Republic v Erick Mutugi Mutiria

postmortem was done on the body of the deceased and the doctor formed the opinion that the cause of death was cardio pulmonary arrested due to severe blood loss from stabbed wound. The accused was then charged with this offence. The Prosecution Case: 4. The prosecution called eight witnesses. PW1 was Juliana Wangechi testified that on the material day at around 9.00 p.m. she was at Jefa Bar where she was assisting her sister who works there to serve customers. She heard two customers who were known to her as Mwiti (deceased) and Mutugi who is the accused in this case insulting each other. Within no time a fight ensued. One Simon Munene (PW7) intervened, led the two outside and separated them. According to PW1 the accused left the bar to unknown place while the deceased returned to the bar and continued drinking. The accused then returned shortly after that and walked to the deceased table, removed a knife which he had concealed under his waist of his trouser then stabbed the deceased twice on the chest. She testified that the deceased started bleeding profusely and fell down screaming for help. He was rushed to hospital but succumbed to the injuries before reaching Kathathani Medical Centre. PW1 described the knife which was used to stab the deceased and identified it and was marked MF1-1 and produced as exhibit -1. She recorded a statement with the police. 5. In cross-examination PW1 testified that she did not know the accused but that he came to the bar that material night and she is the one who sold beer to him. 6. According to PW1 the accused was drunk when he went to the bar. She told the court the accused and the deceased are the only ones who were quarrelling in the bar. That the accused dropped the knife in the bar after stabbing the deceased. 7. PW2 Gilbert Kinyua Mbaka testified that he is the Chief Gitareni Location and knew the deceased and the accused as they were residents of his sub-location. On the material day he received a call from Stella Karegi reporting that a person was stabbed with a knife in her bar. He called the officer-in-charge Cera AP Post who confirmed that he had received the report and was on the way to Kathathani market. PW2 proceeded to Kathathani market and proceeded to Jeffa. He then saw the body of the deceased and realized that he was already dead. He also saw that the deceased had a stab wound on the chest. He enquired and was informed that the two had a quarrel and the accused stabbed the deceased on the chest and fled from the scene. Police from Chuka Police Station went to the scene and he led them to the home of the suspect. The suspect was not at home. Later police informed him that the accused had been arrested. He went and recorded a statement. 8. PW3 was doctor Nicholas Nkonge who performed postmortem on the body of the deceased Silas Mwiti Stephene on 24/11/2019 after it was identified by his relatives. The doctor found that the deceased had a stab wound which had penetrated on the right side of the chest extending from the right arm to the left side of the chest. There was blood in the chest cavity. The right lung had collapsed. The right ventricle of the heart was pierced. He formed the opinion that the cause of death was severe blood loss due to the penetrating stab wound. He issued a death certificate and filled and signed the Postmortem Form which he produced as exhibit -2 in this case. In cross examination he told the court that the stab wound was caused by a sharp object. 9. PW4 Douglas Muriithi Stephene is the younger brother of the deceased who identified the body of the deceased to the doctor who performed the postmortem. PW5 was Jeniffer Kagendo is the mother of the deceased. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/6583/eng@2024-04-05 2

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10. On the material day she heard screams at Kathathani Market and went to find out. She found the deceased on the ground and he was already dead. She stood there until police came and carried away the body of the deceased 11. PW6 Susan Wanjiru Ngugi who is a government analysis at Government Chemist Nairobi Forensic Biology Nairobi. She testified that on 18/11/2019 she received a Police Constable Harris Yusuf. A knife marked –A-, Blood sample in a bottle belonging to one Cyrus Mwiti Stephene, deceased. She was requested to ascertain whether there was any relationship between the two exhibits. She did her analysis and found that the knife had moderate bloodstains of human origin. She formed the opinion that the blood on the knife and the blood sample of the deceased matched the DNA of the blood sample of the deceased. She produced her report as exhibit -3- she also produced the exhibit memo form which she received on 18/11/2019 as exhibit 4. 12. PW7 Simon Munene used to be manager at Jeva Club at Kathathani within Gitareni where the incident occurred. He testified that on the material day he found the deceased and the accused in the bar fighting. He pushed them outside the club where they continued fighting. He went and told them to stop fighting. The accused left while the deceased went inside the bar. After a short while the accused returned and entered the club. He then heard screams inside the club and people saying that the accused had stabbed the deceased with a knife. He went inside and saw the deceased bleeding and there was a knife nearby. He testified that it was a metallic knife and he identified it in court which is the one produced as exhibit 1. He assisted to take the deceased to a nearby hospital but realized he had passed away. 13. PW8- Corporal Idi Hussein was the Investigating Officer. He testified that he received the report and went to the scene. He found the body of the deceased. He was given the name of the accused as the suspect who stabbed the deceased. He removed the body from the scene and later a postmortem was done. He testified that the next day after the incident he went to the scene and recovered a knife which was blood stained. The accused had fled from the scene and was later arrested at Malindi. 14. The accused upon being put on his defence opted to give his defence on Oath. He told the court that the allegation against him is not true as he was in Nairobi on the material day heading to Mombasa. He went upto Malindi and after two weeks he was arrested and told there was a murder he committed at Kathathani inside Jeffa Bar. He denied as he was not in the bar on that material night. He further told the court that the knife which was produced in court was not his. 15. The parties filed submissions. For the accused, the defence Counsel Mr. Kirimi submitted that the witnesses testified that the knife which was used as the murder was said to have a handle while the one produced in court had no handle. He further submitted that none of the witnesses saw what actually happened at the time the deceased is said to have been stabbed. That the witnesses were not candid and there was an attempt to cover up. That the accused was not at the scene and the prosecution has not discharged the burden to proof the charge against the accused beyond any reasonable doubt. He relies on the case of Stephene Nguli Mulili v Repbulic (2014) eKLR, Miller v Ministry of Pensions (1947) All ER 372 and the Nigerian Case of Bakare v State (1987) INN LR (P7 52) 579. 16. It is further submitted that the fact of death of the deceased is not in question but that there is nothing in the prosecution’s evidence to show without doubt that it is indeed the accused who caused the death of the deceased. While relying on Sawe v Republic (2003) KLR 354 he submits that suspicion however strong cannot from a basis of a conviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/6583/eng@2024-04-05 3

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17. For the State, submissions were filed by Felister Njeru, Prosecution Counsel she urged the court to find that all the elements of the offence of murder were proved to the required standards. She urged the court to convict the accused. Analysis and Determination: 18. I have considered all the evidence adduced and the submissions. The issue which arises for determination is:1. Whether it is the accused who caused the death of the deceased with malice aforethought. Section 203 of the Penal Code provides as follows: “ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” The key ingredients of the offence of murder are as follows:a. The fact of death b. The cause of death c. Proof that the deceased met his death as a result of unlawful act or omission on the part of the accused person. d. Proof that the unlawful act was committed with malice aforethought. See Republic v Henry Obisa Arko (2018) eKLR and Republic v- Mohammed Dan Kokane & 7 Others (2014) eKLR I will proceed to consider whether the prosecution has proved these ingredients beyond any reasonable doubts. a. The fact of death 19. This fact is not in dispute. The prosecution called PW1 who saw when the deceased was stabbed. She assisted to take him to hospital but before he could reach hospital he passed away. PW4 was the brother to the deceased. He confirmed that he found the body of the deceased on the ground with his chest covered with blood. Police then carried the body from the scene. Later he identified the body of the deceased to the doctor who performed the postmortem. 20. Similarly evidence of Jeniffer Kagendo (PW5) was that she went to the scene and found the body of the deceased who he identified as his son. She confirms that the deceased had a stab wound on the chest. To crown it all the prosecution called Doctor Nicholas Nkonge (PW3) who conducted a postmortem on the body of the deceased and produced a postmortem form. He also issued a death certificate. The investigating officer also confirmed that he found the body of the deceased at the scene and removed it to the Chuka Hospital Mortuary. I find that the prosecution adduced well corroborated evidence to prove the fact of death and the defence in their submissions stated that this fact was not in dispute b. Whether accused committed the unlawful act which caused the death. 21. The prosecution relied on the testimony of Juliana Wangeci (PW1) who testified that on the material day she witnessed when the deceased was stabbed with a knife by the accused in this case. According to her the accused and the deceased were in the bar as customers when they suddenly started quarrelling and insulting each other. She testified that Simon Munene intervened and led them outside the bar. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/6583/eng@2024-04-05 4

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The accused left for unknown destination while the deceased went back to the bar and continued drinking. According to PW1 the accused returned shortly and acted violently in the manner in which he entered the bar. The accused then removed a knife from his trouser and stabbed the deceased once on the chest using the knife then fled from the bar. PW1 was candid as to what happened. She told the court that the bar was well lit with electricity light and there was a huge flood light “mulika mwizi” with six bulbs whose light illuminated the outside and inside of the bar. PW1 further said that she knew the accused before as he was a resident of Kathathani. I find that the PW1 could not have failed to recognize the accused who she knew and the bar was well lit. There was no possibility of mistaken identity. Her testimony was not shaken in cross-examination. I have no reason to doubt PW1. I am satisfied that she witnessed the accused commit the unlawful act of stabbing the deceased with a knife. PW1 also identified the knife as exhibit -1- which was used to stab the deceased. Her testimony that the knife was the one which was used to stab the deceased was corroborated by the testimony of the government analyst (PW6) who confirmed that the knife was stained with the blood of the deceased. The testimony of PW1 was also corroborated by the testimony of Simon Munene (PW7) in all the material particulars. Simon Munene who was the manager in the said club confirmed the accused and deceased had quarreled in the bar on that material night. He separated them and led them outside. The accused left and returned shortly. He then stabbed the deceased and left through the rear door. I find that the testimony of PW1 & PW7 is well corroborated. 22. I am satisfied that the evidence proves beyond any reasonable doubts that the accused is the one who committed the unlawful act of stabbing the deceased on the chest using the knife and caused his death. PW7 testified that he found the knife next to the body of the deceased and is the one accused used to stab the deceased. He identified the knife in court and was produced in court as exhibit- 1. 23. The unlawful act by the accused constitutes the ‘actus reus’. The voluntary wrongful act or omission that constitutes the physical component of a crime.” The prosecution was under a duty to prove that the accused was guilty of a wrongful act or omission the direct consequence of which was the death of the deceased. I find that with the evidence of PW1 & PW7 the prosecution did discharge this burden. c. Whether the accused had malice aforethought. 24. Section 206 of the Penal Code (Cap 63 Laws of Kenya) provides as follows:“ (1) If, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs. (2) If the court convicts the accused person in his absence, it may set aside the conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits. (3) A sentence passed under subsection (1) shall be deemed to commence from the date of apprehension, and the person effecting apprehension shall endorse the date thereof on the back of the warrant of commitment. (4) If the accused person who has not appeared is charged with a felony, or if the court refrains from convicting the accused in his absence, the court shall issue https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/6583/eng@2024-04-05 5

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a warrant for the apprehension of the accused person and cause him to be brought before the court.” 25. Thus malice aforethought is deemed to be established by evidence proving that only one or more of the following circumstances exists that isi. An intention to cause the death or grievous harm to any person whether that person is the one actually killed or not. ii. Knowledge that the act or omission would result in causing the death 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 a grievous bodily harm is caused or not or by a wish that it may not be caused. iii. An intention to commit a felony. The term mensrea is a term that shows the state of mind showing culpability and an intention o commit the offence. The criminal liability in murder involves prove both actus reus and mensrea for the offence to be established. Malice aforethought is defined under Section 206 of the Penal Code. In Roba Galma Wano v Republic (2015) eKLR. The court held that“ For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant and that he had the required malice afore thought.” 26. In Nzuki v Republic 1993 KLR. The Court of Appeal defined malice aforethought and stated that before an act can be murder, it must be aimed at someone and in addition it must be an act committed with the following intentions, the test which is always subjective to the actual accused.Intention to cause deathIntention to cause grievous bodily harmWhere accused knows that there is a risk that death or grievous bodily harm would ensue from his acts and he commits them without tactful excuse.” See also Daniel Muthee v Republic, Court of Appeal Criminal Appeal No.218/2005 UR. 27. The court stated that the weapon used and the manner in which it was used, the accused must have known that the act would result in death or grievous harm to the deceased. 28. In this case the accused after quarrelling with the deceased left the scene only to return while armed with a knife. This demonstrates an intention to commit a felony. The accused entered the bar violently as described by PW1 and using the knife which he had concealed he stabbed the deceased on the chest. The injury was severe and fatal and shows that the accused used brutal force. The postmortem shows that the stab wound was on the right side of the chest extending from the right lung to the left side of the chest internally. The right lung had collapsed with a stab wound. As for the cardio vascular systems the right ventricle was pierced. The part of the body where the injuries were inflicted show that the accused had an intention to cause the death of the deceased. The cause of death was cardio pulmonary arrest due to severe blood loss from stab wound. This was a direct result of the injury inflicted on the deceased by the accused. The accused must have known that the stab wound on the chest with a sharp knife which is a delicate part of the body where the heart and other vital organs which support life are would lead to the death of the deceased. I find that malice aforethought was proved to the required standards. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/6583/eng@2024-04-05 6

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Defence: 29. The accused gave a defence of alibi. I find that the evidence of PW1 & PW7 dislodged this defence. He was a well known person to PW1 & PW2 who saw the accused in circumstances that favoured recognition. The investigating officer testified that after committing the offence the accused fled to Malindi in the Coast of Kenya from where he was arrested. The accused admitted that on the material day he was at Kathathani. The only reasonable conclusion then is that he left the area, that is Kathathani after committing the offence. In the circumstances I find that the defence is a make up story. I reject the defence and find that it is a sham. Conclusion: 30. For the reasons stated, I find that the prosecution proved the charge of murder against the accused beyond any reasonable doubts. I therefore find the accused person guilty and I convict the accused for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code under Section 322(2) of the Criminal Procedure Code (Cap 75 of the Laws of Kenya.) DATED, SIGNED AND DELIVERED AT CHUKA THIS 5TH DAY OF APRIL 2024. L.W. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/6583/eng@2024-04-05 7

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