1. On the 12th November, 2018, the accused person, Mwaka Beja, was arraigned in Court for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on the night of 11th day of October, 2018 and 12th day of October, 2018 at Msangamudzo village, Mangawani location within Kwale County, she murdered Peter Soo Paul. After pre-trial proceedings, the charge was read out to the accused person on 14th December, 2018. She pleaded not guilty to the charge of murder. The prosecution called 8 witnesses in support of its case.
2. PW1 was Rose Mumbua Paul, who was an elder sister of the deceased, Peter Soo Paul. She stated that the accused person was the deceased’s wife. That on 12th October, 2018 at 1.00 p.m., she called the accused person and asked her to go and collect tomatoes to use in making lunch, but the accused person informed her that she was not at Mkomani where she used to live, as she was at Mwananyamala village, which was her maternal home.
3. It was PW1’s evidence that she asked the accused person why she had not informed her that she would go to her home, and she responded by saying that her husband had shocked her as he had gone home with blood all over, and she had then gone to their home at night. PW1 stated that she asked the accused person why she did not inform her yet Peter Soo Paul was her (PW1’s) brother, and also whenever she would go to her maternal home, she would tell her. PW1 stated that the accused person told her to go home (to Peter Soo’s and the accused person’s house) so as to know what had happened to her (PW1’s) brother. That the accused person further informed PW1 that she had not told anyone else about the condition of her (PW1’s) brother.
4. PW1 testified that she went to her brother’s house which was in their parent’s compound, where she saw her brother’s motor cycle parked outside the house. She also saw that the house had been locked with a latch from outside. PW1 opened the door latch and entered the house. She stated that she found her brother’s body on the bed where he lay on his side, but he was not breathing. It was her evidence that she saw an injury on the left side of his head, and that blood had clotted on the wound on his head. She also stated that the accused person had gone away with their child.
5. It was PW1’s evidence that on seeing the condition of her brother, she went outside the house and called the Village Chairman, Francis Musau Katini and informed him of what had happened, and he in turn called Police Officers from Shimba Hills Police Station. The Police collected her brother’s body and took it to Msambweni Hospital Mortuary. PW1 stated that the deceased’s neighbour used to live close by.
6. PW2 was Samuel Ndava Peter, a boda boda rider who knew Peter Soo Paul, as his friend since school. He stated that they used to do boda boda work at Makundi Stage, and the deceased used to tell him that he had a wife and a child, but he had not met them.
7. PW2 testified that on 11th October, 2018, he was at Makundi Stage waiting for passengers when he got a passenger who asked him to take him to his home. He recounted that on the way, he found Peter Soo, Kioko and Ndaka, and that Kioko stopped him and told him to help separate Peter Soo and Ndaka who were fighting. PW2 testified that he witnessed Ndaka hitting Peter Soo on the right side of his neck with a fist, and that the latter picked a short stick and hit Ndaka above his left eye. PW2 stated that he managed to separate the two and Peter Soo boarded his motor cycle and rode away with Kioko, whereas Ndaka ran away and left.
8. It was PW2’s evidence that on 12th October, 2018 at 3.00 p.m., while at Makundi, Peter Soo’s sister called Rose (PW1) called him and asked him to pick her up at Mkomani as she had not seen her brother Peter Soo the whole day. PW2 informed her that they could not go alone and they picked someone they used to call “bro” to accompany them. PW2 testified that on reaching Peter Soo’s house, he saw his motor cycle parked outside. He also saw that Peter Soo’s house was locked from outside. He testified that upon opening the door, they entered the house where they found Peter Soo lying on the bed on his right side. PW2 also saw that Peter Soo had an injury on the left side of his head, and the mattress he was lying on was soaked with blood. PW2 said that he called the Village Chairman of Msangamuzdo Village where Peter Soo was living in, who went to the scene, looked around and called the Police.
9. In cross-examination, PW2 re-affirmed his earlier evidence that the deceased’s house was latched from outside.
10. PW3 was Mumo Mathitu Mwamole, a resident of Maji Moto village in Mangawanyi location. He was a boda boda rider operating from Mkomani stage. He stated that on 12th October, 2018 at 1.00 a.m., he was at his house sleeping. It was his evidence that a Shamba boy by the name Francis Wambua had gone outside to the toilet when a person emerged, and asked him where she could get a motor cycle, and he told her that there was a boda boda rider at their home. PW3 testified that Francis Wambua woke him up and told him about the person who was looking for a boda boda rider, and he pointed out to a woman who was standing by the road side, who was carrying a child on her back, and she had a bag as well.
11. PW3 stated that he knew the woman as Peter Soo’s wife, and he asked her “aren’t you Peter Soo’s wife? Why are you here at night?”. He testified that the accused person told him that she wanted to go home as she had disagreed with Peter Soo and she was looking for a motor cycle. PW3stated that he used to see Peter Soo’s wife with him at times, and he would see her being carried on his motor cycle. PW3 stated that Peter Soo’s wife’s place was at Mwananyamala, which was about 20 kms from where he was. He testified that there was solar light at the door of his house and on the sides of the said house which illuminated up to the road where Peter Soo’s wife was standing.
12. PW3 told her that his motor cycle had broken down and it was at night. He also told her that she was somebody’s wife and it was difficult for him to take her to Mwananyamala at night. He then showed her where to sleep on the verandah of his house. PW3 testified that at 3.00 a.m., she knocked on the window of his house but he told her that his motor cycle was spoilt and he would have to repair it in the morning. He told her to sleep until morning when she would look for transport. PW3 then went back to sleep and woke up at 6.00 a.m. He went out of his house and found Peter Soo’s wife gone. He identified Peter Soo’s wife as the accused person.
13. PW3 testified that when he went to work at 2.00 p.m., a young man by the name Mumo told him that Peter Soo was dead. He stated that he got shocked and did not believe it. He went to Peter Soo’s house and saw him lying on his bed. PW3 stated that he saw 2 injuries on Peter Soo’s head. He also saw blood on the mattress Peter Soo was lying on.
14. It was PW3’s evidence that he recalled the incident of how the accused person had gone to his house looking for motor cycle transport, and he called the Village Chairman of Msangamudzo who went to the scene. PW3 also called the Village Chairman and explained to them of how the accused person had gone to his place at night requiring transport and how he had been woken up at night with a request to take her to her home. PW3 stated that he knew the deceased who used to be a motor cycle rider like him, and that he used to live 2 km away from him.
15. PW4 was Joseph Musyoki Paul, a resident of Msangamudzo village. He was Peter Soo’s elder brother. He stated that on 12th October, 2018, he was at Mama Ngina Drive when he received a call from his sister Rose (PW1) who told him that Peter Soo had been found lying dead on his bed.
16. PW4 stated that he left Mombasa and went to Msangamudzo. He found that Peter Soo’s body had been taken to Msambweni Referral Hospital Mortuary. He stated that the following morning he went to the said mortuary and confirmed that his brother (Peter Soo) was dead. He saw that the deceased’s body had injuries on the left side of his head, which was covered with blood. It was his evidence that on 19th October, 2018, a postmortem examination was done and the Doctor told them that Peter Soo’s skull was broken, and there was bleeding in his brain. PW4 identified the accused person as the deceased’s wife.
17. Dr. Ngali Mbuuko (PW5), conducted a postmortem examination on the deceased’s body and found a crash injury on the deceased’s left ear. He also saw a laceration measuring 8 x 4 cms behind the deceased’s ear which was covered in blood. On opening the skin of the deceased’s head, he saw a blood clot measuring 11 x 6 cms, and upon removing the said blood clot, he saw a pot crack fracture which was depressed at the centre which measured 10 x 6 cms with small fractures running from it. Upon opening the deceased’s skull, the pathologist found that there was bleeding on the left side of the skull and that the brain was bruised. He established the cause of death as severe head injury following blunt trauma on the left side of the head. He stated that he took some blood for DNA analysis.
18. PW6 was Irene Mwaringa, a Government Analyst based at the Government Chemist Mombasa. She testified that on 2nd November, 2018, an Officer by the name Joseph Saikong from Kubo Police Station in Matuga sub-location went to the Government Chemist, Mombasa with an Exhibit Memo Form, and an envelope containing a dry blood gauze marked A and a stick with dry blood marked B. She stated that they were supposed to establish if the blood stain in exhibit marked B matched with the dry blood marked A that was removed from the deceased. It was PW6’s evidence that the exhibit marked B tested positive for human blood, but the dry blood gauze and the blood on the stick did not generate DNA profile. She concluded her evidence by stating that since the two exhibits did not generate any DNA profile, it was not possible to compare the two exhibits. She produced the Government Chemist Report dated 28th February, 2020 as an exhibit. She also produced the Exhibit. Memo Form.
19. On the lack of DNA on the exhibits, PW6 explained that when exhibits are collected from dead bodies which are preserved in a mortuary using chemicals, the said chemicals mask the DNA from the sample collected from the body, and a Government Analyst cannot extract DNA from the sample collected from the body. She expressed the view that in this case, that could have happened to the sample. She explained that the stick exhibit in this case was probably not well preserved and the DNA could have degenerated, hence DNA could not be extracted.
20. PW7 was No. 56261 Sergeant Stephen Nyamai attached to the Scenes of Crime in the County Regional Headquarters, Mombasa. He testified that on 6th November, 2018 at 8.30 a.m., he received a sealed packet serial No. 327/11/2018 which had been signed by CPL Joseph Saingok, which contained an exposed photographic film under cover letter Ref No. C/CRI/6/3/Vol II/4/2018 dated 6th November, 2018. PW7 stated that in the said letter signed by CPL Saingok, he had requested PW7 to print the photographs. PW7’s evidence was that he processed the films and enlarged the prints. He produced the packet, the letter forwarding the packet the photographs, and the certificate he made after processing the photographs as exhibits. He also produced the photographs processed as exhibits.
