High Court 1773 of 2009

their house because his wife had refused to go back to him. Apart from the above, PW1 also testified that the accused used to visit him regularly after he had quarreled with his wife. On the other hand, PW2 Nancy Wanjiku Gichuhi introduced herself as a secretary at Braeburn High School and also a wife to the accused. She also explained that she was married for four years and had stayed with the accused upto June 2004. She was specific that the accused is no longer her husband. She testified that on 26th of June, 2004, while coming from Nairobi Women’s Hospital, she met the accused at the gate at around 8pm. Though she explained to the accused where she had been, he replied that she was lying. Immediately the accused started beating, kicking and dragging her to the first floor where they were staying. While knocking the door to their house, he broke the glass to the door. Subsequently, the accused continued kicking her using a stool and his shoes. Thereafter, the accused dragged her to the bedroom while assaulting and threatening to kill her. As if that was not enough, he also dragged her back to the sitting room. When the neighbours came to her rescue, the accused asked them to leave. The accused later realized that the key to the door was missing and he started shouting to the house girl while following her to the bedroom while asking her for the key. Seeing the above chance, the neighbours carried PW2 to the neighbours house where she was hidden in the kids bedroom and given a mobile phone which she used to call PW1. In response, PW1 went with a friend and they took her to Nairobi Hospital where she was treated and discharged on the same night. From there, PW2 went and spent the night in the house of the deceased. On the following day, PW2 went and explained to her former mother-in-law what had transpired. According to PW2, her stay with the accused had not been formalized to constitute a marriage. PW2 further explained that the mother-in-law later referred her to her two daughters fearing that the son would cause chaos in the event that he discovered she was there. From there, PW2 was escorted by a brother-in-law called Kiarie to her sister’s house. On the same night, PW2 reported the matter at Riruta Police Station though the accused was not arrested. It was on that basis that PW2 went and stayed with the mother at Riruta Satellite area and never went back to stay with the accused. Further to the above, she also testified that sometime in October 2004, at around 9am, the accused went to look for her while armed with a panga. On arrival the accused threatened to kill all members of her family in the event that PW2 refused to go back to his house. Significantly, the accused emphasized that he would kill the deceased since she was the one who was advising her not to go back to her matrimonial home. In addition to the above, the accused also stated that he could easily get a gun. When the accused put the panga next to the window, the same fell inside. From there PW2 and her relatives went to report the matter at Riruta Police Station. Prior to the above, the accused had gone to the mother of PW2 at around 1am and started banging the door. The accused later poured petrol on the mother of PW2 who managed to escape with her niece. PW2 further stated that the mother later on started pleading with the accused. After that incident, the family went to Riruta Police Station where they reported the incident and in turn were given three police officers. The officers later arrested the accused and they made it impossible for him to burn the house of the mother of PW2. Apart from the above, PW2 also narrated how the accused had gone to collect her baby in October 2004. Though PW2 went to get the baby from the mother-in-law, she declined. Thereafter, the accused kept on calling PW2 and threatening that he would kill the baby using a screw driver. He also threatened to kill the baby slowly and by the time he would handover, he would be a corpse. Besides the above, the accused also threatened to infect the baby with HIV. According to PW2 when she was pregnant both of them were tested and she was found to be negative while the accused was found to be HIV positive. After the test, the accused became very indifferent and used to beat her without any reason. Following her advice they went twice for counseling though the same did not produce any positive results. PW2 reckoned that she tried her best to support the accused but that did not yield any results. Eventually, she left the accused eight months from the time that the HIV tests were carried out. By then the accused was a court clerk at Kibera Law Courts, though he was later transferred to Nairobi High Court before being transferred to Mandera. That apart, the