The Republic VS MARTIN MURITHI KAMUNYI The Republic VS MARTIN MURITHI KAMUNYI

The accused person is facing the charge of Murder contrary to section 203 as read together with section 204 of the Penal Code. Particulars of the charge are that on 26^th May 2021 at Rugusa village, Runyenjes location within Embu East subcounty in Embu County, the accused murdered Azel Maxwell Bundi. Upon arraignment, the accused pleaded not guilty and a plea of not guilty was duly entered. The prosecution called witnesses in support of its case.
PW1 was J.M.W., a minor, who gave sworn testimony after being subjected to voire dire. She stated that the deceased’s mother left her and B.K. in charge of the deceased as she went on an errand. That the accused came and took the baby from them by force, saying that he wanted to change his clothes. That she and Kaso decided to look for the baby’s mother to tell her that the accused had taken the child and they met her on the way. After about 30 minutes, the deceased’s mother told them that the accused had sent her a text message telling her that the deceased was bleeding from the mouth and the nose and she rushed ahead, leaving them behind.
She stated that as they walked, they saw the deceased’s mother with the accused who was carrying the baby and there was a boda boda. That the baby was bleeding from the mouth and the nose but he was still alive. That the accused is the deceased’s mother’s husband. On cross-examination, she stated that the after the deceased’s mother had left, the accused arrived after 30 minutes. That the deceased was the accused’s foster father. She stated that she did not know what had happened to the child.
PW2 B.K., a minor, gave sworn testimony after voire dire. She stated that on the day of the incident, she was at home with PW1 when the deceased’s mother left them caring for her child, the deceased, as she went on an errand. That the accused, who was the child’s father came and took the child from PW1 but the child was resisting and he took him by force and entered into the house with the child. Seeing what had happened, they left to go and call the deceased’s mother and they met her returning home. She stated that when they returned home with the child’s mother, they found the accused leaving the house with the child who was now bleeding from the nose and mouth and was being taken to hospital by the accused.
That she saw the accused taking the child from PW1 by force and at the time, the child did not have any problem. On cross-examination, she stated that there was a group of 6 children playing at the home of the deceased. That she knew the accused as the father of the deceased but sometimes the deceased did not like it when the accused held him. That the accused took the deceased saying that he wanted to change his trouser since he had soiled it. That when they met the child’s mother on the way back home, she told them that the accused had sent her a text message, whose contents she (PW2) did not know.
PW3 was Erastus Kinyua, a neighbor of the deceased’s mother, who stated that on the day of the incident, he went home at around 5PM and when he arrived at the gate, he discovered that he had misplaced his phone. He went to the deceased’s house where he found the accused and the deceased who was okay. He requested the accused to call him so that he could locate his phone. That when he left and returned later that evening, he was informed that the deceased had died in hospital. He stated that he had known the accused for some time and that he was a friend of the deceased’s mother but he was not the deceased’s father. It was his testimony that when he later asked the deceased’s grandmother what happened to the case of the deceased, she told him that they decided to end the case because they feared that the accused would be imprisoned. On cross-examination, he stated that he went to the home of the accused at around 5PM and he found him inside the house and there was no one else outside.
PW4 was Winjoy Nyakio Njeru who stated that on the day of the incident, she was going to the market with a friend when they met the accused who was carrying the deceased who was bleeding from the mouth and nose. That they asked him (PW4) what had happened and he responded saying that he had found the child playing with other children and he did not know what had happened. That the accused asked Jackline if she had seen the mother of the child and they told him to take the child to hospital. That on the way, they met the mother to the deceased and they accompanied her to Runyenjes Hospital where the child had been taken and she was informed that the child had died by the time he arrived at the hospital. The matter was reported to the police. On cross-examination, she stated that she did not know what happened to the child.
PW5 was Gladys Wambura, the deceased’s grandmother. She stated that the accused lived with the deceased’s mother in the same house as husband and wife. That on the day of the incident, the deceased had been left under the care of PW1 while his mother went to do some errands. That the accused went to call her to go and see the child and when she went to the accused’s house, she found the child bleeding from the nose and mouth. That the accused rushed the deceased to Runyenjes hospital where he was pronounced dead on arrival.
She stated that when the deceased’s mother left the deceased under the care of PW1, the accused was not there but when he returned, he took the child from PW1. On cross-examination, she stated that her daughter and the deceased lived together in peace and that the accused told her that he had taken the child to the house so that he could change his clothes since he had soiled the ones he had. That when she went to the accused’s house, she did not hear the deceased crying but the deceased was bleeding from the mouth. She stated that she did not know what had happened to the child.
