High Court 1975 of 2022

“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 8. There are four ingredients of the offence of murder, under the afore stated Section which the prosecution must prove beyond reasonable doubt in order to prove the charge of murder. They 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. d. Proof that the said unlawful act or omission was committed with malice aforethought. 9. The fact of death was proved by the doctor who carried out the postmortem examination and by the witnesses who identified deceased’s body for purpose of that postmortem examination. 10. That postmortem examination also proved the cause of death was spinal cord injury and bed sores. 11. Is there proof that the deceased met his death as a result of unlawful act or omission of accused? 12. The prosecution adduced evidence through witnesses that the accused was amongst the two other men who assaulted the deceased on the night of 20th February, 2015. Deceased wife and Sharon on being alerted by the deceased’s screams and on them going some 30 meters away from the house, they found three men; the accused being one of them kicking and assaulting the deceased as the deceased lay down on the ground. Although it was night time they were able to see and identify the three men. All the three men were known to them and the accused was related to the deceased. The deceased’s wife said of that night that:- “There was a large moon and we could see very clearly. There was sufficient light.” 13. The deceased’s wife was able to name each of the three men that assaulted her deceased husband. She and Sharon noted that the men were armed and in particular, the deceased’s wife noted the accused was armed with simi (panga) and an iron rod while Sharon only noted accused was armed with simi. 14. The assault of the deceased seemed to have been so severe that he was unable to raise himself up. Deceased’s wife and Sharon assisted him and carried him into the house and as they did so, they noted his limbs were broken and in particular deceased’s neck was unable to remain erect. The doctor in evidence stated that on carrying out the postmortem examination, he found the deceased’s spinal cord had been completely transected. 15. Although the accused counsel submitted in writing that the prosecution relied on circumstantial evidence, I beg to differ. Prosecution provided direct evidence of the accused and two other men which proved they assaulted the deceased. Deceased’s wife and Sharon said that on arriving at the scene, they found the three men, including the accused, assaulting the deceased. According to those witnesses, the three men did not run away despite the arrival of the deceased’s wife and Sharon, at the scene. 16. Following those injuries inflicted on the deceased, the deceased was admitted at Gatundu Hospital for 7 days. Deceased was transferred to KNH were he passed away due to the injuries inflicted by accused and the two other men and also due to bed sores. 17. The fact that one of the causes of death of deceased was bed sores does not remove that cause from the assault of deceased by the accused. There is a nexus between the bed sores suffered by the deceased and assault by the accused. It is that assault which resulted in the deceased being hospitalized and that prolonged hospitalization resulted in the deceased developing bed sores. In this regard, I rely on the Court of Appeal decision in the case DOMINIC MAINA WANJIRU VS. RPEUBLIC (2007) eKLR. In that case, Dominic defiled the deceased and when the deceased underwent surgical procedure, she died due to asphyxia due to aspiration of food. It was an anesthetic death. The Court of Appeal Considered cases decided in the UK and then stated thus:- “The appellant has averred in his grounds of appeal that the cause of death was not defilement but asphyxia due to aspirating food and that this was an anesthetic death. We think that the issue that arises for consideration is: what is the nexus between the defilement and/or sexual assault on the deceased and the cause of her death? Or, simply put, what is the immediate and primary cause of the death of the deceased? … The doctors in this case had limited experience and their failure to take precautionary anesthetic measures might have been inept or unskillful and probably more experienced doctors than those at Nyeri Provincial Hospital might have recognized and prevented the possible consequences of operating on a full stomach and thus preventing the deceased’s death. Nevertheless, the complication which resulted in the death was a direct consequence of the defilement or sexual assault and which remained a significant cause of the deceased’s death. We so hold.” 18. It follows that in spite the intervening act of deceased suffering bed sores, I find that the act of the accused, and his accomplices was still operating and was substantial cause of deceased’s death. 19. Further, the provisions of section 213 of the Penal Code are relevant. That Section defines causing death as follows:-

