Republic v Nathan Runji Nyaga [2018] KEHC 5205 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

HCCR. NO. 32 OF 2015

(FORMERLY MERU HCCR NO. 22 OF 2014)

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

VERSUS

NATHAN RUNJI NYAGA............................................................ACCUSED

J U D G M E N T

1. NATHAN RUNJI NYAGA, the accused herein faces two counts of murder  contrary to Section 203 as read with Section 204 of the Penal Code. The  particulars in Count I as presented in the information before court are that  on 16th June 2014 at Ngunga village Kiaritha within Tharaka Nithi County he murdered Fidea Igoki while the particulars in Count II provide that on the same date in the same locality, the accused herein murdered Naomi  Wamugo. The accused denied committing the offence and the prosecution  called eight witnesses to prove their case.

2. To begin with the evidence of 2nd witness Corporal Julius Mwiti (PW2) is  that he told this court that while he was on duty on 16th June, 2014 at  Kamende AP Post, the accused presented himself at around 1 p.m and  reported that he had killed two people with a panga which he had and which  had blood stains. The witness told this court that he took the panga from the  accused and kept it before locking up the suspect in the cell.  He then called  the area chief known as Majau and together with another police officer they  interrogated the suspect (accused herein) who reportedly told them that he  killed an old woman and her daughter due to a land dispute. The suspect  reportedly further told the three where the bodies  were at Kiaritha Area. When the witness together with the Area Chief and another police officer  went to the  scene of murder, he told this court that they found bodies of two  women. He called the OCS from Chuka Police Station who proceeded to  Kamaende AP Post and re-arrested the accused person before proceeding to  where the bodies lay to collect the same.  The witness told this court that he  observed bodies and saw deep cut on the head of one of the bodies and other  injuries on the other body.

2. PW3 (Josiah Njagi Gachoi) on his part told this court that he was the  Assistant Chief of  Kiaritha Sub-Location where the incident took place and  that on 16th June 2014 at around 2. 30 pm while in the company of head of  Nyumba Kumi Organization, he received a call from a pastor known as  Shadrack Nyaga of New Apostolic Church that the accused had  committed  murder in his village at Ngunga.  He told this court that he  proceeded to the scene immediately and found Fidea Igoki and her daughter  Naomi had been killed and were lying dead at the scene of murder.

3. Tabitha Nyonga (PW4) another witness called to testify informed this court  of the deep rooted wrangles over land among family of the late Kamanu  Nderi who started fending over his estate when he passed on.  The witness  told this court that when her late father passed on the accused person, who is  a son to Nyaga Kamanu, a step son of Fidea Igoki Kamanu (one of the  deceased or victim in this trial), forcefully entered the house of Fidea Igoki  and started using the portion of land meant for Fidea Igoki (deceased) who  was the mother of PW4.  She further told this court that the accused swore  that the witness and her other siblings should move out of the land or have "a police vehicle parked"at the homestead.  It was her evidence that on 16th June 2014 she was called by her sister in-law and on reaching home she  found her mother Fidea Igoki and her sister lying dead after being cut with  machete on the head, hands and the neck.

4. The other witness called to testify was IP Martin Waga (PW6) who told this  court that he was attached to DCI Meru South and that on 16th June, 2014 at  about 3 pm, he was informed by OCS Chuka that two people had been  murdered at Kiaritha and that he had gotten the report about the murder from  an Assistant Chief of the Area.The officer told this court that in the  company of Corporal Benson Muli (PW7), Corporal Ndoga, P.C Mutere and  OCPD Beatrice Kiraguri, they went to the scene via Kiamwimbi where the  Area Chief was waiting for them and proceeded to the scene. At the scene  they found the bodies of Fidea Igoki and her daughter Naomi Mugo lying  down with their throats slit.  He told this court that they took the bodies to  Chuka District Mortuary while the OCS and  other officers proceeded to the   AP camp to collect the murder weapon and  the suspect.

