Case ID:201383

Republic v Kuria (Criminal Case 5 of 2017) [2022] KEHC 12386 (KLR) (9 June 2022) (Judgment)

Case Metadata

Case Number:

Criminal Case 5 of 2017

Parties:

Republic v Kuria

Date Delivered:

09 Jun 2022

Case Class:

Court:

High Court at Kiambu

Case Action:

Judgment

Judge(s):

Mary Muhanji Kasango

Citation:

Republic v Kuria (Criminal Case 5 of 2017) [2022] KEHC 12386 (KLR) (9 June 2022) (Judgment)

Advocates:

Kasyoka for State, Mr. Njehu for Accused

County:

Kiambu

Advocates:

Kasyoka for State, Mr. Njehu for Accused

Disclaimer:

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

Republic v Kuria (Criminal Case 5 of 2017) [2022] KEHC 12386 (KLR) (9 June 2022) (Judgment)

Neutral citation:

[2022] KEHC 12386 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Case 5 of 2017

MM Kasango, J

June 9, 2022

Between

Republic

Prosecution

and

Josephine Njeri Kuria

Accused

Judgment

1.

Josephine Njeri Kuria, the accused faces the charge of murder. She is charged with murder of Moses Mwangi Gathitu, deceased. She pleaded not guilty to that offence. The prosecution called 7 witnesses and on the accused being called upon to offer her defence, as provided under Section 306 of

Criminal Procedure Code

, she elected to tender a defence under oath.

2.

The background of this case is that the accused and deceased co-existed as husband and wife for a period of 3 years. No evidence was tendered to show that their marriage was solemnized under any system of marriage. It was a case of “come we stay” save that there was evidence that the deceased’s parents had visited the accused’s family to inform them of that co-habitation. On the fateful day, 15

th

January, 2017, while at their one roomed home, the accused stabbed the deceased twice, once at the chest and once on his back. She stabbed him using two different kitchen knives. Theirs was a troubled marriage.

3.

After stabbing him, the accused left their home, leaving deceased with the two knives imbedded in him. The deceased was able to make a phone call to his uncle, Benjamin Kimani (PW6). His uncle called the deceased’s cousin, Joshua Musyoka Mwangi, (PW4) and that cousin went to deceased’s house. On arriving, the cousin found deceased with a knife imbedded in his chest and another imbedded in his back. That cousin was able to remove the knife on deceased’s chest but was unable to remove the knife on his back.

4.

What led to the stabbing of deceased was not witnessed by anyone. The accused in her sworn defence narrated of frequent physical and verbal abuse she suffered in the hands of the deceased. On the subject day, the accused stated that the deceased renewed his earlier demand that she should leave their home. The accused described how the deceased began to strangle her saying he did not want her. As the deceased strangled her near the sink, the accused got hold of a knife and stabbed the deceased on his back. The accused’s evidence is that deceased continued holding on her neck with force, while saying he would be the one to kill her first. The accused got hold of a knife and stabbed deceased on the chest.

5.

Section 203 of the

Penal Code

provides:-

“

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

6.

That Section reveals the following ingredients of murder which must be proved as follows:-

a)

The fact of the death of the deceased.

b)

The cause of such death.

c)

Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused person.

d)

Proof that the said unlawful act or omission was committed with malice aforethought.

7.

Doctor Francis Maina Ndiangui, PW1 performed the post-mortem of the deceased’s body on 21

st

January, 2017. The doctor confirmed the deceased’s death and stated that death was due to:-

“

Hypovolemic shock due to stab wound into the chest.”

8.

The fact and cause of death were therefore proved by the prosecution.

9.

Was that death caused as a result of unlawful act or omission of the accused?

10.

The accused confirmed she stabbed the deceased twice with two different knives. Indeed, the first knife she stabbed the deceased with was left embedded in deceased’s back as the accused stabbed him with another knife on his chest. There is therefore no doubt that the deceased met his death by the unlawful act of the accused that is the act of stabbing. That finding leaves this Court with the task of determining whether the said unlawful act by the accused was committed with malice aforethought.

11.

Section 206 of the

Penal Code

provides what is deemed as the presence of malice aforethought. The Section, in the relevant part to this case is in the following terms:-

“

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, 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;”

12.

What the above Section provides is that the act by which death is caused must be attended by the state of mind that is, malice aforethought.

13.

