Introduction
1.The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence being that on 20th May 2018, at Shimo la Tewa in Kiasauni Subcounty within Mombasa County, he murdered Ruth Casta Katheu Mutuku. Upon arraignment in Court, the accused person pleaded not guilty and the prosecution called eight (8) witnesses in support of its case.
The Evidence
2. PW 1 was Sebastian Mutuku Mutisya, the father to the Late Ruthcaster Katheu Mutuku. He was a teacher in Mbooni whilst Ruthcaster was a prison warder at Shimo-la Tewa Women’s Prison. He testified that on 20/05/2018 at around 2.00am, he received a call from Ruth’s telephone number 0725-225589.
3.That Ruthcaster told Him that she is being killed. Her words were ‘Dad I am being killed”. That the call was terminated and he could not get hold of her again. That he then called David Onyancha the accused person on the telephone no. 0716382871 since the late RuthCaster had taken him home in February 2019. (This date must be erroneous.) That David did not pick his call. He then called his other daughter, Dorcas Kathangwa Mutuku (PW 2) who used to live in Malindi and he asked her to check what was going on. Dorcas called back saying she could not get either the deceased nor the accused person. That after 30 minutes he called back the late RuthCaster and this time round, she picked the call and told him that the accused had beaten her on the head and stepped on her stomach with taffi-shoes (Tough shoes). That she could not stand and she was looking for a neighbor to take her to hospital. He advised her to pass by the Shimo la Tewa Prison to report to the Officer on duty.
4.That RuthCaster was trembling as they talked. That later on RuthCaster updated him that she had got a female neighbor who had taken her to Swiss hospital in Mtwapa where she had got some treatment but was still in pain. That when she had gone back home she had found that the accused person and the sister had locked the house and she had to spent the night outside. Pw 1 then called Dorcas (PW 2) to join the deceased in Mombasa. Later on an uncle to the accused person told him that Ruth was in theatre and later on he was told she had passed on. He later travelled to Mombasa and collected the body of the deceased and her 1 year old child.
5.PW 2, confirmed that the accused person and the deceased were living together. That she had visited them on 18/05/2018 and stayed overnight and she left the accused person and his sister Essie with the deceased. That on 20/05/2018, the deceased called her at around 1.05am while crying and she (deceased) told her that the accused person had beaten her that he had slapped her and stomped on her stomach and she was in a lot of pain in abdomen and walking was a problem. That she tried to reach the accused person but she did not succeed. She then called the late RuthCaster and advised her to go to hospital and also to report. That she kept on communicating with Ruth and she learnt that Mama Mwende escorted her to report and go to Swiss hospital. That she joined Ruth at the Swiss Hospital in Mtwapa the next morning. They then went to Joacham hospital for an X-ray. The images were not clear and they were advised to go for a scan which showed some internal injuries. That an operation was subsequently done the next day and later on Ruth passed on.
6.PW 3 was Dr. Alphonce Adala from Swiss cottage hospital in Mtwapa. His evidence was that the late RuthCaster was received with complaints of abdominal pains with a history of assault by a person known to her. She was given painkillers and referred for a pelvic scan. That there was no bleeding and they suspected an internal injury. He produced the medical report as PEXT 1.
7.PW 4 was James Museko an IP based at Shimo la Tewa Prisons. He was on duty on 19/05/2018 having reported at 6.30pm. He testified that at around 1.40am, the deceased reported an assault by her husband. He booked the report. That the accused also went to the office and the deceased said she did not want to cohabit with him anymore. PW 4 confirmed that the 2 had lived together for around 2 years. That the deceased was angry whilst the accused was calm. He (accused) nevertheless admitted that they had differed. That he advised Ruth to go to hospital. He does not know if she went. He only came to learn later that she had passed on. He had to Journal entry No. 10 showing that at 2.40am – PC. Ruth Mutuku reported that she had been assaulted by her husband PC David Onyancha Ochieng who visits the duty office. Advised to seek treatment and both to report to the duty officer. This was marked but not produced. He was stood to get down to go bring the original and was never recalled.
