[2022] KEHC 13156 (KLR)

Republic v NWW (Criminal Case E002 of 2020) [2022] KEHC 13156 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 13156 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case E002 of 2020

SN Riechi, J

July 20, 2022

Between

Republic

State

and

NWW

Accused

Judgment

1. The accused NWWis charged with offence of Murder contrary to section 203 as read with section 204 of the Penal Code.

2. The particulars of the offence are that NWW on the November 23, 2020at Syombe village in Bumula Sub-County within Bungoma County murdered SVW alias S.

3. The case for the Prosecution is that the accused NWW had married SN (PW1) who had a child SV aged 1 year 2 months from a previous husband. The accused was therefore not the biological father of the deceased.

4. On November 16, 2020 the accused took S and the child to his home. On November 23, 2020 accused came back home while drunk at 3 p.m. She gave him lunch and started eating. The child, the deceased was playing under the table. The accused then held the child and started playing with the child. He held the child on the arm bit and threw her up and then dropped her down and she fell on the floor which is made of mud. He then stepped on the child. The child sustained injuries on the head. She held the child and screamed. The accused and witness took the child to hospital where she died while undergoing treatment. The child was then buried at the home of the biological father FW at Siyombe.

5. PW3 FW testified that he had married SN (PW1) with whom they had 2 children, the deceased being their second born. In October 2020 she left his home to go to her parents’ home but did not come back. Later he learnt that she had been married. Later he received information that deceased had been killed and body was at the hospital. He went there and confirmed the same.

6. PW4 Chrispinus Nabweka a Nyumba Kumi Official was in his house when he heard screams and ran there. On arrival he found many people present and Sentrine was screaming that accused had killed her child. He observed the child and noticed he had injuries on the head and was bleeding from the nose and ear. He advised the accused and S to take the child to hospital; where she died while undergoing treatment.

7. PW5 IW a neighbour of the accused heard screams from accused’s home she went there and found S the mother holding the deceased. She observed the deceased had injuries on the head. She advised S (PW1) and accused who took the deceased to hospital. The accused who was present denied injuring the child; and said that it is the child who had hit the door.

8. PW6 Dr. Harun Ombongi who performed the post-mortem on body of the deceased notified that he found that deceased was swollen on both temporal region, with mild abdominal extension. Upon opening the body he found the left lung had collapsed; gall bladder raptured on the temporal region. From the examination he formed opinion that cause of death was due to severe head injury as a result of blunt trauma.

9. The accused gave sworn evidence in his defence. He testified that he had 2 wives Juliet Barasa (first wife) and SN (2nd wife) who was the mother of the deceased. On November 23, 2020 he came home from the boda boda business and found the deceased playing. He left her and went to sleep. He then heard the child crying and the mother told her she had fallen down and was injured. He together with the mother took the child to hospital where she was admitted. At night he received information that the child had died. He confirmed during cross-examination by M/S Omondi for the State that he was not the biological father of the deceased who had been sired by Fred who after her death was looking for him and he had to hide for 2 weeks.

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

11. In order to prove a charge of murder against the accused person the Prosecution must establish:a)The fact and cause of death.b)The unlawful act or omission causing the deathc)That it is accused who caused the unlawful act or omission or inflicted the injuries that caused the death of deceased.d)That the accused committed the unlawful act with malice aforethought.

12. On fact and cause of death PW6 Dr. Haron Ombongi who performed the post mortem noticed that the deceased had a fracture of the skull and lung collapse caused by blunt force trauma. He therefore confirmed the fact of death and formed opinion that deceased sustained injuries from a blunt force trauma. The issue is who inflicted the injuries?

13. PW1 S the mother of the deceased testified that accused came home and was playing with the child by holding him up by armpits and then threw her dow. She then sustained injuries and both accused and deceased took her to hospital where she died.

14. The accused in his defence testified that the child was with the mother when he heard her crying and the mother told him that she had fallen down.

15. It is instructive that and is admitted by accused that it is only accused, said and the deceased who were in the house at the material time. It is also not contested that the child sustained injuries in the house when only accused and S (PW1) were present and that he died as a result of a fall in the house.PW1 in her evidence stated:“We stayed well until on November 23, 2020 he came home while drunk at 3 p.m. I gave him lunch. He started playing under the table. He started playing with the child. He held the child on the armbit and threw him up and dropped her down. He then stepped on the child. He injured her on her head; on the floor which is made of mud. He then stepped on the child. I took the child and ran out and screamed. I took the child to Miyanga hospital. The child was treated. It is accused who carried the child.

16. While if find that it is accused who was holding the child and playing with it when the child fell down, PW1 the mother of the child in her evidence agreed that the accused was playing with the child when it fell down. The holding and throwing up of the child even when it was meant to be playing with the child was in my view a reckless act which was not accompanied by an intention to kill or cause grievous harm, a primary element to establish malice aforethought to sustain a charge of murder contrary to section 203 of the Penal Code. I am however satisfied that the accused through a reckless act unlawfully caused the death of the deceased. Section 202 Penal Code provides:(1)Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter.(2)An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

17. I am satisfied that the accused unlawfully caused the death of deceased. I therefore find accused NWW guilty of offence of manslaughter contrary to section 202 as read with section 205 of the Penal Codeand convict him accordingly.

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