Republic VS Jeremiah Mwabiso Republic VS Jeremiah Mwabiso

The accused person herein JEREMIAH MWABISO stands charged with murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap.63).
The particulars of offence are that on 26^th December 2017 at Malatini estate in Voi Sub-County within Taita-Taveta County murdered Miriam Jane Owino.
He has denied the charge and in their effort to prove the charge, the prosecution has called eight (8) witnesses.
PW1 was Elisha Mabiso Madalele a resident of Ndome in Ngulia Location and a farmer. It was his evidence that the accused person is his grandson who lived with parents, though married.
That on 26^th December 2017 at 6a.m he was at home with wife Jacqueline Mwema when he heard noise from outside – in the direction of the accused mother’s house which was not far away.
It was his evidence that when he came out of his house, he saw Jeremiah (the accused) chasing his wife towards the farm. That he also saw Jeremiah stab the deceased (wife) with a knife. He then informed a certain woman to call the Sub-Chief on phone, and the Sub-Chief Chrispus Malake came and arrested the accused person and tied his hands with a rope.
He testified that by that time neighbours had gathered at the scene. He stated that the body of the deceased was in the farm, and that the injuries suffered were knife stab wounds on left shoulder, neck/throat region, and buttocks. He stated that he saw Jeremiah (accused) seating on the ground unarmed.
According to this witness, the police arrived 30 minutes afterwards and took Jeremiah (accused) with them.
He stated that he did not see the accused person on 25^th December 2017 and identified him in court.
In cross-examination, he stated that during his young age the accused had contended temperament, and that he had not seen him fight and was pursuing a course as a mechanic.
He stated that when he saw accused chasing the deceased, the accused was about 500 meters from him. He insisted that he saw Jeremiah stab the deceased. He confirmed that he saw the stab wounds when the police arrived. He then changed his story and said he only witnessed the chasing but not the stabbing. He also stated that he saw the knife after the police came to the scene. He said that Jeremiah appeared drunk.
In re-examination, he stated that Jeremiah lived in his mother’s house, and that they all shared meals in his own home.
PW2 Chrispus Mwalangi Mlawi whose evidence was that he was the Assistant Chief in Ndome Sub Location in December 2017, and on 26^th December 2017 at 6a.m he received a phone call from the grandfather of the accused person Mlango (PW1), who informed him that accused (Jeremiah) had killed his wife a the home of Elijah Mwabiso of Kijiji Shamba Malateni.
He then boarded a motor cycle and after 15 minutes arrived at the scene and met people screaming with smoke emanating from home of the deceased. He was shown the body of the deceased lying 15 meters from that home.
According to him it as at the homestead comprising of house of Chao Mwabiso, Elijah Mwabiso, Mlango Mwabiso and Mwalangaya Mwabiso, and the burning was outside the house of Chao Mwabiso and accused and the deceased.

It was his evidence that he saw the body of Miriam Otieno Atieno which was fully clothed and did not see injuries but blood stains. On being informed that Jeremiah (accused) had ran to the house of the community voluntary security man Jafferson Candy, he instructed him to bring the accused and he was brought and they tied his hands with a rope, and he informed the Chief, DO and OCS Voi Police Station and after 30 minutes the OCS and other police officers arrived at the scene, took photographs of the scene and the injuries of the deceased. The knife was found about 1 foot from the deceased by a sister of the accused who took it to the house of the grandfather.
It was his evidence that he was handed over the blood stained knife before police arrived. He stated that on arrival at the scene the relatives of the deceased he saw were Johnson Matheka an Uncle of the deceased and the accused’s mother.
He stated that Jeremiah (the accused) appeared drunk and was smelling alcohol. He knew the deceased well before as a person who braided women hair at Ndome Shopping Centre. He also had information that accused and deceased had a habit of coming home drunk and creating commotions.
It was his evidence that before police arrived he talked to the accused who informed him that on 25^th December 2018 they went to a club at Voi to take alcohol until morning, and that when he got tired his wife danced with another man and when they disagreed, the wife took a motor cycle home and took the things she had bought and set them on fire, and when he was informed by the village elder about the burning of the items, he took a motor cycle home and took a knife and stabbed his wife.
