[2023] KECA 1341 (KLR)

Tallam v Republic (Criminal Appeal 67 of 2018) [2023] KECA 1341 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KECA 1341 (KLR)

Republic of Kenya

In the Court of Appeal at Eldoret

Criminal Appeal 67 of 2018

F Sichale, FA Ochieng & LA Achode, JJA

November 10, 2023

Between

Rebecca Tallam

Appellant

and

Republic

Respondent

(An appeal from the judgment of the High Court of Kenya at Eldoret (G. W. Ngenye, J.) delivered on 28th October, 2014 in H.C.CR.C. No. 54 of 2009 Criminal Case 54 of 2009 )

Judgment

1. The appellant was convicted for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the offence were that; on 17th January, 2008 at Tenges Trading Centre in Baringo District of the then Rift Valley Province, the appellant murdered Alice Ruto.

3. The appellant denied the charges and soon thereafter a trial ensued. The prosecution called 6 witnesses whose testimonies were as follows:

4. PW1, Wilson Koima was the husband of the deceased. He testified that on the material day the deceased attended the burial of her in- law. At about 9pm PW1 was told to go to Tenges Hospital. He found his wife dead.

5. Although PW1 was told that his wife had been poisoned, he told the court that he did not witness anybody administering the poison to his wife.

6. PW2, Mary Tiriki, is the mother of the deceased. She testified that she was together with the deceased at the burial of her son-in-law.

7. PW2 said that the appellant invited them to her home, indicating that she wished to condole with them. At her house, the appellant served PW2 and the deceased with alcohol. The deceased took two sips and said that the alcohol was too strong. PW2 said that she would take the alcohol left by the deceased, but the appellant refused. The appellant took away the glass with the remaining alcohol.

8. Thereafter, PW2 and the deceased left the home of the appellant.PW2 followed the main road, whilst the deceased used a short-cut. Before long, a lady called PW2 and told her that the deceased had fallen down. PW2 bought glucose from a nearby shop, and administered it to the deceased. However, the glucose did not help, prompting PW2 to take the deceased to hospital.

9. During cross-examination PW2 said that it was the alcohol that caused the death of the deceased. However, she did not see the appellant put poison into the glass which was used by the deceased. It was the testimony of PW2 that prior to the taking of the alcohol, the deceased was well. And she did not have any complaints.

10. PW3, Eunice Namuyu Njogu, is a government analyst. She received a specimen from Kabarnet Police Station. The specimen was made up of liver, stomach, kidney, blood, gastric contents and suspected poison.

11. After conducting an examination of the specimen, PW3 found that;“(1)Carbofuran (Furadan) a carbamate beset was detected in the suspected poison and the stomach of the deceased. Carbamate besets are poisons and may be harmful to humans when ingested.”The government analyst also detected alcohol (Ethanol) in the blood of the deceased. However, during cross-examination PW3 made it clear that alcohol was not lethal.

12. PW4, Dr. Gilbert Cheruiyot is a medical doctor, who was based at Kabarnet District Hospital at the material time. When he had conducted a post-mortem examination on the body of the deceased, the doctor indicated that the cause of death was unknown. He went on to explain that he forwarded to the Government Chemist, the specimens which he had obtained from the body of the deceased.

13. After getting the report from the Government Chemist, PW4 concluded that;“… the cause of death was Cardiac Respiratory Arrest secondary to poisoning.”

14. PW5, PC Francis Owino was based at the Kabarnet Police Station at the material time. Whilst working at the Report Office Desk, PW5 booked a report for an offence of murder. The report was made by members of the public, who had also escorted the appellant to the police station, because she was suspected to have committed the offence.

15. PW5 testified that the members of the public handed over to him a substance which was allegedly poison which was contained in a plastic tin, that was wrapped in a blue polythene paper.

16. PW6, PC Stephen Okwara was the Investigating Officer. He was assigned that responsibility by the OCS Kabarnet Police Station, Chief Inspector Joshua Kasero. The OCS gave him the task at 6pm.

17. When PW6 reached the police station, he found the appellant, together with members of the public, and the body of the deceased. PW6 recorded statements of witnesses who had accompanied the appellant.

18. His investigations revealed that after the appellant had welcomed the deceased and her mother (PW2) into her house, the appellant;“… went to a nearby shop and bought alcoholic spirit called ‘Kienyeji Spirit’. She served the two in two different glasses, and the accused drunk the one that was remaining in the bottle.”

19. When the deceased complained that the alcohol was too concentrated;“The deceased’s mother then asked the deceased to give her the alcohol that was in her glass. However, the accused grabbed the glass the deceased was holding, so that she could not pass it to her mother. Then the deceased and her mother rose up to leave.At a distance of about 200 metres, the deceased collapsed and fell down. That is when her mother and members of public rushed her to the nearest dispensary. But upon arrival, she was pronounced dead.”

20. According to the Investigating Officer, the appellant was arrested at her house, between 2pm and 3pm. Considering that PW6 was first given instructions by the OCS at about 6pm, which was after the appellant had been escorted to the police station, it would be inexplicable how PW6 could have seen the container of poison at the appellant’s house, yet the said container had already been presented at the police station. That is the reason why the appellant submitted that there was an inconsistency in the evidence tendered by PW5 and PW6, respectively.

21. Put to her defence, the appellant in her unsworn statement told the court that on the material day, after she had prepared lunch for children, she went to her place of work. On the way to the shop, she met the deceased’s father who told her about someone who had been taken to hospital due to drunkenness. She decided to go to the hospital but the chief advised her not to. She returned home and shortly thereafter, the police came and arrested her. She denied being with the deceased and PW2. She told the court that she and the deceased were close friends and they never quarreled.

22. The learned Judge held that there was proof of death from the post mortem report which indicated that the deceased died of cardiac respiratory failure secondary to poisoning. He was satisfied that the conduct of the appellant showed that she knew the contents of the deceased’s glass, with which she had specifically targeted the deceased, and therefore, the death of the deceased was caused by the unlawful act or omission on the part of the appellant. The appellant had on her own volition invited the deceased and PW2 to her house and also bought for them alcohol. The learned Judge held that the analyst report linked the content collected from the appellant’s house with what the deceased had ingested, and that the circumstances under which the alcohol was administered left no doubts that the appellant was the author of the deceased’s misfortunes.

23. The learned Judge further observed that, when the appellant laced the deceased’s glass of alcohol with poison, she knew it would cause her death. It is the reason why when PW2 offered to taste the deceased’s alcohol, the appellant quickly grabbed it and poured it down. The learned Judge concluded that the appellant had malice aforethought.

24. The learned trial Judge evaluated all the evidence on record and eventually came to the conclusion that the prosecution had proved the case beyond any reasonable doubt. Accordingly, the appellant was convicted for the offence of murder. Thereafter, the appellant was sentenced to death, as prescribed by the law.

25. Being dissatisfied by the conviction and the sentence, the appellant lodged the appeal which is now before this Court. The appellant cited 8 grounds of appeal, which can be summarized as follows;“(i)The trial court failed to note the conflicting facts about two sets of poison, which were discovered during analysis by the government chemist.ii.The medical doctor who conducted the postmortem examination on the body of the deceased did not indicate whether the deceased had ingested anything through her mouth; therefore, that cast doubt on the cause of death.iii.The court failed to note that after drinking alcohol at the home of the appellant, the deceased may have taken some alcohol elsewhere, prior to her death.iv.The appellant had never had any dispute with the deceased.v.The doctor testified that the cause of death was unknown, therefore, the trial court erred by relying on only the report from the government chemist.vi.PW5, who was at the Report Desk at the Kabarnet Police Station; and PW6 who was the Investigating Officer, did not carry out proper investigations to unearth the truth.vii.The police did not verify where the members of the public got the poison, some of which had allegedly been used to poison the deceased.viii.There is merit in the appeal against both the conviction and the sentence.”

26. At the hearing of the appeal, on 17th July 2023, Mr. Sonkule, learned counsel appeared for the appellant whereas Ms. Okok, learned state counsel appeared for the respondent. The appeal was canvassed through written submissions.

27. The appellant summarized her grounds of appeal to read as follows;“(a)The trial court erred in law and in fact in convicting and sentencing the appellant while not considering that the burden of proof was not discharged beyond reasonable doubt, as malice aforethought, a key ingredient in the charge of murder had not been established.b.The trial court erred in law and in fact in convicting the appellant without finding that the investigating officer did shoddy investigations.c.The trial court erred in law and in fact in convicting the appellant yet the prosecution case was built on contradictory statements by witnesses.d.The trial court erred in law and in fact in convicting the appellant without considering the evidence of the appellant.”

28. The appellant stated that the prosecution failed to show that it was the appellant who laced the drink with poison. According to her, there was a possibility that the deceased had ingested the poison elsewhere, after leaving the appellant’s home.

29. The appellant submitted that she took away the glass containing the drink which the deceased had sipped; and that her said action was what any reasonable person would have done, considering that the deceased had complained that the drink was too strong.

30. In her view, the action she took indicated that she was concerned with the safety of the deceased, rather than a person who had the intention to cause harm to the deceased.

31. The second issue raised by the appellant was that the investigating officer had undertaken shoddy investigations. As an example of the shoddy investigative work, the appellant pointed out that PW5 failed to record the particulars of the members of the public who escorted the appellant to the police station.

32. It was the appellant’s view that the said members of the public were crucial witnesses, who could have shed light on the source of the poison.

33. On the question of contradictory evidence, the appellant pointed out that whilst PW5 received the poison which was contained in a plastic tin, at the time when members of the public escorted the appellant to the Kabarnet Police Station; PW6 said that the police searched the appellant’s house where he saw the pesticide. However, PW6 said that the police did not recover the glasses.

34. The appellant wondered how the tin which had been handed over to the police, by members of the public, could later be seen at the appellant’s house, during a search by the police.

35. Another piece of evidence which the appellant deemed to be contradictory, was tendered by PW1. On the one hand, PW1 wanted to drink the alcohol which the deceased had found too strong, yet PW1 also said that she had seen the appellant put the poison into the glass used by the deceased. It was therefore contended by the appellant that PW1 cannot have wanted to drink alcohol which the said witness had seen the appellant put poison into.

36. Finally, the appellant asserted that her evidence was not taken into account. Her evidence was to the effect that when she reached her house, she found that the deceased was already drunk, and that therefore, she is not the person who made the deceased drunk.

37. The respondent opposed the appeal because it held the view that the prosecution had proved all the ingredients of the offence of murder.

38. As far as the respondent was concerned, the evidence tendered by the prosecution, proved that the appellant had intentionally poisoned the deceased, as she served the deceased with alcohol that had been laced with poison.

39. The fact that the appellant served the deceased with the poisoned drink, was, in the understanding of the respondent, proof that the appellant had malice afterthought. The respondent further submitted that the appellant’s defence, which was in the nature of an alibi, was an afterthought. The reason for so saying was that the appellant did not raise the said defence whilst cross-examining any of the prosecution witnesses.

40. As regards the alleged contradictions and inconsistencies in the evidence tendered by PW3 and PW4, the respondent submitted that there were actually no such contradictions or inconsistencies. It was the understanding of the respondent that the 2 witnesses gave evidence that was complimentary; and which clearly established the cause of death.

41. The respondent further submitted that the evidence of PW5 and PW6 was neither contradictory nor inconsistent, concerning where the poison was sourced from and how it was delivered to the police station.

42. Meanwhile, as regards the contention that the failure to call, as a witness, the person who handed in the poison at the police station, the respondent submitted that the same was not fatal to the prosecution case. It was the understanding of the respondent that the prosecution does not have an obligation to call a plurality of witnesses to prove a fact.

43. The respondent was convinced that the prosecution proved the culpability of the appellant, even in the absence of the witness who handed in the poison at the police station.

44. We have considered the appeal, submissions made by counsel, and the law.

45. This being a first appeal, it is our mandate to re-appraise the evidence and draw inferences of fact on the guilt or otherwise of the appellant. We have a duty to reconsider the record in totality as laid before the trial Judge, while bearing in mind that we neither saw nor heard any of the witnesses; and have to give due allowance for the same. In the case of Issac Ng'ang’a alias Peter Ng'ang'a Kahiga v Republic, Criminal Appeal No. 272 of 2005 this court held that:“In the same way, a court hearing a first appeal (i.e. a first appellate court) also has duty imposed on it by law to carefully examine and analyze afresh the evidence on record and come to its own conclusion on the same but always observing that the trial court had the advantage of seeing the witnesses and observing their demeanor and so the first appellate court would give allowance of the same.”

46. We have carefully re-evaluated the said evidence, and note that the container allegedly containing poison was delivered at the police station prior to the arrival of PW6. It was received by PW5, who later handed it over to PW6.

47. Did PW6 testify that he saw the container at the appellant’s house, when the police conducted a search? This is what he said;“I never saw the spirit. We searched the house of the accused but did not recover the glasses. I saw the pesticide. It was in a rubbish plastic tin.”

48. PW6 did not say that he saw the pesticide at the appellant’s house.Indeed, during examination-in-chief, PW6 stated that he received the exhibit, being a pesticide, from the officer who was manning the report desk: that officer is PW5.

49. PW5 corroborated that testimony, when he said that he handed over to PW6;“… some poison in a plastic tin wrapped in a blue polythene paper.”We find that there was no inconsistency in the evidence of PW5 and PW6.

50. As regards the evidence about the cause of death, we find that the post-mortem examination did not yield a determination. It was because the doctor was not able to establish the cause of death, that he forwarded specimens to the Government Chemist, for analysis.

51. Whilst the specimens were undergoing testing, PW6 opened an Inquest File. However, immediately after the Government Chemist revealed that the deceased was a victim of poisoning, the appellant was charged with the offence of murder.

52. The doctor procured specimens from the vital organs of the deceased, which could assist the government chemist in unravelling the mystery about the death, whose cause the doctor had not yet been able to establish.

53. We find that the evidence tendered by the government analyst complimented the evidence of the doctor who had conducted the post-mortem. The evidence was neither contradictory nor inconsistent. The totality of the said evidence was conclusive proof that the deceased had been poisoned.

54. The mother of the deceased testified that the appellant and the deceased had been friends. She was not aware of any dispute between the two.

55. In the circumstances, the appellant submitted that malice aforethought had not been established. If malice aforethought were to be equated to an ill motive, then the appellant may well have a point. But malice aforethought is not synonymous with an ill- motive.

56. Section 206 of the Penal Code defined malice aforethought thus;“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 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 cause;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.”

57. The appellant’s position was that the prosecution failed to prove any nexus between him and the poison which was ingested by the deceased.

58. Secondly, as there had been no disagreement between her and the deceased, the appellant believes that the prosecution failed to prove that she had any reason to kill the deceased.

59. We find that it is the appellant who invited the deceased and PW2 to her house. She then purchased an alcoholic drink from a nearby shop, and served PW2 and the deceased. The drinks for the two was served in separate glasses, whilst the appellant drunk from the bottle.

60. As neither PW2 nor the appellant suffered any ill-effects from drinking the alcohol, that implies that the drink was wholesome when it was being served. But the deceased took only two sips of the drink in her glass, and then complained that it was too strong or too concentrated.

61. At that stage, PW2 offered to finish the drink in the glass which the deceased was drinking from. However, the appellant took away the glass, so that the mother of the deceased did not drink from it.

62. According to the appellant, her said action was what any reasonable person would have done in the circumstances.

63. We have given keen consideration to the actions of the appellant.In our considered opinion, the said actions were out of character with what a reasonable person would have done in the circumstances. The normal reaction would have been to allow the mother of the deceased to consume the drink, especially as she had offered to do so.

64. It was certainly not a normal reaction, when the appellant refused to let PW2 drink from the glass which the deceased had sipped her drink from. It was even more curious that the appellant took away the glass containing the drink. Surely, if the appellant did not want to allow PW2 to enjoy the drink which the deceased had found to be too strong, the appellant could have consumed it.

65. Furthermore, we note that the submissions suggesting that the appellant had acted as any reasonable person would have done in the circumstances, is inconsistent with the appellant’s defence.When giving her defence, the appellant said that on the material day she worked until 2pm. She said;“When I returned home, I found my in-law was drunk, too drunk to rise up. I decided to go to the shop. On my way to the shop, I met with the father of the deceased. He told me people were too drunk to even attend the funeral meeting. He told me one person had been taken to hospital due to drunkenness.”

66. In other words, the appellant did not meet the deceased or PW2. She makes that clear when she testified thus;“I heard PW2, mother of the deceased state that I was with her and the deceased. This is not true.”

67. If the appellant was definitely not with the deceased and her mother, there was no way that she should have;a.Taken the glass from the deceased, “just like any reasonable person would have done in the circumstances”;b.Parted ways with the deceased, as alluded to in the submissions.

68. The appellant did not raise, during the cross-examination of PW2, any suggestions of the line of defence which she eventually testified about. Accordingly, we find that the defence was an afterthought.

69. The Investigating Officer testified that the deceased collapsed 200 metres away from the appellant’s home. The appellant did not raise any questions concerning that evidence. In the light of the proximity of the appellant’s house, to the place where the deceased collapsed, we find that it is idle speculation for the appellant to now suggest that the deceased might have consumed alcohol elsewhere, after the deceased had left the home of the appellant.

70. In conclusion, we find that the conviction of the appellant was founded upon cogent evidence, which proved all the ingredients of the offence of murder. Therefore, the appeal against conviction is dismissed.

71. On the issue of the sentence, the appellant’s advocate, Mr. George Sonkule submitted that this Court has power to remit the case to the trial court for resentencing. His said submissions was based upon the decision by the Supreme Court in the case of Muruatetu.

72. It is now settled that the mandatory nature of the death sentence, when an accused person has been convicted for the offence of murder, is unconstitutional. However, it is equally true that the Supreme Court declined to declare the death sentence unconstitutional. If anything, the court reiterated that in appropriate cases, the death penalty may still be handed down. In this case, the appellant was given an opportunity for mitigation. She prayed for leniency in sentencing.

73. When handing down the sentence, the learned trial Judge said;“I have considered the Accused’s mitigation. Whereas only one penalty is provided under the law for the offence of murder, it is important to observe that the deceased died in a gruesome manner. By poisoning her drink, it is clear that the accused wanted her to die a painful death. She must therefore be ready to embrace the consequences of her actions.I hereby sentence her to death as by law provided. She has 14 days Right of Appeal.”

74. We are satisfied that the learned trial court took into account both the mitigation and the aggravating factors in this case. We find no reason to warrant an interference with the sentence.

75. Accordingly, the appeal against the sentence is also rejected.

DATED AND DELIVERED AT NAKURU THIS 10TH DAY OF NOVEMBER, 2023. F. SICHALEJUDGE OF APPEAL...............................................................F. OCHIENGJUDGE OF APPEAL...............................................................L. ACHODEJUDGE OF APPEAL...............................................................I certify that this is a true copy of the original.DEPUTY REGISTRAR.