21. The Investigating Officer in this case was No. 72293 Sergeant Joseph Saingok. He testified as PW8. He stated that on 12th October, 2018 when he was at Kubo Police Station, he, PC Mutuku and PC Mbugua were called by the OCS of the said Police Station, by the name Alex Onyango, who informed them that he had received a report from the Chief of Mangawani location that a person had been murdered in his house at Msangamudzo village.
22. PW8 stated that they proceeded to Msangamudzo to the house of Peter Soo Paul, and on reaching there, they entered his house where they found him lying dead on his bed. PW8 testified that the deceased had a big injury on his head which appeared as if he had been hit with a blunt object. He observed that the scene had not been disturbed as everything in the house was well arranged. He indicated that they did not find the deceased’s wife. It was the evidence of PW8 that the Scenes of Crime Officers went to the scene and took photographs, after which the deceased’s body was taken to Msambweni Referral Hospital. He stated that on 19th October, 2018, he attended the postmortem examination of the deceased conducted by Dr. Mbuuko.
23. PW8 testified that after carrying out investigations, he found out that the deceased was with his wife on the night he was killed and that she left their house that night and went to talk to Mumo Mathitu Mwamole (PW3), who is a motor cycle rider who lives 2 kms from the deceased’s house. PW8 further testified that the deceased’s wife asked PW3 to take her to their home (parents’ home) as she had disagreed with her husband, but PW3 told her to wait until morning but she did not. PW8 stated that the deceased’s wife went to their home at Msangamudzo village which was 50 kms from where she used to live with the deceased. It was the evidence of PW8 that in the course of investigations, they found out that the deceased’s wife had not explained to any of deceased’s relatives that the deceased was dead.
24. PW8 gave evidence that on 15th October, 2018, they went to the place where the deceased’s wife had gone to, at Kikonde village in Dzombo location and they arrested her. They then took her to Kubo Police Station where they booked her in. PW8 stated that the deceased’s wife had not explained to her neighbours in the village where she used to live with her husband about the condition of her husband. It was the evidence of PW8 that on interrogating the accused person, she explained that the deceased had gone home with blood on his face and she became afraid and left for her home (parents’ home).
25. He testified that when members of the public were clearing the grounds at the deceased’s homestead for burial, they found a piece of stick which had a small bloodstain. The Police forwarded the stick to the Government Chemist for analysis of the blood stain. He produced the piece of stick in evidence.
26. On being cross-examined, PW8 stated that PW2 had informed him that on 11thOctober, 2018 he had found the deceased with Kioko and Ndaka at the stage and that they fought, but none of them was injured. PW2 also told him that in the course of fight the deceased hit Ndaka with a stick on the head and then Kioko separated them. PW8 said that he did not interview Ndaka and Kioko as he did not find them. PW8 confirmed that PW2 told him that he had seen Ndaka hit the deceased on the neck with his hand. PW8 refuted the suggestion that Ndaka could have killed the deceased.
27. On further cross-examination, PW8 stated that he did not think that Ndaka went into hiding and that his family members told him that he had gone to Nairobi. He asserted that it was not possible that Ndaka killed the deceased and went into hiding, as there was no revenge that was done by Ndaka against the deceased. He stated that none of the witnesses he interviewed told him that they saw the deceased and the accused person together on that day or on the night of the incident.
28. On being re-examined, PW8 reiterated that PW3 informed him that around 3.00 a.m., on 12th October 2018, the accused person had gone to his house and asked him to take her to her parents’ home as she had disagreed with the deceased.
29. When put on her defence, the accused person gave an unsworn defence. She stated that she was a farmer at Msangamudzo village in Kwale before her arrest. She testified that the deceased was her husband and that on 11th October 2018 at midnight, he went home and knocked at the door of their house. She stated that he was looking disturbed and confused, and he told her that he had been attacked. She also stated that he had injuries on his head where blood was oozing from.
30. She further stated that he told her that he feared that her life and that of their child could be in danger as he had fought with the person who was following him, and that the said person was on the way. She testified that her husband told her to take their two year old child and go home with him. She testified that she asked her husband whom he had fought with and he told her that he would inform her the following day, but he did not tell her the reason for the fight. That he told her to go to her parents’ home at Mwananyamala village. She stated that she had lived with her husband for five (5) years and they had never disagreed or fought.
31. The accused person testified that she walked all the way to her parents’ home as it was at night and she did not get any assistance. She stated that at 10.00 a.m., she received a call from PW2, Rose Paul, who was her sister-in-law who asked her to go to her house but she told her that she was at Mwananyamala, at her parents’ homestead. The accused person stated that she informed PW2 that her husband had gone home after he had been attacked and he had told her that there was danger, and she should leave for her parents’ home at Mwananyamala. She stated that after having the said conversation, PW1 told her that her husband (deceased) was dead.
32. The accused person stated that she got shocked and recalled that her husband had told her to leave their house and go to a safe place, and they should talk the following day. She urged this Court to consider the evidence of PW2 who witnessed the fight between her husband and Ndaka. She contended that the Investigating Officer did not investigate the fight between Ndaka and the deceased, yet she was the accused person in this case.
33. She prayed for the Court to bring Ndaka to this Court as he was the one who knows the cause and reason for the fight. She stated that none of the witnesses stated that she killed the deceased. She concluded her defence by stating that from the evidence of the Investigating Officer, he was not at the scene of the incident and he did not witness the fight.
SUBMISSIONS.
34. In written submissions dated 25th September 2023 filed by Ms Nyawinda, Principal Prosecution Counsel, she summarized the evidence adduced by prosecution witnesses and the defence proffered by the accused person. Ms Nyawinda submitted that there were facts which were admitted by the accused person which infer her guilt, such as being with the deceased prior to his death on the night of 11th and 12th October, 2018, and stating that the deceased went back home with a head injury, but she did nothing about it, or informed anyone of the said injury. That she left the deceased inside the house and locked the door latch from outside and went to her parents’ home. Ms Nyawinda contended that the accused person’s act of leaving the deceased locked inside the house and her walking 20 kms at night with a child shows a guilty motive. Ms Nyawinda submitted that the prosecution established that the deceased informed PW3 that she had quarreled with the deceased and that is the reason why she was going to her parents’ home at night, but she never disclosed to him that the deceased was injured.
35. The Prosecution Counsel pointed out that PW1 confirmed that the deceased’s immediate neighbour was the Village Chairman, but the accused person did not make any report to him of the deceased’s injury. That PW1 (the deceased’s sister) testified that she was staying near the deceased’s home and she had a good relationship with the accused person, but the latter did not inform her that the deceased was injured or that she was leaving for her parents’ home.
36. Ms Nyawinda stated that the death of the deceased was not in dispute as the Postmortem Report showed that the deceased’s cause of death was severe head injury following blunt head trauma to the left side of the head, which proved that the death was unlawful.
37. In submitting that the accused person was the last person to be with the deceased, Ms Nyawinda relied on the case of Stephen Haruna v The Attorney General of the Federation [2010] 1 iLAW/CA/A/86/C/2009, where the Court addressed the doctrine of “last seen”.
38. As to the issue raised by the accused person in her defence of the fight between Ndaka and the deceased, the Prosecution Counsel submitted that PW2 saw the deceased and Ndaka fighting during the day and that PW2 stated that he managed to separate the two and that none of them was hurt. The Prosecution Counsel contended that although the accused person stated that the deceased went home with head injuries, she did not disclose who had injured the deceased, if it was not her.
39. The Prosecution Counsel submitted that the accused person’s evidence was “cooked up” and a mere denial. She stated that what the accused person had told PW3 was the truth, that she had a quarrel with her husband and that is the reason why she was running away to her parents’ home.
40. Ms Nyawinda relied on circumstantial evidence to the effect that the murder weapon, being the wooden stick which was recovered near the deceased’s home, although it did not generate DNA had a blood stain, was proof that the murder took place inside the house.
41. She further submitted that the accused person’s conduct of running away from her husband’s home just before the deceased’s body was recovered the following morning cast aspersions on her innocence. Ms Nyawinda contended that the accused person had failed to give a satisfactory explanation of how her husband met his death and that she had failed to exonerate herself from blame. She urged this Court to draw the inference of guilt from her conduct.
42. In conclusion, she submitted that the prosecution had proved that the accused person murdered the deceased with malice aforethought. She prayed for this Court to find the accused person guilty of murder contrary to Section 203 as read with 204 of the Penal Code.
43. In written submissions filed on behalf of the accused person by Mr. Ngaine Advocate, he stated that although there was no doubt that Peter Soo Paul died, there was no evidence, expert or otherwise, that was called to state how he died, save that it was submitted that he died of a head injury possibly inflicted by a linear blunt object. Mr. Ngaine submitted that PW8, the Investigating Officer, did not testify as to why and/or how he concluded that the death of Peter Soo Paul was unlawful and/or was as a consequence of foul play. Counsel contended that the fact that foul play was not ruled out as the deceased’s cause of death does not in itself mean that the deceased died of foul play and/or unlawfully. He contended that the prosecution failed to demonstrate and/or prove that the deceased’s death was unlawful and urged this Court to acquit the accused person on that ground.
44. As to whether the accused person caused the death of the deceased, Mr. Ngaine stated that none of the witnesses testified that she was the one who inflicted the fatal injury on his head or that they suspected the accused person. Counsel contended that no evidence placed the accused person at the scene of the alleged murder before, during and after the alleged murder.
45. He submitted that the decision by PW8 to recommend that the accused person be charged was not informed by any cogent evidence, but conjecture and/or suspicion.
46. Counsel cited the case of Republic v Frankton Nabwera [1998] eKLR, where the accused person was acquitted of two counts of murder because no one saw him shoot in the direction of the house.
47. Mr. Ngaine urged this Court to note that the accused person was charged on 14th December, 2018 before all investigations were concluded, such that the Government Analyst’s Report was prepared on 28th February, 2020, which was two years after the accused person was charged. He contended that the prosecution jumped the gun because nothing in the said Report linked the accused person to the death and/or the alleged murder of Peter Soo Paul.
48. On the issue of whether the accused person had malice aforethought, Mr. Ngaine contended that the intention to kill cannot stand if an unlawful death has not been proved and/or commission of an act of unlawfully killing has not been proved. He submitted that the prosecution did not adduce any evidence as to the intention and/or motive of the accused person in committing the alleged murder, and as such, malice aforethought had not been established by the prosecution. He relied on the case of Patel v Republic [1969] 1 EA 545, to buttress his submission on the issue of malice aforethought. He contended that the Police and PW8 curiously failed to investigate the fight between the deceased and Ndaka at the stage on 11th October 2018, a fact which was swept under the carpet in order to fix the easy target, being the accused person.
49. Mr. Ngaine contended that Ndaka ought to have been a person of interest in the murder of the deceased, since he had fought with the deceased hours before he was found dead. Counsel expressed the view that the fight gave Ndaka a clear motive to murder the deceased, by avenging, after the latter hit him with a stick on the head or to settle scores on whatever the genesis of the fight was all about. He stated that unfortunately, the Investigating Officer failed to rule out Ndaka’s involvement in the deceased’s death.
50. Counsel stated that the last person to be seen with the deceased when he was alive was Peter Kioko, after the deceased’s fight with Ndaka, but oddly he was never interviewed by the Police or PW8.
51. In submitting that the evidence adduced in this case was circumstantial, Counsel relied on the case of Makau v Republic [2022] KEHC 9798 KLR, cited with approval in the case of Moses Kabue Karuoya v Republic [2016] eKLR, where the Court distinguished between direct and circumstantial evidence. Counsel submitted that the evidence adduced in this case was circumstantial. He contended that none of the circumstantial evidence adduced in Court inferred guilt on the accused person. As such, he prayed for this Court to acquit the accused person. Counsel also relied on the case of Abanga Onyango v Republic CRA No. 32 of 1990 (UR), on what constitutes circumstantial evidence.
52. He submitted that the prosecution had not discharged the burden of proof placed upon it to warrant the accused person being convicted. In so submitting, he relied on the case of Joan Chebichii Sawe v Republic [2003] eKLR, which addressed the circumstances from which an inference of guilt can be drawn in a case based on circumstantial evidence.
53. Mr. Ngaine contended that the entire prosecution case was inadequate and is a long way from proof beyond reasonable doubt. He asserted that the evidence adduced by PW8 had numerous loopholes, and that such evidence and could not sustain a conviction against the accused person. He relied on the case of Philip Muiruri Ndarunga v Republic [2016] eKLR, on what a Court needs to consider when weighing the evidence adduced against an accused person before reaching a decision on whether to convict or acquit. Counsel prayed for the accused person to be acquitted based on the inadequacy of the evidence adduced against her.
ANALYSIS AND DETERMINATION.
54. In a charge of murder, the prosecution must prove three ingredients-
(i) The deceased’s cause of death;
(ii) Proof that the death was due to an unlawful act or omission on the part of the accused person; and
(iii) Proof that the accused person unlawfully caused the death of the deceased with malice aforethought.
55. From the evidence adduced by PW1, Rose Mumbua Paul, the deceased Peter Soo Paul was her younger brother, who was married to the accused person herein. On 12th October, 2018 at 1.00 p.m., PW1 called the accused person and asked her to go and pick from her some tomatoes to use in making lunch, but the accused person informed her that she was not at the place where she used to live, as she had gone to Mwananyamala village which was her maternal home.
56. According to PW1, the accused person was accustomed to informing her whenever she would be going to Mwananyamala. She therefore asked the accused person why she had not informed her that she would be going there. According to PW1, the accused person told her to go to their (Peter Soo Paul’s and accused person’s) home so as to find out what had happened to Peter Soo Paul. That the accused person informed PW1 that her husband had gone home at night with blood all over, and she had not told anyone else about Peter Soo Paul’s condition.
57. PW1 went to Peter Soo’s home which was in PW1’s parent’s compound, and found his motor cycle parked outside the house. She also saw that the door of the said house was locked with a latch from outside. Upon PW1 unlatching the lock and entering the house, she found her brother’s body on the bed as he lay on his side. He was however not breathing. She then saw an injury on the left side of his head and that blood had clotted on the wound. She noted that the accused person had gone away with the child she had with Peter Soo Paul. PW1 called the Village Chairman, Francis Musau Kitini who used to live close by and informed him of what had happened. He in turned called Police Officers who went to the scene and took her brother’s body to Msambweni.
58. PW2, Samuel Ndava Peter, who was the deceased’s friend since their school days was operating as boda boda rider at Makunda stage. He narrated an incident on 11th October, 2018 when he found the deceased fighting with another man by the name of Ndaka. PW2’s evidence was that one Kioko stopped him and asked him to separate the fight. That he saw Ndaka hit the deceased on the right side of his neck with a fist, and the deceased picked a short stick and hit Ndaka above his left eye.
59. PW2 managed to separate the two, and the deceased rode away on his motor cycle with Kioko, whereas Ndaka ran away and left. According to PW2, the following day on 12th October 2018, at around 3.00 p.m., he was called by PW1 who asked him to take her to Mkomani as she had not seen her brother Peter Soo, the whole day.
60. PW2 corroborated PW1’s evidence to the effect that when they reached Peter Soo’s house, they found his motor cycle parked outside. PW2 also confirmed what PW1 had said that Peter Soo’s house had been locked with a latch from outside. He also corroborated PW1’s evidence that Peter Soo was lying on the bed on his right side and he had an injury on the left side of his head. PW2 noted that the mattress Peter Soo was lying on was soaked with blood. He called the Village Chairman who visited the scene and called the Police.
61. As per the evidence of PW3, Mumo Mathitu Mwamole, a boda boda rider at Mkomani stage, on the night of 12th October, 2018 at 1.00 a.m., he was at his house sleeping, when a shamba boy by the name Francis Wambua who had gone out to the toilet that night encountered a person who asked him where she could get motor cycle transport, and he told her that there was a boda boda rider at their home. As such, the said Francis Wambua woke up PW3 and told him about the person who was looking for a boda boda rider, and he pointed to a woman who was standing by the roadside, who was carrying a child on her back, and she had a bag as well.
62. According to PW3, he knew the woman as Peter Soo’s wife as he at times used to see them together. He asked her why she was there at night. In response, she told him that she wanted to go home as she had disagreed with Peter Soo, and she was looking for a motor cycle. PW3 stated that the accused person’s (parents’ ) home was at Mwanayamala which was about 20 kms away from where he used to live.
63. It was PW3’s evidence that he was able to see Peter Soo’s wife from the solar light at the door and on the sides of his house, which illuminated up to the road where she was standing. PW3 told her that his motor cycle had broken down and it was at night. Further, he told her that she was someone’s wife and it was difficult for him to take her to Mwananyamala at night. He showed her where to sleep on the verandah of his house. He stated that at 3.00 a.m., she knocked at the window of his house. He told her that the motor cycle was spoilt and he would have to repair it in the morning. He told her to sleep until morning when she would look for transport. When PW3 woke up at 6.00 a.m., he found her gone. He identified Peter Soo’s wife as the accused person.
64. As per the evidence of PW3, when he went to work at 2.00 p.m., he was informed by a young man by the name Mumo that Peter Soo was dead, and he got shocked. PW3 went to Peter Soo’s house, and he saw him lying on the bed. He also saw two injuries on his head, and blood on the mattress he was lying on. PW3 called the Village Chairman of Msangamudzo Village who went to the scene. PW3 also called the Chief of Mangawani location and he explained to them of how the accused person had gone to his place at night requiring transport and how he had been woken up at night to take her to their home. PW3 stated that he knew the deceased as a motor cycle rider and he used to live 2 kms from him.
65. PW4 Joseph Musyoki Paul, the deceased’s elder brother went to Msambweni Referral Hospital mortuary upon being informed of the death of his brother Peter Soo Paul. PW4 saw injuries on the left side of the deceased’s head which was covered with blood. On 19th October, 2018 he attended a postmortem examination. He identified the deceased’s body to the Doctor, who conducted the postmortem examination. The doctor told them that Peter Soo had a broken skull and there was bleeding in his brain.
66. Dr. Ngali Mbuuko (PW5) upon conducting a postmortem examination on the deceased’s body found a crash injury on the deceased’s left ear. He also saw a laceration measuring 8 x 4 cms behind the deceased’s ear which was covered in blood. On opening the skin of the deceased’s head, he saw a blood clot measuring 11 x 6 cms, and upon removing the said blood clot, he saw a pot crack fracture which was depressed at the centre that measured 10 x 6 cms with small fractures running from it. The pathologist opened the skull and found that there was bleeding on the left side of the skull and that the deceased’s brain was bruised. He established the cause of death as severe head injury following blunt trauma on the left side of the head.
