[2010] KEHC 3992 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

Criminal Case 27 of 2006

REPUBLIC............................................................PROSECUTOR

~VRS~

DIANA NANJALA WESONGA ................................ACCUSED

JUDGMENT

The accused person Diana Nanjala Wesonga faces a charge of murder contrary to section 203 as read with 204 of the Penal Code. It is alleged that on the 18th /19th day of July 2006 at Butunde Village, Namwanja sub-location in Bungoma District within Western Province murdered Samuel Wafula Wesonga. She pleaded not guilty to the offence.

This case was heard by three judges. Justice W. Karanja heard four witnesses while Justice Mbogholi Msagha heard two witnesses. I took over the case under section 200 (3) of the Criminal Procedure Code after the prosecution closed their case. I received submissions on no case to answer and put the accused on his defence. Later I heard the defence case.

The prosecution called six (6) witnesses. PW1 was the mother of the deceased, Everlyne Nafula Wesonga. She testified that she was a co-wife to the accused person. She was the first wife while the accused had been married to her husband Anthony Wesonga for only eight months by the time of the incident. On the material day on the 18th July 2006 at around 7. 00 a.m, PW1 prepared her seven year old son, the deceased Samwel Wafula Wesonga for school. He wore his uniform and carried his books in a woolen bag. PW1 said she saw the accused leave shortly after the deceased and entered a maize nearby. She did not come back home until later in the day. The deceased did not reach school and neither did he come home that day. PW1 started looking for the deceased. The accused approached her co-wife and told her that her son could have been killed by wild animals. She took PW1 to the sugarcane plantation to look for the body which was not traced. The following day the body of deceased was recovered by his uncles PW3 and PW6 in the sugar cane plantation with the assistance of the accused.

PW2 Eunice Nafula who is a neighbour to PW1 was working in her sugar cane farm at around 8. 00 a.m. She saw the deceased Samuel Wafula pass by walking on a foot path going to school. He was in uniform carrying a green schoolbag. The accused was following the boy closely calling him by name “Wafula! Wafula! simama” meaning “Wafula! Wafula!stop”. PW2 went on with her work after the accused passed by following the boy. It is later at 1. 00 p.m that PW2 learnt that the boy had gone missing. His mother PW1 was looking for his son who was expected home from school at 12. 00 noon but had not turned up. PW2 came to learn that the body was recovered in the sugar can plantation the following day. She saw the body of the deceased with bleeding nostrils.

PW3 the brother-in-law to PW1 and the accused was approached by the accused to help her look for her step-child who had gone missing. She told him that they should search in the sugar plantation. PW3 was among three other people. The accused led them to the sugar cane plantation and showed them a path to follow while she remained behind. Twenty (20) metres ahead, the search team found the body of deceased. The body was in full school uniform and still carrying the green bag. The accused then ran to her house. PW3 followed her there and found her packing her suitcase preparing to escape. She was locked inside the house and police summoned.

PW4 Sergeant Maurice Amwayi of Bungoma Police Station visited the scene and observed the body which was bleeding from the nostrils and lying in a pool of blood. It had bruises on both arms and the neck appeared broken. He took the body to the mortuary.

PW4 arrested the accused in her house where she was locked up. She had parked her belongings into a luggage as if she wanted to escape. The luggage was taken as an exhibit. On arrival at the police station, the luggage was searched and the report card of the deceased which he had on his way to school recovered. PW4 sent the accused for examination and she was found to be of sound mental status and was an adult.

PW5, Dr. Mulianga Ekesa of Bungoma District Hospital produced the post mortem form filled by Dr. Alwang’a who was his former colleague at the hospital. The cause of death was cardio respiratory failure secondary to severe asphyxia caused by strangulation. He produced the P.3 form in respect of the accused prepared by the same doctor. The accused was aged 23 years by then and was mentally sound and fit to plead.

PW6 Hesborn Sifuna is a brother in law to the accused. He testified that the accused approached him and PW4 to go and look for the deceased in the sugar cane plantation. The accused led the witnesses to their brother Benson Opicho’s sugar cane plantation. She showed them specific crop rows within which to search. PW6 was the first to spot the body of the deceased in the plantation. The accused had gone back to her house after giving direction for the search. In her house, PW3 and PW6 found that she had already packed her belongings and was carrying her handbag in order to leave. She was detained in the house until police came to the scene.

The accused gave an unsworn statement. She said the deceased was her step son. She denies that she murdered the deceased saying that all the prosecution witnesses were telling lies.

The state filed submissions in which it was submitted that there was sufficient circumstantial evidence which connects the accused with the offence.

The totality of the evidence is that the deceased was killed on his way to school in the morning at around 8. a.m. PW1 prepared him for school and he left dressed in full uniform carrying a green bag containing his books and report card. PW1 looked for her son for two days unsuccessfully. It is the accused person who led her brother in laws PW3 and PW6 to the sugar cane plantation of their brother where the body was found. The body was about 200 metres from the home of deceased. Without the assistance of accused, it would have taken quite a while to recover the body. The report card of the deceased which was in the school bag as he left home for school was recovered in the luggage of the accused. In her defence, the accused gave a very brief defence and gave no explanation as to how she came to be in possession of the report card.

PW2 saw the deceased pass on a footpath as she worked in her farm around 8. 00 a.m. The accused was following the deceased calling him loudly to stop. After the two passed PW2, she continued working in her farm. It was around 1. 00 p.m when she heard that the boy was missing. The last person to be seen with the deceased was the accused. She was the one who assisted members of her family to recover the body in the sugar plantation of the deceased’s uncle on the second day. PW3 and PW6 testified that the accused showed them specific sugar cane rows to follow in the search. It led to the recovery of the body only twenty (20) metres ahead. This confirms that the accused knew where the body was. She had led PW1 to the sugar cane plantation the day before but did not show her where the body was for a reason only known to her. She gave a suggestion to PW1 that the boy may have been killed by wild animals in the sugarcane plantation.

PW1 testified that there was bad blood between her and her co-wife, the accused. She kept abusing PW1 and telling her that she is incapable of giving birth to other children. The accused at that time had no child by her husband Anthony Wesonga. This kind of jealous and rivalry between the two women could have led to the accused getting rid of the only child of PW1.

After the accused showed PW3 and PW6 where to search for the body, she ran to her house and parked her luggage in preparation to leave the homestead. PW6 said that when they arrived in her house, the accused was carrying her hand bag on the shoulder. The accused was most likely trying to escape from law enforcement since she knew that after recovery of the body, she would be the first suspect.

In this case, there is no direct evidence that the accused was seen strangling the boy. However, I find the circumstantial evidence so complete and leaving no doubt that the accused committed the act which led to the death of the deceased. The doctor found multiple bruises on several parts of the body which suggest that the deceased may have tried to resist the violent act by his step-mother. The cause of death was confirmed to be strangulation. Taking into consideration all the facts analyzed in the foregoing paragraphs, the circumstances in which the body was recovered, the exhibit found in the luggage of the accused, the conduct of the accused before and after the incident, I have no doubt that the prosecution have proved the actus reus against the accused. I find no circumstances or facts which are compatible with the innocence of the accused. I did not believe her defence in which she simply said that she did not kill the deceased and that the prosecution witnesses were lying to the court. She did not allege existence of any grudge between her and those witnesses.

On malice aforethought, I find that the severity of the injury inflicted on the deceased is conclusive of intention to kill on part of the accused. PW5 said it was severe asphyxia caused by strangulation which caused the death of the deceased.

It is my finding that the prosecution have proved the case against the accused beyond any reasonable doubt. I find her guilty of the offence of murder as charged and sentence her to death in the manner authorized by the law.

F. N. MUCHEMI

JUDGE

Dated, Delivered and Signed at Bungoma this 20th day of January, 2010

In the presence of accused and the defence counsel Mrs Njalale for Onchiri and the State

Counsel Mr. Onderi.