REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU

CRIMINAL CASE NO. 101 OF 2003

JOHN MACHARIA GACHANJA………...………………………………ACCUSED
VERSUS
REPUBLIC……………………………………………….…………..PROSECUTOR
JUDGMENT

The Accused, John Macharia Gachanja was charged with the offence of murder
contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of
the offence as stated in the information were that on the 13th of July 2003  Olkalou, Nyandarua District the accused unlawfully murdered E W
W. The prosecution called eleven witnesses in total. At the close of the
prosecution’s case, the accused was put on his defence. He gave an unsworn testimony.
Other than himself, he did not call any witness to testify on his behalf. After the close
of the Defence case, the counsel for the accused made submissions urging this Court to
find that the prosecution had not established its case against the Accused to the required
legal standard of proof beyond any reasonable doubt. Mr Koech, the Learned State
Counsel made a reply to the said submissions made.
 
The summary of the evidence adduced by the prosecution is that on 13th of July
2003, PW 1 J K, a minor aged nine years and who is a standard three pupil
was playing outside his home  Nyandarua District. PW 1 was playing
with other children who included the deceased, E W. The deceased was a
child of about two years old. PW 1 testified that the accused came to where they were
playing and took the deceased away. When PW 1 followed him, the accused chased
him away. PW 1 went back home and informed his mother PW 2 E N M
what the accused had done. PW 1 testified that the accused did not beat up the child but
was annoyed that PW 1 had decided to follow him when he took the child.
 
PW 2 E N M testified that the mother of the deceased left the
deceased with her when she went to a market called Kapten. She testified she fed the
deceased and then left her to play with her other children outside the house. She
testified that the accused went to her house on the material day at about 4.00 p.m. and
inquired of the whereabouts of the mother of the deceased. When he was told that the
mother of the deceased was away the accused went outside the house and picked the
deceased and said that he was taking her to the kiosk to buy sweets for her. Later PW 1
informed PW 2 that the accused had taken away the deceased. PW 2 became concerned
and went and informed both the village elder and the father of the mother of the
deceased. PW 2 later learned that the deceased had been taken to hospital and had
died. PW 2 confirmed that the accused appeared calm and collected when he took the
child away.
 
PW 3 PW K the mother of the deceased testified that on the
material day she had left the deceased in the custody of PW 2 who is her aunt. She
testified that the accused was her husband. It was her testimony that she had lived with
her husband, the accused for about nine months. She testified that the deceased,
E W had not been sired by the accused although the accused had accepted
her as her child when he married her. She stated that her marriage to the accused was
not a happy one due to the fact that the accused hated the deceased. It was her
testimony that the accused used to molest and beat up the deceased even though the
deceased was a child of less than two years old. PW 3 was not happy that her child was
being beaten. She decided to leave her matrimonial home, when the accused had
threatened to kill the child. All the efforts by the accused to be reconciled with PW 3
were in vain as PW 3 did not want her child to be subjected to further beatings by the
accused. PW 3 stated that when she came back from where she had gone, she was
informed that her child had been taken by the accused, seriously injured and later had
died in hospital. PW 3 testified that the accused initially, when they started living
together as husband and wife, loved the child but about three months later, he started
abusing and beating up the child. The parents of the accused warned him, in vain, not
to beat up the child. When PW 3 intervened when the child was being beaten up,
the accused assaulted her too.
 
PW 4 J N W testified that on the material day at about 5.30
p.m. as he was walking on the road from Ndemi Shopping Centre towards his home at
the Village, he saw a child, a girl, lying on the grass. Her clothes were bloody. PW 4
went to the owner of the farm and inquired if the owner knew the child. The owner of
the farm where the child was found is called Mama Kabia. Mama Kabia did not know
the child. PW 4 testified that the child appeared to be alive though it was unconscious.
PW 4 testified that many people came to the scene including a girl called Zipporah (PW
5) who was able to identify the child. PW 4 testified that PW 5 had told them that she
had seen the child together with her father, the accused. PW 5 assisted in taking the
child to Ol Kalou District Hospital. Later he learnt that the child had died.
 