5. PW7 Corporal Benson Muli; testified and largely corroborated the evidence  of IP Martin Wanga (PW6) regarding what they did after receiving the  report about the murder.  He added that when IP Wanga took the bodies to  the mortuary he together with CIP Nicholas Kipkorir proceeded to Kamandi  AP Camp where they met Corporal Julius Mutu (PW2) who handed over the  suspect (accused herein) and the murder weapon which was a blood stained machete rubbed in a newspaper. The witness stated that he booked the  suspect and proceeded with the investigations. He told this  court that he  took statements of all the witnesses and that he  also took blood samples  from the deceased persons given to him by Doctor who performed post  mortem examination on the bodies for purposes of DNA analysis at the  Government  Chemist.  The other action taken was to forward the machete   and two blouses to the  Government Chemist, an initiative he told this  court that he personally  undertook.  He produced the machete or panga as   P. Exhibit 2, blood stained blouse for the grandmother (Fidea Igoki)  as  P. Exhibit 3 and black flowered blouse for Naomi Wamugo as P. Exhibit 4. The investigating  officer further told this court that he later received a  report from Government  Chemist indicating that the blood stains  on the  murder weapon (P Exhibit 2)  marched the blood sample taken from the  body of Fidea Igoki and the blouse (P. Exhibit 3) she was wearing. The blood samples from Naomi Wamugo  did not tally because the samples he  took from her had decomposed at the  time of  analysis.

6. Dr. Justus Kitili (PW1) the first witness to be called testified and informed  this court that he carried post mortem examination on the bodies of Naomi  Wamugo and Fidea Igoki Kamanu on 20th June, 2016. In regard to the body  of Naomi Wamugo, the doctor formed the opinion that the deceased died  due to a severe head injury inflicted by a sharp object. He tendered post  mortem report in that respect  as P.  Exh 1a. The doctor further testified  that he also performed post mortem examination on the body of Fidea Igoki  Kamanu  and his opinion was that the cause of death was pulmonary arrest  due to severe injury caused by a sharp object which caused a deep cut on the  right side of the skull and a fracture on the skull bone.  He tendered the  postmortem report as P. Exhibit 1 b.

7. Henry Kiptoo Sang (PW8) another  expert witness summoned by this court  testified also and confirmed having receive samples for purposes of DNA  profiling from P.C Benson Muli (PW7) . He told this court that he received  the following items at the Government Chemist namely;

(i) Blood samples in bottle marked 'A'

(ii) A piece of flesh tissue in a plastic container marked "B"

(iii) A machete/panga rubbed in a newspaper marked "C"

(iv) A pink blouse in a kaki envelop marked "D"

(v) A brown blouse with green flowers in kaki envelop marked "E".

8. The witness stated that he observed the panga or machete was  slightly  stained with human blood and that blouses "D" &"E" were stained  heavily with human blood.  Upon carrying the DNA profiling and analysis  the witness told this court that he made the following conclusions:-

a) The DNA profiles generated from blood stained panga and pink blouse marched those of deceased 'A' .

b) The DNA profile of black blouse originated from unknown female person.

He tendered his report as P. Exhibit 9.

9. When placed on his defence the accused person chose to give sworn  statement of defence and denied committing  the offence in both counts. He  told this court that on 16th June, 2014 at around 1. 30 pm, he was called by  area chief by the name Japhet M. Majau for purposes of distributing relief  food and that upon reaching the chief's office the chief inquired from him  whether he knew that two people had been murdered and he answered that  he did not know as he was in his farm working with Nyaga Mwiti, James  Ithagu (DW2) and Margaret Muthoni.  He added that the incident that led to  the demise of the two people being killed occurred at Ngunga 6 kilometers  away  from his home.

The accused person further testified that the chief ordered  for his arrest accusing him for the killing of the two people.

10. The accused defended himself that he knew nothing about the killing and denied having any dispute with them because he lives in Makambora village  while the deceased persons were living at Ngunga village.

He denied having spoken to Corporal Julius Mwiti (PW2) though he  conceded that the same officer arrested him at Kamaindi Chief's Camp.

11. James Ithagu Nyaga (DW2) testified for the defence, told this court that on  16th June, 2014 the accused person, who is his brother had asked him to  accompany him to his shamba which he did alongside  Nancy Wanjiru (wife  of the accused), Nyaga Mwiti and  Kambura. He added that they went on in  the farm until 1. 30 pm when his brother (the accused) was reportedly called  by the area chief over mobile phone.  According to him the accused left  them at the farm and they proceeded with the work and that he was later  informed by the wife of the accused that his brother had been arrested.

12. The witness further added that he did not know why the accused was  arrested though he conceded that he later learnt that he was arrested in  connection with the murder of two people at Ngunga village.  He further  conceded under cross-examination that he was aware of the bad blood  between the accused and the persons found murdered on 16th June, 2014.

In his written submissions done through learned counsel Ms Kaaria, the  accused person faulted the evidence tendered by Corporal Julius Mwiti  contending that the evidence given did not constitute a confession and  therefore the evidence tendered is admissible citing the provisions of  Section 25A of the Evidence Act (Cap 80) which provides that a  confession tending to the proof of guilt made by an accused shall not be  admissible or be a proof against such a person unless such confession is  made before a magistrate or a police officer of a rank not below Chief  Inspector of Police and a 3rd party of the accused person's  choice. The  defence submits PW2 was a Corporal and therefore in his view the  confessions  made to him is admissible and cited a decision in the case of  Republic- vs- Elly Waga Omondi [2015] eKLRin support of that  contention.  The defence  further argues that if the confession was  voluntarily nothing could have  been easier than to formally record the  confession in accordance with the law and produce the confession in court in  evidence.

