Republic v Gituma & 2 others; PM (A Minor) (Subject) (Criminal Case E115 of 2020) [2024] KEMC 124 (KLR)

4. All the charges were denied and the defence admitted to bailbond and furnished with copies of the materials lined up for the DPP’S case. The prosecution’s case was conducted by Prosecution Counsel Kimathi Kibiti while Sharlton Wambua Advocate represented the defence. The DPPS’ Case 5. PW1 Grace Mwari told the court that on 28th October, 2020 at 230pm she was in her shamba L.R. Abothuguchi/Kariene/916 with Lucy Kiende and a bodaboda transporter Sanmuel who was to cut and carry for them the nappier grass. Just then the 3 accused persons, 4th Subject and another namely Dinah Kinya showed up. 6. The 1st accused person was carrying a panga and went over to the bodaboda man, had a brief conversation before turning his anger towards PW1. His 4 accomplices pinned down Lucy Kiende giving the 3rd Accused person a chance to infiict bite wounds on Lucy’s back while the 1st accused person cut her across the ear and face. The said 1st accused person then swung the panga at PW1 and cut her arm and all over her body till she fell down unconscious. 7. She regained consciousness 4 hours later and after being stabilized and discharged days later, she reported to the police and the suspects were arrested. 8. In cross-examination, the following came to light: 9. 1. 1The 1st accused person is the brother of PW1 while the 3rd accused person is the wife of 1st accused and the 4th Subject the son of 1st accused person. 2. He arm was completely cut ofi and dismembered. 3. It was true that PW1 and her sister had carried pangas to cut the nappier grass. 4. There was a third party in the company of PW1 and her sister when the accused persons showed up. 5. PW1 and the 1st accused persons were co-defendants in a High Court over the land the scene of the incident. 6. It was true that PW1 was not the one who had planted the nappier grass the subject of the alleged dispute between the parties. The same were beign taken care of by PW1’s mother. 7. PW1 had no proof of ownership of the land in question. 8. It was true that PW1 and Lucy Kiende were both armed with pangas when they went to the shamba while the 1st accused person showed up armed with a panga. 9. PW1 stated that they left the pangas by the river when they were taking the nappier grass to the bodaboda for transportation. 10. She denied that the Subject came to the rescue of 1st and 3rd accused persons while they were under attack by the 2 sisters who are now complainants. 11. She admitted that she lived in a rented house in Kithirune market but denied going there armed to attack her brother. In re-examination, the following was clarified: 1. The shamba where the incident took place had nappier grass planted by Pw1’s mother. https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/124/eng@2024-01-30 2

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2. The accused persons went over to where the 2 sisters were harvesting nappier grass and cut them up both. 10. PW2 Lucy Kiende sister to PW1 told the court that on 28th October, 2020 she accompanied PW1 from their usual place of residence and went to Kiria where their land was situated. She stated that the subject land was owned by their mother and the sisters. 11. On arrival, they called Samuel Kimathi to ferry the nappier grass from the shamba once they had stacked up the cut grass. While cutting the grass, they saw 5 person approach their position whereupon she recognized the 1st accused and 3rd accused persons. The 1st accused person had a panga as did Dina Kinya. Peter Munyi held the hands of PW2 giving 1st accused the space to cut her across the ear causing it to almost fall to the ground. Dinah sat on PW2 to immobilize PW2 while the 3rd accused person infiicted bite wounds on PW2. The 1st accused repeated a second cut completely dismembering the left ear. The assailants fied while young men assisted the injured sisters to hospital and the police were alerted. 12. In cross-examination, the following came to light: 1. The 2 sisters had only 1 panga to the nappier grass cutting mission. 2. PW2 was the one who had planted the grass and also attended to it. It was untrue for PW1 to say that the nappier grass had been planted by their mother. 3. The 1st accused person was living on that parcel of land after chasing and evicting their mother from the land. 4. Only the 1st accused cut the ears while his wife sat on and infiicted bite wounds on PW2 to immobilize PW2. 5. 4the subject cut PW2 on the head. 6. PW2 denied that together with PW1 she went there deliberately to create a disturbance alleging that the 1st accused person had chased out their mother from the land in question. 13. PW3 Samuel Kimathi told the court that he was hired to transport nappier grass by PW1 and PW2 on 28th October, 2020. When he got to the shamba, PW1 and PW2 cut the grass and gave him to transport but before he left the 1st accused person showed up while armed with a panga in the company of his wife, son and daughter and ordered PW3 to step away from the scene which he did. 14. Suddenly, Munyi held the hands of PW2 while Dinah held the legs of PW2 and pinned her to the ground before the 1st accused person cut her on the ear while the 3rd accused person infiicted bite wounds on the back. This made PW3 to run away screaming for help. He saw the 1st accused person fiee the scene with his panga. 15. In cross-examination, the following came to light: 16. 1. It was PW2 who had hired him to transport the nappier grass. 2. Only 1 panga was in the possession of PW1 and PW2 while all the accused persons had a panga each. 3. The attack took place at 2pm. PW4 Clinical Oficer Severina Kaimatheri produced the respective discharge summary notes and P3 Forms for PW1 and PW2 showing the following injuries: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/124/eng@2024-01-30 3

