JUDGMENT
1. The accused person Jennifer Nziku Wambua is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge are that on the night of 4/8/2019 at Shimo Estate in Wote sub-county within Makueni County she murdered Kennedy Mutunga Muasa.
2. The accused was represented by Mr. Hassan and on 17/09/2019 she pleaded not guilty to the charge.
3. The matter proceeded for hearing before Hon. Ong’udi LJ on 16/12/2019 who heard 5 witnesses. It continued before Hon. Dulu J on 1/12/2020 who heard 5 witnesses and ruled that the accused had a case to answer on 2/12/2022. I took over the matter on 31/5/2023 and heard the defence on 14/5/2024.
4. At this stage, the only issue for determination is whether the prosecution has proved beyond a reasonable doubt that accused committed the offence of murder contrary to section 203 as read with section 204 of the Penal Code against the accused person to warrant a conviction.
5. Mr. Mathenge who represented the accused throughout the trial filed written submissions dated 12/6/2024.
6. The case for the prosecution was that the accused person and the deceased were living as husband and wife at Shimo Estate in Wote town. At the material time they had a baby who was about 9 months old.
7. PW1 PC Samuel Mokasa Nyabuti, PW2 David Mutua Kimitu were their neighbours at the ‘plot’ – which had 9 houses – PW3 Christine Muasa was the sister to the deceased. PW4 Nancy Mwikali Muasa mother to deceased, PW5 Anastacia Ndunge a nurse, friend to PW3, PW6 Dr. Alex Makau – the pathologist, PW7 No. 46623 Sgt Paul Kiili Crime Scene Officer, PW8 PC Bernard Kiprotich a police officer who lived in the neighborhood, PW9 Ruth Wangare Government Analyst, PW10 10 Francis Kyalo the Investigating Officer.
8. On 4/8/2019 around 6:00 pm the PW1 was in his house around 5 meters from that of the accused. He was resting when he heard a woman screaming. On getting out of the house he found his neighbour Jennifer screaming. She had a knife in her right hand. At the same time, he saw her husband – Kennedy Mutinda Muasya lying down outside their house, he was bleeding from the lower abdomen.
9. PW1 also screamed for help – but none was immediately available and he decided to carry Kennedy on his back out of the compound to seek for help. He went for around 100meters – but he was getting heavier.
10. PW2 another neighbour who heard the screams came out of the house and did see Jennifer, accused holding a knife as she entered her house – he went out to assist in taking Kennedy to hospital.
11. PW9 had left the house to go to the local kiosk only to return to screams – and learnt from neighbours that Kennedy had been stabbed with a knife – He noted that PW1 had carried Kennedy out of the plot for around 100 meters – in an effort to assist him. He (PW3) saw a Toyota fielder and requested the driver for assistance – and it is this motor vehicle that took them to Wote Referral Hospital.
12. The accused boarded the same motor vehicle which went to the hospital – according to PW1 and PW2 she was crying and praying for the recovery of her husband.
13. After his admission in hospital, they proceeded to the police station and booked the report.
14. PW3’s testimony was that between 7:00-8:00 pm on 4/8/2019, she received a call from the accused who was her sister in law telling her to rush to Makueni referral hospital to help Ken (the deceased) she did not give details and disconnected the call. The accused called her again asking her to go with a taxi or send her the number of the taxi driver. She asked accused what had happened – and accused told her that Ken had come home while drunk, taken a knife to stab her, they struggled – and she took the knife and stabbed him. She told her that Ken was unable to walk and was being assisted by neighbours. She then called and said they had found a taxi.
15. PW3 called PW5 her cousin Anne Ndunge a nurse at the hospital, she also went to the hospital and they met. PW5 went into the casualty where Ken was and came out to report that the situation was bad. They proceeded to the police station where Jennifer had gone. She said she had been with Jennifer in church that same day and was not aware of any domestic issues. She also said while at the police station Jennifer was just crying. She did not tell them anything.
16. PW5 confirmed received a phone call from PW1 at 7:30pm telling her that accused had rung her and told her she had stabbed Ken (deceased) by mistake. She asked her where they were and whether they had reported to the police. She told them they were at the hospital and PW5 met up with P3 at the hospital. PW5 went to casualty to check on Ken, and was told that he was already dead. She confirmed that it was indeed Ken and informed PW3. They proceeded to the police station where the accused was in the cells. She was just crying – asked where the child was she said the child was with neighbours. Together with police officers and the accused they proceeded to the house. PW5 said there were blood stains on the floor and the corridor and a blood stained knife on the floor. She said the police never asked her what she had seen in the house and that is why the information was not in the statement.
17. PW4 was the mother of the deceased. She got the information from PW1. She said she was not aware of any problems with her son and accused, she was not aware that he took alcohol.
