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Republic v Mwathi (Criminal Case 11 of 2019) [2022] KEHC 15679 (KLR) (17 November 2022) (Judgment)
Neutral citation:
[2022] KEHC 15679 (KLR)
Republic of Kenya
Criminal Case 11 of 2019
LW Gitari, J
November 17, 2022
Between
Republic
Prosecutor
and
Caroline Kawira Mwathi
Accused
Judgment
1.Caroline Kawira Mwathi, the accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 of the Laws of Kenya). It is alleged that on 22nd July 2019 at Galili Hotel, Mukuuni Market, Mukuuni Location within Meru South sub-county in Tharaka Nithi County, the accused jointly with others not before court, murdered one Albert Murithi Mugo alias Ngai (the “deceased”). The accused person denied the charge upon being arraigned in court. The court recorded a plea of not guilty and the matter proceeded for full trial. The brief facts of the case are that the deceased and the accused are close relatives as the accused is the wife of the brother of the deceased, one Erick Muriuki. The husband of the accused is deceased. The accused alleges to have been chased from the home of her in-laws where she used to live with her husband. On the material day, the accused went to the home of her in-laws where her son Erick Bundi used to stay. The mother of the deceased Elizabeth Cianjoka (PW6) met the accused and her son Erick Bundi who is at large. The accused teased PW6. There was bad blood between accused and the deceased over macadamia nuts which accused and her son had picked from the deceased’s farm. The accused and her son proceeded to the hotel called Galilee at Mukuuni Market where the deceased had gone to take some food. In the presence of the accused, her son Erick hit the deceased fatally on the head using a piece of wood. The deceased collapsed and was rushed to hospital where he later succumbed to the injuries. A postmortem was done and revealed that cause of death was cardio pulmonary arrest secondary to massive trauma on the head. The accused was arrested and charged. Her son is at large.
2.The prosecution called a total of 10 (ten) witnesses in support of its case against the accused while the accused testified as the sole witness in her defence. Below is a summary of their respective cases.
The Prosecution’s case
3.PW1 was Dr. Nkonge Nicholas, the medical officer who conducted the postmortem examination on the body of the deceased. He stated that the body was identified by Fridah Muthoni (PW9) and one Joslene Kaari. He then filled the postmortem form which he produced as P.Exhibit 1. According to the doctor, the body of the deceased was presented to him on 26/9/2019. He noted that the body had no external injuries. He however noted that internally the skull was fractured and there was massive bleeding. He formed the opinion that the cause of death was cardiopulmonary arrest secondary to massive trauma caused by a blunt object.
4.PW2 was M’Mturitha M’Igembe. The court noted that he was elderly and looked sickly. He recalled that on the material day at around 11.00 a.m., he went to drink soup behind a hotel owned by one Ngari. He was with the deceased. He testified that as they were drinking soup, a young man came from behind the hotel armed with a club. He did not know the name of the young man but he knew his mother. It was PW2’s testimony that when the man came, he hit Ngai on the head with the club and the man then ran away. That he saw the mother of the man behind the hotel. That after he was hit, the deceased fell down on the place where he was sitting drinking soup. He identified the stick used to hit the deceased. The court noted that it was a thick piece of firewood. He stated that after the deceased was hit, he left the scene without finishing his soup as he was shocked. That the deceased then woke up and also went outside and wiped his head with his (PW2’s) sweater. The deceased had blood on the head. He identified the blood stained sweater which the deceased used to wipe the blood from his head, exhibit 2. The next day he heard that Ngai (deceased) had died.
5.PW3 was Elishaphan Mutegi Ngai, the owner of the bar business known as Galilee Green Bar. He stated that there is a hotel behind his bar and that he knew the deceased for a long time as a resident of that area. He recalled that on the material day, he was in his house which is about ten meters from the bar. He heard screams coming from the hotel. He went and found a young man holding a stick and a panga. He saw the deceased on the ground and the accused was standing there. He asked the accused why he had brought the son to commit murder in his bar. PW3 then sent one of his workers to go and report. The unnamed worker took time and so PW3 decided to go himself. He came back and found the deceased still conscious and lying on the ground where he had left him. Together with others, PW3 assisted the deceased and they took him to a dispensary. At that point, PW3 stated that the accused and her son had already escaped. The deceased was later referred to Chuka Hospital. The doctor who attended to him gave him medicine and the deceased was wheeled to the ward. The doctor advised that they should pay so that a CT scan could be done. PW3 went to look for money but was not successful even from the relatives of the deceased. The following day, PW3 visited the hospital where he talked briefly with the deceased before he passed away.
6.PW4 was Royford Muchiri Musyoka. He recalled that on the material day, he was left at the Galilee Hotel to attend to customers by one Catherine Wanyaga who went for a burial. He stated that one customer, Kanyua (PW5), went to the hotel and he cut some boiled meat for her. The deceased also went and ordered food. As he was serving Kanyua, he heard a sound like firewood had fallen. He then saw the deceased on the ground and he was bleeding from the head. PW4 stated that there was a man called Erick Mukundi who was holding a panga on one hand and a stick on the other hand. He screamed. The landlord, PW3, went and asked the accused why they had decided to kill the deceased at that place. He corroborated PW3’s evidence that PW3 lifted the deceased and took him to hospital where he was referred to Chuka Hospital. The next day, he received the news that the deceased had died. He identified the stick that Erick was holding. He stated that Erick and the accused are related as Erick was the son to the accused.
7.PW5 was Flora Kanyua Kimanthi. She recalled that on the material day, she had gone to do some business and entered Galilee Hotel to eat something. She met PW4 in the hotel and ordered for some meat. He corroborated PW4’s testimony that it was at that point when the deceased went and ordered meat. Just as told by PW4, she stated that she heard the sound of a piece of wood. She then saw the deceased on the ground. According to her, the accused was standing next to the deceased and her son, Erick Mukundi, was also standing there holding a panga and a piece of firewood. She stated that she was standing at the window of the hotel and the deceased was standing next to her on the right side. She also screamed and the landlord, PW3, came hurriedly to the scene. She recalled that PW1 removed his sweater and started wiping blood from the deceased’s head. PW3 asked the accused why they had gone to kill the deceased at his premises and the accused’s son asked what she was waiting for before they left. PW3 then picked the deceased and rushed him to hospital. The next day, she also received the news that the deceased had passed away. She stated that the deceased was the brother to the accused’s husband.
8.PW6 was Elizabeth Cianjoka, the mother of the deceased. She stated that she knew the accused as she was married to her son but she left. She stated that her husband was called Erick Muriuki but he is deceased. She stated that Erick Mukundi was the son to Erick Muriuki and Caroline Kawira. She recalled that on 6th June 2019, Erick Mukundi and his mother started harvesting macadamia that belonged to the deceased. When the deceased found them, he took the macadamia nuts to the authorities and reported the matter. She could not tell whether by authorities she was referring to are the police or the chief. It was her testimony that after that, the accused planned how to cut the deceased into pieces. She stated that they even tried to poison him some time in June.
9.PW6 recalled that on the material day, she was in the shamba when some unidentified person went and asked her if there was something that she had heard. The unidentified person then told her that the deceased had been hit by Erick Mukundi and the accused and had been rushed to hospital. She started running frantically in shock. She went to the dispensary after receiving the news and met a mob of people. An ambulance then came and the deceased was carried away. The following day, PW6’s daughter who had gone to see the deceased in the hospital called her and informed her of the passing on of the deceased.
10.PW7 was Mugambi Justus Rurii, the chief Mukuuni Location. He stated that he knew the accused and her son, Erick Mukundi, as they came from the same sub-location. He recalled that on the material day, at around 10.00 a.m., the accused went to his office and reported that she had been beaten by her brother-in-law, the deceased herein. PW7 advised the accused to go to the police station and report. He stated that he did not see any physical injury on her face. Later at around 1.00 p.m., he received a report from members of the public that the deceased had been beaten by the accused and her son, Erick Mukundi. He sent for people to bring the deceased to the dispensary. The next day, PW7 received the news that the deceased had passed away. He took the police to the house of the accused where she was then arrested.