67. I note that the findings made by the pathologist were consistent with the evidence of PW1, PW2 and PW3 who went to the deceased’s house and found him lying dead on his bed, with injuries on the left side of his head. PW4 who identified the deceased’s body before the postmortem examination was done also saw the said injury.
68. From the postmortem findings as per the evidence of PW5, it is evident that the deceased did not die from a natural cause, but died from injuries inflicted on him. It is therefore evident that the death of the deceased was occasioned by someone else, other than himself.
69. As to the identity of the person who caused the death of the deceased, there was no eye witness to the incident. I therefore agree with the Counsel for the Prosecution and the defence that I have to consider the circumstantial evidence on record so as to establish if the accused person is the one who unlawfully inflicted injuries on the deceased leading to his death.
70. In the case of Moses Kabue Karuoya v Republic (supra), cited by the defence Counsel herein, the Court in distinguishing between direct and circumstantial evidence stated as follows –
The evidence used to prove guilt is classified as either direct or circumstantial. Direct evidence, is a statement about a fact constituting a disputed material proposition of a rule of law, while circumstantial evidence is testimony about a fact or facts from which the disputed material proposition may be inferred. Thus, circumstantial evidence can be defined as relying on certain proved or provable circumstances from which a conclusion can be drawn that it was the accused person who committed the offence. It is evidence of circumstances which can be relied upon as not proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly, typically when a witness testifies about something which a witness personally saw, or heard. Both direct and circumstantial evidence are to be considered, but to bring a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is the duty of the Court to find the defendant not guilty. This follows from the requirement that guilt must be established.
71. To elaborate on the principles applicable in a case based on circumstantial evidence, the Court of Appeal in the case of Abanga alias Anyango v Republic (supra) stated thus –
It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests;
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; and
(iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
72. The accused person in her defence denied having committed the offence and stated that on the material night, her husband, (deceased) went to their home at midnight with injuries on his head, from which blood was oozing. She stated that he told her that her life and their child’s could be in danger as he had fought with the person who was following him and that the said person was on the way. She further stated that her husband did not tell her whom he had fought with, but informed her that he would tell her the following day. The accused person claimed to have walked all the way to her parents’ home at night and that she did not get any assistance.
73. She indicated that PW1 called her in the morning at 10.00a.m., and asked her to go to her house to get some tomatoes, but she told PW1 that she was at Mwananyamala, at her parents’ home. She stated that she explained to PW1 that her husband had gone home with blood all over, after he had been attacked and that he had told her there was danger, and he had requested her to leave for her parents’ home.
74. From the foregoing defence, the accused person was exonerating herself from the commission of the offence which she attributed to a third party. Several factors in the circumstantial evidence adduced by the prosecution do not however point to her innocence, as her actions tend to show that she occasioned the death of the deceased. Although the accused person contended that the deceased told her that his attacker was on the way to the house he shared with her, she had the time to pack some stuff in a bag before she left the house. She did not leave the house hurriedly and empty handed so as to escape from the impending danger.
75. When she left their house and went to PW3’s house at 1.00 a.m. at night, she was carrying a bag and her child. That was on night of 11th October, 2018 and 12th October, 2018. According to PW3, he was asleep when he was woken up by a Shamba boy by the name of Francis Wambua who told him that there was someone who was asking where she could get a boda boda rider. PW3’s identification of the person who was looking for a boda boda rider was by way of recognition as he knew the accused person as the deceased’s wife, and he used to see her being carried by the deceased on his motor cycle. He was also able to see her well from solar light that was shining from his doorway and on the sides of his house and illuminating up to the road where she was standing.
76. It was not denied by the accused person that she asked PW3 to take her to Mwananyamala. She did not also rebut or deny PW3’s evidence that she informed him that she had disagreed with the deceased and that was the reason why she was looking for transport to Mwananyamala. PW3 however declined the request to take the accused person to Mwananyamala which was 20 kms away from his house, because it was at night and she was someone’s wife. He told her that his motor cycle had broken down.
77. He told her to sleep at the verandah of his house until morning but at 3.00 a.m., he heard a knock on the window of his house and the accused person requested him to take her to Mwananyamala village, but he told her that his motor cycle was spoilt and he would repair it in the morning. He asked her to sleep until the morning when she would look for transport. PW3 then went back to sleep and he woke up at 6.00 am, he found that the accused and she person had left. When he went to work at 2.00 p.m., on that day, he was informed that Peter Soo was dead. He went to the deceased’s house and saw the injury on his head. PW3 said he got shocked. He informed the Chief and Village Chairman of how the accused person had gone to his house at night looking for transport.
78. From the evidence of PW1, she was friendly to the accused person and she would call her from time to time to go for vegetables from her kiosk. It was in the course of requesting the accused person to go for tomatoes, that she got to know that she was at Mwananyamala village at her parents’ home.
79. According to PW1, whenever the accused person would go to her parents’ home, she would inform her. Whereas the accused person said that PW1 called her at 10.00 a.m, according to PW1 she placed a call to the accused person at 1.00 p.m., on 12th October 2018, and she informed her that the deceased had gone to their home with blood all over and she had then gone to her parents’ home at night. I believe the evidence of PW1 that she called the accused person at 1.00 p.m., and that was the time when the accused person told her about the condition of PW1’s brother. If the accused person had given the said information to PW1 at 10.00 a.m., she could not have waited until after 1.00 p.m., so that she could go to her brother’s (deceased’s) house. In addition, PW1 had called the accused person to ask her to go for tomatoes to use in making lunch.
80. According to PW2, who was a boda boda rider, on 12th October, 2018 at 3.00 p.m., he was called by PW1 who asked him to pick her up as she had not seen her brother Peter Soo the whole day. Upon going to his house, they found it latched from outside. Upon unlatching the lock and entering the house, they found the deceased lying on the bed with an injury on the left side of his head.
81. PW2 narrated that he had on 11th October, 2018 witnessed the deceased fighting with one Ndaka and that one Kioko had asked him (PW2) to separate them. He had seen Ndaka hitting the deceased on the side of the neck with his fist, and in turn, the deceased hit Ndaka on his head with a stick. PW2 separated the two, and the deceased rode away with Kioko, as Ndaka ran away.
82. Mr. Ngaine for the accused person suggested that the person who had a grudge against the deceased was Ndaka. He submitted that PW8 did not look for Ndaka or Kioko to interrogate them and also to establish if Ndaka was the one who injured the deceased. On the said issue, PW8 who was the Investigating Officer testified that when he went to look for Ndaka, his family members informed him that he had gone to Nairobi. PW8 also stated that he did not find Kioko. He however stated that Ndaka could not have occasioned the death of the deceased on 12th October, 2018 as no one saw him with the deceased.
83. In the South African case of Ricky Ganda v The State, [2012] ZAFSHC 59, Free State High Court, Bloemfontein, it was held as follows on the approach to be taken when the evidence adduced is based on circumstantial evidence –
“… the proper approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, talking proper account of inherent strengths and weaknesses, probabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt”.
84. In this case, I do agree with the PW8 that Ndaka did not occasion the death of the deceased. I say so because when the accused person went to PW3’s house at night to look for motorcycle transport so that she could go to her parents’ home which was 20 kms away from PW3’s house, she informed him that she had disagreed with the deceased. If indeed the deceased had gone to the house where he used to live with the accused person with injuries on his head, then the first person the accused person ought to have called was PW1, the deceased’s sister, who used to live close to them, and had a good relationship with the accused person. In addition the deceased person would not have ridden his bicycle to his house, and parked it outside whilst bleeding heavily and with such a severe injury on his head.
85. The accused person could have called the Village Chairman to help the deceased, as he was their immediate neighbour. She could have narrated the story of how the deceased had been attacked and had gone to their home with blood all over. She failed to inform any of the said persons. It is evident and I am satisfied from the evidence adduced before me that the accused person was the last person to be with the deceased before he died on the night of 11th and 12th October, 2018. I do not agree with Mr. Ngaine that Kioko was the last person who was with the deceased before he met his death.
86. It is also evident that in the course of the disagreement the accused person had with the deceased, she hit the deceased on his head with an object which caused the pot crack fracture on his skull. The Postmortem Report established that the deceased’s cause of death was severe head injury following blunt trauma to the left side of his head.
87. If the accused person had not inflicted the said injury on the deceased, I would have expected her to look for help so that her husband’s life could be saved. She did not. Instead, she fled the scene and went to her parents’ home. She left the deceased to die, a fact that was exacerbated by her action of locking their house from outside with the latch after injuring the deceased.
88. When PW1 and PW2 went to the said house, they found the door latched from outside. In the said circumstances the deceased stood no chance of survival as he was left a prisoner in his house. The foregoing facts demonstrate that the defence put forth by the accused person that the deceased was injured by someone else was false. I dismiss it as such.
89. I have no doubt in my mind that based on the circumstantial evidence that was adduced by the prosecution witnesses, the inculpatory facts point to the guilt of the accused person and no one else.
90. From what she informed PW3, she left her house at night after she disagreed with the deceased. As such, she had not pre-meditated to kill him. I therefore find that the ingredients of malice aforethought to prove a case of murder have not been established by the prosecution. I therefore find that the accused person is not guilty of murder. I however find her guilty of the lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. I convict her for the offence of manslaughter.
