitchen when the accused who was a neighbour called her out. Her husband (the deceased) was in the main house. The accused asked her to sell him some eggs. She obliged. Then the accused asked to buy chicken and she invited him to the chicken pen some 10 metres behind her kitchen. She bent to show him the chicken then realized he was not concentrating she asked him why he was not looking at the chicken. He asked to be shown again and she bent down to show him. It was then that she looked up and saw that the accused looked anxious. When she bent down the 3rd time, he cut her with a small sword. She asked in shock what he was upto. He put back the small sword and pulled out a bigger one from under his jacket and stabbed her saying ‘you normally boast and cause your husband to beat up my brother”

PW1 screamed and her husband rushed out. The accused attacked her husband by cutting him on the head. When she turned to assist him the accused chased her away towards the road. She continued screaming and neighbours rushed to her aid. She told them to rush into the compound to assist her husband. One Margaret rushed but came back screaming that he (the deceased) was dead. According to PW1, the accused disappeared in the commotion. Her husband was taken to Gatundu hospital by neighbours but he was pronounced dead on arrival. She was transferred from Gatundu hospital to Avenue hospital where she was admitted for 4 days for the injuries she sustained. PW1 described the cut on the deceased’s head as deep. She said that the cut exposed white brain matter.

James Wairire Kimani testified as PW2. He was the son of the deceased and PW1. He told the court that his late father was 65 years old and that the accused whom he identified in the dock was their neighbor whose home was barely 100 metres from their home. He received a call from his sister Everlyne informing him that their parents had been attacked at home by the accused. He rushed to hospital where he found his mother bleeding from the neck and arms while his father had already passed on. He later identified the body for post mortem. PW2 however did not witness the incident leading to his father’s death.

Francis Gathecha Karanja testified as PW3. He was a neighbour to both the deceased and the accused. He was requested to rush the deceased and PW1 to hospital. When he entered their compound, he found Baba Boi (the deceased) lying on the ground between two water tanks. He had a deep cut on the head and part of the brain was exposed. He said that the deceased was still alive then and he took both the deceased and PW1 to Gatundu hospital. When the deceased was pronounced dead on arrival, PW3 went to report at Gatundu police station and he accompanied the police back to the Gatundu hospital where the police saw the body.

PW4 was Peter Ndungu Kibutu, a relative of the deceased’s family. His testimony was that he was informed of the attack upon his in-laws by PW1. He later accompanied PW 1 to the Kenyatta University mortuary to identify the body. He saw the cut on the deceased’s face and the head.

Dr. Peter Muriuki Ndegwa testified as PW5. He told the court that he performed a post-mortem on the body of the deceased at Kenyatta University Funeral home on 21st June, 2011. He observed deep cut wound on the right and the left scalp measuring 14 cm long and 17 cm long respectively; a horizontal cut wound on the right upper arm upto the bone exposing tendons and tissues; and a deep cut wound on the left cheek fracturing the mandible bone. Internally, he found fractures on the skull and lacerations on the brain and extensive intra cranial haemorrhage. Dr. Ndegwa formed the opinion that the cause of death was severe head injury due to sharp force trauma consistent with assault. He produced the post mortem report detailing the findings as Exhibit No. 1

The investigations officer in the case was NO. 57586 Sgt. Benjamin Wambua. He testified as PW6. He was at the Gatundu Police Station on 19th June 2011 when he received a report from PW1 regarding the incident. She was driven to the station by PW3. He referred her to Gatundu hospital. Shortly thereafter PW3 went back to the station to report that the deceased had passed on. Together with PC Maremba and PC Driver Abdi they went to Gatundu hospital where he saw the deceased’s body and asked that it be taken to the mortuary.

PW6 further stated that he visited the home of the deceased immediately. Thereafter he went back to the station. He found the accused already at the station having made a report that he had attacked two people within Kiganjo area. He interrogated him and put him in the cells pending further investigations. The following day when the relatives of the deceased went back to the station they identified the suspect as the one who had attacked the deceased and PW1. They confirmed the same information that the accused had given when he made a report.

The defence case:

At the close of the prosecution case, the court found that the accused had a case to answer and put him on his defence. He made an unsworn statement in which he stated that his name was Paul Mwangi Gichuru and that he was also known as Macharia, a name he took from his grandfather. He told the court that he was aware of the charge against him. He stated that he did not deny the charge but only wished to explain the incident to the court. He narrated that he had gone to the deceased’s house on the material day to buy eggs and chicks. That he found her outside the house and she agreed to sell him eggs at Ksh.150. That she showed him some chicks and he bought some for Kshs.500. That after he gave her the money she entered the kitchen.

The accused went on to state that the deceased’s wife Joyce Wambui came out and told him to go away as she was the farmer. That he responded that all he wanted was to buy. She went inside the kitchen and came out with a panga and an axe. She hit him and in the course of the struggle her husband came out to intervene. He (the accused) tried to escape but the water tank blocked his way and he decided to defend himself by hitting the deceased first with his walking stick then with the panga. He hit him on the head with a panga. Thereafter he left for the police station but not before asking a taxi man to go and take the deceased to hospital. The accused further stated that he had no intention to harm the deceased and corrected that he was the one who cut the deceased and not his wife as he had earlier told the police.

The submissions

Both the defence and the prosecution tendered submissions. Learned defence counsel Mr. Anambosubmitted that PW1’s evidence was not corroborated and that the accused acted in self defence as it was PW1 who first attacked the accused. Secondly, he submitted that the evidence did not demonstrate mens rea on the part of the accused and that therefore a charge of murder would not stand. He prayed that the court finds that the accused acted in self defence and that the appropriate charge should be manslaughter.

The prosecution on the other hand submitted that it had established the case of murder. Learned prosecution counsel Mr. Okeyo submitted that on 17th June 2011 the accused had vowed to teach PW1 and the deceased a lesson because the deceased had allegedly accused the accused’s younger brother of interfering with the fence. He contended that the threat demonstrated that the accused intended to kill the deceased.

The Law

This being a murder trial, the three critical elements of the law must be satisfied. The prosecution must prove;-

i. The death of the deceased and the cause of such death.

ii. That the accused committed the unlawful act which caused the death of the deceased; and

iii. That in committing such unlawful act, the accused had malice aforethought.

The death of the deceased was easily proved by the prosecution. Indeed it was not disputed by the defence. Further, the deceased’s wife PW1 testified to having been attacked by the accused. When she raised an alarm her husband came to her assistance only to be cut on the head by the accused. She saw the head injuries suffered by her husband and described that the cut was so deep that the brain matter was visible. The couple’s son (PW3) as well as the investigating officer (PW5) also saw the extensive injuries on the deceased’s body. Dr. Ndegwa testified that the cause of death was severe head injury due to sharp force trauma consistent with assault. His description of the injuries corroborated the description given by PW1, PW2, PW3 and PW6 who all stated that the deceased had deep cuts on his head and face. It was clear to the court from the evidence that the deceased died an unlawful death.

On the 2nd element it is important for the prosecution to establish beyond reasonable doubt that the accused and no one else caused the unlawful death of the deceased. From the evidence tendered by PW1 she was at home on the fateful afternoon when the accused appeared and requested to buy eggs and chicks from her. The accused attacked her without any provocation and when her husband came to her rescue the accused also attacked and fatally wounded him. PW1 struck the court as a candid and straight forward witness. She was consistent in her narration of the events. I believed her testimony. She had no reason to lie and to implicate her neighbour for such a heinous act. Indeed the accused himself in his unsworn statement confirmed before court that he actually visited the deceased’s home and purchased eggs and chicks. He also confirmed that there was a fight in which he hit the deceased.

PW6 the investigating officer testified that the accused surrendered himself to the police at Gatundu Station where he made a report that he had harmed someone and that the residents were baying for his blood. I find therefore that the totality of the evidence before court squarely puts the accused at the scene of crime and directly links him to the fatal attack of the deceased. Further, I find that PW1’s evidence is corroborated in every material aspect by other witnesses contrary to the submission by defence counsel that PW1’s evidence was not corroborated.

The final element to be determined is whether in attacking and killing the deceased, the accused had malice aforethought. Section 206 of the Penal Code provides:-

a. an intention to cause the death of or to dogrievous harm to any person, whether that person is the person actually killed or not;

b. knowledge that the act or omission causingdeath 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 felony

d. an intent 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.

In Republic Vs. Whybrow (1951) 35 Criminal Appeals 146cited by Ochieng J. in R. V. Ahmed Mohammed Omar & 5 others [2012] eKLR. Lord Goddard C.J. explained the term malice aforethought as follows:-

“In murder the jury is told-and it has always been the law- that if a person wounds another or attackers another either intending to kill or intending to do grievous bodily harm, and the person attacked dies, that is murder, the reason being that the requisite malice aforethought, which is a term of art, is satisfied if the attacker intends to do grievous bodily harm. Therefore, if one person attacks another, inflicting a wound in such a way that an ordinary reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder.”

Put in another way, malice aforethought can be inferred from the acts of an accused person. Such actions may include threats and actual execution of threats; the act of arming oneself with a lethal weapon and using such weapon on a person. See Nzuki V. Republic [1993] KLR 171. See also Republic Vs. Tubere S/o Ochen [1945]EACA 63.

In the present case, evidence has clearly established that the accused left his home and went to the neighbour’s home with the pretext of wanting to purchase eggs and chicks. In the evidence of PW1, he pulled out a small sword and later a bigger sword and attacked her without warning. He removed the sword from under his jacket.

I consider that the fact that the accused visited his neighbours while armed with two swords; and the fact that he viciously attacked both PW1 and the deceased that he had intention to kill or at the very least to inflict grievous bodily harm. Evidence further shows that the deceased suffered such gruesome injuries which demonstrate that the attacker intended no other result than to kill him. The accused slashed him several times on the head. PW1, PW2, PW3 and PW6 who had occasion to see the injuries stated that the brain matter was exposed. The pathologist confirmed that the multiple cuts on the head were deep and measured 17 and 14cm. I am convinced that his actions of arming himself, going to the neighbours’ home and viciously attacking the couple demonstrate malicious intent.

