REPUBLIF OE KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA HCR NO. 21 OF 2016 REPUBLIC............................................................PROSECUTOR VERSEUS CATHERINE NANDUTU NAMATUHU..................ACCUSED JUDGMENT The accused CATHERINE NANDUTU NAMATUHU is charged with offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 6 th day of July, 2016 at Melon Trading Centre in Chesikaki location of Cheptais sub-county within Bungoma County murdered LEONARD WALIAULA alias SIBUMBA. The prosecution case is that the deceased was the husband of the accused. On 6.7.2016 PW1 AZ a minor aged 12 year old was at home playing with other children. She saw the deceased who was riding a motor cycle come and went to relieve himself in a maize farm. She then saw accused who was armed with a brick hit the deceased with a brick on the neck twice. The deceased fell down. The witness run and informed Musa Yusuf and her grandmother. She came back to the scene and found deceased and accused with many people. Her uncle Musa then took the deceased to hospital. Upon being cross examined by Mr. Onkangi for accused, she stated that she saw the accused and deceased fighting in the maize shamba but were outside the shamba. She also stated that after the incident the accused went and called boda boda riders to the scene to assist deceased. PW3 Asha Nasambu Yusuf testified that she was in her house when PW1 Angela called her and then heard screams. She came out. She met the accused who told her she (accused) had killed the deceased. She saw the deceased lying down 10 meters away. Her father Yusuf and brother Musa came and together with boda boda riders they took deceased to hospital. Police were informed who came and took the deceased away. On being cross examined by Mr. Okamgi she admitted she knew the deceased who was a boda boda rider and would often ride in his motor cycle. She also admitted sending him to buy potatoes and would come to her home. He had asked her to be his girlfriend but she refused. PW4 Musa Wekesa testified that on the material day she saw Angela (PW1) crying. On asking her why she was crying she informed him that the accused had killed the deceased. He went to the scene where he found accused who was seeking for help as her husband was dying. He with others took the deceased to hospital where he died while undergoing treatment. On being cross-examined he testified that the incident occurred outside Asha (PW3) house. He stated that he had heard from one Mark of an alleged relationship between deceased and Asha (PW3) PW5 Joseph Matisi Sirange was at his butchery when accused went to him and informed him that she had killed her husband. He followed her to the scene. The boda boda riders wanted to assault accused. He went and informed police officer who came and he handed over accused to them. PW10 No. 233143 Chief Inspector David Kamadi recorded a statement under inquiry from the accused on 7.7.2016. she volunteered to make the statement and she signed it. He produced it as Exh.3 PW13 No. 216036 Corporal William Barasa was at Chesikaki police station when he received information from a member of public of the murder incident. He went to the scene. On arrival he found a woman in a house who opened for him. She was called Milly Masha Yusuf (PW3). She told him she was in the house when she heard noise. He arrested her and took her to Chesikaki police station. She later received accused and took her to the Chief Inspector where she recorded a statement under inquiry.
page 1 of 3
PW1. Dr. Haron Ombagi who performed the post moterm on the deceased found he had bruises on posterior neck, fracture of spine on C1 and C2, Injury to the left lung and haematoma. He formed opinion the cause of death was due to cardio-pulmonary arrest due to head injury. He confirmed that there were several injuries which showed he was hit several times by a blunt object. The accused gave sworn evidence in her defence. She testified that the deceased was her husband as they got married in 1998. They had 4 children. On 6.7.2016 at 1 pm she was going to Melon market when she saw the motorcycle of deceased near a house. She went there and pulled the curtain of the window and saw deceased sleeping with Asha Milliy (PW3). She went to beat Asha but deceased held her and pulled her outside. Once outside deceased hit her with fists. She then saw deceased start sweating and fell down. She went and called for assistance and he was taken to hospital by boda boda riders where he died. She was then taken to police. She denied hitting deceased but said deceased had a neck problem. The accused is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Section 203 provides: “Any person who of malice aforethought causes death of another person by any unlawful act or omission is guilty of murder.” In this case the prosecution has established that indeed the deceased died by the evidence of PW1 Dr. Haron Ombagi. Even the accused in her evidence admits that the deceased died. The deceased died as a result of blunt injury on the head sustained on the material day. PW2 Angela testified that it is accused who inflicted the injuries. PW4 Musa Wekesa who responded to the screams and went to the scene met accused who informed him that she needed help to take deceased to hospital. PW5 Joseph Matisi Sirange was in his butchery when accused went there and informed him he had killed the husband. The accused in her statement under inquiry Exh.3 in explaining what happened stated: “As I was going to the Mpesa shop, I saw my late husband’s motor cycle parked at the stage. When I was coming back from the shop I saw the bike still parked there but there was no body. I then, proceeded to the house of a lady I know as Milly. I passed through the main door of Milly’s house and saw two children sleeping beside the door. I overpassed them and went to the bed of Milly. I raised the curtain and found my husband and the said lady in a room. I wanted to hit the lady with a fist but my husband quickly stood up and grabbed me by the neck. He struggled with me up to outside I hit him with a brick on the foreface twice. I then told him that, today I gonna scream so that people can see your shame. I then screamed. He moved only a few steps and collapsed. I then ran to motor bike repairer namely Kariuki telling people there to come and assist me, telling them that somebody was dying but they refused to assist. I rushed a head found a motorcyclist namely Mark. I told him to assist. He went to the scene and as we wanted to lift my husband and put him on the motorcycle, Moses the son of Yusuf prevented us saying that I should carry the husband myself because I am the one who had caused that problem. Moses started beating me. He tore my clothes as he kicked me. Martin intervened and save me.” From the evidence of the prosecution witnesses and accused’s statement under inquiry, I find that it is the accused who inflicted the injuries on the deceased from which he died. The accused’s defence is that he found the deceased sleeping with PW3 Asha in her house. There is evidence that indeed the deceased was found outside Asha’s house with injuries. Though Asha denied it, it was common knowledge that she was a girlfriend of the deceased. Indeed, she admits she used to use his boda boda and often send him to buy groceries for her. I therefore find it established that there was intimate relationship between deceased and Asha in whose house he was found by the accused. An act of infidelity of a spouse particularly when done in presence of the other can be a source of anger leading to provocation. Section 208 provides: 1) The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered. 2) When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault. 3) A lawful act is not provocation to any person for an assault. 4) An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault. 5) An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.
page 2 of 3
Where it is established that the accused in committing the unlawful act that lead to the death of the deceased under provocation, the offence of murder is reduced to manslaughter. Section 207 of the penal Code provides: “when a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, is guilty of manslaughter only.” Considering all the evidence I am satisfied that the prosecution has proved a charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and convict her accordingly. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 2ND OF FEBRUARY, 2022. S.N RIECHI JUDGE
page 3 of 3