https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8827

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYERI** **CRIMINAL CASE NO. E006 OF 2024** **REPUBLIC………………………………….......…………….PROSECUTOR** **VERSUS** **POLLY KAGENDO KATHURE……………...…..…..…………ACCUSED** **JUDGMENT** 1. The accused person faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on 8th March 2024 at Thika Municipality, Thika West Sub County within Kiambu County murdered Stephen Muuo Oluoch. 2. The prosecution called ten (10) witnesses in support of its case. Upon close of the prosecution case, the court found that the accused had a case to answer and she was then placed on her defence with her rights being explained to her as provided under Section 211 of the Criminal Procedure Code. The accused thereafter gave her defence and called four (4) defence witnesses. 3. Precisely, the evidence of the prosecution was that on 7th March 2024 at around 9.00 p.m. PW1 was in her house on the fourth floor when she heard commotion in her next door neighbour’s house number 37 on the same plot where she lived. PW3 was the tenant in occupation of the said house. PW1 put off her television in order to know what was happening. She heard the deceased shouting “nisaidieni” meaning “please help me” PW1 said she then heard something heavy fall from the balcony to the ground floor. PW1 rushed outside the balcony of the house and looked towards the ground floor. From there, she saw the deceased lying on the ground. PW1 then saw the watchman, PW6 approaching the place where the child was. PW1 shouted at the watchman to help the victim. The witness rushed downstairs and found that the child was not in a position to talk. The child was immediately rushed to hospital by PW2, PW4 and PW5. PW1 then went upstairs to PW3’s house and knocked on the door. The accused, who was the house help of the child’s mother refused to open the door. On PW1 inquiring where Steve the deceased was, the accused said that he was asleep and that the younger baby was also asleep though she was holding the baby in her arms. One of the neighbours went to the side of the house and opened the rear door of PW3’s house. He said he entered the house from the rear. Upon him asking the accused where the children were, the accused said that they were both asleep. He immediately reminded the accused that she was holding the younger child in her arms. PW1 together with her neighbours reported the incident at Thika Police Station and handed over the accused to the police. PW1 thereafter went to Avenue Hospital where the deceased was admitted where they were informed that he had to be transferred to Nairobi Hospital. The following day, they learnt that Steve had passed away due to the injuries sustained during the fall. PW1 said that the accused had stayed in PW3’s house for only four days after being hired as a house help. 1. The accused was taken for mental assessment on 24th July 2024 having been transferred from Thika Level 5 Hospital where she was found to be suffering from a mental disorder. The accused was admitted and treated at Mathare Teaching and Referral for two months before she was discharged with medication. PW9 Dr. Franz Owano examined her following treatment and found that she had healed and declared her mentally fit to plead to the charge of murder. 2. Post mortem of the deceased’s body was conducted by Dr. John Mathaiya and he formed the opinion that the deceased died as a result of multiple injuries to the head, chest, abdominopelvic due to blunt force trauma consistent with a fall from a height. 3. Upon being put on her defence, the accused person elected to give sworn testimony and called three witnesses. DW1, Dr. Mohammed Abdikadir Guyo, Chief of Staff at Isiolo County Government, testified that he was a medical officer and that the accused person was his patient at Isiolo Sub-County hospital where she attended a special clinic. The witness said that the accused person suffered from epilepsy which is a chronic neurological condition which brings a neurological disorder causing recurrent and unprovoked seizures affecting the function of the brain which causes temporary confusion, muscle spasms, loss of awareness and compulsion. The doctor testified that the accused began attending the county hospital in 2014 whereas she was given anti-epileptic medication that was to be taken for life. The medical officer explained that during convulsions such as those the accused suffered from, a patient loses consciousness and experiences a black-out with uncontrolled jerking movements. 1. On cross examination, the witness said that he saw the accused last in the year 2018 or 2019. He said he had no recent report of her mental health status to produce before the court. The medical officer further stated that the epileptic condition cannot be attributed to the commission of an offence in his opinion. 2. DW2, Peter Kithure, the accused person’s father testified that the accused fell sick at the age of nine (9) months whereby she suffered malaria. At the age of three years, the accused was diagnosed with convulsions. The accused continued to fall sick from time to time and when she reached the age of four, she was treated again after collapsing in school. The said sickness continued until the year 2019 when she was treated by a specialist in Isiolo Sub-County hospital. The witness said that since then, the accused person has been on medication to calm the epilepsy condition. He further testified that during convulsions, the accused cannot do anything for herself and had to be aided. 