1. Ann Wambui Kabiro the Accused, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the night of 12 th and 13 th July, 2023 at Mlima Meza village in Wangachi location within Kirima sub-county in Laikipia county, murdered Cosmas Wamae Mwaniki (deceased).
2. This is a matter where the deceased was the Accused’s husband. They were stated to have quarreled on the fateful night and when all calmed down, the deceased’s lifeless body was found at the main gate of their home with deep cut wounds on the head, left arm and chest. Investigations were conducted and culminated into the arrest of the Accused who was charged.
3. To prove the case, the prosecution availed thirteen (13) witnesses. PW1 Mary Wangui Kabiro, a daughter of the couple stated that she received a call from her aunt Charity Wanjugu who informed her that her parents were quarrelling but when she proposed that she goes over, her aunt discouraged her since it was late in the night. She notified her sister Selina Kabira. Later she got information from her maternal aunt Leah Wanjiku who said that the Accused had gone to her maiden home that night.
4. At 5.00 am while in company of her husband and sister Selina they went home only to find the deceased who was unresponsive lying by the gate. Her paternal uncle, Simon Wachira Mwaniki and his wife Charity Wanjugu came out of their house and joined them. She observed cuts on her father’s hand, forehead and chest. Simon rang the chief who informed the police. Subsequently her mother was taken to the scene by the National Police Reservist.
5. PW2 Simon Wachira Mwaniki, a brother to the deceased who lived in the same homestead with the couple stated that on the material night at 10.00 pm he heard loud bangs then went outside in an endeavor to establish what was happening. Then he heard the Accused say in Kiswahili “kufa ghasia, unanisumbua sana”.
6. That he heard the deceased groan. He went back to the house and rang his elder brother Alex whom he informed of what he heard. Later Alex rang him and said he had communicated with the Accused who said the deceased had not returned home. At 2.00 a.m Alex rang him alleging that the mother of the Accused had communicated saying that the deceased was at the gate, but advised him not to go out as it was not safe. That he waited until 5.00 a.m and only went outside upon PW1 arriving. He alluded to the couple having been characterized by indulging in alcoholism which was problematic. And, he also testified to the Accused having assaulted the deceased previously as she cut him with a slasher whereby he had to get eight (8) sutures and another time having assaulted him on the head.
7. PW3 Mary Wangui Kabiro the mother of the Accused stated that she went home and was taken to her house by her other daughter. She informed her that the deceased went home and they argued so he left the house. And, while cooking her brother-in-law who lived in Nanyuki called and inquired about the deceased. She told him that he had gone back to town but decided to go check on him only to find him at the gate injured. That she sought help from Mama Njeri who however offered her a shawl and advised her to go to her mother. That she telephoned the deceased’s brother based at Nanyuki who said the deceased had been assaulted by the Accused. Therefore, she called Mbugua, a National Police Reservist who arrested the Accused. She also accompanied them to the scene where they found the deceased’s mortal remains.
8. PW4, Leah Wanjiku Kamau, the sister of the Accused stated that on arrival at their home, the Accused went to her house seeking help as her husband had not returned from Sipili and when she went outside after he deceased’s brother called looking for him only to find him by the roadside with injuries and when she went to seek assistance from mama Njeri she advised her to go to her maiden home. Therefore, she escorted the Accused to their mother’s house.
9. PW5 Samuel Ruchuri Wamathai, a National Police Reservist (NPR) was on patrol with NPR Joseph Mbugua when he received a call from PW4. They proceeded to PW3’s house where they found the Accused who alleged that her husband had been assaulted and was at their gate. They escorted her back to her home where they found the body of the deceased at the gate with deep cut wounds. He then accompanied the police and the chief to the house. The Accused was made to open the house that had been locked. He noticed stains of blood. Inside the bedroom were stains of blood. He saw a basin under the bed which had some liquid looking like water mixed with blood. It also contained clothes stained with blood. They moved to the pit latrine where a towel was recovered. He observed that beddings also had blood. A panga suspected to be a murder weapon was also recovered. He stated that the Accused led them to the store from where the panga was recovered.
10. PW6 No. 199003226, Chief Paul Naskii of Sipili Division, Kirima Sub-County in company of corporal Maina moved to the scene where they found the lifeless body of the deceased outside the gate near the road. It had cut wounds on the left side of the head as well as the right side. The chest had a deep cut wound and both hands also had cuts at the wrist according to his observation. The family was well known to him.
11. He stated that he used a torchlight to illuminate the place and saw trails of blood which led them to the house. He saw stains of blood on the sofa and the floor was wet as if someone had cleaned it. He also saw some blood stains on the bedroom wall. He confirmed in material particulars what was stated by PW5 as to what they also found in the bedroom and how the Accused led them to the recovery of the panga. He also alluded to the couple having a problem of alcoholism.
12. PW7, No. 4089 R Joseph Mbugua Kihara confirmed having received a call from PW4 seeking assistance and having gone to arrest the Accused from the scene of the incident.
13. PW8 Jecinta Wangui Mathai stated that the Accused went to her house at about 11.00 p.m and told her that thugs had attacked the deceased. She sought help so as to take him to the house. She asked her whether she had informed his brother and she denied hence she told her to go inform his brother. Then at 7.00 a.m her daughter Ann Wamaitha rang her seeking to know if the deceased had been killed. That is when she went to the roadside and found many people having crounded.
14. PW9 Dr.John Omedho conducted the postmortem on the body of the deceased.
15. PW10 No. 78693 P.C Henry Chirchir moved to the scene after the arrest of the Accused, but they took her back. He observed trials/stains of blood from the house to the gate. The scene was photographed and they collected exhibits that included a basin, sandals, a brown skirt, a panga, green bedcover and shirt that had blood.
16. PW11 No. 239661 corporal Stephen Macharia Maina was among the officers who visited the scene.
17. PW12 No. 93937 corporal Edward Esanya, a crime scene investigation officer adduced in evidence photographic evidence that he processed and printed.
18. PW13 Henry Kiptoo Sang a government analyst examined items submitted to the government chemist by the investigator P.C Henry Chirchir and reached findings.
19. Upon being placed on her defence, the Accused denied the allegations. She testified that on 14/7/2023 having sought permission from the deceased, she went to visit her brother at Rumuruti prison. At 5.00 p.m the deceased called and sought to know if they had returned and he asked her to buy meat which she did and diverted to the club to drink alcohol. She even bought and carried more alcohol to continue drinking at home. On arrival she found the deceased at home but already drunk. That when she embarked upon cooking he left going to Chemunga’s place and when he returned at 10.00 pm they had an argument which generated into physical assault. After assaulting her he left in that state of drunkardness.
20. That she went to the sitting room and sat only to receive a call from the deceased’s brother, Alex Muthee of Nanyuki asking for the deceased and she told him that the deceased was not in the house. That is when she went outside to find him lying at the gate bleeding and not talking. That she went to their neighbour mama Njeri to seek assistance so as to take him to hospital but she declined to come out. That she was drunk hence she decided to go to her maiden home and when she narrated to her mother what transpired, she called the National Police Reservist who took her back to her matrimonial home where she was re-arrested by the police.
21. That she was drunk, she could not understand anything but while in the cells she learnt of the deceased’s demise. She acknowledged having neighbours, among them the deceased’s brother, Simon Wachira but stated that she could not have called them since they were not in good terms, having disagreed over land.
22. Further, she denied having uttered the words “ kufa ghasia” as alleged by Simon. She said that she didn’t notice anything amiss in the house. That no samples were taken from her and concluded by seeking forgives from the court because of her health status.
23. On cross examination, she admitted that her children who have their own homes didn’t like going home because of the frequent fights. She denied having seen the blood stains from the house to the gate as alleged by the police and she denied having been the last person seen with the deceased.
