Introduction
1. The accused, Anwar Bakari Jobwe , was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge were that on 12th June 2018 , at Fioni Village, Msambweni Sub-County, within Kwale County, he murdered Hassan Juma Jackson . The accused pleaded not guilty, whereupon the prosecution called eleven (11) witnesses in support of its case.
2. The prosecution case was substantially uncontested as regards the occurrence of the fatal attack. The principal issues for determination concern whether the prosecution proved beyond reasonable doubt that it was the accused who unlawfully caused the deceased's death and, if so, whether the killing was accompanied by the malice aforethought necessary to sustain a conviction for murder.
Prosecution Evidence
3. PW1, Fatuma Rama Manne , testified that on the morning of 12th June 2018, at about 6.00 a.m., the accused came to her home looking for her husband, PW2, Amadi Fachi Mkandi, who was known to practise traditional healing in addition to fishing. She woke her husband, who briefly spoke to the accused before the latter left on a motorcycle, stating that he was proceeding to Mwabungo. Approximately two hours later, the accused returned to her home on the same motorcycle accompanied by the deceased and a woman.
4. PW1 testified that the three entered her house while waiting for her husband, who had gone out in search of food. Without any apparent provocation, the accused suddenly confronted the deceased, asking him in Kiswahili, "Mimi wanijua? Do you know me?" Before the deceased could meaningfully respond, the accused seized a panga that was inside the house and struck the deceased on the back of the neck. Alarmed by the sudden attack, PW1 fled screaming into nearby bushes. When she later emerged after neighbours had responded to her distress calls, she found both the deceased and her cow lying dead. She identified the panga recovered by the police as the one that had been inside her house.
5. PW2, Amadi Fachi Mkandi , corroborated PW1's account regarding the accused's movements earlier that morning. He confirmed that the accused had visited him at about 6.00 a.m. before leaving. Later, while returning home, he was informed that someone had been killed at his compound. Upon arrival, he found the body of an unknown man outside his house and also discovered that his cow had been fatally injured. Police officers subsequently visited the scene, recovered the body and commenced investigations. PW2 identified photographs depicting both the deceased and the dead cow.
6. PW3, Furaha Juma Sadala , the deceased's step-sister, testified that the deceased worked as a watchman at Msambweni Water Development Company. On the material morning, he visited her home at about 9.00 a.m. to use her bathroom. He appeared normal and discussed routine matters relating to his employment before leaving. Later that day, she was called upon to identify his body following the attack.
7. PW4, Mohammed Rashid Mwatajiri , the Assistant Chief of Kinondo Sublocation, responded to reports of the incident. Upon arriving at the scene, he observed the deceased's body and promptly informed the Officer Commanding Station (OCS), Msambweni Police Station, who thereafter assumed conduct of the investigations. PW5, Yusuf Baya Kwicha , a relative of the deceased, attended the post-mortem examination and formally identified the deceased's body to the examining pathologist.
8. PW6, Chief Inspector Philip Cheruiyot , testified regarding a confession recorded from the accused on 26th June 2018. Before the confession was admitted into evidence, the Court conducted a trial within a trial following objections by the defence alleging that the statement had not been made voluntarily. By a ruling delivered on 2nd October 2025, the Court rejected those allegations and found that the confession had been voluntarily made, thereby admitting it into evidence.
9. In the confession, the accused admitted killing the deceased. He explained that he had gone to consult PW2, whom he described as both a fisherman and a traditional healer, because he believed he had repeatedly been afflicted by evil spirits. Upon finding PW2 absent, he encountered the deceased seated outside the homestead. According to the accused, he suddenly believed that the deceased was associated with the spirits that had been tormenting him. Acting upon that belief, he picked up a panga found at the homestead and cut the deceased. Thereafter, he proceeded to the cattle enclosure and also killed PW1's cow before leaving the scene and eventually being arrested.
10. PW7, Inspector Shukri Ali Adan , then Officer Commanding Station, Msambweni Police Station, testified that upon receiving a report of the incident, he proceeded to the scene together with other officers. They found the deceased's body bearing multiple deep cut wounds and also recovered the murder weapon, a blood-stained panga. The crime scene was photographed by officers from the Directorate of Criminal Investigations.
11. PW8, Dr. Saumu Shehe Koja , conducted the post-mortem examination. She observed extensive cut wounds to the head and neck region. In her opinion, the deceased died from severe head injuries accompanied by hypovolaemic shock resulting from excessive blood loss. Her findings were entirely consistent with the injuries observed at the scene and with the eyewitness testimony describing the manner of attack.
12. PW9 and PW10 respectively testified regarding the recovery of the murder weapon and the processing of the crime scene photographs, while PW11, the investigating officer, outlined the course of the investigations leading to the accused's arrest and prosecution. Upon the close of the prosecution's case, the Court found that the accused had a case to answer. The accused elected to exercise his constitutional right to remain silent and called no evidence in his defence.
The Law
13. The accused is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Section 203 provides:
"Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder."