accused was also charged for the offence of grievous bodily harm, malicious damage and creating a disturbance before the Kibera Law Court in early 2006. She recalled that on 9th of November, 2005 she and the deceased went to Kibera Law Court for the grievous bodily harm case. Surprisingly, on the following day the deceased was killed. In response PW1 rang and informed her that Njeri had been shot by the accused. On his part PW3 Michael Ndung’u Mwangi introduced himself as a mason. In addition to the above, he testified that on 9th of November 2005 at around 8.30 pm, he met the accused alighting from a matatu at the “Coast Stage”. By then the accused was covering his head with a white jacket (jumper). Since the accused had known him for two years, he greeted him and crossed the road before asking them to stop a matatu for him. After boarding the matatu the accused went away. On the following day PW3 was

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informed that a gun man wearing a white clothe on the head had shot dead the wife of Ngugi. It was the evidence of PW3 that he had known both the deceased and the husband for about ten years since the couple were staying next to the “Coast Stage”. In his evidence PW4 Gabriel Nyamu Wairimu testified that he has known the deceased for the last ten years. Further to the above, he also testified that on 17th of November 2005, he, Ngugi and his sister-in-law called Ann Muthoni went to Kilimani Police Station at around 7.30 am. They were later given a police officer called Kanyeki and they proceeded to the City Mortuary. On arrival PW4 identified the body of the deceased before a post-mortem was carried out. On her part, PW5 Jedidah Wanjiku Gitau introduced herself as a barmaid at Bomet Bar. She also testified that on 10th of November 2005, while she was in her house, her friends viz, Nyambura, Njeri and Wamboi visited and told her that their friend had arrived from Mandera. That friend was Kariuki whom they were referring to as “Karis”. By that time, PW5 was washing clothes and hence advised them to call Kariuki and also buy alcohol on the way. After about ten minutes, the friends went with Kariuki while carrying alcohol called Kenya Cane. On inviting them to her house, they gave her two Tuskers which she drank. By then Kariuki was wearing a dirty shirt that he later removed for her to wash. After finishing the washing, they went to Bomet Bar. Earlier when they were leaving, PW5 and Kariuki remained behind to allow her to lock the door to the house. While Kariuki was tucking the t-shirt that she had given him, PW5 noticed that he had a gun which was hidden on his waist on the left side. She also explained that when Kariuki was removing the dirty shirt she was outside and hence could not see the gun. Subsequently, after seeing the gun, PW5 asked the accused who replied that he was carrying the same for security reasons since he was in Mandera. PW5 stated that she knew Kariuki who was working in the Law Courts. Eventually on arrival at Bomet Bar, they drank alcohol upto 5pm and PW5 realized that Kariuki had left them without notice. That was despite the fact that he had made orders for the drinks and never paid for the same. From that day, PW5 never saw the accused till the day they met in court for this trial. PW5 further explained that from Bomet Bar, she went with Wambui to Kasarani. In his evidence PW6 Sgt. Jackson Njuguna testified that on 10th of November, 2005, he reported on duty with a police patrol car within Kawangware area. At around 8pm while they were in the “Coast Area” of Kawagware Estate, PW6 heard gunshots from a nearby house. From there, they left the patrol car by the side of the road and rushed to the direction where the gunshots had come from. On the way they met members of the public who were running in different directions. One member of the public pointed to the direction of the incident. On arrival PW6 found a group of neighbours outside the door and he was later informed that a woman had been shot while standing at her doorway. The members of the public also confirmed that they had seen a gunman running away from the scene of the incident. PW6 was later informed that the victim had already been rushed to Nairobi Hospital. By that time, PW6 had already called the police radio for reinforcements and they had already taken charge of the scene. PW6 was able to recover a cartridge of 9mm bullet which was about two metres from the door. During the trial he identified the empty cartridge in court as exhibit 1 which he had earlier handed over to the investigating officer. That apart, PW6 also had earlier found blood stains on the floor from the sitting room to the bedroom. From there, PW6 went to Nairobi Hospital where he was shown the victim who was wearing a white t-shirt. On the way back to the police station, PW6 had been informed that the victim had died. On the other hand PW7 Cpl. Zabeth Maina testified that on 12th of November 2005 while he was in the office at around 2pm he was rang by the PCIO who instructed him to take over the investigations of a murder case. After taking the particulars of the incident, PW7 started inquiring about the person who had committed the offence. PW7 was later told the suspect called Kariuki had already been arrested and remanded at Kilimani Police Station. While accompanied by Cpl. Muthee and PC Hero they proceeded to Kilimani Police Station where they re-arrested the accused and took him to the Provincial CID office. Thereafter the accused explained to them what had happened and claimed to have been annoyed by his sister-in-law whom he blamed for being behind the court cases that he had with his former wife. Unfortunately PW7 was unable to recover the weapon that was used for the murder. Consequently the accused was taken to Makadara Law Courts to record a statement before PW7 took him to the DCIO Kilimani Police Station. On his part, PW8 PC Francis Keragori Sunda testified that on 15th of November 2005, while he was in his office, he was called by the DCIO Mr. Mwala and PC Kinyeki. He was instructed to accompany PC Kinyeki to Kibera Law Courts where they went to the chambers of Ms. Mwangi who was by then the SPM. While there, Ms. Mwangi informed the DCIO that she had detained a suspect called Peter Kariuki Mwibau because he had a pending case. By that time, a murder case had been reported at Kawagware and the suspect had been connected to the same. They later took the suspect from the law courts to Kilimani Police Station where they handed him over to the investigating officer. In

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his evidence PW9 PC Paul Kanyeki recalled that on 17th of November, 2005 he was called by the DCIO Mr. Mwala to accompany George Ngugi to the City Mortuary where the post-mortem of Lydia Njeri was to be conducted. The deceased had earlier been shot at Kawangware area. On arrival they met Dr. Okemwa who later on performed a post-mortem in the presence of family members. On completion of the post-mortem, Dr. Okemwa filled the post-mortem form which he later on handed over to PW 9. On the other hand, PW10 Habiba Yusuf introduced herself as a hairdresser based at Kibera Estate. She also testified that she has known the accused since the year 2002 and that they have been close friends as the latter has been her boyfriend. Further to the above, she also explained that the accused was transferred to the High Court Nairobi in the year 2004 and that she had met the latter in the year 2005 when he explained that he had been transferred to Mandera. Apart from the above, the accused also explained to her that he had a case with the wife following a domestic dispute. On the same evening, PW10 met the accused who requested her to escort him to the bus station. On the following day, the accused collected her from the salon and they went together to Kawagware area. Earlier during the day, PW10 and the accused came to the city centre where they met a friend and an advocate to the accused. After proceeding to Kenya Cinema, the two went to Kawangware area where they spent the night together. On the following day they went to the home of the accused where they met the mother and the sister-in-law. According to PW10, the accused told her that he wanted to pack his clothes and proceed to Mandera. In addition to the above, around October and November 2005 the accused went to the home of PW10 and requested for a jacket explaining that he was going back to court to attend to his case. On the same evening the accused went to the house and salon where PW10 was working and never found her. However, he left a message and PW10 went to Kawangware to check on him. She later found the accused in a pub next to Miami Bar. While they were seated together, the accused was called by another young man and they went to Miami Bar. After sometimes, the accused went back and collected PW10 to join them at Miami Bar. Thereafter, PW10 and accused slept together at Miami Bar on 9th of November 2005. On the following day, the accused sent PW10 to buy toothpaste but she did not get any shops nearby. Seeing the above, PW10 gave money to one of the workers in the lodging to go and buy toothpaste. On going back to the room, PW10 found the door open and the accused was shocked and hid something under the pillow. When PW10 asked him, the accused removed a gun and explained that it belonged to him. He also explained that he wanted to sell the same at Kshs.30,000/= and that he had started the business of selling guns. On seeing the above, PW10 explained to him that she was afraid and wanted to go away. Consequently, PW10 left for home and never saw the accused for about a week. When PW10 saw the accused again, he had come back to attend his case at Kibera Law Courts. The accused later explained that his case could not take off since the opponent was absent as the sister had died. The accused told PW10 that the woman had been shot and that he got that information at Kibera Law Courts. Besides the above, the accused also told her that people in Kawagware area were suspecting him to have shot the woman. PW10 observed that the accused looked a bit worried on that particular day. Eventually PW10 was told that the accused was arrested and taken to Kilimani Police station. In his expert evidence, PW11 Johnston Musyoki Mwongela introduced himself as a firearm’s examiner attached to the Firearms Laboratory Nairobi. He recalled that on 14th of November, 2005, he received one cartridge case marked Ex. (a) from Sgt. Kiptoo. After examining the same, he found that the same was a fired cartridge case in calibre 7.62mm x 25mm. That apart, he also found that the same had identifiable pin markings, bridge face and injector markings. He further explained that those markings are transferred from a particular firearm. The said markings are consistent with Tokarev pistols. Following the examination, PW11 formed the opinion that exhibit (a) was fired by a Tokarev pistol or any other pistol with similar specifications. Eventually PW11 produced a report exhibit 2. In her evidence PW 12 Dr. Jane Wasike Simiyu introduced herself as a pathologist working with National Health Laboratories and based at the City Mortuary. She also testified that on 17th of November, 2005, Dr. Okemwa did a postmortem on the body of Lydia Njeri Gichuhi. The body was that of a 32 years old African woman who was well built. On external examination, she had ECG lids and chest tube puncture on the right side. She also had an exit gunshot wound on the right scapular interior border. She also had an entry on the right anterior chest wall approximately 12cm medial to the right nipple. On internal examination, the doctor found that within the respiratory system, she had a collapsed right lung with massive chemothorax with right lung laceration. The doctor also found a lacerated liver. Due to the examination, Dr. Okemwa formed the opinion that the cause of death was due to chest and abdominal injury due to gunshot wound. He later filled and signed a post-mortem form which was produced as Ex. 3. PW12 also testified that she had worked with Dr. Okemwa for about 6 months and that she was familiar with his handwriting and

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signature. On the other hand, PW14 Sgt. Luka Kiptoo testified that on 10th of November 2005 while he was on duty with other police officers, they were alerted by 999 controller that there was a shoot out at Kawangware. On rushing to the scene, they found Sgt. Njuguna and other police officers. Later they were told that the victim Lydia Njeri had been rushed to Nairobi Hospital. On entering the house, the officers found blood on the door, and consequently, they interviewed some watchmen who were about 50 metres away. The watchmen had told them that they had seen three people running away from where they had heard gunshots. While at the scene Sgt. Njuguna handed over to PW14 a spent cartridge. PW14 also saw blood from the sitting room upto the bedroom. At around 10.30 pm, PW14 went to Nairobi Hospital and found that the victim had already passed away. On the following day, PW14 wrote a memo form in relation to the spent cartridge and forwarded the same to the ballistic expert. He later produced the memo form as exhibit 4. In his medical evidence, Dr. Zephania Kamau testified that on 13th of December, 2005, he examined the accused whom he found to be 35 years old. That apart the accused also gave a history of having been injured while in police custody. On examining him, he found a haematoma on the left arm and that the accused was mentally fit to plead to the charge. He later on filled and signed a P3 form which he produced as Ex. 5. In his defence, Peter Kariuki Mwibau, who is now the accused, testified that prior to his arrest, he was working with the Judiciary in Mandera Law Courts. Further to the above, he explained that on 5th of November 2005, he had traveled from Mandera to Nairobi where he reached on 7th of November 2005 and headed home. According to him the purpose of his visit was to attend court proceedings relating to criminal case no. 49 of 2005 before the Chief Magistrate Kibera. That apart he also explained that he was the accused in the case relating to malicious damage to property while his mother-in-law Mary Wambui was the complainant. That