REPUBLIC V MUSILI TULO[2012]eKLR Dealing with the first aspect of the matter, there is no denying that indeed the deceased passed on. Evidence is a galore that the body of the deceased was discovered in a cave in a forest. PW1, PW2, PW3, PW4, PW6 and PW7 attested to this fact. They are the ones who were involved in the search and eventual discovery of the body of the deceased. They all described the state in which they found the body. Eyes had been gouged out, ears and tongue cut, the flesh on the leg and face had been skinned. The deceased was dead. Besides that evidence, there is also the evidence of the post mortem report tendered during the trial. In the post mortem report, Dr. William Oduor opines that as a result of his examination of the body the cause of death was “cardio-respiratory arrest secondary to severe blood loss” There is no doubt therefore that the deceased passed on. Did she pass on as a result of unlawful act or omission of another person? From the state in which the body was found, there can be no doubt that the deceased did not take her own life. She was found lying on her back, eyes gouged out, tongue and ears cut and the flesh on both her face and leg skinned. She was also tied with a rope. Further Dr. William Oduor observed the following with regard to external appearance of the body “… head decomposed. Only skull seen. Wound right leg approximately 10cms in diameter, wound left mastoid approximately 6cms in length, wound right lateral side of the chest 5cm in length…” With regard to cardio-vascular system, he observed “laceration of poplileal vessels of the right leg…” From the injuries it cannot be said that the deceased inflicted them on herself. It is not possible that the deceased could have gouged her eyes, cut her ears as well as the tongue, skinned herself and tied herself with a rope to a tree. This must have been the work of another person(s). It would appear that the said person intended that the deceased be seen as having committed suicide hence the rope around the neck. However, the lie did not quite work; as the body was perhaps discovered much earlier than he/she had anticipated with the gory injuries aforesaid still intact. No doubt the injuries were inflicted by unlawful act of another person. Was that person the accused? There is no direct evidence linking the accused to the crime as nobody saw him commit the crime. Out of the 9 prosecution called, none of them testified as to seeing the accused commit the crime or being with the deceased on the material time. The evidence however, tending to link the accused to the crime is purely circumstantial and the accused’s own confession. It is common ground that the accused and deceased were husband and wife. They had prior to the homicide separated due to domestic disagreements. As a result of the separation, the deceased was staying with her parents. It is also common ground that on30th June, 2010, the deceased left for Mwingi Market and never returned. Her family mounted a search subsequently. Nonetheless they suspected the accused’s hand in the disappearance of the deceased. In the course of search, they received information that the deceased had been killed and his body dumped in a cave in a forest near Kasina Primary School. This information was apparently volunteered by the accused in phone conversation with. The information volunteered led to the discovery of the body. Alongside the body was a hat which allegedly belonged to the deceased. There is also evidence by PW1 and PW3 that the accused had been in their home the previous day. This evidence was not seriously challenged despite the accused’s claim in his defence that he was at the material time in Narok. It again emerges from the evidence on record that the accused confessed to the crime, much as he denied in his defence that he never recorded any statements with the police. So that the circumstantial evidence linking the appellant to the crime is his strained relationship with deceased, his cell-phone conversation with PW6 that led to the discovery of the deceased’s body, the hat found alongside the body which allegedly belonged to the accused and the accused’s on confession. With regard to the first link, all the family witnesses who testified attested to the fact that the relationship between the deceased and accused was strained much as they were husband and wife. As http://www.kenyalaw.org - Page 5/8