1. The Accused Edward Ijakaa Papa was charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code. Particulars are that on the 26th day of the January 2018 at Bamburi area in Kisauni Sub-County within Mombasa Country murdered Alex Oruko.
2. The Prosecution’s case was that PW3, Kenneth Mbito Mvurya, Children Officer and Manager of Likoni Rehabilitation School received 10 boys for mission at the school on 24.01.2018. The boys were received from Getathiaru Rehabilitation School and Reception Centre. Among the boys admitted were Alex Oruko the deceased Oliver Opati – PW2 among others whom PW2 gave their names as Collins Oruko the brother of the deceased, Mwasia Kalendi and Boniface Bitambani.
3. That one day after admission PW2 and the deceased escaped from the Rehabilitation School and PW3 made a report of escape to Likoni Police Station vide OB No. 61/26/1/18. That at 3.53pm, PW3 received phone call from a police officer, Beatrice Mwongeli of Bamburi Police Station who inquired whether he knew Oliver Opati and Alex Oruko. That when he confirmed he knew them and that they had escaped on 25.01.2018 he was told that Alex Oruko was admitted at Coast Provincial General Hospital after being beaten by a man who had been arrested. When PW3 visited the deceased in the hospital, he found his face was swollen and was bleeding from the nose.
4. That on 27.01.2018 the deceased was transferred to ward 3 but on the 28.01.2018 in the afternoon he was informed Alex Oruko had died. PW3 went to Bamburi Police Station on 29.01.2018 to record a statement and also collect Oliver Opati who had escaped together with the deceased. PW3 said the deceased Alex Oruko and Oliver Opati were children in need of care and protection when they were committed to the Rehabilitation School.
5. In cross examination of PW3, the police woman who called him said that Alex was beaten because he stole the Accused person’s money but Oliver did not tell him that Alex stole and Alex did not also talk.
6. PW2, Oliver Opati, testified that he was taken to Likoni Children’s Home together with 9 other children. On 24.1.2018, he said he and the deceased left the children’s home and found their way to the Elephant Tusks in Mombasa town after crossing the ferry. That when they wanted to trace their way back to the ferry it was 5.00pm and a watchman they asked for directions told them it was late at night and they should stay with him until the following morning. That they spent the night at a shade the watchman showed them.
7. That the following day at 6.00am the watchman told them they should accompany him to his house so he could get some money for them. That they boarded a matatu and alighted at the 1st stage in Bamburi. That when they alighted the watchman led them to a path that was bushy. That he was walking ahead of Alex and the watchman was behind Alex. That while walking ahead PW2 heard Alex shout. That when he looked behind he saw Alex had fallen and was lying on the ground. That he saw the watchman holding a blood stained club. That the watchman attempted to hit him but he ran away with watchman in hot pursuit. That he jumped over a wall and found a farmer whom he told what had happened.
8. That the farmer accompanied PW2 to the scene where they found Alex lying on the ground and he had 3 injuries on the head. That PW2 and the farmer started looking for the watchman and found him in the bush nearby. That as they followed him the watchman started running away. That they shouted for help and members of public surrounded the bush and managed to arrest the watchman. PW2 identified the Accused as the watchman who accommodated them overnight and then went with them to his home but on the way in a busy path attacked and injured the deceased.
9. That after Accused took them back to where Alex was lying, the police were called and they took Alex to hospital while the Accused was taken to the police station. PW2 said that as they slept in the shade the accused had shown them the Accused attempted to sodomise the deceased by removing the deceased’s shorts. That Alex threatened to report the Accused. PW2 said the shade was lit throughout the night and that is where the watchman sat as he guarded vehicles. PW2 said he did not steal money from the Accused. He said the Accused told them to accompany him to Bamburi to get his money.
10. PW4 P.C. David Mungai accompanied CPL Beatrice Mwongeli to the scene in Utange on instructions of Inspector Muthiani of Kisauni Administration Police Camp who told them that someone had been attacked and injured. The person who had called IP Muthiani led them to the scene and they found the Accused seated and had his hands tied. PW4 said that Accused was arrested for attacking and injuring the deceased who was lying nearby and was bleeding from the mouth. Members of public did not know the Accused or the victim as they did not hail from the area. The victim of attack was taken to hospital and the accused and PW2 were escorted to the police station.
11. PW1, Patrick Ongaya Oruko, the uncle to the deceased identified the body of the deceased for purposes of postmortem on 2nd February 2018. He said that the deceased was a delinquent and was taken to court as he could not obey her mother and go to school. That he was admitted to Likoni Rehabilitation School from where he escaped and was attacked and he met his death.
12. PW5, Sergent Beatrice Mwongeli, testified that on 26.1.2018 while she was serving at Bamburi Police Station, Inspector Muthiani of Administration Police Camp Kisauni called and informed her that members of the public were calling for help from Hodi Hodi slums. That in the company of P.C. Mungai and driver, they proceeded to the scene near a bush and found members of the public had arrested the Accused and there was an injured person lying in the bush bleeding from the face. They took the injured to hospital.
13. That Oliver Opati who was in company of injured informed PW5 that they had escaped from Likoni Approved School and lost their way at Ganjoni in Mombasa town. That they met the accused and spent the night at his place of work. That in the morning on 26/01/2018 the accused person promised to take them back to Likoni but they ended up in Bamburi where the accused was staying. That there was a disagreement among the 3 and the Accused ended up injuring the victim. PW5 escorted the injured to hospital where he was admitted but died while undergoing treatment on 28.01.2018.
14. PW5 said she had recorded statements of witnesses on 27.01.2018 and the Accused was charged with the offence of murder of the deceased. PW5 said that the Accused attacked the deceased when they questioned why he had taken them to Bamburi. She said the Accused alleged the deceased and PW2 had stolen from him. PW5 said when they arrived at the scene, members of public who apprehended the Accused left and she did not trace any of them to record a statement.
15. PW6, Dr. Zainab Bagha, produced a postmortem report in respect to the body of the deceased. Postmortem was done by Dr. Arafat on 7th February 2018 and he was of the opinion that death was caused by severe head injury secondary to blunt trauma – ExP1.
16. At close of prosecution’s case the Accused was placed on defence on 22nd July 2021 and he testified on 5th February 2024.
Defence Case
17. The Accused in his sworn statement said that on 26th January 2018 at 6.00 am, he woke up from where he was staying in Utange Village and took his merchandise which included bisquits, sweets, water and club soda, and started walking to work. That after 1 km, he got to a place where there was a panya route/shortcut and where he heard people talking in low tones and a few steps ahead he found 3 people standing and one was seated. Two of the people were adults and 2 were teenagers. He said that the 2 people who were standing were speaking in Kimijikenda and when he greeted them and passed, they said “ni huyo!” That one of the people went to where he was and snatched his goods. That he started raising alarm and members of the public came and he told them that he was being robbed. That people spoke in their language and after 30 minutes a land cruiser came. He said that 6 police officers including Cpl Beatrice went to the scene and he told them he was being robbed of his items on allegations he had beaten someone. He was orders together with other 8 people to board the land cruiser and they went to Bamburi Police Station whereas the victim went to the hospital.
18. That After 4 days, Cpl Beatrice called him from the cells and took him to the OCS and he was interrogated on whether he had been a guard and he denied. He was asked whether he knew Majengo Town and he said he normally passes there in a vehicle. That he was asked if he had been to the elephant tusks and he said he goes there during the day for picnic. He said that he was taken back to the cells and after a few days he was taken to Shanzu courts where he was charged with the offence of murder which he denied. He also said he was robbed of his goods and Kshs. 1650 but Cpl Beatrice was not able to establish who took his goods as members of the public were not willing to testify.
19. He said that the allegations against him re not true as he had never worked as a security guard and the Village Elder in Utange should have confirmed but the Investigating Officer did not visit the village elder to make inquiries. In cross-examination, he denied having recorded a statement on 28.1.2018 but the OCS interrogated him. He said that he did not accuse the deceased and PW2 of stealing his money and he did not accommodate them.
Analysis and Determination
20. In consideration of the evidence of 6 prosecution witnesses and in consideration of the defence witnesses’ sworn statements, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
21. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -
‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
22. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
Death of the deceased
23. There is no dispute as to the death of the deceased Alex Oruko.
Death was caused by an unlawful act or omission
24. When PW3 visited the deceased at the Coast General Hospital after being beaten by a man, he found that his face was swollen and he was bleeding from the nose. On 7.2.2018, Dr. Arafat conducted postmortem on the body of the deceased and he was of the opinion that the deceased died as a result of severe head injury secondary to blunt trauma. PW2 saw when the injuries were inflicted on the deceased and it is therefore apparent that the cause of death was through an unlawful act.
Participation of the accused in the commission of the alleged offence
25. According to PW2, him and the deceased escaped form Likoni Rehabilitation School on 25.1.2018 to go to the elephant tusks in Mombasa town after crossing the ferry. That when they wanted to trace their way back to the ferry, they asked for directions from a watchman whom they identified as the Accused. That it was at 5.00 pm and the watchman told them that it was late and that they should stay with him until the following morning. They spent the night in a shade that the watchman showed them and the following day at 6.00 am, the watchman told them that they should accompany him to his house so he could get for them some money. That they boarded a matatu and alighted at the first stage in Bamburi and the watchman led them to a path that was bushy.
26. That as they were walking, he was ahead followed by Alex and the watchman when suddenly he looked behind and saw that Alex had fallen and was lying on the ground while the watchman was holding a bloodstained club. That the watchman attempted to hit him but he ran away and jumped over a perimeter wall as the watchman was in hot pursuit. Inside the perimeter wall, he found a farmer whom he informed what had happened and the farmer accompanied him to where the deceased was lying on the ground and they found the deceased with three head injuries. That the watchman was hiding in a bush and when they started following him he started running away and they raised alarm and members of the public surrounded the bush and managed to arrest the watchman.
27. PW2 met the Accused at 5.00 pm in broad daylight and they spent the night with him at his place of work, and the following morning at daybreak, they accompanied him to his residence and it was on the way that he attacked the deceased and it appears that if PW2 did not run away, he would have also been fatally injured. PW2 had just come to Mombasa and the Accused Person’s allegation that he was speaking in Kimijikenda was unsubstantiated because PW2 said that his home is in Kakamega.
28. Claims by the Accused person in his defence that he was robbed of his merchandise and money was not substantiated and PW2 was not asked in cross examination whether he stole anything from the Accused. The Accused person has also not explained how the deceased sustained injuries as he claims he was the one who was robbed and beaten. The accused person is therefore found to have committed the unlawful act that caused the death of the deceased.
Malice aforethought
29. Section 206 of the Penal Code defines malice aforethought as follows: -
“Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: -
(a) an intention to cause the 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 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 caused;
(c) an intent to commit a felony;
(d) an intention by act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
30. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -
“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”
31. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held:
“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”
32. The Accused Person lured the naïve and delinquent teenagers to a bushy path within Bamburi and purposely made them to walk ahead of him so that he could ambush them and inflict injuries on them. Fortunately, PW2 reacted in good time to escape from the Accused Person’s ambush and raised alarm that attracted members of the public to the scene and he was arrested. The three injuries on the head of the deceased is express evidence that the Accused intended to kill the deceased. There was therefore proof of express malice on the part of the Accused Person.
33. In conclusion, this court find that the prosecution has proved its case beyond reasonable doubt. The accused person is found guilty of the offence of murder and convicted accordingly.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 7th day of June 2024
Mr. Ngiri: I’m yet to confirm accused person’s previous records.
Mr. Magolo Advocate: I request for time to mitigate for the Accused.
