Republic v Gitonga (Criminal Case 79 of 2019) [2022] KEHC 3005 (KLR) (9 May 2022) (Judgment) Neutral citation: [2022] KEHC 3005 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MERU CRIMINAL CASE 79 OF 2019 TW CHERERE, J MAY 9, 2022 BETWEEN REPUBLIC ........................................................................................... PROSECUTION AND JULANDA KARIMI GITONGA ................................................................. ACCUSED JUDGMENT 1. Julanda Karimi Gitonga (Accused) is charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that: On 02nd October, 2019 at Kathamwene village, Antuambui sub – location, Laare Division in Igembe North Sub- County within Meru county murdered Fredrick Mugambi Mujumbe. Prosecution Case 2. PW1 M’Murebia M’Ikiranya father to Fredrick Mugambi Mujumbe (Mugambi) arrived home at about 05.00 pm to find Mugambi lying unresponsive outside the house. That when his wife informed him that Mugambi had been assaulted the previous day, he reported the matter to police who visited the scene and escorted Mugambi to hospital where he was admitted and died 4 days later while undergoing treatment. PW2 Julius Katheru recalled that on 27th September, 2019 at about 05.00 pm, he was at his shamba near the home of one Grace who sells changaa. That he saw people fighting at the said home and rushed to the scene to find Accused and one Meshack Kiburu beating Mugambi. That he specifically saw Accused hit Fredrick on the head with a jembe. That he reported the matter to PW1 and Mugambi was taken to hospital where he died. PW3 Felix Mwathia who was drinking changaa with Mugambi on 27th September, 2019 identified Accused as the one that hit Mugambi on the head with a jembe. PW4 Luka Mwenda escorted Mugambi who was bleeding from the head, mouth and ears to hospital on 27th September, 2019. PW5 Joseph Karuti, a village elder arrested Accused on 09th https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3005/eng@2022-05-09 1
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October, 2019 and handed her over to PW7PC Justice Kimilu who conducted investigations and caused Accused to be charged. Defence Case 3. Accused in her sworn statement denied the offence but stated that on 27th September, 2019, she received information that Mugambi had been assaulted but did not see him. Her witness Henry Kobia stated that Mugambi was assaulted by one Mathayo Ngure. Analysis And Determination 4. 5. 6. Section 203 and 204 of the Penal Code under which the accused is charged read as follows: 204. Any person who is convicted of murder shall be sentenced to death.” (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought. a. The death of the deceased That Mugambi died is confirmed by a postmortem form PEXH. 1 filled by Dr. Adan which shows he suffered massive epidural hematoma on left temporal region and died of severe head injury with massive epidural hematoma. Proof that accused persons committed the unlawful act which caused the death of the deceased PW2 Julius Katheru and PW3 Felix Mwathia have identified Accused as the one that hit Mugambi on the head with a jembe. Their evidence is well corroborated and Accused’s defence that she did not assault him and his witness’ evidence that Mugambi was assaulted by one Mathayo Ngure is rejected. c) 8. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. The issue for determination is whether the prosecution has proved its case beyond reasonable doubt. In Anthony Ndegwa Ngari vs Republic [2014] eKLR The Court of Appeal stated the three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction being: - (b) 7. “ 203. Malice aforethought The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves any one or more of the following circumstances: “ (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) An intent to commit a felony; https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3005/eng@2022-05-09 2
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(d) 9. An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.” In the case of Republic v Tubere S/O Ochen [1945] 12 EACA 63 the court held that: “ An inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack” 10. The evidence on record revealed that Mugambi was assaulted for allegedly stealing Accused’s jembe. The circumstances of this case demonstrate that the assault on Mugambi was not premeditated and I therefore find Accused Not Guity of murder but find her Guilty of a lesser offence of manslaughter contrary to Section 202 (1) of the Penal Code as read with Section 205 of the Penal Code and both are convicted accordingly. DELIVERED AT MERU THIS 09th DAY OF May 2022 WAMAE. T. W. CHERERE JUDGE Appearances Court Assistant - Kinoti Accused - Present For the Accused - Mr. Wamache Advocate For the State - Ms. Mwaniki (PPC) https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3005/eng@2022-05-09 3
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