[2023] KEHC 23888 (KLR)

Republic v Kioko (Criminal Case 10 of 2017) [2023] KEHC 23888 (KLR) (17 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23888 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 10 of 2017

MW Muigai, J

October 17, 2023

Between

Republic

State

and

Magdalene Mwende Kioko

Accused

Judgment

Background 1. The accused person was charged with the offense of murder of one Ndanu Musau.

2. The information that led to the arraignment of the accused person before the court was as follows:Murder contrary to Section 203 as read with Section 204 of the Penal Code, Laws of Kenya.Magdaline Mwende Kioko: on 9th day of February,2017 at Kitengei Village, Kaliluni Sub Location in Kathiani Sub-County within Machakos County, murdered Ndanu Musau.

The Prosecution Case 3. Prosecution case was anchored on the evidence of Ten [10] witnesses.

4. PW1 Felister Mbithe Musau, gave her sworn statement and told court that she is married with children but one of the children named Ndanu Musau was killed. Testifying that on 9/2/2017 at around 7:00 am she prepared the kid to go to school who was Ndanu Musau aged 4 ½ years old and that at around 3pm he came home and she instructed him to go his grandmother’s place as PW1 needed to attend a church meeting. She told court that at 5 pm she was called by her sister in law Jemimah Nzula that she was needed at home urgently she rushed home and on the way she met a young boy called Kamau Wambua who informed her that her daughter had fallen and is bleeding from the mouth and the nose. PW1 started crying. According to PW1 a large crowd had already thronged her home with her neighbours at a place where her daughter had been thrown. She did not visit the place as she lost consciousness and regained it around 7pm. PW1 testified further that the police arrived and took photographs of the body of the deceased and the body was later taken away by the police.

5. The following day the Area Chief convened a meeting and enquired on the issue of who was behind the death of the deceased and the accused person herein volunteered and owned up to the crime. PW1 stated that the accused was/is well known to her as she is her aunt and that they had disagreed in 2014 as the accused claimed PW1 were occupying her land. The dispute had been reported to the village elder. PW1 lamented that the accused ran away before the dispute could be resolved and that since then they had had the dispute up to the time of death of the deceased; that PW1 visited the Mortuary and identified the body of the deceased.

6. In cross-examination by Mr. Kyalo for the accused, PW1 told court that she knows the accused herein as the accused is related to her husband and that her home and that of the accused are near each other. She testified that she had lived there for 4 years and that she did not witness the incident. She stated further that nobody saw the accused commit the offence; that the land dispute was not resolved. She stated that the accused had a problem with PW1’s husband as the accused used to leave her house for a while then come back.

7. PW2 John Kioko testified that he had two children and he recalled on 9/2/2017 he was at his shop within Kathiani Market when a cousin Christopher Mutiso Juta alerted him that there was a problem at their home. PW2 closed the shop and rushed there and found a large crowd at the home of his cousin Musau and the Area Chief was also present. PW2 approached that the Scene and saw the body of Ndanu Musau who was well known to him. PW2 claimed that it looked like the deceased had been hit with a stone on the right side of the head and was bleeding from the mouth and nose. He told court that the police arrived and took photographs (he identified them as MFI A-E, five photographs) he said that the body was taken to the Mortuary and that the following day the area chief and area Member of County Assembly convened a meeting and the accused herein admitted to have killed the deceased. PW2 stated that the accused is his relative and that he had never had any dispute with her before.

8. In cross-examination by Mr. Kyalo for the accused, PW2 stated that he received a call and rushed to the scene and found a crowd of about 150 people at the scene and that he did not witness the incident.

9. PW3 Samuel Munyao, was a minor and court took note of the same and called for a Voire dire examination was conducted. From the examination conducted the Court found that witness (a minor) appeared possessed with sufficient intelligence to justify the reception of his evidence hence Court ordered that he shall give sworn testimony.

10. PW3 the said minor gave sworn statement and testified that he recalled on 9/2/2017 at 4 pm he was at school and left at 5pm to proceed and found his sister Ndanu at the farm belonging to their parents lying down and was bleeding from mouth and nose. He then informed Mwende (the accused person) their neighbor to go and see for herself. He went home then came back to Mwende and he informed her to go to the farm. The said Mwende told PW3 that she does not go or visit places where there is blood and finally agreed to go but only approached the deceased from a safe distance and left for her house.

11. According to PW3 the said Mwende then dressed in red rubber shoes but later changed them and wore another pair of shoes. He later went and briefed his grandfather Paul Wambua who was at his house. He led his grandfather to where the deceased was lying and he instructed PW3 to go and alert David Maingi whom he escorted to scene and left him with his grandfather. PW3 stated that at the scene he saw a stone near the body and noticed that Ndanu had died and he later recorded a statement.

12. In cross-examination by Mr. Kyalo for the Accused, PW3 told court that the accused herein is wife to his grandfather’s son and she is called Mwende. Testifying that accused used to live at her home not far from theirs and that his grandfather used to remain at home with grandmother. PW3 stated that the accused and his grandfather were the only ones at home that day as he was in school and that he arrived from school at 5pm.

13. PW4 Alfred Kimanthi Mutisya, gave his sworn statement and told court that on 9/2/2017 at 1630 hours he was in his shop when he received a call from the village elder that there was a body of a child at a neighbor’s house; he rushed there. The neighbor was Magdalene Mwende Kioko and that other neighbors were Ndambuki and Paul Wambua. He testified that the house belonging to Magdaline Mwende Kioko is about a hundred meters from his’. PW4 found the assistant chief Joseph Mumo and also the village elder Paul Muasya and villagers. He was led where the body of the child lay which is three meters away from the house. PW4 claimed that he had seen the child before. He saw blood oozing from the mouth and nose. The OCS was alerted and he rushed there in the company of Scenes of Crime officer who took photographs. He told court that the body was placed onto the police vehicle and taken to Kathiani Hospital Mortuary. He later recorded the statement.

14. In cross- examination by Mr. Kyalo for the accused, PW4 testified that his home is about one hundred meters away from the scene and that he knew the accused herein and that accused grandfather is called Wambua. He told Court that the baby was already dead and that he did not witness the incident.

15. PW5 Dr. John Mutunga gave his sworn statement and testified that he is a medical doctor at Machakos Level Five Hospital and that he obtained his Bachelor of Medical Degree in 1993. PW5 stated that he had a post mortem form and that he has worked at the said hospital for 15 years and that he knew Dr. Fredrick Okinyi as they had worked together for four years hence he was/is quite familiar with his handwriting and signature. He stated that he had seen the Post Mortem Form which had the writing that belongs to Dr. Okinyi. He told Court further that the Post Mortem was with regard to one Musau MFI 2 Post mortem report. The body had been identified by the family members and PC Simon Warui. He testified that the Post Mortem was done on 13/2/2017 at Kathiani Hospital and that the body had been properly preserved but had several bruises on the face, head and neck and that there was swellings on those areas. The windpipe (trachea) was contused and had hemorrhage, the heart also had haemorrhage; according to PW5, the cause of haemorrhage was due to congestion of the blood vessels due to strangulation. He claimed that there were multiple skull fractures with lacerations of brain tissue. He told court that the cause of death was blunt injury (head) due to blunt trauma. He could not determine the exact weapon. The deceased also died due to asphyxia; that the manual strangulation must have been done by a third party similarly occasioned the head injuries. He testified further that blood was taken for testing. (PW5 confirmed the post mortem report produced as EXH 2- Post mortem report dated 13/2/2017).

16. No cross-examination and re- examination conducted to the witness.

17. PW6 NO. 70318 PC Kenneth Settim, testified that he is based in Embu Police Station. Before he was at Kathiani police station. He recalled on 10/2/2017 he was on duty around 10:00 am when he received a member of public by the name of Magdaline Mwende Kioko who was accompanied by Assistant Chief Joseph Mumo and members of the public. He told Court that it was then claimed that the said lady had killed a child; the lady is the accused herein. PW 6 interrogated her afterwards and she was in good condition and placed her in the cells. PW6 identified the accused in court.

18. There was no cross-examination or re-examination conducted on PW6.

19. PW 7 NO. 91747 PC Kyambi Benson gave his sworn statement and continued to testify that he is based at Kathiani police station. He recalled on 9/2/2017 he was at the office when OCS Kipkoros George alerted him that he had received a call from a Chief of Iveti location that there was a four-year child named Ndanu who had been murdered. He accompanied the OCS and two other officers to the scene. Testifying that they were led by the assistant chief Joseph Mumo and that they found the body of the deceased on the ground and bleeding profusely. Testifying that it looked like the deceased had been strangled and there two stones near the body and were bloodstained. (he identified the two bloodstained stones marked as Exhibit 3A & B-). He told court that they made enquiries from the large number of people and also interrogated certain persons and they learnt that the mother of the deceased had left the baby as she went to church. He claimed that there were about six houses within the compound and that it was claimed that the accused had been left with the baby. The deceased was found three meters away from the house of the accused herein. He stated that the scene officers took photographs. (he identified the photographs as MFI A-E).

20. It was his testimony they collected the body and took it to Kathiani hospital and that most people were not ready to say much about the incident. PW7 lamented that the following day the accused was brought by members of public on claims that she had confessed to the murder. Stating that she was interrogated and cautioned and that she was later presented before Hon. Lorot (SPM) for confession recording and that the accused was/is before court; that the recovered stones were safely kept in the armoury.

21. In cross-examination by Mr. Kyalo for the accused, PW7 told court that he is not the investigating officer since it is George Kipkoros who was the OCS then. He testified that they received report at about 6 pm and reached the scene around 8pm. He testified that mother of the deceased claimed that she had left the baby around 3pm and they arrived at the scene in time before anyone could tamper with it. PW7 stated that the stones were next to the deceased and that he cannot tell if fingerprints were lifted from the neck of the deceased and that the accused was alone at the time; that the grandmother of the deceased lived about 100 meters from the scene and that the area chief was one Joseph Mumo and that the said chief had received a call from the villager named Muasa Paul. He told court that they received the report from mother of the deceased the following day.

22. PW8 NO 232591 ACP George Kipkoros, gave his sworn statement and testified that he is currently the Deputy OCPD Gatundu South and that previously he was at Kathiani police station. He testified that he recalled on 9/2/2017 he was at the police station when the assistant chief of Kaliluni sub-location Joseph Mumo claimed that a certain baby within Kitengeny village had been killed and that the said Assistant Chief claimed that the baby was aged 4 years and named Ndanu. Testifying that he then mobilized his officers PC Mwenda, PC Warui, Driver Sgt Nguli and they rushed to the scene. It was PW8’s testimony that they met the assistant chief in company of members of public and they were briefed on the incident; that they were led to the scene where he found a female child already dead. He claimed that the body had some bruises on the neck indicating that she had been strangled and that the left part of the head indicated that it had been hit with a blunt object. He testified that blood oozed from the nose and mouth and that around the body were two pieces of stones which they collected as exhibits (MFI 3) EXH 3A & B)- two pieces of stones.

23. He told Court that they collected the body after photographs had been taken and the body was escorted to Kathiani district hospital. PW8 stated that on 10/2/2017 he was at the station when the accused was presented by the Assistant Chief and members of public claimed that she participated in the killing of the deceased and that the previous day the mother of deceased kept on mentioning the name of accused as the killer. PW8 then interrogated the accused who later recorded a confession before Magistrate Hon Lorot.

24. In cross-examination by Mr. Kyalo for the accused. PW8, told court that they found a large crowd at the scene and that the assistant chief briefed him on what he had established. PW8 could not recall the name of the person who had alerted the assistant chief. He said that he met the mother of the deceased at the scene but she was then wailing and blaming the accused for killing the deceased. He testified that the mother of the deceased claimed that she had left the baby taking porridge as she rushed to a church nearby and that there were several homes within the compound. PW8 told court that he could not tell if the deceased’s grandparents lived around there and that he is the one who collected the stones which had bloodstains and that they were later forwarded to the Government Chemist. He stated that the photographs at the scene were taken by PC Simon Warui and who processed the same and that they prepared an inventory of items recovered; that the neck had finger marks while the left ear was swollen and that members of the public kept safe distance from the scene. He lamented no finger prints were dusted on the body of the deceased and he did not find the accused at the scene.

25. PW9 Elizabeth Waithera Oyiengo, gave her sworn statement and testified that she works for Government Chemist Nairobi. PW9 is a holder of Bachelor of Science from Nairobi University as well as masters of science at Kenyatta University and that she had a report with her. She told court that on 15/2/2017 at the Government Chemist she received several items from Kathiani police station namely: E1- two stones in a Khaki Paper, E2- blood sample of deceased Ndanu Musau. She claimed that it was desired that they determine the presence and origin of any bloodstains and the items were accompanied by an abstract memo for MFI 4- Exhibit Memo Form. She carried out the analysis and came with the DNA analysis which revealed as follows: the DNA profile generated from the bloodstains on the stone (E1) matched the DNA profile generated from the blood sample (E2) belonging to the deceased. She stated that the blood sample belonged to the deceased. EX5- Government Analyst report.

26. No cross-examination and re-examination were conducted on the accused.

27. PW10 Abdulkadir Lorot, gave his sworn statement and testified that he is Judicial Officer (SPM) currently based at Kibera Law Courts. Previously he worked at Machakos Law Courts. That on 13/2/2017 he was approached by No 91742 PC Benson Mwenda of Kathiani police station. The said PC went to his Chambers after he had entered for a short recess. He was then the Duty Court. The said PC advised that he had a female suspect in custody over murder of a four-year-old child and requested him to record a confession from the suspect who had previously recorded one before Chief Inspector at Kathiani Police Station.

