Republic v Kennedy Musee Sammy [2017] KEHC 9509 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

HIGH COURT CRIMINAL CASE NO 99 OF 2014

REPUBLIC ……………..…PROSECUTOR

VERSUS

KENNEDY MUSEE SAMMY …..ACCUSED

JUDGMENT

1. The accused KENNEDY MUSEE SAMMY was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code the particulars of which were that on 13th October, 2014 at Waruku village Dagorretti District within Nairobi County murdered ROSE MUKUI.

2. He pleaded not guilty to the said charges and to prove its case against him the prosecution called a total of six (6) witnesses and when put on his defence the accused gave a sworn defence and called no witnesses.

3. The prosecution case was that the deceased was the accused’s girl friend.  The deceased used to stay with PW1 MARY NZILANI KITUKU the elder sister but would occasionally stay at the accused’s house at Waruku Estate.  On 13/10/2014 at about 1. 00 a.m. PW1 was called by neighbours who told her that the deceased was lying by the road side.  She proceeded to the scene where she found the deceased in the middle of the road with three knife stabbed wounds and a lesso tied around her stomach.

4. It was her evidence that they followed blood steps which led them to the house of the accused and when they got into the house of the accused they found items all over the house as if people were fighting and the deceased purse, jacket and a blood stained knife.  It was her evidence that the accused was not at the scene or the house and that the door of the accused house had not been locked and the house was wet as if it had been washed.   There were wet clothes and few drops of blood on the floor.

5. PW1’s evidence was corroborated by that of PW2 GEORGE KITUKU who stated that they called the police who took photos of the scene and took the body of the deceased away to the mortuary.  He testified that the lesso was tied around the deceased waist.  PW3 MARGARET MUENI KITUKUidentified the body of the deceased on 16/10/2014 for purposes of post mortem examination and confirmed that the body had three stabbed wounds on the left side of the stomach.

6. PW6 PC PETER MWANGI testified that on 13/10/2014 at 2. 30 hrs while on patrol at Elmolo Road within Lavington together with PC Bakari and PC Ochieng they came across a salon car and wanted to inquire where it had come from and one of the occupants introduced himself as  Alex, a brother to the accused, informed him that they were taking the accused to hospital after being attacked at makaburini together with his wife.   He asked him the name of the wife and said she was called Rose.  He asked them where they had left the lady and he said she had been killed and left at the scene.

7. It was his further evidence that there were some hair and blood showing that the body had been dragged to the scene.  They followed the blood steps which lead them to a house less than one hundred meters from where the body was.  At the said house there was disorder, a broken bed, basin with water blood stained and tissue paper, broken plates with blood stains, jumper used to wipe blood and kitchen knife with blood stains.  They interrogated neighbours who said they heard a lady scream three times.  He then followed the accused to Kenyatta National Hospital where he told him that they had been attacked by thugs who killed his wife and that the accused had visible injuries on the stomach.  Under cross examination he stated that Alex the brother of the accused informed him that they got the accused at the scene where they had been attacked.

8. PW5 PC KAPUCHOR KIPSAM  a scene of crime officer visited the scene and took photographs which he produced  as exhibits while PW6 PC PETER OJWANG corroborated the evidence of PW4 and PW5 and stated that at the scene the body of the deceased had stabbed wounds but there were no blood stains, they formed an opinion that the body was carried to the scene and that  at the house of the accused they collected some items which had blood stains.  PW6 DR. DOROTHY NJERU testified that she performed post mortem examination on the body of the deceased and confirmed that the body had several stabbed wounds on the stomach.  There was a cut wound on the right hand.  She formed an opinion that the cause of death was chest injuries due to penetrating sharp trauma.

9. When put on his defence the accused testified on oath and stated that he was living with the deceased as husband and wife and that on 12/10/2014 he escorted the deceased to the bus stage where she took a matatu to her place of work and returned to the house since he was off duty.  At 11. 50 p.m.  the deceased called him and told him to pick her up from the stage.  He left the house  at 12. 10 a.m. and at 12. 15 met her and they proceeded to the house.  Two hundred meters to the house they were attacked by three people and the deceased ran away followed by two people.  It was his evidence that one of the people took out a knife and cut him on the wrist and the stomach.  He raised an alarm and the person left him.  He then ran to the house and lost consciousness and fell down.  The next morning he found himself at Kenyatta under handcuffs.

10. It was his further evidence that there was no fight between him and the deceased in the house.  It was his evidence that he is the one who was wearing the jumper with blood stains and denied having killed the deceased.

ANALYSIS AND DETERMINATION

11. To  sustain a conviction on a charge of murder as defined under Section 203 of the Penal Code, the prosecution is under a duty to prove beyond reasonable doubt  the following ingredients of the offence:-

a. Proof of the fact and the cause of death.

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

c. Proof that the said unlawful act or omission was caused by malice aforethought what is called “mens rea”

12. Section 206 of the Penal Code defined malice aforethought in the following terms:-

“Malice aforethought shall be deemed to be established by evidence proving any or more of the following circumstances:-

a. An intention to cause the death of 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 the death will probably cause the death of grievous harm to some person whether that person is the person actually killed or not although such knowledge  is accompanied by indifferent whether death or grievous bodily harm is caused or not by a wish that it may not be caused.

c. An intention to commit a felony.

d. An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

13. The fact and the cause of the death of the deceased is not in dispute.  PW1 and PW2 confirmed the death of the deceased at the scene where her body was found lying lifeless.  PW3 the mother of the deceased identified her body for purpose of post mortem examination which was done by PW7 Dr. Dorothy Njeru who stated that the cause  of death was chest injuries due to penetrating sharp trauma. The post mortem was done in the presence of PW6 PC Peter Ojwang who had also visited the scene.   Almost all the prosecution witnesses were able to identify the body of the deceased and confirmed that indeed she was dead and since she is neither Lazarus, Jairus daughter, the widow of Niam’s son or the son of the widow of Zerephaths who were raised from death, I find and hold that the prosecution proved beyond reasonable doubt the fact and the cause of death of the deceased.

