[2022] KEHC 12167 (KLR)

Republic v Violet Khanali Wetende (Criminal Case 1 of 2012) [2022] KEHC 12167 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12167 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Case 1 of 2012

WM Musyoka, J

July 8, 2022

Between

Republic

Prosecution

and

Violet Khanali Wetende

Accused

Ruling

1. The accused person faced a charge of murder of Chrispo Wetende contrary to section 203 and 204 of the Penal Code, cap 63, Laws of Kenya. It was alleged that was done on December 29, 2011 at Elwaminyi village, Shibuli Sub-Location, Butsotso Central Location, within Kakamega County, she denied the offence, a trial ensued and seven witnesses testified.

2. PW1 was the husband of the accused and the father of the deceased. He received a report onDecember 29, 2011 that the deceased, a child of seven months had died in hospital. He rushed home. He detected that their child was emitting a strong smell like that of a chemical. When he questioned the accused, she said the child fell ill and she took her to hospital but she died. PW1 and the accused went to the hospital where the accused was alleging she took the child, but there were no entries relating to the deceased in that hospital. Eventually Pw1 was told that the accused had gone to the hospital with a dead child, and she was turned away. PW2 was the local village elder. He detailed hat he did after getting the report of the death, and said they referred the matter to the police after they established that the child did not die in hospital. Pw3 was the Assistant Chief of the area. He made a statement similar to that of PW2. PW4 was a Local villager, who responded to the report that a child had died at the home of the accused, and he visited the family. PW5 was the pathologist, who did post mortem on the body of the deceased. He established that this was strong smell of suspected chemical nature. He formed opinion that the cause of death was breathing failure due to suspected chemical poisoning. He harvested samples from the body which he handed over to the investigating officer for further toxicology tests. He said proof of poisoning was by chemical analysis and not naked eye. He explained that that was why he took samples and handed them to the investigating officer for chemical analysis.

3. The elements of murder that should be proved by the prosecution; the fact of death, the cause of the death, the role of the accused in the causation, and the malice aforethought of the accused.

4. In this case, it is common ground that the deceased died. PW1 saw the dead body, arranged for the body to be taken to the mortuary, and eventually identified the body to PW5 for post mortem purposes. PW5 carried out the autopsy on the body of the deceased.

5. The cause of the death is not conclusive. PW5 fored the opinion that the child died of breathing failure caused by suspected chemical poisoning. He stated that chemical poisoning is proved by way of chemical analysis, and cannot be determined by use of the naked eye. That was to say that he, as a pathologist, could not definitively say that the deceased died of chemical poisoning. He took out some tissues from the body, and handed them to the investigating officer as samples for chemical analysis. The cause of death could only be definitively determined upon the said chemical analysis being done. The investigating officer did not testify, and, therefore, there was no evidence of what happened to the samples. Consequently, the cause of death remained indeterminate.

6. The malice aforethought is the mens rea required for murder. It is defined in section 206 of the Penal Code. It takes the form of either an intention to kill, or to cause grievous harm, or to commit a felony with a death remitting therefrom. It could also take the form of indifference to the consequences of an act or omission cause of the death. Malice can, therefore, be express, implied or constructive. It can inferred or deducted from the facts or determined from oral or written statements made by the accused person either before or after the killing.

7. Malice aforethought is linked to the cause of death and the causation chain. In other words, it rised on the actus reus or physical element of the offence. In the first place, the causation chain has not been proved to be complete. It is suspected that the deceased died of chemical poisoning, yet no definitive evidence was presented as to whether the deceased had ingected poison. Samples were taken, for chemical analysis, to determine the nature or type of chemical substance that was in the body of the deceased, to assist in determining whether that chemical could cause death or was the cause of death. The investigating officer did not testify. It is not known what became of the samples. There was no evidence, therefore, of the nature of the chemical suspected to have caused their death. There was a break in the chain of causation without that evidence or link on that chain there would be no basis of asking the accused person to answer as to how that chemical found its way into the body of the child.

8. The other aspect to it is that no evidence was led pointing to the accused having done anything to the child that would have led to the death of the child. The case is, therefore, founded purely on circumstantial evidence and suspicion. Suspicion is not enough to build a case on, for the law requires proof beyond reasonable doubt. The break or gap in the causation of death created by the failure to subject the samples to chemical analysis or a present the results of such analysis as evidence, completely destroyed any strength in the circumstantial evidence that the prosecution was banking for.

9. The child died at the age of seven months. There is provision, under section 210 of the Penal Code, to charge the mother of infanticide. I have seen a charge sheet on record, drawn by the police under section 210. It would appear that the police were keen on infanticide, but the Office of Director of Public Prosecution thought otherwise. ( SeeNdunya v Republic [2008] KLR 135 (Omolo, O’Kubasu & Onyango –Otieno JJA).

10. Whatever the case, I am not persuaded that the prosecution has adduced adequate evidence, and have not established a prima facie case to require the accused to be put on her defence. I shall accordingly acquit her. She shall be freed from remand custody, unless she is otherwise lawfully held.

RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8TH DAY OF JULY 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Ms. Kagai, instructed by Office of Director of Public Prosecution, for the RepublicViolet Khanali, accused, in person2