Authored By: Felicia Jepleting
Kenyatta University
CASE TITLE & CITATION: RUTH WANJIKU KAMANDE V REPUBLIC (2023)
COURT NAME & BENCH:
Court: SUPREME COURT OF KENYA
Judges: Martha Koome(CJ),Philomena Mwilu(DCJ), Mohammed Ibrahim SCJJ, Smokin Wanjala SCJJ, Njoki Ndung’u SCJJ,Isaac LenaolaSCJJ, William Ouko SCJJ
BENCH TYPE: Full Bench(7 Judges)
DATE OF JUDGEMENT: 11th April, 2025
PARTIES AVAILABLE:
Appellant: Ruth Wanjiku Kamande
Respondent: Republic
FACTS OF THE CASE
On 20th September,2015 at around 9;00AM,screams that resembled that of help were heard coming from the house of the appellant. The sounds were that of Farid Mohammed Halim(the deceased) who had been in a romantic relationship with the said appellant. Hariet Ndwiga,landlady of the apartments to which the two lived, walked towards the house and could hear the deceased asking for help. Upon looking inside she could see the appellant holding a knife and the deceased lying down with his hands around the abdomen and from the look,he was in an excruciating pain. At that time the door was locked and as the deceased tried to reach the keys to the house, she kept preventing him. Efforts were made to try and rescue the deceased but they bore no fruits in that when the police arrived, the deceased was already dead. The respondent was charged with murder.
This case was first heard in the High Court, which is the trial court. The judge found that the beyond reasonable doubt standard had been proved by the prosecution and was sentenced to death as per the provisions of the Penal Code. The appellant was dissatisfied with the trial court’s decision and appealed the matter to be heard in the Court of Appeal. The learned judge not inconsistencies and contradictions in the evidence adduced by the appellant. The matter was then filed at the Supreme Court which is the apex court in Kenya. The appellant raised for the first time the defence of battered woman syndrome which is the primary issue of consideration.
ISSUES RAISED
- The applicable principles, standard and burden of proof for battered woman syndrome. ii. The standard and burden of proof in self-defence and its consequences proved by the accused.
ARGUMENTS OF THE PARTIES
Arguments by the Appellant
The law in Kenya is still silent on whether battered woman syndrome is as a defence or not.The appellant relied on the case of State vs. Truphena Ndonga Aswani1 which applied the defence and has since then paved way for its applicability in Kenya. According to the appellant,this defence recognizes that a woman living in domestic violence has an effect on her mind that can justify any act of homicide. Placing reliance on the cases of Attorney General for Jersey vs. Holley2 and R vs. Thornton3,the court found that by using battered woman syndrome,it helps a judge to think critically in order to establish if such a circumstance could be used to mitigate.
The appellant argued that battered woman syndrome carries with it different characteristics such as depression and perception of threat. Her arguments were that she was consistently being abused and in return became a victim of continuous domestic violence. On the fateful day, she had realized that she had been exposed to HIV/AIDS and so she threatened the deceased that she was going to expose him. It is at that moment that the deceased held a knife and attempted to kill her.
Another important argument is that during the 2016 trial the defence of battered woman syndrome had not been fully adopted in Kenya and so pleaded the court to allow this defence.
With regards to the second issue, the appellant contended that once self-defence and provocation in connection with battered woman syndrome are proved, the charge should be reduced and in this case to manslaughter. It is on this account that she urged the court to reconsider her conviction.
Arguments by the respondent
Regarding the first issue, the respondent argued that battered woman syndrome did not establish the mens rea element of murder. Therefore, battered woman syndrome can only be used as a support for self-defence and can never justify an act.
For self-defence, one should satisfy the court that he/she was in danger and used reasonable force. Having relied on The Battered Woman Syndrome and Self-Defence, Notre Dame Journal of Law, Ethics and Public Policy 1992, 323, the respondent asserted that this defence requires expert testimony.
On the issue of standard and burden of proof, the accused is required to lay down evidence for which the appellant had failed to do so. Such evidence requires an expert testimony as required under Section 48 of Evidence Act.
With regards to provocation, it was evident that the accused viciously attacked the deceased and there is no single evidence that the deceased attempted to kill the said appellant.
It is on the above arguments that the respondent sought to have the matter dismissed for lack of merit.
JUDGMENT
The Supreme Court made a decision that the petition of appeal be dismissed. Its findings were; the appellant did not raise the defence of battered woman syndrome in the lower courts .The appellant was not a victim of an abusive relationship but a perpetrator who even contributed to the relationship being toxic.
LEGAL REASONING/RATIO DECIDENDI
The court delved deeper in analyzing the applicability, standard and burden of proof of battered woman syndrome.
The Supreme Court began by giving reasons as to why the Court of Appeal certified the matter to be interrogated by it.This is because the battered woman syndrome is at its early stages and has not really developed in our country.It acknowledged that there is an increased rate of domestic violence especially in intimate partner relationships.As at the moment,the Kenyan law is silent on this defence.The Court relied on Lenore Walker who defines the doctrine, Battered Woman Syndrome which is the state of a woman’s mind who has persevered long-term abuse.
The Court relied on precedence from other jurisdictions.In the United Kingdom’s case of R v Ahluwalia4the Court of Appeal quashed the previous decision where the accused had been convicted of murder and made orders for retrial having been provided fresh evidence which proved diminished responsibility.Still in R v Thornton5the Court decided that a retrial be ordered for reasons that the accused had long been submitted to domestic abuse.In the United States case of State v Kelly6it was decided that such a defence is claimed it requires and expert testimony. However,in R v Coats’ case it was recognized that not every woman who is subjected to abuse suffers from the syndrome.
Battered Woman syndrome has received various reactions with some recognizing it while some critcise it.Truphena case is the only case that has relied on this defence but as a mitigating factor making the court the court rely on cases in other jurisdictions.
The Court found that the syndrome aids self-defence and provocation which suggests diminished responsibility.Therefore an expert testimony is required to prove it.In addition,it should be tied to an individual case,meaning on a case-by-case basis.The Court noted that it should be raised during trial and not during mitigation.
Burden of proof,legal or evidential always rests on the prosecution.For legal burden,the prominent case of Woolmington v DPP highlighted that the the prosecution always bears the burden of proving beyond reasonable that the accused is guilty.The standard of proof must align with the legal standards of the defence itself.
The evidential burden of proof for battered woman syndrome rests on the defence.The Court cautioned itself from issuing blanket guiding principles in order to allow the lower courts to address the issue.
The court adopted proportionality test by comparing the wounds to which the appellant had inflicted on the deceased to the ones she had received and found her actions were aggravating.
The appellant did not raise battered woman syndrome as a defence from the High Court to the Court of Appeal.This raised the question of the Supreme Court’s appellate jurisdiction.To expound on this issue,the court placed reliance on Malcolm Bell v Daniel Toroitich Arap Moi & another case which emphasised that the Supreme Court’s appellate jurisdiction should only be invoked as per the provisions of the Constitution and should not focus on trial.In the Hermanus case ,a matter considered to be of general public importance should arise out of a decision of a court and what should be considered are facts and context of the case.
The Court had its findings that the issue at hand was not properly drawn before it and so could not expand its jurisdiction.This led to the case being dismissed.
CONCLUSION
This case has placed emphasis on the need to adhere to court’s jurisdictions,which is a determining factor for a case to be heard or not.It has also contributed to the developing area of law in Kenya with regards to battered woman syndrome which has no place in Kenyan law.Though analysed in a few cases,it has not received formal recognition.The apex court has restricted itself from coming up with standards and has instead allowed the lower courts to address the issue which will ultimately shape its jurisprudence.The decision has contributed in developing the emerging area in Kenyan law.
Reference(S):
1[2021] KEHC 8758 (KLR)
2[2005] 2 AC 580
3[1996] 1
4[1992] 4 All ER 889
5[1996] 2 All ER 1023
6 478 A.2d 364 (1984)