24. At the close of the defence case submissions were filed by the defence where it was urged that the case was based on circumstantial evidence. In that regard reliance was placed on the case of Republic v Kelvin Mukuha Wambui (2020) Eklr where the Court of Appeal was guided by the case of Joan Chebichii Sawe v Republic (2003) Eklr that stated thus;
“In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.”
25. Further reliance was also placed on the case of Abang’a alias Onyango v Republic Cr Appeal 32/1990 where the same principles were stated that;
“…It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 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.”
26. That PW2 who claimed to have heard the Accused say “kufa ghasia ” did not leave his house until 5.00 a.m and he did not witness anything. It was therefore urged that PW2 and Alex seemed to have been involved in the death of the deceased and blamed the Accused who had marital issues with him.
27. That photographs produced did not show any trails of blood or any evidence to that effect which suggests that the deceased was attacked by strangers on his way to the chang’aa drinking den or his brothers PW2 and Alex Muthee. That the Accused having left the house at 10 pm – 11.00 pm the question would be, who cleaned the house that was wet when the police and chief arrived. That it is likely that the panga was placed at the scene to implicate the Accused since PW6 and PW2 said it was recovered outside the house under a granary while the investigations officer stated that it was found under the bed. Therefore, there was no evidence linking the Accused to the offence.
28. I have duly considered evidence on record and submissions filed. Section 203 of the Penal Code outlines and defines murder as follows;
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
29. Elements of murder were also defined by case law. In Antony Ndegwa Ngaino v Republic [2014] KECA 424 (KLR) the Court of Appeal stated that the elements of murder are as follows:
“ For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:
(a)the death of the deceased and the cause of that death;
(b)that the accused committed the unlawful act which caused the death of the deceased and
(c)that the accused had the malice aforethought.”
30. The defence does not dispute occurrence of death. Witnesses who moved to the scene early morning testified to have found the deceased’s lifeless body at the gate of his residence. Later a postmortem was conducted by pw Dr Omodho who opined that the cause of death was hemorrhagic shock secondary to internal organ injuries post assault. This was proof of the fact of death.
31. The prosecution’s case is that the unlawful act that resulted into the death of the deceased was caused by the Accused while the defence denies the allegation and argues that the people responsible must have been either the brothers of the deceased (PW2 and Alex Muthee) or some strangers who encountered him at the drinking den.
32. There was no eye-witness to the act hence evidence relied on was circumstantial. Facts to be relied on establishing the chain of events culminating into the inference of guilt being drawn must be cogent as stated in the case of Abang’a v Republic (Supra).
33. In Ahamed Abolgathi Mohammed & another v Republic (2018) KECA 743 (KLR) the Court of Appeal stated as follows:
“…Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R v. Taylor, Weaver & Donovan [1928] CR. App. R. 21:
“It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial.”
34. It is admitted that the deceased was at this house and he had a serious argument with the Accused. PW2 urges that he heard the Accused say “kufa ghasia, umenisumbua sana”. Which can be translated into English as;
“Die, you nuisance, you have really stressed me out”.
35. This would suggest that the individual had really bothered the person who uttered the words. However, the Accused denies having made the utterance. Her part of story is that upon receiving the call from Alex her brother-in-law, she decided to check outside though there was insecurity in the area.
36. The police visited the scene after the act, and according to PW5, PW6, PW7 and PW11 there were stains/trails of blood from where the body was found up to the couple’s house and inside the house were some evidence of blood.
37. PW12 Corporal Edward Esanya adduced in evidence photographs of the scene and the body of the deceased that had visible injuries. Some of the exhibits were forwarded to the government chemist by PC Henry Chirchir itemized as;
1. A matchete (panga) with a black rubber handle wrapped with a khaki paper marked “A”
2. A brown blouse in khaki envelope marked “B”
3. A green (fleece) bed cover in a white box marked “C”
4. A brown skirt in a khaki envelope marked “D”
5. A pair of green slippers marked “E1 & E2” in a khaki envelope.
6. A marron plastic basin wrapped with a khaki paper marked “F”
7. Finger nail clippings in khaki envelopes marked “G1 & G2 Cosmas Wamai Mwaniki (deceased)”
8. Hair sample in a khaki envelope marked “H deceased”
38. Although the Accused denied that some samples were taken from her, it is indicated that a buccal swab sample was obtained from her (Ann Wambui Kabiro). Also taken for analysis was buccal swab sample of Selina Kagure Wamae and Mary Wangui Wamae daughters of the deceased. The results indicated that there were blood stains on the machete/panga, blouse, the bedcover, the skirt and the slippers were of human origin and 99.00 + % were chances that they belonged to the biological father to Selina who in this case was the deceased.