13. The defence have also submitted that the prosecution's case against the  accused is marred with contradictions and inconsistency.  He has pointed out  that PW2 stated that he surrendered himself at the chief's camp while PW6  stated he surrendered himself at Chuka Police Station.  He has also stated  that the evidence of PW1 that the bodies were well preserved  contradicts the  evidence of PW8 who stated a body tissue marked 'B' had decomposed such  that it was not possible to generate any DNA result.  He  has further  submitted that the DNA evidence was inconclusive as to how the deceased  persons met  their death and what weapon was used to murder them.

14. The defence submits that there was no eye witness to the murder and that  suspicion alone cannot found a conviction.  On this score he relied on the  decision of MUSILI TULO -VS- REPUBLIC [2014] eKLR.

15. The defence has further submitted that his defence of alibi is well grounded   as he  tendered evidence showing he was far away from the scene of crime  at the  material time.  The accused has in sum submitted that the prosecution  has failed to prove its case against him and should be acquitted as the case  has not been proved beyond reasonable doubt.

16. The prosecution on the other hand has submitted it has proved its case  beyond reasonable doubt pointing out that they have been able to establish  and prove beyond reasonable doubt the necessary ingredients in the charge  which are actus reus and mens rea.  Mr. Machirah learned counsel for  the  state has in that respect cited the decision in the case of Republic - vs- Mohammed Dadi Kokane & 7 others [2014] eKLR.

17. This court has considered the evidence tendered in this case and the able  written submissions filed by both the defence and prosecution.  It is true that  the prosecution's case is based on the circumstantial evidence as there was  no eye witness to the incident that left Fidea Igoki Kamanu and her daughter  Naomi Wamugo dead. However it is not a correct hold that since there was  no eye witness to a crime, conviction cannot lie. The correct position is that    a court can make a presumption of likely occurrence or existence of fact if  the prosecution is able to establish  and prove nexus between a fact or what  took place and a common course of human conduct or natural events.  The  provisions of Section 119 of the Evidence Act gives court of law the leeway  to use circumstantial evidence as basis of conviction if the only  inference  that can be drawn from a set of facts is that which points to the  guilt of an  accused person. The question on  whether evidence tendered by the  prosecution in this case is sufficient to draw an inference of guilt against the  accused herein will be addressed shortly.

18. In this case, evidence was tendered by the prosecution that proved that Fidea   Igoki and Naomi Wamugo (the victims of the homicide) were murdered on  16th June, 2014 at Ngunga village Kiaritha Location in Tharaka Nithi  County.  This is uncontested by the fact and evidence tendered by Dr. Justus  Kitili (PW1), the Doctor who performed postmortem examination on the  bodies of Fidea Igoki Kamanu and Naomi Wamugo as evidenced by the two  post mortem reports he tendered as P. Exhibit a and P. Exhibit 2 b shows  that the two victims were brutally murdered.  Their bodies were identified  for purposes of post mortem examination by a relatives (Asenath  Wanyaga Ndwiga -PW5), Area Chief Josphat Njeru and investigating  officer Corporal Benson Muli (PW7).

19. Doctor Kitili (PW1) further gave details on the injuries he noted from the  bodies of the two victims when he performed the post mortem  examination. The details tendered by the doctor were in tandem with the pictures of the  bodies of the victims tendered by Corporal Benson Muli (PW7) as P. Exhibit  5(a) and b ( body of Fidea Igoki) and P. Exhibit 6 (a) - (d) body of Naomi  Wamugo.  The ghastly pictures shows that the victims were grisly murdered  and met their deaths in the most horrendous and gruesome way.  The big  question is who did this and what motive drove the murderers to do such  acts not against one person but two people.

20. The above questions brings to the most important ingredients or elements in  a murder case which is actus reus or the act or the conduct and mens rea  which is motive or malice aforethought or premeditated thought to cause  death to someone.  To establish a case of murder, the prosecution has the  onus to prove these two important elements for a conviction to be sustained.

21. I will begin with the first element of actus reus and evaluate the evidence  tendered to determine if this element was proved by prosecution  against the accused person herein beyond reasonable doubt.  As I have  observed above, the prosecution case against the accused person particularly  on this ingredient is circumstantial.  There was no eye witness to the incident  and besides that the accused person has raised a defence of alibi.  The  prosecution called witnesses in this case who in their view sufficiently  proved that the accused must have murdered the two victims in this case. The evidence of Corporal Julius Mwiti (PW2), Corporal Benson Muli (PW7)  and Henry Kiptoo Sang (PW8) in my view was key to the prosecution's case. Corporal  Julius Mwiti's  evidence has been faulted by defence on the  ground that the evidence that the accused surrendered himself amounted  to a confession and should have been properly taken before being presented  to court.  However, looking at  the circumstances obtaining at the time as  told by PW2 and corroborated by Josiah Njagi Gichohi (PW3), the Area  Assistant Chief, it is clear that when  the AP officer was faced with a  situation where someone shows up with a  blood stained panga saying that  he has murdered  two people, the first thing  that comes to mind is not to  bother about how the confession will be recorded but first establish if what  the suspect says is true.  This is what the AP officer did. He took the  blood  stained panga and safely kept it, locked the suspect and sought help of other  police officers before proceeding to the scene of murder where they  found  two people brutally murdered and lying dead. The blood stained panga or  machete was tendered by PW7 as P. Exhibit 2. Further to this  evidence,  DNA analysis of the blood sample taken from the panga by Henry  Kiptoo Sang (PW8) marched with blood got from  the pink blouse (P.  Exhibit 3) which belonged to Fidea Igoki. Though the  forensic analysis  of the tissue taken from the 2nd victim Naomi Wamugo  wasnot conclusive, of the explanation given by the forensic expert that the tissue had  decomposed and therefore unable to generate DNA results made sense to  this court.  Furthermore the fact that the blood samples taken from a  black  flowered blouse from Naomi Mugo (P. Exhibit 4)  was found to be  from  unknown female by the forensic  expert did not in my view negate the  positive connection made by the same expert of the blood samples on the  panga (P. Exhibit 2) and blood pink blouse (P. Exhibit 3) which was taken  from the body of Fidea Igoki.  The evidence given by Corporal Julius Mwiti  (PW2) was well corroborated by independent evidence from other witnesses  and the evidence cannot be termed as a confession. The officer acted on the  report he received and that action yielded positive results to what had been  reported to him.

22. The above evidence clearly shows that the panga that the accused  surrendered to the AP officer (PW2) was the murder weapon used to murder  the two victims in this case. There is no doubt  about  this fact established  by the evaluation of the above evidence. The AP officer (PW2) gave vivid  evidence on how the accused surrendered to the AP camp.  The accused in  defence stated that he went to the AP camp after being summoned by the  Chief  and that he was not near the scene of  the murder at the material time. This court is however not persuaded by this defence because the accused  person did not accuse either the AP officer (PW2) or the Area Chief for  being  biased against him or of harbouring ill motives against him so as to  give false evidence against him. Furthermore, I find that the only witness  called by the accused to support him on his alibi is  his own brother James  Ithagu Nyaga. The evidence given by that witness is suspect because  apparently  two of the witnesses who were with them one Nyaga and Mwiti  were both deceased. When asked  at cross-examination why the wife of the  accused had not come to testify, he replied that the wife had developed  mental problems.  Besides this the evidence given by the accused in regard  to who was  with them at the farm during the material time is inconsistent  with the evidence of DW2.  According to DW1 (the accused) he proceeded  to his  farm on the material date which according to him was 6 kilometers  away in the company of his brother James Ithagu (DW2) , Nyaga Mwiti and  one Margaret Muthoni.  DW2 James Ithagu on his part testified that they  went to the shamba in the company of Nyaga Mwiti and one Kambura.  The  accused did not allude to  the fact that Nyaga Mwiti was deceased or that his  wife has mental issues. The evidence given by James Ithagu under cross- examination does not make it clear whether Nyaga Mwiti was one and the  same person or there were two people known as Nyaga and Mwiti who have   since passed on. I do find this inconsistency suspicious in addition to the  fact that the  accused did not call the  Chief to support his alibi. This  court finds that the  accused person raised this defence as an afterthought  and the only person he found  to assist him in his  defence was his brother  (DW2).  The defence of alibi is weak when weighed against the  prosecution's case.  The accused throughout trial from the moment the plea  was taken to the time prosecution closed its case did not  raise the issue of  alibi. I find that this aspect of his defence  is  a mere diversionary in an  attempt to avoid the truth and the course of justice.

