Republic v Mbithe [2023] KEHC 23925 (KLR) | Murder | Esheria

Republic v Mbithe [2023] KEHC 23925 (KLR)

Full Case Text

Republic v Mbithe (Criminal Case 17 of 2019) [2023] KEHC 23925 (KLR) (17 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23925 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 17 of 2019

MW Muigai, J

October 17, 2023

Between

Republic

State

and

Faith Kavindu Mbithe

Accused

Judgment

1. The accused person Faith Kavindu Mbithe was charged with the offense of murder of one David Wambua (deceased).

2. The information that led to the arraignment of the accused person before the Court was as follows:Murder contrary to Section 203 as read with Section 204 of the Penal Code, Laws of Kenya.Faith Kavindu Mbithe: on 11 day of April,2019 at Muselele Village, Sengani Location within Matungulu Sub-County in Machakos County murdered David Wambua Musau.

The Prosecution Case 3. The prosecution case was anchored on the evidence of eight [8] witnesses.

4. PW1 Solomon Makau J Ndolo, gave his sworn evidence and told the court that he received a call from his village chairman Thomas Mbithi, he went to him and he was alerted that somebody had been killed and the body was at the morgue. Testifying that they left for Kangundo District Hospital where they saw the body and proceeded to Kangundo CID to fetch police officers to witness the post mortem which was conducted and revealed that the deceased bones had been broken. According to PW1, they lodged a report and investigations commenced. PW1 stated that he knew the accused very well since her father is his cousin and that the child killed was the accused’s son. According to PW1 it is the accused who killed the deceased.

5. In cross-examination by Mr. Muema for the accused, PW1 testified that father to accused is his cousin and that he had no problem with the accused, testifying that he received a call from his Chairman and rushed to the place on 12/4/2019 accused had not been arrested, the incident had occurred on 11/4/2019. He stated that he did not find the child at home but at the morgue and that he did not know the cause of death. PW1 did not find the accused at the mortuary and he insisted on post mortem since the child was not ailing from any illness and he did not see any injury on the body.

6. PW2 Thomas Mbithi Kioko, told court that on 11/4/2019 at about 9 pm his wife Angelina Mundu alerted him about the demise of the deceased herein and since it was at night he could do nothing until the following day. PW2 the area chairman alerted his deputy and they proceeded to Kangundo hospital mortuary. He stated that the body had some bruises on the neck and he suggested that a post- mortem be conducted on the body. They engaged the police over the matter. According to PW2 the police witnessed the post- mortem examination and the doctor opined that the deceased had been strangled. That it was decided that the accused who is the mother to the deceased should be questioned over the death. PW2 told the court that the police arrested the accused who was before court. PW2 told Court that the deceased was the accused’s child and that one Musau had been her boyfriend who sired the child with her.

7. In cross-examination by Mr. Muema for the accused, PW2 stated that he was Chairman of Baa Mbithi Clan and that he did no visit the scene or hospital when he received the information hence could not tell how the deceased was handled in hospital while undergoing treatment and that the accused did not run away but remained at home. According PW2, he saw bruises on the deceased’s neck and that Francis Nzui is father of the accused and was with them at the time. He told Court further that him with others ensured that the accused was to be arrested over the death of the deceased; that the accused was arrested while at home and that they did not conduct any investigations leading to the arrest of the accused; he told court that the deceased was about one-year-old. PW2 testified that he had not heard the accused molesting the child and did not bother to look for the rope used to hang the deceased. He testified that he was in the company of PW1 at the Mortuary and that he did not know whether another assailant was involved in the murder other than the accused.

8. PW3 Mary Mbithe told court that the accused herein is her daughter and she recalled on 11/4/2019, PW3 was at Kamene when the accused herein called her and informed her that the child had died. Testifying she had attended a funeral and her daughter asked what she was doing yet her child had died. Those in the said funeral advised that they take the child to hospital.

9. PW3 went home and took the child to Kasusu hospital from where they were referred to Kangundo and asked by those in attendance to place the child on the bed; her daughter was asked to go and report to police and they were advised to go home and return the following day. It was her testimony that they reported to the hospital the next day as directed and were shown the body of the child; PW3 saw marks on the neck resembling those made by mosquito net tied around it and post mortem was conducted on the body but she did not witness it. PW3 told the court that the deceased was called Wambua and that the accused is the mother of the deceased. She testified earlier in the day she left the accused and the deceased in good health as she went to attend a funeral. According to PW3 the father of the deceased lived together previously and parted ways. The accused used to wash clothes for people and used the money to support the child.

