1. The Accused Person Dzango Mshenga is charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code.
2. Particulars are that Dzango Mshenga on the night of 26th and 27th February 2014 at Jilani Village in Mwavumbo location Kinango District of Kwale County murdered Agnes Dzina Mwatela.
Prosecution’s Case
3. PW1, Robert Chai Mwatela, the brother of the deceased received a call from his wife on 28.02.2024 at 9.30am and he was informed that his sister Agness Dzina had died. That he proceeded to the Accused Person’s home and found the body of his sister at the scene. The police had arrived at the scene to collect the body. PW1 said there was an injury on the forehead and the neck was severed and there was only the skin holding the head to the body.
4. PW1 saw the Accused give out blood stained panga. PW1 said the Accused had been staying with his deceased sister as husband and wife for about 8 years. He said he was not aware of disagreements between them.
5. PW2, APC David Gele, testified that on 27.02.2014 at 8.30am, he was with Surgent In-charge of AP Post when he told him that a man had cut his wife. That he and APC Hussein Mwinyi proceeded to scene on a motorbike and found a crowd of people gathered. They were informed the person who killed his wife had locked himself inside the house. That when he came out he had a panga which he was told to surrender.
6. That the panga had blood stains on the sharp side. That the suspect put the panga down and raised his hands and surrendered. PW1 managed to arrest the suspect after he had surrendered. That when the door was opened he saw the body lying down with the head towards the door. The deceased had a deep cut on the right side of the head and the neck.
7. That the crowd at the scene wanted to lynch the Accused and they took him to the police post from where he was transferred to Mariakani Police station and subsequently to Taru Police Station. PW1 said the murder weapon - a blood stained panga was handed over to the police in Mariakani. PW2 said he did not know if the Accused was drunk or not.
8. PW3, APC Hussein Mwinyi, was at Kalalani AP Post on 27.02.2014 at 8.30am when the in-charge told him there was a murder incident at Jilani Village. That in the company of APC David Gele – PW2, they proceeded to the scene of the murder using a motor cycle and were directed to scene by the Chief. PW3 said on arrival at scene they found the crowd that was gathered was very bitter and he calmed them down.
9. That they went round the house and saw there was only one door which was locked and they were told the suspect was inside having locked himself. They knocked and the suspect came out holding a panga and his clothes had blood stains. PW3 identified the panga in court – it was later produced as ExP1. That they told the suspect to surrender and he put the panga down and sat down with his hands lifted. That PW1 handcuffed him.
10. That they found the body lying inside house near the door with a cut on the head and neck. That members of the public were very upset and they escorted the accused to the police station where they also handed over the panga. That they reported to their boss what they found at the scene. He said that since they did not have cells at AP Camp they escorted the Accused to Mariakani which was the nearest police station.
11. PW4, 11 years old Uchi Kalume the 1st born daughter of the Accused and the deceased, testified that the Accused killed her mother because of money. She said the mother was selling wheat and the accused demanded for proceeds of sale and when he was given 700/= and the deceased said she did not have any more money, the Accused produced a panga from the rafter in the ceiling and used it to hit the mother.
12. PW4 said she was taking care of their last born child and there was a lamp on the table in the house. PW4 identified the panga in court. She said her mother was cut on the forehead and on the neck and she started bleeding. PW4 said she moved from the bed in the single roomed house to the veranda. She said she moved out of the house when her father cut the mother with a panga. She said her mother died the same day at the doorstep. That in the morning she ran away and went to her uncle Yawa and Mwangadu place. That she found both Yawa and Mwandandu and informed them that her mother had died. She said they accompanied her back home and found the Accused was at home. That later the body was taken to the mortuary while the father was taken to the police station.
13. In cross examination PW4 said the house had only one room and it was not petitioned. She said her siblings were sleeping at the time the mother was cut but she was awake. She said the father used to take alcohol and also smoke bhang but on the material day he was not drunk. She said that she was not hurt and her siblings were also not hurt.
14. PW5, Dr. Fahima Swaleh, examined the body of the deceased at Coast General Hospital mortuary and formed the opinion that death was caused due to respiratory failure plus hemorrhagic shock due to severed neck. She said the head of the deceased was severed with only a small bit of skin attaching it to the body. There was also a deep cut on the forehead which was 8cm in length.
