1. Upon arraignment of Maxine Muringo Wahome, the Accused, the court was informed by the Director of Public Prosecutions that she committed the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars of the offence thereof being that on the 12 th day of December, 2022, at Preston Court along Oloitoktok road, in Kilimani Sub-County within Nairobi County she murdered Asad Manzour Khan (Deceased).
2. The Accused denied the charges hence expressing the intent to contest the allegations. Therefore, the prosecution who bore the burden to prove the case were obligated to provide sufficient evidence in support of the information provided. To do so, the prosecution called twenty-seven (27) witnesses.
3. PW1 Jemutai Sogomo Kipkorir, a neighbour of the deceased lived in D-2 while the deceased lived in D-3 Apartment. She testified that two (2) years before the incident she would occasionally see a lady she identified as the Accused at the house (D-3). And, on the material day, 12 th December, 2022 at about 8.00am while at home she heard a commotion and a man yelling saying;
“Get the f*ck out of my house”
And a woman was crying. She called the security guard Hassan through her intercom to address the issue. She was in the living room, hence saw Hassan go upstairs. On returning he told her that the lady had not refused to leave.
4. All went quiet but again the commotion started hence she called the chairman of Preston Court. She could hear the man yelling telling the lady to “get the f*ck out of his house”. She called the chairman again but he did not respond. She heard a sound of glass falling. She heard the door upstairs open and close, and a man groaning and she peeped through her door only to see blood on the stairs and the common area. While in the house she heard someone ask;
“Kalulu what happened? What have you done?”
She identified the voice as for Hassan. Her cousin arrived. She could see Hassan and a doctor Francis who assisted the deceased into a black Nissan caravan. She witnessed when the police arrived and later saw the Accused leave the house in company of her father and counsel.
5. PW2 Hassan Wasanga Oyugi, a security guard at Preston Court Apartments, while on duty got a call from PW1 of D-2 through the intercom and on learning that there was commotion in D-3 he went to the apartment and rang the bell, and, the door was partially opened by the Accused. The deceased was making noise. He told him to tell the Accused to leave the house and the Accused told him that she was leaving. Further, he testified that it was the deceased uttering unprintables saying; “dog, leave my house”, to which the Accused responded that she was leaving. He left going to call the chairman, Mr. Samuel to intervene. Mr. Samuel and Mr. Francis were the first to arrive and a motor vehicle belonging to Mr. Francis escorted the deceased to hospital. Then he saw the police and Accused person’s parents arrive and they all went to D-3.
6. Lastly, he stated that there was a lot of blood on the stairs. That the Accused remained in the house all along but, he later saw her leaving with the police. That previously he had received a complaint of a fight between them in 2021, February.
7. PW3 Stephen Chacha, a security guard at the premises testified that she was on duty when the deceased and Accused arrived at 7.00pm aboard their motor vehicle Reg. No. KBW 200J a Pick-up and went to their house. At 8.00pm the Accused left alone, having boarded an uber taxi. She returned at 3.00am using uber means of transport. He reported off duty as usual without witnessing any incident.
8. PW4 Samuel Kimani Kihango the chairman of Preston Court testified that he received a call from PW2 who reported an incident of people fighting, the deceased was the one stated to be fighting. He went to where the deceased lived and on the staircase was the deceased lying down his face faced downwards but the head was tilted to an angle. Three quarters of the body was on the stairs while the legs were on the landing area, and there was a pool of blood. The deceased was mumbling. He rushed to Kileleshwa Police Station and reported the incident and by the time he went back to the scene with police officers the deceased had been taken away. And, the parents of the Accused also arrived. He alluded to having received a complaint previously from security guards about the deceased fighting women. That the Accused’s father is the one who convinced her to open the door, and inside the house was a trail of blood in the sitting room with various glasses and bottles of alcohol and there was a pool of blood towards the kitchen. The Accused was crying hysterically.
9. PW5 Francis Gitonga Mwai testified that he was called by PW2 who informed him of an injured person at Block D and he responded. He accompanied PW2 to Block D where they found the deceased lying facing downwards on the 2 nd flight of stairs. He was bleeding profusely and had car keys next to him. He turned him, and tried talking to him but he could not communicate. He had an injury at the right ankle. He called his friend, a fellow rally driver who shared the number of the deceased’s brother hence they notified him. Neighbours with medical background administered first aid and with the assistance of PW2 they carried him to his car. A neighbour volunteered to drive the motor vehicle. They took him to Nairobi Hospital and had to call the Accused inquiring about medical insurance and NHIF but the Accused who was crying said she did not know. The deceased’s brother with his wife found him at the hospital.
10. PW6 Tariq Farook Alam a cousin to the deceased was called by Adil who informed him that the deceased had an accident and was in hospital. He went to hospital and found the deceased had lost a lot of blood and doctors were trying to revive him. They had to look for blood. He decided to go to the deceased’s house and on climbing stairs at the first landing area, he found a lot of blood. He saw footprints of blood on the stair case. And inside the house were police officers. He saw some civilian, who were said to be the Accused’s parents. He saw a lot of blood inside the house as well, in the sitting area and the kitchen and a door with a broken glass. He went back to hospital and they moved the deceased to Avenue Hospital.
11. PW7 Chrysogonus Owerah the Operations Manager with Mocam Security Services Limited who were retained to provide security services at Preston Court was notified of the incident by PW2. He went to the scene and found police officers but the occupants of Apartment D-3 were not there. He observed blood on the stair case. He noticed a broken window glass and a crack on the door.
12. PW8 Shajad Haider Khan a cousin testified that on learning of the incident from his cousin Adil, he travelled to Nairobi from Eldoret and visited the deceased at Avenue Hospital and after his demise he identified the body to the doctors who performed the postmortem.
13. PW9 Shahid Khan also a cousin to the deceased on receiving the information went to Nairobi Hospital and found him unconscious. The nurse showed him the cut on the right ankle. He visited the house and on the stair case was blood. Police officers were present. He entered the house where he observed blood in the sitting area and kitchen and a broken glass/window pane on the kitchen door.
14. PW10 Adil Mansour Khan was called by Martin Alex who told him that his brother Asad had an accident. He gave him the contact of Francis who informed him that he had been rushed to Nairobi Hospital. He rang Maxine’s cellphone which went unanswered but was ultimately answered by James Wahome, her father who told him to go sell all their cars so as to treat his brother. He went to Nairobi Hospital in company of his wife Safina. They found him being resuscitated. He noticed injuries on the right hand, scratches on the head, swollen eye. He was being attended to by many doctors and was being transfused. They were told more blood was required hence they transferred him to Avenue Hospital where their cousin, PW9 got some. He reported the incident to the police which was booked as a serious assault. The deceased was in hospital for 7 days prior to passing and he identified the body with PW8 during postmortem.
15. PW11 Melvin Ibrahim Moses attended a concert on the fateful night with the Accused and her sister Nimo Wahome. After the event they used uber to Kileleshwa Chicken Inn then they dropped him off.
16. PW12 Safina Kausor Syed the wife of Adil, PW10 and sister in-law of the deceased was with PW10 when he received the call regarding the incident and she accompanied him to Nairobi Hospital. She testified that they found the deceased in a critical condition. He had several injuries, a bump on the head, scratches on the head, abrasions on the eye; a black eye. An injury on the neck and shoulder. He also had a cut on the knee and at the back of the leg the cut was deep and the deceased was bleeding profusely. Blood was required and since it was an emergency they called several hospitals and upon finding his blood type at Avenue they caused him to be transferred to Avenue Hospital whereby she used the same ambulance that was used to transport him from Nairobi Hospital.
17. Further, it was her evidence that the deceased went into a coma more than once and had to be resuscitated and upon arrival at Avenue Hospital he was admitted at the ICU. She stated that the deceased and the Accused lived recklessly but the injury could not have been self-inflicted.
18. PW13 Dr. Hussein Shabbir Moosaji a surgeon at Avenue Hospital stated that the deceased was taken to hospital with a diagnosis of traumatic laceration with a right posterior leg and haemorrhage, having been referred from Nairobi Hospital. He was reported to have had cardiac arrest and resuscitated. He had acute kidney injury, multiple organ disfunction. He was incubated and transfused. Every effort was made do stabilize him but he succumbed on 18 th December, 2022. On cross-examination he stated that the deceased did not have any injury that would automatically cause death. And, they did not realize that he had septicemia but he observed that his immunity was suppressed.
19. PW14 Beverly Grace Wanjiku Wahome the mother of the Accused acknowledged the deceased as her daughter’s boyfriend received a call from the Accused who was crying asking her to go with the police as she was scared. She could hear noise in the background she heard the Accused crying and the deceased shouting telling her to call her as well as the police. Then she heard him ask for the car keys and saying that the was bleeding and when she said that the keys were on the table, the call dropped/disconnected. The Accused called again and she told her to call on video which she did. This enabled her to see the blood on the path. The Accused was on the balcony. She saw the deceased walk out of the house and she advised the accused to lock the door and not open for anybody. She could see her leave the balcony. And as they communicated she was taking screen shots, evidence that was included by the prosecution that the court viewed. That she disconnected the phone, called her husband and they agreed to meet at Muthangari Police Station. They were referred to Kilimani Police Station hence they agreed that he goes to the house at Preston Court while she went to report the incident to Kilimani Police Station. But, as she made her way to Kilimani Police Station, her husband informed her that the police were already at the scene hence she went to the deceased’s house and as she climbed the stair case there was a lot of blood. When she got to the house she saw much more blood. The Accused was in the bedroom hence she went to sit with her as she was crying and distressed. A female police officer went, searched everywhere then the Accused was handcuffed.
20. She testified further that the Accused lived with the deceased for 1 ½ years but the deceased was a violent man as she witnessed the rage in him once, but the Accused did not leave the relationship.
21. PW15 No. 235792 CIP John Rutto then of Kileleshwa Police Station received a call from PW4 regarding domestic violence at Preston Court. He visited the scene with his team. He stated that there was blood on the staircase from the ground floor of the building up to the third floor. They found PW14 and the father of the Accused already at the scene of the incident with some other people. He saw blood up to the balcony. There was an empty bottle of alcohol on the table as well as an open shoe on the floor, a pen knife and velo and tobacco. Later DCI officers arrived and took over investigations.
22. PW16 No. 63790 Sergeant John Wambua a gazetted scene of crime personnel was led by PC Kebei and Corporal Diana Angote to the scene which was documented. He took photographs that were adduced in evidence.
23. PW17 Henry Kiptoo Sang a government analyst conducted DNA analysis on the blood stained articles that were submitted and he concluded that the DNA profiles generated on blood stains on the sandal, broken glasses matched samples obtained from the deceased. There was no DNA match with samples extracted from the Accused.
24. PW18 Dr. Muendo Muthini a government chemist analyzed postmortem specimens of the deceased namely the stomach contents; kidney, liver, blood, bile and vitreous humor. Also analyzed were suspected alcoholic drinks, drugs and items recovered from the house.
25. On examination the analysis having been done on 21 st December, 2022, and 9 th January, 2023, respectively there were no traces of poison in the body samples.
26. PW19 James Gichuru Wahome the father of the Accused stated that the Accused stayed with the deceased for two (2) years but the relationship was bumpy and he witnessed the fights. That the deceased would beat the Accused, he received complaints six (6) times and a report was made to Kileleshwa Police Station. Regarding the fateful date – 12 th December, 2023 he received a call from his wife who informed him about the incident and they met at Muthangari Police Station and when he got to the house he found three (3) police officers already there. They were negotiating with the Accused to open the door. The wooden door was open but not the grill door hence he asked her to open and she complied. She narrated to them how the deceased got aggressive when she returned home at 3.00am, became violent and asked her to leave. That she sought refuge at the balcony but he continued with the act of aggression and kicked the kitchen window and in the process injured himself and on realizing that he was bleeding profusely, he asked for the car keys and she showed him, he picked and went out hence she went and closed the door. He called his lawyer who joined them before the Accused was taken away.
27. PW20 Dr. Peter Ndegwa a government pathologist performed the postmortem together with Dr. Gachie and Dr. Walong on 19 th December, 2022 at Avenue Hospital and reached a conclusion as to the cause of death.
28. PW21 No. 235582 CIP Hezron Kimtai the then Deputy DCIO – Kilimani visited the scene with Corporal Diana Angote and some other police officers where they encountered PW15. The scene had already been secured. After officers from Nairobia Area Scenes of Crime he went to Nairobi Hospital to check on the deceased whom he found being resuscitated. He observed the injury the deceased had on the right ankle which had blood though bandaged and there was another injury on the forehead.
29. PW22 No. 113660 PC Mungai Gikonyo Wakaba of Cybercrime and Digital Laboratory retrieved photographs from the cellphone of PW12 that were taken on 12 th December, 2022 and came up with a report in that regard.
30. PW23 Dr. Edwin Walong and PW4 Dr. Andrew Kanyi Gachii conducted the autopsy alongside PW20.
31. PW25 Dr. David Abaya adduced in evidence a report from Nairobi Hospital. He Stated that at the time of being taken to hospital the deceased was bleeding a cut above the right lower limb above the foot on the posterior aspect. The wound extended to the inner part of the leg. He was unconscious and pale. At 9.50am he had cardiac arrest but was resuscitated. Some other tests carried out included alcohol test which showed that the alcohol in the blood was 203 mg/dl. On the kidney function test, the filtration rate was higher than normal.
32. PW 26 No. 22240 PC Timothy Nyendo, a Cyber Security Examiner analyzed the Accused’s phone and generated a 76,000-page document but was not able to open the deceased’s mobile phone. Later he prepared a 22-page summary, information that was selected by PC Kebei, one of the investigators which he considered relevant.
33. PW21 Corporal Diana Angote the arresting as well as Investigating Officer interrogated the Accused, collected exhibits and formed the opinion to charge the Accused with the offence of causing grievous harm but when the deceased succumbed she caused the charges to be substituted with Murder.
34. She testified that the Accused narrated that the deceased, her boyfriend got violent and on wanting to beat her she ran and hid at the balcony. He knocked the door asking her to open but she did not. He asked for keys but she did not know that he was injured. After a moment of silence, she peeped through the door and saw a volume of blood. She opened and went to the bedroom, called her parent and started packing. The explanation given to her by the Accused was not satisfactory hence she concluded that the Accused was the perpetrator of the act that caused the injury that the deceased sustained.
35. Both the prosecution and defence filed submissions at the close of the prosecution’s case which I have taken into consideration alongside authorities cited.
36. At this stage, the court is obligated to evaluate evidence adduced so as to determine if it is sufficient or insufficient to place the Accused on their defence. The legal mandate and framework therein is found in the statute; Section 306 0f the Criminal Procedure Code (CPC) provides thus:
(1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.
37. To establish whether the test is met the court is guided by case law also. The principle was enunciated in the case of Ramanlal Trambaklal Bhatt v Republic (1957) where the court stated that:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited
evidence…It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”
38. In Lubaxa (2001) ZASCA the Supreme Court of Appeal of South Africa stated that:
“At the close of the State case, when discharge is considered, the first question is: (i) Is there evidence on which a reasonable man might convict; if not (ii) is there a reasonable possibility that the defence evidence might supplement the State case? If the answer to either question is yes, there should be no discharge and the accused should be placed on his defence”.
39. To prove the case, the prosecution is obligated to prove ingredients set out in Section 203 of the Penal Code which provides thus:
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
40. In R v David Ruo Nyambura & 4 Others (2001) KEHC 826
“It is our cardinal principle of law that in a criminal case the legal onus is always on the prosecution to prove the guilt of an accused person, and the standard of proof is proof beyond reasonable doubt. The burden of proof therefore lies on the prosecution throughout to prove the guilt of an accused.”
“There are three ingredients of murder which the prosecution must prove beyond reasonable doubt so as to earn a conviction, namely: (a) The death of the deceased, and cause of that death. (b) that the accused committed the unlawful act which caused the deceased’s death and (c) that the accused had malice aforethought. The issue for determination in this case is whether these three ingredients of murder have been proved by the prosecution beyond reasonable doubt.”
41. To prove the charge of murder the prosecution is required to prove the three elements beyond reasonable doubt thus:
(i) The fact of death
(ii) The death was caused by an unlawful act or omission
(iii) That the accused caused the voluntary unlawful act or omission
(iv) It was of malice aforethought
Also see Ndegwa Ngari v Republic (2014) KECA 424 (KLR)
42. The deceased upon sustaining an injury was rushed to Nairobi Hospital. Ultimately he was transferred to Avenue Hospital where he was attended to by PW13 among other physicians. Despite medical attention having been provided he remained unconscious and finally succumbed to the injuries. Subsequently the autopsy was conducted by three (3) doctors. The body was identified to them by Adil Mansour Khan (PW10) and Shajad Haider Khan (PW8) , the deceased’s brother and cousin, respectively. Doctors who did the postmortem confirmed the occurrence of death and a death certificate was accordingly issued. This was proof of the fact of death.
43. As to the element of causation of death, Dr. Ndegwa the government pathologist; Dr Andrew Gachii for the victims and Dr. Walong for the Accused, agreed that the cause of death was septicaemia due to infection due to multiple injuries.
44. Dr. Ndegwa stated that the deceased had an incisive wound on the right side of the achilles tendon measuring 6×3×3cm. He had bruises on both hands, the dorsum part. There was subgaleal haematoma on the occipital area (back side) of the head. There was some bleeding and the brain had swollen and there was cerebral contusion.
45. In as much as Dr. Gachii concurred with Dr. Ndegwa, he noted presence of some jaundice; a swelling in the left side of the face beneath the left eye and a cut wound on the head that measured 6×3×3cm. On cross examination, he stated that the viruses that caused septicaemia were not identified. He classified the injuries on the forearm and the dorsum of the hands as defence injuries.
46. Dr. Walong in agreeing to the sepsis being due to multiple bacterial infection, was of the view that there was multiple acquired multi drug resistant bacterial and fungal infections. He observed that the long standing Achilles tendon degeneration appeared to have contributed to the traumatic rapture. That the traumatic head injury appeared to be due to the fall and injuries to the limbs may have been sustained during the episode.
47. It is suggested that there was poor attendance to the deceased who was moved from Nairobi Hospital Intensive Care Unit (ICU) to Avenue Hospital in a regular ambulance which would carry basic equipment for first aid and possibly oxygen cylinders as opposed to the ICU one which provides advanced life support equipment for stabilization of the patient. This, according to the defence may have been a contributory factor.
48. The defence did attribute what transpired to poor medical negligence/treatment. The deceased died on 18 th December, 2022. Therefore, the occurrence of death would be within one year – and – a – day hence legal liability would attach (see Section 215 of the Penal Code).
49. On the argument of poor medical treatment, I am guided by the case of R v Smith (1959) 2 QB 35, (1959) 43 Cr. App. R (2) where Lord Parker CJ held that if at the time of death the wound was still an ‘operating cause and a substantial cause’ then the death can properly be said to be the result of the wound… the death cannot be said to originate from the wound only the “second cause is overwhelming as to make the original wound merely part of the history”.
50. If indeed there was negligence in hospital the question would be. “who caused” the injury.
51. This is a case where there were only two (2) people in the house. The prosecution argues that although there was no direct evidence, circumstantial evidence pointed to the Accused as the perpetrator. What informs the argument being that she locked the door and failed to give the deceased’s relatives relevant information to enable them to ensure quick medical intervention.
52. In Sango Mohammed Sango & Another V Republic (2015) KECA 178 (KLR):
“ There is no dispute that the evidence against the appellants was circumstantial evidence to the extent that the prosecution did not adduce any direct evidence regarding the murder of the deceased. But as has been stated time and again, that in itself does not render circumstantial evidence valueless, because, subject to satisfying well-known conditions, circumstantial evidence is as good as any other evidence and can prove a case with the accuracy of mathematics. At times, it s deemed the best evidence ever. (See MUSILI TULO V. REPUBLIC, CR. APP. NO. 30 OF 2013). In SAWE V. REPUBLIC (2003) KLR 364, this Court stated that to pass muster, circumstantial evidence must be incompatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of his guilt and further that for circumstantial evidence to form the basis of a conviction, there must be no other existing circumstances which would weaken the chain of circumstances.”
53. The Accused stated to be 24 years at the time was involved with the deceased aged 50 years. On the fateful night she went out with friends and a sister. She returned home at 3:00am. Prior to returning home there had been communication between her and the deceased. The forensic examiner PW22, P.C. Mungai Wakaba retrieved media links and documents from the mobile phone stated to be owned by the Accused.
54. The forensic examiner PW22, P.C. Mungai Wakaba retrieved media links and documents from the mobile phone stated to be owned by PW12. The media links and documents were stated to have been authored by Stephen Mutero. There was WhatsApp communication by Asif Khan, a private investigator as well. These persons were not witnesses. What was however relevant was the serious cut sustained by the deceased. Evidence addressed by PW22 was not helpful as to how the injury was sustained by the deceased.
55. According to WhatsApp messages retrieved and extracted by PW26 following the requirement of P.C. Kibei, there was communication between the Accused and deceased. The Accused was required to buy some alcoholic drink (Jameson or Gin) to be delivered. There was a question as to where the Accused was; whether it was in Westlands or at someone’s house. She mentioned she was with Melvin. There was a query as to why she was not answering the call and there were several missed calls.
56. What is apparent is that the deceased repeatedly contacted the Accused during her social outing with her friends and sister. He overtly manifested a profound lack of trust and projected his suspicion while the Accused was away socializing. When the cellphone went unanswered, that served as clear evidence of deep seated distrust and in the morning after her return, he ordered her out of the house.
57. When PW1 heard noise, it sounded like a commotion. She had been seeing the Accused for two (2) years at the premises – D3. And, she heard a man yelling “Get the f*ck out of my house” while the woman was whimpering. She called PW2 and told him: “they were fighting again”.
58. When PW2 went to the house (D3), he heard the deceased order the Accused to leave and she assured PW2 that she was leaving.
59. PW1 had known the deceased for seven (7) years. She described him as a woman batterer whose actions amounted to domestic violence towards his intimate partners. During her stay at Preston Court for the seven (7) years, she saw six to seven (6–7) women cohabit with the deceased and leave. He was not kind to them. That he unleashed physical violence on the women and only one had a child.
60. PW2 rushed to the house upon being notified by PW1. He rang the bell and the door was partially opened by
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2. The Accused denied the charges hence expressing the intent to contest the allegations. Therefore, the prosecution who bore the burden to prove the case were obligated to provide sufficient evidence in support of the information provided. To do so, the prosecution called twenty-seven (27) witnesses.
3. PW1 Jemutai Sogomo Kipkorir, a neighbour of the deceased lived in D-2 while the deceased lived in D-3 Apartment. She testified that two (2) years before the incident she would occasionally see a lady she identified as the Accused at the house (D-3). And, on the material day, 12 th December, 2022 at about 8.00am while at home she heard a commotion and a man yelling saying;
“Get the f*ck out of my house”
And a woman was crying. She called the security guard Hassan through her intercom to address the issue. She was in the living room, hence saw Hassan go upstairs. On returning he told her that the lady had not refused to leave.
4. All went quiet but again the commotion started hence she called the chairman of Preston Court. She could hear the man yelling telling the lady to “get the f*ck out of his house”. She called the chairman again but he did not respond. She heard a sound of glass falling. She heard the door upstairs open and close, and a man groaning and she peeped through her door only to see blood on the stairs and the common area. While in the house she heard someone ask;
“Kalulu what happened? What have you done?”
She identified the voice as for Hassan. Her cousin arrived. She could see Hassan and a doctor Francis who assisted the deceased into a black Nissan caravan. She witnessed when the police arrived and later saw the Accused leave the house in company of her father and counsel.
5. PW2 Hassan Wasanga Oyugi, a security guard at Preston Court Apartments, while on duty got a call from PW1 of D-2 through the intercom and on learning that there was commotion in D-3 he went to the apartment and rang the bell, and, the door was partially opened by the Accused. The deceased was making noise. He told him to tell the Accused to leave the house and the Accused told him that she was leaving. Further, he testified that it was the deceased uttering unprintables saying; “dog, leave my house”, to which the Accused responded that she was leaving. He left going to call the chairman, Mr. Samuel to intervene. Mr. Samuel and Mr. Francis were the first to arrive and a motor vehicle belonging to Mr. Francis escorted the deceased to hospital. Then he saw the police and Accused person’s parents arrive and they all went to D-3.
6. Lastly, he stated that there was a lot of blood on the stairs. That the Accused remained in the house all along but, he later saw her leaving with the police. That previously he had received a complaint of a fight between them in 2021, February.
7. PW3 Stephen Chacha, a security guard at the premises testified that she was on duty when the deceased and Accused arrived at 7.00pm aboard their motor vehicle Reg. No. KBW 200J a Pick-up and went to their house. At 8.00pm the Accused left alone, having boarded an uber taxi. She returned at 3.00am using uber means of transport. He reported off duty as usual without witnessing any incident.
8. PW4 Samuel Kimani Kihango the chairman of Preston Court testified that he received a call from PW2 who reported an incident of people fighting, the deceased was the one stated to be fighting. He went to where the deceased lived and on the staircase was the deceased lying down his face faced downwards but the head was tilted to an angle. Three quarters of the body was on the stairs while the legs were on the landing area, and there was a pool of blood. The deceased was mumbling. He rushed to Kileleshwa Police Station and reported the incident and by the time he went back to the scene with police officers the deceased had been taken away. And, the parents of the Accused also arrived. He alluded to having received a complaint previously from security guards about the deceased fighting women. That the Accused’s father is the one who convinced her to open the door, and inside the house was a trail of blood in the sitting room with various glasses and bottles of alcohol and there was a pool of blood towards the kitchen. The Accused was crying hysterically.
9. PW5 Francis Gitonga Mwai testified that he was called by PW2 who informed him of an injured person at Block D and he responded. He accompanied PW2 to Block D where they found the deceased lying facing downwards on the 2 nd flight of stairs. He was bleeding profusely and had car keys next to him. He turned him, and tried talking to him but he could not communicate. He had an injury at the right ankle. He called his friend, a fellow rally driver who shared the number of the deceased’s brother hence they notified him. Neighbours with medical background administered first aid and with the assistance of PW2 they carried him to his car. A neighbour volunteered to drive the motor vehicle. They took him to Nairobi Hospital and had to call the Accused inquiring about medical insurance and NHIF but the Accused who was crying said she did not know. The deceased’s brother with his wife found him at the hospital.
10. PW6 Tariq Farook Alam a cousin to the deceased was called by Adil who informed him that the deceased had an accident and was in hospital. He went to hospital and found the deceased had lost a lot of blood and doctors were trying to revive him. They had to look for blood. He decided to go to the deceased’s house and on climbing stairs at the first landing area, he found a lot of blood. He saw footprints of blood on the stair case. And inside the house were police officers. He saw some civilian, who were said to be the Accused’s parents. He saw a lot of blood inside the house as well, in the sitting area and the kitchen and a door with a broken glass. He went back to hospital and they moved the deceased to Avenue Hospital.
11. PW7 Chrysogonus Owerah the Operations Manager with Mocam Security Services Limited who were retained to provide security services at Preston Court was notified of the incident by PW2. He went to the scene and found police officers but the occupants of Apartment D-3 were not there. He observed blood on the stair case. He noticed a broken window glass and a crack on the door.
12. PW8 Shajad Haider Khan a cousin testified that on learning of the incident from his cousin Adil, he travelled to Nairobi from Eldoret and visited the deceased at Avenue Hospital and after his demise he identified the body to the doctors who performed the postmortem.
13. PW9 Shahid Khan also a cousin to the deceased on receiving the information went to Nairobi Hospital and found him unconscious. The nurse showed him the cut on the right ankle. He visited the house and on the stair case was blood. Police officers were present. He entered the house where he observed blood in the sitting area and kitchen and a broken glass/window pane on the kitchen door.
14. PW10 Adil Mansour Khan was called by Martin Alex who told him that his brother Asad had an accident. He gave him the contact of Francis who informed him that he had been rushed to Nairobi Hospital. He rang Maxine’s cellphone which went unanswered but was ultimately answered by James Wahome, her father who told him to go sell all their cars so as to treat his brother. He went to Nairobi Hospital in company of his wife Safina. They found him being resuscitated. He noticed injuries on the right hand, scratches on the head, swollen eye. He was being attended to by many doctors and was being transfused. They were told more blood was required hence they transferred him to Avenue Hospital where their cousin, PW9 got some. He reported the incident to the police which was booked as a serious assault. The deceased was in hospital for 7 days prior to passing and he identified the body with PW8 during postmortem.
15. PW11 Melvin Ibrahim Moses attended a concert on the fateful night with the Accused and her sister Nimo Wahome. After the event they used uber to Kileleshwa Chicken Inn then they dropped him off.
16. PW12 Safina Kausor Syed the wife of Adil, PW10 and sister in-law of the deceased was with PW10 when he received the call regarding the incident and she accompanied him to Nairobi Hospital. She testified that they found the deceased in a critical condition. He had several injuries, a bump on the head, scratches on the head, abrasions on the eye; a black eye. An injury on the neck and shoulder. He also had a cut on the knee and at the back of the leg the cut was deep and the deceased was bleeding profusely. Blood was required and since it was an emergency they called several hospitals and upon finding his blood type at Avenue they caused him to be transferred to Avenue Hospital whereby she used the same ambulance that was used to transport him from Nairobi Hospital.
17. Further, it was her evidence that the deceased went into a coma more than once and had to be resuscitated and upon arrival at Avenue Hospital he was admitted at the ICU. She stated that the deceased and the Accused lived recklessly but the injury could not have been self-inflicted.
18. PW13 Dr. Hussein Shabbir Moosaji a surgeon at Avenue Hospital stated that the deceased was taken to hospital with a diagnosis of traumatic laceration with a right posterior leg and haemorrhage, having been referred from Nairobi Hospital. He was reported to have had cardiac arrest and resuscitated. He had acute kidney injury, multiple organ disfunction. He was incubated and transfused. Every effort was made do stabilize him but he succumbed on 18 th December, 2022. On cross-examination he stated that the deceased did not have any injury that would automatically cause death. And, they did not realize that he had septicemia but he observed that his immunity was suppressed.
19. PW14 Beverly Grace Wanjiku Wahome the mother of the Accused acknowledged the deceased as her daughter’s boyfriend received a call from the Accused who was crying asking her to go with the police as she was scared. She could hear noise in the background she heard the Accused crying and the deceased shouting telling her to call her as well as the police. Then she heard him ask for the car keys and saying that the was bleeding and when she said that the keys were on the table, the call dropped/disconnected. The Accused called again and she told her to call on video which she did. This enabled her to see the blood on the path. The Accused was on the balcony. She saw the deceased walk out of the house and she advised the accused to lock the door and not open for anybody. She could see her leave the balcony. And as they communicated she was taking screen shots, evidence that was included by the prosecution that the court viewed. That she disconnected the phone, called her husband and they agreed to meet at Muthangari Police Station. They were referred to Kilimani Police Station hence they agreed that he goes to the house at Preston Court while she went to report the incident to Kilimani Police Station. But, as she made her way to Kilimani Police Station, her husband informed her that the police were already at the scene hence she went to the deceased’s house and as she climbed the stair case there was a lot of blood. When she got to the house she saw much more blood. The Accused was in the bedroom hence she went to sit with her as she was crying and distressed. A female police officer went, searched everywhere then the Accused was handcuffed.
20. She testified further that the Accused lived with the deceased for 1 ½ years but the deceased was a violent man as she witnessed the rage in him once, but the Accused did not leave the relationship.
21. PW15 No. 235792 CIP John Rutto then of Kileleshwa Police Station received a call from PW4 regarding domestic violence at Preston Court. He visited the scene with his team. He stated that there was blood on the staircase from the ground floor of the building up to the third floor. They found PW14 and the father of the Accused already at the scene of the incident with some other people. He saw blood up to the balcony. There was an empty bottle of alcohol on the table as well as an open shoe on the floor, a pen knife and velo and tobacco. Later DCI officers arrived and took over investigations.
22. PW16 No. 63790 Sergeant John Wambua a gazetted scene of crime personnel was led by PC Kebei and Corporal Diana Angote to the scene which was documented. He took photographs that were adduced in evidence.
23. PW17 Henry Kiptoo Sang a government analyst conducted DNA analysis on the blood stained articles that were submitted and he concluded that the DNA profiles generated on blood stains on the sandal, broken glasses matched samples obtained from the deceased. There was no DNA match with samples extracted from the Accused.
24. PW18 Dr. Muendo Muthini a government chemist analyzed postmortem specimens of the deceased namely the stomach contents; kidney, liver, blood, bile and vitreous humor. Also analyzed were suspected alcoholic drinks, drugs and items recovered from the house.
25. On examination the analysis having been done on 21 st December, 2022, and 9 th January, 2023, respectively there were no traces of poison in the body samples.
26. PW19 James Gichuru Wahome the father of the Accused stated that the Accused stayed with the deceased for two (2) years but the relationship was bumpy and he witnessed the fights. That the deceased would beat the Accused, he received complaints six (6) times and a report was made to Kileleshwa Police Station. Regarding the fateful date – 12 th December, 2023 he received a call from his wife who informed him about the incident and they met at Muthangari Police Station and when he got to the house he found three (3) police officers already there. They were negotiating with the Accused to open the door. The wooden door was open but not the grill door hence he asked her to open and she complied. She narrated to them how the deceased got aggressive when she returned home at 3.00am, became violent and asked her to leave. That she sought refuge at the balcony but he continued with the act of aggression and kicked the kitchen window and in the process injured himself and on realizing that he was bleeding profusely, he asked for the car keys and she showed him, he picked and went out hence she went and closed the door. He called his lawyer who joined them before the Accused was taken away.
27. PW20 Dr. Peter Ndegwa a government pathologist performed the postmortem together with Dr. Gachie and Dr. Walong on 19 th December, 2022 at Avenue Hospital and reached a conclusion as to the cause of death.
28. PW21 No. 235582 CIP Hezron Kimtai the then Deputy DCIO – Kilimani visited the scene with Corporal Diana Angote and some other police officers where they encountered PW15. The scene had already been secured. After officers from Nairobia Area Scenes of Crime he went to Nairobi Hospital to check on the deceased whom he found being resuscitated. He observed the injury the deceased had on the right ankle which had blood though bandaged and there was another injury on the forehead.
29. PW22 No. 113660 PC Mungai Gikonyo Wakaba of Cybercrime and Digital Laboratory retrieved photographs from the cellphone of PW12 that were taken on 12 th December, 2022 and came up with a report in that regard.
30. PW23 Dr. Edwin Walong and PW4 Dr. Andrew Kanyi Gachii conducted the autopsy alongside PW20.
31. PW25 Dr. David Abaya adduced in evidence a report from Nairobi Hospital. He Stated that at the time of being taken to hospital the deceased was bleeding a cut above the right lower limb above the foot on the posterior aspect. The wound extended to the inner part of the leg. He was unconscious and pale. At 9.50am he had cardiac arrest but was resuscitated. Some other tests carried out included alcohol test which showed that the alcohol in the blood was 203 mg/dl. On the kidney function test, the filtration rate was higher than normal.
32. PW 26 No. 22240 PC Timothy Nyendo, a Cyber Security Examiner analyzed the Accused’s phone and generated a 76,000-page document but was not able to open the deceased’s mobile phone. Later he prepared a 22-page summary, information that was selected by PC Kebei, one of the investigators which he considered relevant.
33. PW21 Corporal Diana Angote the arresting as well as Investigating Officer interrogated the Accused, collected exhibits and formed the opinion to charge the Accused with the offence of causing grievous harm but when the deceased succumbed she caused the charges to be substituted with Murder.
34. She testified that the Accused narrated that the deceased, her boyfriend got violent and on wanting to beat her she ran and hid at the balcony. He knocked the door asking her to open but she did not. He asked for keys but she did not know that he was injured. After a moment of silence, she peeped through the door and saw a volume of blood. She opened and went to the bedroom, called her parent and started packing. The explanation given to her by the Accused was not satisfactory hence she concluded that the Accused was the perpetrator of the act that caused the injury that the deceased sustained.
35. Both the prosecution and defence filed submissions at the close of the prosecution’s case which I have taken into consideration alongside authorities cited.
36. At this stage, the court is obligated to evaluate evidence adduced so as to determine if it is sufficient or insufficient to place the Accused on their defence. The legal mandate and framework therein is found in the statute; Section 306 0f the Criminal Procedure Code (CPC) provides thus:
(1) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence shall, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
(2) When the evidence of the witnesses for the prosecution has been concluded, the court, if it considers that there is evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to fact other than the accused person himself; and upon being informed thereof, the judge shall record the fact.
37. To establish whether the test is met the court is guided by case law also. The principle was enunciated in the case of Ramanlal Trambaklal Bhatt v Republic (1957) where the court stated that:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited
evidence…It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”
38. In Lubaxa (2001) ZASCA the Supreme Court of Appeal of South Africa stated that:
“At the close of the State case, when discharge is considered, the first question is: (i) Is there evidence on which a reasonable man might convict; if not (ii) is there a reasonable possibility that the defence evidence might supplement the State case? If the answer to either question is yes, there should be no discharge and the accused should be placed on his defence”.
39. To prove the case, the prosecution is obligated to prove ingredients set out in Section 203 of the Penal Code which provides thus:
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.
40. In R v David Ruo Nyambura & 4 Others (2001) KEHC 826
“It is our cardinal principle of law that in a criminal case the legal onus is always on the prosecution to prove the guilt of an accused person, and the standard of proof is proof beyond reasonable doubt. The burden of proof therefore lies on the prosecution throughout to prove the guilt of an accused.”
“There are three ingredients of murder which the prosecution must prove beyond reasonable doubt so as to earn a conviction, namely: (a) The death of the deceased, and cause of that death. (b) that the accused committed the unlawful act which caused the deceased’s death and (c) that the accused had malice aforethought. The issue for determination in this case is whether these three ingredients of murder have been proved by the prosecution beyond reasonable doubt.”
41. To prove the charge of murder the prosecution is required to prove the three elements beyond reasonable doubt thus:
(i) The fact of death
(ii) The death was caused by an unlawful act or omission
(iii) That the accused caused the voluntary unlawful act or omission
(iv) It was of malice aforethought
Also see Ndegwa Ngari v Republic (2014) KECA 424 (KLR)
42. The deceased upon sustaining an injury was rushed to Nairobi Hospital. Ultimately he was transferred to Avenue Hospital where he was attended to by PW13 among other physicians. Despite medical attention having been provided he remained unconscious and finally succumbed to the injuries. Subsequently the autopsy was conducted by three (3) doctors. The body was identified to them by Adil Mansour Khan (PW10) and Shajad Haider Khan (PW8) , the deceased’s brother and cousin, respectively. Doctors who did the postmortem confirmed the occurrence of death and a death certificate was accordingly issued. This was proof of the fact of death.
43. As to the element of causation of death, Dr. Ndegwa the government pathologist; Dr Andrew Gachii for the victims and Dr. Walong for the Accused, agreed that the cause of death was septicaemia due to infection due to multiple injuries.
44. Dr. Ndegwa stated that the deceased had an incisive wound on the right side of the achilles tendon measuring 6×3×3cm. He had bruises on both hands, the dorsum part. There was subgaleal haematoma on the occipital area (back side) of the head. There was some bleeding and the brain had swollen and there was cerebral contusion.
45. In as much as Dr. Gachii concurred with Dr. Ndegwa, he noted presence of some jaundice; a swelling in the left side of the face beneath the left eye and a cut wound on the head that measured 6×3×3cm. On cross examination, he stated that the viruses that caused septicaemia were not identified. He classified the injuries on the forearm and the dorsum of the hands as defence injuries.
46. Dr. Walong in agreeing to the sepsis being due to multiple bacterial infection, was of the view that there was multiple acquired multi drug resistant bacterial and fungal infections. He observed that the long standing Achilles tendon degeneration appeared to have contributed to the traumatic rapture. That the traumatic head injury appeared to be due to the fall and injuries to the limbs may have been sustained during the episode.
47. It is suggested that there was poor attendance to the deceased who was moved from Nairobi Hospital Intensive Care Unit (ICU) to Avenue Hospital in a regular ambulance which would carry basic equipment for first aid and possibly oxygen cylinders as opposed to the ICU one which provides advanced life support equipment for stabilization of the patient. This, according to the defence may have been a contributory factor.
48. The defence did attribute what transpired to poor medical negligence/treatment. The deceased died on 18 th December, 2022. Therefore, the occurrence of death would be within one year – and – a – day hence legal liability would attach (see Section 215 of the Penal Code).
49. On the argument of poor medical treatment, I am guided by the case of R v Smith (1959) 2 QB 35, (1959) 43 Cr. App. R (2) where Lord Parker CJ held that if at the time of death the wound was still an ‘operating cause and a substantial cause’ then the death can properly be said to be the result of the wound… the death cannot be said to originate from the wound only the “second cause is overwhelming as to make the original wound merely part of the history”.
50. If indeed there was negligence in hospital the question would be. “who caused” the injury.
51. This is a case where there were only two (2) people in the house. The prosecution argues that although there was no direct evidence, circumstantial evidence pointed to the Accused as the perpetrator. What informs the argument being that she locked the door and failed to give the deceased’s relatives relevant information to enable them to ensure quick medical intervention.
52. In Sango Mohammed Sango & Another V Republic (2015) KECA 178 (KLR):
“ There is no dispute that the evidence against the appellants was circumstantial evidence to the extent that the prosecution did not adduce any direct evidence regarding the murder of the deceased. But as has been stated time and again, that in itself does not render circumstantial evidence valueless, because, subject to satisfying well-known conditions, circumstantial evidence is as good as any other evidence and can prove a case with the accuracy of mathematics. At times, it s deemed the best evidence ever. (See MUSILI TULO V. REPUBLIC, CR. APP. NO. 30 OF 2013). In SAWE V. REPUBLIC (2003) KLR 364, this Court stated that to pass muster, circumstantial evidence must be incompatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of his guilt and further that for circumstantial evidence to form the basis of a conviction, there must be no other existing circumstances which would weaken the chain of circumstances.”
53. The Accused stated to be 24 years at the time was involved with the deceased aged 50 years. On the fateful night she went out with friends and a sister. She returned home at 3:00am. Prior to returning home there had been communication between her and the deceased. The forensic examiner PW22, P.C. Mungai Wakaba retrieved media links and documents from the mobile phone stated to be owned by the Accused.
54. The forensic examiner PW22, P.C. Mungai Wakaba retrieved media links and documents from the mobile phone stated to be owned by PW12. The media links and documents were stated to have been authored by Stephen Mutero. There was WhatsApp communication by Asif Khan, a private investigator as well. These persons were not witnesses. What was however relevant was the serious cut sustained by the deceased. Evidence addressed by PW22 was not helpful as to how the injury was sustained by the deceased.
55. According to WhatsApp messages retrieved and extracted by PW26 following the requirement of P.C. Kibei, there was communication between the Accused and deceased. The Accused was required to buy some alcoholic drink (Jameson or Gin) to be delivered. There was a question as to where the Accused was; whether it was in Westlands or at someone’s house. She mentioned she was with Melvin. There was a query as to why she was not answering the call and there were several missed calls.
56. What is apparent is that the deceased repeatedly contacted the Accused during her social outing with her friends and sister. He overtly manifested a profound lack of trust and projected his suspicion while the Accused was away socializing. When the cellphone went unanswered, that served as clear evidence of deep seated distrust and in the morning after her return, he ordered her out of the house.
57. When PW1 heard noise, it sounded like a commotion. She had been seeing the Accused for two (2) years at the premises – D3. And, she heard a man yelling “Get the f*ck out of my house” while the woman was whimpering. She called PW2 and told him: “they were fighting again”.
58. When PW2 went to the house (D3), he heard the deceased order the Accused to leave and she assured PW2 that she was leaving.
59. PW1 had known the deceased for seven (7) years. She described him as a woman batterer whose actions amounted to domestic violence towards his intimate partners. During her stay at Preston Court for the seven (7) years, she saw six to seven (6–7) women cohabit with the deceased and leave. He was not kind to them. That he unleashed physical violence on the women and only one had a child.
60. PW2 rushed to the house upon being notified by PW1. He rang the bell and the door was partially opened by
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