Benard Kungu Kariuki v Republic [2014] KECA 450 (KLR)

IN THE  COURT OF APPEAL

AT NAIROBI

(CORAM: MARAGA, WARSAME & G. B. M. KARIUKI, JJ.A)

CRIMINALAPPEAL NO 362  OF 2012

BETWEEN

BENARD KUNGU KARIUKI…………………………..………………...APPELLANT

AND

REPUBLIC……………………………………………………...……..RESPONDENT

(being  an  appeal from  the conviction and  sentence  of

the High Court of Kenya  at Nairobi (Ochieng, J.) dated

26thJanuary2012

in

H.C.Cr. A. 68 of 2008)

************

JUDGMENT OF THE COURT

The appellant, Benard Kung’u  Kariuki, was charged before the High Court of Kenya at Nairobi on a charge of murder, contrary to section 203 as read with section 204  of the Penal Code, Chapter 63 of the Laws of Kenya. In  particular, it was  charged that the appellant,  on the 19th  July 2008,  at Ndumberi  in  Kiambu  District  within  Central  Province, murdered  Denis Ng’ang’aWaithaka.

The facts so far as are material to this appeal are that on the material day the deceased was at the appellant’s house together with Lucy Wairimu Ng’ang’a(PW1), Martin Ngugi(PW2) and  Samuel Kibui(PW3), as well as other children.

PW1 testified that  she  and  her sister went to the appellant’s house after he called  them. The appellant then left and  went to check  whether his grandmother was in,  but he did  not find her. When  he came back,  he took out some  medicine which  he  gave  to the deceased,  PW2  and PW3. The appellant then told them to go and sleep at PW2’s house.  When they left the house,  the deceased begun  to vomit, and  he was  taken  to the hospital by her uncle  Kamau. PW2 and  PW3 were  taken  to the hospital as well, and PW1 went to her grandmother’s house.

PW2’s testimony was that on that fateful morning, he got up and went to the appellant’s house. The  appellant then  went and  told the deceased that  the other children  were  calling him. The appellant sent some  of  the children away,  and  told them that their grandmother wanted to send them to buy  soap. Four children  remained at the appellant’s house,  that is:  the deceased, PW1, PW2 and PW3. The deceased came to the appellant’s house with PW1.  The  appellant then  told the children  that he  would   give  them some medicine to clear their worms; this medicine, which looked  like milk, was drunk by the deceased, PW2 and  PW3. The appellant then washed  the cups and went away. The deceased then begun  to vomit and diarrhoea. PW2 alerted his  grandmother who called  Mr Kamau  (PW4) and the children were rushed to the hospital, where the deceased died.

PW3 is the appellant’s son. His testimony was that he and some other children were at their home when  the appellant went behind the house  and put some  medicine in  three cups.  He  then stirred  the medicine and  told him,  PW2 and the deceased to drink the medicine as it was for worms. After the three had drunk the medicine, the appellant washed  the cups  and  then took them to PW2’s house.  The appellant also  told the children  to go and sleep in PW2’s house  and then left for Ndumberi. After taking the medicine, the  deceased  begun   to  vomit  and   diarrhoea.  PW4  came  and   took  the deceased to the Kiambu District  Hospital, and  later  on,  some other people came and took PW2 and PW3 to the hospital.

Eluid Kamau Ng’ang’a, (PW4), on the fateful morning heard the appellant call out to the deceased. He had  been asleep  in his  house,  as he had  come from an overnight vigil. At about 10:00  am, PW4 was awoken  by screams. The screams caused him  to rush out of the house,  where he found the deceased lying  on  the ground and  salivating from the mouth. Around this time,  PW2 also  informed Margaret  Njeri(PW7) of  the incident,  who rushed  to the scene  to find  that  the deceased,  along  with  the other two children, were on the ground and  were vomiting.  PW4 rushed the children to the Kiambu District  Hospital, and  the deceased passed  on while  he was undergoing treatment.