The deceased’s father Ephantus Gathitu Kimani painted a picture of a turbulent marriage of the deceased and the accused. This is what he stated:-

“

There was conflict between the accused and deceased and one time I had to return the accused to her family with elders. At that time, the deceased had complained that he had been assaulted by accused.”

14.

Deceased’s father later clarified while being cross-examined that the time he and elders returned accused to her parent’s home signifying a break up of that relationship was because the accused had stabbed the deceased, though not fatally.

15.

The accused, by her defence stated that a week prior to the incident that led to deceased being stabbed by her, the deceased had asked her, the accused to leave their matrimonial home. She, the accused tried to forestall her being sent away from the matrimonial home by stating that she would go away once she met with other ladies of the ‘chama’ where she expected to receive money from them. The accused stated on another day before 15

th

January, 2017 a Sunday after receiving a call from a lady, the deceased wanted to go out. She hid his car key while asking him to spend time with her and their child. Accused also said she asked deceased where he was going. According to her, the deceased responded by saying it was none of her business. That deceased then said that he was going and he slapped her “for the first time”. She also said the deceased tried to injure her with uplifted stove. She avoided being hit by holding onto the stove but that left her with a cut to her finger. She stated deceased said:-

“

He would injure me and my people could do nothing to him.”

16.

The night before the fateful day, accused said deceased arrived home at 1.00 am. When they woke up in the morning, it would seem deceased was going to leave the house because accused said he told her that he did not want to find her in their house on his return. Accused stated:-

“

I held deceased on his foot and begged him to allow me to stay till 22

nd

.

When I said so he began to slap me. I did not let go his foot.”

17.

Accused stated the deceased did not listen to her plea but held her with a shoulder grip (kwa mabega) and threw her between the bed and the sink. On throwing her, the deceased went to where he had thrown her and continued hitting her. The accused described how the deceased began to strangle her and as he did so, he pushed her to the sink. The accused’s evidence is that:-

“

I then putting my hands behind I held what was nearest to me, it was a knife. I asked him to let me go.”

18.

According to the accused, deceased did not listen to her and she therefore stabbed deceased on his back. Accused said the deceased looked startled “stuka”. But that he, the deceased then said:-

“

Njeri you want to kill me …

It is I who will kill you first.”

19.

The accused’s evidence is that she tried to hit the deceased with her hands and legs as the deceased was holding her neck. Accused said deceased was “kali sana asana” (very severe). That it was then accused got hold of another knife out of her unwashed dishes and stabbed deceased on the chest. Accused said:-

“

I did not know it was a knife. I just wanted to free myself.”

20.

The accused stated she left and took a “boda boda” (motorcycle) and went to Kasarani police station. She was later to be taken to Kimbo Police Station under which the jurisdiction of Githurai 45 fell. She informed the police that her husband was beating her and she stabbed him.

21.

The accused raised self-defence in her evidence.

22.

The Court of Appeal considered the applicability of self-defence in the case of

Lucy Mueni Mutava Vs. Republic

(2019) eKLR and stated:-

“

14.

Our position is further fortified by the case of Victor Nthiga Kiruthu & Another Vs. R[2017] eKLR wherein this Court while discussing self defence stated:-

“The principles that have emerged from these and other authorities are as follows:-

(i)

Self defence, as the term suggests, is defence of self. It is the use of force or threat to use force to defend one self, one’s family or ones property from a real or threatened attack. Self defence is therefore a justification in the application of force recognized by the common law.

(ii)

The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self defence if he or she believes that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonable.

(iii)

It is not necessary, however, for there to be an actual attack in progress before the accused may use force in self defence. It is sufficient if he apprehends an attack and uses force to prevent it.

(iv)

The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must be of a nature which could not reasonably be met by mere pacific means.

(v)

What amounts to reasonable force is a matter of fact to be determined from evidence and the circumstances of each case.” “[Emphasis added]”

23.

Did the accused use reasonable force or did she apprehend danger which was sufficiently specific or imminent to justify her action?

24.

The first incident of stabbing of the deceased according to the accused was to the back of deceased. The accused stated the deceased asked her to leave their matrimonial home. Accused described deceased hitting her and strangling her near their sink.

25.

