REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E006 OF 2022
REPUBLIC…………………………….…………………..……PROSECUTOR
VERSUS
EMMA WANJIRU WANJIKU.…….………………....………. 1 st ACCUSED
EVELYNE WANJIRU NJONJO...………………………..…….2 nd ACCUSED
SAMUEL GATHOGO KIHARA………………………………..3 rd ACCUSED
PETER KAGO WANJIKU………………………………………4 th ACCUSED
JUDGEMENT
A. INTRODUCTION
1. The accused persons EMMA WANJIRU WANJIKU , EVELYNE WANJIRU NJONJO , SAMUEL GATHOGO KIHARA and PETER KAGO WANJIKU were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) of the Laws of Kenya. The particulars of the offence were that on the 14 th day of February, 2022 at Magomano area of Githunguri location, Githunguri Sub County within Kiambu County, jointly with others not before the court murdered JAMES KIHURIA NDUNG’U . They all denied the charge faced and pleaded not guilty. The case proceeded to full trial with the prosecution calling eight (8) witnesses in support of their case.
(B) PROSECUTION CASE
2. PW1 Paul Muigai Ndungu, confirmed that the deceased was his younger brother and recalled that on the material morning at about 3.00am, he was called by the deceased, who requested that he be escorted until the junction at the main road, to enable him get to work. As they were enroute, they heard noise and shortly thereafter, stumbled upon their friend Peter Munge(PW4) being assaulted by the accused persons herein, who were persons well known to them as they were village mates. He tried to intervene as requested the appellants to stop assaulting the said Peter Munge, but the accused persons on instruction of one, “Karengo” who was not amongst the accused persons, turned on him and started to assault him. His deceased brother, joined the fight to protect him, but unfortunately, he too got on the receiving end and was assaulted by the mob.
3. At some point during the assult, he got an opportunity to escape and ran for his dear life, leaving behind the deceased, still being assaulted and when he got home, he woke up his father and they proceeded back to the scene to rescue the deceased, who unfortunately they found to have be grievously hurt and was in bad shape. By then the village elder had arrived at the scene and he called the police, who came and rushed the deceased to Githunguri level 4 hospital, where he was treated and was later referred to Kiambu level 5 hospital, where he unfortunately lost the fight for his life at about 1900hrs on the following evening. Later post mortem was carried out and it was established that the deceased had succumbed to head injuries sustained from the said assault.
4. Under cross examination, PW1 stated that he did not know why PW4 was being assaulted and the said incident had occurred along Magomano – Ruiru road, which did not have street lights. Be that as it may he was sure that he had seen all the accused persons that night and recognized them as person known to him. He reiterated that the crowd assaulting PW4, was a group of about seven (7) persons and he knew all of them. It was also the same group that had assaulted him and the deceased. In reexamination, he maintained that he was in close proximity with all the accused persons, and that there was a pub nearby which had security light, which also helped him positively identify all the accused persons as being amongst the group, who had assaulted him and the deceased.
5. PW2 Jane Nyambura, testified that on the material morning, she met, “Baba Kamojo” at about 7.30am and he asked her to rush to Githunguri level 4 Hospital, to check on her son, as he had been assaulted and had been rushed to the said hospital for treatment. On arrival, she found the deceased unconscious, while PW1 too was hurt and was bleeding from wounds inflicted all over his body. Due to the extensive injuries, the deceased had suffered, he was transferred for specialized treatment at Kiambu level 5 hospital, but unfortunately passed on while receiving treatment thereat. She confirmed that she did not witness the assault incident but was told by PW4 and her husband that the accused person’s had assaulted her son. Under cross examination she confirmed that she had heard from the grapevine, that her sons are alleged to have stolen water jerrycans, but she did not believe the same to be true.
6. PW3 Constable Geoffrey Wanjiru, of DCI Githunguri police station stated that he was assigned to investigate a case of mob justice, and together with his colleagues did visit the scene of crime at about 8.00am on the material morning. The scene looked disturbed and they also saw “ Ash ”, where the deceased had been lynched. Based on information collected, they looked for Peter Munga (PW4), who narrated to them how the mob had removed him from his house on claims that he was a thief and proceeded to assault him. PW4 mentioned all the accused persons as being part of the group that had assaulted him, amongst others that he did not know, but was sure of the four, since they were common patrons at, “ Base Poa- club ”, which was run by the 1 st accused person.
7. Based on this information, they arrested all the accused persons and subsequent investigations established that on the material night, PW4 was suspected of having stolen a client’s phone at the said club and the accused person’s, together with other not before court had proceeded to his house and demanded that he produces the said stolen phone. PW4 was violently removed from his house and was assaulted by the said mob, and while taking him to Magomano police station, which was about 1.5km away, PW1 and the deceased tried to rescue PW4 from the Mob, who turned on them and proceeded to assault them too.PW1 managed to run away, but unfortunately the deceased did sustain fatal injuries and later succumbed, while undergoing treatment at Kiambu Level 5 hospital.
8. After completing his investigation, he preferred the charge before court against the said accused persons and further confirmed in cross examination, that he arrested all the accused persons based on Peter Munge’s (PW4’s) evidence as to what transpired on the material night. He reaffirmed that, PW1 and the deceased had attempted to rescue PW4 from the mob, but ended up attracting the Mob’s wrath.