14. To sustain a conviction for murder, the prosecution bears the burden of proving beyond reasonable doubt the following ingredients:
a. The fact and cause of the deceased's death;
b. That the death resulted from an unlawful act or omission;
c. That the unlawful act or omission was committed by the accused; and
d. That, in causing the death, the accused acted with malice aforethought as defined under section 206 of the Penal Code.
The burden of proof rests throughout upon the prosecution and never shifts except where the law expressly provides otherwise.
Whether the Death and Cause of Death were Proved
15. There is no dispute that the deceased, Hassan Juma Jackson, died on 12th June 2018. Several prosecution witnesses found his body at PW1's homestead shortly after the attack. PW4, the Assistant Chief, visited the scene before police officers arrived, while PW7 and PW9 subsequently removed the body for post-mortem examination. The photographs produced in evidence depict extensive cut wounds consistent with a brutal attack.
16. The post-mortem examination was conducted by PW8, Dr. Saumu Shehe Koja. The doctor observed multiple deep cut wounds affecting the head and neck and formed the opinion that the cause of death was severe head injury associated with hypovolaemic shock resulting from excessive blood loss. That medical opinion was neither challenged nor contradicted by the defence. The Court therefore finds that the prosecution proved both the fact and cause of death beyond reasonable doubt.
Whether the Death was Unlawfully Caused
17. Every homicide is presumed to be unlawful unless it falls within one of the recognised legal exceptions such as self-defence, accident, lawful execution of duty or other statutory justification.
18. The Court of Appeal in Guzambizi Wesonga v Republic, a decision consistently cited by Kenyan courts, held that every unlawful killing is presumed to constitute murder unless circumstances reducing the offence or excusing criminal responsibility are established.
19. In the present case, the evidence demonstrates that the deceased was an unarmed visitor who had accompanied the accused to PW1's home. There is absolutely no evidence that he provoked the accused, attacked him or posed any danger whatsoever. PW1 testified that the accused unexpectedly picked up a panga and cut the deceased on the neck without warning. Nothing on the evidence suggests that the accused acted in self-defence or under any lawful justification.
20. The Court therefore finds that the deceased's death resulted from an unlawful act.
Whether it was the Accused who Caused the Death
21. The prosecution evidence identifying the accused as the assailant is overwhelming.
22. First, PW1 was an eye witness. She knew the accused well before the incident. She had interacted with him earlier that morning when he came looking for her husband. She again saw him return with the deceased before witnessing him pick up the panga and strike the deceased. The attack occurred during daylight and there was therefore no possibility of mistaken identity.
23. Secondly, the accused voluntarily recorded a confession admitting that he attacked the deceased using a panga after believing that the deceased was somehow connected with the evil spirits which he believed were tormenting him. Before the confession was admitted into evidence, this Court conducted a trial within a trial and ruled that the confession had been made voluntarily and was therefore admissible.
24. Although a confession is capable of sustaining a conviction if voluntarily made, the present confession is independently corroborated by material evidence. It is corroborated by:
i. the direct eyewitness testimony of PW1;
ii. the recovery of the panga from the scene;
iii. the medical evidence demonstrating injuries consistent with the manner described by the accused;
iv. the photographs produced by the Scene of Crime Officer; and
v. the evidence of the investigating officer.
25. The Court therefore has no hesitation in finding that it was the accused who unlawfully inflicted the injuries that caused the death of the deceased. The prosecution has consequently proved the first three ingredients of the offence of murder beyond reasonable doubt.
Whether Malice Aforethought was Proved
26. The remaining and determinative issue is whether the prosecution proved beyond reasonable doubt that, at the time of the attack, the accused acted with malice aforethought within the meaning of section 206 of the Penal Code.
27. Section 206 provides that malice aforethought may be established by evidence showing an intention to cause death or grievous harm, knowledge that death or grievous harm would probably result from the act, or other circumstances specified therein.
28. In Republic v Tubere s/o Ochen, the Court held that malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, the severity of the injuries inflicted and the conduct of the accused before, during and after the attack.
29. Likewise, in Bonaya Tutu Ipu & Another v Republic, the Court of Appeal reaffirmed that malice aforethought is to be inferred from the totality of the evidence and surrounding circumstances, including the nature of the injuries and the conduct of the accused before and after the offence.
30. Applying those principles to the present case, there is no doubt that the accused used a lethal weapon—a panga—and repeatedly struck the deceased on vulnerable parts of the body. Ordinarily, such evidence would strongly support an inference of malice aforethought. However, this case presents unusual circumstances requiring closer examination of the accused's mental state at the time of the attack. That issue is considered in the next part of this judgment.
Whether the Prosecution Proved Malice Aforethought Beyond Reasonable Doubt
31. The fourth and final ingredient of the offence of murder is whether the prosecution proved that the accused acted with malice aforethought as contemplated under section 206 of the Penal Code. Although the prosecution bears the burden of proving this ingredient beyond reasonable doubt, the Court must consider the totality of the evidence, including any circumstances that may negate or cast doubt upon the existence of the requisite intention.