It is so ordered
DATED, SIGNED and DELIVERED at NAIROBI on this 22nd day of November, 2024. Judgment delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
The accused person
Mr Ngaine for the accused person
Ms Nyawinda, Principal Prosecution Counsel for the DPP
Ms Bebora Mwaka – Court Assistant
Ms B. Wokabi – Court Assistant.
2. PW1 was Rose Mumbua Paul, who was an elder sister of the deceased, Peter Soo Paul. She stated that the accused person was the deceased’s wife. That on 12th October, 2018 at 1.00 p.m., she called the accused person and asked her to go and collect tomatoes to use in making lunch, but the accused person informed her that she was not at Mkomani where she used to live, as she was at Mwananyamala village, which was her maternal home.
3. It was PW1’s evidence that she asked the accused person why she had not informed her that she would go to her home, and she responded by saying that her husband had shocked her as he had gone home with blood all over, and she had then gone to their home at night. PW1 stated that she asked the accused person why she did not inform her yet Peter Soo Paul was her (PW1’s) brother, and also whenever she would go to her maternal home, she would tell her. PW1 stated that the accused person told her to go home (to Peter Soo’s and the accused person’s house) so as to know what had happened to her (PW1’s) brother. That the accused person further informed PW1 that she had not told anyone else about the condition of her (PW1’s) brother.
4. PW1 testified that she went to her brother’s house which was in their parent’s compound, where she saw her brother’s motor cycle parked outside the house. She also saw that the house had been locked with a latch from outside. PW1 opened the door latch and entered the house. She stated that she found her brother’s body on the bed where he lay on his side, but he was not breathing. It was her evidence that she saw an injury on the left side of his head, and that blood had clotted on the wound on his head. She also stated that the accused person had gone away with their child.
5. It was PW1’s evidence that on seeing the condition of her brother, she went outside the house and called the Village Chairman, Francis Musau Katini and informed him of what had happened, and he in turn called Police Officers from Shimba Hills Police Station. The Police collected her brother’s body and took it to Msambweni Hospital Mortuary. PW1 stated that the deceased’s neighbour used to live close by.
6. PW2 was Samuel Ndava Peter, a boda boda rider who knew Peter Soo Paul, as his friend since school. He stated that they used to do boda boda work at Makundi Stage, and the deceased used to tell him that he had a wife and a child, but he had not met them.
7. PW2 testified that on 11th October, 2018, he was at Makundi Stage waiting for passengers when he got a passenger who asked him to take him to his home. He recounted that on the way, he found Peter Soo, Kioko and Ndaka, and that Kioko stopped him and told him to help separate Peter Soo and Ndaka who were fighting. PW2 testified that he witnessed Ndaka hitting Peter Soo on the right side of his neck with a fist, and that the latter picked a short stick and hit Ndaka above his left eye. PW2 stated that he managed to separate the two and Peter Soo boarded his motor cycle and rode away with Kioko, whereas Ndaka ran away and left.
8. It was PW2’s evidence that on 12th October, 2018 at 3.00 p.m., while at Makundi, Peter Soo’s sister called Rose (PW1) called him and asked him to pick her up at Mkomani as she had not seen her brother Peter Soo the whole day. PW2 informed her that they could not go alone and they picked someone they used to call “bro” to accompany them. PW2 testified that on reaching Peter Soo’s house, he saw his motor cycle parked outside. He also saw that Peter Soo’s house was locked from outside. He testified that upon opening the door, they entered the house where they found Peter Soo lying on the bed on his right side. PW2 also saw that Peter Soo had an injury on the left side of his head, and the mattress he was lying on was soaked with blood. PW2 said that he called the Village Chairman of Msangamuzdo Village where Peter Soo was living in, who went to the scene, looked around and called the Police.
9. In cross-examination, PW2 re-affirmed his earlier evidence that the deceased’s house was latched from outside.
10. PW3 was Mumo Mathitu Mwamole, a resident of Maji Moto village in Mangawanyi location. He was a boda boda rider operating from Mkomani stage. He stated that on 12th October, 2018 at 1.00 a.m., he was at his house sleeping. It was his evidence that a Shamba boy by the name Francis Wambua had gone outside to the toilet when a person emerged, and asked him where she could get a motor cycle, and he told her that there was a boda boda rider at their home. PW3 testified that Francis Wambua woke him up and told him about the person who was looking for a boda boda rider, and he pointed out to a woman who was standing by the road side, who was carrying a child on her back, and she had a bag as well.
11. PW3 stated that he knew the woman as Peter Soo’s wife, and he asked her “aren’t you Peter Soo’s wife? Why are you here at night?”. He testified that the accused person told him that she wanted to go home as she had disagreed with Peter Soo and she was looking for a motor cycle. PW3stated that he used to see Peter Soo’s wife with him at times, and he would see her being carried on his motor cycle. PW3 stated that Peter Soo’s wife’s place was at Mwananyamala, which was about 20 kms from where he was. He testified that there was solar light at the door of his house and on the sides of the said house which illuminated up to the road where Peter Soo’s wife was standing.
12. PW3 told her that his motor cycle had broken down and it was at night. He also told her that she was somebody’s wife and it was difficult for him to take her to Mwananyamala at night. He then showed her where to sleep on the verandah of his house. PW3 testified that at 3.00 a.m., she knocked on the window of his house but he told her that his motor cycle was spoilt and he would have to repair it in the morning. He told her to sleep until morning when she would look for transport. PW3 then went back to sleep and woke up at 6.00 a.m. He went out of his house and found Peter Soo’s wife gone. He identified Peter Soo’s wife as the accused person.
13. PW3 testified that when he went to work at 2.00 p.m., a young man by the name Mumo told him that Peter Soo was dead. He stated that he got shocked and did not believe it. He went to Peter Soo’s house and saw him lying on his bed. PW3 stated that he saw 2 injuries on Peter Soo’s head. He also saw blood on the mattress Peter Soo was lying on.
14. It was PW3’s evidence that he recalled the incident of how the accused person had gone to his house looking for motor cycle transport, and he called the Village Chairman of Msangamudzo who went to the scene. PW3 also called the Village Chairman and explained to them of how the accused person had gone to his place at night requiring transport and how he had been woken up at night with a request to take her to her home. PW3 stated that he knew the deceased who used to be a motor cycle rider like him, and that he used to live 2 km away from him.
15. PW4 was Joseph Musyoki Paul, a resident of Msangamudzo village. He was Peter Soo’s elder brother. He stated that on 12th October, 2018, he was at Mama Ngina Drive when he received a call from his sister Rose (PW1) who told him that Peter Soo had been found lying dead on his bed.
16. PW4 stated that he left Mombasa and went to Msangamudzo. He found that Peter Soo’s body had been taken to Msambweni Referral Hospital Mortuary. He stated that the following morning he went to the said mortuary and confirmed that his brother (Peter Soo) was dead. He saw that the deceased’s body had injuries on the left side of his head, which was covered with blood. It was his evidence that on 19th October, 2018, a postmortem examination was done and the Doctor told them that Peter Soo’s skull was broken, and there was bleeding in his brain. PW4 identified the accused person as the deceased’s wife.
17. Dr. Ngali Mbuuko (PW5), conducted a postmortem examination on the deceased’s body and found a crash injury on the deceased’s left ear. He also saw a laceration measuring 8 x 4 cms behind the deceased’s ear which was covered in blood. On opening the skin of the deceased’s head, he saw a blood clot measuring 11 x 6 cms, and upon removing the said blood clot, he saw a pot crack fracture which was depressed at the centre which measured 10 x 6 cms with small fractures running from it. Upon opening the deceased’s skull, the pathologist found that there was bleeding on the left side of the skull and that the brain was bruised. He established the cause of death as severe head injury following blunt trauma on the left side of the head. He stated that he took some blood for DNA analysis.
18. PW6 was Irene Mwaringa, a Government Analyst based at the Government Chemist Mombasa. She testified that on 2nd November, 2018, an Officer by the name Joseph Saikong from Kubo Police Station in Matuga sub-location went to the Government Chemist, Mombasa with an Exhibit Memo Form, and an envelope containing a dry blood gauze marked A and a stick with dry blood marked B. She stated that they were supposed to establish if the blood stain in exhibit marked B matched with the dry blood marked A that was removed from the deceased. It was PW6’s evidence that the exhibit marked B tested positive for human blood, but the dry blood gauze and the blood on the stick did not generate DNA profile. She concluded her evidence by stating that since the two exhibits did not generate any DNA profile, it was not possible to compare the two exhibits. She produced the Government Chemist Report dated 28th February, 2020 as an exhibit. She also produced the Exhibit. Memo Form.
19. On the lack of DNA on the exhibits, PW6 explained that when exhibits are collected from dead bodies which are preserved in a mortuary using chemicals, the said chemicals mask the DNA from the sample collected from the body, and a Government Analyst cannot extract DNA from the sample collected from the body. She expressed the view that in this case, that could have happened to the sample. She explained that the stick exhibit in this case was probably not well preserved and the DNA could have degenerated, hence DNA could not be extracted.
20. PW7 was No. 56261 Sergeant Stephen Nyamai attached to the Scenes of Crime in the County Regional Headquarters, Mombasa. He testified that on 6th November, 2018 at 8.30 a.m., he received a sealed packet serial No. 327/11/2018 which had been signed by CPL Joseph Saingok, which contained an exposed photographic film under cover letter Ref No. C/CRI/6/3/Vol II/4/2018 dated 6th November, 2018. PW7 stated that in the said letter signed by CPL Saingok, he had requested PW7 to print the photographs. PW7’s evidence was that he processed the films and enlarged the prints. He produced the packet, the letter forwarding the packet the photographs, and the certificate he made after processing the photographs as exhibits. He also produced the photographs processed as exhibits.
