State v Elizabeth Kerubo & 2 others

told him that she had been on night duty. He said deceased used to do casual jobs for their for neighbours. On 28.2.24 at 6.00pm he was released from school to go home for half term. He said he is a day scholar. He went to his room and found that there was power outage and so he went to by a candle form the shop. He returned home at about 9.00pm. As he was preparing to eat, he heard screams from outside the kitchen and also the voice of deceased who was drunk and so making noise. He served his food and went to the sitting room where he found deceased tied on her legs and hands using a mosquito net while lying on the floor of the sitting room. 5. He said that his grandmother went to the sitting room and told deceased not give birth to another child while at home as she already had one child and that she should be disciplined. He had supper and went to bed and slept. While sleeping he was woken up by deceased who was crying saying she wanted to commit suicide as her life was being made difficult. He heard the grandmother say that she wanted to call her son Atika to talk to deceased. The deceased also pleaded to be set free. He woke up and went to grandmother’s sitting room and found deceased still tied there and sitting on the ground. Deceased was breathing with difficulty and she was weak. He then went to get fodder for cattle. He said that his mother told him that deceased had been disciplined and they should hold her and take her outside but deceased refused to be taken outside. Accused 1 later called one Mary who came and they took deceased to the ground outside the house. He went to graze their cows in the field and while there he heard grandmother scream. There were neighbours who were passing near the grazing field while taking tea leaves to the market and they asked him what was wrong at their home. He then went back home and found deceased sleeping but she was not breathing. He said Accused 1 told him that deceased was mute to test whether they love her. Accused 1 later went to call neighbours who went to their home and confirmed that deceased had passed on. He admitted that his statement says statement says that he saw her mother hit deceased with a stick and grandmother used a cable. He said not see accused assault deceased. She left them with deceased while waiting for her uncle to come talk to her. Accused 1 and neighbours then screamed and more neighbours went there and were surprised that deceased had died yet she was fine the previous day. He said that Police went to the scene and picked the body and took photographs and statements. 6. PW3, Norah Kerubo is a neighbor to accused. She said that on 28.2.24 at 2.00pm, deceased went to her home “Mum’’ went to her came and told her she did not have money to buy sugar and mandazı. She engaged her to get her some grass for her cow and she released her to go back home at 7.30pm. The grandmother to deceased went to her home that evening to drink busaa and she sold the same to her. The cow shed. On the next day in the morning a young man came and called her to go see what had happened at the home of mum. She ran to the home of the grandmother to deceased and Accused 1 started insulting her accusing her of causing deceased to take poison. She found deceased laying on a blanket at the door step facing upwards. She thought she was alive but she had passed on. She moved closer to her to touch her but neighbours stopped her. She realized that her hair was shaved unevenly and that she had multiple injuries on her body, her hands and bite marks and marks indicating she had been tied. There was a mark on the stomach looking like a burn. Also, that while there the grandmother to mum said she did not want prostitution in her home. She composed herself and asked them where the hair of mum had gone as she had it when she came to her place. They said that they shaved her as she was rude. She asked why they had tied her and they told her it was due to her rudeness. The aunt insulted her saying she usually gave her to men. The grandmother to deceased then said she died of her prostitution. 7. PW4 Christine Kimanga is a granddaughter to PW3 she supported the evidence of Pw3 in all material aspects https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19779/eng@2025-11-14 2

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8. PW2 Dr. Leah Obosi Okworo, a pathologist at Kisii County Referral have a post mortem report of Martha Maitaka Alias Mum. She conducted the post mortem herein on 3.3.24 at KTRH at between 3.00pm to 4.00pm. She said deceased had multiple bruises and abrasions on the exterior of her body. Internally she saw food material on the tracheal and bronchial tubes. On the head she noted a subgalea haematoma (bleeding in the occipital area) the brain had bleeding inside, as a result, she formed the opinion that the cause of death was: 1. Asphyxiation due to food material in the airway. 2. head injury to do subdural haematoma due to assault. She took samples for toxicology. i.e blood contents of stomach, piece of liver and one kidney. history given before post mortem. Asphyxiation is lack of oxygen. It was caused by the lack of oxygen in trachea. It is not a condition but as a result of something. It could be manual of medical. She told this court that in this case, food was obstructing the airway and that asphyxiation is different from suffocation as suffocation is manual as opposed to asphyxiation which is internal. She stated that in this case, asphyxiation was not caused but human hand but the circumstances the deceased was in. She said arrived at assault from the history and the nature of injuries. The injuries were all at the same stage on re examination, she stated that the abrasions were consistent in terms of age. In her experience such abrasions can be caused by abuse or assault, domestic violence or child abuse. Her report was conclusive as to cause of death. The toxicology report was to rule out alcoholism as alleged. 9. PW5, the investigating officer, Inspector Jacob Kola attached to DCI Kisii central. On 29.2.24, at 9.30 hours, they received information from the local chief Elvis Ratemo informing them of a person suspected of having been killed in Nyamimiso village on the night of 28th with the assistance of the local chief and police officers at Kisii Central Police Station they proceeded to the said location. He was among the officers who visited the scene. they arrived at around 10.00am and found a crowd of people who were shouting and demonstrating around the scene. They found body of the said Martha lying down facing upwards while covered with a blanket. It was one metre away from the main door. They took photographs as part of investigations. They found the suspected weapons ie sticks and electric cables in pieces, a piece of mosquito net (Pexh 1), (Pexh 3) and (Pexh 4) respectively. They also collected pieces of hair that they suspected to be from the body of deceased (Pexh 5). They collected the same and kept them as exhibits. They arrested Accused 1 and Jerusha as the crowd was baying for their blood. Members of public started pelting stones on the vehicle carrying the two ladies and the deceased. The public were murmuring saying the two ladies had conspired to kill deceased for their own reasons. 10. He witnessed post mortem which was carried out by Dr Obosi of KTRH and personally took photographs He literally counted the bruises on the body of deceased and noted that they were about 30. He also saw tie marks on the hands and legs which he connected with the ropes produced. He said he also saw dental bite marks on her thighs showing the extent of torture. The head showed that she was ruthlessly shaved. He interrogated Elizabeth Kerubo (accused no.1) who mentioned Wilson Kibeno and his wife Sharon Kibeno (Accused no. 3 and 4 respectively). They went back to the scene and got a lot of information from Mose (Pw1) a son toto Elizabeth Kerubo (Accused no 1). PW1 told him that he heard accused no.1 asking deceased where she had come from in Kiswahili and when he went to the main house and found Martha lying on the floor with his hands and feet tied. He said PW1 told him that he saw his mother beat Martha with an electricity cable on her leg and back and that Accused 2 also took the cable from his mother and beat deceased with it. Also, that PW1 went to the kitchen and heard Martha crying for sympathy saying kwa nini Wilson Unanipiga and tuliokuwa katika uhusuiano na yeye. This prompted Accused 3 to pick the cable from Accused 2 asking "ebu sema kama ni ukweli ama unawekelea bwana yangu, he said the grandmother hitting deceased with the stick on her legs and back (walking stick Pexh 5). On the next day they decided to look for the two other suspect https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19779/eng@2025-11-14 3

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Wilson and Sharon and fortunately managed to arrest the two of them that evening. On that 3.3.34 they locked them in police custody at Kisii Central Police Station for further interrogation. On cross examination Pw5 maintained that circumstantial evidence he collected incriminated accused in the killing of deceased. 11. The accused persons herein were placed to their defence, each of them opted to adduce sworn testimony Accused 1 stated that on that fateful night Martha returned home drunk and she entered the house and started fighting her grandmother Jerusha Moraa, she took her child, she threatened to kill the child and herself. She asked why she wanted to kill the child and herself but she roughed them up, and she took the child from her. It was her testimony that Martha started saying that she was sent from where she was taking alcohol to strangle the child. On the next day, Martha said she had pain on her head and she took her outside shaved her hair and then left her with the child while he went to bathe. Upon return, she found Martha lying down while facing up, she started screaming and police arrived shortly thereafter. Accused no.1 denied assaulting deceased saying that she took care of her since she was orphaned and that she loved the deceased so much. On cross examination. She denied tying the hands and legs if deceased. 12. Accused 2 Wilson Kebeno Nyabuto, denied the charge. He admitted being at the home of Jerusha (former accused no .2) on 28.2.24 at 8.30 pm with his wife Sharon Kerubo (accused no 3) and their children one of whom was very sick and he had taken the sick child to the home of Jerusha and her daughter Elizabeth who are herbalists. He said there was a commotion was between Jerusha, Elizabeth (Accused1), Jerusha (deceased) and Martha (deceased) who was drunk and she said she wanted to kill her child and commit suicide. She was holding a mosquito net rope. Elizabeth asked him to help, then he took away the rope from her. Elizabeth, himself and PW1 held her and tied her hands and she calmed down. She sat down on the floor thereafter. He hit deceased on the legs thrice with a cane asking her why she wanted to kill herself. They then left the home at about 9.10 am while the deceased alive, talking and in good health. He learnt of the death of deceased on 28.2.24 at night when he arrived from work. He said deceased was his sister and he acted in good faith. 13. Accused 3 Sharon Kerubo Kebeno on 28.2.24 at 8.00pm at 9.00pm was a Wednesday. Her youngest child was sick so she and her husband accused no .2 took the child Elizabeth and her mother (Accused no. 1and Jerusha the former accused no .2 herein). They found deceased Martha quarrelling with Jerusa her grandmother. She heard Martha say that she wanted to kill her child. She met Martha next to the door and asked her what the problem was and she told her that those people did not want her as she was an orphan. She found Jerusha, Martha, Hesborn and Elizabeth. Jerusha was carrying Martha’s child who was about 1 year and 5 months. Martha took away the child from Jerusha. Jerusha and Elizabeth asked Wilson to help them. Elizabeth then took the child from Martha and took it back to Jerusha. Martha then shouted asking whether the child belonged to them or her. Wilson and Hesborn (PWI) tied the hands of deceased to the front. She didn’t see anyone tying her legs. As her husband was tying the legs of deceased, deceased asked him whether she should reveal something between them, they continued to tie her and completed and she asked Wilson if he knew he had previously removed her blood. She (accused no, 3) slapped her on the right cheek and told her to talk. Accused no 1 told her to reveal everything. They left her in a good state though she was drunk. She did not see her shed blood and she did not hit her anywhere else. She denied involvement in the death of deceased. She said he had no issue with Martha. She said she slapped her as she said she had a relationship with Wilson which annoyed her. 14. I have carefully considered both the prosecution’s case as well as the defence, the submissions together with the cited cases. The accused as are charged with murder contrary to section 203 of the Penal https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19779/eng@2025-11-14 4

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Code. For a charge of murder to be sustained under the law, the prosecution must prove the following elements beyond reasonable doubt; i. Actus reus. ii. Identification of the killer iii. Mens rea or malice aforethought. (i) Actus reus 14. It has emerged from the evidence of PW1, PW3, PW4 and PW5 and the 3 accused herein that deceased died on or about 28.2.24. Even though the toxicology report was not produced the medical evidence by Doctor Leah Obosi (PW2), who performed post mortem examination on the body of deceased and the post mortem report as Pexh 1 proved that the cause of death was asphyxiation and head injury due to subdural haematoma due to assault. She said that the asphyxiation could have been caused by the condition of the deceased. There is evidence that the limbs of the deceased were all tied and this could cause deprivation of circulation of the oxygen in the body as found by the doctor. Actus reus was thus proved. (ii) Identiffcation 15. There is no eye witness to the killing of deceased and thus prosecution seek to rely on circumstantial evidence. Pw1 admitted in his evidence that he recorded in his statement that he saw accused assaulting deceased. It his evidence in chief he recanted and said he did not see any person assault deceased and he maintained this position on cross examination. PW5 investigating officer stated that he relied on the evidence of Pw1 had earlier said that he saw the accused persons beating deceased. Accused no. 1 denied the charge saying that she did not assault deceased on the head but she merely shaved her hair after she complained that her head was on fire. Accused no. 2 admitted that himself. Elizabeth and PW1 are the ones who tied the hands of deceased that night as she had threatened to kill herself and her child but denied tying his legs. He said he hit her legs thrice with a cane asking her why she wanted to kill herself. Accused no. 3 also denied killing deceased saying she only slapped deceased on her cheeks when she threatened to reveal her relationship with her husband. She said Wilson and Hesborne are the ones who tied the deceased. 16. The law on circumstantial evidence is Kenya is well settled. It must be shown that the inculpatory facts must be in incapable of any other incompatible with the innocence of accused and incapable of any other explanation other than the guilt of accused as was held in the case of Rex -vs- Kipkering Arap Koske & 2 others (1949) EACA 135 the court stated that: “ In order to justify a conviction on circumstantial evidence the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt and the burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.” 17. In R –vs- Ahmed Abolfathi Mohammed & Anor (2019) eKLR the Supreme Court inter alia made the following guiding observations; “ On its application, circumstantial evidence is like any other evidence. Though it finds its probative value in reasonable and not speculative, inferences to be drawn from facst of a case https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19779/eng@2025-11-14 5

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and, in contrast to testimonial evidence. It is conceptionalised in circumstances surrounding disputed questions of fact, circumstantial evidence should never be given a derogatory tag.......... with circumstantial evidence everything depends on contexts: circumstantial evidence can at times amount to overwhelming proof of guilt………………as where DNA match between the accused’s control sample and genetic material recovered from the scene of the crime…………. ” 17. The evidence by the Doctor indicated that the injuries were multiple and spread over different parts of the body and she also saw tie marks on the limbs of the deceased. The doctor a found that the cause of death was Asphyxiation due to food material in the airway and subdural hematoma. The cause of deceased was consistent with assault and the condition of the deceased as found by the doctor. Pw1 said that he was in the home with deceased, Accused1 and their grandmother on the material night and even in the morning. There is no evidence that any other person came into contact with deceased on the material night or on the next morning save for accused, PW1 and grandmother to deceased. PW1 said that Accused no. 1 and her grandmother said that were disciplining deceased for her immoral ways and that they did not want her to give birth to another child at home. PW4 said that they saw the head of deceased and noted that it looked like it was shaved with a crude weapon and that Accused no. 1 and the grandmother to deceased said they shaved her due to her rudeness and that she did not want prostitution in her home. PW3 and PW4 said that they saw serious bodily injuries on the deceased and yet when she left their place the previous night she was in good health. The said witnesses remained firm and consistent during their testimony and I do not see why they could have lied against accused. I find their evidence to be credible PW2 found that PW3 and PW4 said that when they visited the home of the grandmother to deceased, they heard her boasting that they had disciplined deceased for her wayward and immoral ways and that she was killed by her prostitution. Also, that Elizabeth (Accused no.1) accused PW3 for poisoning deceased and that she used to give her to men. This was not shaken on cross-examination. I believe their testimony. Accused 1 said she only shaved the hair of deceased but did not cause any injury on her head. However, PW3 and PW4 said that the hair looked like it was shaved with a crude weapon accused. Post mortem report revealed that deceased had occipital subgalea hematoma. It is invariably clear to me that Accused no. 1 is the one who shaved deceased with a crude weapon and caused the head injury to her as there is no evidence of any other person who came into contact with the head of deceased on the material day apart from her. Accused no. 2 and 4 admitted that they assaulted lightly on her legs and cheek to discipline her for threatening to kill her child and commit suicide commit suicide and also for alleging that she had an affair with accused no. 2 but the doctor found that deceased sustained multiple soft tissue injuries on the injuries spread in various parts of the body of deceased. She said that the injuries were caused consistent with assault. 18. I have carefully weighed the prosecution’s case and defence, from the totality of the evidence herein the inculpatory facts herein point at no other person other than the accused to be the killers of deceased as they and Jerusha (The former accused no. 2 herein) were the last persons who interacted with deceased and assaulted her. I proceed to dismiss the argument of accused that they did not inflict the fatal injuries on deceased as a mere denial. I find that accused have been properly placed at the scene. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19779/eng@2025-11-14 6

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(iii) Mens Rea. 19. It is trite law that Actus Reus by itself cannot constitute the offence of murder unless it is accompanied by Mens Rea of Section 206 of the Penal Code. The section provides; Malice aforethought “ Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused”. 20. PW1 said that accused no.1 and his grandmother quarreled with deceased the previous night and they said she should be taught a lesson and that when he saw deceased on the next morning she was breathing with a difficulty and looked weak. PW3 and PW4 said that they saw serious bodily injuries on the deceased and yet when she left their place the previous night she was in good health. Pw3 and PW4 said that they saw the head of deceased and noted that it looked like it was shaved with a crude weapon and that Accused no.1 and the grandmother to deceased said they shaved her due to her rudeness and that she did not want prostitution in her home. Pw3 and the injuries sustained by the deceased were grave and visible and it is clear that they all acted with a common intention to discipline for her alleged wayward ways as per the evidence of PW1, PW3, PW4 and PW5 herein. 21. This court finds that the deceased was tortured and assaulted by accused for a long time on the material night despite her request to be untied and they caused her grave bodily injuries which were life threatening which he later succumbed to. I find that mens rea was proved. 22. Accused acted as moral police and decided to discipline deceased against the law. Even if the deceased had lose morals they had not right to assault her the way they did. 23. I find that the prosecution’s case against the 3 the accused persons herein overwhelming. Prosecution has proved their case against accused beyond any reasonable doubt. I find each of them guilty of Murder Contrary to Section 203 as read with 204 of the penal Code. I proceed to convict each of the same under Section 322 (2) of the criminal procedure Code. 24. 14 days Right Appeal against conviction. T. A ODERA JUDGE 14.11.25 DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 14TH DAY OF NOVEMBER 2025 IN THE PRESENCE OF: The 3 accused Mr. Koima for the State https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19779/eng@2025-11-14 7

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Mr. Magara and Mr. Nyariki for the Accused Court Assistant -Mr. Kipchirchir. Koima: We do not have previous records against accused. Magara: We pray for a pre-sentence report before mitigation. Order: Pre-sentence report be file and served upon parties within 21 days from today. Mention on 29.1.26. Remanded in custody. T.A ODERA JUDGE 14.11.25 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19779/eng@2025-11-14 8

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