11.PW8 was PC Simon Lokuki. He recalled that in 23rd July 2019 at about 9.30 a.m., he was working at Mukuuni Police Post when he received a report that there was a man Albert Muriithi, the deceased herein, who had been assaulted the previous day and died that morning. Accompanied by PC Kiptoo, he went to arrest the suspects who had assaulted the deceased, that is, Erick Mukundi and Carolina Kawira (accused herein). They went to the home of the accused, where they found her within her compound, and arrested her. They then went to Galilee hotel at Mukuuni market but did not trace Erick Mukundi. They however recovered the murder weapon which was a piece of wood. The same was handled to him by the owner of the hotel, PW3.
12.PW9 was Frida Muthoni Muriithi, a daughter of the deceased. she stated that the deceased was the wife to her uncle. She recalled that on 26th July 2019, she accompanied policemen from Chuka Policfe Station and proceeded to Chuka Hospital Mortuary where she identified her dead father’s body to the doctor who performed the post-mortem examination. She stated that the body had two cracks on the head but there was no blood.
13.PW10 was IP Abdi Dubule, who was at the material time the officer-in-charge crime, Chuka Police Station. He recalled that on 23rd July 2019 at about 11.00 a.m., he received a call from the chief of Mukuuni location who reported that there was a man, one Albert Muriuki, who had been assaulted the previous day, rushed to Chuka Hospital, where he passed away. PW10 proceeded to the scene and passed through Mukuuni Police Post. He met a police officer PC Simon who had recovered a murder weapon and arrested a suspect. He then went to the scene which had a hotel in front of a bar and lodgings at the back. He stated that he did not see blood stains at the scene of the crime and noted that the scene had already been tampered with by the owner of the bar and the hotel. He tried to trace the 2nd suspect, Erick Mukui but did not succeed. He took the arrested suspect to Chuka Police Station and recorded statements from witnesses. He stated that the postmortem was done on the deceased’s body on 26th July 2019 and produced the murder weapon, a piece of wood, as P.Exhibit 1. He also received a statement from the area chief that the accused had gone to his office and reported a case of assault against the deceased on the same day that the deceased was assaulted. He established that the accused called her son Erick, who is at large and they went to the hotel to discipline him. with a large wood (P.Exhibit 1).
14.On cross examination, PW10 stated that he rushed to the scene immediately he got the report. He found several people at the scene. That the murder weapon was recovered by PC Simon who handed it over to him and that he was not with PC Simon when he recovered the weapon. That at the scene of the crime, there were some stains and a heap of pieces of wood. There was also a sweater but according to him, it had no connection to the scene of crime. He stated that the sweater had no blood stains.
Defence case
15.DW1 was the accused. She testified that the deceased was a brother to her husband. She recalled that on the material day at about 10.00 a.m., she went to Galilee Bar and met the deceased in the company of other people. He specified that the deceased was with a bar attendant and another man. She further stated that as she entered the bar, the man who was with the deceased told him that he would not buy him beer because his wife had come. That the deceased then slapped her and they struggled. That that was when she went and reported the matter to the chief. She claims that she does not know what transpired at the scene after she left. She denied being at the scene with her son who was allegedly armed with a panga. She denied being at the scene when the deceased was injured. She denied the testimony of PW6 that she was seen at the scene. She stated that on 23rd July 2019, she was arrested on claims that she has gone to the scene. She denied seeing his son.
16.On cross examination, she stated that her relationship with the relatives of the deceased was not bad. That the deceased used to eat in her house. She denied having a grudge with Elizabeth Chianjoka. She confirmed that his son and the deceased had a problem as deceased used to tell him not to harvest his macadamia nuts. It was her testimony that he was not aware that her son used to steal the macadamia nuts belonging to the deceased. She was aware of the report of theft made on 23rd June 2019 and warned his son Erick not to steal. She denied threatening to kill the deceased. S he stated that the testimony by her mother-in-law that she threatened to kill the deceased was a frame up. After that issue, she did not go back home as they demolished her house. She stated that she had no proof that she was beaten by the deceased prior to making the report. She did not go to the police station as advised by the chief to pick her P3 form. Denied going to the son and then going to beat the deceased. denied knowledge of who beat the deceased. She stated that she last saw Erick in 2021 and does not know where he disappeared to.
Prosecution’s Submissions
17.The prosecution submitted that it had proved all the crucial ingredients for the offence of murder as laid out in the celebrated case of Republic –vs- Mohammed Dadi Kokane & 7 Others [2014] eKLR.
18.On the fact of death, the prosecution submitted that all the prosecution witnesses were in agreement that the deceased was murdered and that the same is not in doubt. On actus reus, it was the prosecution submission that through the evidence of PW1 to PW10, it was able to prove beyond reasonable doubt that it was the acts of the accused person and her son of beating the deceased with a wooden stick which resulted to the death of the deceased. On the final ingredient of mens rea, the prosecution submitted that considering the weapons (wooden stick) used by the accused person to attack the deceased, malice aforethought can be inferred and was indeed established.
19.It was thus the prosecution’s submission that it had proved its case beyond reasonable doubt and thus urged this Court to find so and proceed to convict the accused and accord them the sentence provided by law for the offence of murder.
Accused’s Submissions
20.On the other hand, the accused submitted that the prosecution did not prove the ingredients which constitute the offence of murder as contained in Section 203 of the Penal Code.
21.In his submissions on behalf of the accused, Counsel for the accused went ahead to attack the testimonies of the witnesses. He stated that the testimony of PW2 indicates that the witness was not at the scene. That the testimony of PW2 did not link the accused person with hitting the deceased. That PW3 did not state the name of the man she found holding a stick while the deceased was lying lifelessly. That the evidence of PW4 that she saw the accused holding a panga contradicted the version of all other witnesses who stated that the weapon used for murder was a stick. That the testimony of PW6 that what lead to the death of the deceased was the stealing of or fighting over macadamia was not supported by evidence. That the Chief of Mukuuni sub location did not give a reason as to why he refused to assist the accused when she went to his office and made a report of an assault on the material day. The accused further stated that the prosecution failed to clarify whether the incident took place at a bar or hotel and that the owner of the hotel or bar was not called to testify. That apart from Farida who stated that she saw the accused holding a panga, no single witness attempted to link the accused person with a crime. The accused submitted that the prosecution failed to call material witnesses in their case and they should therefore infer that had they been called. Their evidence would have been adverse. The defence did not however indicated who these witnesses were.
22.For the above reasons, it was thus submission made on behalf of the accused that the prosecution failed to prove their case against her. It was her case that the accused had gone to report her assault incidence to the chief at the time the deceased was murdered. The accused finally stated that the prosecution fixed the accused person after failing to pursue one Erick Mukundi who is alleged to have committed the offence and had a commotion with the deceased. She thus submitted that the accused should be acquitted.I have considered all the evidence adduced, the defence of the accused and the submission. I will proceed to analyze the issued for determination.
Issues for determination
23.The accused herein is accused of murder. The ingredients of murder are contained under Section 203 of the Penal Code. From the ingredients provided therein, the main issues that arise for determination of guilt or otherwise of the deceased are:a.Whether there is proof of the fact and cause of death of the deceased.b.Whether the accused caused the death of the deceased, and if so,c.Whether the accused had the requisite mens rea.d.Whether the defence of alibi adduced by the accused can stand.Analysis of Issuesa.Proof of the fact and cause of death of the deceased
24.There is not dispute from the evidence of both the prosecution and the defence that the deceased died. The cause of his death was according to PW1 was cardio pulmonary arrest due to severe head injury secondary to massive trauma caused by blunt object. The prosecution thus sufficiently proved the death of the deceased and its cause. There is no doubt that the deceased died as a result of the injury he sustained in the manner testified by witnesses as analyzed above.b.Whether the accused caused the death of the deceased- Actus ReusActus Reus is “the voluntary and wrongful act or omission that constitutes the physical components of a crime”, see New Websters New World Law Dictionary definition.
