Republic v Nyaga

when she saw the deceased. That she recorded her statement three days later while still in shock and that was why she got confused and it was Ndeke who told her what to say. She stated that she did not tell the police the truth. 4. PW2, Njiru Njage testified that on 21.01.2019 at Embu Level 5 Hospital, he identified the body of the deceased to the doctor who performed the post mortem. That when he saw the deceased, he was lying on the ground dead and Patrick told him that the accused John Mugendi had beaten the deceased. That he asked him where the deceased’s clothes were and Patrick said that the accused took the clothes and that he had left the scene to hire a vehicle for taking the deceased to hospital. He called the area chief who called the police and the body was taken to the mortuary. That people started gathering at the scene threatening to kill the accused herein and he advised the accused to leave the scene, to which he obliged. On cross examination, he stated that the previous night he heard voices of drunk people and he identified them as those of young people whom he had known from birth but he did not hear what they were saying. The noises were coming from the house of the accused. That the following morning at 9.00 am he heard a woman scream and when he went to the scene he found the body of the deceased. He denied that he told PW1 what to say in her statement. It was his evidence that PW1 told him that she was at the scene at 8.00 a.m. and had given the deceased some tea. 5. PW3, Daniel Gilbert Ndeke testified that on 14.01.2019 around 3.00 a.m., he heard people talking loudly almost shouting in the house of the accused since his home is about 100 meters and he was able to identify the voices of accused herein, Patrick Muturi, Emilio Njeru and one Morris Murimi whom he knew as they come from the same village. He went back to sleep and upon the daybreak, he went to the shamba to pick fruits and while there, he heard some people screaming in the home of the deceased and on going there, he found Patrick trying to dress up the deceased. 6. PW4, Kinyua Kigamba stated that on 14.01.2019 at around 10.00 a.m., he received a call from the chief of his location informing him that Francis Muriithi Nyaga had been found dead in the compound of the accused herein. That he went to Kevote Police Post and made a report and two police officers accompanied him to the scene of crime. On arrival, they found the body of the deceased about 15 meters from the house of the accused and the police removed the body and took it to the mortuary. In cross-examination he stated that he did not hear of any disagreement between the accused and the deceased. 7. PW5, Dr. Phyllis Muhonja testified that she conducted post mortem on the body of the deceased herein and that on the external examination of the left front side of the lower abdomen, there was a bruise 4cmx3cm; on the left front region of the thigh, there were linear bruises each of them between 4cmx – 6cm.On the left front side of the leg there were 2 bruises, 3cm and 4 cm and were linear. On the right there were multiple bruises between 2cm and 5cm long.On the back side of the right elbow, 2 abrasion wounds 1cm in length each and around the mouth area, there were food particles which were whitish in colour. In the respiratory system, the ribs and lungs were intact; the trachea was normal, the heart and the region around it was clear and part of the small intestine was reddened and had food contents; the liver, large intestines were normal. On the head, the entire muscle on the right was bruised and there was contusion but the skull bone was intact. On the lower brain matter, there was bleeding and was about 30 mms; on upper and lower limbs, all the muscles were bruised and filled up with blood and bruises. In her opinion, the cause of death was multiple injuries, extensive haemotoma due to multiple point massive blunt object force trauma. On cross-examination, she clarified that by the time she formed opinion on the cause of death, she had not received the toxicology results but the reason why she ordered for toxicology examination is because she found particles in the mouth and not for establishing the cause of death but to find out the contents of the vomitus. That the opinion she formed of the death was conclusive. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/378/eng@2022-05-11 2

