REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A CRIMINAL CASE NO. 15 OF 2013 REPUBLIC.....................................................PROSECUTOR VERSUS ISSACK MWANGI WAKANYI...........................ACCUSED JUDGMENT 1. FNN (hereafter, the deceased) was a five-year-old learner at [Particulars Withheld] Nursery School. She went missing on 5 th September 2013. Her body was discovered the following day adjacent to a road. 2. The accused was the principal suspect. The Republic brought information to the High Court charging him with the murder contrary to section 203 as read with section 204 of the Penal Code. 3. The particulars are that on 5th September 2013 at [Particulars Withheld] village in Muran’ga County, he murdered the deceased. 4. He pleaded not guilty. Seven witnesses took to the stand. The first was the deceased’s father, PN (PW1). On 5 th September 2013, the deceased had gone to school. He waited for her at home until 4:00 p.m. He started looking for her with other people. They failed to locate her. The following day, he received a call from someone who asked him to proceed towards Kahaini. Between the school and his home, he found people surrounding the body of the deceased; her inner pants were missing; and, her forehead had an injury. The witness said that the accused, who was at the scene, quietly sneaked away and surrendered himself to the chief. 5. The body was removed to Murang’a Hospital Mortuary. On 9 th September 2013, PW1 attended the post mortem examination which was carried out by Dr. Ibrahim Rioba. The latter did not testify but his report of even date was produced under section 77 of the Evidence Act. 6. PW2 was Eliud Ngugi. On 6th September 2013 at about 5:30 a.m., he was escorting his daughter to Sabasaba School. Another student who was ahead of them suddenly stopped and told him that she had seen the body of a child. He moved closer and used light from his phone. There were ants on her nose and lips. He also saw a condom. He called a neighbour to the scene. 7. PW3 was Murigi Njuguna. His home was next to the road. He was attracted to the scene by noises from the public. He saw the deceased’s body; it was bleeding from her private parts. He called the village elder who informed the parents of the deceased. 8. Virginia Wairimu Njogu (PW4) was a teacher at the deceased’s school. She confirmed that the deceased attended classes on 5 th September 2013. The learners would be dropped and picked by their parents or minders. She could not tell how the deceased left the school’s waiting bay on that day. She learnt from the school principal (PW5) the following day that the body had been found. The principal reported the matter to Sabasaba Police but was redirected to Makuyu Police Station. 9. PW6 was Anthony Ngigi Ruirii, the chief Kimorori Location. On 6 th September 2013, he had gone to visit the chief Makuyu Location. As he waited, the accused entered the office. They stepped outside. He told him that he hailed from Kamahuha and had killed a child the previous night. The accused called his uncle. PW6 spoke to the uncle who confirmed he was at the scene where the body was discovered. The witness called the chief Kamahuha who was still at the scene. Later, the Makuyu chief came and summoned Administration Police Officers who arrested the accused. 10. PW7 was Zawero Wainaina. He is a village elder. On the morning of 6 th September 2013, he was at the Chief’s Office in Makuyu. He said that the accused (whom he did not then know) came running into the compound. He asked him whether that was the chief’s office. He told him that he wanted to be arrested. When he asked him why, he replied that he had killed someone. 11. When the accused was placed on his defence, he made an unsworn statement. I will reproduce it verbatim-
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I was arrested and taken to Makuyu. I had asked to be taken to Kamahuha Police but they refused. In the morning I heard screams. I learnt then a child’s body was discovered. I closed my door. Then people came and arrested me. I was falsely accused. I have nothing more to say. 12. Learned counsel for the accused, Mr. Mwaniki Warima, filed written submissions on 14th December 2021. 13. 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. 14. 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. 15. There is no doubt about the death of the deceased. Her body was identified by her father, PW1. Doubt is completely removed by the post mortem report (Exhibit 1). In the opinion of the pathologist, death resulted from asphyxia “secondary to strangulation associated with head injury and violent sexual assault”. 16. 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. 17. There was no eye witness to the assault or strangulation. The prosecution’s case is 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. 18. There are a number of incriminating facts. The accused, who was among the members of the public milling around the body, quietly sneaked away and surrendered himself to the chief. PW7, a village elder, testified that on 6 th September 2013, the accused ran to the chief’s office pleading to be arrested. He was being pursued by a mob. The accused told him that he had “killed someone”. He was arrested. 19. That evidence was corroborated by PW6, Anthony Ngigi Ruirii. Like I said, he is the chief, Kimorori Location. On 6 th September 2013, he had gone to visit the chief Makuyu Location. As he waited, the accused rushed into the office. He told him that he hailed from Kamahuha and had killed a child the previous night. 20. When the accused was placed on his defence, he did not explain why he ran away from the scene and surrendered to the chief. He conceded that he “was arrested and taken to Makuyu [but] had asked to be taken to Kamahuha Police”. Although he claimed he had nothing to do with the offence, his shifty demeanour gave him away and I found it difficult to believe his story. On the totality of the evidence, I have reached the conclusion that he waylaid the child and killed her. 21. I find that the conduct of the accused is inconsistent with his plea of innocence. By strangling the deceased and assaulting such a young girl, he knew or ought to have known that it was likely to cause grievous harm or death. 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. 22. 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. 23. 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 1ST DAY OF FEBRUARY 2022. KANYI KIMONDO JUDGE Judgment read in open court in the presence of: The accused. Mr. Mwaniki Warima for the accused. Ms. Atieno Otieno for the Republic. Ms. Susan Waiganjo, Court Assistant.
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