[2017] KEHC 1069 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL CASE NO.75 OF 2010

REPUBLIC ……………………….…………………………PROSECUTOR

V E R S U S

PAUL NGEI MUSYOKA……...…….....…..………….…………..ACCUSED

J U D G M E N T

Paul Ngei Musyokais 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 that on 28/11/2010 at Ntitune Village Rwambo Sub-Location in Imenti South District, murdered Mawira Musyoka alias Mawia Musyoka (the deceased).

In total, the prosecution called five witnesses and was lead by learned counsel Mr. Mulochi. On the other hand, the defence was led by learned counsel Mr. Mbaabu. In his defence, the accused testified on oath and did not call any other witness.

Prosecution’s case:

Silvester Munyoki Musyoka (PW1), is a brother to the accused. He was at home on 28/11/2010 with his mother. He lived next to his mother. When walking away from his mother’s house towards his house which was about 40m away while, accused’s house was a bit further away, accused came from the direction of the shamba to his home and told them that it was the two of them remaining. They were left wondering what it meant; that accused came back with a panga and fork jembe and warned PW1 to wait wherever he was if he was a man; PW1 started to walk to his house whereas the mother had entered her house and asked accused what he wanted and he walked away; that suddenly accused emerged from the fence that surrounded PW1’s house, and without a word, dropped the fork jembe, raised the panga; PW1 lifted his hand and so did his mother and he was cut on the hand – the court was shown a long scar on the left hand; that the mother received a small cut on the hand; that PW1 got hold of accused and a scuffle ensued as he told the mother to run and call PW1’s other brother Wilson Kitheka; that the mother stopped to pluck some plant that helps stop bleeding; that since he was feeling dizzy, he let go of accused, ran towards his brothers leaving the mother applying the herbs to her wound. After a few metres, he turned and saw Paul had taken the folk jembe and it landed on the mother’s head. PW1 continued towards the mother’s place, called his brother for help. His brother came and reached the mother before him, removed the fork jembe from the head which was injured; they reported at the police post and were given a letter to go to hospital. PW1 was taken to Chogoria Hospital while the mother was transferred to Kenyatta National Hospital where she died after 2 – 3 days. PW1 stated that there has been a dispute between accused and the mother, deceased since their father’s death because the accused did not want the sisters to be given part of their father’s land. According to PW1, he shares the same father and mother with accused.

PW2 M M a nephew to PW1 and accused was about 13 years old when the deceased died. He recalled that he was in their house when the accused’s wife ran there panting saying her husband, accused wanted to kill her. On going out, he saw accused passby while armed with a panga, reached PW1’s house; that PW1 was at the door, and accused cut PW1 on the hand and his grandmother who had arrived there on hearing noise was also injured on the finger; that PW1 entered his house while the grandmother went to her house holding some herbs to her injured finger, while PW1 had gone to Wilson’s house; that accused came with a fork jembe, panga and spade and stabbed the deceased with the fork jembe on the head and that thereafter he walked away; that PW2 ran to call his father Samwel Musyoka who was working in his farm; that Wilson reached where the mother was first, removed the fork jembe; PW2 said that this incident was at the deceased’s home not in the farm.

PW3 Wilson Nthaka Musyoka a brother to accused and son to the deceased recalled that on 28/11/2010, he was called back home only to find that PW1 had been injured on the hand and claimed to have been cut by accused. He called a motorcycle to take PW1 to Hospital as he went to look for the deceased. He found the deceased had fallen near the cow shed and a fork jembe was still lodged in her head but she was still alive. He removed the fork jembe, they reported at police station on the way to hospital, picked PW1 and took both to Chogoria Hospital; the deceased was transferred to Kenyatta National Hospital where she died. PW3 stated that before this incident, accused had been wanting to kill the mother despite the pastor and elders intervening. PW3 corroborated PW1’s evidence that the dispute was over distribution of their late father’s land; that accused did not want any to be given to the sisters. He denied that him and other brothers attacked the accused while in the farm.

PW4 PC William Kiprutoof Mitunguu Police Station on 28/11/2010, received a report from PW1 that he had been attacked by his brother and injured. PW4 observed that PW1 had an injury on the left hand; that PW1 also informed him that his brother had also attacked the mother and he did not know the condition of the mother; that in company of another officer, they proceeded to the scene on a motorcycle, found the deceased had been removed and taken to hospital; was shown the scene and recovered a fork jembe which was blood stained; they were also shown where accused allegedly quarreled with his brother Samuel and he cut some maize and bananas. According to PW4, he learnt that accused and Samuel quarreled over use of land whereby accused wanted Samuel to remove his crop before they mature; that Samuel ran to Wilson’s house; that the deceased went to intervene when she was informed. He learnt that there was a dispute over land between accused, the brothers and mother.

PW5 Dr. Peter Mwaniki Ndegwa performed the postmortem on the deceased and found a penetrating stab wound on the right parietal fracture which was semi-circular, a bruise on frontal parietal scalp and a depressed fracture on the right frontal parietal scalp, circular in shape and laceration to the right parietal lube (brain) and there was subarachnoid and subdural haemorhage. He formed the opinion that the cause of death was crania-celebral injuries due to sharp force trauma consistent with assault.

Accused testified on oath in his defence. He admitted to killing the mother but that it was not intentional; that the deceased was his step mother who brought him up and whom he loved a lot; that his biological mother left when he was young; that in the morning he passed by the deceased’s house, greeted her and went to meet James Kinyua Mwangi who had come to do work for him; that the deceased served them with tea; he then asked the deceased if she had got the identity card she was looking for so that they could file a Succession Cause so that their father’s estate could be shared out, but she said it was not yet ready; he went to work on the farm, started to weed with a panga when he suddenly saw 3 people had surrounded him, his two half brothers Samuel Musyoka, Silvester Musyoki and the son of Samuel Musyoka called Martin Mwangangi; that two were armed with pangas while one had a walking stick; that Martin started to cut bananas and maize which accused had planted because they alleged that he had trespassed onto Samuel’s land; that the brothers threatened him with death and a fight broke out though he did not want to fight because he knew they would beat him as he was an only child of the mother; that he shielded himself using the banana plants as they pursued him; he managed to run where the mother was, she came out of the house and he stood behind her and she asked the three why they wanted to kill their brother; that PW1 had a panga with which he wanted to cut him; that the deceased shielded him and the panga cut him on the forehead (small scar seen). And that the worker in the cowshed came to assist the deceased and snatched the panga from PW1 and threw it; that PW1 went to get a fork jembe from the cow shed; that he ran to the Mukuyu tree and when PW1 raised it up accused hit him with the panga and that is when he was cut and that is why accused was charged with offence of grievous harm; that Samuel hit him with a stick from behind and he started bleeding from the face and he fell and fell on the fork jembe; that by then he was not seeing well and so he picked the fork jembe and threw it and he heard the deceased say ‘my child you have beat me’; he wiped his face and noticed the fork jembe on his mother’s head; he ran off for fear of his life; at 8. 00 p.m. he went to report at Mitunguu Police Station but found his brothers had already arrived there and could not explain what had happened. He said that he threw the fork jembe to prevent the others from picking it and using it. He denied ever having disagreement with the deceased before that date.

The accused faces a charge of murder under Section 203 of the Penal Code. The burden rests on the prosecution to prove beyond any doubt the following:

(1) The death and cause of death of the deceased;

(2) That the death was caused by the unlawful act or omission of the accused;

(3) That the accused had malice aforethought or an intention to cause grievous harm or kill as defined under Section 206 of the Penal code.

The death and cause of death of the deceased is not in doubt. The Doctor (PW5) testified as to the cause of death which is corroborated by the evidence of PW1 – 3. Accused did admit to throwing a fork jembe which landed on the deceased’s head fatally injuring her.

The only question that remains to be answered is whether the accused intentionally injured his mother or not. In answering the above question, the court has to consider the two narrations of events given by PW1 & 2 on one hand and the accused on the other.

After carefully considering the evidence on record, there is no doubt that the underlying issue that led to the events of 28/11/2010 is a dispute over land.

According to PW1 & 3, accused had a dispute with the deceased over land because accused did not want their sisters to have a share of their father’s land. Despite the fact that PW1 & 3 said that the issue had been reported to elders, the pastor, priest and even the police, none of this evidence was availed to the court.

During the cross examination of PW1, 2 and 3, the defence was alleging that accused’s brothers had attacked him while in the shamba and that a fight broke out. That was denied by PW1 – 3. The accused persisted even in his defence that his deceased brother Samuel, PW1 and Samuel’s son Martin attacked him and it spilt to the home where the mother was. Although PW1 & 2’s narration of the events on how accused attacked PW1 was consistent, yet I find that a dent was made in their testimony by PW4’s testimony. PW4 the investigating officer went to the scene soon after the occurrence. PW4 said he arrived there after 30 minutes and from his findings, the dispute had begun between Samuel and the accused. Besides, PW4 alluded to having seen maize, banana plants allegedly cut down by accused. Incidentally PW1 & 2 steered clear of that allegation. They never mentioned that Samuel was involved in the dispute that day or that any maize/beans plants were cut down by accused or any other person. This piece of evidence by PW4 tended to shed more light on what may have actually happened that day and in my considered view, PW1 & 2 did not tell the court the whole truth as to how the incident all began and how the deceased came to meet her death. Accused’s defence actually detailed how some maize/bananas were cut down on allegations that he was trespassing onto Samuel’s land.

In effect, the accused was raising a defence of self defence which is provided for under Section 17 of the Penal Code which reads as follows:

“Section 17, subject to any express provisions in this case or any other law in operation in Kenya, criminal responsibility for the use of force in defence of person or property shall be determined according to the principles of English Common Law.”

The Common Law principles applicable to self defence were laid down in the case of Palmer v Republic (1971) AC 814 and approved in Republic v McInnes 55 Cr.App.R.551 where Lord Morris said:

“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances..... some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction.... If the attack is over and no sort of peril remains, then the employment of force may be a way of revenge or punishment or by way of paying off an old score or may be pure aggression.......”

The case of Beckford v Ford (1987) 3 Ann ER 425, laid down the test in self defence to be that a person could use such force in the defence of himself or another as was reasonable in the circumstances as he honestly believed them to be. It means that the defence depends on a subjective test rather than an objective one; that each case has to be determined on its own merit and peculiar circumstances. The Kenyan courts have applied the above stated principles in several cases one being Robert Kinutia Mungai v Republic (1982 – 88) IKAR 611; CRA 414/2012 Ahmed Muhamed Omar & others v Republic:

In the case of Njeru v Republic (2006) 2 KLR 46, the court held as follows in respect of the defence of self defence.

“(i) A killing of a person can only be justified and excusable where the action of the accused which caused the death was in the course of averting a felonious attack and no greater force than was necessary was applied for that purpose. For the plea to succeed, it must be shown by the accused on balance of probabilities that he was in imminent danger or peril arising from a sudden and serious attack by his victim. It must also be shown that reasonable force was used to avert or forestall the attack.”

Accused explained that during the fight, he threw the fork jembe which landed on the mother though he never intended to injure her. If indeed accused was under attack from his brothers, then he may have apprehended that his life was in danger and hence the act of throwing the fork jembe. In such a scuffle, without seeing where the fork jembe would fall, of course it would have fallen anywhere and on anybody.

In my view if the accused had intentionally taken the fork jembe and brought it down on the deceased’s head, I believe injuries would have been deeper and more serious and I doubt that the deceased would have survived the two days or three that she lived.

I am persuaded by the accused’s narration of the events that he threw the fork jembe during a fight in self defence and he never intentionally meant to injure the deceased or kill her but in self defence.

Accused mentioned in his defence that one James Kinyua Murungi had come to the home to do some work for them and that he was present during the said scuffle. Although the accused showed intention of calling him; he gave up and in my view since the said witness was only mentioned in the defence, the prosecution could have sought the court to invoke Section 309 Criminal Procedure Code to call him. PW1 had been asked about a neighbour by name ‘Murungi’ but PW1 denied that he was present.

In my view, accused’s narration of events taken together with the prosecution’s evidence, I find that there is a doubt in PW1 and 2’s evidence as to how the deceased met her death and I will prefer the narration by the accused. In the end, I find that the prosecution has not proved to the required standard that accused had malice aforethought.

I therefore acquit accused of the offence of murder contrary to section 203 of the Penal Code. Instead, I will find him guilty of the offence of manslaughter contrary to section 202 Penal Code as read with Section 205 of the Penal Code. I convict him accordingly.

Dated and Signed at Nyahururuthis 29th day of November, 2017.

………………………………..

R.P.V. Wendoh

JUDGE

Delivered by JUSTICE A. MABEYA atMERU this 7TH day of DECEMBER 2017.