Republic v Veronicah Mwihaki [2017] KEHC 132 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 112 OF 2013

REPUBLIC.....................................................................................STATE

VERSUS

VERONICAH MWIHAKI.....................................................ACCUSED

JUDGMENT

The accused VERONICAH MWIHAKI faces a charge of MURDER CONTRARY TO SECTION 203 as read with section 204 OF THE PENAL CODE.

The particulars of the charge were that

“On the 6th day of October, 2013 at Olmoran Trading Centre in Laikipia County murdered SAMUEL IKAMA MBUGUA”.

The accused pleaded ‘Not Guilty’ to the charge and her trial commenced before Hon Lady Justice Abigael Mshila on 21/7/2014.

The Hon Judge heard the evidence of all the nine (9) prosecution witnesses after which she was transferred to the Nyeri High Court. I then took over the case and recorded the defence of the accused. The matter is now pending for judgment.

The offence of murder is defined by Section 203 of the Penal Code as follows:

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

In this case the prosecution have adduced sufficient proof of the fact of the death of the deceased. PW1 PETER EKAPE, PW2 PATRICK MWANGI MITHIMA, PW3  FRANCIS KARANJA WANGARI and PW4 STEPHEN NDUNGU WAMBUI all told the court that they saw the deceased had an injury to his chest. They are the ones who took him to the hospital.

PW6 SISTER LORINA BALURAN the sister in charge at Ol Moran Dispensary confirms that the deceased was admitted at their facility where he later died.

PW7 DAVID MBUGUA IKAMUA was the father of the deceased. He told the court that he went to the mortuary where he identified the body of the deceased to the doctor. All these witnesses who knew the deceased well have identified him as ‘Samuel Ikama Mbugua’

However having proved the fact of death the prosecution failed to tender any evidence to prove the cause of death of the deceased. Although the court was informed that an autopsy was conducted on the body of the deceased, the doctor who performed that autopsy was not called to testify. Neither did the prosecution produce as an exhibit any post-mortem report.

In the case of CHENGO NICKSON KALAMA Vs REPUBLIC [2013]eKLR the Court of Appeal held that

“The position then appears to be that save in very exceptional cases stated above, it is absolutely necessary that death and the cause thereof be proved beyond reasonable doubt and that can only be achieved by production of medical evidence and in particular, a post-mortem examination report of the deceased”.

This failure to adduce medical evidence as to the cause of death and failure to produce a post-mortem report is fatal to the prosecution case. Without such evidence it remains unclear as to whether the deceased met his death due to an act of culpable homicide or due to natural or other causes.

Even if the cause of death had been proved (which is not the case here) the evidence on record falls short of proving that it was the accused who committed the act or omission which led to the death of the deceased.

PW1, PW2, PW3 and PW4 only stated that after hearing shouts they went outside to find the deceased lying on the ground. Next to him was the accused who was the lover of the deceased and another man. None of these witnesses saw the accused assault or strike the deceased in any way. The very real possibility that it could have been this other man who stabbed the deceased has not been ruled out.

PW2, PW3 and PW4 state that the deceased told them that it was ‘Mwihaki’ who had stabbed him. The prosecution seeks to rely on this evidence as a ‘dying declaration’ to prove the guilt of the accused. However it is curious that when the deceased was taken to Ol Moran Hospital he informed PW6 that he had fallen down. In her evidence at Page 20 line 3 PW6 says

“He told me he had fallen down when he tried to walk”.

Under cross-examination by defence counsel PW6 reiterates that

“Told patient fell on a wire. The police note stated that he had been stabbed by a person known to the deceased”

Thus the evidence on record is contradictory regarding the manner in which the deceased sustained his injuries. Did he fall or was he stabbed. In view of those contradictions the court cannot rely on this dying declaration.

On the whole I find that the evidence on record falls short. The guilt of the accused has not been proved beyond reasonable doubt. I therefore acquit the accused of this charge of murder. The accused is to be set at liberty forthwith unless she is otherwise lawfully held.

Dated in Nakuru this 10th day of November, 2017

Ms Lagat holding brief for Orege

Maureen A. Odero

Judge