Dr Peter MuriukiNdegwa(PW8) is  the pathologist who  conducted the post mortem examination on the deceased. PW8 observed that the body had  no physical injuries and  so he suspected  that the deceased had  been poisoned.  He  obtained specimens   of  the stomach and  its contents, blood and  kidney  samples  and  a liver  biopsy  from the body.  These samples  were sent to the Government  Chemist for a full toxicology.    He received  a full report  on  27th   August  2008.   The examination  results  showed   that  the specimens   contained the pesticide  Diazinol, and  an acaricide, Amitraz or Triatix, both of which if ingested by humans, were poisonous. From the test results, PW8 concluded that the cause of death was chemical poisoning due to the Diazinol and Amitrax.

The matter was investigated by PC Erastus Matwanga(PW9) who on the fateful  day received information from some members of the public that the appellant had  administered to the deceased a substance that  was  for deworming, but  turned  out  to be  poisonous.  PW9  went to the  Kiambu District Hospital where he found  that one of the children, the deceased, had died. PW9, along with the mother of the deceased and other members of the public,  went to the appellant’s house,  but  they failed  to recover  anything that could  be used  as an exhibit.  PW9 later  then  interviewed the surviving children, who  told him  that the appellant had  given them some deworming medicine.  PW2  and   PW3  also  confirmed  that  they  had   been  given  the medicine alongside  the deceased Denis. This evidence was also reiterated by

PW1 who testified that the appellant gave the deceased, PW3 and PW4 some medicine to drink.

That is a summary of the entire evidence that was adduced  by the prosecution.  The  trial  court formed the  opinion  that  there  was  enough evidence that warranted the placing of the appellant on his defence. The appellant  therefore  gave  an  unsworn  statement in  which  he  denied  the charge and put up a defence of alibi.  He testified that on the material night, he was at his place of work from 7:30am. He worked until  10:30  am when he  learnt of  the  incident,  and  that  is  what  prompted him   to go  to the hospital. He sat in  the waiting room of the hospital until  the doctor came out and told them that one of the children had passed away.

Johnson   Njuguna Kiruri(DW2)  on  his  part  testified  that  on  the material day, he was working as foreman at a construction site. He met the appellant on the site at about 7:30  am.  DW2  did leave  the site for a short period of time. At about 10:00  am, he heard people saying  that there were 3 children  who  had  been  taken  to hospital  after having   drunk poison.   He realised that two of the children were from the home of the appellant, so he told the appellant, and released him  to go home to check on the matter.

The  trial judge  evaluated  and  considered  the whole  evidence  by  the prosecution and the defence and concluded that the prosecution had proved its case beyond a reasonable doubt. In particular, the judge had this to say:

“… After analysing all the evidence  on record, I note   that  PW2   [is]   a   nephew   to  the  accused, whilst PW3  [is]  a  son to the accused.  They  lived within the same village, and  associated very closely.  Therefore, there was  absolutely no room whatsoever  of  mistaken  identification,  indeed, this  was   a   case   of  recognition.  Three   young children all saw  the accused  as  he  gave  to the deceased  and  also to PW2  and  PW3  some medicine.”

It is  based  on  this evidence  that  the trial  court found  the appellant guilty of murder, contrary to section 203 as read with 204 of the Penal code, convicted him  and sentenced him  to suffer death as provided in law.

The  appellant  now  comes  before  us.  As  this is  a  first appeal,   we remind  ourselves that  we are  under  a  duty  to  re­apprise the  evidence tendered before the trial court, and  make  our own independent conclusion, but bear in mind that we have  neither  seen nor heard the witnesses, and make  due allowance for that. This  is the duty of the first appellate court as spelt out  in Okeno  v  Republic [1972]  EA  32where it  was  held by  this

Court that:

“It is the duty ofa  first appellate court to reconsider  the  evidence,  evaluate it  itself  and draw  its  own  conclusions  in  deciding whether the  judgement  of  the   trial   court  should  be upheld.”

See  also  the  decision  of  this  Court  in   Josiah  Afuna  Angulu  v

Republic [2010] eKLR(Criminal AppealNo. 277 of 2006)where the Court held that:

“… it is our duty as the first appellate court to reassess  and   re­evaluate  such  evidence  and   to reach  our own independent conclusion in the matter.”

To sustain a charge of murder,  it is  essential  for the prosecution to show  that the accused person, with malice  aforethought, caused  the death of another person, by an unlawful act or omission.

Having  evaluated the evidence tendered by the prosecution, it is clear that the deceased died  of chemical poisoning. According to the report  from the Government Chemist and the examination conducted by PW8, there was Diazinol and Amitrax in the body of the deceased. These are chemicals used in  pest  control and  which are poisonous to human beings  if ingested. The cause of death is therefore chemical poisoning as a result of the consumption of the Diazinol and  Amitrax. This is borne out of the evidence of PW8, as well as the post mortem report produced in court.

The question that remains to be answered is the source of the said chemical poison.  Is there evidence that the deceased may have consumed chemicals left by his  mother or any other party? There is no doubt that the scene of the crime was the house of the appellant. Again,  there is ample and uncontroverted evidence there were about 8 children within  the homestead of  the appellant.  It is also  undisputed  that some  of  the children  did not consume  the said poison because they were sent away by the appellant.

One important point which must be addressed in determining whether it is the appellant who  administered the poison is the evidence  of his  son, PW3, who stated that on the morning of 19th  July 2008  the appellant went to call the deceased. When  the deceased came, they were putting up  cloths onto the seats at the appellant’s home. The deceased arrived with PW1, his sister. The appellant then told them that he wanted to give them medicine to clear their  worms. He gave this medicine to the deceased, PW2 and PW3. After that, the appellant went and washed the cups. After ingesting the medicine,  the  deceased begun   to  vomit  and   diarrhoea.  This  evidence remained consistent even after cross examination. The evidence of PW1 and PW3 was  similar.  That the appellant gave the children  some  medicine to drink, on  the pretext that  it  would  clear out their  worms. Afterwards, he washed the cups and took them to another house.

Mr Njanja, counsel for the appellant, relied on his  supplementary memorandum of appeal lodged in this Court on the 23rd  May 2014. The first ground brought by learned counsel was that the trial court erred in  relying on the uncorroborated and contradictory evidence of PW1, PW2 and PW3. In particular,   counsel  urged  that  this uncorroborated  evidence  was contradictory because PW1 stated  that   the  cups   that  were   used   to administer  the poison  were  blue, pink and colourless, whereas PW3 stated that the cups  used  were  blue  and  green.  Counsel further considers this a failure because the trial court did not warn itself as to whether these contradictions could raise  reasonable  doubt. On the  uncorroborated evidence,  Mr Njanja faulted the evidence as it ought not have been accepted in line with section 124 of the Evidence  Act.

Mr Njanja  also  took issue with  the voire direexamination, terming  it as very scant, and  submitted to us that the court ought to have done more in  determining  whether  the  minor  children had sufficient intelligence. Counsel submitted that the lack of adherence to section 19 of the Oaths and Declarations Act, as well as the violation of section 124 of the Evidence  Act is fatal.

Mr Monda,  opposing  the appeal on behalf  of the state, agreed that the evidence  of the minors required corroboration, but that this corroboration was found  in the evidence  of PW4, whose testimony was that he heard the voice  of the appellant as he called the deceased to his house.  In addition, there  was  further  corroboration  in   the  post  mortem  report  and   in   the evidence  of PW8 who  stated that the deceased died as a result  of chemical poisoning. It was therefore not coincidental that immediately the poison was administered that death occurred.

The relevant  portion of Section 124 of the Evidence Act, which requires the corroboration of evidence of minors in criminal cases provides as follows

“124.   Notwithstanding  theprovisionsof   the Oaths and  Statutory Declarations Act, where the evidence of a child of tender years  is admitted in accordance with  that  section  on  behalf  of  the prosecution  in proceedings  against  any   person for an  offence, the accused  shall not  be liable to be  convicted  unless  it  is corroborated by  other material evidence  in support thereof implicating him.”

In the  present  appeal,   PW1  was  nine   years  old  at  the  time  she testified.  PW2  was  eleven years old  and PW3  was  twelve  years  old.  A voiredireexamination,  in  accordance with  section 19  of  the  Oaths  and statutory  Declarations Act  was  conducted. In  Mr Njanja’s view,  the  voire direexamination was not sufficient. The nature of a voire direexamination was  discussed  by  this Court  in  Mohammed  v  Republic[2005] 2   KLR

138where it was held that

“…   in  conducting   a   voire    dire,  section   9(1) requires of the court to establish two matters, firstly, whether the child understands the nature of an oath.

