REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
CRIMINAL CASE NO.E0169 OF 2017
REPUBLIC - - - - - - - STATE COUNSEL
VERSUS
JACKSON MUTUKU KIILU - - - - - - -ACCUSED
JUDGMENT
1. The accused person Mutuku Kiilu is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on 2 nd January, 2015 at Ngiluni village Makindu District, Makueni County he murdered Mike Mtitu Ndetei.
2. The matter started as Machakos Criminal Case No.05 of 2015.
3. He took plea before the Hon. L. Mutende J, on 26 th January, 2015. It was never heard in Machakos – and on 28 th March, 2017, it was transferred to Makueni High Court.
4. It was mentioned severally before Hon. Justice C. Kariuki and only took off for hearing before the Hon. Ong’udi J ( as she then was ) on 19 th September, 2019. He was represented by Ms. Langalanga, and the State by Ms. Omwenga. The Hon. Ong’udi J, heard PW1, PW2 and PW3.
5. Before the matter started, counsel for the accused told the court that upon perusal of the police file found that the matter involved family members. She was of the view that they could discuss with the DPP to reduce the charge. Since there were witnesses in court the court directed that the matter proceeds as the parties proceeded with their conversation.
The Case for the Prosecution :
6. PW1, Justin Ng’ang’a Ndetei testified that on 2 nd January, 2015 he and members of his family including siblings were having a meeting at their home in Ngiluni village. That they were discussing the state of their father’s health, and the issue about a fight among their children in December. That while they were discussing outside their father’s house, his niece by the name Kasilu Ndetei uttered the words in Kikamba “ Uncle you will be shot with arrows .”
7. That on hearing this – they looked only to see one Mutuku Kiilu at a distance armed with a bow and arrows ready to shoot. Every one scattered in different directions. He, and his brother, Mike lay down, facing the accused – that the accused released an arrow which hit Mike on the back. That he saw accused taking out another arrow and realized he would be next – and he decided to get up to stop him. He got up but the arrow got him in the chest, the left side – but he still reacted and that the accused stabbed him with the third arrow.
8. That people came – some to assist him, others beat him with rungus, Matuva Mutuku and Matuva Nzioki. He could not get up – others assisted to snatch the bow from accused and one Purity Wayua assisted him to get to hospital – Makindu Hospital from where he was transferred to Kenyatta National Hospital where he was admitted from 2 nd January, 2015 to 13 th January, 2015. He identified in court bow and 3 arrows. – MFI-1 (a) and 1 (b).
9. That an arrow – was removed from him at Kenyatta hospital. He identified in court in a bottle. That while in hospital he learnt that his brother’s body had been taken to the mortuary, and that an arrow had been removed during post-mortem. He also said another arrow which he said was removed from Mike’s body at post-mortem MFI-2(a), 2(b). .
10. He said he did not know why the accused had attacked them, that he and the rest of the family were not armed. He said accused was charged with grievous harm and murder.
11. On cross-examination he told the court that he was not related to the accused: - that the meeting involved 12 family members – but that there was no record of the minutes of the meeting. He said he recorded a statement with the police on 15 th January, 2015; he denied there was no land dispute; he said that no one broke into the house of the accused.
He said others had no weapons. That only the accused was armed.
12. PW2, Purity Wayua told the court that on 2 nd January, 2015 she was in that family meeting. That PW1 was her husband, and the deceased was step brother to her husband. She said that on 24 th December, 2014, there had been a fight in the neighborhood involving some family members – and they met to discuss those issues.
13. She said she heard her sister’s child warning that the uncle was about to be shot with an arrow. On checking she saw Mutuku Kiilu who had bow and arrows. She said she saw Mike had been shot, she saw the accused shoot her husband. She said the deceased died in her hands – and they took PW1 to Kenyatta National Hospital where he was admitted for 11 days. She said one Raphael made the report to the police. That the accused left after the incident. – she identified the arrows.
14. On cross-examination she denied that there was a fight that day. She said that there was a dispute over shambas among her nephews but that it did not involve the accused person. She said there were documents to show that PW1 had been treated in hospital.
15. PW3 No.59331 Cpl. Benard Muraya was at the material time at DCI Makindu and was the investigating officer. He testified that the report was made by one Raphael Ndetei that there had been a murder. He and the OCS visited the scene at Ngiluni village. They found Mike Mutuku lying down with an arrow in his back. He was bleeding. The blood was black. He said to him that meant that the arrow was poisoned. He said that they took the body of Mike to the Makindu Hospital mortuary – that Raphael Ndetei recovered the bow and three arrows.
16. That the witnesses were siblings of Mike Mutuku. He testified that another by name Nganga Ndetei ( PW1 ) had also been injured and was at Kenyatta National Hospital. He testified that Mutuku Kiilu surrendered himself to Makindu Police Station.
17. Further, that an arrow was recovered from the deceased – He drew a sketch plan of the scene. He produced the exhibits – the arrow from the body of the deceased.
18. He said he took some exhibits to the government analyst but report was not ready at the time of his testimony– bow and arrow, arrow in bottle.
19. He testified that he learnt that the accused had been adopted as a son by the father of the siblings in this case, but had not been invited to the family meeting. That he was married, had put up a house there and his house had been brought down by those in the meeting. That his wife Amina was present. On cross-examination he said that Mzee had 4 wives, that the accused was absorbed in the home ;that a fight broke out after the shooting. He said the accused’s son had been grazing on their plot at SGR which had issues.
20. He said accused took himself to the police station and that the weapons were recovered at the scene by one Raphael Ndetei.
21. PW4, Raphael Kyalo testified that the sons of his kid brother, and that of the accused had fought, and there was a meeting at their father’s house to discuss this issue. However, before they would even start, a child warned that they were about to be shot with arrows.
