1. The accused person HENRY THUKU KWIRA faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 of the Laws of Kenya. The particulars are that on the 6th day of January 2023, he murdered one Esna Ipale Imwana.
2. He pleaded not guilty and the state called a total 14 of witnesses.
PROSECUTION’S CASE
3. PW 1 – Lydia Imenea, PW 2 – Lorna Atiani and PW 3 are siblings to the deceased. They were all based in Busia when the incident occurred.
4. PW 4 – Titus ObunyoEka Pola, PW 5- Stephen Ekupaa Karani, PW 6-Julius Simba, PW 7- Evans Ndilema and PW 8- Patrick Ojuli were either distant relatives or kinsmen of the deceased Esna and members of the Iteso Welfare Society and all resident in Mombasa. PW 7 was their Chairperson. They all got to hear of the death, some visited the scene while others played one role or the other after receiving the news of Esna’s death.
5. For instance, PW 4 and PW 6 said they witnessed the arrest of the accused person.
6. PW 7 and PW 8 identified the body during the postmortem.
7. PW 9 was Abdul Aziz Mohammed a medical officer at Coast General Office. He produced the postmortem report which had been filled by Dr. Hanaan Jaffrey on 13/1/2023 as PEXT 1.
8. PW 10 was Esther Achieka a Clinical Officer based at Shakuff Medical Centre.
9. Her evidence was that she received the deceased on 06/01/2023 at around 10.00am. That Esna was in the company of her husband who was drunk. The complaint was serious abdominal pain and that she was 2 months pregnant.
10. PW 10 mentioned that the deceased mentioned having consumed mnazi the previous day. She added that she did the vitals for blood sample, pressure and temperature. That all was okay but the blood pressure was slightly low. She gave some medication.
11. PW 10 testified that the husband told her that Esna had hit herself on a stool. This prompted her to refer them to some ultra sound at the Coast General Hospital. She wrote the referral and the ultra sound requests. PEXT 2 and 3.
12. She identified the accused person as the one who took the deceased to their medical center.
13. PW 11 was Boniface Safari Kangoti a radiographer at Zaro Nursing Clinic. He received the deceased who was wheelchair bound and he conducted the scan. He produced his report as PEXT 3.
14. PW 12 was Erick Sageno Omache a Clinical Officer, Mtongwe outreach Coast General Hospital. He received the deceased at around 1.45pm. He testified that She complained of abdominal pain and swelling. He said that the patient gave a history of having slipped at her place while doing household chores and she hit her upper part of the abdomen. That she was 2 months pregnant.
15. He gave some first aid and sent her for some the ultra sound in an ambulance with a paramedic.
16. That upon return the paramedic informed him that the patient had collapsed in the ambulance. He confirmed the patient’s death at 3.00pm. He produced the incident book as PEXT. 4.
17. Upon cross examination he added that the patient said she fell on a stool when she slipped.
18. PW 13 was Mwidadi Omar a government analyst. He received an exhibit memo from Cpl. Kelvin Nyamai – (PEXT. 7), together with 6 exhibits.
i. Maroon bedsheet (A) PEXT 5a.
ii. White bedsheet (B) PEXT 5b.
iii. Pillow case – white with flava ( C) PEXT 5c.
iv. White pillowcase (D) PEXPT 5
v. Blood sample of the deceased – E
vi. Buccall Swab 7 of the suspect F
19. He produced his report as PEXT 6. The report shows that the white bed sheet (b) and white pillow case tested positive for human blood which matched the DNA profiles of both the deceased and the suspect.
20. PW 14 was CPL. Kelvin Nyamali, the Investigating Officer. He received the report, visited the scene where he arrested the accused person and recovered the bedsheets Ext 5(a, b, c and d).
21. He then visited the 3 hospitals where the deceased had been treated. He collected the treatment notes from Shakuff Medical Centre, Mtongwe Outreach Coast General Coast and Zaro Clinic.
22. He also attended and witnessed the Postmortem examination, took photographs and obtained blood samples for DNA examination.
RULING ON CASE TO ANSWER
23. The court analyzed the evidence adduced by the 14 prosecution witnesses and was satisfied that the accused person had a case to answer.
DEFENCE CASE
24. The accused person described the deceased as his wife whom he loved with his entire being. He stated that they both had met after their previous relationships failed and they were a perfect fit.
25. He narrated the events of the 05/01/2023. How they washed clothes, put them out to dry, had breakfast and then attended to their tenants who paid them since it was end month. He added that they went shopping and passed by a bar to enjoy themselves by 9.00am with friends.
26. That they also carried take away drinks and went home to continue having more drinks. That at around 3pm whilst at home, it got cloudy and the deceased decided to go get the clothes from the drying lines.
27. He said the lines were not far away and he continued chatting with her but he had to raise his voice.
28. He added that he ever went outside to empty the ash tray of cigarette butts and miraa (khat) debris and he saw her at the lines.
29. That upon getting back to the sitting room, he heard a sudden noi.se; a thud or puuf sound. That he went outside and saw that the late wife had fallen and next to her was a stool and a jerry can. That he assisted her get up and when he inquired from her what had happened, she had said she had slipped and had been hit by the stool on the stomach.
30. That she complained of pain. That they visited a nearby chemist and got painkillers. They also alerted his mother of the accident.
31. That by 9.00pm, the late Esna appeared to be better and so they continued to indulge in their drinking up to midnight and so, when they slept.
32. That the next morning, they woke up and the deceased was still in pain and they decided to go to hospital. This hospital visit, was however preceded by some drinks to cure the hangover which he described as “kutoa lock ( to unlock the system. ) Eventually they ended up at Shakuffu Medical Centre where the services were wanting.
33. That he took the deceased to Makadara hospital where again they were delayed before being sent for a scan to Zaro hospital.
34. That later on upon their return from Zaro hospital, the late wife was pronounced dead.
35. He blamed the medical facilities for the death of his wife. That they, the medics, were not present when needed.
THE LAW
36. 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.
37. 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
.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
38. There is no doubt that one Esna Ipahe Imwana was alive on the morning of 6/1/2024. She was however unwell and the accused person, under oath, admitted that he took her to 3 hospitals and she was pronounced dead at around 3.00pm. He admitted he moved her body to the mortuary. This death was confirmed by her relatives and kinsmen who saw her body in the mortuary and who witnessed the postmortem.
39. The postmortem report PEXT 1 as well as the case report from Mtongwe Outreach Hospital PEXT 6,confirm the death.
CAUSE OF DEATH
40. The post mortem form (police 23A) was produced by PW 12. Externally, the doctor noted multiple linear bruises the right and left upper limbs. Bruises on the lower abdomen linear bruises on the thighs and bilateral knee joint. Linear bruise measuring about 5cm in length and the midback and mid axillary line. Bruises on the posterior neck. Facial bruises, Defiance hematoma and right posterior upper limb.
Hematoma – anterior left lower limb.
Hematoma left upper arm.
On the internal appearance all the other systems were intact apart from the digestive system where the doctor noted.
‘Blood stains on the gut and pus’. Perforated small intestine with hematoma (2 perforates) Hematoma on the lower abdominal wall.
41. From the observation, the pathologist formed the opinion that the cause of death was Septoria Secondary to perforated gut Secondary to blunt Faena Abdominal Trauma.
42. This finding supported the sonographers finding of “Features of intra-peritoneal hemorrhage suggestive of internal injuries”.
43. The deceased had complained of abdominal pain in the 3 medical facilities where she was attended to and the cause of this pain was confirmed to be perforated small intestines.
44. There was no other finding of suggestion and so the court is satisfied with the pathologist findings.
CAUSE OF INJURY
45. The hard nut to crack is what caused these 2 perforations? Or what was this blunt trauma?
46. To answer this question, we must first note that apart from the accused person, no one else witnessed the incident. There was no eye witness, nor CCTV nor any other evidence. None of the 14 prosecution witnesses saw the events leading to the injury.
47. The Investigating Officer rests his case on what he says is the alteration of the covering report from Mtongwe outreach Coast General Hospital. He produced the two copies where there is same visible alteration.
48. The card reads –
“Arrived at 1.45pm
c/o having been hit by a blunt object. Beneath the word hit - one can see the word beaten over written so the original sentence was “beaten by a blunt object – stool yesterday.”
49. It is the alteration that the investigating officer says made him believe the deceased person was assaulted by the accused person.
50. Indeed such am alteration should be a red flag and the investigating was not wrong in querying the document. The key question is, did he do enough to prove, beyond reasonable doubt that that the accused person assaulted the deceased? To answer this question, we must look at all the evidence surrounding the report that was made.
51. P10 was the first one to attend to the deceased and her evidence was that she swas told that she fell and was hit by a stool.
52. PW 9 the radiographer said the patient said she was hit by a blunt object. He also did not see any external injuries.
53. PW 8 said the victim’s husband said she fell on a stool’.
54. From all this, its emerges that it is not obvious what transpired so as to cause the injury to the deceased.
55. Even the document which the Investigating Officers says was altered, from beaten to hit,reads hit/beaten by a blunt object. Not hit with or beaten with, which would connote someone using the stool to as a weapon. It is unfortunate that the nurse from the Mtongwe Outreach Hospital who made the alterations was not called to clarify the changes. I however note that she is not the one who attended to the deceased so even if she had been called to testify, she would not have given direct evidence, though she would have explained the change in words.
56. Having said that, I find that; that change or alteration of the word hit and beaten, cannot be the sole reason to doubt the other medical officers or to convict the accused person. There was not even an allegation of foul play nor did anyone say that the said nurse interfered with treatment notes.
57. This is a case where the Investigating Officer ought to have done more to get the clear picture of what happened. He did some desk research and waited for those who presented themselves. That is how we ended up with over 10 witnesses who had no idea what happened. Instead of calling many witnesses from Busia who had no clue of what happened, he could have put more effort on getting tangible evidence.
58. He did not get a neighbor or a friend to shed light on the relationship between the deceased and the accused person. He did not even say he made an attempt and failed.
59. He did not document the scene especially where the accused person said the deceased had fallen. He seemed to fully rely on the report by the officials of the Iteso Community. Unfortunately, none of the reportees especially PW 6 – 7 and 8 had any tangible evidence against the deceased. They only heard and reported that the accused had killed the wife. Full stop. Nothing to do with who told them or how they got to know.
60. It is only PW 7 who mentioned some quarrels between the deceased and the accused person. I however found the evidence of these officials’ suspect. PW7 did not say when he got to know of these quarrels, who told him, nor did he mention any report by the deceased. The other members also, were too eager and they contradicted themselves. For instance, PW 4 says when they went to arrest the accused they found him standing near the door.PW 6 on the other side says they found him sleeping. This makes their evidence a bit incredible. They are the ones who reported that the deceased had been killed by Thuku but none of them disclosed their source of information;
61. From all this, we cannot connect the accused to the injury and that means that the prosecution did not discharge the evidential burden. The accused person gave his defence which was not disproved by the state.
62. The Defence through the learned Advocate Mr. Weloba pointed out that the 3 medical practitioners who attended to the deceased all gave evidence and they said the history given by the deceased was falling on a stool.
63. This was captioned in the evidence of PW 9 Erick Sageno and the report he made. Its noted that the he was the one attending clinician and the cover report was made by the nurse who did not talk to the victim.
64. The other strange issue is the finding of the external injuries noted during the postmortem. None of the other medical personnel noted them. At what point where they sustained? We do not know. Who on what caused them? Again no answer.
65. The defence team has submitted that there was no evidence of any bad relationship or ill will between the accused and the deceased person and as earlier said – no one else witnessed the incidence.
66. The accused person states that the deceased fell and was hurt by a stool. Could she have sustained those other injuries as a result of the fall? Again no answer.
67. It must not be lost that the burden of proof rests upon the prosecution and they should have provided the answers to all those questions. They did not do so.
68. The Investigating Officer produced the bedsheets with some blood stains. Unfortunately, we were told how old the blood stains were. Worse still, none of the medical officers mentioned any external injury or blood.
69. In fact even the post mortem report does not mention an cut or laceration. So, what was the source of the blood? No answer. Obviously, these two were a couple and their DNA being present on their beddings can have many explanations. It was upon the state to explain this but they did not do so.
70. The treating doctors all said they did not see any external injury . Could the they have been lying?
71. I have looked at all the evidence and it does not appear to be a likely scenario. The nurse from Shakuff Medical Centre, Esther Adineko, PW 8, did not have any kind words for the accused person. She said he was drunk shown by shouting and staggering and they could not communicate well. That he even fell asleep. She had to go to look for his mother to take the deceased for the scan. PW 8 also mentioned that the deceased told her she had taken mnazi the previous night. This supports the accused person versus of events.
72. The accused person, also, gave evidence showing that there was no love lost between him and PW 8 whom he said abandoned the deceased for hours only to saunter back with earphones. So, these two did not appear to have connived to hide the truth.
73. Erick Sagro, PW 10, also said the history given was she slipped at her place and injured herself. Under cross examination he said she fell on a stool when she slipped.
74. So all the explanations given were that it a fall. No one mentioned that they saw or they heard anyone, including the deceased say that the accused person beat up the deceased.
75. I must point out that I did not take the evidence of the prosecution witnesses and so I cannot comment on their demeanor. I have however noted the contradictions in some of their evidence.
76. The accused person put up a spirited defence and he kept on repeating how he loved his wife ‘na nafsi yake yote’,( all his being.) As earlier stated none of the prosecution witnesses brought up any report or any episode of violence between the two.
77. The more pressing issue is that no one witnessed the events of the said evening and no one ever says the deceased implicated the accused person in any dying declaration. She was attended to in 3 medical facilities and one of them even collude to her mentioning the accused person as the one who had injured her. There was a lot of unity amongst the Iteso Community and they were all were he murdered her but none of them said how he did it or who told them what happened.
78. The postmortem report does mention some defensive trauma, but I noted that this document was paid for by the relatives and kinsmen of the deceased and it differs Materially with evidence adduced by the other medical people – especially on the aspect of external injuries.
79. All the medical notes were produced by the prosecution and so when they differ, one can only conclude the evidence was not credible. On that basis, I cannot convict the accused person.
80. By some strange coincidence, today I also handled a different case Mombasa criminal case number E O36 OF 2023 whose facts are eerily similar to this one. The spouse, sustained severe abdominal injuries, with perforation of the intestines. The accused therein was the live in spouse or boyfriend and there was no other witness.
81. The only difference in the two cases is that the deceased in that case, told as many people as she could, that the accused had assaulted her by stomping on her stomach with tough shoes. She called her father, sister, his mother and reported the assault. She also told the duty officer at her place of work and all the medical personnel she met, that the accused assaulted her.
82. In that case I was able to use the evidence of all these witnesses as admissible dyeing declarations.
83. In the present case, we do not have even one single witness who says that the deceased. Esna implicated the accused person. She was able to communicate when she went to hospital and she even said she was two months pregnant and had consumed mnazi. She also had the opportunity to speak in confidence as PW10 said the accused even went to sleep under a tree at some point.
84. I therefore find that the state did not prove that the accused person inflicted the injury that caused the death of the deceased Esna Ipale Imwana.
85. They also did not prove any intention to either kill or cause grievous harm.
86. Accordingly, I give him the benefit of doubt and acquit him of the charge of murder contrary to section 203 as read with Section 204 of the Penal Code as stated in the information dated 23/01/2024.
87. He may be set at liberty unless if otherwise lawfully held but under the following conditions.
88. I have found that the charges against the accused person cannot stand and he has been acquitted for lack of evidence. The charge cannot even be substituted with that of manslaughter.
89. I also found that the investigating officer and the prosecution did not conduct thorough investigation. I mentioned how they called 7 relatives or acquaintances who did not have any shred relevant of evidence. It is what I can only described as lazy investigation.
90. As I was going through the file I came through the pre bail report which paints a different aspect of the accused person which is not how he presented himself as a loving spouse. The report shows that he is a violent person, which is exacerbated by substance abuse and some schizophrenia and hallucinations.
91. This report was not evidence and could not be used to determine the case.
92. The court would however be irresponsible if it were to ignore such information once it has come to its attention. This is especially as it touches on public safety.
93. Accordingly, I am placing the accused person on probation for a period of 2 years under section 4 (b) of the Probation of Offenders Act. This will help monitor him and supervise his resettlement and reintegration into society. He is warned and advised that he must fully comply with the directions by the probation officer and avoid any violence or substance abuse.
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 Weloba for the defence
Ms. Maina for the state
Ms Bebora Court Assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE