[2022] KEHC 3098 (KLR)

Republic v Mbai (Criminal Case 16 of 2015) [2022] KEHC 3098 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3098 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 16 of 2015

MW Muigai, J

May 12, 2022

Between

Republic

Prosecution

and

Janet Ndunge Mbai

Accused

Judgment

1. The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. In the Information, the particulars of the offence are that on the 22nd day of February, 2015 at Nthiluni Village, Ngamba Sub location, Miu Location in Mwala Sub-County within Machakos County, murdered John Mainga Mutua.

2. On 27th April, 2015, upon the charge of murder and each and every ingredients thereof were read to the accused person in Kikamba language, the accused person responded ‘Not true’ and a plea of not guilty was entered.

Evidence 3. PW1, Peter Ngila stated that on 19th February, 2018, the accused person informed him that the deceased had left after tea but on 22nd February, 2016 at 2 pm, two of his neighbours namely Nzambali Mulasya and Mwelu Kinyali showed him the body of the deceased which had cuts all over. According to PW1, the deceased’s wife said that the body belonged to her husband who had a habit of coming back at night. PW1 stated that he did not know who cut his brother.

4. In cross-examination by Mr. Kituku, PW1 stated that on 19th February, 2015 the accused person told him that the deceased had left after breakfast. PW1 stated that he went to Ivuti bar where Mutinda Munyao informed him that his brother had left his phone charging in the bar. He tried to call his brother who was unreachable.

5. PW2, Patricia John Mutisya stated that on 22nd February, 2016 she was at home taking care of her cattle when she suddenly saw two dogs, one carrying a leg of a human being while the 2nd one was following the 1st one. She stated that they looked for the body to which the leg belonged to. It was PW1’s testimony that they found the body wrapped in a sack and flies were all over the sack. The body was beside a small river. She stated that she did not know whose body it was but at the mortuary she got to know that it belonged to Mainga Mutua after it was identified by his brother.

6. In cross-examination by Mr.Machogu, she stated that she saw the body inside a sack. On cross-examination by court, PW2 stated that the sack was not on her land but bordered a small river. According to PW2, they are neighbours with the accused person and the deceased.

7. PW3, Pauline Ndeto, the Chief of Miu location Mwala Sub-County stated that on 22nd February, 2015 at 3. 00 pm he received a call by a member of public that there had been a human leg being eaten by dogs and the leg was sighted in Nthiluni village. She stated that there was a body inside a nylon sack and had decomposed. It was PW3 testimony that she gathered from the public that one Mainga Mutua had been missing from the village for about three days yet his wife who is the accused herein had not made a report. According to PW3, she had known the accused before.

8. According to PW3, it was decided that a certain toilet at the compound of the deceased be opened. She stated that several clothing were recovered and taken away by the police. She stated that the police visited the deceased’s home on 27th February, 2015 and in the presence of the accused searched the deceased house where they recovered a blood stained mattress.

9. In cross-examination by Kituku, PW3 stated she found that body inside a gunny bag and placed in a ditch. According to PW3, it is Nzeki who claimed that the accused had not made any report of the disappearance of the deceased but also Nzeki had not filed a report with her of the disappearance. According to PW3, she did not participate in breaking the toilet and neither took the clothing. PW3 stated that the pit latrine was away from the house. It was PW3 testimony that she returned to the deceased home on 27th February, 2015 and found the police had recovered the blood stained mattress. PW3 stated that she had not heard any dispute between accused and her husband. According to PW3, the body was recovered away from the deceased’s home. She stated that she cannot tell how the deceased met his death.

10. PW4, Kiasyo Mainga daughter to the deceased who in 2015 was in class 8 and aged 14 years old stated that she had gone to fetch firewood near their home when she saw a dog eating human leg. According to PW4, her father had disappeared for three days. In cross-examination by Kituku, PW4 stated that there had been no fights between her parents.

11. PW5, Mercy Kavuli Maingi (Minor) who was 13 years old stated that she saw a body on the ditch and later learnt that it was the body of his father. According to PW5, her mother, the accused used to stay peacefully with her father. In cross-examination by Kituku, PW5 stated that the body was found in a ditch on land belonging to Patricia.

