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JUDGMENT
1. The accused, Edna Magoma Matagi, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on the 9th day of August, 2023, at Ikoro Sub-location in Gucha South Sub-County within Kisii County, she murdered Derrick Ombui Ogisi.
2. The accused denied the charge. The prosecution called eight witnesses. At the close of the prosecution's case, the accused was placed on her defence. She gave sworn testimony and called no witnesses. The defence filed written submissions urging the court to find that the prosecution's case was founded on suspicion and that the essential ingredients of murder had not been proved.
The Prosecution Case
3. PW1, Christine Kerubo Omboke, testified that on 9th August, 2023, she heard screams from across the road. When she rushed to the scene, she found the accused running towards the road. She took the child, who appeared unconscious, to Gucha Sub-County Hospital, where he unfortunately died while receiving treatment. On cross-examination, she stated that there was a foul smell from the child's mouth, but she could not confirm whether it was poison.
4. PW2, Milkah Kerubo Onchore, testified that she was informed by members of the public that her grandson had consumed poison and had been taken to the hospital. She went to the hospital and was informed that he had died. According to her, when she asked the accused what had happened, the accused said that she did not know. On cross-examination, she confirmed that she did not know what had happened and that people only thought the child could have consumed paraffin.
5. PW3, Samuel Ombui Mong'are, testified that the accused was his daughter-in-law and that she lived with them with her son, the deceased. He stated that on the material day he was attracted by screams and, on rushing to the scene, found PW1 carrying the deceased towards the road. The child was taken to Gucha Sub-County Hospital. PW3 stated that he had no direct evidence that the accused had committed the offence.
6. PW4, Dr Leah Obosi Okworo, a pathologist at Kisii County Teaching and Referral Hospital, produced the post-mortem report. She testified that she conducted the post-mortem examination at Gucha District Hospital on 15th August, 2023. The body was of a male child of African descent, aged about two years, with moderate pallor. Externally, there was no cyanosis or oedema, but there were red-brown stains on the lips. Internally, the gastric contents had a strong, pungent smell. In the head, she noted a frontal subgaleal haematoma measuring about 7 by 5 centimetres, a skull injury at the back of the head, parietal-occipital subgaleal injury and features of cerebral oedema.
7. PW4 initially formed the opinion that the cause of death was suspected poisoning pending toxicological analysis, with head injury due to blunt force trauma as a contributing factor. After the toxicology report was read to her, and it showed no poison, she stated that the head injury could also be considered a cause of death. In cross-examination, she confirmed that the injuries occurred before death, that the toxicology report did not confirm poisoning, and that, in view of the negative toxicology report, the cause of death was head injury due to blunt force trauma. On re-examination, she stated that her conclusion on the cause of death would be the head injury in view of the negative toxicology report.
8. PW5, Erick Ombui Ogisi, is the deceased's father and the accused's husband. He testified that he was living and working in Nairobi at the material time. He and the accused had marital differences, and he sent her home with the child pending the settlement of the issues. He was later informed by telephone that his son had died and travelled home the following day. He was told that the child had not been sick but was suspected of having been poisoned. He saw the child's clothes, which he said smelt of a cattle drug. However, on cross-examination, he confirmed that he was in Nairobi at the material time, could not tell what happened to the child, could not tell whether the child poisoned himself, and had no direct evidence against the accused.
9. PW6, Jackline Mogoi, the Assistant Chief of Ikoro Sub-location, testified that on 10th August, 2023, she received information from a village elder that a lady had reported that a child had died the previous day. She proceeded to the home of PW5 and interrogated family members. PW5 had not yet arrived from Nairobi. She was told that PW5 and the accused had an unresolved dispute. The family suspected the accused. PW6 saw the child's T-shirt under the bed and said it smelled of cattle drug. She informed DCI Nyamarambe. According to her, the accused was present, depressed and crying, and said the child had complained of stomach ache and that she suspected he had taken cattle drug. No bottle of the alleged drug was recovered.
