1. Alex Indimuli alias Avune (hereafter the deceased ) and Ernest Alube Omusilwa (hereafter the accused ) were friends. They used to push mkokoteni (handcarts) at Muthurwa market. They were also neighbours living in semi-permanent one-roomed mabati structures at Kiambiu. But on 15 th August 2022, an ugly and drunken knife-fight over a sum of Kshs 500 ended in death.
2. The Director of Public Prosecutions brought information to the High Court charging the accused with murder contrary to section 203 as read with section 204 of the Penal Code .
3. The particulars were that on 15 th July 2022, at Kwa Wakulima area in Kiambiu slums within Nairobi County, he murdered the deceased.
4. The prosecution called six witnesses. One of them appeared before my predecessor, Ogembo J. On 19 th October 2023, and, pursuant to section 200 (3) of the Criminal Procedure Code , the accused elected to proceed from where the matter had reached.
5. Musa Imbwaka Mbilu (PW1) is a brother of the deceased. When he received the news, he proceeded to his brother’s house in Kiambiu. The door had been locked by the police or the local chief. Upon enquiries at the chief’s office, he learnt that the suspect had been taken to Shauri Moyo Police Station and that his brother was admitted at Mama Lucy Kibaki Hospital.
6. He found the deceased in the ward in great pain. He had stab wounds on the head, neck, hand, wrist, right leg and a crushed knee. He told him that the accused stabbed him over a dispute of Kshs 500 they had been paid at work.
7. Sergeant Bernard Sila (PW5) testified that on 15 th July 2022, he was at Kiambiu Police Post when Titus Okoth (PW6) reported that his two tenants (the accused and deceased) were engaged in a dangerous fight at his plot.
8. PW5 and his colleague, PC Rotich, went to the scene which was about 300 metres from the post. They found the deceased lying on the floor with bloodstained clothes. He had several stab-wounds. The accused then approached them holding a kitchen knife (exhibit 7) and told them that the deceased stabbed him with it on his forehead. Upon cross examination PW5 said that the accused was drunk.
9. Like I stated, PW6 was the landlord. He had gone to Kosovo to meet with another tenant. He then heard a commotion emanating from the other block. When he went there, he saw the accused with bloodstained clothes and wielding a hammer and a knife. He had an injury on his head.
10. PW6 reported the matter to the nearby police post. When he returned with the police, they found the deceased lying in his house with stab wounds and unconscious. His clothes were bloodstained and he could not talk. PW6 and three other people took him to the hospital.
11. PC Simon Ngutu (PW4) was assigned the case on 18/7/2022. When he went to the scene, he recovered the bloodstained door curtain, bedsheet and orange T-shirt (exhibit 5, 6 and 8). He had earlier received a broken kitchen knife with a black handle (exhibit 7) and bloodstained knife with a wooden handle (exhibit 9) from PW5 recovered from the scene on 15/7/2022. He also made arrangements for collection of a buccal swab from the accused as detailed in Form 122A (exhibit 4). All those items were forwarded to the Government Chemist for analysis.
12. Henry Kiptoo Sang (PW3) is the Government Analyst. His report dated 6 th May 2024 (exhibit 2), shows firstly, that the DNA profile generated from the curtain, T-shirt and knife with a wooden handle (exhibits 6, 8, and 9) all matched those generated from the buccal swab of the accused. Secondly, that the DNA from the broken knife (exhibit 7) had a mixture of two profiles: One for from the deceased and another from an unknown person. Lastly, the DNA from the bedsheet (exhibit 5) was a mixture of one from the deceased and that of the accused.
13. The autopsy was conducted by Dr. David Atandi (PW2) at Mama Lucy Kibaki Hospital on 4/8/2022. The body was identified by PW1 and Josphat Mbilu . From the postmortem report (exhibit 1), the cause of death was “sepsis due to bowel perforation as a result of penetrating abdominal injury due to sharp force trauma”.