22. It was then that accused shot Mutitu, then shot Justin. That Mutitu fell, then rose and a fight broke out as the family was divided into 2 factions. He identified the arrow in the bottle as the one with a hook. That the shooting led to a fight as the family was divided into 2 – and while the fight went on, the accused dropped his weapons and ran away. PW4 picked them. Referred to his statement, he said he had written that he was surprised to see Mike lying down having been shot after he was alerted by the children.
23. He said the accused was not related to them – but had lived in their father’s house for many years. He said he knew accused’s persons parents. He identified the arrow exhibits. On cross-examination, he said the accused was educated by his father, that he had known him for over 20 years. He said there was no fight over land but that Matuva Mutuku and Matuva Nzioki had fought.
24. He testified that Mike had sought for police security that morning because he was in bad books with accused and one Mbatha. He did not give details of this bad books issue. He denied that there was a fight among them. He denied that they were armed at the meeting. He denied that anyone had demolished the accused’s house. He denied that deceased had demolished accused’s house. He denied that accused had any issues with deceased; he denied that there was an issue over compensation money from SGR to their father. He said he saw accused shoot the arrows. He said that the deceased was in bad books with the accused and one Mbatha. He denied that no one attacked accused’s house; that accused was not invited because he was not a member of the family.
25. The matter was taken over by Dulu J, on 23 rd November, 2020.
26. PW5, James Kavisu Ndetei testified that Mike Ndetei was his older brother, and the accused Mutuku Kiilu was residing in their home – in the home of their elder stepmother. He said on 2 nd January, 2015 their father Ndetei Nganga called a family meeting because there were land disputes. He said that their mother and their elder step mother did not attend.
27. He said as the meeting proceeded a child shouted that they were about to be shot with arrows – he said he saw accused shoot Mike Mutitu on the right side of the chest who died and then shot Justin on the upper part of the abdomen who was taken to hospital.
28. He said they grabbed the accused and took the bow and arrows – 3 of them.
29. He said the accused had lived in the home for more than 10 years – that at the time of the incident he was still living there but he was not a member of the family and had not been invited – that the dispute that was being discussed did not involve him.
30. He testified that the accused was educated at secondary school by their father but he never went back to his parent’s home after that. He said the arrows were three, two were used.
31. He said he did not know whether his father had invited the accused to the meeting. He said the accused approached them from behind – and that is why it was the children who first saw him and raised alarm. That the deceased turned and he was shot – that the arrow pierced the heart that PW1 was shot in upper abdomen. He said they removed the wooden part of the arrows that shot the two.
32. PW6, Festus Ndetei Muya testified how on 25 th December, 2014 he and John Ndetei Nzioki and Joyce Ndetei were involved in an altercation over grazing livestock – it led into a struggle where the 2 injured him on the forehead. He went and reported to the police – but his brother told him to leave the matter out of the police.
33. A meeting was called on 2 nd January, 2015 to discuss the issue, at his father’s house. He said they were many siblings because his family is polygamous. He said he saw accused suddenly appear with bow and arrows and shoot Mutitu and Justine ( PW1 ). He said Mutitu was shot in the left upper abdomen. That he was disarmed, he ran away – that Mike died before he could get treatment.
34. On cross-examination he said he was born in 1993 – and that he had seen the accused person in their home from the time he became aware of himself. He said he did not know whether because of living there for long and had acquired some rights. He confirmed that accused was not in the meeting. He identified the arrows in court. He said only one was a full arrow. He said his father who was old and sickly had called the meeting.
35. PW7, Irene Mulee Ndetei testified that the deceased was her uncle – and that she was among those who saw the accused approach that place where her uncles were meeting while armed with arrows and a bow while ready to shoot, she saw him shoot her uncles and then run away. She said her uncle who died was near her feet and died in about 20 minutes. On cross-examination she said she was with her mother Celestine Ndetei. She said they are the ones who raised the alarm that they were about to be shot with arrows.
36. PW8, Dr. Josephine Maitha produced the post-mortem for Make Mutitu Ndetei. She said he had a wound in the right side chest, bruises on forehead; blood in chest cavity and abdomen, arrow head in the liver which she did not remove. She took some blood samples for the Government Analyst. Cause of death – Cardio-pulmonary arrest due to hemorrhage.
37. On cross-examination she said she saw the arrow head in the liver of the deceased. Shown arrow held in a bottle – she said it looked like that one – but she was not sure whether it was the one.
38. PW9, Florence Mbiti Ndetei told the court deceased was her step brother, and had lived in her family’s home for a month. He was always there for as long as she could recall. She testified that her brother Festus Mbusya Ndetei was assaulted by Matuva Mutuku on 25 th December, 2014. On 2 nd January, 2015, they went to see their father at Makindu Sub-location – there was a meeting in her father’s compound. She said on that point she suddenly saw the accused appear while armed with bow and arrows. She saw him shoot the arrow and it hit Mike but she could not say exactly where. She said Justine tried to disarm accused. That Mike fell, rose up, walked, then fell again and passed off. She said for Justine the arrow was lodged in the chest. On cross-examination she said she was not present on 25 th December, 2014.
39. The prosecution closed its case on 10 th March, 2022.
40. On 4 th October, 2022 accused was found to have a case to answer.
41. The matter was fixed for defence hearing on 23 rd November, 2022.
42. I took over the matter on 19 th July, 2023. After complying with Section 200 of the Criminal Procedure Code. T he accused gave his defence on 19 th September, 2023.
43. He testified on oath. He told the court that his name was Jackson Mutuku Kiilu , he was a farmer and lived at Makindu –he was aware he was the accused in this case.
44. He told the court that on 2 nd January, 2016 he woke up, went to the shamba up to 2:00 p.m. When he came home. he found people waiting for me at home – they were:-
- Mutitu Ndetei
- Nganga Ndetei
- Kavisu Ndetei
- Keke Ndetei
- Nzaswa Ndetei
- Wayua Nganga
- Nditi Ndetei
45. There were also some other men whose names he did
not know as it was his 1 st time to see them. The rest were my cousins. That when he went to the shamba earlier, he had left his wife Amina Mutuku, and his aunt, Josephine Nduku Ndetei – and Mzee his uncle very old uncle – Ndetei Nganga.
46. He found that the people he had left home had been chased out of the home. and as soon as he arrived the men said – he has arrived and that they had been waiting for him. He asked what they were waiting for him for and the response was that he would be shown that day.
47. They demanded to know how much Mzee had got from the railway – this was the compensation money for land next to the railway line. He told them mzee had not received any money. They insisted that he knew because he was the one who accompanied him to collect the same. His denial only brought violence upon him because they began to beat him. He said Kavisu, Mutitu, Nganga, Nzaswa, Keke Nditi, Wayua and others I did not know.
48. He said they beat him with sticks on head – fell down and fainted for a while – when he got up he got a chance to run to his house. It was a grass thatched mud house. He ran there entered his house and locked himself inside. Mutitu Ndetei, Kavisu Ndetei, Nganga Ndetei began to demolish his house. when they entered he took a bow and arrow and hit the one who was in front of them – Mutitu - he was the one about to enter – he was doing it in his defence. That the other screamed and he ran out – then I saw Nganga Ndetei with a stick. He was about to hit him. He was able to disarm him by hitting hit him with the stick. He ran away and he accused was able to run through the forest to Makindu Police Station.
49. There he reported that he had shot Mutitu Ndetei with an arrow after he and other went to attack him on the belief that their father had received the compensation money for the land. That while he was a remandee in Machakos in 2015 they took the money. That the whole incident was caused by the dispute over the money and he did that to defend myself.
50. On cross-examination he told the court that the deceased Mike Mutitu Ndetei was his cousin. That he had lived with them and had actually raised them until they became adults. That he went to school, up to secondary school while in their home, he married while there I was given land there where he constructed his family home and lived there with his wife and family.
51. That his relationship with the father of the deceased was very good. That it was not true there was a meeting on 2 nd January, 2015 to which he was not invited. That it was not true they had met to discuss how the railway money could be shared. That what Irene had said about him shooting arrows without provocation was not true. He asserted that he was in the house. He denied being disarmed by one Kavisu Ndetei .
52. It is not true what Wayua Nganga said – it is not true that I shot at the deceased unprovoked.
53. I know James Kairu Ndetei – it is not true that Kairu disarmed me. That he dropped his bow and arrow by himself and went to the police station. That if they had not beaten him he would not have fought back . They are the ones who provoked him.
54. On re-examination he said that when he shot the arrow he was in the house. They had demolished his house and they were attacking me.
THE SUBMISSIONS .
55. Counsel for the accused filed written submissions. I did not see any from the State –
56. The issues were set out for determination:-
i) Whether the prosecution proved the case beyond reasonable doubt.
ii) Whether the accused person has a defence of self defence.
57. It is submitted that the prosecution did not prove their case beyond a reasonable doubt. The defence relied on Section 203 of the Penal Code on determination of the offence of murder, and Roba Galma Wario –vs- Republic [2015] eKLR for the explanation of the ingredients of murder;
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional .”
58. Further in Nzuki –vs- Republic [1993] eKLR on the proof of the intentions the court had this to say;
For the purposes of the present appeal, murder is the unlawful killing of a human being with malice aforethought. “Malice aforethought” is a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result. See the case of Regina v Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of affairs which the person intending does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. See the case of Conliffe v Goodman, [1950] 2 KB 237.
Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:
(i) The intention to cause death;
(ii) The intention to cause grievious bodily harm;
(iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts.
It does not mater in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.
Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder. See the case of Hyam v Director of Public Prosecutions, [1975] AC 55.
In an appeal such as the present one, any one of the intentions set out above is a necessary constituent of the offence of murder contrary to section 204 of the Penal Code and the burden of proving any such intention is throughout on the prosecution. No doubt, if the prosecution prove an act the natural consequence of which should be a certain result and no evidence or explanation is given, then the Court may, on a proper direction, find that the accused is guilty of doing the act with the necessary intent, but if on the totality of evidence there is room for more than one view as to the intent of the accused, the Court should direct itself that it is for the prosecution to prove the necessary intent to its satisfaction, and if, on a review of the whole evidence, it either thinks that that intent did not exist or it is left in doubt in respect thereof, the accused should be given the benefit of that doubt. Thus, where on a charge of murder the evidence does not exclude the reasonable possibility that an accused person killed the deceased by an unlawful act but without the intent necessary to constitute legal malice requisite to the proof of that offence, that killing would only amount to manslaughter. See Rex v Steane, [1947] 1 KB 997; and Sharmpal Singh s/o Pritam Singh v R [1960] EA 762.
59. From the foregoing the defence posed the questions whether there was proof of death, the cause of the death and that the accused unlawfully caused that death.
60. Regarding the death of the deceased, it is submitted that this is not in doubt as it was established by all the prosecution witnesses including the police officer and the pathologist.
What was the cause of death?
61. It is submitted that the case for the prosecution was that it was caused by the shooting by a poisoned arrow which lodged in the deceased’s liver, and caused bleeding to death.
62. That according to the post-mortem report the body externally had a penetrating would in the right lateral aspect of the chest, bruises on the forehead; blood in the chest and abdominal cavity, arrow head in the liver.
63. That during cross-examination she said she could not identify the arrow head she saw in court as the one she saw in the liver.
64. It is submitted that the prosecution witness said the deceased had an arrow sticking to his back – that he was shot in the back – the defence posed the question, how was it possible that there was one wound instead of two? Shot in the back penetrating to the front? That there was no explanation for the penetrating wound in the chest.
