Republic v Felix Kithinji Kaburu [2016] KEHC 69 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CR 22 OF 2011

REPUBLIC................................................ PROSECUTION

-VRS-

FELIX KITHINJI KABURU.................................ACCUSED

JUDGMENT

FELIX KITHINJI KABURU is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge are that on 10/4/2011 at Karanene Sub Location, Karanene' Location of Buuri District, murdered Karambu Muriungi.

The   prosecution called a total of five witnesses while the accused testified on oath in his defence. He did not call any other witness. The prosecution was led by Mr  Mulochi, learned counsel for the State while the  defence was conducted by Mr Omari, Advocate.

PW1 JOHN MURIUKI KABURU is younger half brother of the accused because they share one father but have different mothers.  The   deceased was PW1’s mother. PW1 testified that on 10/4/2011, a Sunday, he was washing his  clothes at their home when he  saw his  elder brother, the  accused, coming carrying a panga, he  threw it at the deceased but it  did  not  cut her; that accused asked the deceased why  she was  drawing water when it  was not her turn to do so; that accused started  chasing the deceased around the kitchen, threw a jerican with water at her and also took  the basin that PW1 was using to  wash clothes, hit  her  with it,  and continued to  chase her; that accused  picked the axe which was next to  the bathroom. That the deceased fell and accused cut her twice on   the head using the axe. PW1 saw that the mother was bleeding profusely and he left on a bicycle to go and call the father (PW3) who had gone to church at Kamarai. By the time he arrived back at home, PW 1 found a taxi had arrived. The deceased was put inside and she was taken to Kirua Hospital; that the next day   police went to their home and arrested the accused and took possession of the axe   that he had used to cut deceased. PW1 learnt that his mother had died.

PW1 further told   the court that they used to live in peace there before but a year before this incident, accused left home for sometime and when he came back, he used to pick quarrels with the deceased. PW 1 also told   the court that when the incident took place, he was at home with his elder sister MERCY   KINYA  (PW2), accuseds' younger sister.

PW2 reiterated what PW 1 told the court that accused came home about 1. 00 pm, found her step mother drawing water. PW2 was in the house when she heard accused and deceased quarreling over water. On coming out of the house, she saw the accused chasing the deceased with a panga which he then  threw at her he thens threw a Jerican at deceased as he  chased her round the house; then he picked the basin  which  PW 1 was washing his clothes on  and threw it at deceased; then he  picked an axe which was  next to  the  bathroom; that the  deceased fell and accused hit  her  twice  on  the  head with the  axe. PW2 raised alarm and a neighbour who had a taxi came and took the deceased to Hospital while PW 1 went to call the father.

PW3 RUFFUS KABURU is the father of accused, PW 1 and PW2 and husband to the deceased. He was in church when PW1 went to inform him of how his wife had been assaulted by accused. He rushed home and confirmed that on the way to Nkubu hospital, she died.  PW3  said that before this incident, accused had once chased the  deceased with a bow and arrow, was arrested  but  he  asked  for forgiveness  and  promised  not  to repeat it and he was released.

According to PW3, accused did not relate well with his siblings including PW2.

PW4 PC GERALD MBICHI was the Investigating Officer in this matter. He visited the scene on 11/4/ 2011, recovered the axe used in the assault and arrested accused from his house. He viewed the body and observed two deep cuts on the head.

DR BELINDA NAMISI (PW 5) produced the post mortem prepared by   Dr   Nato who conducted the post mortem on the deceased's body. The Doctor found a deep cut wound, 7cm on the occiput and another deep cut wound 5cm on the forehead; internally the skull had a fracture with intracranial haemorrhage. The Doctor formed the opinion that the cause of death was severe head injury due to assault with a sharp object.

In his sworn testimony, the accused stated that on the material day, he went to his father’s home to ask for water. The home was about 300 meters from his. Hi's father allowed him to   use the water because he was going to church. He connected the pipes to his shamba and started watering his vegetables but after a short while, the water stopped flowing.

Accused went back to the tap to  find out what had happened and found the water pouring. PW1  told  him  that he  was drawing water for  the cows  and forgot to  reconnect; that he  reconnected the   water and went back to  his  farm only   for   the  water  to  disappear  again. He  went  back  to check and found it  pouring and  again PW 1  said  he   had forgotten to reconnect it and  when  accused  started questioning PW1 why he was doing that, is when  the deceased came out of  the   house, with an axe  with which she wanted to  cut him; that he  pushed her  and she fell  on the wood  and the axe. He did not know where the deceased got injured because he left her screaming.

Accused denied having had any dispute with deceased. Accused said that there were people at their house buying further stated that he   related well   with his   father and siblings before this incident. He  tried to  explain why  all  of them  would want  bad   for   him,  because  of  a  safaricom business  they  had.  However he   did   not   explain how   the business affected their relationship.

