[2022] KEHC 2410 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CRIMINAL CASE NO. 85 OF 2016

REPUBLIC ……………………………………………………PROSECUTOR

-VERSUS-

K.M.G. ……………………………………………………………… ACCUSED

JUDGMENT

1. When the accused, K.M.G. was first presented before this Court on 24th November, 2016 for plea on the charge of murder, that plea was deferred to enable the accused to be mentally assessed. On 1st December, 2016, the medical report from Mathari National Teaching and Referral Hospital was presented to the court. The report showed that the accused had previous psychiatric history and had been a patient at that hospital. The report stated:-

“During the assessment she (accused) was found to be unkempt, talkative, had an elated mood and appeared disinhibited and aggressive. The thoughts were disorganized and she lacked insight.

CONCLUSION

The assessment found her to be mentally unstable and with no insight. She is not fit to plead, she needs treatment.”

2. The accused on 6th February, 2018 tacitly seemed to confirm that she was guilty of the murder charge but the court entered a plea of not guilty.

3. The trial revealed that the accused lived at Gitombovillage in KamuthaiSub-County Kiambu County with her father, the deceased. On 14th November, 2016 at 11. 30 pm Patrick Kamweru Gathecha, as he was on the way to his house smelled burning or smoke. It was coming from the house where the deceased lived with the accused. Patrick in the company of Samuel Njoroge Ndungu went to the deceased’s home where the smoke was emanating from. They also called Joyce Gakenia. At that home, the three found the accused. On asking her what was the cause of the smoke the accused said she was destroying wasps. She was then standing at the door of that house. Those three said that the smoke was smelling of burning of clothes. Other members of the public arrived at that homestead who included elder of “nyumba kumi”. Accused on being asked the whereabouts of the deceased said that the deceased had left home after giving her some money. Those present noted there was blood at the bedroom and by the door of the house. They questioned the accused about that blood and accused said it was her blood. She said she had been cut. Joyce Gakenia insisted on being given explanation of the presence of that blood. It was then that the accused ran away.

4. On those present entering the house, they noted blood on the floor of the deceased bedroom, and they saw that a pile of clothes was on fire. The deceased was not in the house. Those present saw there was a trail of blood which led them to a well within the compound. The police were called. The deceased could not be found that evening and the search was called off until the following day. On the following day the fire brigade retrieved the deceased body from the well. The deceased had cuts on the neck and was also burnt. The accused was arrested and while at Kichoi Police Station the investigating officer Cpl. John Warui noted the accused clothing had blood stains. The government analyst, I.K. Muthuri examined the items of clothing and found that the DNA profile generated form blood stain on the grey trousers which belonged to the accused matched the DNA profile generated of the accused and of the deceased’s blood. The analyst also found that DNA profile generated from blood stain on accused’s T-shirt, a panga and hoe all matched DNA profile generated from the blood sample of the deceased.

5. Postmortem report by Doctor Eunice Mugwene found deceased had multiple deep cut wounds (twelve) on the left side of the neck and left temporal region of the face and scalp. Deceased’s left ear was cut off with visible fractured facial bones. The deceased’s body had extensive burns on the entire body (100%). It also had several major neck vessels on the left side of the neck. The deceased had defence wounds on his forearms. The cause of death was multiple severe injuries to the brain and spinal cord with severe hemorrhage.

6. The accused opted not to give a defence in this case.

ANALYSIS

7. The prosecution was required to prove three ingredients of murder. Those are:-

(a) Proof of the fact and the cause of death of deceased.

(b) Proof that the death of the deceased was the direct consequence of an unlawful act or omission on the part of the accused.

(c) Proof that the said unlawful act or omission was committed with malice aforethought.

8. The prosecution proved beyond reasonable doubt the fact and cause of death of deceased. The fact of death was proved by the witnesses who witnessed the removal of deceased’s body from the well. It was also proved by the doctor who performed the postmortem who also produced that postmortem.

9. Prosecution also proved on required standard of proof that the death of deceased was the direct consequence of unlawful act of accused. That proof was supported by the evidence of Patrick Kamweru, Samuel NjorogeandJoyce Gakenia. They testified that deceased resided with accused. On that day they noted there was fire at that home. Upon going there, they found accused, who when standing at the door of the homestead told them that she was burning wasps. However, when they entered in the house and on the accused running away, they found clothing in deceased’s bedroom on fire. They also noted a lot of blood on the ground. They followed the trail of that blood which led them to the well. The deceased’s body was retrieved from that well. The postmortem determined the deceased died of multiple severe injuries to the brain and spinal cord with severe hemorrhage caused by multiple penetrating cut wounds. The government analyst determined that the DNA profile generated of the blood on the clothes worn by the accused and was the DNA profile generated from the blood of the deceased.

10. The accused’s learned counsel submitted that the prosecution relied on circumstantial evidence and that therefore failed to prove the case against the accused.

11. On the defence of circumstantial evidence I rely on the case REPUBLIC VS. RICHARD ITWEKA WAHITI (2020) eKLR as follows:-

“26. InNEEMA MWANDORO NDUZYA V R [2008] eKLRthe Court of Appeal reiterating the probative value of circumstantial evidence and the attendant duty of the trial court, stated that:

“It is true that circumstantial evidence is often the best evidence as it is evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with the accuracy of mathematics as was said in R V TAYLOR WEAVER AND DONOVAN (19280 21 CR. APP. R. 20).But circumstantial evidence should be very closely examined before basis of a conviction on it.

27. In its earlier decision inMWANGI AND ANOTHER V REPUBLIC (2004) 2 KLR 32,the Court of Appeal exhorted that:

“In a case depending on circumstantial evidence, each link in the chain must be closely and separately examined to determine its strength before the whole chain can be put together and a conclusion drawn that the chain of evidence as proved is incapable of explanation on any other reasonable hypothesis except the hypothesis that the Accused is guilty of the charge”

12. I have above in this judgment closely examined the prosecution’s evidence and that circumstantial evidence each link shows its strength and on the links being put together, they prove that that evidence is incapable of any explanation of any other reasonable hypothesis except it was the accused’s unlawful act which caused the death of the deceased.

13. It is however this Court’s finding that the accused was suffering from a defect of reason from a disease of the mind when she committed the offence. All the witnesses from the prosecution who reside in the same village as the accused said that it was common knowledge the accused suffered from mental ill health. On being arrested Mathari Hospital produced a report confirming the accused was a previous patient of the hospital. She was found by the doctor who examined her to be unfit to plead. She was suffering from mental illness.

14. It follows that although the accused assaulted the deceased, her father, which led to his death, she was suffering mental health illness. She was insane when she committed the offence. For that reason, this Court finds that the provisions of Section 166(1)(2) and (3) of the Criminal Procedure Code Cap. 75 are relevant. That Section provides:-

“166 (1) Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission

(2) When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile order the accused to be kept in custody in such place and in such manner as the court shall direct.

(3) The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody.

DISPOSITION

15. Having made the above finding, I hereby find K.M.G. guilty of murder as charged but I find that she was insane when she committed the offence in accordance with the provisions of Section 166(1) of Cap. 75.

16. By virtue of Section 166(2) of Cap 75, this Court shall report this case for order of H.E. the President and in the meanwhile, this Court hereby orders K.M.G. (the accused) to be detained at Lang’ata Women Prison or at such other prison or other facility where she shall receive specialized treatment as necessary.

17. I order that the proceedings herein be typed and a certified copy of the record and the notes of this Court file and this judgment be transmitted to the Government Ministry concerned for consideration by H.E. the President.

JUDGMENT DATED and DELIVERED at KIAMBU this 10th day of FEBRUARY, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant: Mourice

Accused: K.M.G.: - Present

For accused: - Miss Wambura H/ B Mr. Njuguna

For DPP : Mr. Kasyoka & Mr. Benjamin

COURT

JUDGMENTdelivered virtually.

MARY KASANGO

JUDGE