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a. For Grace Mwari: deep cut wound on lower teeth and jaw, 16 cm deep cut wound on the left temporal region of head. 2 cut wounds on the elft side of head. Deep cut wound on left occipital head. Deep cut wound invllvnjg bones on right hands. 8cm deep cut wound on left hand above elbow joint. 20cm deep cut wound above elbow joints over posterior side. A complete amputation of the right arm by a sharp object. Amounted to grivoud harm. b. For Lucy Kiende: deep cut wound on the left cheek up to ear. Deep cut wound from pinnae to the posterior side of the ear. Human bite wounds on the right shoulder lateral aspect. Amounted to grievous harm. 17. Her evidence was unshaken in cross-examination. 18. PW5 Medical Dr. Clinton Oduor The M.O.H of Consolata Mission Hospital produced the treatment notes for PW1 and PW2 showing injuries consistent with grievous harm. 19. PW6 S/no. 31177 PC Anthony Changwony of Kariene Police Station testified as the Investigating Oficer. He told the court that on 28th October, 2020 Lucy Kiende showed up at the police station with bleeding from the left ear side and filed the report that her sister had been injured at the village. He thus went to the scene and found Grace Mwari lying on the ground and made arrangements to have her taken to the hospital. He photographed the scene. Later PW6 collected the bloodied clothes of the victims and recorded the witnesses’ statements and issued the P3 Forms which were duly filled. PC Changwony had the suspects arrested after being named by the complainants. He investigated the land dispute and obtained land documents. 20. At the time of arrest, the accused was armed with a panga which he disarmed him of and forwarded it to the government chemist under an exhibit memo form for analysis. 21. In support of the case, he produced the following as exhibits: 1. Exhibit memo dated 19th January, 2021. 2. Photographs of the scene and 2 victims while admitted in hospital. 3. Lucy Kiende’s red dress. 4. Lucy’s blood stained green cloth. 5. Lucy’s whie blouse stained in blood. 6. PW1’s fiowery bag 7. PW1’s bloodied blouse, sweater. 8. PW1’s torn black dress. 9. Panga recovered from 1st accused person. 10. Land documents:High Court Meru Succession Cause 255 of 2010 where the 1st accused person was a protestor against Beatrice Nkatha M’Impwii over the ownership of Abothuguchi/Kariene/916Abothuguchi/Kariene/916 land transfer documents Kirimi Nkumbu Advocates to Beatrice Nkatha.PIN Certificate Beatrice Nkatha.ID Card copy Beatrice Nkatha.Amended certificate of Grant issued on 22nd September, 2020 in Meru High Court Succession Cause 255/2010 showing the heirs and heiresses of Abothuguchi/ Kariene/916 and Abothuguchi/Kariene/2490 to be Beatrice Nkatha, Lucy Kiende, Grace https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/124/eng@2024-01-30 4