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8. PW6, Henry Kiboma testified that on 14.01.2019, he was called by the sub county criminal investigation officer to attend a scene of murder where he accompanied the investigations officer and he took the some photographs which he produced as exhibits. 9. PW7 Osman Mohammed testified that on 14.01.2019 while on duty, he was directed to carry out investigations relating to the death of the deceased herein. That he proceeded to the scene at Kiandari market and upon reaching, he found inspector Terer together with other officers at the scene. He stated that the body of the deceased was lying within the family homestead next to the home of the accused and that it had injuries all over. That the accused herein presented himself to the police and he got arrested. He took the accused person herein for mental assessment, attended post mortem of the deceased and on carrying out further investigations he discovered that the motive of the murder was a land dispute which land was by then occupied by the deceased. On cross examination, he stated that he did not establish the ownership of the land but he learnt that the land belonged to the father of the accused and he further confirmed from his statement that the accused herein together with three other men who were still at large, beat the deceased to death. He proceeded to produce the mental assessment report prepared by Dr. Thuo who opined that the accused person was fit to stand trial. 10. The prosecution proceeded to close its case and vide a ruling delivered on 17.11.2021, the accused herein was placed on his defence upon the court having found that the prosecution had established a prima facie case. 11. DW1, Anthony Mugendi Nyaga testified that he did not kill the deceased herein and that he got to know that he had died when he went to look for a vehicle to take him to the hospital. That they lived on the same shamba but not in the same compound and that he only received the report of the death of the deceased at 9.30.a.m. on the material day. That he did not see the body of the deceased and only heard people talking about the incident. He stated that the night the deceased was killed, he was in the house with his mother and he did not hear anything. On cross- examination, when it was put to him that on the said night he was so drank and he could have killed his brother out of drunkenness, he denied that he was drank. 12. DW2,Tasila Mutitu Njagi who was the wife to the deceased stated that on 13.01.2019, Ndeke went to the house looking for the deceased and he left a warning that if the deceased returned, he be told to keep off Ndeke’s property otherwise, he would know who he is. That upon the return of the deceased person, she informed him to go pick some report from Ndeke but he declined. That the deceased left for the market and upon return, Ndeke came back and enquired whether the deceased was informed of the report that he had left. Ndeke offered to buy a drink for the deceased and they went away together and the deceased did not return home. That on 14.01.2017, she went to buy her mother in-law some diapers and at around 11.00 a.m., she received a call informing her that the body of the accused had been found outside the accused person’s place. She stated that Ndeke told her not to record a statement with police and according to him, the last time that she saw the deceased was when he left with Ndeke. 13. On cross examination she stated that she did not record a statement because Ndeke threatened her. That when Ndeke went to their house carrying a panga, she cautioned the deceased not to accompany Ndeke but he did not heed. He denied that she was not a truthful witness. 14. The defence proceeded to close its case. The court gave directions on filing of submissions wherein the prosecution chose to rely on the evidence on record in support of its case but the defence filed submissions. 15. The defense submitted that the prosecution failed to prove the elements of the offence of murder in that; there was no evidence linking the accused person herein to the death of the deceased. They https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/378/eng@2022-05-11 3

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proceeded to submit that the fact that some people allegedly in the company of the deceased were never called, that without doubt, dents the prosecution’s case. The defence therefore urged this court to acquit the accused person herein. 16. I have considered the evidence presented before this court by the prosecution and the defence. It is trite that in any charge preferred against an accused persons, the prosecution has the duty to prove the elements of the same. (See section 107 of the Evidence Act Cap 80 of the Laws of Kenya. The degree/ standard of prove is always that of “beyond any reasonable doubts” [See Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373]. 17. In the instant case, the accused person is facing a charge of murder contrary to Section 203 of the Penal Code. Murder is defined as “when any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.” The elements of murder and which the prosecution ought to prove are: a. the death of the deceased occurred b. the death was caused by unlawful acts; c. that the accused committed the unlawful act which caused the death of the deceased; and d. that the accused had malice aforethought. (See Anthony Ndegwa Ngarivs Republic [2014] eKLR). 18. The question therefore is whether the prosecution tendered sufficient evidence to prove the above elements. 19. As for the death of the deceased having occurred, it is not in doubt that the deceased herein died. PW5 Dr.Phillis Muhonja testified that she conducted post mortem on the body of the deceased. As such, death of the deceased person was thus proven. 20. As to the death having been caused by unlawful acts, under Article 26 of the Constitution of Kenya 2010, right to life is protected and can only be taken away under the circumstances provided therein. What this means is that every homicide is unlawful unless authorized by law or excusable under the law or under justifiable circumstances such as self-defence or defence to property. ( See Guzambizi Wesonga v Republic [1948] 15 EACA 63). PW 5 gave evidence that the deceased’s person cause of death was multiple injuries, extensive haemotoma due to multiple point massive blunt object force trauma. The death of the deceased was definitely caused by acts which are not excusable or authorized by law and thus the same was unlawful. 21. In this case, there was no eye witness and the prosecution is relying on circumstantial evidence to prove the charge of murder against the accused person herein. The Court of Appeal set out the test of determining whether the prosecution established its case against an accused based on circumstantial evidence in the case of Abanga alias Onyango v Republic CRA No. 32 of 1990 (UR) in the following terms: a) The circumstances from which an inference of guilt is sought should be drawn and must be cogently and firmly established. b) The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/378/eng@2022-05-11 4

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c) 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.” [See also Simon Musoke v R [1958] EA 71] 22. This same principle is enunciated in the case of Sawe v Republic {2003} KLR 364 at pp 375-6 where it was stated that: “ In this state of the evidence, the two watchmen are not excluded from being persons who might have started the fire or for that matter any intruder might have done so. If that be the case, then the evidence does not irresistibly point to the appellant to the exclusion of all others within the meaning ofR v Kipkering Arap Koske & Another16 EACA 135 where it held, inter alia, that: In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” 23. In the instant case, PW3 testified that on 14.01.2019 at around 3.00 a.m., he heard people talking in the house of the accused herein which is only 100 meters from his. He went outside and listened and he identified the voices of the accused person, Patrick Muturi, Emilio Njeru and Morris Murimi. These are people he know well and they hail from his village. He stated that both deceased and the accused are also his grandchildren. It therefore follows that he knew both of them well. 24. The evidence of PW3 was corroborated by that of PW2 who also told the court that he heard voices of drank people the night before the deceased was killed. That he identified the voices of those people because they are people that he know from birth. It was his further evidence that the noises were coming from the house of the accused and the following morning he heard screams calling for help and ran to the scene only to find the deceased dead and the body lying a few meters from the accused person’s house. 25. In his defence, the accused denied killing the deceased and called the wife to the deceased as his witness. He was very evasive in his evidence and gave very scanty information on what transpired on the night preceding the death of the deceased and the following morning. First he told the court that on the night of the 13.01.2019 he was in his mother’s house throughout the night and he did not hear any noise in the compound. His own witness in her testimony stated that she was in the mother-in-law’s house taking care of her as she used to, because she was paralyzed. She did not mention at any point that he was there with the accused person. Secondly, he told the court that he did not know that his brother had died until when he went to look for a vehicle to take him to hospital. The court noted that he did not tell the court why he was taking his brother to hospital and the events surrounding the injuries his brother sustained as he knew them. Thirdly, the evidence available to the court is that the accused, the deceased, their mother and DW1 used to live in the same compound. The body of the deceased was found a few meters from the house of the accused person in the morning of the 14.01.2019 the day after the noise was heard in the accused person’s house. Both the accused and his witness denied seeing the body of the deceased in the morning of 14.01.2019 until later that day. 26. I find that the accused and his witness were not truthful when they told the court that they did not know that the deceased had died and only learnt of it much later in the day. From the evidence adduced by prosecution witnesses, I am convinced that the deceased met his death in the hands of the accused person together with others who were not arraigned in court as they were said to be at large. It is no wonder that the accused presented himself to the police on the 14.01.2019 even before he was arrested. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/378/eng@2022-05-11 5

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One may wonder why he had to do so yet there is no evidence that he had been told that he was a suspect as it was too early in the investigations. 27. As to whether the accused had malice aforethought, malice aforethought is the mental element (mens rea) of the offence of murder. Section 206 of the Penal Code defines it as follows; 206. 28. 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, 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. The Court of Appeal in Bonaya Tutu Ipu & Another v Republic [2015] eKLR stated as follows on the prove of malice aforethought;“ It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit v Uganda, CR. App. No.95of2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex v Tubere s/o Ochen (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue: It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick……” 29. In the end, I find him guilty as charged and I hereby convict him accordingly. DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF MAY, 2022. L. NJUGUNA JUDGE .....................for the Accused ..........................for the State https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/378/eng@2022-05-11 6

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