It was his evidence that when police came, they also interrogated the accused person briefly, and took the accused person, the knife and the mother and aunt of the accused person to the police station. He identified the knife, which was produced as an exhibit. He also identified the accused person in the dock.
In cross-examination, he described the sizes of the houses in the homestead, and said that the mother of the accused being a village elder there must have been much cover up. He also clarified that the year was 2017, and confirmed that accused was drunk.
PW3 was Josephine Chao a businesswoman at Ndome and daughter of Elijah Mwabiso and mother of Jeremiah Mwabiso, Rhoda Avua and Florence Wambua.
On 25^th December 2017 she sent Jeremiah to buy vegetables for the festivities (Christmas), and remained at home with children and the deceased. There were also two of her brothers Patrick and Kennedy and their parents.
At around 1830p.m she saw the accused leave to the matatu stage. When she took a bath and took food to the deceased (Jeremiah’s wife), she found that she was not present though other members of the family were present.
At 5a.m the deceased’s wife came back home alone completely drunk and said she was tired but shortly sked for her phone. (Note the witness was stepped down because she broke down and asked for trial in camera – as she was testifying against her own son).
PW5 was Cpl. Shem Asher a gazetted Scenes of Crime Officer, whose evidence was that in 2017 he worked with DCI Taita Taveta County and on 27^th December 2017 at 6a.m he photographed body of a dead person whom he had been informed died in a fight between the accused person and Maureen Awino (deceased).
He documented the scene and took photos. The body had 7 wounds infront, 11 wounds on the back and 3 wounds in the buttocks. At the scene the murder weapon was revealed. He produced the photographs as exhibits.
In cross-examination, he stated that he gathered from the crowd that deceased and accused disagreed in a bar, and deceased went home, and the accused later came home and wanted the deceased to leave and burnt her personal items, then turned on the deceased and stabbed her severally, but not very deep stabs.
It was his evidence that death was due to a fight, but wound resulted from stabs not from struggle. He saw the dead body lying on her back and covered with a sheet. He insisted that he received information from the accused and his mother that accused burnt the clothes and items of the deceased to chase her away.
In re-examination, he maintained that deceased could not stab herself in the chest, back and buttocks. He testified that he observed no stab wounds on the accused person.
PW5 was Mwidadi Omar a Government Analyst stationed at Government Chemist Department at Mombasa, who testified on a report prepared by a colleague George Oguda Lawrence who was on transfer to Kisumu.
According to this witness the items for examination were a knife blood stained “A” and blood stained cloth “B” sent through a police exhibit memo. According to the report, the two items had human blood with same DNA profile. However, they were not given sample of the blood of the deceased. He produced the signed report as an exhibit.
A witness summons was issued on Josephine Chao to come to court and testify, but she did not turn up in court to testify. She was mother of the accused who had been stood down.
PW6 PC Joel Chepkonga testified that he was one of the investigating officers on this case with Sgt. Joseph Haro who had already retired. That on 26^th December 2017 at 8a.m he received a phone call from DCIO Voi Ms. Linah Kabaila informing them of a killing incident at Ndome.
Together with Sgt. Joseph Haro and Scenes of Crime Officer they proceeded to Ndome and at a homestead found body of a woman of age of about 20 years lying dead outside a house and a man arrested by the public.
On enquiries, the mother of the arrested man (the accused) and Assistant Chief explained that on 25^th December, the accused went to Voi with Miriam (deceased) his wife and that in the morning the deceased came back home and took her clothes and utensils and burnt them outside.
After the burning the accused phoned his mother to ask if the deceased had reached home, then took a motor cycle home and on arrival took a knife and stabbed his wife.
It was his evidence that the Scenes of Crime personnel took photographs of the scene and the body and that a knife was given to the OCS by Assistant Chief. He produced the knife as exhibit 1.
It was his evidence that on interrogating the accused he said that they went for entertainment with his wife who left him alone, and he later heard that she had burnt items and he was annoyed that his property was burnt. He gathered that the accused handed over the weapon (knife) to Florence who later handed it over to the Assistant Chief.
It was his further evidence that they took the body to Moi Hospital Mortuary Voi and he also identified the post mortem report (not seen).
He testified that they took the knife and clothes to Government Analyst for comparison of blood on the knife with deceased’s blood, and the report was positive.
In cross-examination, he clarified that the deceased and accused went for entertainment at Texas Club and the deceased (wife) left at 5a.m. He stated that the accused was tipsy when he saw him first. He agreed that at the scene, a mattress was still burning. He stated that he was given the knife by the OCS. He said he found the accused at the scene drunk and crying.
PW7 Dr. Jeremia Shem produced a post mortem report prepared by Dr. Katana with whom he had worked previously. It was his evidence that it was a post mortem report on Miriam Jane Awino identified by two people. The body had 21 wounds; 3 wounds on left side of chest, 1 deep wound on right side of chest, 7 wounds above right shoulder; 10 deep stab wounds on posterior of chest; both lungs collapsed.
The cause of death was massive haemorrhage and lung collapse due to assault on chest. He produced the signed post mortem report as exhibits.
In cross-examination, he stated that the injuries must have been caused by a sharp object.
PW8 was Florence Mwaviswa a relative of the accused person. It was her evidence that she woke up in the morning of 26^th December 2017 and went for a call of nature when she saw fire at the home of her sister Josephine Chao about 70metres away.
Shortly after, she saw the accused carried on a motor cycle and when she asked him about the cause of the fire, he said his wife was burning things. It was her evidence that she knew that wife for 6 months.
She then went back to her house, and then to her sister Florence Chao’s house only to see the deceased lying down dead. She started screaming and shortly after saw the accused coming with a knife, and he refused and asked for fare to go to his aunt at Wundanyi. She then entered a house and persuaded him to give her the knife which he did. She identified the knife in court.
Both of them then walked uphill to where the deceased was and the Assistant Chief arrived and she handed over the knife to him. The police then arrived, took photographs and took both the accused and body of the deceased in a police vehicle and together with Florence and herself went to the police station and mortuary at Voi, and later recorded statements.
In cross-examination she stated that Jeremiah the accused was a son of her sister. On that day he was drunk. She did not know the owner of the house.
She stated that accused and deceased lived in a separate house in homestead of the mother of the accused and they had lived there for about 6 months. She confirmed that she saw burning items outside the house that morning as well as a TV. She did not know the cause of the dispute between accused and the deceased.
At this point, the Prosecuting Counsel elected not to recall PW3 as she appeared to continually break down during testimony. Thus the State closed their case because even Florence the last witness came to court under warrant of arrest.
When put on his defence, the accused tendered sworn defence statement as DW1. He stated that he was 19 years old in 2019 and a motor cycle operator and mason. That he is married with a two (2) years old child and that the deceased Miriam Jane Awino was his wife and they lived together for 8 months, and she was a salon operator.
It was his evidence that they lived at Ndome on his grandfather’s farm in a house built by his mother when he was studying mechanics. That on 25^th December 2019 he left home to Voi for holiday celebrations with his wife at 8p.m and they entered Texas Club to take alcohol and enjoy.
At around 1a.m, they quarrelled when he asked her why she was talking to someone else, and when he went out he saw her being caressed and kissed by that man.
He stated that they fought and that she tore his clothes and she left and went home alone leaving her behind at 4a.m. He was informed by his mother that his wife had gone home and was burning things.
He then boarded a motor cycle and proceeded home arriving at 6a.m, when he saw his wife throwing things including a TV and DVD outside. He tried to restrain her but he held and beat her, and saying she would kill him. She was also burning things.
That they fought and rolled in the farm and followed each other, with her having the knife. That in his attempt to snatch the knife, he ended up stabbing her, in his drunkenness.
That people saw the knife which had blood stains. That they fought for 20 minutes before the public and village elder arrived and tied him up with ropes. He stated that he was angered when he saw his wife being kissed by another man, and that both of them were drunk.