23. The Area Assistant Chief and AP officer (PW2) had no reason to falsely  implicate the accused. The defence offered none either.  This court finds that  the evidence tendered  by the prosecution is incompatible with the innocence  of the accused person and facts presented are incapable of any other  explanation other than the fact that  it is the accused person who while  armed with a machete (P. Exhibit 2) descended on the victims and brutally  murdered them as seen from the grisly photographs (P. Exhibit 5 (a) -b) and  P.Exhibit 6 (a) - d.  I am not persuaded by the defence submissions that the  prosecution's evidence was full of inconsistencies and unreliable. The  evidence tendered by the prosecution on the question of the element of actus  reus in my view was reliable notwithstanding the fact that there was no eye  witness. As ably illustrated by the case cited by the defence in the case of  John Mwangi -vs- Republic [1983] eKLR, conviction can be sustained by  circumstantial evidence so long as;

" ................. before drawing the inference of the accused's guilt from the circumstantial evidence, it is necessary to be sure that there is no other co-existing  circumstances which would weaken or destroy the inference.........".

I must say that I do not find any evidence tendered by either the prosecution  or the defence which can weaken the inference this court has made  about  the accused  person on the question of actus reus.

24. On the questions of mens rea or motive, the prosecution has submitted that  they have proved that the unlawful act committed with malice aforethought  on the part of the accused and that the attack on the deceased persons was  not spontaneous but carefully planned.  The evidence tendered by Tabitha  Nyonya (PW4),  Asenath Wanyaga Ndwiga and James Ithagu Nyaga (DW2)  clearly proved that there was a deep rooted family conflict over land since  the demise of the late Mr. Kamanu the husband of Fidea Igoki and father to  Naomi Wamugo, (deceased) PW4& PW5. PW4 told this court that when  their father passed on, the accused invaded  their mother's (Fidea Igoki)  house with the intentions of evicting her.   She also alluded to some threats  saying that the accused told them that for them to reside on the land "a police vehicle had to be packed on the land" to protect them. The  wrangles was said to have previously caused the burning  of the house  belonging to the father of the accused and Fidea Igoki and her  daughters  were implicated.  The fact that there was bad blood between the family of  the deceased persons and the accused and his family shows the  motive of  the murder.  The evidence of PW4 and PW5 clearly show that the  heinous act committed by the accused was premeditated and actuated by  malice.  It is my finding that the prosecution has proved this other important  ingredient of murder against the accused.

25. Further to this finding is the fact that the cause of death of the two victims in  this case as observed above  has been well established by the evidence of Dr. Justus Kitili (PW1). That evidence went unchallenged by the defence. Two  victims were brutally murdered and the weapon used the machete produced  as P.Exhibit 2 at the trial. This court finds that the prosecution has  discharged their burden of proving their case beyond reasonable doubt. From the evidence tendered I find that the accused is guilty of the two  counts of murder and he is accordingly convicted.

Dated, signed and delivered at Chuka this 20th day of June, 2018.

R.K. LIMO

JUDGE

20/6/2018

Coram:

Before Hon. R.K. Limo (J)

Prosecutor Mr. Machirah

C/A Martha

Accused -present

Machirah for state

Kaaria for accused present

English- Kimeru

Court:

Judgment signed dated and delivered in the open court in the presence of Kaaria for accused and Machirah for state.

R.K. LIMO

JUDGE

20/6/2018

Machirah:

We do not have previous records.  He can be treated as a first offender.

Kaaria:

The accused person is remorseful.  He prays that this court puts into consideration the fact that the accused has spent time in custody during trial.  He has been incarcerated.  We pray that the factor be considered.

SENTENCE:

Court:

This court has considered the mitigation from the accused person and though he says he is remorseful and that he has been in custody for a long period nothing can take away the fact that the accused herein committed a heinous crime in a most brutal way.  The victims met their deaths in most horrendous way and there can never be excuse  for that. The law at the moment under Section 204provides for only one sentence for person convicted of murder but the supreme court has held that that provision should not tie the court's hands in meting out any appropriate sentence besides death.  In that regard given the circumstances the accused deserves appropriate punishment commensurate to what he did.  He should not have murdered two people simply because of land dispute.  Land disputes are solved through a civil process not murder.  Infact under Section 96 the Law of Succession Act, a murderer automatically looses right to inherit property of a murdered person.  Having said that, the accused is sentenced to life imprisonment.  14 days right of appeal.

R.K. LIMO

JUDGE

Machirah:

We pray for a copy of the Judgment.

Kaaria:

We also pray for a copy of the Judgment and typed proceedings.

Court:

A copy of the Judgment be provided to the Director of Public Prosecution and typed proceedings and Judgment be supplied to the defence.

R.K. LIMO

JUDGE

20/6/2018