Republic v Japheth Munene [2019] KEHC 3707 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

HCCR NO. 4 OF 2017

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

VERSUS

JAPHETH MUNENE...........................ACCUSED

J U D G E M E N T

1. JAPHET MUNENE, the accused herein is charged with offence of murder  contrary to Section 203 as read together with Section 204 of the Penal  Code.The particulars are that on 16th day of may 2017 at Mpaguani village,  Gantaraki Sub-Location, Murugi, Maara Sub-County Tharaka Nithi County,  the accused caused the death of ALEX  MAWIRA KIMITI (the deceased  herein.)

2. The accused denied committing the offence and the prosecution called a  total of ten witnesses  to prove their case against the accused who  maintained his innocence in his defence.

3. Gilbert Kabara (PW1), the first prosecution witness testified and informed  this court that he was outside his shop at a place known as Kalewa when he  heard and saw the deceased asking the accused to refund him his Kshs.30/- .   It was his evidence that the two were heated engaged in a argument as they  passed by and that he decided to ask Charles Gitari Mbae (PW3) to accompany him in following both the accused and the deceased from behind  as they continued quarrelling over the 30/-   He added that as they drew  close to where the two were quarrelling, he saw the accused ran  suddenly  away as the  deceased fell down crying that Munene had stabbed him.  He  testified that when they checked, he noticed that the deceased was bleeding from the lower side of his chest.  He then called the deceased's wife and a  cousin  Mwithi Ngai (PW5) before they made arrangements for the deceased  to be  taken to Chuka County Hospital where he later succumbed to the  injury.

4. Obed Mugambi (PW2) a boda boda rider, testified that on the material date  (16th May 2017) between 10 pm and 10. 30 pm he was called on phone by his  cousin named Joram Kariuki and informed that the deceased had been  stabbed and requested for his services to ferry the deceased to hospital for  treatment.  He testified that when he arrived at the scene he found that the condition of the deceased was bad and was unsafe to transport him using a  motorcycle.  He therefore called a good samaritan with a car to do the job.   He told this court that he accompanied the deceased with Murithi and others  and that while on the way the inquired from the deceased about the person  who had stabbed him and according to him the deceased responded that it  was "Mukima" and that the accused person was known as "Mukima" in  the locality or the village where both the accused and the witness comes  from.  The witness further added that they took the deceased to Chuka  General Hospital where he succumbed to the injuries shortly while  undergoing  treatment.

5. Charles Gitari Mbae (PW3) told this court that he was present at the material   place (Karewa Market) on the material date (16th May 2017) and time (10  pm) when the accused herein and the deceased disagreed over betting.  He  testified that the accused then left the place as  the deceased followed him  from behind. He added that the accused threw a stone aimed at the deceased  who was demanding his 30/- from the accused.  According to the witness,  the accused  had lent the accused Kshs.30/- to bet but lost the bet and was  unable to refund causing altercation.  The witness told this court that he  followed the two and after a while he saw the deceased fall down and on  reaching where he was, he found that he had been stabbed.  He rushed to  inform his parents  and came back to take the deceased to Hospital.  He  added that  as he was being taken to hospital, the deceased stated;

"Munene umeniumiza, umenimaliza tu hivyo"as  he bled from   wound on the side of his stomach where he had been stabbed.  The witness further stated that he sat at the back of the car with Mugambi (PW2) and held the deceased as he lay across the car on their legs as they took him to Chuka General Hospital for treatment.

6. Catherine Kaari Micheni (PW4), an Assistant Chief of the locality  (Gantaraki  Sub-Location) where the incident occurred testified that he was  called on her mobile phone by one M'Athari Kiringa, (the Sub Area  Manager) and informed that Alex Mawira (deceased)  had been attacked by  the accused herein.  She told this court that on receipt of the news, she  informed the caller to arrange for the deceased to be taken to hospital for  treatment and that she was later called and informed that the deceased had  succumbed to the injuries and died.  She added that she woke up at around 5  am and in the company of "Nyumba Kumi" security members, she went to  the house of  the accused and found it locked from the outside but that he  was inside the house having locked himself in from out outside.  She added  that she called the police and when they came, the accused handed them the  key of the padlock he had used to lock the door and that when they entered  into the house, the accused was arrested  with a knife suspected to be the  murder weapon.  The witness identified the knife with a black  handle in  court as the knife she  recovered from the house of the accused  before  handing it  over to the police at the same place.  The witness added  that  they also collected a sheath which fitted the knife at the scene of crime.