If the courtcomes to that conclusion, then it proceeds  straight  away  to swear or  affirm the child and  to record  the evidence. Secondly, if the court is not  satisfied on the first test, it should express its opinion not  only that the child is possessed of sufficient intelligence to justify reception of the evidence,  but also understands the duty of telling  the truth,  before proceeding to record  the child’s evidence.”

The  fact that  the evidence  of  the three children  was  unsworn does not in  our mind render it valueless. The said  evidence  was admissible and credible.The trial court made a conscious decision to have the unsworn evidence  of the three children. This  decision was  arrived at after the trial court thoroughly examined the three children  and  formed the opinion that the children did not comprehend the meaning of an oath in compliance with section 19 of the Oaths and Statutory Declarations Act. The duty of the trial court is to inquire whether the child understands the nature of an oath or whether the child possesses sufficient intelligence to justify reception of the evidence. The trial court conducted a voire direexamination and found  that the  children were fit  to give unsworn  testimony. The  trial  court here discharged its duty successfully, and cannot be faulted.

It is a settled principle of law that where a child of tender years gives unsworn testimony, then that evidence  ought to be corroborated before the trial court can rely on it to sustain a conviction.

After  conducting  a  voire  direexamination,   then   the  court  must proceed in terms of section 124 of the Evidence  Act. See the further holding of the Court in Mohammed v Republic (supra)where it was held that:

“Whatever the findingmade  in the course  of the voire   dire   under  section   19,    the   Court  was required to proceed  to direct itself in accordance with section  124 of the Evidence  Act … meaning that  the Court had  to seek  corroboration of  the child’s evidence.”

This is embodied not only  in  the Evidence  Act, but also in  a long  line of  authorities  of  this Court, such as in John   Otieno  Oloo  v  Republic[2009] eKLR (Criminal Appeal 350 of 2008)where this Court stated that:

“… Evidence  of a child of tender years  not given on oath must in law be corroborated.”

It therefore follows  that the evidence of PW1, PW2 and PW3, because it was by minor children required corroboration, and we find  that the evidence was corroborated. The fact that PW4 heard the appellant call out to the deceased  to go into his  house corroborates the children’s  testimony that they went into the appellant’s house  that morning. This  voice identification of the appellant is acceptable because PW4 knew the appellant well, and therefore knew  his  voice well. Evidence  of voice identification is admissible.

In  Libambula v Republic  [2003] KLR  683the  Court  of  Appeal  held, regarding voice identification that:

“Evidence   of  voice   identification   is  receivable and  admissible in evidence  and  it can  be depending on the circumstances carry as much weight  as   visual  identification….  In  receiving such evidence, care  would be necessary  to ensure that  it  was   the  accused    person’s    voice   the witness  was  familiar with it, recognized  it and that  the conditions obtaining at  the time were such  that there was  no  mistake in testifying to that which was said and  who said it”

We therefore have no doubt that the appellant was correctly placed  as being the one who called the deceased to go to his house.

The evidence  of poisoning of the children  is also  corroborated by the medical evidence,  adduced by PW8, as well as the post mortem report that he produced in  evidence.  This evidence  was to the effect  that the cause  of death was due to chemical poisoning.

Even if we are wrong on this score, we find  that the circumstantial evidence linking the appellant to the commission of the crime was overwhelming. In  James  Mwangi v Republic [1983]  KLR  327, this Court held:­

“Ina case depending on circumstantial evidence, in order to justify the inference of guilt, the incriminating  facts  must be  incompatible  with the innocence  of the  accused,   the guilt  of any other person  and  incapable of explanation upon any other  reasonable  hypothesis   than  that  of guilt. In order to draw the inference of the accused’s guilt  from  circumstantial   evidence, there must be no other co­existing circumstances which would weaken or destroy the inference.”

As we have stated, it is clear that the children were in the home of the appellant, and shortly after they left his house,  they were outside, ill, having gotten sick from whatever it was that they ingested at the appellant’s house. It is  also  apparent  that  the  deceased  died  of  chemical  poisoning. The irresistible conclusion arising out of these facts is that the children ingested something while they were at the appellant’s house,  and  whatever it is they ingested is what caused their illness, and the death of the deceased child.

Mr Njanja  took issue  with the investigations that were conducted. He submitted  to us  that the investigation by  PW9 did not reveal  anything. In addition, he questioned the absence of the appellant’s wife from the proceedings. Counsel submitted  that the inference to be made  here is that had  the appellant’s wife given evidence, it would  have been contrary to the prosecution’s version of  events. He  further   submitted   that  this  onus remained on the prosecution to call her, as the appellant couldn’t do so because she left their home. There is no merit in this assertion. Section 143 of  the Evidence  Act provides that  “no  particular  number of  witnesses shall,  in  the absence  of  any provision of law to the  contrary, be required for the proof of any  fact.”

That notwithstanding, the only thing that was necessary for the prosecution to prove was that the appellant is the one who administered the poison that killed the deceased, and  as we have stated above, there is clear evidence  that  links  the appellant to being  the one  who  administered the poison.

The evidence  of PW1, PW2 and  PW3, together  with that of PW4 and PW8,  bears us  no  doubt  that  the appellant was  the one  who  brought  a poisonous concoction and administered it to the three boys, resulting in the fatal and inevitable death of the deceased. He was indeed at the scene of the crime on the material  day  and  time,  and  fled  after completing his heinous act  of  giving the  three  boys  what  was allegedly said to be  deworming medicine but  was a dangerous poison that  was  wrapped, concealed  and made out  as medicine. The boys started   vomiting immediately  after ingesting the medicine that was allegedly  given by the appellant. That is the position as confirmed by PW1, PW2 and PW3.

The direct evidence of PW1, PW2, PW3 and PW4, together with the circumstances surrounding the death of the deceased, a few hours after the ingestion of an  alleged  deworming medicine given  to him by the appellant, as   pointed  out  by   the  post­mortem  report   and   the  report   from  the government chemist which analysed  the samples and the organs of the deceased, all point irresistibly to the conclusion that the appellant had  the occasion and the  opportunity to cause the death  of  the deceased intentionally and without any basis.

In our view, malice  aforethought was proved; the appellant formed the intention  to cause  the death, or grievous harm  at  the  point  when  he prepared and  brought the dangerous pesticides to be taken by the children on the pretext that he was giving them deworming medicine. Therefore there is no doubt in our mind that the death was intended, and that malice aforethought was present the moment that the appellant administered the alleged  deworming medicine on the three children. The inevitable outcome was  the death of one  of the children. With God’s  grace,  two survived the ordeal. As fate would have it, the remaining and lucky two who survived told the graphic and chilling story as honestly and clearly as it happened.

The appellant gave an alibi defence.  He said  that at the time  of the commission of the crime, he was not at the scene of the crime. It is true, as  the appellant’s  counsel contends  that  the burden of  proving that  the defence of alibi was false fell squarely on the shoulders of the prosecution.

See Karanja v Republic [1983] KLR 501.

See  also   Anthony  Kinyanjui  Kimani  v  Republic  [2011]   eKLR (Criminal Appeal No. 157 of 2007)where this Court stated that:

“It is indeed the law that there isno burden  cast on  an  accused  person  to prove  his  alibi  …. The prosecution  has  the  burden   throughout  of negating the alibi.”

The evidence on record, by the testimony of PW4, places the appellant as calling out to the deceased on the  material  day  at  about 9:00 am. Although the appellant raised an alibi and stated that  he  was  not at the scene,  and   that  he  had  already  reported to work, the  evidence  of  the prosecution was credible and consistent, and showed  that he was indeed  at the scene  of the crime, and  that he  was  the one  who  administered the poisonous chemicals to the deceased, PW2 and PW3.

It is  also  noteworthy that DW2  could  not corroborate the appellant’s alibi since DW2 admitted that after some time, he left the construction site. It is therefore clear to us that the defence of alibi was displaced by the prosecution.Consequently,  the case against  the  appellant  was proved beyond a reasonable doubt.

The result  of our findings is that the conviction of the appellant was based on sound  and  credible evidence. This appeal is therefore devoid of merit and it is hereby dismissed.

Dated and delivered at Nairobi this 18thday of July,  2014

D. K. MARAGA

………………………………

JUDGE OF APPEAL

M. WARSAME

……………………………

JUDGE OF APPEAL

G. B. M. KARIUKI

……………………………

JUDGE OF APPEAL

Icertify thatthis is a true copy of the original.

DEPUTY REGISTRAR

mwk.