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Mwari, Catherine Mukiri and Moses Gituma.Decree in succession 255/2010 dated 9th September, 2019. 22. In his investigations, PC Changwony found that the parties were still tussling over the land ownership. 23. In cross-examination, the following came to light 1. PW2 showed up at the station bleeding from her ear which had been completely dismembered. She had a number of other injuries. 2. The 1st accused person was living on Abothuguchi/Kariene/916 where the nappier grass was planted on. 3. PW1 and PW2 went to cut the nappier grass using a panga. 4. The land ownership documents were in PW1’s bag at the time of the attack and PC Changwony recovered them from the bag. 5. There was no eviction order against the 1st accused person although PW1 and PW2 claimed that the 1st accused person was supposed to move out of the land. 6. The 4th subject cut PW1 on the mouth. 7. Peter Munyi who was still at large held down the victims before the 1st accused cut them up. 8. The complainants and 1st accused are siblings. 24. In re-examination, PC Changwony confirmed that the High Court had resolved the ownership question through the succession cause. 25. At the end of the testimony of PW6, the DPP closed their case. The then trial magistrate ruled that the DPP had established prima facie case against the defence on all the counts. When put to their defences, the accused persons and the subjected opted for sworn defences. The Defence Case A. DW1 Moses Gituma 26. He denied the charges vide sworn defence. He told the court that when he found the 2 sisters cutting the nappier grass, he asked them why they were doing so whereupon they set upon him with their pangas. He said that Lucy cut him across the forehead in the first swing and when she made a second swing he dodged and disarmed her then used it to defend himself before he ran away. 27. The 1st accused defended the 3rd accused person saying that at the time of the attack she was away in Kaongo market. He added that the 4th subject was also away at his grandparents’ home where he had bene for about a week preceding the incident. He added that the 2nd accused person who is his brotherin-law was away at his home in Kirinyaga. In support of his defence, he produced the following: 28. 1. Decree dated 9th September, 2019 2. Green card Abothuguchi/Kariene/916. 3. Certificate of oficial search fro Abothuguchi/Kariene/916. In cross-examination, the following came to light: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/124/eng@2024-01-30 5

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29. 1. He admitted that he was aware of the High Court decree in Succession Cause 255 0f 2010 where the land Abothuguchi/Kariene/916 was to be shared amongst all the sisters and himself. 2. He further admitted that he was aware of the High Court decree in Succession Cause 255 0f 2010 where the land Abothuguchi/Kariene/2490 was to be shared amongst all the sisters and himself. 3. He also admitted that he was aware of the High Court decree in Succession Cause 255 0f 2010 where the land Abothuguchi/Kariene/2491 was to be shared amongst all the sisters and himself. 4. He admitted that the Green card that he had produced confirmed that the sisters were entitled to inherit an equal share of the 3 parcels of land as ordered by the Judge. 5. He had no evidence to show that the sisters sold their shares to a third party. 6. He admitted that his arrival at the nappier grass cutting scene led to an altercation which escalated into the present case. 7. He admitted that he had no P3 Form or medical evidence to show that he was assaulted in any way by his sisters. 8. He admitted that the arm of his sister Grace (PW1) was completely amputated by the cut. In Re-examination he told the court that he had filed Nyeri Appeal No. 262 of 2019 against the High Court decision in the succession cause. He insisted that he injured them after they injured him. B. DW2 Jephtah Mwinyi Njeru 30. In his sworn defence, he raised an alibi stating that he was away in Kirinyaga at the time of the alleged attack and did not witness anything. He added that he was arrested at the home of the 1st accused person when he had gone to visit after learning of the attack. He denied any participation or role in the crime. In cross-examination, he admitted that he had raised the alibi at the stage of his defence and not earlier. C. DW3 Joyce Igoki 31. She similarly gave sworn defence denying the charges. She raised a defence of alibi saying that she was at Kaongo Market at the time of the alleged attack on 278th October, 2020 and did not witness it at all. She added that when she returned home in the evening she found the 1st accused in the home but he did not tell her anything about the earlier incident of 28th October, 2020. At that time, the 2nd accused was away in Kirinyaga but later visited the home after learning of the attack since he was their relative. She added that the 4th subject was away at his grandparents’ home and did not take part in the attack. 32. In cross-examination, she admitted that the 2 complainants had no prior grudges against her to cause them the name her as a culprit in the attack. She also admitted that she had raised her alibi at a late stage of the case – defence stage. D. DW4 P.M. (Initials – A Minor) 33. He gave an unsworn statement raising an alibi. He stated that on 28th October, 2020 he was at his grandparents’ home and did not take part in the incident as alleged by the prosecution. At the end of their defences, the Defence lodged written submissions dated 2nd November, 2023 urging the court to dismiss the entire case based on the following authorities: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/124/eng@2024-01-30 6

