[2022] KEHC 14719 (KLR)

Republic v Kiondo & another (Criminal Case 01 of 2019) [2022] KEHC 14719 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14719 (KLR)

Republic of Kenya

In the High Court at Chuka

Criminal Case 01 of 2019

LW Gitari, J

October 12, 2022

Between

Republic

Prosecutor

and

Tabitha Kang’aria Kiondo

1st Accused

Sammy Mwenda Mpuku

2nd Accused

Judgment

Intoduction 1. The accused persons herein, Tabitha Kangaria Kiondo and Sammy Mwenda Mpuku were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Chapter 63 of the Laws of Kenya).

2. The particulars of the offence are that on the night of 17th and 18th day of December 2018 at Kamalenge Village, Kanjoro Location, within Tharaka-South Sub-County, in Tharaka Nithi County, the accused persons jointly with others not before court, unlawfully murdered one Simon Mpuku Kathare (the ‘deceased’). They both denied the charges and the matter proceeded to full trial.

3. The brief facts of the case are that the 1st accused and deceased used to cohabit as husband and wife before the deceased met his untimely death. This relationship started after the husband of the 1st accused passed away sometimes in the year 2012. The relations between the two was murky as it was marred with violence against the 1st accused and her children from the deceased. This had prompted the 1st accused to report the matter to the area Chief (PW3) on several occasions. Eventually the 1st accused lured the deceased and in ambush then accused killed the deceased and dumped his body at Meru National Park where it was recovered. The police were informed and visited the scene. The OCS Makutano Police Station Chief Inspector James Wairagu (PW5) was directed to the crime scene with other police officers he was directed to a narrow path where he found fresh blood stains and also recovered a mobile phone make Itel exhibit -1 belonging to the deceased. Upon observing the scene he realized the deceased was murdered and then dragged on the ground towards the river. Upon further search he recovered a brown leather shoe, (exhibit 2) a blue and cigarette lighter (exhibit 3). He followed some marks and trails of somebody being dragged and eventually found the body of the deceased inside a thick bush. The body had visible deep cuts on the head and neck. The body only had on a blue jean trouser. His shirt and jacket were coiled around the deceased’s hands. The body had bruises on the back and there was an arrow head lodged on the ribs on the right side which had penetrated from back. He concluded that the deceased was murdered. The body was removed from the scene. Later a postmortem was done by the late Doctor Kitili of Chuka District Hospital who concluded that the cause of death was head injury inflicted by a sharp object. The 1st accused who was the last person to be seen with the deceased and upon having information that the 1st and 2nd accused were together on that material night, they were arrested and charged with this offence.

The Prosecution’s Case 4. The prosecution called a total of seven (7) witnesses. PW1 was Gerrard Mutunga Muguongo. He told the court that he did not know the deceased but knew the accused persons. The 2nd accused is the son of the 1st Accused and PW1 got to know them as his father used to have a home near the home of the accused persons. He recalled that on December 18, 2018 at around 6. 30 am, he left his home using a motorcycle. He was carrying his wife to Shauri Market who was heading to Meru. On the way, they met the 1st accused on the road at Katuko and stopped. It was around 6. 30 am The 1st accused apparently did not greet him. She looked apprehensive according to PW1. She then asked whether he was heading to Mukothima. PW1 told court that he wondered why the 1st Accused did not greet him yet she knew him very well. PW1 offered to give her a lift and carried her together with his wife. At Shauri, his wife and the 1st Accused got off and PW1 went back and proceeded with his duties. PW1 then went back to Shauri market at 5 pm As he was taking tea in one of the hotels, he saw the area manager in the company of police officers in a police vehicle. He finished his tea and proceeded home. At around 7 pm, he called the area manager to find out why he was with the police officers. The area manager told him that they had gone to collect the body of a person that had allegedly been killed by the family of the late Njagi Karuge, who was the husband to the 1st Accused. PW1 told the area manager how he had earlier met the 1st Accused and how she behaved. PW1 was then called by the police on December 20, 2018 to record his statement. He told the court that where he met the 1st Accused was far from her home, an indication that she must have walked a long distance.

5. PW2 was William Mutungi Kibaara, a neighbour to the deceased. He stated that he knew the accused persons. He recalled that on December 17, 2018, he was at his home at around 8 p.m. The 2nd Accused person came to his home with a person who PW2 did not know. The 2nd Accused was looking for his mother and PW2 told him that he had not seen her. According to PW2, the 2nd Accused told him to tell his mother to wait for him in case she came there. PW2 told court that the 2nd Accused did not go to his house that day. On December 19, 2018, the accused persons went to PW2’s home together with the same person that the 2nd accused person had gone with two days before. They inquired from PW2 if he knew about the murder of the deceased. PW2 told them that he had heard that the deceased had been killed and taken to the mortuary. According to PW2, the 1st Accused told him that she had reported the disappearance of the deceased to the police earlier and that the police had told her that she had three (3) days to look for him. PW2 said that the deceased was in a relationship with the 1st Accused. He told court that the 1st Accused had given him a cow to look after it for her and denied that on the material day, she went to his home to take the cow.

6. PW3 was Jacob Muchee, a senior chief Kingingo location. He stated that he used to know the deceased and that he knows the 1st Accused but does not know the 2nd Accused very well. He further stated that the deceased and 1st Accused came from his location and used to live together as husband and wife since 2014. He told the court that there were squabbles between the deceased and the children of the 1st Accused who she sired with her late husband. He allegedly came to know about the squabbles when the accused persons went to his office sometime in January 2018. He stated that 2nd Accused told him that things at home were difficult and that he was planning to leave the 1st Accused’s house. On the other hand, the 1st Accused told him that her sons were uncomfortable with the deceased going to their home. PW3 then called the deceased and told him about the issues raised. After that, the deceased and the 1st Accused thrashed their differences and began living together. The deceased would leave his homestead and go to the 1st Accused house.

7. PW3 told the court that sometime later, the differences between the deceased and the 1st Accused arose again. The 1st Accused then decided to leave her home to avoid the visits from the deceased. It was PW3’s testimony that the deceased threatened the 1st Accused not to leave him and that when the 1st Accused left her home, the deceased threatened to look for her and kill her because she had spent his money and eventually left him. PW3 told court that when the 1st Accused heard of the threats, she decided to return home and reunite with the deceased. The sons of the 1st Accused were not happy with the turn of events. According to PW3, he did not solve any other issue from that family until he heard that the deceased had been killed in Kanyoro location, which is in a different location. On inquiring on how the deceased met his death, PW3 stated that he was told that the deceased was seen at his home on Sunday and that on Monday, he was seen with the 1st Accused going to Kanyoro where they had a parcel of land. PW3 did not disclose the source of this information. He alleged that from his intelligence reports, the 1st Accused wanted to sell her cow so that she could give the deceased his money. The following day, PW3 learnt from social media that the deceased had been killed.

8. PW4 was Mary Kanono Ewatia. She knew the 1st Accused as she was married where PW4 was born. She recalled that she was at her home in Ngandoni on December 19, 2018 at around 4 p.m. when the police went there together with both the accused persons herein. They entered a house in her compound in which the 1st Accused claimed that she had slept in with the deceased. PW4 inquired how the 1st Accused could have slept in her house without her knowledge. PW4 maintained that she never saw the deceased nor the 1st Accused on December 18, 2018 and that the claims by the 1st Accused that she slept in a house in PW4’s compound on December 18, 2018 were false.

9. PW5 was CIP James Wairagu, the OCS Makutano Police Station. He testified that on December 18, 2018 at around 9 am, he received a call from assistant chief Benson Gitonga informing him that someone had been murdered in Kamalenge around River Ura. PW5 was directed to the crime scene, and he proceeded there together with PC Ngari, Nelson Wandera, and PC Gilbert Otieno. They found around 10 people at the scene including one Andrew Njagi and one William Mutuku. The members of the public directed PW5 to a narrow path where he found fresh stains of blood. It was around two kilometres form the road. Andrew told him that he had recovered a phone 10 metres away from where the blood spots were. He called a number in the phonebook and inquired who the phone belonged to. He took possession of the phone which was an ITEL make (PExhibit 1). He got to know that the phone belonged to the deceased herein. PW5 observed that a trail which signaled that someone had been dragged as the grass and vegetation had been tampered with downwards towards the river. He followed the trial and at about 15 metres away, he recovered a brown leather shoe which is approximately size 43 (size 8) and which he recovered and produced as PExhibit 2. After another 20 metres, he recovered a blue cigarette lighter which he produced as PExhibit 3. He proceeded further ahead towards River Ura which was about 50 metres away.

10. From the riverbank, he observed signs that something had been thrown inside the river as the riverbank was wet. He stated that during the rainy season, the volume of the water in the river increases such that someone could drown but, on that day, the volume of water was low. They started searching the river which borders Meru National Park and a rural area. There were marks on the other side of the river which led to the said national park. The marks which looked like someone had been dragged on the ground. The said marks led them to about 15 metres away where they found the deceased’s body inside a thick bush. According to PW5, the body of the deceased had visible deep cuts on the head and neck. The body was wet and had a blue jean trouser on but no shirt or shoes. A shirt and jacket were coiled around the deceased’s hands. PW5 also noted bruises on the back of the deceased’s body. He turned the body and noted that it had an arrowhead on the right side of the ribs from the back. They then removed the body from the scene and took it to the mortuary.

11. PW6 was Dr Nicholas Nkonge. He produced the postmortem form filled by the late Dr Kitili as PExhibit 4. He stated that he knew the handwriting and signature of Dr Kitili as he worked with him for seven years. The late Dr Kitili did a postmortem examination on the deceased’s body on January 2, 2019. He concluded that the cause of the deceased’s death was due to a head injury inflicted by a sharp object.

12. PW7 was the investigating officer, CPL Erastus Wambugu. He recalled that on December 19, 2018 at around 8. 00 am, he received a murder report in respect to this case. His boss, one CI Kemboi, told him to proceed to Shauri Market, which he did. While there, he received a report of a missing person. He went back to the station and found the accused persons herein had been arrested as suspects in this case. He interrogated them. According to PW7, the 1st Accused told him that she had been living with the deceased as husband and wife and that on December 17, 2018, she was with the deceased and they visited several places. Among the places she alleged they went was PW2’s house to get a cow. Pw2 however testified that the 2nd Accused and the deceased never went to his home on the material day. The 2nd Accused also told PW7 that they finally went to the home of one Njagi and spent the night. She told him that at 1. 30pm, the deceased told her that they could not sleep there and that they should go back. She alleged that they started walking and after a distance, an animal appeared and the two ran away in different directions. She walked back home alone, which was about 25 kilometres away. She reached in the morning. PW7 asked her to show him the route she used, and they proceeded to the 2nd Accused’s home together with the 2nd Accused. They went where the brother of the 2nd Accused was doing casual jobs and he ran away on seeing them. He searched the house of the 2nd Accused before proceeding to PW2’s house and recorded his statement. They then proceeded to the residence of Njagi where the 1st Accused claimed that she had spent the night.

13. On the way, the 1st Accused pointed the place where they met the animal and according to PW7, there was no sign of anything. 100 metres away, they found dry blood and signs of dragging. PW7 suspected that that was where the deceased was killed before being dragged. They reached the home of Njagi and met Njagi’s wife (PW4) who refuted the claim by the 1st Accused that she had slept there with the deceased. They returned to the police station where the accused persons were booked in. PW7 then met PW1 and recorded his statement. On cross examination, it was PW7’s testimony that the 1st Accused reported that the deceased was missing the following day at around 3 pm and that there was nothing to suggest that the 1st accused was at the scene of the crime.

The Defence Case 14. When put to their defence, the 1st Accused testified as DW1. She confirmed that the 2nd Accused was her son. She stated that she knew the deceased as he was a cousin to his late husband. She explained that the mother to the deceased and mother to his late husband were sisters. She also confirmed that she got into a relationship with the deceased after his husband passed away and that they started living together from 2017 to the time the deceased met his death. She told this court that she did not have any disagreement with the deceased and that the time they went to see the area chief was over the making of illicit brew by the deceased. She recalled that on December 17, 2028, she had planned to go somewhere with the deceased. She also had planned to go PW2’s home for a cow, which plan the 2nd Accused allegedly knew about. According to her, her late husband gave PW2 the cow which the 2nd Accused would milk when it gave birth. She stated that she left with the deceased at around 3. 00 pm They passed through the home of his son called Mwiti. It was around 5. 00 pm and they found Mwiti’s wife. They allegedly did not stay but proceeded to the home of one Njagi Kamau where they reached at 7. 30 pm

15. PW2’s home was 3 kilometres away from Njagi’s home. She alleged that she met the said Njagi and his wife who gave them a small house that did not have a door together with beddings. The deceased then left with Njagi to go and buy brew. They left at about 5. 00 a.m. and on the way, she heard as if a cat (“paka”) had been slapped. The deceased was ahead of her, and they ran in different directions. It was dark. She walked until she got to a road which she did not know. A motorcycle approached her, and she stopped it. She realized that it was PW1 was the rider, and he was with his wife. She requested for his phone, but he declined stating that he was on the way to drop his wife to Meru. PW1 then offered to the 2nd Accused a lift to Shauri. She then walked until Thiti where she boarded a motorcycle. She got home and found the 2nd Accused, her daughter Purity and her child. She inquired whether the deceased had returned and was told that he had not returned. She then asked Purity for her phone and tried to contact the deceased. He did not pick his calls. It was around 10. 00 am She sent the children to go look for the deceased at his place of work. He was not there. The 2nd Accused then decided to make a report at Shauri Yako Police Station.

16. At the police station, she alleged that she tried calling the deceased again and heard his phone ringing on the police station. The police did not tell her anything but told her to go and look for his husband for 3 days. She went to PW2’s home and met PW2. He told her that Njagi had brought her “lesso” to his home and told him to warn the 2nd Accused not to go to his home. She confirmed that the “lesso” was hers and stated that she had dropped it while she was running away. When she asked the reason why, PW2 allegedly told her that the deceased had been murdered. She then back to the police station and investigations started. She recorded her statement and produced the same as Exhibit D1. Since there was no interpreter, she recorded a second statement which she produced as Exhibit D2.

17. The 2nd Accused testified as DW2. He told the court that he knew the deceased from 2012 when he was his late father’s friend. He testified that after his father’s death, the deceased used to visit their home as he was a friend of his mother, the 1st Accused. He recalled that on December 17, 2018, he saw the deceased at their home where he used to stay with the 1st Accused. Her mother informed him that on that day, she would go for the cow which was at the home of PW2. It was at 8. 00 am She informed him and then left. He was left in at the home with Purity. They were the only two of them that spent the night there. The following day, the second accused went back home between 11. 00 am and midday and asked him if he had seen the deceased. She explained that they had been attacked on their way to the home of PW2 and she ran away and didn’t see the deceased. He did not accompany his mother to the police station. Her mother did not return home. the 2nd Accused then went to Makutano Police Station on 19th and found out that his mother had been arrested on allegations that she had killed the deceased. He denied having knowledge on how the deceased died or having a grudge with him.

Issues Arising for Determination 18. In Anthony Ndegwa Ngarivs Republic [2014] eKLR the Court of Appeal sitting in Nyeri held:“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”

19. It thus follows that the main issues that this Court is called upon to decide in the instant case are:a.Whether there is proof of fact and cause of death of the deceased.b.Whether the death of the deceased resulted from an unlawful act or omission on the part of the accused persons.c.Whether the accused persons had malice aforethought.

20. The State had a burden under Section 107 (1) of the Evidence Act to prove the above ingredients as a whole to secure a safe conviction of murder against the accused persons. The section provides:-“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”The burden of proof entails legal burden of proof and evidential burden of proof. In criminal matters, the legal burden of proof is on the prosecution and it never shifts nor leaves the prosecution backyard. In the case of Woolmington-v-DPP )1935) AC 462 PP 481 Viscount Sankey stated emphatically that –“Throughout the web of English Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt……………….. and no attempt to whittle it down can be entertained.”This is the principle adopted in criminal cases in Kenya and places the legal burden of proof in criminal cases on the prosecution throughout the trial. This upholds the constitutional right of an accused person to be presumed innocent and until proved guilty, not adduce self-incriminating evidence and the right to remain silent. See Article 50(2) (a)(i) (l) of the Constitution of Kenya.The legal burden never shifts. In Halsburys’ Laws of England 4th Edition Vol 17 paragraph 13 it is stated that-“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action………………”The legal burden of proof in this case is on the prosecution. I proceed to consider the evidence tendered by the prosecution to determine whether the charge has been proved beyond any reasonable doubts.

Analysis A. Proof of the fact and cause of death of the deceased 21. It is not in dispute that the deceased herein died. His death was proved by the evidence of PW2, PW5, and PW7 who witnessed the lifeless body of the deceased on different dates and settings. PW2 and PW5 saw the deceased’s body at the scene while PW7 saw the body when the postmortem examination on it was conducted. At the scene, PW2 positively identified the body to be that of the deceased. The testimonies PW2, PW5, and PW7 were corroborated by the postmortem report produced by PW6. This leaves no doubt that Simon Mpuku Kathare died.

22. On the issue of the cause of death of the deceased, the Court of Appeal in the case of Chengo Nickson Katama versus Republic (2015) eKLR held that:“… it is absolutely necessary that death and the cause thereof be proved beyond reasonable doubt and that can only be achieved by production of medical evidence and in particular, a postmortem examination report of the deceased.”

23. In the instant case, the late Dr Kitili examined the deceased’s body and noted that it had deep cuts on the head, two cuts behind the right ear, a deep cut on the right side of the neck, and a deep cut on the right shoulder. There was a penetration by an arrow on the left side of his chest. The chest cavity had blood and the left lung had collapsed and was perforated. The blood vessels on his right neck were also perforated. The deceased had a skull fracture and there was blood in the brain. The said Dr Kitili formed the opinion that the cause of the deceased’s death was due to a head injury inflicted by a sharp object. The prosecution in this case thus proved the fact and cause of the death of the deceased beyond any reasonable doubt.

B. Whether the death of the deceased resulted from an unlawful act or omission on the part of the accused persons 24. In criminal proceedings, it is the conduct of the accused being put to test against the laid down statutory rules to infer unlawfulness of the act to attract criminal liability. This being a murder case, the prosecution had a duty to prove to the required standard that the accused persons committed an unlawful act that resulted in the death of the deceased. This is a fundamental element that points towards the guilt of the accused person.

25. The prosecution in this case relied entirely on circumstantial evidence as there was no direct evidence on what exactly transpired on the material night that led to the untimely demise of the deceased.

26. In the case of Musili Tulo v Republic [2014] eKLR, the Court of Appeal stated as follows:“Circumstantial evidence is as good as any evidence if it is properly evaluated and, as is usually put, it can prove a case with the accuracy of mathematics.”

27. The case of GMI v Republic [2013] eKLR which echoes the locus classicus case of R v Kipkering Arap Koske & Another, 16 EACA 135 went on to set out the following principles as the requirements that the court should consider when the evidence linking an accused person to an offence is circumstantial. The court stated as follows:“a.The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;b.Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;C.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 no one else.”

28. This court must also consider a further principle set out in the case of Musoke v R[1958] EA 715 citing with approval Teper v R[1952] AL 480, that:“It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

29. It is trite that the duty to prove that the two accused persons killed the deceased laid squarely on the prosecution. The accused persons had no burden of proving their innocence. They could only raise doubts in the prosecution case. [See:Leonard Aniseth v Republic [1963] EA 206].

30. In the instant case, there is no doubt the deceased died unlawfully as evident from the nature and severity of the injuries that the deceased suffered before his demise. The prosecution did prove from the testimony of PW6, and the postmortem form produced in evidence that proximate cause of the deceased’s death was an unlawful act caused by unlawful means. The next element of the offence that the prosecution was to prove is whether the unlawful act was perpetrated by the accused persons herein.

31. The 1st Accused person confirmed that she was with the deceased on the night of December 17, 2018. She alleged that they spent the night in the home of one Njagi. PW4, Njagi’s wife, however refuted that claim by the 1st Accused. It was PW4’s evidence that she never saw the 1st Accused until 18th December when the accused persons were brought to her house by the police in connection with the present case.

32. On her part, the 1st Accused alleged that she left the home of Njagi with the deceased at around 5. 00 am on the morning of December 18, 2018. The timeline she gave contradicts with the timeline given by PW7. According to PW7, the 1st Accused stated that at 1. 30 am, the decided that they should leave Njagi’s home. On their way, it is the 1st Accused’s narrative that they heard noises and a sound “paka” and they both ran towards different directions. She stated that she found herself on an unfamiliar road where she met PW1. PW1 corroborated this part of her story. According to PW1, it was around 6. 30 am and the 1st Accused looked apprehensive and did not bother greeting him even though they knew each other well. PW1 gave her a lift and left her at Shauri market. She then found her way home where she found the 2nd Accused and her daughter Purity. She inquired whether the deceased had reached home but they told her that he had not. When PW5 visited the scene of crime, he noted that there were marks on the blood stains they found on the foot path leading to the river. The marks were of soil poured on the blood. PW5 stated that the marks were an indication that someone had tried in vain to conceal the blood. Considering the evidence adduced in totality, it is my view that the 1st Accused played a part in the unlawful death of the deceased.She was the last person to be seen with the deceased, a fact she has freely admitted.Section 111 of the Evidence Act provides:-“(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him: Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist: Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.(2)Nothing in this section shall–(a)prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged; or(b)impose on the prosecution the burden of proving that the circumstances or facts described in subsection (1) do not exist; or(c)affect the burden placed upon an accused person to prove a defence of intoxication or insanity.”The law requires that a person last seen with a deceased whose cause and nature of death is in contention to offer an explanation of what he knows about the death. This is unescapable. The accused was at pains and did not explain anything. She made avain attempt to impress upon the court that they were attacked by a wild animal but the scene of murder and the apparent injuries on the deceased tell it all. She was with the deceased at the scene where she was murdered. Witnesses called by the prosecution disapproved her defence. I find that the circumstance sorrounding the murder of deceased, whcih are the inculpatory fact irresistibly form a chain so complete that the 1st accused commmited this offence.

33. As for the case against the 2nd Accused, none of the witnesses could place the 2nd Accused at the scene of the crime. In addition, no one saw him with the deceased on the previous day although he admitted that he saw the 1st Accused and the deceased leaving home on December 17, 2018. PW2 stated that at around 8. 00 pm On the same December 17, 2018, 2nd accused went to his home looking for his mother. He returned home after finding out that his mother did not go to PW2’s home and spent the night in the company of his sister Purity. The said Purity was never called as a witness to corroborate this. Be that as it may be, it was upon the prosecution to prove their case against the 2nd Accused person beyond any reasonable doubt and that burden does not shift to the 2nd Accused to exonerate himself. PW3’s evidence that the children of the 1st Accused did not get along with the deceased was not, in my view, sufficient to link the 2nd accused with the death of the deceased. It appears that the investigators and the prosecution relied on suspicion in arresting the 2nd Accused. I therefore hold the view that the evidence adduced by the prosecution witnesses fell short of linking the 2nd Accused herein with the death of the deceased.

C. Whether there was malice aforethought? 34. Malice aforethought is the mens rea in murder. The prosecution had a duty to prove malice aforethought on any of the circumstances stated under Section 206 of the Penal Code which defines malice aforethought as follows:“206. 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.

35. What can be deduced from Section 206 (a) to (e) of the Penal Code is that malice aforethought can be either direct or indirect depending on the facts of each case at the trial. The Court of Appeal in the case of Bonaya Tutu Ipu & another v Republic[2015] eKLR stated as follows:“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of Chesakit V Uganda, CR APP No 95 of 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in REx V Tubere S/o Ochen (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:“It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick…” ”

36. In the case of Republic v Tubere S/O Ochen[1945] 12 EACA 63 the court held that an inference of malice aforethought can be established by considering the nature of the weapon used in causing death, the number of injuries inflicted upon the victim, the part of the body where such injury was inflicted, the manner in which the weapon was used, and the conduct of the accused before, during and after the attack.

37. The deceased in this case had deep cuts on the head, two cuts behind the right ear, a deep cut on the right side of the neck, and a deep cut on the right shoulder. There was a penetration by an arrow on the left side of his chest. According to PW7, an arrowhead (P. Exhibit 3) was removed during postmortem. This is evident that deceased died a violent death. The said multiple injuries clearly demonstrate malice aforethought. The person who inflicted those injuries on the deceased intended to cause his death or do grievous harm to him.

38. In addition, it was PW3’s testimony that there had been squabbles between the 1st Accused and the deceased and that the deceased had even made death threats to the 1st Accused. Her defence that she was walking with the deceased on the material day and then heard noises which made them part ways is in my view unbelievable. In addition, the fact that she could not account where she spent the night also point towards her guilt. She was the last person to be seen with the deceased. The facts of this case brings into play the provision of Section 111(1) of the Evidence Act. The Section provides:“(1) When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him: Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist: Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”She ought to have given a plausible explanation to what happened. Although not shifting the burden on her, I find that she did not give a plausible explanation in her defence.It is my view that the prosecution did prove malice aforethought against the 1st Accused within the meaning of Section 206(a) of the Penal Code.

Conclusion 39. The prosecution had a duty to prove all the elements of the murder beyond any reasonable doubt. In my view, this duty was only discharged as against the 1st Accused Person. Consequently, I find the 1st Accused Person guilty of the offence of murder and convict her accordingly. As against the 2nd Accused Person, I find that the prosecution failed to prove beyond any reasonable doubt that he was involved in the murder of the deceased. As such, I acquit him at this stage under Section 322 of theCriminal Procedure Code. The 1st accused is convicted under Section 322(2) of the same Code.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 12THDAY OF OCTOBER 2022. L.W. GITARIJUDGE