8. PW 5 was Dr. Abdul Aziz Mohammed from the Coast General Hospital. He produced the postmortem report – PEXT 2.
9. PW 6 was IP Vincent Magangha who arrested the accused person on 22/05/2018.
10. PW 7 was Snr. Sgt. Elizabeth Waithanji, the Investigating Officer.
11. PW 8 was Dr. Hamsa Musa from Jocham Hospital. He produced the following documents:
i. The doctor notes
ii. Theatre notes
iii. Anesthetic record
iv. Discharge summary
v. Referral letter
vi. Treatment notes
vii. Copies of lab results and imaging
viii. Letter dated 9/5/2019
Ruling
12. After the close of the prosecution case, the court found that the accused person had a case to answer and he was placed on his defence by the ruling dated 23/03/2023.
Defence Case
13. The accused person testified that the Late Ruthcaster a fellow Prison Officer, was his wife. That they were sleeping on this fateful night of 19/05/2018. That at around midnight the child wanted to breastfeed and he woke the deceased up. That she started quarrelling and there was a push and pull. He said he got out of bed, and went to dress and they continued exchanging words. That he was in the sitting room and the late wife was in the bedroom breast feeding the baby, while sited on the bed. That the late wife put the baby on the bed and she started hitting him. That he held her hands but she pulled herself off and ran to the sitting room where she fell. That she fell on the stairs that leads to the sitting room.
14. That the late wife called her parents in Makueni and told them that he was killing her. She also called her sister and his mother and told them she did not want to stay with him. That he was with his sister who tried to talk to the deceased wife but she sent her away. That he called Mama Mwende and the late wife went to the office and requested for a P3 form and also requested to be allocated her own house. That the deceased left with Mama Mwende in a Tuktuk for Swiss Medical Centre. That Ruth returned to the house, and slept and later on left.
15.Later in the day, his mother told him that Ruth was admitted at Joachim hospital. That he visited Ruth, then went home, and later he learnt she had gone to theatre. He went to hospital and found the procedure had been completed. He queried who had given the consent for a major surgery. That later on the deceased developed complications and had to be taken to ICU. That it took about 3 hours to get clearance. That Ruth was taken to ICU at Coast General Hospital but she passed on. He denied having hit the deceased. He blamed Joachim hospital whom he says carried out the surgery illegally and who caused the death.
Analysis and Determination
16.Considering the testimonies of both the prosecution and defence it was now upon this Court to determine whether or not the offence of Murder had been proved beyond reasonable doubt.
Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law.
17. The accused person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. It is upon the prosecution to prove beyond reasonable doubt, that the accused murdered the deceased.
. Section 203 of the Penal Code provides the elements of the offence as follows: -
“ 203.Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
18. In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:
“For the offence of murder to be proved, 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.
The Death
19. The death is not disputed. The accused person testified under oath that he was present at the Coast General Hospital at the ICU when Ruthcasta was pronounced dead. He is the one who alerted the sister and other relatives of the death. Her body was identified by relatives and a post mortem conducted. The report was produced as PEXT 2. This issue is therefore settled.
Cause of Death
20. The Pathologist who produced the post mortem form testified that upon examination, externally the body of the deceased had an incision site 20cm which was insitu. There was also an abdominal dressing. Internally, the 5th, 6th and 7th ribs were broken. That on the digestive system, there was the peritoneum hematoma ,visible sutures on small intestines which was suggestion of possible perforation. There was also scalp hematoma. The pathologist concluded the cause of death was Pericoronitis Secondary to blunt abdominal injury.
21. The accused person, in his defence, appears to agree with this finding; that is the perforated intestines caused the death of Ruthcasta. The only point of departure is what caused the said perforation .
22. According to him, it was the surgery which was conducted at Joachim hospital. He blames the hospital where he says, conducted an illegal operation on the deceased.
23. The key question then becomes whether it is the surgeon’s scalpel or the deceased acts which injured the late Ruthcasta. To answer this, we have to look at all the history and medical evidence.
24. The ENTIRE treatment record from JOACHIM hospital was produced. Amongst the documents therein was the referral form– which shows that the patient was admitted on 20/05/2018 at 11pm with severe abdominal pain following assault (was kicked in the abdomen). That she was taken to theatre on 21/05/2018 at 8.00am where exploratory laparotomy was done. Intra-OP – was found massive hemoperitoneum, tear on the sigmoid colon and fecal spillage. Post operation her condition deteriorated and she developed severe respiratory distress. She was then referred to ICU care.