3. DW3, Reverend Elias Kiogora Makina, a Minister at Revival Christian Church testified that he knew the accused from 2013 as she was a Sunday school teacher in the church in which he was a minister known as East Africa Pentecostal Church. The witness testified that the accused person would often collapse in church and he could pray for her. He added that the accused person was a good teacher to the children in the church and that the children and the worshippers liked her. 1. The accused person testified as DW4 to the effect that since her childhood she has been suffering from epilepsy and she would normally fall down during attacks and experience convulsions. The accused further said that she became better after being treated at Mathare Hospital following her arrest. The accused told the court that in the material night, she had experienced convulsions and was taken to hospital though she could not tell what really happened regarding the incident that led to her arraignment in court. She further stated that during her convulsions, she could not comprehend her mental or physical state. The accused person further said that she could not explain how the deceased fell from the veranda of the house down to the ground floor. 2. On cross examination, the accused person told the court that she was under medication at the time of employment by PW3. She further said that she was holding the younger child when the neighbours went to the house and that she had not taken her medication on the material day. 3. The prosecution and the defence filed their submissions in this case which the court has perused and considered in this judgment. 4. The prosecution cited the case of **Gusambizi Wesonga vs Republic [1948] 15 EACA 65** and submitted that the deceased was seen alive on 7/3/2024 by his mother PW3 who testified that her son came back from school at around 16.20 hrs and that at 16.30 hrs, she went back to work leaving the two children with the accused. The prosecution argued that its case wholly depended on circumstantial evidence particularly that the deceased was left under the care of the accused person and there was no other adult in the house except herself. The young child according to the mother could not be able to throw himself off the balcony. It was further submitted that the post mortem report provided that the deceased suffered multiple injuries (head, chest and abdominopelvic injuries) due to blunt force trauma consistent with a fall from a height, which is more telling as to the cause of death. The prosecution further submitted that the evidence that demonstrated the element of grievous harm placed this charge under Section 206(b) of the Penal Code. The Section deals with the accused having an intention to cause grievous harm to another thus establishing that the death of the deceased was unlawful. 5. The prosecution further cited the cases of **Shampal Shigh vs Republic [1960] EA**; **Republic vs Tubere s/o Ochen [1945] 12 EACA 63** and **Karani & 3 Others vs Republic [1991] KLR 622** and submitted that it proved the element of malice aforethought beyond reasonable doubt. The post mortem revealed that the deceased sustained multiple injuries (head, chest and abdominopelvic injuries) due to blunt force trauma consistent with a fall from a height which leads to the conclusion that the accused had no other intention but to kill the deceased. 1. Relying on the cases of **Mnyele vs Republic [2010] EA 315**; **Chivatsi & Others vs Republic [2003] 2 EA 395**; **Republic vs Kipkerring arap Koskei & Another [1949] 16 EACA 135**; **Mohammed & 3 Others vs Republic [2005] 1 KLR 722** and **Mwangi & another vs Republic [2004] 2 KLR 32**, the prosecution submitted that PW3, the mother of the deceased left the deceased in good health under the care of the accused person, a fact well corroborated by the accused herself. PW1, PW2, PW4, PW5 and PW6 said that the accused was found in the house at the scene immediately after the deceased fell to the ground floor. The prosecution further argued that the defence of the accused is not plausible as the accused denies having knowledge of what happened on the material date and gives mere denials yet she stated that she was still on medication on the material day. On cross examination, the accused person stated that upon employment, she did not reveal to her employer that she suffered from epilepsy which can be deduced as voluntary neglect on her part. 2. The prosecution submitted that DW1, Dr. Mohammed did not produce a clinical history of epilepsy nor did he provide neurological evidence such as an electrocardiogram demonstrating that a seizure occurred at the exact time of the murder incident. The doctor’s evidence was not useful as he testified of events of 2019 and informed the court that he knew nothing about the murder case facing the accused. The prosecution argued that the burden of proof in criminal cases rests on them to prove its case beyond reasonable doubt. According to the prosecution, there are instances when the law places a duty on the accused person to explain certain facts particularly those peculiarly within her knowledge as in the instance case. Pursuant to Sections 111(1) and 119 of the Evidence Act, the prosecution argued that a duty was placed on the accused to explain the existence of circumstances she alleged existed and which were only within her knowledge on how the deceased met his death. The prosecution further argued that a presumption is drawn in the instant case from the facts and evidence presented that the accused committed the offence. The prosecution further argued that PW3 confirmed that when she left to go to work, the deceased was in good health. The deceased was a child of about nine (9) years and of short stature and could not throw himself over the balcony and cause his death. 1. The defence submitted that the prosecution had failed to prove its case beyond a reasonable doubt. The accused argued that although the prosecution called eleven witnesses, not a single witness testified that they saw her push, throw or assault the deceased causing him to fall from the fourth floor balcony. The accused further argued that although the post mortem report confirms that the cause of death as blunt force trauma consistent with a fall, no evidence of struggle or assault was produced. Further there was no forensic evidence (DNA), fingerprints or physical marks linking her to the deceased at the time of the fall. 1. The accused submitted that PW9 testified that she suffers from schizophrenia and epilepsy and specifically noted that during the episodes, she lacks the physical capacity to lift objects and thus she was unable to commit the act alleged. The accused relied on the case of **Kipkering arap Koske vs R [1949]** and submitted that the prosecution is required to establish a case upon which a reasonable court could convict and given the absolute lack of forensic or eye witness identification, the said threshold has not been met. The accused further relied on the case of **Musoke vs R [1958]** and submitted that since the instant case relies purely on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. In the instant case, the prosecution own witness, PW9 introduced a compelling alternative hypothesis, the accused’s physical incapacity. Further, PW10, the forensic and acoustic analyst testified that CCTV footage captured an object falling from the building but he was unable to identify what exactly was falling. 2. The accused relies on the cases of **Kipkering arap Koske & another vs Republic (1949) 16 EACA 135**, **Musili Tulo vs Republic [2014] eKLR** and **Sawe vs Republic [2003] KLR 364** and submitted that before a conviction can be founded on circumstantial evidence there must be no co-existing circumstances capable of weakening or destroying the inference of guilt however the present case contains several such co-existing circumstances. The accused further argued that her defence created reasonable doubt as her three witnesses testified that she suffered from epilepsy since childhood. This fact was corroborated by PW9 who acknowledged that she was a known epileptic patient who had been receiving treatment. 1. The accused argued that she did not bear the burden of proving that a seizure occurred at the exact moment of the incident. Rather once credible evidence was placed before court showing that she was a long standing epileptic patient undergoing treatment, the burden remained upon the prosecution to exclude that possibility and prove beyond reasonable doubt that she intentionally caused the death of the deceased. The accused further argued that the prosecution did not produce any medical evidence excluding the possibility of an epileptic episode. 2. Relying on the cases of **Victor Mwendwa Mulinge vs Republic [2014] eKLR** and **Republic vs Ismail Hussein Ibrahim [2018] eKLR**, the accused reiterates that she bears no burden of proving her innocence and she was under no obligation to explain precisely how the deceased fell. The accused further relied on **Section 206 of the Penal Code** and the cases of **Republic vs Tubere s/o Ochen (1945) 12 EACA 63** and **Nzuki vs Republic [1993] KLR 171** and submitted that the prosecution failed to establish any evidence from which malic aforethought can be inferred. **The Law and Analysis** 1. The burden of proof in criminal cases lies on the prosecution to establish that the deceased’s death was a result of the unlawful act of the accused person. The prosecution must prove the primary ingredients of the offence of murder namely:- 2. That the deceased died as a result of the unlawful act of the accused; 3. That the accused person has been positively identified and placed at the scene of the crime; 4. That the unlawful act was actuated by malice, rather that malice aforethought existed on part of the accused person. **Whether the accused caused the death of the deceased by either an unlawful act or omission** 1. Upon the death of the deceased, PW7 Dr. John Mathaiya conducted an autopsy on the deceased. The post mortem report shows that the cause of death was multiple injuries (head, chest, abdominopelvic injuries) due to blunt force trauma consistent with a fall from a height. The death and cause of death have been established by the prosecution herein. 2. The prosecution case was mostly based on circumstantial evidence. PW1 said she heard commotion from the house where the deceased was next to her own. What followed was a loud bang at the balcony. 3. From the balcony she saw the deceased lying on the ground floor of the building. PW3, the mother of the deceased testified that she had left the deceased in good health as she went to work. He was under the care of the accused person before she went to work a few hours before the incident. The deceased was in a critical condition after the fall and could not talk. 4. Circumstantial evidence must be examined in light of the principles set out by the Court of Appeal in **Sawe vs Republic [2003] KLR 364** where the court held:- **“In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. There must be other co-existing circumstances weakening the chain of circumstances relied on. 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 is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.”** 1. Similarly in the case of **Sylvester Mwacharo Mwakeduo & Another vs Republic [2019] eKLR:-** **“Over the years, courts have set the threshold which has to be met if circumstantial evidence is to be relied on to prove a case to the required standard of beyond reasonable doubt. For circumstantial** **evidence to form the basis of a conviction several conditions must be satisfied to ensure that it points only to the guilt of the accused to the exclusion of others. This test has previously been applied by this Court in a myriad of cases for instance in the case of Judith Achieng’ Ochieng’ vs Republic, Criminal Appeal 128 of 2006, the Court stated the law as follows:-** **It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:-** 1. **The circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established;** 2. **Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;** 3. **The circumstances taken cumulatively should form a chain 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;** 4. **In other words, in order to justify a finding of guilt, the circumstantial evidence, in its totality, ought to be such that the incriminating facts lead to the unimpeded conclusion of guilt and that there are no co-existent facts that are capable of explanation upon any reasonable hypothesis other than that of the accused’s guilt.”** 5. Precisely, the evidence was that PW1 was in her house, which is next to that of deceased’s mother when she heard the deceased calling out for help. Immediately, she then heard something heavy fall on the balcony and when she went to check, she saw the deceased lying on the floor. The witness went to PW3’s house and knocked on the main door and asked the accused to open the door. The accused refused to open the door. Upon PW1 inquiring from the accused on where the deceased was, she said that he was asleep. The accused person further said that the younger baby was also asleep although she was holding the baby in her arms. PW3 testified that on the material day she went home at lunch time and that the deceased found her at home at 4.20pm from school. She then instructed the accused to prepare dinner for the family. Then, she left to go to work. As she left, the children accompanied her downstairs and then returned to the house shortly afterwards. PW3 went back to work leaving her children in good health on the material evening. PW3 called the deceased on phone at around 8.30pm and the two discussed about his homework. Additionally, only the accused was in the house with the deceased and the younger child aged nine (9) months. PW3 further testified that the deceased was a child of medium size who could have been easily lifted up. The circumstances of the case are that the deceased did not jump from the balcony as PW1 heard him call out for help before the fall. The fall was immediate after the deceased called for help. The only other person in the house was the 9 month old baby. It is obvious that the baby had no capacity to throw the deceased over the balcony. Furthermore, the house was locked from inside as PW1 went there a few seconds after the fall. PW1 said that no outsider would have entered the house at the material time to commit the offence, an inference that this court finds credible. 1. The defence of the accused was that she suffers from epilepsy which causes convulsions during the attacks. During such moments, she said she loses consciousness and experiences black outs. The accused testified that on the material day, she had convulsions for she could not tell what happened but found herself being taken to hospital. The accused said she could not explain what happened to the deceased and added that she had not taken her medication on the material day. 2. The occurrence of any epileptic attack is ruled out by the evidence of PW1 who went to the house immediately after the fall and found the accused calm holding the baby of PW3 in her hands. PW6 the watchman on duty at the premises also went to the house immediately after identifying the victim of the fall as the deceased whom he knew. He had fallen from an upper floor of the building. This witness found the accused holding the baby in her arms and said she was in a stable condition. This evidence of PW1 and PW6 rules out the allegation that the accused had an epileptic attack at the time of the incident or even immediately after. Although the accused had a history of epilepsy from the evidence of DW1, DW2 and DW3, there was no evidence or possibility of an attack having occurred immediately before the material time. The defence of the accused was not that she suffered any epileptic attack at the time of the offence but that she did not know what happened to the deceased. DW1 testified to the accused’s condition until the year 2019 and he stated that he had not examined her since then. The last examination was about thirteen (13) years before the incident. The accused said that she could not explain what happened and she could not recall anything related to the incident. However, when neighbours went to PW3’s house and asked the accused to open the door, she declined to do so. The accused said that the children were asleep yet the younger baby was in her arms while the deceased had been rushed to hospital. In her defence, the accused said she was holding the baby when PW1 and PW6 went to the house. Additionally, none of the prosecution witnesses at the scene said that they found the accused in a state of an epileptic attack. Had she been in such a condition, the witnesses would have taken her to hospital for treatment as they did to the deceased. To the contrary, she later was arrested and taken to the police station for investigations regarding the incident. 1. On the issue of positive identification of the accused person, PW3 adduced evidence in court that she had hired her about four days before the incident as her help to look after her children. PW1 further testified that the accused had been hired by PW3 as her house help just a few days before the incident. The identification was by recognition as opposed to identification because the witnesses knew the accused well. 2. The prosecution submitted that the accused person demonstrated malice aforethought due to the magnitude of the injuries inflicted on the deceased as indicated in the post mortem report which shows that the accused had the intention of killing the deceased. PW1 testified that she heard the deceased calling for help before she heard a loud noise on the side of the balcony. Upon confirming that it was the deceased on the ground, she was joined by other neighbours to take the deceased to hospital. The evidence of DW1, the doctor was to the effect that the accused’s epileptic condition would not lead to commission of a crime. 3. I have carefully considered the defence of the accused in regard to her alleged condition at the time of the offence and her claim that she did not know what she was doing. In my considered view, the defence is not plausible and has not dislodged the prosecution’s case that she caused the fall that led to severe injuries on the deceased. 1. It is therefore my considered opinion that the prosecution has proved to the standards required that the accused person was the one who unlawfully caused the death of the deceased. **Whether the accused had malice aforethought** 1. For the court to convict the accused of the offence of murder, the prosecution must prove that the accused had malice aforethought at the time the offence was committed. **Section 206 of the Penal Code** stipulates that malice aforethought is deemed to be established by evidence when any of the following circumstances are proved:- 1. **An intention to cause the death of another.** 2. **An intention to cause grievous harm to another.** 3. **Knowledge that the act or omission causing death will probably cause death or grievous harm to someone, whether that is the person killed or not, accompanied by indifference whether death or grievous injury occurs or not or by a wish that it may not be caused.** 4. **An intent to commit a felony.** 5. **An intention to facilitate the escape from custody of or the flight of any person who has committed a felony or attempted it.** 6. The post mortem report showed that the deceased died of multiple injuries on the head, chest, abdominopelvic injuries due to blunt force trauma consistent with a fall from a height. Evidently, the evidence adduced shows that the accused person threw the nine (9) year old child from the fourth floor of the building from the balcony of PW3’s house. This was in the knowledge that with the said fall, the deceased would die or suffer grievous bodily harm. The nature and magnitude of injuries suffered by the deceased are indicative of malice aforethought showing that the accused had no other intention but to end the life of the deceased. 1. In conclusion, of the evidence, I find that that the prosecution has proved beyond any reasonable doubt that the accused is guilty of the offence of murder of the deceased herein. She is hereby convicted of the offence of murder under Section 203 as read with Section 204 of the Penal Code. 2. It is hereby so ordered. ***JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 18TH DAY OF JUNE 2026.*** **F. MUCHEMI** **JUDGE**