Republic v Daniel Munyi Mwaniki [2017] KEHC 9504 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CRIMINAL CASE NO. 75 OF 2012

REPUBLIC.............................................PROSECUTOR

VERSUS

DANIEL MUNYI MWANIKI............................ACCUSED

JUDGMENT

BACKGROUND

1. The accused DANIEL MUNYI MWANIKI was charged with the offence of murder contrary to Section 203as read with Section 204 of the Penal Code the particulars of which were that on the night  of 4th day of September, 2012 at Thiongo location in Kabete Division within Nairobi county murdered ANN NJERI KIRAGU.

2. He first appeared in court on 19th September, 2012 and his plea fixed for 27th September, 2012 almost five (5) years as at the time of this judgment when he pleaded not guilty and the hearing fixed for 4th March, 2013.  In the meantime on 20/2/2013 his application to be released on bond was heard and ruling therein delivered on 6th June, 2013 and the application declined.

3. On 14/5/2014 the matter came up for hearing and the prosecution applied for adjournment on the grounds that the key witnesses were in the United States.  On 2/6/2015 the matter was once again adjourned at the instance  of the prosecution.  In the meantime on 3/6/2015 the accused person through his Advocate on record offered to enter into a plea bargain agreement with the prosecution and as at 6/7/2015 the office of DPP had not made any decision on the plea bargain offer.

4. On 14/7/2015 the trial of the accused commenced before Lesiit J who took the evidence of two prosecution witnesses PW1 and PW2.  In the meantime the prosecution declined to accept the offer of plea bargain.   After several adjournments including an order by the trial court for warrants of arrest to Dr. Mahindu and SP EVANS WANYONYI to be executed by the County Commandant on 14/10/2015 the trial court was informed that the said County Commandant declined to accept service.  On 9/11/2015 the trial court recused herself from hearing the matter further and that is how this matter landed in my court.

5. From the above background it must be stated for record purposes that I did not have the advantage of hearing and seeing PW1 and PW2 whose evidence were taken by Justice Lesiit.  I have however read and analyzed their evidence as is required by law  for the purpose of this judgment.

PROSECUTION CASE

6. PW1 JAIRUS MURIUKI MAINA testified that at the material time he was living with the deceased, his mother and the accused person whom he knew as her boyfriend.  On 14th September, 2012 at 7 p.m. he got home and found the accused drinking kibao liquor while watching T.V and went straight to the kitchen to fix something to eat.  The deceased then called him from the kitchen to the sitting room since we was supposed to go back to school the following  day and advised him to be a good boy and should not spend too much money upon which the accused became mad and asked the deceased whether he was her child.  It was the testimony of PW1 that the deceased was not talking to the accused but to him.

7. He further testified that the accused took the bottle of the liquor they were drinking and broke it on the table.  PW1 took a broom and started sweeping the broken glasses towards the door but was unable to open the door since the same was locked forcing him to take the key of the deceased from her purse.  The accused kept on shouting at the deceased forcing the witness to go call a police officer,  PW4 who was their neighbour and when they returned back, they found the door locked from inside and could hear the deceased screaming while calling his name.  She screamed three times and kept quiet.  The neighbours came and entered the house through the window.  Under cross examination he stated that he used to see the accused in the house during holidays and that the deceased introduced him to him as her boyfriend.  He further stated that the accused on the material day took his cell phone and that of the deceased from the table and broke both of them and slapped the deceased.

8. PW2 EVERLYNE ESTHER WANJIKU KIRAGU a sister to the deceased  testified that the same had introduced her to the accused  at the beginning of 2012 and that on 5/9/2012 she identified the body of the deceased for purposes of post mortem examination which was done by Dr. Oduor.

9. PW3 SSP EVANS WANYONYI corroborated the evidence of PW1 and that he went with the same to their house which was closed from inside and demanded that the door be opened in vain.   Together with the members of the public they managed to break a window and entered into the house and opened the door.  He had earlier checked through the keyhole and saw somebody pulling a woman towards the bedroom.  When they opened the door they found lots of blood on the floor, the house was in a mess with utensils broken and gas disconnected at the regulator with matchbox next to it.  There were two bodies on the floor the woman with a deep cut on the right and left leg and the man with a cut on the stomach. Besides the bodies there was a sharp knife.

10. It was his further evidence that they had thought that both were dead but as they were being carried they noticed that the man was breathing so he was taken to Kenyatta National Hospital while the deceased was taken to the city mortuary.  Under cross examination he testified that the accused was pretending to be dead and that the accused had a small cut on the stomach and therefore formed an opinion that he could not have been defending himself.  It was his further evidence that though it was night the lights were on.

11. PW4 PC MAURICE MUKALAtestified that on 19/9/2012 he escorted the accused who had been discharged from Kenyatta National Hospital to Dr. Maundu for mental assessment where he was found fit to stand trial.  He produced the P3 form and post mortem report filled by Dr. Oduor on 5/9/2012.  He stated that out of his investigation he discovered that there was a fight between the accused and the deceased which led to the death of the deceased and injuries to the accused.  It was his evidence that the fight must have been major since most of the household items were destroyed and scattered everywhere.  He stated that the accused statement under caution was taken by inspector Oundo.  In cross examination he stated that there could have been a possibility of the accused acting in self defence since there was commotion in the room and that the accused and the deceased were having drinks at the time.

