REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CRIMINAL CASE NO. E016 OF 2023
REPUBLIC………………………………………. ……………………ODPP
VERSUS
DENNIS MUTHOMI KAWIRA…………………………….….ACCUSED
JUDGMENT
1. The accused person Dennis Muthomi Kawira is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 Laws of Kenya). The particulars of the charge are that on 2/6/2023 at Karimba Ka Nyuni village, Kithino Sub-Location, Tunyai Location Tharaka South Sub-County within Tharaka Nithi County, murdered Rose Karimi Muthengi. The accused person denied the charge.
The Prosecution’s Case
2. The brief facts of the case are that on 1/6/2023 at about 9.00pm the accused person went to the home of the deceased who is his mother-in-law and found one Linet Kanana who was the accused’s person’s wife. She was with Kamberina Kangu who was the grandmother and the mother of the deceased rose Karimi Muthengi. The deceased, the mother to Linet Kanana and therefore accused person’s mother-in-law. The accused’s wife had left the home of the accused and returned to her mother’s home. On that day when the accused went to the home of the deceased, he demanded that his wife should return to his home. The accused threatened to harm their child if the wife did not accompany him that night.
3. Out of fear, his wife Linet denied to go with accused. The following day on 2/6/2023 the deceased woke up and started her chores. Suddenly, screams were heard from her house and the accused was seen chasing the deceased. The accused caught up with the deceased and started beating her, kicking her, then cut her brutally inflicting fatal injuries on the deceased. The accused then disappeared. The mother of the deceased saw where she lay and confirmed that she was already dead.
4. The police were called and the body was taken to Marimanti Level 4 Hospital mortuary where a postmortem was done. The doctor formed the opinion that the cause of death was excessive bleeding from severe injuries on the head caused by a sharp object. The accused was arrested the next day and charged with this offence.
Summary of the Evidence
5. PW1Karuberina Karigu testified that she is the mother of the deceased in this case. She told the court that on 1/6/2023 the accused wen to her home to pick his wife Linet Kanana (PW2). He then left with his wife. The following morning, she heard screams early in the morning and went out immediately while armed with a panga. It is then she saw the accused chasing the deceased while armed with a panga. The accused caught up with the deceased and he held her both hands. The accused kicked PW1 with his hand and kicked her with his leg. He then slapped her on the face and took the panga which she had. The accused then chased the deceased while armed with the panga and when he caught up with her, he cut the deceased several times with the panga.
6. PW1 went back to the house and started screaming. She witnessed the accused cutting the deceased on the head. The accused had knocked the deceased down and was cutting her. Some neighbors heard the screams and went to the scene. The accused can away. Members of public went to where the deceased was and confirmed that she was already dead. The mater was reported to the police who went to the scene immediately. The police manager to arrest the accused from where he was hiding. The bod of the deceased was photographed by the scenes of crime officers. It was then moved to the mortuary.
7. PW2 Linet Kanana Muriithi, she is the daughter of the deceased in this case. The accused was the father of her child and they had been living together. On 30/5/2023 she left the home of accused with her baby and the accused never used to give them food and he was threatening to escape with the child and kill him.
8. When she reached home she told the deceased why she had returned home. The deceased told her to assist her to harvest green grammes as she took the child to hospital. On 31/5/23 the Pw2 met the accused on the road and he insisted to know where the child was as he did not find him at home. She told him the child was with the deceased and also told him that she did not want to stay at his home. He said he could rent a house for her at Kithiru and she said it was okay but she knew she would not go. He asked her if she could go the next day and she said yes. She did not go.
9. On 1/6/2023 the accused went to her mother’s house at 9.00pm and said he had gone for the child if she did not want to go with him. PW2 told him she could not give him the child. The accused insisted and they started quarreling. The accused held the child and a struggle ensured. The deceased went outside and held the child. The deceased and accused struggled over the child. The accused over powered the deceased and threatened to harm the child if the (PW2) did not go with him. The accused went away then came back and PW1 noticed that the child was bleeding from an injury on the forehead and blood was covering his eyes. On being asked what happened, the accused told PW2 to go with him. She agreed as she realized the accused could harm the child.
10. PW2 went to accused’s house and spent he night. The next morning the accused woke up very early and left the house saying he was going to started work at 7.00am. PW2 decided to take the child to hospital and first went to pick he treatment card from her mother’s house. On reaching there members of public informed her that her mother had been cut by the deceased. She went and saw the mother on the ground with injuries and was already dead. Police went to the scene and took the body to the mortuary.
11. PW3 Alphonse Kimathi testified that he is a neighbor of the deceased. On 2/6/2023 he was going to the home of the Karuberina Karigu to pick mild but before he reached there he met Muthomi running away from the home armed with a panga. PW3 did not speak to the accused. On reaching the home, Karuberina told him that the one who was going to milk had been killed. She took him to where the body was and saw that she was dead. She told the court that the deceased had a deep cut wound on the right jaw. The water for milking was on the fire. That Karuberina was crying and screaming and many people went to the scene.
12. The relatives stopped the police from removing the body from the scene and demanded that they get Muthomi. On 4/6/2023 policemen went and asked him about the relationship of the accused and the family of the deceased. He told the officers who were from the DCI that Muthomi was married from that home. That when he saw the accused, he as running away from the home of deceased while armed with a panga and could not tell the court how it was.
13. He identified the accused as Muthomi, the person he met running away from the home of the deceased while armed with a panga. PW3 told the court that when he saw the accused he was wearing a green T-shirt. He identified the green T-shirt which was visibly blood-stained.
14. PW4 No. 240459 Inspector Joseph Kathurima, testified that he was attached to the scenes of crime scenes investigations. He is gazette under Gazetti Notice 1145 dated 19/1/2023. He testified that on 2/6/2023 at around 9.30am he was requested by the Deputy DCIO to process a scene at Kithiru where a woman was killed by her son-in-law. He went and took photographs showing the body of the deceased and a close up view of the injuries which she had sustained. He produced the photographs and the report as exhibits, report exhibits and nine photographs as exhibits 2(a) – (i).
15. PW5 Doctor Andrew Njoroge a medical officer at Marimanti level 4 Hospital and he hospital superintendent. He is qualified from Dar-es-salaam University with Bachelors Degree in medicine and surgery medical practitioners Board No. 13409 and has eight years experience. He testified that he did postmortem on the body of the deceased Rose Karimi on 6/6/2023 and observed that the body had clothes which were soaked in blood. She was a female African aged about fifty (50) years. The body was pale and had deep cut wounds on the lateral aspect of the head measuring six (6) centimeters and 11 centimeter deep. It was a deep injury exposing the bone on the neck, that is the cervical bone. Other parts of the body were normal. He formed the opinion that the cause of death was excessive bleeding due to severe head injury caused by a sharp object. The postmortem was done on 6/6/2023 and the body was identified to her by Fridah Gacheri her daughter and Lydia Muthengi her sister. He issued a death certificate and filled the postmortem form which was produced as exhibits 3.
16. PW6 Lydia Kagendo testified that on 6/6/2023 at about 2.00pm she witnessed the postmortem on the body of the deceased and identified the body to the doctor who did postmortem. The deceased Rose Karimi Muthengi is the sister.
17. PW7 PC Jotham Murithi testified that on 2/6/2023 at about 8.00am he was at Ciakariga police post when she received a report that there was a report murder at Kithiru village and was told to accompany the deputy OCS and the OCPD to the scene. He went and found many people at the scene which was a the home of the deceased. The body was at the compound covered with a blanket. He noted that the deceased had been cut on the head and had lost a lot of blood. He was informed that the suspect was a son-in-law of the deceased. It was alleged that the suspect attacked the deceased while at her home and escaped through the farm. Officers from DCI were summoned and they went and took picture.
18. While there he received a report that the accused had been spotted at a construction site. He proceeded to the scene and found that the accused had been arrested by members of public. He arrested him and took him to the police station. The accused wearing a green T-shirt which was stained with blood, he produced it in court as exhibit. The accused was then charged.
19. PW8 No 61452 Corporal Benard Muli testified that he received the report of the murder and visited the scene with the Deputy OCS and the OCPD. He found the body of the deceased with a deep injury on the neck. There was blood oozing from the injury. The scene was processed. The body was moved to the mortuary at Marimanti Level 4 hospital where the postmortem was done. PW5 commenced investigations and he charged the accused.
20. He told the court that on 1/6/2023 the accused went to the home of the deceased who was his mother-in-law and there was a misunderstanding between him and the deceased who was his wife’s mother. The accused started assaulting the child and inflicted some injuries. the deceased agreed to release the child and his wife. The next morning the accused went very early in the morning to the home of the deceased and found her preparing water for milking. He went to where the deceased was and started assaulting her. She raised an alarm as the accused was pulling her towards the farm. The mother of deceased heard the screams and proceeded to where accused and deceased were.
21. The mother of deceased went closer. The accused held the mother of deceased and grabbed a panga from her. The accused used the panga to cut the deceased. The mother of deceased fled to the house while screaming. The accused ran away while armed with the panga and managed to escape. He was arrested and escorted to the police station. The accused was then charged. The accused was wearing a bloodstained T-shirt at the time of his arrest. The panga was not recovered. The accused was put on his defence and opted to give a sworn defence. He told the court that on the material day he went to the home of deceased an she had told him to go and assist her. She told him to assist her to hide a container of a brew as she feared that the Chief could go there. He did so and was served a glass of brew.
22. She went inside the house. He suddenly felt he was cut the neck. He fell down. He asked her what she was asking him. She wanted to cut him a second time but he hit her hand and she dropped the panga. He picked it. She said she wanted to kill as he was spreading a rumor that she had stolen a cow of PW2. The deceased hit him with a stick. He cut her on the neck with a panga. He said he was trying to defend himself. That he had no intention to kill the deceased. The defence closed its case. The prosecution filed submissions which I have considered. I have considered the prosecutions evidence and the defence of the accused. The issue for determination is whether the prosecution proved the charge of murder against the accused beyond any reasonable doubts.
23. The accused is charged with murder contrary to Section 204 as read with Section 203 of the Penal Code. Section 203 of the Penal Code provides:
“Any person convicted of murder shall be sentenced to death.”
24. The section requires prove of mens rea and actus reus. The elements of the offence which the prosecution is required to proof are:
(a) Proof that the death of the deceased occurred.
(b) That the accused committed the unlawful act which caused the death of the deceased.
(c) Proof that he accused had malice aforethought.
25. On whether the death of the deceased occurred, the prosecution called PW5, Doctor Andrew Njoroge the doctor who performed the postmortem on the body of the deceased and he found that the deceased had a big cut wound on the lateral aspect of the lower cervical bone exposing the axis of the cervical column bone. The cause of death was severe head injury caused by a sharp object. The postmortem form is exhibit 3. Witnesses also testified on seeing the body of the deceased at the scene of murder with deep injury on the head and was lifeless.
26. The scenes of crime officer also took photographs of the deceased at the scene of the murder with a deep injury on the head. I find that with these evidence the prosecution proved that the deceased died. There is no doubt that the deceased died in most brutal manner.
27. The second issue is whether the accused caused the death of the deceased was through an unlawful act which resulted in the death of the deceased. There is no dispute that the accused is the one who inflicted the fatal blow on the deceased. His sworn defence given on oath testified to that fact as he stated as follows in his defence –
“I cut her on the neck with a panga. The deceased was cut on the neck. I was trying to defend myself. I had no intention to kill the deceased.”
28. In Republic -vs- Stephen Sila Wambua (2017) eKLR cited by the prosecution the court held that causing the death of a person is unlawful unless it is authorized or excusable by law or committed in execution of reasonable defence of property or self defence. The law recognizes self defence as a defence. The defence seeks to state or assert that one essential element for the offence of murder was not present, that is malice aforethought or mens rea on his part.
29. The accused stated that he acted in self defence as the deceased wanted to cut him with the panga. Provocation is a defence available to a person who by his actions causes the death of another and is faced with a charge of murder. In the case Duffy 1949 I AH ER 932. It was held that:
“Some act or series of acts done by the dead person to the accused which could 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 or her for the moment not master of his mind…”
30. Section 208 of the Penal Code provides as follows:
“(1) The term "provocation" means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self- control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.
(2) When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.
(3)A lawful act is not provocation to any person for an assault.
(4) An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.
(5) An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.”
31. It implies that a person relying on the defence states that the time he committed the offence he was under diminished capacity and acted in the head of anger or passion. The accused must satisfy two conditions:
(i) That the “subjective” condition that the accused was actually provoked so as to lose his self-control.
(ii) The “objective” condition that a reasonable man would have been so provoked.
32. See Court of Appeal decision in Peter King’ori Mwangi & 2 Others -vs- R (2014) eKLR. The question whether the accused was provoked to lose his self-control has to be determined on the evidence. On the other hand, the Court of Appeal in Victor Nthiga Kiruthu & Another -vs- Republic (2017) eKLR the Court of Appeal had this stay on the defence of self defence:
“The principles that have emerged from these and other authorities are as follows:
Self-defence as the terms suggest, is defence of self.
(i) It is the use of force or threat to use force to defend one self, one’s family or one’s property from a reactor a threatened attack. Self defence is therefore a justification in the application of force recognized by the common law.
(ii) The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self defence if he or she believe that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonable.
(iii) It is not necessary however for there to be an actual attack in progress before the accused may use force in self defence. It is sufficient if he apprehends an attack and uses force to prevent it.
(iv) The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must of a nature which could not reasonably by mere pacific means.
(v) What amounts to a reasonable force is a matter of fact to be determined from evidence and the circumstances of each case.”
33. I am not satisfied that the accused acted in self-defence or that he was provoked. The accused had gone to the home of he deceased the previous demanding that he be given his child. His wife Pw2 refused and they started quarrelling. The deceased reached home at that time and the accused forcefully took the child. The accused and deceased started struggling over the child. The accused overcame the deceased and left with the child. PW2 refused to go with him. He went and return with the child who had been injured or had an injury on the forehead and blood was flowing over his eyes. The accused threatened to deal with PW2 and she agreed to go with him.
34. The testimony of PW2 was not challenged and the court takes that it is a true account of what happened the previous night. How then or when did the deceased tell him he could give him work. And how could the deceased entertain him in her home when the events of the previous night were still fresh. This to me cannot possibly be true. Further even if it could be true, he injury on the deceased which was a very deep cut exposing the bones were way too excessive and negated any defence of self defence. The accused states that the deceased had a stick, was there any need then to use a panga. The accused was not injured and he admitted that he had not treatment notes.
35. The prosecution evidence disapproves the defence of provocation or self defence. Pw1 witnessed when the accused was dragging the deceased very early I the morning. PW1 went to rescue her but accused took the panga and cut the deceased. The accused was met by an independent witness that is (PW3) walking away from the scene while armed with a panga. I find that it is the accused who attached the deceased resulting in injuries which are indicative of malice aforethought on his part.
36. Section 206 of the Penal Code provides:
“Malice aforethought shall be deemed to be established by evidence proving any one 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 of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
37. Article 26(1)(2) of the Constitution of Kenya guarantees every person’s right to life – It provides:
“26(1) Every person has the right to life
(2) A person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or other written law.”
38. In Guzawbizi Wesonga -vs- Republic (1948) EACA 63 the Court stated thus:
“Every homicide is unlawful unless authorized by the law or excusable under the law or under justifiable circumstances such as self defence or defence to property.”
39. In this case the accused caused the death of the deceased for no justifiable cause. The acts of the accused were unlawful. Section 206 of the Penal Code (supra) defines malice aforethought. In Joseph Kimani Njau -vs- Republic (2014) eKLR, the Court of Appeal held:
“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;
(a) The intention to cause death;
(b) The intention to cause grievous bodily harm;
(c) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his act, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.
It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed….”
40. For the reasons stated in this Judgment, it has been proved beyond any reasonable doubts that the deceased died as a result of injuries inflicted on her by the accused. The nature of the injures, the weapon used and the part of the body where the injury was inflicted, the single brutal blow, that is a deep cut on the head are all indicative of malice aforethought. The defence is a sham.
41. I find that the prosecution has proved the charge of murder against the accused beyond any reasonable doubts. I find the accused person guilty as charged and I convict him under Section 323(2) of the Criminal Procedure Code.
Dated, signed and delivered at Chuka this 31st day of March 2026
HON. LADY JUSTICE L. GITARI
JUDGE
IN THE HIGH COURT OF KENYA AT CHUKA
CRIMINAL CASE NO. E016 OF 2023
REPUBLIC………………………………………. ……………………ODPP
VERSUS
DENNIS MUTHOMI KAWIRA…………………………….….ACCUSED
JUDGMENT
1. The accused person Dennis Muthomi Kawira is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 Laws of Kenya). The particulars of the charge are that on 2/6/2023 at Karimba Ka Nyuni village, Kithino Sub-Location, Tunyai Location Tharaka South Sub-County within Tharaka Nithi County, murdered Rose Karimi Muthengi. The accused person denied the charge.
The Prosecution’s Case
2. The brief facts of the case are that on 1/6/2023 at about 9.00pm the accused person went to the home of the deceased who is his mother-in-law and found one Linet Kanana who was the accused’s person’s wife. She was with Kamberina Kangu who was the grandmother and the mother of the deceased rose Karimi Muthengi. The deceased, the mother to Linet Kanana and therefore accused person’s mother-in-law. The accused’s wife had left the home of the accused and returned to her mother’s home. On that day when the accused went to the home of the deceased, he demanded that his wife should return to his home. The accused threatened to harm their child if the wife did not accompany him that night.
3. Out of fear, his wife Linet denied to go with accused. The following day on 2/6/2023 the deceased woke up and started her chores. Suddenly, screams were heard from her house and the accused was seen chasing the deceased. The accused caught up with the deceased and started beating her, kicking her, then cut her brutally inflicting fatal injuries on the deceased. The accused then disappeared. The mother of the deceased saw where she lay and confirmed that she was already dead.
4. The police were called and the body was taken to Marimanti Level 4 Hospital mortuary where a postmortem was done. The doctor formed the opinion that the cause of death was excessive bleeding from severe injuries on the head caused by a sharp object. The accused was arrested the next day and charged with this offence.
Summary of the Evidence
5. PW1Karuberina Karigu testified that she is the mother of the deceased in this case. She told the court that on 1/6/2023 the accused wen to her home to pick his wife Linet Kanana (PW2). He then left with his wife. The following morning, she heard screams early in the morning and went out immediately while armed with a panga. It is then she saw the accused chasing the deceased while armed with a panga. The accused caught up with the deceased and he held her both hands. The accused kicked PW1 with his hand and kicked her with his leg. He then slapped her on the face and took the panga which she had. The accused then chased the deceased while armed with the panga and when he caught up with her, he cut the deceased several times with the panga.
6. PW1 went back to the house and started screaming. She witnessed the accused cutting the deceased on the head. The accused had knocked the deceased down and was cutting her. Some neighbors heard the screams and went to the scene. The accused can away. Members of public went to where the deceased was and confirmed that she was already dead. The mater was reported to the police who went to the scene immediately. The police manager to arrest the accused from where he was hiding. The bod of the deceased was photographed by the scenes of crime officers. It was then moved to the mortuary.
7. PW2 Linet Kanana Muriithi, she is the daughter of the deceased in this case. The accused was the father of her child and they had been living together. On 30/5/2023 she left the home of accused with her baby and the accused never used to give them food and he was threatening to escape with the child and kill him.
8. When she reached home she told the deceased why she had returned home. The deceased told her to assist her to harvest green grammes as she took the child to hospital. On 31/5/23 the Pw2 met the accused on the road and he insisted to know where the child was as he did not find him at home. She told him the child was with the deceased and also told him that she did not want to stay at his home. He said he could rent a house for her at Kithiru and she said it was okay but she knew she would not go. He asked her if she could go the next day and she said yes. She did not go.
9. On 1/6/2023 the accused went to her mother’s house at 9.00pm and said he had gone for the child if she did not want to go with him. PW2 told him she could not give him the child. The accused insisted and they started quarreling. The accused held the child and a struggle ensured. The deceased went outside and held the child. The deceased and accused struggled over the child. The accused over powered the deceased and threatened to harm the child if the (PW2) did not go with him. The accused went away then came back and PW1 noticed that the child was bleeding from an injury on the forehead and blood was covering his eyes. On being asked what happened, the accused told PW2 to go with him. She agreed as she realized the accused could harm the child.
10. PW2 went to accused’s house and spent he night. The next morning the accused woke up very early and left the house saying he was going to started work at 7.00am. PW2 decided to take the child to hospital and first went to pick he treatment card from her mother’s house. On reaching there members of public informed her that her mother had been cut by the deceased. She went and saw the mother on the ground with injuries and was already dead. Police went to the scene and took the body to the mortuary.
11. PW3 Alphonse Kimathi testified that he is a neighbor of the deceased. On 2/6/2023 he was going to the home of the Karuberina Karigu to pick mild but before he reached there he met Muthomi running away from the home armed with a panga. PW3 did not speak to the accused. On reaching the home, Karuberina told him that the one who was going to milk had been killed. She took him to where the body was and saw that she was dead. She told the court that the deceased had a deep cut wound on the right jaw. The water for milking was on the fire. That Karuberina was crying and screaming and many people went to the scene.
12. The relatives stopped the police from removing the body from the scene and demanded that they get Muthomi. On 4/6/2023 policemen went and asked him about the relationship of the accused and the family of the deceased. He told the officers who were from the DCI that Muthomi was married from that home. That when he saw the accused, he as running away from the home of deceased while armed with a panga and could not tell the court how it was.
13. He identified the accused as Muthomi, the person he met running away from the home of the deceased while armed with a panga. PW3 told the court that when he saw the accused he was wearing a green T-shirt. He identified the green T-shirt which was visibly blood-stained.
14. PW4 No. 240459 Inspector Joseph Kathurima, testified that he was attached to the scenes of crime scenes investigations. He is gazette under Gazetti Notice 1145 dated 19/1/2023. He testified that on 2/6/2023 at around 9.30am he was requested by the Deputy DCIO to process a scene at Kithiru where a woman was killed by her son-in-law. He went and took photographs showing the body of the deceased and a close up view of the injuries which she had sustained. He produced the photographs and the report as exhibits, report exhibits and nine photographs as exhibits 2(a) – (i).
15. PW5 Doctor Andrew Njoroge a medical officer at Marimanti level 4 Hospital and he hospital superintendent. He is qualified from Dar-es-salaam University with Bachelors Degree in medicine and surgery medical practitioners Board No. 13409 and has eight years experience. He testified that he did postmortem on the body of the deceased Rose Karimi on 6/6/2023 and observed that the body had clothes which were soaked in blood. She was a female African aged about fifty (50) years. The body was pale and had deep cut wounds on the lateral aspect of the head measuring six (6) centimeters and 11 centimeter deep. It was a deep injury exposing the bone on the neck, that is the cervical bone. Other parts of the body were normal. He formed the opinion that the cause of death was excessive bleeding due to severe head injury caused by a sharp object. The postmortem was done on 6/6/2023 and the body was identified to her by Fridah Gacheri her daughter and Lydia Muthengi her sister. He issued a death certificate and filled the postmortem form which was produced as exhibits 3.
16. PW6 Lydia Kagendo testified that on 6/6/2023 at about 2.00pm she witnessed the postmortem on the body of the deceased and identified the body to the doctor who did postmortem. The deceased Rose Karimi Muthengi is the sister.
17. PW7 PC Jotham Murithi testified that on 2/6/2023 at about 8.00am he was at Ciakariga police post when she received a report that there was a report murder at Kithiru village and was told to accompany the deputy OCS and the OCPD to the scene. He went and found many people at the scene which was a the home of the deceased. The body was at the compound covered with a blanket. He noted that the deceased had been cut on the head and had lost a lot of blood. He was informed that the suspect was a son-in-law of the deceased. It was alleged that the suspect attacked the deceased while at her home and escaped through the farm. Officers from DCI were summoned and they went and took picture.
18. While there he received a report that the accused had been spotted at a construction site. He proceeded to the scene and found that the accused had been arrested by members of public. He arrested him and took him to the police station. The accused wearing a green T-shirt which was stained with blood, he produced it in court as exhibit. The accused was then charged.
19. PW8 No 61452 Corporal Benard Muli testified that he received the report of the murder and visited the scene with the Deputy OCS and the OCPD. He found the body of the deceased with a deep injury on the neck. There was blood oozing from the injury. The scene was processed. The body was moved to the mortuary at Marimanti Level 4 hospital where the postmortem was done. PW5 commenced investigations and he charged the accused.
20. He told the court that on 1/6/2023 the accused went to the home of the deceased who was his mother-in-law and there was a misunderstanding between him and the deceased who was his wife’s mother. The accused started assaulting the child and inflicted some injuries. the deceased agreed to release the child and his wife. The next morning the accused went very early in the morning to the home of the deceased and found her preparing water for milking. He went to where the deceased was and started assaulting her. She raised an alarm as the accused was pulling her towards the farm. The mother of deceased heard the screams and proceeded to where accused and deceased were.
21. The mother of deceased went closer. The accused held the mother of deceased and grabbed a panga from her. The accused used the panga to cut the deceased. The mother of deceased fled to the house while screaming. The accused ran away while armed with the panga and managed to escape. He was arrested and escorted to the police station. The accused was then charged. The accused was wearing a bloodstained T-shirt at the time of his arrest. The panga was not recovered. The accused was put on his defence and opted to give a sworn defence. He told the court that on the material day he went to the home of deceased an she had told him to go and assist her. She told him to assist her to hide a container of a brew as she feared that the Chief could go there. He did so and was served a glass of brew.
22. She went inside the house. He suddenly felt he was cut the neck. He fell down. He asked her what she was asking him. She wanted to cut him a second time but he hit her hand and she dropped the panga. He picked it. She said she wanted to kill as he was spreading a rumor that she had stolen a cow of PW2. The deceased hit him with a stick. He cut her on the neck with a panga. He said he was trying to defend himself. That he had no intention to kill the deceased. The defence closed its case. The prosecution filed submissions which I have considered. I have considered the prosecutions evidence and the defence of the accused. The issue for determination is whether the prosecution proved the charge of murder against the accused beyond any reasonable doubts.
23. The accused is charged with murder contrary to Section 204 as read with Section 203 of the Penal Code. Section 203 of the Penal Code provides:
“Any person convicted of murder shall be sentenced to death.”
24. The section requires prove of mens rea and actus reus. The elements of the offence which the prosecution is required to proof are:
(a) Proof that the death of the deceased occurred.
(b) That the accused committed the unlawful act which caused the death of the deceased.
(c) Proof that he accused had malice aforethought.
25. On whether the death of the deceased occurred, the prosecution called PW5, Doctor Andrew Njoroge the doctor who performed the postmortem on the body of the deceased and he found that the deceased had a big cut wound on the lateral aspect of the lower cervical bone exposing the axis of the cervical column bone. The cause of death was severe head injury caused by a sharp object. The postmortem form is exhibit 3. Witnesses also testified on seeing the body of the deceased at the scene of murder with deep injury on the head and was lifeless.
26. The scenes of crime officer also took photographs of the deceased at the scene of the murder with a deep injury on the head. I find that with these evidence the prosecution proved that the deceased died. There is no doubt that the deceased died in most brutal manner.
27. The second issue is whether the accused caused the death of the deceased was through an unlawful act which resulted in the death of the deceased. There is no dispute that the accused is the one who inflicted the fatal blow on the deceased. His sworn defence given on oath testified to that fact as he stated as follows in his defence –
“I cut her on the neck with a panga. The deceased was cut on the neck. I was trying to defend myself. I had no intention to kill the deceased.”
28. In Republic -vs- Stephen Sila Wambua (2017) eKLR cited by the prosecution the court held that causing the death of a person is unlawful unless it is authorized or excusable by law or committed in execution of reasonable defence of property or self defence. The law recognizes self defence as a defence. The defence seeks to state or assert that one essential element for the offence of murder was not present, that is malice aforethought or mens rea on his part.
29. The accused stated that he acted in self defence as the deceased wanted to cut him with the panga. Provocation is a defence available to a person who by his actions causes the death of another and is faced with a charge of murder. In the case Duffy 1949 I AH ER 932. It was held that:
“Some act or series of acts done by the dead person to the accused which could 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 or her for the moment not master of his mind…”
30. Section 208 of the Penal Code provides as follows:
“(1) The term "provocation" means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self- control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.
(2) When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.
(3)A lawful act is not provocation to any person for an assault.
(4) An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault.
(5) An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.”
31. It implies that a person relying on the defence states that the time he committed the offence he was under diminished capacity and acted in the head of anger or passion. The accused must satisfy two conditions:
(i) That the “subjective” condition that the accused was actually provoked so as to lose his self-control.
(ii) The “objective” condition that a reasonable man would have been so provoked.
32. See Court of Appeal decision in Peter King’ori Mwangi & 2 Others -vs- R (2014) eKLR. The question whether the accused was provoked to lose his self-control has to be determined on the evidence. On the other hand, the Court of Appeal in Victor Nthiga Kiruthu & Another -vs- Republic (2017) eKLR the Court of Appeal had this stay on the defence of self defence:
“The principles that have emerged from these and other authorities are as follows:
Self-defence as the terms suggest, is defence of self.
(i) It is the use of force or threat to use force to defend one self, one’s family or one’s property from a reactor a threatened attack. Self defence is therefore a justification in the application of force recognized by the common law.
(ii) The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self defence if he or she believe that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonable.
(iii) It is not necessary however for there to be an actual attack in progress before the accused may use force in self defence. It is sufficient if he apprehends an attack and uses force to prevent it.
(iv) The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must of a nature which could not reasonably by mere pacific means.
(v) What amounts to a reasonable force is a matter of fact to be determined from evidence and the circumstances of each case.”
33. I am not satisfied that the accused acted in self-defence or that he was provoked. The accused had gone to the home of he deceased the previous demanding that he be given his child. His wife Pw2 refused and they started quarrelling. The deceased reached home at that time and the accused forcefully took the child. The accused and deceased started struggling over the child. The accused overcame the deceased and left with the child. PW2 refused to go with him. He went and return with the child who had been injured or had an injury on the forehead and blood was flowing over his eyes. The accused threatened to deal with PW2 and she agreed to go with him.
34. The testimony of PW2 was not challenged and the court takes that it is a true account of what happened the previous night. How then or when did the deceased tell him he could give him work. And how could the deceased entertain him in her home when the events of the previous night were still fresh. This to me cannot possibly be true. Further even if it could be true, he injury on the deceased which was a very deep cut exposing the bones were way too excessive and negated any defence of self defence. The accused states that the deceased had a stick, was there any need then to use a panga. The accused was not injured and he admitted that he had not treatment notes.
35. The prosecution evidence disapproves the defence of provocation or self defence. Pw1 witnessed when the accused was dragging the deceased very early I the morning. PW1 went to rescue her but accused took the panga and cut the deceased. The accused was met by an independent witness that is (PW3) walking away from the scene while armed with a panga. I find that it is the accused who attached the deceased resulting in injuries which are indicative of malice aforethought on his part.
36. Section 206 of the Penal Code provides:
“Malice aforethought shall be deemed to be established by evidence proving any one 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 of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent to commit a felony;
(d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.”
37. Article 26(1)(2) of the Constitution of Kenya guarantees every person’s right to life – It provides:
“26(1) Every person has the right to life
(2) A person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or other written law.”
38. In Guzawbizi Wesonga -vs- Republic (1948) EACA 63 the Court stated thus:
“Every homicide is unlawful unless authorized by the law or excusable under the law or under justifiable circumstances such as self defence or defence to property.”
39. In this case the accused caused the death of the deceased for no justifiable cause. The acts of the accused were unlawful. Section 206 of the Penal Code (supra) defines malice aforethought. In Joseph Kimani Njau -vs- Republic (2014) eKLR, the Court of Appeal held:
“Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual subject;
(a) The intention to cause death;
(b) The intention to cause grievous bodily harm;
(c) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his act, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.
It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed….”
40. For the reasons stated in this Judgment, it has been proved beyond any reasonable doubts that the deceased died as a result of injuries inflicted on her by the accused. The nature of the injures, the weapon used and the part of the body where the injury was inflicted, the single brutal blow, that is a deep cut on the head are all indicative of malice aforethought. The defence is a sham.
41. I find that the prosecution has proved the charge of murder against the accused beyond any reasonable doubts. I find the accused person guilty as charged and I convict him under Section 323(2) of the Criminal Procedure Code.
Dated, signed and delivered at Chuka this 31st day of March 2026
HON. LADY JUSTICE L. GITARI
JUDGE