PW6 was PC Rose Wamaitha, formerly of DCI Embu East who was the investigating officer in the case. She stated that one Erastus Kinyua went to the DCI office about a case that had been reported at Runyenjes Police Station concerning the deceased. That Lawrence and Winjoy had reported that the deceased had fallen down and was pronounced dead upon arrival at the Hospital. That she went to the mortuary and requested for postmortem and then recorded witness statements. From the investigations, she gathered that the deceased had been left by his mother while he was in good condition under the care of PW1 and PW2 outside the house and the accused came and took the child to the house.
That the accused then went to call PW5 and by then, the deceased was bleeding from his nose and mouth. That before this, the accused had gone to buy the deceased a sweet from a nearby shop. That the deceased was rushed to the hospital but he was pronounced dead on arrival. It was her testimony that she escorted the accused to Chuka Level 5 Hospital for mental assessment, compiled the evidence and then charged the accused with the offence. She produced the mental assessment report dated 08^th June 2021 in which the accused was found fit to stand trial.
On cross-examination, she stated that she was unable to record a statement from the mother of the child who had been cohabiting with the accused for some time. That the accused was the deceased’s step-father. That she visited the compound where the deceased lived with his mother and she did not see any stones which could have harmed the deceased. She stated that she did not see the deceased’s clothes in the house but she saw them at the mortuary and they were covered in blood. That at the mortuary, she saw the body of the deceased with an injury on the forehead and it was swollen.
PW7 was Dr. Rosemary Wangari Kamau of Embu level 5 Hospital who conducted postmortem on the body of the deceased. She stated that the deceased was a 14-month old male with a 3cm×3cm bruise on the frontal region (the face), 2cm×2cm bruise on the anterior abdomen and another one on the right thigh. On internal examination, she observed that there was a fracture on the right parietal region of the skull and there was extradural hematoma and signs of raised intercranial pressure.
She formed the opinion that the cause of death was severe head injury. She produced the postmortem report as evidence. On cross-examination, she stated that the injuries were recent, being less that 7 days old. That the bleeding was on the front part of the head and the fracture was a linear one which is a continuous line. She stated that a fracture from repeated impact results in a fragmented fracture. She couldn’t ascertain whether the injuries were as a result of a fall or blunt force trauma but the bruises were also in the abdominal area and the inner right thigh, which injuries are not consistent with a fall.
At the close of the prosecution’s case, the court found that the accused person had a case to answer and he was placed on his defense.
DW1 was the accused person who stated that on the material day, he returned home from a driving school and when he arrived, he found the deceased lying on the ground and he had wet his pants. That there were some children playing in the compound and he asked PW1 what had happened to the deceased. That he took the child to the house to change his clothes and that is when he noticed that the child was bleeding from his mouth. That he tried to text the mother of the deceased but there was no response so he rushed to call PW5 and when they arrived together, the deceased’s condition had worsened.
It was his evidence that he called a bodaboda and rushed the deceased to the hospital with Lawrence and Winjoy and the deceased was pronounced dead on arrival. That the death was reported at the police station before the body was taken to Runyenjes Level 4 Hospital. On cross-examination he stated that when he lifted the boy from the ground, he noticed that the forehead was swollen and when he asked PW1 what had happened, she said that she did not know what had happened. That he noticed the bleeding when he was changing the child into clean clothes and he is the one who made the decision to take the child to hospital. He stated that he did not know for how long PW1 had been left with the deceased and that neither PW1 nor the other children told him if the child had a problem.
At the close of the defense case, the court directed the parties to file their written submissions but only the prosecution complied.
The prosecution submitted relying on the case of Anthony Ndegwa Ngari v. Republic (2014) eKLR and the provisions of section 203 of the Penal Code on the elements of the offence. Further reliance was placed on Article 26 of the Constitution and the cases of Republic v. Stephen Sila Wambua (2017) eKLR, Guzambizi Wesonga v. Republic (1948) 15 EACA 63, Abanga alias Onyango v. Republic CRA No. 32 of 1990 (UR) and Kipkering Arap Koske & Another (1949) EACA 135 and it argued that the court should follow circumstantial evidence which points towards the accused as the assailant. That the testimonies of PW1, PW2 and PW5 create a strong chain of circumstantial evidence pointing towards the accused person as the perpetrator of the offence.
It submitted that it had discharged the burden of proof to the required standard per section 111 of the Evidence Act. It was its submission that the prosecution had proved malice aforethought as provided for under section 206 of the Penal Code and it further relied on the case of Joseph Kimani Njau v. Republic (2014) eKLR. It submitted that the defense offered by the accused is a mere denial and it does not unsettle the prosecution’s evidence.
The issue for determination herein is whether or not the offence of murder has been proved beyond reasonable doubt.
Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. The accused person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased. Section 203 of the Penal Code provides:

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:

“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought.”

The first element is death and cause of death. PW7 testified that the deceased suffered a 3cm×3cm bruise on the frontal region (the face), 2cm×2cm bruise on the anterior abdomen and a bruise on the right thigh. She observed that there was a fracture on the right parietal region of the skull and there was extradural hematoma and signs of raised intercranial pressure. She formed the opinion that the cause of death was severe head injury.
The second element to be proved is that the accused person is responsible for the death of the deceased. PW1 stated that she and PW2 were left to care for the deceased as his mother went to take some clothes to the fundi. That there were other children also playing in the compound when the accused went and took the deceased from PW1 by force and went with him to the house and said that he wanted to change his clothes. PW1 and PW2 testified that after they saw that the accused had taken the child by force, they went to look for the child’s mother and they met her on the way back home. That the child’s mother told them that the accused had sent her a message to the effect that the deceased was bleeding from the mouth and the nose. That they met the accused carrying the child who was bleeding from his mouth and nose.
PW3 stated that he had visited the accused’s home that evening, seeking help to locate his phone and that the deceased was inside the house with the deceased and he was okay. PW4 stated that she met the accused carrying the deceased who was bleeding from the mouth and nose and she advised that he takes the child to hospital. That she later accompanied the child’s mother to hospital where they were informed that he had died. PW5 testified that she was called by the accused to go and see the deceased and when she went, she found the child bleeding from the mouth and nose. That the accused called a bodaboda to take the child to hospital but the child was pronounced dead on arrival.
In his defense, the accused stated that he arrived home from work and found the deceased lying down while other children were playing in the compound. That he asked PW1 what had happened and then he picked the child up and went to the house with him to change his trouser since he had soiled the one he had. That while he was changing the child, he noticed that he was bleeding from the mouth and he went to call PW5 who returned with him and he took the child to hospital. He stated that he did not know what had happened to the child and that he had sought to know from the other children what had happened to him.
From these testimonies, there is no direct evidence linking the accused to the murder. However, there is plenty of circumstantial evidence available that can be examined by the court. In considering circumstantial evidence, the court warns itself of the need to proceed cautiously in that direction. The court has pronounced itself on this in the case of Chiragu & another v Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR) where it stated:

“Thus, there was no direct evidence linking the appellants to the death of the deceased. The prosecution case on this aspect therefore hinged on circumstantial evidence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, this Court had this to say on circumstantial evidence: “However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: ‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.’”

Further, the conditions for the application of circumstantial evidence in order to sustain a conviction in any criminal trial have been laid down in several authorities of this court. Suffice to mention Abanga alias Onyango v. Republic CR. App NO. 32 of 1990(UR) in which this court held as follows: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.””

In the case of Sawe v. Republic (2003) KLR 364, the Court of Appeal amplified on the above thus:

“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”

DW1 denied having done anything to harm the child and that he found him lying on the ground seeming like he was not okay. PW1, PW2 and PW5 stated that the accused was the deceased’s step-father for a few months. PW1 testified that the accused took the child from her by force and that the child sometimes rejected him when he tried to carry him. DW1 stated that the child started bleeding when he was changing him inside the house, not before. The witnesses stated that the child was pronounced dead on arrival at the hospital and that he had been seen bleeding from the mouth and nose.
Through this circumstantial evidence, there is a strong chain of evidence to the effect that the accused was the last person seen with the deceased before he was seen bleeding from the mouth and nose and up to his death.
Given the short time between when the accused took the deceased to the house by force and the time the child was pronounced dead, it is this court’s view that the accused is to be held responsible for the death of the deceased.
The final element to prove is malice aforethought which goes to show that the accused intended to murder the deceased person. Malice aforethought is defined and well explained under section 206 of the Penal Code as follows:

“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—

(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;

(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.”

Further, the court in Republic v Njeru & 3 others (Criminal Case 2 of 2019) [2023] KEHC 19141 (KLR) stated as follows:

“The Court of Appeal in Bonaya Tutu Ipu & Another Vs Republic [2015] eKLR stated as follows on the prove of malice aforethought; -“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 Chesakit Vs Uganda, CR. APP. NO. 95 OF 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 the 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 v Tubere s/o Ochen [1945] 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue: It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick……”

Having determined that the accused is responsible for the death of the deceased, the nature of injuries found on the body of the deceased should speak to malice aforethought. PW7 detailed that the bruise on the deceased’s head was linear and from a single impact. She stated that the bruises could not have been as a result of a fall since there was a bruise on the inner right thigh. Moreover, the circumstances leading to the accused being alone with the deceased already disclosed the cause of the fatal injuries in a manner to show that he had the intent to kill him.
In the end, having carefully considered the evidence before the court and the relevant laws, it is my finding that the prosecution has proved the offence of murder against the accused person beyond reasonable doubt. The accused is therefore found guilty of the offence of murder contrary to section 203 of the Penal Code and is hereby convicted accordingly.
It is so ordered.

Delivered, dated and signed at Embu this 9^th day of October, 2024.