Republic v A W K

the jacket that belonged to V K W floating. When PW 1 lifted the jacket the body of V K W, which was facing downwards, turned upward. They both stated that V was dead. Corp Kennedy Muenya attended the scene on being informed that there were two bodies of children floating in small dam. The bodies were removed from the dam by the police officer with the assistance of members of public. 6. There is therefore conclusive evidence of the death of the two children. From the evidence of the doctor the cause of death was drowning. 7. The next issue to consider is whether the deceased children’s death was a result of the unlawful act of the accused. 8. I will begin by considering the prosecution’s evidence sequentially. 9. P K M (PW 3) is a nephew of the accused and was cousin to the deceased children. He resided with his grandmother (PW2). He was at the date of the death of the children 16 years old. He attended [particulars withheld] Secondary School. When he testified before court he was 17 years old. In testifying in and in examination in chief this witness retracted his witness statement recorded by the police and on an application being made by the prosecution the court granted the prosecution leave to treat him as a hostile witness. 10. PW 3 on being cross examined by the prosecution maintained that on 29th May 2014 when he woke up he went to school at 5.50 a.m. That he did not see anyone at the homestead before he went to school. That it was later that day he was informed by the accused the children had died. On being further cross examined by the prosecution this witness denied seeing the deceased children or the accused on 30 th May 2017. 11. PW 3’s witness statement recorded by the police on 31 st Mary 2014 was exhibited before court. In essence PW 3 according to that witness statements stated that on 30 th May 2014 he heard I (deceased) cry at around 4.00 a.m. while she was in the main house. That it was not normal for her to cry at such an hour. That as PW 3 got out of the separate house he normally slept at around 6.05 a.m. he saw the accused. PW 3 saw the children V walking infront, followed by I and the accused was walking behind them. In his statement he further stated:“I saw them walking towards the dam and I went to school. I was not surprised since I used to see my cousins I and V wake up early to go to school. Although on that day they were not supposed to go to school because it was a sports day. The only thing I noted was that it was unusual for my aunt (accused) to wake up that early but I did not suspect anything.” 12. On that same day that PW 3 saw the children and the accused walking to the dam, at around 7.30 a.m. to 8.00 a.m. PW 1 on his way past the dam saw a jacket belonging to V K floating in the dam. On summoning PW 2 they both were to discover the bodies of the two deceased children submerged in the dam. 13. PW 2 grandmother of the children corroborated the evidence of PW 1. She stated that PW 1 informed her, on the morning of 30th May 2014, that the jacket of V K was floating in the dam. She wanted to confirm whether it was V jacket. She said:“I had bought the jacket, so I was not happy. I went towards the dam making noise (makelele). When J (PW 1) saw I was annoyed (makelele) he followed me.” 14. They both went to the dam and PW 2 recognized the jacket floating in the dam as the one she had bought for V K. PW 2 instructed PW 1 to find a stick to get the jacket out of the water. She then stated:“When J (PW 1) tried to pull the jacket he felt it (jacket) to be heavy. As he used to force to pick the jacket turned upside down. I saw a head of a child. I saw it was V (deceased). He was

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wearing his jacket.” 15. PW 2 on seeing the body of the child V K screamed lost consciousness and fell down. 16. PW 7 Corp Kennedy Muenya on 30th May 2014 at 10.00 a.m received a call from someone from Kwangwachi area. The person informed him that there were two bodies of children floating in a small dam. After the bodies were retrieved this police officer made inquiries from the family of the deceased children. PW 2, the children’s grandmother informed him that in the morning of that day, at 6.00 a.m. she heard the children opening the house where she was asleep. The officer further testified thus:“The grandmother (PW 2) asked – “who is opening the door”- accused replied – “it is the children so that they can buy milk for tea before going to school.” 17. Inspector of police Anderson Kimathi PW 8 was the investigating officer of this case. He began to investigate this case on 30th May 2014. He questioned the accused but she denied being involved in the killing of the children. He however received information from members of the public who informed him that the accused had been seen by PW 3 in the company of the two deceased children. It was then that this officer recorded the witness statement of PW 3. 18. PW 8 stated that he recorded that statement in accordance to the information he was given by PW 3. This officer confirmed that, although PW 3 retracted his witness statement, he made it voluntarily and while he was not a suspect in this case. 19. The officer continued to state in evidence that on 3rd June 2014 as he carried out his rounds at the cells he found the accused crying. He stated:“On asking her (accused) why she was crying she said she wanted to tell the truth. She told me we should investigate no further – that she committed the offence.” 20. As a result of the information the accused gave the officer he took her to Chief Inspector Michael Otinya (PW 5). 21. PW 5 gave evidence to the effect that the accused was taken to him on 4 th June 2014 because she was willing to confess that she had thrown her two children I W and V W into the dam. The officer cautioned the accused that what she stated would be recorded and could be used against her. The officer used Swahili language to communicate with the accused. 22. The confession statement of the accused was produced in court in evidence with no objection being raised on behalf of the accused. In that statement the officer began by informing the accused that she was being charged with the offence of murder of the two children. By that statement also the accused was informed that anything she said may be used against her. The accused and her brother, J N, who was present signed that caution. 23. By her confession the accused stated in Swahili but was translated in English that:“I confess that I am the one who drowned Y N W and V K W in a deep pond at Wangwaci resulting to their death.” The accused and her brother counter signed that confession. 24. The officer on being cross examined stated that the accused was taken to him by the investigating officer (I. O.) because she has informed the I. O. that she wanted to confess. He also confirmed that he informed the accused that she was entitled to legal representation. 25. At the close of the prosecution’s case the accused opted to offer no evidence in her defence.

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26. It is necessary to consider the value of the evidence of PW 3 who retracted his written witness statement. The Court of Appeal in the case DANIEL ODHIAMBO KOYO –V- REPUBLIC (2011) eKLR discussed such evidence and held:“The law on such witness is clear. The probative value of his evidence is negligible. It may be relied upon on clear cases to support the prosecution or defence case. In MAGENDA – v – REPUBLIC [1986] KLR255 at P. 257, this court remarked thus regarding the evidence of a hostile witness:“The evidence of a hostile witness must be evaluated, in particular if it tends to favour the accused though it may not necessarily be acted upon by the court.” 27. The Court of Appeal in the case ABEL MONARI NYANAMBA & 4 OTHERS -V – REPUBLIC [1996] eKLR stated:“The evidence of a hostile witness is indeed evidence in the case although generally of little value. Obviously, no court could found a conviction solely on the evidence of a hostile witness because his unreliability must itself introduce an element of reasonable doubt.” 28. From the above authorities it becomes obvious that the evidence of PW 3 is of little value. That evidence however is corroborated by the evidence of PW 2, the grandmother. She testified that on the morning in question she heard the door of the house she shared with the accused and the deceased children being opened. According to her evidence in chief she stated that it was the children who opened the door. When PW 8 who was investigating the matter was informed by the grandmother that when she enquired who had opened the door on the morning of 30 th May 2014 the accused responded by saying that it was the children who were going to get milk for tea. 29. It therefore becomes obvious that the accused was awake that morning. The police officer PW 7 who was first to go to the scene stated that there were no containers at the scene. One would expect that if the accused had sent the deceased children to get milk the children would had some container necessary for carrying such milk. No such containers were found at the scene. 30. The evidence of PW 3 in his witness statement is also corroborated by the accused’s confession. 31. Learned counsel for the accused submitted at the conclusion of the case that the confession of the accused, recorded by PW 5, failed to abide by the provisions of the Evidence Act cap 80. Section 25 of Cap 80 provides:“(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and third party of the person’s choice.” 32. The subsidiary legislation, that is the The Evidence (out of court confessions) Rules, 2009 sets out the rights of an accused person who makes a confession. Those Rule inter alia requires the officer recording a confession to ensure the accused person has stated his preferred language of communication; is informed of his right to have legal representation; is not deprived of food, water or sleep; his period of arrest and detention in police custody established and recorded; has no medical complaint, if any it is adequately addressed; and the accused communicates with the third party nominated by him. The recording officer should not record a confession of an accused person who complains to him of being a victim of torture or whose physical appearance shows signs of physical injuries. The recording officer shall ensure that the written confession contains the following statement:“I have read the above statement and I have been told that I can correct alter or add anything I wish. The statement is true. I have made it of my own free will.”

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33. The rules also requires the recording officer to be a prosecution witness at the trial to prove the court beyond reasonable doubt that the rules were complied with. 34. PW 5 was the recording officer in this case. He stated that the accused was brought to him because she wanted to confess. That the accused was willing to confess in the presence of her brother J N. The accused elected to confess in Swahili language as follows:“Nakubali ya kwamba ni mimi ndiye niliwatumbukiza Y N W na V K W kwa kidimbwi kirefu kule wagwaci kisha wakafa.” That confession was signed by the recording officer (PW 5), the accused and her brother J N K. PW 5 said that he interacted with the accused while she confessed and he used Swahili language. 35. The Court of Appeal in the case KANINI MULI v REPUBLIC [2014] while considering an accused person’s confession referred to the following case and stated:“NJUGUNA S/O KIMANI & OTHERS VS REGINA (1954) EA 316, GITHINJI S/O NJAGUNA & ANOTHER VS REGINA (1954)EA 410). The duty of every trial court to examine with the closest care and attention all the circumstances in which a confession has been obtained is not restricted to confessions recorded by the police. Rather, it applies to all extra-judicial confessions.” 36. As stated before the accused confession was admitted in evidence without objection from the accused. Further the accused did not give any evidence in her defence. It follows that the confession she made was not denied. The circumstance under which the accused gave her confession was that while in the cell and she was found by the I.O. crying. She confessed to him that she killed her deceased children. Since section 25 of the Evidence Act does not permit a confession to be recorded by the I.O. of the case, the accused was taken to PW 5 a Chief Inspector.The accused elected to confess in the presence of her brother. The accused was given opportunity to add or alter the confession which she did not. 37. In my view considering the above circumstances I am satisfied that the accused’s confession was voluntarily made and is therefore admissible in this case. The prosecution discharged the onus of proving the confession was voluntarily made. 38. Bearing in mind the written witness statement of PW 3 where he stated he saw at about 6.05 a.m. the accused walk towards the dam with the deceased children; and bearing in mind the evidence of PW 2 that she heard the door of the house open and that the deceased children were awake; and bearing in mind that PW 2 stated that the dam in which the deceased children drowned was bordering their homestead; and bearing in mind the accused’s confession of having drowned the deceased children, I find that the accused was the one who caused the death of those children. 39. It is also very telling of the accused guilt and knowledge of the death of the deceased children because when PW 1 and PW 2 went to the dam to inquire why the jacket of V K was floating there and when on lifting the jacket with a stick they realized that the children had been drowned, PW 2 began to scream. When she screamed the accused who was afar off also began to scream. What made her scream if it was not her previous knowledge that the children were dead. 40. The evidence of the prosecution in totality point to the guilt of the accused of the unlawful act of killing the deceased children. 41. The final issue for consideration was whether the accused in committing the unlawful act of killing the children had malice aforethought. In other words did the accused intend to cause death or grievous harm of the children; and did the accused have knowledge that the act of drowning the children would cause death or grievous harm. Malice aforethought comprises not only of intentional acts but also comprises reckless act likely to cause death or grievous harm. See REPUBLIC –V- MOHAMMED DADI KOKANE & 7 OTHERS [2014] eKLR.

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42. The accused intended to cause death to her children. She said as much in her confession. In taking the children to the dam and drowning them there was but only one result she intended. The death of those children. 43. In this court’s view the ingredients of the offence of murder were proved by the prosecution beyond reasonable doubt. I therefore hereby convict A W K of the two counts of the offence of murder of V K W and I W contrary to section 203 as read with section 204 of the Penal Code. DATED and DELIVERED at NANYUKI this 6th day of DECEMBER 2017 MARY KASANGO JUDGE CORAM Before Justice Mary Kasango Court Assistant: Njue/Mariastella Accused: A W K…………..………………….. For Accused:…………………….................... For the State: …........................................... Language: ……………………………........... COURT Judgment delivered in open court. MARY KASANGO JUDGE

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