[2022] KEHC 2228 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

(CORAM: CHERERE-J_

CRIMINAL CASE NO. 57 OF 2018

BETWEEN

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

AND

PAUL MWENDA KIMANI .......................................................ACCUSED

JUDGMENT

1) PAUL MWENDA KIMANI (Accused) is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are thatOn 22nd and 23rd June 2018 at Maua Location, Igembe South Sub-County within Meru County murdered WINFRED KAARI

PROSECUTION CASE

2) The prosecution case as narrated byPW1 Pauline Karimi and PW2 Simon Mwenda is that on 20th June, 2018, Accused who was married to their daughter Winfred Kaari arrived home with their child and left the child with them. That the following day, Winfred Kaari called and was informed her that their child was with them. That Winfred arrived home on 22nd June, 2018 and informed her that she was not consulted when the child was brought to her and asked them to contact the parents of Accused to help them resolve differences between her and Accused. That Winfred went away and left the child behind and on 23rd June,2018, the witnesses were informed that Winfred had died.

3) On 24th June, 2018, Accused reported to police that he had returned home the previous night to find his wife Winfred lying unconscious and had taken her to hospital where she died. A post mortem on Winfred’s body was conducted by Dr. Kariuki on 03rd July, 2018. The Postmortem form PEXH.1 reveals that deceased had an injury on the right breast and right leg and blood on her trachea and the doctor formed the opinion that she died of strangulation. PW3 PC Charity Muthoni testified that it was on the basis of medical evidence that Accused was suspected to have murdered his wife and was subsequently charged.

DEFENCE CASE

4) The accused gave a sworn statement and denied the offence. He stated that he was a bodaboda rider in Maua and was on duty on the night of 22nd and 23rd June, 2018 at about 11:42 pm when his neighbor Glory called him telling him that there were things burning in his house. That he rushed home to find the door locked from inside and when he called there was no response. That he broke the door and gained access to the house to find his wife lying on the bed face down and upon turning her noticed she had vomited on the bed. That his screams attracted neighbors who assisted him to take her out of the house and to hospital where she was pronounced dead. He denied threatening to kill or killing his wife and explained that he took their child to his in-law’s home because the child was on school break and they lived in town and her safety was at risk for she used to cross the road and expose herself to danger.

Analysis and determination

5) Section 203 and 204of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. They require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased through malice aforethought. The sections read as follows:

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

204. Any person who is convicted of murder shall be sentenced to death.”

6) The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves 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.”

7) When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under section 202 Penal Code which is punishable under section 205 Penal Code by a term of imprisonment extending up to life.

8) I have considered all the evidence availed in this case as set out above and the issue in question is whether the prosecution has proved the death of the deceased; that Accused caused the death and that he was actuated by malice.

(a) The death of the deceased

9) The postmortem form PEXH. 1 conducted by Dr. Kariuki reveals that the deceased had an injury on the right breast and right leg and blood on her trachea and the doctor formed the opinion that she died of strangulation.

(b) Proof thataccused person committed the unlawful act which caused the death of the deceased

10) Other than the deceased’s parent’s evidence that the deceased had complained that she had quarreled with Accused, none of the prosecution witness knew how and by whom deceased was murdered.

11) Accused raised the defence of alibi that was working as a bodaboda rider at Maua on the night of 22nd and 23rd June, 2018 and had returned home at about 11:42 pm when his neighbor Glory called and informed him that there were things burning in his house only to arrive and find his wife lying on the bed unconscious and she later died.

12) The Supreme Court of Nigeria in the case of Ozaki & Anor Vs The State (1990) LCN/2449(SC) held as follows:

“it is settled law that the defence of alibi raised by an accused person is to be proved on a balance of probability” and that for it to be rejected it must be incredible and that the defence of alibi must be weighed against the evidence offered by the prosecution.

13) Our own Court of Appeal in the case of Kiarie v Republic [1984] KLR held THAT:

“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable.

14) I have weighed the prosecution case vis a vis the defence of alibi raised by Accused and I have found that the defence of alibi was not rebutted and it introduces into the mind of the court a doubt that is reasonable considering that the case of the prosecution against him is not overwhelming.

15) Accordingly, and for the reasons set out hereinabove, I have come to the conclusion that the prosecution case is not so strong against the Accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence that it is possible that he indeed murdered the deceased.

c)Malice aforethought

16) Since the prosecution has failed to prove actus reus’,it would be futile for this court to delve into the issue of malice aforethought.

17) Consequently, I find Accused NOT GUILTY and order that he be set at liberty unless otherwise lawfully held. It is so ordered.

DELIVERED AT MERU THIS 10TH DAY OF FEBRUARY 2022

WAMAE. T. W. CHERERE

JUDGE

Court Assistant - Kinoti

Accused - Present

For the Accused - Mr. Munene for Mr. Mutegi Advocate

For the State - Ms. Mwaniki