[2022] KEHC 16136 (KLR)

Republic v IMW (Criminal Case 17 of 2017) [2022] KEHC 16136 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16136 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 17 of 2017

TM Matheka, J

December 7, 2022

Between

Republic

Prosecution

and

IMW

Accused

Judgment

1. What is in a name?

2. On 14th January 2017, IMW was charged with Murder Contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge are that on February 13, 2017 at Wanyororo ‘B’in Nakuru North Sub County he murdered a child unnamed.

3. Due to a doctors’ strike, the mental examination was delayed and the report could not be availed to court until March 2, 2017 when the plea was taken. He denied the charge and was granted bond of Ksh. 300,000/= with surety of similar amount. The trial then commenced before Hon Maureen Odero LJ on 26th July 2017.

4. PW1 was Dr. Titus Ngulungu who testified that he was a pathologist at Nakuru Provincial General Hospital. He examined the body of the child on 21st February 2017 and prepared a post mortem report. The body was identified by Betty Kwamboka and Sara Mukami. It was the body of a male infant child. He found that body had features of cyanosis. There was curd-like material in the trachea and stomach. The same material obstructed the bronchi. There was oedema of the scalp, features of brain contusion on the side of the brain and raised ultra-cranial pressure. Cause of death: asphyxia following dispiration due to head injury due to blunt force trauma in keeping with a violent shaking of the brain.

5. On cross examination the pathologist told the court that there was violent shaking of the brain leading to contusion and intracranial pressure, leading to disputation (the breathing in of fluids) in this case the milk or the curd-like substance in the child’s trachea and bronchi. There was also a bruise on the cheek.

6. PW2 James Thuo Njuguna was the Nyumba Kumi representative for Ndungiri Kirima Location Wanyororo B. He testified that on the material day he was woken up by the neighbour one BK, the wife of the accused. It was 5. 30 a.m. He went there in the company of his wife and found that there was the baby lying on the bed, already dead, while bleeding from the nose. He called two other neighbours who also came and saw the child. He observed that the two (2) parents were drunk. The mother was crying and falling down while scratching her head, while the father, the accused, was seated with his head “hanging down”.

7. According to PW2 the mother of the child told them that it was the child’s father, the accused, who had hit the child while they were having an argument on what name the child should have. She said that this arose from the fact that she is from the Kisii tribe and he is from the Kikuyu tribe.

8. PW2 testified that he arrested both of them and took them to Bahati Police Station. He told the court that he had known the two (2) as a couple for two (2) years. That it was the accused who had moved into B’s house after her mother died and they were living as husband and wife. They had two children, a three-year-old and the deceased child. Both were drunkards who also sold alcohol in their home, and on the material day they were drunk.

9. PW3 was No.235324 Inspector Richard Mabwai the Officer in Charge Crime at Bahati Police Station testified on 16th November 2021, it was evident that he could not recall details of the case. He told the court that he was not the investigating officer. That on 13th February 2017 about noon, members of the public came and reported that there was a person who had killed his child. He visited the scene, saw the dead child on the bed, with blood running from his nose onto the bed. He said he arrested the suspect but could not recall his appearance. This officer had clearly not refreshed his memory from his written statement before he testified hence his limited memory.

10. PW4 No. 42223 PC Juma Kisera was the investigating officer. According to him, he found that he had been assigned the case to investigate and the suspect was already in the cells. The body of the child was in the mortuary. The mother of the child had recorded a statement under inquiry. He told the court that upon interrogating the suspect, he told him that the child had died of pneumonia. The statement of the mother was that the two (2) quarreled over the naming of the child and the accused hit the child when she told him that she had named him after her people. The post mortem revealed the cause of death not to be the consequence of sickness. He charged the accused with Murder. On cross examination he said he revisited the scene. He relied on the statement of the mother and what she told him together with the post mortem report.

11. Upon the close of the case for the prosecution the accused was put on the defence. In a sworn statement he told the court that on the material night he had gone to work, making illicit brew between 6 p.m. and 5 a.m. He testified that he came home at 5. 00 a.m. and found his wife crying, when he asked her what was the matter she told him that the child had died. He testified that they reported to Mzee wa Nyumba Kumi. He said that he had checked on the child earlier and had seen that the child was sick. He said upon reporting to Nyumba Kumi, they went to the police station where he was arrested. On cross examination he told the court that the only other person who could tell what happened that night was his wife, and no one else. He also said that his wife was not a liar and he could trust her.

12. Mr. Miruka for the accused filed written submissions. Ms. Murunga for state made an oral response.

13. Upon considering the same the issue is whether the prosecution has proved beyond a reasonable doubt that the accused herein killed the child.

14. The case for the prosecution is that the accused and the mother to the deceased were living as husband and wife. When they had the child now deceased, they could not agree on what name to give the child. On the ill-fated night for the child, both these parents were drunk. They got into an argument with the mother who insisted on a Kisii name, the father who insisted that the child would be named after his own father. In the ensuing disagreement, she told other people that he hit the child with his fist, causing him injury leading to the subsequent death.

15. For the offence of murder to be proved the Court of Appeal in Antony Ndegwa Ngari vs Republic [2014] eKLR stated;“For the offence of Murder, there are three elements which the prosecution must prove beyond a reasonable doubt in order to secure a conviction. They are:a.The death of the deceased and the cause of deathb.That the accused committed the unlawful act which caused the death of the deceased and;c.That the accused had malice afterthought.”

16. In this case there is no doubt that the baby died. The pathologist established that the cause of death was asphyxia caused by trauma resulting from violent shaking of the brain. So, the 1st ingredient was established.

17. Was the death caused by the accused? It was submitted for the defence that there was no eye witness. That among the prosecution witnesses called by the state, none testified that he or she saw the accused person commit the offence. The prosecution submitted that there was the evidence of the eye witness, the mother of the child. However, having perused the record carefully I found that she did not give her testimony. Everything associated with her is what she told the Mzee wa Nyumba Kumi when he arrived, the police officer who visited the scene and the investigating officer. However, what stands out is the consistency of her story as told to these persons at different times.

18. Is there circumstantial evidence to support the case against the accused person?

19. The defence cited Abanga alias Onyango vs Republic Appeal No. 32 of 1990 (UR) where the Court of Appeal set out the guidelines upon which a court may rely on circumstantial evidence;i.The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.ii.Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.iii.The circumstances taken cumulatively, should form a claim 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.

20. In Sawe vs Republic [2003] KLR 364 the court emphasized that 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 shifts to the party accused.”

21. What circumstantial evidence is before court? The accused and the mother of the child lived together as husband and wife. They had a six (6) weeks old baby who by the time of the offence, had not been named. They each come from a different tribe. Their naming systems are not the same. Hence, the probability of a quarrel over the name is more likely than not. The accused, being the husband, would most likely have expected the naming to be obvious, the child being named after his father. Is this an issue that could have drawn an argument? Clearly yes especially between a couple who were both described as drunkards by witnesses.

22. The fact remains that the child did not die from a natural illness. The accused person in his defence denied that the child had died from trauma. He said that the child had been sick. He said he came from work and found that the child was dead. However, he was contradicted by the post mortem report. When the Nyumba Kumi elder came into the house, he was seated there desolate, his testimony that it was he and his wife who went to report to Nyumba Kumi is also contradicted by the Nyumba Kumi elder who he said they had no grudges and who would have no reason to lie against him.

23. Did the accused hit the child with his fist? The PW3 told the court that the accused hit the child with his fist, the Nyumba Kumi told the court that the accused's wife said he boxed the child with his fist yet we have the evidence of the pathologist was that the child had been shaken violently. There was a bruise, but there was no evidence of being boxed with a fist.

24. On the other hand, the accused person's version of events was also consistent. He testified on oath. He said it is only his wife who could have explained what happened on the night of the alleged offence, clearly stating that it was her word against his. He told the police that the child had pneumonia. He told the court that the child had been sick earlier. When he came in from work, the child was dead.

25. The accused told the court he was out that night “boiling alcohol”. The Nyumba Kumi elder told the court that he and his wife sold alcohol, giving credibility to his story that that night he may have been out cooking the alcohol and came home at about 5. 00 a.m. The prosecution did not produce any evidence to contradict his evidence that he was at work and only came in about 5. 00 a.m. to find his wife alone, with the dead child.

26. According to the Nyumba Kumi elder Becky woke him up at 5. 30 a.m. to report an incident in her home. The accused said he arrived at 5. 30 a.m. to find the baby already dead. Could he be telling the truth, that it is upon his arrival that a report was made to the Nyumba Kumi?

27. The evidence of the Nyumba Kumi is that he arrested the accused and took him to Bahati Police Station. The evidence of the arresting officer IP Mabwai is that he arrested the accused at home. The accused told the court that upon reporting to Nyumba Kumi elder they went to the police station where he was arrested. It is evident that the prosecution case exhibits cracks in view of the evidence of the accused in his defence.

28. As to whether the circumstances of the case as seen from the prosecution support the proposition that the accused committed the offence, it is evident that the eye witness did not testify. Her story was not tested through cross examination by the defence. It remains hearsay even though she told various persons that the accused boxed the child with his fist, three times. A six (6) month old baby boxed by a man would have exhibited commensurate injuries, yet the child died of injuries resulting from violent shaking of the brain. The eye witness did not say the accused shook the baby, she reportedly said that he boxed the baby with his fist.

29. The prosecution through the Nyumba Kumi wanted the court to draw the inference of guilt from the demeanor of the accused. However, he described both the accused and his wife and question is: whose demeanor demonstrates remorse for having caused the death of the child? Is it the mother’s conduct? He testified that she was crying, falling down and scratching her head or that of the accused who he said was seated with his head bowed down? It is my considered view that this alone cannot form the basis of circumstantial evidence that the accused was guilty of the murder of his child.

30. The pathologist’s testimony was that he could not estimate the approximate time of death because the body was embalmed. The question as to the time of the alleged quarrel between the couple that allegedly led the accused to box the child becomes crucial. Then the question as to the time of death of the child. Could it have been at night when the accused was at work? Was it around 5. 00 a.m. when the accused came home? Clearly the defence by the accused raised these unanswered questions to the extent that it cannot be said with any certainty that there is sufficient evidence to show that he indeed killed his child. That means therefore that the alleged disagreement over the naming of the child could not have been the basis for malice aforethought on the part of the accused person.

31. For the foregoing reasons I agree with the submissions by the defence that the prosecution failed to prove beyond a reasonable doubt that the accused killed the child.

32. Section 324(3) of theCriminal Procedure Code provides that If the court decides in favour of the accused, he shall be discharged from that information.

33. While it is truly unfortunate that this young child lost his life, in the alleged fight for parental supremacy over the child’s right to a name and nationality. Parents supremacy fights can have fatal results as in this case and other times the harm done is long term only exhibiting itself in the later life of the child. The Constitutional edict to each citizen and the state that the best interest of the child be the primary consideration in matters that affect a child ought to the guiding light for each parent and guardian. Then such fatalities would be unheard of.

34. It is my view that the police were in a hurry to charge the accused with murder, without first establishing what exactly was going on in that home. The community was aware of the alcohol abuse issues between the two hence both parents may have been guilty of neglecting their child.

35. What is in a name? Everything, including life. The people who give life want to name that which they give life to so that it can carry on their name, their culture, their history, their identity. In this case, it took away everything from this child.

36. That said, I find in favour of the accused person and accordingly discharge him from the information.

37. The charge of murder is dismissed and the accused is accordingly acquitted. He is to be set at liberty henceforth unless otherwise legally held.

38. It is so ordered.

SIGNED, DATED AND DELIVERED THIS 7TH DAY OF DECEMBER 2022. MUMBUA T. MATHEKAJUDGEIn the presence of:Court Assistant: JenniferFor state: Ms. MurungaFor accused: Ms. Tessot holding brief for Mr. MirukaAccused present