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1. Stephen Mungai Maina –v- Republic (2020)eKLR (Odunga J.) – where the ingredients of the charge of attempted murder were extensively enunciated by the Judge. The defence submitted that the DPP in the present case had not satisfied the ingredient of common intention to unawlfully cause the death of the complainant herein. 2. Pius Mutua Mbuvi –v- Republic (2021)eKLR (D.K. Kemei J.) – where the Judge found that self defence was a complete defence. The defence herein submitted that some of the accused persons were nowhere near the locus in quo at the time of the alleged ofience and others acted in self defence after disarming the complainants. Issue for Determination 34. The duty of this Honourable Court is to determine whether or not the DPP proved their charges beyond any reasonable doubt against each and every accused person and the Subject herein. Count I: Attempted Murder 35. The Court found guidance on the ingredients of the ofience from the authority of Abdi Ali Barre – v- Republic (2015)eKLR (Githinji JA, Mwilu JA (as she then was, M’Inoti JA) made an exposition of the ingredients of attempted murder as follows: Like in virtually all other ofiences, the prosecution, in a charge of attempted murder, must prove both the mens rea and the actus reus of the ofience. In R V.Whybrow [1951] 35 CR APP REP, 141, Lord Goddard CJ, stated that: But if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime.” 36. And while discussing the mens rea of the ofience of attempted murder, J. C. Smith and Brain Hogan, the learned authors of the preeminent text, Criminal Law, Butterworths, 1988 (6th Ed), at page 288 state that in a charge of attempted murder: Nothing less than an intention to kill will do.” 37. The learned Judges went on to hold thus: In Cheruiyot v. Republic (1976-1985) EA 47, Madan, JA, as he then was, quoting with approval R. v. Gwempazi S/O Mukhonzo (1943) 10 EACA 101, R. v. Luseru Wandera (1948) 15 EACA 105 and Mustafa Daga S/O Andu v. R. (1950) EACA 140, stated as follows on the mens rea of attempted murder: In order to constitute an ofience contrary to section 220, it must be shown that the accused had a positive intention unlawfully to cause death…The essence of the ofience is the intention to murder as it is presented by the prosecution.” 38. Section 388 of the Penal Code defines “attempt” as follows: 388. (1) When a person, intending to commit an ofience, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the ofience, he is deemed to attempt to commit the ofience. https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/124/eng@2024-01-30 7

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39. (2) It is immaterial, except so far as regards punishment, whether the ofiender does all that is necessary on his part for completing the commission of the ofience, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. (3) It is immaterial that by reason of circumstances not known to the ofiender it is impossible in fact to commit the ofience. The more challenging question in a charge of attempted murder is the actus reus of the ofience. Although a casual reading of section 388 of the Penal Code may suggest that an attempt is committed immediately the accused person commits an overt act towards the execution of his intention, it has long been accepted that in a charge of attempting to commit an ofience, a distinction must be drawn between mere preparation to commit the ofience and attempting to commit the ofience. In the work quoted above by Smith & Hogan, the authors give the following scenario at page 291 to illustrate the distinction: D, intending to commit murder buys a gun and ammunition, does target practice, studies the habits of his intended victim, reconnoiters a suitable place to lie in ambush, puts on a disguise and sets out to take up his position. These are all acts of preparation but could scarcely be described as attempted murder. D takes up his position, loads the gun, sees his victim approaching, raises the gun, takes aim, puts his finger on the trigger and squeezes it. He has now certainly committed attempted murder…” 40. Applying the foregoing principles to the case before the Learned Judge, the same bench held further: In the present appeal, to prove attempted murder on the part of the appellant, he must be proved to have taken a step towards the commission of murder, which step is immediately and not remotely connected with commission of the murder. Whether there has been an attempt to commit an ofience is a question of fact. The act alleged to constitute attempted murder, for example, must be suficiently proximate to murder to be properly described as attempt to commit murder. In Cross & Jones’ Introduuction to Criminal Law, Butterworths, 8th Edition, (1976), P. Asterley Jones and R. I. E. Card state as follows at page 354: …[A]n act is suficiently proximate when the accused has done the last act which it is necessary for him to do in order to commit the specific ofience attempted…”” 41. From the material placed before the Court, the court agrees that the evidence does not prove this ofience because there was no positive intention to kill as held in the foregoing authority of Ali Abdi Barre (Supra). At no point during the assault did the ofiender express a positive intention and take the last act necessary to efiect the death of the complainant. The defence’s cited authority of Stephen Mungai Maina –v- Republic (2020)eKLR (Odunga J.) was helpful in this regard showing that there was no evidence to support all the ingredients of attempted murder. This left the altertnative count of doing grevoud harm for consideration. https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/124/eng@2024-01-30 8