10. In cross-examination by Mr. Muumbi for the accused, PW3 testified that she left the deceased in the company of the accused as she proceeded to the funeral around 12 noon and that she could not tell if other persons visited her home while she was away. Testifying that she did not see the accused interfering with the child and she did not know what transpired as she was away. PW3 told the court that the accused loved her child very much and she doubted if she could harm her child and that she did not witness the postmortem examination.

11. In Cross-examination by court, PW3 lamented that the Accused’s husband used to assault her daughter and she advised her to go home and stay with her.

12. PW4 Francis Ngui told the court that the accused herein is his daughter and on 11/4/2019 he was working in a place called Kyaume where he worked up to 2pm and returned home. He testified that he found her daughter with the child and he rested for 2 hours and then went back to his place of work. According to PW4 his grandchild was in good health as well as the accused. He left his place of work at 6pm and proceeded to Tala market where he joined his friend for drinks. PW4 arrived late and went straight to sleep and that the following day in the morning his wife and the accused left for Kangundo with him remaining at home. Later his Friend called Tom alerted him that his grandchild was at Kangundo hospital and paid his fare to Kangundo.

13. On arrival he found her daughter in the company of another man and she informed him that she was looking for her child. He told court that his wife and a sister in law arrived and they proceeded to the mortuary where they found the body of the deceased still in his clothes. That the morgue attendants removed the clothes and alerted them that it seemed the child had been strangled. He opined that post mortem was conducted on a Monday and there was a police officer witnessing it. The doctor confirmed that the child had been strangled. He testified that his daughter had no problems at all and they used to support her as her husband had abandoned her and that his daughter used to wash clothes in people’s home and used the money to support herself and the child. PW4 stated that the accused’s husband did not pay dowry to him and that the accused had children and that the eldest lived with her husband while she lived with the youngest deceased herein and that he is aware the deceased was fathered by a different man.

14. In cross-examination by Mr. Muumbi for the accused, PW 4 stated that Tom informed him that the child was at Kangundo as he had met his wife and daughter heading there, testifying that the accused and his wife did not inform him about their reasons for going to Kangundo and that he had a hangover that morning and that’s why he did not inquire about their going to Kangundo. PW4 told court that he has other daughters who are enrolled in boarding primary Schools and that the other Child’s school at Kyaume Primary School. He stated further that he came home for lunch at 2pm and met the accused and the child and that when he came at night he did see accused and her child as it was late. PW4 found the wife already a sleep hence he could not know what had transpired and that the accused loved her child very much and it is not possible for her to harm the child. He could not tell if somebody else visited his home and committed the crime as he was away.

15. PW5 Mariam Saitoti gave her evidence that she could recall on 11/4/2019 around 4:30 pm she was preparing to go to the market when the mother of the accused went to her place as the accused used to wash clothes for them. The accused arrived and informed her mother that her child had died. They went to their home where the accused fetched the child and wrapped it with a lesso. PW5 suggested that they go to the hospital. Later they received a report that the child had died and they were called to go and record police statements. Testifying that the accused is in court and is the mother of the deceased. She told court that her family is neighbour to that of the accused and that the accused had many challenges in her marital life.

16. In cross-examination by Mr. Muumbi for the accused, PW5 lamented that the accused visited her house twice that day trying to request her mother to go and check on the child; that the accused claimed that the child had died of pneumonia and that PW5 did not know what happened to the deceased.

17. PW6 Dr. Katua told court that he is a Pathologist and a qualified Specialist trained in family medicine with 1st degree at UON in 2004 and later Moi University 2018. He stated that he did the Post mortem of David Wambua Musau at Kangundo Level 4 Hospital on 15/4/2019 at 12 noon and the findings were; - a naked body male black African and good nutrition, the child was aged 14 months. He observed during the Post Mortem linear laceration of the neck and bruises on the neck extending to both lateral and Posterior sides; fracture axis vertebral bone and subcutaneous, muscular, facial ecchymosis, erythema along linear bruise mark and the rest of the body of the child was fine. PW6 stated that as a result of the examination he formed the opinion the cause of the death was strangulation. Specimens were taken and the report was filed and signed by PW6 on 15/4/2019. He produced the post mortem report P. Exhibit 1.

