[2022] KEHC 13218 (KLR)

Republic v Chematia (Criminal Case 27 of 2020) [2022] KEHC 13218 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 13218 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 27 of 2020

SN Riechi, J

July 20, 2022

Between

Republic

Prosecution

and

Rose Chemutai ‘Alias’ Chematia

Accused

Judgment

1. The accused Rose Chemutai ‘alias’ Chematiais charged with offence of murder contrary to section 203 as read with section 204 of thePenal Code cap 63 Laws of Kenya.

2. The particulars of the offence are that Rose Chemutai ‘alias’ Chematiaon the night of 18th and June 19, 2020 at Koboiywo village in Koboiywo location of Mount Elgon sub-county within Bungoma county murdered Silvester Kipchakin Nainai.

3. The prosecution case is that the accused Rose Chemutai alias Chemiati was the wife of deceased Silvester Kipchakin Nainai. On June 18, 2020at 6pm.

4. PW2 Machela Kamaker Ngeiywa was drinking alcohol with deceased at the home of Benson Kwala Kesis when deceased left for his home. At 8 pm the witness left for his home. On the way he found deceased seated on the road. Deceased asked witness to escort him to deceased’s house. He left with deceased to his home, woke up accused who opened the door and deceased entered the house. He then left. The next day he received information that deceased had been beaten and taken to hospital where he later died. On being cross-examined by M/S Chunge for accused he state that deceased was in good health when he left him although he was drunk.

5. PW5 Ivon Chesang Naibei the employer of the deceased was informed by Nakitare that accused had beaten the deceased. She went to where accused and deceased were staying the accused informed the witness that she had assaulted deceased. He asked deceased who confirmed that accused had hit him with a stick. The matter was reported to police and deceased was taken to hospital where he later died.

6. PW8 Henry Chepkwony who had employed deceased to work at his farm was with deceased on August 18, 2020when he worked and left at 4 pm in good health. The next day on June 19, 2020 he did not report to work. He was informed by a neighbour that deceased had injuries. Accused, who was the wife of deceased came and reported that deceased was unwell and that he should go and take him to hospital. He went there and deceased told him he had been assaulted by the wife the accused. The accused denied the allegations. He took the deceased to Kapsokwony hospital where he died.

7. PW11 No 58067 Sergeant Paul Chebet attached to DCI Mt Elgon was at the police station when he was instructed to visit a murder scene. He with PC Omete went to the scene where they found a woman had assaulted the husband who was in serious condition. They took him to Kapsokwony hospital where he died. The accused had been arrested on June 27, 2022. The accused volunteered to lead them to the house to recover the murder weapon. She led them to the house of her sister Rosemary where they recovered a stick, 2 mattresses which were blood-stained and also deceased’s trouser which was blood-stained. PW9 Roseline Techan the Sister of accused testified that deceased was accused’s husband. When accused was arrested she took items from her house consisting of mattress and clothes. When police came she handed them over to them.

8. PW10 Dr Edward Simiyu who performed the post-mortem on body of the deceased found he had bruises on left leg, fracture of right wrist joint fracture of the skull and the brain was swollen with a pool of blood. He formed opinion that the cause of death was due to subdural haemotoma secondary to blunt trauma.

9. The accused upon being put on her defence gave sworn evidence. She testified that deceased was her manfriend, her husband Samwel Wepukulu having died in an accident. She had been employed to take care of the farm of Gladys Nekesa and was staying with deceased. On June 18, 2020she was in her house when she heard deceased calling her to assist him. She went out and found deceased seated down without a shirt on. She brought him into the house and noticed he was covered with mud. She called Tobious who had hired deceased who came and they took deceased to Kapsokwony hospital. She left him there and went home when members of public started saying she was the one who had assaulted deceased. She went to Kaptama police station where she was arrested and later charged with the present offence.

10. Ms Chunge for the accused filed written submissions. Counsel submitted that none of the prosecution witnesses testified that they did witness what happened to the deceased as they were not present and were only informed by accused that she had assaulted the deceased. Counsel submitted that if this was the case, the investigating officer ought to have recorded a confession from accused to be used in evidence and failure to do so confirms that she did not commit the offence. Counsel urged the court to find that prosecution did not prove the charge against accused beyond reasonable doubt.

11. The accused is charged with the offence of murder contrary to section 203 of the Penal Code. Section 203 provides:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”.

12. The elements of the offence the prosecution must prove against the accused in a charge of murder are:a)The fact and cause of death.b)The unlawful act or omission causing the deathc)That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d)That the accused committed the unlawful act with malice aforethought.

13. PW10 Edward Simiyu who performed the post-mortem on body of deceased found he had fracture of right wrist joint and fracture of the skull on the right side. These were caused by blunt force trauma. These are the injuries that led to the death of the deceased. He therefore confirmed the fact of death and the cause of death as having been injuries caused by blunt force, trauma.

14. PW1 Jane Chesis who is the sister in-law of accused testified that she received information that deceased had been killed by the accused. She went there and met accused who told the witness that she (accused) had assaulted the deceased with a stick. She noticed deceased had injuries on the head, hands and right leg had a fracture. The deceased was not able to speak and she advised that he be taken to hospital.

15. PW3 Joseph Cheptoto testified that on June 19, 2020he was going to a funeral where he met accused who told him to go to her home and see what had happened. He went there and found deceased lying on a mattress with injuries on the hand and loose teeth. The accused told him that deceased had mixed sugar and flour and she beat him. He reported to the employer who took deceased to hospital.

16. PW5 Ivon Chesang Naibei who had employed accused to work at her farm testified that on June 18, 2020the accused went to her and informed her that she (accused) had assaulted the deceased using a stick. The deceased asked the witness to make arrangement to take deceased to hospital. She informed the assistant chief and deceased was taken to hospital.