65. According to the defence this did not make sense – the only sense was that deceased was involved in a scuffle before his demise.
66. The question was also posed whether the removal of the arrow stick did not cause the bleeding in the chest and cavity – that these are evidence of “ actus intervenience ”
67. It is submitted that the Government analysts report was not availed to confirm the alleged poisoned arrow – that there is no proof that the deceased was shot with a poisoned arrow. That the prosecution has not established that the deceased died from a poisoned arrow.
68. On whether the accused had malice aforethought – the defence cites Section 206 of the Penal Code; Rex v. Tubere s/o Ochen (1945) 12 EACA 63 as cited in Republic –vs- Sammy Muthie Gachoki [2021] eKLR.
69. That malice aforethought will be determined by the facts proving the weapon used, manner in which it is used, the part of the body injured. In addition, that the accused knew it was highly probable that the act would result in death/serious bodily harm see Hyam v. DPP [1974] AC.
70. The defence also relies on Ernest Asami Bwire Abanga alias Onyango –vs- Republic (CACRA No.32/90) that intentions can be inferred from “the consequences of the unlawful acts/omissions of the brutal killing, which was well planned and calculated to kill or do grievous harm upon the deceased.” It is submitted that no evidence was led by prosecution to show that the accused person had any intention to kill the deceased. Each witness stated that they had no issues with the accused and were all surprised by his act of shooting the arrows.
71. In addition, the prosecution did not adduce any evidence to establish the alleged assault against the PW1- no P3, OB extract, medical report/treatment notes were produced. In addition, the prosecution witnesses were not truthful that only the accused was armed yet PW1 said he was attacked with rungus. They were also not truthful about their relationship with the accused – on the fact that a fight ensued at some point in their meeting.
72. It was submitted that the circumstantial evidence did not add up as witnesses gave conflicting accounts of what happened that aftermath – some said there was a fight/scuffle, others, that they were not aware.
73. On the alleged murder weapon, it was submitted that no forensic evidence was availed to link the alleged murder weapon to the accused person, neither was there evidence to confirm. That the arrow head produced in court was the one that was lodged in the deceased’s liver.
74. The court was urged to find that prosecution had proved the charge beyond a reasonable doubt and to acquit the accused.
75. On whether there was malice aforethought, the court was urged to find that then was proved – and that the accused acted in self defence – that the deceased was injured in a scuffle where he accused was protecting himself. The defence relied on Section 17 of Penal Code and Gusambizi Wesanga –vs- Republic [1948] 15 EACA 65 .
Every homicide is presumed to be unlawful except where the circumstances make it excusable or where it has been authorised by law , for homicide to be excusable it must have been caused under justifiable circumstances , for example in self defence or in defence of property
76. The defence cited R –vs Sammy Muthie Gachoki [2021] eKLR, Ahmed Mohamed Omar & 5 others –vs- R. [2014] eKLR on self defence
77. It is submitted that then he was confronted with an unprovoked attack – he found people at home who attacked him – that his cousins who included the deceased demanded to know details from him of the compensation money from the SGR land allegedly paid to their father – that they beat him, and he ran to his grass thatched house; that there was of imminent injury/death when these attackers ran to his house and began to demolish it, yet he was inside. That he shot arrows and did not know who it hit the assailants scatter – when he came out PW1 attacked him, and he defended himself with the arrow he had at hand; that he has proved his fear was objective – the assailants were taking down his house – he left the weapons, ran through the forest to the police station. He did not disappear; he has proved that he used reasonable force to defendant himself, he should be acquitted,
Analysis & Determination:
78. I have carefully considered the record, the submissions – The issue is whether the prosecution has proved its case beyond a reasonable doubt to warrant a conviction of the accused for Murder contrary to Section 203 as with Section 204 and Section 206 of the Penal Code .
79. I must set out here that I did not hear or see any of the prosecution’s witnesses testify. PW1 to PW4 were heard by Ong’udi J ( as she then was ), and PW5 to PW9 were heard by Dulu J, who also made the determination that the accused had a case to answer and would be put to his defence. I heard only the defence case.
80. In addition, this matter has been in the Judicial System since 2015. Be that as it may – the ingredients of murder – are set and in statute and case law as clearly set out in submissions by defence – death of a person, cause of death, unlawfully caused by accused with malice aforethought.
Death:
81. The death of Mike Mutuku Ndetei was not disputed. It was established by prosecution including the Pathologist who conducted the post-mortem. His siblings and those present at home saw him die at the scene.
Cause of death :
82. The prosecution case is that the accused shot him with a poisoned arrow – There is no evidence that the deceased was shot with a poisoned arrow. No toxicology report was availed to this court to confirm the I.O’s suspicions despite blood samples being taken out by the Pathologist.
83. The Pathologist stated that she did not remove the arrow head lodged in the deceased’s liver. The prosecution presented one where PW1 claimed was the one. However, he did not produce any evidence to show that it was removed from him either.
84. The prosecution did not explain the whereabouts of the arrow head found and left in the deceased’s liver. In addition – even the one that was removed from the PW1 was not presented for any forensics. The court was told that the wooden parts of these arrows were also removed by one of the persons present at the scene – but these were also not presented for forensics of any kind.
85. What is clear from the post-mortem report is that death was due to loss of blood following assault with an arrow head. The deceased had one penetrating wound on the lateral aspect of the chest; bruises on the forehead.
86. PW1’s testimony on how the shooting took place is not corroborated by any other witness – he claims that both he and deceased were lying down facing the accused who shot 1 st at Mik
[...truncated]
IN THE HIGH COURT OF KENYA AT MAKUENI
CRIMINAL CASE NO.E0169 OF 2017
REPUBLIC - - - - - - - STATE COUNSEL
VERSUS
JACKSON MUTUKU KIILU - - - - - - -ACCUSED
JUDGMENT
1. The accused person Mutuku Kiilu is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars were that on 2 nd January, 2015 at Ngiluni village Makindu District, Makueni County he murdered Mike Mtitu Ndetei.
