REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL CASE NO. 7 OF 2016 REPUBLIC.............................................................................................PROSECUTOR -VERSUSSUSAN WAIRIMU..................................................................................1 ST ACCUSED ISAAC NDUNGU NGETHE..................................................................2 ND ACCUSED JUDGMENT 1. SUSAN WAIRIMU, the 1st accused and ISAAC NDUNGU NGETHE the 2nd accused, are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on 25 th July, 2014 at Gichungu village, Kikuyu in Kiambu sub-county jointly murdered PROMISE SUPEYO KARASHA deceased. 2. The deceased at the date of death was 1½ years old boy. 3. The prosecution’s case is that, Dorcas Wambui Ngotho (Dorcas), the mother of the deceased’s baby had the 1 st accused referred to her for employment as a domestic worker. A short while after starting that work as a domestic worker, Dorcas permitted the 1 st accused to bring to Dorcas’ home her child who was a 2 year old girl. 4. In less than a month, after starting to work at that home on 25 th July, 2014, 1st accused was left at that home with the deceased child as Dorcas and her husband, Simon Karasha (Simon) attended a funeral. Dorcas said that she left her home at 9.00 am. 5. At 2 pm that day, Dorcas was telephoned by her sister who informed her that she had been at Dorcas’ home and had found the house door wide open and no one was at home, not even the deceased child. Dorcas telephoned Simon who was on the way back to their home and informed him of what her sister had stated. Simon on reaching their home confirmed that their household goods were taken and their deceased child was missing. 6. Through various inquiries made, it was established from boda boda operators that a lorry with inscription “Bush Baby” had been seen ferrying household goods from the house of Dorcas. Simon Chege, a bishop of African Mission Revival Church, who was in the company of Dorcas, said he knew where that lorry is usually parked. 7. On contacting the driver of that lorry, the driver disclosed where he had taken the household goods. When they traced where the driver said he had taken the household goods they did not find them there. They were able to trace those goods in another house where they were informed by an old lady that the house belonged to the 2 nd accused who was her grandson. The old lady stated that the goods were brought to that house by 2nd accused’s wife. 8. The old lady directed the group that now was assisting in the search, the direction that both accused and two children had taken. The search of the accused did not lead to them being found. One in the group of those who were searching for the accused telephoned the 2 nd accused and the 2nd accused disclosed where they were but requested the one who called him to alone to go where both accused were. 9. The person who made the call went as directed by 2 nd accused while Daniel Ngige, a pastor followed about 800 metres behind. That pastor found 1st accused seated while holding the deceased child while her own child sat behind her. The police took the deceased child and handed him to the pastor and although someone informed the pastor that child was already dead, the pastor followed the police direction and took the child to a nearby hospital. The doctor at the hospital informed the pastor that the child was already dead.