10. On cross-examination, PW6 stated that her statement did not say that the accused had told her that the child had taken poison, and that the village elder was the one who gave her the information. She further confirmed that toxicology showed the child was not poisoned. In re-examination, she stated that she found the accused's mother-in-law and father-in-law at the home, that the mother-in-law was the one she questioned, and that the accused was crying and too depressed to be questioned.
11. PW7, Jane Nabututu Waya, a Government Analyst at the Government Chemist, Kisumu, testified that she received blood, stomach contents, liver, kidney and urine samples from the body of the deceased for toxicological analysis. Her report was that no poisonous substance was detected. She later received clothing said to belong to the deceased, namely a shawl, trousers, socks and two shirts. Upon analysis, no toxic chemical was detected in those exhibits either. On cross-examination, she confirmed that she did not personally collect the exhibits from the scene and that the second batch of exhibits was received several months after the first analysis.
12. PW8, Police Constable Anthony Kiragu, was the investigating officer. He testified that on 10th August, 2023, he received information from PW6 about a suspected poisoning incident. He proceeded to the scene with Chief Inspector Joseph Ngewa. The family indicated that the deceased, then aged about two years and eight months, had been playing with another minor when he began vomiting and complaining of a stomachache. He was rushed to Gucha Sub-County Hospital, where he died while undergoing treatment.
13. PW8 further testified that the accused was suspected because there were alleged marital differences between her and PW5. He noted a pungent smell from the deceased's mouth and suspected diazinon pesticide, although no pesticide was recovered from the scene. He forwarded body samples to the Government Chemist and later submitted the clothing after the first toxicology report returned negative. He confirmed that the subsequent report was also negative.
14. On cross-examination, PW8 was firm that both toxicology reports were negative. He stated that the initial suspicion was that the accused had poisoned the child. He conceded that the post-mortem report referred to a head injury due to blunt force trauma as a contributing factor, but that he had no direct evidence that the accused contributed to that head injury.
The Defence Case
15. The accused gave sworn testimony. She stated that on 9th August, 2023, she went to the river to fetch water and left the deceased at home. When she returned, the deceased came from where he had been playing with other children while touching his stomach and appearing to be in pain. She asked her mother-in-law what the problem could be and was told it might be discomfort from the food he had eaten earlier.
16. The accused testified that she took the child into the house, but his condition deteriorated. As the child ran towards her in pain, he fell backwards. She carried him, and he became unconscious. She then screamed for help. PW1 responded and helped take the child to the hospital. The accused denied administering poison to the deceased, assaulting him, or in any way causing his death. She further stated that there was no poison in the house.
Issues for Determination
17. I have considered the prosecution evidence, the defence case and the written submissions. The issues arising for determination are:
a. whether the death of the deceased and its cause were proved;
b. whether the accused, by an unlawful act or omission, caused the death of the deceased; and
c. whether malice aforethought was established.
The Law
18. Section 203 of the Penal Code provides that any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. Section 204 provides the punishment for murder. Section 206 sets out the circumstances under which malice aforethought may be deemed to be established, including an intention to cause death or grievous harm, knowledge that the act or omission will probably cause death or grievous harm, an intent to commit a felony, or an intention to facilitate flight or escape from custody after committing or attempting to commit a felony.
19. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal restated the three elements of murder as: the death of the deceased and the cause of that death; that the accused committed the unlawful act which caused the death; and that the accused had malice aforethought.
20. The burden of proof rests throughout on the prosecution and never shifts to the accused. The accused is presumed innocent unless and until the prosecution proves guilt beyond a reasonable doubt. The principle in Woolmington v DPP [1935] AC 462 remains the golden thread of criminal law.
21. Where a case rests on circumstantial evidence, the court must be satisfied that the circumstances from which the inference of guilt is drawn are cogently and firmly established; that they unerringly point to the accused; and that, taken cumulatively, they form a complete chain leaving no reasonable hypothesis other than guilt. That is the principle in Kipkering Arap Koske & Another v Republic (1949) 16 EACA 135, Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990.
22. Section 111 of the Evidence Act is also relevant where facts are especially within the knowledge of an accused person. It does not relieve the prosecution of the legal burden of proof. It, however, permits the court, once a prima facie evidential foundation has been laid, to examine whether the explanation offered by the accused raises a reasonable doubt on matters peculiarly within her knowledge. Section 119 of the Evidence Act further permits the court to presume the existence of facts likely to have happened, regard being had to the common course of natural events and human conduct.
23. On malice aforethought, the court may consider the nature of the injury, the part of the body targeted, the weapon or force used, and the conduct of the accused before, during and after the incident. That approach is consistent with the well-known principles in Republic v Tubere s/o Ochen (1945) 12 EACA 63
Analysis
24. There is no dispute that Derrick Ombui Ogisi died on 9th August 2023. On the cause of death, the court has the benefit of the pathologist's oral evidence and the toxicology evidence. PW4 initially suspected poisoning pending toxicological analysis and noted head injury due to blunt force trauma as a contributing factor. When toxicology ruled out poisoning, she clarified that the cause of death was head injury due to blunt force trauma.
25. I therefore find that the prosecution proved that the deceased died from head injury due to blunt force trauma, and not from poisoning. The negative toxicology reports did not weaken the prosecution's case on the cause of death. They clarified the cause of death and dispelled the initial suspicion of poisoning.
26. The next question is whether the fatal injury was attributable to the accused. There was no direct eyewitness who saw the accused strike the deceased. The deceased was a toddler aged about two years and eight months. He was not a person capable of self-care, self-protection or giving an account of how he sustained the fatal injury. The accused was his mother and immediate caregiver. PW5, the father, was away in Nairobi. The accused had been sent home with the child pending resolution of marital differences. The child fell ill and became unconscious in the domestic setting, where the accused was the person immediately attending to him.
27. Offences committed within the privacy of a home, and especially against a child of tender years who cannot speak for himself, are often proved by circumstantial evidence.
28. Those facts placed the circumstances in which the child sustained the fatal injury peculiarly within the accused's knowledge.
29. The explanation given by the accused is that the child was playing with other children, and he went to her complaining of stomach pain, and later fell backwards as he ran towards her. I have weighed that explanation against the medical evidence. The post-mortem did not disclose a minor injury consistent with an ordinary fall. It disclosed a frontal subgaleal haematoma measuring about 7 by 5 centimetres, a skull injury at the back of the head, parietal-occipital subgaleal injury and cerebral oedema. PW4 confirmed that the injuries occurred before death and, after poisoning was excluded, that the head injury was the cause of death.
30. The explanation of an accidental fall does not reasonably account for the nature, multiplicity and seriousness of those head injuries. It also does not explain why the account surrounding the child's collapse was initially framed around stomach ache, vomiting and suspected poison or cattle drug, yet toxicology excluded poison in the body samples and on the clothes. No poison, cattle drug bottle or other toxic substance was recovered from the house or scene.
31. I am alive to the evidence of PW5, PW6 and PW8 that they had no direct evidence that the accused caused the head injury.. The law does not require direct evidence where the circumstantial chain is complete.
32. The suggestion that the child had been playing with other children also does not create a reasonable hypothesis inconsistent with guilt. There was no evidence that another adult assaulted the child, no evidence that another child inflicted the severe head trauma, and no medical evidence that a normal childhood fall or play incident accounted for the injuries found by PW4. The bare possibility of an accident or an unidentified third party is not enough to displace the proved circumstances.
33. I therefore reject the accused's defence as not true. It did not raise a reasonable douby on the case of prosecution.. The evidence establishes that the deceased sustained fatal blunt-force head trauma while in the immediate care and custody of the accused, his mother and caregiver; that the accused gave no credible account of how that fatal injury was sustained; and that the alternative theories of poisoning, accidental fall or intervention by another person were not supported by the evidence.
34. Taken cumulatively, the circumstances were cogently and firmly established. They point unerringly to the accused as the person responsible for the fatal injury. They form a complete chain and leave no reasonable hypothesis other than that the accused, by an unlawful act, caused the death of the deceased. I find that the actus reus of murder was proved beyond a reasonable doubt.
35. I now turn to malice aforethought. The deceased was a vulnerable toddler. The fatal injury was to the head, a delicate and vital part of the body. The injury was not superficial. It involved subgaleal injuries, a skull injury and cerebral oedema. A person who applies the blunt force of that degree to the head of a child aged about two years and eight months must know that death or grievous harm will probably result.
36. The accused's conduct after the incident, including screaming for help, does not displace malice aforethought. It may show panic after the event, but it does not explain the fatal injury or weaken the inference arising from the nature of the injury and the vulnerability of the deceased. Nor does the absence of a recovered weapon defeat the prosecution's case, since the medical evidence proved blunt-force trauma and the circumstantial evidence identifies the accused as the person responsible.
37. I have also considered whether the facts would support only a lesser verdict of manslaughter. In my view, they do not. The force necessary to cause the head injuries described by PW4, applied to a toddler under the accused's care, brings the case within section 206(a) and (b) of the Penal Code. Malice aforethought was proved beyond a reasonable doubt.
38. The prosecution therefore proved all the ingredients of murder: the death of the deceased and its cause; that the death was caused by the unlawful act of the accused; and that the accused acted with malice aforethought.
Disposition
39. I find that the prosecution has proved the charge of murder against Edna Magoma Matagi beyond a reasonable doubt.
40. I accordingly find the accused, Edna Magoma Matagi, guilty of the murder of Derrick Ombui Ogisi contrary to section 203 as read with section 204 of the Penal Code, and convict her accordingly under section 322(2) of the Criminal Procedure Code.
T.A ODERA
JUDGE
29.6.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 29 TH DAY OF JUNE 2026.
In the presence of:
Mr. Koima for the State
Mr. Magara for the Accused
Accused
Court Assistant: Kipchirchir
Koima : No previous records.
Magara : I seek a pre-sentence report .
Koima : We seek social inquiry report to include the views of the victim
Order : pre sentence report be filed and served to defence within 15 days from today Mention on 22.7.26 .
T.A ODERA
JUDGE
29.6.26
JUDGMENT
1. The accused, Edna Magoma Matagi, is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars are that on the 9th day of August, 2023, at Ikoro Sub-location in Gucha South Sub-County within Kisii County, she murdered Derrick Ombui Ogisi.
2. The accused denied the charge. The prosecution called eight witnesses. At the close of the prosecution's case, the accused was placed on her defence. She gave sworn testimony and called no witnesses. The defence filed written submissions urging the court to find that the prosecution's case was founded on suspicion and that the essential ingredients of murder had not been proved.
The Prosecution Case
3. PW1, Christine Kerubo Omboke, testified that on 9th August, 2023, she heard screams from across the road. When she rushed to the scene, she found the accused running towards the road. She took the child, who appeared unconscious, to Gucha Sub-County Hospital, where he unfortunately died while receiving treatment. On cross-examination, she stated that there was a foul smell from the child's mouth, but she could not confirm whether it was poison.
4. PW2, Milkah Kerubo Onchore, testified that she was informed by members of the public that her grandson had consumed poison and had been taken to the hospital. She went to the hospital and was informed that he had died. According to her, when she asked the accused what had happened, the accused said that she did not know. On cross-examination, she confirmed that she did not know what had happened and that people only thought the child could have consumed paraffin.
5. PW3, Samuel Ombui Mong'are, testified that the accused was his daughter-in-law and that she lived with them with her son, the deceased. He stated that on the material day he was attracted by screams and, on rushing to the scene, found PW1 carrying the deceased towards the road. The child was taken to Gucha Sub-County Hospital. PW3 stated that he had no direct evidence that the accused had committed the offence.
6. PW4, Dr Leah Obosi Okworo, a pathologist at Kisii County Teaching and Referral Hospital, produced the post-mortem report. She testified that she conducted the post-mortem examination at Gucha District Hospital on 15th August, 2023. The body was of a male child of African descent, aged about two years, with moderate pallor. Externally, there was no cyanosis or oedema, but there were red-brown stains on the lips. Internally, the gastric contents had a strong, pungent smell. In the head, she noted a frontal subgaleal haematoma measuring about 7 by 5 centimetres, a skull injury at the back of the head, parietal-occipital subgaleal injury and features of cerebral oedema.
