Background
1. The accused, Eric Lokalei, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 4th April 2024 at Githurai area, Mtwapa, within Kilifi County, he murdered George Njoroge Kamau. The prosecution alleges that the deceased met his death following a brawl with the accused outside a drinking establishment where the deceased had been drinking prior to the altercation.
Prosecution Case
2. PW1 – Jackson Macharia , a brother-in-law to the deceased, testified that he was informed of the death on 8th April 2024 and travelled to Mombasa where he identified the body.
3. PW2 – Dr. Aisha Ali , testified on behalf of Dr. Samir Said, who conducted the post-mortem examination. She described the body as well preserved with blood stains on the face, upper torso, and upper limbs. There was a sharp penetrating wound on the anterior neck measuring approximately 2 cm with an adjacent bruise. Internally, there was a rib fracture, puncture of the upper left lung, and severance of the jugular vein and carotid arteries. The cause of death was hemorrhagic shock due to a high-force penetrating injury to the neck. The injuries were consistent with a violent physical struggle.
4. PW3 – Sgt Emmanuel Kondo , processed and produced photographic evidence showing the deceased at the scene and the accused holding a bag and displaying its contents.
5. PW4 – Midadi Omar , a Government Analyst, testified that the scissors, clothing, and backpack recovered bore human blood matching the DNA profile of the deceased. The clothing revealed two DNA profiles, though the second contributor was unidentified. He confirmed that the presence of the deceased’s blood on these items suggested a physical altercation occurred while these items were in the possession of the accused.
6. PW5 – CPL Juda Musyoka , the investigating officer, testified that he visited the scene and found the deceased lying with a neck injury. He received information from witnesses that the accused and the deceased had been drinking together before a fight broke out, was briefly separated, and later resumed. He further testified that the accused presented himself at the police station the following day, where he was arrested, and a search of his bag yielded a pair of scissors, a kanzu, and other items. Although PW5 referred to eyewitnesses, including Sammy Mwangangi , none were called to testify. The record shows that PW5 was at times reluctant to attend court, necessitating repeated issuance of summons.
Defence Case
7. The accused testified that on the material day he was engaged in his usual work and later assisted a friend to move house. The friend gave him a bag containing clothing, including a kanzu, and a pair of scissors. While proceeding to the mosque during Ramadhan, he tore his kanzu and stopped near a pub to inspect it. There, he encountered the deceased and another person. He testified that the deceased attempted to offer him alcohol, which he declined. He alleged that the deceased later returned armed with a wooden plank and attempted to strike him. He stated that he blocked the attack using his right hand, which was holding the scissors. He admitted that a physical confrontation occurred and that he was holding the scissors at the time but denied using them offensively. He maintained that he left the deceased alive and only learnt of his death the following day before reporting to the police.
The Law
Murder – Elements
8. The offence of murder is defined under Section 203 of the Penal Code. The prosecution must prove beyond reasonable doubt the death of the deceased and its cause, that the accused caused the death by an unlawful act or omission, and that the accused acted with malice aforethought. This is established in Anthony Ndegwa Ngari v Republic [2014] eKLR and reaffirmed in Republic v Andrew Mueche Omwenga [2009 ] eKLR .
Witness Attendance – Bukenya Principle
9. In Bukenya & Others v Uganda [1972] EA 549 , the court held that where the prosecution fails to call crucial witnesses without explanation , an adverse inference may be drawn that their evidence would have been unfavorable. Conversely, the prosecution is not obliged to call every possible witness. As held in Keter v Republic [2007] 1 EA 135 , the prosecution must call only such witnesses as are necessary to establish its case.
Circumstantial Evidence
10. Circumstantial evidence must form a complete chain excluding any other reasonable hypothesis. This principle is well settled in Sawe v Republic [2003] KLR 364 , Abanga alias Onyango v Republic Cr. App No. 32 of 1990 , and Musili Tulo v Republic [2014] eKLR .
Malice Aforethought
11. Malice aforethought is inferred from circumstances including the nature of the weapon, manner of use, and conduct of the accused, as in Nzuki v Republic [1993] KLR 171 .
Analysis
Proof of Death and Cause of Death
12. The death of the deceased is not in dispute. PW1 – Jackson Macharia positively identified the body, and PW2 – Dr. Aisha Ali produced the post-mortem report. The medical evidence established that death resulted from hemorrhagic shock caused by a penetrating wound to the neck severing major blood vessels. The injuries are consistent with a violent struggle. This ingredient is therefore proved beyond reasonable doubt.
Whether the Accused Caused the Death
13. No eyewitness was called to testify, despite the investigating officer confirming their existence. Applying Bukenya , the court may draw an adverse inference that their testimony would have been unfavorable. The defence contends that the deceased attacked first and the accused acted in self-defence. The alleged fight is not proved . The cause or motive of any confrontation remains unproven.
14. The prosecution relied on circumstantial evidence. The accused admitted being in possession of the scissors at the material time. The scissors, clothing, and bag recovered bore the blood of the deceased (PW4 – Midadi Omar). The presence of the deceased’s blood on these items is significant and directly links the accused to the fatal injury. The investigator’s reluctance or procedural mischief does not diminish the weight of the forensic evidence. The fatal injury being a deep penetrating wound to the neck severing major blood vessels, is consistent with the use of the scissors found in the accused’s possession. He did not offer any explanation as to how the blood of the deceased got to these scissors snd his clothes.The accused’s explanation of merely blocking an attack does not account for the severity of the injury or the presence of the deceased’s blood on the scissors. The court is mindful not to transfer the burden of proof but under section 111 of the Evidence Act these were facts uniquely known to the aCcused person and hence the onus shifted to him. Peter Mugambi v Republic [2017} KECA 257 (KLR) . The circumstantial evidence forms a complete chain pointing to the accused as the person who inflicted the fatal injury. This element is therefore proved beyond reasonable doubt.
Self-Defence
15. The accused raised self-defence, claiming he blocked an attack with scissors. Self-defence requires immediacy of threat, proportionality of response, and reasonableness of action. The court finds that even if an initial attack occurred, the severity of the injury inflicted ,a deep neck wound severing major vessels, exceeds what could reasonably be regarded as defensive action. The act cannot be entirely justified as self-defence.
Malice Aforethought
16. Malice aforethought is absent where the act occurs spontaneously, without premeditation, like when a sudden attack happens. ( George Waweru v Republic [2019] , Peter KIAMBI Nzuki KEHC 4493 (KLR) ). Here, no prior was grudge was proved. The circumstances of the incident, including the alleged confrontation, remain unproven, and the weapon, while deadly, appears to have been used in the course of a sudden and unplanned act .If there was a motive not was not proved and there was no evidence upon which we can infer. Malice aforethought has therefore not been proved beyond reasonable doubt.
Conclusion
17. The prosecution has proved beyond reasonable doubt that the accused unlawfully caused the death of the deceased. Malice aforethought has not been established. The accused is therefore convicted of the lesser offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.
DATED, SIGNED AND DELIVERED at Mombasa this 19th day of March 2026
HON. LADY JUSTICE W. K. MICHENI JUDGE
In the presence of:
Mr. Samba for the Accused
Ms. Cherop for the State
Bebora – Court Assistant
1. The accused, Eric Lokalei, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 4th April 2024 at Githurai area, Mtwapa, within Kilifi County, he murdered George Njoroge Kamau. The prosecution alleges that the deceased met his death following a brawl with the accused outside a drinking establishment where the deceased had been drinking prior to the altercation.
Prosecution Case
2. PW1 – Jackson Macharia , a brother-in-law to the deceased, testified that he was informed of the death on 8th April 2024 and travelled to Mombasa where he identified the body.
3. PW2 – Dr. Aisha Ali , testified on behalf of Dr. Samir Said, who conducted the post-mortem examination. She described the body as well preserved with blood stains on the face, upper torso, and upper limbs. There was a sharp penetrating wound on the anterior neck measuring approximately 2 cm with an adjacent bruise. Internally, there was a rib fracture, puncture of the upper left lung, and severance of the jugular vein and carotid arteries. The cause of death was hemorrhagic shock due to a high-force penetrating injury to the neck. The injuries were consistent with a violent physical struggle.
4. PW3 – Sgt Emmanuel Kondo , processed and produced photographic evidence showing the deceased at the scene and the accused holding a bag and displaying its contents.
5. PW4 – Midadi Omar , a Government Analyst, testified that the scissors, clothing, and backpack recovered bore human blood matching the DNA profile of the deceased. The clothing revealed two DNA profiles, though the second contributor was unidentified. He confirmed that the presence of the deceased’s blood on these items suggested a physical altercation occurred while these items were in the possession of the accused.
6. PW5 – CPL Juda Musyoka , the investigating officer, testified that he visited the scene and found the deceased lying with a neck injury. He received information from witnesses that the accused and the deceased had been drinking together before a fight broke out, was briefly separated, and later resumed. He further testified that the accused presented himself at the police station the following day, where he was arrested, and a search of his bag yielded a pair of scissors, a kanzu, and other items. Although PW5 referred to eyewitnesses, including Sammy Mwangangi , none were called to testify. The record shows that PW5 was at times reluctant to attend court, necessitating repeated issuance of summons.
Defence Case
7. The accused testified that on the material day he was engaged in his usual work and later assisted a friend to move house. The friend gave him a bag containing clothing, including a kanzu, and a pair of scissors. While proceeding to the mosque during Ramadhan, he tore his kanzu and stopped near a pub to inspect it. There, he encountered the deceased and another person. He testified that the deceased attempted to offer him alcohol, which he declined. He alleged that the deceased later returned armed with a wooden plank and attempted to strike him. He stated that he blocked the attack using his right hand, which was holding the scissors. He admitted that a physical confrontation occurred and that he was holding the scissors at the time but denied using them offensively. He maintained that he left the deceased alive and only learnt of his death the following day before reporting to the police.
The Law
Murder – Elements
8. The offence of murder is defined under Section 203 of the Penal Code. The prosecution must prove beyond reasonable doubt the death of the deceased and its cause, that the accused caused the death by an unlawful act or omission, and that the accused acted with malice aforethought. This is established in Anthony Ndegwa Ngari v Republic [2014] eKLR and reaffirmed in Republic v Andrew Mueche Omwenga [2009 ] eKLR .
Witness Attendance – Bukenya Principle
9. In Bukenya & Others v Uganda [1972] EA 549 , the court held that where the prosecution fails to call crucial witnesses without explanation , an adverse inference may be drawn that their evidence would have been unfavorable. Conversely, the prosecution is not obliged to call every possible witness. As held in Keter v Republic [2007] 1 EA 135 , the prosecution must call only such witnesses as are necessary to establish its case.
Circumstantial Evidence
10. Circumstantial evidence must form a complete chain excluding any other reasonable hypothesis. This principle is well settled in Sawe v Republic [2003] KLR 364 , Abanga alias Onyango v Republic Cr. App No. 32 of 1990 , and Musili Tulo v Republic [2014] eKLR .
Malice Aforethought
11. Malice aforethought is inferred from circumstances including the nature of the weapon, manner of use, and conduct of the accused, as in Nzuki v Republic [1993] KLR 171 .
Analysis
Proof of Death and Cause of Death
12. The death of the deceased is not in dispute. PW1 – Jackson Macharia positively identified the body, and PW2 – Dr. Aisha Ali produced the post-mortem report. The medical evidence established that death resulted from hemorrhagic shock caused by a penetrating wound to the neck severing major blood vessels. The injuries are consistent with a violent struggle. This ingredient is therefore proved beyond reasonable doubt.
Whether the Accused Caused the Death
13. No eyewitness was called to testify, despite the investigating officer confirming their existence. Applying Bukenya , the court may draw an adverse inference that their testimony would have been unfavorable. The defence contends that the deceased attacked first and the accused acted in self-defence. The alleged fight is not proved . The cause or motive of any confrontation remains unproven.
14. The prosecution relied on circumstantial evidence. The accused admitted being in possession of the scissors at the material time. The scissors, clothing, and bag recovered bore the blood of the deceased (PW4 – Midadi Omar). The presence of the deceased’s blood on these items is significant and directly links the accused to the fatal injury. The investigator’s reluctance or procedural mischief does not diminish the weight of the forensic evidence. The fatal injury being a deep penetrating wound to the neck severing major blood vessels, is consistent with the use of the scissors found in the accused’s possession. He did not offer any explanation as to how the blood of the deceased got to these scissors snd his clothes.The accused’s explanation of merely blocking an attack does not account for the severity of the injury or the presence of the deceased’s blood on the scissors. The court is mindful not to transfer the burden of proof but under section 111 of the Evidence Act these were facts uniquely known to the aCcused person and hence the onus shifted to him. Peter Mugambi v Republic [2017} KECA 257 (KLR) . The circumstantial evidence forms a complete chain pointing to the accused as the person who inflicted the fatal injury. This element is therefore proved beyond reasonable doubt.
Self-Defence
15. The accused raised self-defence, claiming he blocked an attack with scissors. Self-defence requires immediacy of threat, proportionality of response, and reasonableness of action. The court finds that even if an initial attack occurred, the severity of the injury inflicted ,a deep neck wound severing major vessels, exceeds what could reasonably be regarded as defensive action. The act cannot be entirely justified as self-defence.
Malice Aforethought
16. Malice aforethought is absent where the act occurs spontaneously, without premeditation, like when a sudden attack happens. ( George Waweru v Republic [2019] , Peter KIAMBI Nzuki KEHC 4493 (KLR) ). Here, no prior was grudge was proved. The circumstances of the incident, including the alleged confrontation, remain unproven, and the weapon, while deadly, appears to have been used in the course of a sudden and unplanned act .If there was a motive not was not proved and there was no evidence upon which we can infer. Malice aforethought has therefore not been proved beyond reasonable doubt.
Conclusion
17. The prosecution has proved beyond reasonable doubt that the accused unlawfully caused the death of the deceased. Malice aforethought has not been established. The accused is therefore convicted of the lesser offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.
DATED, SIGNED AND DELIVERED at Mombasa this 19th day of March 2026
HON. LADY JUSTICE W. K. MICHENI JUDGE
In the presence of:
Mr. Samba for the Accused
Ms. Cherop for the State
Bebora – Court Assistant