1. The accused person was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The Particulars of the offence as per the information dated 22nd November, 2024 are that on the 2nd November, 2024 at Mtwapa township in Kilifi South Sub – County within Kilifi County, he an murdered unidentified person “KAZEE”.
2. He pleaded not guilty and the State called 5 witnesses. These are:
i. David Mtabari
ii. Peter Maina Korugwa
iii. Said Swaleh
iv. No. 261936 PC Misati Ongori Jackson
v. Dr. Gabriel Mugola
3. The court after considering the evidence found that the accused person had a case to answer and he was placed on his defence. He gave a sworn statement denying the offence.
The law
4. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law.
5. Section 203 of the Penal Code gives the elements of the offence as follows: -
“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
6. The elements of murder were set out by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:
“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased an
(c) the intention
7. Therefore, on the first part, the state had to prove the death and that the accused person committed the acts or omissions which caused the death of the deceased.
The Death
8. The identity of the deceased posed some challenge in this case. This is because he appears not to have been a documented citizen and he was living in some incomplete building alongside the accused person alongside PW1, PW 2and the accused person.
9. The 3 – PW 1, PW 2 and the accused person, however, all admitted that the deceased was known to them as Kazee and he was a Mkamba by tribe. PWI and PW2 testified that they found him alive on this 21/11/ 2024, though injured. They took him to hospital and he was talking to them. He was however pronounced dead on arrival at the hospital. The investigator, PC Misati Ongori (PW4) confirmed that he was called and he collected the body from Mtwapa dispensary and took it to Coast General Hospital.
10. The postmortem was then conducted and the body was identified by the same PC Jackson Misati. Dr. Cheneno conducted the postmortem and the report was produced as PEXT 9. The body was also photographed and the 4 photographs produced as PEXT 3(ii) -(iv). They capture the piece of cloth that PW1 and 2 said they used to try stop the bleeding. The cause of death is shown as Hemorrhagic shock due to sharp penetrating injury to the left lung secondary to sharp force trauma.
11. PW 1 and PW 2 testified that they carried the injured Kasee on the motorcycle PEXT reg. no. KMGK 732Y , PEXT 1,and on arrival at Mtwapa Hospital they were told he had died.
12. I find therefore, that without doubt, one human being, though not properly identified, but who went by the street name Kasee died on 21/11/2024. The issue of death and the cause is settled.
The next issue is who caused the penetrating wound that perforated the left lung of this Kasee leading to its collapse and eventual death?
13. In this case we do not have any eye witness. We only have the word of PW 1 and PW 2 the only ones who were at the scene. Unfortunately, neither of them witnessed the actual stabling. PW 1 testified that he was sleeping when he heard commotion outside and the sound of people fighting. He got out and found the deceased on the ground. He also said that he heard the deceased say “Baite ameniua” – Baite you have killed me.
14. That PW 2 then arrived with the motorcycle – shown in the picture PEXT 3 (1). It was owned by PW 3 but PW2 was operating the same. The two, (PW 1 and PW 2) took the deceased to hospital. Both PW 1 and PW 2 testified that along the way the deceased kept repeating “Baite ameniua.”
15. PW 1 was the rider while PW 2 supported the deceased. Both PW 1 and PW 2 identified Baite as the accused person his kimeru street name. Tragically, Kasee was pronounced dead on arrival at the hospital.
16. The record shows that PW 1 and PW 2 scaled the hospital walls and took off on learning that their patient was dead. They were cross examined on this and whether they ran as they were the culprits. Both stated they were scared of the police. This is a rather unfortunate reality in Kenya. It is common knowledge that the general populace does not have faith in our security forces more so the police who are a long way from earning the trust of the ordinary citizen. I therefore understand the fear and the concern by PW1 AND 2.
17. PW 1 and PW 2 testified that they looked for the accused person and had him arrested. Indeed the accused person admits that PW 2, confronted him and he ran into the mosque from where he was arrested. His explanation was that he ran into the mosque to ask them to announce the death.
18. From this analysis, we see that there was no direct evidence against the accused person. What we have is circumstantial evidence and the dying declaration that both PW 1 and PW 2 testified about.
19. The test to be applied when considering circumstantial evidence is settled and there is now a long line of cases on that issue. In the case of S awe V Republic [2003] eKLR the Court of Appeal stated thus :-
“In order to justify a conviction on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”
20. In the case of Abanga alias Onyango V. Rep Cr. A No.32 Of 1990 (Ur) the court observed:-
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”
21. Se ction 33 (a) of the Evid ence Act ( Cap 80) states that:-
Statement by deceased person, etc., when Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, ... are themselves admissible in the following cases—
(a) Relating to cause of death when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;…….”
22. The principles governing dying declarations were considered by the Court of Appeal in the case of Philip Nzaka Watu v Republic [ 2016] eKLR. The court held that:-
“Under section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements. Clearly by reason of section 33 (a), there is no substance in the claim that a dying declaration constitutes inadmissible hearsay evidence.
23. Notwithstanding section 33(a) of the Evidence Act, courts have consistently held the view that evidence of a dying declaration must be admitted with caution because firstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe. This Court expressed itself as follows in CHOGE V. REPUBLIC (supra) :
24. “The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful considerations to tell the truth.
25. In Kenya, however the admissibility of dying declaration need not depend upon the declarant being, at the time of making it, in a hopeless expectation of eminent death. There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.”
26. 31. The court reiterated those principles in the case of Charles Njonjo Gituro V Republic [2019] eKLR; and in the case of Moses Wanjala Ngaira V Republic [2019] eKLR where it held inter alia:-
The situation in Kenya is, however, different as exemplified in section 33 of the Evidence Act (supra). There is a catena of authorities from this Court on the nature and the manner of receiving and considering evidence of dying declaration. We take it from Choge v Republic [1985] KLR 1, citing the predecessor of this Court in Pius Jasanga s/o Akumu R (1954) 21 EACA 331:
27. “In Kenya the admissibility of a dying declaration does not depend, as it does in England, upon the declarant having at the time, a settled, hopeless expectation of imminent death, so that the awful solemnity of his situation may be considered as creating an obligation equivalent to that imposed by the taking of an oath.
28. In Kenya (as in India) the admissibility of statements by persons who have died as to the cause of death depends merely upon section 32 of the Indian Evidence Act. It has been said by this court that the weight to be attached to dying declarations in this country must, consequently, be less than that attached to them in England, and that the exercise of caution in the reception of such statements is even more necessary in this country than in England. (Republic v Muyovya bin Msuma (1939) 6 EACA 128. See also Republic v Premanda (1925) 52 Cal 987.)
29. The question of the caution to be exercised in the reception of dying declarations and the necessity for their corroboration has been considered by this court in numerous cases, and a passage from the 7th Edition of Field on Evidence has repeatedly been cited with approval:
“The caution with which this kind of testimony should be received has often been commented upon. The test of cross examination may be wholly wanting, and… the particulars of the violence may have occurred under circumstances of confusion and surprise calculated to prevent their u being accurately observed…The deceased may have stated inferences from facts concerning which he may have omitted important particulars, from not having his attention called to them. (Ramazani bin Mirandu (1934) 1 EACA 107; R v Okulu s/o Eloku (1938) 5 EACA 39; R v Muyovya bin Msuma (supra). The fact that the deceased told different persons that the appellant was the assailant is evidence of the consistency of his belief that such was the case: it is not guarantee for accuracy (ibid).
It is not a rule of law that, in order to support a conviction there must be corroboration of a dying declaration (R v Eligu s/o Odel and another (1943) 10 EACA 9; Re Guruswani [1940] Mad 158, and there may be circumstances which go to show that the deceased could not have been mistaken in his identification of the accused. See for instance the case of the second accused in R v Eligu s/o Odel and Epongu s/o Ewunyu (1943) 10 EACA 90). But it is, generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject of cross-examination, unless there is satisfactory corroboration. (R v Said Abdulla (1945) 12 EACA 67; R v Mgundulwa s/o Jalo (1946) 13 EACA 169, 171).”
ANALYSIS
30. In the present case the accused person was well known to the two key witnesses (PW 1 and PW 2). They all lived together. There was no mention of any grudge on any reason why the two would give false evidence against the accused person.
31. The accused person admitted that indeed PW2 confronted him over the death and he took off running into the mosque. His explanation was that he was going to alert the mosque officials to announce the death. The question is why run away and why had he not reported earlier? I considered his defence and his where abouts that night and I also did not find his explanation of having attended some private madrassa classes up to the wee hours to be plausible .
32. The two key witnesses stood by their ground and were consistent even under the serious cross examination by the Defence advocate. I therefore find that they were credible witnesses and their evidence is to be believed. Pw1 heard the commotion and on going outside the deceased stated it was Baite who had stabbed him. Pw2 also heard this statement. The deceased died shortly thereafter.
33. Therefore, from the evidence, the accused person inflicted the wound that led to the death of the deceased.
Whether the accused person acted of malice aforethought.
34. Section 206 of the Penal Code provides circumstances from which malice aforethought may be inferred. They are:
“a. An intention to caused death of or to do grievous harm to any person, whether that person is the person actually killed or not;
b. Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be cause;
c. An intention to commit a felony;
d.…”
35. In determining whether the accused person had malice aforethought, the court must take the surrounding evidence into account. This was held by the Court of Appeal in the case of N M W v Republic [2018] eKLR where it stated:-
“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of CHESAKIT V. UGANDA, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.”
36. In the present case the genesis of the confrontation was not established. However, malice aforethought can be inferred from the circumstances. The accused person caused a deep penetrating wound that perforated the lungs of his victim. This was a vicious and deadly attack that shows an intention to either cause the murder or grievous harm. Therefore, malice afore thought was proved.
37. From the above, the 3 ingredients of murder contrary to section 203 as read with section 204 of the penal code were proved and I convict the accused person accordingly.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 17th day of July…2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
The accused person and his advocate
Mr. Ngiri for the state
Bebora court assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE
2. He pleaded not guilty and the State called 5 witnesses. These are:
i. David Mtabari
ii. Peter Maina Korugwa
iii. Said Swaleh
iv. No. 261936 PC Misati Ongori Jackson
v. Dr. Gabriel Mugola
3. The court after considering the evidence found that the accused person had a case to answer and he was placed on his defence. He gave a sworn statement denying the offence.
The law
4. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law.
5. Section 203 of the Penal Code gives the elements of the offence as follows: -
“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
6. The elements of murder were set out by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:
“For the offence of murder to be proved, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased an
(c) the intention
7. Therefore, on the first part, the state had to prove the death and that the accused person committed the acts or omissions which caused the death of the deceased.
The Death
8. The identity of the deceased posed some challenge in this case. This is because he appears not to have been a documented citizen and he was living in some incomplete building alongside the accused person alongside PW1, PW 2and the accused person.
9. The 3 – PW 1, PW 2 and the accused person, however, all admitted that the deceased was known to them as Kazee and he was a Mkamba by tribe. PWI and PW2 testified that they found him alive on this 21/11/ 2024, though injured. They took him to hospital and he was talking to them. He was however pronounced dead on arrival at the hospital. The investigator, PC Misati Ongori (PW4) confirmed that he was called and he collected the body from Mtwapa dispensary and took it to Coast General Hospital.
10. The postmortem was then conducted and the body was identified by the same PC Jackson Misati. Dr. Cheneno conducted the postmortem and the report was produced as PEXT 9. The body was also photographed and the 4 photographs produced as PEXT 3(ii) -(iv). They capture the piece of cloth that PW1 and 2 said they used to try stop the bleeding. The cause of death is shown as Hemorrhagic shock due to sharp penetrating injury to the left lung secondary to sharp force trauma.
11. PW 1 and PW 2 testified that they carried the injured Kasee on the motorcycle PEXT reg. no. KMGK 732Y , PEXT 1,and on arrival at Mtwapa Hospital they were told he had died.
12. I find therefore, that without doubt, one human being, though not properly identified, but who went by the street name Kasee died on 21/11/2024. The issue of death and the cause is settled.
The next issue is who caused the penetrating wound that perforated the left lung of this Kasee leading to its collapse and eventual death?
13. In this case we do not have any eye witness. We only have the word of PW 1 and PW 2 the only ones who were at the scene. Unfortunately, neither of them witnessed the actual stabling. PW 1 testified that he was sleeping when he heard commotion outside and the sound of people fighting. He got out and found the deceased on the ground. He also said that he heard the deceased say “Baite ameniua” – Baite you have killed me.
14. That PW 2 then arrived with the motorcycle – shown in the picture PEXT 3 (1). It was owned by PW 3 but PW2 was operating the same. The two, (PW 1 and PW 2) took the deceased to hospital. Both PW 1 and PW 2 testified that along the way the deceased kept repeating “Baite ameniua.”
15. PW 1 was the rider while PW 2 supported the deceased. Both PW 1 and PW 2 identified Baite as the accused person his kimeru street name. Tragically, Kasee was pronounced dead on arrival at the hospital.
16. The record shows that PW 1 and PW 2 scaled the hospital walls and took off on learning that their patient was dead. They were cross examined on this and whether they ran as they were the culprits. Both stated they were scared of the police. This is a rather unfortunate reality in Kenya. It is common knowledge that the general populace does not have faith in our security forces more so the police who are a long way from earning the trust of the ordinary citizen. I therefore understand the fear and the concern by PW1 AND 2.
17. PW 1 and PW 2 testified that they looked for the accused person and had him arrested. Indeed the accused person admits that PW 2, confronted him and he ran into the mosque from where he was arrested. His explanation was that he ran into the mosque to ask them to announce the death.
18. From this analysis, we see that there was no direct evidence against the accused person. What we have is circumstantial evidence and the dying declaration that both PW 1 and PW 2 testified about.
19. The test to be applied when considering circumstantial evidence is settled and there is now a long line of cases on that issue. In the case of S awe V Republic [2003] eKLR the Court of Appeal stated thus :-
“In order to justify a conviction on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”
20. In the case of Abanga alias Onyango V. Rep Cr. A No.32 Of 1990 (Ur) the court observed:-
“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”
21. Se ction 33 (a) of the Evid ence Act ( Cap 80) states that:-
Statement by deceased person, etc., when Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, ... are themselves admissible in the following cases—
(a) Relating to cause of death when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;…….”
22. The principles governing dying declarations were considered by the Court of Appeal in the case of Philip Nzaka Watu v Republic [ 2016] eKLR. The court held that:-
“Under section 33(a) of the Evidence Act, a dying declaration is admissible in evidence as an exception to the rule against admissibility of hearsay evidence. Under that provision, statements of admissible facts, oral or written, made by a person who is dead are admissible where the cause of his death is in question and those statements were made by him as to the cause of his death, or as to any of the circumstances of the transaction leading to his death. Such statements are admissible whether the person who made them was or was not expecting death when he made the statements. Clearly by reason of section 33 (a), there is no substance in the claim that a dying declaration constitutes inadmissible hearsay evidence.
23. Notwithstanding section 33(a) of the Evidence Act, courts have consistently held the view that evidence of a dying declaration must be admitted with caution because firstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned him confusion and surprise so as to render his perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution and to get the necessary assurance that a conviction founded on a death declaration is indeed safe. This Court expressed itself as follows in CHOGE V. REPUBLIC (supra) :
24. “The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at a point of death and the mind is induced by the most powerful considerations to tell the truth.
25. In Kenya, however the admissibility of dying declaration need not depend upon the declarant being, at the time of making it, in a hopeless expectation of eminent death. There need not be corroboration in order for a dying declaration to support a conviction but the exercise of caution is necessary in reception into evidence of such declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person.”
26. 31. The court reiterated those principles in the case of Charles Njonjo Gituro V Republic [2019] eKLR; and in the case of Moses Wanjala Ngaira V Republic [2019] eKLR where it held inter alia:-
The situation in Kenya is, however, different as exemplified in section 33 of the Evidence Act (supra). There is a catena of authorities from this Court on the nature and the manner of receiving and considering evidence of dying declaration. We take it from Choge v Republic [1985] KLR 1, citing the predecessor of this Court in Pius Jasanga s/o Akumu R (1954) 21 EACA 331:
27. “In Kenya the admissibility of a dying declaration does not depend, as it does in England, upon the declarant having at the time, a settled, hopeless expectation of imminent death, so that the awful solemnity of his situation may be considered as creating an obligation equivalent to that imposed by the taking of an oath.
28. In Kenya (as in India) the admissibility of statements by persons who have died as to the cause of death depends merely upon section 32 of the Indian Evidence Act. It has been said by this court that the weight to be attached to dying declarations in this country must, consequently, be less than that attached to them in England, and that the exercise of caution in the reception of such statements is even more necessary in this country than in England. (Republic v Muyovya bin Msuma (1939) 6 EACA 128. See also Republic v Premanda (1925) 52 Cal 987.)
29. The question of the caution to be exercised in the reception of dying declarations and the necessity for their corroboration has been considered by this court in numerous cases, and a passage from the 7th Edition of Field on Evidence has repeatedly been cited with approval:
“The caution with which this kind of testimony should be received has often been commented upon. The test of cross examination may be wholly wanting, and… the particulars of the violence may have occurred under circumstances of confusion and surprise calculated to prevent their u being accurately observed…The deceased may have stated inferences from facts concerning which he may have omitted important particulars, from not having his attention called to them. (Ramazani bin Mirandu (1934) 1 EACA 107; R v Okulu s/o Eloku (1938) 5 EACA 39; R v Muyovya bin Msuma (supra). The fact that the deceased told different persons that the appellant was the assailant is evidence of the consistency of his belief that such was the case: it is not guarantee for accuracy (ibid).
It is not a rule of law that, in order to support a conviction there must be corroboration of a dying declaration (R v Eligu s/o Odel and another (1943) 10 EACA 9; Re Guruswani [1940] Mad 158, and there may be circumstances which go to show that the deceased could not have been mistaken in his identification of the accused. See for instance the case of the second accused in R v Eligu s/o Odel and Epongu s/o Ewunyu (1943) 10 EACA 90). But it is, generally speaking, very unsafe to base a conviction solely on the dying declaration of a deceased person, made in the absence of the accused and not subject of cross-examination, unless there is satisfactory corroboration. (R v Said Abdulla (1945) 12 EACA 67; R v Mgundulwa s/o Jalo (1946) 13 EACA 169, 171).”
ANALYSIS
30. In the present case the accused person was well known to the two key witnesses (PW 1 and PW 2). They all lived together. There was no mention of any grudge on any reason why the two would give false evidence against the accused person.
31. The accused person admitted that indeed PW2 confronted him over the death and he took off running into the mosque. His explanation was that he was going to alert the mosque officials to announce the death. The question is why run away and why had he not reported earlier? I considered his defence and his where abouts that night and I also did not find his explanation of having attended some private madrassa classes up to the wee hours to be plausible .
32. The two key witnesses stood by their ground and were consistent even under the serious cross examination by the Defence advocate. I therefore find that they were credible witnesses and their evidence is to be believed. Pw1 heard the commotion and on going outside the deceased stated it was Baite who had stabbed him. Pw2 also heard this statement. The deceased died shortly thereafter.
33. Therefore, from the evidence, the accused person inflicted the wound that led to the death of the deceased.
Whether the accused person acted of malice aforethought.
34. Section 206 of the Penal Code provides circumstances from which malice aforethought may be inferred. They are:
“a. An intention to caused death of or to do grievous harm to any person, whether that person is the person actually killed or not;
b. Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be cause;
c. An intention to commit a felony;
d.…”
35. In determining whether the accused person had malice aforethought, the court must take the surrounding evidence into account. This was held by the Court of Appeal in the case of N M W v Republic [2018] eKLR where it stated:-
“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of CHESAKIT V. UGANDA, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.”
36. In the present case the genesis of the confrontation was not established. However, malice aforethought can be inferred from the circumstances. The accused person caused a deep penetrating wound that perforated the lungs of his victim. This was a vicious and deadly attack that shows an intention to either cause the murder or grievous harm. Therefore, malice afore thought was proved.
37. From the above, the 3 ingredients of murder contrary to section 203 as read with section 204 of the penal code were proved and I convict the accused person accordingly.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 17th day of July…2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
The accused person and his advocate
Mr. Ngiri for the state
Bebora court assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE