Republic v Pius Koome & Stephen Miriti [2021] KEHC 5190 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

(CORAM: CHERERE-J)

CRIMINAL CASE NO. 86 OF 2018

BETWEEN

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

AND

PIUS KOOME.............................................1st ACCUSED

STEPHEN MIRITI....................................2nd ACCUSED

JUDGMENT

1.  PIUS KOOME and STEPHEN MIRITI (Accused 1 and 2 respectively) are jointly 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 05th September, 2018 at Kirimampio Location in Igembe South Sub-County within Meru County, jointly murdered WILSON MWERESA

PROSECUTION CASE

2.  On 31. 08. 2018, PW2 Livingstone MuriukiescortedWILSON MWERESA(deceased) to Maua Police Station where he reported that he had been assaulted by Miriti, Pius and Kirimi. The witness also escorted WILSON MWERESA to hospital where he was treated and discharged. WILSON MWERESAwas later to be found byPW1 Rose Karimilying dead in her farm on 05. 09. 2018. PW3 CPL Timothy Wachira visited the scene and removed deceased’s body to the mortuary. It was his evidence that before the material date and more specifically on 16. 05. 2018, deceased had reported that Joshua Muturia Miriti, Koome, Mugambi and Muriuki had threatened to kill him. The witness stated on the basis of recovery from deceased’s person of an OB extract number 78 of 16. 05. 2018 by which he had reported threats to his life and warrants of arrest for Pius, Miriti and Kirimi, he caused Accused persons to be arrested and charged.

3.  PW4 Dr. Michael Kariuki tendered deceased’s P3 form dated 31. 08. 2018 PEXH. 1 which shows that he had suffered harm arising out of an assault by a man known to him who was in the company of two others. The doctor also tendered deceased’s postmortem dated 21. 09. 2019 PEXH. 2which reveals that the deceased had multiple generalized bruises on face, hands, legs and neck, bleeding in the skull and brain and had died of cardiorespiratory arrest due to head injury with asphyxiation due to strangulation and aspiration.

DEFENCE CASE

4.  In his sworn defence, Pius Koome (Accused 1) stated that deceased was his cousin. He denied assaulting, threatening to kill nor killing the deceased.

5. In his sworn defence, Stephen Miriti (Accused 2) similarly denied the offence and denied assaulting, threatening to kill nor killing the deceased who was his cousin.

ANALYSIS AND FINDINGS

6.   I only heard the evidence by Accused 2 having taken over the matter from Hon. Ong’injo J. before whom the prosecution case and 1st Accused’s defence were heard.

7.  I have considered the evidence on record. For Prosecution to secure a conviction on the charge of murder, it has to prove three ingredients which are: the death of the deceased; that Accused committed the murder and that he was actuated by malice. (See Anthony Ndegwa Ngari v Republic [2014] eKLR).

(a)  The death of the deceased

8.  A postmortem form PEXH. 2 reveals that the deceased suffered had multiple generalized bruises on face, hands, legs and neck, bleeding in the skull and brain and had died of cardiorespiratory arrest due to head injury with asphyxiation due to strangulation and aspiration.

(b)  Proof thataccused persons or any one of them committed the unlawful act which caused the death of the deceased

9.   It is not in dispute that the evidence presented by the prosecution was circumstantial in character there being no direct or eye-witness evidence to show that the appellant killed the deceased.

10.  The crucial point from the evidence tendered by PW2 is that of an alleged recovery from deceased’s person of an OB extract number 78 of 16. 05. 2018 and a warrant for the arrest of accused persons and another who had allegedly threatened to kill him.

11. It is worthy to note that the alleged OB extract number 78 of 16. 05. 2018 and a warrant for the arrest issued against accused persons were not tendered as exhibits thereby creating a doubt as to whether indeed deceased had reported that accused person had made a threat to his life.

12. In the light of the foregoing, I find that accused persons defence denying the offence were overwhelming unshaken and cast a reasonable doubt that in favour of accused persons.

13.  I have considered the holding by the Court of Appeal inSAWE vs. REPUBLIC[2003] KLR 354 and I am persuaded that the prosecution case contains insufficient circumstantial evidence that does not form a complete chain to justify a conviction.

14. The totality of my consideration of this case is that the prosecution has not proved its case beyond reasonable doubt. Accused persons are hence found NOT GUILTY of the offence of murder and are as a result acquitted.

DELIVERED AT MERU THIS 15TH DAY OF JULY 2021

T. W. CHERERE

JUDGE

Court Assistant                                 -  Kinoti

Accused 1                                           -  Present

Accused 2                                           -  Present

For the Accused persons                  -  Mrs. Otieno Advocate

For the State                                      - Ms. Mwaniki