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JudgmentThe Republic VS LEMMY MAKARI KITUYI20 min read

The Republic VS LEMMY MAKARI KITUYI

High Court at Bungoma High Court · · Rose Ougo

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL CASE NO. E005 OF 2022 ( MURDER)

CORAM: OUGO J

REPUBLIC……………..……………………………………PROSECUTOR

VERSUS

LEMMY MAKARI KITUYI…………………………….………ACCUSED

JUDGMENT

  1. Lemmy Makari Kituyi is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are; on the night of 19th and 20th February 2022 at Chenjeni North ‘B’ village, Sichei location in Bungoma Central Sub-County within Bungoma County murdered Ruth Nasambu.
  2. The accused person denied the offence and the prosecution called 7 witnesses to prove their case against the accused.

PROSECUTION CASE

  1.   ISW,(Pw1),  testified that the accused is a person known to him. The accused has been their neighbour since 2017. The accused’s wife was called Ruth. On the night of 19.2.2022, he was from a funeral and as he opened his door he heard the deceased screaming like she was being beaten. He had a torch in his hand. He walked to the home of the accused.  On reaching the accused’s home he found the accused beating his wife outside their house. He was beating her using a stick. He asked the accused what the problem was but the accused kept quiet. They were joined by his in-law Geoffrey who asked the accused what the problem was. By then the deceased was still talking. Her body had blood all over her and her clothes too. She had injuries on her hands. Neighbours joined them. When the accused was asked what the problem was he kept quiet. The accused told them he would take his wife to hospital and then he left using a boda. Pw1 went to his house to sleep. On the 20th morning, he heard the accused talk loudly, and on going to the accused’s place he found the deceased had died. During cross-examination, Pw1 testified that on the material there was a kesha in a home where a child had died. The accused and his wife were in the said home. The accused and his wife used to take alcohol and both were drunk on the said night. He saw the accused’s wife lying at the door and the accused was canning her on her back. The stick the accused used to cane the deceased looked like a fimbo. The incident happened outside the accused’s house. He shone his torch on the deceased and saw blood on her and blood inside the house where the two slept up to where the deceased was lying.
  2. Geoffrey Rombasia Walela, (Pw2), testified as follows; the accused is his neighbour, and the deceased Ruth Nasambu was his wife. On 19.2.2022 at about 11.00 pm he was going to his home from a funeral gathering which was at neighbours. He was used to seeing the accused and his wife drunk and when drunk they would make noise. The noise increased so he decided to go and check what was happening at the neighbours. On entering the place, he found Makari the accused standing the deceased was lying facing the wall and she was bleeding from the head. He asked the accused what happened to his wife. The accused told the people to mind their business. The deceased was cut on the head. The deceased was not talking. He requested Pw1 that they check the house and they saw blood and a jembe ( hoe). He called the chief who advised that the accused take her to the hospital. He locked the accused in the house as he was afraid people would attack him.  He left as the people helped the accused use a boda boda to take his wife to hospital. The next day the accused called him to go to his home as the wife kept removing the bandage on her head. He went and found her on the bed then she fell from the bed and fainted, she  died. He did not see any bandage on her head. He called the sub-chief and told him what happened. He called the accused’s father to see what happened. People helped him arrest the accused and they put him in the house. He did not see the accused beat the deceased but he saw her bleeding when he went back on the 20th morning. He knew the accused and the deceased used to fight. The jembe he saw had blood on it. During cross-examination, Pw2 told the court that because there was music at the funeral he could not hear anything. Pw1’s  place is close to the accused’s home and Pw1 helped him arrest the accused. There was a crowd of people. He entered the accused’s house with Pw1. He does not know how the deceased got injured. The deceased and the accused were both drunk. The deceased bleeding from the head and her hands had blood.   
  3. Sister Rael Otieno ( Pw3) testified that on 20.2.2022 she was on duty at Chebukaka Health Centre as a trained nurse. The health centre received a patient Ruth Nasambu from about 12.00 am to 12.30 am. She was patient entry number 498 /22 outpatient aged 37 years old.   She had a cut wound under the forehead, a wound on the ring finger, and bruises on both knees. Her injuries were assessed as soft injuries, the wounds were dressed and she was given 2 injections for tetanus and pain and she was given medication. During cross-examination, Pw3 testified that she was not present when the deceased was examined but she had a report on what transpired. She got a verbal report that the patient had a cut wound on the forehead. The documents in court did not indicate the injuries the patient had.
