Republic v Ann Ndunge Nzivi

the steam then stopped crying. Then her 1st child came to call her telling her that she was being called by the grandmother to tie the goats. They left together. 7. Later that afternoon while returning home from a Kyathi she heard her aunt and “Mwaitu” raising alarm (mauite mbu) on reaching there they found the 2 children hanging from trees while Anna was seated there with the other child. She was crying. She told them she found the children already killed. They rang the village elder who rang the Assistant Chief. 8. Pw6 Mbeneka Muteti testified that she was the one who was living with Anna and her three children – Muuo, Mutheu and Mumo. That on 12/11/2024 Anna made lunch – and gave her. She ate and went for Kyathi. When the Kyathi was over she heard screams – Anna was saying that her children had been killed. She was crying and screaming. She went and took the baby from Anna. She too began to cry. She told the court that Anna had a good relationship with her children – that she took really good care of them. 9. Pw2 Ruth Kilungya testified that she was Anna’s aunt – as Anna was a child of her sister. This witness testified that ton 12/11/2024 she was rang by her sister – Esther Maweu who told her that children of Anna had been killed. She rushed there – and found – Jeremiah was seated leaning on a tree with a rope round his neck – while Blessing was hanging on a tree nearby. 10. Shortly the assistant chief Pw4 Whitney Matee arrived. She testified that she was rang by Anna Maweu on 12/11/2024 at 6:00 pm. Anna Maweu was the village elder at Kwa Menya village. She told her that 2 children of Ndunge Nzivi had been found killed in the bush. She went there and saw the 2 children hanging from different trees; she took a photo and reported on the Divisional WhatsApp Group. Police arrived about 7:30 pm – took the bodies of the children, and their mother Ndunge Nzivi. 11. She testified that Anna told her that she left the children at home, went to tie the goats, came back, found the 2 missing and the youngest seated outside the house. She went out calling children, only to find them hanging on the trees. 12. On cross-examination this witness told the court that she observed the scene – she said that where Jeremiah was seated – he would not have died from hanging on that tree – it was “Ka – tree” too small to carry his weight; for Blessing and she said the rope was on another tree, and the child was leaning against another “Ka-muti (Ka-tree)” small tree. She said the children were already dead. 13. She testified further that she was rang by one Madam Sarah from DCI Salama who told her that Anna had confessed. She said she went to Salama DCI Office with Anna’s aunt – Madam William .That the police officer told her to tell the chief what she had told them. She said this was the 13/11/2024, she said after hearing the confession she did not sign anywhere. 14. Pw5 No. 234464 Chief Inspector. Daniel Kithuri Nyaga was OCS Salama Police station. On 14/11/2024 he was told by his colleague from DCI that she had a suspect who wanted to confess.He was told that there was an aunt who could come – the aunt came with the Assistant Chief. That after preliminaries the accused told them that around 3:00 pm a voice told her to take the three children and strangle them. She took the three children, and three ropes used to tie goats –She told the children to accompany her – told them they would play a game – she strangled Jeremiah first tied his legs and hands – covering his nose and mouth, then untied legs and hand, then tied the rope round his neck, she did the same with Blessing. When she went to the 3rd child – Patience, the voice told her she was doing wrong – she untied Patience who she had tied, put her on her back and went back home. Upon reaching home she began to scream that she could not see her 2 children. On reaching where they were she raised alarm that they were both dead. He produced the confession as PEx 2 (a) and (b). On cross- examination the witness told the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6437/eng@2026-05-12 2

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court that he had cautioned the accused before he took down her confession, that he had taken note that the court had directed that she needed an order for mental assessment, he said he did not have any mental health assessment report to confirm that she was ok. He said the accused lived with her mother, he was told the mother died a long time ago – He said that accused was living with the grandmother. When it was put to him that Ndunge did not ask for the Assistant Chief and her aunt, the witness said that Ndunge could speak for herself. When it was put to him that Ndunge had said she was forced by a police to confess he said that when she was before him she never said she was forced. Pw7 No. 10583 Pc Sarah Kagendo from DCI Mukaa testified that she investigated this case. She testified that Anna confessed to the murder of her 2 children on 14/11/2024. She then sent her for mental assessment on 18/11/2024. She said Anna was found not fit to stand trial, was put on medication and that it was after review that she was found fit. On cross-examination she said that she concluded that accused had committed the offence because the accused confessed to the killing. On where the ropes that strangled the children came from. She said that the grandmother said they came from her house; she confirmed that the accused had not been taken for mental assessment before the confession. She said she was not aware that the accused person had been cleared for plea after the 4th mental assessment. She testified that she was present when the accused was warned of the consequences of a confession. She testified that it was the accused who asked for her aunt to come. She testified that Anna was booked after midnight on the day of the offence, nobody saw her commit the offence – that she had a good relationship with her children and had never tried to harm them. The prosecution closed its case. The Defence 15. In her defence Anna told the court that she hailed form Kasikeu. 16. She told the court that on 12/11/2024, she was at home around 3:00 pm – she went to tether the goats – upon return, she did not find her 2 children – Jeremiah and Blessing - the last born Pauline Mumo was at home. She went looking, shouting their names and found them hanging from trees “ Wamehang’iwa kwa miti” That when she saw them she began to scream for help – That the village manager came, the assistant chief, the police and took the bodies away. She said on 13/11/2024 she recorded a statement at the police station. She said she went to the office of the DCI and was told that some people from home were coming. When they came they went to the office of the OCS where she was to record a statement “vyenye kulienda” 17. She said she recorded the statement but that “nilikuwa nimetishiwa maisha.” She said the police officer at the OB desk told her to say that she was the one who had committed the offence. That after recording the statement she was taken to the cell, and the next week she was taken to hospital. When asked by her counsel whether she had anything else to add she said tearfully “Ninaomba Korti inisamehe” 18. On cross-examination the accused told the court that at the material time she lived with her grandmother and her three children; that there were close neighbours; that her aunt’s home was close by – that there were people in the home – but she never asked them whether they saw anything and they never told her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6437/eng@2026-05-12 3

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19. She said she searched for the missing children for about 1 hour. 20. Asked what led her to where the children were tied – she said she did not know, asked whether it was good luck, she kept quiet. 21. She said she was threatened to record the statement, she said the officer told her if she did not record the statement, when she came out people at home would kill her. Asked why she asked the court to forgive her, she said because she was the one who had them the last minute. The prosecution posed the question “Makosa gani ulifanya ili uombe msamaha wa korti ?” The accused began to cry and was stood down. 22. At the next cross-examination the same question was posed, she said she had nothing to tell the court, she said she saw no mistake. 23. On cross-examination by the court she said the home nearest her grandmas’ was about 5m away – that there were people in that home – but that she never went there to ask whenever the children were there –She said she found Patience alone , and Patience was ok. She said when she found the children missing “Ilibidi nielekee tu kwa njia nikienda kuwatafuta” but did not ask at her auntie’s place whether the children were there. She said she had left to tie the goats and came back after about I hour when she found the 2 children missing. The Defence closed. Mr Mutanya sought time to ffle submissions. Analysis and Determination 24. I have looked at the CTS and I have not found any submissions. 1. Now Section 203 as read with s. 206 of the Penal code sets the ingredients of the offence of murder. These were summarized by the Court of Appeal in Anthony Ndegwa Ngari -vs- R [2014] eKLR, as follows; 2. a. The death of the deceased occurred and its cause. b. That the death was caused by an unlawful act committed by the accused (actus reus). c. That the accused had malice aforethought (mens rea). After careful consideration of the evidence and the submissions, the issues for determination a. Whether the prosecution has proved the ingredients of murder were established beyond a reasonable doubt. i. Proof of death ii. Cause of death iii. Who caused the death? iv. Whether there was malice afore thought? a. Whether the accused person’s confession is admissible against her. b. Whether the accused person was suffering from a mental illness at the time of offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6437/eng@2026-05-12 4

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c. What final orders to make. 2. 25. On the ingredients of murder : On proof of, and cause of death. There is no doubt that the children died. They were found having been strangled, and dead at the scene. The postmortem report confirmed cause of death to have been strangulation/asphyxia, clearly this was not natural causes. The pathologist confirmed that there were rope marks round the necks of the children. Clearly the deaths of the children were unlawfully caused, and a person had killed them. Who caused the deaths of the children? 26. According to the prosecution, their mother the accused person was the last person to be with the children – something she acknowledges and on that basis she was the first suspect. 27. Secondly the prosecution relied heavily on the accused person’s confession as the source of proof that she was the one who committed the offence. The accused person on cross-examination during the defence told the court that she had been coerced to plead guilty – that the officer at the OB desk told her that if she did not plead guilty the people at home would kill her. 28. According to the prosecution – and the Investigating Officer specifically the accused told her, and other lady officers at the police station what happened – and it is at that time that the Investigating Officer called the officer who took down the confession. 29. It was the case for the prosecution that the accused asked for her aunt who came with the Assistant Chief. 30. I have perused the statement dated 13/11/2024 said to be that of Ann Ndunge – there appears to be some signature on her part. However, there is no evidence at all that Assistant Chief Whitney or her aunt Ruth were actually present. Neither of them has signed the document to establish that they were present and actually witnessed the accused person make and sign the statement. 31. What I am saying here is there is a point in a trial where the defence raises an objection to the admission / (production) of the confession and therefore trigger a trial within a trial to determine its admissibility. That did not happen. However, it was evident from the accused person that she repudiated the confession stating that she had not made it voluntarily but through undue pressure by an officer she did to name. 32. What is significant to this case is that the accused’s statement was taken on 13/11/2024 – On 18/11/2024 when she was taken for psychiatric examination the psychiatrics report says – “charged with filicide (of two children) which she admits happened without a sane mind”.The report further states that “the client admits having heard command voice (command hallucination) with a delusion” She was found not fit to plead; she was started on medication 33. Evidently at the time of confession, the accused could have been in a lucid moment but at that time the police had not taken for psychiatric examination. 34. Another report dated 7/1/2025 also carries the same information – that she was charged with filicide which she admitted but alleged insanity.The psychiatrist noted that “the hallucinations were sudden and transient” 35. She was put on treatment and was stable. However, that she had a current mental illness and was on treatment – it was recommended she was fit to plead. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6437/eng@2026-05-12 5

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36. A further report dated 3/2/2025 carried the same information that she was charged with filicide which she admitted, alleging insanity. The psychiatrist indicated that “The client had active psychopathology at the time of the incident… the hallucinations were sudden and transient.” 37. He also stated that he had corroborated from relatives (not named) of voices commanding her at time of the incident. 38. It is noteworthy that during the defence the accused person did not make reference to these findings by the psychiatrist – and did not also plead insanity. However these reports form part of the record – as it is always on the strength these assessments that the court determines whether or not an person accused is fit to plead/stand trial. Even in the case of the accused it is only after the psychiatrist had cleared the accused as fit to stand trail that the court took plea. 39. Hence – these cannot be ignored – because had the psychiatrist made a different finding the accused would have ended up in a psychiatrist hospital. 40. From the demeanor of the accused at the time of plea, during the hearing and during the defence it appears to me that the accused had episodes of awareness of what had happened and would break down and cry – the court had to draw conclusions whether it was grief versus regret – grief for losing her two children or regret and grief – of terrible thing that had happened had happened to her children and that she had something to do with it, and in the process she had lost her 2 elder children. 41. The fact is that there no doubt she was the only person who was at home when this incident happened. There were no screams from the children in a scenario where a stranger had taken them. There is no evidence of any struggle, no evidence that anyone else had come to the home at the time when she was there – the only evidence is that she is the one who was at home with her children. 42. Her aunt told the court that the father(s) of the children was/were unknown, and that they were not aware of any person who would have claimed the children/ hence harm the children. 43. Clearly the only person who would have known that happened is their mother – the accused person. 44. All the circumstantial evidence before me points at the accused person as the person who killed her 2 children. 45. In Sang o Mohame d Sang o & anothe r v Republic [2015] KECA 178 (KLR) the Court of Appeal had this to say on the issue ; 46. There is no dispute that the evidence against the appellants was circumstantial evidence to the extent that the prosecution did not adduce any direct evidence regarding the murder of the deceased. But as has been stated time and again, that in itself does not render circumstantial evidence valueless, because, subject to satisfying well-known conditions, circumstantial evidence is as good as any other evidence and can prove a case with the accuracy of mathematics. At times, it s deemed the best evidence ever. (See Musili Tulo V. Republic, CR. APP. No. 30 of 2013). In Sawe V. Republic (2003) KLR 364, this Court stated that to pass muster, circumstantial evidence must be incompatible with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of his guilt and further that for circumstantial evidence to form the basis of a conviction, there must be no other existing circumstances which would weaken the chain of circumstances. 47. The case of the accused person herein snugly into this criteria Was there malice afterthought?. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6437/eng@2026-05-12 6

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48. In Tebere s/o Ochen v R (1945) 12 EACA 63 the court stated what is required to prove malice aforethought beyond a reasonable, it was stated:“ Intention is to be manifested in the various acts of the accused for a positive inference to be drawn in favour of the prosecution. Thus, the prosecution must show the nature of the weapon in possession of the accused, the manner it was used, the severity of the injuries infiicted and vulnerable parts of the body targeted and finally the conduct of the accused person.”( Emphasis added) 49. I have pointed out the evidence of the mental health assessment reports – that according to the psychiatrist the accused had transient insanity – and in that moment she killed her 2 children. 50. Hence, even without the confession, the circumstantial evidence supported by the psychiatric examination indicates that according to the accused and her family this happened in a moment of when the accused did not have her complete wits with her , and the record shows that the accused immediately regretted what she had done. this appears to be the explanation for the bouts ,of grief , of regret, of remorse. 51. The evidence undoubtedly points to her having killed her 2 children; it also undoubtedly establishes that she did not have malice afterthought 52. In her circumstances she is guilty of manslaughter contrary to section 202 as read with section 205 of the Penal Code – and I convict her accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY ON 12TH MAY 2026 MUMBUA T MATHEKA JUDGE CA Daniel Accused Present Mr. Muendo holding brief for Mr. Mutanya for accused Mr. Musyoki for state Judgment HCCRC E028 of 2024 Page 2 of 2 R vs Ann Ndunge Nzivi Signed By/for: LADY JUSTICE MATHEKA, TERESIA MUMBUA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6437/eng@2026-05-12 7

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