INTRODUCTION
1. The accused person in this matter was charged with the offence of murder C/S 203 as read with 204 of the Penal Code.
2. The particulars on face of the information were that on the 27 th August 2022 at Bahati Estate, Kamukunji Sub county within Nairobi County the accused person murdered James Mungai Waruiru Alias Kadungo Alias Kadush.
3. The accused person pleaded not guilty and the matter proceeded to full trial during which the prosecution called a total of 9 witnesses.
PROSECUTION’S CASE
4. PW1 was Asha Wanjiru Wanjiku aged 17 years as at the time of the incident. She testified that on 26/8/2022 she was with her sister when her stepfather came home drunk asking the whereabouts of the mother violently.
5. The witness stated that the deceased asked; “Huyo mamako Malaya ameenda wapi? Amezoea kuenda and that he does everything for us and we do not pay’’.
6. It was then that the deceased removed a knife from his pocket and said ‘’ mimi leo najilipa na wewe’’. The witness went further to state that the deceased approached her and ordered her to undress. She then screamt for help but no one came to her help because according to her people around there were used to them fighting everyday.
7. According to the witness, before the deceased could do anything her mother entered the house and asked the deceased what he wanted to do to them.
8. Instead of responding to her mother, the deceased violently confronted her mother threatening to kill the family and a struggle started in the course of which both her mother and stepfather fell to the ground.
9. The witness PW1 went on to state that with the mother injured and fearing for her life she started running and that was when PW1 followed her and fled to her relatives.
10. Later on, she learned through her uncle that her stepfather (James) had died. The witness confirmed that her mother is the accused in the case.
11. Upon cross examination by Mr. Abed Advocate for the accused, PW1 stated that she could see well that her mother did not grab the knife from her stepfather. The witness went on to state that her stepfather charged at her mother and that was when they both fell down during the struggle.
12. PW2 Francisca Nthambi stated that on 27 th August 2023 a lady knocked on her door and told her that her neighbor had been stabbed. Pw2 went to the neighbor’s house and found the deceased crying in a pool of blood and they took him to Mary Immaculate Hospital and they were later referred to Mama Lucy Hospital where the deceased was pronounced dead.
13. The witness further stated that they proceeded to Jogoo road Police station reported the matter and recorded a statement. She went on to state that the deceased was her husband with whom they had a child and that she was told that Eva (accused) stabbed the deceased.
14. On cross-examination by Mr. Abed advocate for the accused PW2 stated that it was her neighbor Bahati who informed her that Eva had stabbed her husband and she found the deceased in a bad shape, he was not able to respond when she talked to him.
15. PW3 was Susan Njeri who testified that on 27/8/2022 at 10:00 a.m one Mwangi informed her that her brother had been stabbed and had been taken to Mama Lucy Hospital. The witness further testified that her brother Njenga who was at the hospital informed her at about 11:00 a.m that her brother had died.
16. The witness told the court that when they went to the house of the accused, they found a lot of blood and that police officers came to the scene and took photos.
17. Pw3 proceeded on to state that she went to the hospital and found police officers taking photos of the body but she did not see the body.
18. PW3 testified that she recorded a statement at Buruburu police station and that it was Mwangi who informed her that her brother Mungai had been stabbed. She went further to state that she knew Eva prior to the incident as Mama Nikisha.
19. Upon cross -examination, PW3 stated that it was Mwangi who informed her that, her brother had been stabbed. She did not witness the incident.
20. The witness further stated that the deceased was not known well to her but the deceased used to live with the accused.
21. PW4 Rachel Njoki Irungu testified that on 27/8/ 2023 a man knocked on her door and informed her that her sister had fought with her husband. She stated that she took her sister’s child who was aged 4-5 years and in the morning she went to Kiambu to do her business. She further stated that on Monday at 8:00 PM someone knocked at her door violently and started searching the house . she was arrested and taken to Buruburu police station and locked up. That was when she got to know the reason of her arrest, she was taken back home and her statement was recorded.
22. Upon cross-examination the witness stated that she knew the deceased had a relationship with the accused who was her sister. According to her, the accused had no criminal past , she was a coward and not of a violent character.
23. On re-examination PW4 stated that she did not witness the incident.
24. PW5 NO.55339 Corporal John Mathenge attached at Wanthungu Police station testified that on 9/12/2022 he received a call at 7:00 AM from the area sub chief Mr. Jorge who informed him he had received information that a certain person who had committed murder was wanted by the DCI and they needed his assistance.
25. The witness went further to state that accompanied by his colleague PC Loice Lucy, they went up to the house of the accused’s sister where the assistant chief identified her and they arrested her and proceeded to the police station where they called the DCIO Buruburu who later picked her up. He identified the accused as the person that they had arrested.
26. Upon cross-examination PW5 sated that he had no idea about the death how it occurred and his role was limited to the arrest of the accused person.
