REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A CRIMINAL CASE NO. 4 OF 2013 REPUBLIC..........................................PROSECUTOR VERSUS PETER GITAU MBURU.............................ACCUSED JUDGMENT 1. Bernard Mburu Gitau (hereafter, the deceased) was sharing a compound with his son (the accused). He did not have a very good relationship with him. Just a day before he was murdered, he had made a complaint to the area chief about the accused. 2. The deceased’s body was found lying in a pool of blood in the kitchen. His skull was fractured. There was a bloodstained jembe adjacent to the remains. 3. The accused was the principal suspect. The Republic brought information to the High Court charging him with murder contrary to section 203 as read with section 204 of the Penal Code. 4. The particulars are that on 25th April 2013 at Gathungururu village in Murang’a County, he murdered the deceased. 5. He pleaded not guilty. The prosecution called seven witnesses. 6. The first was John Kamau. He is a brother of the accused. He testified that the accused would drink and quarrel with the deceased. The deceased complained that the accused had dismantled a door to the maize store. When PW1 enquired further, the deceased told him that the accused wanted to sell the maize to get money to buy alcohol. PW1 advised his father to report to the area chief. This was confirmed by the Assistant Chief (PW6). 7. On the evening of 25 th April 2013, PW1 was informed by Samuel Kihiu (PW4) that their cows were still in the grazing field. PW1 asked the caller to get in touch with the deceased but he did not get him. He called later to say that maize was strewn all over. The following day, PW1 he was informed by the assistant chief that the body of the deceased was found in the kitchen. When he got home, the body was still lying there. The skull was broken. 8. PW2 was Francis Mwaura, another brother of the accused. The material part of his evidence was that on 26 th April 2013, he went to Makuyu Police Station where the accused was detained. The witness said that he was present when a statement under inquiry was taken. He said that the accused admitted that he hit the deceased with a jembe. As the evidence pointed to a confession, I ordered a trial within a trial. However, the Chief Inspector of Police, Wilson Mati, who took the accused’s statement, failed to appear in court despite service with witness summons on at least two occasions. 9. PW3 was Jeremiah Mwangi. He is a maize trader. On the morning of 26 th April 2013 the accused called him. He wanted to sell him some maize. He passed by the accused’s house at about 7:00 a.m. There was no one else in the compound. The accused told him that the deceased had gone to Kagumoini but had authorised the sale. PW3 bought 20 cans of Kasuku. As the two were loading maize onto a boda boda, the Assistant Chief (PW6) came. PW3 left the accused and the Assistant Chief in the compound. He was summoned back later by the chief. He found that the accused had been arrested. 10. Samuel Kihiu (PW4) is a neighbor of the deceased. He and Warui (PW5) who led the cows from the grazing field back to the deceased’s home on 25th April 2013. There was no one in the homestead. He said there are four houses in the compound; a kitchen, the deceased’s house, the accused’s house and that of Kamau Mburu (PW1). 11. PW4 spoke to PW1 at 10:00 p.m. the same night. The latter asked him to inform the assistant chief. He, Mathew Gichuhi and the assistant chief went to the deceased’s house. It was deserted. He went back to the compound the following morning at about 7.00 a.m. The accused had been arrested by the assistant chief with help of the public. PW4 saw the body of the deceased. It had an injury at back of the
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head. 12. Like I stated, on the night of 25th April 2013, Warui (PW5) helped PW4 to take the deceased’s livestock back into the compound. He said that the deceased’s house was open and papers were strewn around. There was no one in the compound. He returned to the compound the following morning in the company of the assistant chief. When the chief asked the accused about the whereabouts of the deceased, he said the deceased had gone to Kagumoini. As they got into the compound the accused attempted to run away. He said the chief got hold of him. When they opened the kitchen door, they discovered body of deceased. 13. That evidence was largely confirmed by Stephen Kihara (PW6), the assistant chief. PW6 said that when he returned to the compound the next morning, at about 6:30 a.m., he found the accused and PW3. There was a boda boda loaded with maize. The accused told him that the deceaesd had gone to Kagumoini. When he tried to open the kitchen door, the accused tried to escape but he caught up with him. 14. The witness said the body of deceased had an injury at the back of the head. Next to it was a bloodstained jembe. Police came to the scene. According to PW7, Corporal Urbanus Kivindyo, they re-arrested the accused and detained him at Makuyu Police station. The body was removed to Thika Mortuary. 15. The post mortem examination was carried out by Dr. Josephine Mutua. The pathologist could not attend the hearing as she was out of the country. The report was produced by consent under section 77 of the Evidence Act. It showed that the deceased died from “severe head injury (Brain laceration, contusions, subdural haematoma with external skull fractures due to blunt force…..)”. 16. When the accused was placed on his defence, he made a brief unsworn statement as followsAfter two days, I was unwell and I do not know what happened. I went to hospital. After I returned, that is when I got to know what happened. That is all. 17. Learned counsel for the accused, Mr. Josphat Kimwere, filed further submissions on 15 th December 2021. He also relied on the earlier submissions of 20th September 2021. In the further submissions, he opines that the accused was not in a proper state of mind at the time of the offence. He made reference to the psychiatric report dated 4 th March 2014. 18. Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 19. There are three key ingredients that must be present: first, the prosecution must prove beyond reasonable doubt the death of the deceased and the cause of that death; secondly, that the accused committed the unlawful act that led to the death; and, thirdly, that the accused was of malice aforethought. 20. There is no doubt about the death of the deceased. His body was identified by PW1, PW4, PW5, PW6 and PW7. Doubt is completely removed by the post mortem report (Exhibit 1). In the opinion of the pathologist, death resulted from “severe head injury……with external skull fractures due to blunt force…..”. 21. From that evidence, I find that the death was unlawful. The next question then is whether the Republic has proved beyond reasonable doubt that the accused, of malice aforethought, killed the deceased. 22. There was no eye witness to the assault. The alleged confession was not proved at the trial. The prosecution’s case is thus built upon circumstantial evidence. In order to convict on such evidence, the entire chain must be complete and point to the guilt of the accused “incapable of explanation upon any other reasonable hypothesis than that of his guilt”. R v Kipkering arap Koske & another 16 EACA 135 (1949). See also Sawe v Republic [2003] KLR 364, Mutua v Republic, High Court, Machakos, Criminal Appeal 198 of 2013 [2015] eKLR, Republic v Richard Itweka Wahiti, High Court, Kiambu, Criminal Case 9 of 2016 [2020] eKLR. 23. There are a number of facts pointing to the guilt of the acused. Firstly, he and the deceased were living together in the compound. Secondly, and just a day before he was murdered, the deceased made a complaint to the area chief about the conduct of the accused. According to PW1, the accused had removed the door to the main store. His plan was to sell the maize to get money to buy alcohol. The assistant chief (PW6) confirmed that the deceased came to his house and reported the matter. He asked him to go to the office the next morning. He did not do so because he was dead. 24. Thirdly, PW3 confirmed that the accused called him on the morning of 26 th April 2013 to come to the homestead to buy some maize. When PW3 got there, the accused lied that the deceased had gone away to Kagumoini but had given him authority to sell the maize. The same lie was repeated to the assistant chief (PW6) in the presence of PW5. Unbeknown to the witnesses at that time, the deceased’s body was lying dead in the kitchen. 25. Fourthly, when the assistant chief returned to the compound with the accused and tried to open the kitchen door, the accused made a run for it but the chief caught up with him and arrested him with help from members of the public. 26. Fifthly, the accused had a clear opportunity to kill the deceased as only the two of them were residents in the compound. He also had a motive to sell the maize to get money to buy alcohol. 27. When the accused was placed on his defence, he feigned complete ignorance of what happened to his father. I remain alive that the legal burden of proof lay throughout with the prosecution. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332.I
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28. According to the learned defence counsel, the statement in defence was pointer to a deeper psychiatric problem. Counsel relied on the psychiatric report dated 4th March 2014 filed in court on 12 th March 2014. The report was made by Dr. J. M. Mburu, Consultant Psychiatrist. I have studied it closely. He concluded that although the accused had claimed (without supporting documents) that he had been admitted to Mathari in 2013, he had “no current psychopathy. He is in full control of his mental functioning. He is mentally fit to take plea and stand trial”. The psychiatrist also found that the accused had sound thoughts, speech, memory, judgement and perception. Although he had “a slightly low mood, his circumstantial variations are within normal”. I was satisfied throughout his trial (which started afresh before me) that he followed the entire proceedings. 29. Granted the medical evidence, I cannot say that the accused did not know or understand the consequences of what he was doing at the time he attacked and killed the deceased. On the totality of the evidence, I have reached the conclusion that he killed killed the deceased. 30. I find that the conduct of the accused is inconsistent with his plea of innocence. By delivering a heavy blow to the back of the deceased’s skull using a jembe, he knew or ought to have known that it was likely to cause grievous harm or death. He had a clear motive to access the maize to generate funds to buy alcohol. His conduct was clearly premeditated. I readily find that he had malice aforethought as defined in section 206 of the Penal Code. The deceased died as a direct consequence of his unlawful conduct. 31. The entire corpus of circumstantial evidence points irresistibly and exclusively to the guilt of the accused. I find no defence or hypothesis that exonerates him. 32. The upshot is that the prosecution has proved the charge beyond reasonable doubt. The accused, of malice aforethought caused the death of the deceased by an unlawful act. I accordingly enter a finding of guilty. The accused is hereby convicted. It is so ordered. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 8TH DAY OF FEBRUARY 2022. KANYI KIMONDO JUDGE Ruling read in open court in the presence of: The accused. Ms. A. Gakumu for the Republic. Ms. Susan Waiganjo, Court Assistant.
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