7. PW4 initially formed the opinion that the cause of death was suspected poisoning pending toxicological analysis, with head injury due to blunt force trauma as a contributing factor. After the toxicology report was read to her, and it showed no poison, she stated that the head injury could also be considered a cause of death. In cross-examination, she confirmed that the injuries occurred before death, that the toxicology report did not confirm poisoning, and that, in view of the negative toxicology report, the cause of death was head injury due to blunt force trauma. On re-examination, she stated that her conclusion on the cause of death would be the head injury in view of the negative toxicology report.
8. PW5, Erick Ombui Ogisi, is the deceased's father and the accused's husband. He testified that he was living and working in Nairobi at the material time. He and the accused had marital differences, and he sent her home with the child pending the settlement of the issues. He was later informed by telephone that his son had died and travelled home the following day. He was told that the child had not been sick but was suspected of having been poisoned. He saw the child's clothes, which he said smelt of a cattle drug. However, on cross-examination, he confirmed that he was in Nairobi at the material time, could not tell what happened to the child, could not tell whether the child poisoned himself, and had no direct evidence against the accused.
9. PW6, Jackline Mogoi, the Assistant Chief of Ikoro Sub-location, testified that on 10th August, 2023, she received information from a village elder that a lady had reported that a child had died the previous day. She proceeded to the home of PW5 and interrogated family members. PW5 had not yet arrived from Nairobi. She was told that PW5 and the accused had an unresolved dispute. The family suspected the accused. PW6 saw the child's T-shirt under the bed and said it smelled of cattle drug. She informed DCI Nyamarambe. According to her, the accused was present, depressed and crying, and said the child had complained of stomach ache and that she suspected he had taken cattle drug. No bottle of the alleged drug was recovered.
10. On cross-examination, PW6 stated that her statement did not say that the accused had told her that the child had taken poison, and that the village elder was the one who gave her the information. She further confirmed that toxicology showed the child was not poisoned. In re-examination, she stated that she found the accused's mother-in-law and father-in-law at the home, that the mother-in-law was the one she questioned, and that the accused was crying and too depressed to be questioned.
11. PW7, Jane Nabututu Waya, a Government Analyst at the Government Chemist, Kisumu, testified that she received blood, stomach contents, liver, kidney and urine samples from the body of the deceased for toxicological analysis. Her report was that no poisonous substance was detected. She later received clothing said to belong to the deceased, namely a shawl, trousers, socks and two shirts. Upon analysis, no toxic chemical was detected in those exhibits either. On cross-examination, she confirmed that she did not personally collect the exhibits from the scene and that the second batch of exhibits was received several months after the first analysis.
12. PW8, Police Constable Anthony Kiragu, was the investigating officer. He testified that on 10th August, 2023, he received information from PW6 about a suspected poisoning incident. He proceeded to the scene with Chief Inspector Joseph Ngewa. The family indicated that the deceased, then aged about two years and eight months, had been playing with another minor when he began vomiting and complaining of a stomachache. He was rushed to Gucha Sub-County Hospital, where he died while undergoing treatment.
13. PW8 further testified that the accused was suspected because there were alleged marital differences between her and PW5. He noted a pungent smell from the deceased's mouth and suspected diazinon pesticide, although no pesticide was recovered from the scene. He forwarded body samples to the Government Chemist and later submitted the clothing after the first toxicology report returned negative. He confirmed that the subsequent report was also negative.
14. On cross-examination, PW8 was firm that both toxicology reports were negative. He stated that the initial suspicion was that the accused had poisoned the child. He conceded that the post-mortem report referred to a head injury due to blunt force trauma as a contributing factor, but that he had no direct evidence that the accused contributed to that head injury.
The Defence Case
15. The accused gave sworn testimony. She stated that on 9th August, 2023, she went to the river to fetch water and left the deceased at home. When she returned, the deceased came from where he had been playing with other children while touching his stomach and appearing to be in pain. She asked her mother-in-law what the problem could be and was told it might be discomfort from the food he had eaten earlier.