PW 5 Z G testified that she was aged seventeen years. She
remembered on the material day at about 4.00 p.m. as she was going to visit her
grandmother she met with the accused with the deceased. The accused was carrying the
deceased. PW 5 knew the accused and also knew that the accused had married PW
3. PW 5 was not surprised that PW 5 was carrying the child as she knew the accused as
the father of the child. When she came back from her grandmother’s PW 5 saw many
people having congregated near the road. She went to investigate. She saw the
deceased lying on the ground with bloody clothes. She saw that the child had been
seriously injured as she was bleeding from her chest and stomach area. PW 5 testified
that when she had earlier in the day seen the child with the accused, the child was okay
health wise. PW 5 testified that she saw PW 4 at the scene where the child was lying on
the ground. PW 5 later learned that the child had been taken to hospital. PW 5 testified
that when she saw the accused with the deceased, the deceased child was laughing with
the accused. The deceased was happy. Two hours later, she saw the child abandoned in
a farm seriously injured.
 
PW 6 D K the father PW 3 and the grandfather of the deceased testified
that on the material day he was informed that his granddaughter who had been left in
the house of PW 2 had been taken away by the accused. PW 6 sought help from a
neighbour and they started looking for the child in the village. PW 6 started walking
towards the direction of the home of the accused. After walking for about two
kilometres they saw many people who were standing by the roadside. PW 6 went to the
place the people were congregating. He saw a child lying on the ground. The child had
bee put on a gunny bag. PW 6 identified the child as his granddaughter. PW 6 testified
that the child had been stabbed and her intestines were hanging outside her body. The
child was unconscious. PW 6 sought assistance and took the child to Ol Kalou District
hospital. Later the child was taken to the Nakuru Provincial General Hospital where the
child died. PW 6 confirmed that the accused and PW 3 did not have a happy
marriage because the accused used to beat up the deceased. He further testified that the
elders had advised PW 3 to return to her parents due to the suffering that PW 3 and the
child had endured in the hands of the accused. PW 6 testified that when the accused
married PW 3 he knew that the child was not his, but had agreed to adopt the child as
his own.
 
PW 7 J G Maina testified that he was at a kiosk belonging to one
Muchiri ati village when he was informed that there was a child who had been
seriously injured and abandoned in the bush. PW 7 went to where the child was. He
saw that the child’s abdomen had been cut and the intestines had come out. PW 6
looked for a gunny bag, put the child on it and assisted in taking the child to Ol Kalou
District Hospital. PW 7 went to the Nakuru Provincial General Hospital on the 15th of
July 2003 where he was informed that the child had died.
 
PW 8 D N a fifteen year old pupil at St. Joseph Primary School
testified that on the 13th of July 2003 at about 4.00 p.m. while he was home in
village, Ol kalou the accused arrived and told him that he has strangled a child. The
child was called W. The accused warned PW 8 not to tell anyone. He threatened to
kill PW 8 if he told anyone. The accused then gave PW 8 his radio and iron box for
safe keeping. The accused then left the homestead and went away. During the same
day at about 8.00 p.m., people came to the homestead of PW 8 looking for the accused.
PW 8 testified that the accused was not found on the material day. Neither was he
found on the 14th and the 15th of July 2003. PW 8 testified that when he saw the
accused, he did not have bloody clothes. PW 8 stated that it was normal for the accused
to leave him with his radio and iron box when he was going to be away from home for a
long time. PW 8 did not know why the people were looking for the accused.
 
PW 9 Police Constable Naftali Chege, then based at Ol kalou police
station testified that he received information that a murder suspect had gone into hiding
at Ng’arua area. PW 9 testified that on the 19th of July 2003 he went with one of the
brothers of the deceased to Ngarua where they were able to apprehend the accused. The
accused was brought back to Ol kalou Police station and charged with the
offence of murder. On the 15th of August 2003 PW 9 accompanied the relatives of the
deceased to the Nakuru Provincial General Hospital where a postmortem was conducted
by the doctor on the body of the deceased, EW. PW 9 testified that the
accused went into hiding after the incident where the deceased was seriously injured.
He further testified that when the accused was arrested, he did not attempt to escape.
 
PW 10 Corporal Agnes Gitonga testified that she was the investigation officer of
the case. She testified that she took statements from all the witnesses, had the accused
arrested and later preferred the murder charge against the accused. PW 10 also visited
the scene of the crime.
 
PW 11 Dr Vitalis Kogotu testified that on the 1st of August 2003 he carried out a
postmortem on the body of W W. The body was of an African female child
aged about one year and six months. He testified that there was a cut wound on the
chest curved downward running to the left for about five centimetres. The wound had
been stitch. P W 11 testified that when he opened the abdomen he found that the
stomach and the small intestines had been cut. PW 11 established the cause of death to
be haemorrhage secondary to stab wounds. The postmortem report was produced as
prosecution’s exhibit No. 1.
 
When the accused was put on his defence, he chose to give an unsworn
statement. He testified that he became friends with PW 3 in 1999. Later he married
PW 3 in November 2002. He testified that when they were friends with PW 3, PW 3
got pregnant while she was at home. Inspite of this the accused testified that he still
sought PW 3’s hand in marriage. PW 3’s parents consented to the accused marrying
PW 3, P W. The accused was then allowed to live with Phyllis as husband
and wife. It was his evidence, that four months into the marriage an aunt of P
called G incited his wife against him. It was his evidence that due to the incitement,
Phyllis ran away from the matrimonial home. When she came back she showed
disrespect towards the accused by abusing him in front of his brothers and parents.
They started quarrelling. P again ran away to her parents. The accused sought to
be reconciled by the elder with P. An elders meeting was held. The elders were
unable to reconcile the accused and Phyllis due to the fact that an uncle of P
insisted that the accused pays dowry first before they could be reconciled. The accused
testified that he did not have any problems with P and was sad that he was not
given an opportunity to live with his wife.
 
He testified that on the 13th of July 2003 he gave his brother his radio and iron
box as he was going to see his aunt who was living in Ngarua. The accused testified
that the time he gave the said items to his brother was 3.25 p.m. He then bade farewell
to his brother and parents and went to visit his aunt at Ngarua. After a week, the police
came and arrested him. He was taken to Ol kalou police station where he was
interrogated concerning the death of E W. The accused denied that he
knew anything in connection with the death of the said E W. The
Accused denied the evidence which was adduced by the Prosecution witnesses. It was
his testimony that the people who were with the child ought to know who had killed the
child. The accused testified that he was not aware what occurred at the home where the
said E W disappeared and was later found seriously injured. The accused
testified that he was surprised that P could have taken the child to her aunt’s when
normally she left her at her grandmother’s. The Accused testified that he did not have
any grudge against P and still considered her as his wife.
 
After the close of the Prosecution’s and the defence case, submissions were
made by Mr Mugambi, Learned Counsel for the Accused and Mr Gumo, the Assistant
Deputy Public Prosecutor. I will revert back to the submissions later in this judgment.
The evidence that was adduced by the prosecution was circumstantial. No witness saw
the accused person injure E W W (hereinafter referred to as the
deceased). The deceased was found having sustained serious injuries which later
proved to be fatal. The deceased died from the injuries that had been inflicted upon her.
To succeed in its case, the prosecution must establish beyond any reasonable doubt that
it is only the accused person who could have inflicted the said injuries on the deceased
to the exclusion of any other person. As was held in James Mwangi –versus-
Republic [1983] E. A. 327 at page 331 by the Court of Appeal;
 
“In a case depended on circumstantial evidence in order to
justify the inference of guilt the incriminating facts must be
incompatible with the innocence of an accused or the guilt of
any other person and incapable of explaination upon any
other reasonable hyphothesis than that of his guilt (Sarkar on
evidence 10th Edition p. 31) it is only necessary before drawing
the inference of the Accused’s guilt from circumstantial
evidence to be sure that there no other co-existing
circumstances which would weaken or destroy the inference –
Teper –versus- the Queen [1952] AC 480 at page 489.”
 