25. This finding is also repeated in the NHIF request by Dr. Emma Mwaura.
26. The other key document and more significantly, not from this hospital is the non contrast spiral CT Scan Report dated 20/05/2018. The key findings were:
“ Gut is opacified with contrast. Clear lung bases and pleural recess”. The condition was mild ascites? Pre-existing peritonitis? Hemoperitoneum splenomegaly. The radiologist was not too sure hence the operation.
27. The operation notes show:-
“Patient under anesthetic cleaned and draped –
Mid line incision found:-
i. Massive hemoperitoneum
ii. Extensive Fecal spillage in perigeal and the fecal matter, debris of food …
iii. 3 x 4 tear of the seminal colon.
Did cleaning, repair of the torn segment of the gut and left drainage in situ.”
28. The accused person appears to blame this surgery and says it was illegal. The court however finds there is a consent duly signed by the deceased and witnessed by one Magdalene.
29. The other documents such as the anesthetic record and history and progressive sheet were also produced. This shows that the patient complained of Abdominal pain. History of assault allegedly by husband – hit on the abdomen by foot and leg. She was admitted with a distended abdomen, tenderness on palpitation. The recommendation was ‘surgery review’.
30. The surgical for pre-authorization form – shows that the surgical procedure requested for; fecal peritonitis for emergency laparalmy”. The diagnosis was peritonitis. The brief admission history is recorded as –
“Trauma by a person known to patient, reports pain on the abdomen -severe. Unable to walk and sit up. Has abdominal distension and tender.
31. The outpatient caudex was also produced and it shows the patient was monitored on an hourly basis starting 10.00pm until the morning The post surgery notes were also produced.
32. From all this, what can we say caused the injury that led to the death of the deceased? Is it the hospital like the accused person says, or did the accused person cause the injury?
33. Like happens in most cases, we do not have an eye witnesses to the events in the house. There was no CCTV. The accused person mentioned that his sister was present, but she did not give evidence for either side.
34. Despite the absence of an eye witness, we, however, do have a well-documented history given by the deceased RuthCaster. She called her father PW 1, her Sister PW 2, that fateful night. The accused person confirmed that indeed the deceased called these two people. He also added that she also called his mother who did not testify. The deceased person told all these people that it is the accused person who had beaten her up. PW 1 her father stated that the deceased told him that the accused beat her and stepped on her abdomen with toughies ‘tough shoes” . PW2 said that the deceased told her that the accused had slapped her and kicked her and stomped on her stomach.
35. The deceased also reported the assault to the duty officer and it was documented. She then went to Swiss Hospital and again she complained of abdominal pain with a history of assault by a person known to her. This was noted down. This history was again recorded at Joachim Hospital and it is recorded that when she went there, she could not stand nor sit due to pain and the abdomen was distended and tender.
36. The accused person says that they exchanged words in the house and she fell down. He testified that he did not hit her. That she fell down. His narration was however not consistent. He started off by saying that he woke up, dressed and went to the sitting room and he left her seated on the bed still breast feeding the child. Then she placed the baby on the bed and started hitting him. That he held her hands but she pulled herself away and ran to the sitting room where she fell. He then changed his mind and said that the chair he was sitting on was in the bedroom and after the scuffle it’s when he ran to the sitting room. That the deceased fell at the stairs that lead to the sitting room. Then she called her parents and said he was killing her.
37. Now which is which? Was he seated in the sitting room? At what point did he go back to the bedroom? Then where did the deceased fall if we go by his version. Initially, the record shows he said she freed herself and ran to the sitting room where she fell. Then later he says she fell at the stairs. Which is which? These inconsistences show that the accused person was not truthful.
38. The court also noted the severe extent of the injuries when she was initially opened up.
39. There were 3 fractured ribs and the intestines perforated at two places. The accused person now wants to blame the hospital. That they perforated the intestines. He did not say whether he blamed them for fracturing the ribs as well,
40. . The history given at Swiss hospital shows that the deceased stomach was distended and very tender. This was long before Joachim hospital. The X-ray and scan also slowed that the gut was opacified. The finding on these documents, which were before the surgery was Hemoperitoneum splenomegaly.
This opinion by the sonographer, was then confirmed when the surgery was done. That means that the theory that the Surgeon cut the deceased gut cannot be true.