9. PW4 Patrick Munge Githundu, recalled that on 14.02.2022 at about 1.30am, he was asleep at his house, when he was woken up by a group of people, who demanded that he opens his door and immediately he did so, they descended on him, with blows and kicks, while removing him therefrom. The said group included all the accused person, and one Paul, who was not present in court. It was also his further evidence that though it was a dark night, he identified all the accused person, from the light within his house, which he put on, before the entered therein to remove him. He was thereafter taken to the matatu stage, where the said group continued to assault him using “wooden sticks/fimbo.”
10. At some point, as the assault was ongoing, his friends PW1 and the deceased came to intervene and told the mob to escort him to the police station, but they turned on them and started to assault them, at which point he got an opportunity to escape and dashed into a nearby forest, where he remained until the following morning and was rescued by his siblings and taken to Githunguri level 4 hospital for treatment. He later learnt that the deceased had died from the injuries sustained, and was sure that all the four accused persons participated in beating up the deceased.
11. PW4 confirmed, under cross examination that his house did not have electricity, but when he was being picked up, his brother Samson had come out of his house and put on his phone-torch, which he used to identify all the accused persons and others who had not been arrested in connection to the said incident. Further he confirmed that he could not tell, who assaulted the deceased and was not called to attend any identification parade.
12. PW5 Samson Kimani Githundi, confirmed that PW4 was his younger brother and rehashed PW4’s evidence concerning how he was picked from his house by a group that included the accused persons, who were armed with wooden sticks and panga’s and were accusing PW4 of thief. The said group proceeded to drag PW4 away from their compound, and he did wait for a few minutes and followed them, but he met his friends who advised him not to follow the mob as they were likely to harm him. He heeded to their advice and retired back to their home until the following morning at about 6.00am, when he went to “Base Poa bar” and found “Paul” and Accused 2, still enjoying their drink, and Paul told him that PW4 had escaped.
13. He proceeded to look for PW4, within the village and got word that he had been seen lying within a forest, injured and upon finding him, organized and had him rushed him to Githunguri level 4 hospital for medical attention. He further confirmed that he was not present at the scene of crime and did not know who inflicted fatal injuries upon the deceased. Under cross examination he confirmed that he used his phone torch to identify all the accused persons, who were their village mates and persons well known to him.
14. PW6 Dr Eunice Mugwero, the Kiambu county consultant forensic pathologist undertook the post mortem examination on the deceased body on 25.02.2022 and confirmed that he had suffered multiple soft tissue injuries and abrasions all over his body (face, trunk, both upper and lower limbs) and lost a lot of blood in the said process. Further, the deceased had also suffered compound fracture of the tibia and fibular bones and burn wounds on the lower leg. On the head the deceased suffered a large laceration on the back of the head measuring about 12cms and further examination of the head did reveal that the deceased had multiple skull fractures both linear and depressed at the back of the head leading to inter-cranial hemorrhage at the base of the skull, which was also fractured. She concluded that the immediate cause of death was due to the head injury suffered caused by blunt force object consistent with physical assault.
15. PW7 Samauel Kihiu Kirago stated that he was the village elder of magomano village and his role included coordinating village security and welfare of its occupants. He recalled that on the material day at about 3.00am, he was at home asleep, when he heard screams from the main road, which was about 100m from his house. He woke up and went to check on what was happening and found a crowd of people, who were saying that they had arrested a “phone thief”. He saw two persons being assaulted, but could not identify the said persons, or anybody in the said crowd, since it was dark. He called the area chief to updated him on what was transpiring, and thereafter went back to his house. He did not go near the persons being assaulted.
16. Under cross examination, he confirmed that he saw the mob assault the deceased, but did not see any the accused persons, therein. He also affirmed that PW4 was known to be a petty thief, within their village and had a bad reputation preceding him.
17. PW8 Senior Chief Stephen Warui of Githunguri Sub – location, also confirmed that he was at home on the material night, when he was called at about 3.30am, by PW7, who informed him of the mob justice incident, within his area. He duly informed the OCS, and Assistant County Commissioner, but did not visit the scene,which was about 2km from his home. On the following day, he was informed by the police that one person had died as a result of the injuries sustained due to the assault.
18. The prosecution closed their case at this point, and the accused were all placed on their defence and opted to given sworn evidence.
(C) DEFENCE CASE
19. DW1 Emma Wanjiru Wanjiku, gave sworn evidence and confirmed that she resided with Githunguri sub county and operated a bar business, christened “Promise bar.” She recalled that on 13.02.2023 at night, they were within her bar when a client came and complained that PW4 had stolen his phone. Together with the 3 rd accused person herein and other clients, they opted to go look for PW4, at his home in order to retrieve the stolen phone and further clarified that PW4, had a history of breaking the law and they suspected that he was involved in the three (3) break-in’s that had occurred to her business where she had incurred losses amounting to over Kshs 60,000/=.She produced various OB reports made of the same.
20. They found PW4 at his home and on interrogation he had insisted that he had not stolen from her. They then opted to take him to the police station and enroute, met a big crowd of over 100 people, who insisted on instant justice, and proceeded to melt mob justice upon the said PW4. She stepped aside and called the village elder and a police officer, known as “Komora” after which she left the scene and went to back to her business. She denied taking part in the mob justice and also clarified that she was not around when the said mob descended upon the deceased.
21. The following morning, they got word of the deceased death and she and her co accused was subsequently arrested on suspicion of having been part of the mob that beat up the deceased, which allegation was not true. She also believed that she had been set up by her business rivals and her former employer, who was not happy that she had opened a similar business within the same area. Under cross examination DW1 reiterated her evidence and confirmed that PW5 was her customer and they were not enemies. She also stuck to her guns and denied participating in the said crime.
22. DW2, Evelyne Wanjiru Njonjo, testified that on the material night, she was at her house, asleep, when at about midnight heard noise from the road and woke up. She inquired from the watchman, on what was going on, and was informed that a thief had been arrested for stealing a phone, but out of fear, opted not to go to the scene. She affirmed that she did not know the deceased and also did not participate in assaulting him as alleged. Under cross examination, she clarified that the incident had occurred at about 12.30am, which was about 30 minutes after she had closed the club and DW1 had already left for the night, accompanied by DW3. She insisted that she did not go to the scene of the crime and did not see any of her co accused participate in assaulting the deceased.
23. DW3 Samuel Gathogo Kihara, also recalled that on the material night he was at “Base Poa- bar”, when a customer known as Karemu, came in and informed them that PW4 had stolen his phone. They (about 50 people) opted to go look for PW4’s at his house and proceeded to interrogate him on the stolen phone, but he vehemently denied being involved in the said theft. They opted to take him to Githunguri police station, but enroute met more members of the public, who were enraged and insisted on discipling PW4. At that point he was overwhelmed and he opted to take off, leaving PW4 with the said big mob, that had gathered and retired to his home. The following morning, he got information regarding the deceased, but was categorical that he was not part of the group/crowd that assaulted him.
24. DW4 Peter Kago Wanjiku, stated that he was a bode boda rider and on the material, night had worked up to around Midnight, as he had to wait for his customer, who was at DW1’s club. Once the said customer was done, he dropped him at Githunguri town, and enroute back met a big crown, who were enraged and were beating up a thief. Since he had his motorcycle, he feared for his safety and opted to go home direct and did not join the said mob. The following day in the afternoon, he went to drink Alcohol at DW1’s pub and were arrested to assist in investigations that was being carried out. He reiterated that he did not know the deceased and did not take part in the mob justice, that resulted in the deceased passing on.
(D) DETERMINATION
25. I have considered the evidence adduced by both parties and submissions on record, and the question that arises before this court is whether the prosecution has proved beyond reasonable doubt that all the accused person’s herein murdered JAMES KIHURIA NDUNG’U , the deceased herein.
26. The cardinal principle in criminal law, as articulated in Woolmington v DPP (1935) AC 462 , remains that the prosecution bears the burden of proving guilt beyond reasonable doubt. This principle takes on heightened significance in a capital offense where the stakes could not be higher. The court in the said case stated as follows:
“ Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject (to the qualification involving the defence of insanity and to any statutory exception). If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether (the offence was committed by him), the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
27. Section 203 of the Penal Code defines the offence of murder as follows:
“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
28. Arising from the foregoing, the ingredients of murder were explained in the case of Roba Galma Wario vs. Republic [2015] eKLR, where the court held that:
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant, and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
29. In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR, the elements of the offence of murder were listed by M. Odero, J as follows:
1) The fact of the death of the deceased.
2) The cause of such death.
3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly
4) Proof that said unlawful act or omission was committed with malice aforethought. ( Aslo see; Mombasa High Court Case Number 42 of 2009 between Republic vs. Daniel Musyoka Muasya, Paul Mutua Musya, and Walter Otieno Ojwang )
30. I will now proceed to interrogate each issue.
(i) The death of the deceased and its cause.
31. It is common ground that JAMES KIHURIA NDUNG’U died on 14.02.2022 and this was confirmed by all the prosecution witnesses. Dr Eunice Mugweru (PW6), the pathologist who conducted the postmortem examination on the deceased body on 25.02.2022, confirmed that the deceased suffered multiple soft tissue injuries, bruises and abrasions all over his body (face, trunk and on both lower and upper limbs). He had a lot of bleeding under the skin/on the muscles, which was indicative of defensive injuries. Further he had fracture of the right femur and tibia on the right leg and multiple burn wounds on the lower leg.
32. Further, the deceased also suffered multiple skull fracture both linear and depressed on the back of the head/ base of the skull, leading to intercranial hemorrhage and as a result, she concluded that the deceased had died due to severe head injuries, caused by blunt force trauma consistent with Assault. She produced the post mortem report as Exhibit 1.
33. This court therefore finds as a fact that the deceased died as a result of the said extensive injuries as enumerated above.
(ii) Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased :
34. PW1, PW4 and PW5, squarely placed all the accused persons as being part of the mob that assaulted the deceased on the material night. PW4, testified that he was at home asleep, when the mob, which included all the accused person came and violently removed him from his house on the premise that he had stolen a phone belonging to a customer, patronizing DW1’s pub. It was his evidence that when they demanded that he opens his door, he put on the light and identified all the accused persons, though in cross examination he contradicted himself, by stating that his house did not have electricity, but PW5 had put on his phone torch, which he used to see all the accused persons and others not arrested.
35. PW5, who is PW4 elder brother too, confirmed that, when the mob came to pick his brother, he woke up and put on his mobile phone torch, and clearly saw all the accused person. His evidence in particular was that;
“The people who came included Paul, Kago, Gathogo, Eva and Shiro. When they knocked, I put on my phone torch and saw them clearly. I see all of them in court apart from Paul .”
36. PW5 did not follow the mob, that whisked away his brother away, and was not present, when the said mob descended upon the deceased, but PW1 and PW4 confirmed that it was the same group that fatally assaulted the deceased, when he attempted to intervene to rescue PW4, who was his friend.
