Republic v Evans Kimathi Thiauru

4. That the accused person took them to the security office where he continued punishing them and was forcing them to squat. He stated that soon afterwards, the principal arrived and sent for them but they discovered that the deceased could not walk. That the Principal sent him and Chris Mukundi to go and bring the deceased and they noticed he was in bad shape so they carried him to the library. That the deceased was taken to the dispensary within the school using a motorcycle and he died the same day. He stated that it was the accused person who beat the 3 of them. On cross-examination, he stated that when they were taken to the security office, no one else was there. That the deceased could not walk from the security office to the administration block which was still locked and that is why they went to the library. 5. PW3 was Justus Onyango Otieno a teacher in the institution who stated that on the fateful day, he was asleep in his house when the matron, Rose Gitiri knocked on his bedroom window and told him that all was not well outside. That he dressed up and went to the dormitories in the company of the Matron and when they arrived, they found the accused and another guard beating the deceased and 2 other boys. That he saw white sticks and pipes on the ground, the same being in court and he identified them. That he told them to accompany him to the administration block but they found it locked and he told them to go to the security office at the gate where the accused was to hold the boys. That some of his colleagues had joined him at the gate and since time for assembly was nearing, he left his colleagues there and went to his house to change for official duty. 6. When he returned to the assembly which had begun, he saw the accused holding the deceased heading towards the office. He stated that the deputy principal gathered some teachers in the staffroom together with the 3 boys and they resolved to take them to hospital using the accused’s motor cycle. That later on, he saw a police vehicle entering the school compound and he was informed that the deceased had died. That the accused had told them that he was beating the boys because they had stolen school property and had sold them at Ishiara. That they stopped the accused from beating the boys. 7. On cross-examination, he stated that when the deceased was being taken to the office, the accused was holding him because he was too weak to walk by himself. That the deceased was taken to hospital before the others because he was is in a more critical condition compared to the others. That he (PW3) had been in the institution for 30 years and he had never witnessed such an incident. That at the security office, there were other people who had gathered. 8. Pw4 was Dolly Kanyiri, and administrator at Karurumo Vocational Training Center. She stated that she was standing outside the administration block when she saw the accused walking with 3 boys, one of whom was the deceased and who was being supported to walk and he had a red eye. That the accused person told her that the boys had stolen plumbing equipment belonging to the institution. That she asked one of the teachers, Dennis Murimi to take the deceased to hospital and he was accompanied by the accused. That she called the school captain who escorted her to report the incident at Karururmo Police Station and while there, they heard that the deceased had died. On cross-examination, she stated that the security company which seconded the accused was responsible for security at the institution. 9. PW5 was Dennis Murimi Mugambi who stated that he was a teacher at Karurumo Vocational Training Center. That on the day of the incident, he was cloaking into school at around 7:40AM when he notice the deceased and 2 other boys at the security office and upon inquiry, he was told that the 3 boys had stolen school plumbing equipment from the store. That he proceeded to assembly and later he was requested to go to the gate and escort the boys to the administration block. That he noticed that the deceased was weak and he was being supported by the accused. That they were taken to the computer lab and upon interrogation, the deceased admitted to having stolen some plumbing fittings with his 2 counterparts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10858/eng@2024-09-18 2

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10. He stated that while the teachers were gathered contemplating the next step, one of the boys told them that the deceased had collapsed and they rushed him to Karurumo Health Center on his motor cycle. That the deceased was pronounced dead on arrival. On cross-examination, he stated that it was about 5-10 minutes between when they left the boys in the computer room and when they were informed that the deceased had collapsed. That the accused had not been involved in an incident like that one before and that this time he took the law into his own hands. 11. PW6 was P.C. Robert Nyakenyanya of Karurumo Police station who stated that he visited Karurumo Vocational Training Center in the company of his colleague. They were informed that a security guard had assaulted a student who had been taken to Karurumo Health Center where he was pronounced dead on arrival. That they proceeded to the health center and they found the deceased with injuries on his eye and scars and bruises all over the body. That the body of the deceased was moved to Embu Level 5 Hospital mortuary and then they returned to the institution where they recovered some wooden sticks and plastic pipes from the guard room and he produced them as exhibits. That the accused was arrested and escorted for mental assessment where he was found fit to stand trial. He produced the mental assessment report as evidence. That a postmortem was conducted on the body of the deceased. 12. After the close of the prosecution’s case, the court found that the accused person had a case to answer and he was placed on his defense. 13. DW1, the accused person, stated that he worked at the institution and he was in charge of the school’s property. That at around 3PM, one student informed him that 3 students had stolen the institution’s PVC pipes and students’ personal items. That he verified the report from another student who also named the deceased and his 2 counterparts as the thieves. That the report was made to him on a Sunday and he relayed the same to the night duty guard but he did not name the suspects because he was new. That he handed over the shift to the night guard and went home until the following day when he returned to work at 6.00 a.m when they heard noises coming from the boys’ dormitory and when they went to check, they found the 3 boys in the middle and the other students were surrounding them asking them about their lost personal items. 14. That the boys had been beaten but not so seriously. That he stood in the middle of the crowd and while he was inquiring about the incident, Chris Mukundi attempted to escape and he chased after him as Evans Wawira took the baton from the other security guard and beat the deceased. That he tried to stop him but the students were cheering him on, as he beat the deceased. That one of the teachers arrived and told him to take the 3 boys to the administration block but since it was locked, they were taken to the guard’s office. That the school administrator advised that the boys be held at the security office until assembly was over and thereafter PW5 took the boys to the computer lab for interrogation. 15. That the deceased looked weak and he asked for some water and his eyes were swollen. That he returned to the gate and shortly afterwards, PW5 rushed and told him that the deceased was vomiting. That when he went, he found the deceased on the floor and there was a lot of water. That they took him to hospital on PW5’s motor cycle and he is the one who held him as he sat on the motor cycle. He stated that the deceased was pronounced dead on arrival and he recorded his statement with the police before he was arrested. That he did not have a baton that day but he had a green plastic pipe. He stated that the injuries on the deceased were inflicted by Evans Wawira. That there was another incident in the same institution when students beat up one of them who was accused of stealing and he managed to rescue him. 16. On cross-examination, he stated that it was Evans Wawira who identified the 3 boys as the ones who stole his mobile phone and personal items. That a student named Ken Loy saw the deceased carrying a bag which he gave to PW2. That he did not confirm whether the items in the bag had been stolen. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10858/eng@2024-09-18 3

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That he saw Evans Wawira beating the deceased and that he himself did not have authority to discipline students. He denied having used the green pipe to beat the deceased but that he managed to contain the chaos using the skills he was taught but he did not beat the students. He stated that he could not access the school occurrence book where he had recorded the incident when it was reported the day before the incident occurred. 17. After the close of the defense case, the accused opted not to file any written submissions but the prosecution filed theirs. 18. In its submissions, the prosecution relied on the case of Anthony Ndegwa Ngari v Republic [2014] eKLR and the provisions of section 203 of the Penal Code. It stated that the death of the deceased was proved through the postmortem report. That there was sufficient proof that the accused is the one who inflicted the fatal injuries upon the deceased. Reliance was placed on the case of Republic v Stephen Sila Wambua [2017] eKLR. It also argued that the accused had malice aforethought to kill the deceased. It relied on section 206 of the Penal Code and the case of Joseph Kimani Njau v Republic [2014] eKLR. 19. The issue for determination is whether or not the offence of murder has been proved beyond reasonable doubt. 20. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. The accused person herein faces the charge of murder under sections 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased. Section 203 of the Penal Code provides: “ 203. 21. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR, as follows: “ For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (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.” 22. The first element is death and cause of death. PW1 detailed the injuries sustained by the deceased and she formed the opinion that the cause of death was head injury due to blunt force trauma. 23. The second issue is to prove that the accused is responsible for inflicting the fatal injuries upon the deceased. PW2 stated that the accused removed him, the deceased and Chris Mukundi from the dormitory and made them to lie down. That he began to beat them with water pipes and wooden sticks. That the accused had entered the dormitory claiming that the 3 boys had stolen some school property. That they were rescued by PW3 who instructed that the accused escorts the boys to the administration block. PW3 stated that when the matron called him to the dormitory, he found the 3 boys kneeling outside the dormitory and the deceased was kneeling between PW1 and the other student. He stated that he found the accused beating the deceased and he instructed that they all go to the administration block. PW3 was a teacher at the institution and he had no reason to lie when he said that he found the accused beating the deceased and 2 other boys. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10858/eng@2024-09-18 4

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24. In rebuttal, the accused person testified that he went to the dormitory to break up a scuffle amongst the students. That he walked into the 3 boys having been accosted by the other students who alleged that they had stolen some personal items and a phone. That while he was still inquiring, one of the 3 boys attempted to run away and he followed him, just before one Evans Wawira took the other guard’s baton and began beating the deceased. He also said that some students had made reports to him about the 3 boys stealing their personal items and he noted the complaints in the school OB, which record he did not have. 25. From the evidence, the 2 prosecution witnesses placed the accused person outside the dormitory and both testified that they saw the accused beating the deceased. On the contrary, DW1 said that they were inside the dormitory, which evidence is hard to believe. In my view, there is overwhelming evidence that the accused indeed inflicted the fatal injuries on the deceased. 26. The prosecution also has to prove that the accused person bore malice aforethought or that he intended to murder the deceased. Malice aforethought is defined and well explained under section 206 of the Penal Code as follows: “ Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— 27. (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; (d) 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.” Further, the court in Republic v Njeru & 3 others (Criminal Case 2 of 2019) [2023] KEHC 19141 (KLR) stated as follows: “ The Court of Appeal in Bonaya Tutu Ipu & Another v Republic [2015] eKLR stated as follows on the prove of malice aforethought; -“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit v Uganda, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex v Tubere s/o Ochen [1945] 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue: It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick……” https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10858/eng@2024-09-18 5

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28. PW6 stated that he collected some wooden sticks and a plastic pipe from the scene and they were identified by several other prosecution witnesses as the ones used by the accused. The deceased sustained injuries on his head and according to PW1 and DW1, he was beaten on suspicion that he had stolen some items from the institution. DW1 also stated that his core business at his place of work was to take care of the institution’s property. That some students had told him that the deceased and his accomplices had stolen the items. All this points to the fact that the accused was determined to protect the school property, even if it meant taking the law into his own hands including inflicting injuries on the deceased. In my view, malice aforethought was proved. 29. In the end, having considered the evidence before the court and the relevant laws, it is my finding that the prosecution has proved the offence beyond reasonable doubt. 30. I therefore find the accused guilty of murder contrary to section 203 of the Penal Code and I hereby convict him accordingly. 31. It is so ordered. DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF SEPTEMBER, 2024. L. NJUGUNA JUDGE ..........................for the State .......................for the Accused person https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10858/eng@2024-09-18 6

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