REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL CASE NO. 46 OF 2012

[FORMERLY NYERI HCCR 26 OF 2012]

REPUBLIC...................................................................PROSECUTOR

VERSUS

TABITHA WAITHIRA IRUNGU................................1^ST ACCUSED

PHILLIP KAMAU WACHIRA...................................2^ND ACCUSED

JUDGMENT

1. The deceased, a girl aged seven, was a Standard 1 pupil at Kianjahi Primary School. On 17^th July 2012 she disappeared on her way from school. Her body was found on 23^rd July 2012 stuffed into a sack and dumped along the Mathioya River.

2. Witnesses told the police that the 1^st accused delivered the deceased to some four men on 19^th July 2012. The men were in a white car; the destination was Kayole, Nairobi. Investigations by the police led to the arrest of the 2^nd accused.

3. The Republic brought information to the High Court charging the 1^st and 2^nd accused with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on the 23^rd July 2012 at Kianjahi village in Murang’a County, they murdered AWC.

4. They both pleaded not guilty. The prosecution called ten witnesses.

5. PW1 was Peter Chege, the father of the deceased. On 17^th July 2012 he was in Kajiado. His wife, Jane Wanjiru informed him that the deceased had disappeared.  A search party had gone out to look for her but did not yield results. PW1 travelled to Mathioya village the following day. The search was still going on. He joined the group. Some of the people in the group said that a certain woman had seen the child the previous evening.

6. The woman was the 1^st accused.  PW1 did not know her or the 2^nd accused. She was escorted by a group of people. The mob started to interrogate her. She said she would lead them to where the child was. She took them to a homestead occupied by an old couple.  The child was not there and was unknown to the couple.

7. The mob wanted to lynch the 1^st accused but was restrained by some police officers who escorted her to Ngutu Police Post and later to Nyakianga Police Station. PW1 testified that on 23^rd July 2012 the deceased’s body was recovered at Mathioya River.  He was not at the scene.

8. PW2 was Mary Chege.  On 17^th July 2012 she was on her way to Wang’ondu Trading Centre.   She said she saw she saw the deceased dressed in her school uniform.  It was about 5:00 p.m. She knew the deceased. PW2 greeted her but she did not answer.  She said the deceased was walking towards her home which was quite a distance from the trading centre. On the following day, she learnt that the child went missing. 

9. PW3 was Josphat Mwangi. He also saw the deceased at about 5:30 p.m. at Wang’ondu Trading Centre. She was standing near the shops in her school uniform. She was carrying a school bag. He asked her what she was doing there. He advised her to go home.

10. Anthony Mwangi (PW4) is a teacher. He testified that on 17^th July 2012 at 19:00 hours, the mother of deceased came to his house. She informed him that the deceased did not return home. PW4 confirmed from the class teacher, Mr Kageni (PW5), that the deceased had attended school and left when the classes ended.

11. PW4 said that on 18^th July 2012, the mother of the deceased went to the school. The child was still missing. They reported the matter to the Assistant Chief and to the A.P. Camp at Ngutu.  They also placed a radio announcement. He said that on 19^th July 2012 they mobilized a larger search party.  A woman known as Wairimu informed them that the 1^st accused had some information on the missing child. The 1^st accused was brought to where they were. She said she saw the deceased on 18^th July 2012 at about 6:30 p.m.  She said the girl was in school uniform and a jacket on top.  She had a muffin covering her face. She said the deceased was alone. 

12. The 1^st accused said she did not tell anyone about the matter. She said that on 19^th July 2012 at about noon, she saw the deceased entering a saloon car registration number KAR…..She did not have the other particulars; the car had 4 male occupants.  She said one was Mwangi and their destination was Kayole. PW4 said that the 1^st accused told them that she gave away the deceased to the four men.  She also volunteered Mwangi’s mobile number but it was not going through.

13. PW5 was Jimnah Maina. The deceased was his pupil at Kianjahi. On 23^rd July 2012 at 6:30 p.m., he was crossing Mathioya River.  He met two men, Waweru and Githinji.  The two later came to PW5’s home and said they had spotted a sack near the river.  They decided to go there.  On the way they alerted the chief and some other people. They had a torch. They found the body inside the sack.

14. The prosecution dispensed with the evidence of PW6, Stephen Waweru.

15. The next witness was Irene Wangui (PW7). She was in the search party. She said that on 19^th July 2012, the 1^st accused informed them that she had seen the deceased the previous day near her place.  She said that the 1^st accused told them that she handed the deceased to people in a white car.  Upon cross-examination, she conceded that the deceased was interrogated by an angry mob, but she denied that the accused was beaten.

16. The pathologist was Dr. Martin Mwangi. He carried out the post  mortem examination at   Kiria-ini   Mission   Hospital on 27^th July 2012. He could not ascertain   the   time of   death.  There were bruises on  the neck,   face   and  inner thighs. The   marks    on   the   neck indicated that pressure was applied.  There were bruises   and blood clots  on the vagina; the hymen was broken.

17. He formed the opinion that death resulted from asphyxia due to strangulation  and sexual assault. He produced the Post Mortem Form as exhibit 1. On cross-examination, he said that he did not carry out a high vaginal swab due to lack of facilities.

18. PW9 was APC Langat. The disappearance of the deceased was reported on 18 July 2012   at   10:00   hours by the mother of the deceased. He  organized   a  search party.  The following day, the 1^st accused told him that she   gave   out   the  child   to   a  man in   Kayole. The public wanted to lynch the 1^st accused but the chief intervened. He and   the   chief   escorted   the   1^st accused   to   Nyakianga  Police   Station.  On cross-examination, he conceded that it is the public who arrested the 1^st accused.  He also admitted that his statement made no reference to “interrogation”   or   “Kayole”.

19. The last witness was PC Hassan Chimwenje.  He said that on 19^th July 2012   he received information that the 1^st accused had been arrested by the public on  suspicion of   abducting the deceased. He went there with CPL Barasa and re-arrested the  suspect. They later handed her over to the DCIO Murang’a for  further investigation. 

20. When the 1^st accused was placed on her defence, she stated as follows-

On   15/7/2012.  I   went   home in   Nyakianga   for   a   funeral.  On   17/7/2012   the   funeral   took   place.    I   was    with   Florence   Wangari.  She   was  called   by   a  neighbor   Mwangi   and   asked   whether   we   were   together.  I   was   asked  to   go   to   where   Mwangi   was   at   a  kiosk.  Mwangi   said   the people   who   were   looking   for   me   left.  He   told   me   that   Mama   Kevin had   informed   people   that   that  I  had   seen   the  deceased   who   was  then  missing.  

It is   true   that   I    met   Wacera   (deceased)   on   17/7/2012   when   she   was  leaving   school.  I   knew   her.  She   was in uniform;  Kanjahi   primary.  I   did  not   speak   to  her.  It   was   at   6:30 p.m.  She   was   alone.

Ten   minutes   later,   (on   19/7/2012) a   big group   came   to   question   me   about it.  The   group   said  they   were   looking   for   the   deceased. The group   came   and   searched   my   home   and  called  out   the  name  of ‘ Wacera’ . Mary Njeri,   my   mother in  law inquired    what   was   happening.

The   group   (of   about   30)   had  one   AP    officer in plain   clothes.  They   asked   me   to  accompany   them.  We   found   other   people   on   the   road.  Some   of   them   wanted   to   beat   me  up.  Some    beat  me  up.  I   did  not   see  the  child   being    picked   up  by   a   white   car.    I   do   not   know   Mwangi   from   Kayole.

The   chief came.    A lady  in  the   group   pleaded   for   me.   I   was   taken   to  Ngutu Camp and  Nyakianga  Police   Station.    I   was  put in   custody   there   and   brought  to Murang’a   the   following   day.  I   have   been  in  custody throughout.  On   23/7/2012   I   could   not   have   killed   deceased.  I   was  in  custody….  

21. Under cross-examination, she denied killing the accused or handing her over to the four men in a white car. She claimed that she made up the story to save herself from the menacing crowd that had arrested her. She also denied that she knew   the 2^nd accused. She said she  saw  him for the first time at Murang’a Police Station.

22. The 2^nd accused also denied killing the deceased. He also denied that he knew the 1^st accused. He denied ever residing or doing business in Kayole. He was emphatic that he never set foot in Kianjahi. His testimony went as follows:

I   was  in   Nairobi   working   as   an   electrician.  I   had   done   so   since   2004.    In   July,   2012   I   was   living   in   Mihang’o   Utawala.  On   20/7/2012,   I   was   called   on  phone   by  someone     who  said   he   was   a   police officer.  I    was   in   Tassia.    I   told    him   I   could   see    him   the   following   day   at   Tassia.    3   people   came   in   a   salon   car.    They   identified   themselves   as  police.

They   arrested   me   and   took   me   to   Kayole   Police   Station.  It   was   about   4.00   p.m.  They   kept   me   there  at   the  Occurrence   Desk.    At   6.00   p.m.   I   was  put   in    the cells.  I   was   not   booked   and    nor   did  they   say   who   I   was   to   wait   for.  On   Tuesday   24/7/2012   some   police   came   from   Murang’a.  That  is   when   I   was   booked.    I   accompanied   them   to   Murang’a   Police   Station.    No  one   had  told   me   why   I   was  arrested.  At   22.00   hours   I   was   taken   to   CID   office.  Accused   1   was   brought   there   and   I   was    asked      whether  I  knew   her.   I   said   no.  I   did   not  know   her.    I   was  taken   to   a  different   room   and  then   to   the  cells.

On   25/7/2012   I   was  told   I   am   a  suspect   in   this   case.  I   was   charged.  On   25/7/2012   I   and   Tabitha   were   taken   to   Nyeri   court   but   we  did   not   appear  in  court.    We   were   booked   at   Nyeri   police.

On   23/7/2012   I   was  in  cells   at   Kayole   Police Station.  I   do   not   know   the  deceased.  I   have   never   visited   Kianjahi.  I   have  never   lived in   Kayole.  I   have   no  car   KAR   saloon.  I   do  not  have   an   ‘alias’   I   am   Phillip   Kamau   Wachira. I   did  not   kill   deceased.

23. Learned counsel for the accused, Mr. Kirubi, filed final submissions 8^th October 2019.

24. Section 203 of the Penal Code provides that:

Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

25. There are three key ingredients that must be present in the offence of murder: first, the prosecution must prove beyond reasonable doubt the death of the deceased and the cause of that death; secondly, that the accused committed the unlawful act that led to the death; and, thirdly, that the accused was of malice aforethought. Malice aforethought is the mens rea or the intention to kill another person.

26. Malice aforethought is the mens rea or the intention to kill another person. Section 206 of the Penal Code defines it as follows;

Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances -

(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.

27. The death of the deceased was proved. The cause of death was also proved: It was as a result of asphyxia due to   strangulation   and   sexual   assault I accordingly find that the death was unlawful.

28. I will commence with the case against the 2^nd accused. He was emphatic that his name is Phillip Kamau Wachira and that he has never been known as “Mwangi”. The person implicated by the 1^st accused is known as Mwangi.

The 1^st and 2^nd accused are strangers. The 2^nd accused has never had a saloon car registration number KAR.

29. There is no direct or indirect evidence by any of the ten witnesses confirming that the 2^nd accused is the same as Mwangi who abducted the deceased on 18^th or 19^th July 2012. There is equally no evidence that the 2^nd accused resided or worked in Kayole. He was in fact arrested in another area known as Mihango, Utawala. Even the investigating officer (PW9) could not explain why the 2^nd accused was charged.

30. The burden of proof fell squarely upon the shoulders of the prosecution. See Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332. I find that there is a dearth of evidence that the 2^nd accused either acting alone or in concert with the 1^st accused; and, of malice aforethought killed the deceased.

31. I acquit the 2^nd accused.

32. I will now focus on the evidence against the 1^st accused. None of the ten witnesses saw the 1^st accused kill the deceased. But there is very strong circumstantial evidence. In R v Kipkering arap Koske & another 16 EACA 135 (1949) the court held-

In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt

33. There are four incriminating pieces of evidence that point to the guilt of the 1^st accused. Firstly, she was the last person to be seen with the deceased on 17^th July 2012 at about 6:30 p.m.  The deceased was alone. She was dressed in her school uniform and wearing a muffin. The 1^st accused knew the deceased and admitted that the deceased used to visit her home.  The deceased’s home  was  half  a kilometer  away.

34. PW2 had seen the deceased earlier at about 5:00 p.m. PW3 also saw the deceased at about 5:30 p.m. near the shops at Wang’ondu Shopping Centre. He advised her to go home. Despite seeing the deceased at 6:30 p.m., the 1^st accused witheld the information.

35. Secondly, she was heard by a number of witnesses including PW4, PW7 and PW9 saying that she delivered the deceased to four men on 19^th July 2012 at about noon. The men were in a saloon car registration number KAR and were heading to Kayole. Although she did not have the full particulars of the registration number, she gave PW4 the mobile number of one of them, Mwangi.

36. Thirdly, the 1^st accused in her defence admitted meeting the deceased on 17^th July 2012 at 6:30 p.m. She however said that she did not speak to her. She explained that because she feared for her life, she told the search party that she had delivered the deceased to the four men. It makes little sense because by saying that she and the accomplices had abducted the child, she would have incensed the crowd even more. She also had something to hide: Why for example did she mislead PW1 and the search party that the deceased was in the homestead of an old couple? I studied her demeanour closely. She was hesitant in answering questions during her cross-examination. I got the distinct impression that she was not truthful.

37. Fourthly, the 1^st accused had the opportunity and the clear plan to deliver the deceased to one Mwangi or the three men to be trafficked to an undisclosed location. The deceased was later murdered and the body dumped along Mathioya River.

38. I agree that the Information states that the deceased was murdered on 23^rd July 2012. On that date, the 1^st accused was in police custody. But she had acted in concert with the persons who abducted the deceased and killed her. The 1^st accused plotted with Mwangi or other accomplices to harm the deceased. Her conduct caused the death of the deceased.

39. The entire defence by the 1^st accused is completely hollow and unbelievable. I have reached the conclusion that the entire corpus of circumstantial evidence points irresistibly and exclusively to the guilt of the 1^st accused.  The chain of events is complete. There is no hypothesis that exonerates her.

40. The prosecution has proved the charge against the 1^st accused beyond reasonable doubt. The upshot is that the 1^st accused, of malice aforethought caused the death of Alice Wachera Chege by an unlawful act.

41. I accordingly enter a finding of guilty against the 1^st accused and convict her accordingly.  For the reasons given earlier, the 2^nd accused is hereby acquitted.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 29^th day of October 2019.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of-

The 1^st and 2^nd accused.

Mr. Kirubi for the accused.

Mr. Mutinda for the Republic.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.