7. Leonard Murithi (PW5) on his part told this court that he was called and  informed on the night of 16th May 2017 by Gilbert Kibaara (PW1) that the   deceased had been stabbed by the accused person herein.  He told this court  that he accompanied the said reportee (PW1) to the scene of crime (near  Karewa Tea Buying Centre) and found the deceased lying down and on checking him he noted that he had been stabbed on the midrift region.  He  further added that, they arranged for transport to ferry the deceased to  Hospital and it was while they were on the way to Chuka Hospital that the  deceased told them that "Mukima"had stabbed him.   He clarified that  Japhet Munene (accused herein) was known as "Mukima".He further  added that the deceased died on arrival at Chuka General Hospital.

8. The witness (PW5) further told this court that the next day, he accompanied  the Assistant Chief (PW4) to the house of the accused where they found him  in though he had locked himself from the outside and that a sword was  recovered in his house.  He added that when they visited the scene, he saw  blood stains on the ground and that he recovered a sheath which fitted the recovered sword.  He told this court that he handed over the sheath to the  Assistant Chief.

9. Japhrey Miriti (PW6) also gave evidence that corroborated the evidence of  PW5 particularly on what the deceased told them as he was being taken to  Hospital.  He stated that the deceased told him that "Mukima" had stabbed  him with a knife.

10. Corporal Paul Mwangi (PW7) also testified during trial and told this court  about the events of 17th May 2017.  According to him, two people went to  Iriga AP Camp where he was based and reported that members of the public  had surrounded the house of a murder suspect with an intention to apprehend  and lynch him.  He told this court that he hurriedly in the company of another officer known as Stephen left and went to rescue the suspect.  He  found the Area Chief at the house with a mob.  He told this court that the  suspect was in though he had locked the house from the outside with a  padlock.  He added that when he identified himself, the  accused gave him a  key through the window and he opened the door and arrested him and took  him to police station.  He added that the Assistant Chief later came with a  knife/sword recovered that which was believed to be the murder weapon.   This evidence was corroborated by the APC Stephen Lemain (PW8) who  confirmed that he was the one who had accompanied PW7 to rescue and  arrest the accused person herein.  He added that the mob was so charged and  it took a lot of convincing to cool them down and allow them take the  suspect to Chogoria Police Station.

11. Dr. Justus Kitili (PW9) the doctor who performed post mortem examination  on the body of the deceased (Alex Mawira) told this court that he performed  post mortem examination on 23rd May 2017 and the following were his  findings;

i. A deep penetrating wound about 4 cm long was visible  on the abdomen.

ii. Massive blood in the stomach cavity.

iii. A cut on the small gut

iv. Tissue connecting the gut and abdomen tissue was also cut.

In his opinion, the deceased's death was caused by haemoperitonium due to  penetrating abdominal injury inflicted by a sharp object.  He tendered  postmortem examination report as P. Exhibit 3.