12. PW6, Bernard Nzeki Mutua stated that on 18th February, 2015 he was with the deceased at Ivuti bar relaxing and drinking but PW6 later left the deceased and went home. According to PW6, the deceased could not be traced the following day but he heard on Sunday that a body had been spotted in a ditch. He stated that he rushed to the scene where he saw a decomposed body in a gunny bag. PW6 stated that he does not know how the deceased met his death.

13. In cross-examination by Kituku, PW6 stated that he was with the deceased on 18th February, 2015 at 10 pm but left the deceased at Ivuti Bar. According to PW6 he had not seen the deceased for some few days and was about to report the deceased’s disappearance when the body was discovered. PW6 stated that deceased’s body was found on land belonging to Patricia John Mutisya. According to PW6 he does not know what befell the deceased and neither witnessed any disagreement between him and the accused.

14. PW.7 Geoffrey Wambua stated that he identified and witnessed the Post Mortem of the deceased, his nephew.

15. PW8, Stephen Mulyunga Muli a Road Inspector in Machakos County stated that on 24th February, 2015, he visited the Accused person’s home with Police Officers and assisted to retrieve from a pit latrine a bed cover (MF1-2), bed sheet (MF1-3), two trousers (MF1-4 a & b) and one sport shoe (MF1-5). In cross-examination by Kituku, PW8 stated that he had not given the colours of the recovered items. He stated that he did not know who had thrown the items into the toilet and could not tell if the recovered items had blood stains. In re-examination, PW8 stated that he learnt from Nzeki that some items had been thrown into the pit latrine and could be seen.

16. PW9, No. 332871 Chief Inspector Moses Kirong, the then OCS Masii police station stated that on 24th February, 2015 he received a report to the effect that certain villagers had descended on a certain home and were baying for the blood of the accused herein following the death of her husband John Mainga. According to PW9, members of the public had already recovered clothes from a nearby pit latrine. He stated accompanied by his Deputy, whereby they did a quick search of the accused’s house. He stated that PW8 assisted them to retrieve items from the toilet which were a mattress, one shoe, one bed sheet and two shorts which were forwarded to the Government Chemist for DNA analysis and thereafter the CID conducted investigations.

17. In cross-examination by Kituku, PW9 stated that he was not the investigating officer and could not tell who the perpetrator was and the motive. He could not tell who had placed the items in the toilet. According to PW9, it was not possible for one to see any blood stains on the recovered items. PW9 stated that he did a search at the accused’s house but did not recover anything. He stated that he did not recover a mattress and the mattress he saw did not contain any blood stains. He did not give the colour of the items recovered. In his evidence, PW9 stated that his statement is silent on the claim that the two shorts belonged to the deceased. He stated that he had no proof that the toilet was on accused and deceased’s homestead.

18. PW10, Elizabeth Waithera Oyiengo, a Government Chemist Analyst produced the exhibit Memo Form as MF1-6 and the Analyst report dated 1/11/2017 as MF1-7. PW10 stated that according to the report, the mattress (A3), and short (A7) were moderately stained with human blood while the bed sheet (A4), mattress cover (A5), shoe (A6) and Short (A8) were lightly stained with human blood. It was PW10 conclusion that the DNA profile generated from the blood stained mattress (A3), bed sheet (A4), mattress cover (A5) matched the DNA profile generated from the nail (A1) which belonged to the deceased Maingi Mutua. He stated that the probability match is in 2. 68 x 1019. According to PW10, the shoes (A6) and short (A7) as well as the short (A8) did not generate a DNA profile due to uric acid. He noted that the specimen which had no mud generated DNA profile.

19. In cross-examination by Kituku, PW10 stated that some of the specimens had moderate stains from the ordinary eye. He stated that he was not the one who obtained the samples from the respective persons or victims. It was PW10 testimony that none of the specimens matched the blood of the accused herein. He stated that the specimen were not before the court. He stated that items A6, A7 and A8 did not generate any DNA profile hence he did not give his reasons. He stated that he saw the blood stains.

20. PW11, No. 80369 PC Dan Onyango Njura from Mwala DCI stated that on 22nd February, 2015 a report was made to them that there was a body of a dead person within Miu Location in Mwala Sub County. He stated that led by the assistant they went to the scene where they found a male body stuffed in a sack. According to PW11, the body had a deep cut on the neck and shoulder and the left leg was missing. He stated that the body which had decomposed was placed in a ditch within a sisal plantation. It was PW11 testimony that the accused owned the land within the scene.

21. In his evidence PW11 stated that on 27th February, 2015 he was accompanied by PC Cheruiyot to the accused home where they recovered a blood stained mattress (MF1-8) in the bedroom which was 4 inch. He produced the mattress as exhibit 8. According to PW11 the OCS Masii CIP Kerong (PW9) handed over to him, a bed cover, bed sheet, one shoe and two short pants which according to the OCS were recovered within the accused person’s compound. He stated that he forwarded the items to the government Chemist for analysis vide an Exhibit Memo Form dated 4/04/2015. He produced the form as exhibit 6 as well as the other items recovered. He marked the postmortem as MF1-1.

22. It was PW11 testimony that after investigation, he charged the accused as her version of the events did not convince him of her innocence. According to PW11 he had not interacted with the accused person prior to the incident and deceased was not known to him.

23. In cross-examination by Kituku, PW11 stated that he found a decomposed body on a ditch but no photographs were taken at the scene. According to PW11, he conducted a search on 27th February, 2015 whereby he recovered the mattress. He stated that the body was found at Patricia’s land. He stated that he has indicated that the nail was handed over to the analyst but the same is not indicated in his statement.

24. In re-examination, PW11 stated that the nail was removed from the body of the deceased and handed over to him by PC Cheruiyot who attended during the postmortem.

25. PW12, Dr. Waithera Githendu, a Pathologist at Machakos Level 5 Hospital stated that she performed the postmortem on John Mainga on 3/3/2015 at 11 am. According to PW12 the body which had decomposed with maggots had multiple wounds. She stated that the left leg bone and flesh were missing. According to PW12 the cuts were on the scalp, upper and lower limbs with several fractures and internally he had fractures on the skull. The brain had decomposed but the facial structures were identifiable. In the opinion of PW12, the cause of death was multiple deep cut wounds. She stated that postmortem is dated 3/3/2015. At the close of prosecution’s case the Trial Judge D.K. Kemei on a Ruling dated16/01/2020 found that:“I have carefully evaluated the Prosecution evidence. I find that, in the absence of any explanation to the contrary from the defence, the prosecution evidence does establish two of the three (3) ingredients of the offence of murder. It is not in dispute that there was death and the cause was established. On the question of the accused’s participation, this court finds that, in the absence of any evidence to the contrary, the evidence of Pw1 to Pw9 does establish participation of the accused person to some extent. The evidence that the accused is the wife to the deceased is a circumstance that was used to point towards her participation. It is not in dispute that the accused led police to her matrimonial home where a blood stained mattress was recovered from her bed and that the blood was found to belong to the deceased. In arriving at the above conclusions, I do recognize that at this stage, the standard of proof is not proof beyond reasonable doubt as required for a fully-fledged criminal trial. Rather, what is essential is such evidence which if taken literally or on the face of it would establish the essential ingredients of the offence of murder, as well as the accused’s participation therein”.Proceedings were typed and availed to the Defense. The Accused opted to give a sworn statement.

26. In her evidence, DW1, Janet Ndunge Maings stated that she saw John Mainga (deceased) on 17/2/2015 in the morning at 9 am he left to go buy mangoes. According to DW1 she got information on 21/2/2015 that body of his late husband was found. She stated that she saw his body in a big sack but did not confirm it was her late husband since the body was decomposed. According to PW12, the body was found at the shamba of Patricia John. She stated that from 17/2/2015-22/2/2015 she was at home at Nthiluni village with the 3 children and 2 of the children were called as witnesses in Court. She did not worry that the deceased was not home for 3 days as he used to be away for 2 weeks. She said that it was not probable to see blood stains on the items taken to Government Chemist.

27. In cross-examination by Mwongera, DW1 stated that on 18/2/2015 the deceased did not come back home and she heard the children testify that the deceased came home and they ate together but on 18/02/2015 the deceased did not come home. She denied the mattress found was not theirs and she did not see the blood stains.

Prosecution Submissions 28. On behalf of the Prosecution, the following issues are proposed for determination:-

i.Was the accused person involved in the murder of the deceased? 29. It is submitted that the testimony of PW4 and PW5 clearly established that the accused person came home on 18th February, 2015. They ate supper together and went to bed. That on the following day they proceeded to school. According to the Prosecution the last person to be seen with the deceased was the accused person whom they went to bedroom together.

30. According to the Prosecution, the blood stained mattress recovered from the deceased house clearly established that the deceased came back home. That he met his demise in the hands of the accused person.

ii.Did the accused person have malice aforethought? 31. It is submitted that the accused person had malice aforethought since she killed her husband in their home. That the accused person put the deceased body in a sack and threw a mattress cover, one shoe and a bed sheet in a toilet nearby their home.

iii.Was the accused person identified appropriately? 32. According to the Prosecution, the accused person was identified by PW4 and PW5 who were present when the deceased arrived home on 18th February, 2015.

iv.Was the cause of death as a result of the injuries inflicted? 33. The Prosecution relied on PW6, Dr. Waithera Githendu filed postmortem report which indicated that the body was decomposing but there were fracture on the skull and PW6 formed an opinion that the cause of death was multiple deep cut wounds. It is submitted that PW10, Elizabeth Waithera Oyiengo conducted a DNA profiling on items that were forwarded to her and formed an opinion that the blood that was found on the mattress, bed sheets and mattress cover matched the profile of the deceased.

34. According to the Prosecution, it established a prima facie case. Reliance was placed on the cases of Ramanlal Nyaga Kiura v Republic[2018]eKLR, Ramanlal Trambaklal Bhatt v Republic [1957]EA 332 and R v Jagjiwan M.Patel & Others(1) T.L.R(R).

35. In conclusion, the Prosecution submitted that the DNA profiled matched the items recovered in the nearby toilet and the accused person was last person with the deceased on 18th February, 2015. According to the Prosecution the accused person testimony that the deceased left their home on 17th February, 2015 to go buy a pick Up of mangoes and that was the last time she saw the deceased could not shake the evidence of 12 Prosecution witness as well as the documentary evidence produced as exhibits. According to the Prosecution, it proved its case against the accused person beyond reasonable doubt and the accused person should be convicted contrary to Section 203 as read with Section 204 of the Penal Code.

Accused Person’s Submissions 36. On behalf of the accused person, it is submitted that in order to convict the accused person, the court must be satisfied that both mens rea and actus reus exist and the same be connected to the accused person. According to the accused person, the elements have not been proved to the required standard of proof beyond reasonable doubt hence accused person should be acquitted.

37. According to the accused person, the postmortem show that the deceased died on 18th February, 2015 hence he was already dead incapable of being murdered on 22nd February, 2015 as purported in the Charge Sheet and the charge fails.

38. The accused person has not been linked to the alleged murder beyond reasonable doubt but only through mere suspicion. Reliance was placed on the Court of Appeal case of Joan Chebichii Sawe v Republic Criminal Appeal No. 2 of 2002 where the court held that the suspicion may be strong but this is a game with clear and settled rules of engagement. The Prosecution must prove the case against the accused beyond reasonable doubt. In Mary Wanjiku Gichira v Republic Criminal Appeal No. 17 of 1998(Unreported)where the same court held that suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence.

39. It is submitted that no one witnessed the murder hence actus reus was not proved. According to the accused person, the murder weapon was not recovered. No evidence whatsoever was led as to mens rea and no motive was ever alluded.

40. According to the accused person, the witnesses contradicted themselves as to whether the collected item produced as exhibits were blood stained or not. It is submitted that the discovered body was not properly identified as that of the deceased in the Charge Sheet.