25.It is trite that the onus lays with the prosecution to prove that the death of the deceased was caused by the accused. The prosecution has the burden to prove that the accused is criminally liable for the act leading to the death of deceased. The prosecution is under a duty to prove that the accused is guilty of a wrongful act or omission which resulted in the death of deceased. I have considered the evidence tendered by all 10 (ten) prosecution witnesses who came before this court in this matter. Several of them placed the accused at the scene of the crime.
26.PW2 stated that he saw the accused behind the hotel at the time that the deceased was hit. The owner of the hotel also interacted with the accused at the scene. While the accused submitted that the owner of the bar or hotel did not testify. From the record, PW3 was the owner of the bar and he did testify. The accused wrongfully referred to him as Elizabeth Mutegi Ngai but the record is clear that PW3 was Elishaphan Mutegi Ngai. The owner of the said hotel which was known as Galilee.
27.PW3 responded to screams from the hotel and found a young man holding a stick and a panga. It was PW3’s testimony that the accused was standing there as the deceased was lying on the ground. PW4 and PW5 corroborated PW3’s testimony that when the deceased was hit and PW3 responded to the screams, PW3 asked the accused person why they had decided to kill the deceased at his place. These were eye witnesses who were at the scene and gave consistent evidence that the accused was present at the scene when the deceased was fatally hit on the head.
28.According to PW7, the accused went to his office to report the incident of an alleged assault on her at around 10.00 a.m. and at around 1.00 p.m., he received the news that the deceased had been hit. On the other hand, PW6 stated that she saw the accused going to pick Erick on the material day. That Erick Mukundi was living in a house in PW6’s homestead. She stated that she saw the accused and Erick going away but did not see them carrying anything.
29.At the scene of the crime, PW2 saw the accused’s son holding a club while PW3, PW4, and PW5 all testified that they saw the accused’s son was holding a stick and a panga. The deceased was hit with a stick as per the evidence of PW2, PW3, PW4 and PW5. From the testimonies of PW2, PW3, PW4, PW5, PW6 and PW7, it can be inferred that after the accused left PW7’s office, she proceeded to his son’s house and they left for Galilee hotel, the scene of the crime. Erick, the accused’s son, then hit the deceased with the murder weapon, which was a stick. The accused upon being cross-examined by the prosecution stated that she had no grudges with the witnesses. This being the case, there can be no doubt that they gave an account of what they saw and their testimony is not tainted in anyway. The submission that the chief did not assist the accused is not sound. The chief gave her the right that such matter should be reported to the police, this she never did.
31.Section 21 of the Penal Code on the other hand provides that:
32.Section 21 of the Penal Code therefore recognizes the act being complained must be executed in furtherance of common intention. The doctrine of common intention was observed in the cases of Rex v Kyeyane Mikaeri & Others {1941} 8 EACA 84and Rex v Tabulayenka s/o Kirya& 3 others {1943} 10 EACA 51, where the courts stated that:
33.The doctrine of common intention therefore enables the imposition of the criminal liability on persons who participate in a crime in the same way as that of the person who actually perpetrated the crime. From the facts and evidence adduced in this case, the accused and her son formed the common intention of injuring or killing the deceased as testified by PW6. The prosecution thus proved beyond reasonable doubt that the accused was involved in the acts committed by her son on the material day, which act was not only dangerous and unlawful, but resulted in the death of the deceased. The accused and her son were on a mission to avenge the alleged beating of accused by the deceased and disputes over macadamia nuts.c.Whether the accused had the requisite mens rea
34.The prosecution in this case had a duty to prove malice aforethought on any of the circumstances stated under Section 206 of the Penal Code. Section 206 of the Penal Code defines malice aforethought as follows:
35.What can be deduced from Section 206 (a) to (e) of the Penal Code is that malice aforethought can be either direct or indirect depending on the facts of each case at the trial. The Court of Appeal in the case of Bonaya Tutu Ipu & another v Republic [2015] eKLR stated as follows:
36.In the case of Republic v Tubere S/O Ochen [1945] 12 EACA 63 the court held that an inference of malice aforethought can be established by considering the nature of the weapon used in causing death, the number of injuries inflicted upon the victim, the part of the body where such injury was inflicted, the manner in which the weapon was used, and the conduct of the accused before, during and after the attack. See Ogeto –v- Republic (2004) 2 KLR Court of Appeal where the court held that by dint of Section 206 (a) of the Penal Code, Malice aforethought is deemed to be established by evidence showing an intention to cause a grievous harm and the same would be inferred from the facts, by the acts of stabbing the deceased on the chest with a knife.