In the present case the prosecution called PW 1 J K, PW 2 E
N M and PW 3 P W K who testified on the circumstances
under which the deceased, who was a child of one year and eleven months left the home
of PW 2 E N M. PW 3 P W Ki, the mother of the
deceased testified that on the 13th of July 2003 she decided to go to the market. She
took the deceased to her aunt, E N M (PW 2) who agreed to look after the
deceased while PW 3 was gone to the market. PW 3 took the deceased to the house of
PW 2 at about midday. PW 3 then left for the market which was situated at a place
called Kapten. PW 2 corroborated PW 3’s testimony. She testified that PW 3 left the
deceased child with her when she went to the market at a place called Kapten. PW 2
testified that on that material day she was inside her house resting while the deceased
and her children were playing outside the house. PW 2 had already fed the children
including the deceased.
 
At about 4.00 p.m., she testified that the accused knocked the door of her house.
She welcomed him into the house. PW 2 was in the house with a visitor who was called
Mumira. The accused greeted them and asked where PW 3 was. PW 2 informed the
accused that PW 3 had gone away. The accused asked PW 2 if PW 3 was going to
come back. PW 3 answered in the affirmative. After a while, PW 2 testified that the
accused went outside and picked the deceased and said he was going with her to the
kiosk. PW 2 remained in the house until when PW 1 informed her that the accused had
taken the deceased away. PW 1 J K, a standard three pupil testified
that on the material day, he was playing outside their house with the other children,
including the deceased, when the accused came and told them that he was going to buy
them sweets. He took the deceased with him. PW 1 followed him. However the
accused told PW 1 not to follow him. When the accused realised that PW 1 was
surreptiously following him, he threw stones at PW 1 and succeeded in scaring him
away.
 
This Court is aware that the evidence of PW 1 who is a child of young and
tender years has to be corroborated. Before the said witness testified, this Court
conducted an inquiry and established that PW 1 was competent to testify under oath.
PW 1’s evidence was corroborated to some extent by the evidence of PW 2 E
N M, who testified that she had seen the accused take the deceased child away.
She later was told by PW 1 that the accused had taken the deceased child away. Further
corroboration to PW 1’s evidence was given by the evidence of PW 5 Z
G. She testified that she was aged seventeen years. It was her testimony that on
the material day as she was walking towards her grandmother’s place, she saw the
accused carrying the deceased. PW 5 knew the deceased prior to the said material date.
She testified that she knew that the accused was married to PW 3. She testified that
when she saw the accused with the deceased, the deceased was laughing. After seeing
her grandmother, PW 5 on her way back, saw many people who had stopped at a farm
belonging to lady whom she called Mama Kimani. PW 5 testified that she went to
investigate. She saw a child lying on the ground with bloody clothes. PW 5 testified
that she was able to identify the child as the one she had seen earlier being carried by
the accused.
 
When PW 5 had earlier seen the child with the accused, the child was okay
healthwise. PW 5 testified that when she saw the child the second time the child was
lying on the ground with blood emanating from her chest and stomach area. PW 5
testified that between the time she had seen the accused with the child and the time the
deceased was found abandoned, was about two hours. PW 6 D K the father of
PW 3 testified that he was informed about the disappearance of the deceased by PW 2.
Later he was informed that a child had been found abandoned. He went to the scene
and identified the child to be his granddaughter. It was his evidence that the child had
been stabbed in the stomach and her intestines were hanging outside her body. PW 6
with the assistance of others, took the child to Ol Kalou District Hospital. The child
was later transferred to the Nakuru Provincial General Hospital where the child died in
the course of the night.
 
