Republic v Dennis Muriungi Kinyua

On arrival at Ng’onyi Market I saw from far a police vehicle turning at the stage. At this time I saw that the police came at me and arrested Muriungi who had suddenly joined me. Muriungi used to live at my home. The police then asked for blanket to carry the body. I had seen the burnt body. I went for blanket from home when I got to the hospital; I got to know it was Purity Kanana who had been burnt. It was at Meru General Hospital. She had been burnt very badly. There was some clothing she had tried to remove and it had got stuck at the head. The doctors recommended that she be taken to Kenyatta National Hospital. I said I got to change. I was not able to get back to the hospital the doctor went with the burnt girl and I was not able to get back. I later came to Meru General Hospital to find out how the girl was doing after referred to Kenyatta Hospital. They did not tell me and they asked for a close relative of the girl. I therefore, went to the station to find out. When I went to the police station that is Meru Police Station. I went with the police to the Meru hospital and he was able to record my statement. He asked me to get my wife and he told us that she had died. The girl was the accused’s wife. As husband and wife they were living in my home but before the incident they has separated of about 4 months and their child had been left with me. I had not seen her for the 3-4 months when they had separated with my son. The accused was arrested while behind us with my neighbor at Ng’onyi Market. I do not know how he had come with us. I do not know who the youth who came to report the incident to me were and it was at night. Between my house and my son’s house is about 50-70 meters. On 26th February, 2016 I did not recall whether I had seen the accused day before the incident. He was a conductor and he used to go to Nairobi and sleep at my home. I did not seen him on 26th February, 2016 I saw him when he was being arrested on 27th February, 2016. I do not know when they separated but the case between him had reached a stage where I had called the parents of the girl as they were drinking beer excessively. I can’t tell who burnt the girl as I was not there. Cross–examination by Ms. Thuo The accused had bad relationship with the deceased as I had even called the girl’s parents they were living together in their own house at my home. About 3 months – 4 months they had separated. The accused was living at my home. The girl was living within the neighborhood at a place called Mitigu. She was living with another young man a relative of hers. On 26th February, 2016 the youth who came to wake up me did not say what time the burning had occurred. I told them to report at the police. I followed them after getting a neighbor. I later gave to police a blanket to carry the body. I could not tell the person who had been burnt. I had been told that it was my son’s wife. I got to see her body at the hospital. I had not got close to the body when we were trying to help her at the scene. I made my report on the same day 27th February, 2016. Re – Examination – Nil https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16099/eng@2024-12-19 2

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PW2 No. 28189 PC Waman Evalyne Kendi Marete from Ng’onyi Police Post: On 27th February, 2016 at 2.00a.m. We were at the police post. Villagers from Ng’onyi village came and found us with PC Nool Kipkore Kemboi at the station. They informed us that there was a youth named Denis Muriungi and his wife Kanana who had come while both drunk and at Ng’onyi Market they started quarrelling and Dennis was carrying paraffin and he threw it on the girl and burnt her. When we got the information we went to the scene at Ng’onyi Market. We found the girl lying and she had been burnt. We called the OCS Meru Police Station and he responded and sent police officers from Meru Police Station. Members of the public who heard of the incident came. Denis Muriungi the accused (pointing) also came. I knew him before the incident very well. I had known him from 2014. They are immediate neighbours to the Police Post Camp. The accused came and we were with the other police officers, we arrested him. He was taken to Meru Police Station. The body was taken to Meru hospital. She had been burnt all over the bod but she could make noises. I did not get paraffin at the scene but I could smell paraffin at the scene. it is the Meru Police station who did investigations. I knew the accused but I had not met his wife. I had not received any report of complaint against the accused on the complaint at the police post. I later heard that the girl had died. Cross – examination by Ms. Thuo – No questions PW3 Noah Kipkore Kemboi 2011/320586. I am APC I work at Ng’onyi Police Post. On 27th February, 2016 at 2.00a.m I was at work with my colleague Evelyne Marete. At this time villagers came screaming and informed us that there was an incident Ng’onyi Market whereby a person had burnt his wife. We went to the scene. The villagers knew the person by name. He is Denis Muriungi. We went to the scene, I saw a person lying on the ground with burns. We did not identify her but when people came they said it was a man and his wife. We called police station Meru to come and help find out the attacker and help the person who had been burnt. Meru Police Officers came and we assisted each other in getting to arrest the accused (pointing). He was identified by the villagers saying he was the one who had burnt his wife. Upon arrest he was taken to Meru Police Station and the wife to Meru General Hospital I later recorded my statement. The matter was investigated b Meru Police Station. Cross–examination by Ms. Thuo Nobody recorded a statement only the reporters because he has also recorded statements. Re – examination The reporters did not come to the station after the arrest. It is only the one who made the report the previous evening. I do not know whether the reporters made any report at Meru Police Station. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16099/eng@2024-12-19 3

