The Republic VS ROBERT NTHIGA IRERI The Republic VS ROBERT NTHIGA IRERI

The accused faces 2 counts of murder contrary to Section 203 as read together with Section 204 of the Penal Code. Particulars of the charge are that on 08^thAugust 2022 at Ishiara Township in Mbeere North sub-county within Embu County, the accused murdered Leah Njoki and Cyprian Njue.
The accused took a plea of not guilty on both counts and the same was duly entered. The case proceeded to trial and the prosecution called twelve (12) witnesses and then rested its case.
PW1 was Mike Kelvin Dwiga who stated that he was sleeping in his rented house when he heard distress calls from the house of the accused. That he woke up and went outside where he found the landlord and his other neighbours had gathered and they were imploring upon the accused to open his door but he did not open it. That he saw blood flowing from the accused’s house and that is when he called a friend of his and told him what was happening so that he could call the police. Shortly afterwards, a police officer called him back and requested for directions and him and his landlord went to pick the officers from the main road.
He stated that when the police officers arrived, they broke the accused’s door after they had ordered him to open and he had refused. That one of the officers peeped into the accused’s house through the window and saw that he had a knife in his hand. That he (PW1) couldn’t tell whether the deceased had any injuries on his body and he returned to his house. The following morning, he woke up at 8.00 a.m and was told that the accused’s wife and one of his children had died but the other child was okay. He stated that he had known the accused for about 6 months and he did not know how the deceased related with his wife. On cross-examination, he stated that he knew the accused who is a teacher and a neighbor and his marriage to his wife seemed peaceful.
PW2 was Josephine Kanini who stated that she was asleep with her husband Mr. Kiuma when the accused called to inform him that he had killed his wife and child and was contemplating suicide. That she overheard the conversation and then she called her 2 sons and informed them of what the accused had told her husband. That they drove to the accused’s home and arrived at 5.00 a.m when the police had already arrived at the scene as well as the accused’s brother. She stated that the accused had locked himself inside the house but the window was open and she peeped inside.
She saw the deceased persons lying in pools of blood before she was chased away by the police. She stated that when the police opened the door, they called her into the house and she saw the dead bodies clearly. She said that the accused and Leah Njoki were living together as friends and she had 2 children. On cross-examination, she stated that the accused used to tell them that Leah Njoki was his friend but he had not paid dowry for her. She stated that Leah Njoki was her daughter and she knew that she was a friend of the accused but they were not married since the accused had not paid dowry but they were living together peacefully.
PW3 was Patrick Njiru Ireri, the accused’s brother who stated that at around 3am, he received a call from the accused’s landlord one Michael, who told him that there was an issue at the accused’s house and they could see blood flowing from his house. The landlord asked him to go to the scene possibly with the police and he went to Ishiara Police station where he was told that the issue had already been reported there. He stated that he went to the accused’s house and saw blood at the door and he peeped through the open window. When the accused saw him, he asked “umekuja kuchukua gifts zile mlikuwa mumebakisha” (have you come to collect the remaining gifts?).
He asked the accused to open the door but he told him to wait and see him cutting himself with a knife. That he cut his neck with a knife and that is when the police broke the door after the accused refused to open the door. By the time the police entered, the accused was lying near the door and Leah Njoki was also lying near the door in a pool of blood. He stated that he covered Leah’s body with a bedsheet and he noticed that one of the children was lying on the couch and she was alive. That he took the child and gave her to the people who were outside and then he found the other child, namely Cyprian Njue lying on the bed covered in blood but he wasn’t sure if he was alive.
That the accused was taken to hospital in a police vehicle. He stated that he remained at the scene until police officers from Siakago arrived to process the scene and the bodies of the deceased were taken to Gakwegori mortuary. That Leah was the accused’s wife and that the weekend before the incident they had gone to Leah’s parents for dowry negotiations while Cyprian was her 2-year-old son. On cross-examination, he stated that the accused and Leah Njoki used to accuse each other of infidelity and they disagreed a lot about the same. That the accused had been treated of mental illness at Embu Level 5 Hospital and at Mathari National Hospital on 3 occasions. That whenever he was taken ill, he would be given medication which if he did not take, he would get worse. That he had been able to continue with his teaching career but while on medication since 2020. That on the night of the incident when the accused asked him if he had gone to collect the remaining gifts, he suspected that he was not well since there was no such thing.
PW4 was Benson Ngari who stated that PW2 called to inform him that they should go to Ishiara at once since Leah, his sister had been killed by her husband. That he took his wife, his other brother and his wife and PW2 and they rushed to Leah’s rented house where they found a crowd had gathered. That he asked the police to let him confirm that his sister was dead and when he peeped through the door, he saw his sister’s body lying in a pool of blood near the door and his 2-year-old nephew’s body on the bed. He stated that he did not know that Leah and the accused were living together since the accused had not paid dowry. He did not know the nature of their relationship but he knew that they had another child called Magdalene. On cross-examination, he stated that he did not know how long the accused and the deceased had been friends but the accused had not paid dowry. That the accused had never complained about the deceased.