41. In conclusion, the accused has submitted that the Prosecution is simply trying to piece circumstantial evidence which does not meet the legal threshold to justify a conviction to fit the theory that the accused person perpetrated the alleged murder. Reliance was placed on the Joan Chebichii Sawe Case (supra) where the court held that:“As we have already pointed out, the evidence in this case was entirely circumstantial. In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt. There must no other existing circumstances weakening the chain of circumstances relied on. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution and always remains with the prosecution. It is a burden which never shifts to the accused.”

42. The accused person urged this Court to find that the Prosecution had failed to prove the charge of murder beyond reasonable doubt against him. The Court should acquit him.

Determination 43. I have carefully considered the Trial Court evidence on record, submissions filed and cases relied upon.

44. 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.

45. In Republic v Mohammed Dadi Kokane & & 7 Others [2014] eKLR the elements of the offence of murder were listed by M. Odero, J. as follows:-1)The fact of the death of the deceased.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.

46. Article 50 (2) (a) of the CoK provides that that an accused person is presumed to be innocent until the contrary is proved.

47. It was held by Viscount Sankey L.C in H.L(E)Woolmington v DPP [1935] A.C 462 pp. 481 that:-“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’

48. As was stated by Nyakundi J. in Republic v Ismail Hussein Ibrahim[2018] eKLR:-“…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”

49. According to Lord Denning on what is proof beyond reasonable doubt in Miller v Ministry of Pensions, [1947] 2 ALL ER 372 stated that:-“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

50. The prosecution through it witnesses is required to prove the ingredients set out Republic v Mohammed Dadi Kokane & & 7 Others lest a charge for murder does not suffice in convicting the accused person.

The death of the deceased 51. The prosecution witnesses confirmed that the decomposed body belonged to the deceased herein. PW1, PW5, PW7 and DW1 were able to identify the body of the deceased. PW12 the Pathologist who performed the Post Mortem stated that despite decomposition of the brain the facial structure was identifiable. The DNA profile generated from the items found in the pit latrine belonged to the deceased. It is not in dispute that the deceased died.

The cause of the death 52. According to PW12, Dr. Waithera Githendu, in her postmortem opined that the cause of the death was multiple deep cuts wounds and the brain had decomposed. PW1 stated that he didn’t know who cut his brother and staffed his body in a gunny bag. The cause of death is not in disputed.

Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons 53. Based on the prosecution witnesses’ evidence, there is no direct evidence that the accused caused the death of the deceased. There being no direct evidence, this court can only base its findings on circumstantial evidence. Circumstantial evidence was defined by court in Mohamed & 3 others v Republic [2005] 1KLR 722 thus:-“Circumstantial evidence means evidence that tends to prove a fact indirectly by proving other events or circumstances which afford a basis for reasonable inference of the occurrence of the fact at issue. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.”

54. The Supreme of Kenya in Republic v Ahmad Abolfathi Mohammed & another [2019] eKLR stated that:-“(56)On its application, circumstantial evidence is like any other evidence. Though, it finds its probative value in reasonable, and not speculative, inferences to be drawn from the facts of a case, and, in contrast to direct testimonial evidence, it is conceptualized in circumstances surrounding disputed questions of fact, circumstantial evidence should never be given a derogatory tag…”

55. In Neema Mwandoro Ndurya vs. R [2008] eKLR, the Court of Appeal cited with approval the case of R v Taylor Weaver and Donovan (1928) 21 Cr. App. R 20 where the court stated that:“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”

56. However for a conviction to be based on circumstantial evidence, certain threshold have to be met. In Abanga Alias Onyango v Rep CR. A No.32 of 1990(UR) the Court of Appeal set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction. These are:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,(ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)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 none else.” See Sawe vs. Republic [2003] KLR 364.

57. In the Zimbabwe High Court in the case of S v Chironzi & Anor(HMT 25-20, CRB 5628-30/18) [2020] ZWMTHC 25 (28 March 2020) the Judge stated that;“When a case rests upon circumstantial evidence, such evidence must satisfy the following tests: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 and,d.The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation by any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

5. It was observed by the Supreme Court of Uganda in Kalunde Semakula vs. Uganda CR Appeal No. 11 of 1994 as follows:“Another requirement concerning circumstantial evidence is that it must be narrowly examined, because evidence of this kind may be fabricated to cause suspicion on another. It is therefore necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

59. It follows therefore, for this court to find the accused guilty the inculpatory facts must be incompatible with the innocence and incapable of explanation upon any other hypothesis than that of guilt. The chain of facts based on circumstantial evidence that the accused is guilty of the offence must not be broken at any stage.

60. In George Mwangi & 2 Others v Republic [2004] 2 KLR 32 as follows:-“In a case depending on circumstantial evidence, each link in the action 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”.

61. In R v de Villiers, 1944AD 493, 508, the court said, the test is not whether each proved fact excludes all other inferences, but whether the facts considered as a whole, did so.

62. As to whether the accused was involved in the murder of the deceased, the Prosecution placed reliance on the evidence of PW4 and PW5. I have keenly read the evidence of PW4 and PW5. I do not find anywhere that PW4 and PW5 stated that the deceased came home on 18th February, 2015 although PW4 in cross-examination stated that his father used to sleep at home always while PW5 stated that her father at times could come when they have slept.PW4 and PW5 did not mention about going to the school on 19th February, 2015.

63. I have keenly read the evidence of PW1. He stated while being cross-examined by Mr. Kituku for the accused that he talked to the accused on 19th February, 2015 and the accused told him that the deceased left after breakfast. In his evidence PW1 stated that on 19th February, 2018 he was at his farm upto 8. 00 am cutting cattle feed. He stated that he went to the deceased home where he called the deceased but the deceased did not answer and the second time he called the deceased, the deceased wife who is the accused herein answered by stating that ‘her husband had left after tea’. According to the PW1, he later went to the shopping centre at Ivuti Bar where one Mr. Mutinda Munyao informed him that his brother the deceased had left his phone charging in the bar although I note that PW1 was not told when the deceased had left the phone charging at the said bar.

64. It was PW3 testimony that on 23rd February, 2015 she learnt that the deceased had left his phone charging at Ivuti Bar and picked the deceased phone since the deceased had not returned to pick it. In cross-examination, PW6 stated that he was with the deceased on 18th February, 2015 at 10 pm relaxing and drinking but he left the deceased at Ivuti Bar.

65. Based on the evidence of PW1, PW2, PW3, PW4, PW5 the body of deceased person was found in gunny sack on 22nd February, 2015 decomposed. This was 4 days after PW1 had been told by DW1 that the deceased had left after breakfast. According to PW3 who was the area chief, she gathered from the public that the deceased had been missing for 3 days yet the accused had not reported to the police. PW8 stated that on 24th February, 2015 a bed cover, bed sheet, two short trousers and one sport shoe were retrieved from a pit latrine although PW9 stated that he did not have proof that toilet was on the accused and deceased’s homestead. However PW10 confirmed that the DNA profile generated from the items belonged to the deceased hence it does not matter whether the toilet was at the accused homestead.

66. In her evidence, DW1, the accused stated that she saw the saw the deceased last on 17th February, 2015 in the morning at 9. 00 am who left to buy mangoes for someone who had ordered them. According to DW1, she was informed on 21st February, 2015 that the body of the deceased had been found. She stated that from 17th February, 2015 to 22nd February, 2015 she was at home. The court notes that this DW1 admitted that the deceased had been missing for 3 days but she had not reported. DW1 stated that the deceased would go for even two weeks but the court notes that their children PW4 and PW5 stated that the deceased used to sleep home always. It raises doubts as to DW1 evidence that she last saw the deceased on 17th February, 2015 yet PW1 stated on 19th February, 2015, DW1 informed him that the deceased had left after breakfast. DW1 has not controverted PW1 evidence.

67. The Court’s view is that there is sufficient evidence from PW1 that the last person to be with the deceased was the accused. PW1 was could not find the deceased at home on 19th February, 2015. It was the accused person who informed PW1 that the deceased had left after breakfast yet in DW1 she stated that the deceased had left on 17th February, 2015. PW1 evidence was corroborated by PW5 evidence that the deceased was still alive on 18th February, 2015. DW1 evidence as to the last day she stated that she saw deceased, on 17th February, 2015 is doubtful.

68. In R v ECK, Lessit, J. in analysis of the doctrine of the last seen with deceased alive stated: -“Regarding the doctrine of the last seen with the deceased. I will quote from the Nigeria: Court case of Moses Jua v The state (2007) (PELR – CA/11 42/2006. The court while considering the last seen doctrine held: -“Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his/or her death. In the absence of any explanation, the court is justified in drawing an inference that the accused killed the deceased.”

69. In Nigerian case the Court considering the same doctrine, in the case of Stephen Haruna v The Attorney-General of the Federation (2010) 1 iLAW/CA/A/86/C/2009 opined thus:“The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.”

70. The evidence of PW.8 who assisted to retrieve the bedcover, bed sheet, two short trousers and shoes from the pit latrine and PW.10 who examined the mattress cover, bedsheet, shoes, and shorts some which were retrieved form the pit latrine and concluded the DNA profile generated matched DNA obtained from the nail that belonged to the deceased person. The accused was the last person to see the deceased on 17/02/2015 as she said he left to go and buy mangoes. The recovered items were of personal belonging which would be from one’s house.

71. The evidence as to the whereabouts of the deceased was given by the accused person which leads to a plausible conclusion that she was the last person who was with the deceased before his death. The circumstantial evidence adduced by the prosecution witnesses is overwhelming incapable of explanation on any other reasonable hypothesis except the hypothesis that he accused is guilty of the charge. The deceased met his death as a result of an unlawful act or omission on the part of the accused persons.

Proof that said unlawful act or omission was committed with malice aforethought. 72. 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.

73. In the case of Nzuki v 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.”

74. The court’s view is 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. PW1 stated that he did not know who killed his brother as well as PW2, PW3 and PW6. It was PW4 and PW5 that the deceased and the accused relationship was good. In cross-examination it was PW4 testimony that there had been fights between them. PW8 and PW9 stated that they did not know who had placed the items in the latrine. In cross-examination, PW9 stated that they did not know the motive of the perpetrator.

75. In the absence of proof of malice aforethought to the required standard, murder charge against the accused is untenable. The court is unable to find the ingredients of murder have been proved.

76. In Joseph Kimani Njau v Republic [2014] eKLR the Court of Appeal stated that:-“In all criminal trials, both the actus reus and the mens rea are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both the actus reus and mens rea have been proved to the required standard. In the instant case, the trial court erred in failing to evaluate the evidence on record and to determine if the specific mens rea required for murder had been proved by the prosecution…In the present case, the circumstances that led to the fight between the appellant and deceased remain unclear; the motive or reason for the fight remains uncertain; it is an error of law to invoke circumstantial evidence when malice aforethought for murder has not been established. We find that mens rea for murder was not proved. Failure to prove mens rea for murder means that an accused person may be convicted of manslaughter which is an unlawful act or omission that causes death of another.”

Disposition1. Consequently, pursuant to Section 179(1) and (2) of the CPC, the court shall reduce the charge of murder to a charge of manslaughter contrary to Section 202 as read with section 205 of the Penal Code.2. The Accused person is found guilty under reduced charge under Section 202 as read with Section 205 of the Penal Code.3. The Court will await Pre – Sentence Report and/or Victim Impact Assessment Report to be availed before Pre-Sentence proceedings are conducted.

DELIVERED DATED & SIGNED IN OPEN COURT IN MACHAKOS ON 12TH MAY 2022. M.W. MUIGAIJUDGEIN THE PRESENCE OF;MR. KYALO HOLDING BRIEF FOR MR. MUTUKU FOR ACCUSED PERSONMR. MWONGERA - FOR PROSECUTIONGEOFFREY MUTONGA - COURT ASSISTANTMr. Kyalo: We have instructions to have a copy of the Judgment and typed proceedings.COURT: The parties/counsel/DPP shall be provided with copy of Judgment and typed proceedings. The matter to be mentioned on 2/06/2022 for Pre-sentence Report.M.W. MUIGAIJUDGE