apart he also explained that he had been charged for the offence of creating disturbance in criminal case no. 50 of 2005. In that particular case, the complainant was his former wife. Apart from the above, the accused also explained that he had been charged for the offence of grievous bodily harm in criminal case no. 1278 of 2005 in which his former wife was also the complainant. The accused also explained that on 8th of November 2005, he went to court in respect to criminal case no. 50 of 2005 but the same never proceeded due to non-attendance of witnesses. The trial court later issued summons to witnesses and the mention was set for 11th of November, 2005. On 9th of November 2005 the accused went to court in relation to criminal case no. 1278 of 2005. The case was later adjourned to 14th of November 2005 to allow the prosecution to produce an OB from Riruta Police Station. From there, the accused went to Kawagware shopping centre for a drink. On 10th of November 2005, at around 11 am, the accused went to Kawangware shopping centre. On going to Bomet Bar he met Jedida Wanjiku who was a witness in this case. While drinking and playing pool, the shirt of the accused got stained with beer and Wanjiku offered to give him a t-shirt which she took from her adjacent house. The accused changed into that t-shirt and continued drinking upto 3pm when he received a call from one Billo who told him that his package was ready in Eastleigh. The accused explained that he had supplied 20 pairs of shoes to Billo at the price of Kshs.10,000/=. On going to the pub in Eastleigh, the accused found Billo who paid him Kshs.8,000/= and promised to clear the Kshs.2,000/= before his departure to Mandera. On 11th of November, 2005, the accused went to Kibera Law Courts in relation to criminal case no. 50 of 2005. On arrival at Kibera Law Courts the accused met Sgt. Njuguna from Riruta Police Station who told him that a warrant of arrest had been issued and that the complainant had not turned up in court. Further to the above, Sgt. Njuguna also told the accused that the complainant’s sister had been shot dead during the previous night. On 14th of November 2005, the accused went back to Kibera Law Courts in respect of Criminal Case No. 1278 of 2005. On arrival the matter was adjourned since PW1 was bereaved. On the following day, the accused went back to the Law Courts and was arrested and taken to Kilimani Police Station. From there, the accused was taken to his home where a search was conducted but no gun was recovered. Later the accused was taken to CID Headquarters, Shauri Moyo Police Station and Buru Buru Police Station. Eventually, the accused was transferred to Jogoo Police Station and on the following day, he was taken to the PCIO Nairobi who insisted that he should cooperate with the three police officers. According to the accused, at around 9.30 pm he was blind-folded and taken to Jamhuri Show Ground where he was tortured till he submitted to the demands of the police that he had shot the deceased person. The accused was later taken to Jogoo Police Station and on the following day he was taken to Mrs. Nzioka, Principal Magistrate Makadara Law Courts where he claimed that he had been forced to make a false confession. In the afternoon the accused was transferred back to

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Kileleshwa Police Station where he stayed for a week. From there, he was taken to Kilimani Police Station where he met John who told him that he was also a suspect in this murder case. However, he was released on 24th of December 2005. It was the evidence of the accused, that he had a troubled marriage between himself and PW2 that culminated in a separation on 26th of June 2004, since she was a drunk and unfaithful. The accused reckoned that though PW2 tried to return to the matrimonial home, he resisted the above move. Besides the above, the accused also stated that in the year 2004, the former wife started making threats that he will never live to see his son grow. The former wife also threatened that she will not rest till she finishes him. It was on that basis that in January 2005 she fabricated some cases against him. After a couple of months, the accused was picked as a murder suspect. The accused also testified that the relationship between himself, the deceased and her family was very cordial before and after their marriage. The accused complained that after his arrest, he was subjected to torture so that he could accept that he had murdered the deceased. He reckoned that he had no grudge against the deceased and that what is happening is a vendetta by the former wife to see him languishing in poverty. It was also the evidence of the accused that he had been acquitted in all the three cases in Kibera Law Courts. He concluded his defence by stating that he never committed the offence before this court and that this is a plot by PW2 to make his life miserable. After the summing-up was delivered, the two assessors returned conflicting verdicts. The first assessor viz, Joyce Mungai returned a verdict of “guilty” for the offence of murder. The first assessor explained how PW5 had seen the accused with the gun. She also explained how PW10 Habiba Yusuf also asked the accused about the gun. In addition to the above, the assessor also reminded the court that the deceased had also referred to the accused before her death. On the other hand, the second assessor returned a verdict of “not guilty” against the accused for the offence of murder. According to the second assessor, nobody testified to support PW1 on what he had heard from the deceased. Besides the above, he also noted that the gun was not produced in court and that the evidence on the same was contradictory. Lastly, he also observed that PW5 and PW10 never reported this serious matter to the police. From the evidence on record, it is apparent that none of the prosecution witnesses actually saw the accused shooting the deceased. This is a case where the prosecution has relied heavily on a dying declaration and circumstantial evidence. According to PW1, when the deceased (who was his wife) was shot, she complained bitterly that she had been shot by “Karis”. To his understanding, the widow was referring to her brother-in-law who is now the accused. Needless to state, the second name of the accused is Kariuki. The name “Karis” is a shortened version of the latter. Apart from the above dying declaration, both PW5 and PW10 saw the accused being armed with a gun during the material period. Whereas PW5 was just an acquaintance of the accused, PW10 was his girlfriend. There was no reason or evidence to suggest that PW10 had any grudge against the accused to lead her to give any false testimony in such a serious case. In addition to the above, PW3 also saw the accused leaving the vicinity of the scene of crime at the material time. Though the gun was not recovered, the same could not have been carried for a friendly reason. That apart, the accused had a strong motive to kill the deceased as he believed passionately that she was behind all his matrimonial problems. The accused himself expressed the above sentiments in his defence. When all the above facts are considered together, they lead to only one irresistible conclusion. They lead to the “guilt” of the accused. Though the gun was not recovered, I hereby find as a fact that it was actually the accused who shot dead the deceased following the domestic problems that he had with PW 2. In his perception, the accused believed that the deceased was behind his problems. It is on that score that I hereby agree with the verdict of the first assessor. This court does not agree with the verdict of the second assessor due to the above analysis. In the case of Kihara Vs. Republic (1986) KLR the Court of appeal held: “Even though there is no rule that a dying declaration must be corroborated, a court needs to caution itself that in order to obtain a conviction upon a dying declaration, it must satisfactorily corroborated and particular caution must be exercised as to when the attack took place, the identification of the assailant and the weapon used. In this case, all the above particulars were met.”

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In the case of Republic Vs. KIPKERING arap KOSKE & ANOTHER 16 EACA Pg 135 the Court of Appeal held as follows: “In order to justify the inference of guilty, the inculpatory facts must be compatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” In this particular case, all the evidence adduced clearly show that the accused had the motive and weapon to commit the offence. The evidence also put the accused squarely at the scene. I hereby find that the defence case has no merit and hence I dismiss the same. The upshot is that, I hereby find that the prosecution has proved its case beyond any reasonable doubt against the accused for the offence of murder, contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63, Laws of Kenya. The accused is found “guilty” of the offence of murder and is convicted accordingly. MUGA APONDI JUDGE Judgment read signed and delivered in open Court in the presence of the accused; MRS. KINYORI Defence Counsel and MS RUTO State Counsel. MUGA APONDI JUDGE 9TH SEPTEMBER, 2009 Ms. Ruto: Accused is a first offender. Mrs. Kinyori: I pray for a date to mitigate. Court: Submissions on mitigation will be heard by the Court on 23rd September, 2009. Accused remanded in custody. MUGA APONDI JUDGE 9TH SEPTEMBER, 2009.

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