Woman convicted of pouring hot water on husband freed after appea

A woman convicted of murdering her husband by scalding him with hot water has been freed after the Court of Appeal set aside her 20-year jail sentence.

The case stems from a tragic incident that occurred on March 2, 2017, in Khalumani sub-location, Bungoma County.

On that afternoon, residents heard desperate screams of “Mama nakufa” (“Mother, I am dying”) coming from the home of Francis Wanyonyi Wesusia, the deceased.

Witnesses later told the court that they found him staggering out of the house with his skin peeling from severe burns.

According to a relative who was one of the witnesses, the deceased named his wife, Moureen Nafula Wanyonyi, as the person who had poured hot water on him while he slept.

Another relative said she rushed to the scene and also heard the deceased blame his wife for the attack.

“She found the deceased outside his house, in pain, who also told her that hot water had been poured on him by the appellant while he was lying in bed. She and her husband ferried him to the hospital, where he died on March 26, 2017, the judgement stated.

The couple’s minor daughter also gave testimony, telling the court that she saw her mother boil water and pour it on her father while he was asleep.

She further mentioned that her parents had a troubled marriage and that her father often assaulted her mother. Police officers and medical witnesses supported the evidence.

APC Peter Muthini, who visited the scene, confirmed that he found the deceased with extensive burns and arrested the appellant immediately.

“Kipchumba Kuto, the investigating officer, confirmed that the deceased sustained 36 percent burns and was unable to record a statement due to his condition. He later died, and he subsequently attended the postmortem,” read the court documents.

Doctor Edward Bilembo, who conducted the postmortem, confirmed that the cause of death was cardiopulmonary arrest following third-degree burns.

In her defence, Moureen Nafula denied deliberately attacking her husband.

She claimed she had returned home for lunch when her husband, who appeared intoxicated, arrived in the company of another woman.

According to her, the deceased struck her with a stick during an argument, and as they struggled, he accidentally fell into boiling water in the kitchen.

She said she never intended to kill or injure him and maintained that the incident was purely accidental.

The High Court in Bungoma, presided over by Justice Riechi, rejected this defence. It held that the prosecution had proved its case beyond a reasonable doubt, relying heavily on the deceased’s dying declarations to relatives and the testimony of the child witness.

The judge ruled that by boiling water and pouring it on a sleeping man, the appellant must have known that grievous harm or death was likely to occur.

Malice aforethought, as required under Section 206 of the Penal Code, was found established. Consequently, she was convicted of murder and sentenced to 20 years’ imprisonment in October 2019.

Dissatisfied with the verdict, the appellant lodged her first appeal.

Her counsel faulted the trial court for relying on what he termed uncorroborated evidence from a child of tender years. He argued that the testimony by one of the witnesses required corroboration under the Evidence Act, since this was not a sexual offence case.

He also pointed out that the prosecution failed to call a key witness—the woman who accompanied the deceased home on the day of the incident.

The defence further submitted that the trial court ignored the possibility that the appellant was a victim of domestic violence and that the circumstances of the case could be explained by the battered woman syndrome (BWS).

Counsel relied on precedents where Kenyan courts had considered the syndrome in mitigation.

“On sentencing, the appellant submitted that the trial court failed to take into account the history of domestic abuse and the psychological impact of prolonged violence on the appellant by the deceased,” the judgement stated.

The State opposed the appeal.

The prosecution emphasised that the deceased had made clear and consistent dying declarations pointing to his wife as the attacker, and that the law allowed such statements to be admitted.

The counsel further argued that the contested witness’s evidence was credible and consistent with medical findings.

According to the prosecution, the act of boiling water and pouring it on a sleeping person’s head showed clear intent to cause grievous harm, amounting to malice aforethought.

On the question of battered woman syndrome, the prosecution submitted that the deceased was asleep at the time of the attack and posed no immediate threat. Therefore, self-defence or provocation could not apply.

The State urged the Court to dismiss the appeal and maintain the 20-year sentence, terming it lenient in light of the fact that the maximum penalty for murder is death.

In its judgment delivered in Kisumu, the Court of Appeal upheld the conviction but altered the sentence.

The court held that the evidence of dying declarations by the two witnesses corroborated by medical testimony, proved beyond doubt that the appellant poured hot water on her husband. The defence of accident was rejected as implausible.

On malice aforethought, the judges affirmed that the act was deliberate and inherently dangerous, satisfying the threshold under Section 206 of the Penal Code.

However, they noted that the trial court failed to adequately consider the history of domestic violence and the psychological trauma endured by the appellant.

While reiterating that battered woman syndrome is not yet a stand-alone defence in Kenya, the judges said it could be weighed as a mitigating factor during sentencing.

They observed that the appellant had already spent years in pre-trial and post-conviction custody, had no prior record, and that her actions were influenced by a violent domestic relationship.

“We therefore reduce it to the term already served, which we consider sufficient in the circumstances.

The appellant shall therefore be set at liberty forthwith unless otherwise lawfully held. To that limited extent, the appeal on sentence succeeds,” the judges ruled.