18. The scenes of Crime Officer PW7 told the court that he was gazette No. 10284 of 6/12/2006. He received a CD from the Investigating Officer CPL Njoroge on 7/8/2019 which contained “murder photographs”. He produced the photos which showed inter alia: - both close up and long shot view of the door to the house and inside the house respectively close up view of the knife, (murder weapon); close up view of the deceased and the wound. He produced the photos and his certificate. He did not visit the scene. On cross examination he told the court that the photos did not indicate when they were taken, that the officer took photos with his phone but had not issued any certificate to show that the phone was in good condition.
19. On cross examination on the photo of the murder weapon, he testified that it appeared not to have blood stains. He said he gave instructions to the Investigating Officer on what to do with the scene. That he was not there to know whether they were followed; that he could not tell whether the scene was interfered with or whether the photos were interfered with before being headed on the CD. On re-examination, he testified that his instructions were complied with; that photos do not usually bear the date they were taken; but they had a date of printing. He said the chain of custody was good because the Investigating Officer took the photos, transferred to a CD and gave the CD to him.
20. PW9 was the government analyst – on 8/8/2019 the government chemist laboratory received from No. 81940 CPL Joseph Njuguna of DCI Makueni, accompanied by exhibit memo in triplicate – two items
A1 – a knife with a wooden handle in a khaki envelope.
A2 – blood sample of Kennedy Mutunga Muasa in a vacutainer.
21. The lab request was to examine the two items from DNA.
22. The knife was slightly stained with human blood. The DNA from blood on knife matched the DNA from the blood of deceased. She wrote a report which she produced as Ex 3a, Ex Memo and Pex 3b.
23. PW10 Retired Police Officer Francis Kyalo formerly of DCI Makueni told the court that he was the Investigating Officer in this case.
24. That on 4/8/2019, while on standby duty he received the murder report regarding the incident at Shimo Estate. He said with other officers he visited the scene – the house exhibited signs of disturbance as if there had been a fight – and there were blood stains both inside and outside the house. He recovered a blood stained knife. He had been told earlier that deceased had died at Makueni referral hospital. He proceeded there and observed a wound at the pelvis area. Accused was arrested and charged. He produced the knife as evidence.
25. On cross examination he said the scene was in disarray. He said he would not say that the accused was defending herself. He said the accused told him, which he could not testify to, that she had grabbed the knife from the deceased.
26. In the defence the accused gave a sworn statement of defence. She stated that Kennedy was her husband. They were living at Shimo Estate – in a rental house. She had a nine-month old baby. On 4/8/2019, he came home around 7:00pm. He was drunk. He asked what had been cooked. He was told – then he said he was not eating that food. She asked him whether he had brought medicine for the child who had been unwell when he had left in the morning. He told her he had not done so – and that they were bothering him, and that they had tired him. He began vita (fight). He poured the food – pushed down the gas cylinder – (the 6kg one). He took a knife. A struggle ensued where they were pushing each other and both fell down. After a while she noticed that he was not struggling – and on checking she saw blood. That is when she rushed out screaming. The neighbour came. She also rang the sister. She and the neighbours took him to hospital. The Dr. referred them to report the matter at the police station. They went there – and the OCS ordered that she be locked up. About midnight the PW1 and PW5 came and told her he had died. She said her daughter was now five years old. She said the deceased started the fight. She did not expect him to die; she did not intend to kill him. She regretted the incident and asked for forgiveness.
27. Counsel filed written submissions. On the ingredients of murder, she relied on R vs Nicholas Onyango Nyolo [2014] e KLR: where it is stated;
a) Proof of the fact and the cause of death of the deceased.
b) Proof that the death of the deceased was the direct consequence of an unlawful act or omission on the part of the accused which constitutes the “actus reus” of the offence.
c) Proof that the said unlawful act or omission was committed with malice after-thought which constitutes the “mens rea” of the offence.
28. She submitted that the prosecution had the legal burden to prove the charge of murder against the accused and cited Peter Mwangi Kariuki v R [2015] eKLR
“… Thus, the legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial the prosecution has failed to establish these to the appropriate standard, the prosecution will lose. It is clear the legal burden of proof in criminal cases is only one and rests on the shoulders of the prosecution. The burden of the prosecution in criminal cases is to establish its case beyond reasonable doubt …”
29. She submitted that the accused explained that she was in fear and her reaction was out of fear, that she had no knowledge or intention of stabbing the deceased. She screamed for help. She accompanied her husband to hospital while praying for his recovery; she willingly went to the police station. She did not attempt to run away.
30. Counsel put forward the defence of self defence on the part of the accused. She argued that accused was acting in her own defence and that of her child. She cited Sharm Pal Singh v R [1962] EA and Guzambizi Wesonga v R [1948] 15 EACA where the court stated;
“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable, it must have been under justifiable circumstances, for example in self defence or in defence of property.”
31. It was submitted further that the burden to negate self-defence lay with the prosecution. Reliance was made upon section 17 of the Penal Code and Palmer v Republic [1971] AC 814 where the court stated: -
“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but only do, what is reasonably necessary. But everything will depend upon particular facts and circumstances. Some attacks may be serious and dangerous; others may not be. If then is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then in a mediate defensive action may be necessary. If the moment is out of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. That may be no longer any link with a necessity of disproved, in which case as a defence it is rejected. In a homicide case this circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be out of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury”.
32. Further the accused relied on the Court of Appeal in Mokua v R [1976 – 80] KLR 1337 – where it was emphasized that;
“self defence is an absolute defence even on a charge of murder unless, in the circumstances of the case the accused applies excessive force”.
33. It was submitted that the prosecution had failed to prove murder and the court ought to acquit the accused.
34. That the evidence of the Dr. was that there was only one stab wound. It is submitted-
“The testimony of the doctor was that there was only a single stab wound and that the sharpness of the weapon faced upwards. It’s our submissions that the only time a sharp weapon can face upwards is if the deceased was on top of accused or if they were rolling on the floor and not when they were standing up. The same is consistent with the testimony of the accused person.
35. Counsel argued further that the case for the prosecution was based on circumstantial evidence – and cited Abanga alias Onyango v R Criminal Case No. 32/1990 (UR) where the set out what amounts to circumstantial evidence.
it is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else”.
and the oft cited Sawe v Republic [2003] e KLR 364 where the court stated
1. In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypotheses than that of his guilt.
2. Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on.
3. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.
36. The court is urged to find sufficient doubt in the case for the prosecution – and follow – Philip Muiruri Ndarugu v R for the proposition
“… a single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favourite child of the law and every benefit of doubt goes to him”.
37. I have carefully considered all the evidence, the submissions on record.
38. The issue for determination is whether the prosecution has proved the charge of murder against the accused person.
39. The ingredient of the offence of murder are well settled –
• The death of a person
• Through unlawful means
• By another person (the suspect)
• With malice aforethought.
40. The death of the deceased is not disputed by both the prosecution and the defence. The pathologist testified and produced the postmortem report dated 6/8/2019. The deceased had a single stab wound on the abdomen; left iliac fossa region measuring 42 cm penetrating into the abdominal cavity up to retroperitoneal space – perforating the small intestine, severing the left external iliac artery extending to the retroperitoneal muscles – cause of death – exsanguinating intraperitoneal hemorrhage as a result of severed left iliac artery secondary to stab wound.
41. All this means that the deceased died following a single stab wound that led to loss of blood clearly the death was not due to a natural cause.
42. The circumstances of the death were explained by the accused – that she and the deceased were involved in a fight. In her testimony it is the deceased who was the aggressor – having come home drunk and grabbed a knife to stab her – and in the struggle – she realized he was no longer breathing.
43. There was no eye witness to the stabbing and the only description of what transpired inside that house was the accused person’s description. The case for the prosecution is that it is the accused who took a knife and stabbed the deceased. PW1 told the court that he heard the screams of the complainant, came out and found the accused outside screaming and holding a knife. He is the one who went in and tried to save the deceased. The witnesses who were at the scene testified how distraught the accused was, how she was praying for her husband to get well – the sister in law told the court that accused told her that she had stabbed her husband. The court has to determine on the evidence before it what happened – to order for the known facts to the unknown. Their neighbours PW1, PW2 and PW8 were not aware of any quarrels between the accused and her husband. The family was not aware of any quarrels between the two who had been married for barely two years – clearly the prosecution did not lay a basis for malice aforethought. On the face of the post mortem report the police described it thus;
“On the 4th day of August 2019 at around 7:00pm the deceased who stays with his wife – Janeffer Nziku Wambu (accused) came home at Shimo estate while drunk, then a quarrel ensued between the two which resulted to a fight on the process the accused picked a knife and stabbed the deceased with it”.
44. It is said that the “accused picked a knife and stabbed the deceased” but there are no eye witnesses to that and no evidence has been led to show that the accused actually picked the knife and stabbed the deceased. We have two versions – the State says it is the accused who picked the knife and stabbed the deceased – the other version by the defence is that there was a fight where a knife was involved and in the struggle – the deceased was stabbed.
45. Without any evidence of previous issues between the two that would support the case for the prosecution, the other version appears more probable – that in the course of a fight between the two – the accused overpowered the deceased and stabbed him. The case for the prosecution supports this in that the police testified that the scene was disturbed in a manner to suggest that there had been a fight/struggle.
46. My view then is that death was caused by the accused – but it was not intended but was the outcome of the fight between the couple. The immediate happenings support this – she came out screaming for help – she rang the family, she tried to get help – she did everything she could in her circumstances then to try to save the situation – but it was too late.
47. There is no evidence of previous abuse of the accused or deceased by the other to support a conclusion that the accused had a reason to just pick the knife and stab her husband.
48. In the circumstances – I find that deceased was killed by the accused in the fight but there was no malice aforethought.
49. In the circumstances, I find that the prosecution has established the offence of manslaughter contrary to section 202 of the Penal Code.
50. The accused is convicted for the offence of manslaughter contrary to section 205 of the Penal Code.
Dated, Signed and Delivered in open court this 13th March 2025
Mumbua T Matheka
Judge
Accused Present
Ms Nelima Court Assistant
Mr. Kazungu for state
Mr. Hassan for the accused