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JudgmentThe Republic VS MARGARET WAMBUI THUO8 min read

The Republic VS MARGARET WAMBUI THUO

High Court at Kajiado High Court · · Stella Mutuku

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL CASE NO. 19 OF 2018

REPUBLIC……………………………………………………………………PROSECUTOR

VERSUS

MARGARET WAMBUI THUO…………………………………………………ACCUSED

JUDGMENT

The Charge

  1. Margaret Wambui Thuo, the accused herein, 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 6th September 2018 at Oloolua Area in Ngong Township, Kajiado County in the Republic of Kenya, she murdered Denis Saruni Mutunkei.
  2. The accused pleaded not guilty to the charges. The matter was subjected to a full trial in which eight (8) witnesses testified for the prosecution. On 28th May 2024, the prosecution closed its case.

The Evidence

  1. The evidence on record reveals that the accused and the deceased were in a relationship. On 5th September 2018 at around 9.50pm, the accused went to the home of Jocylene Murugi, PW2, and told her that the deceased had refused to open the door for her. PW2 is aunt to the deceased. PW2 lived in the same compound with the deceased. The accused left and returned shortly to inform PW2 that the deceased had opened the door for her.
  2. On 6th September 2018, the following morning at about 9.00am, Kevin Lotiken, PW1, a cousin of the deceased received a distress call from his grandmother. PW1 went to find out what the matter was. He found the deceased lying down crying in pain. His clothes were soaked in blood. PW1 rushed the deceased to hospital at Trinity Hospital in Ngong where he was referred to Kikuyu Mission Hospital. At Kikuyu Mission Hospital, the deceased was referred to Karen Hospital where he died while undergoing treatment.
  3. PW1 testified that at Trinity Hospital the deceased told him that he had been stabbed by the accused after a disagreement.
  4. Anthony Kariuki Kamau, PW4, also knew the accused and the deceased were in a relationship. On 6th September 2018 at 9.00am while at Imana Stage he spotted the accused riding as a pillion passenger on a motorcycle of someone known to PW4 as Waite. She was in a hurry. This is the morning after the stabbing of the deceased. Later PW4 learned that the deceased had been stabbed.
  5. In addition to the above evidence, there is evidence of PW6, PC Quinto who presented Safaricom call data and location of subscribers in several telephone numbers including telephone number 0716238945 registered in the name of the accused. The accused’s whereabouts as shown through the data from her telephone number is shown from Maombi Hill in Nyandarua on 5th Septembers 2018 to Nakuru to Nairobi and finally to Oloolua in Ngong where she arrived on the same day at about 9.30pm. According to PW6, the accused remained in Oloolua until 6th September 2018 until 10.30am when her location changed to Ngong Town.

Accused’s defence

  1. In her sworn defence, the accused told the court that she lived in Pipeline Nairobi since 2014. She testified that she met the deceased in 2016 in Thika Town at a wedding event where the deceased was a caterer. They became friends and continued meeting until 2018 when the deceased introduced her to his family. She said they used to visit each other with the intention of getting married.
  2. Her evidence is that on 5th September 2018, the deceased called her and told her to go visit him. She started the journey but around 1.00pm, the deceased called her and told her not go visit. He switched off the phone. She however continued with the journey and arrived at accused’s home at 7.00pm and asked deceased’s aunt Murugi to open the door for her. She told Murugi that the deceased was not picking her calls. Using Murugi’s phone, the accused sent a message to the deceased who came for her within two minutes.
  3. She testified that they went to deceased’s house where she found that the deceased had been drinking. They continued drinking in the bedroom until midnight when she slept and left him drinking. She woke up the following morning at 6.00am, showered and cleaned up. That the deceased asked her who Isaac was and she told him that he was a friend and that they had not gone for a date. An argument started and the deceased started beating her. He pushed her on the bed and started strangling her while on top to her. She told him to stop but he did not. She picked a knife placed on top of a table near the bed and stabbed him. The deceased stood and the accused got a chance to escape. She left the house and escaped through the gate. She stated that she was pregnant at the time and that the deceased told her not to scream.
  4. On cross-examination, the accused stated that she was in shock and did not think of telling anyone in the homestead what had happened and that from that date to 8th October 2018 when she was arrested she did not report to the police.

Analysis and determination

  1. The offence of murder is created by section 203 of the Penal Code which provides that:

Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

  1. This section can be broken down as follows for the offence of murder to be complete:
  2. There must be the person causing the death (perpetrator).
  3. There must be the person killed (murder victim).
  4. There must be an unlawful act or omission causing death.
  5. There must be the intention to cause that death (malice aforethought).
  6. The burden of proof lies with the prosecution to prove beyond reasonable doubt the above elements of murder. This burden of proof does not shift to the defence.
  7. The defence of the accused has made determination of this case easier. The accused has confirmed prosecution case that both she and the deceased were in a relationship; that she travelled on 5th September 2018 to go to visit the deceased; that she arrived at his home late in the evening around 7.00pm but there was a problem because the deceased was not reachable through his phone; that she sought help from deceased’s aunt, PW2, who lived in the same compound with the deceased and that with the help of PW2, the accused managed to reach the deceased and they went to his house.
  8. What happened thereafter is not known by any other person except the accused since the deceased is no more. It is to her evidence that this court must turn to. She said they drunk until midnight and in the morning a disagreement occurred after the deceased sought to find out from her who Isaac was. She did not tell the court how the said Isaac came to be q topic of discussion between the two. Is it that the deceased checked her phone and found out the name? This court may not know.
  9. From that disagreement, the accused told the court that the deceased started beating her. This court is not privy to the distance between the house where the deceased and the accused were and the other houses in the compound. But it seems no one heard the commotion if the evidence of the accused is to be believed.
  10. The accused said that she was overpowered, pinned on the bed and strangled; that she was unable to extricate herself; that she took a knife placed at a table in the bedroom and stabbed the deceased at the back and that after the deceased stood up, she was able to escape.
  11. This evidence proves beyond reasonable doubt that the deceased died. The postmortem report shows that the deceased died of cardio-pulmonary failure due to penetrating trauma. This evidence confirms that the act causing death was stabbing, an unlawful act. The person inflicting the stab is the accused, a fact she has also admitted.
  12. The evidence presented to court proves beyond reasonable doubt that the accused, by an unlawful act (stabbing) caused the death of the deceased. The only element that I need to determine is whether this death was premeditated. In other words, whether the accused possessed malice aforethought in stabbing the deceased.
  13. I reiterate that the burden of proof does not shift to the accused at any time during a criminal trial. The human nature is such that the accused must have been unhappy by the accused’s behaviour of being unreachable. She was bend on visiting him despite his having told her not to come and switching off his phone. Is that sufficient to prove malice? Did she form an intention to kill him? Would she have announced her desire to meet the deceased at any cost even asking his aunt to help her reach him knowing that she intended she was going to commit murder?
  14. A careful scrutiny of the evidence makes me wonder how, someone pinned to the bed and being strangled to an extent that she could not extricate herself from the deceased’s grip, could stretch her hand, pick up a knife placed somewhere on a table in the bedroom and use it to stab the deceased on his back, could happen. There are suspicions as to the circumstances leading to that stabbing. Suspicions or not, I remind myself that the law is clear that suspicion, however strong, cannot provide a basis for inferring guilt which must be proved by evidence (see Joan Chebichii Sawe v Republic [2003] eKLR).
  15. It was upon the prosecution to prove malice aforethought on the part of the deceased. There is no evidence on what happened inside that house where the only people present were the deceased and the accused. The defence of the accused has created doubts that go to the benefit of the accused on the element of malice aforethought. Consequently, with no proof that the accused possessed malice aforethought, the conclusion is clear that the offence proved is not murder.
  16. After careful analysis and evaluation of the evidence I am convinced that the offence committed by the accused is manslaughter under section 202 of the Penal Code. Manslaughter is an offence under section 202(1) of the Penal Code that is committed in the following manner:

Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter.

  1. In the offence of manslaughter, all the elements present for the offence of murder are present save for the malice aforethought. Having found all the elements save for malice aforethought having been proved against the accused, I find her guilty of manslaughter contrary to section 202 as read with section 205 of the Penal Code. Orders accordingly.

Dated, signed and delivered this 17th day of January 2025.

    The Republic VS MARGARET WAMBUI THUO The Republic VS MARGARET WAMBUI THUO