14. When the accused was placed on his defence, he admitted that they fought with the deceased but that he acted in self defence. They had received Kshs 1000 in a merry-go-round at work. They were to share it. When the accused insisted on his rightful share, the fight erupted. He claimed that the deceased beat him using his fists. When he ran away to his place, the deceased followed and stabbed him. He said that that is when he grabbed a knife and stabbed the deceased.
15. The material part of his sworn statement went as follows-
He followed me with a knife to my place. We were drunk. I fell down in the kitchen. He stabbed me on the forehead and hip. I was bleeding. I then grabbed something, a knife from the utensils and stabbed him
We contributed money and deceased was given 1,000/- We were to share it at 500/- each. We passed by a drinking joint and took a few drinks. We then returned to where we lived . I went into my house and he went into his. It was 3:00 p.m. After a shower, I went to ask deceased for my 500/-. My wife had gone to work. Deceased claimed he was stepping out to get change. He later started claiming the 1000/- bob had disappeared from his room. He started looking for it.
He finally claimed it was lost. He asked me to leave. I insisted on my money. That is when he started beating me using his fists. I ran into my place. He followed me with a knife to my place. We were drunk. I fell down in the kitchen. He stabbed me on the forehead and hip. I was bleeding. I then grabbed something, a knife from the utensils and stabbed him. We were now both bleeding. He left for his place, I followed him. Then he would also chase me back with a knife. I was confused . Officers came later. We were taken to the chief and wrote statements. I was treated and taken to the Police Station at Shauri Moyo. Deceased was also taken to hospital. I have nothing more to say.
16. Learned counsel for the accused, Ms. Gituma , filed final submissions dated 2 nd July 2026. She argued that on the totality of the evidence, the deceased was the aggressor; and, that the accused acted in “self defence” or under “involuntary intoxication”. Accordingly, she argued, mens rea was not proved and the accused should be acquitted. She relied on sections 13 and 17 of the Penal Code and the decisions in Palmer v Republic [1971] AC 814 and Mokwa v Republic [1976-80] 1 KLR 1337.
17. My findings are as follows. The burden of proof that the accused murdered the deceased lay squarely with the Republic. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332, Miller v Ministry of Pensions [1947] 2 All ER 372.
18. Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder .
19. There are four key ingredients that must be present: first, the prosecution must prove beyond reasonable doubt the death of the deceased; and, secondly, the cause of that death; thirdly, that the accused committed the unlawful act that led to the death; and, fourthly, that the accused was of malice aforethought .
20. The death of the deceased and its cause has been proved. The remains were identified for postmortem by PW1 and Josphat Mbilu . From the autopsy report by Dr. David Atandi (PW2), the cause of death was “sepsis due to bowel perforation as a result of penetrating abdominal injury due to sharp force trauma”.
21. I thus readily find that the death was unlawful . The key question then is whether the Republic proved beyond reasonable doubt that the accused, of malice aforethought , killed the deceased.
22. The accused does not deny stabbing the deceased or that his actions caused his death. From the evidence, the two were friends. The tragic fight resulted from the failure by the deceased to give the accused his share of Kshs 500 earned from their merry-go-round. From the evidence of PW6 the accused was drunk. The accused testified in his defence that before he and the deceased got home, they had consumed alcohol.
23. But I readily find that the deceased originated the fight by beating up the accused with his fists. When the accused retreated to his house, the deceased followed him wielding a knife. When the accused fell in the kitchen, the deceased stabbed him with the knife on the forehead and hip. That is when the accused grabbed a knife from the utensils and stabbed the deceased.
24. I am fortified there because the T-shirt, door curtain and bloodstained knife with a wooden handle (exhibits 6, 8 and 9) all bore the blood or DNA of the accused . Doubt is also removed by the evidence of PW6 who saw the injuries on the accused. PW5 also confirmed that the accused had been stabbed and that he was taken for treatment before being booked in at Shauri Moyo Police Station.