39. Evidence adduced was that when the Accused was taken back to her matrimonial home by the police reservist who were joined by the police and chief. She was made to open the door which was locked. The items submitted to the government chemist for analysis were found inside the house. The evidence of the government chemist corroborates the question of items recovered having been stained by blood. There was no denial that the items were found in the house. Although the Accused speculates that the deceased may have been killed by either his brothers or strangers she doesn’t explain how the items stained with blood were inside the house.
40. There is the question of item ‘A’ the panga. PW5 stated that the Accused led them to the recovery of the panga that was near the store, PW10 on the other hand stated that he recovered the panga inside the house. On cross examination what was not established is where exactly the store was. In the case of Joseph Maina Mwangi v Republic Criminal Appeal No. 73 of 1993 the Court of Appeal held that:
“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentences.”
41. Notably, it is not only the panga that had blood stains and the fact if other items having been blood stains corroborates evidence of witnesses who allude to blood stains/trails that led them from the gate to the house where other exhibits stained with blood were found. The chain of events led to the conclusion of the Accused being the perpetrator of the unlawful act that caused the death of the deceased.
42. The next issue would be therefore, whether she acted with malice aforethought. Section 206 of the Penal Code defines malice aforethought as follows:
Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
43. In Nzuki v Republic [1993] the Court of Appeal stated that;
“Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:
(i) The intention to cause death;
(ii) The intention to cause grievous bodily harm;
(iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts.
It does not mater in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.
Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder. See the case of Hyam v Director of Public Prosecutions, [1975] AC 55.”.
44 . Although the Accused has denied voluntarily having committed the offence, it is argued that parties were intoxicated. Section 13 of the Penal Code provides thus:
(1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—
(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
(3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code (Cap. 75) relating to insanity shall apply.
(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.
(5) For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs.…
43. In Rex v Ratief (1941) EACA it was held that;
“The insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The law takes note of the cause of insanity infact supervenes as the result of alcohol, excesses it finishes as complete an answer to a criminal charge as insanity induced by any other cause. It is immaterial whether the insanity so induced was permanent or temporary and if a man intoxication were such as to induce insanity so that he did not know the nature of his act or that his act was wrongful his act would be excusable on the ground of insanity and the verdict should be as laid down in Section 159 of the Criminal Procedure Code.”
44. The question is whether the Accused did not know that the act was wrongful. It is important to note that the Accused does not come out emphatically and clearly in asserting that she was intoxicated to an extent that she did not understand what transpired. This was an individual who locked the house, went out and sought assistance from her immediate neighbour who however declined to be involved. Ongoing to her maiden home she gave an explanation that the deceased was attacked. She was actually in her proper senses. She was able to perceive and interact with those she believed would be of help. She avoided going to PW2 whom she said had bad blood with her family. Therefore, when she stated that;
“ kufa ghasia,…”
Meaning that she was frustrated by the deceased who seemed nonsensical. To stop the argument, she acted. She alluded to the deceased having assaulted her on the material night but there was no evidence of having sought any treatment. Its therefore apparent that she intended to injure.
45. Looking at the nature of injuries sustained. The deceased sustained a deep cut wound on the scalp and chest, an open fracture of the left forearm. The right lung collapsed. The left ventricle had a penetrating wound and there was cerebral compression.
46. Apparently, the perpetrator of the assault occasioned on the body of the deceased had the intention not only to maim but to kill. This was malice aforethought.
47. From the foregoing, I find the prosecution having proved the case of murder against the Accused to the required standard. She is guilty and I accordingly convict her as charged.
48. It is so ordered.
2. This is a matter where the deceased was the Accused’s husband. They were stated to have quarreled on the fateful night and when all calmed down, the deceased’s lifeless body was found at the main gate of their home with deep cut wounds on the head, left arm and chest. Investigations were conducted and culminated into the arrest of the Accused who was charged.
3. To prove the case, the prosecution availed thirteen (13) witnesses. PW1 Mary Wangui Kabiro, a daughter of the couple stated that she received a call from her aunt Charity Wanjugu who informed her that her parents were quarrelling but when she proposed that she goes over, her aunt discouraged her since it was late in the night. She notified her sister Selina Kabira. Later she got information from her maternal aunt Leah Wanjiku who said that the Accused had gone to her maiden home that night.
4. At 5.00 am while in company of her husband and sister Selina they went home only to find the deceased who was unresponsive lying by the gate. Her paternal uncle, Simon Wachira Mwaniki and his wife Charity Wanjugu came out of their house and joined them. She observed cuts on her father’s hand, forehead and chest. Simon rang the chief who informed the police. Subsequently her mother was taken to the scene by the National Police Reservist.
5. PW2 Simon Wachira Mwaniki, a brother to the deceased who lived in the same homestead with the couple stated that on the material night at 10.00 pm he heard loud bangs then went outside in an endeavor to establish what was happening. Then he heard the Accused say in Kiswahili “kufa ghasia, unanisumbua sana”.
6. That he heard the deceased groan. He went back to the house and rang his elder brother Alex whom he informed of what he heard. Later Alex rang him and said he had communicated with the Accused who said the deceased had not returned home. At 2.00 a.m Alex rang him alleging that the mother of the Accused had communicated saying that the deceased was at the gate, but advised him not to go out as it was not safe. That he waited until 5.00 a.m and only went outside upon PW1 arriving. He alluded to the couple having been characterized by indulging in alcoholism which was problematic. And, he also testified to the Accused having assaulted the deceased previously as she cut him with a slasher whereby he had to get eight (8) sutures and another time having assaulted him on the head.
7. PW3 Mary Wangui Kabiro the mother of the Accused stated that she went home and was taken to her house by her other daughter. She informed her that the deceased went home and they argued so he left the house. And, while cooking her brother-in-law who lived in Nanyuki called and inquired about the deceased. She told him that he had gone back to town but decided to go check on him only to find him at the gate injured. That she sought help from Mama Njeri who however offered her a shawl and advised her to go to her mother. That she telephoned the deceased’s brother based at Nanyuki who said the deceased had been assaulted by the Accused. Therefore, she called Mbugua, a National Police Reservist who arrested the Accused. She also accompanied them to the scene where they found the deceased’s mortal remains.
8. PW4, Leah Wanjiku Kamau, the sister of the Accused stated that on arrival at their home, the Accused went to her house seeking help as her husband had not returned from Sipili and when she went outside after he deceased’s brother called looking for him only to find him by the roadside with injuries and when she went to seek assistance from mama Njeri she advised her to go to her maiden home. Therefore, she escorted the Accused to their mother’s house.
9. PW5 Samuel Ruchuri Wamathai, a National Police Reservist (NPR) was on patrol with NPR Joseph Mbugua when he received a call from PW4. They proceeded to PW3’s house where they found the Accused who alleged that her husband had been assaulted and was at their gate. They escorted her back to her home where they found the body of the deceased at the gate with deep cut wounds. He then accompanied the police and the chief to the house. The Accused was made to open the house that had been locked. He noticed stains of blood. Inside the bedroom were stains of blood. He saw a basin under the bed which had some liquid looking like water mixed with blood. It also contained clothes stained with blood. They moved to the pit latrine where a towel was recovered. He observed that beddings also had blood. A panga suspected to be a murder weapon was also recovered. He stated that the Accused led them to the store from where the panga was recovered.
