[2023] KEHC 25098 (KLR)

Republic v ANN (Criminal Case 10 of 2019) [2023] KEHC 25098 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25098 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Case 10 of 2019

RM Mwongo, J

November 7, 2023

Between

Republic

Prosecutor

and

ANN

Accused

Judgment

Background 1. The accused is a minor. She was aged 12 years on 7th March 2019 when charged with the murder of CWN, a child aged 1 ½ years. The particulars of the offence are that she murdered CWN at Kabati estate in Naivasha Sub-County, whilst working as a house help.

2. The prosecution case was made out through eight witnesses. At the close of the prosecution case court found that the accused had a case to answer. The accused gave sworn testimony in her defence.

3. PW1 AM worked as a Petrol Station pump attendant. On 7th March, 2019 at about 1. 00 pm she left her work station and passed by her neighbour’s house. On her way home, she saw the accused who works as a house help in S’s house (PW2) house feeding a baby. She passed on and went home to sleep.

4. Two hours later, she was woken by knocks on her door. It was the accused in a panic, who said the baby was not waking up. PW1 called a neighbour Mama K who was on the balcony to come over.

5. She ran downstairs to see if a neighhood doctor was there, but he was not. She returned to S’s house and went into the bedroom followed by Mama K. The baby was lying on the bed on her back, head sideways. They rushed the baby to Mt. Longonot hospital, and called S.

6. According to A, the baby was put on oxygen, but the doctor said she had died. They sent for the accused, who came later on. They later took the body to the mortuary after recording a statement.

7. In cross-examination she said that the accused had been feeding the baby; she was in shock when the baby had a problem, she said the incident was an emergency.

8. SMS, the deceased child’s mother, testified as PW2. She said that the accused was her house help/nanny and her job was to take care of her baby then aged 1 ½ years at the time of her death.

9. S testified that on 7. 3.2029 she woke up in the morning, prepared the baby, woke the accused, and left her with the baby as usual, and went to work. At about 4. 00 pm, she received a call from A (PW1) telling her the baby was unwell at Mt. Longonot Hospital. She went to the hospital and was told by Anastacia that the baby was inside with the doctor.

10. When S got in, she found the baby on oxygen and on IV fluids. Eventually a doctor told her the baby had passed on. So, she called the father, (PW3) who joined her at the hospital. They later went to Naivasha Police Station and then the mortuary. When the post post mortem was done, she said strangulation was indicated as the cause of death.

11. In cross-examination she said the accused was 15 years old when she employed her. She was introduced by her mother and auntie. Mt. Longonot hospital was about 1 km away form her home so she did not think the strangulation occurred on the way to hospital. The accused, she said was left at the Police Station. She had left her alone at the house with the baby.

12. S also admitted that the accused was a minor in her employment, and that she had shown her how to take care of the baby, a job the accused did well. She denied being negligent by employing a minor. She said that the agreement for employment of the accused was made with the accused’s mother.

13. The deceased’s father, Bernard Mwangi gave evidence as PW3. He is a tour guide and did not know the accused before the incident. On 7th March 2019 he was on safari when he was called by S, and told of the emergency. He was then at Maai Mahiu and went straight to Mt. Longonot Hospital.

14. On arrival he was told his daughter had died, before arrival at the hospital. He was given a letter to take the body to the mortuary. According to him, the doctor confirmed that the baby had been strangled to death. He identified the post-mortem report, and indicated he had neve seen the accused before the death of her daughter.

15. In cross-examination PW3 said he did not know how many people took the baby to hospital. He remembered writing a statement with the police but was not sure if he had signed it.

16. PW4 AWG was a neighbour of S at Kabati. She testified that on 7. 3.2019 she was escorting her husband and child in the afternoon when she saw a girl knocking at PW1’s door. She was frantic and saying she couldn’t get the child to wake up. PW1 came out of her house and went into Sheryl’s house. Then she came and called her to come and see.

17. When PW4 went to S’s house, PW1 told her to check the child while she went to look for a nearby doctor. A girl was seated next to the child. She was not able to confirm if the accused in the dock was the girl. She had not seen the accused before. On looking at the child, she looked sick with her face turned sideways as she lay on the bed on her back.

18. PW4 then called Mama K a neighbour, and they all went to check the child. Mama K tried to call the child, but as she did not respond, Mama Kim took a shuka and carried the baby to hospital. PW4 and PW1 followed. At hospital PW1 called Sheryl and told her the baby was sick at hospital.

19. According to PW4, S came to the hospital, went into the doctor’s office, and came out crying. The house help also went to the doctors office and he asked her what had happened. A little late PW3, BM arrived and after seeing the doctor they went to the car. Later they wrote statements at the Police Station.

20. PW5 AWK, a neighbour of S’s also testified. She said her daughter was a playmate of S’s child. On 7th March 2019 whilst she was at home, she was called by Anastacia (PW1) and got out. She meet PW4 (A) AT S’s door who told her that S’s child was not feeling well. They entered S’s house and was shown where the child was asleep - the bedroom by the accused. On calling the child, there was no response.

21. PW5 then picked and took the child, who was cold and not moving, to Mt. Longonot Hospital which was nearby. The other followed. On reaching the hospital, they handed the child to the doctor who took her to her to her office. As they awaited word from the doctor, Anastacia called Sheryl and told her to come to the hospital as the child was sick.

22. According to PW5, she went to get the accused from home to bring her to the hospital. When Sheryl came, they went to the doctor’s office. He reported that the child has passed on.

23. In cross-examination PW5 confirmed that she took the deceased child from S’s house after covering it with a lesso. The doctor told her to leave the room. She stated that the child had urinated on herself; and that there was nothing she did that could have led to the child’s death.

24. PW6 Dr. Titus Ngulungu, performed the post mortem on the deceased on 8th March 2019. He found that the child was well nutrifed. External examination showed lack of oxygen. There were bruises on the larynx and oesophagus on either side of the neck. The lungs were collapsed and exhibited haemorrhage. The stomach had food material. The doctor dissected the trachea and found bruising around the larynx, and linear abrasions running along the neck resembling a cord tightened around the neck. He concluded that: the cause of death was “Asphyxia due to grip pressure to the neck in keeping with manual strangulation”.

25. In cross-examination he asserted that the neck had strangulation, but medically he could not tell whether the strangulation was by the hand of a child or adult. He confirmed that it must be a hand that had enough power to strangle; that it the grip left on the surface of the neck could not disclose the age of the person whose hand it was.

26. The doctor further stated that he could not tell the exact time of the strangulation, but he was also to tell that when the grip was applied it led to immediate death of the deceased. The lungs had collapsed showing an aborted respiratory effort. The post mortem was done on 8. 3.19 one day after the date of death.

27. Douglas Matara Obiero a registered Clinical Officer at Mt. Longonot Clinic testified as PW7. He states that the deceased was brought to the hospital on 7th March 2019 when he was on duty. He attended to her and found she had no respiratory rate or pulse rate; she had cold extremities and pupils had already dilated. She had bruises on her neck but her body was intact. He testified the child as having died.

28. In cross-examination he said he did not do resuscitation as the child had already died. Examination was immediate as the child was brought in as an emergency.

29. PC Eliam Wekhulo No. 113621 testified as PW8. He was the investigating officer. He found out that the accused was employed on March 2, 2019 by the deceased’s mother; that on 7th March 2019 the mother left for work at 7. 00 a.m leaving the deceased at home; That the accused later went to their neighbours and said the child had a problem; that the neighbours MN and AW ran to the house and found the child asleep, and would not wake up. They then rushed the child to hospital where the doctor put the child in the emergency room where the child was pronounced dead.

30. PW8 said he interviewed the accused who, according to him, said she did the act when she was alone with the child in the house. PW8 visited the scene on 9th March 2019 but did not see anything that could have caused the death; that there were no known differences between the Accused and the deceased’s mother as she had only worked for few days. That he sae the marks on the deceased’s neck, and it appeared as if she was strangled.

31. In cross-examination he confirmed that the accused called AW and AM for help, and that it was them who took the child on foot to the hospital which was about ten minutes away. That after he concluded investigations, he arrested the accused whose age was confirmed as 14 years. It was him who recorded her statement.

32. The Accused gave sworn testimony on her defence. She stated that she was 15 years old and student at [Particulars Withheld] Primary School. She testified that she was brought to S’s house by her auntie who said she was taking her to school. She stayed at that house for 3 days. She said she was staying with the baby (deceased); that on the first and second day she took care of the baby; that he did not wash the baby on those two days; that the did not know how to take care of the baby.

33. She further stated that Mama S did not show her how to take care of the baby, but showed her how to feed the baby. She testified that she did not kill the baby and that the statement she gave at the police station was done when she was intimidated with gun by the police.

34. Her account of the events was as follows: on the material day she fed the child; that later A (PW1) came by and told her to put the child to bed, which she did, and the child slept. After that she went to wash clothes and hang them on the roof; that when she came back, she found the child was crying a lot; that she went out and called A who she had been told was the aunt, and knocked the door several times until A opened the door.

35. She testified that a neighbour whom she did not name came and took the child, put it in a lesso and took it to hospital. According to her, the child was still crying in a low tone. A told her to remain in the house. Later a lady came to ask her when she had last fed the child, and she answered that it was at 2. 00 pm.

36. Later a lady came and they went to the hospital. There, the doctor told her the baby had died. She was with her uncle P, and thereafter they went to the Police Station.

37. In cross examination, the accused stated that she was 15 years old at the time of testifying; that she was arrested at age 14 in 2019’; that what she had told the police when first arrested was not true as the police had threatened her; that she had just told the lawyer about the threat just before testifying and that she had been threatened with a gun; that she did not kill the baby; that she had called on A because the baby had a problem; that she did not have any differences with S or the other witnesses; that the S and A loved the baby; and that no one treated her badly

38. In re-examination, she stated that she called Anastacia because the baby was crying a lot; that; when they were going to hospital the baby was still crying; and that she came to hear of the strangulation of the baby when she was in court.

Analysis and Determination 39. It is trite that the ingredients of the offence of murder are that it must be shown that:a.The death of the accused occurredb.The accused committed the act that caused the deceased’s death; and thatc.The accused committed the act or omission which caused the death of the deceased with malice aforethought

40. It is not in dispute that the baby died as testified by Dr Ngulungu who performed the post mortem on the body. There is also no dispute that she died due to the cause described by Dr Ngulungu who opined after the postmortem:“Cause of death: Asphyxia due to manual strangulation due to pressure grip……there was external grip resembling four fingers and the thumb on either side of the neck at Adam’s Apple”

41. The next question is whether the accused caused the death of the child. The evidence of the child’s mother, PW 2, SMS, was that she woke up early in the morning and prepared the child. She then went to work leaving the child in the care of the accused whom she had employed as the child’s caregiver. At about 4. 00pm she received a call from A PW1 who told her the baby was unwell, and that she should come to Mt Longonot Hospital immediately. By the time she got there, her baby was dead.

42. AN, PW1 said that she had passed by S’s home soon after about 1. 00pm and found the accused feeding her. She went on to her home and, about two hours later heard banging on her door. When she opened, it was the accused who, in shock and panic, told her that she had tried to wake the baby in vain. A called two neighbours and run off to S’s house. As the baby would not wake up, and was not breathing, she rushed her to Mt Longonot Hospital. There the doctor received her and told her the baby was no more.

43. PW4s evidence was corroborated by PW4 AWG, a neighbour of S. She said she had been called by PW1 at Sheryl’s house. When she came, she saw the baby looking sick, and PW1 went out to look for a doctor from the nearby premises. PW4 called Mama K another neighbour and she too came in. According to her:“Mama K tried to call the child who did not respond”They then rushed the baby to the nearby hospital on foot. PW5, AK also corroborated the evidence of PW1 and PW4. PW5 described the moment she saw the baby saying:“(she)was cold and unmoving”

44. PW7 Douglas Matara Obiero, the Clinical Officer who received the baby at Mt Longonot Hospital testified that:“We received a 1 ½ year old who was taken to Emergency Department..….On examination, she had no respiratory rate, no pulse rate, had cold extremities, pupils already dilated …she had bruising on the neck. The rest of the body was intact. We certified the child having died due to the said parametres.”

45. From the above evidence, the baby had clearly died by the time of arrival at Mt Longonot Hospital.

46. The accused’s evidence was that she fed the baby and put her to bed. She then went to wash clothes and hung them on the roof. On her return, she found:“….the child was crying…..the child was crying a lot…”According to her, even when Anastacia put the child in a lesso to take her to hospital the child was crying still but in a low tone.

47. This part of her evidence is contradicted by the statement she gave to PW8 Police Constable Eliam Wekhulo on 9th March 2019. At that time the accused had:“admitted that she killed the deceased”.The accused’s statement was read in part by her lawyer at the beginning of her testimony where she allegedly said that:“I was watching TV and the child was disturbing me so I squeezed the child”

48. Defence counsel objected to the statement as an admission on the grounds that the officer who recorded it did not tell the accused her rights; that the accused did not have her lawyer present although her uncle ; that the statement was written in Kiluhyia and translated into English; that there was no certificate of translation made to verify the fact; and that she was threatened by the police officer with a gun at the time of writing. She however, contradicted herself in re-examination when she said twice that she was “at ease when writing the statement”

49. I accept at the outset that the accused cannot be convicted on the basis of her alleged admission. There were too many gaps with regard to how the alleged admission was taken, for it to be relied upon.

50. Thus, we have here a case in which there is no eyewitness testimony, which makes all the prosecution evidence circumstantial. The defence properly argued in reliance on Musili Tulo v R [2014] eKLR, that:“It follows that the evidence linking the appellant to that offence is circumstantial. We must therefore closely examine the evidence on record, not only as our normal duty as the first appellate court to arrive at our own conclusions, but also to ascertain whether the recorded evidence satisfies the following requirements:-i.The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;i.Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;i.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.”

51. Further reliance was placed on the case of Joan Chebichii Sawe v Republic Crim. App. No. 2 of 2002 [2003] KLR where it was stated concerning suspicion in a criminal case:“The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira vs Republic (Criminal Appeal No. 17 of 1998 (unreported), suspicion however strong cannot provide a basis for inferring guilty which must be proved by evidence.”

52. I agree with these authorities which give the guiding principles on circumstantial evidence.

53. The golden thread running through the evidence in this case, is that the accused fed the baby at about 1. 00pm. She then put the baby to sleep and went to wash and hang clothes; On her return, the accused found the baby crying a lot. It appears the crying was quite relentless. She was alone with the child all the time. Suddenly, according to the accused in cross examination:“…there was a problem with the child and that is why I called Anastacia”

54. Something happened because when A, Mama K and A came to the house to see the baby, none of them saw any real life in her; she would not wake up and she had no response. None of them testified that she was crying. So they rushed her to hospital.

55. It was only after the post-mortem was done that the it became evident that the child had been strangled. At the time no one but the accused was with her. She was the one last alive with the deceased.

56. The Evidence Act under Sections 111(1) and 119 provides as foollows:“111. (1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecuting, whether in cross-examination or otherwise, that such circumstances or facts exist:Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”119. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

57. In Republic v E K K [2018] eKLR the Court held thus and I agree, concerning the ‘last seen with the deceased’ doctrine:“Regarding the doctrine of “last seen with deceased” I will quote from a Nigerian Court case of Moses Jua V. The State (2007) LPELR-CA/IL/42/2006. That court, while considering the ‘last seen alive with’ 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 the inference that the accused killed the deceased.”

58. In Stephen Haruna v The Attorney-General Of The Federation (2010) 1 iLAW/CA/A/86/C/2009 cited fairly frequently by Kenyan Courts, the Nigerian Court of Appeal held that:“The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”

59. In this case, there is no contradictory evidence that the accused was last seen alive with the deceased. When the child was carried to hospital, she was formally pronounced dead on arrival: with no vital signs. The post mortem pointed to strangulation.

60. The court considers that what reasonably happened was as follows: the accused had put the child to sleep then it later woke, crying. The accused, being only 14 years old and inexperienced in handling a babies, did all she could to keep the child quiet. However, the child continued bawling and the accused, at her wits’ end, got irritated, frustrated or angry and tried to quieten her by squeezing her neck to smother the sound. It worked, but then the child became unresponsive.

61. In a panic, she rushed to Anastacia’s house where she frantically knocked on the door for help. A noted that the accused was in shock and panic as the accused told her she had tried to wake the baby to no avail.

62. On this basis, I find that only the accused had the opportunity to squeeze the child’s neck in the manner described in the post-mortem report. I thus conclude that the act of killing the child was the act of the accused.

63. On the issue of motive or malice aforethought, the defence counsel stated that there was no evidence of the same or of a motive to kill. In R v Nedride (1986) 1 WLR 1025 it was stated as follows with regard to malice aforethought:“…the existence of malice aforethought is not a question of opinion by the court but one which the prosecution must prove beyond reasonable doubt by the law of evidence”

64. However, I do not see any evidence tendered by the prosecution that there was malice aforethought. The prosecution argued that the accused was unhappy to be doing housemaid work instead of going to school as she expected. I am unable to see the malice here. Malice aforethought is a criminal state of mind whereby the accused conscientiously plans the elimination of the victim. I do not see the evidence for this from the facts.

65. Accordingly, I find the accused guilty of the act, but with no malice aforethought. I thus convict her of the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

66. The accused, being a minor, shall be held in a juvenile home to await mitigation and sentencing.

67. Orders accordingly

DATED AT KERUGOYA THIS 7TH DAY OF NOVEMBER, 2023. R. MWONGOJUDGEDelivered in the presence of:1. A the accused in person2. Bogongo for the Accused3. Ndiema for the State4. Ogutu, Court Assistant