17. PW8 Henry Chekwony for whom deceased used to work for received information that deceased was at home with injuries. He went there and found deceased lying down on a mattress and deceased told him he had been assaulted by accused which she denied. They took deceased to hospital where he died.

18. PW2 Machela Kawaker testified how he drank chang’aa with deceased and later escorted him to his home and handed him over to his wife the accused and that the deceased was in good health although he was drunk.

19. The accused in her defence testified that the deceased was brought by PW2 Machela, and left outside. The deceased then called her. She opened and assisted him into the house as he was drunk. She saw his clothes were covered with mud and she called employer who took him to hospital where he died.

20. From the evidence of the prosecution witnesses, none of them testified that they saw accused inflict injuries on the deceased. There is therefore no direct evidence. The prosecution has sought to rely on circumstantial evidence by establishing facts from which this court should draw an inference that it is accused and no other who inflicted the injuries on the deceased.

21. In the case of Ahamad Abolfathi Mohammed andanother v Republic [2018] e KLR, the Court of Appeal had this to say on this point:“However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr App R 21: -“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

22. The prosecution has by evidence sought to prove the following facts:1. That the accused and deceased were staying together as man and wife in the same house on the material day. This fact is admitted by accused though she states deceased was a manfriend nor a husband.2. That the deceased was in good health on June 18, 2020, though he was drunk. PW2 Machela who escorted deceased confirmed that he left him in the hands of accused. The accused admits that when the deceased came into the house. She only noticed that his clothes were soiled with mud but had no injuries. She also confirmed in her evidence that it is when he was in the house that she went to call for and inform the employer that deceased should be taken to hospital.3. That the accused and deceased were the only people in the house.4. That the deceased sustained injuries which were occasioned by blunt force trauma causing him to have a fracture of the leg and skull which injuries led to his death while undergoing treatment.5. That the blood stained mattress, clothes and stick recovered from the accused’s sister’s house were found to contain blood from the deceased.6. That the accused informed PW1 Jane, PW3 Joseph, PW5 Ivon, PW8 Henry that she is the one who assaulted the deceased; which information would qualify as an admission.

23. InMwasigwa v Republic Criminal Appeal No 2 (2020) KECA 422 KLR [Criminal Appeal 2/2020].21. The Supreme Court of Kenya in the case of Republic v Ahmad Abolfathi Mohammed & another [2019] eKLR clearly and exhaustively explained out the distinction between an admission and confession, being that a confession is a direct acknowledgement of guilt on the part of the accused while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue which, in connection with other facts, tends to prove his guilt, but which, of itself, is insufficient to found a conviction. The Supreme Court proceeded to hold as follows as regards admissibility of admissions: “[48] We agree with the appellant that it is a matter of general public importance that the police are given the freedom to carry out investigations with a view to detecting crimes. We also agree with it that interviewing suspects is a standard operating procedure in criminal investigations. In such interviews, police are entitled to confront suspects with any report they may have received about the suspects’ commission or involvement in the commission of a crime and demand an explanation. In response, a suspect may offer an explanation. If it happens that the explanation the suspect gives is an admission of a material (sic),ideally the police are required to invoke the provisions of section 25A of the Evidence Act. If they do not, bearing in mind the distinction between an admission and a confession as stated above, such admission is admissible in evidence but, unlike a confession, it cannot on its own found a conviction. It will require corroboration to found a conviction. It would be absurd if admissions made in such circumstances were to be held inadmissible in evidence. It follows therefore that admissions, though not meeting the criteria set out in section 25A (1) of the Evidence Act, are admissible.”24. It is notable that the evidence of PW2 and PW3 was in this respect circumstantial evidence. Coupled with the evidence of PW6 on the appellant’s admission, we find that the legal threshold to sustain a conviction against an accused person based on circumstantial evidence was met. The threshold as stated in R v Kipkering Arap Koske [1949] 16 EACA 135 is that such evidence must exclude co-existing circumstances which would weaken or destroy the inference of guilt. In Sawe v Rep [2003] KLR 364, this court expressed that: “In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”

24. The accused in her defence denied that she inflicted the injuries on the deceased. However upon considering the evidence I am satisfied that it is accused and no other who inflicted the injuries on the deceased, a fact she admitted to the prosecution witnesses, PW1 Jane, PW3 Joseph andPW5 Ivon.

25. The other ingredient the prosecution must prove is that the accused in committing the unlawful act that caused the death had the requisite malice aforethought. Malice aforethought is defined as:malice aforethought shall be deemed to be established by evidence proving 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; 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.

26. In this case the deceased sustained injuries on the head, using a blunt object and inflicted by the accused person. The nature of injuries sustained, parts of the body targeted – the head was meant to cause severe head injury. The accused informed PW3 Joseph that she assaulted the deceased because he had mixed flour with salt on that material night. That fact in my view had provoked the accused if that is what the deceased did. Provocation is defined in section 208 Penal Code as:(1)The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of selfcontrol and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.(2)When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.(3)A lawful act is not provocation to any person for an assault.(4)An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.(5)An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

27. Where an accused unlawfully kills another under provocation, section 207Penal Code provides:

28. When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, is guilty of manslaughter only.

29. In this case upon considering all the evidence I find that prosecution has proved a charge of manslaughter against the accused. I therefore find the accused Rose Chemutai alias Chematia guilty of the offence of manslaughter contrary to section 202 as read with section 205 Penal Code and convict her accordingly.

DATED AT BUNGOMA THIS 20TH DAY OF JULY, 2022. S. N. RIECHIJUDGE