[2023] KEHC 26413 (KLR)

State v Nyawanda (Criminal Case E022 of 2022) [2023] KEHC 26413 (KLR) (11 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26413 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Case E022 of 2022

RE Aburili, J

December 11, 2023

Between

State

Prosecution

and

Jeff Onyango Nyawanda

Accused

Judgment

Introduction 1. The accused person is Jeff Onyango Nyawanda. He is charged with the of the offence of murder contrary to section 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya.

2. The particulars of the offence are that on the evening of 21st August 2023 at Migingo village within Kisumu County, the accused murdered Roselyne Atieno.

3. The accused person pleaded not guilty to the charge against him and the matter proceeded to trial.

4. The prosecution summoned a total of ten (10) witnesses in support of its case which is summarised herein below.

The Prosecution’s Case 5. PW1 Frank Allan Nyawanda testified that the accused is his youngest brother and that the deceased, Roselyne Atieno, was his mother. He testified that on the 21st August 2022, at noon, he was at their Migingo home with both the deceased and accused. PW1 testified that he was in his mother’s house where they all had lunch before he left for Kisumu town at around 2. 00pm to watch football and meet a friend.

6. PW1 testified that in the evening, around 7pm he returned to their house in Migingo and found the house locked. He testified that he knocked the door but it was silent and that he subsequently tried to reach his mother who was the Head teacher at Migingo High School but could not reach her. PW1 testified that he went to the back side of the house where he saw the bedroom window open and saw the accused sleeping on the double decker bed and told the accused to open the door for him. He further testified that there was light in the neighbour’s houses but the deceased’s house did not have light.

7. It was PW1’s testimony that the accused did not open the door despite his constant appeals so he went to the front of the house where the accused gave him a bunch of keys and told him to open the door himself from the outside but it was impossible because of the way the door was locked from inside. PW1 further testified that the door was locked with a padlock from inside and so the correct keys did not matter but still the accused gave him the wrong keys. PW1 testified that he shouted at the accused who stated that he was still looking for the keys. He further testified that he knew that the accused was not stable so he went to the school’s staffroom to look for his mother, the deceased, to give him the keys as he knew that the accused could have developed a panic episode.

8. PW1 testified that in the staffroom, he found a teacher and asked him to call his mum on phone as his own phone was going off but the teacher was unsuccessful and could not reach her so he took PW1 to another teacher who also tried to call the deceased but all was in vain. It was his testimony that he decided to return to the house where he saw the accused outside the house with the door open so he ordered him back into the house as he was under strict instructions from their mother not to get out of the house.

9. PW1 testified that it was dark so he tried switching on lights but there were none. He testified that he went into the sitting room where he saw dark patches all around as if someone had painted black on the walls. It was his testimony that he went to his mum’s bedroom and after opening the door saw nothing then he proceeded to the bedroom that he shared with his brothers. PW1 testified that he went to the toilet and found it had nothing then he went to the next bathroom but could not open the door as it only opened partially as there was something blocking it.

10. PW1 testified that he opened the bathroom partially and at the end of the bathroom saw a burning suitcase so he assumed that the accused had burned his books. It was his testimony that he pushed the door harder and saw a hand that could not move so he panicked and went to look for the accused. PW1 testified that the accused was not in the sitting room and as he got out he saw him near the gate so he shouted but the guards watched as the accused walked away. He testified that he followed the accused running away so he got on a motorbike on which they went after the accused and on reaching the accused jumped off the motorbike and wrested the accused to the ground and led him to the nearest police station in Rabuor. It was his testimony that he found one police officer and told him what he had seen. He further testified that the accused was booked in and they waited for other police officers.

11. PW1 testified that he called his father and siblings then proceeded to the house where his statement was taken. He further testified that the officers took the deceased’s body from the bathroom to Star Hospital mortuary in Ogango. It was his testimony that he waited for his father and siblings to come to the mortuary where he had stayed the whole night until 5. 00am. PW1 testified that his father and uncle witnessed the post-mortem.

12. PW1 testified that a few days later he recorded his statement at Ahero Police station. He further testified that the accused had been struggling with mental health issues from time to time and that his father and the deceased had taken him to see health facilities at the Kisumu District Hospital and in Milimani. It was his testimony that before the incident, the accused had been taken to District Hospital as he had refused to take his drugs. PW1 identified the accused in the dock in court.

13. In cross-examination PW1 stated that he knew the accused’s mental condition and that when the accused came from hospital, the deceased gave him the drugs for his illness. He further stated that when the accused does not take his drugs he speaks to himself and is very manic. It was his testimony in cross-examination that there was no bad blood between the accused and the deceased. He further testified that he knew that the accused did not want to go to school and that he refused to take drugs saying he was tired.

14. PW1 further testified that he had argued with the accused because of the way he argued with the deceased and himself. He further stated that when he saw the accused that night, he had clean clothes. He further testified that members of the public wanted to lynch the accused but he pleaded with them to let him take the accused to the police station. PW1 denied that the accused bled after being beaten by the public.

15. PW1 admitted that he was not in the house when his mother died. He reiterated that he saw something like a suitcase burnt in the bathroom and that there was some fire still burning. PW1 testified that when the police came and removed the deceased’s body he saw her burnt beyond recognition. PW1 testified that on two occasions the accused was violent as he had tried to kill their other brother’s friend and that also a few weeks in Migingo before the deceased passed on the accused woke up at night and while they slept, locked all of them in their rooms and the doors had to be broken.

16. In re-examination PW1 reiterated that there was never bad blood between the deceased and the accused and that they only argued over him refusing to take drugs which she had bought and he was throwing away.

17. PW2 Malachi Nyawanda, the deceased’s husband and accused’s father testified that on the 21st August 2022 at about 8. 00pm he was at home when my son Frank, PW1, called him and informed him that the accused had killed his mother. He testified that he called his elder brother Ben Peter Nyawanda, who lived in Kisumu and asked him to go and check and he called him and said he found the deceased’s body being taken to the morgue.

18. It was his testimony that Moses Nyawanda drove him to Kisumu and they went to Star Mortuary and confirmed the deceased’s death. PW2 testified that he saw the deceased’s body wrapped in a bedsheet and that they stayed there shortly before going to sleep at his brother’s house in Mamboleo. He testified that the next day he went and recorded his statement with the police.

19. PW1 testified that he identified the deceased’s body prior to post-mortem. He further reiterated that there was no bad blood between him and the accused. It was his testimony that from 2016, the accused was a student at JKUAT and that he was called and told that the accused so they took him for medication. PW1 testified that the accused could get better and get worse and that two weeks before the incident, he had received the information of the accused locking up his siblings in their rooms and throwing the keys in the toilet. It was his testimony that he went and took the accused to hospital where he was admitted at Kalimani and given drugs.

20. In cross-examination PW2 stated that the accused was in his fourth year undergraduate when he started having drug related issues. He further stated that the accused had serious mental challenges from 2016 and that he could not tell the side effects that the drugs had on him but that the accused could talk while facing down and could get lost and speak to himself. He further testified that prior to the incident, the accused had gotten lost and he reported to the police station and was given an occurrence book number.

21. PW2 further testified that he did not witness the murder of his wife as he was far away in Uyoma. He further stated that there was no bad blood between the accused and his deceased wife but that they argued over the accused refusing to take drugs as prescribed as the deceased used to implore him to take the drugs as they were good for him.

22. PW3 Benson Ochieng Nyawanda testified that he resided in Kisumu and that the accused was his nephew while the deceased was his brother’s wife. It was his testimony that on 21st August 2022 at about 8. 00pm he was at his house in Mamboleo when PW2, his brother called him saying “Jeff” had killed his mother. He testified that he went to Migingo where they lived after calling the Bishop of Migingo to find out if he knew what had happened and he confirmed the deceased’s death.

23. PW3 testified that he then travelled with his wife and son to Migingo where he found the deceased’s body in a pickup. He testified that he entered the house and met the Bishop who prayed before they left for Star mortuary and waited for the body to arrive. It was his testimony that the body was placed in the mortuary and he waited for his brother to come from Uyoma then took him to his residence.

24. It was his testimony that on the 25th August 2022, he went to the morgue and identified the body of the deceased before post-mortem was carried out. He testified that he confirmed the body of the deceased to the doctor. He further testified that the deceased’s body was burnt. He testified that he recorded and signed his statement. PW3 identified that accused in court and stated that he had no bad blood with Jeff my nephew.

25. In cross-examination PW3 stated that he did not witness the murder incident but only received information from his brother of the death then went to the scene. He testified that he saw the accused the next day and not on the date of the incident. He testified that the accused had been a university student for some time.

26. It was his testimony that he knew the school compound but had not visited the deceased at her house. He further testified that before the incident, the accused had been sent away from the University and they had admitted him in hospital for mental treatment. He stated that he had never heard of the accused having disagreements with the deceased and that he lived with her even after treatment.

27. PW3 further testified that his brother lived at home but used to visit the deceased and stayed with her at school as she was the Deputy Principal. He reiterated that prior to the incident, the deceased and his brother had taken the accused to hospital for mental check-up after which the accused was left at Migingo as his father went to Uyoma.

28. In re-examination PW3 testified that there were times when the accused was well and could go back to the University after he was treated.

29. PW4 Victor Ouma testified that in August 2022, he used to work at Migingo Girls as a guard. He testified that he knew the accused as a son to the Deputy Principal, madam Roselyne who was now deceased.

30. It was his testimony that on the 21st August 2022 at about 6. 00pm, he was at the school gate guarding when he opened the gate for the accused to enter the school compound and after about 10 minutes, he heard noises from Madam’s house saying he should not let the accused out of the gate but the accused got out of the gate forcefully. He further testified that the accused’s brother came and they held the accused and that the accused’s brother stated that the accused had killed someone. He further testified that they went to madam Roselyne’s house and found her burnt body closed in the bathroom.

31. PW4 testified that the deceased’s body was not like of a human being. He testified that they called the principal who came and called the police who removed the body to the mortuary. It was his testimony that he recorded his statement with the police from Ahero. PW4 identified the accused in court. He stated that he had no issue with the accused and had seen him severally whenever he used to come home.

32. In cross-examination PW4 stated that he knew the accused but did not know him by his name but only as madam’s son. He stated that he had been a guard in that school for two months. PW4 further stated that he did not witness the murder of the deceased. It was his testimony that he got to work between 5. 45pm to 6. 00pm. PW4 further stated that it was the accused’s brother who called him to not let the accused out of the gate. He further stated that when the accused was arrested, he was beaten by bodaboda riders and bled. It was his testimony in cross-examination that he could not tell if the accused had issues with his mother but he had heard that the accused used to be sick and that day they had taken him from hospital.

33. PW5 Elizabeth Waithira Onyiego, a Government Analyst based at the Government Chemist, Kisumu produced a report dated 29th August 2022. It was her testimony that on the 25th August 2022, she received an exhibit memo and exhibits form from Corporal Wabomba of Nyando DCI, specifically a colourless liquid in a bottle marked ‘A’.

34. PW5 testified that it was required to establish any flammable petroleum product from the exhibit. She testified that she carried out an analysis and found that the bottle marked ‘A’ had kerosene which was a flammable petroleum product. PW5 testified that she compiled the report and signed it on 28th August 2022. She produced it as P. exhibit 1.

35. In cross-examination PW5 testified that her role was limited by the exhibit memo to identifying the type of liquid and if it was flammable.

36. PW6 Mr. David Kihara Muthomi, a Senior Government Analyst at Kisumu testified that on the 25th August 2022 at the Government Chemist, they received samples from PC Felix Wabomba of DCI requesting to determine from the samples biological evidence of;i.Finger nailii.Costal cartilage in a clear tube marked ‘A’ (for Roselyne Atieno) deceased,iii.Grey short sleeved shirt, stripped blue belonging the Jeff Onyango Nyawanda (accused|0 in a brown envelope marked ‘B’

37. PW6 testified that shirt ‘B’ was stained with blood of human origin and that the profile generated from the finger nail, grey short sleeved shirt was tabulated as per the report.

38. PW6 testified that it was their findings that the DNA profile generated from the blood stains on the shirt item ‘B’ matched the DNA profile from the Referenced finger nail and costal cartilage samples of Roselyne Atieno, the deceased. He testified that he signed the Report. PW6 produced the Government Analyst Report dated 25th August 2022 as P. exhibit 2.

39. In cross-examination PW6 testified that they received the samples on 25th August 2022 and analysed it. He further stated that they worked on the three samples and linked the DNA to the deceased and that they worked on the samples which they received.

40. PW7 Dr. Dickson Muchana, a Consultant Pathologist for Kakamega County Referral covering the larger Western Region testified that he had the pathology autopsy report for Roselyne Akajo Atieno dated 25th August 2022 and conducted at the Star Mortuary Hospital Mortuary, Kisumu.

41. It was his testimony that the body was of an African female who had mild obesity (fat around the belly); 5 ft; 4 inches (apparent) because the body was bent around the knee so it looked shorter. He further testified that it had been 4 days since death, and that the body was well preserved in formalin.

42. PW7 testified that the body had extensive dry heat burn with 85-95% of the body suffering 2nd and 3rd degree burns. He further testified that the body was burnt on the chest and abdomen cavity. It was his testimony that there were two stabs wounds; One below the left jaw and the other on the right upper side of the neck. Dr. Muchana further testified that there were missing left leg major bone with the left thigh, lower part missing.

43. Internally, Dr. Muchana testified that there were superficial burns in the chest involving left chest lungs with absence of soot in the trachea. He further testified that there was a blood clot behind the left breast bone to the right. It was his testimony that there were partial burns involving the heart and heart covering on the left side and that there were partial burns on the bowel loops, kidney and the spleen.

44. Dr. Muchana testified that on the head there were second degree burns involving the entire skull and left half of the trunk. He further testified that there were no fracture of skull bones. It was his testimony that he formed the opinion that the cause of death was severe blood loss secondary to sharp force trauma following assault and that the burns caused by the fire was a herring.

45. It was his testimony that he issued the burial permit No. 1492660 and took specimen for DNA being the nail and soft part of the rib and gave to the Investigating officer. Dr. Muchana reiterated that he found that the victim died before being burnt. He testified that he signed and stamped the Report on 25th August 2022. Dr. Muchana produced the post-mortem report as P. Exhibit 3.

46. In cross-examination Dr. Muchana testified that the deceased had missing body parts and that the burns contributed to lost body parts.

47. PW8 No. 78538 Corporal Felix Wabomba attached to DCI Nyando performing investigations testified that on the 21st August 2022 at around 2100 hours, he received a call from Chief Inspector Rose Rohea who instructed him to accompany her to Rabuor police station at a murder scene where the suspect Jeff Onyango who lived with his mother at Migingo High School had reportedly killed his mother.

48. It was his testimony that they went to Migingo Police station and thereafter together with scene of crime personnel proceeded to the scene. He testified that they got into the bathroom and found a dead body burnt beyond recognition. He further testified that the scene was documented and that the suspect had been arrested earlier and taken to Rabuor Police station.

49. PW8 testified that in the bathroom they recovered a colourless liquid in a brown cup and that the walls were full of soot. He testified that the body was removed and that he recovered a knife. It was his testimony that on the 22nd August 2022, he went to Rabuor Police station and escorted the suspect to Ahero police station. He testified that the shirt the accused wore was blood stained so he removed it and booked it as an exhibit in the Occurrence Book.

50. PW8 testified that on the 23rd August 2022, he took the suspect to Nyando Law Courts and obtained custody orders and that he investigated and found that the suspect was living with his mother at Migingo High School. It was his testimony that on the 25th August 2022 he went to Star Hospital where the post-mortem was conducted and the doctor harvested some exhibits – finger nail and costal cartilage.

51. He testified that he prepared 2 exhibit memos, one for the colourless liquid found in the brown cup and he received the report. He produced the colourless liquid exhibit memo dated 25th August 2022 as P. Exhibit 4. PW8 produced the exhibit memo on the finger nails, costal cartilage and shirt as P. Exhibit 5, the colourless liquid as P. Exhibit 6, the brown cup as P. Exhibit 7, the short sleeved checked stripped greyish shirt as P. Exhibit 8 and the knife with no handle as P. Exhibit 9.

52. PW8 identified the accused as the person in the dock in court.

53. In cross-examination PW8 stated that he did not find the accused person at the scene but that the accused was presented to the police by the brother and members of the public. He testified that when he saw the accused he had no injuries. PW8 further stated that a knife was recovered at the scene. It was his testimony that he consulted the Government Chemist who informed him that the condition of the knife would not produce any DNA.

54. PW8 testified that he never got any document on the health of the accused but received information that he was running away when he was arrested. He further testified that from his investigations, the accused committed the offence alone and was running away when he was arrested and taken to Rabuor police station.

55. On questioning by the Court on the condition of the recovered knife, PW8 testified that the knife was burnt and had soot so the Government Chemist said it could not produce DNA results.

56. PW9 No. 97529 PC Benard Serem currently attached to DCI Kisumu testified that he was gazetted vide 5548 dated 31st July 2015 as a Crime Scene Investigator. It was his testimony that on 21st August 2022, at around 2030 hours, he was requested by Corporal Sifuna of DCI Ahero to document a scene of murder at Migingo village.

57. He testified that he went to the scene and found a body inside the bathroom burnt beyond recognition and that he took the following photographs: -i.1 and 2 - General view of the deceased.ii.3 and 4 - Closer view showing a cup with paraffin.iii.5 and 6 - Closer view of the corridor showing yellow plastic containers with matchbox on top of it.iv.7 – 13 - General view of the main entrance to the bathroom and the body from different dimensionsv.14 – 16 - General view of the kitchen showing lantern lamp and the knife.

58. PW9 produced the 16 photographs as P. Exhibit 10 (a) – (p) and the certificate of photograph evidence as P. Exhibit 10 (q).

59. In cross-examination PW9 stated that he did not find the accused at the scene of crime. He stated that the knife was burnt and was at the bathroom. He further stated that his role was limited to documenting the scene and as such he did not inquire on what happened.

60. PW10 No. 259938 PC Samson Ngariba from Rabuor Police station testified that on the 21st August 2022, he was at the Report Office when the accused was brought by members of the public on suspicion of murdering his mother Roselyne Atieno Nyawanda. He testified that the accused was in good condition and that he informed the OCS Inspector Musera who also interrogated the members of the public who brought the accused and recorded their statements on what happened.

61. It was his testimony that the OCS later instructed him to book in the suspect so he booked him in OB No. 19/21/8/2022. PW10 testified that he carried out a search on the accused and placed him in the cells for further investigations. He identified the accused in court as the person he rearrested.

62. In cross-examination PW10 stated that he was only brought the suspect then rearrested him from the members of the public. He stated that the accused was not bleeding and that he did not see blood anywhere on his body. PW10 further stated that the people who brought the accused told him that the suspect was mentally challenged.

63. The prosecution then closed its case.

The Defence Case 64. The accused was placed on his defence and he elected to give a sworn testimony. It was his testimony that he was a student at JKUAT prior to the incident and that he was in the 4th year, had finished and was awaiting graduation. He testified that he started doing computer packages with his mother paying his fees and meeting his needs.

65. The accused testified that prior to 21st August 2022, he had eaten bad food and was having as a running stomach. He further testified that on the 19th August 2022 he feared that his father would take him to a rehab so he went and threw away the clothes and returned home on 20th August 2022 in the evening and told his father. He further testified that he lived with his mother in Migingo as his father lived in Siaya. It was his testimony that he had been in Siaya so his father took him to hospital and he was given drugs for his bad stomach and sedatives.

66. The accused testified that on the 17th August 2022 he was put on medication and that he had also previously in March and in July been admitted in Kilimani for treatment to reduce drug addiction and was given sedatives. The accused produced documents given to him at the hospital as D. Exhibit 1(a) – (i)

67. He further testified that together with his father and mother went to Kisumu District Hospital where he was given medication then discharged after which he went to a barber shop, we got to buy items from supermarkets, and we left Dad in town and me and my mother went to Migingo. It was his testimony that on arrival at home, his mother prepared dinner and they ate it as a family together with his brother Allan and their father after which his mother gave him drugs to take before he went to sleep.

68. The accused testified that on the 21st August 2022 his father left early for Siaya. He testified that he washed clothes and dishes then ate breakfast. It was his testimony that later on they ate lunch then his brother went to Kisumu town to watch football as he remained with his mother. He testified that it was voting time and so the schools were on recess. The accused testified that her mother worked from home after going to collect her books from the school next to them.

69. It was the accused’s testimony that after they ate he watched football so his mother reminded him to do the dishes. He further testified that his mother kept going out and back as she was responding to parents issues as she was the Deputy Head teacher. The accused further testified that his mother told him that they were to take tea that evening. He testified that his mother had gone back to school at 7. 15pm as he was resting in bed where he fell asleep.

70. The accused testified that his mother came back and knocked the door but he was asleep. He testified that he then felt as if some people had come to their house and had attacked them. It was his testimony that his mother tried to scream but she was beaten and that the attackers were demanding for money and her Mpesa details. The accused testified that the attackers stabbed his mother and some of the attackers went to her room and took money from her bedroom which she kept in envelopes as well as her jewelleries.

71. It was the accused’s testimony that two of the attackers raped him next to the bathroom and injected him with sedatives similar to what he used to take. He went to testify that the attackers put his mother’s body in the bathroom and burnt it and took all their phones so that they did not make contacts with the outside after which the thugs then forced him to stand, lock the door from inside and forced him to give them the key through the kitchen window as they wanted to burn the whole house.

72. The accused testified that he took a pail, fetched water and put out the fire. He testified that he collapsed and the next thing he heard was his brother knocking on the window saying he had tried to call but we were not picking phones. He testified that he gave his brother a spare key and he opened the door.

73. It was the accused’s testimony that his brother was angry at him and did not want to listen as he used to bully him. He testified that he ran outside the gate but his brother followed him with a motorcyclist. It was his testimony that his brother was bigger than him. He further testified that the crowd started beating him but some women stopped the mob from assaulting him.

74. The accused testified that he was arrested and taken to a police station. He testified that he never had any issue with his mother and that his mother used to pay his hospital bills and fees and was their breadwinner as his father had retired. He testified that he chose to live with the mother.

75. The accused testified that in prison he was prescribed the medication that he had previously been using and that Dr. Faith had been attending to him. He testified that he takes a dose in the morning and another in the evening. He testified that he gets tired and sleepy. It was his testimony that he loved his mother very much as he was the last born. He testified that his mother gave him fare all the time and sent him money.

76. In cross-examination the accused stated that Frank Allan Nyawanda, PW1 was his eldest brother and he was the last born. He further stated that on the 21st August 2022 he was with his mother at Migingo together with his brother Allan who prepared lunch before leaving for town sometime between 1pm to 2pm. He reiterated that they were attacked around 7pm on 21st August 2022 as it was just getting dark. He stated that his brother had not returned from town by the time they were being attacked.

77. The accused stated that they lived in the school compound which was guarded usually by 2 guards who did the patrolling at intervals. He stated that they were attacked by around 5 people. It was his testimony in cross-examination that the school was gated and the house was near the gate. He further stated that his mother came back from the office at around 6pm as it was getting dark. He further stated that he was in the house and had been watching television. The accused testified that when they were attacked, he hid behind the door. He testified that his mother screamed at once and that the people were demanding for money from her.

78. The accused testified that the attack took 30 minutes and that the attackers left before 7. 30pm. He further testified that the attackers had thrown the keys, knife and phones in the fire so that he could not make contacts with the outside. He further stated that he was not able to scream because they had sedated him and he was seeing darkness. He stated that he gave them keys.

79. It was his testimony that nobody had stated that the blood on his shirt was his mom’s. He testified further that his brother returned at about 8pm and that he ran away because his brother was harsh on him. He reiterated that the thugs came to steal but did not break in.

80. In re-examination the accused stated that he could not scream because he was sedated and there was smoke in the house. He reiterated that he hid behind the door before his mother was stabbed. The accused further reiterated that he ran away because his brother was drunk and he never wanted to listen to him. It was his testimony that his brother went for the knife in the kitchen saying he had killed their mother.

81. Counsel for the accused person submitted that the prosecution had not proved his guilt beyond reasonable doubt and that in the alternative, this court should find the accused person guilty but insane and refer the accused for medical treatment as was held in the court of Appeal decision in the case of Wakesho v Republic (Criminal Appeal 8 of 2016) [2021] KECA 223 (KLR) (3 December 2021) (Judgment), in view of the medical documents showing that the accused had been undergoing treatment for mental illness.

Analysis and Determination 82. The I have carefully considered the evidence adduced in this case and the arguments in submissions by both parties. The accused faces a charge of murder contrary to section 203 of the Penal Code. That section defines murder as follows:“Any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder.”

83. The prosecution has to adduce evidence to establish that the accused caused the death of the deceased by an unlawful act which lead to her death. The prosecution must prove that the accused action was motivated by malice. The essential ingredient for the offence of murder is malice aforethought. The circumstances which constitutes malice aforethought are described under Section 206 of the Penal Code as follows:“206. 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.”

84. The first issue for consideration is proof of death. In the instant case, there is no dispute of the deceased person’s death. This was confirmed by PW1,2,3 & 4, more so by the evidence of PW7, Dr. Muchana who carried out the postmortem on the deceased persons and after the examination, reached the conclusion that the cause of death was severe blood loss secondary to sharp force trauma following assault. Accordingly, it is my opinion that the prosecution has satisfied this element beyond reasonable doubt.

85. The next question is whether the death of Roselyne Atieno was caused by an unlawful act or omission. Article 26 (1) of the Constitution guarantees every person the right to life. The postmortem report prepared by PW7 revealed that the deceased’s cause of death was was severe blood loss secondary to sharp force trauma following assault. The doctor also found that there were two stabs wounds on the deceased, one below the left jaw and the other on the right upper side of the neck and that the burning of the deceased’s body was an attempt to mislead investigators on the cause of death which happened prior to the burning of the body as was evidence by lack of soot in the deceased’s trachea. In the circumstances, I am persuaded beyond reasonable doubt that the deceased person, Roselyne Atieno died out of an unlawful act.

86. The other question is whether it was the accused who unlawfully caused the deceased persons death. None of the prosecution witnesses actually saw the accused person kill the deceased. In essence, the prosecution case was based on circumstantial evidence.

87. In Ahamad Abolfathi Mohammed and Another v Republic [2018] e KLR, the Court of Appeal stated as follows on reliance on circumstantial evidence:“However, it is a truism 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 a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -“It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

88. In the same case, the Court of Appeal set out the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction. The court stated:“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 Subject person, and to no other person, as the perpetrator of the offence. In Abanga alias Onyango v R 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 the guilt of the Subject; 9iii) the circumstances taken cumulatively, should from 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.”

89. In this case, PW1, testified that he returned home to find the house locked from inside. It was his testimony that he tried to reach the deceased, his mother, but was unsuccessful. PW1 testified that he could not reach the accused, his brother, the accused herein, whom he had left at home with their mother till he went to the bedroom and saw him sleeping in his bed. PW1 testified that he asked the accused to give him the house keys so he could open the house but was unsuccessful as the accused gave him the wrong key and secondly, he realized that the house had been locked from inside.

90. It was his testimony that he left the house for school looking for help and when he returned saw the accused in front of the door that was now opened. PW1 testified that he then went room to room looking for his mother and when he got to the bathroom saw the deceased’s body which blocked the door as he tried to open it so he left to try and see if he could get the accused but the accused ran out and away through the gate and PW1 was only able to get to him because he boarded a motorcycle.

91. PW4 Victor Ouma corroborated PW1’s testimony by stating that he heard noises from the deceased’s house of someone saying he should not let the accused out of the gate but the accused got out of the gate forcefully.

92. Juxtaposed against this evidence was the accused person’s defence that his mother had gone to school as she was the Deputy Teacher and was dealing with parents, the accused also testified that the offence occurred during voting time and so the school was on recess. The accused further testified that on her return, his mother tried to call him but he was sleeping and so did not hear her however the accused went on to state that as he slept he felt like thugs were attacking them. The accused goes on to describe in details the actions of the thugs and states that the thugs stabbed his mother, the deceased, and burned her body and that during this time, he was hiding behind the door. The accused further revealed that two of thugs raped him and injected him with sedatives so he could not scream. The accused in his defense stated that the reason he ran away from his brother was that his brother used to bully him.

93. It is not lost on this court that the accused admitted that their house was next to the gate that was manned by two guards at any given time. However, PW4, who was the guard at the time of the offence did not testify of any commotion coming from the deceased’s house other than PW1 shouting for PW4 to stop the accused from crossing the gate.

94. It is inconceivable that PW4 would have missed any of the actions of the alleged thugs. Further to this, the issue of the accused person’s rape only arose during his defense and did not arise during any cross-examination. The accused person’s defence in my opinion is an afterthought. Even if I consider the same as an alibi, it even does not meet the conditions set out by the Court of Appeal in the case of Erick Otieno Meda v Republic [2019] eKLR., as he was at the scene where the deceased was found dead and her body burnt beyond recognition and it had to take forensic DNA analysis to establish who she was.

95. In my view, the accused person’s alibi was not corroborated. His alibi remained a mere regurgitation of the events of the date of the incidence from his own view. The alibi in my view was an afterthought and the same stands dismissed.

96. This court further notes that, the testimony of the accused’s brother, PW1 and father, PW2, was that the accused had a mental condition for which he was taking drugs and that at times when he did not take his drugs he would become violent as was testified by PW1, PW2 and PW3.

97. Even if this court was to assume insanity on the accused’s part, it is noteworthy that the law on sanity and insanity is contained in sections 9 to 12 of the Penal Code the starting point is Section 11 which provides that every person is presumed sane and responsible for his actions at all times including when he is alleged to have committed an offence because sanity is the normal and usual condition of mankind. Section 11 of the Penal Code is thus in the following terms:“11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.” 98. The presumption of sanity is, however, rebuttable, hence the recognition in criminal law, of the defence of insanity. This is provided for in Section 12 of the Penal Code, which provides for the application of the defence of insanity in the following terms:

“12. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is, through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.”

99. This section must be read together with section 9 of the Penal Code which provides:“9. (1)Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.”

100. This is the basis of the generally accepted notion that persons who cannot appreciate the consequences of their actions should not be punished if those actions happen to be criminal acts. Both section 12 aforesaid and the McNaughten Rules, in the old famous McNaughten’s case, 1843-10 C & F 200, recognize that insanity will only be a defence if it is proved that at the time of the commission of the offence charged, the accused person, by reason of unsoundness of mind, was either incapable of knowing the nature of the act he is charged with or was incapable of knowing that it was wrong or contrary to law. The test as to insanity is strictly on the time when the offence was committed and no other.

101. Of course, it would be virtually impossible to lead direct evidence of the exact mental condition of the accused person at the precise time of the commission of the crime for it is impossible to know the mind of a man.

102. In my view, the accused was mentally sound at the time when the offence was committed. The details of the attack with which he entertained this court with in a long winding defence indicate a mind that was able to decipher the actions that he was carrying out.

103. It is also clear from the evidence on record that the accused person was the last person to see and be with the deceased prior to her death. He was thus required to offer an explanation on how the deceased met her death. He stated that thugs attacked them a and stabbed and killed her. I reject that evidence as being unbelievable in view of the clear circumstances surrounding the death of the deceased. Sections 111(1) and 119 of the Evidence Act provides as follows:“111. (1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecuting, whether in cross-examination or otherwise, that such circumstances or facts exist:Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”119. The court may presume 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.”

104. In the circumstances of this case, it is my view that the accused person’s defence failed to offer any explanation as to how the deceased might have met her death. His defence seemed to have been made well-choreographed and therefore made up and in my mind, does not add up.

105. PW7 who carried out the postmortem testified that the cause if Elizabeth’s death was severe blood loss secondary to sharp force trauma following assault. Dr. Muchana further testified that the burning of the deceased was a red herring meant to mislead whoever was carrying out the postmortem or investigations on the deceased’s cause of death. This further points to the accused’s mental stability at the time of committing the offence. There was no evidence that on that day, the accused person failed to take his drugs on that particular evening and was thus liable to a mental episode.

106. In the circumstances of this case, it is my view that the accused’s explanation of how his mother met her death was a concoction of lies meant to derail the court and amounted to a mere denial.

107. Accordingly, I am satisfied that the prosecution proved beyond reasonable doubt that it was the accused who unlawfully caused the deceased person’s death.

108. Finally, on the question of whether there was malice aforethought on the part of the accused, Section 206 of the Penal Code defines Malice aforethought as follows:“206. 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.”

109. 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……”

110. In the instant case, the injuries sustained by the deceased point to the fact that the accused must have intended to cause the deceased grievous harm or death. Further, the burning of the deceased’s body beyond recognition clearly paint a mind that was bent on causing grievous harm and hiding evidence of how he had stabbed her to death.

111. In the circumstances, I am persuaded beyond reasonable doubt that the prosecution also proved this limb of the presence of malice aforethought on the part of the accused person beyond reasonable doubt.

112. Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the Information of murder against the accused person herein Jeff Onyango Nyawanda beyond reasonable doubt. I thus find the person of Jeff Onyango Nyawanda guilty of the offence of murder as charged. I convict him for the murder of Roselyne Atieno.

113. Sentence to be pronounced after records, mitigation and victim impact statements on 24th January, 2024.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 11TH DAY OF DECEMBER, 2023R.E. ABURILIJUDGE