[2022] KEHC 13877 (KLR)

Republic v Wawira (Criminal Case 17 of 2018) [2022] KEHC 13877 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13877 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Case 17 of 2018

LM Njuguna, J

October 3, 2022

Between

Republic

Prosecution

and

David Murithi Wawira

Accused

Ruling

1. The accused herein David Muriithi Wawira was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on 26. 07. 2018 at Gregon Area in Embu Township within Embu County, jointly with others not before the court murdered John Mwangangi Musili.

2. The prosecution called a total of four (04) witnesses in support of its case.

3. PW1 Aden Mohammed testified that on 25. 07. 2018, he was on patrol together with his colleagues within the area of Embu Township when they received information from unknown members of the public that there was a person subjected to mob injustice in the Gregon area. That they rushed to the scene and found a crowd and some officers who had already arrived at the scene. That there lay a human body which was partially burnt and so they called an officer who took the photographs of the scene and thereafter they took the body to Embu Level Five mortuary. On cross examination, he conceded that in as much as only one accused person was presented before the court, it was not possible for him to have perpetrated the mob injustice alone.

4. PW 2, Dr. Wangari Kamau a pathologist stated that she carried out the postmortem on the body of the deceased and on the external appearance, the body exhibited mixed degree burns, the face was 9%, anterior trunk 18%, right upper limb 9%, left arm 4. 5% and total burn surface of upto 40%. On internal appearance, the respiratory system on the right, there were multiple fractures from 3rd – 8th. There was right side haemo-thorax and, on the left lung there was lower robe contusion. In the end, she formed the opinion that the cause of death was multiple injuries that were in the head, chest and 45% body surface mixed degree open to flame burns.

5. PW3, Mohammed Juma testified that he received information that someone had been killed at Gregon area in Embu Township and he rushed to the scene only to find that the body had been taken away by police officers. That he was told that the deceased had allegedly been killed by three people who had picked him from a bar; that his investigations showed that the deceased had been beaten to death. It was his evidence that he proceeded to the said bar and upon interrogating a bar maid, he was informed that three people had entered the said bar but she did not know their names. That he later received information from the members of the public that the accused herein was responsible for the death of the deceased and that the members of the public had threatened to kill him if he was not arrested.

6. PW4 stated that he was the investigating officer and that he opened a file and recorded the statements from the witnesses and upon reviewing the evidence, he arrested and charged the accused herein.

7. In order to sustain a conviction, the prosecution must prove all the ingredients of the offence of murder beyond any reasonable doubt.

8. Under section 306 of the Criminal Procedure Code Cap 75 Laws of Kenya, this court has a duty, upon close of the prosecution’s case, to make a ruling or a decision on whether an accused person has a case to answer.

9. Under Section 306(1), when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is no evidence that the accused person committed the offence should, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.; whilst under Section 306(2) on the other hand, when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person committed the offence, the court should proceed to place the accused to his defence and whereby the accused is supposed to present evidence in his defence.

10. As such, at this stage, this court’s role is to consider the evidence on record and make a determination as to whether the same presents a prima facie case that would warrant this court to call upon the accused person to give his defence.

11. Under section 211 of the Criminal Procedure Code, a prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. [See Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 334 and 335].

12. I have given due consideration to the evidence on record and I find that the issue for determination is whether the prosecution proved its case to the required threshold to warrant the accused herein be placed on his defence.

13. Murder is defined under Section 203 of the Penal Code thus:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

14. From this definition, the state has the onus of proving that death has occurred: that death was caused by an unlawful act or omission on the part of the accused person before the court and that the accused person caused that death with malice aforethought.

15. Malice aforethought is established under Section 206 of the Penal Code, when there is evidence of:i.Intention to cause death of or grievous harm to any person whether that person is the one who actually died on not.ii.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.iii.Intent to commit a felony.

16. There is no further evidence expected from the prosecution given that the case has been closed. When the evidence by the prosecution witnesses is put to the test, the standard laid down by the law as enunciated in the above case, can this evidence pass the test? Can this court, properly directing its mind to the law and evidence convict the accused if no explanation is offered by the defence given that the onus of proving a criminal case lies with the prosecution?

17. I have considered the evidence presented before this court by both the prosecution and the defence. 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 Section 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].

18. 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 occurredb.the death was caused by unlawful acts;c.that the accused committed the unlawful act which caused the death of the deceased; andd.that the accused had malice aforethought.(SeeAnthony Ndegwa Ngarivs Republic [2014] eKLR).

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

20. As to whether the death of the deceased occurred, it is not in doubt that the deceased herein died. PW2 Dr. Wangari Kamau testified that she conducted post mortem on the body of the deceased and wherein she formed the opinion that the cause of death was multiple injuries that were in the head, chest and 45% body surface mixed degree, open flame burns. 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. [See Article 26 of the Constitution of Kenya 2010].

21. I note that none of the prosecution witnesses saw the incident in which the deceased herein was killed. From the evidence on record, it was the evidence of the investigating officer that the arresting officer informed him that there was somebody in custody who had been arrested by the administration police who were on patrol. That by the time he was assigned the case herein, the accused was suspected to have committed the offence and had already been arrested. He stated that he is the one who did all the processes that are required in a criminal case. In cross examination, he conceded that the deceased was subjected to mob injustice by known people but only the accused was arrested. In the same breadth, PW1 stated that while on patrol with a colleague within Embu Township, they received information from unknown members of public that there was a person who was subjected to mob injustice. That upon making their way there, they found a crowd but he could not identify any one. On cross examination, he conceded that indeed the deceased was subjected to mob injustice but only one person was arraigned before the court; he further stated that he never saw the accused at the scene

22. In short, no proper investigations were done to determine who exactly caused the unlawful death of the deceased herein. As stated, there is no direct or circumstantial evidence connecting the accused with the death of the deceased.

23. 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.

24. In the end, this court has no alternative but to make a finding that the prosecution has not established a prima facie case. I therefore acquit the accused person herein of the charge of murder.

25. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3RD DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE.................... for the Accused.................... for the State