27. PW6 Diana Wanjiku testified that on 31 st August 2022 she went to Mama Lucy Hospital where her brother’s body John Mungai was lying to identify it for post mortem. She identified the body and a post mortem was done.
28. According to the witness, the post mortem was done by Dr. Ongech who stated that the deceased died of a stab wound on the lower left rib at the heart area. The post mortem form was marked PMFI-1 dated 31/8/2022. The postmortem form bore the name of the deceased and that of the identifying witness Pw6.
29. PW6 stated similarly that she did not witness the incident thus she could not testify as to what preceded the injury.
30. PW7 No. 72533 CPL Ali Ibrahim the investigation officer from DCI Buruburu investigations department testified that on 27 th August 2022 on his patrol duties around 1500 hours he got a call from OCS Jogoo police station that informed him there was a stabbing incident reported vide OB 29/27/8/2022 at 1500 Hrs at Jogoo Police Station.
31. The OCS told him that the incident had happened at Bahati estate. He rushed to the scene in the company of two other officers. The officers went to the house of Evelyne Wanjiku where they recovered a bent knife, a white T-shirt with blood stain, a pair of white shoes with blood stains.
32. The witness further stated upon examination of the knife there were no blood stains detected on the knife.
33. The T-shirt was heavily stained with blood of human origin. The long blue trouser and the shoes were moderately stained with blood of Human origin.
34. The DNA profiles generated following the analysis were tabulated in the report. The analyst concluded that the DNA profiles generated from the T-shirt item B and the long trouser item C and shoes Item D all matched those from the blood sample marked F from James Mungai Wariru. the deceased with a probability of random Match of 1 in 7.225 x 10 Sq. 33.”
35. On cross- examination, PW7 stated that they recovered a knife from the house which was not dusted for fingerprints and Asha Wairimu PW 1 recorded a statement. According to him, pw1 upon interrogation stated that it was the deceased who had the knife and he had threatened to have sexual intercourse with her.
36. The witness went on to state that Pw1 informed him that when she was being threatened, by the deceased, the accused person entered the house and the accused threatened to kill her.
37. According to PW7, at the scene they found things scattered all over and Asha did not tell them that she could see clearly the whole episode.
38. PW8 Dr. Atandi a government Pathologist based at Mama Lucy Hospital stated that he did the autopsy on 31/8/2022 on the body of James Mungai Wairuru which was identified by his wife Fransiscah and an uncle Peter Njuga.
39. The pathologist testified that the body was well preserved. There were signs of conjunctival parlour a sign of low blood levels in the body. The pathologist also observed that there was cyanosis on the finger nails signifying lack of sufficient oxygen in the body.
40. The chest stab wound was at the 7th inter costal space between 7th & 8th rib. The wound was 3 cm wide and 10 cm deep. The wound extended towards the heart. The body did not have any defensive injuries on external examination.
41. There was also no evidence of a struggle or protracted physical injury to the deceased. According to the pathologist , on internal examination, the significant finding was that there was blood surrounding the heart also known as cardiac tamponade.
42. The same cavity had blood in it and blood clots. The pathologist testified further that upon removing the blood from the cavity, he visualized a stab wound in the left ventricle of the heart. In his opinion the cause of death was cardiac tamporans (accumulation of excess fluid in the sac around the heart) due to single stand wound to the chest.
Observing the injury it is possible that one could inflict injury on himself MF1 - 1 the Post mortem form is produced as Exhibit 1.”
43. Upon cross- examination, Dr. Atandi stated that he filled the postmortem police form 23A. He informed the court that the front page of the Post mortem form is filled by the police officer investigating the matter and it is not part of his opinion.
44. He further stated that the deceased could have inflicted the injury on himself.
45. PW9 Henry Kiptoo Sang testified that he had the DNA analysis report he prepared of the items brought on 19/9/2022 at the Government Chemist. The witness in his report stated that he received the following exhibits from No. 72533 Cpl. Ali Ibrahim DCI Buruburu;-
1. Knife which was in khaki envelope marked A.
2. Light blue T-shirt marked B.
3. Blue Jeans marked C.
4. A pair of cream shoes marked D.
5. White trouser marked E.
6. Blood sample marked F said to be blood from the deceased James Mungai.
7. Nail chippings from the deceased
8. On 22/12/2022 the witness obtained buccal swab samples form Everlyne Wanjiku the accused who was escorted by Cpl. Ali Ibrahim of DCI Buruburu.
46. The request was in the form of a police memo form requesting that they conduct DNA analysis and determine the relationship of the Exhibits.
47. Upon conducting the analysis and these were his findings;-
a) No blood stains on the knife- Item A.
b) T-shirt - item B was heavily stained with blood of Human original.
c) Long trouser item C & the shoes item D were found to be moderately stained with blood of human Origin.
The witness went ahead and conducted a DNA analysis on the blood -stained exhibits and the reference sample and the bucal swab. His findings are tabulated in the report.