In   his    closing  submissions,   Mr Omari argued that there  were  no independent  witnesses  to  the   incident as PW 1-3 were all  family members; that  the   most important ingredient of a charge of murder was not  proved; that it  is the deceased who   had the   murder weapon, and that the dispute over  water, is not  denied.

On   the other hand,  Mr  Mulochi submitted  that  PW1 and PW2  were  eye  witnesses to  the  offence; that there had been no bad blood between them and there was no reason for them  to  frame the accused. Counsel submitted that malice aforethought was proved as post mortem proved that injury was to the head, a sensitive part of the body.

There is no doubt that there was a dispute between accused and the deceased over use of water on the fateful day.  Although accused claimed that somebody had been disconnecting the water when he   was using it, I did not believe the accused's explanation. PW 1 testified before this court and no such allegations were put to him, that he had disconnected the water when accused was using it. I prefer the testimony of PW1 who testified that the dispute between accused and deceased arose when accused came and found her   using the water. PW2   confirmed that she heard deceased ask whether or not she could use the water. Accused's explanation as to how   the   dispute over water arose is an afterthought and untrue.

To establish a charge of murder, the prosecution has to prove beyond any reasonable doubt the following ingredients;

1. The death of deceased;

2. Thataccused caused the death through an unlawful act or omission;

3. Thatthe accused had the intention or malice aforethought;

The death of   the deceased is   not   in   doubt.  The postmortem was  performed on  the  body  of the deceased by Doctor  Nato  who  found that she had sustained  two  deep cut wounds, one   on  the forehead and another on  occiput and skull was fractured with internal bleeding. The said finding was corroborated by the evidence of PW 1 and PW2 who witnessed the incident and told   the   court that they saw accused hit the   deceased withthe  axe  on the head twice. The two cut wounds that the Doctor found on the occiput and forehead were the cause of death.

Whether the accused inflicted the injuries that caused the death; PW1 and PW2’s evidence was consistent in  all material  particulars.  Both  of   them  stated  that  at  first, accused  had  a  panga,  threw it   at  the   deceased  but  it missed her. He then picked a Jerican with water threw it at deceased,  then  the    basin  on   which  PW 1  was  washing. Lastly, he picked the   axe with which he cut the   deceased twice   on   the   head after she fell.  The   accused's version of how the deceased sustained injuries is not   believable.  If accused merely pushed the   deceased, and she fell, then how did she receive two deep cuts on two different parts of her head, the forehead and occiput? It is   true that the accused did   not   come to the scene with the   axe   but he picked it from where firewood had been hued. He continued to chase the deceased while armed with the axe till she fell and he went ahead to cut her.

It is the defence counsel's submission that accused did not posses any malice aforethought. PW 1 and PW2, the eye witnesses are accused's siblings. PW2 is his real sister and she told   the court that they had no reason to frame him. However, belatedly in cross-examination, accused seemed to allege that there was a safaricom business which they had a dispute over,   but he did   not   expound on it.  In my view,   that was   but on   afterthought. He did   not   allude to any such dispute when PW1, 2 and PW3 testified. Further, accused claimed that,   there were    people at his home buying potatoes who   witnessed what occurred. He alleged this in his defence but did not name anybody. His defence is not believable.

First, the accused was armed with a panga, a deadly weapon which he   threw at deceased but it   missed her. PW1 and PW2’s evidence was    that accused chased the deceased round the house several times until she fell then he descended on her with an axe.  He was determined to do harm to her.  Further to   that, after he   picked the   axe, despite the    fact    that he   had managed to   subdue the deceased as she had fallen, he cut her twice on the   head, and not on the  leg  or  hand. On  this day, it  had all  started with a disagreement over   water, but  PW1 and  PW3  said that  prior   to  this  incident,  there  had  been  some disagreement  between  accused  and  deceased.  PW3 specifically stated that accused had chased the deceased with a bow and arrow, was arrested but was released after he   sought for forgiveness.   This   evidence   was   never challenged by the defence. It is apparent from   accused's actions on this fateful day   that he was just waiting for an opportunity and this incident provided the perfect chance for accused to vent out what was in his heart. Malice aforethought which is defined in  section 206 Penal Code  as an intention to  do  grievous harm or  kill,  clearly flows  from the accused's actions of the fateful day.

In the end, I am satisfied that the accused’s defence is a mere sham and an afterthought. I  dismiss it,  instead I find  that the prosecution has proved beyond all  reasonable doubt  that  accused  with intention  to   kill,   attacked  and killed  his  step-mother.  I find   him   guilty as charged and convict him accordingly.

DATED,   SIGNED   AND DELIVERED   THIS   30TH DAY OF JUNE, 2016.

R.V.P.  WENDOH

JUDGE

30/6/2016

Present

Mr.  Mulochi for State

Ms.  Nelima for Accused

Ibrahim/Penina, Court Assistants

Accused, Present