[2023] KEHC 2424 (KLR)
The court found that while the prosecution had established that the deceased died as a result of unlawful acts by the accused, the evidence did not demonstrate malice aforethought required for a conviction of murder. The medical evidence and witness testimony showed the child died from chronic assault, but there was...
Source-derived case information.
- Citation
- [2023] KEHC 2424 (KLR)
- Parties
- Applicant: Republic; Defendant: Grace Kerubo Nyamesa
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E010 of 2022
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer
- Outcome
- Accused to be placed on her defence for the charge of manslaughter.
- Judges
- TM Matheka
- Legal Topics
- Murder, Manslaughter, Malice Aforethought, Criminal Liability, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Grace Kerubo Nyamesa
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer
Legal Issues
- 1 Whether the prosecution has established a prima facie case to require the accused to be put on her defence for the charge of murder.
- 2 Whether the evidence supports a charge of murder or a lesser offence such as manslaughter.
Ratio Decidendi
The court found that while the prosecution had established that the deceased died as a result of unlawful acts by the accused, the evidence did not demonstrate malice aforethought required for a conviction of murder. The medical evidence and witness testimony showed the child died from chronic assault, but there was insufficient proof of intent to kill or cause grievous harm. Consequently, the court held that a prima facie case of manslaughter, not murder, had been made out. The accused was therefore placed on her defence for the lesser charge of manslaughter in accordance with section 306(2) of the Criminal Procedure Code.
Court Disposition
Accused to be placed on her defence for the charge of manslaughter.
Orders
- The accused is placed on her defence for the charge of manslaughter contrary to section 202 as read with section 206 of the Penal Code.
- Proceedings to continue in accordance with section 306(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
23 paragraphs
Republic v Nyamesa (Criminal Case E010 of 2022) [2023] KEHC 2424 (KLR) (22 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2424 (KLR)
Republic of Kenya
In the High Court at Nakuru
Criminal Case E010 of 2022
TM Matheka, J
March 22, 2023
Between
Republic
Prosecution
and
Grace Kerubo Nyamesa
Accused
Ruling
1. The accused Grace Kerubo Nyamesa is charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on February 5, 2022 she murdered Ireneous Simiyu Makomere.
2. The deceased was the step son of the accused and one Moses Simiyu.
3. On the material date she and her husband requested the neighbours to drive them to hospital because the child was sick.
4. The neighbours drove them to Nairobi Women Hospital (Nakuru) where the child was declared dead upon arrival. The doctor who examined the body Doctor Njoroge Ruku noticed that the body had injuries and called the police.
5. Following investigations, the couple’s six-year-old child was interrogated, a postmortem was conducted and the cause of death was found to be blunt and sharp trauma, chronic assault to the body. The accused was charged with murder.
6. I have carefully considered the submissions by counsel Mr Mongeri on no case to answer. At this stage the only issue for determination is whether there is a prima facie case to warrant accused being put on the defence. (see Bhatt v Republic).
7. The prosecution has established death of the accused, through an unnatural cause. There is evidence that the child was punished by the mother, and the father through beating – there is also evidence that the child shitted on himself and was punished by the accused. I however do not see evidence of malice afterthought.
8. I am of the view that the prosecution has established a prima facie case of manslaughter contrary to section 202 as read with section 206 of the Penal Code. The accused person will be placed on her defence for the charge of manslaughter. In line with s 306(2) of the Criminal Procedure Code
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF MARCH 2023MUMBUA T MATHEKAJUDGECA WanjohiMs. Murunga for StateMr Mongeri for the AccusedAccused Present