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Counts 2 and 3: Doing Grievous Harm 1st Accused Moses Gituma 42. The DPP has overwhelmingly proved the alternative counts of grievous harm as against the 1st accused person Moses Gituma. From the crystallized evidence, the attack took place in broad daylight at 2pm when visibility and recognition were not hindered or impeded in any way. The 2 complainants positively recognized their brother Moses Gituma as the lead attacker. He used a panga to infiict repeated deep cut wounds on his 2 sisters resulting in the complete amputation of the arm of Grace and the complete dismemberment of Lucy. The medical evidence proves that the injuries were life threatening and permanent in a major way. 43. His defence that he was first cut by the 2 sisters before he responded in kind was a made up defence as he had no single injury to prove his defence. He was acting to prevent his sisters from benefitting from the land which they were entitled to an equal share following the Judge’s decision in Meru High Court Succession Cause No. 255 of 2019. In the result, the 1st accused person is guilty of doing grievous harm to Grace Mwari and to Lucy Kiende. He is convicted on counts 2 and 3 under section 215 of the Criminal Procedure Code. Right of appeal is 14 days. 2nd Accused Jephthah Njeru 44. From the totality of the evidence, there is nothing to show that either before or after the attack by the 1st accused person, Njeru committed any acts or omitted to take any steps that perpetuated the crimes. the court acquits him of all the charges although he raised the alibi at the late stage of the case. None of the witnesses linked him to the crimes. he is set at liberty unless otherwise lawfully held. 3rd Accused Joyce Igoki 45. From the material placed before the Court, she immobilized Lucy Kiende assisted by Munyi when she jumped on PW2 while Dinah reinforced this by sitting on PW2. Accused Nop. 3 then infiicted bite wounds on the immobilized Lucy Kiende. Her pinning down of Lucy Kiende assited by Munyi and Dinah who are both still at large was to facilitate and aid her husband to have unlimited space to attack and injure Kiende and this happened because Kiende’s ear was cut ofi completely while the 3rd Accused was sitting on the said Kiende on the ground thus immobilizing her. She is thus a principal ofiender under section 20 as read with section 21 of the Penal Code as an aider of the 1st accused person and is convicted of Count 3 only. The said sections 20 and 21 provide: 20. Principal ofienders When an ofience is committed, each of the following persons is deemed to have taken part in committing the ofience and to be guilty of the ofience , and may be charged with actually committing it, that is to say(a) every person who actually does the act or makes the omission which constitutes the ofience; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the ofience; (c) every person who aids or abets another person in committing the ofience; https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/124/eng@2024-01-30 9

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21. (d) any person who counsels or procures any other person to commit the ofience; and in the last-mentioned case he may be charged either with committing the ofience or with counselling or procuring its commission. (2) A conviction of counselling or procuring the commission of an ofience entails the same consequences in all respects as a conviction of committing the ofience. (3) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an ofience on his part is guilty of an ofience of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission. Joint ofienders in prosecution of common purpose When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an ofience is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the ofience. 46. Her actions greatly facilitated her husband’s attack. She did not harm Grace Mwari and so she is acquitted of the main charge of attempted murder as well as the charge of doing grievous harm to Grace Mwari but is convicted on Count 2 only for doing grievous harm to Lucy Kiende. Right of appeal is 14 days. 4th Subject P.M.( Initials – A Minor) 47. From the tested evidence, he was the one who infiicted a deep cut wound on the mouth of Grace Mwari using a panga and this resulted in the dislodgement of teeth on the lower jaw. The court rejects the alibi defence as an afterthought – see the Court of Appeal authority of Victor Mwendwa Mulinge –vRepublic (2014)eKLR. He was positively recognized by the 2 complainants as well as Samuel Kimathi in the daytime attack. The alibi was clearly an afterthought and is dismissed as such. He is found liable as a joint principal ofiender with the 1st accused person on Count 2 for doing grievous harm to Grace Mwari under section 215 of the Criminal Procedure Code but is acquitted of counts 1 (attempted murder) and 3 (doing grievous harm to Lucy Kiende) for lack of evidence showing that he was culpable on counts 1 and 3. . Right of appeal is 14 days. DATED, READ AND SIGNED AT GITHONGO THIS 30TH DAY OF JANAURY, 2024 HON. T. A. SITATI SENIOR PRINCIPAL MAGISTRATE GITHONGO LAW COURTS https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/124/eng@2024-01-30 10

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