PW5 was Njue Kiuma, Leah Njoki’s father, who stated that on the night of the incident at around 3am, he received a call from his daughter but it was the accused speaking. That the accused told him that he had killed Cyprian and Leah Njoki would be next. He asked him if he was mad and the accused answered saying that that is what people say but he knows he is okay. The accused told him that within another 30 minutes, he will have committed suicide. He stated that he called PW4 who went to the deceased’s house with his brother and their mother and they returned at 7am confirming what the accused had said on the phone. That the accused and his daughter were friends and they had 2 children. On cross-examination, he stated that the accused had never gone for dowry negotiations at Leah’s parents’ home.
PW6 was Cpl. Danson Mwasho of Ishiara Police Station who stated that he was on duty with his colleagues when at around 3am, the OCS called and asked them to pick up the deputy OCS and respond to a distress call near the cereals board. That they went to the scene where they found that a crowd had gathered and when they went to the accused’s house, they found a stream of blood flowing from the house. That he looked through the glass window and saw a girl child standing on the sofa while the accused was standing near the door cutting himself.
He stated that they ordered the accused to open the door since he had locked himself inside but he refused, forcing the police to break the door using a metal rod. That when they entered the house, they saw a woman lying in a pool of blood near the door with stab wounds below her breasts on both sides. That he also saw a juvenile lying on the bed in a pool of blood. The suspect was already unconscious and he was rushed to hospital and PW3, his brother, identified him to the police. That him and his colleague PC Driver Henry Kirinya took the accused to Ishiara Level 4 Hospital before they were referred to Embu Level 5 Hospital where the accused was admitted to ICU.
He stated that he guarded the accused until 11pm when he was relieved by his colleague. That the girl child was found safe without any injuries. That he did not search for any murder weapons because he was in a hurry. The bodies of the deceased were taken to Gakwegori mortuary. On cross-examination, he stated that the neighbours said that they had heard commotion in the accused’s house that night. That he saw the accused cutting himself but he did not recover the knife because he was rushing to take the accused to the hospital.
PW7 was Dr. Godfrey Njuki Njiru who conducted postmortem on the bodies of the deceased. He stated that Leah Njoki had 6 stab wounds on the chest and they had all penetrated the chest cavity. The wounds had caused bleeding inside the chest cavity and one stab had hit the right side of the heart, causing bleeding from the heart. She also had a cut wound on her mandible and bruises on her left thigh anteriorly. He concluded that the cause of death was cardiopulmonary arrest due to heart failure from the side stab wound into the right ventricle. The body of Cyprian Njue appeared severely pale and had a cut wound on the right collar bone and a cut on the right clavicle, which had severed the right carotid and jugular blood vessels. The cause of death was cardiopulmonary arrest due to low blood volume resulting from external bleeding from the cut blood vessels.
PW8 was Inspector Wilson Ocharo, Deputy OCS, Ishiara Police Station who stated that the OCS called him about the incident and he proceeded to the scene in the company of PW6 and other officers. He stated that the accused’s neighbours told the police that they had heard commotion in the accused’s house and it seemed like the accused had killed his wife. That he looked inside the house and saw a girl on the sofa and she had pulled the curtain aside calling out for help. That he saw the accused with only his underwear on, cutting himself with a knife and when they asked him to open the door, he took long, saying that he was looking for the keys.
That he asked for a metal bar and used it to break the door, by which time, the accused was unconscious and he was rushed to hospital using the police vehicle. He stated that when the door was opened, he saw a woman lying in a pool of blood next to the door and a child lying on the bed, dead. He recovered the knife with a broken handle that the accused had and he remained at the scene until it was processed by officers from Siakago Police Station. On cross-examination, he stated that he found out from the neighbours that the accused alleged that one of the children he had with Leah Njoki was sired outside. That he did not witness the accused killing the deceased and that it is possible that the knife that the accused used to harm himself was the same one he used to stab the deceased.
PW9 was Dr. Joseph Thuo who testified that he conducted a mental assessment on the accused at Embu Level 5 Hospital. He found that the accused was mentally sick. He recommended that the accused be treated and then reassessed after 2 months but due to his suicidal tendencies, he recommended that he be admitted at a high security psychiatric facility being Mathari National Hospital. The accused was found to be unfit to stand trial at the time of the assessment. He produced the mental assessment report and stated that upon reassessment, the accused was found mentally fit to stand trial.
On cross-examination, he stated that he had treated the accused before and had diagnosed him with a condition known as psychosis (not being in touch with reality). That this condition is characterized by disorganized speech and behavior, abnormal beliefs, hallucinations, confusion, lack of motivation, impaired judgment, suicidal tendencies, among others. According to the accused’s medical records, he had defaulted in taking his medicine and had been admitted twice in psychiatric clinics. He stated that when a patient fails to take his medication, he risks relapsing and getting sick again.
PW10 was Ephantus Mwaniki Njeru who stated that PW1 called to inform him of the incident happening at the plot where he lives. PW1 asked him to call the police, whom he called and they confirmed that they were going to the scene. He stated that he also went to the scene where he found the police had already arrived. That they had to break into the house where they found the bodies of the deceased and the accused was unconscious. On cross-examination, he stated that he arrived at the scene when the incident had already occurred. That the child who had survived was hanging on the window calling for help while the other child and his mother were dead.
