REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

 AT MURANG’A

CRIMINAL CASE NO. 7 OF 2012

[FORMERLY NYERI HCCR 10 OF 2011]

REPUBLIC..….....................................................................................PROSECUTOR

VERSUS

PETER MWANGI MUTHONI………………………………….....…1^ST ACCUSED

JOHN KARURI KIMARI……………………….……………..……..2^ND ACCUSED

JOHN NJORA IRUNGU……………………………………..…....…3^RD ACCUSED

WILSON MANI GACHUCHIA…………………………….……..…4^TH ACCUSED

JUDGMENT

1. On the night of 12^th February 2011, Stephen Karanja Mwangi (hereafter the deceased) left home to deliver some milk to his father. He never returned. His body was found the following morning lying in a ditch adjacent to a public road. It had a deep cut on the left side of the mouth and the left ear was missing.

2. The accused was the principal suspect. He in turn implicated the three other accused persons. The Republic brought information to the High Court charging them with murder contrary to section 203 as read with section 204 of the Penal Code.

3. The particulars are that on the night of 12^th and 13^th February 2011 at Ngiine village, Gakuyu Sub-Location, Gaturi Location in Muran’ga County, they jointly murdered the deceased.

4. They all pleaded not guilty. The prosecution called six witnesses. The first was the deceased’s wife, Margaret Mugechi (PW1). She said that on 12^th February 2011, at about 7.30 p.m., the deceased left their home to deliver some milk to his father one kilometer away. That is the last time she saw him alive.

5. The following morning, she was attracted to the scene by some screams. She found a crowd milling around the body. The body was facing up with the injuries I detailed earlier. Those injuries were also confirmed by the Assistant Chief (PW2) and Joseph Irungu Maina (PW4) who all visited the scene.

6. PW1 testified that prior to that date, she had incessant quarrels with the 1^st accused, a nephew of the deceased.  In 2009 he came to her home and beat her up claiming that she was bad-mouthing him in the village.  She said the 1^st accused used to beat her and her husband (the deceased).  The matter was reported to the police. The 1^st accused was arrested but never charged.

7. On 18^th February 2011, she identified the body for post mortem examination. According to the Post Mortem Form (exhibit 1) produced by Dr. Kamotho Watenga (PW5), the death was caused by “asphyxiation from aspiration of blood with severe haemorrahage”.

8. PW2 was the area Assistant chief, Julius Maina. He also went to the scene and saw the remains. He notified the OCS, Murang’a Police Station. The police removed the body to Murang’a District Mortuary.

9. PW3 was Chief Inspector of Police Jeremiah Musyoki. Upon receipt of the information from PW2, he and two Police Constables, Isaac Wanyoike and PC Peter Kamara went to the scene. They were accompanied by a Scenes of Crime Officer, PC Eric Kithinji Marangu. The body had a deep cut on the left side of the mouth; the left ear was completely severed.

10. Upon gathering some information, they proceeded to the 1^st accused’s house about 200 metres away.  They found him sleeping. There were blood-stained clothes hanging on a line inside his house: 2 blue jeans trousers and a torn striped shirt (MFI 1 &2). The police also recovered from the room a blood-stained panga (MFI 3).  In another room they found a bloodstained light-pink bed sheet (MF1 4).  He said that the 1^st accused then led them to a fence in the shamba where they recovered a long blood-stained stick (MFI 6). Although all these items were marked for identification, they were never formally produced.

11. PW3 said that the 1^st accused mentioned the other accused persons as accomplices. In the house of the 2^nd accused, they recovered green trousers (MFl 7) and a checked shirt (MF18) which “appeared to have blood spots”.  When they went to the house of the 3^rd accused, they recovered some pink long trousers, some black jeans trousers, red T-shirt and a pair of green slippers. (MFI 12 - 16). Again, the items were not formally produced on the record.

12. PW3 testified that the 2^nd and 3^rd accused led the police to the house of the 4^th accused.  They found him there and recovered a pair of white sports shoes, black sandals, a checked shirt (MFI 18) and blue jeans trousers (MFI 19).  The witness said that “some of the items appeared to have blood spots”.

13. On cross examination, he confirmed that blood samples were taken from all the accused with their consent for purposes of DNA testing. The Exhibit Memo Form or the report from the Government Analyst were never produced.

14. The witness also said that a month before the murder, family members from Nairobi had seriously assaulted the 1^st accused using pangas and rungus. He did not investigate where that alleged assault had taken place. The witness was shown an entry for 10^th January 2011, where the 1^st accused made a report of assault at Gaturi Police Patrol Base. The 1^st accused claimed he was attacked by a group of unknown people using sticks in his house. 

15. The last witness was Police Officer Maurice Mulwa (PW6). He took the accused persons for mental check-up and had their blood samples taken.  He also attended the post-mortem examination that I mentioned earlier. The witness referred to the Occurrence Book from Gaturi Patrol Base for 13^th February 2010 to 16^th January 2011 and specifically to the record of 3^rd October 2011. It indicated that the 1^st accused “was assaulted [while] asleep and injured and left unconscious and left in house bleeding”.  The witness could not tell if the 1^st accused had any exhibits when he reported the assault.

16. The 1^st accused distanced himself from the murder. The material part of his sworn evidence was that he was in the farm at Kanungi’s place doing odd labour. He left there at 14:00 hrs. and went home.  He was living alone in the house and did “not leave the homestead throughout the night”. His grandfather, who was blind, was living in another house. He said that he and his uncle (the deceased) would take care of the blind man. He denied that he met the deceased on the material night.

17. He said the scene of the murder was 2 kilometres from his house. He went there and stayed until the police removed the body. When he returned home, the police led by PW3 came to his house and took away the items that I mentioned earlier. His explanation was that he had kept the bloodied clothes as exhibits for the assault that he had reported a month earlier at the Gaturi Patrol Base. He claimed that the police had advised him “to keep them until required”.  He produced the OB Report earlier marked MFl D1 as defence exhibit 1.

18. On cross examination, he agreed that he never took the exhibits to the police when he reported the assault. He said that he never led the police to where a stick was recovered. He conceded however that “the bloodstained panga was found in [his] house”.  He said that all the co-accused are his friends and age mates at Ngiine village; and, that he is the one who “gave their names to the police”.

19. The defences by the 2^nd to 4^th accused persons were fairly identical: That on 12^th February 2011, they were engaged in casual work at a “Wa Ciku’s” place.  They left at 14.00 hours and went separate ways. They all claimed that they never left their homesteads in the night or met the deceased. Regarding the items of clothing recovered from their houses, they said the items were dirty but not bloodstained. They were all categorical that they did not kill the deceased but were unfairly implicated by the 1^st accused.

20. Learned defence counsel filed submissions on 28^th January 2022.

21. 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.

22. There are three key ingredients that must be present: 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.

23. There is no doubt about the death of the deceased. Doubt is completely erased by the post mortem report. In the opinion of the pathologist, death resulted from“asphyxiation from aspiration of blood with severe haemorrahage”.

24.  From the severe injuries on the deceased’s head and the autopsy, I readily find that the death was was unlawful.

25. The next question then is whether the Republic has proved beyond reasonable doubt that the accused, of malice aforethought, killed the deceased. That burden rested entirely upon the shoulders of the prosecution. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332.

26. There was no eye witness to the attack or murder of the deceased. The prosecution’s case is thus built atop circumstantial evidence. In order to convict on such evidence, the entire chain must be complete and point to the guilt of the accused “incapable of explanation upon any other reasonable hypothesis than that of his guilt”. R v Kipkering arap Koske & another 16 EACA 135 (1949). See also Sawe v Republic [2003] KLR 364, Mutua v Republic, High Court, Machakos, Criminal Appeal 198 of 2013 [2015] eKLR,  Republic v Richard Itweka Wahiti, High Court, Kiambu, Criminal Case 9 of 2016 [2020] eKLR.

27. It is instructive that the deceased was attacked on the head with a sharp object. There was a deep cut of the left side of the mouth and the left ear was completely severed. The 1^st accused admitted that a “blood stained panga” was found in his house by the police the morning of the murder. Although other bloodstained clothes were found hanging on a line in his house, he explained it away as exhibits he had retained to support his complaint of an assault a month earlier. While that is possible, I find that it was highly improbable. True, it was a major gaffe by the prosecution to fail to produce the Exhibit Memo or the Government Analyst Report linking the clothes to the offence. But that failure does not by itself exonerate the 1^st accused.

28. I must add that I did not find the defence by the 1^st accused believable. His demeanour betrayed him as untruthful and one who was concealing vital information. I am alive that the burden of proof lay with the prosecution. But from the evidence of PW3, it is the accused who led them to a fence in the shamba where they recovered a long blood-stained stick.  

29. I also find that there was bad blood between the 1^st accused and the deceased. According to the evidence of PW1, the 1^st accused (who was their nephew) had persistent quarrels with them.  In 2009 he came to her home and beat her up claiming that she was bad-mouthing him in the village.  He would also beat the deceased.  The matter was reported to the police. Although the 1^st accused was arrested, he was never charged with assault.

30. From the evidence of PW1, I have concluded that the 1^st accused had a clear motive to kill the deceased. There was bitterness between him and the deceased and he would occasionally beat him and his wife. The animus was exacerbated a month before the murder, when unnamed persons seriously assaulted the 1^st accused. That is strong evidence of his malice.

31. When the deceased left his house, he was on his way to deliver milk to his blind father who shared a compound with the 1^st accused. True, the body was found in a ditch a distance from the compound but the items recovered immediately from the deceased’s house and particularly the bloodstained panga and long blood-stained stick pointed to his involvement in the murder.

32. Like I stated, a chemical analysis may have erased any doubts. But on the totality of the evidence, and the combined testimony of PW1 and PW3, I am satisfied that the 1^st accused had the necessary malice and that he killed the deceased.

33.  With regard to the 1^st accused, the chain of circumstantial evidence is complete and “incapable of explanation upon any other reasonable hypothesis than that of his guilt”. R v Kipkering arap Koske & another 16 EACA 135 (1949).

34. I thus readily find that the prosecution proved beyond reasonable doubt that the 1^st accused, of malice aforethought, killed the deceased. I enter a finding of guilt and convict him accordingly.

35. I will now turn to the 2^nd to 4^th accused persons. PW3 testified that it is the 1^st accused who implicated them. The 1^st accused in his defence said that he mentioned their names when the police assaulted him after picking him up from his house. The 2^nd, 3^rd and 4^th accused were all his friends. Apart from that evidence of an accomplice, there is no concrete evidence connecting them to the murder. Fundamentally, there is no proof that they had malice aforethought. I therefore enter a finding of not guilty against the 2^nd, 3^rd and 4^th accused persons.

36. The upshot is that the 2^nd, 3^rd and 4^th accused persons are hereby acquitted.  I however find the 1^st accused person (Peter Mwangi Muthoni) is guilty of murdering the deceased and I convict him accordingly.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 15^th day of March 2022.

KANYI KIMONDO

JUDGE

Judgment read in open in the presence of:

Accused persons.

Mr. Kirubi for the accused instructed by Kirubi Mwangi Ben & Company Advocates.

Ms. Muriu for the Republic instructed by the Office of the Director of Public Prosecutions

Ms. Susan Waiganjo, Court Assistant.