[2014] KEHC 1120 (KLR)
The court found that the prosecution failed to call crucial witnesses, specifically the grandmother and sister of the accused, who were present at the parents' home on the material night and could have provided direct evidence of what transpired. The evidence presented was largely circumstantial and included...
Source-derived case information.
- Citation
- [2014] KEHC 1120 (KLR)
- Parties
- Applicant: Republic; Defendant: Dorothy Mbinya
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 46 of 2009
- Procedural Posture
- Criminal Case / Judgment
- Outcome
- acquittal
- Judges
- BT Jaden
- Legal Topics
- Murder, Burden of Proof, Acquittal, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Dorothy Mbinya
Defendant
Procedural Posture
Criminal Case / Judgment
Legal Issues
- 1 Whether the accused, Dorothy Mbinya, murdered Victoria Mbula and Irene Wanza as charged.
- 2 Whether the prosecution proved its case beyond reasonable doubt against the accused.
Ratio Decidendi
The court found that the prosecution failed to call crucial witnesses, specifically the grandmother and sister of the accused, who were present at the parents' home on the material night and could have provided direct evidence of what transpired. The evidence presented was largely circumstantial and included hearsay, which is inadmissible. The formal witnesses did not provide probative evidence linking the accused to the deaths. Given these evidentiary gaps and the principle that the prosecution must prove its case beyond reasonable doubt, the court gave the accused the benefit of doubt and acquitted her under section 306(2) of the Criminal Procedure Code.
Court Disposition
acquittal
Orders
- The accused, Dorothy Mbinya, is acquitted under section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CRIMINAL CASE NO. 46 OF 2009
REPUBLIC
VERSUS
DOROTHY MBINYA..............................................ACCUSED
J U D G M E N T
1. The Accused, Dorothy Mbinya, is charged with two counts of murder contrary to section 203 and 204 of the Penal Code.
In the first count, the particulars of the offence are that on the night of 14th and 15th day of June 2009 at Kanyonga village, Ivinganzia Sub-location in Makueni District within the Eastern Province murdered Victoria Mbula.
In the second count the particulars of the offence are that on the night of 14th and 15th day of June 2009 at Kanyonga village, Ivinganzia Sub-location in Makueni District within the Eastern Province murdered Irene Wanza.
2. The prosecution case is that the accused and her two children lived with her husband’s family in Makueni area. The husband, PW3 Isaac Muoki worked away from home. According to the prosecution case, the accused had two children prior to getting married to PW2. That the children were not the husband’s biological children. There was domestic strife and the accused left her matrimonial home for five days.
3. On the material day, the accused and her husband and husband’s family met and discussed the matter. It was agreed that the accused and her children were to go back to her parents’ home. The accused and her children were escorted back to her parents’ home by the husband’s brother, PW4 Meshack Mutuku. They found the sister and grandmother to the accused at home. The following day, the two children were found having been hanged on a tree. The matter was reported to the authorities. The bodies of the two children were taken to the mortuary. After investigations the accused was charged with the offence herein.
4. In her defence, the accused denied the offence. The accused stated that she lived at her husband’s home with her two children and the extended family while the husband worked in Nairobi. The accused stated that she had differed with her mother in law. That on 14/6/2009 they had a family meeting but their differences escalated. That the following morning she left for her parents’ home without the children. The accused further stated that the husband was the biological father of the children. The accused further testified that she never saw the children again and knew nothing about the recovery of their bodies.
5. From the evidence of PW1, Joshua Muia the family patriarch, PW2 Agnes Mukui the family matriarch, PW3 the husband to the accused and his brother PW4 Meshack Mutuku, it is abundantly clear that the accused and her two children left the matrimonial home on 14/6/2009 and went back to the parents’ home where they arrived at about 10. 00 p.m.
6. What transpired after the accused was left at her parents’ home is not known. The grandmother and sister to the accused who were said to have been with the accused at her parents’ home on the material day were not called to testify. These were crucial witnesses who could have shed light on what transpired. In the absence of the evidence of the said grandmother who is said to have identified some pieces of cloth found at the scene and also pointed a figure at the accused as the person who left home at the middle of the night in the children, that evidence is mere hearsay.
7. The other witnesses who have testified herein are PW6 Gideon Kasyoki Kiswii who identified the body, PW7 PC Joseph Mutia, PW8 Dr John Kinyanjui, and PW9 PC Edgar Kibet are formal witnesses. Their evidence is of no probative value.
8. The accused has denied the offence. I would give the accused the benefit of doubt. Consequently, the accused is acquitted under section 306 (2) of the Criminal Procedure Code.
…………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 27thday of November 2014.
……………………………
B. THURANIRA JADEN
JUDGE