14. On whether the said death was caused by an unlawful act of omission or commission on the part of the accused person, there is no eye witness who saw the accused person commit the offence herein.  The prosecution case is therefore solely based on circumstantial evidence.  Justice Lesiit in the case of REPUBLIC v MICHAEL MURIUKI MUNYURI High Court of Kenya at Embu Cr. Case No. 71 of 2010 had this to say on what  constitutes circumstantial evidence.

“10. In SAWE v REP (2003) KLR 364 the Court of Appeal held:-

1. In order to justify on circumstantial evidence the inference of guilt; the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.

2. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.

3. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion  of any other reasonable hypothesis of innocence is on the prosecution. This burden  always remains with the prosecution and never shifts to the accused.

4. ….

5. ….

6. ….

7. Suspicion however strong cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.

11.  In ABANGA ALIAS ONYANGO v REPUBLIC CR. A. NO. 32 OF 1990 URthe Court of Appeal set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction.  These are:-

‘It is settled that a case rest entirely on circumstantial evidence, such evidence must satisfy three tests:-

i. The circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established.

ii. Those circumstances would be of a definite tendency unerringly pointing towards guilt of the accused.

iii. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

15. In respect of this case the deceased was found lying on the road dead and upon tracing the blood drops from the scene, this led to the house of the accused wherein according to the evidence of PW1 a purse which the deceased used to carry everyday was found at the  said house, items were thrown all over the house, there were broken plates and a blood stained knife together with a jumper the deceased used to wear.   According to the evidence of PW4 he met the accused being taken to the hospital and he was informed that the deceased had been left at the scene but upon visiting the scene there was less blood at the scene than those at the house of the accused.

16. If the deceased was killed at the scene as per the information given to PW4, then where did the blood stains in the house come from?   I have contrasted this evidence against the evidence of the accused person in his defence that he ran to the house leaving the deceased and lost consciousness against the evidence of PW4 and would dismiss the accused evidence as unbelievable in the prevailing circumstances. The following issues have not been answered; how did the brother of the accused come to know that he had been attacked so as to come and take him to the hospital, who cleared the house of the accused to get rid of the blood stains and why did they leave the deceased at the scene? I therefore find and hold that the said death of the deceased ROSE MUKUI was caused by unlawful action on the part of the accused person to the exclusion of somebody else as per the circumstantial evidence herein.

17. The final issue for determination is whether the accused person had the necessary mens rea, that is to say, the intention to kill the deceased.  Justice Kimondi in REPUBLIC v JOSEPH KIPRUTO BETT (2015) eKLR had this to say on malice aforethought:-

“18. Malice aforethought can take various forms.  It can be express, constructive, implied or inferred from a set of circumstances.  Where the homicide is committed in furtherance of a felony or when resisting or preventing lawful arrest, notwithstanding the absence of an intention to kill to cause grievous bodily harm, the accused is deemed to have constructive malice aforethought. See RAPHAEL MBUVI KIMASI v REPUBLIC Court of Appeal at Nyeri, Criminal Appeal No. 61 of 2013 (2014) eKLR. Generally, there are three main tests:- the first is the intention to cause death,   secondly, the intention to cause grievous bodily harm and thirdly if it is shown that the accused knew that there was a serious risk that death or grievous bodily harm could result from his conduct but he proceeds to do so without any lawful excuse.  See NZUKI v REPUBLIC (1993) KLR 171, REPUBLIC v ANDREW MUECHE OMWENGA (2009) Eklr.  While the motive can strengthen the prosecution case it is not obliged to prove it. See generally REPUBLIC v SHARMPOL  SINGH s/o PRETAM SINGH (1962) EA 13 at page 17. ”

18. Taking into account the above analysis, I have looked at the post mortem report and the evidence of Dr. Dorothy Njeru, PW7 on the extent and nature of injuries inflicted upon the deceased and come to a conclusion and find that the accused had intention to kill and indeed succeeded in causing the death of the deceased.   It must be pointed out that whereas motive will make the prosecution stronger proof of the same is not mandatory ina charge of murder.

19. A look at all the circumstantial evidence tendered before the court including the fact that there were more blood stains at the house of the accused than the scene where the body of the deceased was found  and where the accused alleged that they were attacked by a group of three people, the fact that the deceased stomach  at the point of injuries was tied with “a lesso” and the conduct of the accused at the time when the motor vehicle he was in was stopped by the police officers when it was alleged that the deceased who had been attacked together with the accused was left at the scene without  a report thereon being made to the police and find and hold that  there is a strong circumstantial evidence that irresistibly points to the guilt of the accused.

20. I am therefore satisfied and find that the prosecution has proved  beyond any reasonable doubt, that the accused person with malice aforethought caused the death of ROSE MUKUI by an unlawful act and hereby find the same guilty and convict him accordingly.

21. The accused has 14 days right of appeal on conviction.

DATED, SIGNED and DELIVERED at Nairobi this 4th day of October, 2017.

J. WAKIAGA

JUDGE

In the presence of:-

Mrs. Kinoti for the State

Mrs. Gulenywa for the accused

Accused present

Tabitha court clerk