PW 4 J N W testified that he was going home from a local
shopping centre called Ndemi. It was on the 13th of July 2003 at about 5.30 p.m. PW 4
testified while walking, he saw a child lying on the grass. The child’s clothes were
bloody. PW 4 testified that when he saw the child, the child was alive but was
unconscious. He testified that many people came and later PW 5 came and identified
the child. PW 4 testified that the child was later taken to hospital where she later died.
PW 4’s evidence was corroborated by the evidence of PW 7 J  M who
testified that he was informed that a child whose stomach had been disembowelled had
been abandoned in the bush. PW 7 went to the scene. He saw the child’s intestines
hanging out. PW 7 assisted others to take the child to Ol Kalou District Hospital. The
child was transferred to Nakuru Provincial General Hospital where the child died on the
same night.
 
PW 11 Dr Vitalis K’ogutu testified that he carried a post mortem examination
on the body of the deceased. He assessed the age of the deceased to be about one year
and six months. He observed that there was a cut wound on the chest running to the left
side of the body. The cut wound was curved downward and was about five centimetres
long. There was a stab wound to the chest wall which had penetrated between the T11
and T12 which was about 1.5 centimetres long. PW 11 testified that the internal
appearance were that the deceased’s stomach and small intestines had been cut. The
deceased’s spleen was punctured and there was internal haemorrage. Dr K’ogutu was
of the opinion that the cause of death of the deceased was internal haemorrage
secondary to stab wounds. The postmortem report was produced as Prosecution’s
Exhibit No. 1.
 
This Court has evaluated the said evidence which was adduced by the
prosecution. This Court finds that the Prosecution has established by circumstantial
evidence that the accused was the last person seen by the witnesses when the deceased
was healthy and alive. The sequence of events as narrated by PW 1, PW 2, PW 3, PW 4
and PW 5 proves beyond reasonable doubt that the accused took the deceased from the
homestead of PW 2 and was seen by PW 5 carrying the deceased who was in good
health before the said PW 5 saw the deceased about two hours later lying on the ground
having been stabbed in the stomach with the intestines having been disgorged from her
abdomen. The critical time was between the time that the Accused was seen by PW 5
and the time that PW 4 found the deceased abandoned by the road side. It is between
the said two times, which is about one hour that the accused must have stabbed the
deceased. The Accused like a mad scientist in a horror movie dissected the deceased’s
abdomen as if her body was some scientific specimen. No evidence has been adduced
by either the prosecution or the defence that would displace the inference that it is the
accused person who stabbed the deceased thereby causing her fatal injuries.
Other circumstance evidence adduced by the prosecution further supports the
inference that it is the accused who stabbed and fatally injured the deceased. PW 3
testified that she was a friend of the accused before she conceived by another man and
gave birth to the deceased. PW 3’s evidence as to the existence of the friendship was
corroborated by the accused when he gave his unsworn testimony in his defence. PW 3
testified that when she was married to the accused, and was living with her, the Accused
used to beat the deceased. PW 3 testified that the accused hated the deceased. He told
PW 3 that he was going to kill the deceased. It was because of the constant beating that
the Accused administered on the deceased that caused PW 3 to leave her matrimonial
home. The evidence of PW 3 was corroborated by the evidence of PW 6 D K
(the father of PW 3) who testified that the elders had advised PW 3 to return back to her
parents due to the fact that the accused used to beat up the deceased. This evidence is
crucial as it proved that the accused had the motive to kill the deceased.
From the Courts evaluation of the evidence which was adduced by the
Prosecution it appears that the Accused was not happy that PW 3, his girlfriend had
conceived a child with another man. The accused still loved PW 3. He went to her
parents and sought her hand in marriage. He indicated that he did not have any problem
in marrying PW 3 even though she had another man’s child. It is only when PW 3
came to live with him that the Accused manifested his hatred of the deceased. He used
to beat her up. Probably the Accused in a convoluted way blamed the deceased for
having been born by his beloved. The Accused was jealous of an innocent child. It is
the constant beating of the deceased that made PW 3 decide to leave the Accused’s
home. All the efforts by the Accused to have PW 3 return to the matrimonial home did
not bear fruit. The elders met and decided that PW 3 was to remain at her parents. The
Accused blamed the deceased for the breakup of his marriage. He hatched a plan. He
went to the home of PW 2 when he knew that PW 3 would be away. The Accused’s
plan was to get the deceased out of the picture so that the Accused and PW 3 would live
together as husband and wife. It is the finding of this Court that the Accused had the
motive, the opportunity and the will to put into effect the murder of the deceased. The
Accuse had malice aforethought. He had indicated his wish to kill the deceased to PW
3, got the opportunity and put his evil plan into effect.
 
