[2022] KEHC 17095 (KLR)

Republic v Kanjira (Criminal Case 10 of 2018) [2022] KEHC 17095 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 17095 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 10 of 2018

MN Mwangi, J

July 14, 2022

Between

Republic

Prosecutor

and

Purity Kanjira

Accused

Judgment

1. Through an information filed on 6th March, 2018, the accused person, Purity Kanjira, was charged for the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge were that on the 18th day of February, 2018 at Mtwapa Township, within Kilifi County, she murdered Morris Koti Kiamba. She pleaded not guilty to the charge on 16th May, 2018 after she had undergone a psychiatric examination. The prosecution called seven (7) witnesses in support of its case.

2. PW1 was Aisha Athumani Muhala, who used to live in her mother’s house near Mtwapa Bridge View Hotel. She stated that at 8:00a.m., on 18th February, 2018 she saw a missed call from one Nasra, whose house neighbours a house she owns, which she had leased out. That on calling Nasra, she told her that people were killing each other in her PW1’s house near Suncity Butchery, and that one person had died after being stabbed. PW1 explained that the house she had leased out was a Swahili type house.

3. PW1’s evidence was that she went to the scene and passed through a back door, and on the verandah of the house, she found the body of her tenant Morris, a twenty- five (25) year old man, who had leased a single room that was in the middle of the Swahili type house.

4. PW1 stated that Morris used to live with his girlfriend Purity (accused person). She also stated that on looking at Morris, she saw that his intestines were protruding out of his stomach. She stated that she went to Mtwapa Police Station where she reported the incident and recorded a statement. She was then accompanied by three policemen to her house.

5. PW1’s testimony was that the accused person was standing about 1 meter from the deceased’s body, and she was screaming. That the police took her to Mtwapa Police Station. That they then went back to the scene and collected the deceased’s body. PW1 stated that the accused person and the deceased had lived in the single room for three (3) months and that on two occasions, the deceased had paid the rent of Kshs. 3,200. 00 and on one occasion the accused person had paid.

6. Rogers Vumbi Mwakamsha a resident of Kwa Kulu, Mtwapa, testified as PW2. He stated that on 18th February, 2018 at 6:00a.m., he was at home with his wife sleeping when he was awoken by noise from people who were quarreling. He further stated that it was his immediate neighbours who were engaged in a quarrel and then they started fighting. PW2 stated that he was in a single roomed house from where he could hear things breaking and falling in his neighbours’ house. He testified that the quarrel and fight went on for thirty (30) minutes. That his neighbours’ voices were raised and he heard the woman who was in the said house telling the man that she would kill him. That he then heard the man make a mourning sound as if he was in pain. PW2 stated that the man and the woman then went silent.

7. It was PW2’s evidence that he then heard the door to his neighbours’ house being opened. That he heard someone going to the bathroom next to his house and fetching some water. He heard the person splashing water on the corridor and some of it splashed under the door to his house. PW2 then heard his female neighbour shouting asking for help as she said “Nisaidieni ameumia nimpeleke hospitalini!”. PW2 said that he heard more footsteps outside on the corridor. He stated that he opened the door to his house and found his neighbour Morris Koti lying on his back on the corridor of the Swahili type house, with an injury on his lower abdomen. PW2 stated that no one offered to assist their injured neighbour and that the accused person said that she was going to the police station to ask for assistance and she returned forty (40) minutes later.

8. PW2’s testimony was that the owner of the houses (PW1) who had been informed of the incident went to the scene with police officers but by that time, Morris had passed away. That the said police officers collected the deceased’s body. They also went away with the accused person after entering her house. PW2 stated that he understood the language the accused person had spoken to Morris in, which was Meru language as PW2’s mother is a Meru by tribe. He stated that he knew that the accused person was a Meru by tribe and her second name is Kanjira.

9. PW2 stated that he started living in the single room at the premises in December, 2017 and that the morning of the incident was the second time for him to hear the accused person and Morris seriously quarreling.

10. PW3 was Dr. Mohamed Ali Mohamed of Coast Teaching and Referral Hospital, where he has worked since March 2019. He produced a post mortem report signed by Dr. Ghanim, who had conducted the post mortem examination on the deceased’s body on 21st February, 2018. In making reference to the post mortem report, PW3 stated that the deceased was Morris and on examination, it was found that he had a stab would just below the navel (umbilicus). PW3 also stated that as per the said report, the deceased also had a bite mark on the exterior aspect of the left forearm. He gave evidence that as per the post mortem report, the deceased had a perforation of the small intestines and the cause of death was established as intracronial (sic) haemorrhage secondary to stab wound. PW3 clarified that the proper word should have been intra-peritoneal haemorrhage as the word intracronial (sic) does not exist.

11. On being examined by the Court, the Doctor said that the deceased died from intra-peritoneal hemorrhage secondary to a stab wound, which means that he died as a result of bleeding in the abdomen, as the stab wound had perforated the abdomen. PW3 produced the post mortem report.

12. PW4, Nasram Njomo Ndungi, a neighbour to the deceased and accused person testified of how on 18th February, 2018 at 7:00a.m., while sleeping at her home, she heard noise coming from a person who was saying “nimeua, nimeua!”. That she peeped through the window of her house and saw the accused person leaving the direction of her house heading towards the road still saying “nimeua, nimeua!.”

13. PW4 stated that she opened the rear gate of their Swahili type house and the accused went towards her and told her “nimeua!. PW4 testified that the accused person asked her to assist in putting the person she had killed on a motor cycle but PW4 told her that she would call the landlord. That she called the said landlord (Mama Aisha - PW1) and explained to her what had happened. PW4’s evidence was that she went outside the gate and found people peeping through the window of Purity’s house and that they were saying “amemdunga kisu cha tumbo na utumbo umetoka nje”. She stated that later, the police went to the scene and asked her to record a statement. She identified the accused person as the one whom she heard saying “nimeua, nimeua!”.

14. Irene Furaha Mwaringa testified as PW5. She was a Government Analyst stationed at the Government Chemist Mombasa. She stated that on 22nd February, 2018, she received an exhibit memo form, a knife and a blood sample from one PC Emmanuel Kiplagat of the DCI Kilifi. It was her evidence that the kitchen knife tested negative for human blood, that the blood sample tested positive for human blood and that it generated a male DNA profile but the knife did not generate any DNA profile. She produced the exhibit memo form and the Government Analyst’s report. She indicated that the knife could have been cleaned as they did not detect any traces of blood on it through DNA analysis.

15. PW6, Chief Inspector Klein Kulicha, the Officer-in-Charge of the Scenes of Crime Coast Region testified that on 25th November, 2019 he received a sealed packet No. CR/CID/47/2018 purportedly signed by PC Oyaro and a CD under cover letter of even reference signed by the said officer. He stated that the CD and the said letter were from the DCI Kilifi. That he processed the said digital images under his supervision and developed photographic prints. He produced a certificate dated 30th November, 2019, the letter, envelope and photographic images as exhibits.

16. PC Oyaro testified as PW7. He stated that he was currently attached to the DCI Land Fraud Unit, Nairobi and before that, he was attached to the DCI Kilifi South. His evidence was that on 28th February, 2018 at 7:30a.m., an assault report was made at Mtwapa Police Station by a lady known as Purity Kanjira that she had been assaulted by her husband known as Morris Koti Kiamba. PW7 stated that on the same day, Aisha Mwala made a report at 8:00a.m. by phone that her tenants who had been living as husband and wife had fought and the boyfriend had been stabbed.

17. PW7 gave evidence that in the company of other police officers, they went to a rental Swahili type house behind Suncity Butchery where they saw a man lying on the corridor with a stab wound on his stomach, with his intestines protruding out. PW7 stated that the accused person had locked herself in her room because she feared being attacked. He stated that they implored her to open the door and when she did so, he saw that the room was in a state of disarray as plates and glasses were broken, with cups being all over the room.

18. He further stated that he picked a blood stained medium sized knife with a plastic handle with 3 different colours from the room. He stated that they also photographed the room and he drew a sketch plan of the scene of crime showing the rooms in the Swahili type house, where the body lay and the corridor in the house. He produced the knife and sketch plan as evidence.

