Case ID:201748

Republic v Kamau (Criminal Case 2 of 2014) [2022] KEHC 12589 (KLR) (16 March 2022) (Judgment)

Case Metadata

Case Number:

Criminal Case 2 of 2014

Parties:

Republic v Kamau

Date Delivered:

16 Mar 2022

Case Class:

Court:

High Court at Kerugoya

Case Action:

Judgment

Judge(s):

Lucy Waruguru Gitari

Citation:

Republic v Kamau (Criminal Case 2 of 2014) [2022] KEHC 12589 (KLR) (16 March 2022) (Judgment)

Court Division:

Criminal

County:

Kirinyaga

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 Kamau (Criminal Case 2 of 2014) [2022] KEHC 12589 (KLR) (16 March 2022) (Judgment)

Neutral citation:

[2022] KEHC 12589 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Case 2 of 2014

LW Gitari, J

March 16, 2022

Between

Republic

Prosecution

and

Stephen Chomba Kamau

Accused

Judgment

1.

The accused person herein is charged with murder contrary to Section 203 as read with Section 204 of the

Penal Code

vide information dated January 16, 2014 and filed on the same date.

2.

It was alleged that on January 1, 2014 at Kaaraini village within Kirinyaga County, the accused unlawfully murdered one Simon Macharia Kamau.

3.

The accused was arraigned in court on January 31, 2014 when the charge was read to him, and he denied committing the offence.

4.

The matter proceeded to full trial with the prosecution calling a total of eight (8) witnesses in efforts to prove the charge against the accused.

Prosecution’s Case

5.

PW1 was Jacinta Wamaitha Muriithi, the mother to both the accused person and the deceased. She recalled that on the material day at around 6 pm. she was at home inside the kitchen. The accused came and started confronting his brother, the deceased, about a fence that he had put up near a water tap but which had been allegedly destroyed. According to PW1, the deceased told the accused that it was PW1 who destroyed the fence. A confrontation then ensued between the deceased and the accused and that is when the accused took a knife and stabbed the deceased on the side of his ribs. PW1 held the deceased after he was stabbed and called one Karanja (PW3) to assist her. they then took the deceased to hospital – Mt Kenya Nursing Home – where the deceased was pronounced dead on arrival.

6.

PW2 was Caroline Waruguru Mwangi, the wife to Geoffrey Karanja Kamau who is a brother to both the accused and the deceased. She recalled that on the material day, she was at home in Karaine with her husband, the deceased and her mother-in-law (PW1). She had removed utensils outside in order to clean them. She then went inside the house to get more utensils. After a few minutes, she heard some noise. She went to find out what had transpired and found PW1 holding the deceased who was bleeding from the side of his chest and vomiting blood. They screamed for help and some people came to their aid. Some people gave a chase after the accused who was going down a tea plantation while PW1 and PW2 made arrangements to have the deceased get to hospital. According to PW2, the accused used a knife to stab the deceased, which knife was part of her utensils.

7.

PW3 was Geoffrey Karanja Kamau, PW2’s husband and the younger brother to the accused and the deceased. He corroborated the evidence of PW1 and PW2 to the extent that he was at home on the material day at around 6 pm. He then heard his mother (PW1) screaming and when he went outside, he found her holding the deceased who was bleeding profusely from his chest. PW3 recalled meeting the accused earlier on the material day. The accused bought beer for PW3 and his cousin Muriuki. The two were drinking Muratina. He recognized the knife used to stab the deceased as he had bought it on that day to slaughter chicken.

8.

PW4 was Dr Kenneth Munyi, a medical officer attached to Kerugoya Hospital. He produced in evidence the postmortem form that was filled after the examination of the deceased’s body. It was his testimony that the only injury that he saw on external appearance was a cut on the right side of the deceased’s chest between the 3

rd

and 4

th

ribs. Internally, there was a puncture wound which had gone through the rib cage causing respiratory problems. There was also a cut on the upper robe lungs on the right side. He concluded that the cause of death was a collection of blood and air on the haemo and pneumo thorax.

9.

PW5 was Timothy Sankale Nderitu. He recalled that the accused came home drunk on the material day at around 5 pm. He corroborated the evidence of PW1, PW2, and PW3 that the accused started to abuse his mother (PW1) and when the deceased tried to intervene, the accused picked up a knife that was near and stabbed the deceased on the right side of the chest. PW5 witnessed the stabbing and he then went inside the house and got a panga. That is when the accused escaped from the scene and dropped the knife on his way.

