Republic v George Kamau Mwaura

accused and the details the bank had of the deceased. This witness therefore decided to call the deceased’s telephone number. There being no answer to that number, the bank official decided to call deceased’s Next of Kin, Branda Nyakianda. Brenda very emotionally informed the bank official that her father, the deceased, had been missing for a week. It was then that the bank official pressed a panic button and the accused was arrested. The deceased’s ATM Card for the co-operative bank was produced as prosecution’s exhibit No. 1. 7. Sgt. Moses Mwangi was charged with the investigation of the report of missing person, the deceased. He, in the company of the deceased’s daughter, Brenda went to the deceased’s home. They did not find the deceased there. On 24th July, 2014, this police officer received information of the recovery of a dead body which was taken to Nairobi City Mortuary. Brenda confirmed the dead person at the mortuary was her missing father. The Sgt. also stated that he received information that the accused had been arrested for attempting to withdraw money from Kangemi branch of the Co-operative Bank using the deceased ATM Card. ACCUSED DEFENCE 8. The accused elected to sworn testimony in his defence. 9. The accused stated that his name is Stephen Kuria Mwaura and not as per the charge in this case. On 22nd July, 2014 he said he was at Kangemi car wash. He then stated:- “I got an ATM Card. It was on the ground. I collected it. The name on the card was George Kiarie (deceased). I collect (sic) and I asked when you pick such a card what do you do. Someone said take it to the bank.” 10. The accused narrated how he went to Kangemi branch of the Co-operative Bank. He said he informed Doreen Kithinji, the bank official, that he had picked the ATM Card. He stated that on the said bank official making phone calls, she instructed security personnel to “take hold” of him. He was later re-arrested by police officer and taken to Kabete Police Station. The accused denied attempting to change the PIN of deceased ATM Card. The one statement made by accused which summed up his defence is as follows:- “I don’t know the deceased. If I did not take the ATM Bank card, I would not be here today.” 11. The accused also stated that he had mental problems from the year 2007 to date. ANALYSIS 12. The fact of death of the deceased was confirmed by the Assistant Chief and by the Sgt. Moses Mwangi and by the doctor who performed the post mortem. 13. Doctor Peter Muriuki Ndegwa, presented the post mortem form which he filled after performing the post mortem of the deceased. The post mortem examination was on 24 th July, 2014. The deceased’s body was partially decomposed. The doctor noted that the deceased’s neck had been tied with nylon rope. The doctor concluded that the deceased died of asphyxiation due to manual strangulation. 14. Having proved the fact of the deceased’s death and the cause of death, the prosecution needed to prove that the deceased met his death as a result of unlawful act or omission of the accused. 15. The deceased went missing on 20 th July, 2014 and the fact of his missing was reported at the Kasarani Police Station on 21 st July, 2014. On 22nd July, 2014, the accused presented himself at the Kangemi branch of the Co-operative Bank having in his possession the deceased’s ATM Card for that bank. The prosecution’s case is that the accused requested for the PIN of that ATM to be changed so that he could access the deceased account. The accused’s defence was that he found the ATM card and he had gone to the bank to return the ATM Card when he was arrested. None of the prosecution’s witnesses gave evidence directly linking the accused to the murder of the deceased. The prosecution relied on the doctrine of recent possession of the deceased’s ATM Card as evidence that the accused committed the murder. 16. The Court of Appeal in the case of DAVID MUGO KIMUNGE VS. REPUBLIC (2015) eKLR considered the doctrine of recent possession and stated:- “16. The doctrine of recent possession has been applied in numerous decisions of this Court and the High court properly cited the Kahiga case (supra) as one for the elements necessary for proof. We may reproduce the elements from that case:- ‘It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof:i) that the property was found with the suspect; ii) that the property is positively the property of the complainant; iii) that the property was stolen from the complainant;

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iv) that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.’” 17. The ATM was positively identified by the bank officials to belong to the deceased. The deceased’s ATM Card was found in the possession of the accused. As stated before the deceased was reported as missing on 20 th July, 2014. The accused presented himself at the Co-operative Bank in possession of the deceased ATM card on 22 nd July, 214. ATM Cards are personal items of property. They unlike such as clothing do not move from one person to another with ease. 18. The accused’s defence is that he picked the deceased’s ATM on the ground and was in the process of surrendering it to the Co-operative Bank when he was arrested. There is no reason at all given why the two bank officials would lie, when they testified that the accused went to the banks seeking assistance to access the deceased’s bank account by using the ATM Card. There is no evidence presented showing that those bank officials had a grudge against the accused. 19. The Canadian case R. VS. MORGAN, 2013 ONSC 1522 (CanLII) is worth considering in this discussion of the doctrine of recent possession. In that case, it was stated:- “28.The doctrine, in a nutshell, allows the trier of fact, in appropriate circumstances, to draw an inference of guilt of theft or other crimes linked to the theft (possibly all the way up to murder), if it is shown that the accused is in the unexplained recent possession of stolen property. The inference may be made even when there is no other evidence of guilt. 29. As previously indicated, the leading case is R. v. KOWLYK, 1988 CanLII 50 (SCC), [1988] 2 S.C.R. 59, at pp. 74-5, where McIntyre J., for the majority, set out the principle as follows:- ‘12. In summary, then, it is my view, based on the cases, both English and Canadian, which I have referred to, that what has been called the doctrine of recent possession may be succinctly stated in the following terms. Upon proof of the unexplained possession of recently stolen property, the trier of fact may -- but not must -- draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply.’” 20. The prosecution tendered evidence of the accused’s attempt to access deceased’s bank account through ATM Card use which evidence was part of the package of circumstantial evidence which, this Court can infer that the accused participated in the killing of deceased or was the killer. The ATM Card belonged to the deceased. Someone had killed the deceased and had dumped his body in a dam. The accused’s possession of the ATM Card was undoubtedly an unexplained recent possession of the stolen ATM Card. Having considered all the circumstances of the case, I draw an inference of guilt of the theft of the deceased’s ATM Card following the murder of the deceased. 21. The deceased’s body was recovered with his hands and legs tied and his mouth gagged with a piece of cloth. The postmortem indicated that the deceased had a nylon rope round his neck. The cause of death of deceased was asphyxiation by manual strangulation. There is undoubted evidence that the one who tied the deceased with nylon rope and which led to the strangulation of the deceased intended and had knowledge of the consequences that occurred, that is the death of the deceased. The prosecution therefore proved malice aforethought of the accused. It is useful to make reference to the case REPUBLIC VS. JUMA KITUKO MWANGEGU (2020) eKLR as follows:- “Some of the compelling evidence to infer malice aforethought is to be found in ERNEST ASAMI BWIRE ABANGA ALIAS ONYANGO V R (CACRA No. 32 of 1990) where the Court held:- ‘the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.’” 22. Although the accused stated he suffered from mental illness, the prosecution produced medical examination report of the accused which showed accused as at 28th July, 2014 was mentally fit. 23. Further, it is worth stating that nothing turned on the accused’s allegation that he is called STEPHEN KURIA MWAURA. 24. In conclusion, I find and hold that the prosecution proved beyond reasonable doubt the accused is guilty as charged. I therefore hereby convict GEORGE KAMAU MWAURA of the murder of GEORGE KIARIE NGUGI deceased. JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF FEBRUARY, 2022 MARY KASANGO JUDGE

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Coram: Court Assistant : Mourice Accused : George Kamau Mwaura : Present For accused : Ms. Nyamberi For DPP :Mr. Kasyoka and Mr. Benjamin COURT JUDGMENT delivered virtually. MARY KASANGO JUDGE

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