37.From the testimonies of PW2, PW3, PW4, PW5, PW6 and PW7, it is clear that the accused’s son, Erick, hit the deceased with a stick which was produced in court as P.Exhibit 1. On cross-examination, PW4 stated that Erick hit the deceased and while the deceased was on the ground, he kicked him. PW1 stated that on examination of the deceased’s body, he found that internally, there was a fractured skull and massive bleeding.
38.According to PW6, the accused and the deceased were not in good terms as they had a dispute over the macadamia nut trees which belonged to the deceased. That Erick and his mother had threatened to kill the deceased many times and had tried to poison him in the month of June that same year. PW7 corroborated PW6’s testimony that the relationship between the accused and the deceased was not good as he used to complain that his son Erick used to steal his macadamia nuts and had reported the matter twice.
39.On cross examination, PW8 stated that the murder weapon recovered did not have blood stains and that the scene had not been secured. The accused brought this up in his submissions in an attempt to attack the prosecution’s case. Despite the absence of blood stains on the murder weapon, the same was identified by PW2, PW3, PW4, and PW5 as the weapon used to hit the deceased. Considering the weapon used to hit the deceased, the injuries suffered by the deceased that turned out to be fatal, as well as the testimony of there being bad blood between the accused’s son and the deceased, it is my view that the prosecution proved malice aforethought on the part of the accused person. The final question then is whether the defence of alibi as adduced by the accused person can stand.
The defence of alibi
40.In her defence, the accused seemed to raise the defence of alibi. In the case of Mwaura V Republic [1980] KLR 127 the Court of appeal held that: -
41.In this case, it was the accused submission that she was away to report to the chief the incidence that she had been hit on the face at the time that the killing of the deceased took place. While the chief (PW7) did confirm that the accused indeed went to report the alleged assault incidence on the material day, it was PW7’s testimony, as noted herein above, that the accused went to his office at 10.00 a.m. and he advised her to go to Chuka Police Station to report. The accused admitted during cross-examination that she did not report to the police. According to PW7, he received the news that the deceased had been hit at around 1.00 p.m. The timelines given are a clear indication that after leaving the chief’s office, she proceeded to the scene of the crime. As such, it is my view that the alibi defence cannot stand. Furthermore evidence by eye witnesses is that the accused was at the scene of murder with her son. This evidence was no doubt overwhelming and properly placed the accused at the scene.For the reasons stated above, I hold that the prosecution discharged its onerous burden to prove the charge against the accused person beyond any reasonable doubts. I according find her guilty of the offence of murder under Section 203 as read with Section 204 of the Penal Code and convict her under Section 322 of the Criminal Procedure Code.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 17TH DAY OF NOVEMBER 2022.L.W. GITARIJUDGE17/11/2022The Judgment has been read out in open court.L.W. GITARIJUDGE17/11/2022SENTENCEI note that the seriousness of this matter cannot be over emphasized. The accused instead of advising her child not to be involved with this crime with a close member of the family encouraged him to commit this heinous crime. This must be discouraged. Though I have noted the mitigation, I find that a custodial sentence is called for. This is an offence which carries a maximum sentence of death. I will however consider a custodial sentence. The accused is sentenced to serve eighteen (18) years imprisonment. Right of Appeal within 14 days explained. The sentence shall be reduced by the period between 6/8/2019 to 13/7/2020 the period spent in remand before she was admitted to bail.L.W. GITARIJUDGE17/11/2022
