[2023] KEHC 19382 (KLR)

Republic v Wangusi (Criminal Case 38 of 2020) [2023] KEHC 19382 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19382 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Case 38 of 2020

DK Kemei, J

June 30, 2023

Between

Republic

Prosecution

and

Eunice Nelima Wangusi

Accused

Judgment

1. The accused herein Eunice Nelima Wangusi was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on 9th August, 2020 at Kimalewa “A” village, Kuywa Sub-location in Bungoma Sub-County within Bungoma County she murdered John Kundu.

2. The accused denied the charge. The hearing kicked off in earnest on the 30th November 2021. The prosecution called eight (8) witnesses in support of its case. PW1, EK , a minor who did not know his age stated that he is a student and that the deceased had been his father. He stated that the accused herein who is his mother, killed his father using a stick and showed the court the stick he was referring to (Mfi-1). He testified that his parents were quarrelling outside but he did not know the cause of the quarrel and that it was his mother who started it. He told the court that the deceased whipped the accused who started crying. He testified that his father had attended a pre-circumcision ceremony and when he got back home, he refused to eat the food prepared for him by his mother. His mother picked up the stick and hit him with it in his presence, hitting he deceased on the back of his head prompting him to fall down. He testified that with the help his elder brother, Henry, the accused dragged the deceased into their house and then fled through a window dashing into a maize plantation.On cross-examination, he stated that the deceased whipped both the accused and Henry. He also confirmed that the deceased hit the accused on the thigh with a metal rod forcing the accused to rush outside and that the accused felt pain and thus hit the deceased with the stick used for fastening the door at night.On re-examination, he reiterated that the accused went through the window and that he was not aware of the person who opened the door to enable him exit the house.

3. PW2, Rosemary Majuma, testified that the deceased was her brother and that she also knew the accused, her sister-in-law. She recalled that on 5th August 2020 she was alerted that her mother had fallen sick and she rushed home to arrange for her treatment. The deceased remained behind as they rushed to the hospital, only for her to learn that he could not be traced in his house as their mother wanted him to visit her at the hospital. Together with her other sister, they went to the deceased’s home and found his door locked but with the window open. They pushed the window only to see the body of the deceased lying on the ground with a lot of blood on the floor. They raised alarm and the villagers quickly assembled, broke down the door and that the deceased was rushed to Kimilili Hospital for medical assistance but he later died. They found the deceased unconscious bleeding from the mouth and nose but did not see his wife. She maintained that the deceased’s son, Henry, informed them that the deceased was peacefully sleeping but that the said Henry appeared to be acting suspiciously forcing them to alert the villagers who promptly apprehended him.On cross examination, she told the court that on 9th August 2020, she was at her mother’s compound to organize how to take her to the hospital and that the deceased had visited at 7. 00 p.m. making his contribution towards the treatment of his mother. She testified that prior to the deceased joining her at their mother’s house, she heard screams coming from the deceased’s house but could not tell whether they emanated from a child or adult. She testified that she knew the deceased and his wife both of whom led a life of squabbles and fights and that on hearing the screams they did not go to the deceased’s house as it was their habit to fight all the time. She told the court that she never witnessed the incident as who kicked off the fight. She testified that the door at the deceased’s house was locked from the inside and that PW1 used to sleep in the house of his parents.On re-examination, she told the Court that she did not know where PW1 spent the night.

4. PW3, Annah Naliaka, testified that together with her sister while visiting her ailing mother they went and organized to have her mother taken to the hospital. On getting back from the hospital, the deceased’s elder son informed them that he was still sleeping yet it was 2. 00pm. In the company of PW2, they went to check on him in his house, knocked on his door but it was locked from inside. They pushed the window open and found the deceased lying on the floor seriously injured. His son Henry entered through the window and managed to open the door from the inside, that had been secured by a huge stick. She saw the deceased had injuries on the head as blood was oozing from the nose and mouth. The deceased’s wife was not at home. She added that the accused used to quarrel and fight with the deceased and that she had even neglected him.On cross examination, she told the court that the deceased joined them at their mother’s home at around 8. 00 p.m. while armed with a whip and that earlier in the day they had heard screams coming from the deceased’s house and it was clear that the same was made by the accused herein. She did not go to the deceased’s house to establish the cause of the screams and that the deceased stayed with them up to 10. 00 p.m. when he left for his home and that she did not hear any other screams after he left. She told the court that PW1 came to their mother’s home at around midnight but did not speak to them as he went straight to sleep. She told the court that they found Henry at home when they arrived from the hospital and that he was the one who entered the deceased’s house through the window. She told the court that the deceased and the accused shared a troubled marriage graced by frequent fights and that the accused used to assault the deceased in the past. She further stated that the deceased assaulted the accused that night once only.On re-examination, she told the court that she did not see the deceased assaulting the accused and that PW1 came to her mother’s house at midnight and went to sleep.

5. PW4, Robert Wafula, testified that the accused herein is his sister-in-law. He recalled that they were all gathered at his mother’s homestead trying to organize to take her to hospital for treatment. Later in the day, his two sisters alerted him that the deceased had been found in his house in a bad state. He rushed there and found the deceased bleeding from the mouth and nose. They quickly rushed him to the nearby Kimilili Hospital. He added that Henry, the eldest son of the deceased was not currently at home as he was searching for odd jobs. He stated that the accused was not at home when they discovered the body of the deceased yet she had been there the previous day.On cross-examination, he confirmed that the accused and the deceased did not have a peaceful marriage.On re-examination, he told the Court that there was a time the deceased and the accused lived peacefully.

6. PW5, Reba Namarome Muricho, testified that the deceased herein was his son in-law. She recalled on 9th August 2020 while asleep she heard a knock on her door and she immediately recognized the voice to be that of her daughter, the accused herein. She opened the door for her. She spent the night at her home and after breakfast in the morning, she excused herself to go check on her children. She told her that the deceased had threatened to stab her with a knife and that she claimed that he was a bhang smoker. She later came back to notify her that the deceased was being escorted to the hospital and claiming that the deceased was a drunk. She later on heard screams and later learnt from neighbours that the deceased had died. She tried to restrain the accused and to shield her from the wrath of villagers and her in-laws. She decided to escort her to the police station as the villagers were alleging that the accused had killed the deceased.On cross-examination, she confirmed that the marriage between the accused and deceased was one full of wrangles brought about by the deceased’s claim that the eldest son Henry had not been sired by him.On re-examination, she told the Court that she did not know if the accused had assaulted her husband.

7. PW6, Dickson Muricho Manyonge, testified that the accused is his elder sister. He recalled that on 10th August, 2008 at around 3. 00 pm the accused came to his house and informed him that she had a disagreement with the deceased the previous night and that she wanted to go back to her house to check on her children. She later came back to tell him that the deceased had been taken to hospital. She claimed that the neighbours had warned her not to go to her house as her husband’s condition was bad. Later, he learnt that the deceased had passed on while in hospital and was shocked that the villagers were alleging that the accused was behind the death of the deceased. As a family, they agreed to take the accused to the police for her own safety.On cross-examination, he told the Court that they took the accused to the police station for her own safety and that the accused and the deceased’s marriage was marred with frequent squabbles and that they used to intervene but it persisted. He told the court that the deceased used to take narcotics and was an alcoholic. He was a rational man when sober but such was not the case when intoxicated.

8. PW7, No. 104526 PC Naomi Chilo, testified as the investigating officer. She recalled that on 11th August 2020 while at the office, she was instructed by the DCIO to investigate the death of the deceased. The same had been reported at Chwele Police Station and that the murder took place on 9th August 2020. In the company of fellow officers, they checked the O.B and established that the accused herein had killed her husband. In the company of other police officers, they visited the scene and interrogated some witnesses and she established that there had been a quarrel between the accused and the deceased. The genesis of the quarrel was that the eldest son, Henry, had quarreled with some passersby and that the accused did not want the deceased to discipline the boy and thus the deceased assaulted her on the thighs. She established that the accused had picked up a stick used to secure the door and hit the deceased on the head twice with it and who fell unconscious and that the accused together with the son took him inside the house and left through the bedroom window. The stick was recovered at the scene and it had blood stains on it. She produced the huge stick in court as Pexhibit1. The accused was already in custody having been presented by her family and was later charged with the offence.On cross examination, he told the court that he took over the matter on 11th August 2020 when statements had not been recorded and that the report was silent on alleged murder by the accused. He disputed the evidence of PW2 and PW3 regarding the time the incident took place on 9th August 2020 as he interrogated PW1 and that his evidence was based on his version.On re-examination, he told the court that the incident occurred on 9th August 2020 at around 6. 00 pm and that the quarrelling between the deceased and accused person started as early as 4. 30 p.m.

9. PW8, Dr. Wanambisi Caleb Wata, testified that he was a medical officer based at Webuye Sub-County Hospital. He recalled that on 14th August, 2020 he conducted a postmortem on the body of the deceased herein. The deceased was of fair nutritional status. Externally, there was a swelling on the left parietal side of the head; he was oozing blood from ear and nose. Internally, there was bleeding from the hematoma below the scalp; blood clot on the brain substances and the spinal column and cord were both normal. He formed the opinion that the cause of death was severe head injury due to blunt trauma to the head. He presented the postmortem report as PExhbit 2. On cross-examination, he told the Court that the injury was on the left side of the head and that any blunt object such as a bed can cause such an injury.On re-examination, he told the Court that a fall that can sustain the injuries must be quite high.

10. The prosecution then closed its case. A prima facie case was later established to have been made out by the prosecution and that the accused was placed on her offence. She opted to tender a sworn testimony.

11. (DWI) Eunice Nelima Wangusi is the accused herein. Her case is that she had a peaceful marriage with the deceased and that he used to indulge in alcohol and smoke narcotics that made him so violent. She told the court that she did not murder the deceased and recalled on 9th August 2020 her son had not taken good care of the cattle and that the deceased confronted him. A scuffle ensued prompting her to intervene but he pushed her into the house where they tussled but the deceased fell and in the process hit his head on the bed. She told the court that at that time the deceased was armed with a panga, metal rod and a whip. She raised an alarm which attracted the attention of his mother and PW4. She told the court that she went to the police station at Chwele and was later charged with the offence of murder. She insisted that she had no intention to kill the deceased.On cross examination, she told the court that she was never involved in the sale of narcotics and that the deceased had never assaulted her except on that day. According to her, the deceased was armed with a panga, whip and metal rod and that the deceased assaulted her, pushing her towards the bedroom where he hit his head on the bed. She admitted that she pushed the deceased and that she was responsible for his death.On re-examination, she told the court that she had not planned the death of the deceased and that the deceased hit her on that day with a metal rod and that he also kicked her. She reiterated that she could not have intervened if there was no quarrel between the deceased and her son.

12. At the close of the defence hearing, the court directed that submissions be filed and exchanged by the parties.

13. Ms. Mukangu, Counsel for the prosecution submitted that there was malice aforethought as the evidence as availed by all the eye witnesses suggested that accused and the deceased had a tumultuous marriage and that the deceased had assaulted the accused earlier in the day thus she had the motive and reason to harm the deceased. Counsel relied on section 206 of the Penal Code and the case of Rex vs Tubere s/o Ochen (1945) 1Z EACA 63 Eastern Court of Appeal.

14. It was submitted that the identification of the accused was proper as she was married to the deceased and that PW1 is her child. PW1 narrated the events of that fateful day that he was home when the quarrel ensued when the accused assaulted the deceased and fled. The same was corroborated by PW5 who testified that accused came to his house on the same night to seek refuge. PW2-PW6 all testified to the fact that the accused’s marriage to the deceased was violent.

15. It was submitted that the prosecution was required to prove its case beyond reasonable doubt. Reliance was placed in the cases of Miller vs Ministry of Pensions (1947) 2 All E R 372 and Bakare vs State (1987) 1 NWLR (PT 52) 579. Counsel argued that the eye witnesses were clear and concise on their recollection of what happened that evening and that the description of the assault was concurrent with the observations by the pathologist. Counsel argued that the ingredients of the offence were proved beyond reasonable doubt and urged this court to convict the accused.

16. Vide submissions dated 27th March 2023 and filed on even date, Mr. Makokha, counsel for the accused submitted that for the prosecution to secure a conviction on the charge of murder, it had to prove the four elements against the accused person. He relied on the case of Anthony Ndegwa Ngari vs Republic (2014)eKLR which listed the elements as:i.That the death of the deceased occurred;ii.That the death was due to an unlawful act or omission;iii.That it was the accused who committed the unlawful act or omission which caused the death of the deceased; andiv.That the deceased had malice aforethought.

17. It was submitted that the burden of proof lies on the prosecution throughout the trial and that burden does not shift to the accused person. The prosecution witnesses did not point to the participation of the accused person and that the evidence did not support the ingredients of murder. He argued that no fingerprints were taken to establish that it was the accused who held the stick and no witnesses were availed to prove that the accused dashed through the window. Counsel further argued that the prosecution failed to discredit the defence tendered and also failed to place the accused person at the scene of the crime. He finally argued that there was no circumstantial evidence capable of inferring the accused person’s guilt as there was no direct evidence.

18. Having considered the evidence on record and the submissions of the parties, the issue for determination is whether the prosecution proved its case to the required standard of proof. It is trite that the burden to prove all ingredients of the offence beyond reasonable doubt falls on the prosecution in all instances save for a few statutory offences. Proof beyond reasonable doubt has however been stated not to mean proof beyond any shadow of doubt. The standard is discharged when the evidence against the accused is so strong that only a little doubt is left in his favour. (See Miller V Minister of Pensions (1947) ALL ER 372. ) In discharging the burden cast upon it by law, the prosecution is required to adduce strong evidence to place the accused at the scene of crime as the assailant since she does not have the burden to prove her innocence or justify her alibi. For a conviction to be secured, the court considers the strength of the evidence by the prosecution and not the weakness of the defence raised by the accused person.

19. If there is a strong doubt as to the guilt of the accused, it should be resolved in her favour. Hence, an accused must not be convicted because he or she has put up a weak defence but rather that the prosecution’s case strongly incriminates him/her and that there is no other hypothesis than the fact that the accused person committed the alleged crime. See Woolmington V DPP (1935) AC 462.

20. The offence of murder is defined by section 203 of the Penal Code as:“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”

21. Section 206 of the Penal Code provides 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 omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”

22. The prosecution in order to sustain a conviction must prove all the ingredients of the offence of murder. The elements of the offence as provided for under section 206 of the Penal Code are as follows:i.That the deceased is dead;ii.That the death was caused unlawfully;iii.That there was malice aforethought; andiv.That the accused person directly or indirectly participated in the commission of the alleged offence.

23. The post mortem report on the examination of the body of the deceased was duly produced as no objection was raised by the defence. Dr. Wanambisi Caleb Wata (PW8) who conducted the post mortem confirmed that the deceased was of fair nutritional status. Externally there was a swelling on the left parietal side of the head; he was oozing blood from ear and nose; internally confirmed that he was bleeding from the hematoma below the scalp; blood clot on the brain substances and the spinal column and cord were both normal. He formed the opinion that the cause of death was severe head injury due to blunt trauma to the head. To that extent, the first ingredient of the offence has been proved.

24. As to the unlawful nature of the death, the law presumes every homicide to be unlawful unless it occurs as a result of an accident or is one authorized by law. See Republic V Boniface Isawa Makodi (2016) eKLR that referred to the case of Guzambizi Wesonga V Republic (1948) 15 EACA 65 where it was held:“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable, it must have been caused under justifiable circumstances, for example in self-defense or in defence of property.’’

25. The deceased herein was found to have died from a blunt trauma on the head as there was a swelling on the left parietal side of the head; he was oozing blood from ear and nose; internally confirmed that he was bleeding from the hematoma below the scalp. There is therefore certainty as to the cause of death. Given the nature of injuries suffered by the deceased that resulted in his death as indicated in the post-mortem report, it can safely be concluded that death was the desired outcome of whoever the assailant was.

26. The evidence of PW1 was that the accused herein killed the deceased using a stick and showed the court the stick he was referring to (Mfi-1). He testified that his parents were quarrelling outside but he did not know the cause of the quarrel and that it was his mother (accused) who started it. He told the court that the deceased whipped the accused and she started crying. He told the court that when the deceased got back home, he refused to eat the food prepared for him by the accused. He stated that the accused picked up the stick and hit him with it in his presence. He stated that the deceased was hit on the back of his head and he fell down and with the help of his elder brother Henry, the accused dragged the deceased into their house and that the accused then fled through a window and dashed into a maize plantation. On cross-examination, he stated that the deceased whipped both the accused and Henry. He also confirmed that the deceased hit the accused on the thigh with a metal rod forcing the accused to rush outside and that the accused felt pain and thus hit the deceased with the stick used for fastening the door at night. The accused in his defence maintained that the evidence tendered by PW1 were contradictory and that he lacked comprehension of the time and what exactly occurred.

27. From the evidence adduced by PW1 it is clear that the accused was placed at the scene of crime. Indeed, the accused herself confirmed in her evidence that she was the last one to be with the deceased at the time of the incident. The accused also claimed that she had a peaceful marriage with the deceased that only turned violent when he was intoxicated and confirmed that she had no intention to kill the deceased since during their scuffle in the bedroom, where he allegedly pushed her, he slipped and hit his head on the bed. She claimed that a quarrel only arose between her and the deceased on that day when she interfered between him and their son Henry.

28. This is so because PW1 clearly placed the accused at the scene of the incident and was seen assaulting the deceased. The evidence of PW2 to PW6 confirmed the pre-existing squabbles and fights between the accused and the deceased. That evidence was not shaken by the defence. The prosecution was under duty to ensure that the allegation that the accused assaulted the deceased was with malice aforethought and not excusable. From the evidence of PW1, the same proved that the accused assaulted the deceased. The next issue for determination is whether the said assault was with malice aforethought. The evidence of PW1 was that the deceased and the accused were quarreling outside but that he did not know why. He told the court that it was his mother who started the quarrel when the deceased whipped her and she started crying. He told the court that the deceased had attended a pre-circumcision ceremony earlier in the day and when he got back home, he refused to eat the food prepared for him by the accused herein. He stated that his mother picked up the stick and hit him with it in his presence. He stated that the deceased was hit on the back of his head and who fell down. The accused, with the assistance of Henry, her other son, dragged the deceased into the house and that the accused fled the scene through the window into the maize plantation. The act of the accused in smashing the deceased on the head with a stick and then dragging him into the bedroom and then abandoning him to die is clear proof that she wanted the deceased to die. I find this was the factor giving rise to the malice aforethought. Suffice to add here that PW1 had stated that the accused hit the deceased on the back of his head with a stick and further, PW2-PW6’s evidence attested to the constant squabbles and fights between the accused and the deceased. All these provided the requisite malice aforethought in this offence. Hence, the accused’s claim that the deceased fell and hit his head on the bed and that it was not her intention to kill him is not convincing. Subject to the evidence of PW5, the accused never raised any alarm as she spent the night at her mother’s house alleging that the deceased had tried to stab her and never brought it to the attention of her father the events that had just occurred. The issue of motive was dealt with by the Court of Appeal in the case of Libambula v Republic [2003] KLR 683, when it held as follows:“We may pose, what is the relevance of motive here? Motive is that which makes a man do a particular act in a particular way. A motive exists for every voluntary act, and is often proved by the conduct of person. See section 8 of the Evidence Act Cap 80 Laws of Kenya. Motive becomes an important element in the chain on presumptive proof and where the case rests on purely circumstantial evidence. Motive of course, may be drawn from the facts, though proof of it is not essential to prove a crime”.

29. Learned counsel for the defence has submitted that the prosecution did not establish the element of mens rea on the part of the accused and that nobody witnessed the accused assaulting the deceased. However, the fact that the accused was seen assaulting the deceased left no doubt that she was involved in the death of the deceased. The evidence of PW1 perfectly established the motive (malice aforethought) for the assault.

30. Even if there is no other material evidence to corroborate the evidence adduced before this court as suggested by defence counsel, there are no co-existing circumstances which could weaken or destroy the inference of the guilt of the accused as the assailant as there is no escape from a conclusion that the crime was committed by the accused and nobody else. In the case of R v Kipkering Arap Koske & Another [1949] 16 EACA 135, the Court of Appeal for Eastern Africa held as follows:“In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of is guilt. The burden of proving the facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.”

31. The evidence of the pathologist (PW8) is that he noted externally that there was a swelling on the left parietal side of the head; he was oozing blood from ear and nose; internally confirmed that he was bleeding from the hematoma below the scalp did prove the accused assaulted the deceased prior to his death and thus the post mortem report corroborated the evidence of PW1. The severe injuries sustained by the deceased left no doubt that the accused intended to cause the death of the deceased. No wonder after the assault, the accused went to her father’s house alleging that the deceased had threatened to stab her and was a bhang smoker and that she cared less about the deceased until the following day. She did not even bother to take him to hospital for treatment or even call his family, who happened to be their neighbours, for help. She just left the deceased on the floor of their house while she sought refuge at PW5’s house and let nature take its course. Such kind of conduct leaves no doubt that she had the requisite malice aforethought to eliminate her husband who had become a bother to her due to his habit of alcohol consumption and narcotics use.

32. From the foregoing, the evidence of the key prosecution witnesses corroborated the existence of squabbles and fights between the accused and the deceased and further, PW1 witnessed the assault meted out on the deceased by the accused. This left no doubt that there are no co-existing circumstances which could weaken or destroy the inference of guilt of the accused since he was placed at the scene of crime. The accused’s claim that the deceased fell down and hit his head on the bed is not plausible as she was seen assaulting the deceased by his youngest son EK (PW1). That evidence was not dislodged by the defence. The accused confirmed that she had a peaceful union with the deceased save for when the deceased was intoxicated but the accused’s son (Pw1) was quite candid in his evidence that it was his mother who had assaulted his father, first. The said witness was not shaken even on cross-examination and therefore the element of a frame up does not arise at all. In any event, the accused was found at the house of PW5 where she sought refuge since the night of the incident and thus her claim that the deceased fell and hit his head must be rejected outrightly as she was placed at the scene of crime and she had fled from the scene of crime, as per the evidence of PW1. The accused must have been angered by the actions of the deceased who according to PW1 whipped her when she started with the quarrels. I find the accused had the requisite malice aforethought since from the injuries inflicted, it can be discerned that the assailant intended to achieve the desired result namely death of the deceased. Even if the deceased might have fallen and hit his head on the bed as suggested by the accused, the fact that she assaulted the deceased in front of PW1 with PW2-PW6 confirming the pre-existing squabbles and fights between her and the deceased, then she was placed at the scene of crime and must therefore be held responsible for the demise of the deceased. The actions of the accused in assaulting the deceased were not warranted since the alleged squabbles or her being whipped by the deceased could have been reported by the accused to her in-laws or to the clan elders for action. The killing of the deceased was therefore not justified in the circumstances. The defence evidence did not shake that of the prosecution which is overwhelming against the accused.

33. In the result, it is my finding that the prosecution has proved the charge of murder against the accused herein Eunice Nelima Wangusi beyond reasonable doubt. I find her guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and she is accordingly convicted therefor.It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 30TH DAY OF JUNE 2023. D. KEMEIJUDGEIn the presence of:Eunice N. Wangusi AccusedWekesa for AccusedAyekha for ProsecutionKizito Court Assistant