Ndungu Mutunga v Republic [2014] KEHC 2832 (KLR)

No. 386/14

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL CASE  NO. 3 OF 2010

NDUNGU MUTUNGA …………………….…………………...ACCUSED

VERSUS

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

RULING

Ndungu Mutunga (accused) is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code.  Particulars of the offence being that on 26th day of December, 2009 at around 3. 00am at Zawani Shopping Centre, Maluma sub-location, Nzambani Location in Nzambani District of the Western Province murdered Mwanzia Savi.

Briefly the facts of the case were that the deceased, the accused and other young men were at Rombo Bar where some disco was being played.  At about 3. 00am the accused became chaotic. He harassed people. In the process the deceased was injured badly.  He was rushed to hospital.  He died while undergoing treatment.  The events culminated into the arrest of the accused who was charged.

At the close of the prosecution’s case, the State had called four (4) witnesses.  PW1, Wambua Humphrey Savi, a brother to the deceased stated that on the 25th December, 2009 at about 3. 00am the accused was ejected from the bar but he attempted to force his way back inside.  In the process the accused grabbed him (PW1).  His brother (deceased) intervened. The accused turned onto the deceased and pulled his shirt removing it.  Two (2) other people intervened urging the accused to return the shirt.  The deceased went to retrieve his shirt.  A torch was flashed on his brother’s face. He protested. Shortly thereafter the deceased collapsed and was bleeding.  He notified his father and uncle who were inside the bar.  They took the deceased to hospital.  However, he was, not able to tell what injured the deceased.

PW2, Tito Mbuku who was at the bar said the accused started pushing him and Wambua. When the deceased intervened the accused hit him.  When eventually he took the deceased’s shirt he challenged him to go for it.  When he stretched his hand to take it he cut him with an object and he fell down.  He bled.  He screamed and people chased after the accused who ran and disappeared.

PW3, Mutinda Kimanzi who went to the disco with the accused testified that he got drunk and started beating up people.  At3. 00am he became violent such that the bar owner had to order him out.   He tried to go back to the bar only to be deterred by Mwanzia Savi, a bouncer at the bar.  The accused managed to remove his shirt and ran off with it.  He went back to the bar.  Moments later he heard the deceased screaming.  He ran back to find the deceased bleeding.  On cross-examination he said the accused was so drunk.

PW4, No. 218186 C.I Moses Thuku Maina received the report of the incident and caused the accused to be arrested and charged.

The accused herein was arraigned in court on the 14/1/10.   The case dragged on for four (4) years.   On the 8/4/2014 the State was granted a last adjournment.  When the case came up for hearing, no effort had been made to call the remaining witness.  Consequently at the close of the prosecution’s case the Doctor who performed a postmortem on the body of the deceased had not testified.    The deceased died six (6) days later.   Without evidence of a postmortem report, the cause of death could not be established.

To prove the instant case, the duty was upon the prosecution to prove that it was the accused who caused the serious bodily injury that eventually resulted into the death of the deceased and that he did it with malice aforethought.  Without proof of the cause of death a prima faciecase warranting the accused being put on his defence is not established.  Without such evidence the accused has no case to answer.  Accordingly he is found not guilty pursuant to the provisions of Section 306 (1) of the Criminal Procedure Code.   He is therefore set free unless otherwise lawfully held.

DATED, SIGNED and DELIVEREDat MACHAKOSthis 15THday ofSEPTEMBER, 2014.

L.N. MUTENDE

JUDGE