[2023] KEHC 23894 (KLR)

Republic v Mukolwe (Criminal Case 43 of 2015) [2023] KEHC 23894 (KLR) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23894 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 43 of 2015

PJO Otieno, J

October 13, 2023

Between

Republic

Prosecution

and

Stephen Mwambua Mukolwe

Accused

Judgment

1. Stephen Mwambua Mukolwe (‘accused person’) is charged with the 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 July, 2015 at Makhoma village, Inaya Sub-location in Butere district within Kakamega County, the accused person murdered SMM.

2. The accused person pleaded not guilty to the charge and to prove its case, the prosecution called a total of five witnesses. The evidence of the prosecution witnesses can be summarized as below.

3. PW1, Samuel Anekeya Alubokho, the assistant chief of Inaya sub location testified that on 1/7/2015 at 9:30 AM the accused person went to his office in the company of his father to report that he had woken up and found his 6-7-year-old daughter having died behind their residential house. The accused person informed him that the previous night he came home drunk and the daughter was not at home but was informed by his son that she was picked by a person not known to him and they had gone to see her grandmother but did not check with the grandmother since he was drunk. He said he slept and woke up to find the body of her daughter behind the house. PW1 then went to scene and found the body of the deceased with scratches on the neck and blood stains on her private parts. He stated that it had rained the previous night and close to the scene were knee prints. He also denied having any grudge against the accused person.

4. On cross examination he stated that the accused had parted ways with his wife.

5. PW2, Dr. Dixon Mchana, a consultant pathologist at the Kakamega County Hospital gave evidence that on 3/7/2015 he conducted an autopsy on the body of the deceased who had extensive bruises on the cheek and around the neck and bruises on the inner part of the upper right thigh towards the genital area. Internally, the deceased had extensive frothing through the nostrils and mouth all the way into the breathing system and her genitals appeared swollen with two tears on the sides of the anus and the hymen. It was his opinion that deceased’s cause of death was asphyxia due to strangulation. He produced the most mortem report which was marked as PEXH 1.

6. On cross examination he stated that choking and drowning can cause asphyxia.

7. In reexamination he stated that the deceased’s stomach was empty and there was no food on the airwaves to suggest choking.

8. PW3, Richard Mutai Langat, a government analyst testified that on 16/7/2015 he received a police exhibit memo from Butere Police Station forwarding DNA samples including vaginal swabs from the deceased and the accused person. He found the vaginal swab to be positive for spermatozoa. The marching showed that there was a relationship of up to 90%. He produced the report as PEXH 2C.

9. On cross examination he stated that he extracted mouth swabs from the suspect himself while the vaginal swab was brought to him by the Investigating Officer who extracted it. He claimed that there was no certificate of extraction and that he could not confirm if the vaginal swab belonged to the deceased. He further stated that his report did not contain a column for blood samples of the accused.

10. In reexamination he stated that one does not need blood to generate DNA and that any fluid or nails can be used to generate DNA.

11. PW4, No 232119 SP Paul Sowagok formerly serving at DCIO Butere and currently based at the DCI headquarters testified that on 6/7/2015 he was requested by the investigating officer to issue an order for a suspect to DNA sampling. The suspect, the accused person, was brought before him and he explained to him the purpose of the procedure which was intended to march his DNA profile and the accused agreed and signed on the order by way of a thumb print. A copy of the order was taken to the government chemist for purposes of extracting the sample and on that same day the accused person was accompanied to the government chemist and an oral swab extracted. He produced the order for extraction to the government chemist and the exhibit memo form used to extract samples as PEXH 2(a) & (b) respectively.

12. On cross examination he stated that the accused did not object DNA sampling and that he did not participate in the extraction of samples.

13. PW5, No 111653 PC Jackson Kyalo attached to DCIO Butere testified on behalf of the investigating officer, Sgt Osir Onyango, who had since been transferred. He stated that on 1/7/2015 they received a report from the assistant chief Inaya sub location about the murder of a juvenile. The investigating officer in the company of three other officers headed to the scene and found the body of the deceased who had been defiled and lying dead. The deceased had signs of defilement with vomit near the body and blood oozing from her genitals and there were marks on her neck to suggest strangulation. The accused person was arrested as a suspect and the vaginal swab of the deceased and the buccal swab of the accused person taken for marching. The DNA test results connected the accused person with the assault and death of the deceased and he was formally charged.

14. On cross examination he stated that it was the duty of the investigating officer to complete the exhibit memo and that according to the file it was one PC Godfrey who forwarded the samples to the government chemist. He stated that he was not aware how and where the swabs were stored.

15. In reexamination he stated that Godfrey was part of the investigating team.

16. The evidence of PW5 marked the close of the prosecution case and the court ruled that a prima facie case had been established against the accused person and he was thus placed on defence.

17. The Defence called one witness, Stephen Mwambua Mukolwe, who testified that he was a resident of Butere and a clobber who also did bicycle and motorcycle repairs. He stated that he was married to one Esther Mbone whom they had separated for over a years and together they had four children. Following their separation, he was left with the custody of three children including the deceased who was his third born and aged 9 years. It was his evidence that on 30/7/2015 he woke up and went to work after preparing breakfast for his children and left work at 7PM. On his way home he met with one Mr. Okwako who inquired if his father was at home and said he had a report for him. He went to his father’s house and later to his house where he did not find one of his children. On asking his son E, he told him that the deceased had gone to her grandmother’s (his mother) house and he did not follow up because she would spend some nights there. The next day as he was planning to leave for work he passed behind the house and was surprised to see his daughter lying in front of the toilet. When he called her twice and she did not respond, he moved closer and realized that she was bleeding from the mouth and was dead. He went back to the house and asked his E where his daughter S was and he told him that she had left at dusk with a man he did not know. He then went to call his parents who rushed to the scene. He disputed the accuracy of the forensic report saying that the specimen found in the deceased was not connected to him and that his finger prints were lifted though no report was presented in count. He disputed defiling the deceased.

18. On cross examination he stated that while at work his children would pass by for lunch and that on the day of the incident the deceased did not pass by. He further stated that he did take alcohol but not to the point a losing his senses.

19. On being questioned by the court he stated that on 30/6/2015 he did not take beer. He further stated that the body of the deceased was out of the toilet while the head lay towards the inside of the toilet and that he did not go to the toilet that night and neither did his two children.

20. The defence closed their case with the parties proceeding to file their respective submissions as below.

Submissions by the state 21. It is their submission that this being a case where there was no eye witness who saw the accused person commit the crime, their case is hinged on circumstantial evidence. They submit that the death of the deceased is confirmed by the doctor who produced the post mortem report indicating that the deceased died due to asphyxia secondary to external manual strangulation. On the identity of the person who killed the deceased the prosecution submits that the samples from the vagina of the deceased were taken for DNA examination and marching against the buccal swap taken from the accused person and that the DNA profiles generated from the vaginal swab was 99. 9% similar to that of the accused. They argue that the typing error on the DNA report was that the heading of the second row was to read Silvia Miteba Mwambwa (deceased) vaginal swab and that the XX chromosomes which were on that column which were from the vaginal swab belonged to the deceased. The same genetic matter that was found in the vaginal swab in column 3 XY chromosomes matched the one from the buccal swab of the accused in column 4. They contend that the indication of blood on column one was a typing error that does not affect the purpose of the analysis.

22. They further submit that the DNA evidence was cogent and the accused failed to explain how his DNA was found in the deceased’s vagina. On the element of malice aforethought, the prosecution asserts that the act of strangulation denotes malice.

Accused Person’s Submissions 23. The accused person has filed his submissions in which he questions the government analyst’s testimony that there was a typographical error and that the entries noted as the deceased blood should actually be by the vaginal swab and thus terms it a faulty documentation. He further questions how the vaginal swab was stored and transported since it was collected in 3/7/2015 and taken to the government chemist on 6/7/2015 and further claims that it is scientifically impossible for the vaginal swab of the deceased to match with the buccal swab of the accused person on a ratio of 1:1 unless both swabs were taken from the accused. He contends that the prosecution has failed to place the accused person at the scene of the crime and also argues that the accused person did not have the mens rea to kill the deceased because he was her father.

Issues for Determination 24. Flowing from the ingredients of the Prosecution to attain a conviction, it has to prove to the satisfaction that, the person named in the charge as deceased is indeed dead, that the death was caused by the unlawful acts of commission or omission by the Accused and lastly that in taking those acts of omission or commission, the accused was accentuated by malice aforethought. In this Judgment, the Court constitutes the ingredients as the issues for determination in that seriatim manner.

