The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. The particulars of the offence as per the information dated 4 th January, 2022 were that on the 26 th day of December, 2021 at Ujamaa area in Likoni sub – location, within Mombasa County, murdered HAMISI HAMADI.
The Prosecution case
The prosecution called a total of 9 witnesses whose evidence was as follows: -
PW 1 MWANASITI DAMA KARISA , a neighbor to the Accused person informed the court that her house was the first one from the main gate while the Accused's house was the 3 rd one from the main gate informed the Court that on the material day i.e. on 25 th December, 2021, at around 10pm she was in the company of her husband MOHAMED and child ISMAIL who went to sleep. At around 4 am, the accused person came knocking at her door seeking her help and when she opened her door, she saw blood drops on the corridor and when she moved towards the Accused’s house, she saw the deceased lying on the floor facing upwards. The witness further informed Court that prior to the Accused knocking at her door, she did not know what had happened but accompanied the Accused to where the deceased was lying unconscious half naked with only a trouser on without a shirt; at the Accused's door step and there were blood stains from the Accused's door to the main door.
PW 1 told the court that the accused had gone to request them to help her carry the deceased out of the house so that she could take a motor bike rider and take the deceased to hospital which she did and went back to sleep. That later on, the police came, took her to Likoni Police Station where she recorded her statement.
When cross examined PW 1 reiterated that she had not been served with the DNA report and photographs. The witness was stood down and when she was recalled she told the court that she did not see any injury on the deceased's body but confirmed that the deceased came to the Accused’s house at least once a week and closed her examination in chief by identifying the body of the deceased in the photograph which was marked as MFI-1.
When cross examined she stated that she knew the Accused well as they had been neighbors for about 2 months as at the time the Accused rented her house there, she found her already renting there as she had moved in that house in 2020. The witness reiterated that she did not know what happened or who injured the deceased but only that the Accused knocked at her door and asked for her help. Further, the witness informed the Court that the deceased frequently visited the Accused but did not know how they related and that on the material date, she did not hear any sound coming from the Accused's house but that only when she opened her door, she saw blood drops on the corridor that went up to the accused's house. Any injury on the deceased's body according to the witness was that for the time the deceased visited the Accused, she did not know of any differences between them.
When reexamined she confirmed that the blood drops were on the corridor up to the Accused's house.
PW 2 HALIMA ALFAN MZEE , another neighbor to the accused and who had known the accused for 2 months told the court that on the material day, at around 4:00 am, the Accused came and knocked her door and requested for her help to enable her take her husband to hospital. When she arrived at the Accused person’s house, she found the deceased lying at the door and when she inquired from the Accused what had happened, the Accused did not tell her. It was the further evidence of the witness that when she further asked the Accused what means she wanted to use to take the deceased to the hospital, she informed the witness that she had called a motor bike and when the motor bike came, they helped the Accused board the motor bike with the deceased and she took him to hospital while she went back to her house.
PW 2 told the court that she used to see the deceased once in a while at the Accused's house and that on the material day, she found him lying outside the Accused's house only wearing a trouser but did not see anyone else apart from the Accused in the house. The witness further informed the Court that she did not check what type of injuries the deceased had but identified the deceased from the photo and also identified the Accused at the dock.
When cross examined she stated that she knew the deceased as the Accused’s husband as he visited the Accused who was her neighbor in the Swahili house they were living once in a while and that the Accused had informed her that he was her husband. The witness further informed the Court that she did not see any injury on the body of the deceased or hear any commotion on the Accused's house on the material day.
PW 3 PETER MUSYOKI , the deputy OCS, Inuka Police Post told the court that on 26 th December, 2021 at around 7am, he received a call from the Likoni Investigation Officer who informed him that on the night of 25/12/2021 there was someone who was injured within Inuka Police Station and further informed him that he was referring to him a lady who needed his assistance. That at around 9 am, the Accused came and introduced herself to him and confirmed to him that she was the one who had been referred to him. PW 3 informed the court that he interrogated the Accused about the incidence and the Accused informed him that he has been cohabiting with the deceased and that on the material day he arrived home late at night with injuries. The witness further informed the Court that on further interrogating the Accused, he found that her explanation was not adding up as he saw her with a swollen right eye and lips and suspected that the deceased and the Accused might have fought.
PW 3 stated that he then informed the DCIO who came with a crime of scenes officer where the Accused was requested to lead them to her house which was near the Police station. On reaching the Accused’s house, there were blood drops from the main gate to the Accused’s house and the door curtain also had blood stains. The witness further informed the Court that there was a blood - stained kitchen knife with a light blue plastic handle on the floor in the Accused’s house.
The witness further informed the Court that on observing the house, everything in the house was scattered which was an indication of a fight in the house. The scenes of crime officer took photographs of the scene and swabs of the blood stains at the scene and collected the blood -stained curtain and knife together with inner wear suspected to belong to the deceased and handed them to the scenes of crime officer for analysis and arrested the Accused person and took her to Inuka Police Station where later the DCI Likoni took over the matter for further investigations.
PW 3 identified the photographs that were taken from the Accused's house which were marked as MFI 1 (a-r), the knife as MFI-2, the door curtain MFI-3,the blue stripped inner wear MFI -4. The inventory of Exhibits signed by the Accused MFI-5and a Kenyan passport belonging to the deceased MFI-6.
When cross examined he stated that he did not witness the offence happen but only that he received a call from DCIO, Likoni Sub county informing him that there was a lady who had informed him that there was someone who was injured and needed their help and the DCIO referred the Accused to him. The witness further informed the Court that the Accused who had a swollen lip and eye led them to the scene where they found blood stains on the entrance. That upon interrogating the Accused who became evasive, he handed over the Accused to DCIO on the same day for further investigations.
Further PW 3 confirmed that he was not informed if the Accused was taken to Court and was not aware of any break in into the Accused's house as no report had been made. Prior to the incidence which occurred on the night of 25 th December, 2021. The blood stains from the curtain, knife and floor were taken for analysis and that the disarray in the Accused's house was not compatible with someone who was either moving in or moving out. That the Accused was one of the people who took the deceased to hospital and a knife was found at the scene which was an exhibit in Court.
PW 3 stated that during interrogation, the Accused confirmed to him that she was a friend to the deceased who would visit her once in a while. From his observation of the house of the Accused, it was apparent that there might have been a fight there but when he interrogated the Accused on the same, she became evasive which made him refer the matter to DCI for further investigations.
PW 4 JAMUHURI SALIM , told the court that the deceased, was his nephew who died in December, 2021. The witness further informed the Court that on 26/12/2021 he received information from one member of the family informing him that the deceased had died in hospital.
Together with BAKARI HAMISI they went to identify the body for post mortem and witnessed the post mortem being conducted on the deceased.
When cross examined he stated that he did not witness the offence happen but only identified the body for post mortem and witnessed the post mortem being conducted.
PW 5 SAUMU SALIM , told the court that the she was a police officer attached to Likoni Police Station where she had worked there for 3 years. On 26 th December, 2021 at around 6 am, she was on duty performing general duties when she received a distress call from Mombasa Regional headquarters informing her that there was a lady within Maweni area who required their assistance and gave out the lady’s mobile number.
The witness told the court that together with PC Rehema and PC Bob, they proceeded to Maweni area and when they reached there, she called the lady's mobile number but it was not going through. They proceeded to Manyatta Hospital to confirm if the victim had been rushed there and found two middle aged men who had sustained injuries at Kombani and Ngómbeni areas being attended at the emergency section but those were out of their jurisdiction.
PW 6 stated that there was also an unconscious lady and a good Samaritan informed them that it was the unconscious lady who needed their help. The 4 th person was a body lying in a pool of blood in the emergency room and the doctor attending to the patients informed her that the deceased was brought to hospital by the Accused but had succumbed to injuries while undergoing treatment.
She moved out and met the Accused and upon interrogating her, the Accused informed her that she is the one who accompanied the deceased to hospital. That she noted some injuries on the Accused as she had a swollen lip and cheek and when she interrogated her further, the Accused informed her she was involved in a fight with the deceased which made her suspicious that she could be the one who committed the offence and took the Accused to DCI offices for further interrogation. The witness identified the photographs of the Deceased which were marked as MFI (a) and further informed the Court that she observed the body of the deceased and discovered that he had a stab wound on the left - hand side between the abdomen and chest and that right hand side of the forehead had bruises. She then identified the Accused in the dock.
When cross examined she stated that one of the patients at the hospital was an unconscious woman who was not the accused as the accused was conscious but with swollen lips and cheeks which were not bleeding. PW 5 stated that she did not establish if the Accused was assaulted or if the deceased attempted to rape her and neither did she visit the Accused’s house.
PW 6 DR ABDUL AZIZ , told the court that he was testifying on behalf of Dr. Mohamed Ali Mohamed who had gone for further studies. He informed the Court that he had worked with Dr. Mohamed Ali Mohamed for some time and was conversant with his handwriting and signature which he confirmed were exhibited in the post mortem report. The body of the deceased was identified by Jamuhuri Salim and Bakari Hamisi under the escort of CPL James Kimwetich. The post mortem report stated that the deceased was stabbed by unknown persons on the left side of his chest and succumbed to injuries while undergoing treatment at Likoni Sub County Hospital. The deceased had blood stains on nostrils and abdomen, bruises on right side of forehead, 3 stitches above the left rib, stab wound penetrating through the thoracic cage from left auxiliary line thorough left lower lung lobe up to the pericardium and through the left lateral aspect of the heart. There was massive hemothorax bilaterally cardiovascular system punctured pericardial and punctured left ventricle.
From the examination, the doctor formed the opinion that the deceased died due hemorrhage shock secondary to stab wound. The witness also informed the Court that the deceased's blood sample was taken for sampling and produced the post mortem report as Pex 8.
When cross examined he stated that the Post Mortem report was conducted on 27 th December, 2021 but was signed on 29 th December, 2021 and could not justify the difference on the date when the report was made and when it was signed.
PW 7 STEPHEN KALAU , told the court that he was a Clinical Officer working at Likoni Sub County Hospital and that he bad P3 Form and treatment notes for the Accused which he produced as PEX 9 (a) and PEX 9 (b) respectively. That the Accused was seen on 26 th December, 2021 at around 9Pm after she was brought to the hospital by police officers from Inuka Police Station. The Accused informed him that she had a history of physical assault by a known person who was her boyfriend and had multiple body injuries. Upon examination, the right eye was swollen with notable tenderness, lower lip had lacerations and was swollen, right wrist joint was tender and she had a cut wound on the right finger. From the examination, he formed the opinion that the Accused suffered soft tissue injuries secondary to assault
PW 8 OMAR MWIDADI , a government analyst stated that the Court he conducted a forensic analysis of the exhibits that was handed to him by the Police as concerns the case before Court which generated the following results and which he produced as Pex - 10.
D1,D2 and D3 were blood swabs- matched DNA profile of the deceased.
Stained door curtain orange and white in color (B1)- did not generate any DNA profile.
Kitchen knife (C1) - generated male DNA profile that matched DNA profile generated from blood swabs DI, D2 and D3 which matched blood sample of the deceased.
Blood sample of the deceased-
Blood sample from the Accused -generated a female DNA profile.
PW 9 SGT BENSON INGOTSI , told the court that on 26 th December, 2021 at around 9 am, he was requested by DCI Likoni to join them at Inuka Police Station in response to a report where it was alleged a lady had stabbed her boyfriend with a knife. When he went to the scene being led by the in -charge DCI Likoni, they found everything scattered in the room while others were broken and there was a blood-stained knife on the floor and blood stains on the wall and floor of the room. He was requested to process the room by taking photographs.
The witness explained that photographs 17 and 18 showed the stitched stab wound on the left rib and the deceased had bruises on left side of the face and left knee. He produced the photographs as Pex -11, Report and photographic Certificate as Pex 11 (a) and Pex 11 (b)respectively.
PW 10 CPL JAMES IMWETITICH , testified that on 26 th December, 2021 he received information from the Accused that her boyfriend went to her house with injuries. On receiving this report, he contacted his boss who instructed him to accompany the Accused to Inuka Police Station to make a report. That together with the Accused, they went to Inuka Police Station and made the report where they met IP Peter Musyoki who was the Deputy OCS. And handed over the Accused.
PW 10 stated that they proceeded to Likoni Sub County Hospital where the deceased was lying and found that he had a stab wound on the left side of the chest. They organized the body to be taken to Coast General Hospital for preservation and post mortem then went back to Inuka Police Station where they met other officers who had already visited the scene where a blood-stained kitchen knife, door curtain, and specimen of blood stain on the wall were recovered and taken and the scene was documented and were handed the exhibits. The Accused was placed in custody.
The witness told the court that he found the Accused had injuries and he took her to hospital where she was treated and discharged. He attended the post mortem examination where it was established the deceased died due to a stab wound on the left side of the chest, he also took blood samples from the deceased and Accused for DNA sampling. he then produced the kitchen knife as Pex - 2, curtain PEX-3,deceased underwear P ex-4, deceased passport Pex - 5,Exhibits inventory Pex - 6,P3 Form Pex - 9 (a), treatment notes Pex 9 (b). He identified the Accused at the dock and confirmed she did not have any past criminal records.
When cross examined he confirmed that the Accused and deceased quarreled and fought over their relationship as they were no longer friends and that the kitchen knife was not dusted for finger prints. The witness further confirmed that the Accused surrendered voluntarily to the police. This was the last witness and the Prosecution closed its case.
The Defence Case
DW 1 MOREEN ATIENO , the Accused told the court that on 26 th December, 2021, she was sleeping in her house when at 4am, the deceased who was her ex-lover came and knocked on her door and requested that he let him in. Upon opening the door, he discovered that the deceased was armed with a metal rod and knife and the deceased demanded that they had sex but she refused as they had separated about five months ago as he used to abuse drugs and assaulted her severally.
When she refused to have sex with him, the deceased hit her with a fist and she accepted to avoid an escalation of the confrontation but the deceased had changed his mind and was no longer interested in sex. This is when the deceased threatened her that either both will die or one will die and the other will go to prison. The deceased went on to hit her on the mouth and eye and hand and injured her which injuries were evident when she was first produced in Court. The deceased hit her on the head with a metal rod. When she saw the confrontation was getting worse, she tried to escape but the deceased caught her one of her braids and pulled her back to the house. In the commotion, one of her braids came off. She fell on her back and that is when the deceased hit her on the head with a metal rod. He then removed the knife and wanted to stab her as he lay on top of her.
DW 1 told the court that she struggled with him as he held the knife trying to stab him and as he had overpowered her, she used her both hands to restrain her and that is how she sustained a cut on her finger. The witness informed the Court that as they struggled, the deceased stabbed himself and she only started to see blood oozing from him and she was very shocked. She then went and called her neighbors to help her board the deceased to a motor bike to take her for treatment but unfortunately, he succumbed while undergoing treatment. Upon his demise, he reported the incidence to the police, was arrested and produced to Court to face the charges that faced her in Court. She was taken to hospital and treated for the injuries that she sustained in the scuffle.