21. The Investigating Officer in this case was No. 72293 Sergeant Joseph Saingok. He testified as PW8. He stated that on 12th October, 2018 when he was at Kubo Police Station, he, PC Mutuku and PC Mbugua were called by the OCS of the said Police Station, by the name Alex Onyango, who informed them that he had received a report from the Chief of Mangawani location that a person had been murdered in his house at Msangamudzo village.
22. PW8 stated that they proceeded to Msangamudzo to the house of Peter Soo Paul, and on reaching there, they entered his house where they found him lying dead on his bed. PW8 testified that the deceased had a big injury on his head which appeared as if he had been hit with a blunt object. He observed that the scene had not been disturbed as everything in the house was well arranged. He indicated that they did not find the deceased’s wife. It was the evidence of PW8 that the Scenes of Crime Officers went to the scene and took photographs, after which the deceased’s body was taken to Msambweni Referral Hospital. He stated that on 19th October, 2018, he attended the postmortem examination of the deceased conducted by Dr. Mbuuko.
23. PW8 testified that after carrying out investigations, he found out that the deceased was with his wife on the night he was killed and that she left their house that night and went to talk to Mumo Mathitu Mwamole (PW3), who is a motor cycle rider who lives 2 kms from the deceased’s house. PW8 further testified that the deceased’s wife asked PW3 to take her to their home (parents’ home) as she had disagreed with her husband, but PW3 told her to wait until morning but she did not. PW8 stated that the deceased’s wife went to their home at Msangamudzo village which was 50 kms from where she used to live with the deceased. It was the evidence of PW8 that in the course of investigations, they found out that the deceased’s wife had not explained to any of deceased’s relatives that the deceased was dead.
24. PW8 gave evidence that on 15th October, 2018, they went to the place where the deceased’s wife had gone to, at Kikonde village in Dzombo location and they arrested her. They then took her to Kubo Police Station where they booked her in. PW8 stated that the deceased’s wife had not explained to her neighbours in the village where she used to live with her husband about the condition of her husband. It was the evidence of PW8 that on interrogating the accused person, she explained that the deceased had gone home with blood on his face and she became afraid and left for her home (parents’ home).
25. He testified that when members of the public were clearing the grounds at the deceased’s homestead for burial, they found a piece of stick which had a small bloodstain. The Police forwarded the stick to the Government Chemist for analysis of the blood stain. He produced the piece of stick in evidence.
26. On being cross-examined, PW8 stated that PW2 had informed him that on 11thOctober, 2018 he had found the deceased with Kioko and Ndaka at the stage and that they fought, but none of them was injured. PW2 also told him that in the course of fight the deceased hit Ndaka with a stick on the head and then Kioko separated them. PW8 said that he did not interview Ndaka and Kioko as he did not find them. PW8 confirmed that PW2 told him that he had seen Ndaka hit the deceased on the neck with his hand. PW8 refuted the suggestion that Ndaka could have killed the deceased.
27. On further cross-examination, PW8 stated that he did not think that Ndaka went into hiding and that his family members told him that he had gone to Nairobi. He asserted that it was not possible that Ndaka killed the deceased and went into hiding, as there was no revenge that was done by Ndaka against the deceased. He stated that none of the witnesses he interviewed told him that they saw the deceased and the accused person together on that day or on the night of the incident.
28. On being re-examined, PW8 reiterated that PW3 informed him that around 3.00 a.m., on 12th October 2018, the accused person had gone to his house and asked him to take her to her parents’ home as she had disagreed with the deceased.
29. When put on her defence, the accused person gave an unsworn defence. She stated that she was a farmer at Msangamudzo village in Kwale before her arrest. She testified that the deceased was her husband and that on 11th October 2018 at midnight, he went home and knocked at the door of their house. She stated that he was looking disturbed and confused, and he told her that he had been attacked. She also stated that he had injuries on his head where blood was oozing from.
30. She further stated that he told her that he feared that her life and that of their child could be in danger as he had fought with the person who was following him, and that the said person was on the way. She testified that her husband told her to take their two year old child and go home with him. She testified that she asked her husband whom he had fought with and he told her that he would inform her the following day, but he did not tell her the reason for the fight. That he told her to go to her parents’ home at Mwananyamala village. She stated that she had lived with her husband for five (5) years and they had never disagreed or fought.
31. The accused person testified that she walked all the way to her parents’ home as it was at night and she did not get any assistance. She stated that at 10.00 a.m., she received a call from PW2, Rose Paul, who was her sister-in-law who asked her to go to her house but she told her that she was at Mwananyamala, at her parents’ homestead. The accused person stated that she informed PW2 that her husband had gone home after he had been attacked and he had told her that there was danger, and she should leave for her parents’ home at Mwananyamala. She stated that after having the said conversation, PW1 told her that her husband (deceased) was dead.
32. The accused person stated that she got shocked and recalled that her husband had told her to leave their house and go to a safe place, and they should talk the following day. She urged this Court to consider the evidence of PW2 who witnessed the fight between her husband and Ndaka. She contended that the Investigating Officer did not investigate the fight between Ndaka and the deceased, yet she was the accused person in this case.
33. She prayed for the Court to bring Ndaka to this Court as he was the one who knows the cause and reason for the fight. She stated that none of the witnesses stated that she killed the deceased. She concluded her defence by stating that from the evidence of the Investigating Officer, he was not at the scene of the incident and he did not witness the fight.
SUBMISSIONS.
34. In written submissions dated 25th September 2023 filed by Ms Nyawinda, Principal Prosecution Counsel, she summarized the evidence adduced by prosecution witnesses and the defence proffered by the accused person. Ms Nyawinda submitted that there were facts which were admitted by the accused person which infer her guilt, such as being with the deceased prior to his death on the night of 11th and 12th October, 2018, and stating that the deceased went back home with a head injury, but she did nothing about it, or informed anyone of the said injury. That she left the deceased inside the house and locked the door latch from outside and went to her parents’ home. Ms Nyawinda contended that the accused person’s act of leaving the deceased locked inside the house and her walking 20 kms at night with a child shows a guilty motive. Ms Nyawinda submitted that the prosecution established that the deceased informed PW3 that she had quarreled with the deceased and that is the reason why she was going to her parents’ home at night, but she never disclosed to him that the deceased was injured.
35. The Prosecution Counsel pointed out that PW1 confirmed that the deceased’s immediate neighbour was the Village Chairman, but the accused person did not make any report to him of the deceased’s injury. That PW1 (the deceased’s sister) testified that she was staying near the deceased’s home and she had a good relationship with the accused person, but the latter did not inform her that the deceased was injured or that she was leaving for her parents’ home.
36. Ms Nyawinda stated that the death of the deceased was not in dispute as the Postmortem Report showed that the deceased’s cause of death was severe head injury following blunt head trauma to the left side of the head, which proved that the death was unlawful.
37. In submitting that the accused person was the last person to be with the deceased, Ms Nyawinda relied on the case of Stephen Haruna v The Attorney General of the Federation [2010] 1 iLAW/CA/A/86/C/2009, where the Court addressed the doctrine of “last seen”.
38. As to the issue raised by the accused person in her defence of the fight between Ndaka and the deceased, the Prosecution Counsel submitted that PW2 saw the deceased and Ndaka fighting during the day and that PW2 stated that he managed to separate the two and that none of them was hurt. The Prosecution Counsel contended that although the accused person stated that the deceased went home with head injuries, she did not disclose who had injured the deceased, if it was not her.
39. The Prosecution Counsel submitted that the accused person’s evidence was “cooked up” and a mere denial. She stated that what the accused person had told PW3 was the truth, that she had a quarrel with her husband and that is the reason why she was running away to her parents’ home.
40. Ms Nyawinda relied on circumstantial evidence to the effect that the murder weapon, being the wooden stick which was recovered near the deceased’s home, although it did not generate DNA had a blood stain, was proof that the murder took place inside the house.
41. She further submitted that the accused person’s conduct of running away from her husband’s home just before the deceased’s body was recovered the following morning cast aspersions on her innocence. Ms Nyawinda contended that the accused person had failed to give a satisfactory explanation of how her husband met his death and that she had failed to exonerate herself from blame. She urged this Court to draw the inference of guilt from her conduct.
42. In conclusion, she submitted that the prosecution had proved that the accused person murdered the deceased with malice aforethought. She prayed for this Court to find the accused person guilty of murder contrary to Section 203 as read with 204 of the Penal Code.
43. In written submissions filed on behalf of the accused person by Mr. Ngaine Advocate, he stated that although there was no doubt that Peter Soo Paul died, there was no evidence, expert or otherwise, that was called to state how he died, save that it was submitted that he died of a head injury possibly inflicted by a linear blunt object. Mr. Ngaine submitted that PW8, the Investigating Officer, did not testify as to why and/or how he concluded that the death of Peter Soo Paul was unlawful and/or was as a consequence of foul play. Counsel contended that the fact that foul play was not ruled out as the deceased’s cause of death does not in itself mean that the deceased died of foul play and/or unlawfully. He contended that the prosecution failed to demonstrate and/or prove that the deceased’s death was unlawful and urged this Court to acquit the accused person on that ground.
44. As to whether the accused person caused the death of the deceased, Mr. Ngaine stated that none of the witnesses testified that she was the one who inflicted the fatal injury on his head or that they suspected the accused person. Counsel contended that no evidence placed the accused person at the scene of the alleged murder before, during and after the alleged murder.
45. He submitted that the decision by PW8 to recommend that the accused person be charged was not informed by any cogent evidence, but conjecture and/or suspicion.
46. Counsel cited the case of Republic v Frankton Nabwera [1998] eKLR, where the accused person was acquitted of two counts of murder because no one saw him shoot in the direction of the house.
47. Mr. Ngaine urged this Court to note that the accused person was charged on 14th December, 2018 before all investigations were concluded, such that the Government Analyst’s Report was prepared on 28th February, 2020, which was two years after the accused person was charged. He contended that the prosecution jumped the gun because nothing in the said Report linked the accused person to the death and/or the alleged murder of Peter Soo Paul.
48. On the issue of whether the accused person had malice aforethought, Mr. Ngaine contended that the intention to kill cannot stand if an unlawful death has not been proved and/or commission of an act of unlawfully killing has not been proved. He submitted that the prosecution did not adduce any evidence as to the intention and/or motive of the accused person in committing the alleged murder, and as such, malice aforethought had not been established by the prosecution. He relied on the case of Patel v Republic [1969] 1 EA 545, to buttress his submission on the issue of malice aforethought. He contended that the Police and PW8 curiously failed to investigate the fight between the deceased and Ndaka at the stage on 11th October 2018, a fact which was swept under the carpet in order to fix the easy target, being the accused person.
49. Mr. Ngaine contended that Ndaka ought to have been a person of interest in the murder of the deceased, since he had fought with the deceased hours before he was found dead. Counsel expressed the view that the fight gave Ndaka a clear motive to murder the deceased, by avenging, after the latter hit him with a stick on the head or to settle scores on whatever the genesis of the fight was all about. He stated that unfortunately, the Investigating Officer failed to rule out Ndaka’s involvement in the deceased’s death.
50. Counsel stated that the last person to be seen with the deceased when he was alive was Peter Kioko, after the deceased’s fight with Ndaka, but oddly he was never interviewed by the Police or PW8.
51. In submitting that the evidence adduced in this case was circumstantial, Counsel relied on the case of Makau v Republic [2022] KEHC 9798 KLR, cited with approval in the case of Moses Kabue Karuoya v Republic [2016] eKLR, where the Court distinguished between direct and circumstantial evidence. Counsel submitted that the evidence adduced in this case was circumstantial. He contended that none of the circumstantial evidence adduced in Court inferred guilt on the accused person. As such, he prayed for this Court to acquit the accused person. Counsel also relied on the case of Abanga Onyango v Republic CRA No. 32 of 1990 (UR), on what constitutes circumstantial evidence.
52. He submitted that the prosecution had not discharged the burden of proof placed upon it to warrant the accused person being convicted. In so submitting, he relied on the case of Joan Chebichii Sawe v Republic [2003] eKLR, which addressed the circumstances from which an inference of guilt can be drawn in a case based on circumstantial evidence.
53. Mr. Ngaine contended that the entire prosecution case was inadequate and is a long way from proof beyond reasonable doubt. He asserted that the evidence adduced by PW8 had numerous loopholes, and that such evidence and could not sustain a conviction against the accused person. He relied on the case of Philip Muiruri Ndarunga v Republic [2016] eKLR, on what a Court needs to consider when weighing the evidence adduced against an accused person before reaching a decision on whether to convict or acquit. Counsel prayed for the accused person to be acquitted based on the inadequacy of the evidence adduced against her.
ANALYSIS AND DETERMINATION.
54. In a charge of murder, the prosecution must prove three ingredients-
(i) The deceased’s cause of death;
(ii) Proof that the death was due to an unlawful act or omission on the part of the accused person; and
(iii) Proof that the accused person unlawfully caused the death of the deceased with malice aforethought.
55. From the evidence adduced by PW1, Rose Mumbua Paul, the deceased Peter Soo Paul was her younger brother, who was married to the accused person herein. On 12th October, 2018 at 1.00 p.m., PW1 called the accused person and asked her to go and pick from her some tomatoes to use in making lunch, but the accused person informed her that she was not at the place where she used to live, as she had gone to Mwananyamala village which was her maternal home.
56. According to PW1, the accused person was accustomed to informing her whenever she would be going to Mwananyamala. She therefore asked the accused person why she had not informed her that she would be going there. According to PW1, the accused person told her to go to their (Peter Soo Paul’s and accused person’s) home so as to find out what had happened to Peter Soo Paul. That the accused person informed PW1 that her husband had gone home at night with blood all over, and she had not told anyone else about Peter Soo Paul’s condition.
57. PW1 went to Peter Soo’s home which was in PW1’s parent’s compound, and found his motor cycle parked outside the house. She also saw that the door of the said house was locked with a latch from outside. Upon PW1 unlatching the lock and entering the house, she found her brother’s body on the bed as he lay on his side. He was however not breathing. She then saw an injury on the left side of his head and that blood had clotted on the wound. She noted that the accused person had gone away with the child she had with Peter Soo Paul. PW1 called the Village Chairman, Francis Musau Kitini who used to live close by and informed him of what had happened. He in turned called Police Officers who went to the scene and took her brother’s body to Msambweni.
58. PW2, Samuel Ndava Peter, who was the deceased’s friend since their school days was operating as boda boda rider at Makunda stage. He narrated an incident on 11th October, 2018 when he found the deceased fighting with another man by the name of Ndaka. PW2’s evidence was that one Kioko stopped him and asked him to separate the fight. That he saw Ndaka hit the deceased on the right side of his neck with a fist, and the deceased picked a short stick and hit Ndaka above his left eye.
59. PW2 managed to separate the two, and the deceased rode away on his motor cycle with Kioko, whereas Ndaka ran away and left. According to PW2, the following day on 12th October 2018, at around 3.00 p.m., he was called by PW1 who asked him to take her to Mkomani as she had not seen her brother Peter Soo, the whole day.
60. PW2 corroborated PW1’s evidence to the effect that when they reached Peter Soo’s house, they found his motor cycle parked outside. PW2 also confirmed what PW1 had said that Peter Soo’s house had been locked with a latch from outside. He also corroborated PW1’s evidence that Peter Soo was lying on the bed on his right side and he had an injury on the left side of his head. PW2 noted that the mattress Peter Soo was lying on was soaked with blood. He called the Village Chairman who visited the scene and called the Police.
61. As per the evidence of PW3, Mumo Mathitu Mwamole, a boda boda rider at Mkomani stage, on the night of 12th October, 2018 at 1.00 a.m., he was at his house sleeping, when a shamba boy by the name Francis Wambua who had gone out to the toilet that night encountered a person who asked him where she could get motor cycle transport, and he told her that there was a boda boda rider at their home. As such, the said Francis Wambua woke up PW3 and told him about the person who was looking for a boda boda rider, and he pointed to a woman who was standing by the roadside, who was carrying a child on her back, and she had a bag as well.
62. According to PW3, he knew the woman as Peter Soo’s wife as he at times used to see them together. He asked her why she was there at night. In response, she told him that she wanted to go home as she had disagreed with Peter Soo, and she was looking for a motor cycle. PW3 stated that the accused person’s (parents’ ) home was at Mwanayamala which was about 20 kms away from where he used to live.
63. It was PW3’s evidence that he was able to see Peter Soo’s wife from the solar light at the door and on the sides of his house, which illuminated up to the road where she was standing. PW3 told her that his motor cycle had broken down and it was at night. Further, he told her that she was someone’s wife and it was difficult for him to take her to Mwananyamala at night. He showed her where to sleep on the verandah of his house. He stated that at 3.00 a.m., she knocked at the window of his house. He told her that the motor cycle was spoilt and he would have to repair it in the morning. He told her to sleep until morning when she would look for transport. When PW3 woke up at 6.00 a.m., he found her gone. He identified Peter Soo’s wife as the accused person.
64. As per the evidence of PW3, when he went to work at 2.00 p.m., he was informed by a young man by the name Mumo that Peter Soo was dead, and he got shocked. PW3 went to Peter Soo’s house, and he saw him lying on the bed. He also saw two injuries on his head, and blood on the mattress he was lying on. PW3 called the Village Chairman of Msangamudzo Village who went to the scene. PW3 also called the Chief of Mangawani location and he explained to them of how the accused person had gone to his place at night requiring transport and how he had been woken up at night to take her to their home. PW3 stated that he knew the deceased as a motor cycle rider and he used to live 2 kms from him.
65. PW4 Joseph Musyoki Paul, the deceased’s elder brother went to Msambweni Referral Hospital mortuary upon being informed of the death of his brother Peter Soo Paul. PW4 saw injuries on the left side of the deceased’s head which was covered with blood. On 19th October, 2018 he attended a postmortem examination. He identified the deceased’s body to the Doctor, who conducted the postmortem examination. The doctor told them that Peter Soo had a broken skull and there was bleeding in his brain.
66. Dr. Ngali Mbuuko (PW5) upon conducting a postmortem examination on the deceased’s body found a crash injury on the deceased’s left ear. He also saw a laceration measuring 8 x 4 cms behind the deceased’s ear which was covered in blood. On opening the skin of the deceased’s head, he saw a blood clot measuring 11 x 6 cms, and upon removing the said blood clot, he saw a pot crack fracture which was depressed at the centre that measured 10 x 6 cms with small fractures running from it. The pathologist opened the skull and found that there was bleeding on the left side of the skull and that the deceased’s brain was bruised. He established the cause of death as severe head injury following blunt trauma on the left side of the head.
67. I note that the findings made by the pathologist were consistent with the evidence of PW1, PW2 and PW3 who went to the deceased’s house and found him lying dead on his bed, with injuries on the left side of his head. PW4 who identified the deceased’s body before the postmortem examination was done also saw the said injury.
68. From the postmortem findings as per the evidence of PW5, it is evident that the deceased did not die from a natural cause, but died from injuries inflicted on him. It is therefore evident that the death of the deceased was occasioned by someone else, other than himself.
69. As to the identity of the person who caused the death of the deceased, there was no eye witness to the incident. I therefore agree with the Counsel for the Prosecution and the defence that I have to consider the circumstantial evidence on record so as to establish if the accused person is the one who unlawfully inflicted injuries on the deceased leading to his death.
70. In the case of Moses Kabue Karuoya v Republic (supra), cited by the defence Counsel herein, the Court in distinguishing between direct and circumstantial evidence stated as follows –
The evidence used to prove guilt is classified as either direct or circumstantial. Direct evidence, is a statement about a fact constituting a disputed material proposition of a rule of law, while circumstantial evidence is testimony about a fact or facts from which the disputed material proposition may be inferred. Thus, circumstantial evidence can be defined as relying on certain proved or provable circumstances from which a conclusion can be drawn that it was the accused person who committed the offence. It is evidence of circumstances which can be relied upon as not proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly, typically when a witness testifies about something which a witness personally saw, or heard. Both direct and circumstantial evidence are to be considered, but to bring a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is the duty of the Court to find the defendant not guilty. This follows from the requirement that guilt must be established.
71. To elaborate on the principles applicable in a case based on circumstantial evidence, the Court of Appeal in the case of Abanga alias Anyango v Republic (supra) stated thus –
It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests;
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; and
(iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
72. The accused person in her defence denied having committed the offence and stated that on the material night, her husband, (deceased) went to their home at midnight with injuries on his head, from which blood was oozing. She stated that he told her that her life and their child’s could be in danger as he had fought with the person who was following him and that the said person was on the way. She further stated that her husband did not tell her whom he had fought with, but informed her that he would tell her the following day. The accused person claimed to have walked all the way to her parents’ home at night and that she did not get any assistance.
73. She indicated that PW1 called her in the morning at 10.00a.m., and asked her to go to her house to get some tomatoes, but she told PW1 that she was at Mwananyamala, at her parents’ home. She stated that she explained to PW1 that her husband had gone home with blood all over, after he had been attacked and that he had told her there was danger, and he had requested her to leave for her parents’ home.
74. From the foregoing defence, the accused person was exonerating herself from the commission of the offence which she attributed to a third party. Several factors in the circumstantial evidence adduced by the prosecution do not however point to her innocence, as her actions tend to show that she occasioned the death of the deceased. Although the accused person contended that the deceased told her that his attacker was on the way to the house he shared with her, she had the time to pack some stuff in a bag before she left the house. She did not leave the house hurriedly and empty handed so as to escape from the impending danger.
75. When she left their house and went to PW3’s house at 1.00 a.m. at night, she was carrying a bag and her child. That was on night of 11th October, 2018 and 12th October, 2018. According to PW3, he was asleep when he was woken up by a Shamba boy by the name of Francis Wambua who told him that there was someone who was asking where she could get a boda boda rider. PW3’s identification of the person who was looking for a boda boda rider was by way of recognition as he knew the accused person as the deceased’s wife, and he used to see her being carried by the deceased on his motor cycle. He was also able to see her well from solar light that was shining from his doorway and on the sides of his house and illuminating up to the road where she was standing.
76. It was not denied by the accused person that she asked PW3 to take her to Mwananyamala. She did not also rebut or deny PW3’s evidence that she informed him that she had disagreed with the deceased and that was the reason why she was looking for transport to Mwananyamala. PW3 however declined the request to take the accused person to Mwananyamala which was 20 kms away from his house, because it was at night and she was someone’s wife. He told her that his motor cycle had broken down.
77. He told her to sleep at the verandah of his house until morning but at 3.00 a.m., he heard a knock on the window of his house and the accused person requested him to take her to Mwananyamala village, but he told her that his motor cycle was spoilt and he would repair it in the morning. He asked her to sleep until the morning when she would look for transport. PW3 then went back to sleep and he woke up at 6.00 am, he found that the accused and she person had left. When he went to work at 2.00 p.m., on that day, he was informed that Peter Soo was dead. He went to the deceased’s house and saw the injury on his head. PW3 said he got shocked. He informed the Chief and Village Chairman of how the accused person had gone to his house at night looking for transport.
78. From the evidence of PW1, she was friendly to the accused person and she would call her from time to time to go for vegetables from her kiosk. It was in the course of requesting the accused person to go for tomatoes, that she got to know that she was at Mwananyamala village at her parents’ home.
79. According to PW1, whenever the accused person would go to her parents’ home, she would inform her. Whereas the accused person said that PW1 called her at 10.00 a.m, according to PW1 she placed a call to the accused person at 1.00 p.m., on 12th October 2018, and she informed her that the deceased had gone to their home with blood all over and she had then gone to her parents’ home at night. I believe the evidence of PW1 that she called the accused person at 1.00 p.m., and that was the time when the accused person told her about the condition of PW1’s brother. If the accused person had given the said information to PW1 at 10.00 a.m., she could not have waited until after 1.00 p.m., so that she could go to her brother’s (deceased’s) house. In addition, PW1 had called the accused person to ask her to go for tomatoes to use in making lunch.
80. According to PW2, who was a boda boda rider, on 12th October, 2018 at 3.00 p.m., he was called by PW1 who asked him to pick her up as she had not seen her brother Peter Soo the whole day. Upon going to his house, they found it latched from outside. Upon unlatching the lock and entering the house, they found the deceased lying on the bed with an injury on the left side of his head.
81. PW2 narrated that he had on 11th October, 2018 witnessed the deceased fighting with one Ndaka and that one Kioko had asked him (PW2) to separate them. He had seen Ndaka hitting the deceased on the side of the neck with his fist, and in turn, the deceased hit Ndaka on his head with a stick. PW2 separated the two, and the deceased rode away with Kioko, as Ndaka ran away.
82. Mr. Ngaine for the accused person suggested that the person who had a grudge against the deceased was Ndaka. He submitted that PW8 did not look for Ndaka or Kioko to interrogate them and also to establish if Ndaka was the one who injured the deceased. On the said issue, PW8 who was the Investigating Officer testified that when he went to look for Ndaka, his family members informed him that he had gone to Nairobi. PW8 also stated that he did not find Kioko. He however stated that Ndaka could not have occasioned the death of the deceased on 12th October, 2018 as no one saw him with the deceased.
83. In the South African case of Ricky Ganda v The State, [2012] ZAFSHC 59, Free State High Court, Bloemfontein, it was held as follows on the approach to be taken when the evidence adduced is based on circumstantial evidence –
“… the proper approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, talking proper account of inherent strengths and weaknesses, probabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt”.
84. In this case, I do agree with the PW8 that Ndaka did not occasion the death of the deceased. I say so because when the accused person went to PW3’s house at night to look for motorcycle transport so that she could go to her parents’ home which was 20 kms away from PW3’s house, she informed him that she had disagreed with the deceased. If indeed the deceased had gone to the house where he used to live with the accused person with injuries on his head, then the first person the accused person ought to have called was PW1, the deceased’s sister, who used to live close to them, and had a good relationship with the accused person. In addition the deceased person would not have ridden his bicycle to his house, and parked it outside whilst bleeding heavily and with such a severe injury on his head.
85. The accused person could have called the Village Chairman to help the deceased, as he was their immediate neighbour. She could have narrated the story of how the deceased had been attacked and had gone to their home with blood all over. She failed to inform any of the said persons. It is evident and I am satisfied from the evidence adduced before me that the accused person was the last person to be with the deceased before he died on the night of 11th and 12th October, 2018. I do not agree with Mr. Ngaine that Kioko was the last person who was with the deceased before he met his death.
86. It is also evident that in the course of the disagreement the accused person had with the deceased, she hit the deceased on his head with an object which caused the pot crack fracture on his skull. The Postmortem Report established that the deceased’s cause of death was severe head injury following blunt trauma to the left side of his head.
87. If the accused person had not inflicted the said injury on the deceased, I would have expected her to look for help so that her husband’s life could be saved. She did not. Instead, she fled the scene and went to her parents’ home. She left the deceased to die, a fact that was exacerbated by her action of locking their house from outside with the latch after injuring the deceased.
88. When PW1 and PW2 went to the said house, they found the door latched from outside. In the said circumstances the deceased stood no chance of survival as he was left a prisoner in his house. The foregoing facts demonstrate that the defence put forth by the accused person that the deceased was injured by someone else was false. I dismiss it as such.
89. I have no doubt in my mind that based on the circumstantial evidence that was adduced by the prosecution witnesses, the inculpatory facts point to the guilt of the accused person and no one else.
90. From what she informed PW3, she left her house at night after she disagreed with the deceased. As such, she had not pre-meditated to kill him. I therefore find that the ingredients of malice aforethought to prove a case of murder have not been established by the prosecution. I therefore find that the accused person is not guilty of murder. I however find her guilty of the lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. I convict her for the offence of manslaughter.
It is so ordered
DATED, SIGNED and DELIVERED at NAIROBI on this 22nd day of November, 2024. Judgment delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
The accused person
Mr Ngaine for the accused person
Ms Nyawinda, Principal Prosecution Counsel for the DPP
Ms Bebora Mwaka – Court Assistant
Ms B. Wokabi – Court Assistant.