The pain and distention were also noted and recorded from the point of when ruthcasta first reported at Swiss hospital. In fact PW 2 said the deceased could not walk and that is why mama Mwende was called to take her to hospital and to report. The accused person also admitted that Mwende accompanied the deceased to hospital. Clearly the injury was massive and the hospital was not to blame.
41. On the other end, the accused person wants the court to believe that there was just a minor injury from a fall . He was shifting the blame to her . this version of a fall cannot be believed. The accused persons own evidence was that when he called his own mother to tell her that the deceased had passed on, the mother quarreled him for a long time and he listened patiently. This can only go to show that even those closest to him, blamed him. He cannot now shift the blame.
42. As I analyzed the evidence, I have noted that there was some level of interference or obvious omissions in the case. For instance, critical witnesses like Mwende did not come to testify. Even the Doctor from Joacham hospital was brought under a warrant of arrest. The officer on duty the prison was also stood down and not recalled.
43. That however did not disconnect the trail of evidence. The deceased gave a clear history of what happened to her. This history was repeated by various witnsses and recorded in many documents. Was that evidence admissible and credible? That leads us to the next issue of
DYIENG DECLARATIONS
44. The evidence of a dying declaration or statement is admissible under section 33 (a) of the Evidence Act cap. 80; Laws of Kenya. It reads as follows:
33 .Statement by deceased person, etc., When Statements, written or oral, of admissible facts made by a person who—a. relating to cause of death when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases
them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
45. This provision of the law is in pari materia with section 32(1) of the Indian Evidence Act, which applied in this country prior to the enactment of our own Evidence Act
46. It has been applied in several cases where the evidence of a dying declaration has been brought to the fore; one such case was Jasunga s/o Okumu versus Republic (1954) 21 E.A.C.A 331. Which I quote here below in details ;
47. In that case, the deceased had been found lying on the road with a stab wound in his chest. He told the police officer who had found him that he had been stabbed by the appellant. The officer took him to hospital from where the deceased’s statement was also recorded. In that statement, the deceased stated that he was on his way home when the appellant and another person confronted him. The appellant demanded money from him and assaulted him; he also threatened that he would kill him if he did not give him money. The appellant then drew a knife stabbed the deceased in his chest. He fell down and the appellant and the other man ran away. He died of internal hemorrhage and shock the following morning.
48. The learned trial judge convicted the appellant based on the assessors’ unanimous verdict that the appellant was guilty. In discussing the admissibility of the deceased’s statements, the court held as follows: In Kenya the admissibility of a dying declaration does not depend, as it is England, upon the declarant having at the time, a settled, hopeless expectation of imminent death, so that the awful solemnity of his situation may be considered as creating an obligation equivalent to that imposed by the taking of an oath.
49. In Kenya (as in India) the admissibility of statements by persons who have died as to the cause of death depends merely upon section 32 of the Indian Evidence Act. It has been said by this court that the weight to be attached to the dying decelerations in this country must, consequently, be less than that attached to them in England, and that the exercise of caution in the reception of such statements is even more necessary in this country than in England .The question of the caution to be exercised in the reception of dying declarations and the necessity for their corroboration has been considered by this Court in numerous cases, and a passage from the 7th edition of Field on Evidence has repeatedly been cited with approval .The caution with which this kind of testimony should be received has often been commented upon. The test of cross-examination may be wholly wanting; and... the particulars of the violence may have occurred circumstances of confusion and surprise calculated to prevent their being accurately observed…The deceased may have stated his inferences from facts concerning which he may have committed important particulars, from not having his attention called to them.
50. Particular caution must be exercised when an attack takes place in darkness when identification of the assailant is, usually, more difficult than in daylight (R v. Ramazani bin Mirandu (1934) 1 E.A.C.A 107; R v. Muyovya bin Msuma (1939) 6E.A.C. A. 128. The fact that the deceased told different persons that the appellant was the assailant is evidence of consistency of his belief that such was the case: it is no guarantee of accuracy.