  4. No. 52436 P.C Morris Nyaya (Pw4) testified that on 20.2.2022 at about 6.00am he received a call from the area chief  Mr. Stephen Nakitire that there was a serious incident at Chejeni village, that a man had quarrelled with his wife and that during the commotion the wife was killed. He proceeded to the scene with other officers and on arrival they found a crowd of people who had surrounded a house. He entered the house and found the deceased’s body lying beside her bed. Her head was being supported by a metallic box. She had a cut on the forehead and where she was lying had a lot of blood. He also saw a jembe which had fresh blood in the kitchen room. He also found an inner pant of the deceased it had a lot of blood. He guarded the place as he waited for the DCI. The accused was in the room where the deceased was as he feared that the crowd could lynch him. He later handed over the accused to the DCI officers. The body was taken to Bungoma Mortuary and he handed the exhibits to the DCI for further investigations. During cross-examination, Pw4 told court the exhibit in court was the same one he handed over to the DCI. He was at the home to protect the scene and the accused.  The accused looked shocked and he was shaking. the exhibits in court had stayed for long, the blood was no longer fresh.
  5. Doctor Elly Kosgei (Pw5), testified that on the 1/3/2022 he did a post-mortem on the body of Ruth Masambu at Bungoma Referral hospital. The body was of a female of African decent about 44 years old. On post- mortem changes the body had formed rigour mortis. On external appearance she had widespread bruises on the body and a cut on the head measuring 1cmx 2cm, bruises on the head and the right inguinal region, hematoma extending to the oblique  muscles. The respiratory system, cardio- vascular system, digestive system, genito-system, nervous system, spinal system and spinal cord were all normal.  On the head, he noted scalp hematoma and massive subdural hematoma. As a result of the examination, he formed the opinion that the cause of death was severe head injury from blunt injury to the brain. He removed fingernails as a specimen for further examination. During cross-examination  Pw5 told the court that some of the bruises were deep some were superficial most were from a blunt object. He did not examine the content of her stomach. They examined her stomach and found nothing. He only took fingernail samples for DNA examination.  
  6. NO. 71394 P.C Wilson Maina (Pw6), testified that on 20.2.2022 at about 6.00 am he received a call from Chief Inspector Richard Chewena who instructed him to go to a scene of murder. He proceeded to the scene with his colleagues. On arrival in the home, they found many people in the home of the accused. They also found police from Mukunyuni police post who were already at the scene. They found the body of the deceased Ruth Nasambu. Her head was supported by a wooden box. They noticed a hoe in the room. The deceased had an opine wound on the forehead and there was blood on the floor and between her legs. He also noticed blood in her inner pant ( Pextno.5). The hoe ( Pextno.1)  had blood stains. They moved the body to Bungoma Referral Hospital Mortuary for preservation and post-mortem. He also got 2 eyewitnesses and they recorded their statements. The post-mortem was done on 1.3.2022. The accused was arrested and later arraigned in court. During cross-examination, Pw6 told the court he rearrested the accused person from other police officers who were at the scene before he arrived. The witness statements of Pw1 and Pw2 confirmed what happened. He concluded that the accused person assaulted the deceased. They did not take any blood samples for DNA. Isaac did not tell him he was bleeding from the hand. He was surprised that it was said the accused was bleeding from the hand. The offence did not happen in the disco matanga place. He saw a wound on the deceased. He was surprised that the doctor saw some wounds. There was blood where the deceased was lying.Pw6 testified in re-examination that the accused had no injury in his hand when they arrested him and that the disco matanga place was not a point of interest. The crime scene was in the accused’s home. Pw1 house is very close to the accused’s house and the 2 witnesses heard the commotion.
  7. The accused person gave a sworn statement in his defence. This is his evidence. He is a murder suspect. His wife was called Ruth Nasambu. They lived together for 22 years and they have seven (7) children, one died and six are alive. The firstborn is 24 years and the youngest is about 8 to 10 years. On the night of 19th February 2022, they woke up well. The deceased worked in their home and at about 2.00 pm he felt he had malaria. His wife was not in then she had left to go and look for food for the evening. She returned and she prepared the food and they ate. There was a funeral at their neighbours place. His wife decided to go to the matanga but he was not feeling well. He decided to follow her there. People were singing. He saw his wife at the matanga. It became hot inside the house and they went outside. A few women remained in the house. His wife came out. Shortly thereafter he did not see her around. She had disappeared. She stayed away for one and a half hours. She returned and she appeared drunk. She used to drink. He called her and noticed that her smell had changed. He drinks but on this day he had not taken alcohol. He asked her if they could go home. They left. Whilst they were going home she told him that she was feeling hungry like she had not eaten. He told her she can cook food. He reached their door first. She was behind him. He began opening the door and as he stood there she hit his shoulder and hit herself on the wall and she fell down. He checked behind and the round around the house to see if there was something out there. He went to the place she had fallen and she was down but in pain. She was holding her face. She had blood on her face and an injury on her forehead. She was bleeding at the forehead. He decided to take her to the hospital. People were passing from the matanga. He saw a boda boda and he sought his help. He sat with her on the boda boda. He was behind holding her. They went to the hospital at Chubukaka Mission. She was treated and the Sister allowed them to go home after advising them to take her back the next day for treatment. They went back home and she could not sleep. She was in a lot of pain. He decided to go and get help from his neighbour called Geoffrey Rombasi (Pw2). Pw2 went to their house and found her seated on the bed and she was breathing with a lot of anger in her heart. Geoffrey asked her the problem and  she did not respond. She came from the bed and fell down on the floor. They held her and saw they could not manage. He sent Pw2 to call Zipporah who was a neighbour. The lady came with 2 people. They held her and told them she was dead. He began crying and Pw2 went out and called the assistant chief, who rang the police. Police went to his homestead and they ordered the people to leave. The police picked the body. The police did not ask him anything. He was handcuffed and placed in the police vehicle and thereafter charged. He knows Isaack Wanjala. He did not beat his wife with a fimbo. His wife hit her head on the wall in the house. It was a mud house with small stones and timber. He does not know if she hit herself on the timber part. The matanga was in the neighbourhood close by. He did not see Isaack at the matanga. As he helped his wife he saw people approach. He does not know if Isaack was amongst them. Geoffrey was the first who went to his homestead. He told Geoffrey that his wife had been injured. During cross-examination, the accused told the court that as they walked home the deceased was behind him and she hit her head on the door. The wall of their house is made of mud and timber and the floor too is of mud smeared with cow dung. When she hit the wall, she sustained an injury on the forehead. The mud wall has some stones inside it. He searched around there was no one around the house. The deceased had no other injury. All the witnesses know him they have had small disputes as neighbours. They have no grudge as neighbours. The witnesses had no reason to lie against him in this. Isaack had no benefit in saying what he said. Geoffrey was a neighbour too and they stayed well as neighbours.       
  8. At the close of the defence case parties filed written submissions. The prosecution submitted that they had proved their case. The accused was positively identified by Pw1 who saw the accused assault the deceased. This evidence was corroborated by Pw2’s evidence. The accused admitted in his defence that he was at the scene. The accused was the only one at home with the deceased. The accused’s defence that the deceased was debunked by the doctor’s autopsy report as there was no proof of intoxication is documented. The accused’s defence is a mere denial. The intention to cause grievous harm is proved through injuries sustained by the deceased and the cause of death was confirmed as severe head injury from blunt object injury to the brain. The doctrine of last seen is applicable in this case as the last person seen with the deceased the accused bears full responsibility for the deceased’s death.
  9. Mr. Maloba for the accused submitted as follows; the prosecution has a duty to prove its case beyond reasonable doubt and there is no burden on the accused to prove his innocence. The prosecution has the duty to prove their case beyond reasonable doubt. The accused must not be convicted on suspicion. It was submitted that there was proof of death. On cause of death it was submitted there was no evidence adduced of the persons who identified the body of the deceased during the post-mortem to prove that the post-mortem report related to the deceased. It is possible that the body the Pw5 examined was not that of the deceased. Reliance was made in the case Republic vs John Busered Chacha, John Rioba Mwikwabe, Catherine Mogesi and Japanese Rioba  Migori High Court Criminal Case No. 15 of 2017 (2020) eKLR and Eldoret Criminal Appeal No. 272 of 2008 Fredrick Okarau Chesbe vs Republic (2009) eKLR. It was further  submitted that Pw5 testified that the body he examined had bruises on her waist, and bruises on the head and that blood had clotted on the hip extending to the stomach muscles. Pw5 found that the deceased had a blood clot in the brain. That Pw1 testified that he saw the deceased being assaulted by the accused and that the accused used a stick/fimbo which was not dry to beat the deceased causing her injuries on the hand. That Pw1 did not testify that the accused inflicted any injuries on the deceased’s forehead. That Pw1’s evidence did not corroborate Pw5’s evidence. This contradiction was not resolved. That the prosecution did not resolve the material contradictions in their case. That no suspicion can amount to proof of a criminal charge ( see Joan Chebichii Sawe vs Republic [2003] eKLR). On malice aforethought on the part of the accused it was submitted that the prosecution having failed to link the accused to the death of the deceased, the third element cannot to prove, thus the court should enter a verdict of not guilty and acquit the accused person.

ANALYSIS AND DETERMINATION

  1. I have considered the evidence adduced herein by both the prosecution witnesses and the defence offered by the accused person. In a case of murder, the prosecution is required to prove the following;
  2. Proof of the fact and the cause of death of the deceased.
  3. That the cause of the deceased’s death was a result of the direct consequence of the accused/accused's unlawful act or omission.
  4. Proof that the unlawful act or omission was committed with malice aforethought as defined by section 206 of the Penal Code.
  5. The prosecution proved the death of the accused. Pw1, Pw2, Pw6 saw the body of the deceased after she died. The doctor who performed a post-mortem on the body of the deceased testified that the cause of death was a severe head injury from blunt object injuries to the brain. An issue has been raised by the accused’s defence counsel that none of the witnesses who knew the deceased well testified that it was the body of the deceased. The defence relied on authorities which I have read and considered. Before I get to the analysis of the authorities this is what is indicated in the post-mortem report. Ruth Nasambu’s body was sent under the escort of No. 71394 PC Wilson Maina. P. C Wilson Maina testified as the investigating officer. His evidence was that he received a call from his senior who instructed him with other officers to visit a murder scene. He went to the home of the accused and the deceased and found the deceased’s body on the floor next to the bed. This is the same officer who accompanied the body of the deceased to the post-mortem. This evidence shows that the deceased’s body was identified by the officer who recovered the body at the scene. This evidence is part of the record in court. On the fact that the 2 witnesses who identified the body were not called. I have considered the cases cited by the defence.  The court of appeal in Ali v Republic [2024] KECA 1168 (KLR) stated:

“The fact of the deceased’s death notwithstanding, the appellant has argued that the prosecution failed to call the witnesses that identified the body of the deceased during the post-mortem examination; that on account of this omission, it was not possible to ascertain whether the body that was identified during the post-mortem was that of the deceased; that this was fatal to the prosecution’s case as it rendered the post-mortem report of little or no probative value. We have considered the record and find that, when the post-mortem report was produced by PW6, the Investigating officer, there was no objection to its production. The record does not also disclose that the issue now raised before this Court was raised during the hearing or determined by the trial court. The appellant having failed to raise it at the earliest opportunity, we decline to address it at this stage. This ground fails.”

  1. In CRIMINAL APPEAL NO. 12 OF 2019, George Maseghe v Republic the two witnesses listed in the post-mortem report were not called to testify and the Court of Appeal held as follows:

“We do not find any basis for the assertion that the deceased’s body needed to be identified for post-mortem examination by her parents. The evidence on record is that the father (PW2) did not attend the post-mortem examination and that could be for a myriad of valid reasons. The post-mortem report itself bears the names of the persons who identified the body of the deceased for post-mortem purposes, namely Gamaliel Mwasina and Felix Koronge. In the circumstances of this appeal, we are satisfied that the first ground of appeal has no merit.”

  1. In this case, Pw5 produced the post-mortem report which indicated Leonard Wamalwa and Annet Wamalwa as the persons who identified the deceased’s body for post-mortem. Therefore, the argument by the defence that nobody was called to identify the deceased during the post-mortem is not accurate. Though the 2 persons were not called as witnesses in my view and guided by the cases I have referred to the prosecution cannot collapse nor is it weakened by the fact the 2 persons were not called. The investigating officer escorted the body of the deceased a body they took to the morgue and presented it to the doctor who did the post-mortem. 
  2. The accused has heavily relied on the case of Republic v John Busere Chacha, John Rioba Mwikwabe, Catherine Mogesi and Japanese Rioba (2020) eKLR, which is persuasive, the circumstances in that case were not similar to those in this present case. In the Republic v John Busere Chaha (supra), the post-mortem form did not contain the names of persons who identified the deceased for post-mortem and the prosecution failed to call persons who were present at the post-mortem and identified the deceased.
  3. The next issue is whether the accused caused the death. There is direct evidence from Pw1 that he saw the accused beat the deceased and on asking him why he was doing that he just kept quiet. The accused was his neighbor. Pw1  told the court that he saw the accused hold a stick that looked like a fimbo. By then the deceased had injuries in her hands and her clothes were bloody. The accused was his neighbor and they interacted he had a torch with him and he was able to see the accused and the deceased in their house.  Pw1’s evidence was corroborated by Pw2’s evidence. Pw2 testified that he went to the accused’s home after hearing noise from the home of the accused and the deceased. On entering the house, the deceased was bleeding from the head. She was cut on the head and she was not talking. He entered the house with Pw1 and they found blood in the house. People insisted the accused take his wife to hospital  The next day the accused called him and whilst in the house she fell from the bed and fainted then died. Pw2 saw injuries on the deceased. Pw1 saw the accused beat the deceased. Some of the injured parts were her head. The post-mortem report indicates that she died of blunt injuries in her head. I find no contradiction the evidence of Pw1 and Pw5. Pw5 examined the entire body of the deceased. Pw1 testified on the injuries he saw on the deceased. The accused was in the same house. The accused in his defense claims that the deceased whom he was going home with hit her head on the wall and she fell. I am not persuaded by this statement. Though part of his defence fits in with part of what happened on the material night, his defence that the deceased inflicted the injuries on herself is very unpersuasive and is sufficiently rebutted by the evidence of Pw1 and Pw2 two of his neighbors who had no reason to give false evidence against the accused person.
  4. Malice aforethought is defined in Section 206 of the Penal Code in the following terms:

(a). An intention to cause death or to do grievous harm to any person whether such person is the person actually killed or not.

(b). Knowledge that the act or omission causing death will cause the death of or grievous harm to some person, whether such person is the person 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 be caused.

(c). An intent to commit a felony.

(d). An intention to facilitate the escape from custody of a person who has committed a felony.

  1. In Rex v Tubere s/o Ochen {1945} 1Z EACA 63, Eastern Court of Appeal observed:

“In determining existence or nonexistence of malice one has to look at the facts proving the weapon used, the manner in which it is used and part of the body injured.”

  1. In Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990)  the Court held:

“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”

  1. In this case the accused used a stick, a fimbo to hit the deceased, she was hit on the head and other parts of the body. The injury on her head caused grievous harm which eventually led to her dead. A hoe that had blood sustains was recovered from the house by Pw6 and it was also seen and identified by Pw1 and Pw2. The weapon used and parts of the body hit, the head is sufficient  proof of malice aforethought.
  2. I find that the prosecution has proved a case of murder against the accused person  that he unlawfully caused the death of the deceased  Ruth Nasambu. I find the accused Lemmy Makari Kituyi guilty of the offence of murder and convict him accordingly as charged.

Dated signed and delivered at Bungoma this 21st day of January 2025.

R.E.OUGO

JUDGE

In the presence of :

Lemmy Makari Kituyi/ Accused                               - Present

Miss Matere                                                               - For the State

Mr. Maloba                                                         - For the Accused

Mr. Kizito                                                                                   - C/A