High Court 449 of 2006

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS Criminal Case 13 of 2005 REPUBLIC …………………....………....………PROSECUTOR VERSUS MULWA MULEMBA…………..……………….....……ACCUSED JUDGEMENT The accused person Mulwa Mulemba, was charged with murder Contrary to Section 203 as read with Section 204, of the Penal Code - that he Mulwa Mulemba, on 7.12.2004 at Liani Village in Ngumo Location in Makueni District in Eastern province, murdered Sabina Mulemba. Evidence recorded against him on this record show that the accused was the last child of the seven children of the deceased Sabina Mulemba. He was married with two children. He was not known to be mentally insane. The evidence however show that on 7.12.2004 at mid-day, he carried a sharp panga and proceed to the kitchen of his mother, the deceased, who was at the time cooking lunch. Using the panga he suddenly and violently cut the deceased on the right temporal and occipital regions, virtually spilling out the brain tissue. He also cut her on her cervical spine fracturing it. The serious injuries led to the deceased’s instant death. Dr. Hezron Macharia who later performed a postmortem on the deceased, established that the cause of death was the severe head and spine injuries. In a Psychiatric Report dated 21.4.05 drawn by Dr E.G.M. Wazome, the then Senior Specialist Psychiatrist Eastern Province, the latter, after observing and examining the accused, concluded that the accused Mulwa Mulemba, during the killing of the deceased, suffered from a severe form of paranoid schizophrenia. He stated further that from his examination and observations, the accused, immediately after killing his mother, claimed that he had done so after receiving a verbal command from God that he should kill his mother, in order to avoid eternal punishment. The voice also had told him that by killing his mother, he would be helping to destroy the devil in the world and that his mother was herself willing to die. Dr.Wazome had concluded that the accused committed the offence while suffering from the disease of the mind to the extent that he did not know whether what he was doing was wrong or whether he ought not to commit it. Later the accused was sent to Mathari Mental Hospital for further observation and treatment under the supervision of Dr. Ngugi Gatere on 12.5.2005. Dr. Gatere confirmed that accused was suffering from schizophrenia, a chronic mental disease which causes hallucinations and delusions. He said that the accused believed he was Jesus Christ who arose from the grave as an African. The doctor concluded that accused acted under hallucinations and delusions and could not know a wrong from a right, as a result of which he cannot be held legally responsible for his actions during the time when he killed his mother. Both doctors recommended that the accused must be constantly kept under medical drugs treatment to enable him to remain normal and well. The main evidence as to what had happened when the deceased met her death at the hands of the accused, came from PW1 Musembei Lena, a 15 year old boy who is grandson of the deceased and nephew of the accused. He was present when accused attacked the deceased with a panga and caused her instant death. I have carefully considered the evidence on the record. I am satisfied that the accused, Mulwa Mulemba, who was represented by a qualified advocate at the time when the trial commenced before me,

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