2. The matter started as Machakos Criminal Case No.05 of 2015.
3. He took plea before the Hon. L. Mutende J, on 26 th January, 2015. It was never heard in Machakos – and on 28 th March, 2017, it was transferred to Makueni High Court.
4. It was mentioned severally before Hon. Justice C. Kariuki and only took off for hearing before the Hon. Ong’udi J ( as she then was ) on 19 th September, 2019. He was represented by Ms. Langalanga, and the State by Ms. Omwenga. The Hon. Ong’udi J, heard PW1, PW2 and PW3.
5. Before the matter started, counsel for the accused told the court that upon perusal of the police file found that the matter involved family members. She was of the view that they could discuss with the DPP to reduce the charge. Since there were witnesses in court the court directed that the matter proceeds as the parties proceeded with their conversation.
The Case for the Prosecution :
6. PW1, Justin Ng’ang’a Ndetei testified that on 2 nd January, 2015 he and members of his family including siblings were having a meeting at their home in Ngiluni village. That they were discussing the state of their father’s health, and the issue about a fight among their children in December. That while they were discussing outside their father’s house, his niece by the name Kasilu Ndetei uttered the words in Kikamba “ Uncle you will be shot with arrows .”
7. That on hearing this – they looked only to see one Mutuku Kiilu at a distance armed with a bow and arrows ready to shoot. Every one scattered in different directions. He, and his brother, Mike lay down, facing the accused – that the accused released an arrow which hit Mike on the back. That he saw accused taking out another arrow and realized he would be next – and he decided to get up to stop him. He got up but the arrow got him in the chest, the left side – but he still reacted and that the accused stabbed him with the third arrow.
8. That people came – some to assist him, others beat him with rungus, Matuva Mutuku and Matuva Nzioki. He could not get up – others assisted to snatch the bow from accused and one Purity Wayua assisted him to get to hospital – Makindu Hospital from where he was transferred to Kenyatta National Hospital where he was admitted from 2 nd January, 2015 to 13 th January, 2015. He identified in court bow and 3 arrows. – MFI-1 (a) and 1 (b).
9. That an arrow – was removed from him at Kenyatta hospital. He identified in court in a bottle. That while in hospital he learnt that his brother’s body had been taken to the mortuary, and that an arrow had been removed during post-mortem. He also said another arrow which he said was removed from Mike’s body at post-mortem MFI-2(a), 2(b). .
10. He said he did not know why the accused had attacked them, that he and the rest of the family were not armed. He said accused was charged with grievous harm and murder.
11. On cross-examination he told the court that he was not related to the accused: - that the meeting involved 12 family members – but that there was no record of the minutes of the meeting. He said he recorded a statement with the police on 15 th January, 2015; he denied there was no land dispute; he said that no one broke into the house of the accused.
He said others had no weapons. That only the accused was armed.
12. PW2, Purity Wayua told the court that on 2 nd January, 2015 she was in that family meeting. That PW1 was her husband, and the deceased was step brother to her husband. She said that on 24 th December, 2014, there had been a fight in the neighborhood involving some family members – and they met to discuss those issues.
13. She said she heard her sister’s child warning that the uncle was about to be shot with an arrow. On checking she saw Mutuku Kiilu who had bow and arrows. She said she saw Mike had been shot, she saw the accused shoot her husband. She said the deceased died in her hands – and they took PW1 to Kenyatta National Hospital where he was admitted for 11 days. She said one Raphael made the report to the police. That the accused left after the incident. – she identified the arrows.
14. On cross-examination she denied that there was a fight that day. She said that there was a dispute over shambas among her nephews but that it did not involve the accused person. She said there were documents to show that PW1 had been treated in hospital.
15. PW3 No.59331 Cpl. Benard Muraya was at the material time at DCI Makindu and was the investigating officer. He testified that the report was made by one Raphael Ndetei that there had been a murder. He and the OCS visited the scene at Ngiluni village. They found Mike Mutuku lying down with an arrow in his back. He was bleeding. The blood was black. He said to him that meant that the arrow was poisoned. He said that they took the body of Mike to the Makindu Hospital mortuary – that Raphael Ndetei recovered the bow and three arrows.
16. That the witnesses were siblings of Mike Mutuku. He testified that another by name Nganga Ndetei ( PW1 ) had also been injured and was at Kenyatta National Hospital. He testified that Mutuku Kiilu surrendered himself to Makindu Police Station.
17. Further, that an arrow was recovered from the deceased – He drew a sketch plan of the scene. He produced the exhibits – the arrow from the body of the deceased.
18. He said he took some exhibits to the government analyst but report was not ready at the time of his testimony– bow and arrow, arrow in bottle.
19. He testified that he learnt that the accused had been adopted as a son by the father of the siblings in this case, but had not been invited to the family meeting. That he was married, had put up a house there and his house had been brought down by those in the meeting. That his wife Amina was present. On cross-examination he said that Mzee had 4 wives, that the accused was absorbed in the home ;that a fight broke out after the shooting. He said the accused’s son had been grazing on their plot at SGR which had issues.
20. He said accused took himself to the police station and that the weapons were recovered at the scene by one Raphael Ndetei.
21. PW4, Raphael Kyalo testified that the sons of his kid brother, and that of the accused had fought, and there was a meeting at their father’s house to discuss this issue. However, before they would even start, a child warned that they were about to be shot with arrows.
22. It was then that accused shot Mutitu, then shot Justin. That Mutitu fell, then rose and a fight broke out as the family was divided into 2 factions. He identified the arrow in the bottle as the one with a hook. That the shooting led to a fight as the family was divided into 2 – and while the fight went on, the accused dropped his weapons and ran away. PW4 picked them. Referred to his statement, he said he had written that he was surprised to see Mike lying down having been shot after he was alerted by the children.
23. He said the accused was not related to them – but had lived in their father’s house for many years. He said he knew accused’s persons parents. He identified the arrow exhibits. On cross-examination, he said the accused was educated by his father, that he had known him for over 20 years. He said there was no fight over land but that Matuva Mutuku and Matuva Nzioki had fought.
24. He testified that Mike had sought for police security that morning because he was in bad books with accused and one Mbatha. He did not give details of this bad books issue. He denied that there was a fight among them. He denied that they were armed at the meeting. He denied that anyone had demolished the accused’s house. He denied that deceased had demolished accused’s house. He denied that accused had any issues with deceased; he denied that there was an issue over compensation money from SGR to their father. He said he saw accused shoot the arrows. He said that the deceased was in bad books with the accused and one Mbatha. He denied that no one attacked accused’s house; that accused was not invited because he was not a member of the family.
25. The matter was taken over by Dulu J, on 23 rd November, 2020.
26. PW5, James Kavisu Ndetei testified that Mike Ndetei was his older brother, and the accused Mutuku Kiilu was residing in their home – in the home of their elder stepmother. He said on 2 nd January, 2015 their father Ndetei Nganga called a family meeting because there were land disputes. He said that their mother and their elder step mother did not attend.
27. He said as the meeting proceeded a child shouted that they were about to be shot with arrows – he said he saw accused shoot Mike Mutitu on the right side of the chest who died and then shot Justin on the upper part of the abdomen who was taken to hospital.
28. He said they grabbed the accused and took the bow and arrows – 3 of them.
29. He said the accused had lived in the home for more than 10 years – that at the time of the incident he was still living there but he was not a member of the family and had not been invited – that the dispute that was being discussed did not involve him.
30. He testified that the accused was educated at secondary school by their father but he never went back to his parent’s home after that. He said the arrows were three, two were used.
31. He said he did not know whether his father had invited the accused to the meeting. He said the accused approached them from behind – and that is why it was the children who first saw him and raised alarm. That the deceased turned and he was shot – that the arrow pierced the heart that PW1 was shot in upper abdomen. He said they removed the wooden part of the arrows that shot the two.
32. PW6, Festus Ndetei Muya testified how on 25 th December, 2014 he and John Ndetei Nzioki and Joyce Ndetei were involved in an altercation over grazing livestock – it led into a struggle where the 2 injured him on the forehead. He went and reported to the police – but his brother told him to leave the matter out of the police.
33. A meeting was called on 2 nd January, 2015 to discuss the issue, at his father’s house. He said they were many siblings because his family is polygamous. He said he saw accused suddenly appear with bow and arrows and shoot Mutitu and Justine ( PW1 ). He said Mutitu was shot in the left upper abdomen. That he was disarmed, he ran away – that Mike died before he could get treatment.
34. On cross-examination he said he was born in 1993 – and that he had seen the accused person in their home from the time he became aware of himself. He said he did not know whether because of living there for long and had acquired some rights. He confirmed that accused was not in the meeting. He identified the arrows in court. He said only one was a full arrow. He said his father who was old and sickly had called the meeting.
35. PW7, Irene Mulee Ndetei testified that the deceased was her uncle – and that she was among those who saw the accused approach that place where her uncles were meeting while armed with arrows and a bow while ready to shoot, she saw him shoot her uncles and then run away. She said her uncle who died was near her feet and died in about 20 minutes. On cross-examination she said she was with her mother Celestine Ndetei. She said they are the ones who raised the alarm that they were about to be shot with arrows.
36. PW8, Dr. Josephine Maitha produced the post-mortem for Make Mutitu Ndetei. She said he had a wound in the right side chest, bruises on forehead; blood in chest cavity and abdomen, arrow head in the liver which she did not remove. She took some blood samples for the Government Analyst. Cause of death – Cardio-pulmonary arrest due to hemorrhage.
37. On cross-examination she said she saw the arrow head in the liver of the deceased. Shown arrow held in a bottle – she said it looked like that one – but she was not sure whether it was the one.
38. PW9, Florence Mbiti Ndetei told the court deceased was her step brother, and had lived in her family’s home for a month. He was always there for as long as she could recall. She testified that her brother Festus Mbusya Ndetei was assaulted by Matuva Mutuku on 25 th December, 2014. On 2 nd January, 2015, they went to see their father at Makindu Sub-location – there was a meeting in her father’s compound. She said on that point she suddenly saw the accused appear while armed with bow and arrows. She saw him shoot the arrow and it hit Mike but she could not say exactly where. She said Justine tried to disarm accused. That Mike fell, rose up, walked, then fell again and passed off. She said for Justine the arrow was lodged in the chest. On cross-examination she said she was not present on 25 th December, 2014.
39. The prosecution closed its case on 10 th March, 2022.
40. On 4 th October, 2022 accused was found to have a case to answer.
41. The matter was fixed for defence hearing on 23 rd November, 2022.
42. I took over the matter on 19 th July, 2023. After complying with Section 200 of the Criminal Procedure Code. T he accused gave his defence on 19 th September, 2023.
43. He testified on oath. He told the court that his name was Jackson Mutuku Kiilu , he was a farmer and lived at Makindu –he was aware he was the accused in this case.
44. He told the court that on 2 nd January, 2016 he woke up, went to the shamba up to 2:00 p.m. When he came home. he found people waiting for me at home – they were:-
- Mutitu Ndetei
- Nganga Ndetei
- Kavisu Ndetei
- Keke Ndetei
- Nzaswa Ndetei
- Wayua Nganga
- Nditi Ndetei
45. There were also some other men whose names he did
not know as it was his 1 st time to see them. The rest were my cousins. That when he went to the shamba earlier, he had left his wife Amina Mutuku, and his aunt, Josephine Nduku Ndetei – and Mzee his uncle very old uncle – Ndetei Nganga.
46. He found that the people he had left home had been chased out of the home. and as soon as he arrived the men said – he has arrived and that they had been waiting for him. He asked what they were waiting for him for and the response was that he would be shown that day.
47. They demanded to know how much Mzee had got from the railway – this was the compensation money for land next to the railway line. He told them mzee had not received any money. They insisted that he knew because he was the one who accompanied him to collect the same. His denial only brought violence upon him because they began to beat him. He said Kavisu, Mutitu, Nganga, Nzaswa, Keke Nditi, Wayua and others I did not know.
48. He said they beat him with sticks on head – fell down and fainted for a while – when he got up he got a chance to run to his house. It was a grass thatched mud house. He ran there entered his house and locked himself inside. Mutitu Ndetei, Kavisu Ndetei, Nganga Ndetei began to demolish his house. when they entered he took a bow and arrow and hit the one who was in front of them – Mutitu - he was the one about to enter – he was doing it in his defence. That the other screamed and he ran out – then I saw Nganga Ndetei with a stick. He was about to hit him. He was able to disarm him by hitting hit him with the stick. He ran away and he accused was able to run through the forest to Makindu Police Station.
49. There he reported that he had shot Mutitu Ndetei with an arrow after he and other went to attack him on the belief that their father had received the compensation money for the land. That while he was a remandee in Machakos in 2015 they took the money. That the whole incident was caused by the dispute over the money and he did that to defend myself.
50. On cross-examination he told the court that the deceased Mike Mutitu Ndetei was his cousin. That he had lived with them and had actually raised them until they became adults. That he went to school, up to secondary school while in their home, he married while there I was given land there where he constructed his family home and lived there with his wife and family.
51. That his relationship with the father of the deceased was very good. That it was not true there was a meeting on 2 nd January, 2015 to which he was not invited. That it was not true they had met to discuss how the railway money could be shared. That what Irene had said about him shooting arrows without provocation was not true. He asserted that he was in the house. He denied being disarmed by one Kavisu Ndetei .
52. It is not true what Wayua Nganga said – it is not true that I shot at the deceased unprovoked.
53. I know James Kairu Ndetei – it is not true that Kairu disarmed me. That he dropped his bow and arrow by himself and went to the police station. That if they had not beaten him he would not have fought back . They are the ones who provoked him.
54. On re-examination he said that when he shot the arrow he was in the house. They had demolished his house and they were attacking me.
THE SUBMISSIONS .
55. Counsel for the accused filed written submissions. I did not see any from the State –
56. The issues were set out for determination:-
i) Whether the prosecution proved the case beyond reasonable doubt.
ii) Whether the accused person has a defence of self defence.
57. It is submitted that the prosecution did not prove their case beyond a reasonable doubt. The defence relied on Section 203 of the Penal Code on determination of the offence of murder, and Roba Galma Wario –vs- Republic [2015] eKLR for the explanation of the ingredients of murder;
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional .”
58. Further in Nzuki –vs- Republic [1993] eKLR on the proof of the intentions the court had this to say;
For the purposes of the present appeal, murder is the unlawful killing of a human being with malice aforethought. “Malice aforethought” is a term of art and is either an express intention to kill, as could be inferred when a person threatens another and proceeds to produce a lethal weapon and uses it on his victim; or implied, where, by a voluntary act, a person intended to cause grievous bodily harm to his victim and the victim died as the result. See the case of Regina v Vickers, [1957] 2 QB 664 at page 670. An intention connotes a state of affairs which the person intending does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition. See the case of Conliffe v Goodman, [1950] 2 KB 237.
Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:
(i) The intention to cause death;
(ii) The intention to cause grievious bodily harm;
(iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts.
It does not mater in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.
Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder. See the case of Hyam v Director of Public Prosecutions, [1975] AC 55.
In an appeal such as the present one, any one of the intentions set out above is a necessary constituent of the offence of murder contrary to section 204 of the Penal Code and the burden of proving any such intention is throughout on the prosecution. No doubt, if the prosecution prove an act the natural consequence of which should be a certain result and no evidence or explanation is given, then the Court may, on a proper direction, find that the accused is guilty of doing the act with the necessary intent, but if on the totality of evidence there is room for more than one view as to the intent of the accused, the Court should direct itself that it is for the prosecution to prove the necessary intent to its satisfaction, and if, on a review of the whole evidence, it either thinks that that intent did not exist or it is left in doubt in respect thereof, the accused should be given the benefit of that doubt. Thus, where on a charge of murder the evidence does not exclude the reasonable possibility that an accused person killed the deceased by an unlawful act but without the intent necessary to constitute legal malice requisite to the proof of that offence, that killing would only amount to manslaughter. See Rex v Steane, [1947] 1 KB 997; and Sharmpal Singh s/o Pritam Singh v R [1960] EA 762.
59. From the foregoing the defence posed the questions whether there was proof of death, the cause of the death and that the accused unlawfully caused that death.
60. Regarding the death of the deceased, it is submitted that this is not in doubt as it was established by all the prosecution witnesses including the police officer and the pathologist.
What was the cause of death?
61. It is submitted that the case for the prosecution was that it was caused by the shooting by a poisoned arrow which lodged in the deceased’s liver, and caused bleeding to death.
62. That according to the post-mortem report the body externally had a penetrating would in the right lateral aspect of the chest, bruises on the forehead; blood in the chest and abdominal cavity, arrow head in the liver.
63. That during cross-examination she said she could not identify the arrow head she saw in court as the one she saw in the liver.
