The Republic VS SAMUEL MATI KYANYA The Republic VS SAMUEL MATI KYANYA

The accused was charged with murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the offence are that on 26^th January 2023 at Majimbo village, Kamiu location within Embu County, the accused person murdered Samuel Mwangi. The accused person pleaded not guilty and a plea of not guilty was duly entered before the matter proceeded to full hearing.
PW1 was Everlyn Wawira, the deceased’s mother who stated that the deceased was 5 years old. That she had lived with the accused as husband and wife for 1½ years but the deceased was not his biological child. That on the material day, she was at home with the accused and her other child Ann Mukami when the accused told the deceased to read some numbers on a chart so that he could take him to school. She stated that as the deceased read the chart, the accused began hitting him with a piece of wood all over his body and she intervened. That the accused told her that she is intervening because he was not the child’s biological father. That the deceased said that he wanted to sleep and he asked for a glass of water which he was unable to drink and then he started trembling.
That they took the child to Embu Level 5 Hospital and he was declared dead on arrival. The matter was reported to the police by the accused and the deceased’s body was left at the hospital mortuary. She stated that they passed by church on their way home and they began funeral arrangements. That the following day, they were picked up by police and on the way to the police station, the accused told her to lie to the police about what had happened. That the postmortem was done and she recorded her statement with the police. She identified the accused person as the one who had beaten the deceased.
On cross-examination, she stated that the accused had beaten the deceased once before and he had beaten her (PW1) twice before. That the accused told her to lie to the police that the deceased had died of pneumonia and she even told her siblings as much. That her aunt is the one who reported the incident to the police. That the police had arrested both her and the accused and at the time, their other child had been taken by some church members.
PW2 was Sarah Karigi, the deceased’s grandmother and the mother to PW1. She testified that her sister Julian Wanjira called to tell her that the deceased had died the previous day. That she went to the home of PW1 and the accused who told her that the deceased had died of pneumonia but she did not believe them. That she had doubts because on 22^nd October 2022, she had seen the deceased with a black eye and serious injuries and when she enquired, the accused and PW1 moved to another place to evade her. She stated that she is the one who buried the body of the deceased and the postmortem was attended by her sisters.
On cross-examination, she stated that when she noticed that the deceased was suffering in the hands of his parents, she offered to live with him but his parents declined. That PW1 told her sister that the child had died of pneumonia. That the child had been to her house the day before he died and he expressed that he feared his parents and that day, he did not want to go back home. She stated that even the other child PW1 has with the accused is not comfortable around her parents. That whenever she took goodies to the children, PW1 and the accused threw them away. That they lived behind a church and he did not know if the deceased was being taken to church for prayers.
PW3 was Cecilia Mwendie Muita who stated that she used to go to the same church as the accused and PW1 and the deceased is her grandchild. She testified that on the day after the incident, her brother called to tell her that the deceased had died. That she went to the home of PW1 and the accused where the news was confirmed by PW2. She stated that neither PW1 nor the accused said anything about how the deceased met his death but they said that they had been asked to bring a P3 form, meaning the cause of death was not ordinary.
That they began making funeral arrangements but the accused insisted that he wanted to go to Mwingi but they reported him at Mugoya Police Station where they reported the suspicion, they had that the accused had killed the deceased. The police asked them to bring evidence of the same and the following day, she attended postmortem at Embu Level 5 Hospital with her sisters. She testified that the body of the deceased had visible injuries on the forehead, ears and back. After the postmortem, she reported the matter to the police again.
On cross-examination, she stated that she learned about the death of the deceased from her brother Tiberio who also sent her photographs of the deceased and said that he did not believe that the child died of pneumonia. That when PW1 was arrested she stayed in custody for 1 month and her other child was left under the care of the church members. That the accused did not end up going to Mwingi like he had planned. That PW1 had never reported any physical abuse to her or her children by the accused.
PW4 was Juliana Njuthe Njue, PW1’s maternal aunt and a grandmother to the deceased. She stated that on the day after the incident, PW1 called and told her that the deceased had died. That she went to their home in Majimbo and the accused and PW1 told her that the child was ailing from pneumonia and he had succumbed to it. That she went to see PW3 and told her the sad news and on 30^th January 2023, they attended the deceased’s postmortem with other family members.
PW5 was Dr. Godfrey Njuki Njiru, who produced a postmortem report prepared by Dr. Wangari Kamau who conducted postmortem on the body of the deceased at Embu Level 5 Hospital mortuary. He noted that the deceased had bruises on the forehead and left side of the head. There was swelling on other parts of the body due to multiple blunt traumas which resulted in bleeding in the muscles. There was hematoma to the brain tissue and bleeding between the brain tissue and the skull. The cause of death was found to be severe head injuries due to blunt force trauma. He also produced a mental assessment report authored by Dr. Sheila Shavulimo who found the accused mentally fit to plead. On cross-examination, he stated that the death was caused by blunt force trauma all over the body and the head. That the injuries could not have been caused by a fall but rather, by blunt force.
PW6 was PC. Jeremiah Ngangi of Itabua Police Station who stated that some relatives of the deceased including PW3, had reported that the deceased had died under unclear circumstances. That they were advised to follow up for a postmortem which they did at Embu Level 5 Hospital. That the accused and PW1 were arrested in connection with the death of the deceased. That he questioned PW1 who told him that the accused was teaching the deceased to count numerals when he started beating him with a piece of timber and the deceased fell down. That after recording the statement, he visited the scene and drew a sketch plan and collected exhibits which are the piece of wood, a grey electric wire and the exercise book belonging to the deceased.