I have considered that evidence. The accused for the first time talked of a sink in the single room she resided with the deceased. The scenes of crime police officer IP Paul Njihia Karung’o photographed that room. In cross examination of that police officer, no questions were put to him of the existence of a sink in that single room. I have looked at photograph NO. 4 of that scene of crime. It is described as, “General view Photograph of the inside of the single room showing disorganization therein.” In that photograph, there is a partial view of a bed, full view of a wall unit and partial view of a sofa seat. In the center of the room, one sees a gas cooker, jerrican water containers and utensils in a plastic box. This officer after producing the photographs in evidence, he was not cross examined on the existence or otherwise of a sink. In his evidence, the scenes of crime police officer stated the blood stains were on the bed sheets. There was no evidence of blood elsewhere in the room. Certainly, no evidence was adduced by that police of a sink.

26.

It would follow that accused’s evidence that the deceased pinned her to a sink in that room as he hit her and strangled her is not supported by the cross-examination of either the scenes of crime police officer or the investigating officer. It follows that I find and hold that the mention of a sink in that single room was an afterthought by the accused. The utensils of that home, as seen in photograph No. 4 are in the middle and in between the bed and the sofa seat. The question that still lingers is; did the accused use reasonable force in stabbing deceased?

27.

When accused stabbed the deceased on his back, she said deceased looked startled. Why did she not use that opportunity of the startled deceased to escape or get her neighbour’s assistance?

28.

Accused said deceased who had a knife imbedded on his back went to her with force and threatened to kill her. Accused did not specify how this second time deceased tried to kill her. She simply stated she tried to hit deceased with her hands and legs trying to free herself. Without being specific where the second knife was, accused said she got hold of the second knife and stabbed deceased on his chest. The post-mortem report shows the stab wounds on deceased’s back was 2.5 cm. That was the first stabbing of deceased. The second stabbing of deceased on his chest is recorded by the doctor who performed the post-mortem to have been 4 cm long.

29.

There is no doubt the attack of deceased by the accused was extreme. It was vicious. My consideration of the evidence leads me to find that the accused did not use reasonable force to justify self-defence. It was excessive force.

30.

The accused alleged that the deceased began to strangle her, after she begged him to allow her remain at their home. If indeed the deceased’s grip on the accused’s neck was forceful, it does not explain what the accused stated led to the first stabbing. In her own words, accused said:-

“

He said he did not want me.

As he did so he was strangling me took me to the sink. I tried to stop him. I then putting my hands behind I held what was nearest to me, it was a knife.

I asked him to let me go.

Since he did not listen I returned [meaning stab] the knife to his back.”

31.

What is noteworthy is that the accused though being strangled, according to her, by deceased, she was able to speak to him when she said:-

“

I asked him to let me go.”

32.

It is expected that a stranglehold which would justify reaction of stabbing would be one which would not permit one to speak. If accused was able to speak to deceased asking him to let her go, it means she was breathing. Her breathing was not impaired by the hold by deceased. She was not in imminent danger.

33.

Further, the accused was asked in cross-examination why if indeed, deceased was attacking her, she did not run to her neighbours for help. She responded to that question by saying:-

“

I did not call a neighbour because I did not know neighbours.”

34.

Accused in saying so forgot that in her evidence in chief she spoke of having gotten money from her neighbours which she used to buy milk for tea. She stated in chief:-

“

I had no milk. My neighbour gave me money for milk.”

35.

There is also inconsistency in the evidence of accused and that represented by the photograph of deceased’s body. The second stabbing of the deceased was to the chest, which was 4 cm long. The scene of crime photograph No. 12 and 13 and the post-mortem report reveal the stab on the chest was space between the 3

rd

and 4

th

rib of the deceased. The question that arises is if indeed the deceased was in the process of strangling the accused, how accused create space between herself and deceased to stab the deceased on the chest at the space after the third rib.

36.

The defence raised by the accused does not displace the cogent and very sound evidence of the prosecution which was that due to turbulences in their marriage, and it would now seem from accused’s evidence the deceased wanted to end the relationship, the accused stabbed the deceased not once but twice. The second time stabbing was far deeper. Indeed, the doctor noted that the second stabbing was what caused the death of the deceased. It is because of the above that I find and hold that the accused Josephine Njeri Kuria, with malice aforethought caused the death of Moses Mwangi Gathitu (deceased). I therefore find the accused guilty of murder of the deceased and I accordingly convict her of the offence.

37.

I invite the counsel of the accused and the accused herself to present to court mitigation before sentencing. In the meanwhile, I order the accused to be remanded in custody.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 9TH DAY OF JUNE, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant: Mourice**

Accused: Josephine Njeri Kuria: - Present

For accused: - Mr. Njehu

For State :- Kasyoka

COURT

JUDGMENT

delivered virtually.**

MARY KASANGO

JUDGE