IN THE HIGH COURT OF KENYA

AT MOMBASA

The accused entered a plea of ‘not guilty’ to the charge and his trial commenced before the High Court in Mombasa on 16^th December 2008. The State led by the learned State Counsel called a total of six (6) witnesses in support of their case. The accused was represented first by MR. ORUKA Advocate, but later by MR. MUSHELLE Advocate.         

          At the close of the prosecution case the accused was found to have a case to answer and was placed on his defence. He opted to make an unsworn statement in which he denied having assaulted his wife or having caused her death.

This definition establishes three crucial ingredients of the offence of murder

The fact of the death of the deceased cannot be in any doubt. PW1 GRACE KAZUNGU, the mother of the deceased confirms that her daughter died in her presence. The accused who was the husband of the deceased also confirms to the court that he saw the dead body of his wife.

          Evidence regarding the cause of death was given by PW4 DR. LAWRENCE NGONE a medical officer attached to the Provincial Coast General Hospital Mombasa. PW4 told the court that he conducted a post-mortem examination on the body of the deceased. He recorded his findings in a report dated 11^th October 2006 which report was produced in court as an exhibit Pexb1. In his testimony PW4 told the court that upon internal examination he found there was a “fracture of neck vertebrae which also involved the trachea”. PW4 proceeded to conclude that “the cause of death was caused by cardio-pulmonary arrest due to neck strangulation”. I am therefore satisfied that the prosecution has adduced sufficient evidence on the cause of death of the deceased.

The prosecution case is that it was the accused who assaulted the deceased and this caused her death. There was no eyewitness to the assault. PW2 MWANAMKAZI a neighbour to the couple told the court that she only heard the couple fighting. She could not however leave her room to intervene as her door had been locked from outside. It is only when the deceased opened her door and ran into her room for safety that PW2 saw the state she was in. Likewise PW5 HUSSEIN MWANZIA who was also a neighbour to the couple told the court that he heard them fighting on the night of 30^th September 2006 but did not bother to come out to check as he was himself unwell. It was not until the next morning that he noticed that the deceased had a swelling on her neck. Five days later the deceased was dead. Both witnesses told the court that the deceased told them that it was the accused who assaulted her.

I have agonized over this case. Whereas the deceased died a couple of days after having been assaulted by the accused I am not convinced that the cause of death as found by the doctor is supported by the evidence adduced by the witnesses.   I am not a medical expert but it is common knowledge that upon strangulation and more especially where fracture of the neck vertebrae has occurred then death is most likely to be instantaneous. It is highly unlikely that the deceased would have been able to get up run to the room of PW2 go to hospital, and even go to her parent’s home 20 kilometres away all with a broken neck. There is evidence that the deceased went to seek medical attention after her assault. It is impossible that her broken neck would have been overlooked by medical personnel. This is a critical injury which in my view would require urgent medical attention. I also find it extremely unlikely (indeed it would be a medical miracle) for the deceased to have been able to walk the 20 kilometres to her parent’s home with a broken neck. Since the broken neck was the cause of death this in my view could not have happened on 30^th September 2006 as she would have died (or at the very least have been totally immobilized instantly).

Dated and Delivered in Mombasa this 20^th day of December 2011.