51. And whether corroboration is necessary in order to sustain a safe conviction solely based on a dying declaration, the court had this to say:
52. It is not a rule of law that, in order to support a conviction, there must be corroboration of a dying declaration (R. v. Eligu s/o Odel &Another 1943) 10 E.A.C.A 90; re Guruswami (1940) Mad. 158, and there may be circumstances which go to show that the deceased could not have been mistaken in his identification of the accused… But it is, generally speaking, very unsafe to base a conviction solely on a dying declaration of a deceased person, made in the absence of the accused and not subject to cross-examination, unless there is satisfactory corroboration. R v Said Abdulla, (1945) 12 E.A.C.A 67; R v Mgundwa s/o jalo and others, (1946) 13 E.A.C.A 169, 171.).In addition to the cases cited above, we have examined the decisions of this court on the subject of dying declarations since 1935 and we have been unable to find a single case where a conviction has been upheld which was based upon a dying declaration without satisfactory corroboration, unless, as in Epongu’s case (Epongu s/o Ewunyu, (1943) 10 E.A.C.A 90) there was evidence of circumstances going to show that the deceased could not have been mistaken in his identification of the accused.
53. As to the question of the sufficiency, admissibility and the weight to be attached to a dying statement; the court ruled as follows: The statement was, apparently taken when the accused was suffering from extreme exhaustion: it was un acknowledged and there is no means of knowing whether the deceased would have acknowledged its correctness or would have wished to alter or add to it, had he been able to do so. If the statement had, on the face of it, been incomplete because the accused had sunk into a coma before he finished it, it would have been inadmissible (Waugh v The King, (1950) A.C 203) … It is not necessary, in order to render a dying statement admissible, that it should be a complete account of the attack, provided that it is, or may rationally be assumed to be, all that the deceased wished to say about it. (Sarkar on Evidence, 9th Edition, p 510). But the weight to be accorded to a dying statement must depend, to a great extent, upon the circumstances in which it is given, and the effects of a wound may dim the memory or weaken or confuse the intellectual powers. (Sarkar on Evidence, 9th Edition pp.303,309).I have applied the Jasunga decision in at least two previous cases where this question has arisen; this is in High Court Criminal Case No. 27 of 2010(Nyeri), Republic Versus Albanas Kioi Maweu (2019) eKLR and in High Court Criminal Case No. 38 of 2011(Nyeri), Republic Versus George Mwangi Onyango.
54. As the Jasunga decision illustrates, the admissibility and perhaps the weight attached to a dying declaration in England is tied to “the declarant having at the time, a settled, hopeless expectation of imminent death; in which event, “the awful solemnity of his situation may be considered as creating an obligation equivalent to that imposed by the taking of an oath.” Such conditions do not apply in Kenya and, for avoidance of doubt, section 33 (a) expressly states that dying statements “are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death”.
55. But even if it was necessary that the deceased must have been in imminent danger of death, circumstances under which the declaration was made in the present case would fit the bill. The deceased here faced the prospects of imminent death and, as it turned out, she died soon after she was assaulted. Her first call to the father was that she is being killed.
56. One theme that keeps recurring whenever evidence of dying declaration is considered is that of corroboration of the declaration. It is apparent from the excerpts of the Jasunga case which have been reproduced here that as much as the Court of Appeal for East Africa appeared to downplay the need for corroboration of the evidence of a dying statement, it still acknowledged that “… we have examined the decisions of this court on the subject of dying declarations since 1935 and we have been unable to find a single case where a conviction has been upheld which was based upon a dying declaration without satisfactory corroboration.” Thus, the absence of corroboration may not necessarily be fatal to the prosecution case but it is still relevant all the same.
57. .I have carefully weighed the evidence here in, and find that the accused person was well known to the deceased. In fact they were asleep on the same bed before this very unfortunate incident happened. She told over 5 witnesses that it was the accused person who inflicted the injuries and then she died. The people whom she told were from diverse backgrounds to wit, her relatives , her employer and different medical personnel. This cannot be a case of mistaken identity and I am satisfied that this was admissible dyeing declaration. The medical evidence and the many witnesses all corroborated each other.
52. The accused person had a two pronged defense; one that he did not assault the deceased and she fell down during a scuffle. I have found this was not the case based on the inconsistences in his narrative and the dyeing declaration.
We now move to the second one where he blames the hospital and we examine the principles of causation .
