[2024] KEHC 16331 (KLR)

Republic v Okindo (Criminal Case 15 of 2016) [2024] KEHC 16331 (KLR) (19 December 2024) (Judgment)

Neutral citation: [2024] KEHC 16331 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 15 of 2016

SM Mohochi, J

December 19, 2024

Between

Republic

Prosecutor

and

Grace Bisieri Okindo

Accused

Judgment

1. The accused, Grace Bisieri Okindo was arrested on 13th March, 2016 and charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The Particulars are that on the 12th March, 2016 at Ndimu Village in Lanet Area Nakuru County murdered Daniel Okindo Nyabando. It is noteworthy that the deceased was a spouse to the accused

2. The accused pleaded not guilty to the murder of the deceased who was also her husband. The prosecution called thirteen (13) witnesses to establish a prima facie case against the accused. The Court found that the prosecution had established a prima facie case against the accused and thus put her in her defence. The accused opted to remain silent

Prosecution’s case 3. PW1, Elijah Onyango Nyabando, the deceased’s brother recalled receiving a call from the accused with the deceased phone telling him that the deceased had been killed by thugs. He travelled to Lanet where they lived and found the body had been taken to the mortuary. He then went and viewed the body which had cuts and bruises on the head. He did not witness the autopsy. He returned to the house of deceased. He found the living room in disarray with a lot of blood on the floor.

4. He stated that from October 2015 the deceased and the accused had had a lot of problems with the accused complaining that the deceased had another wife. They were called home and it was agreed that the accused remains in the rural home and deceased remain in Nakuru to work and send her money. That the police recovered an axe in the house though he did not find the axe in the house.

5. On Cross-examination, he clarified that, he could not tell why the house was in disarray nor who was fighting, thought there seemed to have been fighting in the room. He also clarified that, he never witnessed the deceased being assaulted.

6. PW2, Kimani Mworia. He recalled that, on 12th March, 2016, at around 6. 00pm, Mama Chiku knocked at his gate telling him there was shouting coming from the house of accused. they both rushed there and at he called the accused twice and she said “karibu”. On enquiring, the accused told him that, thugs had beaten her husband. He ran at the sight of blood and returned with “Baba Jinu” who also took to his heels. Then others came with bright torches. They called the police and he left after the Police arrived.

7. It was his testimony that he did not see the body of the deceased when he arrived. The accused told them that, she had been shouting for help but nobody responded. She said thugs had beaten her husband. He also did not see the thugs. Power had gone off in the whole area so it was dark.

8. In cross-examination he stated that, Mama Ciku came to his house saying screams were coming from the house of the accused. He confirmed the accused was sitting in her living room. He did not see her beat the deceased. She also remained at the scene throughout.

9. PW3, Mary Mokeira Okinda. Deceased and accused’s daughter. She recalled on the fateful night her aunt; accused’s sister, called her at around 9. 00 pm from Kisii she told her that the accused called her informing her of the deceased had been beaten by thugs. She left immediately with her husband and on arriving they entered the house and used her mobile phone to see.

10. They saw the deceased dead in the living room. He lay on by back facing upwards. There was a lot of blood around his head. She saw shopping (groceries) scattered in the living room. She called her brother Joseph Makori to inform him. All this time the accused was in the house. She did not ask her anything.

11. She testified that, she stayed there until the body was removed to the mortuary but she did not go to the mortuary. She did not witness the autopsy but saw the body had injuries on the back of the head. She added that the accused and the deceased began having problems in 2015. The deceased told her that, the accused started problems and would tell him to sleep in the living room. The accused told her that there was no problem. The accused never complained to her.

12. In cross-examination, she confirmed that, the deceased used to work in transport lorries and at times would sleep away from home due to his work. The deceased never told her that he had differences with people at work. The home was in darkness power had gone off. She also confirmed that when she arrived at the home a crowd of neighbours were there. The accused said thugs had invaded the home and killed the deceased and escaped.

13. PW4 Hudson Nyakogo Okundo, deceased’s and accused’s son received a call from PW3 who him that, the deceased had been killed by thugs. He rushed home on arrival at 11. 00pm he found the deceased lying in a pool of blood on the floor. The blood was coming from a wound on the head.. There was a crowd there. The accused was seated on a chair in the house but did not talk to her.

14. He confirmed to not seeing a weapon in the house. He had not entered the bedroom. The house was in disarray with food items on the table which was unusual. The chief came and called the police who questioned the accused. they entered the bedroom and came out with an axe. He had not entered the bedroom. The axe had blood stains. The police took photographs at the scene. They later took the body to the mortuary.

