[2017] KEHC 2207 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE NO. 85 OF 2014

Lesiit, J.

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

VERSUS

PETER MWANGI GACHUIRI ............... ACCUSED

JUDGEMENT

1. The accused person PETER MWANGI GACHUIRIis charged with Murder contrary to section 203 as read with section 204of thePenal Code.The particulars of the offence are as follows:

“PETER MWANGI GACHUIRI on the 24th day of August 2014 at Mlango Mkubwa area in Kamukunji District within Nairobi County murdered VICTOR AMWAYI KULAVI.”

2. The prosecution has called a total of 6 witnesses. These were the mother of the deceased, PW1; the Agent in-charge of managing the house where the accused lived, PW2; the two investigating officers PW3 and PW6; the officer who took a charge and caution statement from the accused, PW4; and the doctor who performed post-mortem on the body of the deceased, PW5.

3. In summary PW1 informed the court that two girls who were strangers to her came calling her from her house and requested her to proceed to where her son was lying. She stated that she found the deceased unconscious and the forehead swollen and bleeding. PW1 took the son (deceased herein) to Kenyatta National Hospital where he died as he received treatment.

4. PW2 had nothing much to say except to confirm that the accused was a tenant in one of the rooms in the flats he used to manage at Mlango Kubwa. He also confirmed that there was a caretaker of those flats who was called George Nduati.

5. PW3 was the Investigating Officer of this case. He said that by the time he took over the case, statements had been recorded from potential witnesses. PW3 stated that on the 11th of September 2014, the accused went to Pangani Police station accompanied by his father and that he immediately took them to PW4 who recorded the charge and caution statement from the accused. PW3 stated that he later took the accused to the Police Surgeon for mental assessment and medical examination.

6. On being cross examined, PW3 stated that he had arrested and charged one George Nduati with the murder of the deceased because it was reported the deceased and George had fought and that someone had died. PW3 stated that it was after they had arrested the accused and re-submitted the file to the ODPP for advice that they were directed to discharge the said George. PW3 also admitted that the accused had made a report of assault which was entered in OB No.80 of 24/8/2014.

7. PW4, CIP Joseph stated that he took a charge and caution statement from the accused in the presence of his father. He produced the statement as P.Exhibit1 without any objection from the defence. PW4 read out the statement and in summary, the accused person was narrating an incident that took place at the flats where he lived, at around 7. 30 p.m. on the date in question. The accused narrated that he lived on a first floor of the flat and that some people who included the deceased in the case and two others went banging on every door on the floor while announcing that someone must die that day. The accused stated that when he came out of his room, he found his neighbour also standing outside and both of them asked the deceased and his colleagues to leave them alone. The accused stated that the deceased replied by asking them whether they knew who they were.

8. The accused stated that the deceased and his colleagues accosted him and proceeded to assault him with fists and kicks. The accused stated that when he fought back, the two withdrew giving him a chance to escape back into his house. The accused said that he decided to escape and report the matter to Pangani Police Station. However on his way down the stairs, he met the two assailants, one holding a broken bottle. The accused said that armed with a piece of wood he hit one of his accosters on the head upon which he was able to run away to Pangani Police Station where he reported an assault.

9. PW5 Dr. Bernard Owino stated that he conducted post mortem on the body of a male African adult of 21 years of age. PW5 stated that he observed that there was clotted blood in the nose and right ear areas. He also observed that there was swelling on the right frontal area above the right eyebrow which had a tear. PW5 observed that internally the deceased had clotting of blood in the scalp on the right and left sides of the forehead. He further observed that there was internal bleeding within the brain. He said that he formed an opinion that the deceased died of severe head injury due to blunt force trauma.

10. PW5 stated that the circumstances surrounding the blunt force trauma causing the deceased death needed further investigations as the same could be caused by one falling on a hard surface. PW5 opined that from the nature of the injuries, there was a primary force of blunt trauma which might have occasioned a fall causing a secondary force trauma. The doctor stated that only an eye witness account could help clear the circumstances leading to the deceased death and how the trauma was caused. He produced the post mortem as P.Exhibit2.

11. The accused opted to give a sworn defence. The accused defence in court an account similar to the events as the one contained in the charge and caution statement P.Exhibit1. However the accused retracted P.Exhibit1 and stated that sections of the statement were added and that some of the signatures on the statement were a forgery as they were not his. The accused stated that he managed to escape from his accosters by jumping from the balcony of his house after which he reported the assault incident at Pangani Police Station. In effect the difference between his defence and his alleged statement was the fact that the accused in his defence made no reference to hitting anyone on the head.

12. Learned Prosecution Counsel Ms. Njuguna submitted that the prosecution had proved beyond reasonable doubt that the accused had occasioned the deceased death by committing an unlawful act. Counsel urged that the accused had confessed to hitting the deceased with a block of wood and that he ought to have known that such an act would cause death. Counsel urged that the confession from the accused had been taken down as duly prescribed in section 25A of the Evidence Act and that the accused defence amounted to mere denials.