19. He stated that they collected the body and took it to Coast Province General Hospital and arrested the suspect and took her to Mtwapa Police Station. He testified that since the knife was blood stained, it was taken to the Government Chemist for analysis. He stated that on interrogating the accused person’s neighbours, they informed him that the accused person and the deceased had gone home at 6:00a.m., and it was alleged that they were drunk and a fight ensued between them and the deceased was stabbed. That the accused person had told them that she and the deceased had gone on a drinking spree on 17th February, 2018 at around 11:00p.m., within Mtwapa Township and went home at 5:00a.m., and she had a quarrel with her boyfriend whom she had lived with for 1½ years. That she claimed that she had been beaten and she reported the assault at Mtwapa Police Station.

20. On being put on her defence the accused person opted to give an unsworn defence. She was therefore not subjected to cross-examination. She stated that she was twenty-eight (28) years old and has a child, who is thirteen (13) years old. She admitted having known Morris Koti Kiamba (the deceased) for one (1) year and that they used to live together as lovers at Mtwapa. She stated that her child was not the deceased’s biological child and that the said child used to live with her uncle at Mwingi.

21. The accused person stated that she used to live at Mtwapa opposite Equity Bank in a Swahili type house in one room. She recounted that on 17th February, 2018, she was at home with Morris during the day and after lunch, he told her that he was going to the shop. That when he returned he had with him a roll of miraa and a bottle of Blue Moon Vodka. That he asked her to sit down for them to enjoy themselves. That they chewed the miraa and drunk the Blue Moon Vodka and that at 8:00p.m., Morris told her to dress smartly so that they could go out. She stated that they went to a Wines and Spirits shop and ordered for 3 bottles of 750 ml Blue Moon Vodka, which they consumed. That they left when the owner of the shop said that he wanted to close the shop. That Morris told her that he had not had enough alcohol and they went to California Bar and ordered for Blue Moon Vodka 750 ml, of which they drank two (2) bottles. She stated that at 5:00a.m., a man entered the bar and when Morris saw him, he told her that the said man had disappeared with his Kshs. 500/= and Morris left to talk to the man. That when he returned, she asked him what the man had told him and he said that he had informed him that he only had enough money for buying alcohol.

22. She stated that Morris went out briefly and then returned to the bar, held her hand and told her that they should leave. She stated that there was a motor cycle outside the bar and he asked her to board it. He then told her that he had forgotten something in the club. That he went back to the club and then returned and boarded the motor cycle but after a short while, the man who owed Morris money ran out of the bar calling out to Morris. She stated that Morris did not want to know what the man had to say as he told the motor cycle rider to leave the premises. That on reaching their house, Morris removed his shirt and went out of their room.

23. The accused person’s defence was that by then she was very drunk and she started dozing off but within a short time, she felt someone slapping her. That when she opened her eyes, she saw that it was the man whom they had left in the bar who had followed them home. She indicated that she did not know his name. That he was asking where her husband was and on asking him what the problem was, he told her that her husband had taken his mobile phone from the table at the bar. That the man continued hitting her but she pushed him and he fell on the utensils but the man rose up and stabbed her above her eyebrow (scar seen).

24. Her evidence was that she screamed and Morris went to their room, where he and the other man started fighting. She stated that by then, she was lying on the floor and she saw the man pick her mobile phone and the one for Morris from their bed. She stated that she then saw Morris lying on the bed holding his stomach. That she rose up and asked him what the problem was but he did not respond. That on lifting his hand, she saw that it was blood stained and on looking at his stomach, she saw blood on it. That she tried to lift Morris but she was unable to do so as she was drunk.

25. The accused person stated that she went to their neighbour’s house, by the name Rodgers Vumbi Mwakamsha (PW2), to ask for help but she found his room locked. That she then went to the next neighbour’s house where she knocked at the door but no one responded. She stated that she then went back to their room and tried to lift Morris but she was unable to do so. She indicated that he was alive but he could not stand on his own. She also indicated that as she was trying to lift Morris, she heard her neighbour’s door being opened. That she went to PW2 and asked him to help her but he declined to assist Morris and said that he was not there when the incident happened and he did not want to be a witness.

26. She stated that she went outside the premises they used to live in and found a motor cycle rider and asked him to help Morris but he refused to assist. That she told him to take her to Mtwapa Police Station. That on reaching the said Police Station, she found two Police Officers whom she asked to help her to take her husband to hospital as he had been cut but they told her that they did not have a vehicle as it had gone to ferry water.

27. The accused person stated that she went outside the Police Station and stopped a Tuk Tuk which took her to their house. That on reaching there, PW2 saw her and told the people who had gathered that she was the wife of Morris and she should be asked what had happened to him. That they started asking her to tell them what had happened to Morris and she told them that she had not killed Morris as they were telling her that she had killed him. She stated that at that time Morris was lying on the corridor and she tried to lift him but the crowd followed her and wanted to beat her. That one person in the crowd told her to get into the house as she risked being beaten. She stated that within a short time, the police went to their house, handcuffed her and took her to Mtwapa Police Station where she was put in the cells. It was her defence that she explained to the police about the man who had injured Morris and they said that they would look for him. She said that she was thereafter taken to Court on 6th March, 2018 and was shocked to hear that she had been charged for the offence of murder. She denied having committed the offence.

28. In written submissions filed by Mr. Muthomi on behalf of the DPP, he summarized the evidence adduced and relied on the case of Anthony Ndegwa Ngari v Republic [2014] eKLR, to elaborate on the elements that this Court needs to consider on the charge of murder that the accused person was charged with, that is, that the death of the deceased occurred, that the accused person committed the unlawful act which caused the death of the deceased and that the accused person had malice aforethought when she committed the offence. On the issue of the death of the deceased, Mr. Muthomi submitted that PW1 and PW2 testified that they saw the body of the deceased lying outside on the corridor with intestines protruding from a stab wound. The Prosecution Counsel further submitted that the foregoing was buttressed by the evidence of the Doctor who carried out the postmortem examination and made a report which was exhibited in this case, thus the death of the deceased was conclusively proved.

29. On the issue of the unlawful act that caused the deceased’s death, Mr. Muthomi submitted that PW2 gave a clear account of what transpired on the material night and that a quarrel ensued between the deceased and the accused person which resulted in a fight and that he heard the accused person telling the deceased in Meru language that she would kill him. That PW2 was conversant with Meru language. That he later heard the deceased make a groaning sound and he then went silent. Mr. Muthomi stated that when PW2 went outside his room, he found the deceased lying on his back with his intestines protruding out of his abdomen. He submitted that PW4 corroborated the evidence adduced by PW2, as she heard the accused person shouting “nimeua, nimeua!” and that when she peeped outside, she saw the accused person leaving the direction of her house going towards the road, and that when she opened the gate, the accused person requested her to assist to put the deceased on a motor cycle.

30. Mr. Muthomi contended that in a case of murder it is not necessary to prove motive and relied on the case of Lisambula v Republic [2003] KLR 683 for the said proposition.

31. In regard to what constitutes malice aforethought, he relied on the case of Republic v Joseph Mauti[2019] eKLR and Section 206 of the Penal Code. He stated that in determining if the accused person had malice aforethought, the Court must look at the entirety of the circumstances and in particular, the nature of the weapon used and the manner in which the deceased was injured, which are a manifestation of malice aforethought. He stated that the said principle was elucidated by the Court of Appeal in Bonaya Tutu Ipu and another v Republic [2015] eKLR. He also relied on the Ugandan Court of Appeal decision in Chesakit v Uganda, Cr. App. No. 95 of 2004 and Rex v Tubere s/o Ochen [1945] 12 EACA 63.

32. Mr. Muthomi submitted that guided by the above authorities, the accused person by her actions of fetching water and splashing it on the corridor before raising the alarm, going to the Police Station and making a report of assault without disclosing that the deceased had been injured was a clear manifestation that she intended to cause grievous harm to the deceased, thus malice aforethought was established. That the foregoing was compounded by the fact that she inflicted an injury with a knife on a sensitive part of the deceased’s body.

33. He also submitted that the unsworn statement by the accused person was a sham, fictitious and could not be believed, because whereas she made the first report of the assault of the deceased at Mtwapa Police Station on the material day, she totally denied the same in her defence and indicated that she went to look for help for the deceased which was declined. He also stated that the accused person also created another non-existent person whom she blamed for the ordeal and had not shown remorse to date. Mr. Muthomi urged this Court to disregard the defence by the accused person for not being plausible.

34. He submitted that a defence of intoxication could not come to the aid of the accused person due to her actions. He stated that after she stabbed the deceased, she went and fetched water and splashed it on the corridor presumably on the murder weapon to wash away the evidence. That she later raised the alarm and made a report of assault at Mtwapa Police Station. Mr. Muthomi submitted that whereas the accused person might have taken some alcohol, her actions did not depict someone who was so intoxicated as not to understand her actions. That she did not in her defence state that she was intoxicated to the extent of not understanding her actions.

35. Ms Ngure for the accused person on the other hand submitted that there were no eye witnesses who saw the accused person commit any act which resulted in the death of the deceased. She pointed out that the murder weapon relied on by the prosecution did not contain any DNA evidence or finger prints of the accused person. Ms Ngure submitted that there was no connection between the accused person and the death of the deceased. She cited the case of Republic v Tubere s/o Ochen (supra), which outlined the elements of malice aforethought. She also relied on the case of Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR, on the same issue of malice aforethought.

36. She stated that in her defence, the accused person totally denied having killed the deceased and that she testified that she had a good relationship with him as her boyfriend. That the accused person stated that she often went out with the deceased and on the material day, a person who was known to the deceased attacked her and the deceased in the early morning after a drinking spree. Ms Ngure urged this Court to note that the accused person did not flee the scene and did not resist arrest but cooperated with the police.

37. She submitted that the accused person genuinely went out in search for help from multiple people and none offered her assistance. She was of the view that the accused person’s actions were not those of a person with malice but a person who genuinely cared.

38. The defence Counsel submitted that the circumstantial evidence relied on by the prosecution did not meet the legal threshold to warrant a conviction. She stated that the prosecution had failed to prove its case beyond reasonable doubt as the elements of murder need to be sufficiently proved.

DETERMINATION 39. The issues for determination are –i.If the accused person caused the death of the deceased; andii.If she caused his death, whether she had malice aforethought.

40. In order for any Court to convict an accused person with the offence of murder, it must be satisfied of the existence of malice aforethought as set out in Section 206 of the Penal Code. The said Section states as follows-“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;(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.”

41. As was stated by Ms Ngure, the Prosecution must establish facts that are consistent with the existence of malice aforethought on the part of the accused person herein, so that Court can convict her for the offence of murder. In this case, PW2 was the next door neighbour to the deceased and the accused person who shared a room in a Swahili type house. He testified of how he heard the two quarrelling in the early morning of 18th February, 2018. He then heard things breaking and falling as the couple fought. He heard the fight going on for 30 minutes and since their voices were raised, he heard the accused person telling the man in Meru language that she would kill him. PW2 then heard a mourning sound as if the man in the neighbouring room was in pain. The couple then went silent. He then heard his neighbour’s door opening and someone going out to the bathroom next to his house and fetching water. He heard water being splashed on the corridor and some of it splashed under the door to his house. The said actions were followed by shouts from his female neighbour (the accused person) who was asking for help to take her male partner (Morris) to the hospital because he was injured.

42. PW2 heard more footsteps outside the corridor of the Swahili type house and on opening the door, he saw his neighbor, Morris Koti lying on his back on the corridor, with an injury on his abdomen. He said that since no one offered any assistance, the accused person said that she was going to the police to ask for assistance and she returned forty (40) minutes later.

43. Nasram Njomo testified of how on the morning of the same day as she was sleeping, she heard a person saying “nimeua, nimeua!”, which means “I have killed! I have killed!” and on peeping through the window of her house, she saw the accused person leaving the direction of her house as she repeatedly said “nimeua, nimeua!”. After PW4 ventured out of her house, she came into contact with the accused person who asked for assistance, but PW4 instead called the accused person’s landlady (PW1) and informed her of what was happening.

44. PW4 then went outside their gate and found people peeping through the window of the accused person’s house as they said that the accused person had stabbed Morris (the deceased) in the stomach. In this Court’s view, the above evidence displaces the defence raised by the accused person that a man who was known to Morris is the one who stabbed him.

45. The utterances made by the accused person when she threatened to kill the deceased, a statement that was heard by PW2 who understood Meru language, were put into action when she stabbed the deceased and then fetched water from the bathroom and poured it on the corridor. It cannot however be said with certainty as suggested by Mr. Muthomi that the accused person that after stabbing the deceased, the accused person washed the knife she had used to commit the offence. The evidence of PW2 was that he heard someone splashing water on the corridor of the Swahili type house they used to live in.

46. In this Court’s view, if the deceased had been stabbed by a third party, her first reaction would have been to scream for help but not to try to eliminate evidence or to cover it up. The accused person by the utterances she made thereafter by saying “nimeua, nimeua!” gives credence to the evidence of PW2 that the accused person had threatened to kill the deceased. Those utterances were an admission of her guilt in the death of the deceased. The evidence of PW2 and PW4 was based on circumstantial evidence. The law on circumstantial evidence is that in order to justify a conviction, the inculpatory facts must not only be incompatible with the innocence of an accused person, and be incapable of explanation upon any other reasonable hypothesis than that of his guilt, but the said facts must exclude co-existing circumstances which may tend to weaken or destroy the inference of guilt. See the decisions in Sawe v Republic [2003] eKLR and Kipkering Arap Koske and another v Republic [1949] EACA 135. In this case, the inculpatory facts are inconsistent with the innocence of the accused person but show her culpability in the death of the deceased.

47. On the issue of the unsworn defence given by the accused person, the Court of Appeal in May v Republic [1981] KLR 129, pronounced itself on the value to be given to such a defence and held interalia –“Unsworn statement is not strictly speaking evidence and the rules of evidence cannot be applied to unsworn statement. It has no probative value, but it should be considered in relation to the whole evidence. Its potential is persuasive rather than evidential. For it to have value it must be supported by evidence recorded in the case. No adverse inference can be drawn against the appellant for electing to make an unsworn statement as she was exercising her right conferred by Section 211 (1) of the Criminal Procedure Code (Cap 75, Laws of Kenya).”

48. In the present case, the accused person opted to give an unsworn defence. In so doing she exercised her rights under Section 306(2) of the Criminal Procedure Code. Her defence was however displaced by the evidence of PW2 and PW4, who connected her to the death of the deceased. The Doctor who conducted the post mortem examination found that the deceased had a stab wound just inferior to the umbilicus and a bite mark on the anterior aspect of the left forearm. The inference to be drawn is that the bite mark was evidence that there was a fight between the deceased and the accused person and in the course of the fight, she bit the deceased on his left forearm.

49. This Court rejects the defence raised by the accused person of the existence of a third person at the scene of crime, as the fight was between the accused person and the deceased. I concur with Mr. Muthomi that the accused person was not too drunk to know what she was doing. Her actions of splashing water along the corridor after she had threatened to kill the deceased, of shouting for help, and also of shouting “nimeua, nimeua!” (I have killed! I have killed!) are all actions of a person who was in her right frame of mind. In this Court’s view, she would not even have thought of taking the deceased to hospital if she was too drunk to know what she was doing. She could not have gone to make a report at Mtwapa Police Station that the deceased had assaulted her, if she was too intoxicated to be in her right sense of mind.

50. In cross-examination, PW4 stated that she saw the accused person with an injury above one of her eyes and that blood was oozing from the said injury. PW7, the Investigating Officer said in cross-examination that the accused person had a slight injury on her forehead but on being re-examined, he said that he could not recall seeing injuries on the accused person and that she was not issued with a P3 form.

51. On visiting the Swahili type house that the accused person and deceased used to live in, PW7 found the deceased lying on the corridor with his intestines protruding out of his stomach. He entered their room and found it in a state of disarray as plates and glasses were broken. He recovered a blood stained kitchen knife which was taken to the Government Chemist for forensic analysis but it yielded no DNA evidence.

52. Considering the circumstantial evidence in this case which was corroborated by the utterances made by the accused person that that she would kill the deceased and thereafter saying “nimeua, nimeua!”, it is my finding that the prosecution has proved beyond reasonable doubt that the death of the deceased was caused by the accused person.

53. Noting that there was a quarrel that culminated into a fight before the accused person was killed and also noting that there was a single stab wound on the deceased’s body, I find that malice aforethought for the offence of murder has not been established.

54. It is however my finding that the prosecution proved beyond reasonable doubt the case of manslaughter against the accused person for having unlawfully caused the death of the deceased. I hereby convict her for the lesser charge of manslaughter contrary to Section 202 as read with Section 205 of thePenal Code.It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 14TH DAY OF JULY, 2022 IN OPEN COURT.NJOKI MWANGIJUDGEIn the presence of:Ms Ngure for the accused personMs Keya for the DPPAccused personMr. Oliver Musundi – Court Assistant.