The Eggshell Skull Legal Principles
53.As long ago as 1975, when applying the Common Law principles of criminal liability in the Eggshell Skull rule, the Court of Appeal of England in the case of REGINA –V- BLAUE [1975] 1 WLR 1411 (Lawton JA, Thompson JA and Shaw JA) had this to say when the Appellant Robert Konrad Blaue challenged his conviction and sentence on murder: Lawton JA:“ The victim was a young girl aged eighteen. She was a Jehovah's Witness. She professed the tenets of that sect and lived her life by them. During the late afternoon of 3rd May, 1974 the Appellant came into her house and asked her for sexual intercourse. She refused. He then attacked her with a knife inflicting four serious wounds. One pierced her lung. The Appellant ran away. The girl staggered out into the road. She collapsed outside a neighbor’s house. An ambulance took her to hospital, where she arrived at about 7.30 p.m. Soon afterwards she was admitted to the intensive care ward. At about 8.30 p.m. she was examined by the surgical registrar who quickly decided that serious injury had been caused which would require surgery. As she had lost a lot of blood, before there could be an operation there would have to be a blood transfusion.
53. As soon as the girl appreciated that the surgeon was thinking of organizing a blood transfusion for her, she said that she should not be given one and that she would not have one. To have one, she said, would be contrary to her religious beliefs as a Jehovah's Witness. She was told that if she did not have a blood transfusion she would die. She said that she did not care if she did die. She was asked to acknowledge in writing that she had refused to have a blood transfusion under any circumstances. She did so. The prosecution admitted at the trial that had she had a blood transfusion when advised to have one she would not have died. She did so at 12.45 a.m. the next day.”
54.The learned Judge with the concurrence of the Bench went on to state:“…Maule, J.'s direction to the jury reflected the Common Law's answer to the problem. He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself. See Hale, Pleas of the Crown, (1800 edition), pp. 427-428..….It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death……If a victim's personal representatives claim compensation for his death the concept of foreseeability can operate in favour of the wrongdoer in the assessment of such compensation: the wrongdoer is entitled to expect his victim to mitigate his damage by accepting treatment of a normal kind. See Stelle v. R. George and Co. Ltd., (1942) Appeal Cases, 497.As Mr. Herrod pointed out, the criminal law is concerned with the maintenance of law and order and the protection of the public generally. A policy of the common law applicable to the settlement of tortious liability between subjects may not be, and in our judgment is not, appropriate for the criminal law.”
55..The Court of Appeal of Kenya was of a similar view in Longalom v Republic (Criminal Appeal 22 of 2015) [2022] KECA 725 (KLR) (RN Nambuye, W Karanja & K.I. Laibuta, JJ.A) where the learned Judges held as follows:“17.…The last person to touch the deceased before she sustained the complications that evidently led to her death was the appellant.18.This brings us to the doctrine of causation, which simply refers to the relationship of cause and the effect between one event or action and the result. Was there a correlation between the appellant dropping the deceased onto the ground and her death? We have no doubt in our minds that the two events were related. It could be possible that the deceased had a health condition which had nonetheless not manifested itself before the appellant’s action, and had remained unnoticed but for the appellant’s action of dropping her to the ground. Criminal law nonetheless prescribes that we must take our victims the way we find them, hence the egg shell, or thin skull rule. The deceased may have had a fragile neck or skull or indeed any other health condition, but she had not died from the same and only died after she was pushed by the appellant. It is worth noting that the deceased was pronounced dead on arrival at Maralal District Hospital before any other intervention. This makes the appellant directly responsible for the act that caused the deceased’s death.
56.Consequently, by the application of the Eggshell Skull principle, the criminal liability pointed at the accused person herein.
57.From the evidence, this Court is satisfied that the deceased was assaulted by the accused person who hit her on the head, kicked her and stepped on her abdomen with taffi , tough shoes ,leading to the extensive injuries to wit two tears on the intestine leading to fecal spillage and hematoma and she succumbed to the resultant injuries directly attributable to the assault.
58.The evidence showed that the deceased died on the second day following the initial assault. She reported and sought treatment that very night and even if there may have been some delay in getting the scan , in the light of the Eggshell Skull principles, this, did not diminish in any way the criminal liability of the assailant.
. RELEVANCE OF THE TIME OF DEATH AFTER ASSAULT: A YEAR AND A DAY RULE
59..The court admitted tested evidence proving that the deceased died within 48 hours following the assault. This timeline of death was also relevant within the sphere of criminal liability as captured in section 215 (1) of the Penal Code which states: -(1).A person is not deemed to have killed another if the death of that person does not take place within a year and a day of the cause of death.
