REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CRIMINAL CASE NO. E009 OF 2021
REPUBLIC………………………………………. ……………………ODPP
VERSUS
BRIAN MUTWIRI MUTHOMI……………………….….1ST ACCUSED
ROYD MUTWIRI MBAE………………………….………2ND ACCUSED
DENNIS MUTWIRI M’ITI……………………….……….3RD ACCUSED
ANTONY KARANI M’ITI………………………..……….4TH ACCUSED
BONIFACE MUTHOMI KIRAITHE…………..……….5TH ACCUSED
KENNETH MURIUNGI KABEE………………..……….6TH ACCUSED
JUDGMENT
1. The accused persons are charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 22/02/2021 at Karumbi Village in Mara Sub-County within Tharaka Nithi County jointly with others not before the court unlawfully murdered Kelvin Mwenda Mbabu. The accused person denied the charge.
The Prosecution’s Case
2. This is a case of mob injustice where it is alleged that the accused and others not before court administered a mob injustice on the deceased herein and caused his death. PW1 Rev Peter Baabu Mutua is the deceased’s father. He testified that on 22/2/2021 at 5.00am he received the report from his son reporting that the deceased was met by some people who did something to him and he did not know where he was.
3. He then met the deceased on the side of the road and was totally unconscious. The deceased had an injury on the forehead and had a cut wound on the hand. He took the deceased to the hospital at Magutuni but unfortunately at 3.00pm the doctor informed him that he had passed away. Later, he identified the body to the doctor who performed the postmortem.
4. In cross – examination he told the court that the deceased had talked and told him that he had gone to take a passenger and was blocked by a person who stabbed him with a knife and he became unconscious. That the deceased did not give any names and so he could not tell who killed him.
5. PW2 Petersn Mwimenyi Gakobi: he testified that on 22/2/2021 at about 2.45am he heard shouting from Kefri Mwandiki who was saying thief, thief. He went there and found Mwandiki struggling with the alleged thief who he had pinned down and the thief was telling him to let him run away. PW2 wanted to know if he had stolen. They went and saw some iron sheets were removed from the place where Mwandiki had a business.
6. Inside rice and sugar was scattered. There was a box outside the kiosk which contained sugar and another containing rice. People were attracted by the screams and went to the scene. Those people according to PW2 were Mutwiri 1st accused, Muthomi 5th accused and Denis, the 3rd accused. The area manager, Elphas Murungi. The thief said he wanted to return what he had stolen so that he could not go to the government. The people decided to take the thief to the Chief. The thief was then beaten by the people who were taking him to the Chief and he became unconscious. The 1st, 3rd and 5th accused were among the people who were beating the deceased. The next day he learnt that the thief who was beaten had passed away. He testified that the deceased was beaten as the people came from the Chief’s place.
7. PW3 Elipha Murungi Mutiga is the area Manager Karube Unit. He did not know the deceased before but he knew the accused. On 22/2/2021 between 2.00 and 3.00am he was at home when he heard screams and decided to go and find out. He found it was from the home of Kefri Mwandiki who he met at the scene, Ndereva Brian Mutwiri (1st accused). He also met Mwimenyi and a person who had been arrested on allegation that he was a thief. Mwandiki showed him some sugar, rice, wheat flour and some coins. They were in a small sack outside the kiosk. He was shown how iron sheets were removed from the roof to gain access to the shop. He told them to take the thief to the police station. Mwandiki said he could be late for school as he was teacher and declined to go to the police station.
8. A sub-area went to the scene and they decided to take the deceased to the Chief so that he could release him. He went with the sub-area, Mwandiki, Brian Mutwiri 1st accused, Michael Ndereva and others who were following them. On arrive at the chief’s place he told them to take him away. They sent the sub-area to call the parents of the thief. People went to where they were and attacked the thief. The mob cut sticks which they used to beat the thief. He identified Muthomi who is the 5th accused, Denis Mutwiri 3rd accused and Brian the 1st accused, Anthony Karani 4th accused. He tried to restrain them from beating the thief but he realized he could be beaten. The 5th accused told him that the areas were encouraging crime. He left the scene. The next day he learnt that the thief had passed away. He testified that PW4 Royford Karuchi Mutegi is the sub-area of Nkugwe. He testified that he knew 1st, 2nd, 3rd, 4th, 5th and 6th accused as they are from his area.
9. On the material night he was called by Brian Mutwiri (PW1) who informed him that they had arrested a thief at the home of Mwandiki. He took a torch and went to the scene. He met Mwimenyi, Mwandiki and Murungi. The 1st accused was also there. They showed him sugar and rice which they alleged the deceased had stolen. They took the thief to the chief but he said he could not handle the matter. They decided to go to the parents of the thief. He was given the phone number of the father and he called him. He did not pick the phone. They went back to the scene and found that the thief had been badly beaten. He saw Muthomi 5th accused had a stick and Kirinya had a panga. The deceased was on the ground unconscious. They had beaten the deceased. The deceased was taken to hospital by his parents but he later passed away. He reported the matter at Chogoria Police Station.
10. PW5 Michael Dereva Kiraithe testified that he knows all the accused. He confirmed the happenings of 22/2/2021. When he heard screams he went and met Mwimenyi and Brian Mutwiri, Mwandiki and a person alleged to be a thief. He accompanied (PW4) to the home of the thief after they came from the Chief’s place. They met the mother of deceased who gave them the phone number of his father. On going back to where they left the thief they found he had been badly beaten. The people who were at the scene were Muriungi who is the 6th accused, Muthomi 5th accused and Denis, who is 3rd accused, they were standing next to the deceased armed with sticks. The deceased was in a very bad state and could not speak. Later he learnt that the deceased had died.
11. PW6 Purity Kainyu Justus is the deceased’s mother. She told the court that the deceased left home on 21/2/2021 at about 3.00pm and did not return. Later on, 22/2/2021 at 4.00am some people went to her home and informed her that they had arrested the deceased while stealing from the place of Mwandiki. They told her that Mwandiki did not want to take him to the police but wanted to discuss with her husband. She gave them his phone number. Later her husband called her and informed her that the deceased had been grievously injured so they go and take him to hospital. They went to the scene and found the deceased had been badly injured and beaten with stick inserted on his leg and cuts on his head. They took him to hospital. Later at 2.00pm he passed away. He did not tell her who beat him as he did not know who the people were.
12. PW7 Kenfri Mwandiki Miriti testified that he knew the deceased herein Kevin Mwenda Mbaabu who he came to know on the date of this incident. He also testified that the accused persons are people who are known to him as they come from his village. It was his testimony that on 22/2/2021 at about 3.00am he went outside his house for a call of nature when he heard noises made by Iron Sheets which were on his kiosk. He also heard some sounds which he did not recognize.
13. He went and informed his wife. He then decided to go and find out. He flashed a torch and saw somebody who was sitting on a motor bike and next to it there was a sack which had some contents. He opened the sack and saw there was some rice and sugar inside which was in bags of one kilogram and two kilograms. He asked the man what was happening and he alleged that the motor bike had a puncture. PW7 took the keys of the motor bike and the sack. The man started pushing the motor bike in an attempt to run away.
14. PW7 ran after him and held the motor bike. A struggle ensued and PW7 started screaming. Peterson Mwimenyi and his wife went to where PW7 was. He informed them that he found the man at his kiosk with shop goods stolen from his kiosk. They decided to go to the kiosk. They saw a stick which was used to climb into the kiosk and the iron sheets were folded to gain entry. Many people went there including village elder. Others were Brian Mutwiri (1st accused) Dereva and others like Muriungi, Dereva and others like Denis Mutwiri the 3rd accused. They asked the deceased why he stole and he said that his wife had left him and wanted to go for her. Githuchi said they would take him to the chief. They went and returned. PW7 suggested that the deceased be released. Many people had come and were beating the deceased. Those beating him were Muthomi, Bedford, Mutwiri, Gathee, Muchui, Anthony and Denis Mutwiri. He identified them as the 1st, 2nd, 3rd, 4th, and 5th accused. That 6th accused was also there and others. He testified that the six were where the deceased was being beaten. Later at 7.00pm when he returned from work Brian informed him that the deceased had died. He recorded a statement with Police.
15. PW8 was Doctor Nicholas Nkonge a medical doctor at Chuka Hospital testified that he holds a Bachelors Degree in Medicine and Surgery form Charles University Czek Republic. He testified that he performed postmortem on the body of Kevin Mwenda Mbaabu a male aged twenty three (23) years on 25/2/2021.The body had several injuries, bruises and lacerations all over the body. Internally, he had a blood clot in the skull. The skull was fractured on the occipital region and there was bleeding in the brain. He formed the opinion that cause of death was head injury secondary to blunt trauma. He filled the postmortem form and issued a death certificate. He produced the postmortem form as exhibit 1.
16. PW9 Inspector Koskei Kipruto was the investigating officer. He testified that he is attached to DCI office Mara and was instructed to investigate this murder case which had occurred at Karumbi village whereby the deceased was Kevin Mwenda. The deceased was assaulted and later passed away. He was led to the scene by the father of the deceased who told him that his wife was woken up by some people who told her that the deceased was found having broken into a shop and stolen some properties. One of the people was the area Manager.
17. PW9 proceeded to the home the area Manager who admitted that he had gone to the home of the mother of deceased and informed her about he incident involving the deceased. PW9 recorded statements from witnesses and they revealed that they found that accused persons in this case beating the deceased.
18. On 25/2/2021 he attended the postmortem on the body of the deceased. On 6/3/2021 he organized a team of officers who accompanied him and they went and arrested the suspects whose name he was given. He arrested the accused persons and they were charged.
Defence Case
19. DW1 Brian Mutwiri, he gave his defence on oath. He testified that the co-accused are from his village. 2nd accused is his uncle, 3rd & 4th accused are his cousins. 5th accused is his uncle. On the material night between 3.00 and 4.00am he heard screams and the woman said, “Dereva leave him.” He went outside to find out what was happening. He found PW7 & his wife and others. On enquiring he learnt that that the deceased was caught stealing from the shop of Mwandiki. He saw the deceased on the ground with his hand, leg, tied and water had been poured on him. The deceased was bleeding from an injury on the face on top of one of the eyes. The villagers said they take him to the chief. He went with them and the chief said they take him to the police. He then went home. The next day he heard that the man had died. Later, on 6/3/2021 he was arrested and charged.
20. DW2 Lloyd Mutwiri Mbae testified that the 1st, 3rd & 4th accused are his cousins. He told the court that on the material night he heard noise and went and found a big mob. They said the person had been beaten badly. Dereva told them that they had arrested a thief and they had beaten him. On 6/3/2021 he was arrested.
21. DW3 Denis Mutwiri Mwiti gave his defense on oath and told the court that he heard the commotion on that material night but he did not leave his house. Later, on 6/3/2021 he was arrested.
22. DW4 Anthony Karani Mwiti testified that he was asleep when he heard a commotion. He heard Ndereba talking on phone and he woke and went to the scene where he found a group of people saying that he had arrested a thief. He saw the thief and he was bleeding form the head. People said they were taking him to the chief’s place. The chief said they should have taken him to the police. On 6/3/2021 he was arrested.
23. DW5 Bonface Muthomi Kiraithe testified that Mutwiri and his wife who told him there was a thief who was arrested. They woke PW2 and told them to accompany them. They found many people and PW5 said they had arrested a thief. That it was dark and no witness stated that they had recognized his voice.
24. DW6 Kenneth Muriungi Kabiri testified he was not at the scene. That he woke up on that day and opened his hotel which was next to the road. Some people passed by his hotel and said a person was beaten to death. He did not see the person. Later, on 6/3/2021 he was arrested and charged with this offence. Police did not tell him the reason for his arrest. He did not know how the deceased was killed.
25. DW7 Fredrick Nyaga Mutiga testified that he is the Chief kare Location. He testified he knows all the accused. On 22/2/2021 the area manager by name Kithuchi went to his home at about 3.00am accompanied by a mob. He saw Mwandiki and the deceased who had been beaten and was bleeding. It was alleged that he had broken into the kiosk of Mwandiki. He directed them to go to Magutuni Hospital. Later he heard that the person had died.
26. DW8 Florida Muthoni Mbaya she told the court that she was informed by her husband that there was a thief who was being beaten. She went to the home of Pamela and hey went to call Bonface Muthomi and informed him. He then called her brother Lloyd and they proceeded to the scene.
27. DW9 Jane Karambu testified that she was woken up by PW8 who informed her that there was a thief being beaten. They called Lloyd Mutwiri and they hey went to the scene where the thief was. Her husband recognized Dereva. She also saw the deceased surrounded by some people. She saw the deceased when Mwandiki went there with a torch of his phone. The deceased was bleeding profusely from the face. She saw Boniface Muthomi, Lloyd Mutwiri. The deceased had been assaulted. Dereva said they arrested a thief and took him to the Chief but he rejected him.
Submissions.
The parties filed submissions at the close of the defense case.
Defense Submissions
28. The counsel for the accused person(s) submits that the accused are not the ones who caused the death of the deceased and their role in the entire incident was to answer a distress call by PW7. It is submitted that the prosecution had the burden to prove that:
(a) That the deceased actually died.
(b) The actus reus – actus reus, that is the acts of omission under Section 206 of the Penal Code.
(c) Means rea (the principle of malice aforethought.)
29. That there is no debate that the deceased died as this was proven by PW8 the doctor who performed the postmortem. The accused submits that on ‘actus reus’ the prosecution had the burden to prove that the accused caused the death of the deceased thro’ unlawful acts. It is submitted that the incident took place between 2.00am and 4.00am on the night of 22/2/2021 when it was pitch dark and under the circumstances the witnesses could not positively identify the accused persons. That some witnesses said there was moonlight while others said they had to use torches. He relies on the following authorities:
- Boniface Okeyo -vs- Republic appeal No. 52 of 2000 (2001) eKLR
- Joseph Muchangi Nyaga & Another -vs- Republic (2013) eKLR
- Karani -vs- Republic (1985) KLR
30. He submits that for the prosecution to rely on identification, the source of light has to be proved as well as intensity of the light, distance of the source of light from where the accused was, time taken to observe the accused to be able to identify him subsequently. The defense submits that the witnesses did not identify the accused person and that the prosecution relied on dock identification which was not reliable.
31. That No voice identification was conducted and none of the prosecution witnesses stated the words which the accused uttered in order for them to identify the accused. He relies on Karani -vs- Republic (1985) KLR where it was held that:
“Identification by voice nearly always amounts to identification by recognition. Yet there as in any other case care has to be taken to ensure that the voice was that of the appellant, that the complainant was familiar with a voice and that he recognized it and that there were conditions in existence favoring safe identification.”
32. He submits that the scene was punctuated by loud mob of many people who had come to answer the distress call. That it was extremely difficult for any prosecution witness to identify any of the accused person through voice. That it is possible that the prosecution witnesses knew the accused persons but it should be noted that none of the prosecution witnesses told the court of any word they heard from any of the accused persons and which language. The defence counsel further submitted that none of the prosecution witnesses reported the matter until they were fished out by the investigating officer and became ready and willing to record statements that they recognized the accused.
33. The counsel for the accused submits that the prosecution did not prove malice aforethought. That they had no motive to kill as they happened to come out to answer to the distress call by PW7. The defence counsel urged the court to find that the prosecution did not prove the charge against the accused beyond any reasonable doubts and they are entitled to an acquittal.
Submissions by the Prosecution
34. The prosecution relies on the case of Anthony Ndegwa Ngari -vs- Republic (2014) eKLR where the elements of murder were discussed and the court held as follows:
“For the offence of murder to be proved, there are three (3) elements which the prosecution must prove beyond any reasonable doubts in order to secure a conviction. They are:
(a) The death of the deceased and the cause of the death.
(b) That the accused committed the unlawful act which caused the death of the deceased.
(c) That the accused had malice aforethought.”
35. The prosecution submits that the postmortem revealed that cause of death was cardio pulmonary arrest due to blunt trauma. That this is consistent with evidence adduced that cause of death was due to severe head injury. On the question as to who caused the death of the deceased, it is submitted that the evidence adduced proved that the deceased was killed by a mob after he was found stealing from a kiosk. That as a result of the assault the deceased sustained serious injuries and was left for death. That the evidence of PW2, 3, 4, 7, 5 it was proved that the six accused are the ones who assaulted the deceased.
36. The accused were armed with a panga and sticks which they used to assault the deceased. That the accused were placed at the scene amongst a group of other people who were not mentioned. That the six are the ones who were adversely mentioned in the evidence tendered in court. That the minor contractions in the evidence does not affect its credibility. The prosecution urges the court to find that the offence was committed at night and contradictions are expected but there was evidence that there was moonlight to aid recognition and some people had mobile phones torches on and accused person were recognized a fact which is safe and sound.
37. He further relies on Section 214(2) of the Criminal Procedure Code provides that contradictions on time and date of the commission of the offence are not material. He relies on Imanyara -vs- Republic (1985) eKLR where the court held that contradictions on date of arrest are inconsequential and do not affect credibility of the entire prosecution’s case. That the accused confirmed that they were arrested.
38. On the element of malice aforethought, it is submitted that the prosecution’s duty is to prove the intention to kill. That malice aforethought is defined under Section 206 of the Penal Code. The prosecution relies on Republic -vs- Njeru & 3 Others (Criminal Case No. 2/2019) 2023 KEHC 1914 (KLR) where it was stated;
“The Court of Appeal in Bonaya Tutu IPU & Another -vs- Republic (2015) eKLR stated that on prove of malice, it is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently that intention is established by, or inferred from the surrounding circumstances. In the persuasive decision of Chesakati -vs- Uganda CR App. No. 95/2004 the court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex -vs- Tubere S/O Ochen (1945) 12 EACA 63 the former Court of Appeal for Eastern Africa sated thus on the issue. It (court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at the conclusion as to whether malice aforethought has been established and it will be obvious that ordinarily an inference of malice aforethought will flow more readily from the case, say, of a spear or knife than from the use of a stick.”
39. The prosecution submits that he accused person were implicated as the one who assaulted the deceased and had intention to kill him were he not to be rescued, hence malice aforethought is established by the chain of evidence. The prosecution urges the court to find that the charge of murder was proved beyond any reasonable doubts.
Analysis and Determination
40. I have considered all the evidence adduced by the prosecution, the defence and the submissions. The accused are charged with murder contrary to Section 203 as read with Section 204 of the Penal Code which provides as follows:
“203. Murder
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
204. Punishment of murder
Any person convicted of murder shall be sentenced to death.”
41. The prosecution and the defense has well pronounced in their submissions as to what constitutes the elements of murder as envisaged under Section 203 of the Penal Code, (supra). The Court of Appeal in the case of Mulira & Another -vs- Republic Criminal Appeal 21/2021 (2023) KECA 553 (KLR) 12 May 2023) Judgment, it was held that:
“The elements constituting the offence of murder under Section 203 of the Penal Code are; the fact of death of the deceased and that it was the accused person who caused the death and, that the accused had malice aforethought when he or she committed the actions that led to the death.”
42. The issue which I have to determine is whether the accused are the ones who caused the death of the deceased Kelvin Mwenda Mbabu with malice aforethought. The accused do not deny that he deceased died and therefore the death of the deceased is not in dispute. The witnesses confirmed hat the deceased received severe beating from a mob who included the accused person(s) in this case. The death and its cause were confirmed by Doctor Nicholas Nkonge (PW8) who performed the postmortem on the body of the deceased and found that the body of deceased, a twenty two years old man had several bruises and lacerations all over the body.
43. That internally there was blood clot in the skull. The skull was fractured on the occipital region and bleeding in the brain. Cause of death was cardio pulmonary arrest due to severe head injury secondary to blunt trauma. This is captured in the postmortem form which he produced in court as exhibit 1. I find that the prosecution proved the death of the deceased and its cause.
44. The next issue is whether it was the appellants who were responsible for the death of the deceased. The contention by the defence is that the accused are not the ones who caused the death of the deceased. The first contention is that the incident took place at night when it was pitch dark and the witnesses could not positively identify the assailants. That there was no moonlight that could shed enough light to positively identify the accused persons. The counsel for the accused relies on the Court of Appeal decision in Bonface Okeyo -vs- R Mombasa Criminal Appeal No. 52/2009 (2001) eKLR where the court stated that on the law of identification is that it must be scrupulously considered. He has also relied on Joseph Muchangi Nyaga & Another -vs- Republic (2013) eKLR.
45. I have considered this submission and wish to state that the issue of identification of the accused persons does not arise. The law recognizes that recognition and identification are two different circumstances which attracts different approach when relying on them to make a finding on the guilt of an accused person. Courts have drawn a distinction between the two with recognition being safe and sound way of implicating an accused person while identification of a stranger being treated with caution to eliminate the possibility of mistake. The court has to examine such evidence with care and be satisfied that the circumstances of identification were free and fair and free from the possibility of error. The Court of Appeal in the case of Peter Musau Mwanzia -vs- Republic (2008) KECA 92 KLR. The Court of Appeal stated that even in cases of recognition the law still demands that care be taken before a conviction is entered. The Court of Appeal quoted R -vs- Turnbull (1976) 3ALL ER 549 where it was held that:
“Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone who he knows, the jury should be reminded that mistake in recognition of close relatives and friends are sometimes made.”
46. The court went to say:
“We do agree that for the evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would ignore that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show for example, that the suspect has been known to him for sometimes, is a relative, a friend or somebody within the same vicinity and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness in seeking the suspect at time of offence can recall very well having seen him earlier or before the incident.”
47. Further the Court of appeal in Anjononi & Others -vs- Republic (1980) KLR 59 held as follows:
“This was however a case of recognition, not identification of the stranger, recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon personal knowledge of the assailant in some form or other.”
48. In this case, much as the defence counsel has urged the court to find that the witnesses could not identify the accused due to the prevailing circumstances, I find that what we have in this case is evidence of recognition and not identification of a stranger(s). the witnesses were from the same home area and were discussing the incident. It is on record that there was moonlight and majority of the members of the public were using the light from their mobile phones. There is no doubt that mobile phones including the smallest popularly known as “mulika mwizi” (Flash a thief – more notorious for this in Kenya than a mobile phone) emit bright light at night. The light would be sufficient to recognize a person who is well known to another.
49. All the witnesses who gave an eye witness account, namely PW 3, 4, 5 and 7 testified that they recognized the accused and gave their names as well as the role each of them played. I saw the witnesses when they gave the names of the accused and even what they do. I have analyzed the evidence above. More importantly is that the witnesses recognized the accused cutting the deceased with a panga several times and inflicting fatal blow on the head of the deceased as he pleaded to be allowed to pay for the stolen goods. This is confirmed by the doctor’s evidence that the deceased had lacerations and bruises all over the body as well as a severe head injury caused by a blunt object.
50. I have no doubt in my mind that the accused were recognized as the persons who actively participated in the commission of this crime with others not before the court. They administered mob injustice after the deceased was arrested after he broke into a kiosk and stole some sugar and some rice which were al recovered. They inflicted serious injuries and left him for dead but luckily some good Samaritan informed his parents who in turn rushed him to hospital where he met his death.
51. The accused persons have urged the court to find that the evidence was contradictory. It is well settled that contradictions where they are grave, will of necessity weaken the prosecution’s case. On he other h
[...truncated]
IN THE HIGH COURT OF KENYA AT CHUKA
CRIMINAL CASE NO. E009 OF 2021
REPUBLIC………………………………………. ……………………ODPP
VERSUS
BRIAN MUTWIRI MUTHOMI……………………….….1ST ACCUSED
ROYD MUTWIRI MBAE………………………….………2ND ACCUSED
DENNIS MUTWIRI M’ITI……………………….……….3RD ACCUSED
ANTONY KARANI M’ITI………………………..……….4TH ACCUSED
BONIFACE MUTHOMI KIRAITHE…………..……….5TH ACCUSED
KENNETH MURIUNGI KABEE………………..……….6TH ACCUSED
JUDGMENT
1. The accused persons are charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 22/02/2021 at Karumbi Village in Mara Sub-County within Tharaka Nithi County jointly with others not before the court unlawfully murdered Kelvin Mwenda Mbabu. The accused person denied the charge.
The Prosecution’s Case
2. This is a case of mob injustice where it is alleged that the accused and others not before court administered a mob injustice on the deceased herein and caused his death. PW1 Rev Peter Baabu Mutua is the deceased’s father. He testified that on 22/2/2021 at 5.00am he received the report from his son reporting that the deceased was met by some people who did something to him and he did not know where he was.
3. He then met the deceased on the side of the road and was totally unconscious. The deceased had an injury on the forehead and had a cut wound on the hand. He took the deceased to the hospital at Magutuni but unfortunately at 3.00pm the doctor informed him that he had passed away. Later, he identified the body to the doctor who performed the postmortem.
4. In cross – examination he told the court that the deceased had talked and told him that he had gone to take a passenger and was blocked by a person who stabbed him with a knife and he became unconscious. That the deceased did not give any names and so he could not tell who killed him.
5. PW2 Petersn Mwimenyi Gakobi: he testified that on 22/2/2021 at about 2.45am he heard shouting from Kefri Mwandiki who was saying thief, thief. He went there and found Mwandiki struggling with the alleged thief who he had pinned down and the thief was telling him to let him run away. PW2 wanted to know if he had stolen. They went and saw some iron sheets were removed from the place where Mwandiki had a business.
6. Inside rice and sugar was scattered. There was a box outside the kiosk which contained sugar and another containing rice. People were attracted by the screams and went to the scene. Those people according to PW2 were Mutwiri 1st accused, Muthomi 5th accused and Denis, the 3rd accused. The area manager, Elphas Murungi. The thief said he wanted to return what he had stolen so that he could not go to the government. The people decided to take the thief to the Chief. The thief was then beaten by the people who were taking him to the Chief and he became unconscious. The 1st, 3rd and 5th accused were among the people who were beating the deceased. The next day he learnt that the thief who was beaten had passed away. He testified that the deceased was beaten as the people came from the Chief’s place.
7. PW3 Elipha Murungi Mutiga is the area Manager Karube Unit. He did not know the deceased before but he knew the accused. On 22/2/2021 between 2.00 and 3.00am he was at home when he heard screams and decided to go and find out. He found it was from the home of Kefri Mwandiki who he met at the scene, Ndereva Brian Mutwiri (1st accused). He also met Mwimenyi and a person who had been arrested on allegation that he was a thief. Mwandiki showed him some sugar, rice, wheat flour and some coins. They were in a small sack outside the kiosk. He was shown how iron sheets were removed from the roof to gain access to the shop. He told them to take the thief to the police station. Mwandiki said he could be late for school as he was teacher and declined to go to the police station.
8. A sub-area went to the scene and they decided to take the deceased to the Chief so that he could release him. He went with the sub-area, Mwandiki, Brian Mutwiri 1st accused, Michael Ndereva and others who were following them. On arrive at the chief’s place he told them to take him away. They sent the sub-area to call the parents of the thief. People went to where they were and attacked the thief. The mob cut sticks which they used to beat the thief. He identified Muthomi who is the 5th accused, Denis Mutwiri 3rd accused and Brian the 1st accused, Anthony Karani 4th accused. He tried to restrain them from beating the thief but he realized he could be beaten. The 5th accused told him that the areas were encouraging crime. He left the scene. The next day he learnt that the thief had passed away. He testified that PW4 Royford Karuchi Mutegi is the sub-area of Nkugwe. He testified that he knew 1st, 2nd, 3rd, 4th, 5th and 6th accused as they are from his area.
9. On the material night he was called by Brian Mutwiri (PW1) who informed him that they had arrested a thief at the home of Mwandiki. He took a torch and went to the scene. He met Mwimenyi, Mwandiki and Murungi. The 1st accused was also there. They showed him sugar and rice which they alleged the deceased had stolen. They took the thief to the chief but he said he could not handle the matter. They decided to go to the parents of the thief. He was given the phone number of the father and he called him. He did not pick the phone. They went back to the scene and found that the thief had been badly beaten. He saw Muthomi 5th accused had a stick and Kirinya had a panga. The deceased was on the ground unconscious. They had beaten the deceased. The deceased was taken to hospital by his parents but he later passed away. He reported the matter at Chogoria Police Station.
10. PW5 Michael Dereva Kiraithe testified that he knows all the accused. He confirmed the happenings of 22/2/2021. When he heard screams he went and met Mwimenyi and Brian Mutwiri, Mwandiki and a person alleged to be a thief. He accompanied (PW4) to the home of the thief after they came from the Chief’s place. They met the mother of deceased who gave them the phone number of his father. On going back to where they left the thief they found he had been badly beaten. The people who were at the scene were Muriungi who is the 6th accused, Muthomi 5th accused and Denis, who is 3rd accused, they were standing next to the deceased armed with sticks. The deceased was in a very bad state and could not speak. Later he learnt that the deceased had died.
11. PW6 Purity Kainyu Justus is the deceased’s mother. She told the court that the deceased left home on 21/2/2021 at about 3.00pm and did not return. Later on, 22/2/2021 at 4.00am some people went to her home and informed her that they had arrested the deceased while stealing from the place of Mwandiki. They told her that Mwandiki did not want to take him to the police but wanted to discuss with her husband. She gave them his phone number. Later her husband called her and informed her that the deceased had been grievously injured so they go and take him to hospital. They went to the scene and found the deceased had been badly injured and beaten with stick inserted on his leg and cuts on his head. They took him to hospital. Later at 2.00pm he passed away. He did not tell her who beat him as he did not know who the people were.
12. PW7 Kenfri Mwandiki Miriti testified that he knew the deceased herein Kevin Mwenda Mbaabu who he came to know on the date of this incident. He also testified that the accused persons are people who are known to him as they come from his village. It was his testimony that on 22/2/2021 at about 3.00am he went outside his house for a call of nature when he heard noises made by Iron Sheets which were on his kiosk. He also heard some sounds which he did not recognize.
13. He went and informed his wife. He then decided to go and find out. He flashed a torch and saw somebody who was sitting on a motor bike and next to it there was a sack which had some contents. He opened the sack and saw there was some rice and sugar inside which was in bags of one kilogram and two kilograms. He asked the man what was happening and he alleged that the motor bike had a puncture. PW7 took the keys of the motor bike and the sack. The man started pushing the motor bike in an attempt to run away.
14. PW7 ran after him and held the motor bike. A struggle ensued and PW7 started screaming. Peterson Mwimenyi and his wife went to where PW7 was. He informed them that he found the man at his kiosk with shop goods stolen from his kiosk. They decided to go to the kiosk. They saw a stick which was used to climb into the kiosk and the iron sheets were folded to gain entry. Many people went there including village elder. Others were Brian Mutwiri (1st accused) Dereva and others like Muriungi, Dereva and others like Denis Mutwiri the 3rd accused. They asked the deceased why he stole and he said that his wife had left him and wanted to go for her. Githuchi said they would take him to the chief. They went and returned. PW7 suggested that the deceased be released. Many people had come and were beating the deceased. Those beating him were Muthomi, Bedford, Mutwiri, Gathee, Muchui, Anthony and Denis Mutwiri. He identified them as the 1st, 2nd, 3rd, 4th, and 5th accused. That 6th accused was also there and others. He testified that the six were where the deceased was being beaten. Later at 7.00pm when he returned from work Brian informed him that the deceased had died. He recorded a statement with Police.
15. PW8 was Doctor Nicholas Nkonge a medical doctor at Chuka Hospital testified that he holds a Bachelors Degree in Medicine and Surgery form Charles University Czek Republic. He testified that he performed postmortem on the body of Kevin Mwenda Mbaabu a male aged twenty three (23) years on 25/2/2021.The body had several injuries, bruises and lacerations all over the body. Internally, he had a blood clot in the skull. The skull was fractured on the occipital region and there was bleeding in the brain. He formed the opinion that cause of death was head injury secondary to blunt trauma. He filled the postmortem form and issued a death certificate. He produced the postmortem form as exhibit 1.
16. PW9 Inspector Koskei Kipruto was the investigating officer. He testified that he is attached to DCI office Mara and was instructed to investigate this murder case which had occurred at Karumbi village whereby the deceased was Kevin Mwenda. The deceased was assaulted and later passed away. He was led to the scene by the father of the deceased who told him that his wife was woken up by some people who told her that the deceased was found having broken into a shop and stolen some properties. One of the people was the area Manager.
17. PW9 proceeded to the home the area Manager who admitted that he had gone to the home of the mother of deceased and informed her about he incident involving the deceased. PW9 recorded statements from witnesses and they revealed that they found that accused persons in this case beating the deceased.
18. On 25/2/2021 he attended the postmortem on the body of the deceased. On 6/3/2021 he organized a team of officers who accompanied him and they went and arrested the suspects whose name he was given. He arrested the accused persons and they were charged.
Defence Case
19. DW1 Brian Mutwiri, he gave his defence on oath. He testified that the co-accused are from his village. 2nd accused is his uncle, 3rd & 4th accused are his cousins. 5th accused is his uncle. On the material night between 3.00 and 4.00am he heard screams and the woman said, “Dereva leave him.” He went outside to find out what was happening. He found PW7 & his wife and others. On enquiring he learnt that that the deceased was caught stealing from the shop of Mwandiki. He saw the deceased on the ground with his hand, leg, tied and water had been poured on him. The deceased was bleeding from an injury on the face on top of one of the eyes. The villagers said they take him to the chief. He went with them and the chief said they take him to the police. He then went home. The next day he heard that the man had died. Later, on 6/3/2021 he was arrested and charged.
20. DW2 Lloyd Mutwiri Mbae testified that the 1st, 3rd & 4th accused are his cousins. He told the court that on the material night he heard noise and went and found a big mob. They said the person had been beaten badly. Dereva told them that they had arrested a thief and they had beaten him. On 6/3/2021 he was arrested.
21. DW3 Denis Mutwiri Mwiti gave his defense on oath and told the court that he heard the commotion on that material night but he did not leave his house. Later, on 6/3/2021 he was arrested.
22. DW4 Anthony Karani Mwiti testified that he was asleep when he heard a commotion. He heard Ndereba talking on phone and he woke and went to the scene where he found a group of people saying that he had arrested a thief. He saw the thief and he was bleeding form the head. People said they were taking him to the chief’s place. The chief said they should have taken him to the police. On 6/3/2021 he was arrested.
23. DW5 Bonface Muthomi Kiraithe testified that Mutwiri and his wife who told him there was a thief who was arrested. They woke PW2 and told them to accompany them. They found many people and PW5 said they had arrested a thief. That it was dark and no witness stated that they had recognized his voice.
24. DW6 Kenneth Muriungi Kabiri testified he was not at the scene. That he woke up on that day and opened his hotel which was next to the road. Some people passed by his hotel and said a person was beaten to death. He did not see the person. Later, on 6/3/2021 he was arrested and charged with this offence. Police did not tell him the reason for his arrest. He did not know how the deceased was killed.
25. DW7 Fredrick Nyaga Mutiga testified that he is the Chief kare Location. He testified he knows all the accused. On 22/2/2021 the area manager by name Kithuchi went to his home at about 3.00am accompanied by a mob. He saw Mwandiki and the deceased who had been beaten and was bleeding. It was alleged that he had broken into the kiosk of Mwandiki. He directed them to go to Magutuni Hospital. Later he heard that the person had died.
26. DW8 Florida Muthoni Mbaya she told the court that she was informed by her husband that there was a thief who was being beaten. She went to the home of Pamela and hey went to call Bonface Muthomi and informed him. He then called her brother Lloyd and they proceeded to the scene.
27. DW9 Jane Karambu testified that she was woken up by PW8 who informed her that there was a thief being beaten. They called Lloyd Mutwiri and they hey went to the scene where the thief was. Her husband recognized Dereva. She also saw the deceased surrounded by some people. She saw the deceased when Mwandiki went there with a torch of his phone. The deceased was bleeding profusely from the face. She saw Boniface Muthomi, Lloyd Mutwiri. The deceased had been assaulted. Dereva said they arrested a thief and took him to the Chief but he rejected him.
Submissions.
The parties filed submissions at the close of the defense case.
Defense Submissions
28. The counsel for the accused person(s) submits that the accused are not the ones who caused the death of the deceased and their role in the entire incident was to answer a distress call by PW7. It is submitted that the prosecution had the burden to prove that:
(a) That the deceased actually died.
(b) The actus reus – actus reus, that is the acts of omission under Section 206 of the Penal Code.
(c) Means rea (the principle of malice aforethought.)
29. That there is no debate that the deceased died as this was proven by PW8 the doctor who performed the postmortem. The accused submits that on ‘actus reus’ the prosecution had the burden to prove that the accused caused the death of the deceased thro’ unlawful acts. It is submitted that the incident took place between 2.00am and 4.00am on the night of 22/2/2021 when it was pitch dark and under the circumstances the witnesses could not positively identify the accused persons. That some witnesses said there was moonlight while others said they had to use torches. He relies on the following authorities:
- Boniface Okeyo -vs- Republic appeal No. 52 of 2000 (2001) eKLR
- Joseph Muchangi Nyaga & Another -vs- Republic (2013) eKLR
- Karani -vs- Republic (1985) KLR
30. He submits that for the prosecution to rely on identification, the source of light has to be proved as well as intensity of the light, distance of the source of light from where the accused was, time taken to observe the accused to be able to identify him subsequently. The defense submits that the witnesses did not identify the accused person and that the prosecution relied on dock identification which was not reliable.
31. That No voice identification was conducted and none of the prosecution witnesses stated the words which the accused uttered in order for them to identify the accused. He relies on Karani -vs- Republic (1985) KLR where it was held that:
“Identification by voice nearly always amounts to identification by recognition. Yet there as in any other case care has to be taken to ensure that the voice was that of the appellant, that the complainant was familiar with a voice and that he recognized it and that there were conditions in existence favoring safe identification.”
32. He submits that the scene was punctuated by loud mob of many people who had come to answer the distress call. That it was extremely difficult for any prosecution witness to identify any of the accused person through voice. That it is possible that the prosecution witnesses knew the accused persons but it should be noted that none of the prosecution witnesses told the court of any word they heard from any of the accused persons and which language. The defence counsel further submitted that none of the prosecution witnesses reported the matter until they were fished out by the investigating officer and became ready and willing to record statements that they recognized the accused.
33. The counsel for the accused submits that the prosecution did not prove malice aforethought. That they had no motive to kill as they happened to come out to answer to the distress call by PW7. The defence counsel urged the court to find that the prosecution did not prove the charge against the accused beyond any reasonable doubts and they are entitled to an acquittal.
Submissions by the Prosecution
34. The prosecution relies on the case of Anthony Ndegwa Ngari -vs- Republic (2014) eKLR where the elements of murder were discussed and the court held as follows:
“For the offence of murder to be proved, there are three (3) elements which the prosecution must prove beyond any reasonable doubts in order to secure a conviction. They are:
(a) The death of the deceased and the cause of the death.
(b) That the accused committed the unlawful act which caused the death of the deceased.
(c) That the accused had malice aforethought.”
35. The prosecution submits that the postmortem revealed that cause of death was cardio pulmonary arrest due to blunt trauma. That this is consistent with evidence adduced that cause of death was due to severe head injury. On the question as to who caused the death of the deceased, it is submitted that the evidence adduced proved that the deceased was killed by a mob after he was found stealing from a kiosk. That as a result of the assault the deceased sustained serious injuries and was left for death. That the evidence of PW2, 3, 4, 7, 5 it was proved that the six accused are the ones who assaulted the deceased.
36. The accused were armed with a panga and sticks which they used to assault the deceased. That the accused were placed at the scene amongst a group of other people who were not mentioned. That the six are the ones who were adversely mentioned in the evidence tendered in court. That the minor contractions in the evidence does not affect its credibility. The prosecution urges the court to find that the offence was committed at night and contradictions are expected but there was evidence that there was moonlight to aid recognition and some people had mobile phones torches on and accused person were recognized a fact which is safe and sound.
37. He further relies on Section 214(2) of the Criminal Procedure Code provides that contradictions on time and date of the commission of the offence are not material. He relies on Imanyara -vs- Republic (1985) eKLR where the court held that contradictions on date of arrest are inconsequential and do not affect credibility of the entire prosecution’s case. That the accused confirmed that they were arrested.
38. On the element of malice aforethought, it is submitted that the prosecution’s duty is to prove the intention to kill. That malice aforethought is defined under Section 206 of the Penal Code. The prosecution relies on Republic -vs- Njeru & 3 Others (Criminal Case No. 2/2019) 2023 KEHC 1914 (KLR) where it was stated;
“The Court of Appeal in Bonaya Tutu IPU & Another -vs- Republic (2015) eKLR stated that on prove of malice, it is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently that intention is established by, or inferred from the surrounding circumstances. In the persuasive decision of Chesakati -vs- Uganda CR App. No. 95/2004 the court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in Rex -vs- Tubere S/O Ochen (1945) 12 EACA 63 the former Court of Appeal for Eastern Africa sated thus on the issue. It (court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at the conclusion as to whether malice aforethought has been established and it will be obvious that ordinarily an inference of malice aforethought will flow more readily from the case, say, of a spear or knife than from the use of a stick.”
39. The prosecution submits that he accused person were implicated as the one who assaulted the deceased and had intention to kill him were he not to be rescued, hence malice aforethought is established by the chain of evidence. The prosecution urges the court to find that the charge of murder was proved beyond any reasonable doubts.
Analysis and Determination
40. I have considered all the evidence adduced by the prosecution, the defence and the submissions. The accused are charged with murder contrary to Section 203 as read with Section 204 of the Penal Code which provides as follows:
“203. Murder
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
204. Punishment of murder
Any person convicted of murder shall be sentenced to death.”
41. The prosecution and the defense has well pronounced in their submissions as to what constitutes the elements of murder as envisaged under Section 203 of the Penal Code, (supra). The Court of Appeal in the case of Mulira & Another -vs- Republic Criminal Appeal 21/2021 (2023) KECA 553 (KLR) 12 May 2023) Judgment, it was held that:
“The elements constituting the offence of murder under Section 203 of the Penal Code are; the fact of death of the deceased and that it was the accused person who caused the death and, that the accused had malice aforethought when he or she committed the actions that led to the death.”
42. The issue which I have to determine is whether the accused are the ones who caused the death of the deceased Kelvin Mwenda Mbabu with malice aforethought. The accused do not deny that he deceased died and therefore the death of the deceased is not in dispute. The witnesses confirmed hat the deceased received severe beating from a mob who included the accused person(s) in this case. The death and its cause were confirmed by Doctor Nicholas Nkonge (PW8) who performed the postmortem on the body of the deceased and found that the body of deceased, a twenty two years old man had several bruises and lacerations all over the body.
43. That internally there was blood clot in the skull. The skull was fractured on the occipital region and bleeding in the brain. Cause of death was cardio pulmonary arrest due to severe head injury secondary to blunt trauma. This is captured in the postmortem form which he produced in court as exhibit 1. I find that the prosecution proved the death of the deceased and its cause.
44. The next issue is whether it was the appellants who were responsible for the death of the deceased. The contention by the defence is that the accused are not the ones who caused the death of the deceased. The first contention is that the incident took place at night when it was pitch dark and the witnesses could not positively identify the assailants. That there was no moonlight that could shed enough light to positively identify the accused persons. The counsel for the accused relies on the Court of Appeal decision in Bonface Okeyo -vs- R Mombasa Criminal Appeal No. 52/2009 (2001) eKLR where the court stated that on the law of identification is that it must be scrupulously considered. He has also relied on Joseph Muchangi Nyaga & Another -vs- Republic (2013) eKLR.
45. I have considered this submission and wish to state that the issue of identification of the accused persons does not arise. The law recognizes that recognition and identification are two different circumstances which attracts different approach when relying on them to make a finding on the guilt of an accused person. Courts have drawn a distinction between the two with recognition being safe and sound way of implicating an accused person while identification of a stranger being treated with caution to eliminate the possibility of mistake. The court has to examine such evidence with care and be satisfied that the circumstances of identification were free and fair and free from the possibility of error. The Court of Appeal in the case of Peter Musau Mwanzia -vs- Republic (2008) KECA 92 KLR. The Court of Appeal stated that even in cases of recognition the law still demands that care be taken before a conviction is entered. The Court of Appeal quoted R -vs- Turnbull (1976) 3ALL ER 549 where it was held that:
“Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone who he knows, the jury should be reminded that mistake in recognition of close relatives and friends are sometimes made.”
46. The court went to say:
“We do agree that for the evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would ignore that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show for example, that the suspect has been known to him for sometimes, is a relative, a friend or somebody within the same vicinity and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness in seeking the suspect at time of offence can recall very well having seen him earlier or before the incident.”
47. Further the Court of appeal in Anjononi & Others -vs- Republic (1980) KLR 59 held as follows:
“This was however a case of recognition, not identification of the stranger, recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon personal knowledge of the assailant in some form or other.”
48. In this case, much as the defence counsel has urged the court to find that the witnesses could not identify the accused due to the prevailing circumstances, I find that what we have in this case is evidence of recognition and not identification of a stranger(s). the witnesses were from the same home area and were discussing the incident. It is on record that there was moonlight and majority of the members of the public were using the light from their mobile phones. There is no doubt that mobile phones including the smallest popularly known as “mulika mwizi” (Flash a thief – more notorious for this in Kenya than a mobile phone) emit bright light at night. The light would be sufficient to recognize a person who is well known to another.
49. All the witnesses who gave an eye witness account, namely PW 3, 4, 5 and 7 testified that they recognized the accused and gave their names as well as the role each of them played. I saw the witnesses when they gave the names of the accused and even what they do. I have analyzed the evidence above. More importantly is that the witnesses recognized the accused cutting the deceased with a panga several times and inflicting fatal blow on the head of the deceased as he pleaded to be allowed to pay for the stolen goods. This is confirmed by the doctor’s evidence that the deceased had lacerations and bruises all over the body as well as a severe head injury caused by a blunt object.
50. I have no doubt in my mind that the accused were recognized as the persons who actively participated in the commission of this crime with others not before the court. They administered mob injustice after the deceased was arrested after he broke into a kiosk and stole some sugar and some rice which were al recovered. They inflicted serious injuries and left him for dead but luckily some good Samaritan informed his parents who in turn rushed him to hospital where he met his death.
51. The accused persons have urged the court to find that the evidence was contradictory. It is well settled that contradictions where they are grave, will of necessity weaken the prosecution’s case. On he other h
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