Republic v Jackson Mutuma M’munyugi

9. PW4 was Dr. Michael Ongas attached to Meru Referral Hospital. He produced the post mortem report for the body of Titus Mureti which was conducted on 9th July 2015. Externally, there were multiple cuts on the head, a gaping open wound on the left temporal region of the scalp above the ear. The cut was deep into the brain matter. Internally, there was a traumatic brain injury. The doctor formed the opinion that the cause of death was a result of traumatic brain injury secondary to deep cut to the head by a sharp object. The report was produced as PExh.2. 10. PW5 PC Evans Mose, the in charge of Scene of Crime Meru County testified that, on the material day, he visited the scene in the company of Inspector Kimeli and officers from Nkubu police station. Beside the tarmac road, they found a body with physical injuries. That there were signs that the body had been dragged from a timber house nearby as there was a trail of blood on the ground. He documented the scene by taking 17 photographs which he produced as PExh.3. 11. In his sworn statement, the accused stated that he lived with his two children his wife having passed away in the year 2010. That he used to leave his house open so that his children could gain access when they come from school. It was his evidence that on the material day, he was working on the vast farm belonging to one Japheth Mugambi when, at about 8.30am, he heard noise coming from the direction of his house. When he went there, he found a crowd of people beating a person who was working at Kiogora’s farm. He did not know why the crowd was beating the deceased within his homestead. He tried to talk to the deceased who did not respond. He then called the chief who came and found the deceased already dead. The chief informed him that it was now a police case. The chief took him to Nkubu police station where he was placed in custody. 12. The accused is facing a charge of murder. Section 203 of the Penal Code defines what constitutes the offence of murder. The burden always lies with the prosecution to prove its case against the accused on the standard of proof beyond any reasonable doubt. 13. In Republic v Mohammed Dadi Kokane & 7 others [2014] eKLR it was held of murder that:- “This definition gives rise to four (4) crucial ingredients of the offence of murder all four of which the prosecution must prove beyond any reasonable doubt in order to prove the charge. These are:-1) the fact of the death of the deceased, 2) the cause of such death, 3) proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly, 4) proof that the said unlawful act or omission was committed with malice aforethought.” 14. On the first two issues, PW1 and PW2 told the court that on the morning of 29 th June, 2015, the body of Titus Mureti was found lying beside the Nkubu – Marimba road. That it had injuries. They contacted police from Nkubu police station who, after the scene of crime officers from Meru had documented the scene and taken photographs removed the body to the Meru Level 5 Hospital Mortuary. The photographs of the body and the scene were produced as PExh.3. PW3 and PW5 corroborated this evidence. 15. PW4 produced the post-mortem report dated 9 th July, 2015 for the body of the deceased. The report concluded that from the injuries inflicted on the body, the cause of death was traumatic head injury secondary to deep cut on the head. Accordingly, I am satisfied that the prosecution succeeded in proving the fact of death and the cause thereof. 16. As regards the 3rd issue, who caused the death, there was no eye witness to the offence. The prosecution’s case was entirely hinged on circumstantial evidence. In the case of ABANGA alias ONYANGO V. REP CR. A NO.32 of 1990(UR) the Court of Appeal held that:- “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else.” 17. In SAWE –V- REP [2003] KLR 364 the Court of Appeal held:- “In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis is on the prosecution and always remains with the prosecution. It is a burden, which never shifts to the party accused.” 18. PW 1 and 2 told the court how a report was made to them of a body lying beside a road in Ntemwene area along Nkubu Marimba road. PW2 testified that on visiting the scene, they found the body lying beside the road with injuries. On close scrutiny, they saw blood stains/spots leading all the way to a house that was about 20 metres from where the body was lying. That the said house belonged to the deceased. There was a lot of blood inside the house. 19. PW3 and PW5 who visited the scene and removed the body to the mortuary corroborated the testimony of PW2. They told the court that on examining the scene, they observed that there were blood stains on the ground which pointed to the possibility that the body had been dragged on the ground from the house nearby to where it was lying. A panga with fresh blood stains was recovered from that house. 20. The evidence of PW2, 3 and 5 that the body of the deceased was found lying beside the roadside 20 metres from the accused’s house and that there was blood stains on the ground leading to the accused’s house remained unshaken and unchallenged. Similarly, the evidence that the house to which blood stains led to belonged to the accused was not denied. The blood stained panga (PExh.1) was recovered from the accused’s house. PW4 told the court that the injuries found on the body must have been caused by a sharp object.

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21. I should however, observe here that there seemed to be a contradiction in the testimonies of PW1 and 2. Whereas PW1 stated that they found the body inside the accused’s house, PW2 stated that the body was lying beside Nkubu – Marimba road about 20 metres from the accused’s house. Both were however in agreement that there were blood stains leading to the accused’s house and that inside that house, there was a lot of blood on the floor. 22. In Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal adopted the decision of DICKSON ELIA NSAMBA SHAPWATA & ANOTHER V. THE REPUBLIC, CR. APP. NO. 92 OF 2007 wherein the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows:- “In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 23. In the present case, the contradiction of PW1’s evidence was minor. It did not to the root of the matter as the testimonies of PW2, 3 and 5 was consistent as to where the body of the deceased was found. The photographs produced as PExh.3 were very clear as to where the body was lying when it was recovered. It was beside the road and not inside the accused’s house. 24. In his defence, while denying committing the offence, the accused testified that on the material day he was working in Japheth Mugambi’s farm. That he heard noise coming from the direction of his house and that when he went there, he found a crowd beating a person who was working at Kiogora’s house. The deceased was being beaten within the accused’s homestead. The accused did not know and neither did he inquire why the crowd was beating the said person within his homestead. 25.The accused gave an alibi that he was at the farm of Japheth Mugambi when the said person was being beaten. I note that the accused did not call either Japheth Mugambi or any of the people he found in his homestead when the deceased was being beaten. The accused did not raise the issues that he raised in his defence during the prosecution’s case either in cross examination or otherwise. When PW1 testified, he never cross-examined him on his allegation that he is the one who called him to his homestead after finding the crowd had killed someone there. Accordingly, I find the accused’s defence to be an afterthought and I reject the same. 26. In Stephen Nguli Mulili v Republic [2014] eKLR the Court of Appeal cited with approval the decision of VICTOR MWENDWA MULINGE V R, [2014] eKLR wherein it was held of alibi as follows:- “It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see KARANJA V R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.” 27.In the present case, the accused did not put forth his alibi at any time before being called upon to defend himself. The prosecution could therefore not have had the opportunity of investigating the same to confirm the falsity or otherwise of the same. 28. No doubt, the prosecution evidence was only circumstantial. However, it was consistent that the body was recovered 20 metres from the accused’s house; that there were blood stains/spots on the ground leading to the house of the accused; that there was a lot of blood on the floor of the accused’s house; that a panga recovered from that house had fresh blood stains. All this evidence was neither challenged nor controverted. The accused contended that the deceased was killed by members of the public within his homestead. He never disclosed who these members of the public were or the reason for their alleged action. In any event, the nature of the injuries on the body were not consistent with mob justice. 29. I am alive to the fact that no blood samples were taken either from the house of the accused, the panga that was recovered from the accused’s house or from the body of the deceased. However, this court is satisfied that there could be no other explanation as to whose blood must have been on the floor of the house as well as on the recovered panga. 30. Even though the accused had no duty to explain his innocence, he was however, bound to explain the presence of blood that led from where the body lay all the way to his house. He should also have explained the blood found on the floor of his house as well as the blood stained panga recovered from his house. This is in terms of Section 111 (1) of the Evidence Act CAP 80 of the Laws of Kenya. 31.In Jackson Namunya Tali v Republic [2017] eKLR the Court of Appeal cited with approval the case of Douglas Thiong’o Kibocha v. Republic [2009] eKLR wherein the applicability of Section 111 (1) of the Evidence Act was considered as follows:- “When parliament enacted Section 111 (1) above, it must have recognized that there are situations when an accused person must be called upon to offer an explanation on certain matters especially within his knowledge otherwise the prosecution would not be able to conduct full investigations in such cases and the accused in the event, will escape punishment even when the circumstances suggest otherwise. Section 111 (1) above places an evidential burden on an accused to explain those matters which are especially within his own knowledge. It may happen that the explanation may be in nature of an admission of a material fact." 32. From the circumstances of this case and in absence of any explanation by the accused person as to the presence of blood inside his house and the fact that the murder weapon was recovered from his house, I am satisfied that the circumstances of this case taken cumulatively, form a chain so complete and point unerringly that within all human probability, the crime was committed by the accused and no one else. Consequently, I am satisfied that it was the accused who killed the deceased and no one else.

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33. The next issue is whether the accused had the requisite malice aforethought at the time of commission of the offence to support the charge of murder. In Daniel Muthee – v- R CA No. 218 of 2005 (UR), while considering what constitutes malice aforethought, the Court of Appeal observed:- “When the appellant set upon the deceased and cut her with a panga several times and then proceeded to cut the young Allan in a similar manner, he must have known that the act of cutting the deceased persons on the head with a sharp instrument would cause death or grievous harm to the victims. We are therefore satisfied that malice aforethought was established in terms of Section 206 (b) of the Penal Code. In view of the foregoing, we are in no doubt that the appellant was convicted on very sound and watertight evidence as his guilt on the two counts of murder was proved beyond any shadow of doubt.” 34. According to the post mortem report produced by PW4 as PExh.2, the deceased suffered multiple cuts on the head, a gaping wound on the left temporal region of the scalp bone above the ear, and the cut was deep into the brain matter. Internally there was an open skull fracture with brain lacerations. 35. No doubt, these were very serious injuries which were inflicted on a very sensitive part of the body. In inflicting these injuries, the accused must have known or had a reasonable belief that the same would either cause grievous harm to the deceased or even cause his death. In view of the foregoing, I am satisfied that the accused had the necessary malice aforethought at the time of the commission of the offence to support a charge of murder. 36. In the circumstances, I find the accused guilty of the murder of Titus Mureti and I convict him of the offence of murder under Section 322 of the Criminal Procedure Code. DATED and DELIVERED at Meru this 31st day of May, 2018. A. MABEYA JUDGE

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