Judgment
Kamande v Republic (Petition E032 of 2023) [2025] KESC 18 (KLR) (11 April 2025) (Judgment)
Kamande v Republic is a judgment from Kenya in 2025. Cite it as [2025] KESC 18. Search it by the party names, the citation [2025] KESC 18, or Kenya judgment.
KenyaPDF · 393 KB[2025] KESC 18Judgment
KENYA
Kamande
v.
Republic
Petition E032 of 2023
[2025] KESC 18
Proceeding. Judgment. Kenya.
Held. 1. Under article 163(4)(b) of the Constitution, it was for the Court of Appeal to identify the specic question(s) (of law) which in its view constituted a matter(s) of general public importance. That was because, unlike in a general appeal, it was the question framed by the appellate court that conferred jurisdiction upon the court. Where the Court of Appeal failed to identify the specic issues or points of law, or made a broad and/or vague nding as it did in certifying the appeal, it was incumbent upon the court in the circumstances of the case to delineate the issues for determination meriting the Supreme Court’s attention from the outset. In the absence of any specic questions outlined by the Court of Appeal, the parties were led to assimilate and frame the appeal on the issues set out by the appellant in her application for certication. 2. The court was not blind to the troubling surge in incidences of violence in Kenya, particularly intimate partner violence which manifested, inter alia, through acts of femicide and other forms of sexual and gender-based violence. The battered woman syndrome was a psychological condition of individuals who, had endured prolonged and severe abuse at the hands of an intimate partner. It was that condition that could be extended as a basis for defence where such an individual nally resorted to killing their abuser. Given that the concept transcended cultural and legal boundaries, exploring its place in other jurisdictions provides a nuanced approach. 3. The acceptance of battered woman syndrome by courts had been met with mixed
Kamande v Republic (Petition E032 of 2023) [2025] KESC 18 (KLR) (11 April 2025) (Judgment)
Neutral citation: [2025] KESC 18 (KLR)
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
PETITION E032 OF 2023
MK KOOME, CJ & P, PM MWILU, DCJ & VP, MK IBRAHIM,
SC WANJALA, N NDUNGU, I LENAOLA & W OUKO, SCJJ
APRIL 11, 2025
BETWEEN
RUTH WANJIKU KAMANDE .............................................................. APPELLANT
AND
REPUBLIC ............................................................................................ RESPONDENT
(Being an appeal from the Judgment of the Court of Appeal at
Nairobi (H. M. Okwengu, M. Warsame and J. Mohammed, JJ. A)
dated 6th November 2020 in Criminal Appeal No. 102 of 2018)
The battered woman syndrome is not a stand-alone defence and it has to be raised in aid of one of
the existing legal stand-alone defences
The instant matter concerned the applicability of the battered woman syndrome as a defence under criminal law.
The court highlighted the nature of the concept of battered woman syndrome. It was further held that the battered
woman syndrome had not attained the status of a stand-alone defence and that it had to be raised in aid or as
an extension of one of the existing legal stand-alone defences. The court also held that the standard of proof in
involving the battered woman syndrome had to be addressed within the context of legal standards for defences
relied upon by the accused. In particular, the burden rested on the defence to not only establish the existence of the
battered woman syndrome but also the extent of such application.
Reported by Kakai Toili
Criminal Law – offences – murder – defences to the offence of murder – battered woman syndrome – nature
of the concept of battered woman syndrome - whether the battered woman syndrome had attained the status of
a stand-alone defence,
Evidence Law – standard and burden of proof - standard and burden of proof in criminal cases - who bore
the burden of proof and what was the standard of proof in cases where an accused invoked the battered woman
syndrome.
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Words and Phrases - battered woman syndrome – definition of battered woman syndrome - a set of behavioural
and psychological reactions displayed by women who are subjected to severe, long-term domestic abuse - Walker L,
The Battered Woman Syndrome, Fourth Edition, Springer Publishing Company, 1984.
Words and Phrases - battered woman syndrome - a constellation of medical and psychological symptoms of a
woman who has suffered physical, sexual, or emotional abuse at the hands of a spouse or partner and who, as a
result, cannot take action to escape the abuse - Black’s Law Dictionary 11th Edition at page 187.
Brief facts
The instant matter was certied as being of general public importance by the Court of Appeal and concerned
the applicability of the battered woman syndrome as a defence under criminal law. While the Court of Appeal
did not explicitly delineate questions of law to be determined by the court, it accentuated that the battered
woman syndrome was a fairly unexplored issue in Kenya, with limited judicial decisions thus far in existence,
thereby creating an opportunity for interrogation by the court.
The appellant had been charged with the oence of murder at the trial court. The particulars of the oence
were that the appellant murdered the deceased who at the time was in a relationship with her. At the High
Court (trial court), the appellant gave an unsworn statement and stated that the deceased attacked her, threw
her on the bed, sat on her, and stabbed her several times on the chest, hand, thighs, and stomach with a knife
he was carrying. By poking the deceased’s eyes, the appellant claimed that she disarmed the deceased and took
the knife from him and while lying on the bed with the deceased seated on her, she stabbed him severally. The
trial court convicted the appellant of murder and sentenced her to death. Dissatised, the appellant led an
appeal at the Court of Appeal. The appeal was dismissed, hence the instant appeal to the Supreme Court.
Issues
i. Whether the battered woman syndrome had attained the status of a stand-alone defence.
ii. What was the nature of the concept of battered woman syndrome?
iii. Who bore the burden of proof and what was the standard of proof in cases where an accused invoked
the battered woman syndrome?
Held
1. Under article 163(4)(b) of the Constitution, it was for the Court of Appeal to identify the specic
question(s) (of law) which in its view constituted a matter(s) of general public importance. That was
because, unlike in a general appeal, it was the question framed by the appellate court that conferred
jurisdiction upon the court. Where the Court of Appeal failed to identify the specic issues or points of
law, or made a broad and/or vague nding as it did in certifying the appeal, it was incumbent upon the
court in the circumstances of the case to delineate the issues for determination meriting the Supreme
Court’s attention from the outset. In the absence of any specic questions outlined by the Court of
Appeal, the parties were led to assimilate and frame the appeal on the issues set out by the appellant
in her application for certication.
2. The court was not blind to the troubling surge in incidences of violence in Kenya, particularly intimate
partner violence which manifested, inter alia, through acts of femicide and other forms of sexual and
gender-based violence. The battered woman syndrome was a psychological condition of individuals
who, had endured prolonged and severe abuse at the hands of an intimate partner. It was that condition
that could be extended as a basis for defence where such an individual nally resorted to killing their
abuser. Given that the concept transcended cultural and legal boundaries, exploring its place in other
jurisdictions provides a nuanced approach.
3. The acceptance of battered woman syndrome by courts had been met with mixed responses. Some
applauded it for recognising the plight of abused women and extending the traditional denition of
self-defence. Others criticised the extension of self-defence to situations where no immediate physical
threat was present. Apart from State v Truphena Ndonga Aswani [2021] KEHC 8758 (KLR) which
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applied the concept of battered woman syndrome, there were no past cases in the jurisdiction where
the concept had specically been used as a defence in murder trials.
4. There was broader acceptance that the battered woman syndrome did not establish a new defence, but
rather oered an explanation within established legal frameworks of the existing defences. It remained
necessary to assist judges, understand the distinct mental and emotional state of a woman who had
endured prolonged abuse, which could inuence her actions. While it enabled the courts to consider
the trauma a woman had faced, it did not serve as a stand-alone justication for acquittal or reduced
punishment.
5. The battered woman syndrome had so far primarily been used as a mitigating factor rather than a
legal defence to a murder charge in Kenya. The syndrome had also been recognized as a contributing
circumstance that could reduce the severity of the charge or sentence in line with the guidelines
issued in the Muruatetu case for mitigation on the part of convicted persons. The implication of the
Muruatetu case was that mitigating factors, such as gender–based violence, must be understood in the
proper context.
6. The battered woman syndrome fell within the category of gender- based violence in the context of
marriage or an intimate partner relationship. However, while the syndrome as a mitigating factor in
sentencing, the instant appeal raised the signicant question: whether the battered woman syndrome
could be considered and elevated to a valid defence capable of justifying or excusing the actions of an
accused person.
