Tragedy as twins die in Kirinyaga night fire.
“Dad! I’m being killed.”
These were the words that Ruthcaster Katheu Mutuku, a prison wardress at Shimo La Tewa Women’s Prison, told her father during a 2am phone call before the call disconnected.
After this call, the father could no longer reach her again. True to her words, Ms Mutuku took her last breath at a hospital in Mombasa. She died from injuries sustained after a night-time altercation allegedly triggered by a crying baby.
Ms Mutuku and her husband, David Onyango Ochieng, also a prison warder, were asleep on May 19, 2018. At around midnight, their baby woke up to breastfeed, prompting Ochieng to wake up his wife.
This resulted in a quarrel that escalated into a fight. Ochieng then got out of bed, put on tough shoes, and stepped on the woman’s abdomen, breaking three of her ribs and injuring her intestines.
Ms Mutuku reported the incident to the duty officer at the facility before seeking treatment, despite being unable to sit or walk.
While in hospital, Ms Mutuku narrated to her friends, relatives, and the medics who attended to her how Ochieng assaulted her in their house inside the prison quarters. She died the following day, May 20.
Ochieng was subsequently charged with her murder. The woman's narration to friends, relatives, medics, and her final phone call to her father became crucial evidence that the High Court in Mombasa considered admissible in the circumstances of the case.
Since there were no witnesses to the murder, Justice Wendy Micheni noted that the evidence of a dying declaration or statements, which is admissible under Section 33(a) of the Evidence Act, Cap. 80, became vital.
This section outlines the circumstances under which statements made by deceased persons, or otherwise unable to testify, are admissible as evidence in court.
In this case, the court considered testimonies from the individuals who spoke to the deceased before her death, including medical records documenting the nature of the injuries she suffered.
Her father, Sebastian Mutisya, told the court that Ms Mutuku called him at 2am on the fateful day, informing him of her predicament.
The witness stated that he immediately attempted to contact Ochieng, but he did not answer.
Mr Mutisya then contacted his other daughter, Dorcas Kathangwa, asking her to check on her sister, but she, too, could neither reach the deceased nor the accused.
“After 30 minutes, I called Ms Mutuku again. This time, she answered and told me that the accused had beaten her on the head and stepped on her stomach with tough shoes. She said she could not stand and was looking for a neighbour to take her to the hospital,” he said while being guided by State counsel Ngiri Wangui.
Mr Mutisya said his daughter’s voice was trembling during the conversation and that she complained of severe abdominal pain.
“Ochieng’s uncle later informed me that my daughter had passed away. I travelled to Mombasa to collect the deceased’s body and her one-year-old child,” he added.
Ms Kathangwa confirmed receiving a call from her sister at around 1am. Ms Mutuku, crying, informed her that Ochieng had beaten her by slapping and stepping on her abdomen.
“She told me she was in severe pain in her abdomen and was unable to walk. I tried to reach the accused but in vain. I then advised my sister to seek treatment. I joined her the following morning,” she said.
Dr Alphonce Adala from Swiss Cottage Hospital in Mtwapa, where the deceased first received treatment, told the court that Ms Mutuku was admitted with complaints of abdominal pain and a history of assault by a person known to her.
She was given painkillers and referred for a pelvic scan.
“She was not bleeding, so we suspected an internal injury,” he said, producing the medical report.
Inspector James Museko, stationed at Shimo La Tewa Prisons, was on duty when the deceased reported the assault by her husband at around 1.40am.
“I booked the report. The accused also came to the office. The deceased said she no longer wished to cohabit with the accused. The two had lived together for around two years,” he said.
At the report office, the witness described the deceased as angry, while the accused appeared calm and admitted they had quarrelled at home.
“I advised the deceased to go to hospital. I do not know if she went, but I later learned that she had passed away,” he said.
In her ruling, Justice Micheni stated that the circumstances under which the dying declaration was made showed the deceased faced the prospect of imminent death, which tragically occurred soon after the assault.
“Her first call to the father was that she was being killed. She told over five witnesses that it was the accused person who inflicted the injuries and then she died. The people whom she told were from diverse backgrounds including her relatives, her employer, and different medical personnel,” said the judge.
“This cannot be a case of mistaken identity and I am satisfied that this was an admissible dying declaration. The medical evidence and the many witnesses all corroborated each other,” she added.
Justice Micheni concluded that the court was convinced the accused assaulted the deceased by hitting her on the head, kicking her, and stepping on her abdomen with tough shoes.
These actions led to extensive injuries, including two tears in her intestine, and fractures to three ribs.
In his defence, Ochieng denied killing the deceased and claimed that she fell on the stairs during a scuffle after he woke her up to breastfeed their child.
“I got out of bed to get dressed. We continued arguing. She placed the baby on the bed and began hitting me. She then fell on the stairs leading to the sitting room,” the accused claimed.
He admitted that the deceased had called her parents during the quarrel, stating that he was killing her. He said she also called her sister and his mother, expressing her desire to leave him.
Ochieng alleged the deceased’s death was due to complications arising from surgery conducted at Jocham Hospital, which he claimed was performed improperly.
However, the court rejected this argument, noting that hospital records documented her injuries before any medical procedures.
“The court is satisfied that Ochieng intended to cause grievous harm to the deceased. He stepped on her abdomen until the intestines ruptured and three of her ribs cracked. He woke up, dressed, and wore tough shoes which were the weapon. This is enough proof of intention,” said the judge.
Justice Micheni further addressed the timeline, noting that the deceased died two days after the assault.
The Judge said that Under Section 215(1) of the Penal Code, this timeframe established Ochieng’s criminal liability for the murder.
“Consequently, the criminal liability pointed at the accused person herein. He is convicted of the offence of murder and hereby sentenced to 20 years in prison,” said the judge, in the Thursday, January 16 sentencing.
The judge, however, highlighted some interference and omissions during the case.
For example, key witnesses like Mama Mwende did not testify, and a doctor from Jocham Hospital was brought to court under a warrant of arrest.
Additionally, the officer on duty at the prison who recorded the assault complaint was suspended to retrieve the original report but was never recalled.
“That however did not disconnect the trail of evidence. The deceased gave a clear history of what happened to her. This history was repeated by various witnesses and recorded in many documents,” said the judge.
For Ochieng, he is now an inmate at Shimo La Tewa Prison, his former workplace.