PW11 was Michael Ireri who stated that he was the accused’s landlord at the time of the incident. He stated that the accused’s immediate neighbor awoke him to tell him about some commotion at the accused’s house. That he tried to call the accused but he told him that he was on the phone with is father. That he saw blood flowing from underneath the door and he called PW3 to tell him that he suspects trouble is at the accused’s house. PW3 told him that he had managed to inform the police who were enroute. He said that the police arrived and they had to break the door and they entered the house with PW3. That they found one child alive but the other one and his mother were dead while the accused was unconscious. That the family of the deceased demanded to see the child who was alive. He said that the accused had been a good tenant for a while and he did not have any problem with him.
PW12 was PC Jeremiah Lagat, the investigating officer. He stated that he took over investigations from Sgt. Mutisya who was transferred to another station. He stated that the said Sgt Mutisya went to the scene upon instructions by CI Ann Kameme of DCI Mbeere North where she found the deceased persons inside the house lying in pools of blood. He stated that police officers from Ishiara Police station had arrived at the scene earlier and they updated them. Sgt. Mutisya recovered a broken knife as evidence and they suspect that it was the murder weapon.
That the crime scene was processed by scenes of crime personnel who took photographs and the bodies were removed to Gakwegori mortuary. Sgt. Mutisya followed the accused who had been taken to Embu Level 5 Hospital for treatment and charged him with the offence. On cross-examination, he stated that the knife recovered at the scene was not taken to government chemist for analysis. That the neighbours said that they heard commotion in the accused’s house on the night of the incident. That the accused had been diagnosed with a mental illness prior to the incident and that he had been complaining of infidelity on the part of his wife.
Upon close of the prosecution’s case, the court found that a prima facie case had been established and the accused was placed on his defense.
In his defense, the accused stated that on the night of the incident, his wife prepared supper and they ate before they went to sleep. He said that he suffers from a mental illness known as schizophrenia and he produced documents to prove this assertion. On cross-examination, he stated that he had been previously admitted in hospital for treatment of a mental illness but he was discharged because he was fully recovered and he returned to work as a primary school teacher. That on the day of the incident, he did not go to work because it was during school holidays and he was at home with his wife and children. He stated that he was mentally well during the day and that they went to sleep between 9-10pm and beyond that time, he does not recall anything else. He said that he did not harm himself that night but he found himself in hospital the following day with injuries on his chest. It was put to him that he harmed himself and that he called PW5 to tell her what he had done, but he denied knowledge of this.
At the close of the prosecution’s case, the parties chose not to file their written submissions.
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 under sections 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 detailed the injuries sustained by Leah Njoki, deceased, which included stab wounds on the chest. He concluded that the cause of death was cardiopulmonary arrest due to heart failure from the side stab wound into the right ventricle. In the case of Cyprian Njue, deceased, he noted that he had suffered injuries that led to him losing a lot of blood, thus the cause of death was cardiopulmonary arrest due to low blood volume resulting from external bleeding from the cut blood vessels.
The second thing is to prove that the accused is responsible for inflicting the fatal injuries upon the deceased. PW1 and PW11 testified that the accused lived in the same plot as them and that they had heard commotion in the accused’s rented house that night. PW2 stated that she overheard the accused telling PW5 on the phone that he had killed the deceased persons and that he was going to kill himself shortly. PW3 stated that he received a call from PW11 informing him that all was not well in his brother’s, the accused’s house, and that he should call the police. PW3 stated that they called the police and they went to the scene where they found the accused who had locked himself inside the house.
When police officers arrived at the scene they implored on the accused to open the door but he was taking too long and according to PW3, the accused was incoherent, saying things that were unrelated to the circumstances. PW3, PW6, PW8, PW10 and PW11 testified that they saw the accused inside the house with a knife in his hand and that he was cutting himself on the chest. The police present at the scene suspected that the knife held by the accused was the same one that was used to murder the deceased persons.
Even though none of the witnesses saw the accused person actually inflicting the fatal injuries on the deceased persons, there is plenty of circumstantial evidence proving that he committed the offence. The fact that he was seen with a knife and in the same house as the deceased persons who had stab wounds on their bodies, is enough to prove that he committed the unlawful act. From this evidence, there is no doubt in my mind that the accused was present at the scene and that he inflicted the fatal injuries upon the deceased persons.
On the element of malice aforethought, it is provided for under section 206 of the Penal Code. It can be inferred from different points within a case, for instance, the words or behavior of the accused before, during or after the crime and the weapons used, among others. However, in this case, the guilty mind of the accused is subject to the testimony of PW9, who carried out a mental assessment on the accused. He testified that the accused had been treated 3 times before the incident, for mental illness and he had been admitted at Mathari National Hospital.
He testified that he had treated the accused before and prescribed medication but the accused defaulted in taking the medication. That by the time he was assessing the accused after the incident in August 2022, he found him to have a mental illness thus he was unfit to stand trial. He stated that the accused was treated and when he was reassessed after 2 months, he was found fit to stand trial. PW3, the accused’s brother also testified that the accused had been mentally unstable since 2020 and had been treated for mental illness, which evidence was corroborated by the evidence of PW9.
In this context, there is a rebuttable presumption of soundness of mind. Section 11 of the Penal Code provides that:

“Every person is presumed to be of sound mind and to have been of sound mind at any time which comes into question until the contrary is proved.”

This presumption is rebutted by the testimony of PW3 and PW9 as stated herein before. Immediately after the incident, the accused was found to be mentally unsound. Even though he was later found to be mentally fit after treatment, it is my view that he cannot be held criminally liable since at the time of the offence, he had a mental illness. Section 12 of the penal code provides:

“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing or of knowing that he ought not to do the act or make the omission, but a person maybe criminally responsible for an act or omission although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effect above mentioned in reference to that Act or omission.”

The Court of Appeal in the case of Leonard Mwangemi Munyasia v Republic [2015] eKLR held that;

“if it is shown that the appellant suffered from this condition then under Section 9 & 12 of the Penal Code he could not be held criminally responsible for the murder of the deceased. Both Section 12 aforesaid and the M/c Naughten Rules recognise that insanity will only be a defence if it is proved that at the time of the commission of the offence charged, the accused person by reason of unsoundness of mind, was either incapable of knowing the nature of the act he is charged with or was incapable of knowing that it was wrong or contrary to the law. The test is strictly on the time when the offence was committed and no other.”

In his defense, the accused stated that his recollection of events that night ends at the point where he went to sleep. He did not recall anything that happened thereafter and that he only found himself in the hospital with injuries. In my view, the accused, at the time of the incident, had a state of mind that was incapable of understanding what he is doing or of knowing that he ought not to do the act which caused the death of the deceased.
From the evidence before the court, I find that the crime was indeed committed but the accused, at the time of committing the offence, was suffering from a mental illness.
Accordingly, I make a special finding under Section 166 (1) of the Criminal Procedure Code to the effect that the accused is guilty of murder contrary to Section 203 of the Penal Code, but was insane at the time he committed the offence. Therefore, I hereby enter a special finding of guilty but insane.
It is so ordered.

Delivered, dated and signed at Embu this 4^th day of December, 2024.