7. The application of the battered woman syndrome must be carefully tailored to individual cases, rather
than applied universally as a blanket and stand-alone defence. A court could not take a restrictive view
that limited the scope of defences available in such circumstances. A case-by-case evaluation was needed
to ensure that the legal system as was, remained committed to justice while considering the unique
psychological and emotional eects of prolonged abuse.
8. Where a party sought to rely upon the battered woman syndrome in the course of trial, the same should
be raised at the earliest in a similar manner that any other defence would have been raised. That did not
prevent a party from raising it in mitigation upon conviction. Neither would it prevent admission of
additional medical evidence at an appellate level, in rare and exceptional cases.
9. It should not be left to the court to infer the existence and applicability of the battered woman
syndrome from the facts and evidence adduced before it. The battered woman syndrome had not
attained the status of a stand-alone defence and it had to be raised in aid or as an extension of one of
the existing legal stand- alone defences: self-defense, provocation or temporary insanity. However, the
courts could not singularly elevate the battered women syndrome to a stand-alone defence of itself,
as to do so would amount to usurpation of legislative mandate bestowed upon Parliament under the
constitutional architecture.
10. While the profound impact of domestic violence in the context of criminal law must be recognized,
each case should be assessed on its own merits to avoid potential misuse or overgeneralization of the
defence of battered woman syndrome. That struck a fair balance between protecting women who acted
out of genuine fear for their safety and life and holding accountable those whose actions may not have
met the criteria for the defence raised. By adopting that nuanced approach, the law would better serve
both victims of abuse and the broader principles of justice, ensuring the fair application of battered
woman syndrome within established legal standards.
11. The court’s position was not exhaustive particularly at that nascent stage of any determination of the
issue of battered woman syndrome. That was so as to allow the courts below, to have an opportunity
to fully articulate and apply that doctrine in appropriate cases and respond to some of the issues raised.
The battered woman syndrome as a matter of law, could at the opportune time require further input
in exercise of the appellate mandate of the court in an appropriate case.
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12. The burden of proof in criminal matters never left the prosecution’s backyard. The term burden of
proof encompassed both the legal burden of proof and the evidential burden. The legal burden of
proof in criminal cases did not and could not shift from the prosecution. In contrast, the evidential
burden initially rested with the party carrying the legal burden, which was typically the prosecution.
However, as the evidence was presented during the trial, the evidential burden could shift to the party
who risked losing its case without additional evidence.
13. Given that the burden of proof remained with the prosecution to prove guilt beyond reasonable doubt,
when the defence invoked the battered woman syndrome, it did not need to disprove the crime but
raise a reasonable doubt regarding the accused’s actions and intent. That could be achieved through
expert testimony and evidence addressing the psychological eects of sustained abuse, which helped to
exemplify the mental state of the accused at the time of commission of the oence, and not necessarily
the mental capacity to stand trial. The standard of proof in involving the battered woman syndrome
had to be addressed within the context of legal standards for defences relied upon by the accused. In
particular, the burden rested on the defence to not only establish the existence of the battered woman
syndrome but also the extent of such application to the oence in which the syndrome was to be relied
upon.
14. A tailored case by case approach remained most appropriate in such instances for the trial or appellate
court. Issuing blanket guiding principles may not be the most apt approach under the circumstances
especially when the courts below had not been given the opportunity to address the issue. Moreover,
the specic circumstances of each case would call for a dierent approach both in considering the
defence and in mitigation. The battered woman syndrome was a developing legal principle and the
court may at the opportune time be called upon to make an authoritative nding as an appellate court.
15. The battered woman syndrome was not adequately raised and addressed by the courts below. The
nature of the relationship between the appellant and the deceased, while it could have been raised
at the trial court as self-defence, did not persuade the court from concluding that the appellant was
not a victim but rather the perpetrator who contributed to the toxicity of the relationship. The trial
court instead adopted the proportionality test in comparing the wounds inicted by the appellant to
the deceased as against those that had been inicted by the deceased to the appellant, including the
circumstances of such iniction. The appellant’s actions were thus held to be aggravating in nature
rather than demonstrative of lack of self-control within the parameters of self-defence or provocation.
16. Throughout her remand, the appellant maintained exemplary conduct and was a rst-time oender
who was genuinely remorseful for her actions. At no point during that stage did the appellant bring up
any history of long standing and severe abuse in her relationship with the deceased; bearing in mind,
that it was only on the day of the incident that the appellant alleged that the deceased accosted her and
a physical altercation ensued. By giving an unsworn statement, the appellant’s testimony could not be
tested or challenged by way of cross examination. Without making any adverse inference against the
appellant’s choice of giving an unsworn statement in her defence, as that the court could not do, the
court remained careful not to wade into factual ndings, particularly at the second appellate stage.
17. The deliberately detailed narration of the proceedings before the courts ante was to illustrate the nature
and substance of the matter argued in the case, including the defence raised by the applicant during
those proceedings. It also brought to the fore the need to explicitly raise the issue of the syndrome
before the trial court. At no point in her defence did the applicant raise the defence of battered woman
syndrome either implicitly or explicitly. It was neither raised during the trial at the High Court nor
during the appeal thereof as an issue for determination despite the doctrine being in existence since
the 1970s. The issue concerning the battered woman syndrome was raised for the rst time in the
application for certication before the Court of Appeal. That was of signicant import to the propriety
of exercise of appellate jurisdiction of the apex court in the matter.
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18. To exercise its appellate jurisdiction the matter before the court must be ripe for consideration. In
addition to ensuring suitability, accountability, and fairness of judicial decision, a crucial function of
the appellate decision was to develop and clarify the law and legal principles through the various layers
of consideration and clarication through the hierarchy of courts. As a matter was ventilated through
the appellate system, the issues in contest, especially those of jurisprudential gravitas, were rened and
distilled. At the apex court, once the superior courts below had had occasion to exercise their respective
jurisdictions, the matter was then ripe for nal determination.
19. The elucidation, clarication and development of the law on the issue of the battered woman
syndrome, would particularly benet from the consideration of the facts in an appropriate matter;
the testimony of victims and witnesses including the specialist analysis by expert witnesses on relevant
related subjects; and the interpretation and application of laws and legal principles by the courts ante,
before the matter could be considered ripe for nal determination at the court.
20. The Supreme Court must operate within the constitutional limits. It could not expand its jurisdiction
through judicial craft or innovation. The extremely pertinent issue of battered woman syndrome
would be properly ventilated and adjudicated by the courts in due course. If and when moved correctly,
the Supreme Court would provide opinion and guidance on the matter. But, despite the importance
of that issue, it was not properly before the court. The remedies sought by the appellant relating to her
conviction and sentence could not therefore issue. At any rate the severity of sentence was a matter of
fact not appealable in a second appeal in line with section 361 of the Criminal Procedure Code.
Appeal dismissed.
Orders
i. No order as to costs.
ii. Security for costs in the sum of Kshs 6,000 deposited by the appellant to be refunded.