18. In cross examination by Mr. Muema for the accused, PW6 told court that he is at Kathiani Level 4 Hospital being there since 2020 but before then he was in Kangundo level 4 hospital and the Post mortem form the copy supplied to the defense and the one with him. He stated further that the P. 3 Form given to the defense is marked C-1 (i) and they are the same and that the P.3 forms have signatures, title and designation and the ones which pointed to did not have the designation and his name. He testified further that post mortem report the time of death is 10/4/2019 at 1900 hours and that from the report the child died on 10/4/2019 as per the information that is the date /time of death. He told court that the child died of strangulation and he did not find out the person who strangled the child. According to PW6 there was no DNA to determine the one who strangled the child and he could not determine the physique of the person who strangled the child and that other than strangulation he did not find out that the child was sick. PW6 was called by the police to conduct a post mortem.

19. In re-examination by the state counsel/ prosecutor, PW6 stated that the name of the deceased is Eric Wambua Musau and that he is the doctor who carried out the post mortem at the hospital. PW6 confirmed the authenticity of his signature on the form and the authenticity of Kangundo hospital stamp.

20. PW7 Peter Wambua, told court that he knows the accused person being a daughter of his younger brother and that he knows David Wambua Musau having seen the said David since he was born by the accused person and died on 12/4/2019 at 1 pm. Testifying that he was called by his cousin Solomon and him that Faith’s child was found dead and that they were at Kangundo Hospital asking him to go there. PW7 found Solomon, Thomas and Francis all members of the family. They stayed at the hospital and then went to Kangundo Police station and came the next day; that they went to the hospital and the doctor examined the child, stating that the cause of death was strangulation after that they went home to discuss the matter and the next day they went to Tala Police Station. PW7 knows Faith Kavindu being his brother’s daughter and that he took care of her and her child by supporting her. According to PW7 he did not find her with any problem and she was fine with her child.

21. In cross-examination by Mr. Muema Counsel for the accused, PW7 told court that he was called on 12/4/2019 and the child died on 12/4/2019 the same day the child died. Further that they went to Kangundo and they were told that the child was in the mortuary. PW7 stated that the child died on 12/4/2019, he did not know if the doctor said child died on 10/4/2019 and when the child died he was not there. He did not know if the child was strangled as that is what the doctor said and he was not there.

22. PW8 NO 233625- Chief Inspector Samuel Guyo, testified that he is currently OCS Lugumek Police Station and on 15/4/2019 he was in Tala Police station he was the OCS there then; that at 2pm he had three men who went, Francis Ngui Kilonzo, Solomon Makau and Thomas Mbithi Kioko. They told him that they were sent to him from Kangundo Police station. They had post mortem form which they gave him and had Investigation Diary with OB of Kangundo Police Station reported on 11/4/2019 and he took Faith Kavindu. PW8 testified further that he looked at the post mortem form and read it and it was filled in by Dr. Katua. When he read the post mortem it was for a child David Wambua Musau aged 14 months at the time and after he spoke with the three men they told him that the child belonged to Faith Kavindu and he conducted investigations and on the same day they went to the accused person’s home and found her, and they suspected her. PW8 recorded the statements from witnesses and concluded that the accused person was involved/ caused the death of her child and she lived with the child as the accused confirmed that she was.

23. In cross-examination by Mr. Muema counsel for the accused, PW8 told court that he was the investigating officer in the matter and he decided to charge the accused person with murder of the child and the work of the investigations is to find out the truth and complete evidence and arrest the accused. Testifying that he received the report and then wrote statements and visited the scene and arrested the accused and interrogated her and opened a police file for the accused.

24. According to PW8, he received the report at Tala on 15/4/2019 and that he was brought an OB extract from Kangundo Law Courts, he received a murder incident and had a post mortem filled by medical officer. PW8 did not record the OB extract statement was brought to him. He told court that he interviewed the 3 people who went to the police station having been referred to him and he recorded statement from the. He told Court further that he did not ask the 3 men if they had an issue with the accused person and he did not write in his statement that he went to the scene and it is Kamukuti village. He visited the Accused’s home the same day and recorded it in Investigation Diary. PW8 testified that there was no blood at the scene and the accused had the child and even stopped her mother from holding the child. PW8 did not take any photos when the 3 men went to Tala police station, the post mortem was filled and he interviewed the three men who went to the office and that there were no independent investigations as the evidence was from the witnesses; that he did not rely on the family members only and did not record any statement from other people.