When cross examined she confirmed that the incidence happened in her house and it is the deceased who came and woke her up at 4am. She disputed one of the Prosecution's witness accounts that she had said the deceased came while injured and reiterated that what she had informed the Court was a true account of what had happened on the material day. The witness further informed Court that she did not know where the deceased was injured but only saw him bleeding.
Analysis and Determination
Considering the testimonies of both the prosecution and defence it was now upon this Honourable Court to determine whether or not the offence of Murder had been proved beyond reasonable doubt.
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. The accused persons herein face 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.”
The question that arises is whether the prosecution has proved the death of the deceased; that Accused persons caused the death and that they actuated by malice. In the case of Republic – Versus - 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 – Versus - 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 of the deceased
The post mortem from Pext 8 filed by PW 6 Dr. Mohamed Ali Mohamed signed on 29 th December, 2021 revealed that death was as a result of hemorrhage shock secondary to stab wound. The description of the injuries were blood stains on nostrils and abdomen, bruises on right side of forehead, 3 stitches above the left rib, stab wound penetrating through the thoracic cage from left auxiliary line thorough left lower lung lobe up to the pericardium and through the left lateral aspect of the heart. There was massive hemothorax bilaterally cardiovascular system punctured pericardial and punctured left ventricle.
Proof that accused person committed the unlawful act which caused the death of the deceased
PW 1, PW 2 and PW 3 identified the accused person as the person who took the life of the deceased. PW 2 told the court that she used to see the deceased once in a while at the Accused's house and that on the material day, she found him lying outside the Accused's house only wearing a trouser but did not see anyone else apart from the Accused in the house. The witness further informed the Court that she did not check what type of injuries the deceased had but identified the deceased from the photo and also identified the Accused at the dock. The incident took place around 4:00 am and I find that there existed conducive conditions for recognition of the Accused person. Recognition is not denied by the accused person in her testimony.
Malice Aforethought
Having found that the prosecution has proved actus reus, the issue for determination is whether malice aforethought can be inferred now that the injury of the deceased caused his death. The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves any one or more of the following circumstances:
“(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) An intent to commit a felony;
(d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
In order to find a conviction on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law dictionary, 10 th Edition malice aforethought is defined as:
The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).
When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under section 202 Penal Code which is punishable under section 205 Penal Code by a term of imprisonment extending up to life.
In “Morris Aluoch – Versus - Republic Cr. Appeal No. 47 of 1996 [1997] eKLR)” , the Court of Appeal cited the case of “Rex – Versus - Tubere S/O Ochen (1945) 12 EACA 63” with approval where it was in stated as follows:-
“If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days late.
In this case, PW 6 told the court that they were called to proceed to the hospital as there was a person who had been injured when they got there they were informed that he had succumed to his injuries. The accused person had accompanied the deceased to the hospital. PW 6 noted some injuries on the accused as she had a swollen lip and cheek and when PW 6 interrogated her, the accused informed her that she had been involved in a fight with the deceased which made PW 6 suspicious that she could be the one who committed the offence and took the Accused to DCI offices for further interrogation. The witness identified the photographs of the Deceased which were marked as MFI (a) and further informed the Court that she observed the body of the deceased and discovered that he had a stab wound on the left - hand side between the abdomen and chest and that right hand side of the forehead had bruises. She then identified the Accused in the dock.
Further PW 7 told the court that he had a P3 Form and treatment notes for the Accused which he produced as PEX 9 (a) and PEX 9 (b) respectively. The accused person was examined on 26 th December, 2021 at around 9 pm after she was brought to the hospital by police officers from Inuka Police Station. The Accused informed him that she had a history of physical assault by a known person who was her boyfriend and had multiple body injuries. Upon examination, the right eye was swollen with notable tenderness, lower lip had lacerations and was swollen, right wrist joint was tender and she had a cut wound on the right finger. From the examination, he formed the opinion that the Accused suffered soft tissue injuries secondary to assault.
According to the Accused person, on 26 th December, 2021, she was sleeping in her house when at 4am, the deceased who was her ex-lover came and knocked on her door and requested that he let him in. Upon opening the door, he discovered that the deceased was armed with a metal rod and knife and the deceased demanded that they had sex but she refused as they had separated about five months ago as he used to abuse drugs and assaulted her severally.
The burden in a case where the defense is raising self-defense, the burden of proof does not shift from the prosecution. The duty of the accused is to lay before the court facts upon which the defense of self-defense is based in order to enable the court and the prosecution to rebut the self-defense with other evidence as was held in the case of Chan Kau v R (2) (1955) W.L.R. 192 that was cited with approval in Morris Mungathia vs Republic Criminal Appeal No. 212 Of 2006 Court of Appeal at Nyeri. No such rebuttal evidence has been adduced.
The accused having admitted that she inflicted the injury that culminated in the death of the deceased the only issue for determination are whether the act by which he caused the death of the deceased was an unlawful act and whether he had malice aforethought. In the case of Sharm Pal Singh v R [1962] EA 13 the court held: -
“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 the excusable, it must have been under justifiable circumstances, for example in self-defense or in defence of property.”
The defence of self-defense is provided for in Section 17 of the Penal Code which states: -
“Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.”
The said common law principles were spelt out in the case of Palmer v Republic [1971] AC 814 in which it was held: -
“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
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The Prosecution case
The prosecution called a total of 9 witnesses whose evidence was as follows: -
PW 1 MWANASITI DAMA KARISA , a neighbor to the Accused person informed the court that her house was the first one from the main gate while the Accused's house was the 3 rd one from the main gate informed the Court that on the material day i.e. on 25 th December, 2021, at around 10pm she was in the company of her husband MOHAMED and child ISMAIL who went to sleep. At around 4 am, the accused person came knocking at her door seeking her help and when she opened her door, she saw blood drops on the corridor and when she moved towards the Accused’s house, she saw the deceased lying on the floor facing upwards. The witness further informed Court that prior to the Accused knocking at her door, she did not know what had happened but accompanied the Accused to where the deceased was lying unconscious half naked with only a trouser on without a shirt; at the Accused's door step and there were blood stains from the Accused's door to the main door.
PW 1 told the court that the accused had gone to request them to help her carry the deceased out of the house so that she could take a motor bike rider and take the deceased to hospital which she did and went back to sleep. That later on, the police came, took her to Likoni Police Station where she recorded her statement.
When cross examined PW 1 reiterated that she had not been served with the DNA report and photographs. The witness was stood down and when she was recalled she told the court that she did not see any injury on the deceased's body but confirmed that the deceased came to the Accused’s house at least once a week and closed her examination in chief by identifying the body of the deceased in the photograph which was marked as MFI-1.
When cross examined she stated that she knew the Accused well as they had been neighbors for about 2 months as at the time the Accused rented her house there, she found her already renting there as she had moved in that house in 2020. The witness reiterated that she did not know what happened or who injured the deceased but only that the Accused knocked at her door and asked for her help. Further, the witness informed the Court that the deceased frequently visited the Accused but did not know how they related and that on the material date, she did not hear any sound coming from the Accused's house but that only when she opened her door, she saw blood drops on the corridor that went up to the accused's house. Any injury on the deceased's body according to the witness was that for the time the deceased visited the Accused, she did not know of any differences between them.
When reexamined she confirmed that the blood drops were on the corridor up to the Accused's house.
PW 2 HALIMA ALFAN MZEE , another neighbor to the accused and who had known the accused for 2 months told the court that on the material day, at around 4:00 am, the Accused came and knocked her door and requested for her help to enable her take her husband to hospital. When she arrived at the Accused person’s house, she found the deceased lying at the door and when she inquired from the Accused what had happened, the Accused did not tell her. It was the further evidence of the witness that when she further asked the Accused what means she wanted to use to take the deceased to the hospital, she informed the witness that she had called a motor bike and when the motor bike came, they helped the Accused board the motor bike with the deceased and she took him to hospital while she went back to her house.
PW 2 told the court that she used to see the deceased once in a while at the Accused's house and that on the material day, she found him lying outside the Accused's house only wearing a trouser but did not see anyone else apart from the Accused in the house. The witness further informed the Court that she did not check what type of injuries the deceased had but identified the deceased from the photo and also identified the Accused at the dock.
When cross examined she stated that she knew the deceased as the Accused’s husband as he visited the Accused who was her neighbor in the Swahili house they were living once in a while and that the Accused had informed her that he was her husband. The witness further informed the Court that she did not see any injury on the body of the deceased or hear any commotion on the Accused's house on the material day.
PW 3 PETER MUSYOKI , the deputy OCS, Inuka Police Post told the court that on 26 th December, 2021 at around 7am, he received a call from the Likoni Investigation Officer who informed him that on the night of 25/12/2021 there was someone who was injured within Inuka Police Station and further informed him that he was referring to him a lady who needed his assistance. That at around 9 am, the Accused came and introduced herself to him and confirmed to him that she was the one who had been referred to him. PW 3 informed the court that he interrogated the Accused about the incidence and the Accused informed him that he has been cohabiting with the deceased and that on the material day he arrived home late at night with injuries. The witness further informed the Court that on further interrogating the Accused, he found that her explanation was not adding up as he saw her with a swollen right eye and lips and suspected that the deceased and the Accused might have fought.
PW 3 stated that he then informed the DCIO who came with a crime of scenes officer where the Accused was requested to lead them to her house which was near the Police station. On reaching the Accused’s house, there were blood drops from the main gate to the Accused’s house and the door curtain also had blood stains. The witness further informed the Court that there was a blood - stained kitchen knife with a light blue plastic handle on the floor in the Accused’s house.
The witness further informed the Court that on observing the house, everything in the house was scattered which was an indication of a fight in the house. The scenes of crime officer took photographs of the scene and swabs of the blood stains at the scene and collected the blood -stained curtain and knife together with inner wear suspected to belong to the deceased and handed them to the scenes of crime officer for analysis and arrested the Accused person and took her to Inuka Police Station where later the DCI Likoni took over the matter for further investigations.
PW 3 identified the photographs that were taken from the Accused's house which were marked as MFI 1 (a-r), the knife as MFI-2, the door curtain MFI-3,the blue stripped inner wear MFI -4. The inventory of Exhibits signed by the Accused MFI-5and a Kenyan passport belonging to the deceased MFI-6.
When cross examined he stated that he did not witness the offence happen but only that he received a call from DCIO, Likoni Sub county informing him that there was a lady who had informed him that there was someone who was injured and needed their help and the DCIO referred the Accused to him. The witness further informed the Court that the Accused who had a swollen lip and eye led them to the scene where they found blood stains on the entrance. That upon interrogating the Accused who became evasive, he handed over the Accused to DCIO on the same day for further investigations.
Further PW 3 confirmed that he was not informed if the Accused was taken to Court and was not aware of any break in into the Accused's house as no report had been made. Prior to the incidence which occurred on the night of 25 th December, 2021. The blood stains from the curtain, knife and floor were taken for analysis and that the disarray in the Accused's house was not compatible with someone who was either moving in or moving out. That the Accused was one of the people who took the deceased to hospital and a knife was found at the scene which was an exhibit in Court.
PW 3 stated that during interrogation, the Accused confirmed to him that she was a friend to the deceased who would visit her once in a while. From his observation of the house of the Accused, it was apparent that there might have been a fight there but when he interrogated the Accused on the same, she became evasive which made him refer the matter to DCI for further investigations.
PW 4 JAMUHURI SALIM , told the court that the deceased, was his nephew who died in December, 2021. The witness further informed the Court that on 26/12/2021 he received information from one member of the family informing him that the deceased had died in hospital.
Together with BAKARI HAMISI they went to identify the body for post mortem and witnessed the post mortem being conducted on the deceased.
When cross examined he stated that he did not witness the offence happen but only identified the body for post mortem and witnessed the post mortem being conducted.
PW 5 SAUMU SALIM , told the court that the she was a police officer attached to Likoni Police Station where she had worked there for 3 years. On 26 th December, 2021 at around 6 am, she was on duty performing general duties when she received a distress call from Mombasa Regional headquarters informing her that there was a lady within Maweni area who required their assistance and gave out the lady’s mobile number.
The witness told the court that together with PC Rehema and PC Bob, they proceeded to Maweni area and when they reached there, she called the lady's mobile number but it was not going through. They proceeded to Manyatta Hospital to confirm if the victim had been rushed there and found two middle aged men who had sustained injuries at Kombani and Ngómbeni areas being attended at the emergency section but those were out of their jurisdiction.
PW 6 stated that there was also an unconscious lady and a good Samaritan informed them that it was the unconscious lady who needed their help. The 4 th person was a body lying in a pool of blood in the emergency room and the doctor attending to the patients informed her that the deceased was brought to hospital by the Accused but had succumbed to injuries while undergoing treatment.
She moved out and met the Accused and upon interrogating her, the Accused informed her that she is the one who accompanied the deceased to hospital. That she noted some injuries on the Accused as she had a swollen lip and cheek and when she interrogated her further, the Accused informed her she was involved in a fight with the deceased which made her suspicious that she could be the one who committed the offence and took the Accused to DCI offices for further interrogation. The witness identified the photographs of the Deceased which were marked as MFI (a) and further informed the Court that she observed the body of the deceased and discovered that he had a stab wound on the left - hand side between the abdomen and chest and that right hand side of the forehead had bruises. She then identified the Accused in the dock.
When cross examined she stated that one of the patients at the hospital was an unconscious woman who was not the accused as the accused was conscious but with swollen lips and cheeks which were not bleeding. PW 5 stated that she did not establish if the Accused was assaulted or if the deceased attempted to rape her and neither did she visit the Accused’s house.
PW 6 DR ABDUL AZIZ , told the court that he was testifying on behalf of Dr. Mohamed Ali Mohamed who had gone for further studies. He informed the Court that he had worked with Dr. Mohamed Ali Mohamed for some time and was conversant with his handwriting and signature which he confirmed were exhibited in the post mortem report. The body of the deceased was identified by Jamuhuri Salim and Bakari Hamisi under the escort of CPL James Kimwetich. The post mortem report stated that the deceased was stabbed by unknown persons on the left side of his chest and succumbed to injuries while undergoing treatment at Likoni Sub County Hospital. The deceased had blood stains on nostrils and abdomen, bruises on right side of forehead, 3 stitches above the left rib, stab wound penetrating through the thoracic cage from left auxiliary line thorough left lower lung lobe up to the pericardium and through the left lateral aspect of the heart. There was massive hemothorax bilaterally cardiovascular system punctured pericardial and punctured left ventricle.
From the examination, the doctor formed the opinion that the deceased died due hemorrhage shock secondary to stab wound. The witness also informed the Court that the deceased's blood sample was taken for sampling and produced the post mortem report as Pex 8.
When cross examined he stated that the Post Mortem report was conducted on 27 th December, 2021 but was signed on 29 th December, 2021 and could not justify the difference on the date when the report was made and when it was signed.
PW 7 STEPHEN KALAU , told the court that he was a Clinical Officer working at Likoni Sub County Hospital and that he bad P3 Form and treatment notes for the Accused which he produced as PEX 9 (a) and PEX 9 (b) respectively. That the Accused was seen on 26 th December, 2021 at around 9Pm after she was brought to the hospital by police officers from Inuka Police Station. The Accused informed him that she had a history of physical assault by a known person who was her boyfriend and had multiple body injuries. Upon examination, the right eye was swollen with notable tenderness, lower lip had lacerations and was swollen, right wrist joint was tender and she had a cut wound on the right finger. From the examination, he formed the opinion that the Accused suffered soft tissue injuries secondary to assault
PW 8 OMAR MWIDADI , a government analyst stated that the Court he conducted a forensic analysis of the exhibits that was handed to him by the Police as concerns the case before Court which generated the following results and which he produced as Pex - 10.
D1,D2 and D3 were blood swabs- matched DNA profile of the deceased.
Stained door curtain orange and white in color (B1)- did not generate any DNA profile.
Kitchen knife (C1) - generated male DNA profile that matched DNA profile generated from blood swabs DI, D2 and D3 which matched blood sample of the deceased.
Blood sample of the deceased-
Blood sample from the Accused -generated a female DNA profile.
PW 9 SGT BENSON INGOTSI , told the court that on 26 th December, 2021 at around 9 am, he was requested by DCI Likoni to join them at Inuka Police Station in response to a report where it was alleged a lady had stabbed her boyfriend with a knife. When he went to the scene being led by the in -charge DCI Likoni, they found everything scattered in the room while others were broken and there was a blood-stained knife on the floor and blood stains on the wall and floor of the room. He was requested to process the room by taking photographs.
The witness explained that photographs 17 and 18 showed the stitched stab wound on the left rib and the deceased had bruises on left side of the face and left knee. He produced the photographs as Pex -11, Report and photographic Certificate as Pex 11 (a) and Pex 11 (b)respectively.
PW 10 CPL JAMES IMWETITICH , testified that on 26 th December, 2021 he received information from the Accused that her boyfriend went to her house with injuries. On receiving this report, he contacted his boss who instructed him to accompany the Accused to Inuka Police Station to make a report. That together with the Accused, they went to Inuka Police Station and made the report where they met IP Peter Musyoki who was the Deputy OCS. And handed over the Accused.
PW 10 stated that they proceeded to Likoni Sub County Hospital where the deceased was lying and found that he had a stab wound on the left side of the chest. They organized the body to be taken to Coast General Hospital for preservation and post mortem then went back to Inuka Police Station where they met other officers who had already visited the scene where a blood-stained kitchen knife, door curtain, and specimen of blood stain on the wall were recovered and taken and the scene was documented and were handed the exhibits. The Accused was placed in custody.
The witness told the court that he found the Accused had injuries and he took her to hospital where she was treated and discharged. He attended the post mortem examination where it was established the deceased died due to a stab wound on the left side of the chest, he also took blood samples from the deceased and Accused for DNA sampling. he then produced the kitchen knife as Pex - 2, curtain PEX-3,deceased underwear P ex-4, deceased passport Pex - 5,Exhibits inventory Pex - 6,P3 Form Pex - 9 (a), treatment notes Pex 9 (b). He identified the Accused at the dock and confirmed she did not have any past criminal records.
When cross examined he confirmed that the Accused and deceased quarreled and fought over their relationship as they were no longer friends and that the kitchen knife was not dusted for finger prints. The witness further confirmed that the Accused surrendered voluntarily to the police. This was the last witness and the Prosecution closed its case.
The Defence Case
DW 1 MOREEN ATIENO , the Accused told the court that on 26 th December, 2021, she was sleeping in her house when at 4am, the deceased who was her ex-lover came and knocked on her door and requested that he let him in. Upon opening the door, he discovered that the deceased was armed with a metal rod and knife and the deceased demanded that they had sex but she refused as they had separated about five months ago as he used to abuse drugs and assaulted her severally.
When she refused to have sex with him, the deceased hit her with a fist and she accepted to avoid an escalation of the confrontation but the deceased had changed his mind and was no longer interested in sex. This is when the deceased threatened her that either both will die or one will die and the other will go to prison. The deceased went on to hit her on the mouth and eye and hand and injured her which injuries were evident when she was first produced in Court. The deceased hit her on the head with a metal rod. When she saw the confrontation was getting worse, she tried to escape but the deceased caught her one of her braids and pulled her back to the house. In the commotion, one of her braids came off. She fell on her back and that is when the deceased hit her on the head with a metal rod. He then removed the knife and wanted to stab her as he lay on top of her.
DW 1 told the court that she struggled with him as he held the knife trying to stab him and as he had overpowered her, she used her both hands to restrain her and that is how she sustained a cut on her finger. The witness informed the Court that as they struggled, the deceased stabbed himself and she only started to see blood oozing from him and she was very shocked. She then went and called her neighbors to help her board the deceased to a motor bike to take her for treatment but unfortunately, he succumbed while undergoing treatment. Upon his demise, he reported the incidence to the police, was arrested and produced to Court to face the charges that faced her in Court. She was taken to hospital and treated for the injuries that she sustained in the scuffle.
When cross examined she confirmed that the incidence happened in her house and it is the deceased who came and woke her up at 4am. She disputed one of the Prosecution's witness accounts that she had said the deceased came while injured and reiterated that what she had informed the Court was a true account of what had happened on the material day. The witness further informed Court that she did not know where the deceased was injured but only saw him bleeding.
Analysis and Determination
Considering the testimonies of both the prosecution and defence it was now upon this Honourable Court to determine whether or not the offence of Murder had been proved beyond reasonable doubt.
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. The accused persons herein face 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.”
The question that arises is whether the prosecution has proved the death of the deceased; that Accused persons caused the death and that they actuated by malice. In the case of Republic – Versus - 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 – Versus - 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 of the deceased
The post mortem from Pext 8 filed by PW 6 Dr. Mohamed Ali Mohamed signed on 29 th December, 2021 revealed that death was as a result of hemorrhage shock secondary to stab wound. The description of the injuries were blood stains on nostrils and abdomen, bruises on right side of forehead, 3 stitches above the left rib, stab wound penetrating through the thoracic cage from left auxiliary line thorough left lower lung lobe up to the pericardium and through the left lateral aspect of the heart. There was massive hemothorax bilaterally cardiovascular system punctured pericardial and punctured left ventricle.
Proof that accused person committed the unlawful act which caused the death of the deceased
PW 1, PW 2 and PW 3 identified the accused person as the person who took the life of the deceased. PW 2 told the court that she used to see the deceased once in a while at the Accused's house and that on the material day, she found him lying outside the Accused's house only wearing a trouser but did not see anyone else apart from the Accused in the house. The witness further informed the Court that she did not check what type of injuries the deceased had but identified the deceased from the photo and also identified the Accused at the dock. The incident took place around 4:00 am and I find that there existed conducive conditions for recognition of the Accused person. Recognition is not denied by the accused person in her testimony.
Malice Aforethought
Having found that the prosecution has proved actus reus, the issue for determination is whether malice aforethought can be inferred now that the injury of the deceased caused his death. The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves any one or more of the following circumstances:
“(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) An intent to commit a felony;
(d) An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
In order to find a conviction on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law dictionary, 10 th Edition malice aforethought is defined as:
The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule).
When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under section 202 Penal Code which is punishable under section 205 Penal Code by a term of imprisonment extending up to life.
In “Morris Aluoch – Versus - Republic Cr. Appeal No. 47 of 1996 [1997] eKLR)” , the Court of Appeal cited the case of “Rex – Versus - Tubere S/O Ochen (1945) 12 EACA 63” with approval where it was in stated as follows:-
“If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days late.
In this case, PW 6 told the court that they were called to proceed to the hospital as there was a person who had been injured when they got there they were informed that he had succumed to his injuries. The accused person had accompanied the deceased to the hospital. PW 6 noted some injuries on the accused as she had a swollen lip and cheek and when PW 6 interrogated her, the accused informed her that she had been involved in a fight with the deceased which made PW 6 suspicious that she could be the one who committed the offence and took the Accused to DCI offices for further interrogation. The witness identified the photographs of the Deceased which were marked as MFI (a) and further informed the Court that she observed the body of the deceased and discovered that he had a stab wound on the left - hand side between the abdomen and chest and that right hand side of the forehead had bruises. She then identified the Accused in the dock.
Further PW 7 told the court that he had a P3 Form and treatment notes for the Accused which he produced as PEX 9 (a) and PEX 9 (b) respectively. The accused person was examined on 26 th December, 2021 at around 9 pm after she was brought to the hospital by police officers from Inuka Police Station. The Accused informed him that she had a history of physical assault by a known person who was her boyfriend and had multiple body injuries. Upon examination, the right eye was swollen with notable tenderness, lower lip had lacerations and was swollen, right wrist joint was tender and she had a cut wound on the right finger. From the examination, he formed the opinion that the Accused suffered soft tissue injuries secondary to assault.
According to the Accused person, on 26 th December, 2021, she was sleeping in her house when at 4am, the deceased who was her ex-lover came and knocked on her door and requested that he let him in. Upon opening the door, he discovered that the deceased was armed with a metal rod and knife and the deceased demanded that they had sex but she refused as they had separated about five months ago as he used to abuse drugs and assaulted her severally.
The burden in a case where the defense is raising self-defense, the burden of proof does not shift from the prosecution. The duty of the accused is to lay before the court facts upon which the defense of self-defense is based in order to enable the court and the prosecution to rebut the self-defense with other evidence as was held in the case of Chan Kau v R (2) (1955) W.L.R. 192 that was cited with approval in Morris Mungathia vs Republic Criminal Appeal No. 212 Of 2006 Court of Appeal at Nyeri. No such rebuttal evidence has been adduced.
The accused having admitted that she inflicted the injury that culminated in the death of the deceased the only issue for determination are whether the act by which he caused the death of the deceased was an unlawful act and whether he had malice aforethought. In the case of Sharm Pal Singh v R [1962] EA 13 the court held: -
“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 the excusable, it must have been under justifiable circumstances, for example in self-defense or in defence of property.”
The defence of self-defense is provided for in Section 17 of the Penal Code which states: -
“Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.”
The said common law principles were spelt out in the case of Palmer v Republic [1971] AC 814 in which it was held: -
“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
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