25. Furthermore, the fact that both the accused and deceased had stabbed each other with knives is clear from PW3’s analysis that the DNA from the broken kitchen knife with a black handle (exhibit 7) had a mixture of two profiles: One for from the deceased and another from an unknown person ; and, that the DNA from the bloodstained bedsheet (exhibit 5) was a mixture of one from the deceased and that of the accused .
26. Section 17 of the Penal Code provides that-
Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.
27. In Selemani v Republic [1963] E.A 446, the Court of Appeal held:
Under English law there is a broad distinction made where questions of self defence arise. If a person against whom a forcible and violent felony is being attempted repels force by force and in so doing kills the attacker the killing is justifiable, provided there was a reasonable necessity for the killing or an honest belief based on reasonable grounds that it was necessary and the violence attempted by or reasonably apprehended from the attacker is really serious…
In other cases of self defence where no violent felony is attempted a person is entitled to use reasonable force against an assault, and if he is reasonably in apprehension of serious injury, provided he does all that he is able in the circumstances, by retreat or otherwise break off the fight or avoid the assault, he may use such force, including deadly force, as is reasonable in the circumstances. In either case if force used is excessive, but if the other elements of self defence are present there may be a conviction for manslaughter.
28. See also Eugene Lubangi Mposhi v Republic , Malindi, Court of Appeal, Criminal Appeal 63 OF 2006. In Joseph Mokwa v Republic [1976-80] 1 KLR 1337, [1979] KECA 11 (KLR), the Court of Appeal held that the onus fell on the prosecution to prove that the accused used more force than was necessary. I find that that burden has not been discharged by the prosecution in the instant case.
29. I have reached the conclusion that on the totality of the evidence, the accused acted in self-defence and that in view of the assault and knife attack, the force he used was not excessive. This not only negates the mens rea but is a complete defence to the charge.
30. Accordingly, I enter a finding of not guilty against the accused and he is hereby acquitted . He shall be released forthwith unless otherwise lawfully held.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 22 nd day of September 2026.
Judgement read virtually on Microsoft Teams in the presence of: -
The accused.
Ms. Kigira for the Republic instructed by the Office of the Director of Public Prosecutions.
Ms. Gituma for the accused instructed by Kiriinya & Achieng advocates.
Mr. E. Ombuna, Court Assistant.
Page 6
2. The Director of Public Prosecutions brought information to the High Court charging the accused with murder contrary to section 203 as read with section 204 of the Penal Code .
3. The particulars were that on 15 th July 2022, at Kwa Wakulima area in Kiambiu slums within Nairobi County, he murdered the deceased.
4. The prosecution called six witnesses. One of them appeared before my predecessor, Ogembo J. On 19 th October 2023, and, pursuant to section 200 (3) of the Criminal Procedure Code , the accused elected to proceed from where the matter had reached.
5. Musa Imbwaka Mbilu (PW1) is a brother of the deceased. When he received the news, he proceeded to his brother’s house in Kiambiu. The door had been locked by the police or the local chief. Upon enquiries at the chief’s office, he learnt that the suspect had been taken to Shauri Moyo Police Station and that his brother was admitted at Mama Lucy Kibaki Hospital.
6. He found the deceased in the ward in great pain. He had stab wounds on the head, neck, hand, wrist, right leg and a crushed knee. He told him that the accused stabbed him over a dispute of Kshs 500 they had been paid at work.
7. Sergeant Bernard Sila (PW5) testified that on 15 th July 2022, he was at Kiambiu Police Post when Titus Okoth (PW6) reported that his two tenants (the accused and deceased) were engaged in a dangerous fight at his plot.
8. PW5 and his colleague, PC Rotich, went to the scene which was about 300 metres from the post. They found the deceased lying on the floor with bloodstained clothes. He had several stab-wounds. The accused then approached them holding a kitchen knife (exhibit 7) and told them that the deceased stabbed him with it on his forehead. Upon cross examination PW5 said that the accused was drunk.
9. Like I stated, PW6 was the landlord. He had gone to Kosovo to meet with another tenant. He then heard a commotion emanating from the other block. When he went there, he saw the accused with bloodstained clothes and wielding a hammer and a knife. He had an injury on his head.