15. PW6, Chief Inspector Henry Wesonga, testified on 29.01.2020 that on 27.02.2014 he was OCS Taru when at 5.30 pm Inspector Odhiambo requested him to take statement of a suspect in cells who wanted to confess. He testified on how he complied with the Judges rules pertaining to recording a confession and told the court what the Accused told him in the course of recording his confession but Ms. Nasimiyu Advocate objected to production of the statement.
16. PW6 was stood down for purposes of trial within trial. When PW6 resumed his testimony on 13th October 2021 he had become Assistant Superintendent of Police and he produced the statement.
17. On cross examination by Ms. Nasimiyu he said the accused did not have a lawyer or a relatives or a friend when his confession was being taken. He said he informed the accused he was entitled to have an advocate, a friend or a family member to witness what was being recorded. That when accused told him he did not have anyone who could come at the time the statement was being recorded, PW6 asked if they could wait for the person to come but he said there was no one.
18. PW7, Henry Kiptooo Sang, the Government Analyst from Nairobi produced DNA Analysis Report dated 30.03.2016. He said that on 5.03.2014 they received blood sample marked A1 for Kalume Dzango Mshenga together with a brownish jacket in Khaki envelop. That they also received blood sample marked B for Agnes Dzani Mwatela the deceased. They also received a panga wrapped in a khaki paper. The exhibits were taken to the Lab by Inspector Paul Njuguna vide Exhibit Memo Form from Taru Police Station. They were required to analyze the items and determine the relationship through blood analysis.
19. His finding was that the Jacket - item A and the panga - item C were moderately stained with blood of human origin. That when he conducted DNA analysis of the blood stained jacket, the panga and the blood received generated DNA profile that matched the DNA profile that was generated from blood sample from the deceased. He produced Exhibit Memo Form as ExP3(a) and Report dated 30.03.2016 as ExP3(b). He said only identical twins have similar DNA profile.
20. PW8, Assistant Superintendent Jashon Odhiambo Polo of Jomvu Sub-County testified on 20.04.2022 and said that on 27.02.2014 he was the in-charge Samburu Police Post as Inspector and at 8.00am he received a phone call from Chief Inspector Henry wa Sungo, OCS Taru, who told him to get 2 police officers to accompany the OCS to Kalalani area at Mwavumbo location. That at 8.30am he accompanied the OCS to the scene. He said they found a mud walled house with grass thatch on one side and iron sheets on one side of the roof. They found the door to the house open and they were led to where the deceased lay next to the door of the house and blocked the entrance.
21. PW8 said there was a deep cut on the neck and there were other cuts on the head of the deceased. PW8 said members of public informed them the husband to the deceased had killed her at around 4.00am. They collected the body from the scene and it was taken to Coast Province General Hospital mortuary. PW8 said that the Chief of the area had reported to the Administration Police from Kalalani AP and they responded and arrested the Accused and recovered a panga.
22. PW8 recorded statements of Eunice Uchi Kalume, PW4 – the daughter of the deceased and the Accused who witnessed the offence being committed after the accused demanded for money from the deceased and after he had been given some money he demanded for more. That when the deceased said she did not have more money, the Accused woke up the deceased at 4.00am and continued demanding for money. That PW4 was woken up by the Accused Person’s demand for more money from the deceased and she saw the Accused remove a panga from the rafters and hit the deceased at the back of her thighs. That when the deceased failed to produce money the Accused cut her on the forehead and she fell down. That the Accused sat on her ribs and slaughtered her on the neck like chicken.
23. That PW4 thought that her father would also slaughter her and she ran to neighbours house for refuge. That neighbours started screaming as they accompanied PW4 back to the house and found the accused had locked himself in the house and refused to open the door. That when he finally opened the door and was asked why he killed the deceased he told the neighbours to ask the deceased. That he did produce the panga he used to commit the murder. That the accused again went back to the house and locked the door. That is when Administration police arrived at scene that he eventually opened and he was arrested and a panga recovered. PW8 said the OCS Taru police station secured scenes and took photographs using his mobile phone.
24. PW3 was recalled on 9.11.2022 to produce the exhibits for the prosecution. He produced a panga that had been identified – ExP1. PW9 – Chief Inspector Klein Kulcelha, the officer In-charge of Crime Scene Investigations Coast Region produced photographs that were taken by OCS Taru at scene. He said that the late Sergent Michael Oduor issued a certificate dated 25th February 2015 after he made photographs prints from exposed photographic films received from OCS Taru.