He testified that he arrested the accused and charged him with the offence but released PW1 who said that she had been threatened by the accused. On cross-examination, he stated that PW1 saw the accused beating the deceased but she did not do anything to stop him. That according to his investigations, PW1 is an accomplice to the murder but only the accused was charged. That the statement of PW1 was recorded in his presence and she only disclosed what had happened to the child after she was arrested. He stated that he also interviewed the deceased’s sister and he noticed that she was too young to testify and she had bruises on her body.
PW7 was Fausia Abdalla who was a neighbor to the accused and PW1 at Majimbo. She testified that on 22^nd October 2022, she saw the accused pursuing the deceased and began beating him and the boy ran into her house with the accused in hot pursuit. That she noticed that the deceased had injuries on the head and ears and he also had scratch marks.
That she reported the incident to the police and then took the child to Embu Level 5 Hospital and afterwards, she stayed with the deceased for 2 days. That PW1 collected the child saying that he had spoken to the accused over the issue and the accused had promised not to beat the deceased again. On cross-examination, she stated that she did not have the OB number for the report she made or the treatment records for the deceased. That since that incident, she had not seen the accused beating the deceased again but at the time, the deceased said it was his father who had inflicted the injuries on him.
After 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, the accused person, stated that he left home with their other child Makena and he took her to Daniel’s house to play with his children as he went to fetch water. That he left the deceased, his stepson, with PW1 at home. That when he returned, he found PW1 looking worried and she told him that the deceased was lying down not looking well. That he went to check and found the child lying on a mattress and they started planning to take him to the hospital and he got some money from a nearby shop. That by the time they arrived at Embu Level 5 Hospital, the child was already dead and they reported at Kirimari Police Station.
It was his testimony that the evidence of PW1 was not true because on their way back home, she remarked that she was happy that the child was dead because nobody was helping her to take care of him. That the deceased had once gone to visit PW2 but he was not at home at the time. He also stated PW7 lied because she once accused him and PW1 of stealing her miraa thus their relationship was strained. That the relationship between the deceased and his mother was not good and he did not know how the deceased sustained the fatal injuries.
That PW1 was also arrested but she bribed the police and became a prosecution witness. On cross-examination, he stated that at 8.00 a.m he was in the house with PW1 and the children and he left at around 10.00a.m. He denied that he was sent away from his previous rented house because of assaulting the deceased. The prosecution put it to him that PW2 and PW7 testified that he had beaten the deceased in the same fashion on another occasion prior to his death.
After the close of the defense case, the parties opted 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 contrary to section 203 as read together with 204 of the Penal Code. 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. PW5 testified that the deceased suffered blunt force trauma all over his body and on his head. According to the postmortem report, the cause of death was severe head injuries due to blunt force trauma.
The second thing is to prove that the accused is responsible for inflicting the fatal injuries upon the deceased. PW1 stated that she had left the accused in the house with the deceased and he was teaching him to count numbers before he could take him to school. That she heard the deceased reading the numbers but the accused was beating him with a piece of wood whenever he stuttered. She stated that she tried to intervene but the accused told her that she is only intervening because the deceased was not the accused’s biological son. That later on, PW1 noticed that the deceased seemed unwell and when they took him to hospital, he was already dead.
In his defense, the accused testified that he left his house at around 10AM with his stepdaughter whom he left at Daniel’s house to play as he went to fetch water. That when he went back home, he found the deceased seeming unwell and he took him to hospital in the company of PW1. The incident happened at 8AM the same morning. Nothing in his defense accounts for his time between 8AM and 10AM when he left the house. In fact, the accused said that at 8Am he was in his house with PW1 and the children. This evidence is sufficient to place the accused at the scene at the time of the offence.
Additionally, PW2 testified that it was not the first time that the accused had beaten the deceased seriously. Both PW2 testified that in October 2022, the deceased went to her house and she noticed that he had injuries which he said were inflicted by the accused. PW7 said that in October 2022, the deceased was being chased down by the accused who inflicted injuries upon him. That she took him to the hospital and reported the matter at the police station. She did not have evidence to prove that she intervened. In his defense, the accused said that the testimonies of PW2 and PW7 were not true but he did not controvert them.
The next issue is to establish whether from the evidence, the accused bore malice aforethought. The deceased was 5 years old at the time of the incident. The postmortem report details the injuries he sustained that resulted in his death. In the case of Republic v Stephen Sila Wambua Matheka [2017] eKLR it was held;

“The courts in interpreting the provisions of section 206 have stated as such in various authorities. In the classic case of Republic v Tubere S/O Ochen [1945] 12 EACA 63 the court held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack. In the Ogelo v Republic [2004] 2KLR 14 the appellant in this case chased the deceased and another. He caught up with the deceased and stabbed him with a knife on the chest. The deceased died of the stab wounds. The court held interalia that by dint of section 206 (1) an intention to cause death or grievous harm malice aforethought is deemed to have been established by evidence presented by the prosecution. Malice aforethought can also be inferred from the manner of killing. See the case of Ernest Bwire Abanga Onyango v Republic [1990] Cr. Appeal No. 32 of 1990. The principle here as enunciated under section 206 and the authorities is the fact of establishing by evidence that the accused conceived the criminal mind before converting that in the mind into acts of omission to commit the murder.

Part of the evidence available was a piece of wood that was used to inflict blunt force trauma upon the deceased. It was the head injuries that caused his death. There is no doubt in the court’s mind that the accused intended to cause the death of the deceased.
Therefore, I find that the prosecution has proved the offence against the accused person beyond reasonable doubt. This court finds him guilty of the offence of murder contrary to section 203 of the Penal Code, and hereby convicts him accordingly.
It is so ordered.

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