60.. A case of similar application arose in the authority of Republic v Enock Gisairo Asiago [2021] eKLR (E. Maina J.) where the learned Judge made the following pronunciation:“ In regard to the cause of death the prosecution adduced evidence that the accused assaulted the deceased two weeks prior to her death. It was the prosecution’s case that the head injury inflicted upon her by the deceased coupled with a pre-existing lung condition was what led to her death. It was the prosecution’s case that Dr. Ogachi’s finding that the deceased had bleeding into the subdural and brain matter bilaterally at the occipital area was consistent with the evidence of Clinton Momanyi (Pw2) that he had witnessed his father, the accused, beating his mother on the head…..….To the contrary I find that the fact that the accused had beaten the deceased two weeks prior to her death was proved beyond reasonable doubt. The question then is whether given the time that had passed between the assault and death of the deceased and given the element of a pre-existing lung condition it can be said that the accused caused the death of the deceased. The answer to the question regarding time is answered by Section 215 (1) of the Penal Code which states: -“(1)A person is not deemed to have killed another if the death of that person does not take place within a year and a day of the cause of death.”In this case the death occurred after two weeks of the assault and I need not say more on the issue. In regard to the question whether the accused caused the death of the deceased in light of the pre-existing condition ….…It is my finding that much as the deceased had a pre-existing lung condition which would have caused her death there is evidence that the injuries inflicted upon her by the accused contributed to that death and hence hastened her death. Gender and domestic violence is illegal under our law and it is indeed a criminal offence and it is my finding therefore that the accused committed an unlawful act which contributed to the death of the deceased and for that reason I find that the accused caused the death of the deceased by an unlawful act.”
61..The Kenyan statutory provision of the Death Within A Year and A Day rule is not unique to this jurisdiction for traces its roots to the Common Law. This rule was well explained by the English High Court (Kings Bench Division) in REX v. DYSON. (1908) UK Law Rp KQB 96; (1908) 2 KB 454 (Lord Alverstone C.J., Lawrance and Ridley JJ.). The Judgment was delivered by Lord Alverstone C.J. who explained the rule as follows: “The prisoner was indicted for the manslaughter of his child, who died on March 5, 1908. There was evidence that the prisoner had inflicted injuries upon the child in November, 1906, and certain further injuries in December, 1907. The jury convicted the prisoner, who appeals against that conviction upon the ground that the judge misdirected the jury in that he left it to them to find the prisoner guilty if they considered the death to have been caused by the injuries inflicted in 1906. That was clearly not a proper direction, for, whatever one may think of the merits of such a rule of law, it is still undoubtedly the law of the land that no person can be convicted of manslaughter where the death does not occur within a year and a day after the injury was inflicted, for in that event it must be attributed to some other cause.” (underlining mine)
62..The same rule is also in force in Canada. Section 210 of the Canadian Criminal Code contains the Year And a Day Rule in respect of “culpable homicide of the offence of causing death of a person by criminal negligence or by means of the commission of the offence of causing death by dangerous driving or causing death by driving while under the influence or alcohol or a drug.”
63.The cumulative effect of the foregoing analysis on the facts and the applicable law leads this H Court to arrive at the conclusion that the subject herein bore the only causative, effective and the resultant liability for the death of the deceased. This court has not found any supervening or intervening events that would have changed the course of the causative action by the person of interest. Code.
Intention
64.The deceased RuthCaster sustained very serious injures. She said the deceased hit her and he stepped on her with tough shoes. This shows an intention to cause grievous harm. He mentioned that the deceased hurt him, but he clearly did not sustain any injury. He did not raise the defence of self defence. His defence was both accidental fall and medical negligence. That has been found to be untrue.
65.The court is satisfied that the deceased intended to cause grievous harm to the deceased RuthCaster. He stepped on her abdomen until the intestines raptured and 3 of his ribs cracked. He woke up, dressed. Wore tough shoes which were the weapon. That is enough proof of intention.
66.Accordingly , he is convicted for the offence of murder contrary to Section 203 and 204 of the penal code.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …24th……………day of ……October……………………2024
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
The accused person
Mr Manguro Advocate holding brief for Mr Magolo Snr
Ms Maina for the state
Ms Bebora court assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE