[2022] KEHC 11810 (KLR)

Republic v Mutinda (Criminal Case 20 of 2016) [2022] KEHC 11810 (KLR) (4 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11810 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case 20 of 2016

MW Muigai, J

May 4, 2022

Between

Republic

Prosecution

and

Albanus Mulinge Mutinda

Accused

Judgment

Background 1. The accused herein Albanus Mulinge Mutinda was arraigned in Court on 27th April 2016, charged with the offence of murder contrary to Section 203 as read with Section and 204 of the Penal Code. Particulars of the offence are that on the night of 10th and 11th day of April, 2016 at unknown time at Mlolongo Township in Athi River, Sub location, Sub-County within Machakos, murdered Miriam Ngii Maitha.

2. On 13/02 /2017, the Mental Assessment Report declared the Accused person was fit to plead after undergoing mental assessment. The charge and particulars of offence were read to the Accused person and he pleaded not guilty to the charge. The Court ordered that the Defense was to be availed the Witness Statements and documents to enable preparation of the trial. The Accused was represented by Mr. Muthama while the State was represented by Mr. Machogu and later on Mr. Mwongera took over that matter.

3. The Prosecution called a total of five (5) witnesses in support of its case. The hearing commenced on 22/2/2018 conducted before Trial Judge Hon. D.K. Kemei.

4. Pw1 was Paul Mutinda Sila, father of the accused, who was husband to the deceased. He testified on 22/2/2018 witnessed the post mortem that was conducted on the body of the deceased. He testified that the deceased was the wife to the accused whereas the accused is his son.

5. On cross – examination he stated that he was not present when the incident took place.

6. Pw2 was Stephen Maitha, father of the deceased, testified on 15/10/2018, that he was at the mortuary with his son one Danson Ngumba to identify the body of the deceased and witnessed the post mortem being carried out on the body of the deceased who was his daughter.

7. On cross – examination he stated that only witnessed the post mortem examination exercise.

8. Pw3 was Dr Waithera Githendu, Pathologist, testified on 29/10/2019, the post mortem examination carried out on the body of the deceased on 25/4/2016 by Dr Kimbi. She worked with Dr. Kimbi who was away on further studies at the time and whose handwriting she was familiar with.

9. According to the Post Mortem Report, the examination was conducted at Machakos Level 5 Hospital Mortuary on 25/4/2016. On examination externally, Dr Kimbi noted that there were lacerations on the front and back scalps; there were superficial skin abrasions on lower and upper limbs. On internal examination it revealed a fracture of the skull and that there was internal bleeding in the brain, the other systems were normal. The report indicated the cause of death was severe traumatic brain injury. The possible weapon could have been a blunt object/force in nature. Nail samples were collected for DNA analysis. The post mortem report was tendered in court as Exhibit -1.

10. On cross – examination she stated that the post mortem report should indicate the type of weapon used and that injuries that the deceased had could be caused by a fall from a height.

11. Pw4 was P.C. Mwiti Mati who testified on 15/1/2020, that on 11/4/2016 while stationed at Mlolongo Police Station, he was informed by Deputy OCS IP Mulinge that a person turned up and claimed he had killed a person. He was ordered to accompany the Reportee, Albanus Mulinge Mutinda whom he did not know before then but pointed him in Court. The Witness PW4, accompanied the accused to his home; a rental house near Masaku Plaza Mlolongo about 1 km from the Police Station. When the Accused opened the door, the witness PW4, saw where the body of the deceased was on the floor, The deceased’s head appeared to have been smashed and the brain matter was found splattered on the wall and there was blood all over and the deceased was dead. The Scenes of Crime Officers came and took photographs of the surroundings and the deceased. He identified the photographs in Court. Pw4 stated that there was a metal rod which had blood stains which he identified in Court and was produced as Exhibit -2. He confirmed he collected the exhibits and had the body of the deceased taken away to Machakos Level 5 Hospital Mortuary. He took the Accused to the Police Station. The Investigation Officer took over the matter.

12. On cross – examination Pw4 confirmed that he did not avail in Court, the OB extract concerning the incident. He stated that he suspected the accused could have used the metal rod to attack deceased. He confirmed that the analysis report indicated the bloodstains on the rod emanated from an unknown male.

13. Pw5 was PC Wilfred Katana who testified on 15/1/2020 that on 11. 4.2016 at 12. 30pm, a suspect turned up at the Mlolongo Police Station where he was based a disagreement with his wife and claimed that he had assaulted his wife using an iron rod and was turning himself in. while having a disagreement with her and had killed her. He testified the suspect led him and PW4 PC Mwiti to the house. The suspect opened the door and on entering saw everything was in disarray. He testified, that there were bloodstains on the floor and walls. The deceased’s body was taken to the Mortuary. He received the iron rod from PW4 and it had bloodstains and pieces of hair. He identified the metal rod that was marked as Exhibit-2.

14. PW5 later participated in the post mortem examination of the deceased where the Doctor extracted fingernails from the deceased’s body. Pw5 put them in a small container and forwarded to the Government Chemist through Exhibit Memo dated 21/6/2016. He produced the Exhibit Memo Form as Exhibit-3. He recorded Witness Statements of Witnesses. He established that the deceased was wife to the Accused person and the Accused committed the offence.

15. On cross – examination PW5, stated that he was the Investigating Officer of the case, the report made by the Accused was recorded in the OB and the OB was not presented in Court. He admitted that he did not present to Court any confession by the Accused person. The iron rod had blood stains and the analysis report indicated that the bloodstains on the iron rod emanated from unknown male.

16. At the close of the prosecution’s case, the Trial Judge Hon. D.K Kemei sought the parties file written submissions. The Trial Court established that a prima facie case had been established against the accused. The Trial Court delivered Ruling on 7/12/2020 under Section 210 CPC for a case to answer by the Accused and the Accused be placed on his defence under Section 306 CPC.

17. On 6/10/2021, this Court took over proceedings of the case. The Accused Person’s Counsel was absent, the Court granted orders to have Court proceedings to be typed and copies to be availed to the Accused person and/or Counsel and the DPP.

18. On 2/11/2021, the proceedings were ready and copies availed to parties and directions were scheduled on 4/11/2021.

19. On 4/11/2021, the Court Assistant explained Section 211 CPC to the Accused person. This is because the Prosecution of the case was completed on 30/9/2020 when the prosecution case was closed and the Trial Court gave parties opportunity to file submissions on no case or case to answer. The Défense on 27/10/2020 waived their right to file written submissions through Mr Maroa holding brief for Mr Muthama for the Accused person who informed the Trial Court that they would rely on the evidence on record. The Trial Court delivered Ruling on 7/12/2020 on a case to answer. The Defense Hearing was scheduled by the Trial Judge on 4/3/2021, 27/5/2021 and ordered that copies of proceedings were to be availed to the Defense.

20. Therefore, 14/11/2021 the Accused person’s advocate, Mr Langalanga stated that the accused person would give a sworn statement and would not call any witnesses.

21. Albanus Mulinge Mutinda (Dw1) testified on 14/12/2021 as follows; that he hailed from Makueni but he lives in Mlolongo. Miriam Ngii Maitha was his wife. He stated that on the material date 10 & 11 April 2016, he woke up in the morning and went to work as a hawker and returned home for lunch between 12. 00 – 1. 00 p.m and when he arrived at the Plot he found their child outside their house crying alone. He entered the house and found all their items all over the place and his wife was in the seat injured. He went with his child and reported the matter to the police station and explained to them how he arrived home and found the house ransacked and the wife injured and that he did not know who did it. They stayed at the police station for 2 hours and the police went to the house and it was confirmed that his wife was dead. He was put in custody and investigations started. He was later charged with the offence. He stated that he did not have any quarrels with his wife. The police neither booked his report nor took confession from him. The plot had tenants who lived there and if she had been killed at night then the tenants/neighbours would have heard. When the pathologist testified, the blood was not his wife’s nor his blood and he did not have any injuries.

22. In cross – examination the accused herein stated that there were various problems in their marriage as it happens in any marriage. He stated that on the material date he was at home with his wife and they did not have any problem and he did not beat or hurt his wife and he was with her in the morning and she was fine when he left her home for work. He found his child alone outside crying that is why he went to report the matter to the Police Station.He further stated that he reported the matter to the police because he was in shock when he found his wife in that state when he returned home. He said he is the one who took the police to his house after he made the report.

23. On re- examination he stated that on the date/time indicated in the post mortem report produced in court as exhibit 1 which is 11/04/2016 - 7. 30 a.m. he had already left the house and he did not have any CCTV hence not able to tell who was in the house at the time.

24. The defence closed their case on 14th December, 2021 and the Court ordered the parties to file and serve their written submissions within 21 days and a mention date of 2/02/2022 was given.

Submissions Prosecution written submission 25. Learned Counsel filed written submissions dated 2nd February, 2022. Mr Mwongera submitted that the prosecution had proved all the ingredients of the offence of murder against the accused beyond reasonable doubt. Counsel submitted as follows:-

26. On the issue of whether the accused was involved in the murder of the deceased, the testimony of PW.4 & PW.5 who are police officers clearly placed the accused person at the scene of crime. He is the one who reported the matter at Mlolongo police station stating that he had killed his wife and proceeded to take the police officers to the house where the body of the deceased was found. They witnessed that the house was in a mess and everything was strewn all over. The body of the deceased was on the floor. The head appeared to have been smashed and the brain matter was spattered on the walls. The murder weapon (metal rod) used to hit the deceased was recovered.

27. On the issue of malice; relying on Section 206 Penal Code the evidence proves that the accused person had malice aforethought because he inflicted injury to the deceased, killing her instantly.

28. On the identification the state relied on circumstantial evidence to place the accused person at the scene of crime as he is the one who personally reported the incident at Mlolongo Police Station and escorted the Police Officers (PW.4 & PW.5) to view his house at Masaku Plaza.

29. On cause of death the prosecution produced medical evidence vide Post mortem report that proved that the cause of death was severe traumatic brain injury and that the possible weapon could have been a blunt object.

30. In the case of Ronald Nyaga Kiura – Republic[2018] eKLR para. 22 stated as follows;“It is important to note that at the close of prosecution, what is required in law at stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebutted is offered by an accused person.In the case of Ramanlal Tambaklal Bhat -Vs- Republic [1957] EA 332 and 335 relied on by the state, the court stated as follows:-“it may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explaintion is offered by the defence.”

31. It was further stated that the Accused herein stated that he used to live in Mlolongo with the deceased Miriam Ngii Maitha who was his wife and that on the material date he left his house for his daily activities and returned back at around 12 noon to 1. 00 p.m and found that his wife had been injured by unknown people and he reported the matter at the Mlolongo Police Station. The evidence adduced by the accused cannot shake the prosecution cogent evidence for he is relying on alibi evidence which is an afterthought since no witness was called to corroborate the alibi. Reference was made in the case of Victor Mwendwa Mulinge v-Republic, the Court of Appeal rendered itself on the issue of alibi thus;-“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution, …in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all the reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought.”

32. The prosecution further submitted that it has proved its case beyond reasonable doubt and the accused ought to be convicted or murder contrary to Section 203 as read with Section 204 of the Penal Code.

Defense written submission 33. Mr. T. M. Muthama Counsel for the Accused person submitted that there were no witnesses who saw the accused person allegedly attack the deceased there was no evidence that linked the accused with the heinous attack on the deceased. The only crime the accused person did was to report finding his beloved wife dead.

34. The evidence of PW4 & PW5 who alleged that the Accused person reported the death of his wife and turned himself in, but no signed confession was taken by the police officers to confirm the allegations as required by Section 25 of the evidence Act which provides:-“A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.”

35. The above provision of the law was never adhered to hence the evidence of PW.4 & PW.5 is not admissible and cannot hold the threshold as provided for under Section 25 of the Evidence Act.

36. It was further submitted that the blood on the iron rod (murder weapon) was found to be from an unknown male and did not belong to either the deceased or the accused person. This then proves that both PW.3 & PW.4 fabricated the alleged confession by the accused.

37. Regarding the motive of the offence it is trite law that where the case against the accused depends almost entirely upon circumstantial evidence the element of motive is one which the court will have to consider. In the case of Libambula –vs- Republic [2003] KLR 683 the Court of Appeal stated as follows:-“We may pose, what is the relevance of motive here? Motive is that which makes a man do a particular act in a particular way. A motive exists for every voluntary act and is often proved by the conduct of a person. See Section 8 of Evidence Act Cap 80 Laws of Kenya. Motive becomes an important element in the chain of presumptive proof especially where the case rests on purely circumstantial evidence. Motive of course, may be drawn from the facts, though proof of it is not essential to prove a crime.

38. There was no motive advanced by the prosecution to show that the accused wanted to kill his wife. Both PW.1 and PW.2 the father of the accused and deceased respectively did not testify that was any tensions or bad blood between the deceased and accused.

39. The defence submitted that the prosecution did not establish a case against the accused person and he should be acquitted of the charges against him.

Determination 40. The issue for determination is whether the Prosecution proved that the Accused person committed the offence of murder contrary to Section 203 as read with Section and 204 of the Penal Code.203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.Malice Aforethought206. Malice aforethought shall be deemed to be established by evidence proving any one 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 of 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 the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.Burden & Standard of Proof (Section 107-109 Evidence Act)109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.111. Burden on accused in certain cases(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him…….In Miller vs Minister for Pensions [1947] 2 All ER 372 (Kings Bench) referred to in Republic vs Jane Muthoni Mucheru & Isaack Nganga Wambui alias Kikuyu High Court Criminal Case No 45 of 2018 ( Nakuru High Court) Formerly (Kiambu High Court Crim case 89 of 2016) Hon J.Ngugi J; the standard of proof in criminal cases was stated as follows;…..the evidence must reach the same degree of cogency as is required in a criminal case before an Accused person is found guilty. The 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 cause of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence; ‘of course it is possible but not in the least probable’; the case is beyond reasonable doubt, but nothing short of that will suffice.

41. To prove the elements of the offence of murder, in Republic vs Mohammed Dadi Kokane & 7 Others [2014] eKLR, Hon LJ M. Odero stated;a.The fact of death of the deceased [actus reus]b.The cause of deathc.Proof that the deceased met his death as a result of an unlawful act or omission on the part of the Accused person and lastly;d.Proof of unlawful act or omission was committed with malice aforethought. [mens rea]

Circumstantial Evidence 42. The evidence advanced by the Prosecution to prove the case consists of both direct evidence and circumstantial evidence.

43. Courts have considered the import and probative value of circumstantial evidence as follows;

44. The Court of Appeal in Criminal Appeal No 2 of 2002 Joan Chebichii Sawe vs Republic Kwach Okubasu LakhaJJA observed;‘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 hypothesis than that of his guilt. There must no other co-existing circumstances weakening the chai of circumstances relied on. The burden of proving facts that 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 party accused.’In Republic vs Kipkering arap Koske & Another 16 EACA 135, the Court held;“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 Abanga alias Onyango vs Republic Criminal Appeal No 32 of 1990(UR) referred to Republic vs Joseph Kioko Muthoka [2022] eKLR by Hon G.V.Odunga J; Abanga case supra it was held;It is settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three 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 Accusedc)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.In PON vs Republic[2019] eKLR the Court of Appeal considered parameters of circumstantial evidence as follows; in Musili Tulo vs Republic Criminal Appeal No 30 of 2013;[circumstantial evidence]…is as good as any evidence if it is properly evaluated and as is usually put, it can prove a case with the accuracy of mathematics as was stated in Rvs Taylor Weaver & Donovan (19280 21 Cr App R 20)but circumstantial evidence should be closely examined before basis of a conviction on it.In Ahamad Abolfahi Mohammed & Anor vs Republic [2018] eKLR the Court of Appeal stated 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 that 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….See also Omar Mzungu Chimera vs R Criminal Appeal 56 of 1998 & Neema Mwandoro Nduzya vs R [2008] eKLR on the import of circumstantial evidence.Analysis of evidence on recorda.Fact and cause of death of the deceased

45. Direct evidence was adduced by Pw4 P.C. Mwiti Mati & Pw5 P.C. Wilfred Katana that on 11/4/2016 they visited the scene led by the Accused person who reported the matter; a house near Masaku’s Plaza at Mlolongo, the house was the last one on the row of the houses. They saw the body of the deceased on the floor. The lady victim had already passed on. The deceased’s head appeared to have been smashed and brain matter was splattered on the wall.

46. Medical Evidence was adduced by Dr Waithera Githendu Consultant Pathologist who testified and produced Post Mortem Report on behalf of Dr Kimbi who conducted the Post Mortem. Dr. Waithera Githendu stated that she worked with Dr. Kimbi for 2 years and was/is familiar with his handwriting and signature. She confirmed Dr. Kimbi filled the Post Mortem Report and later went to undertake further studies. The Post Mortem Report produced as Exhibit 1 confirmed external examination of the deceased disclosed lacerations on the front and back scalps and superficial abrasions on the lower and upper limbs.Internal examination revealed fracture of the skull and there was internal bleeding in the brain. The nervous system had intracerebral hematoma. The cause of death was severe traumatic brain injury and the possible weapon could be blunt force. The evidence hereinabove confirmed the fact and cause of death of the deceased. There was/is no evidence on record that controverted these facts.b.Proof that the deceased met his death as a result of an unlawful act or omission on the part of the Accused person.

47. The evidence on record adduced by Pw4 & Pw5 Police Officers stationed at Mlolongo Police Station was/is that on 11/04/2016, a suspect turned up and claimed he had a disagreement with his wife and that he assaulted her using an iron rod and that she died. Pw4 stated he was the Crime Standby and was alerted by Deputy OCS IP Mulinge that someone had come claiming he killed someone. He identified him as the Accused person Albanus Mulinge Mutinda. He did not know him before this report.The Accused person led Pw4 & Pw5 to the house. He opened the house and the same was in a mess as everything was strewn all over. The deceased lay on the floor and the deceased’s head appeared to have been smashed and brain matter and blood stains splattered all over the walls and floor. Officers of Scene of Crime took pictures of the deceased’s body and the surroundings. There was a metal rod which had blood stains which was later produced as Exhibit-2 in Court. Pw 5 received the iron rod from Pw4 and it had bloodstains and hair. The body of the deceased was taken to Machakos Level 5 Mortuary and he was present when the post mortem was conducted. The Pathologist extracted finger nails from the deceased and Pw5 placed them in a container and filled the Exhibit Memo Form and took the finger nails and iron/metal rod to the Government Chemist. Pw5 Investigation Officer recorded statements of Witnesses and established that the deceased was the wife of /to the Accused person.

48. From the outline of the evidence above by Pw4& Pw5, there was no direct evidence that anyone saw the Accused person commit an unlawful act or omission that caused the death of the deceased. However, from the testimonies of Pw4 & Pw5 there is circumstantial evidence that ought to be evaluated to confirm whether or not the Accused committed the murder of the deceased.

49. With regard to the fact that the proceedings were partly conducted by the Trial Judge Hon. D.K Kemei and partly before this Court particularly only with regard to the Defense Hearing; the provisions of Section 200 (3) CPC were not applicable in that the provision provides;(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.

50. In the instant case this Court took over the matter after the Prosecution case was closed before the Trial Judge, parties’ through their respective Counsel were granted opportunity to file written submissions and thereafter, the Trial Judge after considering the evidence adduced, the law and submissions filed rendered the Ruling of 7/12/2020 and confirmed a prima facie case was established and set down the matter for Defense Hearing on subsequent dates.

51. The Ruling of 7/12/2020 is and remains a valid regular and legal order of the Trial Court with similar, concurrent, competent and equal jurisdiction to/with this Court and therefore this Court cannot reopen the Prosecution case in light of Section 200(3) CPC by recall of witnesses and /or hearing of the matter de novo because it would amount to rehearing a matter already heard and Ruling delivered by the Trial Court.

52. Therefore, this Court applied Section 200 (1) CPC that provides;1. Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—(a)………….(b)where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial.Section 201 CPC also provides;(1)…………(2)The provisions of Section 200 of this Act shall apply mutatis mutandis to trials held in the High Court.

53. It is on the basis of the above provisions that the Court informed Accused person of rights under Section 211 CPC and through his advocate elected to give an unsworn statement in Defense hearing and now the Judgment is underway.

54. With regard to the evidence on record as outlined above, the evidence of Pw4 & Pw5 was to the effect that the Accused person presented himself at Mlolongo Police Station and turned himself in as a suspect and claimed to have killed someone.

55. The Accused person in his Defense stated that on the said day, he came home for lunch and found all the items were all over the place and his wife was on the seat injured. In the plot there was no one and he went to report the matter to the Police Station where he waited for 2 hours and later he reported that he did not know who injured his wife. He claimed that he was with their child who was outside crying when he got home.

56. The Prosecution submitted that Accused person’s evidence an alibi was an afterthought and that since he reported his wife’s death to the Police that results to guilt of killing his wife. The evidence of Pw4 & Pw5 placed the Accused person at the scene of the crime.

57. The Defense submitted that relying on Section 107 -109 of the Evidence Act; he who alleges must prove the allegation. Accordingly, no evidence was adduced to the Court that the Accused person ever gave any confession to the said witnesses as alleged. Pw4 & Pw5 fabricated the alleged confession against the Accused person and from the word go treated the accused person as suspect before investigating the matter.

58. I gleaned through the proceedings of evidence adduced by the Prosecution and cross examination of witnesses especially PW4 & PW5 and during cross examination by Counsel for the Accused person, they were asked for the OB extract which would confirm the report made by the Accused person whether he confessed to killing the deceased or that he found her killed at their home when he arrived. That O.B. extract was not produced.

59. Be that as it may, even assuming that the Accused person confessed as is alleged, the alleged confession would not be legally admissible as evidence because the confession was not recorded or taken in compliance with provisions of Section 25 of the Evidence Act and Rule 4 of Evidence (Out of Court Confessions) Practice Rules, 2009 that provide that the Recording Officer;a.Shall ask and record the Accused person’s preferred language of communication;b.Shall provide the Accused person with an Interpreter free of charge where he does not speak English or Kiswahili;c.Shall ensure that the Accused person is not subjected to any form of coercion, duress, threat , torture or any other form of cruel inhuman or degrading treatment or punishment;d.Shall ensure that the Accused person is informed of the right to have legal representation of his own choice among others;e.Shall ask the Accused person to nominate a 3rd party to be present during confession and the particulars of the 3rd party and the relationship to the Accused person must be recorded

60. In the case of Josephat Manoti Omwancha vs Republic [2021] eKLR, the Court of Appeal observed as follows;“The provisions of law falling for consideration by the Trial Court and now this Court of Appeal with regard to regularity or otherwise in the taking, production and admission of the impugned confessionary statement as evidence proving Appellant’s culpability for the commission of the offence faced at trial are [Articles 49 (4) & 50 (2) (1)] COK 2010, [Section 25 A & 26] Evidence Act and Evidence (Out of Court Confessions) Practice Rules, 2009. ”25A.Confessions generally inadmissible1. A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.Section 26 of the Evidence Act makes the confession inadmissible if the Court finds the confession not properly and legally obtained.

61. From the above legal provisions tested against the evidence of PW4 & PW5 that the Accused person turned himself in and claimed he had killed someone, the said allegation was not obtained and recorded in accordance with mandatory provisions of law outlined above and such confession was not recorded and produced in Court during the trial. Therefore, the admission is not admissible and shall not form part of evidence considered in relation to the culpability or otherwise of the Accused person.

62. With the evidence on record, this Court considered the following strands of circumstantial evidence;a.The evidence of Pw1 & Pw 2; fathers of Accused person and the deceased respectively identified and witnessed the Post mortem examination and confirmed that the deceased and Accused person were married; man and wife. They were not strangers and knew each other intimately and lived together at the home where the deceased was found in. Therefore, the accused could leave and come home at any time without any suspicion from wife of anyone else.b.That morning of 11/4/ 2016, the Accused person stated in his defense he left home and went to work and came back at lunch time; presumably he left his wife, the deceased, at home who among other duties was expected to prepare him lunch. So it is likely, the accused came at lunch time or earlier before that as this was his house.c.Pw4 & Pw5 and Pathologist who conducted Post Mortem confirmed that the deceased’s head and skull was smashed with blood and brain matter spattered on the walls and floor of the house. PW3 confirmed the cause of death as severe traumatic brain injury from a blunt object.d.Pw4 & Pw5 testified they found the deceased on the floor and was dead. Pw4 & Pw5 testified they recovered a metal/iron rod at the scene that had bloodstains and strands of hair which was taken to Government chemist for analysis and the metal rod was produced as an exhibit in Court. The injuries on the deceased person and the metal rod recovered were as a result of an unlawful act and not compatible with self- infliction, the possibility of the deceased hitting herself with the metal rod with such force and/or severally without suffering pain and anguish and self-destructing to the point of the brain matter and blood to be spattered on the floor and walls. The injuries were, therefore, were as a result of a deliberate act of another person other than the deceased.e.Pw4 & Pw5 stated on 11/4/2016 they were led to the house by the Accused person who came to the Police Station and lodged a report. On reaching the house, the Accused person opened the door and they entered the house. Clearly, the house was not broken into as it was possible to lock and open the door. No breakage or broken parts(s) of the house or possible irregular or forcible entry passages were reported by the Accused person to the Police or observed by Police at the scene. There was no evidence anything/item that was stolen from the house. It is therefore, highly unlikely that an intruder made unlawful entry to the house in the circumstances and attacked the deceased and nothing was stolen from the house.f.Pw 4 & Pw 5 described the Accused and deceased’s home as situated near Masaku Plaza Mlolongo and it was the last house on the row of houses. The Accused person testified in his defense that on the said day, when he came back from work, he found nobody else in the Plot except their child outside crying. In light of these circumstances, the house that is secluded and neighbors were away at the time of day, and there is no evidence of any stranger who visited the deceased or evidence that the house was broken into or that there was any forcible entry in the house. The Accused is the only one person who came to their home after he came back from work for lunch or could have come to the house earlier.g.Who would have the special knowledge of the fact that the Accused left his wife the deceased at home that morning, and had the opportunity and access to return home without anyone suspecting him as he was husband of the deceased and lived together at their home and would have ample time while people are away to commit the unlawful act?h.The police officers PW.4 and PW.5 would not have known of the murder save for the report by the Accused person who was at the scene first.

63. The Accused in a sworn testimony stated that he left for work and when he came back for lunch he found his wife was on a seat injured. He went to report the matter to the Mlolongo Police Station. He reported that his wife was injured and he did not know who did it.

64. Pw4 & Pw5 confirmed receipt of the report from the accused person and that upon being led to the house by the Accused person, he opened the door and led them inside where they found the body of the deceased and the blood – stained metal/iron rod on the floor.Pw4 & Pw5 found the house was in a mess as everything was strewn all over, strongly suggesting commotion and struggle between the people in the house.

65. The Court has considered the totality of the circumstantial evidence on record and finds that the Accused and the deceased were married, familiar with each other and lived together. We shall never know how their marriage thrived and the related circumstances; however, the various strands of circumstantial evidence combined confirms that the Accused person was in their home previously before he left for work and left his wife as he stated he came back for lunch presumably, his wife was to prepare lunch, there was no break-in as he opened the door when he brought Pw4 & Pw5, There was no report or evidence of forcible entry or walls roof ceiling doors or windows tampered with/damaged parts of the house leads to the inference that a stranger did not gain entry to the house. Secondly, nothing was reported stolen, taken away or found missing from the house, it is unfathomable that the deceased self- inflicted repeatedly, the deadly head blows with the iron rod that splattered blood and brain matter on the floor and walls. Finally, the evidence of Pw4 & Pw5 placed the Accused person as the person at the scene of the crime, he reported to the Police Station, led them to the house where the deceased was found dead and the blood- stained metal rod on the floor.

66. These circumstances strewn together cumulatively draw the only logical and reasonable inference that the Accused person committed the unlawful act of raining blows with the iron rod that led to severe shattering of the deceased’s head and resulted in splattering of brain material all over the house.

67. The Accused person’s defense and alibi does not displace the Prosecution evidence. Pw4 & Pw5 placed the Accused person at the scene and led he them to where they found the deceased’s body and metal rod. The Accused claimed in his defense that he found the deceased injured and, on the seat, and went to report to the Police Station. If that was true, in the normal scheme of things, he ought to have either raised alarm seeking help to urgently, take the wife to hospital for treatment and save her life and not leave her unattended to without any medical care and instead rush to the Police Station to report that the wife was injured. Logically and reasonably, he would have rushed her to hospital to save her life and then reported the incident to the police. The Accused’s alibi that he left that morning to go to work and came back for lunch is plausible but he was/is the only one with special knowledge that his wife was at home and had free access and opportunity and ample time to commit the unlawful act. He also could have come back earlier. For these reasons, the accused’s defence fails to cast doubt on the prosecution case.

68. This Court noted with concern, that although the metal rod with blood stains and stands of hair and fingernails from the deceased were taken to the Government Chemist for analysis, no evidence that the Accused’s blood sample was obtained. The Report from Government Chemist was not availed and no explanation was made to this Court. In addition; hence the fact that the result was that the blood was of an unnamed male does not rule out the Accused person as submitted by the Defense as no comparison was made with accused’s blood sample.

(c). Proof of unlawful act or omission was committed with malice aforethought. [mens rea] 69. In R vs Tubere s/o Ochen 1945 12 EACA 63 the Court considered the following elements to discern malice aforethought;1. The nature of weapon used2. The manner in which it was used3. The part of the body targeted4. The nature of injuries inflicted either a single stab wound or multiple injuries5. Conduct of the Accused before, during and after the incident

70. In the instant case, the Post Mortem Report confirmed severe injury on the head on the deceased’s body and cause of death was/is severe traumatic brain injury. There were lacerations on the limbs. This means that the Accused person repeatedly hit the deceased on the head with the metal rod and nowhere else which strongly suggests that it was with the intention to maim cause grievous harm or kill the deceased.

71. The nature of the weapon was a metal rod, it was used repeatedly and it was aimed at the deceased’s head and when the deceased was injured the Accused person did not stop and rush the deceased to hospital but left her to die and then went to report to the Police Station.

72. The Accused person’s intention is inferred from the circumstantial evidence considered above. The accused person committed the unlawful act that resulted in the deceased’s death. His intention is depicted in the manner the unlawful act was committed; with a weapon, the metal rod recovered and produced in Court as exhibit. He repeatedly hit at the very sensitive part of a person’s body; the head, of the deceased with the metal rod with the aim to maim, seriously injure, cause grievous harm or kill the deceased.

73. The Accused’s intention is also exhibited by circumstances prescribed by Section 206 (a) & (b) of the Penal Code;(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 of 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

Disposition1. After careful examination of the evidence on record, this Court finds that the circumstantial evidence viewed together forms strong incriminating evidence and a compelling rational inference of the Accused person’s guilt and his defense and denial does not dispel the Prosecution case.2. There are no other existing possible circumstances to weaken the inference of guilt of the Accused person.3. For these reasons I find the Accused person guilty of the charge of murder and convict him of the said offence as prescribed under Section 203 of the Penal Code.

DELIVERED DATED & SIGNED IN OPEN COURT ON 4TH MAY 2022 (ONLINE CONFERENCE)M.W. MUIGAIJUDGE