Citations
Cases
Kenya
1. Dhanjal Investments Limited v Kenindia Assurance Company Limited Petition of Appeal 7 of 2016;
[2018] KESC 16 (KLR) - (Explained)
2. Gatuma v Kenya Breweries Ltd & 3 others Petition E023 of 2023; [2024] KESC 52 (KLR) - (Explained)
3. Macharia & another v Kenya Commercial Bank Limited & 2 others Application 2 of 2011;
[2012] KESC 8 (KLR); [2012] 3 KLR 199 - (Explained)
4. Malcom Bell v Daniel Toroitich Arap Moi & another Civil Appeal 129 of 2006; [2012] KECA 99 (KLR)
- (Explained)
5. Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa
(Amicus Curiae) Petition 3 of 2018; [2021] KESC 34 (KLR) - (Applied)
6. Munya v The Independent Electoral and Boundaries Commission & 2 others Petition 2B of 2014;
[2014] KESC 38 (KLR) - (Explained)
7. Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) Petition 15 & 16 of 2015
(Consolidated); [2017] KESC 2 (KLR) - (Explained)
8. Njeru v Republic Criminal Appeal 77 of 2006; [2006] KECA 339 (KLR); [2006] 2 KLR 46 - (Explained)
9. Omar, Ahmed Mohammed & 5 others v Republic Civil Appeal 414 of 2012; [2014] KECA 515 (KLR) -
(Explained)
10. Rai & 3 others v Rai & 4 others Petition 4 of 2012; [2014] KESC 31 (KLR); [2014] 2 KLR 253 - (Explained)
11. Republic v Collet Thabitha Wafula Criminal Case 9 of 2016; [2016] KEHC 1843 (KLR) - (Mentioned)
12. Republic v JC Criminal Case 19 of 2020; [2021] KEHC 803 (KLR) - (Mentioned)
13. State v Truphena Ndonga Aswani Criminal Case E011 of 2020; [2021] KEHC 8758 (KLR) - (Explained)
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14. Steyn v Ruscone Application 4 of 2012; [2013] KESC 11 (KLR) - (Explained)
15. Sum Model Industries Ltd v Industrial & Commercial Development Corporation Civil Application
1 of 2011; [2011] KESC 5 (KLR); [2011] 2 KLR 122 - (Explained)
United Kingdom
1. Attorney General for Jersey v Holley [2005] 2 AC 580 - (Mentioned)
2. Attorney General for Northern Ireland v Gallagher (1963) AC 349 - (Explained)
3. R v Ahluwalia [1992] 4 All ER 889 - (Explained)
4. R v Coats [2013] EWCA Crim 1472 - (Explained)
5. R v Thornton [1996] 1 WLR 1174 - (Mentioned)
6. R v Thornton (No 2) [1996] 2 All ER 1023 - (Explained)
7. Woolmington v DPP [1935] AC 462 - (Explained)
United States
State v Kelly 478 A 2d 364 (1984) - (Explained)
Canada
R v Lavallee [1990] 1 SCR 852 - (Explained)
Texts
1. Aman Deep Borthakur (2018), The Case for Inclusion of ‘Battered Woman Defence’ in Indian Law 11 NUJS
L. REv 1 (January- March 2018) p 8
2. Garner, BA., Black, HC., (Ed) (2019), Black’s Law Dictionary St Paul, Minnesota: Thomson Reuters 11th
Edn
3. Hogg, QM., (Lord Hailsham) et al (Eds) (1995), Halsbury’s Laws England London: Butterworth 4th Edn
Vol 17 para 13
4. LEA Walker (2012), The Battered Woman Syndrome and Self-Defence Notre Dame Journal of Law, Ethics
and Public Policy 1992, 323
5. Magato, Valentine (2023), To Kill or Be Killed: Evaluating the Prospect of Situating Battered Woman
Syndrome Within the Kenyan Criminal Law Moi University
6. Russell, BL., (2010), Battered woman syndrome as a legal defense: History, effectiveness, and implications
McFarland & Company, Inc., Publishers; 2014
Statutes
Kenya
1. Constitution of Kenya article 163 - (Interpreted)
2. Criminal Procedure Code (cap 75) sections 179(2); 322; 361 (Interpreted)
3. Evidence Act (cap 80) section 48 - (Interpreted)
4. Penal Code (cap 63) sections 203, 204, 207 - (Interpreted)
5. Supreme Court Act (cap 9B) section 15 (A) (Interpreted)
6. Supreme Court Rules, 2020 (cap 9B Sub Leg) rules 3(5); 38; 39 (Interpreted)
Advocates
Prof Githu Muigai, Senior Counsel, and Ms Wambui Muigai for the appellant.
Ms Fredah Mwanza and Ms Magdalene Ngalyuka for the respondent.
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JUDGMENT
A. Introduction
1. This appeal is predicated on the provisions of article 163(4)(b) of the Constitution; section 15(A) of
the Supreme Court Act 2011; rules 3(5), 38 and 39 of the Supreme Court Rules 2020. It is led pursuant
to leave issued by the Court of Appeal on 6th October 2023.
2. Principally, the matter certied as being of general public importance concerns the applicability of the
battered woman syndrome as a defence under criminal law. While the court of Appeal did not explicitly
delineate questions of law to be determined by this court, it accentuated that the battered woman
syndrome is a fairly unexplored issue in Kenya, with limited judicial decisions thus far in existence,
thereby creating an opportunity for interrogation by this court.
B. Background
3. In the year 2015, the respondent charged the appellant with murder contrary to section 203 as read
with section 204 of the Penal Code cap 63. The particulars of the oence were that: on the 20
September, 2015 at Buruburu Estate within Nairobi County the appellant murdered Farid Mohamed
Halim (hereinafter “the deceased”); who at the time was in a relationship with her.
C. Litigation History
Proceedings before the High Court
4. On that account, the respondent instituted in the High Court, Criminal Case No 93 of 2015 against
the appellant. It was the respondent’s case that on 20th September 2015 at 9.00AM or thereabouts,
screams and calls for help were heard from the house of the deceased, which he had rented from Ndwiga
Gatugu Runyenje (PW7) and Harriet Muthanje Ndwiga (PW8), husband and wife respectively.
5. As PW8 walked towards the deceased’s house to nd out what the matter was, she heard the deceased
saying “nisaidie, nisaidie amenidunga” translated as “help me, help me she has stabbed me”. PW8
knocked on the door and loudly asked what was happening. Then she heard the deceased say, “It is
this one who has stabbed me” followed immediately by the words “I have been stabbed again”. At that
point, PW7 arrived at the scene.
6. Since the deceased’s house was locked from the inside, PW7 was left trying to rescue the deceased as
PW8 tried to nd another way to access the house. When he looked inside, he saw the deceased standing
facing the appellant who had her back on PW7. The deceased was holding his abdomen and appeared
to be in great pain, unable to release his hands. Meanwhile, the appellant was blocking the deceased
from entering the kitchen where the keys to the house were located.
7. Unable to access the house, PW7 sought the assistance of a neighbour to call police ocers from
Buruburu Police Station which was a kilometre away. Upon his return, he heard the deceased crying
out that he had been stabbed again, along with screams coming from inside the bedroom. Peering
through the window, he saw the appellant in the bedroom still holding a knife, while the deceased was
kneeling beside the bed with his body leaning on it. By the time the police ocers arrived, the deceased
had already died.
8. When the post-mortem examination was carried out on the body of the deceased, the Pathologist, Dr
Oduor Johansen (PW12), concluded from his observations that the deceased died of multiple injuries
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and blood loss due to penetrating force trauma, resulting from a total of 25 stab wounds to the chest,
hands, head, abdomen, back, and shoulders, with intestines protruding.
9. The appellant was also admitted to Kenyatta National Hospital and examined by two doctors.
According to Dr Muya, PW11, the appellant complained of assault from a sharp object and sexual
assault. Upon examination, he found multiple soft tissue injuries on the chest and abdomen; on pelvic
examination, her genitalia were normal; and the abdominal ultra sound scan revealed no injuries; and
the chest x- ray showed no injuries or fractures.
10. Further before trial, Dr Maundu, PW13, examined the appellant to assess the degree of her injuries and
mental status, and established that the appellant had cuts on the chest wall, abdomen, left hand and
right leg. He classied the injuries as harm and found the appellant t to stand trial. He added that the
appellant did not complain of any sexual assault.
11. When the appellant was put to her defence, she gave an unsworn statement. She stated that the deceased
attacked her because, on that fateful morning, she had threatened to expose him to his family because
of the AIDS report she had found concerning him. She alleged that as a result, the deceased became
violent against her, threw her on the bed, sat on her, and stabbed her several times on the chest, hand,
thighs, and stomach with a knife he was carrying. By poking the deceased’s eyes, she disarmed him and
took the knife from him. While lying on the bed with the deceased seated on her, she stabbed him
severally, eventually losing count of how many times.
12. Upon hearing and considering the parties’ arguments, in a Judgment delivered on 31 May 2018, the
court (Lesiit J, (as she was then)) made certain ndings before determining whether the respondent
had established malice aforethought so as to bring the appellant’s actions on the material day, for which
she was charged with, within the purview of the oence of murder.
13. The court found that it was undisputed that the appellant and deceased were living together and had
a tense relationship. From the evidence of PW1, two days before the incident, the appellant was upset
with the deceased for changing his phone PIN number and password, which made it dicult for her to
access his phone messages. She went to the extent of taking his SIM - card and trying it in her phone in
an attempt to access the deceased’s phone content. The court further found that the appellant admitted
to the extent that she changed the PIN to the deceased’s phone. Aside from that, there was evidence
that the appellant was crying and had followed the deceased when he went to work on that morning
of 18 September 2015, leading him to warn her that he was going to call o their relationship.
