[2019] KEHC 3436 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL CASE NO. 15 OF 2017

REPUBLIC……………………………………………PROSECUTOR

VERSUS

WILFRED MARITA MARANGA…………………………ACCUSED

JUDGMENT

Wilfred Marita Maranga, the accused herein, is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The charge is framed as follows:

WILFRED MARITA MARANGA: On the 19th day of March, 2017 at about 1500hrs at Dandora Phase V within Nairobi County murdered SHARON WAMBUI NDUVELE.

The accused denied committing this offence necessitating this trial. The prosecution called a total of six (6) witnesses while the accused called three (3) witnesses. At the conclusion of the trial, it is the duty of this court to determine whether the prosecution has proved this case beyond reasonable doubt.

The evidence by the prosecution shows that the accused and PN (PW1) were living as husband and wife. The couple had three children: W, the deceased, PS (PW3) and a small baby B. M. The deceased and PS were not biological children of the accused. At the time of this incident the family lived in Dandora Phase 4 in Nairobi. On 19th March 2017 in the morning, 9. 00am, PW1 assigned the two daughters duties to fetch water and she left. The accused also left the house. PW1 returned at about 12. 00pm and found that the deceased was not at home. She sought to know where the deceased had gone. PW2 told her that the deceased had left but no one knew where she had gone.

The accused also arrived home that afternoon and sought to know the whereabouts of the deceased. On being told that no one knew where she was the accused walked away. He returned to the house shortly thereafter followed by the deceased. The accused asked the deceased where she had been. It seems that the deceased did not give a satisfactory answer. According to the evidence of PW1, the accused said that the deceased deserved discipline. He picked a piece of rubber (Ex. 4) from his waist and used it to hit the deceased all over her body. PW1 further testified that the accused also used a rolling pin to hit the deceased with it. The beating took some time. Pleas by PW1 to the accused to stop the beating were not headed. When the beating stopped, the deceased was seriously injured. Evidence shows that the accused immediately left after the beating to go to his sister’s place in Mathare. It is said that he threatened his family not to say anything about the beating and not to mention him.

Further evidence shows that the deceased went to lie down on a mattress inside their house. After some time she asked her mother for water to drink. PW1 told her daughter PW3 to give the deceased water. PW3 fetched water from a container and held the cup to assist her sister to drink the water. It is said that after the deceased took the water she slept. PW1 discovered later that the deceased had died. She went to report the matter to the police at Dandora Police Station. Her initial report was that the deceased had gone out and returned home having been assaulted. One Peter was mentioned as the suspect. PW1 recorded her statement to that effect.

The police visited the scene and collected the body. The accused and PW1 were summoned by the police the following day (20thMarch 2017) and they went to record statements. After a few days (27th March 2017) PW1 called the PC Onyango (PW6) and reported that she had lied in her initial report that Peter had assaulted the deceased. She told the police that she had been threatened by the accused and had lied to the police. She reported that it was the accused that had assaulted the deceased and recorded her second statement to that effect. The accused was arrested and charged with this offence. PC Alloys Onyango confirmed that he summoned PW1 and the accused to record their statements. He testified that PW1 returned to the Station on 27th March 2017 and told him that the first statement she had given to the police was incorrect. She recorded another statement in which she implicated the accused.

The evidence of Dr. Peter Muriuki Ndegwa (PW4), who examined the body of the deceased, is that he found subcutaneous haematomas the whole length of upper and lower limbs, the trunk both the front and back, face and head. He found subcutaneous contusions on global scalp and diffuse subdural haematoma. His opinion is that the deceased died due to traumatic shock due to multiple musculoskeletal injuries due to blunt force trauma consistent with assault.

The accused gave a sworn defence. He confirmed the evidence that he returned home and found the deceased was not in. He testified that the deceased arrived home crying but failed to explain what had happened to her. He testified that PW1 told him to allow her time to talk to the deceased and find out what had happened to her. He did so and left to go to his sister’s place in Mathare. He testified that while at his sister’s place he learned of the death of the deceased. He decided to go home and on arrival he found police had arrived at his home. He testified that PW1 informed him that the deceased had told PW1 that Peter had assaulted her.

The accused further testified that they went to the police station the following day to record their statements after which they continued with arrangements for the burial. The accused told the court that there was an issue between him and the parents of PW1 who wanted him to pay dowry before he could be allowed to bury the deceased at his home in Kisii. He testified that this issue was not resolved and that two days before the burial he was arrested by the police on allegations that he had killed the deceased.

The accused called two witnesses. Thomas Araka Makori (DW2) told the court that he was a neighbour of the accused in Dandora; that on 20th March 2017 he arrived home at about 7. 00pm; that shortly after PW1 knocked at his door and informed him that her daughter, the deceased, had died after her boyfriend assaulted her; that Thomas went to PW1’s house and confirmed that indeed Sharon had died.

Correta Kwamboka Maranga (DW3) is sister to the accused. She was the sister he had gone to see in Mathare. She testified that she met the accused on 20th March 2017 between 6. 00pm and 7. 00pm. From the evidence this was the second time the accused had gone to see her sister that day. She testified that immediately the accused arrived at her home, PW1 called her to inform her that Sharon had died. Correta testified that she left to go to accused’s home. She testified that upon arrival at accused’s home PW1 told her that Sharon had been beaten by Peter. Correta testified that by this time, PW1 had already reported the matter to the police.