16. The accused testified that she took the child into the house, but his condition deteriorated. As the child ran towards her in pain, he fell backwards. She carried him, and he became unconscious. She then screamed for help. PW1 responded and helped take the child to the hospital. The accused denied administering poison to the deceased, assaulting him, or in any way causing his death. She further stated that there was no poison in the house.
Issues for Determination
17. I have considered the prosecution evidence, the defence case and the written submissions. The issues arising for determination are:
a. whether the death of the deceased and its cause were proved;
b. whether the accused, by an unlawful act or omission, caused the death of the deceased; and
c. whether malice aforethought was established.
The Law
18. Section 203 of the Penal Code provides that any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. Section 204 provides the punishment for murder. Section 206 sets out the circumstances under which malice aforethought may be deemed to be established, including an intention to cause death or grievous harm, knowledge that the act or omission will probably cause death or grievous harm, an intent to commit a felony, or an intention to facilitate flight or escape from custody after committing or attempting to commit a felony.
19. In Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal restated the three elements of murder as: the death of the deceased and the cause of that death; that the accused committed the unlawful act which caused the death; and that the accused had malice aforethought.
20. The burden of proof rests throughout on the prosecution and never shifts to the accused. The accused is presumed innocent unless and until the prosecution proves guilt beyond a reasonable doubt. The principle in Woolmington v DPP [1935] AC 462 remains the golden thread of criminal law.
21. Where a case rests on circumstantial evidence, the court must be satisfied that the circumstances from which the inference of guilt is drawn are cogently and firmly established; that they unerringly point to the accused; and that, taken cumulatively, they form a complete chain leaving no reasonable hypothesis other than guilt. That is the principle in Kipkering Arap Koske & Another v Republic (1949) 16 EACA 135, Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990.
22. Section 111 of the Evidence Act is also relevant where facts are especially within the knowledge of an accused person. It does not relieve the prosecution of the legal burden of proof. It, however, permits the court, once a prima facie evidential foundation has been laid, to examine whether the explanation offered by the accused raises a reasonable doubt on matters peculiarly within her knowledge. Section 119 of the Evidence Act further permits the court to presume the existence of facts likely to have happened, regard being had to the common course of natural events and human conduct.
23. On malice aforethought, the court may consider the nature of the injury, the part of the body targeted, the weapon or force used, and the conduct of the accused before, during and after the incident. That approach is consistent with the well-known principles in Republic v Tubere s/o Ochen (1945) 12 EACA 63
Analysis
24. There is no dispute that Derrick Ombui Ogisi died on 9th August 2023. On the cause of death, the court has the benefit of the pathologist's oral evidence and the toxicology evidence. PW4 initially suspected poisoning pending toxicological analysis and noted head injury due to blunt force trauma as a contributing factor. When toxicology ruled out poisoning, she clarified that the cause of death was head injury due to blunt force trauma.
25. I therefore find that the prosecution proved that the deceased died from head injury due to blunt force trauma, and not from poisoning. The negative toxicology reports did not weaken the prosecution's case on the cause of death. They clarified the cause of death and dispelled the initial suspicion of poisoning.
26. The next question is whether the fatal injury was attributable to the accused. There was no direct eyewitness who saw the accused strike the deceased. The deceased was a toddler aged about two years and eight months. He was not a person capable of self-care, self-protection or giving an account of how he sustained the fatal injury. The accused was his mother and immediate caregiver. PW5, the father, was away in Nairobi. The accused had been sent home with the child pending resolution of marital differences. The child fell ill and became unconscious in the domestic setting, where the accused was the person immediately attending to him.
27. Offences committed within the privacy of a home, and especially against a child of tender years who cannot speak for himself, are often proved by circumstantial evidence.
28. Those facts placed the circumstances in which the child sustained the fatal injury peculiarly within the accused's knowledge.
