REPUBLIC v EPHANTUS MWITI & another [2012] KEHC 4239 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

ATMERU

Criminal Case 73 of 2009

REPUBLIC ……………………………………….. PROSECUTOR

VERSUS

EPHANTUS MWITI…………………..…………….1ST ACCUSED

MWENDA KABURU……………………………….2ND ACCUSED

RULING

The two accused persons EPHANTUS MWITI MUTHENGI (hereinafter the 1st accused) and MWENDA KABURU (2nd defendant) are jointly charged with murder contrary to section 203 of the P.C.   The particulars of the charge are that on the 8th August, 2009 at Chuka Township in Meru South District they murdered Simon Karani.

The facts of the prosecution case were that PW1 Charity met with the deceased within Chuka Town at about 9 pm on the material night.   He offered to buy her beer.   PW1 stated that as they walked to the bar they met with the 1st accused whom the deceased alleged owed him 2,000/-.The deceased demanded to be paid his money by the 1st accused and instead a fight broke out between the two of them.   The deceased slapped the 1st accused and the 1st accused retaliated.   Both wrestled to the ground with deceased on top of 1st accused.   That 2nd accused was passing by and he picked a stone and hit deceased with it.   Then 1st accused picked a spade and hit the deceased all over the body before running away.   The deceased was taken to his house by PW1, PW2 and another.   He wife PW3 was not home.   PW3 took him to hospital next day where he eventually died.   The cause of death was found to be a severe head injury due to blunt frame.

The 1st accused admitted in his sworn defence that he met the deceased carrying a spade in company of two others.   He said the three chased him before the deceased attacked and hit him with the spade repeatedly as his colleagues watched.   That the 1st accused then took a pluck of wood with which he hit the deceased to protect himself.   The 1st accused said he picked the spade then asked 2nd accused and one Karuga to escort him to the Police Station but they refused.   He went and reported to the Police and was issued with a note addressed to Ministry of Health requesting that he be attended.   The note was produced as Dexh1.   The 1st accused also produced treatment notes as Dexh 2.

The 2nd accused denied the charge.   In his sworn defence the 2nd accused said he heard noises near the stage and proceeded to find out what was happening.   He said he saw the deceased with a spade and 1st accused with a pluck of wood both fighting.   A third man, Muchanga ran away.   The 2nd accused said he saw the 1st accused hit the deceased with the pluck of wood and the deceased sat down.

That one Mawira (PW1) who was present took the deceased away.   The 2nd accused said he declined to escort the 1st accused to the police.

DATED SIGNED AND DELIVERED THIS 7TH DAY OF JUNE, 2012

LESIIT, J

JUDGE.