12. When put on his defence the accused stated that he used to live together with the deceased as man and wife.  On  4/9/2012 they both did not go to work, and decided to go to Westlands for shopping and on their way passed through Kangemi where they drunk between 4-5 p.m. before buying a bottle of Vodka which they carried home.  As they continued to drink an argument arose between them in respect of money for school fees which he declined to give since he wanted to start a small business in Kikuyu,  in the process the deceased poured the drink she had on his face and he responded by slapping her upon which  she took a knife and stabbed him. They started to struggle since he wanted to take away the knife from her.  He ran after her and in the process he passed out.  It was his evidence that he loved the deceased too much and would not have intended to harm her.

SUBMISSIONS

13. At the close of the defence case it was submitted on behalf of the accused that there was no murder weapon used on the deceased neither was there any government chemist report linking the accused to the murder with the only link being that the accused was at the scene. The court was urged to consider the possibility of the deceased having inflicted the severe wounds on the accused first and realizing that she may have killed him, stabbed herself and in the process killing herself.  It was submitted that the accused had no recollection of having killed the deceased person.  It was therefore submitted that the ingredient of the offence of murder has not been proved.

14. On behalf of the State it was submitted that although the prosecution called only four witnesses to testify the same were  truthful and consistent in their testimony and that Section 143 of the Evidence Act requires no particular number of witnesses to prove any fact and CRIMINAL APPEAL NO. 187 OF 2010 SAMUEL MWANGI GITAHI & ANOTHER v REPUBLIC [2013] eKLR was used in support.  It was submitted that the prosecution had proved its case beyond any reasonable doubt.

ANALYSIS AND DETERMINATION

15. To sustain a conviction  on a charge of murder under Section 203 of the Penal Code, the prosecution must prove  the following ingredients:-

a) The fact and the cause of death of the deceased.

b) Proof that the said death was as a result of unlawful act or omission on the part of the accused person.

c) The fact that the said unlawful act or omission was caused by malice aforethought.

16. Malice aforethought has been defined by the Court of Appeal in NZUKI v REPUBLIC [1993] KLR   171 as quoted in REPUBLIC v MARTIN KINYUA NANCY EMBU HIGH COURT CRIMINAL CASE NO. 14 OF 2011.

- Intention to cause death

- Intention to cause grievous bodily harm.

- Where accused knows that there is a risk that death or grievous bodily harm will ensure from his acts and commits them without lawful excuse. It does not  matter whether the accused desires those to ensure or not.  The mere fact that the accused conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder.”

17. The fact and the cause of death of the deceased is not in dispute.  PW2 identified the body to Dr. Oduor for purposes of post mortem examination and confirmed that the cause of death as per the report produced by PW4 was exsanguinations due to penetrating force trauma.  I therefore find and hold that the prosecution has proved the fact and the cause of death of the deceased beyond any reasonable doubt.

18. On whether the said death was caused by unlawful act on the part of the accused person, the evidence of PW1 JAIRUS MURIUKI MAINA the son of the deceased placed the accused person at the scene of the death of the deceased.  This evidence was corroborated by that of PW3 a neighbour and a police officer who responded when requested by PW1 to assist in helping out the deceased who according to him was being killed by the accused. The accused in his defence has also admitted that he was together with the deceased as they enjoyed their drink in the house of the deceased whom he considered his wife when in the middle of an argument the deceased who had a tempter poured the drink she had on his face causing him to slap her.

19. It was the accused evidence that it is the deceased who stabbed him with the knife they were using to cut lemons and that they started to struggle and he was able to get the knife from her.   He however does not state what he did with the said knife once he took it.  This evidence is contradicted in material particulars by that of the PW1 who was with them at the house initially who testified that it is the accused who broke the bottle of the drink on the table before slapping the deceased causing him to go out of the house to call their neighbour PW3 and when they came back they found the door locked from inside. It was his evidence that he peeped through the keyhole and saw the accused pulling the deceased who was trying to come to the door towards the bedroom.  This evidence therefore contradicts the accused testimony that he had passed out and did not know what happened thereafter.

20. I have taken into account the evidence of PW1 and PW3 whose evidence was unchallenged under cross examination and find that the fatal injuries on the deceased were occasioned by an unlawful action on the part of the accused person as a result of a disagreement between both of them which according to PW1 was as a result of the accused misunderstanding the remarks by the deceased towards PW1 as aimed at him whereas as per the accused  it was in respect of the request for money for school fees for PW1.  Taking into account the injuries inflicted upon the deceased, the condition of the house as per the evidence of  PW3 the gas was disconnected at the regulator  with a matchbox next to it. It is clear to the court that the same must have been inflicted by the accused rather than as per his submissions that the deceased inflicted them upon herself.

21. As to whether the said death was caused by malice aforethought Section 206 of the Penal Code is very clear that whether death or grievous harm is caused or not by a wish that it may not be caused still amount to malice aforethought.  Taking into account the  nature of the injuries inflicted upon the deceased and the actions by the accused of breaking both the mobile phones of the son of the deceased and the deceased and breaking the bottle of the drink they were having and threatening the deceased with the same.  I find and hold that this clearly shows that the same had the intention to kill or cause grievous harm to the deceased and indeed succeeded in causing the said death.

22. I am satisfied, find and hold that the prosecution has proved all the ingredients of the offence of murder beyond any reasonable doubt against the accused person and find the same guilty of the murder  of ANN NJERI KIRAGU and convict the same accordingly.

DATED, DELIVERED and SIGNED at Nairobi this 9th day of October, 2017.

........................

J. WAKIAGA

JUDGE

In the presence of:-

Mrs. Kinoti for the State

Mr. Ombeta for Olewe for the Accused

Accused person presence

Court clerk Tabitha