The witness stated that based on the DNA profiles he formed the opinion that the DNA profiles generated from the T-shirt, Trouser and the shoes all matched those of the deceased generated from the blood sample marked F- James Mungai Waruru
The analyst’s report dated 4th September 2023 was produced as an exhibit as P exhibit No. 9
48. Upon cross examination, the witness testified that he got the knife from the Investigating officer. The analyst informed the court that they do not conduct finger print dusting at their labs and that it is done at the DCI.
49. The narration above basically sums up the prosecution’s case against the accused.
50. The court placed the accused to her defense and she elected to give a sworn statement as hereunder;-
DEFENSE CASE
51. Everlyne Wanjiku Wairimu testified that on 27/1/2025 at about 11:00 pm her boyfriend James Mungai Wariuru(the deceased) called her to take her out and they went to a bar and at about 1:00 am they differed in the club. She went on to state that she left him and went to a friend’s place at Majengo where she stayed up to about 3:00 AM.
52. The accused further stated that she later left to go back home to Bahati Estate and upon going inside her house she found her boyfriend holding a knife and had broken items in the house.
53. She went on to state that her children Asha Wanjiru and Nafisa wairimu were in the house and when she asked him what was happening the deceased told her that he would kill all of them.
54. According to the accused person (Everlyne) the deceased turned and approached her and they started struggling with him. In the course of that struggle, they both fell and when she got up, she left him on the floor and ran to her parents at Kiambu.
55. The accused further to stated that she called her friend by the name “Cucu” who invited her to a place in Busia and while in Busia she got a call from her sister Rachel who informed her the deceased had died and that they were saying it was her who killed him that’s when she decided to come back and clear her name in Kiambu whereupon she was arrested.
56. Upon cross examination by the prosecution counsel, the accused person stated that the two children were aged 15 years and 6 years. According to the accused while at the club the night of the incident they had differed with the deceased because another man by the name John talked to the accused. She went on to state that the deceased was her boyfriend for three years and they lived well together and he would get violent only when he was drunk. Further the accused stated that the deceased would quarrel her accusing her of consuming his money and the fact that she had refused to give him a child. He would beat her severally and that she had reported the incidents of assault at Jogoo Road police station and in Shauri Moyo police station.
57. The accused person went on to state that at 3:00 AM when she decided to go back to her house in Bahati she found the deceased holding a knife and as they struggled he fell down holding it in his hand and she woke up and fled to save herself.
58. She narrated that she feared he could get hold of her and assault her. She explained that she left the scene because she knew he would be violent in pursuit of her and she fled to Kiambu and later Busia leaving the kids knowing her sister would take care of them.
59. The accused had indicated that she would have called Sophie and Daisy Atieno as her witnesses but she did not manage to call them in her defence.
60. According to the accused person, she stayed in Busia from 28/8/2022 to 8/12/2022 and that she had previously fled to Mombasa for a month to her friend Sophie.
61. According to the accused as at the time she fled the scene she did not know what had happened to the deceased.
62. She went further to state that Daisy Atieno was a lady who lived in Majengo where she fled to and she would have called her as a witness.
63. On re-examination, the accused person stated that the two children knew the aunt’s place and she never held the knife at any point.
64. She further stated that she took off to break away from the deceased and avoid contact with him. The accused further told the court that she did not intend to kill him.
65. The accused did not call any witness as she had indicated.
66. The defense closed its case with that evidence.
ANALYSIS AND DETERMINATION
67. The accused person faces a charge of murder contrary to section 203 as read with 204 of the Penal Code. The prosecution in order to establish the offence must lead evidence to prove mens rea as well as actus reus. The deceased must be shown to have died as a result of the unlawful and intentional act of the accused. It is not every death that would result in an accused person being convicted for murder. It must be proved beyond any reasonable doubt that the killing was pre-meditated and that the accused acted with malice aforethought.
68. Section 206 of the Penal Code sets out the circumstances which constitute 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 caused death or to do grievous harm to any person whether such 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 such person is the person actually killed or not, although such knowledge is accomplished by indifference whether death or grievous harm is caused or not, or by a wish that it may be caused or not, or by a wish that it may not be caused.
(c)An intention to commit a felony.
(d)An intention by an act or omission to facilitate the flight or escape from custody of any person who attempts to commit a felony.
68. In the instant case the deceased died of injuries that were inflicted in the course of a scuffle. PW1 testified that on the night in question, when the deceased arrived in the house, he began by hrlling insults to her about her mother’s conduct and that he threatened to defile her in revenge. From the evidence, the accused person burst into the house, found the deceased and immediately a struggle ensued between them. As at that time the deceased had already drawn a knife with which he had threatened PW1 as he ordered her to undress.
69. It is clear from that evidence that the deceased triggered the events leading to the assault that culminated into his demise. Simply put, the accused person did not start the scuffle but was provoked into it by the deceased. He clearly was the author of his own misfortune by his incestuous act.
70. In Joseph Kimani Njau –vs- Republic [2014] eKLR the Court of Appeal stated that:-
“In all criminal trials, both the actus reus and the mens rea are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both the actus reus and mens rea have been proved to the required standard. In the instant case, the trial court erred in failing to evaluate the evidence on record and to determine if the specific mens rea required for murder had been proved by the prosecution…In the present case, the circumstances that led to the fight between the appellant and deceased remain unclear; the motive or reason for the fight remains uncertain; it is an error of law to invoke circumstantial evidence when malice aforethought for murder has not been established. We find that mens rea for murder was not proved. Failure to prove mens rea for murder means that an accused person may be convicted of manslaughter which is an unlawful act or omission that causes death of another.”
71. Although there is no direct evidence that the accused stabbed the deceased, circumstantial evidence surrounding the injury coupled with the conduct of the accused person immediately after the event points to the guilt of the accused.
72. Her immediate disappearance from the scene cannot be ignored and the far off distance she relocated to must have been in an attempt to evade arrest. That is not the conduct of an innocent man of reasonable mind. If indeed the court were to believe that the deceased stabbed himself then the question that would immediately arise would be, why would an innocent person who has witnessed a spouse injure himself or herself disappear from the house without caring whether that spouse had received medical attention and relocate to a remote part of the country?
73. The Court of Appeal in Musii Tulo vs. Republic (2014) eKLR expressed itself as follows on circumstantial evidence;-
“In order to ascertain whether or not the inculpatory facts put forward by the prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilty, we must also consider a further principle set out in the case of Musoke v. R (1958) EA 715 citing with approval Teper v. R (1952) AL 480 thus: -
'It is also necessary before drawing the inference of accused's guilty from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.'
74. Further, the Court of Appeal in Sawe- Vs- Republic [2003] KLR 364 at page 372 had this to say regarding circumstantial evidence: -…. 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…...
75. In this case there no circumstances that tend to weaken the inference of guilt against the accused in that the injury suffered by the deceased was sustained during a scuffle between the accused and the deceased. The injury was so severe that in all probability it was inflicted by the accused and not the deceased. It would have not been necessary for the accused to flee the scene when the deceased was on the ground and if at all the deceased had injured himself why would the accused not have called for help from her immediate neighbors?
76. The court does not therefore accept the theory advanced by the accused that the deceased injured himself in the course of the struggle and instead finds that there is circumstantial evidence linking the accused person to the stabbing of the deceased.
77. The stabbing was not intentional as per the facts presented through the evidence of PW1 who was the only eye witness to the incident. There was therefore no evidence to prove mens rea against the accused.
78. A charge of murder cannot therefore not be sustained unless the mens rea for murder is proved. The element of intention in committing the offence was examined in the English case of Hyam –vs- DPP [1974] 2 ALL ER 41 where Lord Diplock observed as follows: -
“No distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequent, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act.”
79. The deceased from the evidence of PW1 is the one who had the knife that eventually was used to inflict the fatal injury on him. Clearly from the evidence the accused did not arm herself to attack the deceased. PW1 in her evidence said that the deceased told her mother that that day he was to kill her together with her children.
80. It was at that point that PW1 said the two started struggling and fell down only for the accused to run out of the house leaving the deceased who was then bleeding on the ground. The accused person cannot be said in the circumstances to have had the necessary mens rea to commit the offence of murder however circumstantial evidence coupled with her conduct immediately after the scuffle with the deceased, irresistibly points to her as having stabbed the deceased.
81. The evidence tendered by the prosecution established that she immediately left the scene and fled to Busia a fact that she did not deny in her defense. If indeed the accused person had not stabbed the deceased, why would she flee from Nairobi to Busia only to return upon learning that the police were looking for her? The action of disappearance to Busia and Mombasa must have been in a bid to evade arrest. The conduct of the accused was indicative of guilt as was held in Republic Vs Simon Yele Samoyo [2017] KEHC 5447 (KLR) as was held by M. Odero, J :
“I do not buy this defence at all. If accused remained at his usual residence, the police would not have needed to search for him. The fact that police were searching for the accused means that he could not be traced at his usual residence. It is clear that after the death of his wife the accused went underground and that is why he was not arrested until three months later. The fact that accused abandoned his home after the incident is certainly indicative of a guilty mind and suggests that he could have had a hand in the death of the deceased.”
82. The totality of evidence tendered established beyond a reasonable doubt that the deceased died as a result of the injury he sustained in the hands of the accused and therefore the killing of the deceased was unlawful and unintentional on the part of the accused.
83. This court finds that there is no sufficient evidence to convict the accused for the offence of murder but finds that the evidence tendered by the prosecution established beyond a reasonable doubt that the accused person had committed the offence of Manslaughter contrary to Section 202 as read with 205 of the Penal Code. The accused is therefore convicted for the lesser offence of manslaughter in exercise of the court’s power under Section 179 (2) of the Criminal Procedure Code.
84. It is so ordered.
1. The accused person in this matter was charged with the offence of murder C/S 203 as read with 204 of the Penal Code.
2. The particulars on face of the information were that on the 27 th August 2022 at Bahati Estate, Kamukunji Sub county within Nairobi County the accused person murdered James Mungai Waruiru Alias Kadungo Alias Kadush.
3. The accused person pleaded not guilty and the matter proceeded to full trial during which the prosecution called a total of 9 witnesses.
PROSECUTION’S CASE
4. PW1 was Asha Wanjiru Wanjiku aged 17 years as at the time of the incident. She testified that on 26/8/2022 she was with her sister when her stepfather came home drunk asking the whereabouts of the mother violently.
5. The witness stated that the deceased asked; “Huyo mamako Malaya ameenda wapi? Amezoea kuenda and that he does everything for us and we do not pay’’.
6. It was then that the deceased removed a knife from his pocket and said ‘’ mimi leo najilipa na wewe’’. The witness went further to state that the deceased approached her and ordered her to undress. She then screamt for help but no one came to her help because according to her people around there were used to them fighting everyday.
7. According to the witness, before the deceased could do anything her mother entered the house and asked the deceased what he wanted to do to them.
8. Instead of responding to her mother, the deceased violently confronted her mother threatening to kill the family and a struggle started in the course of which both her mother and stepfather fell to the ground.
9. The witness PW1 went on to state that with the mother injured and fearing for her life she started running and that was when PW1 followed her and fled to her relatives.
10. Later on, she learned through her uncle that her stepfather (James) had died. The witness confirmed that her mother is the accused in the case.
11. Upon cross examination by Mr. Abed Advocate for the accused, PW1 stated that she could see well that her mother did not grab the knife from her stepfather. The witness went on to state that her stepfather charged at her mother and that was when they both fell down during the struggle.
12. PW2 Francisca Nthambi stated that on 27 th August 2023 a lady knocked on her door and told her that her neighbor had been stabbed. Pw2 went to the neighbor’s house and found the deceased crying in a pool of blood and they took him to Mary Immaculate Hospital and they were later referred to Mama Lucy Hospital where the deceased was pronounced dead.
13. The witness further stated that they proceeded to Jogoo road Police station reported the matter and recorded a statement. She went on to state that the deceased was her husband with whom they had a child and that she was told that Eva (accused) stabbed the deceased.
14. On cross-examination by Mr. Abed advocate for the accused PW2 stated that it was her neighbor Bahati who informed her that Eva had stabbed her husband and she found the deceased in a bad shape, he was not able to respond when she talked to him.
15. PW3 was Susan Njeri who testified that on 27/8/2022 at 10:00 a.m one Mwangi informed her that her brother had been stabbed and had been taken to Mama Lucy Hospital. The witness further testified that her brother Njenga who was at the hospital informed her at about 11:00 a.m that her brother had died.
16. The witness told the court that when they went to the house of the accused, they found a lot of blood and that police officers came to the scene and took photos.
17. Pw3 proceeded on to state that she went to the hospital and found police officers taking photos of the body but she did not see the body.
18. PW3 testified that she recorded a statement at Buruburu police station and that it was Mwangi who informed her that her brother Mungai had been stabbed. She went further to state that she knew Eva prior to the incident as Mama Nikisha.
19. Upon cross -examination, PW3 stated that it was Mwangi who informed her that, her brother had been stabbed. She did not witness the incident.
20. The witness further stated that the deceased was not known well to her but the deceased used to live with the accused.
21. PW4 Rachel Njoki Irungu testified that on 27/8/ 2023 a man knocked on her door and informed her that her sister had fought with her husband. She stated that she took her sister’s child who was aged 4-5 years and in the morning she went to Kiambu to do her business. She further stated that on Monday at 8:00 PM someone knocked at her door violently and started searching the house . she was arrested and taken to Buruburu police station and locked up. That was when she got to know the reason of her arrest, she was taken back home and her statement was recorded.
22. Upon cross-examination the witness stated that she knew the deceased had a relationship with the accused who was her sister. According to her, the accused had no criminal past , she was a coward and not of a violent character.
23. On re-examination PW4 stated that she did not witness the incident.
24. PW5 NO.55339 Corporal John Mathenge attached at Wanthungu Police station testified that on 9/12/2022 he received a call at 7:00 AM from the area sub chief Mr. Jorge who informed him he had received information that a certain person who had committed murder was wanted by the DCI and they needed his assistance.
25. The witness went further to state that accompanied by his colleague PC Loice Lucy, they went up to the house of the accused’s sister where the assistant chief identified her and they arrested her and proceeded to the police station where they called the DCIO Buruburu who later picked her up. He identified the accused as the person that they had arrested.
26. Upon cross-examination PW5 sated that he had no idea about the death how it occurred and his role was limited to the arrest of the accused person.
27. PW6 Diana Wanjiku testified that on 31 st August 2022 she went to Mama Lucy Hospital where her brother’s body John Mungai was lying to identify it for post mortem. She identified the body and a post mortem was done.
28. According to the witness, the post mortem was done by Dr. Ongech who stated that the deceased died of a stab wound on the lower left rib at the heart area. The post mortem form was marked PMFI-1 dated 31/8/2022. The postmortem form bore the name of the deceased and that of the identifying witness Pw6.
29. PW6 stated similarly that she did not witness the incident thus she could not testify as to what preceded the injury.
30. PW7 No. 72533 CPL Ali Ibrahim the investigation officer from DCI Buruburu investigations department testified that on 27 th August 2022 on his patrol duties around 1500 hours he got a call from OCS Jogoo police station that informed him there was a stabbing incident reported vide OB 29/27/8/2022 at 1500 Hrs at Jogoo Police Station.
31. The OCS told him that the incident had happened at Bahati estate. He rushed to the scene in the company of two other officers. The officers went to the house of Evelyne Wanjiku where they recovered a bent knife, a white T-shirt with blood stain, a pair of white shoes with blood stains.
32. The witness further stated upon examination of the knife there were no blood stains detected on the knife.
33. The T-shirt was heavily stained with blood of human origin. The long blue trouser and the shoes were moderately stained with blood of Human origin.
34. The DNA profiles generated following the analysis were tabulated in the report. The analyst concluded that the DNA profiles generated from the T-shirt item B and the long trouser item C and shoes Item D all matched those from the blood sample marked F from James Mungai Wariru. the deceased with a probability of random Match of 1 in 7.225 x 10 Sq. 33.”
35. On cross- examination, PW7 stated that they recovered a knife from the house which was not dusted for fingerprints and Asha Wairimu PW 1 recorded a statement. According to him, pw1 upon interrogation stated that it was the deceased who had the knife and he had threatened to have sexual intercourse with her.
36. The witness went on to state that Pw1 informed him that when she was being threatened, by the deceased, the accused person entered the house and the accused threatened to kill her.
37. According to PW7, at the scene they found things scattered all over and Asha did not tell them that she could see clearly the whole episode.
38. PW8 Dr. Atandi a government Pathologist based at Mama Lucy Hospital stated that he did the autopsy on 31/8/2022 on the body of James Mungai Wairuru which was identified by his wife Fransiscah and an uncle Peter Njuga.
39. The pathologist testified that the body was well preserved. There were signs of conjunctival parlour a sign of low blood levels in the body. The pathologist also observed that there was cyanosis on the finger nails signifying lack of sufficient oxygen in the body.
40. The chest stab wound was at the 7th inter costal space between 7th & 8th rib. The wound was 3 cm wide and 10 cm deep. The wound extended towards the heart. The body did not have any defensive injuries on external examination.
41. There was also no evidence of a struggle or protracted physical injury to the deceased. According to the pathologist , on internal examination, the significant finding was that there was blood surrounding the heart also known as cardiac tamponade.
42. The same cavity had blood in it and blood clots. The pathologist testified further that upon removing the blood from the cavity, he visualized a stab wound in the left ventricle of the heart. In his opinion the cause of death was cardiac tamporans (accumulation of excess fluid in the sac around the heart) due to single stand wound to the chest.
Observing the injury it is possible that one could inflict injury on himself MF1 - 1 the Post mortem form is produced as Exhibit 1.”
43. Upon cross- examination, Dr. Atandi stated that he filled the postmortem police form 23A. He informed the court that the front page of the Post mortem form is filled by the police officer investigating the matter and it is not part of his opinion.
44. He further stated that the deceased could have inflicted the injury on himself.
45. PW9 Henry Kiptoo Sang testified that he had the DNA analysis report he prepared of the items brought on 19/9/2022 at the Government Chemist. The witness in his report stated that he received the following exhibits from No. 72533 Cpl. Ali Ibrahim DCI Buruburu;-
1. Knife which was in khaki envelope marked A.
2. Light blue T-shirt marked B.
3. Blue Jeans marked C.
4. A pair of cream shoes marked D.
5. White trouser marked E.
6. Blood sample marked F said to be blood from the deceased James Mungai.
7. Nail chippings from the deceased
8. On 22/12/2022 the witness obtained buccal swab samples form Everlyne Wanjiku the accused who was escorted by Cpl. Ali Ibrahim of DCI Buruburu.
46. The request was in the form of a police memo form requesting that they conduct DNA analysis and determine the relationship of the Exhibits.
47. Upon conducting the analysis and these were his findings;-
a) No blood stains on the knife- Item A.
b) T-shirt - item B was heavily stained with blood of Human original.
c) Long trouser item C & the shoes item D were found to be moderately stained with blood of human Origin.
The witness went ahead and conducted a DNA analysis on the blood -stained exhibits and the reference sample and the bucal swab. His findings are tabulated in the report.
The witness stated that based on the DNA profiles he formed the opinion that the DNA profiles generated from the T-shirt, Trouser and the shoes all matched those of the deceased generated from the blood sample marked F- James Mungai Waruru
The analyst’s report dated 4th September 2023 was produced as an exhibit as P exhibit No. 9
48. Upon cross examination, the witness testified that he got the knife from the Investigating officer. The analyst informed the court that they do not conduct finger print dusting at their labs and that it is done at the DCI.
49. The narration above basically sums up the prosecution’s case against the accused.
50. The court placed the accused to her defense and she elected to give a sworn statement as hereunder;-
DEFENSE CASE
51. Everlyne Wanjiku Wairimu testified that on 27/1/2025 at about 11:00 pm her boyfriend James Mungai Wariuru(the deceased) called her to take her out and they went to a bar and at about 1:00 am they differed in the club. She went on to state that she left him and went to a friend’s place at Majengo where she stayed up to about 3:00 AM.
52. The accused further stated that she later left to go back home to Bahati Estate and upon going inside her house she found her boyfriend holding a knife and had broken items in the house.
53. She went on to state that her children Asha Wanjiru and Nafisa wairimu were in the house and when she asked him what was happening the deceased told her that he would kill all of them.
54. According to the accused person (Everlyne) the deceased turned and approached her and they started struggling with him. In the course of that struggle, they both fell and when she got up, she left him on the floor and ran to her parents at Kiambu.
55. The accused further to stated that she called her friend by the name “Cucu” who invited her to a place in Busia and while in Busia she got a call from her sister Rachel who informed her the deceased had died and that they were saying it was her who killed him that’s when she decided to come back and clear her name in Kiambu whereupon she was arrested.
56. Upon cross examination by the prosecution counsel, the accused person stated that the two children were aged 15 years and 6 years. According to the accused while at the club the night of the incident they had differed with the deceased because another man by the name John talked to the accused. She went on to state that the deceased was her boyfriend for three years and they lived well together and he would get violent only when he was drunk. Further the accused stated that the deceased would quarrel her accusing her of consuming his money and the fact that she had refused to give him a child. He would beat her severally and that she had reported the incidents of assault at Jogoo Road police station and in Shauri Moyo police station.
57. The accused person went on to state that at 3:00 AM when she decided to go back to her house in Bahati she found the deceased holding a knife and as they struggled he fell down holding it in his hand and she woke up and fled to save herself.
58. She narrated that she feared he could get hold of her and assault her. She explained that she left the scene because she knew he would be violent in pursuit of her and she fled to Kiambu and later Busia leaving the kids knowing her sister would take care of them.
59. The accused had indicated that she would have called Sophie and Daisy Atieno as her witnesses but she did not manage to call them in her defence.
60. According to the accused person, she stayed in Busia from 28/8/2022 to 8/12/2022 and that she had previously fled to Mombasa for a month to her friend Sophie.
61. According to the accused as at the time she fled the scene she did not know what had happened to the deceased.
62. She went further to state that Daisy Atieno was a lady who lived in Majengo where she fled to and she would have called her as a witness.
63. On re-examination, the accused person stated that the two children knew the aunt’s place and she never held the knife at any point.
64. She further stated that she took off to break away from the deceased and avoid contact with him. The accused further told the court that she did not intend to kill him.
65. The accused did not call any witness as she had indicated.
66. The defense closed its case with that evidence.
ANALYSIS AND DETERMINATION
67. The accused person faces a charge of murder contrary to section 203 as read with 204 of the Penal Code. The prosecution in order to establish the offence must lead evidence to prove mens rea as well as actus reus. The deceased must be shown to have died as a result of the unlawful and intentional act of the accused. It is not every death that would result in an accused person being convicted for murder. It must be proved beyond any reasonable doubt that the killing was pre-meditated and that the accused acted with malice aforethought.
68. Section 206 of the Penal Code sets out the circumstances which constitute 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 caused death or to do grievous harm to any person whether such 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 such person is the person actually killed or not, although such knowledge is accomplished by indifference whether death or grievous harm is caused or not, or by a wish that it may be caused or not, or by a wish that it may not be caused.
(c)An intention to commit a felony.
(d)An intention by an act or omission to facilitate the flight or escape from custody of any person who attempts to commit a felony.
68. In the instant case the deceased died of injuries that were inflicted in the course of a scuffle. PW1 testified that on the night in question, when the deceased arrived in the house, he began by hrlling insults to her about her mother’s conduct and that he threatened to defile her in revenge. From the evidence, the accused person burst into the house, found the deceased and immediately a struggle ensued between them. As at that time the deceased had already drawn a knife with which he had threatened PW1 as he ordered her to undress.
69. It is clear from that evidence that the deceased triggered the events leading to the assault that culminated into his demise. Simply put, the accused person did not start the scuffle but was provoked into it by the deceased. He clearly was the author of his own misfortune by his incestuous act.
70. In Joseph Kimani Njau –vs- Republic [2014] eKLR the Court of Appeal stated that:-
“In all criminal trials, both the actus reus and the mens rea are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both the actus reus and mens rea have been proved to the required standard. In the instant case, the trial court erred in failing to evaluate the evidence on record and to determine if the specific mens rea required for murder had been proved by the prosecution…In the present case, the circumstances that led to the fight between the appellant and deceased remain unclear; the motive or reason for the fight remains uncertain; it is an error of law to invoke circumstantial evidence when malice aforethought for murder has not been established. We find that mens rea for murder was not proved. Failure to prove mens rea for murder means that an accused person may be convicted of manslaughter which is an unlawful act or omission that causes death of another.”
71. Although there is no direct evidence that the accused stabbed the deceased, circumstantial evidence surrounding the injury coupled with the conduct of the accused person immediately after the event points to the guilt of the accused.
72. Her immediate disappearance from the scene cannot be ignored and the far off distance she relocated to must have been in an attempt to evade arrest. That is not the conduct of an innocent man of reasonable mind. If indeed the court were to believe that the deceased stabbed himself then the question that would immediately arise would be, why would an innocent person who has witnessed a spouse injure himself or herself disappear from the house without caring whether that spouse had received medical attention and relocate to a remote part of the country?
73. The Court of Appeal in Musii Tulo vs. Republic (2014) eKLR expressed itself as follows on circumstantial evidence;-
“In order to ascertain whether or not the inculpatory facts put forward by the prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilty, we must also consider a further principle set out in the case of Musoke v. R (1958) EA 715 citing with approval Teper v. R (1952) AL 480 thus: -
'It is also necessary before drawing the inference of accused's guilty from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.'
74. Further, the Court of Appeal in Sawe- Vs- Republic [2003] KLR 364 at page 372 had this to say regarding circumstantial evidence: -…. 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…...
75. In this case there no circumstances that tend to weaken the inference of guilt against the accused in that the injury suffered by the deceased was sustained during a scuffle between the accused and the deceased. The injury was so severe that in all probability it was inflicted by the accused and not the deceased. It would have not been necessary for the accused to flee the scene when the deceased was on the ground and if at all the deceased had injured himself why would the accused not have called for help from her immediate neighbors?
76. The court does not therefore accept the theory advanced by the accused that the deceased injured himself in the course of the struggle and instead finds that there is circumstantial evidence linking the accused person to the stabbing of the deceased.
77. The stabbing was not intentional as per the facts presented through the evidence of PW1 who was the only eye witness to the incident. There was therefore no evidence to prove mens rea against the accused.
78. A charge of murder cannot therefore not be sustained unless the mens rea for murder is proved. The element of intention in committing the offence was examined in the English case of Hyam –vs- DPP [1974] 2 ALL ER 41 where Lord Diplock observed as follows: -
“No distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequent, and the state of mind of one who does the act knowing full well that it is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act.”
79. The deceased from the evidence of PW1 is the one who had the knife that eventually was used to inflict the fatal injury on him. Clearly from the evidence the accused did not arm herself to attack the deceased. PW1 in her evidence said that the deceased told her mother that that day he was to kill her together with her children.
80. It was at that point that PW1 said the two started struggling and fell down only for the accused to run out of the house leaving the deceased who was then bleeding on the ground. The accused person cannot be said in the circumstances to have had the necessary mens rea to commit the offence of murder however circumstantial evidence coupled with her conduct immediately after the scuffle with the deceased, irresistibly points to her as having stabbed the deceased.
81. The evidence tendered by the prosecution established that she immediately left the scene and fled to Busia a fact that she did not deny in her defense. If indeed the accused person had not stabbed the deceased, why would she flee from Nairobi to Busia only to return upon learning that the police were looking for her? The action of disappearance to Busia and Mombasa must have been in a bid to evade arrest. The conduct of the accused was indicative of guilt as was held in Republic Vs Simon Yele Samoyo [2017] KEHC 5447 (KLR) as was held by M. Odero, J :
“I do not buy this defence at all. If accused remained at his usual residence, the police would not have needed to search for him. The fact that police were searching for the accused means that he could not be traced at his usual residence. It is clear that after the death of his wife the accused went underground and that is why he was not arrested until three months later. The fact that accused abandoned his home after the incident is certainly indicative of a guilty mind and suggests that he could have had a hand in the death of the deceased.”
82. The totality of evidence tendered established beyond a reasonable doubt that the deceased died as a result of the injury he sustained in the hands of the accused and therefore the killing of the deceased was unlawful and unintentional on the part of the accused.
83. This court finds that there is no sufficient evidence to convict the accused for the offence of murder but finds that the evidence tendered by the prosecution established beyond a reasonable doubt that the accused person had committed the offence of Manslaughter contrary to Section 202 as read with 205 of the Penal Code. The accused is therefore convicted for the lesser offence of manslaughter in exercise of the court’s power under Section 179 (2) of the Criminal Procedure Code.
84. It is so ordered.