Defence Case
25. At the close of prosecution’s case, the Accused was placed on his defence and he gave an unsworn statement and said he used to sell diesel to trucks. He said he knew the deceased who was his wife. He said they had been married for 10 years and they had 4 children. He said on the nights of 26th/27th February 2014 he spent the night at work and in the morning of 27.02.2014 he went home and found a group of people and on getting to in the house he found his wife had been killed. That police went to his home and interrogated him. He said he did not know who killed his wife.
Accused Person’s Submissions
26. Mr. Obara Advocate filed written submissions on behalf of the Accused Person dated 21st February 2024 and argued that PW1, PW2, PW3, PW5, PW6, PW7, PW8 and PW9 were all not present at the scene of the alleged offence. That the only witness who claimed to be at the scene was PW4. That PW1 in examination in chief testified that he arrived at the scene after the incident but did not find the Accused.
27. The Accused Person argued that PW2 arrived at the scene after the incident and said that he was told the person who committed the offence had locked himself in the house. That the Accused came out carrying a blood stained panga and that this witness did not know whether the Accused was drunk or not. That the Accused looked shocked and had been threatened by the crowd. That he gave an opinion that the panga in court was the one used to commit the crime but he did not lift fingerprints from the said panga. That PW3’s evidence was similar to a great extent with that of PW2 and that he did not see the Accused commit the offence.
28. The Accused Person submitted that PW5, Dr. Fahim Swaleh, produced the Post Mortem Report on behalf of Dr. Otieno who said that the deceased was killed on 27.2.2014 at an unknown time but the postmortem was conducted on 25.2.2014. That this contradiction is fatal to the prosecution’s case and cannot be corrected at submissions stage and most certainly not at the decision stage. The Accused Person contended that a postmortem report must agree with the evidence on record and that each of the witnesses including Eunice Uchi Kalume, testified to an incident that happened on 27.2.2014.
29. According to the Accused Person, PW6 took an alleged confession from the Accused but the law on recording confessions is well documented in the Evidence Act and from the evidence it is clear that the confession was not recorded according to the law. That it was the duty of the prosecution to prove otherwise but it failed to do so.
30. The Accused Person argued that on 30th June 2023, he tendered unsworn evidence in defence and raised alibi that he went to work on 26th February 2014 and returned on 27th February 2014 where he found a crowd of people at his house and his wife had been killed. He said that he did not know who had killed his wife.
31. The Accused Person submitted that the sum total of the evidence by both the prosecution and the defence raise two issues of when the offence was committed and where the accused was on the day the offence was committed. On the former, the Accused argued that no evidence has been tendered to suggest that he was responsible for the murder that took place on 25.2.2014. That even if the offence was committed on 27.2.2014, he was not at the scene. On the latter, the Accused submitted that it is trite law that the burden of proving falsity of an Accused’s defence lies on the prosecution as provided for by Section 309 of the Criminal Procedure Code. That failure by the prosecution to do so was fatal to their case and the Accused prayed to be acquitted.
Analysis and Determination
32. In consideration of the evidence of 9 prosecution witnesses and in consideration of the defence witnesses’ sworn statements, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
33. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -
‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
34. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
The fact of death
35. There is no dispute as to the death of the deceased Agnes Dzina Mwatela.
Whether death was caused by an unlawful act or omission
36. The deceased was in her house on the material evening and she was of sound health. PW4 said her mother was cut on the forehead and on the neck and she started bleeding. PW5, Dr. Fahima Swaleh examined the body of the deceased and formed the opinion that death was caused due to respiratory failure plus hemorrhagic shock due to severed neck. She said the head of the deceased was severed with only a small bit of skin attaching it to the body. There was also a deep cut on the forehead which was 8cm in length. The injuries sustained by the deceased were inflicted by a panga and they were not self-inflicted or accidental. It is no doubt therefore that the cause of death was through an unlawful act.
Whether the accused committed the unlawful act that caused the death of the deceased
37. PW4 said that the Accused who is her father killed her mother using a panga when he demanded for money and was given Kshs. 700 only and continued demanding for more but the deceased did not have the money. She saw the Accused produce a panga from the rafter of the house and hit her mother on the right arm and she cut her again on the forehead and the neck, she started bleeding and fell. She said that there was a lamp on the table which made her see what was happening. When PW4 went to call her uncles, they accompanied her back to the house and found the Accused had locked himself in the house with the deceased.
38. PW2, APC David Gele and PW3, APC Hussein Mwinyi who visited the scene said that on arrival, they were told that the person who killed his wife had locked himself inside the house. When they ordered him to surrender himself, the Accused came out carrying a blood stained panga which he put down and he sat down raising his hands in surrender. Inside the house where the Accused came from law the dead body of the wife.
39. The Accused person was arrested and his blood stained jacket and the blood stained panga were taken for DNA analysis and by a report dated 30th March 2016, it was established that the jacket and the panga were moderately stained with blood of human origin and the DNA profiles generated form the said blood stained jacket and panga matched the DNA profile generated from the blood sample of Agnes Dzina Mwatela.
40. Further, when the Accused Person was arrested, he did make his confession statement with PW6, the then CIP Henry Wesonga on 27th February 2014 and the same was admitted as evidence.
41. The Accused Person’s claim in his unsworn statement that he returned home in the morning of 27th February 2014 and found his wife had been killed is countered by the overwhelming evidence that he is the one who slaughtered his wife on the material night. He is therefore found to have committed the unlawful act that caused the death of the deceased.
Whether malice aforethought was established by the prosecution
42. Section 206 of the Penal Code defines malice aforethought as follows: -
“Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: -
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
43. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -
“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”
44. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held:
“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”
45. The Accused Person literally slaughtered his wife leaving no chance for her to survive. This offence was committed in the presence of an 8 year old child of tender years who was taking care of a 5 months old child as the inflicted fatal injuries on the deceased. The fact that he had no mercy on the 5 months old breastfeeding child and the fact that he used a panga on vital parts of the deceased’s body is evidence of express malice on his part.
46. In conclusion, this court find that the prosecution has proved its case beyond reasonable doubt. The accused person is found guilty of the offence of murder and convicted accordingly pursuant to Section 322(1) of the Criminal Procedure Code.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 13th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for the State
Mr. Obara Advocate for the Accused
Accused person present in person
Order: Mention on 27.6.2024 for Records, Victim Impact Statement, Pre-Sentence Report, Mitigation and Sentence.
2. Particulars are that Dzango Mshenga on the night of 26th and 27th February 2014 at Jilani Village in Mwavumbo location Kinango District of Kwale County murdered Agnes Dzina Mwatela.
Prosecution’s Case
3. PW1, Robert Chai Mwatela, the brother of the deceased received a call from his wife on 28.02.2024 at 9.30am and he was informed that his sister Agness Dzina had died. That he proceeded to the Accused Person’s home and found the body of his sister at the scene. The police had arrived at the scene to collect the body. PW1 said there was an injury on the forehead and the neck was severed and there was only the skin holding the head to the body.
4. PW1 saw the Accused give out blood stained panga. PW1 said the Accused had been staying with his deceased sister as husband and wife for about 8 years. He said he was not aware of disagreements between them.
5. PW2, APC David Gele, testified that on 27.02.2014 at 8.30am, he was with Surgent In-charge of AP Post when he told him that a man had cut his wife. That he and APC Hussein Mwinyi proceeded to scene on a motorbike and found a crowd of people gathered. They were informed the person who killed his wife had locked himself inside the house. That when he came out he had a panga which he was told to surrender.
6. That the panga had blood stains on the sharp side. That the suspect put the panga down and raised his hands and surrendered. PW1 managed to arrest the suspect after he had surrendered. That when the door was opened he saw the body lying down with the head towards the door. The deceased had a deep cut on the right side of the head and the neck.
7. That the crowd at the scene wanted to lynch the Accused and they took him to the police post from where he was transferred to Mariakani Police station and subsequently to Taru Police Station. PW1 said the murder weapon - a blood stained panga was handed over to the police in Mariakani. PW2 said he did not know if the Accused was drunk or not.
8. PW3, APC Hussein Mwinyi, was at Kalalani AP Post on 27.02.2014 at 8.30am when the in-charge told him there was a murder incident at Jilani Village. That in the company of APC David Gele – PW2, they proceeded to the scene of the murder using a motor cycle and were directed to scene by the Chief. PW3 said on arrival at scene they found the crowd that was gathered was very bitter and he calmed them down.
9. That they went round the house and saw there was only one door which was locked and they were told the suspect was inside having locked himself. They knocked and the suspect came out holding a panga and his clothes had blood stains. PW3 identified the panga in court – it was later produced as ExP1. That they told the suspect to surrender and he put the panga down and sat down with his hands lifted. That PW1 handcuffed him.
10. That they found the body lying inside house near the door with a cut on the head and neck. That members of the public were very upset and they escorted the accused to the police station where they also handed over the panga. That they reported to their boss what they found at the scene. He said that since they did not have cells at AP Camp they escorted the Accused to Mariakani which was the nearest police station.
11. PW4, 11 years old Uchi Kalume the 1st born daughter of the Accused and the deceased, testified that the Accused killed her mother because of money. She said the mother was selling wheat and the accused demanded for proceeds of sale and when he was given 700/= and the deceased said she did not have any more money, the Accused produced a panga from the rafter in the ceiling and used it to hit the mother.
12. PW4 said she was taking care of their last born child and there was a lamp on the table in the house. PW4 identified the panga in court. She said her mother was cut on the forehead and on the neck and she started bleeding. PW4 said she moved from the bed in the single roomed house to the veranda. She said she moved out of the house when her father cut the mother with a panga. She said her mother died the same day at the doorstep. That in the morning she ran away and went to her uncle Yawa and Mwangadu place. That she found both Yawa and Mwandandu and informed them that her mother had died. She said they accompanied her back home and found the Accused was at home. That later the body was taken to the mortuary while the father was taken to the police station.
13. In cross examination PW4 said the house had only one room and it was not petitioned. She said her siblings were sleeping at the time the mother was cut but she was awake. She said the father used to take alcohol and also smoke bhang but on the material day he was not drunk. She said that she was not hurt and her siblings were also not hurt.
14. PW5, Dr. Fahima Swaleh, examined the body of the deceased at Coast General Hospital mortuary and formed the opinion that death was caused due to respiratory failure plus hemorrhagic shock due to severed neck. She said the head of the deceased was severed with only a small bit of skin attaching it to the body. There was also a deep cut on the forehead which was 8cm in length.
15. PW6, Chief Inspector Henry Wesonga, testified on 29.01.2020 that on 27.02.2014 he was OCS Taru when at 5.30 pm Inspector Odhiambo requested him to take statement of a suspect in cells who wanted to confess. He testified on how he complied with the Judges rules pertaining to recording a confession and told the court what the Accused told him in the course of recording his confession but Ms. Nasimiyu Advocate objected to production of the statement.
16. PW6 was stood down for purposes of trial within trial. When PW6 resumed his testimony on 13th October 2021 he had become Assistant Superintendent of Police and he produced the statement.
17. On cross examination by Ms. Nasimiyu he said the accused did not have a lawyer or a relatives or a friend when his confession was being taken. He said he informed the accused he was entitled to have an advocate, a friend or a family member to witness what was being recorded. That when accused told him he did not have anyone who could come at the time the statement was being recorded, PW6 asked if they could wait for the person to come but he said there was no one.
18. PW7, Henry Kiptooo Sang, the Government Analyst from Nairobi produced DNA Analysis Report dated 30.03.2016. He said that on 5.03.2014 they received blood sample marked A1 for Kalume Dzango Mshenga together with a brownish jacket in Khaki envelop. That they also received blood sample marked B for Agnes Dzani Mwatela the deceased. They also received a panga wrapped in a khaki paper. The exhibits were taken to the Lab by Inspector Paul Njuguna vide Exhibit Memo Form from Taru Police Station. They were required to analyze the items and determine the relationship through blood analysis.
19. His finding was that the Jacket - item A and the panga - item C were moderately stained with blood of human origin. That when he conducted DNA analysis of the blood stained jacket, the panga and the blood received generated DNA profile that matched the DNA profile that was generated from blood sample from the deceased. He produced Exhibit Memo Form as ExP3(a) and Report dated 30.03.2016 as ExP3(b). He said only identical twins have similar DNA profile.
20. PW8, Assistant Superintendent Jashon Odhiambo Polo of Jomvu Sub-County testified on 20.04.2022 and said that on 27.02.2014 he was the in-charge Samburu Police Post as Inspector and at 8.00am he received a phone call from Chief Inspector Henry wa Sungo, OCS Taru, who told him to get 2 police officers to accompany the OCS to Kalalani area at Mwavumbo location. That at 8.30am he accompanied the OCS to the scene. He said they found a mud walled house with grass thatch on one side and iron sheets on one side of the roof. They found the door to the house open and they were led to where the deceased lay next to the door of the house and blocked the entrance.
