Republic v Hellen Adhiambo Tila

Bonaventure carried the man, and took him outside. He asked his grandmother to report the matter to the village elder, who escalated the matter to the police. He stated that he was not present when the accused was injured, and he did not know who hit him. He said that the accused did not tell him what had happened to the man. He said the deceased appeared drunk, when he saw him earlier in the morning. He understood that he had gone there to collect his debt. 4. PW3, Vitus Wanga Nyegenye, was the local village elder. The accused and another woman, Margaret, approached him, and reported that the accused had died. He went to the scene and confirmed it. He went to the police station, with the other woman, and made a report. The police visited the scene and removed the body. He explained that he learnt that the accused had built a house for the husband of the accused. He described the deceased as a person who often got drunk, and, if his debts were not paid, he would mouth. He said that the accused confirmed to him that the deceased died there. The witness did not see blood at the scene nor where the deceased was lying. He said the accused was in court because the body of the deceased was found in her house, adding that he did not know who killed him. 5. PW4, Mark Wabwile Wandera, was a brother-in-law of the accused. He testified that he was taking a child to school on his motorcycle. He later heard that he had died. He said that the deceased used to abuse alcohol. He did not visit the scene. 6. According to PW5, Margaret Makokha Wandera, on the fateful morning, the deceased came by her homestead, on his way to the home of the accused, where he was to collect a debt from her husband. Later the accused came and informed her that the deceased was sleeping at her house, and she required assistance to wake him up. She went to the scene, and called him 3 times, but he did not respond. She then went to call Boni, to ask him to come and see. Boni came and declared the deceased dead. He asked her to report to the liguru, which she did, and she and the liguru reported the matter to the police, who came and took away the body. He did not see the husband to the accused that day, and he could not tell whether he slept at the home. She said she was not present when the deceased was injured. She did not check the body of the deceased, and was scared, and did not even ask the accused what had happened. She stated that the accused was charged because the body of the deceased was found in her house. 7. PW6, Dr. Ted Timothy Tura, was the medical officer who performed postmortem on the body of the deceased. He noticed bruises on the chest, and a fractured left hand and left forearm. There was dried blood in the right ear and on the neck. There was a wound on the left leg, a cut on the right hand, a bruise on the right calf, a bruise on the shoulder and dry blood at the back of the right ear on the right side of the neck. There were indisposed small haemorrhages in the brain tissue, and a blot on the right base of the skull. He formed the opinion that there was diffuse axonal injury due to the injury to the head. He described the cause of death as blunt force trauma to the head caused by a blunt object. He stated that a fall would not cause a diffuse axonal injury. 8. PW7, No. 70819, Police Corporal Felician Maru, was the investigating officer. He was instructed to investigate a suicide report. He led a team to the scene. They found the body some 100 metres from the residence of the husband of the accused. They gathered that the body had been taken there from the house of the husband of the accused. They found that the accused, had been restrained by members of the public, on suspicion of being among the persons who had caused the death of the deceased. They found dry blood in the house of the accused, with fresh cow dung smeared in the room. The body was removed from the scene to the mortuary. The accused was re-arrested, from the members of the public, and taken to the police station. He alleged that the deceased was assaulted by the accused, together with her husband. The husband fled, and the accused went to report to PW5, after which the accused was assisted by, among others, Bonaventure, to move the body. He testified that the husband of the accused was later arrested, and charged separately. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19168/eng@2025-12-19 2

page 2 of 5

9. PW8, No. 109245 Police Corporal Shem Othoo, was from the scenes of crime. He processed photographic evidence, gathered at the scene, which he produced in court, as exhibits. 10. I found the accused to have a case to answer, in my ruling of 31st October 2025. I put her on her defence. 11. She testified on oath, on 11th November 2025. She said that the deceased visited their home early on the material day, asking for money, and her husband gave her Kshs. 200.00, to give to him. Her husband instructed her to tell the deceased that he was not available. While the deceased was still in the house, PW2 came, asking for his father. When he asked the accused where his father, the husband of the accused, was, the accused did not respond, given that she had told the deceased that he was not present. PW2 went into the bedroom and began to talk to his father. That surprised the deceased, as he had already been informed that the man was not available. She stated that she left the house, leaving the deceased there, and she went away to fetch water. When she got back, she did not get the deceased, and thought that he had left. She thereafter went about her usual activities. PW5 came over, to cut maize stalks, to feed her cattle, and left. On the way, she called out to the accused, telling her that she had found the deceased lying dead along a path. She said that her husband was not around at that time. She denied participating in the killing of the deceased. She stated that she did not know why her husband fled, suggesting that he might have feared threats from the crowd. 12. The elements for the offence of murder are well settled. The prosecution is required to prove the death, the cause of it, the role of the accused person in the causation, and the fact that the causation was with malice aforethought. 13. On the proof of the death of the deceased, the evidence was overwhelming. PW1, PW2, PW3 and PW5 all saw his body, lying on the ground, at a maize farm. They all knew the deceased, some as his relative and others as neighbours, and they all identified the body at the scene. PW7, the investigating officer, was in the team of police officers who visited the scene, after a report of the death was made to them, and they took the body away to the mortuary. PW6 was the pathologist who did the post-mortem on the body. Indeed, the deceased died. There was a death. The body was found. 14. On the cause of death, the evidence of PW6, the pathologist, is critical. He noted physical injuries on the body. He opened up the body, and noted head injuries, which had caused bleeding or haemorrhaging into the brain tissue. He concluded that the deceased had been assaulted, on the head, with a blunt object, and that that was what caused the haemorrhaging into the brain tissue, leading to the death. 15. On whether the accused was party to the causation, there are 2 aspects. The first is that no one, among the witnesses presented by the prosecution, saw the accused assault or do anything to the deceased, which could have caused his death. Nevertheless, the circumstances put her squarely in the picture. The deceased was placed at her home that material morning, and he interacted with her. PW2 found her with him. She, the accused, herself testified that the deceased did come to her home, seeking to collect a debt from her husband. PW2 saw her and PW5, and another remove the body of the deceased from her house. PW5 testified that the accused called her to her house, saying that the deceased was sleeping there, and she required assistance to wake him up. When PW5 went to the scene, it transpired that the deceased was not sleeping, but dead. Contrary to what the accused informed the court, in her defence, that she found the body lying outside her house, there was overwhelming evidence, that the deceased died inside her house, and, to conceal evidence, or to mislead or hoodwink the investigators, she caused the body to be moved from the house to another location. 16. As the accused person was last seen, by PW2, with the deceased, before the deceased died, a presumption would arise that she was party to the causation of his death, in the absence of an explanation. She did not offer one, when she testified. The deceased was found dead, so soon after https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19168/eng@2025-12-19 3

page 3 of 5

he was last seen alive, at the house of the accused, in the presence of the accused. The evidence was circumstantial, given that no one witnessed the killing, but it pointed inexorably to the guilty of the accused, in the absence of any explanation by her. 17. My conclusion is that there was material, placed on record, to establish the role of the accused, in the causation of the death of the deceased. 18. On malice aforethought, the various ways it manifests itself are spelt out in section 206 of the Penal Code. There is direct intention to kill, sputtered out verbally or in writing. It could be inferred, from the conduct of the accused. One, where the injury caused it so bad that it can only be inferred that there was an intention to kill, or cause grievous harm, from which death occurs. Two, the injury is caused in circumstances which suggest an intention to commit a felony, of one kind or other, and death occurs in the process. Three, where the injury is caused in circumstances where there is indifference, on the part of the accused, as to the consequences of what he is doing, when he is expected to know that his conduct could cause a deadly injury. 19. The injury that caused death, according to PW6, was to the head. It was bad enough to cause bleeding into the brain tissue, compromising the working of the brain. Such injury could only have been caused by a person, who either intended to kill, or cause grievous injury, or was indifferent to the consequences of what he was doing. Hitting someone so badly, on the head, in circumstances which did not point to an accident or inadvertence, only suggested that the person intended to commit some felony, or the causation of the injury was in the course of the commission of some felony, most probably assault. Whatever the case, the combination of the commission of the intended offence, and the ensuing injury, which caused death, amounted to malice aforethought. 20. The accused made efforts to conceal the fact that the fatal injury was caused within her house, by having the body moved to another location. Concealing traces of the commission of the offence, in this case through moving the remains of the deceased, and attempting to cover the blood in the house with cow dung, only made the matter worse. It compounded it. It pointed to awareness, by the perpetrator or perpetrators, that whatever she, or they, did, was criminal, and, to avoid detection, she, or they, had to take steps to conceal it, so that it did not catch up with her, or them. 21. I believe that I have discussed enough, to demonstrate that there is ample evidence that the accused did the deed of killing the deceased person herein, or was complicit in it, with malice aforethought. I, accordingly, find her guilty of the murder of Josephat Egesa Kwoba, contrary to section 203, as read with section 204, of the Penal Code, and I hereby convict her, under section 322 of the Criminal Procedure Code, Cap 75, Laws of Kenya. 22. For the purposes of sentencing, I hereby direct the Busia County Director of Probation and Aftercare Services to look into the antecedents of the accused, take the views of the family of the victim, and file a report within 14 days. A sentencing hearing shall be conducted on 9th February 2026. Orders accordingly. DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA, ON THIS 19TH DAY OF DECEMBER 2025. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Advocates Mr. Onanda, instructed by the Director of Public Prosecutions, for the prosecution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19168/eng@2025-12-19 4

page 4 of 5

Ms. Wasswani, instructed by Laki WI & Company, Advocates for the accused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19168/eng@2025-12-19 5

page 5 of 5