Why Court of Appeal revised chang'aa brewer's death sentence

“September 11, 2011 is a date that the residents of Gitambaya Village in Ruiru, Kiambu County would sooner forget but may not soon forget.”

The above statement was made by Court of Appeal judges Patrick Kiage and Agnes Murgor on September 28, 2018 when they set aside a death sentence imposed on Jennifer Wanjiru Ng’ang’a on July 28, 2016 by Justice Jessie Lessit for selling a killer brew that killed eight people on September 11, 2011. They described the tragic day as “a day of darkness, tears and infamy.”

“This is because some eight villagers, all of whom had visited and imbibed various amounts of chang'aa, an alcoholic brew at a local pub popularly, if ominously, named “Mtongwe Bar” and more ambitiously referred to as “Kings Pub” as well, succumbed to death after complaining of excruciating stomach, chest and whole-body pain,” Justices Kiage and Murgor noted in their ruling.

Some of the victims suffered blurred vision, vomiting and diarrhoea before giving up their ghost. Some other happy revellers were lucky enough to escape death, but barely, and they lived to tell their tale of the agony of the adulterated and toxic brew they had consumed that had claimed the eight.

The judges noted that following police investigations, Wanjiru, who was also popularly known as ‘Mama Flora’ and ‘Mama Mwangi’ as well as ‘Mama Kabiri’ was arrested and charged with eight counts of the offence of murder. 

This was in respect of the deaths of Jane Wambui Kamau alias Wa Kamau; Festus David Nzuki; David Karanja Nduati; Samuel Waweru Wanjiku; James Mwita Wanjiku alias Francis Mwita; Julius Kariuki Mwangi; Joseph Ndichu Kamau and Stephen Nzuki.

Wanjiru denied the charges and there then followed a trial first before Justice Mucheru before whom some 11 testified.

The judge was, however, transferred and Lady Justice Lessit then took over the trial after complying with the requirements of Sections 201(1) and 200 of the Criminal Procedure Code.

She took the testimony of five prosecution witnesses more and, after finding that Wanjiru had a case to answer and her sworn defence as well.

The prosecution case as presented before the judge was that Wanjiru was the owner of the pub which was located in her dwelling house.

On the material day, all the deceased took chang’aa and other alcoholic drinks including one by name “kegs” in that pub. After the deceased and those who survived started exhibiting the symptoms of stomachache, vomiting, chest pain and blurred vision, a group of them proceeded to the Ruiru Criminal Investigations Office where they recorded statements regarding what they had consumed at the pub and the consequences that then attended their drinking.

Post-mortem

Six post-mortem examinations that were conducted on the bodies of the deceased at the Kenyatta University Mortuary and one each at the Thika District Hospital and Bishop Okoye Hospital all indicated that they had no visible injuries.

The pathologists thus formed the opinion, pending toxicology results, that the cause of death was possible poisoning.

Samples of the liver, kidney, blood and stomach contents were taken from the bodies and sent to the Government Analyst and the reports prepared for all the deceased save for Nduati and Waweru showed various levels of methanol (methylalcohol) and in the case of two of them, ethanol as well.

Wanjiru was acquitted on the charges relating to the two.

Testimony was led that the police and the local chief got word from an informer that the appellant was seen transferring liquor from her house two days after the fatal drinking by the deceased and some of the witnesses to an unknown location.

In cross-examination, she stated that she lived in Kiambu but admitted having previously lived in Ruiru and having been arrested there in connection with the charges facing her. She denied running any bar or pub but admitted after an initial denial, that she is known as Mama Flora.

On the basis of the evidence tendered and after considering and rejecting Wanjiru’s defence, Justice Lessit found her guilty of the charges of murder in respect of all the deceased, save Nduati and Waweru and sentenced her to suffer death as provided by law.

Aggrieved, Wanjiru filed an appeal in which she complained that Justice Lessit erred in law and fact by holding that the ingredients of the offence of murder could be inferred from the circumstantial evidence of owning a bar; holding that the offence of murder was proved beyond reasonable doubt; and concluding that Actus reus and mens rea could be inferred from the circumstances of owning a bar.

Challenging appeal

Arguing the appeal, her lawyer Mary Mungai characterised the case as one “in which the appellant was charged and convicted of murder on the basis only of bar ownership.” 

She criticised Justice Lessit for failing to seek for, and be satisfied that both the actus reus and mens rea for the offence of murder had been established, adding she had not been proved to have committed any act leading to the death of the deceased, she should not have been convicted, she submitted.

Mrs Mungai posed the question of what nexus there was between methanol in the bodies, (blood to be exact) of the deceased and their having been at Mtongwe bar.

She also saw as a fatal omission the prosecution’s failure to call the two young men who were serving liquor at the bar on the material day.

This was critical as there can be no vicarious criminal liability, a submission for which the judges enquired whether she had any authority, and she demurred, but still urged the court to quash Wanjiru’s conviction.

The prosecution, on its part, defended the conviction and sentence. He submitted that the circumstantial evidence was sufficient to found a safe conviction and that the pathologist Dr Johnson Oduor in his report and testimony in court established the connection between the post-mortem results and the toxicology.

In their ruling, Justices Kiage and Murgor, noted that from the record, there can be no serious denying that the deceased all did consume chang’aa as testified by prosecution witness 15, Antony Kiarie at King’s Bar also known as Mtongwe Bar on the fateful day.

“There is also little dispute that the owner of those premises was Mama Flora, the appellant herein. In fact, that much is conceded in the submissions made on behalf of the appellant the main thrust whereof was that she was being “improperly convicted of murder by bar ownership.” The evidence as we see it goes beyond mere bar ownership,” they said.

 However, the judges held that for a homicide to constitute the offence of murder under section 203 as read with 204 of the Penal Code, the offender must be shown to have caused the death by an unlawful act or omission and “of malice aforethought.” There is no dispute that the act of selling at her premises liquor that was unlicensed and laced with high, indeed fatal, amounts of methanol was the unlawful act that caused the death.

They further noted that the  Penal  Code does not define  “malice aforethought”,  the indubitable mens rea for the offence of murder. What the Code does in section 206 is list circumstances under which malice is deemed to be established.

The judges quashed Wanjiku’s conviction for murder and substituted it with manslaughter. Though the charge carries a maximum sentence of life imprisonment, given the number of casualties, she was sentenced to 15 years for each of the six counts. The sentences are running concurrently.