10. PW6 reported the matter to the nearby police post. When he returned with the police, they found the deceased lying in his house with stab wounds and unconscious. His clothes were bloodstained and he could not talk. PW6 and three other people took him to the hospital.
11. PC Simon Ngutu (PW4) was assigned the case on 18/7/2022. When he went to the scene, he recovered the bloodstained door curtain, bedsheet and orange T-shirt (exhibit 5, 6 and 8). He had earlier received a broken kitchen knife with a black handle (exhibit 7) and bloodstained knife with a wooden handle (exhibit 9) from PW5 recovered from the scene on 15/7/2022. He also made arrangements for collection of a buccal swab from the accused as detailed in Form 122A (exhibit 4). All those items were forwarded to the Government Chemist for analysis.
12. Henry Kiptoo Sang (PW3) is the Government Analyst. His report dated 6 th May 2024 (exhibit 2), shows firstly, that the DNA profile generated from the curtain, T-shirt and knife with a wooden handle (exhibits 6, 8, and 9) all matched those generated from the buccal swab of the accused. Secondly, that the DNA from the broken knife (exhibit 7) had a mixture of two profiles: One for from the deceased and another from an unknown person. Lastly, the DNA from the bedsheet (exhibit 5) was a mixture of one from the deceased and that of the accused.
13. The autopsy was conducted by Dr. David Atandi (PW2) at Mama Lucy Kibaki Hospital on 4/8/2022. The body was identified by PW1 and Josphat Mbilu . From the postmortem report (exhibit 1), the cause of death was “sepsis due to bowel perforation as a result of penetrating abdominal injury due to sharp force trauma”.
14. When the accused was placed on his defence, he admitted that they fought with the deceased but that he acted in self defence. They had received Kshs 1000 in a merry-go-round at work. They were to share it. When the accused insisted on his rightful share, the fight erupted. He claimed that the deceased beat him using his fists. When he ran away to his place, the deceased followed and stabbed him. He said that that is when he grabbed a knife and stabbed the deceased.
15. The material part of his sworn statement went as follows-
He followed me with a knife to my place. We were drunk. I fell down in the kitchen. He stabbed me on the forehead and hip. I was bleeding. I then grabbed something, a knife from the utensils and stabbed him
We contributed money and deceased was given 1,000/- We were to share it at 500/- each. We passed by a drinking joint and took a few drinks. We then returned to where we lived . I went into my house and he went into his. It was 3:00 p.m. After a shower, I went to ask deceased for my 500/-. My wife had gone to work. Deceased claimed he was stepping out to get change. He later started claiming the 1000/- bob had disappeared from his room. He started looking for it.
He finally claimed it was lost. He asked me to leave. I insisted on my money. That is when he started beating me using his fists. I ran into my place. He followed me with a knife to my place. We were drunk. I fell down in the kitchen. He stabbed me on the forehead and hip. I was bleeding. I then grabbed something, a knife from the utensils and stabbed him. We were now both bleeding. He left for his place, I followed him. Then he would also chase me back with a knife. I was confused . Officers came later. We were taken to the chief and wrote statements. I was treated and taken to the Police Station at Shauri Moyo. Deceased was also taken to hospital. I have nothing more to say.
16. Learned counsel for the accused, Ms. Gituma , filed final submissions dated 2 nd July 2026. She argued that on the totality of the evidence, the deceased was the aggressor; and, that the accused acted in “self defence” or under “involuntary intoxication”. Accordingly, she argued, mens rea was not proved and the accused should be acquitted. She relied on sections 13 and 17 of the Penal Code and the decisions in Palmer v Republic [1971] AC 814 and Mokwa v Republic [1976-80] 1 KLR 1337.
17. My findings are as follows. The burden of proof that the accused murdered the deceased lay squarely with the Republic. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332, Miller v Ministry of Pensions [1947] 2 All ER 372.
18. Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder .
19. There are four key ingredients that must be present: first, the prosecution must prove beyond reasonable doubt the death of the deceased; and, secondly, the cause of that death; thirdly, that the accused committed the unlawful act that led to the death; and, fourthly, that the accused was of malice aforethought .
20. The death of the deceased and its cause has been proved. The remains were identified for postmortem by PW1 and Josphat Mbilu . From the autopsy report by Dr. David Atandi (PW2), the cause of death was “sepsis due to bowel perforation as a result of penetrating abdominal injury due to sharp force trauma”.
21. I thus readily find that the death was unlawful . The key question then is whether the Republic proved beyond reasonable doubt that the accused, of malice aforethought , killed the deceased.
22. The accused does not deny stabbing the deceased or that his actions caused his death. From the evidence, the two were friends. The tragic fight resulted from the failure by the deceased to give the accused his share of Kshs 500 earned from their merry-go-round. From the evidence of PW6 the accused was drunk. The accused testified in his defence that before he and the deceased got home, they had consumed alcohol.
23. But I readily find that the deceased originated the fight by beating up the accused with his fists. When the accused retreated to his house, the deceased followed him wielding a knife. When the accused fell in the kitchen, the deceased stabbed him with the knife on the forehead and hip. That is when the accused grabbed a knife from the utensils and stabbed the deceased.
24. I am fortified there because the T-shirt, door curtain and bloodstained knife with a wooden handle (exhibits 6, 8 and 9) all bore the blood or DNA of the accused . Doubt is also removed by the evidence of PW6 who saw the injuries on the accused. PW5 also confirmed that the accused had been stabbed and that he was taken for treatment before being booked in at Shauri Moyo Police Station.
25. Furthermore, the fact that both the accused and deceased had stabbed each other with knives is clear from PW3’s analysis that the DNA from the broken kitchen knife with a black handle (exhibit 7) had a mixture of two profiles: One for from the deceased and another from an unknown person ; and, that the DNA from the bloodstained bedsheet (exhibit 5) was a mixture of one from the deceased and that of the accused .
26. Section 17 of the Penal Code provides that-
Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.
27. In Selemani v Republic [1963] E.A 446, the Court of Appeal held:
Under English law there is a broad distinction made where questions of self defence arise. If a person against whom a forcible and violent felony is being attempted repels force by force and in so doing kills the attacker the killing is justifiable, provided there was a reasonable necessity for the killing or an honest belief based on reasonable grounds that it was necessary and the violence attempted by or reasonably apprehended from the attacker is really serious…
In other cases of self defence where no violent felony is attempted a person is entitled to use reasonable force against an assault, and if he is reasonably in apprehension of serious injury, provided he does all that he is able in the circumstances, by retreat or otherwise break off the fight or avoid the assault, he may use such force, including deadly force, as is reasonable in the circumstances. In either case if force used is excessive, but if the other elements of self defence are present there may be a conviction for manslaughter.
28. See also Eugene Lubangi Mposhi v Republic , Malindi, Court of Appeal, Criminal Appeal 63 OF 2006. In Joseph Mokwa v Republic [1976-80] 1 KLR 1337, [1979] KECA 11 (KLR), the Court of Appeal held that the onus fell on the prosecution to prove that the accused used more force than was necessary. I find that that burden has not been discharged by the prosecution in the instant case.
29. I have reached the conclusion that on the totality of the evidence, the accused acted in self-defence and that in view of the assault and knife attack, the force he used was not excessive. This not only negates the mens rea but is a complete defence to the charge.
30. Accordingly, I enter a finding of not guilty against the accused and he is hereby acquitted . He shall be released forthwith unless otherwise lawfully held.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 22 nd day of September 2026.
Judgement read virtually on Microsoft Teams in the presence of: -
The accused.
Ms. Kigira for the Republic instructed by the Office of the Director of Public Prosecutions.
Ms. Gituma for the accused instructed by Kiriinya & Achieng advocates.
Mr. E. Ombuna, Court Assistant.
Page 6