'INTRODUCTION
1. The accused person is charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. The particulars of the offence were given to be that on 13th of August, 2022 at Kingoina sub- Location, Sameta Sub County within Kisii County, he murdered RONALD NYAMWARO OKINDO.
2. The accused person pleaded not guilty to the charge and the case proceeded to a full trial . Prosecution calling 6 witnesses while accused opted to adduce unsworn testimony upon being placed on his defence .He is represented by Miss Gogi advocate
The Evidence
3. PW1 Frank Oyunga Orori an electrician working within Itumbe Market. He testified that on 13th August, 2022 he was in his house at 6.30 am when the accused called him and told him that he had a patient to take to the hospital using his motor cycle . HE went to the home of accused’s father , and he found the father(deceased herein ) in the house and realized that he was the said patient . He noted that the deceased had two cuts on the head, neck and left hand and that he was struggling to speak. He together with the accused took the father to Christamariane hospital .It was his statement that when he arrived he found the accused person wiping blood from the house. The accused told him that his father had returned home with injuries the previous night. The father was pronounced dead on arrival at the hospital. They proceeded to take the body to KTRH where the security officers at the gate intercepted them saying that it was a police case. He left the accused there and went home to alert the brothers of the death.
4. On cross examination, PW1 reiterated that he found the accused cleaning blood from the house and when he asked the accused what happened to the father he said that his father had returned with the injuries from the previous night and that he did not see the deceased assailant, the clothes the deceased had on had no blood stains.
5. PW2 , was Chrisphine Obwogi Nyamwaro who stated that the deceased was his biological father and the accused was his younger brother . He testified that he was woken up his boss one Godfrey Obino who informed him that there was an incident home and that he was required at home. He immediately went home and found people mourning and upon asking he was told that his brother Erick, the accused herein had killed their father. He revealed that his father had a strained relationship with the accused and that they used argue and alot. He stated further that he was also told that his father had been taken to Christamariane Hospital by the Deceased and Oyunge.
6. During cross examination he stated that he could not recall who told him that his father had been killed when he arrived him. He also stated that did not know why his father used to quarrel with the accused. He also stated that his father was a drunkard.
7. PW3, was one Dennis Omoke. He told the court that the deceased is his elder brother and that the accused is the second born of the deceased. He stated also stated that he is the one who reported the death of his brother to the police. He stated further he told the police that his brother had been killed and that he did not know who killed him.
8. PW4, Albert Kinara Okindo. He testified that the deceased is his cousin. He stated that he was at his home on the material night when he heard cries from the home of deceased . He woke up his brother, Josephat and they went to the deceased’s home. Upon reaching there , accused opened the door for them. Immediately they entered the accused slapped Josephat and Josphat ran away. Accused then proceeded to lock him in the house together with the deceased. Accused then proceeded hit him in the head and the chest till he bled and also assaulted deceased . Accused wiped away the the blood with water each time he hit them . At time the deceased was lying down flat after the deceased cut him with a panga on the head and the back. He also stated too that he saw the injuries of deceased and that he explained was bleeding profusely. He revealed that accused had smoked bhang. He narrated that, the accused thereafter went to the bedroom and that is the moment when he noticed that the door was open and he managed to escape. The accused followed him but his brother managed to close the door. He tried to call their neighbor, one Omoke but he was asleep. He proceeded to sleep till morning when he woke up early and went looking for accused. He later he learnt that the accused together with one Oyunge had taken the deceased to the hospital but deceased passed on . He proceeded to the police station to report and the police advised him to go to hospital first. He said accused was arrested at Nyanchwa. He stated he did not know why the accused killed his father although he revealed that they had differences.
9. During cross-examination he stated that he found the deceased lying down. He stated that he saw the accused hit his father with a panga on the neck, head and back. He also reiterated that he was also hit with a panga and bled. He stated that he was not able to go to the hospital that night since it was late and he could not get a motorcycle. He further said that he was treated on the next day. He yielded that he was drunk on that fateful day.
