Reported by Michael Murungi
September, 2007
(This article was published in the Daily Nation newspaper on 24th Sept. 2007 pg. 14 column 1)
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of the persons is deemed to have committed the offence.
David Ciayu Njogu v Republic [2007] eKLR (www.kenyalaw.org)
Court of Appeal at Nairobi ( Appeal Judges S.E.O. Bosire, J.W. Onyango-Otieno & W.S. Deverell)
July 27, 2007
“Mob justice”, a term used to refer to a form of mob violence, usually in the form of an execution through free-for-all public beating conceived of by its perpetrators as extrajudicial punishment for an offence – can have tragic consequences not only for the victim but also for the perpetrators. David Ciayu Njogu was part of a mob that had fatally assaulted Joseph Kiama early in August, 2000 upon his suspicion of having been involved in a burglary. What David did not foresee was that three years later, he would be facing a sentence of death for his actions.
On 1st August 2000 at 4.30a.m, John Mwangi had left his house in Maringo Estate, Nairobi, to draw water from a nearby water point. While he was away, thieves had entered his house and made away with several items, among them a television set and a radio. As he approached his house on his way back, John shouted for help when he saw someone coming out of the house carrying his television set. He did not immediately identify the person but several people answered his alarm and engaged the suspect in a pursuit. The suspect wisely jettisoned the television set and just barely managed to put himself within visible distance of his pursuers. He ran into the house of one Samuel Wanjohi. Samuel’s wife had left the house open when she had also gone to draw water.
Though the pursuers surrounded the house, the suspect evaded capture by making an opening in the roof through which he climbed out of the house and escaped. After the crowd realized that he had escaped, some people said that they had recognized the suspect as Joseph Kiama and immediately, the pursuit took the direction of Joseph’s house. At the time that it arrived at Joseph’s residence, the mob had grown into over fifty people, some of whom were armed. Joseph was taken out of his residence and subjected to a serious beating in which he suffered serious bodily injuries, including a fracture of the right leg. Though he was later rushed to Kenyatta National Hospital and admitted for treatment, he died two days later.
Dr. Kirasi Olumbe, the Government Pathologist, performed a post-mortem examination of Joseph’s the body. It had a laceration on the forehead which had been sutured and there was an accumulation of blood underneath the scalp. There was also a bruise on the left forearm and a simple fracture of the left leg. Dr. Olumbe formed the opinion that Joseph had died as a result of a head injury caused by a blunt object.
In due course, police investigations led to the arrest of David who was arraigned before the High Court on a charge of murder under sections 203 and 204 of the Penal Code. Witnesses testified that they had seen him armed among the mob that had violently assaulted Joseph with either a metal bar or club.
In his defence, David testified on oath and called one witness. Generally, his evidence was that though he had responded to the alarm raised by his neighbour along with other residents of Maringo Estate, he had not participated in the beating of Joseph.
At the conclusion of the trial, Justice R.M. Mutitu noted that because there was no evidence to show that Joseph had stolen from David, and given that David had ignored the pleas of several people to stop the assault on Joseph, it could not be said that David had been provoked to commit the beating. For this reason, the Judge was unable to agree with the opinion of one of the assessors that the charge should be reduced to manslaughter. David was therefore convicted of murder and sentenced to death.
David was aggrieved by the decision of the High Court and he filed an appeal against it in the Court of Appeal. The appeal was heard by Appeal Judges S.E.O. Bosire, J.W. Onyango-Otieno and W.S. Deverell. David’s main ground of appeal, which was argued by his advocate, Mr. Njanja, was that he had not been properly identified as being part of the mob that had assaulted Joseph. The Republic, through Kaigai, State Counsel, opposed the appeal and argued David had been properly identified and that the doctrine of common intention applied to the case.
In its judgment, the Court of Appeal recalled the articulate wording of section 21 of the Penal Code: When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
After analyzing the evidence relied on by the High Court, the Court of Appeal found that indeed, David had been properly identified as one of the people who had assaulted Joseph and he had also been mentioned by Joseph before he died. However, the Court found that the beating of Joseph was a spontaneous act and there was no evidence that the people involved had met and agreed to attack him. In those circumstances, it could not be said that the killing had been done with malice aforethought, which is an essential ingredient in proving the offence of murder. The Court instead convicted David of the lesser offence of manslaughter contrary to section 203 as read with section 205 of the Penal Code.
The Judges of Appeal then considered the sentence that would be appropriate in the circumstances of the case. They took into account the fact that David had been in custody since August 2000, a period of nearly seven years and that as far as the record of the High Court showed, this was his first offence. On the other hand, Joseph, the victim of the offence, had lost his life and left behind a wife and children. The notorious practice of mob justice had to be discouraged. David was sentenced to serve imprisonment for 10 years computed from the date when he was convicted by the High Court.
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