21. PW8 said there was a deep cut on the neck and there were other cuts on the head of the deceased. PW8 said members of public informed them the husband to the deceased had killed her at around 4.00am. They collected the body from the scene and it was taken to Coast Province General Hospital mortuary. PW8 said that the Chief of the area had reported to the Administration Police from Kalalani AP and they responded and arrested the Accused and recovered a panga.
22. PW8 recorded statements of Eunice Uchi Kalume, PW4 – the daughter of the deceased and the Accused who witnessed the offence being committed after the accused demanded for money from the deceased and after he had been given some money he demanded for more. That when the deceased said she did not have more money, the Accused woke up the deceased at 4.00am and continued demanding for money. That PW4 was woken up by the Accused Person’s demand for more money from the deceased and she saw the Accused remove a panga from the rafters and hit the deceased at the back of her thighs. That when the deceased failed to produce money the Accused cut her on the forehead and she fell down. That the Accused sat on her ribs and slaughtered her on the neck like chicken.
23. That PW4 thought that her father would also slaughter her and she ran to neighbours house for refuge. That neighbours started screaming as they accompanied PW4 back to the house and found the accused had locked himself in the house and refused to open the door. That when he finally opened the door and was asked why he killed the deceased he told the neighbours to ask the deceased. That he did produce the panga he used to commit the murder. That the accused again went back to the house and locked the door. That is when Administration police arrived at scene that he eventually opened and he was arrested and a panga recovered. PW8 said the OCS Taru police station secured scenes and took photographs using his mobile phone.
24. PW3 was recalled on 9.11.2022 to produce the exhibits for the prosecution. He produced a panga that had been identified – ExP1. PW9 – Chief Inspector Klein Kulcelha, the officer In-charge of Crime Scene Investigations Coast Region produced photographs that were taken by OCS Taru at scene. He said that the late Sergent Michael Oduor issued a certificate dated 25th February 2015 after he made photographs prints from exposed photographic films received from OCS Taru.
Defence Case
25. At the close of prosecution’s case, the Accused was placed on his defence and he gave an unsworn statement and said he used to sell diesel to trucks. He said he knew the deceased who was his wife. He said they had been married for 10 years and they had 4 children. He said on the nights of 26th/27th February 2014 he spent the night at work and in the morning of 27.02.2014 he went home and found a group of people and on getting to in the house he found his wife had been killed. That police went to his home and interrogated him. He said he did not know who killed his wife.
Accused Person’s Submissions
26. Mr. Obara Advocate filed written submissions on behalf of the Accused Person dated 21st February 2024 and argued that PW1, PW2, PW3, PW5, PW6, PW7, PW8 and PW9 were all not present at the scene of the alleged offence. That the only witness who claimed to be at the scene was PW4. That PW1 in examination in chief testified that he arrived at the scene after the incident but did not find the Accused.
27. The Accused Person argued that PW2 arrived at the scene after the incident and said that he was told the person who committed the offence had locked himself in the house. That the Accused came out carrying a blood stained panga and that this witness did not know whether the Accused was drunk or not. That the Accused looked shocked and had been threatened by the crowd. That he gave an opinion that the panga in court was the one used to commit the crime but he did not lift fingerprints from the said panga. That PW3’s evidence was similar to a great extent with that of PW2 and that he did not see the Accused commit the offence.
28. The Accused Person submitted that PW5, Dr. Fahim Swaleh, produced the Post Mortem Report on behalf of Dr. Otieno who said that the deceased was killed on 27.2.2014 at an unknown time but the postmortem was conducted on 25.2.2014. That this contradiction is fatal to the prosecution’s case and cannot be corrected at submissions stage and most certainly not at the decision stage. The Accused Person contended that a postmortem report must agree with the evidence on record and that each of the witnesses including Eunice Uchi Kalume, testified to an incident that happened on 27.2.2014.
29. According to the Accused Person, PW6 took an alleged confession from the Accused but the law on recording confessions is well documented in the Evidence Act and from the evidence it is clear that the confession was not recorded according to the law. That it was the duty of the prosecution to prove otherwise but it failed to do so.