13. Counsel for the accused Mrs. Omungala urged that the Prosecution witnesses did not mention the accused in their testimonies. Counsel urged that the doctor’s evidence could not ascertain whether the injury occasioned on the deceased was from a blow or a fall. Counsel urged that this was a case of a house breaking which led to the retaliatory attack on the house breakers by the residents. Unfortunately there was no evidence of house breaking or retaliatory attacks.

14. Mrs. Omungala learned counsel for the accused cited Philomon Kiplagat Rono V. Rep (2013) eKLR for the proposition that the prosecution evidence had inconsistencies that cast a wide shadow of doubt on the veracity of the prosecution’s case.

15. Having carefully considered all the evidence adduced before court and the submissions by all counsels I find that the issues for determination in this case are:

a) Whether the prosecution has proved that the accused unlawfully caused injury to the deceased which injury caused the death of the deceased.

b) Whether the statement of charge and caution recorded by PW4 was a confession and whether it can sustain a conviction.

c) Whether the accused defence is plausible and reasonable.

16. The accused person faces a charge of murder contrary to section 203 as read with section 204 of the Penal Code which stipulates as follows:

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

17. Section 206 of the Penal Code sets out the circumstances which constitute malice aforethought in the following terms.

“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:

1. 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,

2. 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;

3. An intent to commit a felony;

4. 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.”

18. The onus and evidential burden lies with the prosecution to prove its case against the accused beyond any reasonable doubt. The prosecution must prove that it was the accused person who by an unlawful act or omission caused the death of the deceased. The prosecution must also equally prove that at the time the accused committed the unlawful act or omission that led to the deceased death, he had formed an intention to either cause death or grievous harm to the deceased.

19. As to whether the prosecution has proved that the accused unlawfully caused injury to the deceased, which injury caused the death of the deceased and whether the statement of charge and caution recorded by PW4 was a confession, and whether it can sustain a conviction.None of the prosecution witnesses witnessed the incident hence there was no eye witness account of how the deceased died. PW1 who saw the deceased last before he died found him lying unconscious near where they lived. The deceased did not regain consciousness before his death and he therefore did not make any statement to PW1 that can be used to determine how he met his death or who caused him the injuries that led to his death.

20. The prosecution is entirely relying on the charge and caution statement taken by PW4. Regarding the charge and caution statement, I will first look at what the statement contained and consider its evidential value. I will then discuss the accused person’s response to the statement and the effect of that response.

21. PW4 testified that he took the charge and caution from the accused on the 11th September 2014 at 3p.m. He testified that accused father was also present at the time though he declined to countersign the statement despite PW4 requesting him to do so.

22. I have looked at the content of the statement. The accused narrates an encounter he had with two people, among them the deceased, while at the room in the flats where he lived. The statement narrates the events leading to accused escape from the scene, culminating in his report of assault at Pangani Police Station.

23. The statement states that some men went to the 1st floor where the accused lived, and banged on every door declaring that someone must die that day. It was at that point that the accused came out of his room as did a neighbour and they both asked the men to leave them alone. The accused, according to the statement requested to be left alone which infuriated the group of two and which led the deceased to attack the accused by choking him. Soon thereafter a second person joined the deceased in attacking the accused. The accused narrates that on sensing death, he kicked himself free causing the two who had attacked him, and a third who was moving towards them to retreat.

24. No sooner had the accused collected money from his room and walked out; he met face to face with two of the assailants. The accused narrated that on realising that one of the assailants had a broken bottle, he used a piece of wood he collected from the ground to hit one of them. The accused states that he ran back to the 2nd floor and jumped to a balcony on 1st floor and then into a waste heap from where he went to the Pangani Police Station.

25. The statement shows that some days later the accused learnt from his neighbour one Samuel that his life was in danger if he returned to the apartments. Secondly he learnt from the said neighbour that one of those who had attacked them had died.

26. Section 25 of the Evidence Act defines a confession as follows:

“A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.”

27. Having considered the contents of P.Exhibit1, I find that the charge and caution statement is not a confession. I find that the accused has not admitted attacking the deceased or causing him injuries out of which he died. The accused said he hit someone on the head who fell but does not say it was the deceased he hit. The accused did not say that after he hit the person, he fell and died. Or that he later learnt that he died out of the injuries he, accused inflicted from him. The charge and caution statement fell short of establishing that the person the accused hit with a piece of wood was the deceased neither does it establish that he caused the deceased any injury.

