[2022] KEHC 13311 (KLR)

Republic v LM (Criminal Case 1 of 2020) [2022] KEHC 13311 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 13311 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 1 of 2020

SN Riechi, J

July 20, 2022

Between

Republic

Prosecution

and

LM

Accused

Judgment

1. The accused LM charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the offence are that LM the 24th day of December 2019 in Bungoma West Sub County of Bungoma County in Western Region murdered one ENS.

3. The case for the Prosecution is that the accused is the biological mother of the deceased ENS who at time of death was 11 months old. The accused was married to FSS the father of the deceased. On 24/12/2019 PW6 FSS went home at 7 pm he found accused present who prepared food which he ate and went to sleep but found the beddings wet. He asked accused about the wet beddings and she started quarreling and crying. She also said she was sick and he promised to buy medicine for her the next day. She called her mother who asked she speaks to witness who declined. Accused started throwing items in the house and he slapped her. She then went to the sitting room with the child. He then heard noise from the sitting room and went there. He found the accused had given poison to the child and was also taking it. It was a cattle dip pesticide. He knocked the bottle off her hand. He then gave milk to the child as first aid and took her to a dispensary who advised they take her to Bungoma Hospital where the child was pronounced dead.

4. On being cross-examined by Wamalwa R he admitted he slapped accused when she gave poison to the child. He denied that he ever said the child was not his. He confirmed that it was only him, accused and deceased who were in the house and that it is accused and not him who gave the child poison.

5. PW2 No. 67341 Corporal William Lonyangat attached to Lwakaha Police Station received a report from FSS (PW6) that his wife had given poison to their child. He visited the scene where he found an empty bottle of “Delete”. He took possession of it. The child was taken to Chepkuruni Dispensary and transferred to Bungoma where she died.

6. PW5 Edward Okwaro Barasa a workmate of FSS (PW6) testified that FSS called him and informed him that accused had given poison to their child. He went to the dispensary and FSS brought the child who was then referred to Bungoma hospital where she died.

7. PW7 LM the aunt of the accused testified that she was called to the Police Station where she witnessed accused recorded a statement. The accused signed the document and she countersigned as a guardian of the accused.

8. PW9 Mr. Joseph Bahati Kenga a Superintendent of Police took an out of Court confession from accused in presence of her aunt LM which he produced as Exhibit 3.

9. PW1 Dr. Harun Ombongi who performed the Post-mortem testified that from examination he formed opinion that cause of death was due to poisoning.

10. The accused gave sworn evidence in her defence. She stated that she is the mother of the deceased. She testified that she was married to FSS (PW6) who kept saying that he was not the biological father of the child and that the father was one B. On the material day the child had urinated on the beddings and the husband FSS quarreled with her. She then took poison and gave it to the child to die as she also wanted to take it too.

11. The accused is charged with the offence of murder contrary to Section 203 of the Penal Code. Section 203 provides:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”.

12. The elements of the offence of murder which the Prosecution must prove are:a.The fact and cause of death.b.The unlawful act or omission causing the deathc.That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d.That the accused committed the unlawful act with malice aforethought

13. The fact of death of the deceased is not in dispute. Even accused the mother of the deceased admitted that the child died and that the cause of death was poisoning. PW1 Dr. Harun Ombongi also confirmed that after examination he formed opinion that the child died as a result of poisoning.

14. The accused made an out of Court confession to Superintendent Bahati which was produced as Exhibit 3. In the confession she stated:“When it was time to go to bed, I heard him complaining that the mattress was wet. I went and turned it and spread the bed properly and as I wanted to also go to bed, he told me that I will not sleep on that bed. He told me to take another mattress and go and sleep at the sitting room. This is when the quarrel started. I told him that I was not feeling well but he became very rough and started beating me up. I then decided to take the mattress and went to the sitting room. While at the sitting room I felt I could not continue living this kind of life. I therefore decided to kill my child and also kill myself. There is a pesticide which we use to wash our cows to remove ticks and is usually in the house. That’s what I decided to use terminate our lives. I took it from where it was. It was very little. I poured into the lid but it could not even reach halfway. I therefore administered it to her through the mouth and she swallowed. I reserved a little portion for myself to take. As I was now taking, my husband appeared and pushed my hand aside before it reached my mouth and the lid was thrown away spilling the drop that was inside. What followed were slaps on me by him. People came and they realized that I had administered the poison to my child. They tried giving her mild but it could not help. They then took us to hospital in Bungoma, but even before we reached there, my daughter died’.

15. From this confession and her evidence in Court, the accused readily admits that she is the one who gave the child the poison from which she died. I therefore find that accused committed the unlawful act that caused the death of the deceased.

16. Mr. Wamalwa R for the accused submits that the accused ought to have been charged with the offence of infanticide under Section 210 Penal Code. In this case it is not in dispute that the accused was the mother of the deceased. It is also not in contention that the deceased was 11 months old. From her evidence she had a troubled pregnancy and was breast-feeding the child. Section 181(1) of the Penal Code provides:“When a woman is charged with the murder of her child, being a child under the age of twelve months, and the Court is of the opinion that she by a willful act or omission caused its death but at the time of the act or omission she had not fully recovered from the effect of giving birth to that child and that by reason thereof or by reason of the effect of the lactation consequent upon the birth of the child the balance of her mind was then disturbed, she may, notwithstanding that the circumstances were such that but for the provisions of Section 210 of the Penal Code she might be convicted of murder, be convicted of the offence of infanticide although she was not charged with it”

17. Where a Court finds that the circumstances of the case as provided in Section 181(1) then the Court is obliged to make a finding of commission of an offence of infanticide under Section 210 Penal Code. Section 210 Penal Code provides:“Where a woman by any willful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent on the birth of the child, then, notwithstanding that the circumstances were such that but for the provisions of this section the offence would have amounted to murder, she shall be guilty of a felony, to wit, infanticide, and may for that offence be dealt with and punished as if she had been guilty of manslaughter of the child”.

18. Upon considering the whole evidence I am satisfied that the Prosecution has proved a charge of infanticide against the accused. I therefore find the accused LM guilty of the offence of infanticide contrary to Section 210 Penal Code and convict her accordingly.

DATED AT BUNGOMA THIS 20TH DAY OF JULY, 2022. S. N. RIECHIJUDGE