[2022] KEHC 1900 (KLR)

REPUBLIF OE KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

HCR NO. 21 OF 2017

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

VERSEUS

MERCYLINE NAMULUNDA......ACCUSED

J U D G M E N T

The accused MERCYLINE NAMULUNDA is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

The particulars of the offence are that on the 1st day of April, 2017 at East Sangalo Sub-location Mechimeru location in Bungoma South Sub-county within Bungoma County murdered JOHNSTONE WEKESA.

The case for the prosecution is that the deceased Johnstone Wekesa was the son of PW2 Cetrine Nasimiyu Wafulaand Ibrahim Nyongesa. He was born in 2011. She eventually did not marry Ibrahim the father of the deceased and was married elsewhere to John Malaba. Ibrahim then demanded his son the deceased and she released the deceased to him on 12. 3.2017 while the child was in good health. On 2. 4.2017 she received information that the child had died. She went to Bungoma mortuary where she confirmed the sad news. She saw the deceased had burns on the buttocks and reported to police.

PW5 Ibrahim Wekesa Makokha the father of the deceased and husband of the accused testified that on 25. 3.2017 he woke up and took his children Evan Wekesa and Velima Wekesa to school. He left his other children Michele and Johnstone (the deceased) still asleep and accused was in the house.

While on his duties of work as a boda boda rider, the accused called him and informed him that the deceased had been burnt by hot tea which was in the thermos flask which also broke. He went home and saw deceased who had burns on his private parts and buttocks. He applied some cream on him on 26. 3.2017. On 27. 3.2017 he took the deceased to hospital at Nzoia Medical Clinic. He was treated as outpatient. On 1. 4.2017 deceased started vomiting and they decided to take him to Bungoma hospital but died on the way to hospital.

On being cross-examined by Onkangi for accused, he stated that the deceased was aged 6 years old and that after the incident it is him and accused who were taking deceased for treatment. He confirmed that the deceased was buried at a public cemetery where he was ordered by the court.

PW1 Francis Juma Wanga a clinical officer running his private clinic on 27. 3.2017 received a patient the deceased who was bought by accused and the father of the child. He had burns injuries on the buttocks which were 3 days old. He was given history of having been burnt by tea. He treated the child for 2 days as outpatient. On the 4th day he was taken to another hospital and he received information that he died.

On being cross-examined by Onkangi for accused he said the child was in fair condition and does not know whether the burns were inflicted intentionally or accidentally.

PW3 Linnet Nasimiyu Makokha the brother of Ibrahim Wekesa (PW 3) informed her that the new husband of Centrine (PW2) had rejected the child born out of wedlock. She offered to take care of the child. On 15. 3.2017 he took the child to accused and her husband. He was not sick. On 28. 3.2017 when he went there he found him with a bandage. On 1. 4.2017 the accused called her and informed her that child was vomiting. She went and together with her brother took him to Bungoma hospital where he was pronounced dead.

PW7 No. 76578 PC Moses Nyagah the investigating officer was at the Nzoia police station where he received a report of a murder incident. He visited the scene and found the accused and the husband present. He was informed by accused that the deceased had sustained injuries from hot tea which was in a thermos flask which fell from a cupboard. The explanation did not make sense to him and was not satisfied. He however could not establish how these burns were caused but was sure it was not an accident. He formed opinion that it was deliberately caused by accused and he charged her with present offence.

PW5 Dr. Haron Ombongi produced a post moterm report prepared by Dr. Ramond Damba who found the deceased had 2nd degree burns on the buttocks and right thigh, right side effusion and both wounds were septic. He concluded that the cause of death was cardio pulmonary arrest due to sepsis as a result of burns.

The accused on being placed on her defence that she had gone to the market on 25. 3.2017 when on coming back mama Leah informed her that deceased had been burnt by hot tea. Earlier when she left the house, she had left deceased who was aged 6 years old asleep and put hot tea in a thermos flak. She went and bought medicine. On 26. 3.2017 they took him to Central Medial Clinic where he was treated as outpatient up to 30. 2.2017 when he started to vomit. They took him to the doctor on 31. 3.2017 who urged them to take deceased to Bungoma hospital. He died on the way to hospital. She testified that the burns by the hot tea was not deliberate but an accident.

The accused is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Section 203 provides:

“Any person who of malice aforethought causes death of another person by any unlawful act or omission is guilty of murder.”

For the prosecution to secure a conviction for the offence of murder, it must prove beyond reasonable doubt:

1. The fact and cause of death

2. The unlawful act or omission that caused the death that it is accused who caused the unlawful act or inflicted the injuries that led to the death of deceased.

3. That the accused had the intention or malice aforethought.

On the issue of the death and cause of death, PW5 Dr. Haron Ombagi who produced the post- mortem report prepared by Dr. Raymond Damba testified that the deceased died from effects of 2nd degree burns.

That the deceased died as a result of burns on his buttocks is not challenged even by accused. The prosecution evidence is that the burns were inflicted by the accused and that she should be held to be responsible. The unlawful act which caused the death is therefore inflicting of injuries on deceased by burns with a hot liquid.

The prosecution led evidence that accused and deceased were in the house, that the accused called the husband (PW 5) and informed him that the deceased had sustained burns from hot tea which was in a thermos flask. When the husband came, he confirmed that the deceased had injuries and they both embarked on the course of treatment including taking him to PW1 – a Clinical officer where he was managed as an outpatient.

The prosecution therefore sought to invite this court to find that the deceased was a child born out of wedlock. The deceased was brought to accused and her husband. That the accused may have not been happy and burnt deceased with hot liquid 2 weeks after he was brought. Prosecution therefore sought to prove that the burning was not accidental but deliberate.

“There are several facts which the prosecution has invited the court to hold that they do from a series of circumstances leading to an inference or conclusion of the accused’s guilt. I have accepted this invitation provided that as this is a case dependent upon circumstantial evidence the prosecution must show that these circumstance from which the inference of guilt is to be drawn are, in the first instance, proved beyond reasonable doubt. This simply means that the prosecution must prove on the required standard the existence of such fact.”

The accused’s defence is that the child who was 6 years old got burnt by the tea in a flask which was in the house when it fell and broke. There was seen in the house by witnesses a broken flask but her explanation did not satisfy the Investigating officer as it did not make sense to him.

Faced with similar issue in Joan Chebichi Sawe – R. the court of appeal Kwachi, Kukha O’kbasu JJA stated….

“If that be the case, then the evidence does to irresistibly point to the appellant to the exclusion of all others within the meaning of R –vs- Kipkering Arap Koskei & Another 16 EACA 135where it held, inter alia, that:-

“In order to justify the inference of guilt, the inculpatory fact must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

In our judgment, the evidence does not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant on the basis of the evidence on the record. We are therefore, unable to uphold the conviction entered by the learned trial judge. We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and steeled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira –vs- Republic (Criminal Appeal No. 17 of 1998)(unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. We disagree with the learned judge’s view that the prosecution had proved its cause against the appellant beyond any reasonable doubt.

The prosecution did not tender evidence to show that the burning was deliberate other than suspicion that it was caused by accused.

Upon considering all the evidence, I find that the prosecution has not proved circumstances which irresistibly points to the accused as the person who inflicted the injures by burning and not by accident as she claims.

I therefore find the prosecution has not proved the charge of murder against accused beyond reasonable doubt. I find accused NOT guilty of the offence of murder and acquit her under Section 215 CPC. I direct the accused Merceline Namulunda be set at liberty unless otherwise lawfully detained.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 4TH DAY OF FEBRUARY, 2022

S.N RIECHI

JUDGE