25. He told Court that none of the witnesses saw the offence being committed. He told court that when the post mortem was filled he was not there and he did not know why it was indicated 10/4/2019 and it is an error it is on 11/4/2019. PW8 was involved in the matter on 15/4/2019 having not involved himself before then but he referred to the OB extract and the post mortem report. According to PW8 the child was killed on 11/4/2019 and he did not see the error on the post mortem report. He further lamented that the doctor is the only one who can confirm how the strangulation of the child occurred. He suspected that the accused used her hands to strangle the child and only the medical doctor would tell. He told Court that he is not aware of a clothing used as that cloth was not recovered hence did not come across the issue of the clothing. PW8 investigated the matter he went to the scene and did not find any weapon; he did not find anything else at the scene having gone to the scene the same day when he arrested the accused person. PW8 went to the accused home in the evening and arrested her on 15/4/2019 and recorded statements on 16/4/2019. PW8 claimed that he had reasons to arrest her as she was about to flee and did not record in his statement that the accused was about to flee and he cannot disclose the source of his information. PW8 arrested the accused and he relied on preliminary investigations having visited the scene the same any and did not get any weapon or cloth and he did not get to see the body as he went the next day and the mortuary attendant was not there.

26. In re-examination by the state counsel/ prosecutor, PW8 told court that the statement is a summary of the investigations and the relatives of the accused person during the preliminary investigations led to the accused person Faith Kavindu as the child was her son and she was with the child.

27. The prosecution closed their case and directions were issued by court that matter on a case to answer be canvassed by written submissions.

Ruling on a case to answer. 28. The Court by Ruling dated 27th October,2022 found inter alia that the prosecution had proved a prima facie case and that the evidence on record disclosed commission of the criminal offence of murder c/s 203 of the Penal Code and was sufficient to warrant the accused person be placed on her defense.

The Defence Case. 29. The Accused person having placed on her defence, gave her defense by sworn statement without calling witnesses.

30. DWI Faith Kavindu Mbithe, gave her sworn statement and told court that she lives in Muselele in Kangundo and she was selling clothes and she was aged 21 years at the time. Testifying that she lived with her father in the same house, they lived 4 people at the time, her, her father, her mother and her brother and her child too. She told court that her child was 1 year and 8 months and she lived with him all those months. She claimed that on 11/4/2019 what happened, she woke up and did her work. She told Court that she woke up at 6 am and her parents were there. Her father went to work and her mother went to do a casual job. She stated that her father is a Mason and her mother washes clothes and that she stayed well until at 4:30 PM. She found the child was asleep and she woke him to go to sleep and she pulled the door. She went to get milk for him from the shop and not very far and when she came back she went on with her work and she cooked food she saw that the child had slept for long and it was at dinner time. She went to check on the child and woke him up and she found the child was cold.

31. DW1 claimed that she was shocked and ran to call her mother where she was washing clothes. She found her mother and they went and took the child to hospital at the market in Tala. DW1 testified that the hospital is called Kwa Kasusu and that the child was treated and they were told to go to Kangundo Hospital. She claimed that the child was alive at the time and at Kangundo Hospital they were told by the doctor that the child died. She was then told to go and report at the police station and she got an OB number and went home. Testifying that the next day she was to go with family members to the hospital and then to the police. According to her, when they went there, she went remained outside and the rest of the family went inside and later came out after a long time and went home. She claimed that on 12/4/2019 when they went to the hospital with family members and she was arrested on 15/4/2019. She stated that she was at home when she was arrested and that from the day the child died and the day she was arrested she did not abscond and she was at home where she was before. DW1 told court further that the child who died was 1 year and 8 months and she loved her child as the said child was healthy. And the doctor said the same when he testified in court. DW1 testified that she had no intention to strangle/kill/ murder the child and that she had the child for that long and no one else and that if she intended to do anything harmful to the child she would have done so, stating that she did not murder the child.

32. In cross-examination by Mr. Mwongera the state counsel, DWI told court David Wambua Musau was her child and she lived with her father, mother and her brother; that on 11/4/2019 her father left and she was left with the child and took care of the child and that anything that happened to the child the only person to ask is the mother of the child and that she was with the child. She stated that she had not indicated that anyone saw her go to the shop and left the child sleeping as she went to the shop to buy milk for the child and neighbors saw her and they are not in court. She testified further that her together with the parents PW3 & PW4 took care of the child; that they had problems and the financial strain was there and her parents helped with the child as the child’s father did not help her.

33. In re-examination by Mr. Muema counsel for the accused, it was DW1’s testimony that she went to the shop and left the child as sleep in room at home and that she did not know what happened while she went to the shop and that there were neighbors who saw her going to the shop. She claimed that since she was arrested she had been in custody and she could not call them as she was in custody and could only call them as witnesses is she was out of custody. She told Court further that her parents helped take care of the child and they did not have any problems. She testified that she has never been found not to care for the child and that she did not know what happened to the child and she did not do anything to the child.

34. Upon the close of the defense case, directions were issued by court that the matter be canvassed vide written submissions with which each party was given seven days to comply.

Submissions Accused Person’s Written Submissions. 35. The Accused person relied on the case of Republic vs Abdi Ibrahim Owl [2013] eKLR on definition of a prima facie case. The prima facie case is one which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the Defense.

36. The accused person by her written submissions dated and filed in court on 10th May, 2023, Mr. Muema counsel for the accused in his submission placed reliance on the case Anthony Ndegwa Ngari Vs Republic [2014] eKLR, to buttress his point on the elements of the offence of murder. Counsel contended that it is not in doubt that a life was lost. The manner in which the life was lost is what is in doubt. Counsel averred that from the evidence tendered before the court by the prosecution witnesses, there is no witness who witnessed the accused person commit the offense she has been charged with as all the witnesses confirmed to have seen the deceased after he had died. According to the counsel nobody knows how or who killed the deceased. The counsel went further to rely on what the accused person had testified in Court.

37. It was the Counsel’s contention that what is doubt is whether the accused person herein committed the unlawful act which caused the death of the deceased and whether the accused person had malice aforethought to commit the offence. Mr. Muema opined that the prosecution did not call any witness that saw the accused person commit the offence as the evidence tendered were those of witnesses who were not at the scene at the time of the alleged offence and were shocked as the accused person to find the baby motionless and cold just as the accused person.

38. Counsel urged that the ingredients of the offense of murder had not been proved in this matter as defined by Section 206 of the Penal Code and in the case of Republic vs Albert Titimba Ogata [2014] eKLR. The accused on her defence has exonerated herself from committing the offence. According to the counsel the accused has already suffered enough as she lost her only child and before she could bury him, she was arrested and charged with murder and has been in custody from 2019 to date.

39. Counsel urged the court to acquit the accused person who according to counsel has already suffered enough punishment as a young mother who deserves to mourn the death of her son and get closure.

Submissions by the State 40. The state vide its submissions dated and filed in court on 23rd May,2023, the state counsel Mr. Mwongera relied on the cases of Republic Vs Mhammed Dadi Kokane & 7 Others [2014] eKLR and Republic Vs Daniel Musyoka Muasya, Paul Mutua Muasya and Walter Otieno case No. 42 of 2009, to buttress his point on what constitute the elements of the offence of murder and submitted on the following issues:a.Was the accused involved in the murder of the deceased?b.Did the accused have malice?c.Was the accused identified appropriately?d.Was the cause of death as of the injuries inflicted?

41. As to issue of involvement of the accused in the murder of the deceased, State counsel relied on the testimony of PW3 and PW4 which clearly indicated that the accused person was the last person to be seen with her child alive as the said witnesses left the accused and her child in good health at home before proceeding to their various endeavors for the day.

42. On the issue of Malice, counsel placed his reliance on Section 206 of the Penal Code to support his point on malice aforethought and averred that the accused had malice aforethought since she strangled her child due to harsh economic hardship.

43. As to the issue of the accused identification, it was the counsel’s averment that the accused was properly identified by PW3 and PW4 who are the parents of the accused person.

44. Regarding cause of death, it was submitted that PW6 testified that the cause of death was due to strangulation. Reliance was places on the Cases of Ronald Nyaga Kiura vs Republic [2018] eklr, Ramanlal Trambaklal Bhatt vs Republic [1957] EA 3323 AT 334 AND 335 and R Vs Jagjiwan M. Patel and Others (1) T.L.R (R) 85, to buttress his point on the establishment of prima facie case.

45. It was state Counsel’s submission that it has proved beyond reasonable doubt and the accused ought to be convicted of murder under Section 203 read with Section 204 of the Penal Code.

Determination Court Proceedings/record 46. The matter commenced hearing on 15/5/2019 by Hon. D. K. Kemei J. An initial Mental Assessment was carried out on 6/06/2019 and filed in Court on 10/06/2019 found the accused person Not fit to plead. The Court ordered for a comprehensive mental examination. The further mental examination was carried out on 1/07/2019 declaring the Accused person fit to plead.

47. The Accused person herein took plea on 25/07/2019 whereof after the charges were read out to her in a language that she understood she pleaded Not Guilty. The Court entered a plea of Not Guilty on her behalf.

48. The Trial Court took the evidence of Pw1, Pw2, Pw3, Pw4, and Pw5. This Court took over the matter on 4/11/2021 and ordered the Court proceedings to be typed first. On 14/12/2021 the typed proceedings were ready and were provided to ODPP/Prosecution and Counsel on record for the Accused person, Mr. Muema and/or the Accused person.

49. On 7/2/2022, Section 200-201 CPC was read/explained to the Accused person by the Court Assistant in Kiswahili and she opted to proceed from where the matter stopped.

50. On 23/3/2022, this Court heard the evidence of Pw6 who produced the Post Mortem Report and Pw7 & Pw8 Prosecution closed the case and parties/Counsel were to file Written Submissions. On 27/10/2022, the court delivered the Ruling on case to answer. On 29/3/2023, the Accused gave a sworn testimony in her Defense.

Analysis 51. The Court considered the evidence on record, recorded by Trial Court, Hon D.K. Kemei J and evidence heard by this Court , the Defense and written submissions by Counsel on behalf of the Prosecution and Accused person. The matter was partly heard by this Court and partly by the Trial Court Hon. Kemei, J.

52. In Ndegwa vs Republic (1985) KLR 535 where Madan Kneller & Nyarangi JJA ( as he then was) stated;“It could also be argued that the statutory and time honored formula that the Trial magistrate being the best person to do so; he should himself see, hear, assess and gauge demeanor and credibility of witnesses. It has been and will be so in other cases that will follow. In this case , however, the 2nd Magistrate did not himself see and hear all prosecution witnesses even though he said that he carefully ‘observed’ the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanor of all witnesses in the cases. A fatal vacuum in this case in our opinion…..for these reasons we have stated in our view the trial was unsatisfactory.”

53. In Joseph Kamau Gichuki vs R Criminal appeal 523 of 2010 cited in Nyabutu & Another, the Court stressed that;“By dint of Section 200(1) (b) of the CPC a succeeding Judge may act on the evidence recorded wholly by his predecessor . However, Section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstances, not only are likely, but will defeat the ends of justice if a succeeding judge does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete trial………. See Ndegwa vs R (1985) supra. In this case the Trial Judge passed on after having fully recorded evidence of 7 witnesses….in fact [he] had summed up to the Assessors. The trial, moreover, was not a short one but a protracted one which had taken 5 years to conclude. The passage of time militated against the Trial being started de novo….”

54. By dint of the law, the Court shall consider all evidence on record cumulatively considering the fact that this Court did not see, hear and assess the evidence by PW1 PW2 PW3 PW4 & PW5 or the witnesses’ demeanor.

55. The Accused person is faced with the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code;Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.Any person convicted of murder shall be sentenced to death.

56. In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR the elements of the offence of murder were listed by M. Odero, J. as follows:-1)The fact of the death of the deceased[actus reus]2)The cause of such death.3)Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly4)Proof that said unlawful act or omission was committed with malice aforethought.[mens rea]

57. In Roba Galma Wario vs. Republic [2015] eKLR The Court held that:“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional…”

58. The prosecution through it witnesses is required to prove the ingredients set out Republic vs. Mohammed Dadi Kokane & & 7 Others supra for the charge for murder to be proved against the Accused person.

The fact of the death of the deceased. 59. PW2 identified the body of the child of the Accused for Post Mortem. PW3 mother of the Accused person took the Accused person and child to hospital where they were advised to go to the Police station and report the matter.

The cause of such death. 60. PW6 conducted the Post Mortem which revealed linear laceration of the neck and bruises on the neck extending to both lateral and Posterior sides; fracture axis vertebral bone and subcutaneous, muscular, facial ecchymosis, erythema along linear bruise mark. PW6 stated as a result of the examination, he formed the opinion that the cause of death was strangulation.The Prosecution proved this element beyond reasonable doubt.Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused person.

61. The testimony of PW3 & PW4 also confirmed by the Accused person’s defense is that the Accused person was left with the child(deceased) at home in good health. She was the last person with the child.

62. In R vs. ECK, Lessit, J. (as she then was) in analysis of the doctrine of the last seen with deceased alive stated: -“Regarding the doctrine of the last seen with the deceased. I will quote from the Nigeria: Court case of Moses Jua vs. The state (2007) (PELR – CA/11 42/2006. The court while considering the last seen doctrine held: -“Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his/or her death. In the absence of any explanation, the court is justified in drawing an inference that the accused killed the deceased.”

Proof that said unlawful act or omission was committed with malice aforethought. 63. Section 206 of the Penal Code sets out the circumstances which constitute malice aforethought“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:(a)An intention to caused death or to do grievous harm to any person whether such 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 such person is the person actually killed or not, although such knowledge is accomplished by indifference whether death or grievous harm is caused or not, or by a wish that it may be caused or not, or by a wish that it may not be caused.(c)An intention to commit a felony.(d)An intention by an act or omission to facilitate the flight or escape from custody of any person who attempt to commit a felony.

64. The evidence on record is as follows; PW1 stated the post mortem was later conducted and revealed that the deceased’s bones were broken.

65. PW2 stated upon viewing the body he discovered bruises on the neck of the child (deceased).

66. PW3 & PW4 also confirmed by the Accused person’s defense is that the Accused person was left with the child (deceased) at home in good health

67. PW6 on conducting post mortem, the deceased child was aged 14 months. Externally, there were linear lacerations of the neck and bruises on all sides of the neck. There was a fracture of axis vertebral axis at the neck and there were blood stains under the shin of the neck along the neck injuries. As a result of the examination he formed the opinion that the cause of death was due to strangulation.

68. The issue of whether the cause of death was by unlawful act was proved by PW6 , the doctor who conducted the Post Mortem and listed observations round the neck and concluded the child(deceased) died from strangulation. Every person is guaranteed right to life by Article 26 CoK 2010.

69. The evidence adduced and on record there is no direct evidence of any one who saw, was with the Accused person or found any implement, gadget or weapon at the scene to confirm that the Accused person killed, murdered or strangled the child(deceased).

70. In the absence of direct evidence, the Court relies on circumstantial evidence.

71. In the case of Abanga alias Onyango –v- Republic Cr. Appeal No. 32 of 1990 (UR) that is;1. the circumstances from which an interference of guilt is sought to be drawn, must be cogently and firmly established;

2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

3. The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

72. The evidence on record is that the Accused person, mother of the child was with the child on the day and time of untimely death of the child. PW3 & PW4 parents of the Accused, left her with the child who was alive and healthy. The Accused person was the last person with the child alive and consequently had the opportunity and access to commit the offence which resulted to the child’s death. Thereafter, the child was dead but no one saw the child being strangled. There was no evidence that another person(s) came into the house, any breaking in entry or exit of the house while the child was asleep as stated by the deceased. There was no evidence that the child found cold was sick /had pneumonia as it was not established by the Doctor/Pathologist that such sickness was established. PW 2 suggested that the child’s neck seemed like one where mosquito net can /may strangle one. This opinion was not confirmed by the Scene Visiting Officer nor was there any mention of a mosquito net when the child was sleeping. It is not possible that the child strangled himself.

73. In the absence of any one accessing entering or being in the home at the time the child was asleep in the house, any weapon being found in the house, a breaking or entry to the house, or circumstances that suggest anyone or anything else would have aided or caused strangulation of the child leaves only one logical and reasonable inference and conclusion; the Accused person strangled the child (deceased).

74. Was there malice aforethought? The State brought out the fact that the Accused person was left by the father of the child and had to fend for him herself and she lived home with her parents. There was financial hardship and constrained the Accused person. The Accused person had the Child for 1 year and 8 months and did not have any reason to strangle the child at the time. The Court has to determine each of the said facts. The Accused strangled the child but I find no evidence of intention to do so, motive to do so or pre-meditation, it happened spontaneously.

75. On the ground of lack of proof of malice aforethought and commission of the offence by the Accused person is by Circumstantial evidence which leads to the conclusion, the Accused person committed the strangulation of the child (deceased), the Court reduces the charge of murder to manslaughter.

Disposition 76. Pursuant to Section 179(1) and (2) of the CPC, the Court reduces the charge of murder and finds the Accused person guilty to the charge of manslaughter contrary to Section 202 as read with section 205 of the Penal Code.

JUDGMENT DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 17/10/2023. M.W.MUIGAIJUDGE