28. What the prosecution required was other evidence to create a nexus between the accused and the death of the deceased. Had the prosecution adduced evidence to show that the accused hit and injured the deceased, then that evidence could have given credence to the accused statement. To the contrary the prosecution did not have any eye witness who saw how the deceased met his death. The nexus between the accused report of an assault on himself and the death of the deceased is a mystery the prosecution failed to resolve.

29. The accused statement clearly indicated that one Samuel who was a tenant at the same place incident occurred gave him certain information about the aftermath of the incident. Since the police were privy to that information, they should have sought for Samuel in order to record a statement from him. They did not do so.

30. The accused did not oppose the admission of P.Exhibit1 when it was produced in court by PW4. In his defence however, the accused retracted that statement saying on oath that it was not the statement he gave to the police staing that there were additions to the account he gave to police.

31. I will quote a case which is authoritative to this court on the issue of accused right to retract their statements. It is the case of Kanini Muli v Republic [2014] eKLRwhere the court of appeal held:

“Secondly it has for a long time been accepted that even after the trial court has ruled a confession is admissible, the accused is at liberty to call evidence to show that the confession was not voluntary. In KINYORI S/O KARIDITU VS REGINA (1956) EA 480, the Court of Appeal for Eastern Africa, after setting out the procedure that ought to be followed in a trial within a trial, made the following fundamental point:

“The broad principle underlying that procedure is that the accused is entitled to present, not merely to the judge but also to the assessors, the whole of his case relating to the alleged extra-judicial statement; for the judge’s ruling that it is admissible in evidence is not the end of the matter; it still remains for both judge and assessors individually (or, where there is a jury, for the jurors) to assess the value or weight of any admission or confession thereby disclosed and also the accused is still at liberty to try and persuade them that he has good reason to retract or to repudiate the statement concerned or any part of it.” (Emphasis added).

32. While it is the accused right to retract a statement at any stage of the case, I find the retraction was an afterthought. The reason the accused gave for retracting the statement was that the content was changed and the signatures alleged to be his were forgeries.

33. I looked at the signatures alleged to be those of the accused and found them similar with only one or two having very minimal variation. I find that those were accused signatures. His denial that he did not make the statement is a lie and an afterthought.

34. That said, the accused defence in court gave similar narration as the one contained in his retracted statement. Save for leaving out the detail of how he hit one of the assailants when he met them at the stairs as he tried to escape from the area of the scene.

35. As I have already stated, the charge and caution statement is not a confession and is valueless to the prosecution. The statement confirms accused defence that the deceased was in the group of people who came banging on all the doors on first floor threatening death to one of them.

36. It also supports accused defence that he was attacked and injured as a result of which he reported to police and was issued with a P3 form. The P3 form was produced by PW6 the Investigating Officer as P.Exhibit3. It confirms that the accused had swollen eyebrows, swollen hand, bruises on the hand and elbows. He also had a swollen neck. The injuries were assessed as harm.

37. The prosecution case was further weakened by the fact that, PW3, the first officer to investigate this case admitted in cross-examination that he first arrested one George Nduati for the murder of the deceased. He later released him following directions from the ODPP. His evidence was that George Nduati was the caretaker of the flats where accused lived. PW3 testified that he arrested the caretaker because he fought with the deceased on the same night of the incident.

38 .The evidence is clear that the deceased and others were on a rampage to attack and were aggressive against all who crossed their path. The prosecution should have treated the caretaker, George as a witness. His evidence was critical in order to show at which time he fought with the deceased and what injuries if any he sustained. That evidence may have assisted the court to determine whether the injury causing death was caused before or after the encounter with the accused. Consequently the court may have been able to know who caused the fatal injuries to the deceased.

39. I find that the prosecution failed to call crucial witnesses in this case. Samuel, alluded earlier in this judgment, and George Nduati were all crucial witnesses. They had facts which may have shed light to this case. Regarding failure to call crucial evidence, the law is very clear. In BUKENYA & OTHERS (supra), LUTTA Ag. VICE PRESIDENT held:

“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.

Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”

40. The prosecution did not mention why these persons were not called as witnesses. The evidence adduced is hardly sufficient to support the charge. In the circumstances the court is entitled to draw an adverse inference that had the witnesses not called testified their evidence would have tended to be adverse to the prosecution case.

41. The burden of proof in this case lies with the prosecution to prove its case against the accused person beyond any reasonable doubt. The evidence adduced by the prosecution fell short of proving that the accused person unlawfully caused any injury to the deceased which resulted in his death. The evidence of the prosecution was disjointed and inconclusive and in the circumstances not credible.

42. Having taken into consideration the above, I find that the prosecution failed to prove the charge of murder contrary to section 203 of Penal Code against the accused person. Accordingly I give the accused person the benefit of doubt and acquit him under section 322 of the Criminal Procedure Code.

DATED AT NAIROBI THIS 11TH DAY OF OCTOBER, 2017.

LESIIT, J

JUDGE