[2022] KEHC 2275 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J_

CRIMINAL CASE NO. 52 OF 2017

BETWEEN

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

VERSUS

WILSON KAUNYANGI KARURI........................................................................ACCUSED

JUDGMENT

1) WILSON KAUNYANGI KARURI(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 that

On 16th July 2017 at Mwiyo village in Muringene Location, Igembe Central within Meru County murdered EMK.

PROSECUTION CASE

2) The prosecution case as narrated by her daughterPW2 DNK is that on 15th July, 2017, the family who included her siblings and parents, Accused and the deceased had dinner together after which they went to sleep at about 09. 00 pm and left their father chewing miraa. She was woken up in the middle of the night by a loud bang on their door and upon opening found her mother lying outside bleeding. She said she did not see her father at that time.

3) Accused’s motherPW3 MK was on the night of 16th July, 2017 at about 02. 00 am woken up by scream and she went out to find her daughter in lawEMK lying on the ground and that PW1 informed her that Accused had stabbed their mother. EMK later died and Accused was apprehended by PW4 Isaiah Gitonga,the chief of Muringene location and handed over to police.

4) A post mortem on M’s body was conducted by Dr. Kariuki on 27th July, 2017. The Postmortem form PEXH.1 reveals that deceased suffered a 3 cm stab wound on the back left at level of 5th rib that raptured the left lung, pericardium and aorta from which the doctor formed the opinion that she died of cardiovascular arrest due to stab wound to chest into the left lung, pericardium and aorta.

DEFENCE CASE

5) The accused gave a sworn statement and stated that on the material night at about 10:00pm, he went to his miraa farm and returned when he returned home about midnight heard a strange voice in his house. That when he knocked on the door, his wife opened and a man emerged from the house and knocked down his torch and he fought him with a panga. That he pursued the man after he escaped and returned to find his wife injured. It was his testimony that he accidentally stabbed on his wife while fighting the intruder.

Analysis and determination

6) 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.”

7) 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.”

8) 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.

9) 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

10) The postmortem form PEXH.1 conducted by Dr. Kariuki reveals that the deceased suffered a 3 cm stab wound on the back left at level of 5th rib that raptured the left lung, pericardium and aorta from which the doctor formed the opinion that she died of cardiovascular arrest due to stab wound to chest into the left lung, pericardium and aorta.

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

11) None of the prosecution witnesses witnessed the commission of the offence but Accused explained that he accidentally stabbed the deceased while fighting a stranger that he had found in his house at night.

c)Malice aforethought

12) 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.”

13) 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.

14) Having found that the prosecution has proved actus reus, the issue for determination is whether malice aforethought can be inferred from the circumstances of this case. Evidence by the Accused that he was fighting an intruder when he accidentally stabbed his wife has not been controverted. From the foregoing, it can safely be inferred that that the act of stabbing the deceased was accidental and without any malice aforethought on the part of the Accused. In other words, it was likely that the Accused did not intend to kill the deceased but intended simply to fight the intruder.

15) The evidence as adduced by the prosecution established beyond reasonable doubt the act of unlawful killing of the deceased by the accused person herein without malice aforethought. Sections 179 of the Criminal Procedure Code stipulates:

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but he remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”

16) From the foregoing analysis, I find Accused guilty of a lesser charge of manslaughter contrary to Section 202 (1) of the Penal Code as read with Section 205 of the Penal Code and is convicted accordingly.

DELIVERED AT MERU THIS 10thDAY OF FEBRUARY 2022

WAMAE. T. W. CHERERE

JUDGE

Court Assistant - Kinoti

Accused - Present

For the Accused - Mr. Mwiti Advocate

For the State - Ms. Mwaniki