10.

PW6 was PC Joseph Muiya, formerly attached at Kerugoya Police Station. He recalled that on the material day at around 8 pm, he received a call from the OCS Kerugoya Police Station, CIP Saidi Suli informing him of a murder report. He went to the police station, and they proceeded to the scene in the company of Sgt. Paul Ngei. On the way, they met people who had arrested the accused herein on suspicion of having killed his brother, the deceased. They picked the accused and proceeded to the scene.

11.

According to PW6, there were blood stains at the home, outside the house. The home had electricity and the lighting was sufficient. They then proceeded to Mount Kenya Hospital where they found the body of the deceased at the mortuary. He had a hole on the right side of the chest and blood was oozing from his mouth and nose. The accused was then arrested. the following day, photographs of the scene were taken by PC Mongare and scenes of crimes personnel from Embu. The murder weapon was then recovered about forty metres from the scene in a tea plantation. It had blood stains. The jacket of the deceased was also recovered and the same had blood stains. The body of the deceased was also photographed while at the mortuary. PW6 then recorded statements from the relatives of the deceased and took blood samples from the deceased and the accused for D.N.A. analysis by the government chemist. PW6 subsequently received a report from the government chemist which indicated that the blood stains on the knife and jacket matched the blood of the deceased.

12.

PW7 was Elizabeth Waithera Onyieko, an officer from the government chemist. On January 10, 2014, she received several items from PW7 with a request to examine the same for blood stains and the source of the blood stains. These items included:

i.

Exhibit Memo Form.

ii.

B1 – Blood in a bottle indicated deceased Simon Macharia Kamau.

iii.

B2 – A kitchen knife in a khaki envelop.

iv.

B3 - A light blue shirt in a khaki envelop indicated deceased Simon Macharia Kamau.

v.

D1 – A blood sample in a bottle indicated for accused Stephene Chomba Kamau.

13.

The knife was slightly stained while the shirt was heavily stained with human blood. On D.N.A. Analysis, PW8 found that the D.N.A. from the knife (B2) and shirt (B3) matched the blood sample of the deceased marked B1. She signed the report and produced it as P. Exhibit 5. On cross-examination, PW8 testified that the aforementioned items had no link with the blood of the accused.

14.

PW8 was PC Murimi Mucabi. He recalled that on January 2, 2014, while attached to the DCI Office Embu, he proceeded to the residence of John Kamau on request by the OCS Kerugoya, CIP Said to visit a scene of murder. He took photographs of the scene and proceeded to Mount Kenya Hopital where he took photographs of the body of the deceased. He produced the photographs as P Exhibits 6(a) – (i) and a certificate for the photographs as P Exhibit 7.

15.

The prosecution then closed its case and by a ruling of this court issued on June 8, 2021, the accused was put on his defence.

Defence Case

16.

The accused gave a sworn testimony in his defence. He adopted his statement dated June 11, 2021 as his evidence. He denied stabbing the deceased. It was his testimony that the incident date was a public holiday and at around 1 pm., he was at home with his brother, the deceased. They then went to the home John Njogu, who is their uncle. The said John Njogu used to prepare “muratina” (local brew) and they took muratina until 6 pm. According to him, they were all drank.

17.

The accused alleges that the deceased then asked the accused to take him to see his fiancée. Since it was getting cold, they passed by their home to pick sweaters. While there, he noted that a fence he had put up around water tap had been destroyed. He then found out that his mother is the one who had removed the fence and a quarrel ensued between them. The deceased then came outside from their mother’s house and the accused, and the deceased started quarrelling. According to the accused, he started fighting with the deceased and he hit the deceased causing him to fall. The accused then ran away after he saw the deceased had fallen. PW5 started chasing the accused while armed with a panga and saying that the accused had killed the deceased with a knife. PW5 caught up with the accused just when neighbours had started gathering and the crowd arrested the accused by tying him with ropes before handing him over to the police.

Issues for determination

18.

This being a murder case, the main issues for determination by this court:

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 acts of the accused, resulting in the deceased’s death, qualify as murder (intentional killing)

Analysis

19.

Section 203 of the

Penal Code

(Chapter 63 of the Laws of Kenya) defines the offence of murder and requires proof of the following if the offence of murder is to be established:

a.

death of the deceased,

b.

the cause of the death and an unlawful act or omission on the part of the accused resulting in the death of the deceased,

c.

malice aforethought on the part of the accused.

Proof of the fact and cause of the death of the deceased

20.