Order: Mention on 20.6.2024 for Victim Impact Statement, Records, Mitigation, Pre-Sentence Report and Sentence.
2. The Prosecution’s case was that PW3, Kenneth Mbito Mvurya, Children Officer and Manager of Likoni Rehabilitation School received 10 boys for mission at the school on 24.01.2018. The boys were received from Getathiaru Rehabilitation School and Reception Centre. Among the boys admitted were Alex Oruko the deceased Oliver Opati – PW2 among others whom PW2 gave their names as Collins Oruko the brother of the deceased, Mwasia Kalendi and Boniface Bitambani.
3. That one day after admission PW2 and the deceased escaped from the Rehabilitation School and PW3 made a report of escape to Likoni Police Station vide OB No. 61/26/1/18. That at 3.53pm, PW3 received phone call from a police officer, Beatrice Mwongeli of Bamburi Police Station who inquired whether he knew Oliver Opati and Alex Oruko. That when he confirmed he knew them and that they had escaped on 25.01.2018 he was told that Alex Oruko was admitted at Coast Provincial General Hospital after being beaten by a man who had been arrested. When PW3 visited the deceased in the hospital, he found his face was swollen and was bleeding from the nose.
4. That on 27.01.2018 the deceased was transferred to ward 3 but on the 28.01.2018 in the afternoon he was informed Alex Oruko had died. PW3 went to Bamburi Police Station on 29.01.2018 to record a statement and also collect Oliver Opati who had escaped together with the deceased. PW3 said the deceased Alex Oruko and Oliver Opati were children in need of care and protection when they were committed to the Rehabilitation School.
5. In cross examination of PW3, the police woman who called him said that Alex was beaten because he stole the Accused person’s money but Oliver did not tell him that Alex stole and Alex did not also talk.
6. PW2, Oliver Opati, testified that he was taken to Likoni Children’s Home together with 9 other children. On 24.1.2018, he said he and the deceased left the children’s home and found their way to the Elephant Tusks in Mombasa town after crossing the ferry. That when they wanted to trace their way back to the ferry it was 5.00pm and a watchman they asked for directions told them it was late at night and they should stay with him until the following morning. That they spent the night at a shade the watchman showed them.
7. That the following day at 6.00am the watchman told them they should accompany him to his house so he could get some money for them. That they boarded a matatu and alighted at the 1st stage in Bamburi. That when they alighted the watchman led them to a path that was bushy. That he was walking ahead of Alex and the watchman was behind Alex. That while walking ahead PW2 heard Alex shout. That when he looked behind he saw Alex had fallen and was lying on the ground. That he saw the watchman holding a blood stained club. That the watchman attempted to hit him but he ran away with watchman in hot pursuit. That he jumped over a wall and found a farmer whom he told what had happened.
8. That the farmer accompanied PW2 to the scene where they found Alex lying on the ground and he had 3 injuries on the head. That PW2 and the farmer started looking for the watchman and found him in the bush nearby. That as they followed him the watchman started running away. That they shouted for help and members of public surrounded the bush and managed to arrest the watchman. PW2 identified the Accused as the watchman who accommodated them overnight and then went with them to his home but on the way in a busy path attacked and injured the deceased.
9. That after Accused took them back to where Alex was lying, the police were called and they took Alex to hospital while the Accused was taken to the police station. PW2 said that as they slept in the shade the accused had shown them the Accused attempted to sodomise the deceased by removing the deceased’s shorts. That Alex threatened to report the Accused. PW2 said the shade was lit throughout the night and that is where the watchman sat as he guarded vehicles. PW2 said he did not steal money from the Accused. He said the Accused told them to accompany him to Bamburi to get his money.
10. PW4 P.C. David Mungai accompanied CPL Beatrice Mwongeli to the scene in Utange on instructions of Inspector Muthiani of Kisauni Administration Police Camp who told them that someone had been attacked and injured. The person who had called IP Muthiani led them to the scene and they found the Accused seated and had his hands tied. PW4 said that Accused was arrested for attacking and injuring the deceased who was lying nearby and was bleeding from the mouth. Members of public did not know the Accused or the victim as they did not hail from the area. The victim of attack was taken to hospital and the accused and PW2 were escorted to the police station.
11. PW1, Patrick Ongaya Oruko, the uncle to the deceased identified the body of the deceased for purposes of postmortem on 2nd February 2018. He said that the deceased was a delinquent and was taken to court as he could not obey her mother and go to school. That he was admitted to Likoni Rehabilitation School from where he escaped and was attacked and he met his death.
12. PW5, Sergent Beatrice Mwongeli, testified that on 26.1.2018 while she was serving at Bamburi Police Station, Inspector Muthiani of Administration Police Camp Kisauni called and informed her that members of the public were calling for help from Hodi Hodi slums. That in the company of P.C. Mungai and driver, they proceeded to the scene near a bush and found members of the public had arrested the Accused and there was an injured person lying in the bush bleeding from the face. They took the injured to hospital.
13. That Oliver Opati who was in company of injured informed PW5 that they had escaped from Likoni Approved School and lost their way at Ganjoni in Mombasa town. That they met the accused and spent the night at his place of work. That in the morning on 26/01/2018 the accused person promised to take them back to Likoni but they ended up in Bamburi where the accused was staying. That there was a disagreement among the 3 and the Accused ended up injuring the victim. PW5 escorted the injured to hospital where he was admitted but died while undergoing treatment on 28.01.2018.
14. PW5 said she had recorded statements of witnesses on 27.01.2018 and the Accused was charged with the offence of murder of the deceased. PW5 said that the Accused attacked the deceased when they questioned why he had taken them to Bamburi. She said the Accused alleged the deceased and PW2 had stolen from him. PW5 said when they arrived at the scene, members of public who apprehended the Accused left and she did not trace any of them to record a statement.
15. PW6, Dr. Zainab Bagha, produced a postmortem report in respect to the body of the deceased. Postmortem was done by Dr. Arafat on 7th February 2018 and he was of the opinion that death was caused by severe head injury secondary to blunt trauma – ExP1.
16. At close of prosecution’s case the Accused was placed on defence on 22nd July 2021 and he testified on 5th February 2024.
Defence Case
17. The Accused in his sworn statement said that on 26th January 2018 at 6.00 am, he woke up from where he was staying in Utange Village and took his merchandise which included bisquits, sweets, water and club soda, and started walking to work. That after 1 km, he got to a place where there was a panya route/shortcut and where he heard people talking in low tones and a few steps ahead he found 3 people standing and one was seated. Two of the people were adults and 2 were teenagers. He said that the 2 people who were standing were speaking in Kimijikenda and when he greeted them and passed, they said “ni huyo!” That one of the people went to where he was and snatched his goods. That he started raising alarm and members of the public came and he told them that he was being robbed. That people spoke in their language and after 30 minutes a land cruiser came. He said that 6 police officers including Cpl Beatrice went to the scene and he told them he was being robbed of his items on allegations he had beaten someone. He was orders together with other 8 people to board the land cruiser and they went to Bamburi Police Station whereas the victim went to the hospital.
18. That After 4 days, Cpl Beatrice called him from the cells and took him to the OCS and he was interrogated on whether he had been a guard and he denied. He was asked whether he knew Majengo Town and he said he normally passes there in a vehicle. That he was asked if he had been to the elephant tusks and he said he goes there during the day for picnic. He said that he was taken back to the cells and after a few days he was taken to Shanzu courts where he was charged with the offence of murder which he denied. He also said he was robbed of his goods and Kshs. 1650 but Cpl Beatrice was not able to establish who took his goods as members of the public were not willing to testify.
19. He said that the allegations against him re not true as he had never worked as a security guard and the Village Elder in Utange should have confirmed but the Investigating Officer did not visit the village elder to make inquiries. In cross-examination, he denied having recorded a statement on 28.1.2018 but the OCS interrogated him. He said that he did not accuse the deceased and PW2 of stealing his money and he did not accommodate them.
Analysis and Determination
20. In consideration of the evidence of 6 prosecution witnesses and in consideration of the defence witnesses’ sworn statements, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
21. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the accused person was charged provides as follows: -
‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
22. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
Death of the deceased
23. There is no dispute as to the death of the deceased Alex Oruko.
Death was caused by an unlawful act or omission
24. When PW3 visited the deceased at the Coast General Hospital after being beaten by a man, he found that his face was swollen and he was bleeding from the nose. On 7.2.2018, Dr. Arafat conducted postmortem on the body of the deceased and he was of the opinion that the deceased died as a result of severe head injury secondary to blunt trauma. PW2 saw when the injuries were inflicted on the deceased and it is therefore apparent that the cause of death was through an unlawful act.
Participation of the accused in the commission of the alleged offence
25. According to PW2, him and the deceased escaped form Likoni Rehabilitation School on 25.1.2018 to go to the elephant tusks in Mombasa town after crossing the ferry. That when they wanted to trace their way back to the ferry, they asked for directions from a watchman whom they identified as the Accused. That it was at 5.00 pm and the watchman told them that it was late and that they should stay with him until the following morning. They spent the night in a shade that the watchman showed them and the following day at 6.00 am, the watchman told them that they should accompany him to his house so he could get for them some money. That they boarded a matatu and alighted at the first stage in Bamburi and the watchman led them to a path that was bushy.
26. That as they were walking, he was ahead followed by Alex and the watchman when suddenly he looked behind and saw that Alex had fallen and was lying on the ground while the watchman was holding a bloodstained club. That the watchman attempted to hit him but he ran away and jumped over a perimeter wall as the watchman was in hot pursuit. Inside the perimeter wall, he found a farmer whom he informed what had happened and the farmer accompanied him to where the deceased was lying on the ground and they found the deceased with three head injuries. That the watchman was hiding in a bush and when they started following him he started running away and they raised alarm and members of the public surrounded the bush and managed to arrest the watchman.
27. PW2 met the Accused at 5.00 pm in broad daylight and they spent the night with him at his place of work, and the following morning at daybreak, they accompanied him to his residence and it was on the way that he attacked the deceased and it appears that if PW2 did not run away, he would have also been fatally injured. PW2 had just come to Mombasa and the Accused Person’s allegation that he was speaking in Kimijikenda was unsubstantiated because PW2 said that his home is in Kakamega.
28. Claims by the Accused person in his defence that he was robbed of his merchandise and money was not substantiated and PW2 was not asked in cross examination whether he stole anything from the Accused. The Accused person has also not explained how the deceased sustained injuries as he claims he was the one who was robbed and beaten. The accused person is therefore found to have committed the unlawful act that caused the death of the deceased.
Malice aforethought
29. Section 206 of the Penal Code defines malice aforethought as follows: -
“Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: -
(a) an intention to cause the 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 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 caused;
(c) an intent to commit a felony;
(d) an intention by act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
30. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -
“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”
31. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held:
“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”
32. The Accused Person lured the naïve and delinquent teenagers to a bushy path within Bamburi and purposely made them to walk ahead of him so that he could ambush them and inflict injuries on them. Fortunately, PW2 reacted in good time to escape from the Accused Person’s ambush and raised alarm that attracted members of the public to the scene and he was arrested. The three injuries on the head of the deceased is express evidence that the Accused intended to kill the deceased. There was therefore proof of express malice on the part of the Accused Person.
33. In conclusion, this court find that the prosecution has proved its case beyond reasonable doubt. The accused person is found guilty of the offence of murder and convicted accordingly.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 7th day of June 2024
Mr. Ngiri: I’m yet to confirm accused person’s previous records.
Mr. Magolo Advocate: I request for time to mitigate for the Accused.
Order: Mention on 20.6.2024 for Victim Impact Statement, Records, Mitigation, Pre-Sentence Report and Sentence.