Republic v Faith Mwende Lucas

message. According to the husband, they discussed the issue and he admitted having been involved in a love affair with Florence but that the relationship had ended. 7. However, according (PW1) IM Mukhwana, the accused was not convinced and became agitated. That even then they slept peacefully and the following day, he left to go to work but was later called and informed that their house had been set on fire. 8. The witnesses (PW4) Loice Wangari, (PW5) Stephen Mungai, (PW6) Mary Wangui and (PW7) Elizabeth Wanjiru who gave evidence in relation to the particular incident stated that on the material date, the 25th March 2020, they saw smoke coming out of the accused’s house which was under fire and heard the accused screaming as she came out of the house but collapsed at the door. 9. That they rescued her as she had a stab wound and had been burnt and rushed to hospital. However, they tried to put off the fire but they were not successful and at the end of the day, the two children were confirmed dead. The bodies were taken to the mortuary for post-mortem which was conducted by Dr. Titus Ngulungu and in a nutshell, the doctor confirmed that these children died as a result of stab wounds on the chest and right lung and that they died before the house was set on fire. 10. In the meantime, the report of the incident was made to the police, who visited the scene visited and processed. The accused person was later charged after the investigations. 11. At the conclusion of the prosecution case the accused was put on her defence and she denied committing the offences but conceded that they had a strained relationship arising out of the love affair between her husband and one Florence. That the night before the incident, her husband sent her to go and buy meat and when she returned she found her son DW crying. 12. That she inquired into the matter and the child told her that his father had beaten him and when she questioned her husband he blamed her of poor parenting. That she went through her husband's messages in the phone and he was not happy and beat her and they fought the whole night. 13. That the following day, she saw the children had been stabbed to death but did not know what had happened and because she was unhappy, she took a knife and stabbed herself too. She stated that she could not tell at what time the house was set on fire but maintained that it is her husband who caused the death of their children. 14. At the conclusion of the trial, the defence filed their final submissions which are considered herein. 15. The accused in her submissions argued that there is no direct evidence linking her the offence. That, the entire case rests on circumstantial evidence and cited several authorities that have set down conditions to be satisfied before the court can convict on circumstantial evidence. 16. It was further submitted that malice aforethought as defined under section 206 of the penal code was not proved. Further, there is no evidence as to the time the husband left the house and/or that he actually left 6:30 a.m. Furthermore, that the fire was detected at 8 a.m. and so it is not clear when the children died. 17. That the husband confirmed that they fought the whole night and therefore it is not true that they had a peaceful night as he stated. Consequently, even the husband could have murdered the children. 18. The defence further submitted that the accused’s DNA was not found on the knives recovered. Further there is no evidence that she had the intention to kill the children. Finally, it was argued that mere suspicion is not a basis to convict the accused person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/987/eng@2026-02-05 2

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19. At the conclusion of the trial and in considering the evidence I find that the offence of murder is stipulated under section 203 of the Penal Code which states as follows: “ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder” 20. Pursuant thereto, the ingredients of the offence are settled by various court’s decision as follows; a) proof of the death of the deceased, b) that the death was caused by an unlawful act or omission of the accused, and c) that the act was committed with intent to kill or cause grievous harm, basically malice aforethought. 21. The court of appeal decisions in the case of; Roba Galma Wario v Republic (2015) eKLR reiterate these elements, emphasizing that proving these ingredients beyond reasonable doubt is crucial for conviction, with malice aforethought distinguishing murder from manslaughter. 22. The question is what does “beyond reasonable doubt" entail? It is the high legal standard of proof, required in criminal trials for a conviction, meaning the evidence must be so convincing that a rational person would not hesitate to act on it in their most important personal affairs, leaving no logical reason to doubt guilt, though it doesn't mean 100% certainty. 23. To revert back to the matter herein, it suffices to note that; the best evidence in proof of death and the cause thereof is usually through an autopsy report, pathologist's evidence. 24. In the instant matter (PW8) Dr Titus Ngulungu testified that he conducted post mortem on the bodies of the deceased on 31st March 2020. That upon examination he noted the body of DWW had superficial burns on the limbs and head, three (3) severe stab wounds on right and left chest and epigastric region and that the stab wounds had caused injuries and severed pulmonary artery. 25. He also observed 300mls blood in the chest and left hemithorax cavity covering the heart. That there was no carbon soot in respiratory system which means the child was not breathing when the fire broke out. He concluded that that the cause of death was heart/lung injury with hemopericardium due to multiple sharp, face trauma to the chest which is consistent with homicide. He took blood, clothing and finger nails for DNA analysis. 26. That as regard BW he noted five (5) stab wounds on the chest, concentrated on mid chest. Furthermore, there was an injury on the epigastric with intestines hanging from it. That there were further stab wounds on the right lung, as such the lungs were deflated and collapsed. 27. That the heart showed several stab wounds through the heart muscle but no carbon soot, and blood in the hemithorax measuring 200mls. The doctor concluded that the cause of death was chest organs injuries involving heart lungs with hemithorax due to multiple sharp trauma through the child. He took clothing, nails and blood for DNA analysis. 28. Based on the afore evidence and as conceded by the defence, there is no dispute that the death of the deceased herein occurred and/or the cause thereof. 29. The next question is whether the death was natural, accidental or intentionally caused? In this regard there must be must proof that the death resulted from the accused's direct action or failure to act, and this act must be unlawful. 30. The right to life is enshrined in Article 26 of the Constitution of Kenya 2010, that guarantees life from conception and prohibits intentional deprivation of life, except where authorized by law (like the death penalty), or for abortion in specific medical emergencies. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/987/eng@2026-02-05 3

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31. In this case Dr Ngulungu testified that the cause of death in both cases was consistent with homicide, thus ruling out lawful cause of the deaths. 32. The next issue to interrogate is who caused the death of the deceased. Notably whereas the prosecution’s case is that the accused committed the offences, the accused blames her husband (PW1) IWM. In addressing this issue, the court notes that, the evidence herein reveal that, the matrimonial relationship between the accused and her husband was strained and/or characterized with frequent disagreements or quarrels and fights. 33. IWM (PW1) the accused’s husband testified that, before the death of the children, they had disagreed and the accused left for her parent’s home before returning back. (PW5) Stephen Maina Mungai the couples neighbor testified that they used to quarrel a lot. (PW6) Mary Wangui stated that the accused had run away to her home after disagreeing with her husband. It follows that the children were exposed, but the question remain, who eventually killed them. 34. In further evidence, (PW6) Mary Wangui stated as follows: “ On 25/3/2020 I was staying with Mama DW in the same plot. She had 2 children. When we were staying with her she said she could kill her children and run away. I told her the children belong to the government. When we were talking in the plot. I cannot recall the exact date. After I told her the children belong to the government she ran away. She left the husband to Ukambani”. 35. In addition, (PW1) IWM stated that in the month of March, 2019 the accused tried to burn their house with gas cooker. That she left the gas leaking and the family was told to vacate the plot. (PW3) Eliud Mbugua Gitahi, an estate agent with Njendu Commercial Enterprises, who let the house to the couple testified that, there was a time he was called by other tenants and informed that, the accused wanted to burn the house. That he went to the plot and found the house smelling paraffin and that when he asked the accused why she wanted to burn the house, she told him that she had differences with the husband and that is why she wanted to burn the house. 36. Further evidence reveals that on the fateful day when the house caught fire, it is only the accused and the children who were in the house. According to (PW1) IWM, he woke up at about 5.50am and as he prepared to go to work, the accused woke up to make tea but he told her not to as he was running late. That he gave her four hundred shillings (Kshs 400) for food for the day and left the accused in the kitchen and children in the bedroom. That he went to work by matatu and arrived at 7.40am. 37. That at about 9.19am, a neighbour, one Stephen Mungai called him, and told him his house was on fire. (PW5) Stephen Maina Mungai confirmed that he called PW1 IM and informed him of the incident and that he arrived at the scene when the accused had already been taken to hospital and children were dead. Mary Wangui (PW6) testified that she saw (PW1) IM going to work on the material date at 7.00am 38. The evidence of (PW12) Ann Mumbi PC No. 24xx35 attached to DCIO Gilgil on investigation duties, is that in the course of investigation, it was established that at the time of the incident (PW1) IWM was at his place of work at Weigh Bridge where he reported at 8.45am as evidenced by the attendance sheet produced in evidence. That investigation further established communication data from PW1 IM’s phone obtained from Safaricom (K) Ltd, indicated that, on 25th March 2020, he was at Gilgil Toll station at 7.40am. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/987/eng@2026-02-05 4

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39. Based on the afore evidence, it is clear and certain that at the time of incident the accused was the only person in the house with the children. Consequently, the accused is the only person who can say what happened to the deceased children. 40. It suffices to note the doctor who performed post mortem stabbed that the children were stabbed to death before the house was set ablaze. The accused stated in her defence that she doesn’t know how the fire broke out. At this point several questions arise; if it is the accused’s husband who stabbed the children, why didn’t she raise an alarm? Furthermore, why did she stab herself? 41. Based on the entire evidence herein, it is not difficult to tell who killed the children and the reason. The evidence analysed herein reveal the accused had expressly told (PW6) Mary Wangui she would kill the children and had attempted to set the house on fire. She had accused her husband of infidelity which he confessed to, she had seen messages in his phone the night before the murder and obviously by killing the children and stabbing herself she wanted to teach the husband a lesson and/or revenge. 42. The last question is; did she have malice aforethought? The circumstances under which malice aforethought exists are tabulated at section 206 of the Penal Code as follows: 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; (c) an intent to commit a felony; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony. 43. In this particular matter, at the expense of repeating what is already stated reveals that the accused had expressly told (PW6) Mary Wangui she would kill her children and run away because she had disagreed with the husband. Further before the incident herein, she had attempted to set the house on fire using paraffin. The Government analyst found traces of paraffin which means she actually bought it earlier in the day. Furthermore, she stabbed the children severally on the chest and set them a blaze. all these factors point to the fact that she wanted to kill the children hence proof of malice aforethought. 44. The defence argue that this case rests on circumstantial evidence. The circumstances under which the court will convict on circumstantial evidence are settled. In the case of; Abanga Alias Onyango vs. Republic CR. App No. 32 of 1990 (UR) the court stated 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, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/987/eng@2026-02-05 5

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45. ii. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused, iii. the circumstance taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human possibility the crime was committed by the accused and no one else.’’ The case of; Sawe vs. Republic [2003] KLR 364 the court stated that in order to justify conviction on circumstantial evidence, “ …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. There must be no other co - existing circumstance weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden which never shifts to the accused.’’ 46. Pursuant to the aforesaid and taking into account that the accused was very unhappy with the love affair the husband had with one Florence, that they quarrelled and fought severally, she would take off from her matrimonial home and return, swore to kill the children most likely to punish or teach the husband a lesson due to their strained matrimonial relationship, attempted to set the house a blaze once again with paraffin which she had used earlier, bought paraffin and torched the bedroom after stabbing the children. It is clear that all these factors taken accumulatively form an unbroken chain that it leads to only one conclusion, the accused murdered the children herein. 47. The upshot of the afore said is that I find the accused guilty as charged on both counts and convict her on both accordingly. DATED, DELIVERED AND SIGNED ON THIS 5TH DAY OF FEBRUARY, 2026. GRACE L NZIOKA JUDGE In the presence of: Ms Chepkonga for the State Mr Owuor for the accused Accused present virtually Hannah Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/987/eng@2026-02-05 6

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