[2022] KEHC 15085 (KLR)

Republic v Rose (Criminal Case 1 of 2018) [2022] KEHC 15085 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15085 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Case 1 of 2018

SN Mutuku, J

October 12, 2022

Between

Republic

Prosecution

and

Stanley Nduati Rose

Accused

Judgment

The Charge 1. Stanley Nduati Rose, the accused, is charged with murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence are that on the January 4, 2018 at Edgewood Apartments in Nkoroi Area, within Ong’ata Rongai Township in Kajiado County, murdered Salome Mukuhe Kanini. The accused pleaded not guilty to this charge.

The Evidence 2. The prosecution called eleven (11) witnesses to testify in support of their case. I took over this matter when there were only two witnesses remaining for the prosecution. I directed that this matter proceeds from where the previous judge had left off. I took evidence of the remaining two witnesses, the scenes of crime officer, No. 49XXX George Odhiambo (PW10) and No. 237XXX IP Cornellius Kimutai Rotich (PW11) the Investigating Officer.

3. I have read and understood the evidence of the other witnesses who testified before Hon. Mr. Justice Nyakundi and Hon. Mr. Justice Mwita, who handled this case before I took over the same. I have considered the entire court record and the evidence of Jane Njeri Kanini (PW1) the mother of the deceased; James Kanini Muturi (PW2) the father of the deceased; John Njenga Kanini (PW3) brother of the deceased; Patrick Ngunjiri (PW4) and Geoffrey Chege Ngaruka (PW5). All these witnesses testified on what happened on January 4, 2018.

4. From their evidence, especially that of the parents of the deceased, PW1 and PW2 and her brother PW3, the accused and the deceased had relationship disputes. The deceased had moved back to her parents and was going to pick clothes from the home she had shared with the accused. Fearing for her safety, the parents told PW2 to accompany the deceased to pick clothes. PW2 was accompanied by PW4 Patrick.

5. The evidence on record shows that on arrival the accused pulled the deceased inside the house and locked the door making it impossible for PW3 and PW4 to prevent an attack on the deceased. PW3 called his parents who came together with PW5. All these five witnesses were present when the accused poured an inflammable liquid on the deceased, struck a match stick and set her ablaze. Evidence shows that the explosion from the substance which they suspected to be a petroleum product made them move back from the window and door of the house.

6. As a result of that fire, the deceased received burns on her body which led to her death. According to the evidence of Dr Francis Maina Ndiangui (PW7) the deceased died as a result of complications of burn wounds covering 98% of her body surface due to exposure to open flames.

The defence 7. The accused was placed on his defence. He testified on February 24, 2022 without taking oath. He told the court that he met the deceased in 2012 and they married in 2013; that in 2013 they got a baby boy; that he started a business for the deceased and that in 2016 they got a baby girl through C-section after which the deceased got sickly. He testified that they closed their business because of the deceased’s bad health; that he took a loan and bought a car without telling the deceased; that this caused disagreements between them and the deceased left to go back to her parent’s home and refused to return home.

8. He testified further that he went to his parents in law and was told to return on January 3, 2018; that he got late on that date prompting his father in law to tell him to return on another date. He testified that the deceased went home on January 4, 2018 and called him to tell him that she was home; that the accused went home and found the deceased at the road with Njenga (PW3). He asked Njenga what he was doing there. Njenga followed them inside the house and started removing laptop intending to take it out claiming it belonged to his sister (the deceased). The accused placed milk to boil.

9. He testified that he was drunk at the time and he pushed Njenga outside and closed the door. Njenga hit the door glass with his fist to open it but the accused fastened the door. The deceased was also trying to open the door. He told the deceased to select what he wanted to take away and even offered to assist ger to carry the items. The deceased held his shirt and they started struggling, throwing items at each other. The deceased fell and stood up. The meko cooker lit her clothes and she started burning. She called the accused to help. He took a blanket to cover her but she got burned. She was taken to hospital by neighbours. He was arrested and charged with this offence.

Determination 10. The offence of murder is created by section 203 of the Penal Code. This section provides that:Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

11. The elements to be proved by the prosecution are:i.The unlawful act or omission causing the death.ii.Victim of the murderiii.Identification of the person causing the death.iv.Malice aforethought

12. The burden of proof in criminal matters lies on the prosecution and does not shift. The standard of proof is proof beyond reasonable doubt.

13. The central issues to be resolved by this court in the determination of this matter is whether the prosecution has met the threshold in a criminal trial to persuade this court to make a finding that the accused is guilty of the offence of murder.

14. That the accused and deceased did not have a peaceful marriage is not in dispute. That at the time the deceased met her death the couple were not living together is also not in dispute. There is evidence to show that the deceased had left to go to her parent’s place. The parents of the deceased testified to this. PW1, the mother of the deceased, told the court that her daughter had complained of death threats from the deceased. She told the court that the deceased was living with her and that the accused had been given an appointment of January 3, 2018 to seek reconciliation but he did not make it to the meeting but rescheduled the meeting. This is also admitted in defence.

15. PW1 testified further that the accused called the deceased on telephone to go home and pick children’s clothes but the mother was apprehensive that the deceased might be in danger if she met the accused alone. She told deceased’s brother John Njenga (PW3) and another man Patrick Ngunjiri (PW4) to accompany her.

16. James Kanini Muturi (PW2), the father of the deceased confirmed the evidence of his wife PW1. He testified that the accused and the deceased had family dispute and that they were trying to bring the two families together to resolve the issues. He confirmed that he advised his wife, PW1 to have someone accompany the deceased to go home and pick children’s clothes.

17. The couple, PW1 and PW2, were called by their son PW3 and the friend of their son, PW4 who were at the scene and informed that there was a problem. They went to the scene. The followint is the evidence of PW1 on arrival at the scene:“We went to Kanisani where the couple lived. We found the house was locked with the deceased inside. It was a high-rise building. We took the stairs. There were many people. The accused was at the sitting. I saw him holding the deceased. The window was open. The deceased came to the window and told me that the accused wanted to burn her with petrol. In a short while I saw the accused take a match box and petrol ready to burn the deceased. The accused went towards the bedroom. He came out with petrol first. ………The time the accused brought the blanket trying to cover the deceased, the deceased jumped out of the bonfire (sic) through the window. We rushed her to the hospital.”

18. The evidence of PW2 in respect of the scene and what he witnessed is as follows:“On arrival, we confirmed the house was locked. I found the accused holding the hand of the deceased and a bottle with the other hand. We started to discuss how to intervene in order to save the deceased. We wanted to break the window to gain entry. The accused lit the petrol fire. The people there ran away. The people came with jerrycans, that is when the deceased managed to escape the fire. The deceased was talking but was seriously burned. We took her to Nairobi Women Hospital, Rongai. She was admitted at Burning Unit. On January 10, 2018 she succumbed to death.”

19. Further evidence by John Njenga, PW3, shows the struggle that had ensued before the deceased was doused with some inflammable liquid and set ablaze. He testified that “My father pleaded with the accused to leave the deceased alone. That is when he took petrol, poured on the deceased and lit the match box. I know the smell of petrol.”

20. Patrick (PW4), who had accompanied the deceased together with John Njenga her brother and who had been at the scene all this time, testified that:“Salome’s parents and other people went to the house. They requested the accused to open the door. The accused did not open the door. Salome moved close to the window. I saw accused pour some liquid on the deceased and struck a match. All this time I was at the veranda a few metres from the window. Fire engulfed the deceased. She started burning. I rushed to the metre box and switched off to avoid more fire. I went back to find people had broken the window which enabled Salome to come out. Her hair, face, hands and stomach were burnt.”

21. Geoffrey Chege Ngaruka, PW5, accompanied PW2 to the scene. He too witnessed what happened on January 4, 2018. He testified as follows:“On January 4, 2018 at my place of business PW2 came to me about 7pm. He informed me that there had been a disagreement between his daughter and her husband. He asked me to accompany him there. I accompanied him to the accused’s place. We took a taxi, went to the place and found many people. We went upstairs to first floor where more people were. The room was locked. PW1 called out the deceased’s name. She did not respond. We broke the window panes, pushed the curtain and saw the deceased holding window grills. PW1 asked the accused what he was about to do. The door was locked from inside. We were unable to break the padlock. The accused came with a match box. I saw him because there was light. He struck the match and set the deceased on fire. There was a fire explosion which forced us to move back. We broke the window so that we could save the deceased. The deceased came out of the window. She was seriously burnt.”

22. The above evidence, adduced by five eye witnesses, has convinced me beyond reasonable doubt that the accused poured some combustible substance on the deceased and set her on fire. With this evidence, I am unable to believe the evidence of the accused in his defence that the deceased fell and caught fire from the meko cooker. I reject that defence as untrue.

23. Doctor Francis Maina Ndiangui, PW7, testified that he conducted post mortem on the body of an adult female on January 11, 2018 at Kenyatta National Hospital. He observed that the body had signs of medical intervention. There was a feeding tube and a breathing tube inserted and another tube to drain urine and a catheter inserted in the vein. The body was fully bandaged. On opening the bandages, there were alienating first to second degree burns engulfing the body except for the scalp and anterior abdominal wall. There was a cut wound on the left lateral thigh measuring 7cm.

24. Internally, the pathologist found a tube in the trachea containing secretions from the lungs. The lungs were swollen and there was 50ml coloured fluid in the chest cavity. The doctor formed the opinion that the cause of death was complications of burn wounds covering 98% body surface area due to exposure to open flames. The body was identified to the doctor by Charles Kariuki Maina, an uncle of the deceased, and Charles Kuria Muturi, a cousin of the deceased.

25. The evidence tendered in support of the prosecution case proves beyond a doubt that Salome Mukuhe Kanini died as a result of 98% burns on her body and that the accused person, Stanley Nduati Rose, set her on fire after pouring some combustible substance on her. The act of setting another human being on fire is an unlawful act. Consequently, it is my finding that the identity of the person who set into motion events that led to the death of the deceased has been identified; the act causing death has been confirmed to be an unlawful act and the victim of that act is also identified.

26. The element of malice aforethought is the only issue remaining determination. Malice aforethought is defined under section 206 of the Penal Code as follows:“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 the omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

27. The evidence on record shows that the accused and the deceased were not living together at the time of her death. She has left the abusive marriage and gone back to her parent’s home. Her parents were attempting to reconcile the couple. On the day she met her death she had gone to her home with the accused to pick clothes for her children. What happened on arrival is narrated by Patrick and Njenga. The accused locked the deceased inside their house and attempts to get in and assist the deceased were unsuccessful. The accused went for the petrol and match box. Petrol is not one of the substances stored at homes due to its combustible nature. The fact that there was petrol on easy reach by the accused meant that he had bought it and stored it for this purpose.

28. It is strange that even with people around, the accused did not hesitate to pour petrol on the deceased and strike a match to set her on fire. This was done with an intention to kill her or to cause grievous bodily harm to her. With the evidence on record, I am satisfied that malice aforethought has been established beyond reasonable doubt.

29. Consequently, it is my finding, after subjecting all the evidence on record to serious scrutiny that all the ingredients of murder have been proved beyond reasonable doubt. The defence of the accused did not, in any way, shake the evidence against him. I find him guilty of the offence of murder as charged. He stands convicted of murder as defined under section 203 of the Penal Code.

30. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 12TH DAY OF OCTOBER 2022. S. N. MUTUKUJUDGE