REPUBLIC V MUSILI TULO[2012]eKLR
belonged to the accused.
In his defence, the accused states that the hat tendered in evidence was not his. Ordinarily he did not
wear hats.
Family witnesses testified to seeing the accused coming to their homes in search of his wife. A hat
similar to the one which the accused used to wear is suddenly found alongside the body of the
deceased. Is it a mere coincidence? I do not think so. Yes there may be similar hats elsewhere but PW2
was categorical that he had not seen such hat in the village. It was only the accused who had such
hat. He went ahead to describe the peculiarity of the hat. The special features of the hat enabled him to
say with certainty that it belonged to the accused to the exclusion of others. All said and done, I am
satisfied that the hat found besides the deceased’s body belonged to the accused.
The accused was arrested within Narok town. He was subsequently escorted to Mwingi Police
Station on 4th July, 2010. He was charged and cautioned by Chief Inspector Jonathan Wafula
(PW8). In response the accused stated “ Nilimpiga kwa shauri ya pesa ya biashara shilingi elfu kumi
na nane. Nilimua na kuacha mwili wake kwa kichaka” which in English translates to “I assaulted her
because of the business money of kshs. 18,000/=. I killed her and left her body in the bush…” The
accused again recorded a statement under inquiry before Inspector Harrison Kombo (PW9). In the
detailed statement, the accused confirms that he was with the deceased on 30th June, 2010 at Ngutani
Hotel in Mwingi town from 2pm till 6.30pm. He then describes how he stabbed and killed her and left her
body where it was found. He also confirmed having received a call from a police officer whom he told
where to find the body of the deceased… Both statements were admitted in evidence. They all amount
to a confession. They were all admitted in evidence without objection by the accused; so that a trial
within a trial could be conducted to establish their authenticity and whether they were voluntary. I am
therefore surprised that the accused is now submitting that when the prosecution wanted to produce in
evidence, the confession statements, he objected and the court ordered a trial within a trial. And that the
court has yet to make a ruling. This is totally misleading. The record speaks for itself. The only time that
the defence objected to the admission of the statements is when the investigating officer wanted to
produce them. The defence objected and insisted that the makers be availed. The objection was
sustained. When the makers (PW8 & 9) eventually testified and tendered in evidence the statements, the
defence did not object. Instead, the defence proceeded to cross-examine these witnesses. The accused
cannot now be heard to claim that the said statements were not made by the accused nor were they
voluntary. Time for such objection is long past. In the premises, I hold that confession statements were
properly admitted in evidence. The statement by the accused alludes to facts that could only have been
privy to the perpetrator of the crime. They are consistent and have been corroborated by medical and
other evidence, including the mobile phone conversation that led to the discovery of the body of the
deceased. Such details could only have come from a person who was at the scene of the murder at the
material time. The confession lays out in his own words how he killed the deceased and left her for dead
at Kasina. There can be no doubt therefore that it is the accused who caused the death of the deceased.
Was the killing of the deceased by the accused accompanied by malice aforethought? Section 206 of
the Penal Code states as follows with regard to malice aforethought:“Malice aforethought shall be deemed to be established by evidence proving any one or more
of the following circumstancesa. 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;
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