I have considered the submissions by the accused through his counsel Mr. Otieno, Learned Counsel. In his submissions Mr. Otieno took issue with the two versions of the statements made to the police by PW1 stating that the evidence of PW1 is inconsistent because of that fact. He took issue with the fact that Peter was not called as a witness. Mr. Otieno submitted that while there is no dispute that the deceased was assaulted and died as a result, the prosecution has failed to prove beyond reasonable doubt that it is the accused who assaulted her. He submitted that the prosecution has not proved mens rea on the part of the deceased and that the evidence of PW1 and PW3 creates reasonable doubts which should be resolved in favour of the accused. Mr. Otieno urged that the court finds that the prosecution has not proved the case against the accused beyond reasonable doubt and acquit him.

On the other hand, the prosecution counsel submitted that the prosecution has proved the case against the accused beyond reasonable doubt and asked the court to convict him. It was submitted that the accused had planned to kill the deceased because he had the whip with which he assaulted the deceased.

To determine this case, this court will be considering whether the death of Sharon Wambui Nduleve was caused by the accused and if so, whether the accused committed that offence with malice aforethought.

Dr. Peter Ndegwa testified that the deceased died as a result of traumatic shock due to multiple musculoskeletal injuries due to blunt force trauma consistent with assault. The doctor found that the deceased had injuries all over her body including the head. After considering the evidence, it is my finding that the unlawful death of the deceased has been proved beyond reasonable doubt.

The next issue for determination is who assaulted the deceased as a result of which she died. According to PW1 and PW3, it is the accused who assaulted the deceased. According to the accused, the deceased was assaulted by her boyfriend called Peter. In her statement to the police dated 22nd March 2017, PW1 gave the police the contact telephone numbers of the alleged Peter to enable the police to follow up the matter. However in her statement to the police dated 27th March 2017, PW1 told the police that it was the accused who had assaulted the deceased. In that latter statement, PW1 states that “I went to Dandora Police Station and reported that my daughter Sharon Wambui came to the house beaten and died. I was afraid of telling the truth due to threats I received from my husband” (sic). In her statement dated 27th March 2017, PW1 states that the accused threatened her by telling her “not to leak out anything (disclose) about the death of the deceased”. In her evidence in chief PW1 told the court that the accused had told them to tell the police that the deceased had been assaulted by Peter.

On her cross-examination by Mr. Otieno, PW1 told the court as follows:

“The first time I went to the police station alone and not with the accused. The first time I told the police Sharon came home already assaulted and died. Accused was not with me. He had already threatened us threatened us telling us not to reveal what had happened. I could not have lied to the police without threats. Even after one week I was still scared. I called the police later and told him I wanted to report the truth. He had told us not to dare to say the truth.”

PW3 in her evidence in court told the court as follows:

“We had gone out when he was beating Sharon. We could hear Sharon crying in pain. Mother went to report with me. We came back and found my sister on the mattress.”

PW3 further said that after Sharon died PW1 went to report to the police. It is not clear from these accounts how many times PW1 reported to the police before she went there with the accused. It is noteworthy that PW3 did not mention anything about threats from the accused, not in her statement to the police or her evidence in chief. She was cross-examined. She said that the accused told them “mtaona” if they said anything about what had happened.

I have given the evidence of PW1 and PW3 careful consideration. I cannot stop wondering what made PW1 report that the accused was assaulted by Peter and later change her mind to say it was the accused. She has admitted going to report alone at first. Why didn’t she tell the police the truth if indeed the accused had assaulted the deceased and tell police that she needed protection from the accused? PC Alloys Onyango who investigated this matter testified that on 21st March 2017 he was assigned this case. He summoned the reportee who came with a man. Both recorded statements. This, from my understanding would be PW1 and the accused. PC Onyango testified further that the woman, PW1, returned to the Station on 27th March 2017 and reported that she had given a wrong statement because she was under duress from the man. She told the police that it was the accused who had assaulted the deceased.

It is clear to me from the evidence on record that by the time the accused left home the second time to go to his sister’s place, the deceased was alive. If any threats were made to PW1 and PW3, they must have been made at this time. If the evidence of the two witnesses is to be believed, the threats were not about the death of the deceased but the beating. By the time the accused returned home after the death of the deceased, the matter had been reported to the police and police had arrived at the scene. Assaulting the deceased is one matter; the assault leading to the death of the deceased is another matter, a grave matter at that. Why would PW1 lie to the police about the person who had assaulted the deceased leading to her death?

It is trite that the prosecution bears the burden of proving a criminal case beyond reasonable doubt. This burden does not shift to the accused. Bearing this legal principle in mind and given the conduct of PW1 this court cannot stop wondering how to treat her evidence and that of PW3. PW1 had all the opportunity to give police the correct version of what happened but she chose not to do so. She decided to change her story seven days later. This behavior casts doubt in the evidence of both PW1 and PW3. Indeed evidence shows that the accused left his house after the alleged assault. In my view PW1 had the opportunity to report to the police giving them the correct version of what had happened.

After careful in depth consideration of the evidence of PW1, I find that I harbour doubts as to the true version of what really happened. This court has a legal duty to examine and consider all the evidence to ensure it proves the case against the accused person beyond reasonable doubt. Where there doubts exist in evidence, the case must be resolved in favour of the accused that benefits from those doubts. While I find that the fact of death of the deceased has been proved beyond re is reasonable doubt, the same cannot be said about the identity of the accused as the person who caused the death of the deceased by reason of the doubts I have just explained in this judgment. I find the evidence of PW1 and PW3 doubtful. It would be prejudicial in my view to convict the accused on such evidence where doubts exist.

In concluding this matter, I find that the prosecution has failed to prove the crime of murder against the accused beyond reasonable doubt. Consequently, I find the accused, Wilfred Marita Maranga, not guilty. He is hereby acquitted. He shall be set at liberty forthwith unless for any other lawful cause he is held in custody. Orders shall issue accordingly.

Dated, signed and delivered this 26th day of June 2019.

S. N. Mutuku

Judge