37. In defense, DW1 and DW3 admitted to being part of the group that went to fetch PW4 from his house but distanced themselves from the incident, by alleging that a larger mob of over 100 people joined them as they were taking PW4 to the police station and insisted on melting mob justice on him. At that point DW1 averred that she left the group and went back to her bar, while DW3 averred that he went home to sleep and both were categorical that they were not present, when PW1 and the deceased came to the scene and they certainly did not participate in assaulting the deceased.
38. DW2 and DW4 also distanced themselves from the incident and were categorical that they were not part of the group that either picked PW4 from his house and/or subsequently assaulted the deceased.
39. From the evidence adduced, the key question that arises is whether all the accused persons were adequately identified as being part of the group that participated in the mob justice, and acted with a common purpose to do so, which lead to the deceased death.
40. To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness's testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness's intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness's testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before.
41. Further in evaluating the accuracy of identification testimony, the court should also consider such factors as: -
(a) What were the lighting conditions under which the witness made his/her observation?
(b) What was the distance between the witness and the perpetrator?
(c) Did the witness have an unobstructed view of the perpetrator?
(d) Did the witness have an opportunity to see and remember the facial features, body size, hair, skin, color, and clothing of the perpetrator?
(e) For what period of time did the witness actually observe the perpetrator?
(f) During that time, in what direction were the witness and the perpetrator facing, and where was the witness's attention directed?
(g) Did the witness have a particular reason to look at and remember the perpetrator?
(h) Did the perpetrator have distinctive features that a witness would be likely to notice and remember?
(i) Did the witness have an opportunity to give a description of the perpetrator? If so, to what extent did it match or not match the accused, as the court finds the accused's appearance to have been on the day in question?
(j) What was the mental, physical, and emotional state of the witness before, during, and after the observation?
(k) To what extent, if any, did that condition affect the witness's ability to observe and accurately remember the perpetrator?
( See Nzaro Vs Republic (1991) KAR 212 & S v Henderson )
42. Further In Wamugunda Vs Republic (1989) KLR 424 at page 424 the court had this to say;
“ where only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely Make it the basis of a conviction.”
43. PW1, PW4, and PW5 were all certain in their evidence as to the presence of all the accused persons amongst the mob that assaulted the deceased on that material night. They were in close proximity, were persons known to each other as they resided with the same village and DW1 even confirmed that PW5 would patronize her club. The events on the said night also occurred over a few hours and apart from light from PW5 phone torch, PW1 also confirmed that there was security light from the pub, which also helped him established the identity of all the accused persons at the scene of crime. He stated that;
“ I tried to help, “Munge” and ended up being assaulted. The incident happened at 3.00am outside a shop/club, but on the road. The club was next to the road ( Magomano- Ruiru road). There were no street lights, where the incident occurred. It was a dark night. I knew all the accused persons. Though it was dark, I saw them and they were persons know to me. I cannot remember how they were dressed. The crowd we found assaulting “Munge” were about seven (7) persons, they were our villagers and I knew all of them by name and appearance, and they assaulted “Munge, the deceased and me using planks of wood and their hands.”
44. Under Re – examination PW1 further clarified that;
“ Though it was dark, I saw seven persons assault Munge. It was on the road; the accused are known to me and were in near proximity and I saw them. The road is also next to a pub, which also has security light .”
45. DW1 and DW3 admitted to being in the group that accosted PW4 and removed him from his house and as they went away with him, PW1 and the deceased went to assist PW1 and unfortunately ended up bearing the brunt of the mob. DW1 and DW3 defence that they left the group mid-stream is doubtful as the sequence of events was not broken and it is improbable that 100 people might have joined them at 3.00am as alleged. Similarly, DW2 and DW4 line of defense cannot hold having been directly placed at the scene of crime.
46. It is clear that all the accused persons acted as a group with the common intention to disciple PW4 and the deceased, whom they deemed was his accomplice. When the prosecution evidence is considered in its totality, it leaves no shred of a doubt that all accused person were directly involved in the vicious assault on the person of the deceased and without doubt, the prosecution did establish that the inculpatory facts herein are incompatible with the innocence of all the accused and incapable of any other reasonable explanation, or reasonable hypotheses, other than that of their guilt.
47. Malice Aforethought
49. Having found that the prosecution has proved actus reus , the other issue for determination is whether malice aforethought can be inferred from the prosecution's evidence presented. The offence of murder is complete when “ malice aforethought ” is established. Section 206 of the Penal Code, provides that:
“(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 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;
(c) An intent 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.”
50. In assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the appellant foresaw the real or substantial risk and the consequences of targeting the part of the body that may result in the fatal injuries suffered by the deceased. A similar statement of Law was made in the persuasive authority of S. vs. Sigwahla 1967 4 SA 566 in which the court stated:
“The expression intention to kill does not in Law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such a result. This form of intention is known as a dolus eventualis as distinct from dolus directus.”
51. The accused persons used wooden planks/ fimbo to inflict fatal injuries upon deceased head resulting to multiple fractures of the skull, fractured the fibula and tibia bones and multiple soft tissue injuries all over the body. They definitely knew or ought to have known that the same would be fatal.