10. PW6 No. 199003226, Chief Paul Naskii of Sipili Division, Kirima Sub-County in company of corporal Maina moved to the scene where they found the lifeless body of the deceased outside the gate near the road. It had cut wounds on the left side of the head as well as the right side. The chest had a deep cut wound and both hands also had cuts at the wrist according to his observation. The family was well known to him.
11. He stated that he used a torchlight to illuminate the place and saw trails of blood which led them to the house. He saw stains of blood on the sofa and the floor was wet as if someone had cleaned it. He also saw some blood stains on the bedroom wall. He confirmed in material particulars what was stated by PW5 as to what they also found in the bedroom and how the Accused led them to the recovery of the panga. He also alluded to the couple having a problem of alcoholism.
12. PW7, No. 4089 R Joseph Mbugua Kihara confirmed having received a call from PW4 seeking assistance and having gone to arrest the Accused from the scene of the incident.
13. PW8 Jecinta Wangui Mathai stated that the Accused went to her house at about 11.00 p.m and told her that thugs had attacked the deceased. She sought help so as to take him to the house. She asked her whether she had informed his brother and she denied hence she told her to go inform his brother. Then at 7.00 a.m her daughter Ann Wamaitha rang her seeking to know if the deceased had been killed. That is when she went to the roadside and found many people having crounded.
14. PW9 Dr.John Omedho conducted the postmortem on the body of the deceased.
15. PW10 No. 78693 P.C Henry Chirchir moved to the scene after the arrest of the Accused, but they took her back. He observed trials/stains of blood from the house to the gate. The scene was photographed and they collected exhibits that included a basin, sandals, a brown skirt, a panga, green bedcover and shirt that had blood.
16. PW11 No. 239661 corporal Stephen Macharia Maina was among the officers who visited the scene.
17. PW12 No. 93937 corporal Edward Esanya, a crime scene investigation officer adduced in evidence photographic evidence that he processed and printed.
18. PW13 Henry Kiptoo Sang a government analyst examined items submitted to the government chemist by the investigator P.C Henry Chirchir and reached findings.
19. Upon being placed on her defence, the Accused denied the allegations. She testified that on 14/7/2023 having sought permission from the deceased, she went to visit her brother at Rumuruti prison. At 5.00 p.m the deceased called and sought to know if they had returned and he asked her to buy meat which she did and diverted to the club to drink alcohol. She even bought and carried more alcohol to continue drinking at home. On arrival she found the deceased at home but already drunk. That when she embarked upon cooking he left going to Chemunga’s place and when he returned at 10.00 pm they had an argument which generated into physical assault. After assaulting her he left in that state of drunkardness.
20. That she went to the sitting room and sat only to receive a call from the deceased’s brother, Alex Muthee of Nanyuki asking for the deceased and she told him that the deceased was not in the house. That is when she went outside to find him lying at the gate bleeding and not talking. That she went to their neighbour mama Njeri to seek assistance so as to take him to hospital but she declined to come out. That she was drunk hence she decided to go to her maiden home and when she narrated to her mother what transpired, she called the National Police Reservist who took her back to her matrimonial home where she was re-arrested by the police.
21. That she was drunk, she could not understand anything but while in the cells she learnt of the deceased’s demise. She acknowledged having neighbours, among them the deceased’s brother, Simon Wachira but stated that she could not have called them since they were not in good terms, having disagreed over land.
22. Further, she denied having uttered the words “ kufa ghasia” as alleged by Simon. She said that she didn’t notice anything amiss in the house. That no samples were taken from her and concluded by seeking forgives from the court because of her health status.
23. On cross examination, she admitted that her children who have their own homes didn’t like going home because of the frequent fights. She denied having seen the blood stains from the house to the gate as alleged by the police and she denied having been the last person seen with the deceased.
24. At the close of the defence case submissions were filed by the defence where it was urged that the case was based on circumstantial evidence. In that regard reliance was placed on the case of Republic v Kelvin Mukuha Wambui (2020) Eklr where the Court of Appeal was guided by the case of Joan Chebichii Sawe v Republic (2003) Eklr that stated thus;
“In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.”
25. Further reliance was also placed on the case of Abang’a alias Onyango v Republic Cr Appeal 32/1990 where the same principles were stated that;
“…It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 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.”
26. That PW2 who claimed to have heard the Accused say “kufa ghasia ” did not leave his house until 5.00 a.m and he did not witness anything. It was therefore urged that PW2 and Alex seemed to have been involved in the death of the deceased and blamed the Accused who had marital issues with him.
27. That photographs produced did not show any trails of blood or any evidence to that effect which suggests that the deceased was attacked by strangers on his way to the chang’aa drinking den or his brothers PW2 and Alex Muthee. That the Accused having left the house at 10 pm – 11.00 pm the question would be, who cleaned the house that was wet when the police and chief arrived. That it is likely that the panga was placed at the scene to implicate the Accused since PW6 and PW2 said it was recovered outside the house under a granary while the investigations officer stated that it was found under the bed. Therefore, there was no evidence linking the Accused to the offence.
28. I have duly considered evidence on record and submissions filed. Section 203 of the Penal Code outlines and defines murder as follows;
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
29. Elements of murder were also defined by case law. In Antony Ndegwa Ngaino v Republic [2014] KECA 424 (KLR) the Court of Appeal stated that the elements of murder are as follows:
“ For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:
(a)the death of the deceased and the cause of that death;
(b)that the accused committed the unlawful act which caused the death of the deceased and
(c)that the accused had the malice aforethought.”
30. The defence does not dispute occurrence of death. Witnesses who moved to the scene early morning testified to have found the deceased’s lifeless body at the gate of his residence. Later a postmortem was conducted by pw Dr Omodho who opined that the cause of death was hemorrhagic shock secondary to internal organ injuries post assault. This was proof of the fact of death.
31. The prosecution’s case is that the unlawful act that resulted into the death of the deceased was caused by the Accused while the defence denies the allegation and argues that the people responsible must have been either the brothers of the deceased (PW2 and Alex Muthee) or some strangers who encountered him at the drinking den.
32. There was no eye-witness to the act hence evidence relied on was circumstantial. Facts to be relied on establishing the chain of events culminating into the inference of guilt being drawn must be cogent as stated in the case of Abang’a v Republic (Supra).
33. In Ahamed Abolgathi Mohammed & another v Republic (2018) KECA 743 (KLR) the Court of Appeal stated as follows:
“…Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R v. Taylor, Weaver & Donovan [1928] CR. App. R. 21:
“It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial.”
34. It is admitted that the deceased was at this house and he had a serious argument with the Accused. PW2 urges that he heard the Accused say “kufa ghasia, umenisumbua sana”. Which can be translated into English as;
“Die, you nuisance, you have really stressed me out”.
35. This would suggest that the individual had really bothered the person who uttered the words. However, the Accused denies having made the utterance. Her part of story is that upon receiving the call from Alex her brother-in-law, she decided to check outside though there was insecurity in the area.
36. The police visited the scene after the act, and according to PW5, PW6, PW7 and PW11 there were stains/trails of blood from where the body was found up to the couple’s house and inside the house were some evidence of blood.
37. PW12 Corporal Edward Esanya adduced in evidence photographs of the scene and the body of the deceased that had visible injuries. Some of the exhibits were forwarded to the government chemist by PC Henry Chirchir itemized as;
1. A matchete (panga) with a black rubber handle wrapped with a khaki paper marked “A”
2. A brown blouse in khaki envelope marked “B”
3. A green (fleece) bed cover in a white box marked “C”
4. A brown skirt in a khaki envelope marked “D”
5. A pair of green slippers marked “E1 & E2” in a khaki envelope.
6. A marron plastic basin wrapped with a khaki paper marked “F”
7. Finger nail clippings in khaki envelopes marked “G1 & G2 Cosmas Wamai Mwaniki (deceased)”
8. Hair sample in a khaki envelope marked “H deceased”
38. Although the Accused denied that some samples were taken from her, it is indicated that a buccal swab sample was obtained from her (Ann Wambui Kabiro). Also taken for analysis was buccal swab sample of Selina Kagure Wamae and Mary Wangui Wamae daughters of the deceased. The results indicated that there were blood stains on the machete/panga, blouse, the bedcover, the skirt and the slippers were of human origin and 99.00 + % were chances that they belonged to the biological father to Selina who in this case was the deceased.
39. Evidence adduced was that when the Accused was taken back to her matrimonial home by the police reservist who were joined by the police and chief. She was made to open the door which was locked. The items submitted to the government chemist for analysis were found inside the house. The evidence of the government chemist corroborates the question of items recovered having been stained by blood. There was no denial that the items were found in the house. Although the Accused speculates that the deceased may have been killed by either his brothers or strangers she doesn’t explain how the items stained with blood were inside the house.
40. There is the question of item ‘A’ the panga. PW5 stated that the Accused led them to the recovery of the panga that was near the store, PW10 on the other hand stated that he recovered the panga inside the house. On cross examination what was not established is where exactly the store was. In the case of Joseph Maina Mwangi v Republic Criminal Appeal No. 73 of 1993 the Court of Appeal held that:
“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentences.”
41. Notably, it is not only the panga that had blood stains and the fact if other items having been blood stains corroborates evidence of witnesses who allude to blood stains/trails that led them from the gate to the house where other exhibits stained with blood were found. The chain of events led to the conclusion of the Accused being the perpetrator of the unlawful act that caused the death of the deceased.
42. The next issue would be therefore, whether she acted with malice aforethought. Section 206 of the Penal Code defines malice aforethought as follows:
Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.
43. In Nzuki v Republic [1993] the Court of Appeal stated that;
“Before an act can be murder, it must be aimed at someone and in addition it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:
(i) The intention to cause death;
(ii) The intention to cause grievous bodily harm;
(iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts.
It does not mater in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.
Without an intention of one of these three types, the mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder. See the case of Hyam v Director of Public Prosecutions, [1975] AC 55.”.
44 . Although the Accused has denied voluntarily having committed the offence, it is argued that parties were intoxicated. Section 13 of the Penal Code provides thus:
(1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.
(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—
(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.
(3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code (Cap. 75) relating to insanity shall apply.
(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.
(5) For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs.…
43. In Rex v Ratief (1941) EACA it was held that;
“The insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The law takes note of the cause of insanity infact supervenes as the result of alcohol, excesses it finishes as complete an answer to a criminal charge as insanity induced by any other cause. It is immaterial whether the insanity so induced was permanent or temporary and if a man intoxication were such as to induce insanity so that he did not know the nature of his act or that his act was wrongful his act would be excusable on the ground of insanity and the verdict should be as laid down in Section 159 of the Criminal Procedure Code.”
44. The question is whether the Accused did not know that the act was wrongful. It is important to note that the Accused does not come out emphatically and clearly in asserting that she was intoxicated to an extent that she did not understand what transpired. This was an individual who locked the house, went out and sought assistance from her immediate neighbour who however declined to be involved. Ongoing to her maiden home she gave an explanation that the deceased was attacked. She was actually in her proper senses. She was able to perceive and interact with those she believed would be of help. She avoided going to PW2 whom she said had bad blood with her family. Therefore, when she stated that;
“ kufa ghasia,…”
Meaning that she was frustrated by the deceased who seemed nonsensical. To stop the argument, she acted. She alluded to the deceased having assaulted her on the material night but there was no evidence of having sought any treatment. Its therefore apparent that she intended to injure.
45. Looking at the nature of injuries sustained. The deceased sustained a deep cut wound on the scalp and chest, an open fracture of the left forearm. The right lung collapsed. The left ventricle had a penetrating wound and there was cerebral compression.
46. Apparently, the perpetrator of the assault occasioned on the body of the deceased had the intention not only to maim but to kill. This was malice aforethought.
47. From the foregoing, I find the prosecution having proved the case of murder against the Accused to the required standard. She is guilty and I accordingly convict her as charged.
48. It is so ordered.