12. Corporal Kazungu Ngubao Jeremiah (PW10), the investigating officer in  this case told this court that he received the report regarding the murder  incident in this case on 17th May 2017 from Assistant Chief Catherine Kaari  (PW4) and two APC officers (PW7 and PW8).  He  further told this court  that said officers handed him the accused herein as the suspect in the  murder.  He booked in the suspect and placed him in custody.  He told this  court that he visited the scene where he observed some blood stains on the  ground.  He also told this court that he visited the house of the accused  where he found that irate members of the public had burnt it down to ashes.   He also stated that he was able to get two key witnesses who was with the  deceased on the night he was stabbed.  The witnesses were PW1 - Gilbert  Kibaara and Charles Gitari Mbae (PW3).  It was his evidence that the deceased and the accused had a quarrel over Kshs.30/- which the deceased   advanced to the accused to enable him place a bet which he lost and was  unable to refund the money leading to the heated exchange between the  deceased and the accused person.  He later recorded the statements from the  witnesses.  He also told this court that the murder weapon (knife) was  recovered by the Assistant Chief while the sheath or cover of the said knife  was recovered at the scene of murder.  He added that the sheath fitted the  knife perfectly.

13. When placed on his defence, the accused denied committing the offence and  stated  that on the material date he was busy at his home doing his daily  chores  and that he slept at 8 pm.  He told this court that he was woken up  the following day and informed that he had killed someone using a knife.   He denied killing anyone raising alibi as his defence.  He denied  owning the  knife that was used as a murder weapon.  He added that he normally locks  his door from outside but denied using a padlock.  He faulted the defence  witnesses for lying stating that they are all from one family.  He however  conceded that the Assistant Chief and the Area Chief are not from that  family.  He further added that the reason why he locks his door from outside  is that he used to leave his house in a hurry and to avoid forgetting to lock  his  house he figured that it was better to be locking it from outside to avoid  forgetting to lock it.

14. This court has considered the evidence  tendered by the prosecution and the  defence put forward by the accused person.  It is now settled that for a  charge of murder to be sustained, the following necessary  ingredients/elements must be established and proved beyond reasonable  doubt:

i. Death of the deceased

ii. That the accused person committed the unlawful act that caused the death of the deceased (actus reus) and

iii. Malice aforethought

15. (a) Death of the deceased

To begin with the first element which is the death of the deceased, there is  no doubt Alex Mawira (deceased) died on 16th May 2017 as per the doctor's  (PW9) evidence.  Doctor Kitili tendered a post mortem report (P. Exhibit 3)  indicating that the report was in relation to the body of Alex Mawira.  He  told this court that he issued Death Certificate No. 1140205 as per his report  to certify the death of the deceased.

16. (b) Actus Reus

Going by the evidence tendered in this case, there were two eye witnesses  namely Gilbert Kibaara (PW1) and Charles Gitari Mbae (PW2).  Both of  these two prosecution witnesses gave vivid descriptions on what transpired  prior to the stabbing of the deceased and after the attack. Gilbert Kibaara, a   businessman at Karewa market where the incident took place saw the deceased pursuing the accused asking him to refund his 30/-.  According to  the witness, the verbal exchanges between the two were quite heated and  that is why I called Charles Mbae (PW2) to accompany him as they followed  the two protagonist from a distance.  Charles Gitari Mbae also vividlydescribed how he  was in the company of both the deceased and the accused  on 16thMay 2017 at around 10 pm when a disagreement arose as a result of  a bet placed by the accused which he lost after placing a bet of Kshs.30/-  which he had borrowed from the deceased.  After losing the bet the accused  declined to refund the money to the deceased causing the disagreement and  the verbal exchanges.  The witness (PW3) saw the accused walk out as the  deceased followed him closely.  It was then that PW1 came into the picture  as he also witnessed the heated exchanges as the accused walked away    followed closely by the deceased.  According to PW3, the accused  first  picked a stone and took aim at the deceased but that did not deter him  from  pursuing him.  After a short distance they found the deceased lying down  after he was stabbed on the side of his stomach.  They saw the accused  running away though the two witnesses never actually saw him stab the  deceased.

17. This court however has considered the circumstances leading to the attack of  the deceased and the circumstances clearly point at the accused person.  For  one, when PW1 arrived at where the deceased lay in a pool of blood, he  heard the deceased say;

" Nimedungwa na Munene"

The same evidence was corroborated by PW5 (Leonard Murithi) PW2  (Obed Mugambi Karani) and PW6 (Miriti Japhrim).  All the above witnesses  took the deceased who was in critical condition to hospital for treatment and  while they were taking him he repeated that "Mukima"had stabbed him.   There is no doubt that the accused herein was also known as "Mukima" as  all the said  witnesses knew him by that name.  This court has considered the  evidence of PW1, PW2, PW5 and PW6 which shows that the deceased  clearly mentioned the accused  person in the state the deceased was in when  he mentioned the accused, that in my view is a dying declaration within the  meaning of Section 33 (a) of the Evidence Act Cap 80 Laws of Kenya.   The said dying declaration when taken with the surrounding circumstances  (the lost bet and attendant heated exchange witnessed by PW1 & PW3)  points to only one irresistible conclusion.  The accused person was  responsible for that fatal injury (stab wound on the stomach) which the  doctor opined caused the death of the deceased.

18. This court has considered the defence of alibi raised by the accused and  finds the same to be an afterthought.  He claims that he had gone to pick  some coffee is not supported by any audience.  I further find his explanation  on why he locked his door from outside with a padlock and using a window  to access his house to be somewhat absurd.  He told this court that he used to lock himself in from outside so that in the morning he would simply jump  out of the widow because he used to be in hurry and so to avoid forgetting to  lock his door he came up with the  crude and strange solution of locking  himself in from the outside.  Well though I find  this comic and absurd, I am  not persuaded by the same.  Judging from his conduct, it is quite clear that  the accused person was very afraid owing to what he had done the previous  night and that explains why he thought locking his door from the outside  could fool  those out to apprehend him.   There can be no other explanation   from that strange conduct of locking himself in from the outside.

19. This court notes that the prosecution never followed up with the  production/tendering of the murder weapon (sword) and the sheath as  exhibits despite marking them for identification.  This is despite the  diligence of the Assistant Chief Catherine Kaari (PW4) of securing the  sword plus its sheath and surrendering it to the police for further  investigation.  The knife was  recovered at the  accused house,  while the  sheath that the investigating officer stated fitted the sword perfectly was  recovered at the scene of crime where  there was a lot of blood stains.  Though there was an omission on the part of the prosecution not to the tender as exhibits murder weapon and sheath despite the same having been  recovered, I still find that based on the dying declaration of the deceased as I  have observed above and the surrounding  circumstances as narrated by  the prosecution witnesses, the prosecution has nevertheless established the  crucial element of actus reus and successfully connect it to the accused  person.

20  Mens rea or malice aforethought

The evidence tendered by the prosecution going by the evidence of PW1 and  PW3 indicates that there was a very heated argument between the deceased  and the accused person over Kshs.30/- which the accused had borrowed the  deceased to place a bet which he lost.  PW3 stated that when the deceased  asked for a refund, the accused turned hostile and hence the heated argument.  He (PW3) also saw the accused  aim a stone at the deceased  when the deceased pursued him as he walked away.  The deceased thereafter  and after a short distance away was found lying down after being stabbed  with a knife on his stomach.  The actions of the accused person on the  deceased are deemed by law to constitute malice aforethought.  The  provisions of Section 206 of the Penal Code provide as follows.

"Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances.

a. an intention to cause the death or to do grievous harm to any person, whether that person is the person actually killed or not;

b. Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused........................."

There is no doubt that the accused person fatally stabbed the deceased on the  stomach and left him lying down in a pool of blood with indifference on  what was going to befell him despite having spent the evening and part of  the night together in a club.  In my considered assessment that act constitutes  malice aforethought as postulated in the above cited provision of the law. This court finds that the element of mens rea has been established and  proved by the prosecution's case against the accused person.

In conclusion this court finds that the prosecution's case against the accused  person has been proved beyond reasonable doubt.  The accused person in an  attempt to silence or stop the deceased from demanding his money from  him, regrettably caused a cold murder on an innocent young person whose  only fault was to demand his right.  This court finds him guilty for the  offence of murder and he is hereby convicted accordingly.

Dated, signed and delivered at Chuka this 3rd day of October, 2019.

R.K. LIMO

JUDGE