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IN THE HIGH COURT OF KENYA AT KIAMBU
CRIMINAL CASE NO. E006 OF 2022
REPUBLIC…………………………….…………………..……PROSECUTOR
VERSUS
EMMA WANJIRU WANJIKU.…….………………....………. 1 st ACCUSED
EVELYNE WANJIRU NJONJO...………………………..…….2 nd ACCUSED
SAMUEL GATHOGO KIHARA………………………………..3 rd ACCUSED
PETER KAGO WANJIKU………………………………………4 th ACCUSED
JUDGEMENT
A. INTRODUCTION
1. The accused persons EMMA WANJIRU WANJIKU , EVELYNE WANJIRU NJONJO , SAMUEL GATHOGO KIHARA and PETER KAGO WANJIKU were charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) of the Laws of Kenya. The particulars of the offence were that on the 14 th day of February, 2022 at Magomano area of Githunguri location, Githunguri Sub County within Kiambu County, jointly with others not before the court murdered JAMES KIHURIA NDUNG’U . They all denied the charge faced and pleaded not guilty. The case proceeded to full trial with the prosecution calling eight (8) witnesses in support of their case.
(B) PROSECUTION CASE
2. PW1 Paul Muigai Ndungu, confirmed that the deceased was his younger brother and recalled that on the material morning at about 3.00am, he was called by the deceased, who requested that he be escorted until the junction at the main road, to enable him get to work. As they were enroute, they heard noise and shortly thereafter, stumbled upon their friend Peter Munge(PW4) being assaulted by the accused persons herein, who were persons well known to them as they were village mates. He tried to intervene as requested the appellants to stop assaulting the said Peter Munge, but the accused persons on instruction of one, “Karengo” who was not amongst the accused persons, turned on him and started to assault him. His deceased brother, joined the fight to protect him, but unfortunately, he too got on the receiving end and was assaulted by the mob.
3. At some point during the assult, he got an opportunity to escape and ran for his dear life, leaving behind the deceased, still being assaulted and when he got home, he woke up his father and they proceeded back to the scene to rescue the deceased, who unfortunately they found to have be grievously hurt and was in bad shape. By then the village elder had arrived at the scene and he called the police, who came and rushed the deceased to Githunguri level 4 hospital, where he was treated and was later referred to Kiambu level 5 hospital, where he unfortunately lost the fight for his life at about 1900hrs on the following evening. Later post mortem was carried out and it was established that the deceased had succumbed to head injuries sustained from the said assault.
4. Under cross examination, PW1 stated that he did not know why PW4 was being assaulted and the said incident had occurred along Magomano – Ruiru road, which did not have street lights. Be that as it may he was sure that he had seen all the accused persons that night and recognized them as person known to him. He reiterated that the crowd assaulting PW4, was a group of about seven (7) persons and he knew all of them. It was also the same group that had assaulted him and the deceased. In reexamination, he maintained that he was in close proximity with all the accused persons, and that there was a pub nearby which had security light, which also helped him positively identify all the accused persons as being amongst the group, who had assaulted him and the deceased.
5. PW2 Jane Nyambura, testified that on the material morning, she met, “Baba Kamojo” at about 7.30am and he asked her to rush to Githunguri level 4 Hospital, to check on her son, as he had been assaulted and had been rushed to the said hospital for treatment. On arrival, she found the deceased unconscious, while PW1 too was hurt and was bleeding from wounds inflicted all over his body. Due to the extensive injuries, the deceased had suffered, he was transferred for specialized treatment at Kiambu level 5 hospital, but unfortunately passed on while receiving treatment thereat. She confirmed that she did not witness the assault incident but was told by PW4 and her husband that the accused person’s had assaulted her son. Under cross examination she confirmed that she had heard from the grapevine, that her sons are alleged to have stolen water jerrycans, but she did not believe the same to be true.
6. PW3 Constable Geoffrey Wanjiru, of DCI Githunguri police station stated that he was assigned to investigate a case of mob justice, and together with his colleagues did visit the scene of crime at about 8.00am on the material morning. The scene looked disturbed and they also saw “ Ash ”, where the deceased had been lynched. Based on information collected, they looked for Peter Munga (PW4), who narrated to them how the mob had removed him from his house on claims that he was a thief and proceeded to assault him. PW4 mentioned all the accused persons as being part of the group that had assaulted him, amongst others that he did not know, but was sure of the four, since they were common patrons at, “ Base Poa- club ”, which was run by the 1 st accused person.
7. Based on this information, they arrested all the accused persons and subsequent investigations established that on the material night, PW4 was suspected of having stolen a client’s phone at the said club and the accused person’s, together with other not before court had proceeded to his house and demanded that he produces the said stolen phone. PW4 was violently removed from his house and was assaulted by the said mob, and while taking him to Magomano police station, which was about 1.5km away, PW1 and the deceased tried to rescue PW4 from the Mob, who turned on them and proceeded to assault them too.PW1 managed to run away, but unfortunately the deceased did sustain fatal injuries and later succumbed, while undergoing treatment at Kiambu Level 5 hospital.
8. After completing his investigation, he preferred the charge before court against the said accused persons and further confirmed in cross examination, that he arrested all the accused persons based on Peter Munge’s (PW4’s) evidence as to what transpired on the material night. He reaffirmed that, PW1 and the deceased had attempted to rescue PW4 from the mob, but ended up attracting the Mob’s wrath.
9. PW4 Patrick Munge Githundu, recalled that on 14.02.2022 at about 1.30am, he was asleep at his house, when he was woken up by a group of people, who demanded that he opens his door and immediately he did so, they descended on him, with blows and kicks, while removing him therefrom. The said group included all the accused person, and one Paul, who was not present in court. It was also his further evidence that though it was a dark night, he identified all the accused person, from the light within his house, which he put on, before the entered therein to remove him. He was thereafter taken to the matatu stage, where the said group continued to assault him using “wooden sticks/fimbo.”
10. At some point, as the assault was ongoing, his friends PW1 and the deceased came to intervene and told the mob to escort him to the police station, but they turned on them and started to assault them, at which point he got an opportunity to escape and dashed into a nearby forest, where he remained until the following morning and was rescued by his siblings and taken to Githunguri level 4 hospital for treatment. He later learnt that the deceased had died from the injuries sustained, and was sure that all the four accused persons participated in beating up the deceased.
11. PW4 confirmed, under cross examination that his house did not have electricity, but when he was being picked up, his brother Samson had come out of his house and put on his phone-torch, which he used to identify all the accused persons and others who had not been arrested in connection to the said incident. Further he confirmed that he could not tell, who assaulted the deceased and was not called to attend any identification parade.
12. PW5 Samson Kimani Githundi, confirmed that PW4 was his younger brother and rehashed PW4’s evidence concerning how he was picked from his house by a group that included the accused persons, who were armed with wooden sticks and panga’s and were accusing PW4 of thief. The said group proceeded to drag PW4 away from their compound, and he did wait for a few minutes and followed them, but he met his friends who advised him not to follow the mob as they were likely to harm him. He heeded to their advice and retired back to their home until the following morning at about 6.00am, when he went to “Base Poa bar” and found “Paul” and Accused 2, still enjoying their drink, and Paul told him that PW4 had escaped.
13. He proceeded to look for PW4, within the village and got word that he had been seen lying within a forest, injured and upon finding him, organized and had him rushed him to Githunguri level 4 hospital for medical attention. He further confirmed that he was not present at the scene of crime and did not know who inflicted fatal injuries upon the deceased. Under cross examination he confirmed that he used his phone torch to identify all the accused persons, who were their village mates and persons well known to him.
14. PW6 Dr Eunice Mugwero, the Kiambu county consultant forensic pathologist undertook the post mortem examination on the deceased body on 25.02.2022 and confirmed that he had suffered multiple soft tissue injuries and abrasions all over his body (face, trunk, both upper and lower limbs) and lost a lot of blood in the said process. Further, the deceased had also suffered compound fracture of the tibia and fibular bones and burn wounds on the lower leg. On the head the deceased suffered a large laceration on the back of the head measuring about 12cms and further examination of the head did reveal that the deceased had multiple skull fractures both linear and depressed at the back of the head leading to inter-cranial hemorrhage at the base of the skull, which was also fractured. She concluded that the immediate cause of death was due to the head injury suffered caused by blunt force object consistent with physical assault.
15. PW7 Samauel Kihiu Kirago stated that he was the village elder of magomano village and his role included coordinating village security and welfare of its occupants. He recalled that on the material day at about 3.00am, he was at home asleep, when he heard screams from the main road, which was about 100m from his house. He woke up and went to check on what was happening and found a crowd of people, who were saying that they had arrested a “phone thief”. He saw two persons being assaulted, but could not identify the said persons, or anybody in the said crowd, since it was dark. He called the area chief to updated him on what was transpiring, and thereafter went back to his house. He did not go near the persons being assaulted.
16. Under cross examination, he confirmed that he saw the mob assault the deceased, but did not see any the accused persons, therein. He also affirmed that PW4 was known to be a petty thief, within their village and had a bad reputation preceding him.
17. PW8 Senior Chief Stephen Warui of Githunguri Sub – location, also confirmed that he was at home on the material night, when he was called at about 3.30am, by PW7, who informed him of the mob justice incident, within his area. He duly informed the OCS, and Assistant County Commissioner, but did not visit the scene,which was about 2km from his home. On the following day, he was informed by the police that one person had died as a result of the injuries sustained due to the assault.
18. The prosecution closed their case at this point, and the accused were all placed on their defence and opted to given sworn evidence.
(C) DEFENCE CASE
19. DW1 Emma Wanjiru Wanjiku, gave sworn evidence and confirmed that she resided with Githunguri sub county and operated a bar business, christened “Promise bar.” She recalled that on 13.02.2023 at night, they were within her bar when a client came and complained that PW4 had stolen his phone. Together with the 3 rd accused person herein and other clients, they opted to go look for PW4, at his home in order to retrieve the stolen phone and further clarified that PW4, had a history of breaking the law and they suspected that he was involved in the three (3) break-in’s that had occurred to her business where she had incurred losses amounting to over Kshs 60,000/=.She produced various OB reports made of the same.
20. They found PW4 at his home and on interrogation he had insisted that he had not stolen from her. They then opted to take him to the police station and enroute, met a big crowd of over 100 people, who insisted on instant justice, and proceeded to melt mob justice upon the said PW4. She stepped aside and called the village elder and a police officer, known as “Komora” after which she left the scene and went to back to her business. She denied taking part in the mob justice and also clarified that she was not around when the said mob descended upon the deceased.
21. The following morning, they got word of the deceased death and she and her co accused was subsequently arrested on suspicion of having been part of the mob that beat up the deceased, which allegation was not true. She also believed that she had been set up by her business rivals and her former employer, who was not happy that she had opened a similar business within the same area. Under cross examination DW1 reiterated her evidence and confirmed that PW5 was her customer and they were not enemies. She also stuck to her guns and denied participating in the said crime.