In the case of Rex –vs- Kipkering Arap Koskei (1949) 16 EACA 135 it was
held that in order to justify, on circumstantial evidence, the inference of guilt the
inculpatory facts must be incompatible with the innocence of the accused and incapable
of any other explanation upon any other reasonable hypothesis than that, of his guilt and
the burden of proving facts which justify the drawing of this inference from the facts to
the exclusion of any reasonable hypothesis of innocence is always on the prosecution
and never shifts to the defence.
 
I do find that the Prosecution as established by circumstantial evidence that it is
only the Accused who could have fatally injured the deceased. I have considered the
submissions made on behalf of the Accused by his Counsel. No other person had the
intention to do harm to the deceased. The Accused was the last person seen with the
deceased while she was alive and in good spirit. The Accused’s conduct was
incompatible with his innocence. There can be no other inference other than the fact
that the Accused killed the deceased by fatally stabbing her. After stabbing the
deceased and leaving her for the dead, the Accused went home and informed his
brother D N (PW 8) that he has strangled the deceased. He told him not to
tell anyone. The Accused threatened to kill PW 8 if he told any other person what the
Accused had told him. The Accused then left his radio and iron box with PW 8. He
then went away from his home. He was traced a week later by Police Officers in the
company of PW 9 Police Constable Naftali Chege and arrested. PW 10 Corporal Agnes
Gitonga investigated the case and came to the conclusion that from the evidence
recorded a charge of murder would be sustained by the Prosecution. The fact that the
Accused disappeared after the incident which the deceased was fatally injured is
incompatible with the conduct of an innocent man.
 
I have considered the evidence adduced by the Accused in his Defence. The
Accused blames the aunt and the uncle of PW 3 for the breakup of his marriage to PW
3. The Accused denies that he fatally injured the deceased. It was his testimony that
someone else must have injured the deceased and not himself. The Accused narrates
the events leading up to his arrest at his aunt’s place at Ng’arua. I have considered the
evidence adduced by the Accused in his defence. The said evidence does not in anyway
dent the strong case established by the prosecution against him. It is often said that
circumstantial evidence is the best evidence in criminal cases. In the instant case it is
the finding of this Court that the circumstantial evidence adduced by the Prosecution
has established that no other person could have committed the heinous crime against the
deceased other than the Accused. This Court finds that the Prosecution has established
its case against the Accused person to the required standard of proof beyond any
reasonable. The Assessors who assisted this Court during the hearing of this case Mr
John Opondo Radero, Shadrack Nyambane Oyando and Samuel Momanyi Seremani all
entered a verdict of guilty of murder against the accused. The finding of the Assessors
in this case is in accord with the finding of this Court. In the premises therefore, this
Court finds the Accused, John Macharia Gachanja, guilty as charged for the offence of
murder under Section 203 as read with Section 204 of the Penal Code for unlawfully
killing E W W.
 
DATED at NAKURU this 17th day of December 2004.
L. KIMARU
JUDGE