I must observe that it appears from the evidence of PW1 that she was the initial target of the vicious attack. The accused first attacked her in the chicken pen. Her alarm caused the deceased who was then in the house to rush to her rescue. In the process, the accused picked a panga and slashed him on the head killing him. From this sequence of events, one might say that the accused may not have intended to kill the deceased but his wife. Such a proposition would however bring the accused within the provisions of Section 206(a) of the Penal Code cited above. He would still be liable.

I have therefore concluded from the actions of the accused of arming himself, going to the neighbour’s home and viciously attacking them that he had the mens rea to commit murder.

The defence case

The accused admitted to having gone to the deceased’s house to buy eggs and chicks. However, it is unclear from his statement whether he first met the deceased or his wife (PW1). Initially he states that:

“I went to my neighbour to buy eggs. I found her outside the house around 3p.m. I asked her if she could sell me eggs. She agreed. I told her I needed 10 eggs. We agreed at 150/-. She also showed me chicks for sale and I offered some. I gave her Kshs.500/ and she entered her kitchen. Then the wife (Joyce Wambui) came out of the house and she told me to go away. That she was the farmer…..”

From this statement (despite using the word she) it would appear as if the accused was implying that he transacted with the deceased before PW1 came out and tried to send him away. He however later states that PW1 went into her kitchen and came out with a panga and an axe with which she hit him and that when he struggled with her, her husband (the deceased) came out and tried to intervene. His statement with respect to his presence at the deceased’s house, purchasing eggs and chicks tallies with the testimony of PW1. The only deviation is the aspect of the actual violent confrontation in which he portrays PW1 as the aggressor. I dismiss the apparent contradiction as an attempt to project PW1 as the aggressor. A careful analysis of his statement shows that he was all along dealing with PW1 and not her husband.

The accused further states that he hit the deceased first with his (the accused’s) walking stick then with a panga when he came out to intervene in the fight between himself and PW1. He makes the admission in the following words;-

“I decided to defend myself by trying to hit the deceased first with my walking stick, then with the panga. I hit him on the head with a panga.”

He says he found himself facing the deceased and water tanks in the compound obstructed his escape and so he hit the deceased in self-defence. The defence of self defence was taken up by the learned defence counsel. In final submissions, he urged the court to find that the accused acted in self defence and further find that manslaughter was the appropriate charge and not murder.

The accused’s defence set out above raises two issues. The first is whether PW1 was the aggressor and the second is whether the accused can invoke the defence of self-defence. On the first issue the accused has admitted going to the deceased’s home. As stated earlier he seemed to imply that he transacted with the deceased before PW1 attempted to chase him away. From the evidence, PW1 could not have been the aggressor. If she had any violent tendencies or ill intention against the accused, she would not have sold him eggs or shown him the chicks or in any way entertained him in her home. She would have sent him away in the first instance.

On the issue of self-defence, it is on record that PW1 suffered injuries inflicted by the accused and was admitted in hospital for 4 days. Her husband suffered major injuries and succumbed. The accused on the other hand suffered no injury. He told the court that the injury he has on his leg had nothing to do with the incident as he had earlier sustained a fracture in a road accident. This scenario points to a person who was prepared for an attack which caught his victims unaware.

Self defence is a defence founded in common law. Section 17 of the Penal Code (Cap.63) provides for the application of the common law principles. These principles have been refined over time. Key among them is that a person who faces imminent danger has a right to defend himself. The type of defence he makes would be determined by the circumstances and in every case the test to be applied in determining whether or not the type of defence was justifiable is a subjective one. See Palmer Vs. R [1971] A.C. 814; R. Vs. Mc INNES, 55 Cr. Appl. R 551and Anthony Njue Njiru V. R [2006] eKLR all cited by the Court of Appeal in Ahmed Mohammed Omar & 5 others Vs. R [2014] eKLR

In the circumstances of this case however, the accused went to the deceased’s home armed and attacked the deceased and his wife. He cannot be heard to say that he acted in self-defence. He was an intruder and the aggressor. He was in pursuit of an unlawful mission. Under the law he cannot avail himself the defence of self-defence.

Consequently, I dismiss the entire defence as not credible. It does not in any way shake the prosecution’s case which I have already found to have been proved beyond reasonable doubt.

In the final analysis and for the reasons set out above, I find the accused guilty of the murder of Charles Kimani Wairire. I convict him under section 203 of the Penal Code.

Orders accordingly.

Judgment deliveredanddatedat Nairobi this 30thday of September, 2015

R.LAGAT-KORIR

JUDGE

In the presence of:

………………………………………….: Accused

…................................................: Court clerk

...................................................: For the Accused

...................................................: For State