|Criminal Appeal 303 of 2007
|Josiah Mwai Muya v Republic
|08 Apr 2011
|Court of Appeal at Nairobi
|Riaga Samuel Cornelius Omolo, Erastus Mwaniki Githinji, Joseph Gregory Nyamu
|Josiah Mwai Muya v Republic  eKLR
|(Appeal from a judgment of the High Court of Kenya at Nairobi (Ombija, J) dated 31st August, 2006 In H.C. Cr. C. No. 163 of 2003)
|History Docket No:
|H.C. Cr. C.163 of 2003
|Nicholas Randa Owano Ombija
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
From the recorded evidence, there was no doubt that early in the morning of 24th October, 2002, the children in the appellant’s home were woken up at about 5.30 a.m. to find a building used as the family kitchen on fire. The appellant who was a shop-keeper at Githunguri shopping centre was apparently not at home. The sons and daughters, after putting out the fire, left to go and report the matter at the local Police Station but they first went to the shop and found the appellant there. The appellant accompanied the children to the Police Station and when the party returned to the appellant’s homestead, the deceased was found burnt in the kitchen. Her body was lying on what was called a “bench” with her head in a pan containing some liquid and her legs on a stool. According to retired Chief Inspector of Police, Samuel Mukiri Gathu (PW13) the room in which the body was found was smelling petrol. John Kibuthi (PW14), a Government Analyst subsequently found that the various types of liquid collected from the room contained diesel, an inflammable petroleum product. In these circumstances, one would have naturally assumed that the cause of death was the 95% burns Dr. Maundu found on the body of the deceased during the post-mortem. Dr. Maundu was apparently not available to testify and his report was produced in the trial by Dr. Njue Moses (PW8) who had worked with Dr. Maundu and was familiar with his signature. According to Dr. Maundu, the cause of death was due to head injury resulting in a fracture of the skull and brain haemorrhage extradurally. According to Dr. Maundu the 95% burns occurred after death. From the evidence of the doctor and the position in which the body was found lying, i.e. on the back with the head inside a pan and the legs on a stool, the logical inference to draw and which the learned Judge did draw, was that someone killed the deceased by hitting her on the head and then set the building on fire to cover-up the killing.
As was correctly appreciated by the trial Judge and the assessors the evidence regarding who had killed the deceased was entirely circumstantial. No-one ever saw the appellant kill his wife and the three assessors were unanimous that the Republic had not proved beyond reasonable doubt that it was the appellant who did kill his wife. The learned Judge , however, was of a different view, found the charge proved as required by law, convicted the appellant and duly sentenced him to death. The appellant now appeals to the Court.
The law regarding the use of circumstantial evidence as a basis for a conviction is now well settled – see DHALAY VS. REPUBLIC, [1995 -1998] 1 EA 29.
It must be such evidence which irresistibly points at the person accused as the exclusive perpetrator of the crime charged and with no other co-existing circumstances which would weaken such a conclusion.
The important thing to note here is that the appellant and the deceased were living in the same house. In his statutory statement the appellant said nothing about where his wife slept that night and it is reasonable to assume, as the learned trial Judge did, that, the deceased and the appellant had slept in the same bed-room. According to him, he woke up at about 4.00 a.m. and went to the shop. He was silent as to whether the wife was in the room or had left for the kitchen. Joseph Ng'ang'a Mwangi (PW3) was the brother of the deceased and was informed at around 6.30 a.m. about the incident at the appellant’s home. He went to the appellant’s home and after seeing the body of his sister naturally sought an explanation from the appellant. Listen to him narrate what he said the appellant told him:-
“I asked the accused what the problem was. Accused told me to go to the kitchen and see for myself. I identified the body of Rose Wanjiku Mwai. I then went back to the house and got full briefing from accused. Accused told me that when he came home the previous night (sic) he went to the sitting room and relaxed on the chair. Then when he felt sleepy then (sic) he went to sleep until morning. He woke up in the morning and went to open the shop. That while at the shop her children came to inform him of the burning body at the kitchen in her home. He told me that when he reached home he did not find her in the house. That he only heard a bang at the kitchen door while relaxing in the sitting room. That he thought it was his wife. He said that his wife usually woke up in the morning to warm up water for milking the cows. He claimed that may be the deceased was burnt in the process of lighting the fire. I asked him if they had quarreled the previous day and he answered in the negative. I asked for the mobile telephone of the deceased to trace what calls may have been made before her death. May be there was somebody who told her bad things that made her to commit suicide. Accused said if the phone was useful it should be traced. Mbugua Mwai tried to get the phone in the house without success. Accused advised Mbugua to look even under the bed but it was not found. Accused said may be the deceased took the phone for charging at caster place shop where we went looking for a vehicle to take the body to the mortuary.
One thing is certain and that is that the two sons of the appellant, Josiah (PW1) and Samuel (PW2) suspected their father to have been involved in the death of their mother. Again, listen to the testimony of Samuel:-
“Once the body left for the mortuary, I thought the vehicle should be opened since I saw a knife at the dash-board. I used a wire to open the cabin. I suspected the knife had been used in killing my mother. My mother and father were not in good terms. My suspicion increased when the mobile telephone of my mother was found in the Peugeot belonging to my father.”
The learned trial Judge rejected the suggestion that the deceased might have committed suicide; we also reject that theory as it is wholly inconsistent with the fact that the deceased died from a head injury and that the burns on her body were inflicted after she had died. Mrs. Rashid, learned counsel for the appellant, also suggested before us that a former house-maid of the deceased who had been imprisoned on the complaint of the deceased could have committed the murder as an act of revenge. There was absolutely no iota of evidence that the maid was ever seen in the vicinity either on that day or prior to the day of the killing or on any other day at all. We reject that theory as it is not supported by any evidence at all. If the maid had committed the offence there would have been no reason for the appellant to hide the presence of the deceased’s telephone in his vehicle.
We repeat that no-one ever saw the appellant kill the deceased and the evidence against him was wholly circumstantial. But on our own consideration of the recorded word, we are fully satisfied that the circumstantial evidence pointed exclusively at the appellant as the killer of his wife and that there are [were] no co-existing circumstances which would remotely weaken the circumstantial evidence adduced by the Republic in support of the charge of murder brought against him. The learned trial Judge was fully justified in rejecting the unanimous advice of the assessors that the appellant was not guilty as charged. His guilt was proved beyond any reasonable doubt and we accordingly reject his appeal against the conviction.
I certify that this is a true copy of the original.