High Court 1697 of 2022

(b) That the accused committed the unlawful act which caused the death of the deceased; and (c) That the accused had malice aforethought. DEATH AND CAUSE 9. The death of the deceased confirmed by the deceased’s husband, the first person to find one gum boot and underwear of the deceased. He reported to the police of his finding and after a search the body of deceased was found. The deceased’s husband also confirmed that he identified the deceased’s body for the purpose of postmortem. 10. The Administration Police who was part of those who searched for deceased stated:- “On further search, we saw a female body covered with tree branches in an effort to conceal it. The body was not too far from the clothes we had found.” 11. The doctor who carried the postmortem examination, Doctor Dorothy Njeru, also confirmed death of the deceased which she stated she suspected was caused by sexual offence and strangulation. The toxicology report was negative in respect of sexual assault. Deceased body was having a rope round the neck. Did accused commit the unlawful act which caused death? 12. On 30th April, 2016 the deceased was at home with two of her children a boy 9 years old and a girl 13 years old, when they testified. They were watching TV. At 10.00 am the accused arrived at their home. The girl in evidence stated:- “Kamau (accused) came and asked my mum if she wanted some employment of cutting nappier grass. ... Mum (deceased) said she wanted work. My mum asked me to bring her cell phone and gum boots.” 13. This witness further stated that the accused stood outside their door. The accused, she said, was her cousin. This witness did as requested by the deceased, she brought to her a cell phone and gum boots. 14. The boy, the son of the deceased stated that the accused lived very close to their house. That the accused came to their home frequently. He further said:- “He once came to call my mum (deceased) for work. He came and asked her if she wanted work. My mum said yes.” 15. The deceased’s husband stated that he was on duty on the material date in Pangani, away from home. On that day, he called his wife at 2p.m. but she did not pick up his call. 16. When he arrived at his home on the night of that material date he did not find his wife at home. Although he asked the two children where the deceased was, but because they had been requested by deceased not to tell their father, they did not therefore tell him. It was not until 2nd May, 2016 the children disclosed the deceased had gone to do some work with the accused. 17. In making inquiries with accused’s employer, that employer confirmed the accused was harvesting nappier grass for him and the employer also confirmed the accused had told him he intended to get someone to help him. 18. That is what led the deceased’s husband to go into the farm and it led him to find deceased one gum boot and under wear. He recognized the underwear which he confirmed his wife was wearing and he stated it was him who purchased the bum boots for the deceased. 19. The girl, daughter of the deceased stated that she peeped from the roadside and saw accused and deceased going together. She said:- “Kamau (accused) left then my mum (deceased) followed. When I peeped I saw that my mum had caught up with Kamau. He (accused) was standing waiting for her (deceased).” 20. PM (M) was 16 years old when he testified. He stated the deceased was his aunt. He often visited deceased’s home. The accused is his cousin. He also used to visit accused’s home which is about 100 meters from his home. 21. On 2nd May, 2016 at 10.00 am Mungai was on his way to buy tea leaves. Accused called him as he went past and wanted to send him to purchase omo soap. Accused invited Mungai into his house to get money to buy the soap. They went into accused’s bedroom. Mungai said:- “As he (accused) was looking for money Kshs.20/= coin dropped on mattress. ... The coin had dropped on to the second mattress. His bed had two mattresses. ...

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As he lifted the mattress to pick up the coin, I saw my aunt’s phone under the mattress. ... I knew it was aunt’s (deceased’s) phone because I used to visit her often and I would see her using it.” 22. Although Mungai asked accused about that phone, accused did not respond. Mungai stated accused then followed him to the shops and bought him mandazi and requested not to tell anyone about the phone he had seen. 23. The police after arresting the accused conducted a search of accused house and recovered a Wico cell phone in accused’s house. That cellphone was identified by the two children of deceased, by deceased’s husband and by Mugnai as belonging to deceased. Deceased’s husband also produced in evidence a receipt as evidence of purchase of that cell phone. 24. The evidence against the accused is circumstantial. In the case R. VS. TAYLOR & DONOVAN (1928) CR. APPL R. 21 the court stated that circumstantial evidence is very often the best. It was held in that case:- “It is evidence of surrounding circumstances which, by un-designed coincidence is capable of proving a proposition with the accuracy of Mathematics. It is no derogation from evidence to say that it is circumstantial.” 25. On 30th April, 2016 the accused informed his employer that he needed a helper to help him harvest nappier grass. 26. The deceased’s two children gave clear evidence of accused going to their house and finding them watching TV with their mother the deceased. They both heard accused offer work for their mother. Their mother requested the daughter to give her, her gum boots and her cell phones. 27. The deceased’s husband on going to the area where nappier grass had been harvested, found his deceased wife’s gum boots (one) and her underwear. 28. Later, near those items, the body of the deceased was discovered where there seemed to have been an attempt to conceal it. 29. On 2nd May, 2016 Mugnai while in accused’s bedroom saw the deceased’s phone which was later retrieved by the police in that very bedroom. 30. That phone was identified by deceased’s husband, son and daughter and also by Mungai. Deceased’s husband produced receipt of the purchase of that phone. 31. The gum boots, the under wear were found where the accused harvested nappier grass and the phone in accused’s bedroom are all circumstantial evidence from which an inference of guilt can and will be drawn. That circumstantial evidence is of a definite tendency unerringly pointing to guilt of accused. Those circumstances taken cumulatively form a chain so complete that there is no escape the conclusion that the crime was committed by the accused: See case AHAMAD ABOLFATHI MOHAMMED & ANOTHER VS. REPUBLIC (2018) eKLR. 32. The defence offered by accused did not displace that evidence which points to guilt of accused. The defence witness George Karanja stated:- “The deceased’s body was found where I last left accused. ... all I did is I showed Kamau (accused) where to cut grass. Kamau told me he was with someone else.” 33. That evidence of defence witness simply added weight to the prosecution’s evidence which very clearly pointed to the guilt of the accused. Did accused have malice aforethought 34. The evidence of prosecution showed that deceased had a nylon rope tied to her neck. Death of deceased was due to asphyxiation. No doubt the deceased in tying the rope round deceased’s neck intended to cause death. The accused must have known that serious risk would result to tying that rope on deceased’s neck. Malice aforethought was proved by prosecution. See the case REPUBLIC VS. PETER CHACA MOGAYA (2019) eKLR. DISPOSITION 35. In the end, prosecution proved beyond reasonable doubt that the accused murdered TERESIA NJERI WANJIKU deceased. The very slight inconsistencies on when the children of deceased disclosed to their father simply proved human frailty. See the case KAZUNGU KATANA NGOA VS. REPUBLIC (2017) eKLR as follows:- “This Court had occasion to address this issue recently in PHILLIP NZAKA WATU VS. R (2016) e KLR, where it expressed; “However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible, and no two people

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perceive the same phenomena exactly the same way. Indeed, it has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and couching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” (emphasis supplied) 36. This Court finds accused PAUL KAMAU MBURU guilty of murder of TERESIA NJERI WANJIKU deceased. He is accordingly convicted as charged. JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF MARCH, 2022. MARY KASANGO JUDGE Coram: Court Assistant : Mourice Accused : - PAUL KAMAU MBURU : Present For accused : - Ms. Sitati For DPP : - Mr. Kasyoka JUDGMENT delivered virtually. MARY KASANGO JUDGE

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