22. DW2, Evelyne Wanjiru Njonjo, testified that on the material night, she was at her house, asleep, when at about midnight heard noise from the road and woke up. She inquired from the watchman, on what was going on, and was informed that a thief had been arrested for stealing a phone, but out of fear, opted not to go to the scene. She affirmed that she did not know the deceased and also did not participate in assaulting him as alleged. Under cross examination, she clarified that the incident had occurred at about 12.30am, which was about 30 minutes after she had closed the club and DW1 had already left for the night, accompanied by DW3. She insisted that she did not go to the scene of the crime and did not see any of her co accused participate in assaulting the deceased.
23. DW3 Samuel Gathogo Kihara, also recalled that on the material night he was at “Base Poa- bar”, when a customer known as Karemu, came in and informed them that PW4 had stolen his phone. They (about 50 people) opted to go look for PW4’s at his house and proceeded to interrogate him on the stolen phone, but he vehemently denied being involved in the said theft. They opted to take him to Githunguri police station, but enroute met more members of the public, who were enraged and insisted on discipling PW4. At that point he was overwhelmed and he opted to take off, leaving PW4 with the said big mob, that had gathered and retired to his home. The following morning, he got information regarding the deceased, but was categorical that he was not part of the group/crowd that assaulted him.
24. DW4 Peter Kago Wanjiku, stated that he was a bode boda rider and on the material, night had worked up to around Midnight, as he had to wait for his customer, who was at DW1’s club. Once the said customer was done, he dropped him at Githunguri town, and enroute back met a big crown, who were enraged and were beating up a thief. Since he had his motorcycle, he feared for his safety and opted to go home direct and did not join the said mob. The following day in the afternoon, he went to drink Alcohol at DW1’s pub and were arrested to assist in investigations that was being carried out. He reiterated that he did not know the deceased and did not take part in the mob justice, that resulted in the deceased passing on.
(D) DETERMINATION
25. I have considered the evidence adduced by both parties and submissions on record, and the question that arises before this court is whether the prosecution has proved beyond reasonable doubt that all the accused person’s herein murdered JAMES KIHURIA NDUNG’U , the deceased herein.
26. The cardinal principle in criminal law, as articulated in Woolmington v DPP (1935) AC 462 , remains that the prosecution bears the burden of proving guilt beyond reasonable doubt. This principle takes on heightened significance in a capital offense where the stakes could not be higher. The court in the said case stated as follows:
“ Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject (to the qualification involving the defence of insanity and to any statutory exception). If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether (the offence was committed by him), the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
27. Section 203 of the Penal Code defines the offence of murder as follows:
“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
28. Arising from the foregoing, the ingredients of murder were explained in the case of Roba Galma Wario vs. Republic [2015] eKLR, where the court held that:
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant, and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
29. In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR, the elements of the offence of murder were listed by M. Odero, J as follows:
1) The fact of the death of the deceased.
2) The cause of such death.
3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly
4) Proof that said unlawful act or omission was committed with malice aforethought. ( Aslo see; Mombasa High Court Case Number 42 of 2009 between Republic vs. Daniel Musyoka Muasya, Paul Mutua Musya, and Walter Otieno Ojwang )
30. I will now proceed to interrogate each issue.
(i) The death of the deceased and its cause.
31. It is common ground that JAMES KIHURIA NDUNG’U died on 14.02.2022 and this was confirmed by all the prosecution witnesses. Dr Eunice Mugweru (PW6), the pathologist who conducted the postmortem examination on the deceased body on 25.02.2022, confirmed that the deceased suffered multiple soft tissue injuries, bruises and abrasions all over his body (face, trunk and on both lower and upper limbs). He had a lot of bleeding under the skin/on the muscles, which was indicative of defensive injuries. Further he had fracture of the right femur and tibia on the right leg and multiple burn wounds on the lower leg.
32. Further, the deceased also suffered multiple skull fracture both linear and depressed on the back of the head/ base of the skull, leading to intercranial hemorrhage and as a result, she concluded that the deceased had died due to severe head injuries, caused by blunt force trauma consistent with Assault. She produced the post mortem report as Exhibit 1.
33. This court therefore finds as a fact that the deceased died as a result of the said extensive injuries as enumerated above.
(ii) Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased :
34. PW1, PW4 and PW5, squarely placed all the accused persons as being part of the mob that assaulted the deceased on the material night. PW4, testified that he was at home asleep, when the mob, which included all the accused person came and violently removed him from his house on the premise that he had stolen a phone belonging to a customer, patronizing DW1’s pub. It was his evidence that when they demanded that he opens his door, he put on the light and identified all the accused persons, though in cross examination he contradicted himself, by stating that his house did not have electricity, but PW5 had put on his phone torch, which he used to see all the accused persons and others not arrested.
35. PW5, who is PW4 elder brother too, confirmed that, when the mob came to pick his brother, he woke up and put on his mobile phone torch, and clearly saw all the accused person. His evidence in particular was that;
“The people who came included Paul, Kago, Gathogo, Eva and Shiro. When they knocked, I put on my phone torch and saw them clearly. I see all of them in court apart from Paul .”
36. PW5 did not follow the mob, that whisked away his brother away, and was not present, when the said mob descended upon the deceased, but PW1 and PW4 confirmed that it was the same group that fatally assaulted the deceased, when he attempted to intervene to rescue PW4, who was his friend.
37. In defense, DW1 and DW3 admitted to being part of the group that went to fetch PW4 from his house but distanced themselves from the incident, by alleging that a larger mob of over 100 people joined them as they were taking PW4 to the police station and insisted on melting mob justice on him. At that point DW1 averred that she left the group and went back to her bar, while DW3 averred that he went home to sleep and both were categorical that they were not present, when PW1 and the deceased came to the scene and they certainly did not participate in assaulting the deceased.
38. DW2 and DW4 also distanced themselves from the incident and were categorical that they were not part of the group that either picked PW4 from his house and/or subsequently assaulted the deceased.
39. From the evidence adduced, the key question that arises is whether all the accused persons were adequately identified as being part of the group that participated in the mob justice, and acted with a common purpose to do so, which lead to the deceased death.
40. To determine whether identification is truthful, that is, not deliberately false, the court must evaluate the believability of the witness who made an identification. In doing so, the court may consider the various factors for evaluating the believability of a witness's testimony. Regarding whether the identification is accurate, that is, not an honest mistake, the court must evaluate the witness's intelligence, and capacity for observation, reasoning and memory, and be satisfied that the witness is a reliable witness who had the ability to observe and remember the person in question. Further, the accuracy of a witness's testimony identifying a person also depends on the opportunity the witness had to observe and remember that person, and whether the victim knew the accused before.
41. Further in evaluating the accuracy of identification testimony, the court should also consider such factors as: -
(a) What were the lighting conditions under which the witness made his/her observation?
(b) What was the distance between the witness and the perpetrator?
(c) Did the witness have an unobstructed view of the perpetrator?
(d) Did the witness have an opportunity to see and remember the facial features, body size, hair, skin, color, and clothing of the perpetrator?
(e) For what period of time did the witness actually observe the perpetrator?
(f) During that time, in what direction were the witness and the perpetrator facing, and where was the witness's attention directed?
(g) Did the witness have a particular reason to look at and remember the perpetrator?
(h) Did the perpetrator have distinctive features that a witness would be likely to notice and remember?
(i) Did the witness have an opportunity to give a description of the perpetrator? If so, to what extent did it match or not match the accused, as the court finds the accused's appearance to have been on the day in question?
(j) What was the mental, physical, and emotional state of the witness before, during, and after the observation?
(k) To what extent, if any, did that condition affect the witness's ability to observe and accurately remember the perpetrator?
( See Nzaro Vs Republic (1991) KAR 212 & S v Henderson )
42. Further In Wamugunda Vs Republic (1989) KLR 424 at page 424 the court had this to say;
“ where only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely Make it the basis of a conviction.”
43. PW1, PW4, and PW5 were all certain in their evidence as to the presence of all the accused persons amongst the mob that assaulted the deceased on that material night. They were in close proximity, were persons known to each other as they resided with the same village and DW1 even confirmed that PW5 would patronize her club. The events on the said night also occurred over a few hours and apart from light from PW5 phone torch, PW1 also confirmed that there was security light from the pub, which also helped him established the identity of all the accused persons at the scene of crime. He stated that;
“ I tried to help, “Munge” and ended up being assaulted. The incident happened at 3.00am outside a shop/club, but on the road. The club was next to the road ( Magomano- Ruiru road). There were no street lights, where the incident occurred. It was a dark night. I knew all the accused persons. Though it was dark, I saw them and they were persons know to me. I cannot remember how they were dressed. The crowd we found assaulting “Munge” were about seven (7) persons, they were our villagers and I knew all of them by name and appearance, and they assaulted “Munge, the deceased and me using planks of wood and their hands.”
44. Under Re – examination PW1 further clarified that;
“ Though it was dark, I saw seven persons assault Munge. It was on the road; the accused are known to me and were in near proximity and I saw them. The road is also next to a pub, which also has security light .”
45. DW1 and DW3 admitted to being in the group that accosted PW4 and removed him from his house and as they went away with him, PW1 and the deceased went to assist PW1 and unfortunately ended up bearing the brunt of the mob. DW1 and DW3 defence that they left the group mid-stream is doubtful as the sequence of events was not broken and it is improbable that 100 people might have joined them at 3.00am as alleged. Similarly, DW2 and DW4 line of defense cannot hold having been directly placed at the scene of crime.
46. It is clear that all the accused persons acted as a group with the common intention to disciple PW4 and the deceased, whom they deemed was his accomplice. When the prosecution evidence is considered in its totality, it leaves no shred of a doubt that all accused person were directly involved in the vicious assault on the person of the deceased and without doubt, the prosecution did establish that the inculpatory facts herein are incompatible with the innocence of all the accused and incapable of any other reasonable explanation, or reasonable hypotheses, other than that of their guilt.
47. Malice Aforethought
49. Having found that the prosecution has proved actus reus , the other issue for determination is whether malice aforethought can be inferred from the prosecution's evidence presented. The offence of murder is complete when “ malice aforethought ” is established. Section 206 of the Penal Code, provides that:
“(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 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;
(c) An intent 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.”
50. In assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the appellant foresaw the real or substantial risk and the consequences of targeting the part of the body that may result in the fatal injuries suffered by the deceased. A similar statement of Law was made in the persuasive authority of S. vs. Sigwahla 1967 4 SA 566 in which the court stated:
“The expression intention to kill does not in Law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such a result. This form of intention is known as a dolus eventualis as distinct from dolus directus.”
51. The accused persons used wooden planks/ fimbo to inflict fatal injuries upon deceased head resulting to multiple fractures of the skull, fractured the fibula and tibia bones and multiple soft tissue injuries all over the body. They definitely knew or ought to have known that the same would be fatal.
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