28. PW 9 stated that the said Magdalene Mwende Kioko was ushered into his chambers. She was 28 years old and was sane and sober; that she informed PW10 that she was a class eight drop out and PW10 requested her to record her own statement but she requested PW10 to do so for her. PW10 testified that she spoke fluently in Kiswahili language and she was accompanied by PC Woman Chepkemoi Rono No. 104761. Testifying that the suspect did not have a problem with the said officer standing by as she recorded the confession; that after she was through PW10 translated to her in Kiswahili language she signed on every page thereof to authenticate the same. PW10 also prepared and signed the certificate dated 13/2/2017. PW10 claimed that he started recording the statement at 12:00 hours and she was speaking in Kiswahili while PW10 was putting it in English language and the same was signed by the accused on all pages. (PW10 produced the certificate and confession and exhibits as MFI 6- certificate & MFI 7 confession statement)

29. Mr. Kyalo for the accused challenged the production of the exhibits since the confession was not properly made in line with the Evidence Act as according to the Counsel, the accused had been misled by the police to admit the charge so as to be released. Counsel sought for a trial within a trial where evidence of PW10 was/is scrutinized.

30. The state counsel Mr. Mwongera opined that since the defence was objecting to the production of the confession then they be at liberty to tackle the witness (PW10) court ordered for a trial within a trial to commence.

31. PW 10 testified that he is the one who recorded the statement of the accused and the accused was very calm and her eyes were very alert; that the enormity of the matters she stated did not bother her at all. PW10 did not find anything unusual at all as she was not under any duress as alleged. PW10 told court that he is a judicial officer conversant with the proceedings. PW10 told court further that the accused willingly made the confession and he duly read back the statement to her in Kiswahili language and she admitted the same to be true reflection of what she had stated and signed on every page; that she confirmed the contents. PW10 claimed that he had requested the accused to record it herself but she told PW10 to do so. PW10 confirmed the signatures on the pages were made by her and he established that she had earlier made a confession to the chief inspector of the police and the police brought the accused to him to ensure that she was making a genuine confession.

32. In cross-examination by Mr. Kyalo for the accused, PW10 testified that he prepared the certificate after recording the statement from the accused and that he explained to the accused her rights as can be seen from the beginning of the statement and further he explained to the accused that whatever she was to state would be used in evidence against her. PW10 told court that the accused informed him that she wanted to say something about the incident and that from the interview with her she seemed to suggest that some other evil forces were behind the incident and that he found the accused to be sober and in full control of the narrative she was making. PW10 did not see the need to refer her to go for mental assessment since he was merely recording her statement and that it was up to the investigating officer to decide on the way forward; further PW10 testified that the accused wanted to pour out her heart about the matter regarding the death of the child. PW10 did not establish when the accused was arrested as his duty was only to record her statement; he did not interrogate the accused and the accused spoke in Kiswahili language and PW10 translated into English; he read back the statement in Kiswahili and he learnt further that the accused had a confession in Kathiani police station but none was shown to him and PW10 maintained that the confession was properly recorded.

33. The Trial court delivered Ruling on Trial within Trial on 29/10/2020.

34. On 19/05/2022 This Court recalled Pw10 who produced the confession as evidence.

35. The Prosecution closed their case and directions were issued by court that matter on a case to answer be canvassed by written submissions, which directions parties complied wit and filed their respective submissions.

Ruling On A Case To Answer. 36. The Trial Court by Ruling dated 27th October,2022 found inter alia that the prosecution had proved a prima facie case and that the evidence on record by prosecution witnesses placed the accused person at the scene and time of the incident hence evidence disclosed commission of the criminal offence of murder c/s 203 of the Penal Code and was sufficient to warrant the accused person be placed on her defense.

The Defence Case. 37. The accused person having placed on her defence, gave her defense without calling witnesses.

38. DWI Magdalene Mwende, gave her sworn statement and told court that she was arraigned in court in 2017 and she heard the evidence and she wished to state as follows: that on 9/2/2017 the child involved, she is married in the child’s family and that on that day she was not at home as she was at work. Testifying that she left in the morning and she came back at 3pm and at 3:30 pm left for the market. She left the grandfather of the child Daniel Musau in the house and no, one else. DW1 testified further that they are neighbor and they do not share the same compound and she knows the child (deceased) and attended nursery; DW1 told court further that she came home at 6 pm and she found the crowd at the shamba, went there and found the chief and askari. She claimed that the Chief asked who was responsible and the child and Stanley Musau were taken away later on people dispersed and left.

39. It was DW1’s testimony that the next day on 10/2/2017 she was called at 9 am and they asked her what happened and she said she did not know and she was taken to Kathiani police station; DW1 found police officers who beat her up and made her record a statement and told her then she would be set free and they told her that she would be taken to Kamiti; she told court that she was forced and she recorded the statement. She further testified that she was unwell and they refused to take her to the hospital. DW1 was feeling things moving in her mind and she was not feeling well and she did not know what happened. She could not recall what she told the Magistrate and the statement she recorded and that she said she had evil spirits that told her to do things and DW1 could not understand.

40. The Police Officer told her to go in the office and said the things she said so that she could be taken to the hospital. DW1 felt spirits commanding her. She testified that the statement she recorded she was not in the right frame of mind and that she did not hit the child with a stone as she was at work that day. DW1 testified that she did not know where the stone came from and that no one testified that she was seen killing the child. DW1 claimed that she had a problem with the child’s mother. She stated that the issue was land; that Mama Ndanu/ Mbithe and maybe that caused for the dispute as she did not want PW1 to get the shamba. She told court that she did not kill the child and she asked the court to acquit her and she claimed she has been in custody for 6 years had to bring up the 2 children.

41. In cross-examination by state counsel, DW1 testified that she knew the deceased and the mother Mbithe, they had a problem and that she made a confession. She stated that she was forced to record a confession to the Magistrate. She further told court that at Kathiani she was beaten and she did not have a P 3 Form and she was not taken to hospital. She stated that no one saw her coming from work or going to the market. DW1 lamented that she got spirits/ jini but did not do the act; she was not there.

42. Re –examination by Mr. Kyalo for the accused, DW1 told court that she asked the police to take her to hospital and she was not taken to the hospital and that she did not know the Police Officer’s name, only their faces/ physique.

43. Upon the close of the defense case, directions were issued by court that the matter be canvassed vide written submissions with which each party was given 21 days to comply.

Submissions. Accused Person’s Written Submissions. 44. The Accused person by her written submissions dated and filed in court on 6th April,2023, Mr. Kyalo counsel for the accused in his submission placed reliance on the case of Republic Vs Pius Kikungu John [2019] eKLR (Makueni HCCR NO. 197 OF 2017) to buttress his point on the critical ingredients the prosecution has to prove for a murder offence.

45. Counsel averred that the prosecution has not made out a prima facie case due to the following issues counsel submitted on sequentially.

46. On the issue of proof, the fact and cause of death of the deceased, Mr. Kyalo submitted that the Post mortem report confirmed that the deceased died as a result of severe head injury caused by blunt trauma and that the deceased had bruises on face, head and scalp, the neck was swollen; neck strap and trachea were construed indicating possibility of strangulation. Counsel opined that the fact of death is not disputed since post mortem report confirmed the same.

47. As regards the issue of proof that the death of the deceased was a direct consequence of unlawful act or omission on the part of the accused which constitutes the Actus reus of the offence, counsel contended that there is no direct evidence linking the accused person to the commission of the alleged offence since no one saw her (the accused) strangle, throw a stone or even inflict any form of harm to the deceased. Mr. kyalo submitted that the evidence produced by the prosecution witness was purely circumstantial. He placed reliance on the cases of Joan Chebii Sawe Vs Republic [2033] eKLR (Appeal NO. 2 of 2002) and Republic vs Pius Kikungu John [Supra], to buttress his point on what guides court where the evidence to be relied on by prosecution is purely circumstantial evidence.

48. Regarding the issue of proof that the said unlawful act or omission was committed with malice after-thought which constitutes the mens rea of the offence, counsel opined that no proof that the accused person committed the alleged offence. According to the accused’s counsel no prosecution witness stated that they knew the accused as a person of immoral character. Counsel submitted further that the accused at the time of recording the alleged confession was not in the right mental facilities; she seemed to have been under some delusion, attack and or control of unknown/ evil forces. It was the counsel’s submissions that the prosecution did not prove that the accused committed any offence at all and/ or any unlawful act or omission and with malice after-thought.

49. Counsel further submitted that key witnesses were not called as PW3 (a minor) confirmed that his grandmother and grandfather were at home when the alleged incident occurred and this just happened outside their homestead. It was counsel’s contention that the accused person equally confirmed that she saw the grandfather to the deceased at the homestead and these people were not interviewed, they did not record their statement neither testify in court.

50. Counsel averred that failure to call these witnesses raised anomalies as to the guilt of the accused person. Reliance was placed on the case of Republic VS Morris Karani Alando (Kakamega Criminal) (murder) case No. 32 of 2012, to underscore the limb that the prosecution had failed to call witnesses who were likely to give evidence.

51. It was urged that the prosecution had not established a prima facie case against the accused person and urged further that the honorable court proceed and acquit the accused.

Submissions By The State. 52. The state vide its submissions dated and filed in court on 11th May,2023, the state counsel Mr. Mwongera relied on the cases of Republic Vs Mohammed Dadi Kokane & 7 Others [2014] eKLR and Republic Vs Daniel Musyoka Muasya, Paul Mutua Muasya and Walter Otieno case No. 42 of 2009, to buttress his point on what constitute the elements of the offence of murder and submitted on the following issues:a.Was the accused involved in the murder of the deceased?b.Did the accused have malice?c.Was the accused identified appropriately?d.Was the cause of death as of the injuries inflicted?

53. As to issue of involvement of the accused in the murder of the deceased, State counsel relied on the confession recorded by PW10 which clearly indicated that the accused person had difference with the mother of the deceased (Mbithe).

54. State counsel averred that on 9/2/2017 the accused person alleged to be bewitched, went to the house of Mbithe, called her daughter (Ndanu) and assaulted her on the head with a stone, until the child died. According to the counsel, the accused person perpetrated this heinous act against the deceased person.

55. On the issue of Malice, counsel placed his reliance on Section 206 of the Penal Code to support his point on malice aforethought and averred that the accused had malice aforethought since she inflicted injuries on the deceased using a stone.

56. Regarding cause of death, it was submitted that PW5 the doctor testified that the cause of death was due to severe head injury caused by the blunt trauma. Asphyxia from manual strangulation. Further, the state counsel contended that PW9 the government analyst testified that the DNA profile from the bloodstained stone (E1) matched the DNA profile generated from the blood sample (E1) belonging to the deceased.

57. Reliance was places on the Cases of Ronald Nyaga Kiura vs Republic [2018] eKLR, Ramanlal Trambaklal Bhatt vs Republic [1957] EA 3323 AT 334 AND 335 and R Vs Jagjiwan M. Patel and Others (1) T.L.R (R) 85, to buttress his point on the establishment of prima facie case.

58. It was state counsel’s submission that it has proved beyond reasonable doubt and the accused ought to be convicted of murder under Section 203 read with Section 204 of the Penal Code.

Determination Court Proceedings 59. The Mental Assessment dated 28th March, 2017 was carried out and filed in Court on 29th March, 2017 found the accused person Fit to plead. The Accused person herein took plea on 29/03/2017 whereof after the charges were read out to her in a language that she understood she pleaded Not Guilty. A plea of Not Guilty was entered on her behalf.

60. The matter commenced hearing on 14/3/2017 by Hon. D. K. Kemei J who took the evidence of Pw1, Pw2, Pw3, Pw4, Pw5, Pw6, Pw7, Pw8, Pw9 & Pw10.

61. The Trial Judge Hon. D. K. Kemei wrote and delivered Ruling of/on 29/10/2020 after conducting trial within a trial and the Confession was to be produced as exhibit in Court.

62. This Court took over the matter on 3/11/2021 and proceedings were typed and parties/Counsel obtained the copies of the same.

63. On 1/12/2021, Section 200-201 CPC was read/explained to the Accused person by the Court Assistant in Kiswahili and the Accused person opted to proceed from where the matter stopped.

64. This Court recalled PW10 on 19/5/2022 after Trial within Trial was conducted by the Trial Court after objection to produce the Confession as Exhibit in Court. In line with the Court’s Ruling of 29/10/2020 PW10 produced the Confession as Exhibit 7 and the Prosecution closed its case. Both Counsel filed and exchanged written Submissions.

65. This Court delivered Ruling on case to answer on 27/10/2022 and Defense by the Accused person was on 15/3/2023.

Analysis 66. The Court considered the evidence on record by the Trial Court and this Court documentary exhibits produced and written submissions by Counsel for the Prosecution and Accused Person and the issue for determination is whether the Accused person committed murder that resulted in the death of the deceased.

Evidence Recorded By Trial Court 67. In the case of Ndegwa vs Republic (1985) KLR 535 where Madan, Kneller & Nyarangi JJA (as they then were) stated;It could also be argued that the statutory and time-honored formula that the Trial Magistrate being the best person to do so; he should himself see, hear, assess and gauge demeanor and credibility of witnesses. It has been and will be so in other cases that will follow. In this case, however, the 2nd Magistrate did not himself see and hear all prosecution witnesses even though he said that he carefully ‘observed’ the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanor of all witnesses in the cases. A fatal vacuum in this case in our opinion…..for these reasons we have stated in our view the trial was unsatisfactory.In Joseph Kamau Gichuki vs R Criminal Appeal 523 of 2010 cited in Nyabutu & Another, the Court stressed that;“By dint of Section 200(1) (b) of the CPC, a succeeding Judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstances, not only are likely, but will defeat the ends of justice if a succeeding judge does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete trial………. See Ndegwa vs R (1985) supra. In this case the Trial Judge passed on after having fully recorded evidence of 7 witnesses….in fact [he] had summed up to the Assessors. The trial, moreover, was not a short one but a protracted one which had taken 5 years to conclude. The passage of time militated against the Trial being started de novo…….”

68. This Court relies and considered the evidence of witnesses as recorded by the Trial Court in arriving at the determination of the matter as allowed by Section 200 (1) CPC but also taking caution that this Court did not hear, see and/or assess the demeanor/credibility of witnesses and/or veracity of the evidence.Section 203 of the Penal Code under which the accused is charged provides that:-Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.Hon. Nyakundi J. in Republic vs. Ismail Hussein Ibrahim [2018] eKLR observed;“…the prosecution has the duty to prove all the ingredients of the offence beyond reasonable doubt and there is no burden on the part of the accused to proof his innocence at any one given time. The law only permits very few statutory exceptions where an accused person can be called upon to give an explanation in rebuttal. However, this does not shift the burden of proof from the prosecution”

69. In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR the elements of the offence of murder were listed by M. Odero, LJ. as follows: -1)The fact of the death of the deceased. [mens rea]2)The cause of such death.3)Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly4)Proof that said unlawful act or omission was committed with malice aforethought. [actus reus]

70. The Court of Appeal in PON vs. Republic [2019] eKLR had this to say on direct evidence;“In its ordinary meaning, direct evidence would be that which directly links a person to a crime; that which is based on an eyewitness account, on personal knowledge or observation. The direct evidence sought in the matter the subject of this appeal is - who saw how the deceased meet her death. There is no such evidence hence the recourse to circumstantial evidence…”

The fact of the death of the deceased 71. PW3 witnessed his sibling died and was bleeding from the mouth and nose. He called neighbors PW2 PW4 and the Accused person and informed his grandfather.PW5 PW6 PW7 & PW8 visited the scene upon receipt of the report. The issue of death of deceased is not contested.

The cause of death. 72. PW5 the Pathologist produced Post Mortem Report by Dr Fredrick Okinyi who conducted the Post Mortem and observed that the deceased had several bruises on the face, head and neck and scalp and that there was swellings on those areas. The windpipe (trachea) was contused and had hemorrhage, the heart also had haemorrhages; according to PW5, the cause of haemorrhages was due to congestion of the blood vessels due to strangulation. He claimed that there were multiple skull fractures with lacerations of brain tissue. He told court that the cause of death was blunt injury (head) due to blunt trauma and asphyxia-manual strangulation.Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused person,

73. The evidence of PW3 is that he was the first at the scene and saw the deceased on the ground bleeding and informed PW3 & PW4 neighbors and later PW6 PW7 & PW8 arrived at the scene. Of importance PW3 saw and told the Accused person of the deceased’s lying on the ground bleeding and she did not go to the scene. Instead, she changed the shoes she had on with another pair of shoes. PW3 placed her at the scene on 9/2/2017.

74. PW9 Government Chemist confirmed receipt of 2 blood stained stones (from the scene where the deceased was found lying o the ground) and blood sample from the deceased (taken during post mortem) as listed in the Exhibit Memo Form and after examination found the blood on the stones matched the blood sample of the deceased. The conclusion being that the stones were used to hit injure and eventually kill the deceased. The evidence on record points to killing of the deceased but no direct evidence /witness who saw who killed/murdered the deceased.

75. PW10 SPM Machakos Law Courts recorded a statement from the Accused person upon request by PC Benson Mwende of Kathiani Police Station. The suspect voluntarily gave her statement in Kiswahili to PW10 who translated and wrote down in English. Later, PW10 read out to the suspect what he recorded and on agreement she signed each page and he duly signed the Certificate dated 13/2/2017.

76. The Defense challenged production of the Confession in Court as evidence and the Trial Court conducted Trial within a Trial and in the Ruling of 29/10/2020, the Trial Court found the Confession was properly taken in compliance with the law, that the confession was voluntary. The Confession was produced in this Court as Exhibit 7.

77. In the case of Josephat Manoti Omwancha vs Republic [2021] eKLR Court of Appeal KSM (Criminal Appeal 41 of 2019) the Court of Appeal observed as follows;The law [that provides] for the taking, production and admission of the impugned confessionary statement as evidence proving the Appellant’s culpability for the commission of the offence faced at the trial are;a)Article 49(4) & 50 (2) (1) CoK 2010b)Section 25 A & 26 of Evidence Act Cap 80 &c)Evidence (out of Court Confession) Rules, 2009 mainly Rule 4 which provides;a)shall ask and record the Accused person’s preferred language of communication;b)shall provide the Accused person with an interpreter free of charge where he does not speak Kiswahili or English;c)shall ensure that the Accused person is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment;d)Shall ensure that the Accused person is informed of his rights to have legal representation of his own choice among others;e)shall ask the Accused person to nominate a third party to be present during the confession and the particulars of the third party and the relationship of the accused must be recorded.

78. In the instant case, the Confession statement was recorded before a Magistrate SPM Hon. Lorot PW10 in compliance with Section 25A of the Evidence Act. The requirements of/by Rule 4 of Evidence (out of Court confession) Rules above were complied with as per the Trial Court Ruling of 29/10/2020. In the confession the Accused person stated as follows;The Accused person stated that on 9/2/2017 a Thursday at 4 pm she heard a lot of noises in her head pushing her to bay for blood. The alleged voices pushed her to PW1’s house and commanded her to call Ndanu (the deceased) She was in pain and emotional and it was evil spirit (pepo mchafu) the Spirit that made her do as commanded. She held the child by the throat and threw the child at the farm and she begun to pick stones, 2 big rocks and hit the child on the head and the child died. She went home. The next day, the Chief summoned her and she explained that she was possessed and she was pushed by a force she could not explain. She was not in control of her mind and body when she went and killed the child.She admitted to killing the child and signed all pages of the Confession statement. From the totality of the evidence on record and coupled with the confession, the deceased died out of an unlawful act by the Accused person as she confessed to killing the deceased.

Proof that said unlawful act or omission was committed with malice aforethought. 79. Section 206 of the Penal Code sets out the circumstances which constitute malice aforethought 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 caused death or to do grievous harm to any person whether such 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 such person is the person actually killed or not, although such knowledge is accomplished by indifference whether death or grievous harm is caused or not, or by a wish that it may be caused or not, or by a wish that it may not be caused.(c)An intention to commit a felony.(d)An intention by an act or omission to facilitate the flight or escape from custody of any person who attempt to commit a felony.

80. In the case of Nzuki vs. Republic [1973] KLR 171 the Court of Appeal stated that in the commission of the offence of murder it must be committed with the following intentions: -“(i)The intention to cause death;(ii)The intention to cause grievous bodily harm;(iii)Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those circumstances to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed. The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue form his conduct is not by itself enough to convert a homicide into a crime of murder.”

81. This Court finds that the circumstantial evidence on record, PW3 found the Accused person amongst other neighbors when he found the deceased on the day of the incident 9/02/2017 which placed the accused person within the vicinity of scene of crime, the blood stained stones found near the deceased and taken for examination and PW9 Government Chemist confirmed the blood stains were the deceased’s coupled with the fact that PW1 and Accused person had a longstanding feud cumulatively point to Accused’s commission of the crime which is proved by her own confession to killing the deceased.

82. However, the Accused person admitted to killing the deceased and narrated in great detail interference by and involvement of evil spirits that took control of her body and mind and commanded her to pursue Ndanu the deceased and get blood resulting in strangling her then pelting her with stones to her untimely death. These circumstances were consistent with injuries found by the Pathologist Dr. Okinyi whose report was produced by PW5 that the deceased had several bruises on the face, head, neck and scalp and PW3 found the deceased bleeding from the mouth and nose.

83. The evidence on record that places the Accused person within the vicinity of the of the scene of crime, is not controverted by her defense that on the fateful day, she went about her daily chores; to work and came in the evening and went to the market.

84. The incident occurred within the neighborhood, where each party seemed to know the other neighbors; in fact the Accused person and deceased’s family are related. It cannot be a case of mistaken identity but of recognition. The Accused person and deceased’s mother PW1 had a longstanding feud. With these facts against the Accused person’s confession her defence would hardly cast doubt of the Accused person having committed the crime of killing the deceased.

85. The accused person claimed in her statement that she was held hostage by evil spirits, she heard voices in her head that took control of her body and mind and propelled her to kill the deceased. This allegation was not subjected to investigation or medical examination to verify its possibility or impact on the Accused person’s mental state at the time /when commission of the crime occurred.

86. Although the Defense Counsel raised the issue of the Accused person being taken for another mental assessment/examination during the confession statement’s trial within trial, it was not the appropriate stage to do so, PW10 was to record the statement and would not know details of the matter or trial.

87. Be that as it may, this Court takes the view that since the Accused person raised the issue of outside forces interfering with her mental and physical capability, she is entitled to the benefit of doubt that if it is true then such interference and compulsion may her adversely affected her mental capacity, rationality, judgment and thereby diminishing sound mental state and judgment. The confession is to killing the deceased but not proof of malice aforethought, willful intention in light of the prevailing mental state if at all evil spirits conjured the Accused person to commit the offence.

88. This Court finds that there is no clear evidence from the prosecution to conclude that the accused had intention and/or the malice aforethought to kill the deceased which would prove the offence of murder.

Disposition 1. Pursuant to Section 179(1) and (2) of the CPC, this Court finds the Accused person guilty on the charge of manslaughter contrary to Section 202 as read with section 205 of the Penal Code.

2. Mention On 18/10/2023.

JUDGMENT DELIVERED SIGNED DATED ON 17TH OCTOBER 2023 IN OPEN COURT IN MACHAKOS (VIRTUAL/PHYSICAL CONFERENCE).M.W.MUIGAIJUDGEIn The Presence Of:Magdalene Mwende Kioko - Accused PersonMr. Kyalo - For The AccusedMr. Mwongera - For The State