Save for PW7, Elizabeth Waithera Onyieko, all the other prosecution witnesses saw the lifeless body of the deceased on various dates. Their testimonies are therefore sufficient proof that the deceased died.

21.

The cause of the deceased’s death was confirmed by the evidence of PW4 who testified that after examining the body of the deceased, he concluded that the cause of his death was haemo and pneumothorax.

Proof that the accused committed the unlawful act that led to death of the deceased

22.

In the case of

Kiragu v Republic

[1985] eKLR the Court of Appeal held that:

“

It is trite law that subject to certain well known exceptions a fact may be proved by the testimony of a single witness however in exercise of its duty this Court has to satisfy itself that in all the circumstances of the case, it is safe to act upon it.”

23.

In the case of

Abdala bin Wendo and another v R

(1953) 20 EACA166 the court expressed itself as follows on the issue of a fact being proved by the testimony of a single witness.

“

Subject to certain well known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safety be accepted as free from the possibility of error.”

24.

In this case, while there were several people around the home where the deceased was killed, PW5 was the only eyewitness who saw the accused person stabbing the deceased. PW1 came from the house to the scene after the deceased was stabbed. She then held the deceased and started screaming and that is when the PW2 and PW3 arrived at the scene. PW2 and PW3 identified the knife that was recovered as the murder weapon. They had used it earlier to slaughter chicken and PW2 had placed it outside together with other utensils as she was in the process of washing the utensils. The testimonies of PW1, PW2, PW3 and PW5 squarely places the accused at the scene of the crime. All of the said witnesses also had heard the accused and the deceased quarrelling just moments before the deceased was stabbed to death. In addition, the accused in his defence did not deny the fact that had a quarrel with deceased on the material day before he stabbed the deceased. In my view, while PW5 was the only eyewitness who saw the accused person inflicting fatal injuries on the deceased, the evidence of the other witnesses and in particular that of PW1 justify an inference of guilt on the part of the accused person as the person who committed the unlawful.

Whether the accused had malice aforethought

25.

Section 206 of the

Penal Code

defines malice aforethought 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.”

26.

It can be deduced from Section 206 (a) to (e) of the

Penal Code

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:

“

It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit v Uganda, Cr App No 95 of 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex v Tubere S/o Ochen (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:

“It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick…” ”

27.

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.

28.

In the present case, it was the testimonies of PW1 and PW5 that the accused arrived home on the material day and started abusing his mother (PW1) over a fence which he had built but had been destroyed. This was not the first time that he had abused his mother when he was drank and the deceased would intervene and try to stop the accused.

29.

PW1 also testified on cross-examination that the accused kept complaining that the deceased was being favoured more than him. PW2 corroborated PW1’s testimony. She also recalled that the accused went home on 29

th

December 2013 and started abusing her mother (PW1) saying “wewe ni mjinga sana”. The deceased intervened and stopped the accused from abusing PW1. The accused then threatened the deceased. This was only a few days prior to the incident date herein. PW2 further testified that the relationship between the deceased and the accused was rocky as they used to quarrel a lot concerning some tea bushes that PW1 had given to the deceased to the exclusion of the accused.

30.

In my view, when the accused took a knife and stabbed the deceased on his chest, he must have known that his actions would cause death or grievous harm to the deceased. Considering the injury that the deceased suffered, iI come to the conclusion that the prosecution sufficiently proved that the accused had malice aforethought to kill his brother, the deceased herein.

Conclusion

31.

The upshot of the foregoing, is that the prosecution proved its case against the accused person to the requisite standard of beyond any reasonable doubt. I therefore find the accused person guilty as charged and I convict him under Section 322 of

Criminal Procedure Code

.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 16

TH

DAY OF MARCH 2022.

L.W. GITARI

JUDGE

SENTENCE

:

I have considered the mitigation by the accused. I note that this offence is serious. The victim is a brother of the accused. The family is still bitter and are not ready to accept the accused for now. The probation officer has stated that a none custodial sentence is not suitable. Time heals and it is expected that by the time the accused goes back to the society the family will have healed and will be willing to receive him back.

Taking this into consideration and noting that this is an offence which attracts a maximum sentence of death penalty, I sentence the accused to serve twenty (20) years imprisonment. The sentence to run from 16/1/2014 when the accused was placed in custody to await trial and this will reduce the sentence by the period he has been in custody.

Right of Appeal 14 days.

L W. GITARI

JUDGE

5/8/2022