[2022] KEHC 1416 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL CASE NO. 23 OF 2018

REPUBLIC.................................PROSECUTOR

-VERSUS

LINNET WANDALO MABUKU .....ACCUSED

JUDGMENT

Introduction

1. The accused person Linnet Wandalo Mabuku faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 of the Laws of Kenya.

2. The particulars are that on the 10th day of May 2018 at Migadini Area in Changamwe within Mombasa County murdered RW. The prosecution called 7 witnesses to support its case that the accused person committed the offence herein. Defence filed submissions on a motion of no case to answer and the accused person was placed on her defence.

Prosecution Case

3. PW1, Lutta Wesonga Robinson stated that he lives alone now but used to live with his wife Linnet Wandalo Mabuku and their son RWL.

4. That on 10. 5.2018 at 1337hrs, he received a call from a good Samaritan whom he came to know later as Dickson Odhiambo, a neighbor who asked him where he was and asked him to go to Port Reitz Hospital urgently as his son R had been injured with a sharp object. On reaching the hospital, PW1 found a security guard for the hospital and his neighbours who had accompanied R to hospital. PW1 was directed to ward number 11 where he confirmed to the doctor that he was R’s father and the doctor broke the news to him that R had passed on, and that he was dead on arrival at the hospital.

5. PW1 went to where R’s body was on the trolley and prayed for him. He noticed a deep cut on the left side of his chest and the doctor told him that it was a police case. The doctor told him to take R’s body and his wife to the police station. PW1 took a tuktuk to Changamwe Police station where his report was recorded in an OB. PW1 and the accused were directed to DCIO at 1430 hrs where they recorded their statements and some police officers boarded a Land Rover to their home in Migadini but R’s body was left at Changamwe Police Station.

6. PW1 states that at the house, there were blood stains all over in the sitting room scattered on the carpet, on the seats which had some sofa set covers, off white in colour and which had blood stains. Sofa set covers were marked MFI-1. On the carpet, there was a surgical blade, with a blue handle. The surgical blade was marked MFI-2. The surgical blade had some blood stains. PW1 states that thereafter, they went back to Changamwe Police Station where they collected the body of R and took it to Coast Province General Hospital Mortuary. That they went back to the police station to record further statements.

7. PW1 narrated how the accused had on 9th May 2018 threatened to kill the deceased and kill herself if she was not given Kshs. 50,000 to expand her business and security firm and also transfer the 3 ½ year old deceased to a boarding school. He said that when he received a phone call from a good Samaritan, he tried reaching her on her phone but it was off and he was surprised. He said that the deceased’s death was not accidental.

8. The evidence of PW2 was to the effect that on 10th May 2018 at 11. 00 am, he was at Sokoni in Migadini when he heard a woman screaming for help from the 3rd floor of an apartment nearby. That she reached the ground floor carrying a baby boy in her arms of about 4 years. That since it had rained the previous night, the accused reached the gate and fell and Mama Jessica who was nearby picked up the child and asked what had happened to him. PW2 grabbed the baby who had difficulties breathing with blood stains on his t-shirt on the upper left side of the chest. That he pulled up the red t-shirt and saw that the child had a cut on the left side of his chest. PW2 stopped a motorcycle and used it to rush the child to Port Reitz Hospital where he was taken to the emergency room. That before the child could be examined, he succumbed to the injuries. He was instructed to identify the mother of the child to the medical personnel when she arrived at the hospital. He led her to the clinical officer who told her that the baby was dead. That the accused person gave out the contact for PW1 and he was told to go to Port Reitz Hospital that the deceased had been injured. That the accused was questioned about the deep cut wound on the deceased and she said that she did not know how it happened. PW2 said that he knew the deceased and the accused person who she one day wanted to cane him. PW2 said he did not know what had transpired before the deceased was brought down from the 3rd floor.

9. PW3 a neighbor heard screams from the accused person and on going down stairs, she found PW2 had already rushed with the child to Port Reitz Hospital. Together with the accused, Mama JB and Mama Jessica, they went to hospital and found the child had died. They went to make a report at Changamwe Police Station after which police officers went to PW1 and accused person’s house where a blood stained surgical blade was recovered from the floor. The body of the deceased was then taken to Coast Provincial General Hospital Mortuary. PW2 was not aware of any disagreements between the accused and her husband.

10. PW4, the Scene of Crime Officer, took photographs of the body of the deceased at the Coast Provincial General Hospital which he produced as Exhibits 4a-g.

11. PW5, Dr. Salma Mohamed produced Postmortem Report prepared by Dr. Ghanim which was prepared on 16th May 2018 at 3 pm at the Coast General Hospital Mortuary in respect to the body of the deceased herein. It was discovered that there was a deep sharp cut wound on the left side of the chest penetrating the lungs and the respiratory system had hemothorax. An injury was also observed on the heart. The doctor formed the opinion that that the cause of death was hemorrhagic shock secondary to penetrating lung and heart injury due to the deep cut.

12. PW6, Mdadi Omari, the Government Analyst produced the government analyst report prepared by Lawrence Ogunda in which it was established that Exhibit A was human blood which DNA profile matched the DNA profile from the reference blood of the deceased.

13. PW7, Corporal Domitila Nyarotso the Investigating Officer herein investigated the matter of the fate of the deceased and preferred charges against the accused person.

Defence Case

14. The accused, DW1, was placed on her defence, gave sworn evidence and stated that on 9th May 2018, she quarreled with PW1 when the deceased wet his bed and PW1 claimed that the Accused was careless. That PW1 threatened to strangle her and said that she would rather die with her child. That on 10th May 2018 when she was packing in the bedroom, the deceased went to her crying that the neighbour’s child had snatched his toys. He sat on a chair and continued crying until the neighbor came to ask why he was crying. That when she threatened to beat him with a belt, the child said he had been injured and he showed her an injury on his chest and that is when the scalpel that had stabbed him fell. That she carried the child and ran out of the house to seek help while screaming but when she reached the ground floor, she slipped and fell and the water vendor who was nearby took the child on a motorbike and rushed him to Port Reitz Hospital.

15. The Accused person said that when she arrived at the Hospital using a tuktuk, she found the child had died. That when she called PW1, he refused to pick up and when the water vendor called him, he came to the hospital and alleged that she had killed the child because they had quarreled. That when they went to hospital and she explained what had happened, PW1 insisted that she had killed the child.

16. The accused explained that she was used to keeping the scalpels in her handbag and that they were used for cutting her nails. She said that although her fingerprints were taken, the fingerprints were not on the scalpel to show that she caused the injury. That PW1 used to threaten to kill her when they quarreled, that she did not record any statement and that it is the Investigating Officer who wrote the statement and made her to sign. That investigations were not done in regard to threats by PW1 to her life and PW1 did not make any complaint that she had threatened to kill herself and the child. She said the child was playing with a neighbor’s child and she could not tell if they used the scalpel when struggling over the toys. That she did not stab the child and that the cut was small but was bleeding. She said it is not true that the child had a deep cut. She also said that no fingerprints were taken by Junior who took toys from the deceased.

17. In cross examination, the accused said that the deceased who was 3 years old was playing with Junior who was in class 4 and that the toys belonged to Junior. She says she did not see the two children with scalpel or blade. She said that on 9th May, she had a quarrel with PW1 who could insult her and her mother and compare her to his late wife. That when PW1 threatened to strangle her, he said that he should kill her with her child as she did not want her child to suffer.

Written Submissions by Accused

18. That the accused person made submissions dated 12th July 2021 on no case to answer together with the bundle of authorities in support thereof which they wholly wish to adopt.

19. The Accused in submitting on undisputed facts stated that she is the mother to the deceased RW, that the deceased was a minor of tender years as at 10th May 2018 when he met his death, that the main prosecution witness is Lutta Wesonga Robinson, a husband to the accused and the biological father to the deceased, that the minor died on 10th May 2018 due to hemorrhage shock as a consequence of punctured lung caused by a deep cut/stab to the chest, that there was no eye witness who saw the incident, that the scene of crime was not secured, no fingerprint dusting on the recovered blades and other exhibits was done, that prior to 10th May 2018, there was no record of any complaint at Changamwe Police Station that the deceased’s life was in danger, that the accused and her husband PW1 had a quarrel on 9th May 2018 and that the deceased died while being rushed to hospital for treatment and the mother to the deceased was involved in the process.

20. The accused in submitting disputed the facts that the accused person stabbed the minor and/or was involved in infliction of the fetal injury to the minor, that the accused person had threatened to kill herself and kill the minor, and that the accused person had formed an intention to kill the deceased.

21. The accused stated that based on the ingredients for the offence of murder, the issues for determination include whether the prosecution proved beyond reasonable doubt that the accused person committed the unlawful act which caused the death of the deceased, and whether there is strong circumstantial evidence linking the accused person with the death of the deceased.

22. It is stated in the submissions that no direct evidence exists linking the accused person to the death of the deceased. That the prosecution must prove that circumstantial evidence exists which strongly points to commission of murder by the accused person. That there exist several facts that weaken and ultimately write off an inference of guilt against the accused person. Firstly, that the accused person is the biological mother and guardian of the deceased minor, and in all circumstances the minor was in the custody of the mother. That while the minor sustained injuries while in the house, there were other people who had access to the house and the deceased.

23. Secondly, that the blades found in the house were not concealed, the blades were hers and she used them to cut her nails. Thirdly, that in order to rule out self-infliction of injuries by the minor, or acts of commission by the accused person, the razor blades were not subjected to fingerprint dusting to enable form a solid scientific opinion that no other person accessed and used the blade but the accused. That as it is, the probability that the fatal deep cut on the deceased’s chest was self-inflicted or inflicted by a third party cannot be ruled out.

24. The accused person states that malice aforethought has not been proved against the accused person. She went further to cite the case of Republic v Michael Muriuki Munyiri [2014] eKLR where malice aforethought was defined. That the ingredients for malice aforethought either singly or combined have not been proved against the accused person.

25. The accused in her submission states that she was the first responder and while screaming for help, ran down a flight of stairs with her child in her hands while going to seek for medical intervention, and no intent to commit a felony nor omission against the accused was proved. That the conduct of the accused was that of an innocent person because she did not attempt to run away at any point, the accused person was screaming while holding her child and made a deliberate motherly attempt at saving her child by taking him to hospital, and that the accused person complied with the directive of the clinical officer from Port Reitz who advised that a report on the death of the minor be reported at Changamwe Police Station.

26. The accused stated that her conduct broke any chain of facts that could have been used to draw an inference as to her guilt. She cited the case of Neema Mwandoro Nduzya v R [2008] eKLR and Sawe v R [2003] KLR 362.

27. On standard of proof, the accused stated that it is beyond reasonable doubt and it does not change even when the evidence sought to be relied upon is circumstantial. The accused cited the case of PON v Republic [2019] eKLR to this effect and Section 111(1) of the Evidence Act. In concluding, the accused submitted that no evidence has been provided to prove mens rea or actus reus in proof of the charge of murder. They therefore seek that that the accused person be acquitted of the charges for lack of evidence.

Analysis and Determination

28. In consideration of the prosecution’s 7 witnesses and in consideration of the accused person’s sworn statement and submissions, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenyahave been proved beyond reasonable doubt by the prosecution.

29. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows:-

‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’

30. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic[2014] eKLR to include:-

i. That the deceased died;

ii. That the death was caused by an unlawful act or omission;

iii. That the accused person directly or indirectly participated in the commission of the alleged unlawful act or omission; and

iv. That there was malice aforethought.

31. That the deceased died is not in dispute as all the prosecution witnesses including Dr. Salma who produced the Postmortem Report confirmed the death of the deceased.

32. Whether the death was caused by an unlawful act or omission, the postmortem indicates that the deceased sustained a deep sharp cut on the left side of the chest that penetrated the lungs and the heart and that the child died due to hemorrhagic shock secondary to penetrating lung and heart injury secondary to deep cut. The accused person’s evidence that the cut was small and it is not true that the cut was deep cannot be sustained as the findings in the Postmortem Report were made by an expert upon examination of the deceased’s body.

33. According to PW2, the Clinical Officer who received the child and pronounced him dead told them that it was a police case after the accused said she did not know how it happened and where the surgical blade was. The explanation in her defence that that the surgical blade was in her bag and a neighbour’s child may have used it to inflict the deep penetrating wound is not reconcilable with her response to the Clinical Officer at the hospital.

34. The accused confirmed that she had been left with the child alone in the house and that the scalpel/blade that was suspected to have inflicted the deep cut that penetrated the lung and heart of the child were in her bag as she used to use them for cutting her nails. The accused did not explain to the Investigating Officer during investigations or even during the prosecution’s examination in chief and cross examination how the scalpel left her bag and found its way in the hand of a 3 ½ year old child or even in the hands of a neighbour’s alleged child.

35. The accuse person confirmed that she had quarreled with PW1 her husband who threatened to strangle her and she told him he should kill her with her child. Again, this is an allegation that is coming late in the day and the same was never put to PW1 or even the Investigating Officer. PW1 testified that the accused was quarrelsome and their neighbor PW3 Caroline Ouma Otieno confirmed that there was a time she heard the accused quarreling with her husband.

36. This court does not believe that a 3 ½ year old child could have fetched a scalpel/surgical blade and used it to inflict such a deep cut that penetrated his own lung and heart. Although the dead tell no tales, the circumstances surrounding this case point to the accused person as the perpetrator of the heinous act after she failed in demanding with menace for money from her husband PW1.

37. Section 206 of the Penal Code defines malice aforethought as follows: -

“Malice aforethought shall be deemed to be established by evidence proving anyone 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 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 act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.

38. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (Nyeri) Criminal Appeal No. 96 of 2007 (UR):-

“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”

39. This court therefore finds that the unlawful act that caused the death of the deceased was committed by the accused who was actuated with malice aforethought with the aim of hitting at PW1. There is no other inference that can be made out of these circumstances other than the guilt of the accused person. She is therefore convicted of the offence of murder under Section 322 of the CPC.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,

THIS 10TH DAY OF MARCH 2022

HON. LADY JUSTICE A. ONG’INJO

JUDGE

In the presence of:-

Ogwel- Court Assistant

Mr. Ngiri for the State

Mr. Aboubakar Advocate holding brief for Mr. Mokaya Advocate for the Accused Person

Accused present in person

HON. LADY JUSTICE A. ONG’INJO

JUDGE

Mr. Ngiri: I do not have records.

Order: Accused to be placed in custody at Shimo la Tewa Women’s GK Prison for Victim Impact Assessment on 21. 3.2022.

10. 3.2022