64. It is submitted that the prosecution witness said the deceased had an arrow sticking to his back – that he was shot in the back – the defence posed the question, how was it possible that there was one wound instead of two? Shot in the back penetrating to the front? That there was no explanation for the penetrating wound in the chest.
65. According to the defence this did not make sense – the only sense was that deceased was involved in a scuffle before his demise.
66. The question was also posed whether the removal of the arrow stick did not cause the bleeding in the chest and cavity – that these are evidence of “ actus intervenience ”
67. It is submitted that the Government analysts report was not availed to confirm the alleged poisoned arrow – that there is no proof that the deceased was shot with a poisoned arrow. That the prosecution has not established that the deceased died from a poisoned arrow.
68. On whether the accused had malice aforethought – the defence cites Section 206 of the Penal Code; Rex v. Tubere s/o Ochen (1945) 12 EACA 63 as cited in Republic –vs- Sammy Muthie Gachoki [2021] eKLR.
69. That malice aforethought will be determined by the facts proving the weapon used, manner in which it is used, the part of the body injured. In addition, that the accused knew it was highly probable that the act would result in death/serious bodily harm see Hyam v. DPP [1974] AC.
70. The defence also relies on Ernest Asami Bwire Abanga alias Onyango –vs- Republic (CACRA No.32/90) that intentions can be inferred from “the consequences of the unlawful acts/omissions of the brutal killing, which was well planned and calculated to kill or do grievous harm upon the deceased.” It is submitted that no evidence was led by prosecution to show that the accused person had any intention to kill the deceased. Each witness stated that they had no issues with the accused and were all surprised by his act of shooting the arrows.
71. In addition, the prosecution did not adduce any evidence to establish the alleged assault against the PW1- no P3, OB extract, medical report/treatment notes were produced. In addition, the prosecution witnesses were not truthful that only the accused was armed yet PW1 said he was attacked with rungus. They were also not truthful about their relationship with the accused – on the fact that a fight ensued at some point in their meeting.
72. It was submitted that the circumstantial evidence did not add up as witnesses gave conflicting accounts of what happened that aftermath – some said there was a fight/scuffle, others, that they were not aware.
73. On the alleged murder weapon, it was submitted that no forensic evidence was availed to link the alleged murder weapon to the accused person, neither was there evidence to confirm. That the arrow head produced in court was the one that was lodged in the deceased’s liver.
74. The court was urged to find that prosecution had proved the charge beyond a reasonable doubt and to acquit the accused.
75. On whether there was malice aforethought, the court was urged to find that then was proved – and that the accused acted in self defence – that the deceased was injured in a scuffle where he accused was protecting himself. The defence relied on Section 17 of Penal Code and Gusambizi Wesanga –vs- Republic [1948] 15 EACA 65 .
Every homicide is presumed to be unlawful except where the circumstances make it excusable or where it has been authorised by law , for homicide to be excusable it must have been caused under justifiable circumstances , for example in self defence or in defence of property
76. The defence cited R –vs Sammy Muthie Gachoki [2021] eKLR, Ahmed Mohamed Omar & 5 others –vs- R. [2014] eKLR on self defence
77. It is submitted that then he was confronted with an unprovoked attack – he found people at home who attacked him – that his cousins who included the deceased demanded to know details from him of the compensation money from the SGR land allegedly paid to their father – that they beat him, and he ran to his grass thatched house; that there was of imminent injury/death when these attackers ran to his house and began to demolish it, yet he was inside. That he shot arrows and did not know who it hit the assailants scatter – when he came out PW1 attacked him, and he defended himself with the arrow he had at hand; that he has proved his fear was objective – the assailants were taking down his house – he left the weapons, ran through the forest to the police station. He did not disappear; he has proved that he used reasonable force to defendant himself, he should be acquitted,
Analysis & Determination:
78. I have carefully considered the record, the submissions – The issue is whether the prosecution has proved its case beyond a reasonable doubt to warrant a conviction of the accused for Murder contrary to Section 203 as with Section 204 and Section 206 of the Penal Code .
79. I must set out here that I did not hear or see any of the prosecution’s witnesses testify. PW1 to PW4 were heard by Ong’udi J ( as she then was ), and PW5 to PW9 were heard by Dulu J, who also made the determination that the accused had a case to answer and would be put to his defence. I heard only the defence case.
80. In addition, this matter has been in the Judicial System since 2015. Be that as it may – the ingredients of murder – are set and in statute and case law as clearly set out in submissions by defence – death of a person, cause of death, unlawfully caused by accused with malice aforethought.
Death:
81. The death of Mike Mutuku Ndetei was not disputed. It was established by prosecution including the Pathologist who conducted the post-mortem. His siblings and those present at home saw him die at the scene.
Cause of death :
82. The prosecution case is that the accused shot him with a poisoned arrow – There is no evidence that the deceased was shot with a poisoned arrow. No toxicology report was availed to this court to confirm the I.O’s suspicions despite blood samples being taken out by the Pathologist.
83. The Pathologist stated that she did not remove the arrow head lodged in the deceased’s liver. The prosecution presented one where PW1 claimed was the one. However, he did not produce any evidence to show that it was removed from him either.
84. The prosecution did not explain the whereabouts of the arrow head found and left in the deceased’s liver. In addition – even the one that was removed from the PW1 was not presented for any forensics. The court was told that the wooden parts of these arrows were also removed by one of the persons present at the scene – but these were also not presented for forensics of any kind.
85. What is clear from the post-mortem report is that death was due to loss of blood following assault with an arrow head. The deceased had one penetrating wound on the lateral aspect of the chest; bruises on the forehead.
86. PW1’s testimony on how the shooting took place is not corroborated by any other witness – he claims that both he and deceased were lying down facing the accused who shot 1 st at Mik
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