29. The explanation given by the accused is that the child was playing with other children, and he went to her complaining of stomach pain, and later fell backwards as he ran towards her. I have weighed that explanation against the medical evidence. The post-mortem did not disclose a minor injury consistent with an ordinary fall. It disclosed a frontal subgaleal haematoma measuring about 7 by 5 centimetres, a skull injury at the back of the head, parietal-occipital subgaleal injury and cerebral oedema. PW4 confirmed that the injuries occurred before death and, after poisoning was excluded, that the head injury was the cause of death.
30. The explanation of an accidental fall does not reasonably account for the nature, multiplicity and seriousness of those head injuries. It also does not explain why the account surrounding the child's collapse was initially framed around stomach ache, vomiting and suspected poison or cattle drug, yet toxicology excluded poison in the body samples and on the clothes. No poison, cattle drug bottle or other toxic substance was recovered from the house or scene.
31. I am alive to the evidence of PW5, PW6 and PW8 that they had no direct evidence that the accused caused the head injury.. The law does not require direct evidence where the circumstantial chain is complete.
32. The suggestion that the child had been playing with other children also does not create a reasonable hypothesis inconsistent with guilt. There was no evidence that another adult assaulted the child, no evidence that another child inflicted the severe head trauma, and no medical evidence that a normal childhood fall or play incident accounted for the injuries found by PW4. The bare possibility of an accident or an unidentified third party is not enough to displace the proved circumstances.
33. I therefore reject the accused's defence as not true. It did not raise a reasonable douby on the case of prosecution.. The evidence establishes that the deceased sustained fatal blunt-force head trauma while in the immediate care and custody of the accused, his mother and caregiver; that the accused gave no credible account of how that fatal injury was sustained; and that the alternative theories of poisoning, accidental fall or intervention by another person were not supported by the evidence.
34. Taken cumulatively, the circumstances were cogently and firmly established. They point unerringly to the accused as the person responsible for the fatal injury. They form a complete chain and leave no reasonable hypothesis other than that the accused, by an unlawful act, caused the death of the deceased. I find that the actus reus of murder was proved beyond a reasonable doubt.
35. I now turn to malice aforethought. The deceased was a vulnerable toddler. The fatal injury was to the head, a delicate and vital part of the body. The injury was not superficial. It involved subgaleal injuries, a skull injury and cerebral oedema. A person who applies the blunt force of that degree to the head of a child aged about two years and eight months must know that death or grievous harm will probably result.
36. The accused's conduct after the incident, including screaming for help, does not displace malice aforethought. It may show panic after the event, but it does not explain the fatal injury or weaken the inference arising from the nature of the injury and the vulnerability of the deceased. Nor does the absence of a recovered weapon defeat the prosecution's case, since the medical evidence proved blunt-force trauma and the circumstantial evidence identifies the accused as the person responsible.
37. I have also considered whether the facts would support only a lesser verdict of manslaughter. In my view, they do not. The force necessary to cause the head injuries described by PW4, applied to a toddler under the accused's care, brings the case within section 206(a) and (b) of the Penal Code. Malice aforethought was proved beyond a reasonable doubt.
38. The prosecution therefore proved all the ingredients of murder: the death of the deceased and its cause; that the death was caused by the unlawful act of the accused; and that the accused acted with malice aforethought.
Disposition
39. I find that the prosecution has proved the charge of murder against Edna Magoma Matagi beyond a reasonable doubt.
40. I accordingly find the accused, Edna Magoma Matagi, guilty of the murder of Derrick Ombui Ogisi contrary to section 203 as read with section 204 of the Penal Code, and convict her accordingly under section 322(2) of the Criminal Procedure Code.
T.A ODERA
JUDGE
29.6.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 29 TH DAY OF JUNE 2026.
In the presence of:
Mr. Koima for the State
Mr. Magara for the Accused
Accused
Court Assistant: Kipchirchir
Koima : No previous records.
Magara : I seek a pre-sentence report .
Koima : We seek social inquiry report to include the views of the victim
Order : pre sentence report be filed and served to defence within 15 days from today Mention on 22.7.26 .
T.A ODERA
JUDGE
29.6.26