In his ruling, Justice Stephen Githinji observed that there is no marriage that is entirely blissful.
The High Court has ruled that not every marital quarrel necessarily constitutes evidence of motive for murder.
In a society where marital conflicts are often cited as possible causes of murders in families, a boda boda operator accused of murdering his 22-year-old wife was acquitted for lack of credible evidence from the prosecution.
Justice Stephen Githinji ruled that the available circumstantial evidence against Hamisi Chengo was weak and did not point irresistibly to his guilt regarding the murder of his wife, Joyce Kadzo Kadenge.
“It simply raises suspicion, and in law, suspicion however strong, cannot form the sole basis for a conviction,” said the judge, in a December 19, 2024 ruling that was published last week.
Justice Githinji said that Mr Chengo deserves the benefit of doubt as the offence against him was not proved by the prosecution beyond reasonable doubt.
“He is therefore acquitted of the offence of murder. He is set free unless otherwise lawfully held,” said the judge.
In his ruling, the judge observed that there is no marriage that is entirely blissful because it is a union of two imperfect individuals, each with their own strengths, weaknesses and perspectives.
“It is therefore correct that not every quarrel in a marriage would constitute evidence of motive for murder. There is no evidence that the accused had ever assaulted his wife before or threatened to kill her. Motive which would lead to murder is therefore not sufficiently established,” said the judge.
Mr Chengo was accused of killing Ms Kadenge on August 11, 2022 at Kamkomani village, Kilifi County.
He was jointly accused with others of committing this offence. The court was told that the marriage between Mr Chengo and the deceased was not entirely blissful.
The deceased is alleged to have taken a loan from a women’s group for use by the family, and its repayment raised issues which made the couple quarrel.
Such quarrels, the court heard, had made the deceased, on several occasions, seek refuge in her parents’ home but would later get back to her matrimonial home.
The court was told that on the material day, at about 9am, the couple was spotted walking towards Mariakani.
They were not quarreling. They had left their child aged three alone outside the house and some clothes in a basin which were to be cleaned. The door to their home, though shut, was not bolted.
A 15-year-old witness who was also the couple’s neighbour testified that the child moved to their house while crying.
“I took her back to their home and noted the parents were absent. I returned back home with the child and stayed with her for the whole day,” said the witness.
He told the court that the child’s parents failed to return home that night so he stayed with her until the following morning.
The parents’ absence was then reported to the chief the following day. Later, Ms Kadenge’s body was discovered in a seasonal stream, which had water at the time. It was facing down.
Police officers visited the scene, collected the body and transferred it to Coast General Hospital Mortuary.
Witness statements were recorded. The accused is alleged to have gone underground.
A postmortem conducted on the body six days later revealed that the fingers showed signs of blood deficiency, the anterior neck had bruises, lacerations extending to the right temporal region, and scratch marks.
During the internal examination, it was noted that there was hemorrhage in the tracheal muscles, the vaginal canal contained semen, and there was a temporal-parietal hematoma on the head extending to the back of the head (occipital region).
An opinion was made that the cause of death was due to asphyxiation, secondary to mechanical strangulation.
In his defense, Mr Chengo denied killing his wife saying he was away from home on the material day as he was operating his boda boda business.
“On my way home, I met the sub-chief at the stage and was informed about the murder of my wife. I was advised to go to Mariakani Police Station and did so. I was arrested and later taken to Mombasa for DNA and later charged,” he said.
Justice Githinji ruled that there was no direct evidence as to who murdered the deceased, adding that the prosecution case was therefore rooted in purely circumstantial evidence as he was the person last seen with the deceased alive.
The judge noted that circumstantial evidence can sufficiently support a conviction if it meets specific criteria including the fact that evidence must form a complete and unbroken chain that leads to the conclusion of the accused’s guilt, excluding any other reasonable exculpatory hypothesis.
He said that the evidence must be compelling enough to form a cohesive narrative pointing directly to the accused’s guilt, without any reasonable alternative exculpatory explanation.
“No witnesses saw the alleged others. In my view, the only evidence that would lead to such a finding would have been forensic evidence on DNA,” he said.
The judge concluded that there was no credible evidence that the accused was present during the probable rape and murder of the deceased.