15. He added that, the deceased and the accused had had disagreements for a longtime with the accused accusing the deceased of having mistress and would fight often. That, the deceased had even reported the accused to police at Mwariki. The police took away the axe.

16. PW5, Everlyne Moraa Otendo, deceased’s and accused daughter stated that she was called by her siblings who informed her of the incident and she rushed to her parents’ home in Lanet. She found the deceased lying dead in a pool of blood with the accused seated on a chair. It was dark she used a torch to see. There was a crowd there.

17. The police came, searched the house and recovered an axe in the bedroom. She was outside and did not see the axe. After the search the police went away with the axe. The deceased and the accused had a bad relationship prior .

18. In cross-examination, she confirmed that, the accused did not speak to her. she confirmed that she did not include in her statement that the accused had said the deceased was killed by thugs. She also confirmed that she stated in her statement that she saw and identified the axe. In re-examination she states that lied in her statement when she said that she said she saw the axe.

19. PW6 Joseph Makori Okindo. Deceased’s and accused’s son. He stated that he got a call from his aunt in Kisii telling him that there was a problem at home. He got to his parent’s home at 8. 00pm and found a crowd there. He used the light to enter the house. He found the chief and village elders inside the house. He saw the deceased lying in a pool of blood. He did not examine the body well. He was in shock and did not ask much.

20. He asked the accused what happened and she told him that thieves had invaded the house. He believed her. Later police came, they said they had recovered an axe. He did not see the axe. His parents had a lot of marital quarrels. Prior to this date.

21. PW7, Dr. Titus Ngulungu a government pathologist based at Nakuru PGH. He produced Dr. Wainaina’s report Exh.1 of the autopsy done on 14th March, 2016. On external examination it was noted; Marked swelling on the scalp, bruises on right eye, 3 rugged cuts over the occipital region, No defensive injuries noted. On internal examination it was noted; Comminuted depression skull fracture on occipital region and visible brain injuries ad lacerations. The cause of death was opined to be severe head injury due to multiple blunt force trauma to the head in keeping with hematoma.

22. PW8 James Macharia Karanja, chief stated that he got a call from the Head man called Kihumba who told him that his neighbour had been invaded by thugs and wanted help. That he then called the Assistant County Commissioner, and also informed inspector Kyalo (PW12).

23. He left and got there at about 10. 00pm. That he found a crowd of people and there was light from security lights of the neighbours . He went into deceased’s house. The deceased was lying in a pool of blood with a deep cut wound injury in his head. The accused was also in the house.

24. That he asked the Accused what happened and she said that, the deceased came and she gave him food. That she went back to the kitchen that on getting to the kitchen she heard the husband say ‘nimekuja’. That when she rushed to the sitting room, she met some thugs who run away. She raised alarm and neighbours came. After a short time two of the Accused’s sons came and started beating her demanding to know what she had done to their father.

25. The police came and conducted interrogation. Officers from scenes of crime also came. The police then decided to do a search in the house and found an axe behind the bedroom door of the Accused and Deceased. The axe had blood on it. He stated that he was there as it was recovered. The axe was blood stained.

26. On further investigations, they realized that there were disagreements between the Deceased and the Accused. The neighbours told them that the disagreements were centered on alleged infidelity of the Deceased. The accused was taken together with the axe to the police. There was nothing they saw to suggest that there was an attack by robbers. No witness saw any intruders to the home.

27. In cross-examination, he stated that he knew the deceased as a polite man and the accused as good person who had never committed any offence. He added that he did not know how many rooms the main house had but saw the sitting room and bedrooms

28. In the house there were shopping bags on the table. He had gone shopping. He also stated that he was with the police as they conducted a search of the house. The axe was found behind the door to the bedroom. However, no one had gone to the bedroom before they did the search.

29. When the sons came, they confronted their mother angrily accusing her of killing their father. He stated that it was not true that Accused did not commit the offence. That the axe found in the bedroom. Proves that it is the Accused who did it. If it were thugs they would have run away with the axe

30. In re-examination he confirmed that, the axe was found in the bedroom behind the door and only the police and him went into the bedroom.

31. PW9, Isaac Kihumba, stated that, on the said night, some neighbours knocked at his house and on opening, they told him that some thugs had broken into the deceased’s house. He joined them and went to the deceased’s house which was about, 20 meters. On getting to deceased’s house, it was dark and found the accused seated. She told them that some thugs had come and attacked the Deceased. They saw the Deceased lying on his side. He had an injury on the head and blood was oozing out. The body was not moving. They decided to inform government officials so he called the chief. The chief came. He interrogated the Accused.

32. In cross-examination he stated that, the deceased was a polite man and the Accused to was also a polite and pleasant person. The compound is a plot. It has a gate. It is made of mabati. There is a brick main house and a small mabati structure on the side. He was not sure what that structure was for. Did not know where the kitchen was. The compound is fenced with timber. He added that had already left when the police came. He denied knowing Isaac Okindo.

33. PW10, Inspector John Songa No. 235247 attached at Kisumu Crime Scenes Investigations, He was gazetted by the DPP as a Crimes Scenes Investigator, Gazette Notice No. 5548 of July, 2015. He stated that, on 13 March, 2016 at around 2. 00am he received a call from Insp. Kyalo who told him about a murder scene and needed him to go and process the scene.

34. He went with Insp. Kyalo and Cpl Nyaga now deceased. He found the body of an adult male. He came to learn later it was the Deceased in the case. He was in his house lying on the right side. He was on the floor. The floor had a pool of blood flowing towards the chimney. At the chimney there was blood splatter on the walls of the chimney.

35. There was a stool and a table. There was shopping things, bread, irish potatoes. He moved the body to see where the blood was coming from. He noted two deep cuts at the back of the head. Also, on the right side of the cheek, he had food inside his mouth.

36. After examining the body. He went to the bedroom where in the corner, He found an axe. It had a wooden handle which was about 98cm. The axe blade itself had blood spots. He took the axe and gave Cpl Nyaga for examination by government chemist. He took and processed forty-two (42) photos and a certificate produced bundle photos Exh 3 and Certificate produced and marked as Exb 4. He also identified the axe MFI 2

37. In cross-examination, he stated that, the body was fresh and clean. He had white sneakers, jumper and khaki trousers. There was fluid on the axe towards the bottom of the bundle and on the blade itself. He could not confirm it was blood. The government chemist analysis would confirm that. He would also not know who cause the injury.

38. PW11, Elizabeth Waithera Onyiengo government analyst at the lab of the Government Chemist Department. On 24th June, 2016 they received: Item A: An axe wrapped in Khaki paper, Item B: Blood sample in a vacutainer indicated as of Deceased Daniel Okindo Nyabando. Item C: Nail in a vacutainer indicated as of Deceased, Daniel Okindo Nyabando. They were requested to examine the items and determine if there was presence of blood and its origins.

39. They concluded that, the axe was stained with blood of human origin. On doing DNA analysis, the conclusion was that the DNA profile generated from the blood stains on the Axe (Item A) matched the DNA profile generated from the nail (items C) indicated as of the Deceased Daniel Okindo Nyabando.

40. She compiled the report and signed on 7th November, 2018. She identified the Axe MFI 2 and the blood strainers were on the blade. She produced the report Exh6 and the Exhibit memo Exh5 as evidence.

41. PW12, Insp. Titus Kyalo No. 235915 attached at Diani Police Station previously acted as the OCS Lanet Police Post. On 12th March, 2016 at around 11. 30pm. He was called by the Chief of Ndege Machine Location and informed him that, someone by the name Daniel Okindo had been attacked by thugs in his home in the area.

42. He immediately proceeded to the scene with several officers and on arrival I found the body of one man inside the house with deep cut on the back of his head, lying in a pool of blood. At the time, the wife to the Deceased, was inside the house. She told them that they had been attacked by thugs. Out of curiosity, they decided to do a search in the house in order to establish what had happened.

43. Upon the search, they discovered an axe which had been hidden inside the bedroom. It was at one corner in the bedroom under the bed. Upon looking at the axe, it had blood stain. They were fresh blood stains although it looked as though someone had tried to wash them. He produced the axe as Exh 2.

44. They suspected that in the circumstances, the Deceased was probably killed by the wife. He personally proceeded back to Nakuru town to collect officers from scenes of crime to process the scene and left 2 officers to guard the scene so that it is not disturbed further. Upon the processing the Accused she was arrested and the body was taken to Nakuru Municipal Mortuary.

45. The allegations of the Accused were that thugs attacked them. Upon inquiries, however, we were told by the neighbours that the Accused Person had wrangles with the husband prior to the incident. That is what fueled our suspicion. He added that he was not aware whether the blood on the axe matched that of deceased all he knew was that there was fresh blood on the axe.

46. PW13 Joseph Mburuge the Investigating Officer. He stated received a call on 14th March 2017 from DCIO Deputy Bahati requiring him to take over a case that had been handled by Bondeni Police Station. He was assisted by P. C Muganda who briefed him on the case that on 12th March, 2016 there was an incident at Ndimu village.

Accused’s Submissions 47. The accused through counsel submitted that the prosecution has not established a prima facie case. The collective testimonies failed to provide direct evidence linking the accused to the murder. That much of the evidence is circumstantial, speculative and based on hearsay.

48. Counsel contended that the cause of death does not alone implicate the accused. That no evidence was provided to refute the assertion that intruders were responsible for the victim’s death. Additionally, there was no proof of ownership of the alleged weapon nor were fingerprints obtained to substantiate the claim.

49. It was also submitted that, the prosecution’s reliance on past domestic disputes is insufficient to prove intention to kill or cause grievous bodily harm. That the presence of food in the deceased’s mouth suggests a normal interaction prior to the incident contradict the notion of premeditation.

50. Counsel further submitted that, the forensic evidence was inconclusive in that it does not link the accused directly to the crime and further does not establish the accused direct involvement.

51. Reliance was placed on Miller v. Minister of Pensions [1947] 2 ALL ER where the standard of proof was set. Further refence was made to R.T. Bhatt vs Republic [2021] eKLR. It was argued that the circumstances presented are not enough to exclude reasonable hypothesis of innocence.

Analysis and determination 52. I have considered the evidence presented and the sole question to be determined is whether the prosecution has established its case beyond reasonable doubt. The accused is charged with murder under Section 203 as read with Section 2024 of the Penal Code.

53. Murder is an offence of specific intention. The prosecution is tasked with the duty to established that there was a death, the death of the deceased was caused by the accused, actuated by malice and was premeditated.

54. The two sections provide that:-“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

204. Any person who is convicted of murder shall be sentenced to death.”

55. There is no dispute of the deceased’s death. This was confirmed by PW7 who produced the post mortem report EXh1 conducted by Dr. Wainaina who carried out the post mortem on the deceased’s body and reached a conclusion that the cause of death was severe head injury due to multiple blunt force trauma to the head in keeping with hematoma. Further and PW1 to PW12 all confirmed seeing the body of the deceased lifeless. This element was proved beyond reasonable doubt.

56. The second element to be proved is whether the death of the deceased was caused by an unlawful act or omission. The deceased had a deep cut would according to the witnesses and PW7 confirmed that there were lacerations to the scalp with the cause of death trauma due to multiple blunt force. PW7 also confirmed the blood on the axe EXh1 matched the DNA of the deceased.

57. The fact that the injuries were to the back of the head the attack came unawares and from behind. There is also no medical evidence or the possibility of natural causes. I am persuaded that the deceased death was as a result of an unlawful act or omission.

58. The third element to be proved is whether the accused committed the unlawful act or omission that caused the death of the deceased. None of the prosecution witnesses actually saw the accused kill the deceased they all came to the scene after the fact. The case is therefore based on circumstantial evidence.

59. The Court of Appeal in Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi v Republic [2018] KECA 743 (KLR) discussed circumstantial evidence and the tests to be applied before circumstantial evidence can be used to sustain a conviction .“However, it is altruism 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 as strong a basis for proving the guilt of an accused person just like direct evidence. Way back in 1928 Lord Heward, CJ, stated as follows on circumstantial evidence in R v. Taylor, Weaver & Donovan [1928] CR. App. R. 21:“It has been said that the evidence against applicant is circumstantial. So it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that is circumstantial.” (See also Musili Tulo v. Republic Cr. App. No. 30 of 2013).Before circumstantial evidence can form the basis of a conviction, however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the accused person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v Republic, Cr. App No. 32 of 1990 this Court set out the conditions 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.” (See also Sawe v. Republic (supra) and GMI v. Republic, Cr. Ap. No. 308 of 2011. In addition, the prosecution must establish that there are no other co-existing circumstances, which would weaken or destroy the inference of guilt.

60. The take away is that circumstantial evidence has to overwhelmingly point to the guilt of an accused person. It must also rule out any other reasonable speculation other than that of guilt of the accused. Finally, the circumstantial evidence must also exclude co-existing circumstances which would be prone to destroy or diminish such a speculation.

61. From the evidence, PW2 appears to have been the first on scene together with a Mama Ciku. He however took to his heels at the site of blood and came with another person who equally fled the scene but PW2 stayed. He stated that electric power had gone out. The accused was alone seated in her living room and he never saw a weapon in her hands or the beating the deceased. PW10 stated that the deceased was also clean and it appears he had come home with a shopping.

62. The Court of Appeal in upholding the conviction on circumstantial evidence in Samuel Ngugi Ndinguri vs R. [2002] 1 EA 179 noted that the accused was the last person to be seen with the deceased, could not explain how they parted and further the body of the deceased was retrieved from a pit latrine in the compound of the deceased. The circumstances in that regard inferred guilt.

63. The accused was the only one with the deceased, the first people on the scene did not see any thugs and found the accused seated alone in the darkness with the deceased. PW8 confirmed that there was nothing to suggest the presence of thugs in the house.

64. The PW10 and PW12 are the ones who conducted the search and found the axe in the bedroom. PW12 stated that their suspicion was aroused when the neighbours informed them that the accused and the deceased were prone to domestic wrangles.

65. They searched the house after the accused told them that the deceased was attacked by thugs. PW12 informed the Court that upon looking at the axe, it had fresh blood stains although it looked as though someone had tried to wash them.

66. The axe appears to have been kept amongst other farm tools as shown in Exh 3. PW7 confirmed the blood on the axe matched that of the deceased. The defence counsel insists that the prosecution did not prove that there were no thugs who might have attacked the deceased and further that there was no linkage between the accused and the murder weapon. There were no finger prints retrieved.

67. It was the testimony of PW8 the local administration, that the accused informed him that she served the deceased food and went to the kitchen and while there she heard the deceased say “nimekuja”. That when she rushed to the sitting room the thugs ran away.

68. The idea that thugs came into their house got through the gate, entered the house, found the deceased eating, had an axe or somehow accessed the axe, attacked and killed the deceased, then took the axe in the bedroom put it among other farm tools and then left without stealing or maiming the accused appears far-fetched.

69. PW1 testified that the accused called him with the deceased’s phone and told him that the deceased had been beaten by thugs. PW10 confirmed that the body of the deceased appeared clean. PW7 confirmed only two lacerations on the back of the head and there were no defensive marks on the body. That evidence is not consistent with beating.

70. Having been placed at the scene of the incident and the witnesses found the accused with the deceased, the accused had a duty to give an explanation of how the deceased met his death. We were not so fortunate. The possibility of the any person other than the accused being the begetter of the crime becomes inconceivable.

71. This Court under Section 119 of the Evidence Act can make a presumption the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

72. Based on the evidence presented I have no doubt as to the guilt. I am satisfied that the prosecution proved beyond reasonable doubt that the accused unlawfully caused the death of deceased.

73. The final element to be proved by the prosecution is whether the accused had malice aforethought when she killed the deceased. The accused did not offer any defence.

74. Section 206 of the Penal Code provides that:“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstancesa.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.”

75. In considering whether there was malice the Court of Appeal in Victor Owich Mbogo v Republic [2020] eKLR cited the case of R vs Tubere S/O Ochen [1945] 12 EACA 63 where the Court set out the perquisites for establishing malice aforethought thus;“To determine whether malice aforethought has been established to consider the weapon used, the manner in which it is used, the part of the body targeted, the nature of injuries inflicted, the conduct of the accused before, during and after the incident”.

76. Similarly, the Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR, held as follows:“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;i)The intention to cause death;ii)The intention to cause grievous bodily harm;iii)Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed……”

77. See also Nzuki vs Republic [1993] KLR 171

78. There were no cuts to the back of the head. The deceased still had food in the mouth. The deceased was having his meal and in the guise of darkness the accused attacked him once then repeated the act. The choice of weapon, an axe which is used to shape, cut and split wood, was then safely returned to the bedroom. The accused must have intended to cause the deceased grievous harm.

79. In restating the reasoning in Victor Owich Mbogo v Republic (supra) the Court held thus:-“No doubt malice aforethought was established in the present case when the appellant viciously struck the deceased on his neck and head with a panga thereby severing his spinal cord at the neck. By so doing, he must have known that he would grievously injure the deceased or worse still, kill him. As such, we are indeed satisfied that the circumstances leading to the death of the deceased and the nature of the injuries inflicted by the appellant, conclusively established malice afore thought.”

80. The serious fatal head injury would not have been inflicted with any other intention other than to kill the deceased. Compounded with the manner in which the axe was placed back in the bedroom. There was no explanation why a blood-stained axe was found in the bedroom to remove suspicion. To this end I am persuaded that the prosecution also proved beyond reasonable doubt presence of malice aforethought beyond reasonable doubt.

81. I therefore find, that the prosecution proved the charge of murder beyond reasonable doubt and hereby find the accused guilty of murder of the deceased herein. I convict her as charged under Section 203 as read with Section 204 of the Penal Code.

It is so ordered

DATED, SIGNED AND DELIVERED AT Nakuru ON THIS 19THDAY OF DECEMBER 2024________________MOHOCHI S.M.JUDGE