14. Moreover, the learned Judge determined that the appellant and the deceased had a tense night before
the incident over love letters the deceased was keeping from his past relationships. This was witnessed
by Edward Mwangi Gatonye (PW3), uncle to the deceased, who visited the deceased that night and
found that the appellant had locked herself in the bedroom and was cold towards him. Further, that
Serah Waithera Mohamed (PW4), sister to the deceased, stated that the night before, the deceased
sounded uneasy but could not respond to her questions because he was with the appellant. The court
found that the appellant admitted to her unusual behaviour of locking herself up in the bedroom when
PW3 visited. She, however, explained that the reason she left them in the sitting room was because she
was experiencing painful periods.
15. On the issue of malice aforethought, the court found that when the incident occurred, according to
the two eye witnesses (PW7 and PW8) who were the rst to arrive at the scene, there was no one
else in the house. They found the deceased and the appellant in a small space that was outside the
kitchen but before the sitting room entrance. By that time, the deceased had been stabbed several times,
and the appellant continued to stab the deceased intermittently right next to the kitchen. By the time
they both moved into the bedroom, the deceased could no longer cry out for help. Consequently, the
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court established that the appellant and the deceased were not in the bedroom when the attack started,
contradicting the appellant’s defence.
16. Moreover, considering the multiple stab wounds: nine (9) on the chest, several others on the abdomen,
rib cage, backside, shoulder, back of the head, and on the legs on both the front and the back, totaling
to 25, inevitably, it was illogical to conclude that at the time of these stabbings, the appellant was in a
lying position while the deceased was seated above her. Besides, evidence from persons who entered the
house indicated that there were blood stains all over the house which debunked the appellant’s defence
that the incident occurred only in the bedroom. Accordingly, the court held that from the evidence, it
was clear that the deceased was on his feet both in the kitchen and corridor when the appellant attacked
him.
17. The learned Judge further held that the appellant climbed onto the sink to reach for the keys to the
house after the deceased had already succumbed to his injuries. This taken together with the attestation
that the appellant blocked the deceased from reaching the kitchen to get the keys where he normally
kept them in order to escape from her, as well as the fact that the appellant stabbed the deceased 25
times all over the body intermittently, established beyond any doubt that the appellant had formed
the intention to cause grievous harm or death of the deceased. Subsequently, the court held that the
appellant inicted each stab, not in a frenzy as she alleged, but deliberately and intermittently; her
action was calculated to inict pain and cause death slowly but assuredly; and was clear proof of malice,
of spite, callousness and hatred. As a matter of course, the court concluded that there was no doubt in
its mind that the appellant’s action was caused by malice.
18. On whether the action was provoked, the learned Judge held that based on the events that took place
between the appellant and deceased two days prior to the incident up to the night before, it was
demonstrated that the appellant was extremely jealous of the deceased and harbored a huge grudge
against him for having kept some cards sent to him while in school, six years earlier. In that vein,
the court concluded that the appellant was manipulative, cried to get the deceased’s attention, which
ultimately led to him notifying the appellant that he was going to call o their relationship.
19. Subsequently, the court discredited the explanation put forth by the appellant pleading provocation,
to the extent that she had seen a document related to AIDS on the morning of the incident, which
she said the deceased tore up when she threatened to expose him to the family. In view of the fact that
among the exhibits recovered at the scene of the incident, no documents torn or otherwise were found,
other than love cards were recovered and produced in court; the court held that the allegation of an
AIDS Control document was an afterthought as nowhere did the defence raise the issue of such a
document with any witness, not even with the investigating ocers. Under those circumstances, the
learned Judge dismissed the allegation, stating that even if such a document existed, it could not justify
the appellant’s actions on the material day.
20. Concerning self defence, the learned Judge, relying on the Court of Appeal decisions of Ahmed
Mohammed Omar & 5 v Republic [2014] eKLR and Njeru v Republic [2006] 2 KLR 46 stated that, in
order to nd that the appellant was justied to take immediate defensive action, she had to determine
whether the attack on the appellant by the deceased was serious putting her in immediate peril; and
whether at the time of the stabbing, the attack on the appellant caused a crisis, putting her in immediate
danger, in order to justify instant reaction to avert the danger.
21. The court found that from the evidence adduced, the appellant was the one in control, because she
had the knife in her hand, and used it over a period of time, a stab at a time until the deceased was no
more, which negated the allegation that she was warding o an attack on herself. Likewise, considering
that the deceased had 25 stab wounds all over his body, that could not be accepted as an act of self-
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defence. It found that the force used by the appellant on the deceased was neither reasonably necessary
nor reasonable force.
22. Similarly, the court dismissed the defence put forth by the appellant that there was a confrontation
between her and the deceased. Based on the x-ray and abdominal scan conducted on the appellant,
the court held that the appellant had no injuries that could be comparable to those sustained by the
deceased. Regarding her admission to Kenyatta National Hospital and the examinations conducted on
her, the court stated that the appellant had tried to fool everyone into believing that she was a victim.
Her supercial injuries posed no real danger since no serious injuries were found, and her continued
hospitalization was superuous.
23. Accordingly, the court was satised that the charge of murder against the appellant had been proved
beyond reasonable doubt, and proceeded to convict the appellant of murder as charged under section
203 of the Penal Code and sentenced to death as prescribed under section 204 of the Penal Code in a
judgment delivered as prescribed under section 322 of the Criminal Procedure Code.
Proceedings before the Court of Appeal
24. Dissatised with the outcome, the appellant moved the Court of Appeal by ling Criminal Appeal
No 102 of 2018 against her conviction and sentence. She raised twenty (20) grounds of appeal,
seeking orders that, inter alia, the judgment and sentence delivered by the trial court be set aside in its
entirety and in the alternative, that the judgment of the High Court be substituted with a nding of
manslaughter and a sentence of time served be entered against the appellant.
25. In a Judgment delivered on 6 November 2020, the Court of Appeal (Okwengu, Warsame & J
Mohammed, JJA) proceeded on the three issues of determination distilled by the appellant hinged on
her grounds of appeal:
(i) whether the prosecution had proved the charge of murder;
(ii) whether the appellant’s defence was inconsistent with a nding of guilty beyond reasonable
doubt; and
(iii) whether the appellant’s sentencing was unduly harsh and failed to take into account her
mitigation.
26. Cognizant of the standard and burden of proof beyond reasonable doubt, the appellate court in the
rst instance, determined that from the postmortem report and the testimony of PW12, the cause of
death was multiple injuries and blood loss due to penetrating force trauma; coupled by the fact that
the deceased and the appellant were the only persons in the house. The learned Judges therefore had
no diculty nding that the deceased’s death was caused by the actions of the appellant.
27. On whether there was malice aforethought, the learned Judges of the appellate court underscored that
what constituted malice aforethought was the nature of the weapon used; nature of injuries suered by
the deceased; the conduct, before, during and after the incident; and the manner of use of the weapon.
Consequently, the appellate Judges upheld the trial court’s cogent and irrefutable picture of a person
who meant by their action to kill. They were mindful that it was the appellant who inicted the injuries
that caused the deceased’s death and held that, based on the nature of the injuries, it was evident that
the appellant’s actions were intended to result in death. They also found that the oence of murder
was proved beyond any reasonable doubt in regards to malice aforethought.
28. The Court of Appeal then proceeded to address each contradiction, discrepancy and inconsistency
raised by the appellant. On the submission that the authorities blatantly mismanaged the investigations
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and allowed for tampering of evidence and that the testimonies of witnesses were riddled with
inconsistencies as to the events that had taken place, which are errors and discrepancies that were
overlooked; the learned Judges found that the appellant neither substantiated what evidence was
tampered with nor how such tampering compromised the evidence that was gathered by the police.
29. Subsequently, the Court of Appeal held that the alleged unreconciled contradictions, discrepancies
and inconsistencies in the prosecution evidence, were either well explained in other testimony,
inconsequential or adequately addressed by the learned trial Judge. In the end, the appellate court
armed the decision of the trial court that the appellant violently, intentionally and unlawfully killed
the deceased. Inescapably, the appellant’s alleged defence of self-defence was unbelievable given the
cogent and compelling evidence of the prosecution witnesses. Accordingly, the appeal was dismissed.
30. Undeterred, the appellant led Criminal Appeal (Application) No 102 of 2018, before the Court of
Appeal, seeking leave to lodge an appeal in this court. The appellant argued that the intended appeal
raised fundamental points of general public importance on the battered woman syndrome. By a Ruling
dated 6th October 2023, the Court of Appeal (Asike-Makhandia, Murgor & Kantai JJA) granted the
leave sought to le an appeal before this court. It is on this basis that this appeal has found its way to
the Supreme Court
Proceedings before the Supreme Court
31. Pursuant to the leave granted, the appellant led her appeal before this court premised on the following
two grounds:
1. That the learned Judges of appeal erred in law by failing to appreciate and apply the doctrine
of battered woman syndrome in their assessment as to whether the appellant’s conduct was
reconcilable with the defence of self defence; and
2. Both the superior court and the Court of Appeal erred in law in failing to appreciate that the
appellant pleaded the defence of self-defence and led evidence in support of the defence; the
prosecution’s failure to armatively and conclusively repudiate each element of the defence
entitled her a conviction on the reduced charge of manslaughter.
32. Accordingly, the appellant seeks the following prayers from the court:
i. A declaration that the doctrine of the battered woman/man syndrome is applicable as a defence
to the defence of murder;
ii. A declaration that the applicable test for the battered woman/man syndrome is contextual and
based on the test of cumulative loss of self- control;
iii. A declaration that where an accused pleads self-defence under the doctrine of the battered
woman syndrome, the burden of proof shifts to the prosecution to disprove every element of
the defence beyond reasonable doubt;
iv. A declaration that the prosecution’s failure to conclusively repudiate each and every element
of the defence of self-defence entitles an accused person to conviction on the lesser charge of
manslaughter;
v. The Judgment of the Court of Appeal arming the appellant’s conviction on the charge of
murder be and is hereby set aside in its entirety and be substituted with a conviction on the
charge of manslaughter and the appellant be sentenced to time served;
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vi. That the sentencing of the appellant to death by the trial court as armed by the Court of
Appeal be set aside in favour of a more lenient sentence taking into account the doctrine of the
battered woman syndrome as a mitigating factor; and
vii. Such other or further consequential and appropriate relief as this honourable court may deem
just and expedient in the interests of justice.
33. In opposing the appeal, the respondent led a replying adavit sworn by Everlyn Onunga, Assistant
Director of Public Prosecutions, on 16 November 2023 and led on 17 November 2023. She depones
that the grounds of appeal raised by the appellant were not issues raised in either the trial or appellate
courts. Specically, the issue of battered woman syndrome was not raised. No medical evidence was
adduced by the appellant during the trial proceedings to suggest that she suered consistent intimate
partner violence trauma. Furthermore, the appellant’s choice to provide an unsworn testimony denied
the respondent the opportunity to test the veracity of her claims through cross examination. As a result,
the battered woman syndrome is a factual issue, and since the appellant failed to provide evidence in
support of it in the lower courts, the courts could only rely on the available evidence to make their
ndings. Therefore, that the appeal lacks merit and ought to be dismissed.
D. Parties Submissions
Appellant’s case
34. The appellant relied on her written submissions dated 22 July 2024 and led on 25 July 2024, anchored
on two issues: (1) the applicability, standard of proof, burden of proof and guiding principles for the
doctrine of the battered woman syndrome as a defence, and (2) the applicable standard and burden
of proof in a self-defence plea and the consequences thereon once the accused provides prima facie
circumstantial evidence of their plea.
35. On the rst issue, the appellant submits that the decision in State v Truphena Ndonga Aswani [2021]
KEHC 8758 (KLR) (hereinafter referred to as the “Truphena case”) applied the battered woman
syndrome in determining the appropriate sentence, paving way for its applicability as a defence in
Kenya. However, as it presently stands, the law is silent on this defence with no established principles
governing its application. The appellant contends that the Penal Code viewed in light of section 17,
acknowledges and facilitates the evolution of the defence of self-defence. This is because the provision
incorporates the application of English Common Law, which has shifted from an objective to a
subjective test. This evolution recognizes that the reaction of a victim suering from battered woman
syndrome may dier from that of a reasonable man. In any case, this does not negate a self defence
plea. The appellant relies on Ahmed Mohammed Omar & 5 others v Republic [2014] eKLR to bolster
this submission.
36. The appellant argues that the defence of battered woman syndrome recognizes that living in domestic
violence has a major impact on a woman’s state of mind, which could make an act of homicide
justiable. This is because the psychological state of abuse victims is considered to dilute the requisite
mens rea for commission of an oence. Under English law, the use of battered woman syndrome helps
a judge look beneath the surface to understand the reasons for such retaliation and determine whether
the attendant circumstances mitigate the oence. However, battered woman syndrome does not stand
on its own; it aids defences such as provocation, self-defence, and duress, allowing the court to adopt
the standard of ‘loss of self-control’ rather than that of the reasonable man; thus, availing victims to
claim ‘diminished responsibility’. The appellant made reference to Attorney General for Jersey v Holley
[2005] 2 AC 580 and R v Thornton [1996] 1 WLR 1174 to support this averment.
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37. It is the appellant’s contention that, in accepting the plea of self-defence, despite the court nding
that the force used was excessive on account of battered woman syndrome, the court in the Truphena
case recognized that what is considered “reasonable” in the context of an abuse victim may dier
signicantly from the ordinary standard and adapted the defence to ensure the ends of justice were met.
In all, the appellant argues that battered woman syndrome is also a mitigating factor for sentencing,
as adopted in the Truphena case.
38. The appellant posits that the battered woman syndrome characterizes a wide range of physical and
psychological responses to battering, like depression or heightened threat perception. As such, it is a
diagnosable condition, and evidence of the syndrome can be presented as a medical diagnosis from a
psychiatrist and through expert testimony, in a manner similar to the process of assessing an accused’s
tness to stand trial. She adds that this is not to say that the burden shifts to the accused to establish
their innocence; rather, once the accused pleads self- defence and presents prima facie evidence of
the syndrome, the prosecution must rebut that defence and establish the accused’s guilt beyond a
reasonable doubt.
39. Taking the aforesaid into account, the appellant submits that she gave uncontroverted testimony that
she endured a cycle of abuse and victimization by the deceased. That on the day of the incident, she
found evidence suggesting that the deceased had exposed her to HIV/AIDS, which led her to confront
him. The deceased who held a knife, grabbed her at the throat, and told her that ‘he would rather kill
me and himself than expose his status’. The appellant asserts that although the prosecution did not
tender evidence to rebut this testimony, her plea of self-defence was rejected by the superior courts on
the basis of proportionality, with the courts comparing the wounds inicted on the deceased with her
own and concluding that the force used to dispel his attack was excessive.
40. The appellant submits that if she had had the opportunity to plead the battered woman syndrome
defence at trial, and if the lower standard of “loss of self-control” had been adopted, her self-defence
plea would not have been negated on a proportionality challenge. Instead, the material question would
have been whether she was, in fact, caused to lose her self-control by the deceased’s conduct. The
appellant emphasizes that at the time of her trial in 2016, the defence had never been adopted in
Kenya, and as a result, she was shut out from accessing justice. In turn, she urges this court to nd
that the battered woman syndrome defence is applicable in Kenya and may accompany the defences of
provocation and self-defence in appropriate circumstances.
41. On the second issue, the appellant contends that under our criminal justice system, an accused person
should enjoy automatic reduction of the charge before court once the defences of self-defence and
provocation in connection with battered woman syndrome are invoked, evidence is presented to
support this, and the prosecution fails to rebut each and every element of the defence. Furthermore,
given that section 207 of the Penal Code accords an accused person charged with murder to be
convicted of the lesser charge of manslaughter if provocation is established, then a similar entitlement
should apply to self-defence. Therefore, once a battered woman syndrome defence is raised and not
rebutted to the criminal standard, then the accused ought to be convicted on the lesser charge of
manslaughter.