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10. The 1st accused gave sworn defence. The 1st accused gave evidence of a difficult childhood that she went through with an alcoholic mother and since she was the first born on how the responsibility of looking for her younger siblings fell on her even though she was only twelve years old. She was at one time living at a children’s home due to that neglect by their mother. 11. 1st accused began to do casual jobs in the years 2010 – 2011. She got pregnant and gave birth in March, 2012 as a single mother. Three months after birth of that child, the father of that child, the 2 nd accused, was reconciled to the 1 st accused and they lived together. 1st accused said of 2nd accused that:- “It was like he (2nd accused) was my husband.” 12. 1st accused said while she worked for Dorcas and Simon she was suffering with headaches which necessitated her getting injected and was also taking oral medicine. That on 20th July, 2014 she was taken to hospital by Simon because she had fainted at their home. That although at the hospital it was recommended that she obtain CT scan, Dorcas refused and said she should only take Panadol medicine. 1st accused said that she requested Dorcas for a loan to enable her get treatment but Dorcas refused. 1st accused then stated:- “Dorcas refused to give me a loan for treatment. I was living with my child. When Dorcas and Simon were to go for funeral I had pain a lot. So I took household goods that is me my baby and deceased.” 13. 1st accused narrated how she called 2 nd accused, they had not seen each other for some time. The 2nd accused brought to her his house keys then left 1st accused who with the help of others, took the household goods to 2 nd accused’s house. 1st accused stated thus, on the reason she took the household goods:- “My intention was to take the household goods to those people who exchange items for money. I sold one item. After that I did not know where to keep other items.” 14. 1st accused said that after leaving the household goods at 2 nd accused’s house, she took the deceased’s child, tied him to her back intending to take him to Dorcas’ sister in Dagoretti. While she went, she heard commotion and people were saying that there was a girl who was being looked for and who had stolen household items. 1st accused described how she entered into the cave with her child and as she carried the deceased on her back. This is what 1st accused further stated:- “I removed Promise (deceased) put her down and my daughter lay next to her. It was dark. I heard Isaac’s (2nd accused) voice and many other people. I called out to Isaac and told him where I was.” 15. 1st accused came out of the cave and someone took deceased and a lady took 1 st accused’s daughter. 1st accused said that:- “I was in shock. I wondered what I had done.” 16. She stated on deceased child being picked he was shivering, that he looked like he had a fit and looked like he was struggling to breath. 1st accused said of deceased:- “I think he (deceased) was chocked by dust. I think it is the dust.” 17. Dr. Alfred Gitonga, a consultant psychiatrist working at Mathare Teaching and Referral Hospital testified and stated that 1 st accused was admitted at the said hospital on 25 th August, 2014 and was in that hospital for more than 4 years. The doctor stated that 1st accused was treated as inpatient when she was admitted at the hospital and thereafter was treated as an outpatient. The last she was treated was August, 2018. That when she was admitted at the hospital, she was in distressed state. On being examined, she was found to have a mental health problem which was acute and required immediate admission. That 1st accused experienced visual and auditory hallucination. That she was out of touch with reality. That is she was not in charge of her mental factuality. Her memory was poor, she was disoriented and had mood abnormalities. The doctor stated that on admission, the accused was found to have an existing mental health problem which was untreated. The doctor said the 1st accused could have done something without being aware she did it. On further examination, 1st accused was found to suffer epilepsy and postpartum psychosis. That postpartum occurs after a woman gives birth. The doctor further stated:- “I found relevant to this patient was lack of social support traumatic childhood and employment difficulties and income ambiguity, not being sure of income every month.” 18. The 2nd accused also offered sworn defence. 19. He stated on 25th July, 2014 he lived alone in Dagoretti town. Previously, he said he was married to 1 st accused. 1st accused became pregnant in 2011 while 2nd accused was still in school. He was unable to take on parental responsibility and he therefore parted with 1 st accused. They reconciled in 2012 when they lived together and with their daughter. That they lived together as husband and wife. They however had differences and they separated. 20. On the material day, 25 th July, 2014 1st accused called him and he met her at Gichungu. 1st accused told him she wanted to keep the
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household items in his house. 2nd accused gave 1st accused keys to his house and went on his way. That was the house they previously lived together. 2nd accused said he did not see 1st accused again until their arrest at the police station. 21. 2nd accused narrated how he received a call from someone who informed him that there were people who were ‘annoyed’ and were investigating the theft of household goods. 2nd accused said he led the one who telephoned him and his own father into the forest where 1 st accused was said to have gone. They walked in the forest and traced where 1 st accused was by calling her name. 2nd accused said 1st accused looked confused when they traced her. 22. 2nd accused said they were arrested with 1st accused and at the police station he was first informed that he would be charged with theft of household goods. He was charged with the offence of theft and taken to Kibera Magistrate’s court, but he was acquitted of that charge. Later, he was charged with the offence of murder. He stated:- “I have never come into contact with deceased only that night when I found him with Susan. I deny the charge.” ANALYSIS 23. Section 203 of the Penal Code is in following terms:- “Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 24. The four ingredients of murder that spring from the above section are:v The fact of the death of deceased. v The cause of death. v Proof that the deceased met his death as result of an unlawful act or omission on the part of the accused. v Proof that the said unlawful act or omission was committed with malice aforethought. 25. There is no dispute of death of deceased. The 1st accused indeed confirmed the death of the deceased. Doctor who performed the postmortem and the pastor who took deceased to hospital on that material date all confirmed deceased was dead. 26. The postmortem revealed that the deceased’s death was caused by “asphyxiation due to manual suffocation.” The doctor also found the deceased had particles of sand in the eyes and mouth. 27. Is there proof on required standard of criminal trial that the accused persons caused death of the deceased through their unlawful act or omission? 28. The 1st accused admitted hatching a plan to steal her employer’s household goods while her employer was away from the house. She admitted that her intention was to exchange those items for money and indeed she sold one item. 29. The 1st accused hired Samuel Waiganjo the lorry owner to ferry household goods. The driver confirmed that he ferried those goods and 1st accused boarded the lorry accompanied by two children, a girl and a boy (the deceased). He stated the boy was then healthy looking. The household goods were left at a house in Gichungu area but later when a search was mounted by various people including Simon, the pastor and the bishop amongst others, and while being directed by the lorry driver, they found those goods had been moved to the 2 nd accused’s house. 30. The lorry driver said the lady who assisted those present to access 2 nd accused house and who stated she was grandmother of 2 nd accused directed the people towards tthe direction that the lady, a man and two children went. A search was mounted following that direction. 31. Further, when 2nd accused was called and on being informed they were being looked for, 2 nd accused requested the one who telephoned him to go where they were alone. The pastor followed that person and confirmed that both accused were found at a cave. The deceased who was suspected to be dead was found being held by 1st accused and police handed deceased to the pastor. 32. 1st accused alleged that the deceased suffered a fit and seemed to gasp for breath. 33. 2nd accused alleged after giving 1st accused keys to his house he next saw her on their arrest. 34. The defence offered by the accused is irreconcilable with the evidence of the pastor, the bishop and also Simon. 35. Both the pastor and bishop testified that 2 nd accused’s grandmother pointed in the direction in which both accused and two children went to.
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36. In my view, the evidence of alibi raised by the 2 nd accused was displaced by the prosecution’s evidence. The alibi defence certainly was not put to the prosecution’s witnesses and it therefore fails. It was, it would seem, an afterthought. 37. The two accused were together with the deceased when the deceased was found dead. The prosecution’s evidence in relation to whether the accused by an unlawful act caused the death of deceased is circumstantial evidence. In the case R. VS. TAYLOR, WEAVER & DONOVAN (1928) CR. APPL. R. 21 the court stated that circumstantial evidence is very often the best. It was held in that case that:- “it is evidence of surrounding circumstances which, by undersigned coincidence it is capable of proving a proposition with accuracy of mathematics.” 38. The Court of Appeal in the case AHAMAD ABOLFATHI MOHAMMED & ANOTHER VS. REPUBLIC (2018) eKLR considered circumstantial evidence and had this to say:- “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 accused person, and to no other person, as the perpetrator of the offence. In ABANGA alias ONYANGO V REPUBLIC, 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 guilt of the accused; (iii) the circumstances taken cumulatively, should form 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.’” 39. Both accused as stated before were proved to have been together at the time when they were arrested and deceased was found already dead. The accused persons did not allege anyone else, other than themselves, were present at the cave before their arrest. It is for that reason that this Court finds that the prosecution’s evidence inferred guilt on the both accused and that the guilt was cogently established. The circumstantial evidence unerringly pointed to accused’s guilt. And the circumstances taken cumulatively form a chain so complete that there is no escape. The 1st accused stole her employer’s household goods and received the assistance of the 2 nd accused to store those items in 2 nd accused’s home. What to the accused may have seemed a perfect plan of theft, was distorted by the presence of deceased baby. After all the 1st accused had further moved the household items from the house the moving truck left them. The further movement of those items was intended to confuse any investigation or trace made through the lorry driver. 40. The circumstantial evidence clearly points and proves that both accused participating in the strangulation of the deceased child leading to his unlawful death. 41. The final ingredient for consideration is whether prosecution proved the unlawful act of killing of the deceased baby was committed with malice aforethought. Malice aforethought was considered in the case REPUBLIC VS. PETER CHACHA MOGAYA (2019) eKLR where the court stated:- “The Court of Appeal has also dealt with this aspect on several occasions. In the case of JOSEPH KIMANI NJAU VS R (2014) eKLR, the Court of Appeal in concurring with an earlier finding of that Court (but differently constituted) in the case of NZUKI VS R (1993) KLR 171, 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 accused; 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. …” 42. The doctor who performed postmortem found Qthe cause of death of deceased was strangulation. No doubt when the accused strangled the deceased they intended to kill and at most, they knew that there was serious risk that death or grievous bodily harm would result to the deceased. 43. Although 1st accused proffered a defence of mental illness there is irreconcilable evidence in this file which discounted the evidence of the doctor who testified to this fact; and mind you he had no identification to show to the court that indeed he was a doctor. 44. The said doctor testified that 1 st accused suffered mental illness and was admitted on 25 th August, 2014 to Mathare Hospital and was so admitted for 4 years.
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45. I have perused the record of this file. The proceeding shows that the 1st accused attended court until 29 th July, 2015 when the court was informed accused was admitted at Mathare hospital. On 6th October, 2015 the court was informed the 1 st accused was treated and was fit to take plea. Further, the P3 Form dated 1st August, 2014 of the 1st accused was submitted in evidence by Doctor Shako who found 1 st accused was fit to plead but also stated of the 1st accused that she was:- “distressed, sad, appears disturbed, fidgety angry.” 46. The 1st accused while offering her defence stated:- “When I hid myself is because I realized people were looking for me. I was aware of everything going on.” 47. 1st accused had a burden to prove her mind was affected by disease which made her incapable of understanding what she was doing. This however was not proved. Clear evidence was adduced showing the 1 st accused meticulously planned the stealing of household goods and ensured the lorry driver did not know where those items were finally placed, that is in the 2 nd accused’s house. There is no evidence produced which showed on a balance of probability the 1 st accused’s mind was diseased so as to make her incapable of understanding what she was doing. 1st accused even knew she was taking the household items in order to sell them and get money. The 1st accused from the evidence tendered was lucid when she committed the offence. In the case MARANDU M’ARIMI VS. REPUBIC (1982) eKLR the court stated:- “To establish the defence of insanity it was therefore necessary for the appellant to prove, the onus being upon him but no higher than what we have mentioned, that at the time when he killed the deceased he was :(a) suffering from disease affecting his mind; (b) through such disease incapable (i) of understanding what he was doing, or (ii) of knowing that he ought not to kill the deceased. PHILIP MUSWI S/O MUSELA V R [1956] 23 EACA 622 at p 624.” DISPOSITION 48. Consequently, I come to the conclusion that the State has proved beyond a reasonable doubt that SUSAN WAIRIMU and ISAAC NDUNGU NGETHE are guilty of murder of PROMISE SUPEYO KARASHA deceased and they both are accordingly convicted as charged. JUDGMENT DATED and DELIVERED at KIAMBU this 10th day of MARCH, 2022. MARY KASANGO JUDGE Coram: Court Assistant : Mourice 1ST Accused : - SUSAN WAIRIMU :- Present 2nd Accused : - ISAAC NDUNGU NGETHE : - Present For 1st accused : - Ibrahim Onyata For 1st accused : - Mr. Ndungu For DPP : - Mr. Kasyoka JUDGMENT delivered virtually. MARY KASANGO JUDGE
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