30. The Accused Person argued that on 30th June 2023, he tendered unsworn evidence in defence and raised alibi that he went to work on 26th February 2014 and returned on 27th February 2014 where he found a crowd of people at his house and his wife had been killed. He said that he did not know who had killed his wife.
31. The Accused Person submitted that the sum total of the evidence by both the prosecution and the defence raise two issues of when the offence was committed and where the accused was on the day the offence was committed. On the former, the Accused argued that no evidence has been tendered to suggest that he was responsible for the murder that took place on 25.2.2014. That even if the offence was committed on 27.2.2014, he was not at the scene. On the latter, the Accused submitted that it is trite law that the burden of proving falsity of an Accused’s defence lies on the prosecution as provided for by Section 309 of the Criminal Procedure Code. That failure by the prosecution to do so was fatal to their case and the Accused prayed to be acquitted.
Analysis and Determination
32. In consideration of the evidence of 9 prosecution witnesses and in consideration of the defence witnesses’ sworn statements, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
33. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -
‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
34. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
The fact of death
35. There is no dispute as to the death of the deceased Agnes Dzina Mwatela.
Whether death was caused by an unlawful act or omission
36. The deceased was in her house on the material evening and she was of sound health. PW4 said her mother was cut on the forehead and on the neck and she started bleeding. PW5, Dr. Fahima Swaleh examined the body of the deceased and formed the opinion that death was caused due to respiratory failure plus hemorrhagic shock due to severed neck. She said the head of the deceased was severed with only a small bit of skin attaching it to the body. There was also a deep cut on the forehead which was 8cm in length. The injuries sustained by the deceased were inflicted by a panga and they were not self-inflicted or accidental. It is no doubt therefore that the cause of death was through an unlawful act.
Whether the accused committed the unlawful act that caused the death of the deceased
37. PW4 said that the Accused who is her father killed her mother using a panga when he demanded for money and was given Kshs. 700 only and continued demanding for more but the deceased did not have the money. She saw the Accused produce a panga from the rafter of the house and hit her mother on the right arm and she cut her again on the forehead and the neck, she started bleeding and fell. She said that there was a lamp on the table which made her see what was happening. When PW4 went to call her uncles, they accompanied her back to the house and found the Accused had locked himself in the house with the deceased.
38. PW2, APC David Gele and PW3, APC Hussein Mwinyi who visited the scene said that on arrival, they were told that the person who killed his wife had locked himself inside the house. When they ordered him to surrender himself, the Accused came out carrying a blood stained panga which he put down and he sat down raising his hands in surrender. Inside the house where the Accused came from law the dead body of the wife.
39. The Accused person was arrested and his blood stained jacket and the blood stained panga were taken for DNA analysis and by a report dated 30th March 2016, it was established that the jacket and the panga were moderately stained with blood of human origin and the DNA profiles generated form the said blood stained jacket and panga matched the DNA profile generated from the blood sample of Agnes Dzina Mwatela.
40. Further, when the Accused Person was arrested, he did make his confession statement with PW6, the then CIP Henry Wesonga on 27th February 2014 and the same was admitted as evidence.
41. The Accused Person’s claim in his unsworn statement that he returned home in the morning of 27th February 2014 and found his wife had been killed is countered by the overwhelming evidence that he is the one who slaughtered his wife on the material night. He is therefore found to have committed the unlawful act that caused the death of the deceased.
Whether malice aforethought was established by the prosecution
42. Section 206 of the Penal Code defines malice aforethought as follows: -
“Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: -
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
43. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -
“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”
44. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held:
“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”
45. The Accused Person literally slaughtered his wife leaving no chance for her to survive. This offence was committed in the presence of an 8 year old child of tender years who was taking care of a 5 months old child as the inflicted fatal injuries on the deceased. The fact that he had no mercy on the 5 months old breastfeeding child and the fact that he used a panga on vital parts of the deceased’s body is evidence of express malice on his part.
46. In conclusion, this court find that the prosecution has proved its case beyond reasonable doubt. The accused person is found guilty of the offence of murder and convicted accordingly pursuant to Section 322(1) of the Criminal Procedure Code.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 13th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for the State
Mr. Obara Advocate for the Accused
Accused person present in person
Order: Mention on 27.6.2024 for Records, Victim Impact Statement, Pre-Sentence Report, Mitigation and Sentence.