42. In addition, that where an accused person pleads self defence and provocation, and battered woman
syndrome applies, the court ought to apply the lower test of loss of self-control. Since the necessary
mental state for murder is vitiated, any conviction can only be for the lesser charge of manslaughter
pursuant to section 179(2) of the Criminal Code Procedure which provides that when a person is
charged with an oence and facts are proved which reduce it to a minor oence, he may be convicted
of the minor oence although he was not charged with it. Considering that the prosecution tendered
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no evidence to disprove the appellant’s testimony that the deceased attacked her out of fear, she prays
that this court reconsider her conviction on account of the prosecution’s failure to suciently rebut
her self-defence plea and set aside her conviction.
Respondent’s Case
43. The respondent relied on its written submissions dated 22 August 2024 and led on 12 September
2024. The respondent addresses the two issues as delineated by the appellant. With reference to the
rst issue, the applicability, standard of proof, burden of proof and guiding principles of the doctrine
of battered woman syndrome as a defence, the respondent submits that based on the ingredients of the
oence of murder, the battered woman syndrome defence nds that the mens rea element of murder is
not established when an abused woman murders her abusive spouse. At present, there are two defences
available under Kenyan law to a battered woman upon which she can base her defence: insanity; and
defense of self, others or property.
44. To the respondent, when an accused person pleads the defence of insanity, the burden rests upon her to
establish this claim on a balance of probabilities. Even though this defence may appear to be available
to battered women, it may not fully cover them, as it is restricted to the time of committing the act
or making the omission. In the context of self defence, the court must be satised that the accused
person reasonably perceives that she is in imminent danger and that the force used was reasonable and
necessary under the circumstance.
45. The respondent submits that, according to Walker in The Battered Woman Syndrome and Self-
Defence, Notre Dame Journal of Law, Ethics and Public Policy 1992, 323, the reasonable man’s
standard is essentially based on the idea of physical conict between two males. However, the situation
becomes complex when the accused is a battered woman with a history of abuse, and there is no expert
testimony to explain her state of mind and how it aects her perception of danger. For this reason, the
respondent belabors the need for expert testimony as essential when relying on the battered woman
syndrome to support the defence of self-defence. Be that as it may, the respondent asserts that the
syndrome should not serve as a defence in itself, but rather as support for a self-defence claim. The
mere fact of being a battered woman should never justify the actions of an accused.
46. Likewise, the respondent submits that the battered woman syndrome was developed as a psychological
tool to understand the mental state of a battered woman who kills her abuser. Therefore, it is crucial
to dierentiate between the mental status of an accused during the commission of a crime and their
mental tness to stand trial. These are two distinct mental assessments with dierent objectives hence
should never be used interchangeably. The respondent maintains that if the appellant suered from
the syndrome, she neither raised the issue nor provided expert evidence and cannot therefore claim it
before this court.
47. The respondent acknowledges that various jurisdictions, including Canada, have recognized the
admissibility of battered woman syndrome. As held by the Supreme Court in R v Lavallee [1990] 1
SCR 852, the syndrome is admissible only as an extension of self-defence, and being a battered woman
does not entitle an accused to an acquittal. In the United States, only nine states have enacted legislation
on the admissibility of expert testimony on the syndrome. In State v Kelly, 478 A 2d 364 (1984) the
New Jersey Supreme Court endorsed the use of expert testimony to assist the court arrive at a just
decision in cases involving battered woman syndrome. Ultimately, the respondent contends that these
jurisdictions have not accepted the state of being battered as prima facie evidence of innocence.
48. To this end, the respondent arms that the burden of establishing the existence of battered woman
syndrome or a history of domestic violence that would support the defence of self-defence based on
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the syndrome should lie with the defence, not the prosecution, as these are issues within the special
knowledge of the appellant. Besides, it should not be enough for the appellant to merely claim that
she was a battered woman. The respondent underscores that the appellant did not suer from the
battered woman syndrome, and that the claim is purely theoretical, speculative and generally academic,
especially since no medical report was produced to substantiate it, despite this being within the purview
of both the trial and appellate courts.
49. On the applicable standard and burden of proof in a self-defence plea, the respondent states that merely
claiming self-defence is not enough. An accused person must lay down facts and evidence in support
of that defence in order to justify that the homicide was lawful. It reiterated that once an accused
introduces the battered woman syndrome, expert testimony should be admitted under section 48 of the
Evidence Act if the accused seeks to establish that the use of deadly force was imminent and necessary.
In the instant appeal, the respondent asserts that it presented overwhelming evidence in support of its
case, demonstrating malice aforethought on the part of the appellant. Meanwhile, the appellant failed
to introduce any evidence supporting her version of events and instead gave an unsworn testimony
claiming she was in imminent danger.
50. As to provocation, the respondent avows that the superior courts rightly dismissed this defence, as it
was the appellant who was found to have viciously attacked the deceased and inicted injuries that
speak for themselves devoid of an iota of self defence; there being no evidence that the deceased attacked
the appellant. Accordingly, that the appeal lacks merit and ought to be dismissed.
E. Issues for Determination
51. The rationale behind our position in Sum Model Industries Limited v Industrial and Commercial
Development Corporation, Sup Ct Civ Appl No 1 of 2011, [2011] eKLR is that the application for
certication should rst be made in the Court of Appeal before a party seeks certication from this
court. In that matter, we stated thus:
“ This being an application for leave to appeal against a decision of the Court of Appeal, it
would be good practice to originate the application in the Court of Appeal which would be
better placed to certify whether a matter of public importance is involved. It is the Court of
Appeal which has all along been seized of the matter on appeal before it. That court has had
the advantage of assessing the facts and legal arguments placed and advanced before it by the
parties. Accordingly, the court should ideally be aorded the rst opportunity to express an
opinion as to whether an appeal would lie to the Supreme Court or not.”
52. We had the opportunity to pronounce ourselves on the criteria for an appeal to be eligible for
certication and consideration by this court in Steyn v Ruscone [2013] KESC 11 (KLR) (hereafter
referred to as the “Hermanus case”) where we proceeded to demarcate, in summary, the governing
principles on certication of a matter as one involving general public importance. These principles
were adverted to by the Court of Appeal in its ruling on certication when it expressed itself as follows:
“ 18. The applicant has submitted that the instant matter pertains to a novel issue
of law that requires the Supreme Court to pronounce itself on the standard
and burden of proof to guide other courts. Furthermore, that it is trite that in
criminal proceedings, the standard of proof is beyond reasonable doubt and
the burden of proof rests with the prosecution. In her appeal to the Supreme
Court, the applicant seeks to canvass the proposition that once a defence of
self-defence is adduced and circumstantial evidence is led to that eect, the
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accused ought to enjoy the benet of the law and the charge automatically
reduced to manslaughter.
19. While we are alive to the requirements under the Hermanus case [supra],
we also are aware of the nding of the Supreme Court that the Hermanus
principles are not exclusive or exhaustive.”
53. Consequently, the Court of Appeal found merit in the appellant’s application for certication in the
following terms:
“ 20. We have looked at the issues that have been raised by the applicant and note that
the issue surrounding battered woman syndrome is ideally raw in the Country
and has had not so many decisions on the same. We feel the same be given a
window for interrogation by the Supreme Court.” (Emphasis ours)
54. We have consistently reiterated and emphasized, including in Gatuma v Kenya Breweries Ltd & 3 others
[2024] KESC 52 (KLR) that under article 163(4)(b) of the Constitution, it is for the Court of Appeal
to identify the specic question(s) (of law) which in its view constitutes a matter(s) of general public
importance. This is because, unlike in a general appeal, it is the question framed by the appellate court
that confers jurisdiction upon this court. Where the Court of Appeal fails to identify the specic issues
or points of law, or makes a broad and/or vague nding as it did in certifying this appeal, it is incumbent
upon this court in the circumstances of this case to delineate the issues for determination meriting this
court’s attention from the outset.
55. To echo Lord Tucker of the House of Lords in Attorney General for Northern Ireland v Gallagher
(1963) AC 349, as we did in Dhanjal Investments Limited v Kenindia Assurance Company Limited
(Petition of Appeal 7 of 2016) [2018] KESC 16 (KLR), once the court from which the appeal is
brought has certied that a point of law of general importance is involved in the decision and leave to
appeal is established, the jurisdiction to hear the appeal is established pursuant to article 163(5) of the
Constitution. It, however, remains a matter for the exercise of discretion whether to allow a point in no
way connected with the certied point of law to be argued on the appeal, and it is not to be assumed
from the decision in this case that the appellant can as a matter of right raise any such point.
56. In the absence of any specic questions outlined by the Court of Appeal, the parties were led to
assimilate and frame the appeal on the issues set out by the appellant in her application for certication.
Thus, the issues put forth for our consideration are:
a. the applicability, standard of proof, burden of proof and guiding principles for the doctrine
of the battered woman syndrome as a defence, and
b. the applicable standard and burden of proof in a self-defence plea and the consequences
thereon once the accused provides prima facie circumstantial evidence of their plea.
These issues were not only submitted on by the appellant but were responded to by the respondent.
57. In addition, the respondent contends that the issue of battered woman syndrome was neither pleaded
before nor addressed by the trial court or the Court of Appeal; therefore, this court is precluded
from considering the issue in a second appeal. Our understanding of this submission is that, while the
respondent has no objection to the certication of the issue relating to the battered woman syndrome,
as that involving general public importance, the appellant should not benet from it having failed to
raise it at the onset before the trial and appellate courts below.
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58. On this basis, we are satised that the appeal will be disposed of on the basis of the following
considerations:
i. the applicability, standard of proof, burden of proof and guiding principles for the doctrine
of the battered woman syndrome as a defence.
ii. the applicable standard and burden of proof in a self-defence plea and the consequences
thereon once the accused provides prima facie circumstantial evidence of their plea.
iii. The applicable reliefs.
In our determination, we remain cautious of our lack of jurisdiction to revisit factual ndings of either
the High Court or Court of Appeal in line with our edict in Mitu-Bell Welfare Society v Kenya Airports
Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34
(KLR).
F. Analysis and Determination
The applicability, standard of proof, burden of proof and guiding principles for the doctrine of the
battered woman syndrome as a defence
59. In certifying the matter as raising general public importance, the Court of Appeal concluded that the
issue surrounding the battered woman syndrome is at a nascent stage of development in the country
warranting interrogation by the Supreme Court. The appellant contends that, as it stands in Kenya,
the law is silent on the applicability of the battered woman syndrome as a defence with no established
principles governing its application. She adds that the battered woman syndrome does not stand on
its own but aids defences such as provocation, self-defence and duress. The respondent agrees to the
extent that the only two defences available under Kenyan law to a battered woman, upon which she
can base her defence; insanity and defence of self, others or property. On our part, we are not blind
to the troubling surge in incidences of violence in Kenya, particularly intimate partner violence which
manifests, inter alia, through acts of femicide and other forms of sexual and gender-based violence.
60. To put the issue in context, it is imperative to understand the battered woman syndrome. This term
was coined by psychologist, Lenore E Walker, an American Psychologist in the 1970s, to understand
and explain the psychological state of women suering from intimate partner violence. It refers to a
set of behavioural and psychological reactions displayed by women who are subjected to severe, long -
term domestic abuse. In her book, Walker L. The Battered Woman Syndrome, Fourth Edition, Springer
Publishing Company, 1984 at pages 49 - 50 she states:
“ BWS, as it was originally conceived, consisted of the pattern of the signs and symptoms that
have been found to occur after a woman has been physically, sexually, and or psychologically
abused in an intimate relationship, when the partner (usually, but not always, a man) exerted
power and control over the woman to coerce her into doing whatever he wanted, without
regard for her feelings. As there are signicant dierences between the theory underlying
the construct of BWS, and to date there are no empirically supported data, it has not yet
been applied to battered men. Therefore, the term used is BWS rather than a gender-neutral
battered person syndrome (BPS) or even battered man syndrome (BMS).”
To her, a battered woman is “a woman, 18 years of age or over, who is or has been in
an intimate relationship with a man who repeatedly subjects or subjected her to forceful
physical and/or psychological abuse”.
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61. Black’s Law Dictionary 11th Edition at page 187, denes the battered woman syndrome as:
“ A constellation of medical and psychological symptoms of a woman who has suered
physical, sexual, or emotional abuse at the hands of a spouse or partner and who, as a result,
cannot take action to escape the abuse. Battered-woman syndrome was rst recognized in
the 1970s by Rd. Lenore Walker, who described the syndrome as consisting of three stages:
(1) the tension-building stage, which may include verbal and mild physical abuse; (2) the
acute battering stage, which includes stronger verbal abuse, increased physical violence, and
perhaps rape or other sexual abuse; and (3) the loving – contrition stage, which includes the
abuser’s apologies, attentiveness, kindness, and gift – giving. This syndrome is sometimes
proposed as a defense to justify or mitigate a woman’s killing of a man.”
62. From the foregoing, we can surmise that the denition of the battered woman syndrome is a
psychological condition of individuals who, have endured prolonged and severe abuse at the hands
of an intimate partner. It is this condition that can be extended as a basis for defence where such an
individual nally resorts to killing their abuser. Given that the concept transcends cultural and legal
boundaries, exploring its place in other jurisdictions provides a nuanced approach.
63. In the United Kingdom, the battered woman syndrome is not a stand- alone defence, but rather is
typically used to support arguments related to other defences such as self-defence, provocation, or
diminished responsibility, depending on the facts of the case. For instance, in R v Ahluwalia [1992]
4 All ER 889 Ms Ahluwalia poured petrol on her sleeping husband and set him on re. The Crown
Court found her guilty of murder and sentenced her to life imprisonment. She appealed, contending
that the history of violence she suered from her husband amounted to provocation and that she
suered from battered woman syndrome, though not explicitly named. She also sought to admit fresh
medical evidence to support her plea of diminished responsibility. The Court of Appeal held, having
regard to the fresh medical evidence adduced, that at the time of the killing, the appellant’s mental
responsibility for her actions was diminished and the fact that without any fault on the part of the
Ahluwalia there may have been an arguable defence which was not put forward at the trial, the verdict
of murder was found to be unsafe and unsatisfactory; a retrial was ordered.
64. In R v Thornton (No 2) [1996] 2 All ER 1023 Ms Thornton, who had been assaulted by her husband
on a number of occasions, used a knife and stabbed him to death. She was convicted of murder. Her
appeal was later dismissed. The Home Secretary thereafter referred her case to the Court of Appeal on
the basis of further medical evidence to the eect that she possessed two particular characteristics at
the time of the killing:
(i) her personality disorder, and
(ii) t he eect of her husband’s abuse over a period of time on her mental state, which would have
required the judge to direct the jury to consider whether a reasonable woman with those
characteristics might have lost her self- control and murdered her husband. The Court of
Appeal was of the rm view that whether Ms Thornton lost her self-control at the time of
the killing was essentially a matter for a jury to decide. Accordingly, the court quashed her
conviction and ordered for a retrial.
65. The Canadian Supreme Court in R v Lavallee [1990] 1 SCR 852 had an occasion to grapple with this
issue. In that case, Ms Lavallee killed her partner one night by shooting him in the back of the head as he
left her room. The shooting occurred after an argument where the appellant had been physically abused
and was fearful for her life after being taunted with the threat that either she kills him or he would get
her. A psychiatrist with extensive professional experience in the treatment of battered wives prepared
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a psychiatric assessment of the appellant which was used in support of her defence of self-defence.
The court emphasized the importance of allowing expert testimony to assist the jury in understanding
complex issues beyond the knowledge of a lay person, especially in cases involving the battered woman
syndrome.
66. In the United States, the New Jersey Supreme Court in State v Kelly, 478 A 2d 364 (1984) Ms.
Kelly killed her husband who had subjected her to years of abuse. She raised the defence of self-
defence invoking the battered woman syndrome to explain her actions. The court determined that the
syndrome could be introduced as evidence, that is expert testimony, in a self- defence claim to explain
the woman’s state of mind and the perceptions of her actions. The decision was a signicant milestone,
acknowledging that a victim of prolonged abuse might perceive threats that others would not recognize
as imminent or sucient to justify self-defence. The Battered Woman Syndrome has therefore been
used in the United States, including by defendants, in cases of self-defence and duress.
67. Despite limited research to support its validity and reliability, battered woman syndrome was quickly
adopted for use as a defence in criminal contexts in the United States and other countries including
Canada and the United Kingdom. A number of scholars have however raised questions about the
legal use of the battered woman syndrome as this syndrome has not been recognised as a psychiatric
condition by any edition of the Diagnostic and Statistical Manual of Mental Disorders. They also voice
concerns over the dierence in factors that aect the level of trauma and consideration of battered
women as survivors instead of victims.
68. Critics often argue that allowing the battered woman syndrome as a blanket defence could lead to
unjust outcomes, such as allowing women to kill their abusers without sucient scrutiny. Although
numerous studies have been conducted regarding the experiences of women and intimate partner
violence, the validity and reliability of battered woman syndrome as a clinical diagnosis (as opposed to
a legal construct) remains controversial. (see Russell BL. Battered woman syndrome as a legal defense:
History, effectiveness, and implications. Jeerson, NC: McFarland & Company, Inc., Publishers; 2014).
This explains the approach by many legal systems in adopting a more nuanced approach, assessing each
case individually to ensure fairness and justice for both the accused and the victim. Also, as held in R
v Coats [2013] EWCA Crim 1472:
“ However, fortunately not every woman who suers from domestic violence goes on to suer
from Battered Woman’s Syndrome.”
69. Additionally, Aman Deep Borthakur, in The case for Inclusion of ‘Battered Woman Defence’ in Indian
Law, 11 NUJS L REv 1 (January- March 2018) at page 8, writes:
“ However, an interesting argument made against the formal inclusion of BWS as a defence
and one that merits deeper engagement is that the formal inclusion is that a guarantee of
application based on being a battered woman would permit women to intentionally kill
their husbands. Therefore, it would be best if this defence was only availed on the basis
of the circumstances of each individual case and not as a general exemption granted to all
women who are battered by their partners. This strikes a reasonable balance when weighing
the interests of both stake holders and has been incorporated in the proposals that follow.”
70. The acceptance of battered woman syndrome by courts has continued to be met with mixed responses.
Some applaud it for recognising the plight of abused women and extending the traditional denition
of self-defence. Others criticise the extension of self-defence to situations where no immediate physical
threat is present. Apart from the Truphena case which applied the concept of battered woman
syndrome, there are no past cases in this jurisdiction where the concept has specically been used as
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a defence in murder trials. Building on the comparative jurisprudence, it can be noted that there is
broader acceptance that the battered woman syndrome does not establish a new defence, but rather
oers an explanation within established legal frameworks of the existing defences. It remains necessary
to assist judges, understand the distinct mental and emotional state of a woman who has endured
prolonged abuse, which may inuence her actions. While it enables the courts to consider the trauma
a woman has faced, it does not serve as a stand-alone justication for acquittal or reduced punishment.
71. The appellant argues that the decision in Truphena case paved way for the applicability of the defence
in Kenya. This is supported by the respondent, who underscores this averment by highlighting the
syndrome’s applicability in other decisions including Republic v J C [2021] eKLR and Republic v Collet
Tabitha Wafula [2016] eKLR.
72. In Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16
of 2015 (Consolidated)) [2017] KESC 2 (KLR) (hereinafter referred to as the “Muruatetu case”) this
court at para 71 issued guidelines with regard to mitigating factors for the conviction of murder charge
to include:
a. age of the oender;
b. being a rst oender;
c. whether the oender pleaded guilty;
d. character and record of the oender;
e. commission of the oence in response to gender-based violence;
f. remorsefulness of the oender;
g. the possibility of reform and social re-adaptation of the oender;
h. any other factor that the court considers relevant. (Emphasis ours)
73. It emerges that the battered woman syndrome has so far primarily been used as a mitigating factor
rather than a legal defence to a murder charge in Kenya. The syndrome has also been recognized
as a contributing circumstance that can reduce the severity of the charge or sentence in line with
the guidelines issued in the Muruatetu case for mitigation on the part of convicted persons. The
implication of the Muruatetu case is that mitigating factors, such as gender–based violence, must
be understood in the proper context. As we perceive it, the battered woman syndrome falls within
the category of gender- based violence in the context of marriage or an intimate partner relationship.
However, while we acknowledge the syndrome as a mitigating factor in sentencing, the present appeal
raises the signicant question: can the battered woman syndrome be considered and elevated to a
valid defence capable of justifying or excusing the actions of an accused person? This calls for careful
consideration.
74. Indeed and as noted by Magato Valentine, To Kill or Be Killed: Evaluating the Prospect of Situating
Battered Woman Syndrome Within the Kenyan Criminal Law (October 9, 2023) available at
SSRN: https:ssrn.com/abstract=4596238 or http:dx.doi.org/10.2139/ssrn. 4596238 the creation of
the battered woman syndrome into the criminal justice system caught public attention and exposed
the widespread intimate partner violence occurring in many households. Additionally, it entered the
legal eld to aid defense claims for women faced with homicide charges. Magato postulates that Kenya
has not adopted battered woman syndrome as a completely new defence or as an armative defence of
self-defence; neither has the criminal justice system applied expert testimony to understand a battered
woman’s circumstances.
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75. With the above background, it is appreciated, the applicability of the syndrome continues to gain legal
traction in Kenya, as evidenced from the cases cited above. The parties raised cogent arguments to assist
the court in determining the applicability and extent of the doctrine of battered woman syndrome.
These include:
a. whether battered woman syndrome as a defence is adequately covered under the existing
defences of insanity, self-defence, duress and /or provocation;
b. whether the defence of battered woman syndrome should be acceptable as a defence in Kenya
and if so, whether it is a distinct defence or should be looked at in the context of which of the
existing defences;
c. whether battered woman syndrome must be supported or proved by way of expert evidence;
d. whether there is a distinction between the mental state at the time of commission of the oence
and generally as a battered woman to establish mens rea;
e. whether battered woman syndrome should be determined factually on a case to case basis or
generally;
f. when the defence of battered woman syndrome can be raised i.e. as a preliminary issue, during
the trial process, as evidence from expert witnesses or in mitigation;
g. whether the defence of battered woman syndrome of itself connotes innocence to occasion an
acquittal or reduced sentence;
h. who bears the burden of establishing the existence and applicability of the battered woman
syndrome between the prosecution and the defence, and to what extent;
i. what is the applicable standard of proof in establishing the applicability of the battered woman
syndrome bearing in mind the applicable standard of proof in criminal trials;
j. in the context of an abusive or toxic relationship, how do you identify the victim deserving of
the defence of battered woman syndrome as against a manipulative and abusive partner.
76. There was common ground by the parties to the appeal that the applicability of this syndrome as a
defence stands out, even though the syndrome can aid the existing defences of temporary insanity,
provocation or self defence. In that regard, invoking the syndrome alludes to diminished mens rea and
responsibility resulting to loss of self-control. Thus, a dierent standard should apply as the syndrome
removes the application of the reasonable man’s test on account of diminished responsibility. This calls
for expert testimony that requires the syndrome to be established as a diagnosable condition, anchored
on the mental status of the accused person at the time of the commission of the oence of murder. This
is contradistinguished with the mental assessment undertaken to ascertain the capacity of an accused
person to undergo trial for the oence of murder.
77. The point of departure in the arguments by the parties to this appeal was on who bears the burden of
proof between the prosecution and the defence, once the syndrome is raised by an accused person. The
other disagreement was on whether there should be an automatic reduction of the charge from murder
to manslaughter if the battered woman syndrome is raised and not rebutted to criminal standards. This
is something we shall consider under the next issue for determination.
78. In our view, and based on the comparative jurisprudential underpinning, some of which we have set
out, the application of the battered woman syndrome must be carefully tailored to individual cases,
rather than applied universally as a blanket and stand-alone defence. A court cannot take a restrictive
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view that limits the scope of defences available in such circumstances. A case-by-case evaluation is
needed to ensure that the legal system as is, remains committed to justice while considering the unique
psychological and emotional eects of prolonged abuse.
79. We hasten to add that where a party seeks to rely upon the battered woman syndrome in the course
of trial, the same should be raised at the earliest in a similar manner that any other defence would
have been raised. This does not prevent a party from raising it in mitigation upon conviction. Neither
will it prevent admission of additional medical evidence at an appellate level, in rare and exceptional
cases, such as in the Thornton and Ahluwalia cases referred to above. We however emphasize that it
should not be left to the court to infer the existence and applicability of the battered woman syndrome
from the facts and evidence adduced before it. As already stated, the battered woman