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“A person is deemed to have caused the death of another person although his act is not the immediate or the sole cause of death in any of the following cases: (a) If he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which causes death. In this case it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith and with common knowledge and skill; but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith or was so employed without common knowledge or skill." (b) ...” 20. The facts of this case indeed fall within the ambits of the above section. 21. The deceased died within three months of being assaulted by accused; that is within the period provided by Section 215 of the Penal Code as follows:- “(1) A person is not deemed to have killed another if the death of that person does not take place within a year and a day of the cause of death. (2) Such period is reckoned inclusive of the day on which the last unlawful act contributing to the cause of death was done.” 22. Additionally, the deceased himself according to the testimony of Sharon identified the accused as one of the persons who assaulted him. This identification of the accused by the deceased was a dying declaration. Dying declarations are admissible in evidence as was stated by the Court of Appeal in the case PHILIP NZAKA WATU VS. REPUBLIC (2016) eKLR thus:- “Decisions of this Court abound on admission and reliance on a dying declaration. Suffice to mention only two, CHOGE V. REPUBLIC [1985] KLR1, KIHARA V. REPUBLIC [1986] KLR 473 and NELSON JULIUS KARANJA IRUNGU V. REPUBLIC, CR. APP. NO. 24 of 2008. Under Section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements. Clearly by reason of Section 33 (A), there is no substance in the claim that a dying declaration constitutes inadmissible hearsay evidence. Notwithstanding Section 33(A) of the Evidence Act, courts have consistently held the view that evidence of a dying declaration must be admitted with caution ...” 23. Contrary to the submissions made by the accused, the prosecution’s evidence is not contradictory in as far as connects the accused to the assault of the deceased. The contradiction that the accused referred to, related as to who made report of the arrest of the accused. The arresting officer was PC Moses Kemitey. He said that it was Anthony Gitae who reported that the accused was being restrained whereas Anthony Gitae said it was him who remained restraining the accused at Gatukuyu and while he did so, he sent Ndungu to report to the police. That contradiction, if at all, was inconsequential. It only related to who reported to police accused had been restrained. It however needs to be restated that no two witnesses can recall exactly the same thing to minute details. Some discrepancies can be expected because human recollection is not infallible and no two people can perceive the same phenomena exactly the same way: See PHILIP NZAKA V. REPUBLIC (supra). 24. There is, in my view, ample proof beyond reasonable doubt that the deceased met his death as a result of the unlawful act on the part of the accused. 25. The final determination is whether there is proof that the unlawful act of the accused was committed with malice aforethought. Malice aforethought under Section 206 of the Penal Code is recognized where the accused had an intention to cause death or to do grievous harm whether that person actually dies or not. That Section also provides that there is malice aforethought where the person has knowledge that the act or omission will probably cause death or grievous harm. 26. Deceased wife, Sharon and deceased himself confirmed that the assault by accused and his accomplices was with weapon and involved kicking. The assault was so bad that deceased’s wife said deceased was in pain all night as they waited to take him to hospital the next day. Indeed, she described the state of deceased that night as, “in a bad shape. He could not even go to the toilet.” 27. The accused and his accomplices would have had the knowledge that the injury inflicted on the deceased would lead to his death. Malice aforethought therefore as adequately proved by the prosecution. 28. The defence offered by the accused does not displace the very clear and cogent evidence offered by the prosecution. 29. The accused having not given a sworn defence that defence had no probative value, this is what the Court of Appeal stated in the case AMBER MAY VS. REPUBLIC (1979) eKLR as follows:- “The appellant did not give evidence on oath in her defence, or call any witnesses. She contented herself with making a short,

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unsworn, statement … In R v Frost, R v Hale (1964) 48 Cr App Rep 284, referring to an unsworn statement, Lord Parker C J said (at pages 290, 291):In the opinion of this Court, it is quite unnecessary to consider what is really an academic question, whether it is called evidence or not. It is clearly not evidence in the sense of sworn evidence that can be cross-examined to; on the other hand it is evidence in the sense that the jury can give to it such weight as they think fit … and should take it into consideration in deciding whether the prosecution have made out their case so that they feel sure that the prisoner is guilty ... From all this we are satisfied that an unsworn statement is not evidence as that expression is generally understood. It has no probative value, but should be taken into consideration in relation to the whole of the evidence. … …. an unsworn statement is not strictly speaking evidence, and the rules of evidence cannot strictly be applied to an unsworn statement.” 30. In the end, I am satisfied that there is consistent evidence that the accused assaulted the deceased which led to his death. The accused’s guilt was proved by the prosecution beyond reasonable doubt. Accordingly, PETER NJOROGE NDUNGU is hereby found guilty and is convicted of the murder of Julius Muturi Gitae (deceased). JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF MARCH, 2022 MARY KASANGO JUDGE Coram: Court Assistant: Mourice Accused: PETER NJOROGE NDUNGU : - Present For accused: - N/A For DPP : Kasyoka COURT JUDGMENT delivered virtually. MARY KASANGO JUDGE

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