Director of Public Prosecutions v Wasua (Criminal Case E252 of 1000) [2025] KEMC 375 (KLR)

customers. She said she pushed him out to restore order, but he slipped and fell. She closed the bar and went home, only to learn later that the patron had died. She pleaded remorse, insisted she had no intention to kill, and asked the court for mercy. B. POINTS FOR DETERMINATION 4. In order to set out the grounds for determination it is crucial reproduce the relevant section of law dealing with manslaughter. Sections 205 of the Penal Code states as follows: “Manslaughter (1) Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter. (2) An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.” 5. In view of the above, and going by the points laid out by Justice Makau in Republic vs George Onyango & Another [2016] eKLR, this court sets out the following ingredients to be determined: i) Whether the accused caused the death of the deceased? ii) Whether the death arose out of an unlawful act? C. ANALYSIS 6. The onus of proving criminal cases always rests with the prosecution and does not shift to the accused at any one given time. It is the law in Kenya as entrenched in the Constitution under Article 50 (2) (a) that an accused person is presumed to be innocent until the contrary is proved. The Evidence Act Cap 80 of the Laws of Kenya at section 107 (1) provides thus: “whoever desires any court to give judgement as to any right or liability dependent on the existence of facts which he asserts, must prove those facts exist.” Page 2 of 6 MCCR E252/21

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7. As to what constitutes the burden of proof beyond reasonable doubt, the case of Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373 by Lord Denning provides as follows: “That degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.” i. WHETHER THE ACCUSED CAUSED THE DEATH OF THE DECEASED? 8. Firstly, it is crucial to underscore the fact that life is sacrosanct and it is jealously guarded and protected by the Constitution of Kenya. Section 26 thereof states as follows: “(26)Right to life (1) Every person has the right to life. (2) The life of a person begins at conception. (3) A person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or other written law. 9. It is therefore incumbent upon everyone to take steps to ensure that they do not take away the right to life of any person. Dr. Michieka Ochoga Michieka (PW 7) examined the deceased, MUSAU MUTHOKA, through a post mortem examination and held that the cause of death was head injury due to blunt force trauma. It is consequently not in doubt that the deceased died. The question that begs to be answered is whether it is the accused who caused the death to occur? 10. The post mortem report shows that the deceased had a tear/laceration measuring 4cm x 0.5cm placed centrally on the forehead. He had dried blood on his face. Further, that he had occipital hematoma which the doctor explained that his brain was full of blood Page 3 of 6 MCCR E252/21

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that raised inter cranial pressure. He attributed these injuries to a blunt force trauma. 11. On the fateful date, Robert Muthama (PW 4) an advocate was enjoying his drinks at Vicaros club. He knew the accused well. As he took his drinks a man got into the club looking drunk. He became a nuisance and was thrown out of the club. He came back after half an hour. He was escorted out by the watchman. He came in a third time and even broke a glass. He refused to leave this time and the accused pushed him out with a view of getting him out. The push led him to fall backwards. He hit his head on the latch compartment which occasioned a cut on the rear side of the head. That is when PW 7 left. 12. The accused did not cross-examine him at all. He was an eye witness who saw the occurrence of the events that led to the death of the accused. 13. The owner of the club, PW 1 testified that the accused herself called him and told him that the deceased who was troubling patrons got injured when she tried to push him out of the club. In as much as he had said they should take him to hospital, he was called 30 minutes later by the manager who asked him to rush over as the accused was critical. He took the deceased to hospital but was pronounced dead on arrival. The testimonies of pw 4 and PW 1 are consistent with the injuries the government pathologist saw on the deceased. 14. The accused herself in her defence admitted to having pushed the deceased out of the club and occasioned him to fall backwards. She was later informed that she had killed him. There is no doubt that the injuries the deceased suffered arose from the acts of the accused on the night of November 06, 2021. 15. As a consequence, this court finds that it is the accused who caused the death of the deceased, Musau Muthoka. Page 4 of 6 MCCR E252/21

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ii. WHETHER THE DEATH AROSE OUT OF AN UNLAWFUL ACT? 16. In law, it matters not whether one intended to commit an unlawful act or not. Once committed, it is against the law. In the case of Issac v Republic (Criminal Appeal E005 of 2024) [2024] KEHC 13284 (KLR) Justice J. N. Onyiego in a case of manslaughter held as follows: “As to the mensrea, he is deemed by inference to have known that his action was likely to cause injury to the deceased hence an unlawful act capable of attracting liability in this case death. It does not matter whether he desired the death of the deceased or not. He must be answerable to the eventual consequence of his unlawful action in this case the charge of manslaughter.” 17. The accused acted in the heat of disturbance, attempting to restore peace. But the court must determine whether her actions were unlawful. Justice R. Nyakundi on his part in establishing the ingredients needed to satisfy the offence of manslaughter made a poignant holding in the case of Republic V Daniel Okello Rapuch [2017] KEHC 5921 (KLR) as follows: “In accordance to section 202 of the Penal Code any person who by unlawful act or omission causes the death of another person is guilty of the felony termed as manslaughter. From this definition the offence of manslaughter can be broken into three elements: (1) There must be an unlawful act. (2) The unlawful act must be dangerous. (3) The unlawful act must cause death. 18. Clearly, the acts of the accused were against the law. She had no right to violently push out the deceased. She would have even called for help to ensure he is out of the club. She could even have called for his arrest. Her actions were also dangerous as she pushed the deceased against a half-closed door which occasioned him fatal injuries. Her actions occasioned the death of the deceased. Page 5 of 6 MCCR E252/21

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CONCLUSION: 19. Accordingly, and by dint of section 215 of the Criminal Procedure Code, Cap 75 of the laws of Kenya the accused is hereby convicted of the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code Cap 63 of the Laws of Kenya. Dated this 22ND day of DECEMBER, 2025 Law Courts. HON. P. E. NABWANA SENIOR RESIDENT MAGISTRATE IN THE PRESENCE OF: For DPP: Mati Accused: Present Court Assistant: Kamoni N. Page 6 of 6 MCCR E252/21 at Wamunyu

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