Whether s miteva mwambua is deceased? 25. It is not in doubt that S Miteva Mwambua is dead as confirmed by the five prosecution witnesses, the appellant and the autopsy report produced by PW2 and marked as PEXH 1 which indicated that the deceased is dead and that the cause of death was asphyxia due to external manual strangulation.

Whether her death was caused by unlawful acts or omission by the accused? 26. From the evidence tendered by the prosecution witnesses, it is clear that none of them saw the accused or any other person kill the deceased. The prosecution’s case in thus hinged on circumstantial evidence. How and when a Court can convict on such evidence was discussed by the Court of Appeal in Ahamad Abolfathi Mohammed andanotherv Republic [2018] eKLR as follows: -“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

27. The conditions for the application of circumstantial evidence in order to sustain a conviction was laid down in Abanga alias Onyango v Republic CR. App No 32 of 1990(UR) where the court held as follows:“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.”

28. The prosecution’s evidence is premised on the DNA samples collected from the deceased and the accused. The events established by evidence leading up to the killing of the deceased is that she was first defiled before she was murdered. It was the testimony of PW3 that he received vaginal swabs from the deceased, took mouth swab from the Accused and after analysis he found the vaginal swab to be positive for spermatozoa which related with the mouth swab upto 90. 9. He further stated in reexamination that one does not need blood to generate DNA profile and that any fluid or nails can be used to generate DNA.

29. It was the evidence of PW5 that following the arrest of the accused person as a suspect, the vaginal swab of the deceased and the buccal swab of the accused person were taken for matching and the DNA test results connected the accused person with the assault and death of the deceased and he was thus formally charged.

30. In addition, it was the finding of PW3 in his DNA profile report, marked as PEXH 2c, that the DNA profile from the vaginal swab of the deceased belongs to the accused.

31. The accused has contested the validity of this report by claiming that the second column indicates blood sample of the deceased when no such samples were taken and analysed. The prosecution on its part, and specifically PW3 termed that reference to be a typographical error and sought to correct it because the only fluid extracted from the body of the deceased was vaginal swabs. The prosecution has explained this error by stating that the vaginal swab of the deceased contained XX and XY chromosomes and that the amelogenin XX was from the deceased’s vagina and not blood. I find this error not to affect the substance of the report which is unequivocal that it was vaginal swab analysed and not blood. The XY chromosomes seen from the spermatozoa collected in the vaginal swab matched the buccal swab collected from the accused at 99. 99% while the analyst’s report is not binding upon the Court, it takes a strong case for the Court to disregard it. In this case, there is no material to challenge the accuracy of the report. The Court accepts it as an authoritative report and finds that it connected the accused with the offence. I find the evidence of the prosecution witnesses to be incompatible with the innocence of the accused. The DNA evidence established a linkage between the accused and the offence in a manner that irresistibly point to the guilt of the Accused and leaving no room for an inconsistent alternative hypothesis.

Whether the accused was actuated with malice afore thought in causing the death of the deceased? 32. Because it is not possible to read the mind of a human being, the East African Court of Appeal in Republic v Tuberes/oOchen [1945] 12 EACA 63 set out the circumstances under which malice aforethought can be inferred in a case to be; the nature of the weapon used (whether lethal or not).

the part of the body targeted (whether vulnerable or not).

the manner in which the weapon is used (whether repeatedly or once) and

the conduct of the accused before, during and after the attack.

33. PW2 testified that in examining the deceased, her genitals appeared swollen with two tears on the sides of the anus and the hymen was recently torn. It was his opinion that deceased’s cause of death was asphyxia due to strangulation.

34. According to the autopsy report the deceased was aged 7 years. The Accused was in a sober mindset because he told the Court that he did not drink on the night of 30th June, 2015 when he took his young daughter and defiled her to the point of tearing her hymen and anus and in the cause strangled her to death, left her in toilet and then went home to sleep. Setting on the mission to defile a seven (7) year old, his own child under his care and protection, cannot be explained to have been intended to achieve any other end but grievous harm. In law, intention to cause grievous harm is by itself evidence of malice aforethought by dint of section 206 Penal Code. In this case the guilty mind was focus on own child of very tender years. His conduct cannot be explained otherwise but to have been propelled by extreme malice aforethought.

35. Accordingly, I find the accused person guilty for the offence of murder as charged and convict him accordingly.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 13TH DAY OF OCTOBER 2023. PATRICK J. O. OTIENOJUDGE