10. During re-examination he stated that the accused overwhelmed them since he is a young man. He clarified that he was not so drunk at the material time. He stated that the deceased was moderately drunk too. Though he stated that the accused does not take alcohol.
11. PW5 CHARLES NYABUTO MOGAKA, the chief of Kiongongi location told the court that on 13th August, 2022, he received a call from Tobias Okuoyo while at his home who informed him Nyamwaro had died. He stated further that the Tobias informed him further the deceased had died due to panga cuts occasioned the accused. He asked Tobias where the body was and he told him that the accused had taken it to the hospital. He proceeded to Itumbe police station where he met the OCS and reported the case. They went to Nyanchwa Police station after getting information that the accused had been arrested and taken there. They took him to Itumbe police station and he was booked. Later in the day they proceeded to the scene wherein the police commenced their investigations. At the scene he was able to see a panga, a short slasher, one stool which were all stained with blood and which recovered in the house as well as two sheets which had been dumped in the pit latrine.
12. He was able to identify the panga and slasher produced in court which had dry blood stains as well as two white bed sheets stained with human faeces. i. He narrated further that the recovered items were taken to Itumbe police station for further investigations.
13. On cross examination, he reiterated that he did not see the accused kill his father and that he only saw the exhibits upon recovery by the officers.
14. On re-examination, he stated that the panga and slasher were recovered in his presence and so he was capable of identifying them in court. He stated that slasher was unique as it was short and is still blood stained even at the time of his testimony.
15. PW6 is PC GABRIEL OUKO DAUDI, attached to DCI Sameta. It was his testimony that the OCS Nyanchwa Police station, CIP MOHAMED NOOR reported the case of murder herein to their office and the DCIO detailed him as the investigating officer in the matter. He together with PC Odanga and the area Assistant chief went to the scene.
16. He said he gathered that accused was a son to the deceased and that one L:ucy a neighbour to deceased told him that on 12.8.22 the deceased passed through her home and they had a chat.
17. He revealed further that he was informed by one Pw4 that he heard screams of the deceased at 23.30hours.Pw4 also informed him that the they are neighbours and he and his brother Josephat Okindo went to the scene and found the son of the deceased assaulting the deceased with a panga; the accused opened the door for them, then closed while they were in and also beat them and Luckily , Josephat managed to escape. Pw4 was cut with a panga but later managed to escape too. He ran to the home of Lucy but she did not open the door for him, he went to his home and slept till the following morning.
18. PW6 went on to testify that while at the scene of crime, they went to the latrine wherein they retrieved clothes which were a grey Jacket with white strips belonging to the deceased, one bed sheet which had blood stains and a brown bed sheet . He also stated slasher and a panga were also discovered. He produced as evidence all the items discovered before this court as exbibits (Pexh 1-5) .
19. He went on to testify they took the recovered items to government chemist seeking DNA profiling. The Government chemist found that the blood stains found on the items marched with the blood of the deceased. He produced the DNA report (Pexh 6). He equally produced the exhibit memo form (pexh 7 post mortem report (Pexh 8 ) since the doctor was on education leave in Nairobi. He identified the accused in the dock as a person he knew before the arrest.
20. On cross examination, he stated that both the panga and the slasher were found in the house stained with blood. He confirmed that he was with his colleagues PC Odanga and Charles Nyabuto as well as the area assistant chief when the items were recovered. He asserted that it is normal for police officers to be accompanied by civilians to the scene. He revealed that they lifted fingerprints from the scene and had a report to that effect. He revealed that there were so many people at the scene of crime. He said that the scene had not been tampered despite there were being a lot of people when they arrived there. He revealed that accused had already been arrested and detained at Itumbe Police station when they arrived at the scene of crime.
21. This court vide its ruling dated 3rd February, 2025 found that the prosecution had established a prima facie case against the accused and proceeded to place the accused person on his defence . The during the defence hearing defendant herein gave unsworn testimony. It is his case that on 12th August, 2022 he went an overnight funeral .and on the following morning when he arrived home he found his father lying on the ground with injuries. He took action and lifted and tried to put him on the stool. He then tried to interrogate him but he mumbled words , he went to his uncle’s home but did not find him and he went back home and called his friend, Frank (PW1) to help him take his father to the hospital Pw1 went to their home and they took deceased to hospital but he was declared dead upon arrival .The doctors advised him to take his father’s body to KTRH Mortury and they took him there . A police officer went where they were , arrested and handcuffed him. He said that he had no reason to kill his father and he did not know who killed him.
22. Prosecution indicated that they would rely on the evidence on record .While defence filed submissions and told this court that the burden of proof herein lies with prosecution , not accused and that the standard is that of beyond reasonable doubt as was held in the case of Mangi vs Republic and Philip Nzaka Watu vs Republic (2006 ). Counsel also relied on the case of Stephen Nguli Mulili vs Republic to buttress the point that he who alleged must prove . It was submitted that the evidence on record was insufficient to convict accused and they prayed for an acquittal .
ANALYSIS AND DETERMINATION
23. The offence of murder is provided for under Section 203 as read with Section 204 of the Penal Code. The pertinent provisions read as follows: -
“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
24. The above ingredients of the offence are settled through various decision. The Court of Appeal in the case of; Joseph Githua Njuguna vs Republic (2016) eKLR stated as follows: -
“Under section 203 of the Penal Code, any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. It is clear from this section that there are three elements which the prosecution must prove beyond reasonable doubt to secure a conviction for the offence of murder. These are: (a) the death of the deceased and the cause of that death; (b) that the appellant committed the unlawful act which caused the death of the deceased; (c) and that the appellant had harboured malice aforethought. See Milton Kabulit z& 4 others v Republic [2015] eKLR.
25. Based on the foregoing provisions of the Penal Code and the Court of Appeal decision, the ingredients of the offence of murder can be summarized as follows; a) occurrence and cause of death, b) whether the death was lawful or unlawful, c) proof of commission of the offence by the accused and d) malice aforethought.
26. I shall now deal with the first element as to whether the death of the deceased occurred and the cause of that death. PW6 produced a postmortem report dated 19th august, 2022 prepared Dr. Ayara Mibiyo at KTRH. The report revealed that the cause of death was as result of multiple hemorrhage due to cut injuries. The DNA Sampling carried out on blood stains that were on items especially the panga and the slasher recovered scene of crime merged with the blood of the deceased. The foregoing prosecution evidence on the death of the deceased was not rebutted by the defense. As such, it is the finding of the court that the prosecution has proved beyond reasonable doubt that the death of the deceased occurred.
27. I shall now deal with the issue of the cause of death. The provisions of section 213 of the Penal Code provide the circumstances under which the cause of death may be inferred and proved by way of circumstantial or medical evidence. The subject circumstances were addressed in case of; Benson Ngunyi Ndundu vs Republic CACRA No. 171 of 1984). As I have hereinabove observed, the postmortem report dated 19th august, 2022 prepared Dr. Ayara revealed that the cause of death was as result of multiple hemorrhage due to cut injuries. Based on the evidence the postmortem report, it is the finding of the court that the prosecution has proved the ingredient of the cause of beyond reasonable doubt.
28. The next ingredient to determine is whether the death of the deceased was lawful or unlawful. In that respect, the provisions of Article 26 (3) of the Constitution of Kenya, 2010 states that: -
“(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law”.
29. Further, in the case of Gusambizi Wesonga vs Republic [1948] 15 EACA 65 the court stated that:
“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable it must have been caused under justifiable circumstances for example in self defence of property.”
30. Pursuant to the aforesaid, excusable homicides are killings which result from accident or inadvertence, or committed by persons who lack the capacity to commit crimes (such as very young children or persons who are legally insane), or in reasonable defense to self, or property.
31. In the instant case, the post mortem report which was not rebutted by the defense did not reveal any circumstances that amounts to excusable homicide. It is clear therefore that the deceased did not die a natural or accidental death. Therefore, this is a case of homicide and does not fall excusable homicide. It is the finding of the court that the prosecution has proved beyond reasonable doubt that, the death of the deceased was unlawful.
32. Then next issues to determine is whether the accused person is the one who caused the death of the deceased and if so, whether he had malice aforethought. The only eye witness account that was given in support of the prosecution case was that of the PW4. He narrated that on the fateful day while at his home he heard cries coming from the deceased’s home. He woke up his brother, Josephat and they went to the deceased’s home. Upon reaching, the accused opened the door for them and immediately they entered the house and accused slapped Josephat and he ran away. The accused proceeded to lock him (PW4) together with the deceased inside the house; He hit him on the head and the chest till he bled and he also hit deceased on his head and back. The accused thereafter brought water and cleaned the blood after hitting both of them. Deceased fell and lay on the floor while bleeding profusely. PW4 got a chance to escape and ran away. The above account of PW1 was not controverted during cross-examination . While PW4 yielded that he was drunk he clarified that re-examination he was not so drunk to the level of not knowing what was going on and this was supported by his evidence which was coherent on what happened on the material day.
33. Apart from the eye witness account given by PW4, PW1 who confirmed that when he arrived at the scene of crime he found the accused wiping blood from the house. PW6 also testified that when they visited the scene were able to retrieve clothes dumped in a pit latrine within the homestead. These clothes were suspected to have been used to wipe the blood from floor when the PW1 arrived at the scene of crime. The accused person in defence narrated on the fateful day he arrived home from an overnight funeral and found his father with serious injuries . He went to look for his uncles to help him take his father to hospital but he could not find them. He decided to call his friend Frank (PW1) who arrived and helped him carry his father to Christamariane Hospital where his father was pronounced dead by the doctors. The doctors advised him to take the body to Kisii County Teaching Referral Hospital (KTRH) Mortuary and report incident to the police.
34. I have carefully weighed prosecution’s case and defence , though accused denied the charge, Pw1 said he found him wiping the blood and Pw4 said he found him assaulting deceased for a while and he continued and he also attacked him . This evidence of Pw1 and PW4 was unshaken on cross examination and Pw2 corroborated the evidence of PW4. I do not see why the witnesses would have lied against accused. S From the above analysis there is overwhelming evidence that it is accused person who caused the death of the deceased . I proceed to dismiss the defence that he did not kill deceased as a mere denial . I find that accused was properly placed at the scene .
35. Finally, on the issue of whether there was malice aforethought on the part of accused person, Section 206 of the Penal Code defines Malice aforethought as follows:
“206. Malice aforethought shall be deemed to be established by evidence proving 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.”
36. The Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR, the Court of Appeal held as follows:
“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;
i) The intention to cause death;
ii) The intention to cause grievous bodily harm;
iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, 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……”
37. In the instant case, the postmortem carried on the deceased’s body revealed that cause of death was multiple hemorrhage due to multiple cut injuries due to assault . PW4 explained he was present and as saw the accused cut the deceased with a panga on the head and the back leading the deceased bleeding profusely. Also that accused continued to assault deceased and him for sometime until the time he managed to escape . This evidence of PW2 , PW3 and PW4 .This evidence of PW2, PW3 and PW4 were firm and consistent and was not rebutted .
38. Based on the evidence captured on the postmortem report and the testimony of Pw2 , PW3 and PW4, it is outright that the accused deliberately caused the deceased serious bodily injuries which resulted into his death. In the circumstances I am persuaded beyond reasonable doubt that the prosecution also proved malice aforethought on the part of the accused person beyond reasonable doubt..
39. Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of murder against the accused person I therefore find him guilty of murder under Section 203 as read with section 204 of the Penal Code. I proceed to convict him under Section 322 of the penal code .
T.A ODERA
JUDGE
6.11.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF ACCUSED , MISS GOGI APPEARING FOR ACCUSED , MR KOIMA FOR PROSECUTIOIN AND COURT ASSISTANT MR KIPCHIRCHIR
Koima : we have no previous record .
Gogi : I seek a pre sente4nce report. Before Mitigation.
Order : Mention on 28.1.26 for pre-sentence report and victim impact . statement .
T.A ODERA
JUDGE
6.11.25
'
1. The accused person is charged with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. The particulars of the offence were given to be that on 13th of August, 2022 at Kingoina sub- Location, Sameta Sub County within Kisii County, he murdered RONALD NYAMWARO OKINDO.
2. The accused person pleaded not guilty to the charge and the case proceeded to a full trial . Prosecution calling 6 witnesses while accused opted to adduce unsworn testimony upon being placed on his defence .He is represented by Miss Gogi advocate
The Evidence
3. PW1 Frank Oyunga Orori an electrician working within Itumbe Market. He testified that on 13th August, 2022 he was in his house at 6.30 am when the accused called him and told him that he had a patient to take to the hospital using his motor cycle . HE went to the home of accused’s father , and he found the father(deceased herein ) in the house and realized that he was the said patient . He noted that the deceased had two cuts on the head, neck and left hand and that he was struggling to speak. He together with the accused took the father to Christamariane hospital .It was his statement that when he arrived he found the accused person wiping blood from the house. The accused told him that his father had returned home with injuries the previous night. The father was pronounced dead on arrival at the hospital. They proceeded to take the body to KTRH where the security officers at the gate intercepted them saying that it was a police case. He left the accused there and went home to alert the brothers of the death.
4. On cross examination, PW1 reiterated that he found the accused cleaning blood from the house and when he asked the accused what happened to the father he said that his father had returned with the injuries from the previous night and that he did not see the deceased assailant, the clothes the deceased had on had no blood stains.
5. PW2 , was Chrisphine Obwogi Nyamwaro who stated that the deceased was his biological father and the accused was his younger brother . He testified that he was woken up his boss one Godfrey Obino who informed him that there was an incident home and that he was required at home. He immediately went home and found people mourning and upon asking he was told that his brother Erick, the accused herein had killed their father. He revealed that his father had a strained relationship with the accused and that they used argue and alot. He stated further that he was also told that his father had been taken to Christamariane Hospital by the Deceased and Oyunge.
6. During cross examination he stated that he could not recall who told him that his father had been killed when he arrived him. He also stated that did not know why his father used to quarrel with the accused. He also stated that his father was a drunkard.
7. PW3, was one Dennis Omoke. He told the court that the deceased is his elder brother and that the accused is the second born of the deceased. He stated also stated that he is the one who reported the death of his brother to the police. He stated further he told the police that his brother had been killed and that he did not know who killed him.
8. PW4, Albert Kinara Okindo. He testified that the deceased is his cousin. He stated that he was at his home on the material night when he heard cries from the home of deceased . He woke up his brother, Josephat and they went to the deceased’s home. Upon reaching there , accused opened the door for them. Immediately they entered the accused slapped Josephat and Josphat ran away. Accused then proceeded to lock him in the house together with the deceased. Accused then proceeded hit him in the head and the chest till he bled and also assaulted deceased . Accused wiped away the the blood with water each time he hit them . At time the deceased was lying down flat after the deceased cut him with a panga on the head and the back. He also stated too that he saw the injuries of deceased and that he explained was bleeding profusely. He revealed that accused had smoked bhang. He narrated that, the accused thereafter went to the bedroom and that is the moment when he noticed that the door was open and he managed to escape. The accused followed him but his brother managed to close the door. He tried to call their neighbor, one Omoke but he was asleep. He proceeded to sleep till morning when he woke up early and went looking for accused. He later he learnt that the accused together with one Oyunge had taken the deceased to the hospital but deceased passed on . He proceeded to the police station to report and the police advised him to go to hospital first. He said accused was arrested at Nyanchwa. He stated he did not know why the accused killed his father although he revealed that they had differences.
9. During cross-examination he stated that he found the deceased lying down. He stated that he saw the accused hit his father with a panga on the neck, head and back. He also reiterated that he was also hit with a panga and bled. He stated that he was not able to go to the hospital that night since it was late and he could not get a motorcycle. He further said that he was treated on the next day. He yielded that he was drunk on that fateful day.
10. During re-examination he stated that the accused overwhelmed them since he is a young man. He clarified that he was not so drunk at the material time. He stated that the deceased was moderately drunk too. Though he stated that the accused does not take alcohol.
11. PW5 CHARLES NYABUTO MOGAKA, the chief of Kiongongi location told the court that on 13th August, 2022, he received a call from Tobias Okuoyo while at his home who informed him Nyamwaro had died. He stated further that the Tobias informed him further the deceased had died due to panga cuts occasioned the accused. He asked Tobias where the body was and he told him that the accused had taken it to the hospital. He proceeded to Itumbe police station where he met the OCS and reported the case. They went to Nyanchwa Police station after getting information that the accused had been arrested and taken there. They took him to Itumbe police station and he was booked. Later in the day they proceeded to the scene wherein the police commenced their investigations. At the scene he was able to see a panga, a short slasher, one stool which were all stained with blood and which recovered in the house as well as two sheets which had been dumped in the pit latrine.
12. He was able to identify the panga and slasher produced in court which had dry blood stains as well as two white bed sheets stained with human faeces. i. He narrated further that the recovered items were taken to Itumbe police station for further investigations.
13. On cross examination, he reiterated that he did not see the accused kill his father and that he only saw the exhibits upon recovery by the officers.
14. On re-examination, he stated that the panga and slasher were recovered in his presence and so he was capable of identifying them in court. He stated that slasher was unique as it was short and is still blood stained even at the time of his testimony.
15. PW6 is PC GABRIEL OUKO DAUDI, attached to DCI Sameta. It was his testimony that the OCS Nyanchwa Police station, CIP MOHAMED NOOR reported the case of murder herein to their office and the DCIO detailed him as the investigating officer in the matter. He together with PC Odanga and the area Assistant chief went to the scene.
16. He said he gathered that accused was a son to the deceased and that one L:ucy a neighbour to deceased told him that on 12.8.22 the deceased passed through her home and they had a chat.
17. He revealed further that he was informed by one Pw4 that he heard screams of the deceased at 23.30hours.Pw4 also informed him that the they are neighbours and he and his brother Josephat Okindo went to the scene and found the son of the deceased assaulting the deceased with a panga; the accused opened the door for them, then closed while they were in and also beat them and Luckily , Josephat managed to escape. Pw4 was cut with a panga but later managed to escape too. He ran to the home of Lucy but she did not open the door for him, he went to his home and slept till the following morning.
18. PW6 went on to testify that while at the scene of crime, they went to the latrine wherein they retrieved clothes which were a grey Jacket with white strips belonging to the deceased, one bed sheet which had blood stains and a brown bed sheet . He also stated slasher and a panga were also discovered. He produced as evidence all the items discovered before this court as exbibits (Pexh 1-5) .
19. He went on to testify they took the recovered items to government chemist seeking DNA profiling. The Government chemist found that the blood stains found on the items marched with the blood of the deceased. He produced the DNA report (Pexh 6). He equally produced the exhibit memo form (pexh 7 post mortem report (Pexh 8 ) since the doctor was on education leave in Nairobi. He identified the accused in the dock as a person he knew before the arrest.
20. On cross examination, he stated that both the panga and the slasher were found in the house stained with blood. He confirmed that he was with his colleagues PC Odanga and Charles Nyabuto as well as the area assistant chief when the items were recovered. He asserted that it is normal for police officers to be accompanied by civilians to the scene. He revealed that they lifted fingerprints from the scene and had a report to that effect. He revealed that there were so many people at the scene of crime. He said that the scene had not been tampered despite there were being a lot of people when they arrived there. He revealed that accused had already been arrested and detained at Itumbe Police station when they arrived at the scene of crime.
21. This court vide its ruling dated 3rd February, 2025 found that the prosecution had established a prima facie case against the accused and proceeded to place the accused person on his defence . The during the defence hearing defendant herein gave unsworn testimony. It is his case that on 12th August, 2022 he went an overnight funeral .and on the following morning when he arrived home he found his father lying on the ground with injuries. He took action and lifted and tried to put him on the stool. He then tried to interrogate him but he mumbled words , he went to his uncle’s home but did not find him and he went back home and called his friend, Frank (PW1) to help him take his father to the hospital Pw1 went to their home and they took deceased to hospital but he was declared dead upon arrival .The doctors advised him to take his father’s body to KTRH Mortury and they took him there . A police officer went where they were , arrested and handcuffed him. He said that he had no reason to kill his father and he did not know who killed him.
22. Prosecution indicated that they would rely on the evidence on record .While defence filed submissions and told this court that the burden of proof herein lies with prosecution , not accused and that the standard is that of beyond reasonable doubt as was held in the case of Mangi vs Republic and Philip Nzaka Watu vs Republic (2006 ). Counsel also relied on the case of Stephen Nguli Mulili vs Republic to buttress the point that he who alleged must prove . It was submitted that the evidence on record was insufficient to convict accused and they prayed for an acquittal .
ANALYSIS AND DETERMINATION
23. The offence of murder is provided for under Section 203 as read with Section 204 of the Penal Code. The pertinent provisions read as follows: -
“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
24. The above ingredients of the offence are settled through various decision. The Court of Appeal in the case of; Joseph Githua Njuguna vs Republic (2016) eKLR stated as follows: -
“Under section 203 of the Penal Code, any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. It is clear from this section that there are three elements which the prosecution must prove beyond reasonable doubt to secure a conviction for the offence of murder. These are: (a) the death of the deceased and the cause of that death; (b) that the appellant committed the unlawful act which caused the death of the deceased; (c) and that the appellant had harboured malice aforethought. See Milton Kabulit z& 4 others v Republic [2015] eKLR.
25. Based on the foregoing provisions of the Penal Code and the Court of Appeal decision, the ingredients of the offence of murder can be summarized as follows; a) occurrence and cause of death, b) whether the death was lawful or unlawful, c) proof of commission of the offence by the accused and d) malice aforethought.
26. I shall now deal with the first element as to whether the death of the deceased occurred and the cause of that death. PW6 produced a postmortem report dated 19th august, 2022 prepared Dr. Ayara Mibiyo at KTRH. The report revealed that the cause of death was as result of multiple hemorrhage due to cut injuries. The DNA Sampling carried out on blood stains that were on items especially the panga and the slasher recovered scene of crime merged with the blood of the deceased. The foregoing prosecution evidence on the death of the deceased was not rebutted by the defense. As such, it is the finding of the court that the prosecution has proved beyond reasonable doubt that the death of the deceased occurred.
27. I shall now deal with the issue of the cause of death. The provisions of section 213 of the Penal Code provide the circumstances under which the cause of death may be inferred and proved by way of circumstantial or medical evidence. The subject circumstances were addressed in case of; Benson Ngunyi Ndundu vs Republic CACRA No. 171 of 1984). As I have hereinabove observed, the postmortem report dated 19th august, 2022 prepared Dr. Ayara revealed that the cause of death was as result of multiple hemorrhage due to cut injuries. Based on the evidence the postmortem report, it is the finding of the court that the prosecution has proved the ingredient of the cause of beyond reasonable doubt.
28. The next ingredient to determine is whether the death of the deceased was lawful or unlawful. In that respect, the provisions of Article 26 (3) of the Constitution of Kenya, 2010 states that: -
“(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law”.
29. Further, in the case of Gusambizi Wesonga vs Republic [1948] 15 EACA 65 the court stated that:
“Every homicide is presumed to be unlawful except where circumstances make it excusable or where it has been authorized by law. For a homicide to be excusable it must have been caused under justifiable circumstances for example in self defence of property.”
30. Pursuant to the aforesaid, excusable homicides are killings which result from accident or inadvertence, or committed by persons who lack the capacity to commit crimes (such as very young children or persons who are legally insane), or in reasonable defense to self, or property.
31. In the instant case, the post mortem report which was not rebutted by the defense did not reveal any circumstances that amounts to excusable homicide. It is clear therefore that the deceased did not die a natural or accidental death. Therefore, this is a case of homicide and does not fall excusable homicide. It is the finding of the court that the prosecution has proved beyond reasonable doubt that, the death of the deceased was unlawful.
32. Then next issues to determine is whether the accused person is the one who caused the death of the deceased and if so, whether he had malice aforethought. The only eye witness account that was given in support of the prosecution case was that of the PW4. He narrated that on the fateful day while at his home he heard cries coming from the deceased’s home. He woke up his brother, Josephat and they went to the deceased’s home. Upon reaching, the accused opened the door for them and immediately they entered the house and accused slapped Josephat and he ran away. The accused proceeded to lock him (PW4) together with the deceased inside the house; He hit him on the head and the chest till he bled and he also hit deceased on his head and back. The accused thereafter brought water and cleaned the blood after hitting both of them. Deceased fell and lay on the floor while bleeding profusely. PW4 got a chance to escape and ran away. The above account of PW1 was not controverted during cross-examination . While PW4 yielded that he was drunk he clarified that re-examination he was not so drunk to the level of not knowing what was going on and this was supported by his evidence which was coherent on what happened on the material day.
33. Apart from the eye witness account given by PW4, PW1 who confirmed that when he arrived at the scene of crime he found the accused wiping blood from the house. PW6 also testified that when they visited the scene were able to retrieve clothes dumped in a pit latrine within the homestead. These clothes were suspected to have been used to wipe the blood from floor when the PW1 arrived at the scene of crime. The accused person in defence narrated on the fateful day he arrived home from an overnight funeral and found his father with serious injuries . He went to look for his uncles to help him take his father to hospital but he could not find them. He decided to call his friend Frank (PW1) who arrived and helped him carry his father to Christamariane Hospital where his father was pronounced dead by the doctors. The doctors advised him to take the body to Kisii County Teaching Referral Hospital (KTRH) Mortuary and report incident to the police.
34. I have carefully weighed prosecution’s case and defence , though accused denied the charge, Pw1 said he found him wiping the blood and Pw4 said he found him assaulting deceased for a while and he continued and he also attacked him . This evidence of Pw1 and PW4 was unshaken on cross examination and Pw2 corroborated the evidence of PW4. I do not see why the witnesses would have lied against accused. S From the above analysis there is overwhelming evidence that it is accused person who caused the death of the deceased . I proceed to dismiss the defence that he did not kill deceased as a mere denial . I find that accused was properly placed at the scene .
35. Finally, on the issue of whether there was malice aforethought on the part of accused person, Section 206 of the Penal Code defines Malice aforethought as follows:
“206. Malice aforethought shall be deemed to be established by evidence proving 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.”
36. The Court of Appeal in the case of Joseph Kimani Njau v R (2014) eKLR, the Court of Appeal held as follows:
“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;
i) The intention to cause death;
ii) The intention to cause grievous bodily harm;
iii) Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, 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……”
37. In the instant case, the postmortem carried on the deceased’s body revealed that cause of death was multiple hemorrhage due to multiple cut injuries due to assault . PW4 explained he was present and as saw the accused cut the deceased with a panga on the head and the back leading the deceased bleeding profusely. Also that accused continued to assault deceased and him for sometime until the time he managed to escape . This evidence of PW2 , PW3 and PW4 .This evidence of PW2, PW3 and PW4 were firm and consistent and was not rebutted .
38. Based on the evidence captured on the postmortem report and the testimony of Pw2 , PW3 and PW4, it is outright that the accused deliberately caused the deceased serious bodily injuries which resulted into his death. In the circumstances I am persuaded beyond reasonable doubt that the prosecution also proved malice aforethought on the part of the accused person beyond reasonable doubt..
39. Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of murder against the accused person I therefore find him guilty of murder under Section 203 as read with section 204 of the Penal Code. I proceed to convict him under Section 322 of the penal code .
T.A ODERA
JUDGE
6.11.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF ACCUSED , MISS GOGI APPEARING FOR ACCUSED , MR KOIMA FOR PROSECUTIOIN AND COURT ASSISTANT MR KIPCHIRCHIR
Koima : we have no previous record .
Gogi : I seek a pre sente4nce report. Before Mitigation.
Order : Mention on 28.1.26 for pre-sentence report and victim impact . statement .
T.A ODERA
JUDGE
6.11.25
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