Coram: Before Justice R. Nyakundi
M/s Leina for the State
Mr. Wekesa, Advocate, for the Accused persons
JUDGMENT
A. Introduction
1. The two accused persons, Jackson Shikanga Luvaka (the 1st accused)
and Samuel Mulama Shikanga (the 2nd accused), stand charged with the
offence of murder contrary to section 203 as read with section 204 of the
Penal Code. The particulars are that on the 8th day of January 2026, at
Kipchekwen Village, Banja Location, in Hamisi Sub-County within Vihiga
County, jointly murdered Derrick Andambi Luvaka. Both accused
pleaded not guilty, and the matter proceeded to full trial.
2. At the close of the prosecution case, this Court, by its ruling delivered on
11th May 2026, found that a prima facie case had been established and
placed both accused on their defence pursuant to section 306(2) of the
Criminal Procedure Code. The accused have since tendered their defence,
and this is the judgment of the Court following the full trial.
B. The Prosecution Case
3. The prosecution called six witnesses. Their evidence, in summary, was
as follows.
4. PW1, Edith Khavere, the mother of the deceased, testified that on 8th
January 2026 she was informed that her son had been attacked. She
found him lying beside the road near the Banja MCA’s home, and he
identified his assailants as Jackson (the 1st accused), Jackson’s wife
Pamela, and their son Sammy (the 2nd accused), who had cut him using
a jembe and a slasher. The deceased was taken to Vihiga County
Teaching and Referral Hospital and admitted with cuts on both hands at
the wrists, the head and the right eye. He died at the hospital on 10th
January 2026. A post-mortem conducted on 24th January 2026
established the cause of death as excessive bleeding following assault
with a sharp object.
5. PW2, Jackline Shivuluka, a sister of the deceased, testified that she was
informed that her brother was being beaten. He was admitted to hospital
with both hands cut, and she urged him to accept the amputation of his
hands recommended by the doctors. He died on 10th January 2026. She
testified that, before his death, the deceased had stated that he had been
beaten by the 1st accused, the 2nd accused and Pamela.
6. PW3, Hesbon Imoli, a brother of the deceased, testified that he attended
and witnessed the post-mortem examination conducted on 24th January
2026 and agreed with the pathologist’s opinion as to the cause of death.
7. PW4, No. 124296 PC (W) Margaret Wachira, testified that on 8th January
2026 she and other officers proceeded to the scene, where they found the
deceased with serious injuries — deep cuts on both wrists, the right leg
and two toes. She testified that the deceased told her that he had been
cut with a jembe by his brother Jackson and his son Samwel after he had
questioned the 2nd accused regarding the theft of his maize. The scene
was photographed and the deceased escorted to hospital, where he later
died.
8. PW5, Dr. Clinton Kigweyi, the pathologist, conducted the post-mortem
examination. He formed the opinion that the cause of death was
haemorrhagic shock following excessive bleeding after assault with a
sharp object, and produced the post-mortem report as PExh1.
9. PW6, No. 101057 PC (W) Christabel Omumalia of DCI Hamisi, the
investigating officer, testified that the matter was reported at Serem
Police Station, that the deceased had identified his attackers as the two
accused and Pamela, and that the accused were arrested on 27th
January 2026. She visited and photographed the scene, noting dried
blood, but was unable to recover the weapons used.
10. The course and outcome of the investigation were set out in the covering
report of the investigating officer, PW6. Read together with the evidence
on the record, that report discloses several matters material to the
defences later raised. First, the deceased is recorded as having arrived at
the 1st accused’s home on the morning of 8th January 2026 carrying a
slasher and a sack, before the dispute over maize arose and escalated.
Secondly, among the investigating officer’s own findings is that the 1st
accused sustained an injury to his right hand during the incident, and
that the weapons used in the assault were never recovered. Thirdly,
following their arrest the accused were taken for mental assessment at
Mbale Hospital and found fit to stand trial. These matters, emanating
from the prosecution’s own investigation, fall to be weighed with the rest
of the evidence and bear directly upon the defences considered below.
C. The Defence Case
11. Placed on their defence, both accused persons elected to give sworn
evidence and denied the charge; the 1st accused additionally called
independent witnesses in support of his case. The thrust of the defence
was twofold: a denial that either accused participated in the killing of the
deceased, and an assertion that it was the deceased who was the
aggressor in the confrontation. In the alternative, learned Counsel Mr.
Wekesa canvassed the defences of self-defence and provocation.
12. The 1st accused (DW1), in his sworn evidence, categorically denied the
charge and maintained that he did not participate in the unlawful killing
of the deceased. He testified that on the material day he woke and
proceeded to his farm, where he carried out his usual farming activities.
Later in the day his wife informed him that the deceased come to their
homestead and was armed. Concerned by the report, he made his way to
the homestead, where he found the deceased was armed with a panga
and was behaving aggressively. He stated that the deceased attempted to
harm him and that, in the ensuing commotion, the deceased sustained
injuries before being taken to Hamisi Hospital and later referred to Mbale
Hospital. Under cross-examination he clarified that, on his return from
the farm, it was the deceased who attacked him; that he himself
sustained injuries and suffered a temporary concussion for which he was
taken to hospital; and that he neither inflicted any injury upon the
deceased nor was in any way involved in his death.
13. The 2nd accused (DW2), also on oath, identified himself as the son of the
1st accused and a nephew of the deceased. He testified on 8th January
2026 that he had left home and was later told by his mother that the
deceased had come to their home demanding maize, which was
unavailable, his mother informed him that the deceased was armed with
a panga. Shortly thereafter his father arrived home and questioned the
deceased as to why he was carrying the weapon, whereupon the deceased
turned on his father and attacked him, inflicting injuries. The 2nd
accused testified that he and his mother raised an alarm in an effort to
protect the 1st accused. While he acknowledged that a confrontation
occurred between the deceased and the 1st accused, he firmly denied
taking any part in it, and denied assaulting the deceased or contributing
to his death.
14. On this evidence the defence submitted that the prosecution had failed
to displace the presumption of innocence; that the deceased was the
aggressor in the confrontation; and that the offence of murder had not
been proved beyond reasonable doubt. The defence accordingly urged the
Court to acquit both accused or, in the alternative, to return a verdict of
manslaughter.
D. Issues for Determination
15. From the evidence and the rival positions, the issues that fall for
determination are:
(a) whether the prosecution has proved, beyond reasonable doubt, each
of the ingredients of the offence of murder against each accused; and
(b) whether the defences of self-defence and of provocation, or either of
them, avail the accused so as to result in an acquittal or in a
conviction for the lesser offence of manslaughter.
E. Burden and Standard of Proof
16. It is a cardinal principle of our criminal law that the legal burden of
proving the guilt of an accused person rests on the prosecution
throughout and, subject to certain statutory exceptions, never shifts.
That burden flows from the presumption of innocence guaranteed by
Article 50(2)(a) of the Constitution, which entitles every accused person
to be presumed innocent until the contrary is proved. The classic
statement remains that of Viscount Sankey L.C. in Woolmington v
Director of Public Prosecutions [1935] AC 462, that the duty of the
prosecution to prove the prisoner’s guilt is the “golden thread” running
throughout the web of the criminal law.
17. The standard to which the prosecution must prove its case is proof
beyond reasonable doubt. As Denning J. explained in Miller v Minister of
Pensions [1947] 2 All ER 372, that standard does not import certainty
beyond the shadow of a doubt, but proof so strong as to leave only a
remote possibility in the accused’s favour which can be dismissed with
the sentence “of course it is possible but not in the least probable.” Where
a reasonable doubt remains, the accused is entitled to its benefit and to
an acquittal.
18. The defences raised do not displace that burden. Where an accused
raises self-defence or provocation, he bears no more than an evidential
burden of laying a foundation for the defence on the evidence; once such
a foundation appears, whether from the prosecution or the defence
evidence, the persuasive burden remains on the prosecution to negative
the defence and to establish guilt beyond reasonable doubt. It is against
these settled principles that the evidence must be weighed.
F. The Ingredients of the Offence of Murder
19. The ingredients which the prosecution must establish in a charge of
murder is well settled. In Anthony Ndegwa Ngari v Republic [2014]
eKLR, they were restated as: (a) the fact of the death of the deceased; (b)
that the death was caused by an unlawful act or omission; (c) that it was
the accused who committed the unlawful act or omission which caused
the death; and (d) that the accused did so with malice aforethought. I
consider each in turn.
(i) The fact and cause of death
20. That Derrick Andambi Luvaka is dead is not in dispute. PW1, PW2, PW3,
PW4 and PW6 all spoke to his death on 10th January 2026, and PW5,
the pathologist, established through the post-mortem report (PExh1) that
the cause of death was haemorrhagic shock following excessive bleeding
after assault with a sharp object. The first ingredient is proved beyond
reasonable doubt.
21. The evidence discloses that the deceased was admitted with deep cuts to
both wrists and that amputation was recommended and undertaken, and
that he died in the course of, or following, that treatment. To the extent
it might be suggested that the amputation, or the deceased’s inability to
meet the cost of treatment, broke the chain of causation, the suggestion
is without merit. Under section 213 of the Penal Code, a person is deemed
to have caused the death of another notwithstanding that his act was not
the immediate or sole cause of death, including where the injury inflicted
would not have caused death had the injured person submitted to, or
received, proper medical treatment. At common law the test is whether
the original wound remained an operative and substantial cause of death
(R v Smith [1959] 2 QB 35). Here the fatal haemorrhage flowed directly
from the deep cuts inflicted on the deceased; the wounds were the
operative and substantial cause of death, and the causal chain is
unbroken.
(ii) Whether the death was unlawfully caused
22. Every homicide is presumed to be unlawful unless it is excused or
justified by law. The deceased died as a result of a deliberate assault with
a jembe and a slasher, inflicting deep cuts to his wrists and body. No
lawful justification appears on the face of that assault; whether the
pleaded justifications of self-defence and provocation displace its
unlawful character is considered separately below. Subject to that, the
second ingredient is established.
(iii) Whether it was the accused who committed the act — identity and
participation
23. There were no eyewitnesses to the assault other than the participants.
The prosecution’s case on identity rests principally upon the dying
declaration of the deceased, spoken to by PW1 and PW4 (and referred to
by PW2 and PW6), in which the deceased named the 1st accused, the
2nd accused and Pamela as the persons who cut him, following a dispute
over maize.
24. A dying declaration is admissible under section 33(a) of the Evidence Act
as an exception to the rule against hearsay, and, in Kenya, its
admissibility does not depend on the deceased having been under a
settled, hopeless expectation of death at the time. The governing
principles were restated by the Court of Appeal in Philip Nzaka Watu v
Republic [2016] eKLR and, long before it, in Pius Jasunga s/o Akumu v R
(1954) 21 EACA 331 and Choge v Republic [1985] KLR 1: such evidence
must be received with caution, because it is not tested by crossexamination and because the violence and confusion attending the death
may impair the deceased’s perception; while corroboration is not a strict
rule of law, it is generally unsafe to found a conviction on an
uncorroborated dying declaration, and the Court must be satisfied that
the deceased could not have been mistaken in identifying his assailants.
25. Applying that caution, I am satisfied that the dying declaration in this
case may be safely acted upon. First, this is a case of recognition rather
than identification of strangers: the persons named were the deceased’s
own close relations and neighbours — the 1st accused his brother (or
step-brother) and the 2nd accused his nephew — well known to him,
greatly reducing the risk of mistake. Secondly, the declaration was
consistent: the deceased gave the same account, naming the same
assailants and the same weapons (a jembe and a slasher), to more than
one witness on more than one occasion, including to PW4, a police officer,
at the scene. Thirdly, it is corroborated by the medical evidence of PW5,
the nature and situation of the injuries — deep cuts to the wrists — being
entirely consistent with the use of a jembe and a slasher as the deceased
described. Fourthly, the declaration was made shortly after the assault.
The defence contention that the deceased was in truth set upon by
members of the public, and not by the accused, does not displace this
finding. The deceased did not attribute the attack to a faceless crowd; he
consistently named three specific persons well known to him, among
them his own brother and nephew. It is inherently improbable that a man
mortally injured would, in identifying his attackers, exculpate an
anonymous mob while falsely implicating his close relations, and no
independent evidence was led to substantiate the suggestion of a public
attack. I am satisfied that the deceased was not, and could not have been,
mistaken, and that his dying declaration reliably identifies the 1st and
2nd accused as among his assailants.
26. The two accused acted together. Where two or more persons form a
common intention to prosecute an unlawful purpose in conjunction with
one another, and in the prosecution of that purpose an offence is
committed of such a nature that its commission was a probable
consequence of the prosecution of that purpose, each is deemed to have
committed the offence: section 21 of the Penal Code; and see Dracaku s/o
Afia v R (1963) EA 364. On the evidence, the 2nd accused first confronted
the deceased and, when the 1st accused arrived, the two jointly assaulted
him with a jembe and a slasher, cutting his hands. The 2nd accused’s
evidence that he did no more than raise an alarm to protect his father,
and took no part in the assault, has been weighed. It is, however,
contradicted by the dying declaration, in which the deceased named
“Sammy” among those who cut him, and which I have found reliable; and
it is of note that the 2nd accused places himself squarely at the scene of
the confrontation. Preferring the consistent and corroborated declaration
of the deceased to his denial, I find that the 2nd accused was not a mere
bystander but a participant in the joint assault. The concerted
participation of both accused in the same brutal attack, upon the same
victim, with like weapons, establishes a common intention, so that each
is answerable for the acts of the other. The third ingredient is proved
against both accused. (Pamela, though named by the deceased, is not
before the Court and no finding is made against her.)
(iv) Malice aforethought
27. Malice aforethought is defined by section 206 of the Penal Code and
includes an intention to cause the death of, or to do grievous harm to,
any person, as well as knowledge that the act causing death will probably
cause death or grievous harm, accompanied by indifference whether
such harm is caused or not. It is a state of mind ordinarily to be inferred
from the surrounding circumstances.
28. In the well-known case of Rex v Tubere s/o Ochen (1945) 12 EACA 63, the
Court identified the factors from which the requisite intent may be
inferred: the nature of the weapon used, the part of the body targeted,
the manner in which the weapon was used, and the conduct of the
accused before, during and after the assault. Here, the accused employed
a jembe and a slasher — crude but plainly lethal implements; they
directed sustained and severe blows that severed or all but severed the
deceased’s hands at the wrists, and inflicted further cuts to the head, the
right eye and the lower limbs. An assault of that ferocity, with such
weapons, upon so vulnerable a victim, admits of only one inference: that
the accused intended, at the least, to do the deceased grievous harm, or
acted with knowledge that death or grievous harm would probably result
and with indifference to that consequence. On these facts malice
aforethought would ordinarily be inferable; whether it is negatived, or the
offence reduced, by the defences of self-defence and provocation is the
question to which I now turn.
G. The Defence of Self-Defence
29. By section 17 of the Penal Code, criminal responsibility for the use of
force in the defence of person or property is to be determined according
to the principles of the English common law. The locus classicus is
Palmer v R [1971] AC 814, where the Privy Council held that a person
who is attacked, or who honestly and reasonably believes he is about to
be attacked, may use such force as is reasonably necessary to defend
himself; what is reasonable is to be judged in the heat of the moment and
not by nice measure, but force which is clearly excessive in the
circumstances cannot be justified.
30. Our Courts have applied this consistently. In Ahamad Mohamed Omar &
5 others v Republic [2014] eKLR and Roba Galma Wario v Republic [2015]
eKLR, it was affirmed that the essential element of self-defence is an
honest belief, founded on reasonable grounds, that the accused was
being attacked or was in imminent danger of attack, coupled with the use
of no more force than was reasonably necessary to meet that danger.
31. Measured against these principles, self-defence taken as a complete
answer to the charge cannot succeed — but the material bearing upon it
cannot be dismissed as readily as the prosecution urged. Significantly,
the deceased’s having been armed, and the 1st accused’s having been
injured, are not matters resting on the defence evidence alone. On the
prosecution’s own investigation, the deceased arrived at the home
carrying a slasher, and the investigating officer’s findings record that the
1st accused sustained an injury to his right hand during the incident.
Those features lend real support to the accused’s account that a violent
physical confrontation took place and that the 1st accused did not
emerge from it unscathed. To that extent an evidential foundation for the
defence has been laid which the prosecution must answer.
32. Nonetheless, self-defence as a complete justification, resulting in an
acquittal, requires that the force used be reasonably proportionate to the
threat faced. Even accepting that the deceased was armed and that a
fight ensued, the response — the severing of both of the deceased’s hands
at the wrists by two men, with further cuts to his head, eye and legs —
went beyond what was reasonably necessary to disarm or repel him, the
more so as the deceased thereafter broke off and fled the home. On that
ground the plea of self-defence cannot result in an acquittal.
33. But it does not follow that the accused are guilty of murder. The excessive
use of force in the defence of the person, where a genuine or apprehended
attack has been over-reached, may reduce the offence from murder to
manslaughter rather than justify an acquittal (R v Ngolaile s/o Lenjaro
(1951) 18 EACA 164; R v Shaushi (1951) 18 EACA 198; and see Palmer v
R (supra)). Given the evidence, from the prosecution’s own investigation,
that the deceased came armed and that the 1st accused was injured in
the affray, this is not a case in which that possibility can be excluded. It
falls to be considered together with the defence of provocation, to which
I now turn.
H. The Defence of Provocation
34. Provocation stands on a different footing: it does not justify or excuse a
killing, but, where it is made out, it reduces what would otherwise be
murder to manslaughter. Section 207 of the Penal Code provides that a
person who unlawfully kills another in circumstances which would
otherwise constitute murder, but who does the act which causes death
in the heat of passion caused by sudden provocation and before there is
time for his passion to cool, is guilty of manslaughter only.
35. Section 208 defines provocation as any wrongful act or insult of such a
nature as to be likely, when done to an ordinary person, to deprive him
of the power of self-control and to induce him to commit an assault of
the kind committed. The classic statement is that of Devlin J. in R v Duffy
[1949] 1 All ER 932: provocation is some act, or series of acts, done by
the deceased to the accused which would cause in any reasonable
person, and actually causes in the accused, a sudden and temporary loss
of self-control, rendering the accused so subject to passion as to make
him for the moment not master of his mind.
36. Three requirements emerge. There must be (a) a wrongful act or insult
amounting to provocation; (b) a sudden and temporary loss of self-control
on the part of the accused, actual and such as would be experienced by
an ordinary person of the accused’s community placed in the same
situation; and (c) a retaliation proportionate to the provocation, the act
of killing being done in the heat of passion before there was time for
passion to cool. The mode of resentment must bear a reasonable
relationship to the provocation, and in assessing this the Court has
regard to the instrument used and the number and severity of the blows
(Mancini v Director of Public Prosecutions [1942] AC 1).
37. Testing the facts against these requirements, and giving proper weight to
the whole of the evidence including the findings of the investigation, I am
unable to conclude that the defence of provocation has been excluded.
As to the first requirement, the provocation relied upon is not merely a
verbal disagreement over maize. On the evidence the deceased came to
the home armed with a slasher, pressed his demand in the face of refusal,
and — on the account of the 1st accused, corroborated by the injury he
sustained to his hand — turned upon and attacked the 1st accused. A
sudden, armed confrontation of that character is capable of amounting
to a wrongful act sufficient to deprive an ordinary person, of the accused’s
community and placed in the same situation, of the power of self-control.
38. As to the second requirement, the quarrel escalated rapidly, from a
demand for maize to a violent affray in which the 1st accused himself
was wounded, and the fatal injuries were inflicted in the course of that
same affray and not after any appreciable interval in which the passion
might cool. That sequence is consistent with a sudden and temporary
loss of self-control in the heat of passion, rather than with a considered
or premeditated killing.
39. As to the third requirement, it is true that the retaliation — the cutting
of the deceased’s hands and body — was severe, and that the instrument
used and the number and gravity of the blows are matters which, on the
authority of Mancini v Director of Public Prosecutions [1942] AC 1, bear
upon whether the mode of resentment was proportionate. Were
proportionality the sole test, the plea might be doubted. But the burden
does not lie on the accused to establish provocation; it lies on the
prosecution to negative it beyond reasonable doubt. And it has long been
recognized in this jurisdiction that, once death is caused in the heat of
passion upon legal provocation, the offence is manslaughter
notwithstanding that the retaliation was disproportionate or that a lethal
weapon was used, the disproportion going to sentence rather than to the
availability of the defence (Republic v Hussein s/o Mohamed [1942] EACA
66).
40. Weighing all of this, and mindful that the deceased came armed and that
the 1st accused was injured in a sudden and violent quarrel, I am not
satisfied that the prosecution has excluded, beyond reasonable doubt,
the possibility that the accused acted in the heat of passion upon sudden
provocation, or in the excessive repulsion of an attack. The benefit of that
doubt, which goes to the element of malice aforethought, must be
resolved in favour of the accused. The offence is accordingly reduced from
murder to manslaughter.
I. Determination
41. Drawing the threads together: the prosecution has proved beyond
reasonable doubt the fact and cause of the death of Derrick Andambi
Luvaka; that his death was unlawfully caused; and that it was the 1st
and 2nd accused who, acting with a common intention, inflicted the fatal
injuries — I have rejected their bare denial of participation, preferring the
consistent and corroborated dying declaration of the deceased. I am not,
however, satisfied that the prosecution has proved malice aforethought
to the requisite standard, for it has not excluded the defences of
provocation and of excessive force in self-defence, which are borne out by
the prosecution’s own evidence that the deceased came armed with a
slasher and that the 1st accused was injured in a sudden and violent
quarrel. In those circumstances the accused are entitled to the benefit of
the doubt on the question of malice, and the proper verdict is one of
manslaughter, not murder.
42. Accordingly, and in exercise of the power under section 179 of the
Criminal Procedure Code to convict of a lesser cognate offence upon a
charge of murder, I find the 1st accused, Jackson Shikanga Luvaka, and
the 2nd accused, Samuel Mulama Shikanga, each not guilty of murder
contrary to section 203 as read with section 204 of the Penal Code, but
guilty of the lesser offence of manslaughter contrary to section 202 as
read with section 205 of the Penal Code, and I convict each of them
accordingly.
Verdict on Sentencing
43. The two accused persons now convicted to a lesser offence of manslaughter
contrary to Section 202 of the Penal Code are to be punished under Section
205 of the Penal Code. Pursuant to Section 329 of the Criminal Procedure
Code, the Court called for evidence in mitigation. Learned Counsel Mr.
Wekesa submitted that the guiding principle on sentencing is that the
accused persons be rehabilitated by the Court taking the following
elements on mitigation:
a. First offender: The accused persons are first offenders. They have no
previous convictions. We pray that the Court considers a non-custodial
sentence or the lowest possible custodial term.
b. Remorse and repentance: The accused persons are remorseful from
what happened. They never intended to cause the death of the
deceased. The incident arose from provocation. The same was not
planned, they have expressed regret to the family of the deceased and
prays for forgiveness.
c. Family and Social Obligations: The 1st accused person is a family
man, married with children, being the 2ndaccused person and three
Criminal Case No. E004 of 2026 Page 15 of 18
others. That the three other children are school going, being students
at KAPSOKOROPRIMARY SCHOOL, who depend on him for school
fees, food and shelter. That his wife is a housewife and as such a
custodial sentence will punish the innocent family members.
d. Employment and contribution to the Society: The accused persons are
small scale farmers and also boda boda riders. They are productive
members of the society. A custodial sentence will render his family
distortable and they will lose their livelihood.
44. Whereas the Prosecutor on the other hand, filed his comments on
aggravating factors and placed reliance on the surrounding circumstances
in which the deceased met his death which should play a key factor in
exercise of discretion to impose an appropriate sentence so that justice can
be found to the victims of the offence and the community at large.
45. The nucleus principles of sentencing are captured in Clause 1.2 of the
Judiciary Sentencing Guidelines (2003) which provides as follows:
a. Proportionality: The sentence meted out must be proportionate to
the offending behaviour meaning it must not be more or less than is
merited in view of the gravity of the offence. Proportionality of the
sentence to the offending behaviour is weighted in view of the actual,
foreseeable and intended impact of the offence as well as the
responsibility of the offender.
b. Equality/Uniformity/Parity/Consistency/Impartiality: The same
sentences should be imposed for same offences committed by
offenders in similar circumstances.
c. Accountability/Transparency: The reasons behind the
determination of sentence should be clearly set out and in accordance
to the law and the sentencing principles laid out in these guidelines.
d. Inclusiveness: Both the offender and the victim should partici
[...truncated]
M/s Leina for the State
Mr. Wekesa, Advocate, for the Accused persons
JUDGMENT
A. Introduction
1. The two accused persons, Jackson Shikanga Luvaka (the 1st accused)
and Samuel Mulama Shikanga (the 2nd accused), stand charged with the
offence of murder contrary to section 203 as read with section 204 of the
Penal Code. The particulars are that on the 8th day of January 2026, at
Kipchekwen Village, Banja Location, in Hamisi Sub-County within Vihiga
County, jointly murdered Derrick Andambi Luvaka. Both accused
pleaded not guilty, and the matter proceeded to full trial.
2. At the close of the prosecution case, this Court, by its ruling delivered on
11th May 2026, found that a prima facie case had been established and
placed both accused on their defence pursuant to section 306(2) of the
Criminal Procedure Code. The accused have since tendered their defence,
and this is the judgment of the Court following the full trial.
B. The Prosecution Case
3. The prosecution called six witnesses. Their evidence, in summary, was
as follows.
4. PW1, Edith Khavere, the mother of the deceased, testified that on 8th
January 2026 she was informed that her son had been attacked. She
found him lying beside the road near the Banja MCA’s home, and he
identified his assailants as Jackson (the 1st accused), Jackson’s wife
Pamela, and their son Sammy (the 2nd accused), who had cut him using
a jembe and a slasher. The deceased was taken to Vihiga County
Teaching and Referral Hospital and admitted with cuts on both hands at
the wrists, the head and the right eye. He died at the hospital on 10th
January 2026. A post-mortem conducted on 24th January 2026
established the cause of death as excessive bleeding following assault
with a sharp object.
5. PW2, Jackline Shivuluka, a sister of the deceased, testified that she was
informed that her brother was being beaten. He was admitted to hospital
with both hands cut, and she urged him to accept the amputation of his
hands recommended by the doctors. He died on 10th January 2026. She
testified that, before his death, the deceased had stated that he had been
beaten by the 1st accused, the 2nd accused and Pamela.
6. PW3, Hesbon Imoli, a brother of the deceased, testified that he attended
and witnessed the post-mortem examination conducted on 24th January
2026 and agreed with the pathologist’s opinion as to the cause of death.
7. PW4, No. 124296 PC (W) Margaret Wachira, testified that on 8th January
2026 she and other officers proceeded to the scene, where they found the
deceased with serious injuries — deep cuts on both wrists, the right leg
and two toes. She testified that the deceased told her that he had been
cut with a jembe by his brother Jackson and his son Samwel after he had
questioned the 2nd accused regarding the theft of his maize. The scene
was photographed and the deceased escorted to hospital, where he later
died.
8. PW5, Dr. Clinton Kigweyi, the pathologist, conducted the post-mortem
examination. He formed the opinion that the cause of death was
haemorrhagic shock following excessive bleeding after assault with a
sharp object, and produced the post-mortem report as PExh1.
9. PW6, No. 101057 PC (W) Christabel Omumalia of DCI Hamisi, the
investigating officer, testified that the matter was reported at Serem
Police Station, that the deceased had identified his attackers as the two
accused and Pamela, and that the accused were arrested on 27th
January 2026. She visited and photographed the scene, noting dried
blood, but was unable to recover the weapons used.
10. The course and outcome of the investigation were set out in the covering
report of the investigating officer, PW6. Read together with the evidence
on the record, that report discloses several matters material to the
defences later raised. First, the deceased is recorded as having arrived at
the 1st accused’s home on the morning of 8th January 2026 carrying a
slasher and a sack, before the dispute over maize arose and escalated.
Secondly, among the investigating officer’s own findings is that the 1st
accused sustained an injury to his right hand during the incident, and
that the weapons used in the assault were never recovered. Thirdly,
following their arrest the accused were taken for mental assessment at
Mbale Hospital and found fit to stand trial. These matters, emanating
from the prosecution’s own investigation, fall to be weighed with the rest
of the evidence and bear directly upon the defences considered below.
C. The Defence Case
11. Placed on their defence, both accused persons elected to give sworn
evidence and denied the charge; the 1st accused additionally called
independent witnesses in support of his case. The thrust of the defence
was twofold: a denial that either accused participated in the killing of the
deceased, and an assertion that it was the deceased who was the
aggressor in the confrontation. In the alternative, learned Counsel Mr.
Wekesa canvassed the defences of self-defence and provocation.
12. The 1st accused (DW1), in his sworn evidence, categorically denied the
charge and maintained that he did not participate in the unlawful killing
of the deceased. He testified that on the material day he woke and
proceeded to his farm, where he carried out his usual farming activities.
Later in the day his wife informed him that the deceased come to their
homestead and was armed. Concerned by the report, he made his way to
the homestead, where he found the deceased was armed with a panga
and was behaving aggressively. He stated that the deceased attempted to
harm him and that, in the ensuing commotion, the deceased sustained
injuries before being taken to Hamisi Hospital and later referred to Mbale
Hospital. Under cross-examination he clarified that, on his return from
the farm, it was the deceased who attacked him; that he himself
sustained injuries and suffered a temporary concussion for which he was
taken to hospital; and that he neither inflicted any injury upon the
deceased nor was in any way involved in his death.
13. The 2nd accused (DW2), also on oath, identified himself as the son of the
1st accused and a nephew of the deceased. He testified on 8th January
2026 that he had left home and was later told by his mother that the
deceased had come to their home demanding maize, which was
unavailable, his mother informed him that the deceased was armed with
a panga. Shortly thereafter his father arrived home and questioned the
deceased as to why he was carrying the weapon, whereupon the deceased
turned on his father and attacked him, inflicting injuries. The 2nd
accused testified that he and his mother raised an alarm in an effort to
protect the 1st accused. While he acknowledged that a confrontation
occurred between the deceased and the 1st accused, he firmly denied
taking any part in it, and denied assaulting the deceased or contributing
to his death.
14. On this evidence the defence submitted that the prosecution had failed
to displace the presumption of innocence; that the deceased was the
aggressor in the confrontation; and that the offence of murder had not
been proved beyond reasonable doubt. The defence accordingly urged the
Court to acquit both accused or, in the alternative, to return a verdict of
manslaughter.
D. Issues for Determination
15. From the evidence and the rival positions, the issues that fall for
determination are:
(a) whether the prosecution has proved, beyond reasonable doubt, each
of the ingredients of the offence of murder against each accused; and
(b) whether the defences of self-defence and of provocation, or either of
them, avail the accused so as to result in an acquittal or in a
conviction for the lesser offence of manslaughter.
E. Burden and Standard of Proof
16. It is a cardinal principle of our criminal law that the legal burden of
proving the guilt of an accused person rests on the prosecution
throughout and, subject to certain statutory exceptions, never shifts.
That burden flows from the presumption of innocence guaranteed by
Article 50(2)(a) of the Constitution, which entitles every accused person
to be presumed innocent until the contrary is proved. The classic
statement remains that of Viscount Sankey L.C. in Woolmington v
Director of Public Prosecutions [1935] AC 462, that the duty of the
prosecution to prove the prisoner’s guilt is the “golden thread” running
throughout the web of the criminal law.
17. The standard to which the prosecution must prove its case is proof
beyond reasonable doubt. As Denning J. explained in Miller v Minister of
Pensions [1947] 2 All ER 372, that standard does not import certainty
beyond the shadow of a doubt, but proof so strong as to leave only a
remote possibility in the accused’s favour which can be dismissed with
the sentence “of course it is possible but not in the least probable.” Where
a reasonable doubt remains, the accused is entitled to its benefit and to
an acquittal.
18. The defences raised do not displace that burden. Where an accused
raises self-defence or provocation, he bears no more than an evidential
burden of laying a foundation for the defence on the evidence; once such
a foundation appears, whether from the prosecution or the defence
evidence, the persuasive burden remains on the prosecution to negative
the defence and to establish guilt beyond reasonable doubt. It is against
these settled principles that the evidence must be weighed.
F. The Ingredients of the Offence of Murder
19. The ingredients which the prosecution must establish in a charge of
murder is well settled. In Anthony Ndegwa Ngari v Republic [2014]
eKLR, they were restated as: (a) the fact of the death of the deceased; (b)
that the death was caused by an unlawful act or omission; (c) that it was
the accused who committed the unlawful act or omission which caused
the death; and (d) that the accused did so with malice aforethought. I
consider each in turn.
(i) The fact and cause of death
20. That Derrick Andambi Luvaka is dead is not in dispute. PW1, PW2, PW3,
PW4 and PW6 all spoke to his death on 10th January 2026, and PW5,
the pathologist, established through the post-mortem report (PExh1) that
the cause of death was haemorrhagic shock following excessive bleeding
after assault with a sharp object. The first ingredient is proved beyond
reasonable doubt.
21. The evidence discloses that the deceased was admitted with deep cuts to
both wrists and that amputation was recommended and undertaken, and
that he died in the course of, or following, that treatment. To the extent
it might be suggested that the amputation, or the deceased’s inability to
meet the cost of treatment, broke the chain of causation, the suggestion
is without merit. Under section 213 of the Penal Code, a person is deemed
to have caused the death of another notwithstanding that his act was not
the immediate or sole cause of death, including where the injury inflicted
would not have caused death had the injured person submitted to, or
received, proper medical treatment. At common law the test is whether
the original wound remained an operative and substantial cause of death
(R v Smith [1959] 2 QB 35). Here the fatal haemorrhage flowed directly
from the deep cuts inflicted on the deceased; the wounds were the
operative and substantial cause of death, and the causal chain is
unbroken.
(ii) Whether the death was unlawfully caused
22. Every homicide is presumed to be unlawful unless it is excused or
justified by law. The deceased died as a result of a deliberate assault with
a jembe and a slasher, inflicting deep cuts to his wrists and body. No
lawful justification appears on the face of that assault; whether the
pleaded justifications of self-defence and provocation displace its
unlawful character is considered separately below. Subject to that, the
second ingredient is established.
(iii) Whether it was the accused who committed the act — identity and
participation
23. There were no eyewitnesses to the assault other than the participants.
The prosecution’s case on identity rests principally upon the dying
declaration of the deceased, spoken to by PW1 and PW4 (and referred to
by PW2 and PW6), in which the deceased named the 1st accused, the
2nd accused and Pamela as the persons who cut him, following a dispute
over maize.
24. A dying declaration is admissible under section 33(a) of the Evidence Act
as an exception to the rule against hearsay, and, in Kenya, its
admissibility does not depend on the deceased having been under a
settled, hopeless expectation of death at the time. The governing
principles were restated by the Court of Appeal in Philip Nzaka Watu v
Republic [2016] eKLR and, long before it, in Pius Jasunga s/o Akumu v R
(1954) 21 EACA 331 and Choge v Republic [1985] KLR 1: such evidence
must be received with caution, because it is not tested by crossexamination and because the violence and confusion attending the death
may impair the deceased’s perception; while corroboration is not a strict
rule of law, it is generally unsafe to found a conviction on an
uncorroborated dying declaration, and the Court must be satisfied that
the deceased could not have been mistaken in identifying his assailants.
25. Applying that caution, I am satisfied that the dying declaration in this
case may be safely acted upon. First, this is a case of recognition rather
than identification of strangers: the persons named were the deceased’s
own close relations and neighbours — the 1st accused his brother (or
step-brother) and the 2nd accused his nephew — well known to him,
greatly reducing the risk of mistake. Secondly, the declaration was
consistent: the deceased gave the same account, naming the same
assailants and the same weapons (a jembe and a slasher), to more than
one witness on more than one occasion, including to PW4, a police officer,
at the scene. Thirdly, it is corroborated by the medical evidence of PW5,
the nature and situation of the injuries — deep cuts to the wrists — being
entirely consistent with the use of a jembe and a slasher as the deceased
described. Fourthly, the declaration was made shortly after the assault.
The defence contention that the deceased was in truth set upon by
members of the public, and not by the accused, does not displace this
finding. The deceased did not attribute the attack to a faceless crowd; he
consistently named three specific persons well known to him, among
them his own brother and nephew. It is inherently improbable that a man
mortally injured would, in identifying his attackers, exculpate an
anonymous mob while falsely implicating his close relations, and no
independent evidence was led to substantiate the suggestion of a public
attack. I am satisfied that the deceased was not, and could not have been,
mistaken, and that his dying declaration reliably identifies the 1st and
2nd accused as among his assailants.
26. The two accused acted together. Where two or more persons form a
common intention to prosecute an unlawful purpose in conjunction with
one another, and in the prosecution of that purpose an offence is
committed of such a nature that its commission was a probable
consequence of the prosecution of that purpose, each is deemed to have
committed the offence: section 21 of the Penal Code; and see Dracaku s/o
Afia v R (1963) EA 364. On the evidence, the 2nd accused first confronted
the deceased and, when the 1st accused arrived, the two jointly assaulted
him with a jembe and a slasher, cutting his hands. The 2nd accused’s
evidence that he did no more than raise an alarm to protect his father,
and took no part in the assault, has been weighed. It is, however,
contradicted by the dying declaration, in which the deceased named
“Sammy” among those who cut him, and which I have found reliable; and
it is of note that the 2nd accused places himself squarely at the scene of
the confrontation. Preferring the consistent and corroborated declaration
of the deceased to his denial, I find that the 2nd accused was not a mere
bystander but a participant in the joint assault. The concerted
participation of both accused in the same brutal attack, upon the same
victim, with like weapons, establishes a common intention, so that each
is answerable for the acts of the other. The third ingredient is proved
against both accused. (Pamela, though named by the deceased, is not
before the Court and no finding is made against her.)
(iv) Malice aforethought
27. Malice aforethought is defined by section 206 of the Penal Code and
includes an intention to cause the death of, or to do grievous harm to,
any person, as well as knowledge that the act causing death will probably
cause death or grievous harm, accompanied by indifference whether
such harm is caused or not. It is a state of mind ordinarily to be inferred
from the surrounding circumstances.
28. In the well-known case of Rex v Tubere s/o Ochen (1945) 12 EACA 63, the
Court identified the factors from which the requisite intent may be
inferred: the nature of the weapon used, the part of the body targeted,
the manner in which the weapon was used, and the conduct of the
accused before, during and after the assault. Here, the accused employed
a jembe and a slasher — crude but plainly lethal implements; they
directed sustained and severe blows that severed or all but severed the
deceased’s hands at the wrists, and inflicted further cuts to the head, the
right eye and the lower limbs. An assault of that ferocity, with such
weapons, upon so vulnerable a victim, admits of only one inference: that
the accused intended, at the least, to do the deceased grievous harm, or
acted with knowledge that death or grievous harm would probably result
and with indifference to that consequence. On these facts malice
aforethought would ordinarily be inferable; whether it is negatived, or the
offence reduced, by the defences of self-defence and provocation is the
question to which I now turn.
G. The Defence of Self-Defence
29. By section 17 of the Penal Code, criminal responsibility for the use of
force in the defence of person or property is to be determined according
to the principles of the English common law. The locus classicus is
Palmer v R [1971] AC 814, where the Privy Council held that a person
who is attacked, or who honestly and reasonably believes he is about to
be attacked, may use such force as is reasonably necessary to defend
himself; what is reasonable is to be judged in the heat of the moment and
not by nice measure, but force which is clearly excessive in the
circumstances cannot be justified.
30. Our Courts have applied this consistently. In Ahamad Mohamed Omar &
5 others v Republic [2014] eKLR and Roba Galma Wario v Republic [2015]
eKLR, it was affirmed that the essential element of self-defence is an
honest belief, founded on reasonable grounds, that the accused was
being attacked or was in imminent danger of attack, coupled with the use
of no more force than was reasonably necessary to meet that danger.
31. Measured against these principles, self-defence taken as a complete
answer to the charge cannot succeed — but the material bearing upon it
cannot be dismissed as readily as the prosecution urged. Significantly,
the deceased’s having been armed, and the 1st accused’s having been
injured, are not matters resting on the defence evidence alone. On the
prosecution’s own investigation, the deceased arrived at the home
carrying a slasher, and the investigating officer’s findings record that the
1st accused sustained an injury to his right hand during the incident.
Those features lend real support to the accused’s account that a violent
physical confrontation took place and that the 1st accused did not
emerge from it unscathed. To that extent an evidential foundation for the
defence has been laid which the prosecution must answer.
32. Nonetheless, self-defence as a complete justification, resulting in an
acquittal, requires that the force used be reasonably proportionate to the
threat faced. Even accepting that the deceased was armed and that a
fight ensued, the response — the severing of both of the deceased’s hands
at the wrists by two men, with further cuts to his head, eye and legs —
went beyond what was reasonably necessary to disarm or repel him, the
more so as the deceased thereafter broke off and fled the home. On that
ground the plea of self-defence cannot result in an acquittal.
33. But it does not follow that the accused are guilty of murder. The excessive
use of force in the defence of the person, where a genuine or apprehended
attack has been over-reached, may reduce the offence from murder to
manslaughter rather than justify an acquittal (R v Ngolaile s/o Lenjaro
(1951) 18 EACA 164; R v Shaushi (1951) 18 EACA 198; and see Palmer v
R (supra)). Given the evidence, from the prosecution’s own investigation,
that the deceased came armed and that the 1st accused was injured in
the affray, this is not a case in which that possibility can be excluded. It
falls to be considered together with the defence of provocation, to which
I now turn.
H. The Defence of Provocation
34. Provocation stands on a different footing: it does not justify or excuse a
killing, but, where it is made out, it reduces what would otherwise be
murder to manslaughter. Section 207 of the Penal Code provides that a
person who unlawfully kills another in circumstances which would
otherwise constitute murder, but who does the act which causes death
in the heat of passion caused by sudden provocation and before there is
time for his passion to cool, is guilty of manslaughter only.
35. Section 208 defines provocation as any wrongful act or insult of such a
nature as to be likely, when done to an ordinary person, to deprive him
of the power of self-control and to induce him to commit an assault of
the kind committed. The classic statement is that of Devlin J. in R v Duffy
[1949] 1 All ER 932: provocation is some act, or series of acts, done by
the deceased to the accused which would cause in any reasonable
person, and actually causes in the accused, a sudden and temporary loss
of self-control, rendering the accused so subject to passion as to make
him for the moment not master of his mind.
36. Three requirements emerge. There must be (a) a wrongful act or insult
amounting to provocation; (b) a sudden and temporary loss of self-control
on the part of the accused, actual and such as would be experienced by
an ordinary person of the accused’s community placed in the same
situation; and (c) a retaliation proportionate to the provocation, the act
of killing being done in the heat of passion before there was time for
passion to cool. The mode of resentment must bear a reasonable
relationship to the provocation, and in assessing this the Court has
regard to the instrument used and the number and severity of the blows
(Mancini v Director of Public Prosecutions [1942] AC 1).
37. Testing the facts against these requirements, and giving proper weight to
the whole of the evidence including the findings of the investigation, I am
unable to conclude that the defence of provocation has been excluded.
As to the first requirement, the provocation relied upon is not merely a
verbal disagreement over maize. On the evidence the deceased came to
the home armed with a slasher, pressed his demand in the face of refusal,
and — on the account of the 1st accused, corroborated by the injury he
sustained to his hand — turned upon and attacked the 1st accused. A
sudden, armed confrontation of that character is capable of amounting
to a wrongful act sufficient to deprive an ordinary person, of the accused’s
community and placed in the same situation, of the power of self-control.
38. As to the second requirement, the quarrel escalated rapidly, from a
demand for maize to a violent affray in which the 1st accused himself
was wounded, and the fatal injuries were inflicted in the course of that
same affray and not after any appreciable interval in which the passion
might cool. That sequence is consistent with a sudden and temporary
loss of self-control in the heat of passion, rather than with a considered
or premeditated killing.
39. As to the third requirement, it is true that the retaliation — the cutting
of the deceased’s hands and body — was severe, and that the instrument
used and the number and gravity of the blows are matters which, on the
authority of Mancini v Director of Public Prosecutions [1942] AC 1, bear
upon whether the mode of resentment was proportionate. Were
proportionality the sole test, the plea might be doubted. But the burden
does not lie on the accused to establish provocation; it lies on the
prosecution to negative it beyond reasonable doubt. And it has long been
recognized in this jurisdiction that, once death is caused in the heat of
passion upon legal provocation, the offence is manslaughter
notwithstanding that the retaliation was disproportionate or that a lethal
weapon was used, the disproportion going to sentence rather than to the
availability of the defence (Republic v Hussein s/o Mohamed [1942] EACA
66).
40. Weighing all of this, and mindful that the deceased came armed and that
the 1st accused was injured in a sudden and violent quarrel, I am not
satisfied that the prosecution has excluded, beyond reasonable doubt,
the possibility that the accused acted in the heat of passion upon sudden
provocation, or in the excessive repulsion of an attack. The benefit of that
doubt, which goes to the element of malice aforethought, must be
resolved in favour of the accused. The offence is accordingly reduced from
murder to manslaughter.
I. Determination
41. Drawing the threads together: the prosecution has proved beyond
reasonable doubt the fact and cause of the death of Derrick Andambi
Luvaka; that his death was unlawfully caused; and that it was the 1st
and 2nd accused who, acting with a common intention, inflicted the fatal
injuries — I have rejected their bare denial of participation, preferring the
consistent and corroborated dying declaration of the deceased. I am not,
however, satisfied that the prosecution has proved malice aforethought
to the requisite standard, for it has not excluded the defences of
provocation and of excessive force in self-defence, which are borne out by
the prosecution’s own evidence that the deceased came armed with a
slasher and that the 1st accused was injured in a sudden and violent
quarrel. In those circumstances the accused are entitled to the benefit of
the doubt on the question of malice, and the proper verdict is one of
manslaughter, not murder.
42. Accordingly, and in exercise of the power under section 179 of the
Criminal Procedure Code to convict of a lesser cognate offence upon a
charge of murder, I find the 1st accused, Jackson Shikanga Luvaka, and
the 2nd accused, Samuel Mulama Shikanga, each not guilty of murder
contrary to section 203 as read with section 204 of the Penal Code, but
guilty of the lesser offence of manslaughter contrary to section 202 as
read with section 205 of the Penal Code, and I convict each of them
accordingly.
Verdict on Sentencing
43. The two accused persons now convicted to a lesser offence of manslaughter
contrary to Section 202 of the Penal Code are to be punished under Section
205 of the Penal Code. Pursuant to Section 329 of the Criminal Procedure
Code, the Court called for evidence in mitigation. Learned Counsel Mr.
Wekesa submitted that the guiding principle on sentencing is that the
accused persons be rehabilitated by the Court taking the following
elements on mitigation:
a. First offender: The accused persons are first offenders. They have no
previous convictions. We pray that the Court considers a non-custodial
sentence or the lowest possible custodial term.
b. Remorse and repentance: The accused persons are remorseful from
what happened. They never intended to cause the death of the
deceased. The incident arose from provocation. The same was not
planned, they have expressed regret to the family of the deceased and
prays for forgiveness.
c. Family and Social Obligations: The 1st accused person is a family
man, married with children, being the 2ndaccused person and three
Criminal Case No. E004 of 2026 Page 15 of 18
others. That the three other children are school going, being students
at KAPSOKOROPRIMARY SCHOOL, who depend on him for school
fees, food and shelter. That his wife is a housewife and as such a
custodial sentence will punish the innocent family members.
d. Employment and contribution to the Society: The accused persons are
small scale farmers and also boda boda riders. They are productive
members of the society. A custodial sentence will render his family
distortable and they will lose their livelihood.
44. Whereas the Prosecutor on the other hand, filed his comments on
aggravating factors and placed reliance on the surrounding circumstances
in which the deceased met his death which should play a key factor in
exercise of discretion to impose an appropriate sentence so that justice can
be found to the victims of the offence and the community at large.
45. The nucleus principles of sentencing are captured in Clause 1.2 of the
Judiciary Sentencing Guidelines (2003) which provides as follows:
a. Proportionality: The sentence meted out must be proportionate to
the offending behaviour meaning it must not be more or less than is
merited in view of the gravity of the offence. Proportionality of the
sentence to the offending behaviour is weighted in view of the actual,
foreseeable and intended impact of the offence as well as the
responsibility of the offender.
b. Equality/Uniformity/Parity/Consistency/Impartiality: The same
sentences should be imposed for same offences committed by
offenders in similar circumstances.
c. Accountability/Transparency: The reasons behind the
determination of sentence should be clearly set out and in accordance
to the law and the sentencing principles laid out in these guidelines.
d. Inclusiveness: Both the offender and the victim should partici
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