32. As already observed, the prosecution established that the accused deliberately used a panga to inflict fatal injuries upon the deceased's head and neck. Under ordinary circumstances, such conduct would readily justify an inference of malice aforethought. However, criminal liability is determined not only by the physical act (actus reus) but also by the mental element (mens rea) accompanying that act. It is therefore necessary to examine the accused's state of mind immediately before and during the commission of the offence.
33. The prosecution did not establish any previous disagreement, grudge, hostility or motive between the accused and the deceased. PW1, PW2 and PW3 all testified that there was no known dispute between the two men. Indeed, the deceased happened to be present at the home of PW2 when the accused arrived looking for PW2, whom he regarded as a traditional healer capable of treating the condition from which he believed he was suffering.
34. The accused's confession, which this Court found to have been voluntarily made after conducting a trial within a trial, provides valuable insight into his state of mind. In that confession, the accused consistently stated that he had been persistently afflicted by what he believed were evil spirits. He explained that he travelled to consult PW2 for treatment because of those experiences. Upon finding PW2 absent, he unexpectedly encountered the deceased and, according to his own account, irrationally concluded that the deceased was associated with the spirits that had been tormenting him. He thereafter attacked the deceased using a panga before also killing PW1's cow.
35. The Court has carefully considered those assertions. Standing alone, a belief in witchcraft or evil spirits does not constitute the legal defence of insanity. Kenyan law presumes every person to be of sound mind unless the contrary is proved. Sections 11 and 12 of the Penal Code require clear evidence that, at the time of committing the act, the accused was labouring under such a disease affecting the mind as to render him incapable of understanding the nature of his actions or of knowing that what he was doing was wrong.
36. The Court of Appeal in Marii v Republic held that insanity is an affirmative defence which must be established by evidence. Likewise, in Leonard Mwangemi Munyasia v Republic, the Court emphasized that unusual or bizarre behaviour does not, without more, amount to legal insanity. The inquiry is whether the accused suffered from such a disease of the mind as deprived him of criminal responsibility.
37. In the present case, no formal defence of insanity was raised by the defence. Equally, the psychiatric report prepared by Dr. C.M. Mwangombe concluded that the accused had no mental illness and was fit to plead. The report records that the accused denied any previous history of mental illness and, upon examination, his appearance, behaviour, speech, mood and cognition were found to be normal.
38. While the Court attaches considerable weight to the psychiatrist's professional opinion, it observes that the report principally addressed the accused's mental state approximately one month after the incident. More importantly, the report was directed at determining whether the accused was fit to plead, namely, whether he understood the court proceedings and was capable of making his defence. Fitness to plead is legally distinct from criminal responsibility at the time the offence was committed.
39. The Court further notes that the psychiatrist recorded that the accused denied any history of mental illness. The report, however, does not indicate whether the psychiatrist investigated the accused's repeated claims that he believed he was under persistent attack by evil spirits, whether collateral history was obtained from family members, or whether those beliefs were subjected to any detailed psychiatric evaluation. The Court is alive to the fact that some persons suffering from mental disorders retain insight into their condition, while others do not. Consequently, an accused person's denial of mental illness cannot, without more, be treated as conclusive proof that no mental disorder existed.
40. Nevertheless, the absence of a comprehensive psychiatric inquiry does not relieve the Court of its obligation to determine the case on the evidence before it. The evidence falls short of establishing the statutory defence of insanity under section 12 of the Penal Code. The accused therefore remains criminally responsible for his unlawful acts.
41. The question, however, is not confined to insanity alone. The Court must still determine whether the prosecution proved beyond reasonable doubt that the accused possessed the specific malice aforethought required for murder. In this regard, the accused's own account, the absence of any known motive, the apparently irrational selection of the deceased as his victim, and the bizarre sequence of events surrounding the killing collectively present circumstances that cannot be ignored.
42. The Court is persuaded that, although the accused intentionally inflicted the fatal injuries, the prosecution did not wholly dispel the reasonable doubt arising from the peculiar and irrational mental state demonstrated by the evidence. The accused's conduct was unquestionably violent and unlawful, yet it was equally impulsive, irrational and disconnected from any discernible motive. The prosecution therefore succeeded in proving the unlawful killing but failed to establish beyond reasonable doubt that the accused acted with the settled intention to kill or cause grievous harm envisaged under section 206 of the Penal Code.
43. In reaching that conclusion, the Court is guided by the principle that where there exists reasonable doubt regarding one of the essential ingredients of murder, that doubt must be resolved in favour of the accused. The evidence proves an unlawful homicide, but it does not, in the peculiar circumstances of this case, prove malice aforethought beyond reasonable doubt.
44. Accordingly, while the defence of insanity has not been established, the Court finds that the evidence supports the lesser but cognate offence of manslaughter contrary to sections 202 and 205 of the Penal Code.
45. Having carefully re-evaluated the entire evidence on record, the Court is satisfied that the prosecution has proved beyond reasonable doubt that the deceased, Hassan Juma Jackson , died as a result of multiple cut wounds inflicted with a panga. The evidence of PW1, who witnessed the attack, the confession made by the accused, the recovery of the murder weapon, the photographs of the scene, and the medical evidence adduced by PW 8 irresistibly point to the accused as the person who unlawfully caused the death of the deceased.
46. The Court has equally considered whether the evidence establishes the defence of insanity under sections 11 and 12 of the Penal Code. The answer is in the negative. The law presumes every person to be of sound mind until the contrary is proved. Although the accused repeatedly asserted that he believed he was under attack by evil spirits and that the deceased was somehow connected with those perceived attacks, no medical or other cogent evidence was adduced to establish that, at the material time, he was labouring under such a disease of the mind as rendered him incapable of understanding the nature of his acts or of knowing that what he was doing was wrong.
47. The psychiatric assessment conducted by Dr. C.M. Mwangombe on 18th July 2018 concluded that the accused had no mental illness and was fit to plead. The report records that the accused denied any history of mental illness and that his appearance, behaviour, mood, speech and cognition were normal. While the Court accords due weight to that expert opinion, it observes that the report was directed primarily at determining the accused's fitness to stand trial rather than his mental condition at the precise time of the offence. The report does not disclose whether the psychiatrist explored the accused's repeated assertions that he was under attack by evil spirits or sought collateral history from relatives or other persons who knew him. Nevertheless, in the absence of evidence establishing legal insanity, the Court is unable to conclude that the defence under section 12 of the Penal Code has been made out.
48. The failure of the defence of insanity, however, does not automatically establish the offence of murder. The prosecution must still prove beyond reasonable doubt that the accused acted with malice aforethought within the meaning of section 206 of the Penal Code. As was stated in Nzuki v Republic, malice aforethought is never to be presumed merely because death has resulted. It is a distinct ingredient of the offence which must be established from the totality of the evidence.
49. The Court has therefore considered all the surrounding circumstances. It is significant that there was no evidence whatsoever of any prior disagreement, hostility or motive between the accused and the deceased. The deceased happened to be present at PW2's homestead when the accused arrived seeking treatment from PW2, whom he regarded as a traditional healer. According to the accused's confession, he irrationally came to believe that the deceased was connected to the evil spirits which he believed had been tormenting him. Acting upon that irrational belief, he attacked the deceased without warning. Immediately thereafter, he proceeded to the cattle enclosure and, for no apparent reason, slaughtered PW1's cow. The animal had no connection with the accused's perceived grievance, nor had it posed any threat to him. The gratuitous killing of the cow immediately after the fatal assault upon the deceased demonstrates conduct that was bizarre, indiscriminate and wholly devoid of rational explanation.
50. The Court does not hold that such irrational conduct, standing alone, establishes legal insanity. However, it is a relevant circumstance in determining whether the prosecution has proved the mental element required for murder. In Republic v Tubere s/o Ochen, the Court held that malice aforethought is to be inferred from the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, the conduct of the accused before, during and after the attack, and all the surrounding circumstances. Likewise, in Bonaya Tutu Ipu & Another v Republic, the Court of Appeal emphasized that the existence of malice aforethought must be determined from the entirety of the evidence and not from any single factor in isolation.
51. Applying those principles, this Court accepts that the accused deliberately inflicted fatal injuries upon the deceased using a lethal weapon directed at vulnerable parts of the body. Ordinarily, such evidence would justify an inference of malice aforethought. However, this case is distinguished by the complete absence of motive, the accused's consistent assertions that he was acting under the influence of perceived supernatural attacks, his irrational selection of the deceased as his victim, and his immediate, inexplicable slaughter of an innocent cow that had no connection to the events. These are not matters that establish insanity, but they are circumstances which substantially weaken the inference that the accused acted with the settled intention to kill or cause grievous harm contemplated under section 206 of the Penal Code. He also repeated his illness to court when he was first arraigned. The fact that the doctor mentioned that the accused denied being of unsound mind shows that the issue did come up for him to deny. It also opens up the issue whether a person of unsound mind can competently accept or deny such an ailment. The court finds they cannot.
52. The Court is therefore left with a reasonable doubt as to whether the prosecution has proved the existence of malice aforethought beyond reasonable doubt. That doubt must, in accordance with the cardinal principles of criminal justice, be resolved in favour of the accused. The prosecution has proved an unlawful homicide but has failed to prove the mental element necessary to sustain a conviction for murder.
53. Consequently, the Court finds the accused, Anwar Bakari Jobwe, Not Guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and acquits him of that charge.
54. However, pursuant to section 179(2) of the Criminal Procedure Code, the Court finds that the evidence establishes beyond reasonable doubt the lesser cognate offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The accused is accordingly convicted of the offence of manslaughter.
55. The matter shall now proceed to mitigation and sentence.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS …30 TH DAY OF JULY 2026.
HON. LADY JUSTICE WENDY K. MICHENI
JUDGE
IN THE PRESENCE OF;
MR MUYALA FOR THE ACCUSED PERSON
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT
1. The accused, Anwar Bakari Jobwe , was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the charge were that on 12th June 2018 , at Fioni Village, Msambweni Sub-County, within Kwale County, he murdered Hassan Juma Jackson . The accused pleaded not guilty, whereupon the prosecution called eleven (11) witnesses in support of its case.
2. The prosecution case was substantially uncontested as regards the occurrence of the fatal attack. The principal issues for determination concern whether the prosecution proved beyond reasonable doubt that it was the accused who unlawfully caused the deceased's death and, if so, whether the killing was accompanied by the malice aforethought necessary to sustain a conviction for murder.
Prosecution Evidence
3. PW1, Fatuma Rama Manne , testified that on the morning of 12th June 2018, at about 6.00 a.m., the accused came to her home looking for her husband, PW2, Amadi Fachi Mkandi, who was known to practise traditional healing in addition to fishing. She woke her husband, who briefly spoke to the accused before the latter left on a motorcycle, stating that he was proceeding to Mwabungo. Approximately two hours later, the accused returned to her home on the same motorcycle accompanied by the deceased and a woman.
4. PW1 testified that the three entered her house while waiting for her husband, who had gone out in search of food. Without any apparent provocation, the accused suddenly confronted the deceased, asking him in Kiswahili, "Mimi wanijua? Do you know me?" Before the deceased could meaningfully respond, the accused seized a panga that was inside the house and struck the deceased on the back of the neck. Alarmed by the sudden attack, PW1 fled screaming into nearby bushes. When she later emerged after neighbours had responded to her distress calls, she found both the deceased and her cow lying dead. She identified the panga recovered by the police as the one that had been inside her house.
5. PW2, Amadi Fachi Mkandi , corroborated PW1's account regarding the accused's movements earlier that morning. He confirmed that the accused had visited him at about 6.00 a.m. before leaving. Later, while returning home, he was informed that someone had been killed at his compound. Upon arrival, he found the body of an unknown man outside his house and also discovered that his cow had been fatally injured. Police officers subsequently visited the scene, recovered the body and commenced investigations. PW2 identified photographs depicting both the deceased and the dead cow.
6. PW3, Furaha Juma Sadala , the deceased's step-sister, testified that the deceased worked as a watchman at Msambweni Water Development Company. On the material morning, he visited her home at about 9.00 a.m. to use her bathroom. He appeared normal and discussed routine matters relating to his employment before leaving. Later that day, she was called upon to identify his body following the attack.
7. PW4, Mohammed Rashid Mwatajiri , the Assistant Chief of Kinondo Sublocation, responded to reports of the incident. Upon arriving at the scene, he observed the deceased's body and promptly informed the Officer Commanding Station (OCS), Msambweni Police Station, who thereafter assumed conduct of the investigations. PW5, Yusuf Baya Kwicha , a relative of the deceased, attended the post-mortem examination and formally identified the deceased's body to the examining pathologist.
8. PW6, Chief Inspector Philip Cheruiyot , testified regarding a confession recorded from the accused on 26th June 2018. Before the confession was admitted into evidence, the Court conducted a trial within a trial following objections by the defence alleging that the statement had not been made voluntarily. By a ruling delivered on 2nd October 2025, the Court rejected those allegations and found that the confession had been voluntarily made, thereby admitting it into evidence.
9. In the confession, the accused admitted killing the deceased. He explained that he had gone to consult PW2, whom he described as both a fisherman and a traditional healer, because he believed he had repeatedly been afflicted by evil spirits. Upon finding PW2 absent, he encountered the deceased seated outside the homestead. According to the accused, he suddenly believed that the deceased was associated with the spirits that had been tormenting him. Acting upon that belief, he picked up a panga found at the homestead and cut the deceased. Thereafter, he proceeded to the cattle enclosure and also killed PW1's cow before leaving the scene and eventually being arrested.
10. PW7, Inspector Shukri Ali Adan , then Officer Commanding Station, Msambweni Police Station, testified that upon receiving a report of the incident, he proceeded to the scene together with other officers. They found the deceased's body bearing multiple deep cut wounds and also recovered the murder weapon, a blood-stained panga. The crime scene was photographed by officers from the Directorate of Criminal Investigations.
11. PW8, Dr. Saumu Shehe Koja , conducted the post-mortem examination. She observed extensive cut wounds to the head and neck region. In her opinion, the deceased died from severe head injuries accompanied by hypovolaemic shock resulting from excessive blood loss. Her findings were entirely consistent with the injuries observed at the scene and with the eyewitness testimony describing the manner of attack.
12. PW9 and PW10 respectively testified regarding the recovery of the murder weapon and the processing of the crime scene photographs, while PW11, the investigating officer, outlined the course of the investigations leading to the accused's arrest and prosecution. Upon the close of the prosecution's case, the Court found that the accused had a case to answer. The accused elected to exercise his constitutional right to remain silent and called no evidence in his defence.
The Law
13. The accused is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Section 203 provides:
"Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder."
14. To sustain a conviction for murder, the prosecution bears the burden of proving beyond reasonable doubt the following ingredients:
a. The fact and cause of the deceased's death;
b. That the death resulted from an unlawful act or omission;
c. That the unlawful act or omission was committed by the accused; and
d. That, in causing the death, the accused acted with malice aforethought as defined under section 206 of the Penal Code.
The burden of proof rests throughout upon the prosecution and never shifts except where the law expressly provides otherwise.
Whether the Death and Cause of Death were Proved
15. There is no dispute that the deceased, Hassan Juma Jackson, died on 12th June 2018. Several prosecution witnesses found his body at PW1's homestead shortly after the attack. PW4, the Assistant Chief, visited the scene before police officers arrived, while PW7 and PW9 subsequently removed the body for post-mortem examination. The photographs produced in evidence depict extensive cut wounds consistent with a brutal attack.
16. The post-mortem examination was conducted by PW8, Dr. Saumu Shehe Koja. The doctor observed multiple deep cut wounds affecting the head and neck and formed the opinion that the cause of death was severe head injury associated with hypovolaemic shock resulting from excessive blood loss. That medical opinion was neither challenged nor contradicted by the defence. The Court therefore finds that the prosecution proved both the fact and cause of death beyond reasonable doubt.
Whether the Death was Unlawfully Caused
17. Every homicide is presumed to be unlawful unless it falls within one of the recognised legal exceptions such as self-defence, accident, lawful execution of duty or other statutory justification.
18. The Court of Appeal in Guzambizi Wesonga v Republic, a decision consistently cited by Kenyan courts, held that every unlawful killing is presumed to constitute murder unless circumstances reducing the offence or excusing criminal responsibility are established.
19. In the present case, the evidence demonstrates that the deceased was an unarmed visitor who had accompanied the accused to PW1's home. There is absolutely no evidence that he provoked the accused, attacked him or posed any danger whatsoever. PW1 testified that the accused unexpectedly picked up a panga and cut the deceased on the neck without warning. Nothing on the evidence suggests that the accused acted in self-defence or under any lawful justification.
20. The Court therefore finds that the deceased's death resulted from an unlawful act.
Whether it was the Accused who Caused the Death
21. The prosecution evidence identifying the accused as the assailant is overwhelming.
22. First, PW1 was an eye witness. She knew the accused well before the incident. She had interacted with him earlier that morning when he came looking for her husband. She again saw him return with the deceased before witnessing him pick up the panga and strike the deceased. The attack occurred during daylight and there was therefore no possibility of mistaken identity.
23. Secondly, the accused voluntarily recorded a confession admitting that he attacked the deceased using a panga after believing that the deceased was somehow connected with the evil spirits which he believed were tormenting him. Before the confession was admitted into evidence, this Court conducted a trial within a trial and ruled that the confession had been made voluntarily and was therefore admissible.
24. Although a confession is capable of sustaining a conviction if voluntarily made, the present confession is independently corroborated by material evidence. It is corroborated by:
i. the direct eyewitness testimony of PW1;
ii. the recovery of the panga from the scene;
iii. the medical evidence demonstrating injuries consistent with the manner described by the accused;
iv. the photographs produced by the Scene of Crime Officer; and
v. the evidence of the investigating officer.
25. The Court therefore has no hesitation in finding that it was the accused who unlawfully inflicted the injuries that caused the death of the deceased. The prosecution has consequently proved the first three ingredients of the offence of murder beyond reasonable doubt.
Whether Malice Aforethought was Proved
26. The remaining and determinative issue is whether the prosecution proved beyond reasonable doubt that, at the time of the attack, the accused acted with malice aforethought within the meaning of section 206 of the Penal Code.
27. Section 206 provides that malice aforethought may be established by evidence showing an intention to cause death or grievous harm, knowledge that death or grievous harm would probably result from the act, or other circumstances specified therein.
28. In Republic v Tubere s/o Ochen, the Court held that malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, the severity of the injuries inflicted and the conduct of the accused before, during and after the attack.
29. Likewise, in Bonaya Tutu Ipu & Another v Republic, the Court of Appeal reaffirmed that malice aforethought is to be inferred from the totality of the evidence and surrounding circumstances, including the nature of the injuries and the conduct of the accused before and after the offence.
30. Applying those principles to the present case, there is no doubt that the accused used a lethal weapon—a panga—and repeatedly struck the deceased on vulnerable parts of the body. Ordinarily, such evidence would strongly support an inference of malice aforethought. However, this case presents unusual circumstances requiring closer examination of the accused's mental state at the time of the attack. That issue is considered in the next part of this judgment.
Whether the Prosecution Proved Malice Aforethought Beyond Reasonable Doubt
31. The fourth and final ingredient of the offence of murder is whether the prosecution proved that the accused acted with malice aforethought as contemplated under section 206 of the Penal Code. Although the prosecution bears the burden of proving this ingredient beyond reasonable doubt, the Court must consider the totality of the evidence, including any circumstances that may negate or cast doubt upon the existence of the requisite intention.
32. As already observed, the prosecution established that the accused deliberately used a panga to inflict fatal injuries upon the deceased's head and neck. Under ordinary circumstances, such conduct would readily justify an inference of malice aforethought. However, criminal liability is determined not only by the physical act (actus reus) but also by the mental element (mens rea) accompanying that act. It is therefore necessary to examine the accused's state of mind immediately before and during the commission of the offence.
33. The prosecution did not establish any previous disagreement, grudge, hostility or motive between the accused and the deceased. PW1, PW2 and PW3 all testified that there was no known dispute between the two men. Indeed, the deceased happened to be present at the home of PW2 when the accused arrived looking for PW2, whom he regarded as a traditional healer capable of treating the condition from which he believed he was suffering.
34. The accused's confession, which this Court found to have been voluntarily made after conducting a trial within a trial, provides valuable insight into his state of mind. In that confession, the accused consistently stated that he had been persistently afflicted by what he believed were evil spirits. He explained that he travelled to consult PW2 for treatment because of those experiences. Upon finding PW2 absent, he unexpectedly encountered the deceased and, according to his own account, irrationally concluded that the deceased was associated with the spirits that had been tormenting him. He thereafter attacked the deceased using a panga before also killing PW1's cow.
35. The Court has carefully considered those assertions. Standing alone, a belief in witchcraft or evil spirits does not constitute the legal defence of insanity. Kenyan law presumes every person to be of sound mind unless the contrary is proved. Sections 11 and 12 of the Penal Code require clear evidence that, at the time of committing the act, the accused was labouring under such a disease affecting the mind as to render him incapable of understanding the nature of his actions or of knowing that what he was doing was wrong.
36. The Court of Appeal in Marii v Republic held that insanity is an affirmative defence which must be established by evidence. Likewise, in Leonard Mwangemi Munyasia v Republic, the Court emphasized that unusual or bizarre behaviour does not, without more, amount to legal insanity. The inquiry is whether the accused suffered from such a disease of the mind as deprived him of criminal responsibility.
37. In the present case, no formal defence of insanity was raised by the defence. Equally, the psychiatric report prepared by Dr. C.M. Mwangombe concluded that the accused had no mental illness and was fit to plead. The report records that the accused denied any previous history of mental illness and, upon examination, his appearance, behaviour, speech, mood and cognition were found to be normal.
38. While the Court attaches considerable weight to the psychiatrist's professional opinion, it observes that the report principally addressed the accused's mental state approximately one month after the incident. More importantly, the report was directed at determining whether the accused was fit to plead, namely, whether he understood the court proceedings and was capable of making his defence. Fitness to plead is legally distinct from criminal responsibility at the time the offence was committed.
39. The Court further notes that the psychiatrist recorded that the accused denied any history of mental illness. The report, however, does not indicate whether the psychiatrist investigated the accused's repeated claims that he believed he was under persistent attack by evil spirits, whether collateral history was obtained from family members, or whether those beliefs were subjected to any detailed psychiatric evaluation. The Court is alive to the fact that some persons suffering from mental disorders retain insight into their condition, while others do not. Consequently, an accused person's denial of mental illness cannot, without more, be treated as conclusive proof that no mental disorder existed.
40. Nevertheless, the absence of a comprehensive psychiatric inquiry does not relieve the Court of its obligation to determine the case on the evidence before it. The evidence falls short of establishing the statutory defence of insanity under section 12 of the Penal Code. The accused therefore remains criminally responsible for his unlawful acts.
41. The question, however, is not confined to insanity alone. The Court must still determine whether the prosecution proved beyond reasonable doubt that the accused possessed the specific malice aforethought required for murder. In this regard, the accused's own account, the absence of any known motive, the apparently irrational selection of the deceased as his victim, and the bizarre sequence of events surrounding the killing collectively present circumstances that cannot be ignored.
42. The Court is persuaded that, although the accused intentionally inflicted the fatal injuries, the prosecution did not wholly dispel the reasonable doubt arising from the peculiar and irrational mental state demonstrated by the evidence. The accused's conduct was unquestionably violent and unlawful, yet it was equally impulsive, irrational and disconnected from any discernible motive. The prosecution therefore succeeded in proving the unlawful killing but failed to establish beyond reasonable doubt that the accused acted with the settled intention to kill or cause grievous harm envisaged under section 206 of the Penal Code.
43. In reaching that conclusion, the Court is guided by the principle that where there exists reasonable doubt regarding one of the essential ingredients of murder, that doubt must be resolved in favour of the accused. The evidence proves an unlawful homicide, but it does not, in the peculiar circumstances of this case, prove malice aforethought beyond reasonable doubt.
44. Accordingly, while the defence of insanity has not been established, the Court finds that the evidence supports the lesser but cognate offence of manslaughter contrary to sections 202 and 205 of the Penal Code.
45. Having carefully re-evaluated the entire evidence on record, the Court is satisfied that the prosecution has proved beyond reasonable doubt that the deceased, Hassan Juma Jackson , died as a result of multiple cut wounds inflicted with a panga. The evidence of PW1, who witnessed the attack, the confession made by the accused, the recovery of the murder weapon, the photographs of the scene, and the medical evidence adduced by PW 8 irresistibly point to the accused as the person who unlawfully caused the death of the deceased.
46. The Court has equally considered whether the evidence establishes the defence of insanity under sections 11 and 12 of the Penal Code. The answer is in the negative. The law presumes every person to be of sound mind until the contrary is proved. Although the accused repeatedly asserted that he believed he was under attack by evil spirits and that the deceased was somehow connected with those perceived attacks, no medical or other cogent evidence was adduced to establish that, at the material time, he was labouring under such a disease of the mind as rendered him incapable of understanding the nature of his acts or of knowing that what he was doing was wrong.
47. The psychiatric assessment conducted by Dr. C.M. Mwangombe on 18th July 2018 concluded that the accused had no mental illness and was fit to plead. The report records that the accused denied any history of mental illness and that his appearance, behaviour, mood, speech and cognition were normal. While the Court accords due weight to that expert opinion, it observes that the report was directed primarily at determining the accused's fitness to stand trial rather than his mental condition at the precise time of the offence. The report does not disclose whether the psychiatrist explored the accused's repeated assertions that he was under attack by evil spirits or sought collateral history from relatives or other persons who knew him. Nevertheless, in the absence of evidence establishing legal insanity, the Court is unable to conclude that the defence under section 12 of the Penal Code has been made out.
48. The failure of the defence of insanity, however, does not automatically establish the offence of murder. The prosecution must still prove beyond reasonable doubt that the accused acted with malice aforethought within the meaning of section 206 of the Penal Code. As was stated in Nzuki v Republic, malice aforethought is never to be presumed merely because death has resulted. It is a distinct ingredient of the offence which must be established from the totality of the evidence.
49. The Court has therefore considered all the surrounding circumstances. It is significant that there was no evidence whatsoever of any prior disagreement, hostility or motive between the accused and the deceased. The deceased happened to be present at PW2's homestead when the accused arrived seeking treatment from PW2, whom he regarded as a traditional healer. According to the accused's confession, he irrationally came to believe that the deceased was connected to the evil spirits which he believed had been tormenting him. Acting upon that irrational belief, he attacked the deceased without warning. Immediately thereafter, he proceeded to the cattle enclosure and, for no apparent reason, slaughtered PW1's cow. The animal had no connection with the accused's perceived grievance, nor had it posed any threat to him. The gratuitous killing of the cow immediately after the fatal assault upon the deceased demonstrates conduct that was bizarre, indiscriminate and wholly devoid of rational explanation.
50. The Court does not hold that such irrational conduct, standing alone, establishes legal insanity. However, it is a relevant circumstance in determining whether the prosecution has proved the mental element required for murder. In Republic v Tubere s/o Ochen, the Court held that malice aforethought is to be inferred from the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used, the conduct of the accused before, during and after the attack, and all the surrounding circumstances. Likewise, in Bonaya Tutu Ipu & Another v Republic, the Court of Appeal emphasized that the existence of malice aforethought must be determined from the entirety of the evidence and not from any single factor in isolation.
51. Applying those principles, this Court accepts that the accused deliberately inflicted fatal injuries upon the deceased using a lethal weapon directed at vulnerable parts of the body. Ordinarily, such evidence would justify an inference of malice aforethought. However, this case is distinguished by the complete absence of motive, the accused's consistent assertions that he was acting under the influence of perceived supernatural attacks, his irrational selection of the deceased as his victim, and his immediate, inexplicable slaughter of an innocent cow that had no connection to the events. These are not matters that establish insanity, but they are circumstances which substantially weaken the inference that the accused acted with the settled intention to kill or cause grievous harm contemplated under section 206 of the Penal Code. He also repeated his illness to court when he was first arraigned. The fact that the doctor mentioned that the accused denied being of unsound mind shows that the issue did come up for him to deny. It also opens up the issue whether a person of unsound mind can competently accept or deny such an ailment. The court finds they cannot.
52. The Court is therefore left with a reasonable doubt as to whether the prosecution has proved the existence of malice aforethought beyond reasonable doubt. That doubt must, in accordance with the cardinal principles of criminal justice, be resolved in favour of the accused. The prosecution has proved an unlawful homicide but has failed to prove the mental element necessary to sustain a conviction for murder.
53. Consequently, the Court finds the accused, Anwar Bakari Jobwe, Not Guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and acquits him of that charge.
54. However, pursuant to section 179(2) of the Criminal Procedure Code, the Court finds that the evidence establishes beyond reasonable doubt the lesser cognate offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The accused is accordingly convicted of the offence of manslaughter.
55. The matter shall now proceed to mitigation and sentence.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS …30 TH DAY OF JULY 2026.
HON. LADY JUSTICE WENDY K. MICHENI
JUDGE
IN THE PRESENCE OF;
MR MUYALA FOR THE ACCUSED PERSON
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT