REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL CASE NO. 88 OF 2016 REPUBLIC ........................PROSECUTOR -VERSUSJOHN NJENGA NJAHIRA.......ACCUSED JUDGMENT 1. JOHN NJENGA NJAHIRA (the accused) is charged with the offence of murder of his wife MWN deceased. The deceased was murdered on the night of 12th and 13th November, 2016 at Nginduri village Estate in Kiamwangi location within Kiambu county. 2. On 12th November, 2016 MW (M) invited her neighbours to attend her grandson’s and other young men’s circumcision initiation ceremony at her house at Kiamwangi, Nginduri village. Women from that village first arrived at 8pm at M’s homestead and assisted in cooking food for guests who were to attend the ceremony. 3. The initiates arrived at M’s homestead after the circumcision at 10 pm and were given food by the women who had been cooking. The deceased was one of the women who assisted in the cooking. There were many guests at M’s homestead, including the accused. 4. JM(M) is married to a son from M’s homestead and lives in that home. She was therefore assisting in the cooking. As the evening progressed, M invited the women who included the deceased to while away their time in their kitchen. M said that the deceased and another lady called RW (R) had small children who were present at that home. Those children were sleeping on a seat in M’s home. M in her evidence stated that the accused went to the kitchen and requested deceased to take their small child home. M stated further that:- “She (deceased) did not but when he (the accused) returned with the same instructions I escorted them (deceased and R).” 5. M further said that she left the deceased and Roseline as they went to their homes, but that R later returned to M’s kitchen and they sat there together. 6. R recollection of that evening was that the accused went to M’s kitchen at about midnight and on finding the women sitting there, the accused “demanded” deceased to take their young child home. R said she left and so did the deceased as they took their respective children home. R said that she went towards her home as M escorted the deceased. 7. M in evidence said that after food was served and eaten, that the accused left with deceased. This is what Mary stated:- “After food (sic) accused said he was going to leave with his wife (deceased) who was with him. They were escorted out but much later we heard screams. I thought I heard a child crying.” 8. M said that on hearing a child cry she sent her granddaughter, 2 years old, to check on that child who was crying. M said:- “W(the 2 year old granddaughter) and other children came and said [the] child was crying alone and [the] mother [was] not speaking. I and others rushed there and I stayed a distance away. Those who had seen her said she was in a bad place. Deceased [was] escorted to hospital by her relatives.” 9. LW (L) who had been at the ceremony but had gone to her home to sleep said at about midnight she was woken up by noise at the road near her house. She went out in the company of her husband and there they found the deceased lying down and they took her to hospital.
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10. M said she was alerted by the screams of M and J. Jane did not testify. As a result of their screams, M went to the scene where she found deceased lying down next to her gate. Later, M said she learnt that the deceased died at the hospital from her injuries. 11. R said in evidence:- “I cannot tell how the deceased sustained [the] injury. Last I saw W (deceased) is when we parted [ways]. Then I heard noises in 20 minutes close to my home.” 12. R noted that there was blood oozing from the deceased’s neck running unto her back. R noted that deceased lay down injured and was alone. 13. Doctor Eunice Mugweru carried out the postmortem examination of the deceased and found that the deceased suffered two stab wounds on the right anterior chest wall. The cause of death was severe internal hemorrhage which was caused by penetrating chest injury from the stab wound. 14. The accused gave sworn defence. 15. He stated that he and his wife had been invited for the circumcision ceremony. They then resided in Thika town. He requested his deceased wife, their child and his brother to proceed to Kiamwangi, Nginduri village ahead of him. He was to follow after finishing the assignment of his employer. 16. On arriving at deceased’s grandmother’s home and after eating they went to M’s home where the celebrations were taking place. He said there were many people there. 17. At 2 am he requested deceased that they should take their child to sleep. They left in the company of M and R. They however parted company with the two, M and R, and as he bent to open the gate of his home, two men emerged and ordered him to sit down. One of those men held him and deceased screamed. One of the men went to deceased and pushed her down. It was when the men left he noted deceased was holding to her neck and was bleeding. Accused in company of others who gathered there took deceased to hospital but she was pronounced dead on arrival. ANALYSIS 18. Section 203 of the Penal Code provides:- “Any person who by an unlawful act or omission is guilty of murder.” 19. The above gives rise to four crucial ingredients of the offence of murder. Those four ingredients must be proved by prosecution in order to prove the charge of murder on the standard of beyond reasonable doubt. Those ingredients are:a. The fact of death of deceased. b. The cause of such death proof the deceased met his death as a result of unlawful act or omission on the part of accused person. c. Proof that the said unlawful act or omission was committed with malice aforethought. 20. The fact of deceased’s death was proved by prosecution’s witnesses who testified that deceased died on being taken to hospital. 21. The fact of death and its cause was proved by the doctor who performed postmortem. The cause of death was severe internal hemorrhage caused by penetrating chest injury from a stab wound. 22. The prosecution on the fourth ingredient for murder was required to prove the accused caused deceased death as a result of unlawful act or omission on his part. 23. Although the accused as well as deceased were present at the celebrations that took place at M’s homestead, the evidence of whom the deceased left the celebrations with, on the early hours of 13 th November, 2016, is extremely inconsistent. The women who were in the company of deceased, at M’s kitchen as they whiled away the evening, spoke of the accused requesting the deceased to take home their child who was sleeping on the chair. 24. M stated that she escorted deceased and R, who left together. M further said that R escorted deceased when she parted company with them. R, on her part said that although she walked out of the ceremony with deceased, she however said it was M who escorted deceased. M, however said that the accused announced to her that he was leaving together with deceased. M said that the accused and deceased were escorted out of the ceremony without saying who escorted them. 25. There is no evidence by the prosecution which places the accused near the scene of attack of deceased at the time the deceased was attacked. The only evidence availed by prosecution’s witnesses, stated that the accused was present when deceased was taken to hospital. There is therefore no scintilla of evidence which can support a finding that the accused’s act or omission caused the deceased’s death. It
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would seem that accused was charged with death of his deceased’s wife simply because he may have spoken to her harshly requesting her to take their young child home to sleep. It needs to be clearly stated to the prosecution that suspicion however strong cannot provide a basis for inferring guilt which must be proved by evidence: See the cause MARY WANIKU GICHIRA VS. RPEUBLIC Criminal Appeal No. 17 of 1998 (UR). The prosecution’s evidence fails to satisfy the legal requirement for conviction for the offence of murder. CONCLUSION 26. It is because of the above finding that the accused JOHN NJENGA NJAHIRA is found not guilty and is acquitted of the charge of murder of MWN (deceased). Accordingly, I order John Njenga Nhahira to be set free unless he is otherwise lawfully held. JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF MARCH, 2022 MARY KASANGO JUDGE Coram: Court Assistant : Mourice Accused : JOHN NJENGA NJAHIRA : - present For accused : - Ms. Bundi H/B Kiunga For DPP : - Mr. Kasyoka JUDGMENT delivered virtually. MARY KASANGO JUDGE
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