He was cross-examined at length. In re-examination, he said that he did not take the knife from the deceased, but from the household items that were scattered outside the house. He did not call any additional evidence.
After the closure of the prosecution and the defence evidence, the Director of Public Prosecutions and the defence counsel filed written submissions. The Director of Public Prosecutions emphasized that the death was pre-meditated and the injuries were vicious. The defence counsel emphasized that this was a case of death arising out of drunkenness and provocation.
This is a murder case. The accused person stands charged with murder. Section 203 of the Penal Code (Cap.63) defines the ingredients of the charge of murder. It is the killing of a human person with malice aforethought.
The elements of the offence of murder are the death of the deceased. Secondly, whether the death was unlawful. Thirdly, whether the accused person caused the death. Fourthly, whether the death was caused with malice aforethought.
In determining this case, I have to bear in mind that the burden was on the prosecution to prove all the element of the offence – see Section 107 of the Evidence Act (Cap.80). This being a criminal case, the standard of proof is beyond any reasonable doubt – see Sawe =Versus= Republic (2003) eKLR.
Did the deceased die? According to the evidence both for the prosecution and the defence, the deceased was found lying lifeless outside a homestead at Ndome in the early morning of 26^th December 2019 with visible stab wounds.
The body was taken same day to Moi Referral Hospital Voi and post mortem later conducted by Dr. Katana, and evidence tendered by PW7 Dr. Jeremiah Shem who produced the post mortem examination report. The cause of death was massive haemorrhage and collapsing of the lungs due to assault in the chest. The deceased suffered many stab wounds 21 in number in the front and posterior of the chest caused by a sharp object.
I find that the prosecution proved beyond any reasonable doubt that the deceased died of haemorrhage and collapsing of the lungs due to multiple stab wounds to the front and posterior of the chest, inflicted through a sharp object.
Was the death lawful? The injuries suffered were vicious. There was an attempt to explain that there was burning of household items that triggered the event or stabbing or fight.
From the evidence on record, there was no lawful justification for the attack leading to death. There were other ways of resolving the dispute, if it existed rather than committing homicidal killing.
I find that the death was unlawful.
Was the death caused by the accused person? Nobody saw the accused kill the deceased. However, there is evidence of PW3 mother of the accused who was stood down but never came to testify in court of a disagreement and chasing. The accused himself in his defence stated that he stabbed the deceased, thus causing the death.
In my view, the prosecution proved beyond any reasonable doubt that the accused person caused the death of the deceased using a knife.
Was the death caused with malice aforethought? Malice aforethought is defined under Section 206 of the Penal Code as:-
An intention to cause the death or to do grievous harm to any person, whether that person is the person actually killed or not;
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;
An intention to commit a felony;
An intention by the act or omission to facilitate the fight or escape of any person who has committed or attempted to commit a felony.
In the present case, defence counsel has strongly argued that no malice aforethought was proved and relied on drunkenness Section 13 of the penal Code, and Section 207 of the Penal Code on provocation as defence.
In my view, from the evidence on record, both the defence of being insane under drunkenness and of provocation are not applicable herein, to vitiate criminal responsibility, but may only reduce the charge to manslaughter.
There seems to have been an attempt to cover up which made PW3 not complete her testimony in fear of cross-examination. PW3 was the mother of the accused person. It was also instructive that PW8 Florence Mwaviswa the aunt of the accused had to be brought to court to testify after warrants were issued against her.
Thus, though I find that malice aforethought was not proved due to alcohol taking and burning of household items by the deceased, it has to be noted that the attack was demonstrably a vicious one of several stab wounds with no evidence of a fight back. To conclude, I find that though the death was unlawful, malice aforethought was not proved.
Having found that malice aforethought was not proved, I will find the accused guilty of the lesser offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.
Consequently, and for the above reasons, I find that the accused who has been charged with murder is guilty of the lesser offence of manslaughter, and I convict him of manslaughter contrary to Section 202 of the Penal Code accordingly.

Dated, signed and delivered this ……..day of June 2024 in open court at Voi.

In the presence of:-

Alfred/Trizah – Court Assistants