Republic v John Gitonga M’Ikolo alias Mwinja [2022] KEHC 1526 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

HIGH COURT CRIMINAL CASE NO. 57 OF 2014

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

VERSUS

JOHN GITONGA M’IKOLO Alias MWINJA...........................................................ACCUSED

JUDGMENT

1. The accused was charged with the offence of murder contrary to Section 203 as read with 204 of the Penal code. The particulars of the offence were that  he “on the 31st day of October  2013 at Kiolone Village, Katherwa  Sub-location, Akirang’ondu location  in Igembe North Sub-County within Meru County murdered Joseph Kinyua.”

2.  It appears on the record that the prosecution had problems getting the witnesses to attend court for purposes of giving evidence and on 7/5/2019, the court had, on request of the DPP, to issue summons on the Chief Akirango’ndu location to explain the whereabouts of the witnesses. The Chief explained that the deceased’s widow had after the incident sold her land and moved away from the area.

3. Eventually 4 witness were called for the prosecution being PW1, the deceased’s sister; PW2 the Good Samaritan who offered transport for the deceased, his mother, and sister to hospital; and PW3 and PW4, respectively the Investigating Officer and the doctor.

4. PW1 Agnes Kawira testified that on 31/10/2013 at about 6:30pm while at home at Katherwa Sub-location with her mother, Susan Kagayu and Joseph Kinyua her brother, the deceased herein, someone had suddenly pushed open their gate and came in  a panga raised and cut Joseph with the panga. She said she had run away screaming and neighbours came and they took the brother to Meru hospital where he died.

5. PW1 could not identify the person who cut her brother because:

“I saw the person who attacked my brother but I did not see him well because it was becoming dark. It is my mother who saw him well. If I saw him however, I could recognize him. I cannot identify him.”

On cross examination, PW1 said:-

“We were 3 of us at home. There were no other people except me, my brother, the deceased, and my mother. My mother also died in July 2019. I am the only one who was present who is in court. There was darkness as a result I did not recognize the attacker. I ran away screaming.”

6. The record shows that on 09/10/2019, on the first day of hearing when PW1 testified, the DPP applied for warrants of arrest but  the court issued summons for 4 named witnesses, Luke Muchambura; Regina Mukokinya, Walter Nyabora and Abel Okandapara. Three of these witnesses never attended court dispute warrants of arrest subsequently issued.

7. When hearing next came up on 24/2/2021, PW2 Luke Atheru Muchambura attended court and testified that he was a businessman working at Lokichoggio (perhaps to explain his failure to attend court previously,) and that he had on the material date 31/10/2014 [it would appear to be 31/10/2013] at 6:30pm he was working in the sale of Miraa and had come to buy Miraa at Kathero and while there had been approached by a woman and a girl who were looking for a vehicle to take their boy to hospital. He said that using the same vehicle he was to use for carrying Miraa and with the women and the “we girl took the boy who was is a bad state to Meru General Hospital.” On cross examination, Pw 2 confirmed that:-

“When I got to the scene, I found the boy had been cut. I did not know what happened. In do not know the accused. I did not witness any assault.”

8. PW3 was PC Kanampiu James of Laare Police Station who testified on behalf of Sgt. Abel Okadapaa, the Investigating Officer in the matter.

He said:

As regards this case, on 31/10/2014 at 7:20pm while at Laare Police Station, the deceased Joseph Kinyua came accompanied by his sister and his mother. The complaint was that he had been cut on the head twice. They found PC Nyambala at the Report desk. Latter the O.B record was that he had been cut twice on the head and once on the left arm and on right leg at the ankle. After the report he was sent to hospital. First at Muthara Mission Hospital and later referred to Meru Level 5 Hospital. We later got a report that the deceased died while undergoing treatment.”

9. PW3 said that the accused was arrested on 9/6/2014 about 9 months after the incident, when “the accused surrendered at Meru Police Station and OCS Njeru informed OCS Laare who went for him from Njeru Police station.” PW3 said that “after investigations the accused said the deceased was in the habit of stealing his Miraa and he had warned [him].” On cross examination, PW3 said he did not investigate the matter or record any statements including the accused’s statement on inquiry and could not, therefore, testify on the statement. He said that the statement under inquiry had been taken by Inspector Khamala who was not a witness in the case.

10. PW4, Dr. Joshua Murithi of Meru Level 5 Hospital testified on behalf of Dr. Kirumba who conducted the Post mortem examination on 12/11/2013 and said that the examining doctor had found:-

“Two deep cuts on scalp with fractures to the skull. Deep cut on the left parietal scalp. 2 deep cuts on left wrist with fracture of radius and ulna. Amputation of right foot and ankle region tied with bandage. Blood stained fluid oozing from the left ear.” The doctor had formed an opinion as to the cause of death as “severe head injury and severe heamorrhage due to deep cut wounds.”

Analysis of evidence

11. From the prosecution evidence set out above, it clear to the court that the only element of the offence of murder [see R v. Nyambura & others v. [2001] KLR 355 [Etyang J.]on three elements of murder] is the death of the deceased and cause of death. There is no evidence connecting the accused with the unlawful acts of cutting up the deceased with a panga because PW1 the eye –witness could not identify him and the alleged admission given  as suggested by the PW3 to Inspector Khamala was not processed, as it should have been, as a confession under section 25A of the Evidence Act. PW2 the person who drove the deceased and his mother and sister to hospital did not witness the assault and the mother of the deceased, who, according to PW1, identified the attacker is deceased.

12. There being no connection between the accused herein with the acts of cutting up the deceased with a panga leading to the death, there is no occasion for considering the third element of the offence of murder, namely, whether the accused had malice aforethought.

13. According, the court is able at this stage of ruling on case to answer to determine, in the terminology of section 306(1) of the Criminal Procedure Code, “that there is no evidence that the accused or any of several accused committed the offence. The Court shall, therefore, record a finding of not guilty.

ORDERS

14. In accordance with the principle in Murimi v.R [1967] EA 542 that an accused is entitled to an acquittal “where the prosecution has failed to make out a case sufficient to require the accused to enter into defence,” and having entered a finding of not guilty under Section 306(1) of the Criminal Procedure Code, this court now acquits the accused of the offence of murder contrary to Section 203 as read with 204 as charged.

15. The accused who is out on Bond shall have the bond and surety discharged and security returned to the depositor.

Orders accordingly.

DATED AND DELIVERED THE 17TH DAY OF MARCH 2022.

EDWARD M. MURIITHI

JUDGE

Appearances.

Ms. Nandwa, Prosecution Counsel for the DPP.

Mr. Mutuma, Advocate for the accused.