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PW4 Doctor Mariam Kithinji: I work at Meru Level 5 Hospital as director. I have MCHB 2012 from University of Nairobi. I have been working at Meru Level 5 Hospital. I have a Post Mortem dated 7th March, 2016 belonging to Purity Kanana. It was conducted by colleague Doctor Paul Wambugu. I know Dr. Paul we work together at Meru Level 5 Hospital. I confirm that this is his handwriting and signature. Dr. Paul is unwell and he is admitted. [Ms. Thuo – No objection Court: Dr. Kithinji to produce report post mortem on 7th March, 2016] Body of an age 27 years African Woman of 178 CM. Post Mortem charges – Body was preserved. On the external, there were burn injuries on the face, head, chest and stomach. Upon dissection, the respiratory system had burnt wounds on trachea and bronchus that take air to the lungs. On the head, there were burns on the face and head. Cause of death – Multiple organ failure secondary degree burns. Death certificate 0140282 by Dr. Wambugu and signed. Court: Post mortem dated 7th March, 2016 is marked P. Exhibit no. 1. PW5 No. 236307 Inspector Naomi Maruka: I was the investigating officer. I am the Deputy OCS Keroka Police Station. I was previously at Meru Police Station On 27th February, 2016 at 3.00a.m. in the morning I received a call from my OCS Chief Inspector Kyalo. He told me that there was someone who needed help at Ng’onyi Market. I was the duty officer. He told me he had been called by Godwin Murithi telling him that there was someone who was burning at Ng’onyi and needed help. I went with Police Driver and went to the scene immediately. I found a lady Purity Kanana having already been burnt but the fire had been put off by members of the police. We found the body at a stage off the road at Ng’onyi. She had extensive burns on the face, stomach, she could not speak but we found the reportee Godwin Murithi who had a kiosk nearby. He said he had noises purporting to go out and found a fire and found out it was 2 people Purity Kanana and Denis Muriungi. I met Godwin Muriithi who has a barber shop we came back with Godwin to Meru Police Station. I saw Purity’s husband who was drunk. It was the members of the public who said he was the husband of the lady. The husband had no injuries on the body. We went with Godwin, Purity, Denis to Meru taking Purity to hospital. Denis, the person we went with to Police Station we took Purity to Meru Level 5 Hospital. The husband was detained at Police Station at Meru as the suspect and we could not let members of the public to launch him. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16099/eng@2024-12-19 4

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28th February, 2016 at 2.00p.m. I had gone to see the patient at Meru Level 5 and I was told her state had worsened and they were preparing to take her to Nairobi but yesterday she succumbed to her injury. We had sent a signal for serious assault and later went for murder when she died. Postmortem done. Denis was charged and remanded. On my investigations I established that Denis had burnt Purity as there was a bottle of Dasani water –bottle with paraffin and we took it as exhibit. We established that it was a domestic quarrel we could not tell the reason for the quarrel. They were both drunk. The burning happened at Ng’onyi Market on road side at a bus stage. I recorded statements from witnesses 3, 4 witnesses. The public were angry and they would have beaten Denis up. They were bitter. The paraffin bottle I handed it to …. Officer PC Muriithi when I was transferred to Siaya. Cross – examination by Ms. Gachohi for accused: I arrived at the scene at 0310a.m. in the morning. There were members of the public. They were around 10. They were not many people as it was at night. Purity had burns on the face, stomach, legs. She had severe burns. We all went to Police Station Meru. I was with Denis, Godwin who reported and we took Purity to Hospital. We put the suspect first at the station and immediately took Purity to hospital. Purity talked slightly and when asked who asked who had burnt she said “Denis” when he got there, she could speak slightly. Denis confirmed that Purity was his wife. Did you find how the accused burnt the deceased? It was Godwin who reported the incident. How did he burn her? He poured paraffin on her and set her alight after the quarrel. I did not get an eye witness. It was at night. Did you take pictures of scene? Yes, pictures were taken the following day. Did you know the accused or deceased? I did not know either of them I arrested the accused the same day at 3.00a.m. when he got there. We went with them to the Police Station. Members of the public threw sand through to put off the fire to save the life of the lady. I do not know whether the paraffin bottle was produced as exhibit. Godwin Muriithi had a barbershop near the place of incident. He had heard 2 people crying outside his shop. They were crying at around 2.00a.m. in the morning. Did you go to Godwin’s barber shop? Yes, it is first next he had not closed his shop. It was open. It was about 50 meters from the scene. It was not far off. Why did you charge Denis? https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16099/eng@2024-12-19 5

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From my investigations they were 2 who started quarrelling and all of sudden there was no other person and there was fire. Purity was burning. It was then Godwin who called OCS to say that someone was burning. We found a Dasani smelling of paraffin. Godwin saw the two quarrelling. There was no witness that Denis poured paraffin and set Purity a light. Purity was saying “Dennis” Denis was first suspect. Purity said it was “Denis”. Purity said “Denis” was her husband. It was also supported by members of the public that Denis and Purity were husband and wife. When we arrived, Purity was talking slightly. Purity said it was Denis who set her alight. It was members of the public who said that Denis and Purity were husband and wife. Denis was the one who was being mentioned by members of the public. It is not hearsay. Was the accused injured by members of public? No, he was not injured. Re – examination by Mr. Masila Nil.” 3. At this stage of ruling on case to answer, in proceedings before the High Court, as required under section 306 of the Criminal Procedure Code, the Court considers whether there is the evidence that the accused persons (or any of the accused persons) committed the offence. In other words, the court considers the prosecution evidence to establish whether a prima facie case exists, which as held in Ramanlal T. Bhatt v. R (1957) EA 332, 335 is “one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” 4. If the Court has considered that there is not established a prima facie case, the accused is entitled to an acquittal, see Murimi v. R (1967) EA 542 and Wachira v. R (1975) EA 262, and the Court is required to give full reasons for the decision. If the Court finds that a prima facie case has been established, as held in Kibera Karimi v. R (1979) KLR 36 (Trevelyan & Todd JJ), the Court does not give detailed reasons for the decision, so as not to prejudice the fair trial of the case by giving the impression that the court has already made up its mind without hearing the defence. See also Festo Wandera Mukando v. R (1976 – 80) KLR 1626 and Antony Njue Njeru v. R, Nairobi C.A. Cr. Appeal No. 77 of 2006, [2006] eKLR. 5. In considering whether the facts of the case, as presented by the Prosecution disclose a case to warrant the Court to place the accused on his defence, the court considers the existence or otherwise of a prima facie case, having regard to the ingredients of the offence. The ingredients offence of murder, as observed by the Court of Appeal in Mwangi v Republic (Criminal Appeal 13 of 2012) [2021] KECA 149 (KLR) (19 November 2021) (Judgment) citing Republic vs. Nyambura & 4 Others [2001] KLR 355, are three key elements for proof, namely: “ i. Death of the deceased occurred; ii. That the death of the deceased was caused by an unlawful act or omission by the accused person. iii. The accused in committing the unlawful act or omission possessed malice aforethought.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16099/eng@2024-12-19 6

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6. On the evidence before the court, death of the deceased is proved as shown in the medical testimony of the Doctor PW4, and the cause of death established in the postmortem report of Dr. Paul Wambugu as “multiple organ failure secondary second degree burns” on the face, skull, torso and trunk. 7. It is the second element of proof which is problematic in this case. 8. The report made at the police station by the members of the public was that they had witnessed the accused douse his wife, the deceased herein, in fiames. Those were the very people who had gone to PW1’s home to inform him of the incident, but understandably, he was unable to identify any of them, because it was at the wee hours of the night. Shockingly, the bottle of Dasani water, allegedly containing paraffin was not produced as an exhibit. 9. Significantly, none of the members of the public, the purported eye witnesses, who had reported the incident to the police was called to testify. The first responder to the scene is said to be Godwin Murithi, who subsequently notified the OCS and PW5 was sent to the scene. Godwin’s account of the events of the fateful night that he had seen the deceased and the accused quarrelling, is the closest account of an eye witness, save for the fact that the said Godwin was not called to testify. PW5’s evidence is at best hearsay, which has no probative value. The entire prosecution’s case was fundamentally hinged on hearsay evidence and a dying declaration allegedly made by the deceased to PW5 and members of the public, who never testified. The Court must exercise caution and seek corroboration, and in its absence as here, it would unsafe to convict on such unreliable dying declaration. See this court’s decision in MERU HCCRC NO. 60 OF 2015, R v. Stanley Mugambi Nkunja, Joseph Kimathi Kamuru & Ezekiel Ntongai Rwata of 8th July 2024. 10. The evidence on record, taken cumulatively, leads to the inescapable conclusion that the accused was not the person who caused the unlawful death of the deceased. This court does not therefore, on the evidence on record, find it safe to convict the accused. 11. The finding of the Court is inescapable, that the Prosecution has not established a prima facie case to warrant putting the accused on his defence or in the terms of the section 306 (2) the calling on the accused to give evidence in his defence. ORDERS 12. Accordingly, for the reasons set out above, the Court finds that the Prosecution has not established by the evidence presented before the court a prima facie to warrant the calling upon the accused to make his defence. 13. The accused is for that reason entitled to an acquittal for the offence of murder contrary to section 203 as read with 204 of the Penal Code, and the Court shall, therefore, enter in terms of section 306 (1) of the Criminal Procedure Code, a finding of not guilty is entered. 14. The Court, consequently, orders that the accused be released from custody forthwith unless he is otherwise lawfully held. Order accordingly. DATED AND DELIVERED ON THIS 19TH DAY OF DECEMBER 2024. EDWARD M. MURIITHI JUDGE Appearances https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16099/eng@2024-12-19 7

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Mr. Masila, Principal Prosecution Counsel. Ms. Thuo, Ms. Ndegwa and Ms. Gachohi for the Accused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16099/eng@2024-12-19 8

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