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; http://www.kenyalaw.org - Page 7/8