[2022] KEHC 2218 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J_

CRIMINAL CASE NO. 78 OF 2019

BETWEEN

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

AND

IRENE KAGENI................................................ACCUSED

JUDGMENT

1) IRENE KAGENI (Accused) is charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that

On 15th October 2019 at Miruriri Market, Miruriri Location, in Imenti South Sub-County within Meru County murdered Dennis Murithi

PROSECUTION CASE

2) The prosecution case as narrated by PW1 Patrick Kimathi Kithinjiis that Accused and Dennis Murithiwho were husband and wife were his tenants. He recalled hearing the two quarreling on 15/10/2019 at about 7:20pm. He went away and 10 minutes later when his wife PW2 Mercy Kaari informed him that the couple was still quarrelling, he returned to the scene to find the accused seated on a chair and Dennis Murithilying on the floor with a stab wound on his chest. In the company of the Accused, he escorted Dennis Murithito St. Annes Hospital Igoji where he was declared dead on arrival. The matter was reported to Igoji Police station and the deceased’s body was taken to St. Annes Hospital Mortuary.

3) PW3 Royford Mutuma, deceased’s younger brother identified the body to the PW4 Dr. Njeri Nderitu who conducted the postmortem examination at St. Anne’s Hospital Mortuary on 18th October, 2019. The Postmortem form PEXH. 1 reveals that deceased suffered a 15 cm deep cut wound on left shoulder from deltoid muscle extending to pectoralis major that caused collapse of left lung and massive bleeding in the left thoracic cavity. The left upper lobe of lung had collapsed and had a deep cut wound there was massive bleeding in thoracic cavity from which the doctor formed the opinion that he died of hypovolemic shock due to severe injury to the heart and lungs caused by a sharp object. PW5 IP John Kianga visited the scene of crime and recovered the murder weapon (knife) and after investigations caused Accused to be charged.

DEFENCE CASE

4) Accused gave a sworn statement and stated that on the material night at about 07. 30 pm, her husband (deceased) arrived home and found she had finished peeling potatoes with a knife. That he asked her where she got money to make her hair and when she responded that she had sold eggs, he told her that he had been informed that she had extra marital affairs with other men some of whom had given her money to make her hair. That a quarrel ensued and her husband picked the knife and a struggle ensued and in the process she realized that her husband was bleeding. She denied stabbing him.

Analysis and determination

5) Section 203 and 204of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. They require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased through malice aforethought. The sections read as follows:

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

204. Any person who is convicted of murder shall be sentenced to death.”

6) The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves 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;

(d) 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.”

7) When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under section 202 Penal Code which is punishable under section 205 Penal Code by a term of imprisonment extending up to life.

8) I have considered all the evidence availed in this case as set out above and the issue in question is whether the prosecution has proved the death of the deceased; that Accused caused the death and that he was actuated by malice.

(a) The death of the deceased

9) The postmortem form PEXH.4 filled by Dr. Njeri Nderitu reveals that the deceased suffered a 15 cm deep cut wound on left shoulder from deltoid muscle extending to pectoralis major that caused collapse of left lung and massive bleeding in the left thoracic cavity. The left upper lobe of lung had collapsed and had a deep cut wound there was massive bleeding in thoracic cavity from which the doctor formed the opinion that he died of hypovolemic shock due to severe injury to the heart and lungs caused by a sharp object.

(b) Proof thataccused person committed the unlawful act which caused the death of the deceased

10) None of the prosecution witnesses witnessed the commission of the offence but Accused explained that deceased sustained the injury as they were fighting. There is no evidence that deceased stabbed himself and it is therefore right to draw the inference that it was the Accused that stabbed him.

c)Malice aforethought

11) The offence of murder is complete when, “malice aforethought” is established if, pursuant to section 206 of the Penal Code evidence proves 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;

(d) 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.”

12) When none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under section 202 Penal Code which is punishable under section 205 Penal Code by a term of imprisonment extending up to life.

13) Having found that the prosecution has proved actus reus, the issue for determination is whether malice aforethought can be inferred from the circumstances of this case. Evidence by the Accused that she was fighting with the deceased has not been controverted. Indeed, PW1 Patrick Kimathi Kithinjiand his wife PW2 Mercy Kaari informed the court that the couple had been quarreling on the material night before the incident happened.

14) . From the foregoing, it can safely be inferred that that the act of stabbing the deceased was accidental and without any malice aforethought on the part of the Accused. In other words, it was likely that the Accused did not intend to kill the deceased.

15) The evidence as adduced by the prosecution established beyond reasonable doubt the act of unlawful killing of the deceased by the accused person herein without malice aforethought. Sections 179 of the Criminal Procedure Code stipulates:

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but he remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.”

16) From the foregoing analysis, I find Accused guilty of a lesser charge of manslaughter contrary to Section 202 (1) of the Penal Code as read with Section 205 of the Penal Code and she is convicted accordingly.

DELIVERED AT MERU THIS 10thDAY OFFebruary2022

WAMAE. T. W. CHERERE

JUDGE

Court Assistant - Kinoti

Accused - Present

For the Accused - Mr. Munene for Mr. Kithinji Advocate

For the State - Ms. Mwaniki