Republic v Thambura M’thirua Alias Kinjila

9. That while going home, customers called him and he carried them to Kianjai using his bodaboda and at Kianjai market, he heard that someone had been murdered. When he went home, he heard that PW1 had implicated him with 3 others in the murder of the deceased. He knew PW1 as he had once hired him to build a pit latrine for him but ran away with his equipment. He had reported PW1 to the police who promised to return the said equipment which he never did. 10. The accused further testified that the following Monday, he met the Chief of Bumoi who asked him to accompany him to the police station which he did. On arriving at the station, they did not find his name listed but that of one Kinjila which he denied to be his nickname. The Chief asked the police to add his name onto the list of suspects. 11. He denied killing the deceased as he was in Mikinduri which is far away from where the deceased was murdered. That he and the deceased’s father were in good terms but he knew the deceased had been severally arrested for stock theft. 12. In cross- examination, the accused denied that his nickname was Kinjila. He stated that he was attending a funeral at Mikinduri and that he found DW2 there. To him, DW2 was his neighbour from Kilothu in Rwanda Location and she was the cashier at the funeral. He admitted that during the prosecution case, he did not put the alibi to the prosecution witnesses because he did not think that it was necessary. 13. DW2, Florence Kamangu testified that she knew the accused since one of his relatives is married to her aunt. That on the 22 nd of February, 2013, she and the accused were at a funeral in Mikinduri. The funeral ended at about 6.30pm and she too spent the night there. The following day, she and the accused left at around 11 am and he took her home. There were people calling him to take them to Kianjai. She later heard that the accused had killed the deceased while she knew he was at the funeral. 14. DW3, Henry Kinoti testified that he was the son of the lady whose funeral was on the 22 nd February, 2013 at Mikinduri. He stated that he was with the accused that day, having arrived at Mikinduri at about 8 am and they waited for the body until 5pm. That since there was mourning, he did not allow the deceased to go home until the following day at about 11am. The following Monday, he received information that the accused had been arrested on the allegation that he was with group of people who had killed someone on the 22 nd February, 2013. 15. I have carefully considered the evidence on record. The accused is facing a charge of murder. Section 203 of the Penal Code defines that offence as follows:- “203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” The four ingredients of the offence that arise from the definition and that need to be proved by the prosecution beyond reasonable doubt are:a) the fact of the death of the deceased; b) the cause of such death; c) proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused, and d) proof that the said unlawful act or omission was committed with malice aforethought. 16. On the fact and cause of death, PW1 testified that on the material day at about 6.30pm, he was in the company of the deceased, the accused and other persons at Spider Club. That differences arose between the deceased and the accused. The two fought and were thrown out of the Club. The fight however continued up to the doorstep of PW1’s house where the deceased was stabbed and died. PW3 and PW5 corroborated PW1’s testimony while PW2 identified the body in the mortuary on 25th February, 2013. 17. The post mortem report produced by PW4 as PExh.1 revealed that the body had a stab wound on the left 2 nd intercostals space that is, between the 1st and 2nd rib, a laceration on the frontal region of the head and at the back of the head. Internally, there was massive haemothorax affecting the left lung. The doctor concluded that massive haemothorax due to a penetrating chest injury was the cause of death. 18. In this regard, I am satisfied that the prosecution has established the first and second issue of fact and cause of death. 19. On the 3rd issue, PW1 told the court that on the material day, he was with the deceased in Spider Club where the deceased and the accused had an argument over a debt that the accused’s wife allegedly owed the deceased. Later, he saw the accused beat and stab the deceased with a knife outside his, PW1’s, house whereby the deceased died. 20. PW3 also testified to the fact that there was a scuffle between the accused and the deceased. He witnessed the accused stabbing the deceased and soon after, he and PW1 reported the incident to the police. In PW5’s investigations, he established that the deceased and the accused had received some money from a certain politician and the deceased was supposed to give some of it to the accused but failed to do so which angered the accused. That this is what led him to viciously attack the deceased. The cause of death was established to be massive bleeding due to a penetrating chest injury. 21. The accused raised the defence of alibi and called two witnesses to collaborate his story. The accused and his witnesses told the court that he was in Mikinduri, a place very far away from where the deceased was killed. 22. The testimony of the accused and his witnesses had contradictions in material particular. The accused stated that DW2 was a neighbor

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from Kilotho area and that she was a cashier at the funeral. On her part, DW2 told the court that she was a relative of the accused as his uncle is married to her auntie. She also denied that she had any other role at the funeral other than helping in the kitchen. 23. If DW1 and DW2 were together at the funeral, why the discrepancy in the roles DW2 played at the function? Why was their relationship to each other not clear? The accused testified that DW1 was a neighbor from Kilothu while DW2 stated that DW1 was related to her by marriage. 24. In Wang’ombe v. Republic [1976-80) 1 KLR 1683, the Court held that it is the prosecution who always bears the burden of disproving the alibi and proving the appellant’s guilt. However, the prosecution can only do so if the particulars of the alibi is disclosed to it in good time. In the present case, the alibi was only set up at the defence stage. During the testimonies of the prosecution case, the alibi was neither raised nor suggested. 25. The accused alleged that there was a grudge between him and PW1 arising out of their previous dealings. This was never put to PW1 when he testified for him either to confirm or deny. Being raised belatedly in defence, I find it to be an afterthought. 26. In R. v. Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA 145, the former Court of Appeal for Eastern Africa stated:"If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped". 27. In light of the foregoing, I am convinced that the defence was an afterthought. When asked by the prosecution why he did not declare his alibi earlier, the accused stated that he did not think that it was necessary. The court holds that it was absolutely necessary to raise it at the earliest. It was being raised late because it was an afterthought. 28. The evidence of the prosecution in my view remained firm and consistent. The accused is said to have run away with the weapon that dealt the deceased fatal injuries. The testimonies of PW1 and PW2 placed the accused at the scene. I am satisfied that the death of the deceased was as a result of the unlawful act on the part of the accused. 29. Was there malice aforethought? Section 206 of the Penal Code provides, inter alia, that:- “Malice aforethought shall be deemed to be established by evidence proving 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, …… 30. PW1 stated that the scuffle between the deceased and the accused was because of the deceased’s allegation that the accused’s wife owed him money. PW5 however established that the deceased and the accused had received some money from a certain politician and the deceased was supposed to give some of it to the accused which he failed to. This angered the accused which led him to attack the deceased. In any event, from the nature of the injuries inflicted on the deceased, there was clearly an intention to cause grievous harm on and even death of the deceased. The accused had the necessary malice aforethought. 31. Accordingly, I am satisfied that the prosecution has proved its case beyond any reasonable doubt. I find the accused guilty of the offence of the murder of Samwel Kinoti and convict him of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code CAP 63 Laws of Kenya. DATED and DELIVERED at Meru this 27th day of September, 2018. A. MABEYA JUDGE

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